Contents lists available at ScienceDirect Water Security ELSEVIER journal homepage: www.elsevier.com/locate/wasec, Governing a shared hidden resource: A review of governance mechanisms for transboundary groundwater security Tamee R. Albrecht, Robert G. Varady**, Adriana A, Zuniga-Teran*, Andrea K. Gerlak*”, Chad Staddon* dal center or eas n Pubic Pic, Uiversty of Azone, Tucson, AZ 85719, Unt States "School of cearapy and Development Univesity of rznt Tucson AZ 88719, Ute Sater “Deparent of Ceozaphy ana Erornental Menage Univers ofthe Wes of England, rol BTS 10% UK ARTICLE INFO ABSTRACT ‘Artie hry. Globally, groundwater is by far the largest store of liquid freshorater, making it a key component of 3 Received 9 Apt 2017 secu water supply, However, over the past few decades the amount of wsable groundwater avaliable ‘Accepted 2 Noveribes 2017 ‘around the world has rapidly decreased. Tis depletion is caused primarily by mismanagement (es. ‘Ala cline 15 Noversber 2017 ‘overpumping, contamination, and undet-regulation), but alzo by rediced natural echarge due to climate ‘change and urbanization. Management of groundwater resources is particulary challenging for the neatly 600 aquifers that are transboundary. meaning that they extend actoss international political bor ‘ers, To understand how governance mechanisns aa reduce water insect in transboundary ground ‘water contexts, we review key literature from what we view as the most relevant fields: groundwater ‘management, water security, intemational water law and international water governance. We then for- ulate a sec of recommendations for improved prounewater governance that can address the specific physical nature of groundwater systems, enhance water security, and apply to ansboundatygroundvae ter settings. We argue that groundwater governance in transboundary contexts requires processes that (enhance context-specific and flexible international mechanisms; (2) address the perpetual need for _roundwater data and information; (3) prioiiz the precautionary principle and pollution prevention, in particular; (4) where appropriate. integrate governance of surface and subsurface water and lan: and (5) expand institutional capacity, especially of binational or multinational actors, 1 2077 Elsevier BY. Al rights reserved Contents 1. Introduction: how should we understand groundwater security? 2. Approach, 3. Examining contributions to transboundary groundwater governance 3:1. Groundwater management, 32. Water security research 33. International law for groundwater 33.1. Existing international legal irameworks 33.2. Intemational legal principles: Equitable and reasonable use and no harm 333, Transboundary groundwater treaties 34, Global water sitiatives, 4. Groundwater governance lor transboundary contexts. 41. Enhancing context specific and flexible international mechanisms. 42. Addressing the ongoing need for grounéwater data and information: How much is enough? 43, _Priottizing the precautionary principe and pollution prevention 44. Integtating governance with surlace wate, land, and subsurface management. 45. Expanding institutional eapacity TF Gereponding utr. mall odes: 1atadyemallarzenseéu (RG. Varad), oLeg)10.1036)ase2017.1.002 3124/9 2017 Heeler BV. A rights reserved.“4 TR Albrecht ea Water Security 2 (2017) 43-56 5. Conclusions Acknowledgments References 34 55 1. Introduction: how should we understand groundwater security? Groundwater plays 2 key role in water security, accounting for 97 percent of global liquid freshwater [57], and providing locally- available water supplies in arid regions, drought-resistant water storage, and, often, high water quality. Yet, despite its manifest importance for global water security, groundwater is often over- used and poorly managed [22,88,57, leading to aquifer’ depletion and contamination that is now visible on regional scales (79.108). As ‘hidden’ resource, groundwater isnot easy to manage, particularly at the transboundary scale—where aquifers extend across interna tional borders. Partly for that reason, it also has been “hidden” in international water law [30.76 While nearly 600 groundwater sys- tems" are shared by two or more countries (see Fig. 1; | 14), few international legal mechanisms exist specifically for transboundary ‘water management [75], and those that address groundwater ‘remain inthe initial stages of development (77.92.14) Groundwater contributes to water security in multiple ways that differ from the ways surface water relates to that notion. Water security is most commonly defined, and operationalized, in a broad sense incorporating multiple aspects and domains (117.28), Grey and Sadoft [37 define water security as “the avail- ability of an acceptable quantity and quality of water for health, livelihoods, ecosystems and production, coupled with an accept- able level of water-related risks to people, environments and econ- ‘omies.” Others emphasize water access [32.39), national security [2),0F resilience to global change (85). In all instances, we under- stand water security as a multi-dimenstonal concept incorporating, physical and social dimensions of water availabilty and use Groundwater security includes physical-resource security and the contribution of groundwater supplies to overall water avail~ ability, access, and other human-dimensions of water security (14). Although aquifer storage capacity varies regionally through- ‘out the world itis nonetheless a significant contributor to water supply in many areas (see Fig. 1; [25)). Beyond providing signifi- ‘ant quantities of freshwater across the globe, groundwater also contributes to the human dimensions of water security—such as access, resilience, and human health-in different ways than surface-water sources. For example, in arid areas groundwater supplies are often more locally-accessible than surface water, and because aquifers can store large volumes of water, they con tribute to drought resilience by providing a buffer against water shortage [38.96). Aquifer storage can also be utilized for long- term storage through water banking practices—where surface ‘water is used to recharge aquifers for future use | 56]. Groundwater resources are usually of higher quality than surface water supplies, due to the natural filtration processes that accur over time as recharge flows through porous media (this function is also a key aspect of artificial recharge schemes), Good governance is widely recognized as a key component to achieving, and maintaining. water security [3.75], Groundwater governance has been defined as “the overarching framework of T far tfers os eos uni thts stienty permeable suply wate to il So ener stem for eoimdneter nyse heen) mean 4 ree oF 0 oF ‘more aquifers that ae hyerauially connected [<7 Groundwater ees (0 fobtercnean water, contain in ager orn eobiace materi ? includes tansbeundary aquifers, and ansbeundary rounder bodes as defined by he EU Water Framework Directive ‘groundwater use laws, regulations, and customs, as well as the processes of engaging the public sector, the private sector, and civil society” [63|: 678). In transboundary groundwater contexts, effec- tive governance mechanisms can help to mitigate groundwater overuse, promote sustainable management, and ensure resource access and quality ‘At the global evel, governance mechanisms primarily take the form of international legal frameworks, customary norms, and ‘treaties International law and legal frameworks can address water access, availability, and contlits of use [113]; regulate interactions among nation-states and between states and international organi- ‘zations [54]; and influence the behavior of nation-states and pro- ‘mote intergovernmental networks to address water security [114]. When international legal principles are codified in treaties, such guidance can be enforced at an international level. Other efforts to engage the public sector, private sector and civil society mote broadly have been addressed in recent years through slobal initiatives, specifically, global water initiatives. These initia- tives include mission-driven organizations, high-profile events, consciousness-raising designated time periods, and professional societies [105]. Global initiatives arose to raise awareness; help coordinate the efforts of research, governance, and practice: and provide non-binding guidance for addressing increasingly impor- tant, and exceedingly complex, water challenges (105) This paper reviews key literature from the fields of groundwater management, water security, international water law, and interna- tional water governance—with a specific focus on transboundary ‘groundwater contexts, We seek to understand how governance ‘mechanisms can improve water security when groundwater strad- dles international boundaries. We formulate a set of recommenda tions from our synthesis ofthis broad and diverse literature to help identify strategies for groundwater governance that may have the Potential to enhance water security. In doing so, this paper inte- grates knowledge of the physical nature of groundwater storage, flow, and recharge with an appreciation of water-resources gover nance and international law-—which address social, political, and ‘economic aspects. Our overarching aim is to provide an interdisci- plinary perspective for a complex resource challenge whose future ‘management is becoming more critical as population and demand ‘We begin by describing our approach for the literature review in Section 2. In Section 3, we review multiple bodies of literature. First, we explore how the physica attributes of groundwater influ- ‘ence how itcan be sustainably used, managed, and governed, Next ‘we look at what governance mechanisms for transboundary ‘groundwater are presented in the water security literature, We dis ‘cuss how international legal frameworks contribute to governance ‘capacity in transboundary groundwater contexts. Finally, we review the contribution of global initiatives to the development of effective groundwater governance. Based on the diverse bodies of literature we consulted, we formulate five recommendations {or improved transboundary groundwater governance that are also promising for overall water security, We present and discuss these in Section 4 before concluding the paper in Section 5 2. Approach We seck specifically to understand! how groundwater gover- hance pertains to, and is capable of addressing water security inTE: Albrecht el Wate seeuriy 2 (2012) 45-56 6 _igrac ‘Transboundary Aquifers of the World ‘Special Eon forthe 7 World Water Forum 2018 Fg. 1. Transboundary aquifers in erange groundwater Does in green ("roundwates bodes fet specific volumes of grundvate within an aquifer. according fo the European Union water Famewerk Directv Map rors IRA Interatonl Groundwater Resources Assessment Cente) UNESCOIH® (UNESCO lneratona Heroez Frogramme), 2015. Iansboundary Aquifers ofthe Worl {map Eaton 2015 Seale 1:50.00 000, Dei Netheriands frat legend the ear is reterred othe web version of his article) transboundary contexts. There exists a rich literature inthe fied of international water law that addresses approaches for transbound- ary water resources. However, emerging writing demonstrates @ broader interpretation of governance that goes beyond legal instruments and mechanisms and includes a more diverse and comprehensive set of actors. Global initiatives for groundwater overnance, involving international nongovernmental and inter- governmental organizations, have expanded rapidly in recent years, In academic literature, a water-security approach has taken center stage for addressing the multidimensional nature of water challenges, from local to global scales. To shed light on the impor- tant influence of physical complexities of groundwater aquifers in management and governance, hyérogeologists ae also informing water security and governance approaches ‘We build from eatlier scholarship that has reviewed the role of stoundwater in water security (eg, 4) the role of groundwater science in approaches to water security (eg. [25)), transboundary stoundwater governance challenges (eg. |>.95|), international mechanisms for groundwater (¢, [77.80), the role of law in water security (eg. |93). international treaties addressing, gtoundwater (eg, [9.58)), and global govemance approaches (ex. (31D. ‘ur contribution is twofold: (1) we explicitly consider ground- water security in transboundary aquifers; and (2) by linking sroundwater to a water-securiy framing, we identify governance approaches that address the interdisciplinary nature of trans- boundary groundwater challenges. Due to the expansive literature in these fields. our review does not purport to be comprehensive. Rather, we seek to understand broad trends and themes in these areas of scholarship so a to identify potential areas of agreement or synergy in terms of Frintrprettion of the cterencesto inthis effective governance mechanisms that can work at the trans- boundary groundwater scale. Our recommendations for improved groundwater governance may have the potential to address the specific physical nature of groundwater systems and thereby tenhance water secusity in way’ that are relevant to transboundary groundwater conditions. 3. Examining contributions to transhoundary groundwater governance Some social scientists have argued that groundwater manage- ‘ment is overly characterized as a technical issue ignoring key sociopolitical and institutional constraints (eg, 10). [eis true that ‘until recently, nearly all ofthe attention given to groundwater and aquifers emanated ftom physical scientists. This one-sided set of ‘observations clearly needed to be redressed. But without diminish ing the validity of that critique, itis also clear that the physical characteristics of groundwater commonly have been misinter- preted in the course of formulating law and policies for groundwa- ter [72]. p. 543. In short, governance mechanisms for groundwater need to both better represent hydrogeological conditions and fit particular social, political, and economic context. We begin our examination of international groundwater gover- nance by first looking at the physical nature of groundwater and what this means for its effective management and governance, Next, we turn to studies of water security to see how these might guide transboundary groundwater governance. Legal frameworks an principles are reviewed next, as they form the basis for inter- national agreements, which ate also discussed. Finally, we explore the recent rise in global water initiatives and what new approaches hhave emerged from these efforts46 1TH Albrecht ea Water Security 2 (2017) 43-56 3.1, Groundwater management There is nearly universal agreement that groundwater policy and management must be steeped in sound scientific understand ing of groundwater and the aquifers that contain it, particularly in transboundary contexts |21,72| Te promote water security, hydro- ‘eologists argue that groundwater management approaches must address groundwater storage, productivity, and pollution preven- tion (25), p. 1490. These features, together with aquifer recharge, influence groundwater resource availability, sustainability, and resilience to climate change (ibid), The physical characteristics of groundwater resources differ {rom those of surface-water resources in multiple ways that have implications for effective management. First, groundwater pro- cesses can occur on extended timescales compared to those for surface water. Unconfined aquifers—those in direct connection ‘with surface water or the land surface—can be recharged rapidly by infiltration or directly from surface water. By contrast, in con- fined aquifers—which are replenished only in limited recharge areas—recharge can occur more slowly than groundwater is ‘extracted. Therefore, o avoid groundwater depletion, groundwater ‘management practices have been guided by estimates of how ‘much water can be extracted from an aquifer while maintaining aquifer sustainability. These estimates are made based on aquifer properties (such as porosity, permeability and conductivity), low conditions and recharge rates, as well as other socioeconomic and environmental constraints [951,118]. For confined aquifers, long-term planning for at least 50-100 years may be necessary [23]. Further, some aquifers are non-tenewable—they receive effectively no recharge aver human time scales, Planning for uti lization of non-renewable supplies must emphasize demand- management since once “mined,” these resources may be gone for~ ever [72) Second, in contrast to surface water. groundwater is more vul- nerable to irreversible resource degradation |55). Land manage- ment in recharge areas is critical for preventing aquifer pollution For example, agricultural runoff in recharge areas can affect groundwater quality and urban development, which expands the areal extent of impervious sutfaces (eg. concrete and asphalt), Which in tum can reduce natural recharge to aquifers |72) Groundwater overextraction can also cause water quality impacts, such as salinization caused by infiltration of seawater into coastal aquifers [71,72), or the influx of naturally-occurting pollutants, ‘such as fioride or arsenic |25), which can be irreversible. Because ‘groundwater flow rates are slow—between 0.1 and 10 meters per dday—impacts of overextraction or pollution can be delayed. spa- tially dislocated, and difficult to detect [23,25), Finally, while cli- mate change will almost certainly increase pressure on ‘groundwater resources (52], how such change will impact ground- ‘water recharge inthe long-term-and therefore groundwater avail- ability—is uncertain [94] Problems for transboundary groundwater systems include: resource depletion through averuse or pollution on either side of ‘border; disparate resource utilization across an international bor- ler; and high uncertainty in estimating yields, or the amount of water that can be withdrawn, and other aquifer properties |75), 1. 668. To promote transboundary water security, avoiding resource degradation and ensuring aquifer resilience to human- use and climate change are particularly important [55,25]. Large- scale regional aquifer systems, which are commonly also trans- boundary, are typically complex combinations of unconfined and confined layers and involve multiple flow systems—local low sys- tems transport water shorter distances over shorter timeframes, while deeper flow systems transport water longer distances aver significantly longer timeframes | 78,50], An aquifer system may bbe transected by an international border in multiple arrangements, as depicted by Eckstein and Eckstein (21, The direction of ground- ‘water flow acrass the border, the location of groundwater extrac- tion and the location of groundwater recharge areas can vary among different transboundary aquifers. How the international border transects the aquifer determines which nation is effectively “upstream” versus “downstream” and how groundwater use in one nation affects groundwater availability of quality in the other nation, Addressing these vatious arrangements requires effective ‘governance approaches, rooted in a working understanding of the site-specific hydrogeotogical conditions. In addition to groundwater’s unique physical attributes, aquifer properties can vary dramatically between—and within individual— aquifers. Due to this heterogeneity, different governance approaches may be needed for different groundwater systems [50]. As this section has attempted to demonstrate, the attributes ‘of individual aquifers or groundwater systems should be used as 2 basis for developing groundwater management practices and Policies [53], especially in interationally-shared aquifers |78) However, because groundwater systems are difficult to observe (both literally~ie, by eyeand scientifically. ie, with reference {o their essential properties), obtaining data needed to inform ‘effective management and governance is difficult. Where aquifers «ross international borders, such monitoring and observation data, are often difficult to obtain or non-existent (35) ‘Thus, groundwater management requires different approaches than those used for surface water due to its slow recharge. its high risk of degradation, and the uncertainty involved in characterizing ‘groundwater systems. Because each aquifer or groundwater sy5- tem is unique—characterizing aquifer properties is key to under standing how to sustainably manage groundwater resources. In transboundary contexts, shared aquifers are even more likely to bbe poorly understood and, therefore, mismanaged. 3.2, Water security research Having discusseé the relevance of a sound hydrogeological understanding of groundwater systems. we turn to the water- security literature. Within this body of research, we aim to discover which governance approaches have already been identified as appropriate for achieving groundwater security. While the impor tance of governance is recognized in the water-security literature, {ew studies posit actual governance recommendations for trans boundary water, and fewer still address transboundary groundwa- ter specifically, In transboundary contexts, studies typically address water security by evaluating a host of features: the physical resource security of water resources—protecting groundwater supplies—at the national level (eg. [116)), the collection and shating data and information (e.g, |11]), the causes and nature of conflict and promotion of cooperation between nations (eg. Peterson Perlman et al, (74); [116,111)), of the utilization of international law to address water access, availability, and conflicts (eg. [114.93)). These studies suggest the need for transboundary insti- tutions and institutional capacity on multiple levels, regular ‘exchange of data on groundwater, the need to involve a spectrum, of actors, and the key role of international law. ‘These approaches to water security in the transboundary con- text draw from customary international water law and initiatives that are developing on the global stage. For example, Petersen- Perlman and Wolf [74] review ten transboundary case studies— ‘two of which address transboundary aquifers—to see how cooper ation among nations can improve water security. The wo transboundary examples consider regional aquifer systems chat involve more than two nations, and both have an international agreement in place. Despite this, for the Guarani Aquifer System in South America, Petersen-Perlman and Wolf |74] find that there":Abecht ea Woter Security 2 (2017) 45-5 fs a need for expanded institutional capacity at multiple levels to support enforcement of groundwater regulations. as well as an ‘ongoing need to expand collection and regular exchange of eross- border information, specifically about groundwater. For their sec- fond case, the Northern Sahara Aquifer System, both aquifer degra- dation and water-quality deterioration have been observed. As Section 3.1 has indicated, addressing these impacts and promoting Cooperation, requires improved knowledge of the aquifer and asso- ciated ecosystems, along with consultation mechanisms at the insboundary aquifer scale [74 Research examining the Orontes Basin, shared between Turkey, Syria and Lebanon, argues for increased sharing of water informa- fon to inform water allocation planning and risk assessment for a ransboundary region that depends highly on groundwater, even, ‘hough water information is not only dificult to obtain, but is con ested [1 Im another study of transboundary water security—in Israel and Palestine—Brooks and Trottier [8] examine shared surface water and groundwater. They suggest that instead of treating water resources as a matter of national security, transboundary institu- ns for joint water management are needed to monitor condi- ions and mediate conflicts among riparian nations (3) Finally, Tarlock and Wouters [93] promote “good governance’ for international water security through basin-scale institutions (such as joint bodies or river basin organizations) to implement regional treaties coupled with strong national-level capacity (ncluding transparency and accountability), as well as engage- ‘ment of a range of other actors, such as public and private sectors, international organizations and banks, and NGOs. Others highlight the role of international law in addressing water-security concerns. ‘Wouters and Moynihan (114), for instance, analyze how provisions of the UN Watercourses Convention framework agreement con- tribute to water security by providing mechanisms to address water access, availablity, and conflicts of use. However, they note the limited coverage of the Convention for groundwater (which we discuss in the next section) 3.3, International law for groundwater ‘The global water-security literature we consulted invariably is linked to specific functional approaches, many af which involve evocation of international law. Transboundary groundwater, per se, generally has been ignored and neglected in international water law [100 Legal frameworks that have developed over the yeats present varied and thus far, incomplete approaches for addressing transboundary groundwater. We focus on international legal frameworks and the principles of international water law on which they are based. We are especially interested in the bilateral and multilateral treaties putin place to implement such principles, as these are the primary instruments available atthe international level. We consider how such treaties, where they exist, address groundwater and its distinctive physical nature, We recognize that capacity at the national level is integral for implementing and enforcing treaty provisions, However, a survey of domestic ground- water governance is beyond the scope of this paper. Table 1 pro- vides a summary of legal frameworks and global initiatives that have developed over the years to trace how groundwater is addressed by these mechanisms, The following sections discuss these further 3.31, Existing international legal frameworks Transboundary groundwater was first addressed in interna- nal law by the International Law Association's (ILA) Helsinki Rules in 1966 [80 The Helsinki Rules endorsed many international ‘water law principles that have since been adapted in international reaties and agreements [77]. The Helsinki Rules define a a transboundary drainage basin as “a geographical area extending over two or mote States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus’thus, the rules include only groundwater connected with surface waters. Aquifers not connected with surface water were specifically excluded. In 1986, the ILA's Seoul Rules extended transboundary surface water law to include aquifers that were not connected (o surface water systems [50] However, because the ILA has no official status and is primarily @ professional society, the Helsinki and Seoul Rules have not been regarded as formal international rules in spite of this, they have significantly influenced the development of international water law [7780], [18]. Earlier studies offer examinations of the subtle differences among international water laws (e, [80], and their application to transboundary groundwater (e.g. |). The Helsinki Rules contsibuted to the 1997 Convention on the Non-Navigational Uses of International Watercourses (“Water- courses Convention,” hereafter), developed by the International Law Commission (ILC) commissioned by the UN General Assembly (Gee Table 1: '97)). The Watercourses Convention laid out several general principles that, in practice, have guided many international treaties and cooperative agreements. These principles include: equitable and reasonable utilization, no significant harm, good-faith cooperation information exchange, prior notification, and dispute set- tlement (see Salman [81] and UN (97) for description). Intention- ally avoiding the term “watershed,”” the | Watercourses Convention defines an “international watercourse” a8 including “surface waters and ground waters constiuting by virtue of their physical relationship 2 unitary whole and normally flowing into a ‘common terminus.” Thus, a “watercourse” is understood to include sgroundyater if that groundwater system “flows to a common termi- pus" either directly or via interconnection with a surface ‘As demonstrated by Eckstein and Eckstein [21], application of this definition to various aquifer arrangements is ambiguous. How- cver, generally, the Watercourses Convention can be understood to exclude confined aquifers that are disconnected from surface water “terminus,” as well as non-recharging aquifers. Based on this and other significant gaps, the Watercourses Convention fails to pro- Vide meaningful inclusion of transboundary groundwater that accounts for its physical, technical, economic, and social character- istics [81]. In the process of developing the Watercourses Conven- tion, the ILC adopted a “Resolution on Confined Transboundary Groundwater’ in 1994 ‘Resolution’ hereafter), urging states to extend the principles set forth in the Watercourses Convention to nnon-recharging aquifers not connected with international water- courses without modifications to address their distinctive physical nature (21 Other legal regimes have been drafted more recently to address groundwater (see Table 1), The Berlin Rules, developed by the ILA Jn 2004, were more comprehensive and progressive, in terms of regard for consideration of environmental water needs, than the Watercourses Convention. In contrast to the Watercaurses Con- vention, the Berlin Rules: (1) emphasize managing a shared water- course in an equitable and reasonable manner (versus equitable and reasonable shares for States); (2) place the principle of no sig- nificant harm on equal footing with equitable and reasonable use; ang (3) include ample consideration for environmental needs and the human right to water [81]. The Berlin Rules also emphasized integrated and conjunctive management for aquifers, and explic- itly emphasize the precautionary principle [16,46]. To obtain the necessary scientific information for effective groundwater Th wateined is define te ld ars that contribute ste rot ven system of stream channels, and exits the basin 3 cmon downstream lection Bs)“ 1TH Albrecht ea Water Security 2 (2017) 43-56 Consideration of groundwater by varius intemainal water governance mechanisms Adapted frm Jans ea (2005 us study. (ass) ‘esa ules (2004) Dat aw of Transboundary Aqui 2008) lob Water Preeti (fom 2000 World Wate Farum since 20005) UNESCO Intemational HydrelogalPrgramme ‘Global Environmental Fcity (GE) (2000) Intemational Asacation of Hydrogeaazets (20002) Incermatinaly shared er Resources Management Jngemational Groundwater Resources Assessment enter RAC inee 2003) CTWAP) since 2005) (SARM and Fei nen ne sue a gente {Recognizes an nerconneted water system, watelcoulse™ {Eecaes conned squfes(Reslution lc some types of confined aques) “recognizes conned sees abd nostesewable agers “Recognizes conection between surface wate abd round ‘Emphasizes the precautionary pipe se na har “mecognizes conned aces a natrenewadle agers {betes transboundary aquter systems based on saturated zone “inctudes the pine of sovereignty 1 Gunrenty only 14% af eae conser grounder Cireano eta 2014) + importance of sustainably ceognized in water management as well asthe iportanceof water a0 economic roo. and patciptey and inlsiveappreaches to Stnteiated water resources management (WM) approach to balnced ane hlsie basin management to adress economic seca and environmental needs + Hosting international meeaigssace 2000, “negan addressing groundwater specially in ‘began adéressing groundwater specifically inthe ary 20005 “megan sdaressing groundwates Specify inthe eacy 20005 {Worked ta mprovesnderstnding of scientific socicenorsc ga nstintiona ane “ronmental eee relate tote management of transboundary sie ‘Proeuced eetaed mapping revesting 580 tanibouneary aes, worlwide ‘overnance, the Berlin Rules extené the obligation to gather and ‘exchange data (that appears in the Watercourses Convention) to include resource assessment and monitoring [15.45.97]. However, unlike the Watercourses Convention, the Berlin Rules do not seek to become legally binding. but rather to operate as @ kind of "pra stitioners” or "best practice" guide (90), In 2008, the UN ILc’s Draft (with the emphasis on “éraft”) ‘ticles on the Law of Transboundary Aquifers were introduced (see Table 1; ‘Law of Transboundary Aquifers’ hereafter; 47). The Law of Transboundary Aquifers addresses the gap in the Watercourses Convention by explicitly including confined and non-renewable aquifers. It resulted from close collaboration of, hydrogeologists and lawyers in an effort to devise a document that ‘was both accurate in terms of the hydrogeologic conditions, and consistent with established legal principles [78]. The Law of Transboundary Aquifers recognizes complex aquifer system arrangements, in which multiple aquifer units—confined and lunconfined—may be hydrologically-connected, as well as the broader hydrologic system that includes recharge and discharge areas (Article 2, |47). ‘Although based on many ofthe principles laid out inthe Water- courses Convention, the Law of Transboundary Aquifers differs by including the principle of sovereignty.* McCaffrey /59] argues that although foundational to international relations, whereas the princi ple of sovereignty may apply tothe rock units that make up the aqui fer, when applied to movable groundwater resources, this principle conflicts with existing customary international water law. He roain- The soveregy principle stats: “Each ager state has soveregny over the portan ofa ansboundary ager erage sytem located wits I ey $l exercise te sovereignty acerdace with ternational law andthe present les” See hp un oxeengalsarehiew coe asp?5ynbe-AIES/S/118 tains that the Law of Transboundary Aquifers fails to distinguish DDetween the aquifer units and the groundwater itself and thus, it poses a challenge for implementation. Indeed, limited territorial sovereignty—which guarantees reciprocal rights and duties to both upstream and downstream riparians |77]—is widely accepted as the basis for international water law instead of absolute sovereignty [i]: 628), and aligns more clearly with the principles of equitable and reasonable use and the obligation for no significant harm. The UN General Assembly considered the Draft Articles on the law of Transboundary Aquifers in recurrent sessions from 2008 through 2016, but the articles have not yet been finalized 98) We note here that it took the United Nations 27 years to adopt the Watercourses Convention after the concept was introduced in draft form in 1970, and then another 17 years to put it into force Most observers envision a comparable timeline for eventual approval of the Law of Transboundary Aquifers. ‘Although the Berlin Rules and the Draft Articies on the Law of. ‘Transboundary Aquifers mark attempts to address problems speci- fic to aquifers in a more cohesive and scientifically-sound way, the influence of international legal regimes is limited in that they remain largely voluntary. In practice, most international basins use the principles of the Watercourses Convention, in some eapac~ ity. to guide negotiations. design treaties, and development river basin organizations [81] Although, the Watercourses Convention ‘went into force in 2014 after being ratified by 35 countries [119], ‘enforcement applies only to patticipating nations. Implementation, of other regimes devised to address groundwater discussed herein has been limited.” 7 Fora god dicusion of the evolution of inermaionl groundwater law, see stephan 1,":Abecht ea Woter Security 2 (2017) 45-5 3.32, International egal principles: Equitable and reasonable use and no harm As noted, international legal frameworks can offer the scaffold ing for national groundwater policies regarding international issues, Such legal frameworks are based upon well-established {international customary norms, or principles derived from state practices. Two such principles—those of equitable and reasonable tse and no significant harm—form the foundation of the Water- courses Convention, There has been protracted debate regarding ne hierarchy of these two principles [2 In practice, downstream. "parian states tend to favor “no significant harm” because it pro- tects existing uses against impacts from upstream states, whereas upstream states favor “equitable and reasonable use” because that affords current needs the same weight as historic uses [81,110]. ‘There isa general consensus of opinion that the Watercourses Con- vention puts equitable and reasonable use frst (see Salman [80] for ‘more on this), possibly because “reasonable use” has a centuries old foundation in Common Law [90).” However, many suggest that the principle of “no significant harm” should be prioritized for groundwater, in order to better protect future uses ané promote Jong-term sustainability [55]. Groundwater aquifers are especially vulnerable to pollution and overextraction, due to the difficulty of ‘monitoring and detecting change, time delays of impacts. and the high expense of remediation, Further, active groundwater manage- ‘ment, including enhanced and controlled recharge and water bank Ing, may be necessary to preserve aquifers (83 ‘Applying well-established international customary norms for ransboundary water management to groundwater presents difi- cult challenges related to how groundwater systems are delineated and the different behavior of groundwater compared to surface Water. Existing international laws typically exclude recharge and discharge areas from the definition of a groundwater aquifer (1°, despite their important role inthe overall groundwater system, Eck- stein and Eckstein [21] evaluate how the Watercourses Convention applies to various groundwater systems. They delineate physical arrangements of a transboundary groundwater system based on: hhow the aquifer and river system intersect the international bound- ary, which portion of the aquifer or river system is transected, and whether the aquifer is hydraulically connected to a surface water body. Eckstein and Eckstein 1 find two types of confined aquifers to which the Watercourses Convention would not apply: (1) con- fined aquifer. disconnected from surface water, that crosses aninter- national border and has its recharge area in one state, and (2) completely confined aquifers with no recharge. They also find one case of an unconfined aquifer whose treatment under the Water- courses Convention is unclear: an unconfined aquifer crossing a political boundary, that is hydrologically-connected to a river that does not cross a political boundary but is contained entirely within ‘one State, inthis ase, to apply the principle of equitable and reason able use, the entire aquifer and river would need to be managed as a single integrated system. While established legal principles pertain to shared surface waters, when these are applied to groundwater, we should ask: Do these principles produce the desired outcome of sustainable resource management? We see that legal principles that prioritize sustainability may be more appropriate for groundwater due to the high consequence of resource degradation, Further, groundwa- ter systems occur in complex arrangements and involve recharge areas, aquifers, and discharge areas—various groundwater system of easnable” versus "equtable” use abd even Whtte: of fot they ae legal eulvelen ~ there i snc ase aw to suggest that whats equrable i seasemable ne vie versa Alcan to surace and groundwater is however complicated In ome jurediclons {eg western United States) by the principle of "prar ” arrangements require a closer look to determine how to apply existing legal principles most effectively and what additional strategies for governance are requited above and beyond what the guidance of international water lavi. While customary interna- tional law provides general guidance, functional governance of transboundary aquifers will require more specific information about individual aquifer systems |16|, Treaties devised among ‘two of more individual nations are used to lay ou how legal prin- ciples will be applied in a given situation and context. 333, Transboundary groundwater treaties It is yet another step to move from general legal principles Which as we have seen can be contentious and difficult to agree fon to begin with—to practical, legal instruments. International water law consistently calls for states to develop and enter into bilateral or multilateral legal arrangements over transboundary aquifers (eg, Watercourses Convention, ILC Draft Articles Law of Transboundary Aquifers; see Movilla Pateiro (55)). These require negotiation, agreement, and adoption. But those conditions, while necessary are usually insufficient, For treaties tobe effective, there ‘must be mutual good will and crust, and reciprocal enforcement of agreed-to terms~all ofthese difficult to achieve in the real world. ‘And with regard co these attributes, groundwater poses even greater, uniquely dificult challenges. Despite the call for states to govern transboundary groundwater bilaterally or multilateraly, such treaties and agreement have been slow to develop [5]. Recognizing the lack of such agreements as carly as the 1980s, Hayton and Utton published the Bellagio Draft Treaty as a model for states to develop similar legal instrument for shared groundwater. The Bellagio Draft Treaty addressed “contam- ‘nation, depletion, drought and transboundary transfers as well as withdrawal and recharge issues” [41], p. 663. While groundwater hhas been increasingly included in transboundary water treaties since the 1980s, despite this growing interest only one percent of transboundary aquifers are governed by a formal international treaty [55] and only 14 percent of water treaties (as reviewed by Giordano et al. (30|) address groundwater even in part. Further- ‘more, most of the agreements that mention groundwater deal with it as an extension of surface water, while only a small number focus on regulating groundwater quality or quantity directly. But despite the potential of well-designed, context-relevant, and well-intentioned treaties, as Giordano etal, [30] have shown, very few such instruments are actually in place. States have been reluc- tant to enter into treaties due to lack of information, lack of priority status on the national level, and preference for unilateral action on groundwater, and-—unti recently (see GEF|?1|)=lack of clear inter- national guidance for groundwater governance [56]. MovillaPateiro [66] reviews the only five existing international transboundary trea- ties for aquifers: the Nubian Sandstone Aquifer system (North Arica), the Northwestem Sahara Aquifer (North Aftica). the lullemeden-Taoudeni/Tanezrouft Aquifer system (West Arica), the Guarani Aquifer system (South America), and the Al-Sag/AF-Disi Aquifer (Middle East). She finds that the agreements vary in scope and mechanisms used, as the aquifers themselves also vary in type nd geographic extent. Agreements implement various governance ‘mechanisms, including consultation mechanisms, establishment of joint authorities, initiatives for data collection’ and monitoring, ‘mechanisms for exchange of information, and even temporary restrictions on groundwater extraction [65]. Treaties are often designed without a full understanding of the resource, including the sustainability of existing and historic groundwater withdrawals [16).Forinstance, the Guarani Treaty does not clearly specify protec- tion of recharge areas or present a specific plan for use of non- renewable groundwater [107) In reviewing surface water treaties, Wolf 110] suggests that treaties should be based on needs, rather ‘han historic and prior water uses.so TR Albrecht ea Water Security 2 (2017) 45-56 However, even treaties that have been put into place can remain ineffective. The Guarani Aquifer Treaty, for example, was first agreed to in 2010 but it yet to be ratified by all member states (92). Strong governance capacity in all transboundary nations is needed to support the implementation of treaties. Varady et al [102] identified four main governance capacity elements that include (1) institutional setting (2) availability and access to infor- mation and science, (3) robustness of civil society, and (4) eco- nomic and regulatory frameworks. ‘The institutional setting comprises the government. nongovernmental organizations, pri- vate agencies, and common managerial and decision-making prac tices. Equitable, bottom-up, transparent mechanisms that promote information flows can help avoid troublesome disagreement |), while mitigating potential engagement exhaustion that threatens sustained interest in participation, Finally, economic and regulatory frameworks are important for addressing third-party impacts of pumping that require regulation. ‘As one country pumps groundwater, neighboring countries may require more resources (energy and related costs) to access drop- ping. groundwater levels. Therefore, regulatory frameworks are heeded to improve transboundary policies [103]. New ideas for overcoming these obstacles may arise from concepts and para ddigms generated by broad, global-scale discussions among researchers, officials, NGOs, and other stakeholders—including, ‘but not limited to the international legal scholarship community. 3.4. Global water initiatives We have seen above that groundwater and the aquifers that contain it have numerous international dimensions—most espe- cially when these span national boundaries. The preceding sections have discussed international governance mechanisms, frame- ‘works, principles, and legal regimes, including treaties, But those aspects of transboundary groundwater management exist within 4 broader, more expansive context: products of a growing empha- sis on natural resources policies and governance, with special ‘emphasis on water in general and groundwater in particular, ‘Accordingly, itis also important to look at the role and out- comes of groundwater initiatives, There have been several global ‘water initiatives (see Section 1.0 for a definition of these initia tives) over recent decades that have helped to raise awareness, coordinate tne efforts of research, governance and practice, and provide non-binding guidance for addressing increasingly impor- tant, and exceedingly complex, water challenges. Most venerable among them were professional societies such as the International ‘Association of Hydrological Sciences and the International Associ- ation of Hydrogeologists.’ These societies were joined by growing, tanks of influential, thematically-oriented organizations such as the Global Water Partnership, the World Water Council, and the International Hydrological Programme. Next. to inspire communica tion, cooperation, and action, large gatherings were organized: spe- cialized conferences such as the 1992 Dublin Water Conference’, six ‘World Water Forums since 2000, and two Budapest Water Summits (2013 and 2016). And lst, mostly via the auspices of the United Nations, countries joined to declare designated periods meant to promote awareness of certain themes such as sanitation and health and international cooperation.’ By means of education, research, information-sharing. agenda-setting, and face-to-face meetings which isied the infuential “Dubin Statement on Water ané Surtsnable for exile the fst uch pei. the lacerstionl Hyéroloicl Decade (1965- 24, the international Drinking Water Supply and Sanitation Decae (1961-90), and smote recently the United Nain Incernacanal Yea f Wats Cooperation (2013). these organized initiatives began constituting a sort of non- hegemonic form of global water governance | 10,105] ‘One of the notable accomplishments of global water initiatives thas been their collective role in identifying promising management paradigms. On the heels of the adoption of sustainability, Inte- ‘grated Water Resources Management (IWRM) was proposed." IWRM has sometimes been criticized for various reasons (see Mukh- tarov and Gerlak 68), including for not being suficiently integrated ‘ith sectors other than the water sector (e.g, |52.52.51)}. Nonethe- less, the approach has been adopted by most nations and incorpo- rated into their plans. Party in response to the above critique, the [Nexus approach has taken hold internationally. ft maintains that in view oftheir inseparability. water, energy, and food must be consid cred, and therefore managed simultaneously [42,4], The notion of ‘water security, which we discuss throughout, also can be seen as ‘an outcome of the actions and deliberations of participants in these slobal water initiatives {As part of this internationalization of water, groundwater has benefited from the new attention to soft-path approaches to man- agement. For Gleick [255], the solt-path, demand-oriented approach to management of water resources “complements ‘centralized physical infrastructure with... community-scales s¥3- tems, decentralized and open decision-making. water markets and equitable procing. application of efficient technology, and ‘environmental protection.” That soft-path approach (see also (6)) contrasts with what is often termed the “hard-path” view of development, which economists and others have characterized as an infrastructure-intensive, supply-side attitude toward ‘management. In the case of aquifers, until recently, they were primarily seen as resources in place to be exploited, For the large majority of them, their spatial extents, depths, and volumes have remained largely unknown. The quality of their waters have been equally undetermined, as have been the portions of their volumes belong- ing to each nation bordering on transnational aquifers. Similarly practices, land- and water-ownership regimes, laws, and regula tions have been poorly or at best, incompletely understood, In the early 2000s—prompted by persistent droughts in the Sahel, overexploitation in South Asia, and population-criven water Use increases throughout the developing world—organizations such as UNESCO's International Hydrological Programme (IHP), the Global Environment Facility (GEF), and International Associa tion of Hydrogeologists began addressing the management of groundwater, Most prominently, the Internationally Shared Aqui- fer Resources Management program (ISARM) began operating in 12002, ISARM's objective has been to rectify the previcusly-noted inadequate understanding of scientific, socioeconomic. egal, insti- tutional, and envizonmental issues related to the management of transboundary aquifers, Through a concerted mapping effort led bby IGRAC, the Intemational Groundwater Resources Assessment Center in'The Netherlands, ISARM has produced detailed maps, ‘one is shown in Fig, 1, of the world showing the physical extent ‘of $92 identified transboundary aquifers [45 IGRAC also gathered ‘ase study data on transboundary aquifers worldwide to explore ‘what factors made transboundary cooperation over shared ‘groundwater possible [13]. They found that the existence legal frameworks, regional institutions, funding mechanisms, high insti- tutional capacity, previous water cooperation, scientific research, strong politcal will and third-party involvement to be the most critical (ibid). ISARM has been especially active in providing infor= mation on such aquifers in the Balkan region of southeastern Europe, in Saharan and Sub-Saharan Aftica, and in the Americas. The eel proponent and architect of {WAM has been the Global Water Parmer [52040TR: Albrecht ea WoterSeuriy 2 (2017) 45-5 1m 2010 ISARM organized a prominent conference in Paris, featur- ing 108 papers presentations (48 ISARM enlisted GEFan interagency organization that coordi- nates technical assistance and funding for global environmental programs, and itself a result of a global initiative, the 1992 Rio Earth Summit—to support its Transboundary Waters Assessment Programme (TWAP).Since 2005, TWAP has worked to assess, eval- uate, and develop policy regarding transnational aquifers [75)-In 201, following the ISARM conference, GEF teamed with the Food and Agriculture Organization of the United Nations (FAO) to focus explicitly on groundwater govemance. This was achieved via 2 multiyear project, "GEF-FAO Groundwater Governance Project: A Clobal Framework for Country Action.” The enterprise commis- sioned 12 thematic papers on “key economic, policy, institutional, environmental and technical aspects of groundwater manage- ‘ment.” and tackled “emerging issues and innovative approaches" (24,104), Although it addressed not only transboundary groundwater, the GEF-FAO project yielded the most concerted review and analysis to-date of global governance of groundwater resources. In addition 0 yielding the dozen thematic papers, the project also produced ree summary documents; Shared Global Vision for 2020, Global Framework for Action, and Global Diagnostic (31), The Shared Global Vision report recommended the following overarching, common-sense actions, primarily directed at national governments: understanding context, creating a basis for gover- nance, building effective institutions, making essential Linkages, redirecting finance, and establishing the process of planning anc: ‘management. ‘Ata more detailed evel, the report’s guidelines for good gover- nance of groundwater include [15], p. 223: + "Groundwater should not be managed in isolation, but conjunc tively as appropriate with other water sources to improve water security and assure ecosystem health, + Groundwater quality and resources should be co-managed, and therefore groundwater management needs to be harmonised with land management. + Effective groundwater governance requires co-governance of subsurface space. + "Vertical integration’ is required between national and loca level in the elaboration and implementation of groundwater ‘management and protection plans. + Coordination should be established with the macro-policies of other sectorssuch as agriculture, energy, health, urban and industrial development, and the environment.” ‘These findings, stemming from 2 concerted consciousness- raising initiative, have yielded a body of research grounded infield studies and accompanied by concrete prescriptions for trans- boundary groundwater governance. They complement the patallel endeavors of the individuals and institutions seeking legal instru- ‘ments for managing transboundary groundwater 4. Groundwater governance for transboundary contexts Despite being fairly widespread—and notwithstanding the emergence of a global aperture for water governance in the form fof global water initiatives |105]—the tse and effectiveness of legal ‘mechanisms that actually govern transboundary aquifers remain relatively limited [92,14), Among these, most mechanisms were originally devised for surface water resources and extended— ‘hough not necessarily adapted—to include groundwater. As a result, these instruments sometimes are being applied without ‘meaningful consideration of fit and suitability for the special conditions of groundwater systems (61), The physical nature of groundwater systems demands governance mechanisms different than those utilized for surface water, particularly to address the specific water-security challenges posed by groundwater: the heterogeneous nature of aquifer systems, scientific uncertainty, the risk of irreversible resource degradation, and resilience of srroundwater to change. One global initiative that seems specifically tailored to trans- boundary water governance, with specific inclusion of groundwa- fet, is the UNECE (UN Economic Commission for Europe) Convention on the Protection and Use of Transboundary Watet- courses and International Lakes (Water Convention UNECE [100)). Neatly all ofthe 36 UNECE member states (in Europe, Cen- tral Asia, and Israel) that have transboundary waters are parties to the Convention. The instrument. adopted in Helsinki in 1992 and activated in 1996, “promotes transboundary cooperation concern- ing the ecologicaly-sound management and protection of trans- boundary surface waters and groundwaters authors’ emphasis) The Convention requires participating nations “to prevent, control ang reduce transboundary impact, use transboundary waters in a reasonable and equitable way and ensure their sustainable man- agement” It also requires the formation of joint transboundary Institutions, but without replacing any existing bilateral or mult- lateral agreements—in the case of groundwater—for specific aqui- fers. Apparently encouraged by global reaction to the Convention, in 2003 the UNECE amended it to allow non-ECE member states to accede to the instrument, And in 2016, the Convention was fur- ther enlarged into a global legal framework for transboundary water cooperation by permitting all UN Member States to join [100], Although itis difficult to assess how well the Water Conven- tion is actually functioning in regard to alleviating conflict in trans- boundary groundwater basins its clear thatthe instrument isthe result ofan initiative that started out as regional, but has prolifer- ated to a global scope. The review of groundwater governance for transboundary con- texts presented inthis paper provides the foundation for formulat- Ing recommendations for groundwater governance that have potential to enhance water security, address the physical nature of groundwater systems, and ate relevant for transboundary groundwater contexts. Our recommendations for transboundary groundwater security are consistent with the principles of the soft-path approach and the recommendations of the ISARM and TWAP programs, the GEF Shared Global Vision for 2020 report, and the spirit of the UNECE Water Convention, and include the follow- ing ston: (1) enhance context-specific and flexible international (2) sess the ongsing need for groundwater data and G2) promtize the precautionary. principle and _pollaion prevention (4) integrate governance with surface water, lang, and the sub- surface, where appropriate (5) expand institutional capacity these In the following claborate on recommendations. 4.1. Enhancing context-specfic and flexible international mechanisms Customary international law is ill-equipped to deal with trans- boundary groundwater security challenges that stem from the regional variability and heterogeneity of transboundary groundwa- ter systems. As we have shown, international legal frameworks are inconsistent in how they address transboundary groundwater, and2 TR Albrece ea Water Security 2 (2017) 43-56 ‘remain limited in their ability to implement new policies. While mechanisms to enforce minimum requirements, particularly with respect to the duty to cooperate—a key principle of water law—at the international evel would be helpful (eg. (112.70), there isa need for flexibility in international legal regimes to accommodate site-specific approaches |102) Customary international norms are typically made binding through bilateral and multilateral treaties and court decisions. To be effective, treaties should include specific guidance to address individual aquifer conditions and sociopolitical context of aquifer-nations. In Wolf [110] review of nearly 150 water treaties, hhe found that treaty designs typically address the basin’s unique characteristics, suggesting the critical nature of location-specific social, political, and environmental factors to the implementation of international norms [12 From the few international groundwater treaties that exist, we see that each takes a slightly different approach in terms of scope, content, geographic extent. and legal design of agreements [55] For example, to reduce impacts of extraction of non-renewable ‘groundwater across their international border, Jordan and Saudi ‘Arabia agreed to enforce pumping restrictions within 20 km of that border [69]. In other words, because they maintained enough dis- tance between extraction areas, the impact of extraction on ‘groundwater levels across the border remains limited (bid). Glo- bal groundwater initiatives contribute to identifying a range of approaches by compiling new information and promoting the par- ticipation of a broad and diverse set of actors. But few such exam- ples of effective groundwater agreements exist and more are needed to promote these sorts of individualized approaches. Further, flexible, adaptive mechanisms are needed to address complexities of the physical and ecological systems within which ‘groundwater reserves lie. Delayed impacts, irreversible effects, and persistent scientific uncertainty in groundwater processes are among the challenges to be overcome [27.26]. To achieve their intended impact, treaties and legal frameworks need to be flexible and adaptive enough to evaluate and incorporate reliable, new Inowledge as further information about the nature of individual aquifers and their socioeconomic settings as it becomes available. ‘One example is the incremental approach that has been palpably successful for the 1844 Water Treaty between the U.S. and Mexico ‘That treatywhich is implemented by a venerable binational insti tution, the International Boundary and Water Commission (and its Mexican analogue, the Comisién de Limites y Agua)-allows for “minutes, or itemized amendments, to adjust and update the orig- inal treaty that primarily addresses surface water (101). These ‘minutes provide a formal means to address new challenges, of incorporate new information, as they arise, without the need to renegotiate a new treaty [43] 4.2. Addressing the ongoing need for groundwater data and information: How much is enough? Following on the need for context-specific groundwater gover- nance is the need for adequate scientific information and data to characterize transboundary aquifer systems. While the outcry for more and better data is a perpetual wish among physical and bio- logical scientists, it may sometimes be exaggerated—especially in realms awash in reliable information, But in the case of groundwa- te, the call for more and better data on groundwater resources and adequate scientific characterization of those resources, along with the need for cross-border transparency and information sharing are key ingredients of effective governance in transboundary aqui- {ets 78,103} The Watercourses Convention establishes regular exchange of information and data as a key principle |97). Guidance provided in the Model Provisions for Transboundary Groundwaters—guid- ance for the implementation of the UNECE Water Convention—sug- gests that joint monitoring and assessment be conducted to identify, characterize and delineate transboundary aquifers, ol- lowed by the establishment of a program for joint monitoring. [99]. The few legal agreements that exist for transboundary agui- fers all share in common the pursuit of collecting groundwater ddata_and institutional mechanisms for doing so (55), Such techmnically-based cooperation commonly is conducted as a prelim inary step to further international cooperation, and has generally preceded development of the existing agreements on transbound- ary aquifers [50:65 ‘Applying customary international law in groundwater systems is dificult due to lack of, and inherent uncertainty in the know!- ‘edge on individual aquifers (16) Gathering sufficient information ‘on groundwater systems can reduce uncertainty, and should be ‘conducted prior to developing a specifi legal framework [5]. This is also key for developing and implementing adaptation strategies {for groundwater use and governance in the face of climate change [o4). Yet, cross-border data and information may be difficult to ‘obtain [55]. and the high degree of uncertainty in and consequent lack of reliability of groundwater data, the difficulty and expense of collecting in-situ data, and the extended time frames required for monitoring suggest that building knowledge of groundwater aqui- {ets and their environmental and human contexts will be an ‘unending task 43. Prioritizing the precautionary principle and pollution prevention To ensure water security, risks of resource degradation must be ‘minimized. The preventive and precautionary principles should be ‘emphasized foremost in transboundary groundwater governance (Brooks and Linton |7)): [Go]. These are highlighted in international legal frameworks devised specifically for groundwater, sch as the Law of Transboundary Aquifers (Article 2, (47), the Berlin Rules (Article 38, ILA |46|) and the Model Provisions (Provision 5, UNECE 2012). However, groundwater governance mechanisms are often designed based on surface-water mechanisms, most often without significant revision (eg, the Resolution). This is problematic, as Schlager [83] points out that surface-water regimes frequently fail to address the problems that arise in groundwater-resource sys- tems. For example, the notion of prior appropriation is the comer stone of surface-water policy in the western United States. But ‘when applied to groundwater this principle prioritizes existing and historic uses. thus encouraging overextraction and failing to promote sustainable groundwater tise and long-term water stor- age [82], Similarly, at the international level, the principle of equi- table and reasonable use prioritizes current and historic uses over sustainable use. Gleeson et al. [33] view prioritization of future use for groundwater as a value-driven choice to sustain groundwa- ter supplies for future generations. In addition, Linton et al. [55] argue further that future uses be prioritized in transboundary aqui- {ets. They (and in Brooks and Linton 7) relate five considerations to guide the application of international law principles to trans- boundary aquifers to promote long-term viability: (1) social and politcal equity (2) economic efficiency, (3) ecological sustainabil- ity, (4) importance of demand management, and (5) implementabilty. Preventive and precautionary approaches are needed to protect, groundwater supplies and groundwater quality, in confined aqui- fers, annual extraction rates may exceed recharge rates. If extrac tion rates are not managed over time, aquifer water levels may continuously decline. Alternatively, active groundwater manage- ment, including enhanced and controlled recharge and water banking. may be necessary to preserve aquifers (83). However, existing policies may not be sufficient to improve aquiferTR: Albrecht ea Woter Seuriy 2 (2017) 45-5 sustainability. Policy timelines (which are inthe range of five to ten yeats) typically do not align with the time scale of groundwater system problems, which require long-term management plans on ne order of $0100 years [23]. For example, due to slow ground water flow rates, groundwater pollution may not be detected immediately. Thus, the principle of no significant harm should be prioritized for groundwater aquifers. as these geologic formations can be very expensive and difficult to remediate [55 Im terms of groundwater quality, one of the most critical ire versible impacts is salinization, which can occur when coastal aquifers are overexploited [72]. Aquifers can also become polluted due to industrial activities, agricultural runoff, and the influx of naturally-occurTing contaminants caused by excessive groundwa- ter extraction. The importance of preventing pollution of ground- water aquifers is paramount—in part because the nature of how contamination spreads in aquifers is uncertain, detection of pollu- tion can be difficult and, once detected, contaminated aquifers can be very expensive and time-consuming to remediate (72|. Land- use zoning, and other land-use policies, can be employed to regu- late which activities can take place in groundwater recharge areas [31], “Control areas" are used in some countries to regulate land-use activities in recharge areas and limit. groundwater abstraction in areas of the aquifer vulnerable to pollution or seawater intrusion [72]. Such integration of land-use policies is particularly important in transboundary contexts. 44, Integrating governance with surface water, land, and subsurface ‘management Preventing overuse and pollution in transboundary groundwa- ter aquifers also requires integrated governance of surface water, land, and subsurface activities. The connection between ground- water and surface-water systems is well-known (39]-in well- connected systems, groundwater depletion can draw water away from streams, surface water diversions can reduce groundwater recharge, and water-level declines can impact groundwater- dependent ecosystems [57.52], Where there is strong physical con- nection between groundwater and surface water, the principle of, hhydrological unity suggests holistic management of surface water and groundwater as a single resource (Eckstein and Eckstein, (20). Existing treaties have addressed this in various ways. The Watercourses Convention intentionally used the term “water- course" to acknowledge that groundwater and surface water were part ofa broader water system (albeit excluding confined aquifers) [97], Although never implemented (because it was intended as a model to be used as 2 template, not as a treaty to be ratified), the Draft Bellagio Treaty advocated for the conjunctive use of sur- face water and groundwater, noting the potential benefits it would have for distributional and use efficiency. However, that treaty also acknowledged how the diverse and complex hydrological arrange- ‘ments between groundwater and surface water may produce insti- tutional challenges for coordinated management, and thus suggested that conjunctive management be utilized only "where appropriate” [41]. Conjunctive management, which allows for water needs to be fulfilled from either surface or groundwater soutces, also requites adaptive management and an advanced understanding of the hydrological system. But, shifting all water demands onto groundwater sources during drought periods can Tead to overuse and depletion, unless maximum extraction rates are also enforced, For example, the city of Hermosillo in Mexico experienced a severe drought in the late 1990s and early 2000s that led farmers and municipalities to rely on groundwater with- out restriction. resulting in a depleted aquifer and its associated challenges (87) ‘To maintain adequate quantity and quality of water in trans- boundary aquifers, coordinated management of land use is required in recharge areas. For example, agricultural runoff in recharge areas can affect groundwater quality, and urban develop- ‘ment, which expands the areal extent of impervious surfaces (e. concrete and asphalt), can reduce natural recharge to aquifers. However. coordinated land management can pose problems when the areas of benefit (extraction) is located in a different jurisdiction to the area of cost (recharge). In transboundary contexts, recharge areas may occur on either side of an international border, as depicted by Eckstein and Eckstein [2]. Such a situation has impli- cations for “upstream-downstream” relations between nations sharing the aquifer. Recharge areas may also occur in countries that are not otherwise connected to an international aquifer or watercourse. The Law of Transboundary Articles suggests that nnon-aquifer states should be required to prevent degradation of recharge ateas |47|, yet provides no specific guidance for imple- ‘menting such a measure [16]. Further, activities conducted in sub- surface space, such as fracking, may also pose a threat to groundwater quality. Mitigating impact to aquifers of other sub- surface activities by linking groundwater governance with other subsurface resource policies, will become critical | 102} However, for non-renewable groundwater that is not connected with surface sources, conjunctive management is not helpful. In stuch cases, a combination of supply-side and demand-side mea- sures ate needed fo maintain sustainable groundwater resources (25), Supply-side strategies might include increasing irrigation eff- ciency or artificial aquifer-recharge programs. while demand-side strategies focus on conservation (ibid.). Moreover, non-renewable sroundwater requires more attention in so as to address gaps in International water law with approaches that are applicable for the physical nature of these supplies. While based on similarities in physical characteristics between non-renewable groundwater and oil and gas deposits, governance practices used for trans- boundary oil and gas—where resources are developed commer- cially and allocated according to the proportion of the resource Jocated in each nation—might be useful for non-renewable ground- water [21], However, water resources are not developed as a com- ‘mercial interest—instead they are generally considered a basic Jhuman right [34]. The principle of equitable and reasonable use could help ensure that states provide access to water as a human right in such cases [21]. Such lessons from commercial resources ‘would need to be considered carefully, Here, we recognize that integrated governance of groundwater, surface water, land, and subsurface activities may be exceedingly challenging in transboundary contexts. For example, nations har- boring recharge areas for aquifers to which they have no access will nt be motivated to participate in precautionary land manage- ‘ment in those areas [15]. However, the extent that transboundary groundwater can be viewed from a broader systems perspective, considering links to surface water, land, ecasystems and other sub- surface uses. will be likely to reduce risks to groundwater resources, Expanding institutional capacity will be key to imple- ‘ment suich mechanisms, 45. Expanding institutional capacity Academic and policy literature alike consider institutional capacity to be critical for effective transboundary water gover- nance and water security. In case studies of transboundary water ‘management, the institutional capacity needed to accommodate social political, or environmental change is consistently found to be a main determinate of success in shared water governance [115], At the transboundary aquifer level, institutions must facili tate decision-making among diverse actors who hold a broad range of values and perceptions on both (or all) sides ofthe border (55 “Many suggest the potential need to establish a joint authority, for transboundary groundwater governance. The Draft Bellagio“ TR Albrecht ea Water Security 2 (2017) 43-56 ‘Treaty recommends a joint authority to coordinate and carry out international agreements [41 The Law of Transboundary Aquifers also suggests that joint mechanisms for cooperation, which may “include a commission, an authority or other institution estab- lished by the aquifer States concerned to achieve a specified pur pose,” are needed (47), such as the International Water and Boundary Commission (IBWC) which is facilitating binational cooperation on transboundary aquifer assessment between the U. 5. and Mexico [4). Similarly, others suggest that broad participa tion ofa range of stakeholders, from local to national level institu- tions in aquifer-management organizations, is needed to facilitate groundwater management and monitoring [27], Institutional capacity is suggested to be critical in addressing water security in transboundary contexts [74.93). In the limited transboundary groundwater treaties, institutional capacity was found to be a com- mon component |06). However, few examples of how to design effective institutions at the transboundary aquifer level, or ‘verti cally-integrated' capacity at multiple levels, exist. Brooks and Lin- ton [7] provide one such example for the Mountain Aquifer shared ‘between Israel and the Palestinian Authority, Some additional les- sons may be learned from river basin organizations developed to address transboundary surface water [84 Building institutional capacity at multiple levels, particularly the local level, can help to promote self-reliant and more equitable resource governance in border regions [5,17 Locally-based, cross- border agreements, arranged between communities along interna- tional borders, may be appropriate and effective [22), particularly in cases where transboundary aquifers are limited in extent and azarner litle politcal attention from national-level governments (56). For example, along the U.S-Mexico border, the water utility boards of two border cities, EI Paso, Texas, and Ciudad Juarez, Chi- hhuahua, agreed to cooperate on aquifer projects of shared interest [22). Local agreements can also take place within the context of international agreements, and in fact, are more likely to succeed if allowed and supported by a top-down framework (Rivera 2016). For example, the design of the Guarani Aquifer Agreement allows local ané regional agreements to be made between nations, ‘which could be relevant in instances where groundwater problems have limited and discrete geographic extent (92 ‘While case studies consistently show the important role of local, institutional capacity in improved groundwater governance, they also reveal that governance activities are best shared among mul- tiple levels and diverse actors |103|, Such vertical and horizontal integration among diverse actors is needed to achieve policies that are effective, yet practical | 105, State capacity is needed, for exam- ple, for resource allocation, monitoring and planning, while at the local level, resource protection, resource-use monitoring, adminis- ‘uation and execution of demand and supply-side programs are conducted, as these functions depend on site-specific resource characteristics, availability and use [26]. Coordination between national, state and local levels is critical for implementation of ‘groundwater governance (15). Although multi-level, nested, and overlapping institutions are often proposed as an ideal solution, specific guidelines are needed that ditect the growth of institutions toward effective and efficient solutions that avoid high costs of ‘ansactions between institutions [26] 5. Conclusions The critical role of groundwater in assuring and enhancing water security globally and locally remains undervalued. Aquifers provide long-term water storage that can bulfer climate-change impacts. and supply critical support to ecosystems in many regions, particularly arid and semi-arid ones, where surface water is in short supply. Groundwater resources are often more locally accessible as drinking water and irrigation sources, ané are ‘generally of higher quality than surface water, thanks to natural filtration by sediment. Therefore. improving mechanisms for trans- boundary groundwater governance will have direct implications for overall water security for society and the environment. In this paper, we integrate across diverse literatures, including ‘groundwater management, water security, international water ‘Fovernance, and international water law to understand how gover= nance mechanisms can improve water security in transboundary _groundwater contexts, We build from this scholarship to formulate 2 set of recommendations for improved groundwater governance that can serve to enhance water security, address the specific phys- ical nature of groundwater systems, and are relevant for trans- boundary groundwater contexts. ‘Although: existing international legal mechanisms for trans- boundary groundwater remain limited in their implementation. hydrogeologists and legal scholars have cooperated to produce ‘guidance that more accurately addresses the behavior of ground- ‘water. Ongoing close collaboration between members of those pro- fessions, which has already begun, needs to continue in order to devise policies and practices that work with, not against, the phys ical nature of groundwater to promote water security. Modern. progressive, global water initiatives offer new opportunities for revised thinking and more suitable approaches. These provide a ‘growing role for new and more broadly representative actors and institutions, fresh perspectives, innovative paradigms, and effec tive strategies for promoting secure access to and use of shared ‘groundwater resources. They represent efforts to address gover- nance deficits by improving our understanding of—among other things—the legal, institutional, and governance dimensions of ‘groundwater. As fresh guidance is incorporated in new and exist= ing groundwater treaties, there will be more examples from which to study the site-specific nature of groundwater governance. Fur ther research on the various types of groundwater governance in transboundary contexts, from local to international, and formal 1 informal, is clearly needed. ‘Our recommendations are grounded in this historic and contex- tual understanding of the evolution of groundwater governance and in parallel with the hydrogeological reality of transboundary groundwater systems. Individually and collectively. these aim to ‘enhance transboundary groundwater security. These and related steps are not intended as a how-to manual for effective trans- boundary aquifer governance cum improved security. Rather, they represent an overall attitude that draws on the generalized con- «cepts of flexibility, adaptive capacity, public participation, sustain ability, soft-path approaches, integrated management, conjunctive use, diversity, and societal equity. We have looked through the lit ‘erature for ways to improve transboundary groundwater gover hance. While none of our suggestions represents an ‘encompassing solution or panacea, we think that a combination fof these approaches can promote progress toward improved ‘governance, ‘Acknowledgments ‘This work was undertaken as part of the International Water Security Network, a project funded by Lloyd's Register Foundation, 2 charitable foundation helping to protect life and property by sup- porting engineering-related education, public engagement and the application of research. We further acknowledge the Inter- ‘American Institute for Global Change Research (IAI), for Project ‘SGP-CRAOOS, supported by US. National Science Foundation (NSF) Grant No. GEO-1138881, The paper also benefited from sup- Port by the Mortis K. Udall and Stewart L Udall Foundation in Tuc- son, Arizona, Finally, the authors are grateful for the support and advice received! from Christopher A. 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