The Geographical Journal, Vol. 175 No. 1, March 2009, pp.

3951
Blackwell Publishing Ltd

doi: 10.1111/j.1475-4959.2008.00313.x

Governing shared groundwater: the controversy over private regulation1

ELENA LOPEZ-GUNN
Alcoa Research Fellow, Grantham Research Institute, London School of Economics and Political Science (UK), Houghton Street, London WC2 2AE E-mail: e.lopez-gunn@lse.ac.uk This paper was accepted for publication in October 2008
This paper examines, mainly at the theoretical level, current academic debates around private environmental governance, private regulation and its role (or not) in management choices over shared groundwater resources. The conclusions reached are based on a literature review and a theoretical analysis to give possible points for discussion and potential research questions. KEY WORDS: transboundary, groundwater, water governance, global public goods, benefit sharing, private environmental governance

Introduction his paper focuses on questions related to institutional and organisational effectiveness in relation to the management of shared aquifers (Dingwerth 2003). It explores speculative research questions in relation to the institutionalisation of private environmental governance in transboundary groundwater management. It assesses the potential advantages and disadvantages of private environmental governance as a potential way out of the current impasse over the management of some shared aquifers, particularly those where there is high conflict and water has become a contested political issue encroaching on high politics and the securitisation of water, like the Middle East (Dinar 2002; Stucki 2005; Davidsen 2006). It analyses whether private environmental governance can help the successful integration of groundwater-shared management into low politics by the respective sharing states. Thus, this paper looks at potential policy innovations, which can arise by involving alternative and/ or complementary actors in addressing seemingly intractable governance problems. Private environmental governance is understood here as encompassing not just the private sector (understood in its whole spectrum, i.e. from transnational corporations to microfinance institutions), but also non-governmental organisations and international governmental institutions. The claim examined is that networks of

actors across the publicprivate continuum can potentially lead to more effective and more legitimate forms sharing groundwater resources. As Dingwerth (2003) states: by bringing together actors from government, private business and civil society in order to find a specific solution, these networks are part of the wider debate on the role of publicprivate partnerships in world politics (p. 11). The focus is on global public policy networks, defined as issue specific trisectoral networks, where participants look for a common solution to a transnational problem (Dingwerth 2003, 13). These global public policy networks can be analysed or categorised in two ways; first, by type, as identified in the UN Vision project (e.g. from bisectoral cooperation to transnational advocacy coalitions), and by function (i.e. those specialised in agenda setting, the negotiation of rules and standards, the implementation of multilateral agreements, or improving public participation). According to Reinicke (1999), policy networks are the logical development to changes generated by globalisation; in fact globalisation integrates markets, but fragments politics (p. 40). In the case of shared groundwater management, this fragmentation of politics (and the central role of the state) opens new venues for both cooperative management (in cases of low-level conflict) and conflict resolution (in cases of high-level conflict). The nature of the problem the sharing of transboundary groundwater resources in fact exceeds
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the scope of national sovereignty. Increasingly, to solve transboundary issues, sovereign states will have to engage with other sovereign states and consider the alternative of curtailing their sovereign rights in lieu of long-term stability of resource use. At present there is a gap between political and economic internationalisation, which is particularly strong in areas that are in need of international regulation, like shared groundwater basins (Wouters 2005). Therefore, this paper looks at the potential governance contributions from private actors2 that might compensate for the decreasing capacities of national government in providing public goods (Knill and Lehmkuhl 2002, 42). It looks for the potential identified in network theory for synergistic relationships between public and private actors. Contrary to the rhetoric over water wars, the record of acute conflict over international resources is historically overwhelmed by the record of cooperation (Giordano and Wolf 2003, 165). Indeed, this has raised hopes on the institutional implications of this historical precedent i.e. the potential which water offers for institutional learning due to, first, its nature as a flow rather than a stock (Schlager et al. 1999), and second, as a common good it can create arenas for institutional cooperation and learning. In the 1990s, linked to the broadening of security to include environmental issues (Dalby 2002; Swatuk 2004), there was a series of papers referring to future water wars (Starr 1991; Uitto and Wolf 2002). Yet there was growing evidence that, in fact, the reality of interstate conflict over water was rare. Wolf (1998).The basins at risk database (Wolf et al. 2003) demonstrated that cooperation over water is overwhelmingly more common than conflict over water, with some 3600 water treaties, the oldest dating back to 805 AD, as evidence for a history of cooperation (Wolf 1998). Once cooperative agreements are established through treaty, these treaties turn out to be impressively resilient over time, even between hostile countries (Bruins 2000). Water, contrary to widespread opinion, has rarely being considered a casus belli. This is the case, for example, when resources are scarce and/or in transboundary basins. There is a growing realisation that parallel to evidence on the lack of water wars, there is increasing evidence that water, under the right conditions, can act as a catalyst for cooperation the so-called spillover effects of neofunctional politics. Agreements on non-contentious issues can lead at a later stage to policy learning on more conflictive political issues (Phillips et al. 2006). Transboundary water management offers opportunities for the socialisation of sovereign states and for the adoption of a neo-functional path

where form follows function. There is a growing body of literature that extols the virtues of water as a channel for strengthening international cooperation, which can spill into other areas of cooperation (Dinar 2002). This liberal-institutionalist view focuses on the evidence of the large number of cooperative treaties and increasingly advocates water as a catalyst for peace in a neo-functionalist process to mediate peace though water. Yet as Stucki (2005) comments, not much has changed outside the scientific consensus on the so-called water peace literature. In March 2001, the UN Secretary General Kofi Annan still warned of future water wars. Despite the evidence and consensus from the water expert community on the lack of water wars, the water war hypothesis still permeates public discourse, with a renewed interest in the media on water wars (Reid 2006; Russell and Morris 2006). In this water wars versus water peace debate, the focus is starting to shift to the sub-national arena, and there is growing concern that conflict over water can be expected not at the international level, but as domestic conflict. Public consciousness and the media probably intuitively believe that as an irritant water can make good relations bad and bad relations worse (Giordano and Wolf 2003, 165). There is sporadic evidence of water riots (Phillips et al. 2006), like the case in Cochabamba, Bolivia) (Nickson and Vargas 2002; Assies 2003), regionalist or nationalist sentiments expressed through access to water resources (for example, the case in spring 2008 over controversial water transfers to Barcelona) (Shukman 2008; Lloyd-Roberts 2008), and food riots where water scarcity has been identified as a driver, and thus could in some cases mask conflict over access to local water resources (Evans 2008). According to Gleick (2006), in Jarvis (2008), conflict often starts at local level, to which Conca (2005, 8) adds that governance of water increasingly involves enduring chronic and sometimes raging controversies about local practises of resource management, conservation and environmental protection in an increasingly transnational context. Yet localised social unrest due to scarce water resources and competition is likely to increase because climate change and population growth will put additional pressure on scarce water resources. However, water scarcity in this context is not perceived as a physical scarcity of resources, but rather as second order scarcity (Ohlsson 2000), or scarcity of governance over water resources, and where groundwater could be at the centre of these disputes as a key strategic resource, for public water supply, irrigation, industrial use and environmental flows to wetlands.
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This links with the concept of social scarcity, understood as the inability to adapt socially and institutionally to shortage of water (Mehta 2003). In addition, decentralisation pressures, addressing the needs of ethnic or sub-sovereign units, are putting additional bottom-up pressure on sovereign states. The potential for cooperation offered by shared waters, and the need to address new water management dilemmas linked to social justice, both demand much more flexible and dynamic policy approaches than traditional top-down state sovereignty. Scope and aim This paper will discuss the institutionalisation of private environmental governance as a doubleedged sword in the management of shared aquifers. In order to do so, it will first explain the concept of global public policy good, particularly in relation to groundwater, and especially applied to transboundary groundwater resources. It will then describe and discuss the shift in international relations theory, questioning the key importance of sovereign states in international relations, and therefore in the management of shared aquifers, by highlighting the different explanations (and policy implications) in the change from government to governance. It will then introduce and define the concept of private regulation, and apply this concept to transboundary aquifer management, identifying, mainly at a theoretical level, the main opportunities and limitations offered by private environmental governance in the management of shared groundwater aquifers. Transboundary water as a global public policy good The rise in the concept of the global commons has been gaining momentum, partly explained by the increased awareness that environmental problems and many environmental resources know no boundaries. It is also partly due to the impact of economic globalisation on the use and sometimes abuse of environmental common public goods. Public goods are defined by the fact that their benefits are largely subtractable and non-excludable. These public goods also exist at the global level as so-called global public policy goods (Kaul 2001). Examples are the global climate, the oceans, fisheries and groundwater. Increasingly, there is a growing acceptance by environmental resource management scholars of the inherently normative or ethical questions that have to be addressed. This is not to say that there is a deterministic view on these ethical questions, but rather that ethical and moral questions often
Geographical Journal Vol. 175 No. 1, pp. 3951, 2009 2008 The Author(s). Journal compilation 2008 The Royal Geographical Society

related to equity have to be made explicit, rather than be assumed away or taken as given in policy formulation; for example, the increased acceptance that public goods should be available for present and future generations. Yet this does not necessarily imply policy prescriptions on the nature of the good (i.e. whether the property rights are public, private or community owned). Rather this is a matter of policy choice and societys political preferences. The provider of the benefits can be the state, the market, public/private partnerships or the community, and the benefits can be provided at different scales local, national or international either global or regional. In this context, shared groundwater resources are relevant because they are increasingly recognised to hold all the characteristics that define a global public policy good (non-excludability and subtractability), and also because of the fact that potential benefits (or damages) can also impact at different scales, from the local to the international. For example, the Dojran Lake in Macedonia (Doirani Lake in Greece) is located in the south-eastern part of the Republic of Macedonia on the border with Greece. The lake has been a cause of tension between these two countries due to the impact of Greek groundwater abstraction for irrigation on the Macedonian fishermen that use this groundwater-fed lake (Stavric 2006). Groundwater as a global public policy good is a substantial resource. It is estimated that approximately 97% of freshwater available is actually groundwater (Popovska and Bonacci 2005). It is the most extracted natural resource in the world, providing more than half the worlds freshwater for uses like drinking, cooking and hygiene, as well as 20% of irrigated agriculture (Aureli and Ganoulis 2003; United Nations 2003; Eckstein and Eckstein 2005). Groundwater supplies 7590% of drinking water supply in European countries, whereas in the US, 95% of the rural population relies on groundwater for public water (United Nations 2003; Eckstein and Eckstein 2005; Mateljan 2007). Groundwater is a crucial strategic resource in many arid and semi-arid regions in the world, where often it is the only source of water (Shah 2007). It has also been acknowledged as a strategic reserve for civil emergency planning (Bruins 2000). There are nearly 240 transboundary groundwater systems or aquifers recognised by World Wide Hydrogeological Mapping and Assessment Programme (WHYMAP3). The specific case of transboundary fresh groundwater resources is also compelling. In fact, more than 40% of the worlds population relies on transboundary water resources for their livelihoods (Jarvis 2008). Out of this 40%, groundwater represents a substantial part and a strategically important resource for public water

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supply, drought resilience and water quality. It is estimated that groundwater resources are 23 400 000 km3 compared with 42 800 km3 of surface water i.e. a difference in the order of magnitude of 500 (Aureli and Ganoulis 2003). Transboundary aquifers can be considered as regional public goods, where sovereign states have to engage in regional common pool resource management (Jarvis et al. 2005) in order to avoid the tragedy of a (regional) commons. Otherwise the rational actions of agents in this case states leads to an irrational outcome, i.e. damaging a shared transboundary groundwater resource. This common pool problem needs collective action by sovereign states, i.e. self-discipline for the longterm collective and individual benefit. To ensure benefits, the issue of non-excludability has to be addressed through policy interventions, and these can take the form of international agreements like the draft articles under the ILC International Law Commissions Convention on Transboundary Aquifers for Shared Natural Resources (which includes groundwater4) (Eckstein 2007), or through Joint Management Commissions. The problem is that groundwater, due to its common pool resource nature, is increasingly available to anyone with the means to drill, equip and power a well (Jarvis et al. 2005; Jarvis 2008). Groundwater as a common pool resource has two distinct dimensions; first is the fact that the domain of use has to be defined and it can vary dramatically in scale, from individual farms to municipalities, to sharing between a number of states5; second, these different domains ultimately interact with groundwater flow, since groundwater compared with other common pool resources is a flow not a stock (Jarvis 2008; Scheumann and HerrfahrdtPahle 2008). This allows for a classification into open access, fugitive groundwater resources and bi-directional resources (Jarvis et al. 2005). This realisation or shift in the perception of groundwater as a common resource and as a flow rather than a stock also has subtle yet crucial institutional implications. It shifts the focus towards a process-oriented outlook on managing a common flow through appropriate institutional frameworks, such as networks operating at multi-scalar levels, including international, regional, national and local partnering opportunities between international institutions, state, private and civil society, NGOs, communities, individuals and epistemic communities (Karkkainen 2005; Mukherji and Shah 2005). Additionally, evidence suggests that in the case of transboundary aquifers one size does not fit all or as White (1957, 43) stated if there is a conclusion that springs from the comparative study of river systems, it is that no two are the same. Management

regimes will have to be tailored to the particular circumstances of individual cases, where in some cases, the only policy option is volumetric allocation, whereas others are open to benefit sharing, provided this is quantified and operationalised on a case-by-case basis. Institutionally, in some cases joint management will be the preferred policy choice, whereas in other cases parallel institutions might be a preferred option. What this paper argues is that the introduction of new potential actors in the equation can automatically offer a wider range of policy options (and policy tools) from which to choose. Equally it might dilute (or reinforce) the hegemonic dominance of certain actors. Are sovereign states still the dominant (limiting) factor in international relations over groundwater use? The nature of the problem lies in sharing transboundary groundwater resources in an equitable and efficient manner, key principles in international customary law (Mimi and Aliewi 2005; Mateljan 2007). The Seoul Rules and the draft Bellagio Treaty have given some pointers as to how these should be applied specifically to groundwater (Mateljan 2007). Yet this comes head to head with a neo-realist view on international relations, where states act in a self-interested manner, which might not mean equitable sharing of groundwater resources. A Westphalian paradigm of state sovereignty and territorial integrity dominates the sphere of international relations where security implies the defence of sovereign states against violent attack. According to this view, the main policy instrument is to rely mainly on international regulatory frameworks like international agreements. Yet states are sovereign in nature and operate in a largely anarchic international system with no central authority zealously guarding their space and perceived national interest within that contested terrain (Phillips et al. 2006, 27). Therefore, in this state-centred view, to solve the problem of groundwater as a global (or regional) public good, each sovereign state will have to engage with other sovereign states and voluntarily opt to curtail its sovereign rights e.g. by bilateral agreements in exchange for long-term stability of resource use. The reality, however, is that often states are either unable or unwilling (e.g. due to hydrohegemony; see Zeitoun and Warner 2006) to provide transboundary water in an equitable and efficient manner. Neo-realist views are now being challenged by a new network-centred view, which offers an alternative explanation. According to this perspective, lack of cooperation can also be due to lack of state capacity, i.e. the problem (transboundary aquifer management) exceeds not only the scope of national sovereignty but also the states capacity. In addition, the
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doctrine of absolute territorial sovereignty and absolute territorial integrity is increasingly being challenged, and some argue even outdated (Karkainnen 2005). Water, conceived as a multifaceted resource and multifunctional good, leads to a broader understanding that challenges pure utilitarian perceptions, and a purely state-centred approach towards cooperative or collaborative water governance, rather than water government. For example, Starr (1991), in his classic paper on water wars, refers to water sovereignty. From government to governance in shared groundwater basins Increasingly, a legitimate question to ask is whether the state (or government) always acts in the interest of its people? This question is posed because, first, there is a growing realisation that the state in some cases is an institution in crisis, and second, one can no longer rely on the assumption that the state always operates in the public interest. This is particularly the case in those aquifers where there is high conflict. The evidence, for example, lies in how water in many countries has become an electoral issue, to be used as part of the political armoury during electoral periods. At other times, it can be questioned whether the state might not necessarily act in the best interest of its people, because who are its people? This is particularly the case if there are ethnic minorities, in the case of fragile or rogue states. On other occasions, it might not be in the public interest if water is used at the international level as a bargaining chip in relation to other (unconnected) international issues. In the last decade a paradox has occurred; public concerns with low politics issues like health, welfare or the environment, traditionally the domain of domestic politics, have been catapulted into the international arena through issues like climate change, the AIDS epidemic or poverty. State dominance in these areas has also been eroded from above, with pressure from other actors like the European Union and the UN, from below, from pressure groups, or sideways from multinationals. The common interest has been re-defined sometimes beyond or differently to the national interest. Some of these actors in fact go it alone, not necessarily acting in accord with their home government. These developments have made the interaction of politics in the world more complex and varied. Low politics issues, such as environmental change or economic development, have become international as well as domestic political issues (Hough 2004). Consequently, a social constructivist analysis of water policy asks different questions and reaches different answers on the questions of who is secure;
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who is doing the securing; and what it is to be secure. This process of securitisation of water resources in some countries can push water into the high politics arena, into the media and public attention, yet at the same time removes it even further from the general public and civil society in terms of decision-making. This change in the balance of decision-making has occurred almost simultaneously or because of the onset of globalisation. Governance is increasingly highlighting that states cannot operate as sole entities and increasingly they need the legitimacy and strength provided by processes rooted in civic society and a public ownership of these issues. In a realist view of states, the strategy for states that do not want to cooperate is to use persuasion to get them to agree to participate in international regulation (conventions). The alternative, neoinstitutionalist view is that the state is unable to deliver at the international level because the scale of the problem is too large and transcends its capacity. This is because, as stated above, globalisation has in fact fragmented politics (Reinicke 1999). There is a gap between political and economic internationalisation (Knill and Lehmkuhl 2002, 42). This pressure from globalisation (top-down) is also matched by pressure from localisation (bottom-up), and the current trend toward decentralising both horizontally and vertically, economically and politically (Miraftab 2004). There is compelling evidence on the shift from government to governance: what is less clear is the reason for this shift, i.e. some authors argue that the shift is due to state delegating the rowing, while the state remains in control by steering the general direction of policy. Others raise the spectre of governance without government (Rosenau and Czempiel 2002), i.e. of states in crisis incapable of managing, and the space left being invaded or captured by other (often unaccountable) actors. The pending question which needs further research (particularly on a comparative case study basis) is whether what we are witnessing is state-led coproduction or rule at a distance, i.e. what is being multiplied is not the auspice of governance (i.e. the sources of rule), but the agencies and agents deployed to realise government. Are states devoting their capacities to steering functions, while devolving rowing functions to other nodes (Karkainnen 2004), or is what we are witnessing the emergence of cooperation as auspices of governance? The steering of states takes place indirectly rather than directly through instruments of legal regulation. Yet through the very process and emphasis on decentralisation, state sovereignty is increasingly been exposed as limited. Governance mechanisms are developed to address state failure and/or weak

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Table 1 Sharing of benefits

Rights and risks balance; sharing of benefits (as exposed by the World Commission on Dams) Positive sum; integrative; benefit sharing USACanada (1961) Treaty: USA pays Canada for flood control and Canada is granted rights to divert water for hydropower Cambodia, Laos, Vietnam, Thailand equality of right = equal rights to use water on basis of each riparian economic and social needs

states. But cooperation must be of a new type centred on creating global common goods; it should not assume that the sphere of the public ends at the national borders. Cooperation must recognise that an efficient system of global public policy is a necessary ingredient of an efficient global economy (Cook and Sachs 1999). Indeed, spill over and cooperation can arise from policy learning derived from following a process of institutional build-up towards the co-management of resources. It is an antidote to prevent social unrest and poverty due to the poor management of global public goods, like shared waters. There is a re-emergence of communal governance, re-named nodal governance, which perceives the state as simply one set of nodes, including community nodes, that functions as a provider of collective goods including security. These nodes are locations of interests, knowledge and resources, and, as a governing entity, may either be an auspice of security (it may authorise governance), a provider of security (as a supplier of governmental service) or perhaps both (Bayley and Shearing 2001). The key question is whether nation states will witness a continuing erosion of their capacities to implement national policy objectives unless they take further steps to involve additional actors to provide efficiency, legitimacy and accountability. Nation states cannot be seen as rigid entities. Indeed, states are subject to internal dynamics (e.g. economic decentralisation pressures) and international pressures to normalise their behaviour in the international arena, if one adopts an institutionalist view on international relations. The shift is increasingly away from a zero-sum, rights-based approach, which is more likely if there is high securitisation of the water. There is a push towards an equitable approach that allocates not the water but the derived benefits, a positive sum integrative approach (Uitto and Wolf 2002). In order to do so, new governance actors will have to be brought in, thus diffusing state hegemony internally and creating new institutional opportunities among a new range of actors (e.g. collaboration across borders between NGOs or multinational companies serving neighbouring cities), which will increase benefits to the river (the ecological view), increase

benefits from the river (the economic river), reduce costs because of the river (the political river), and increase benefits beyond the river (the catalytic river) (Sadoff and Grey 2002). This theoretically opens a path towards preventive diplomacy, to discuss baskets of benefits for a positive sum, and integrative allocations of joint gains for the respective negotiating parties (Jarvis 2008) (Table 1). Theory on good governance in water increasingly stresses the principles of decentralisation, user participation and demand management (Cook and Sachs 1999). This signals the need to develop policy networks that integrate the private and civil society sectors to help deliver and implement these principles. Conceptualising private regulation According to Falkner (2003, 73), private regulation is the active involvement of private actors in global governance. There is a series of explanations offered by Falkner to describe the rise in private environmental governance; first, globalisation challenges the traditional dominance of statecentred international regimes; second, the emergence of private environmental governance is linked to transnationalism and global civil society; and third, there are alliance building processes and contestations to re-align the global dominant hegemonic order. Each of these explanations offers different factors to explain the rise in private environmental governance, which can occur separately or together. This section will discuss each of these explanations in relation to shared groundwater management. A governance crisis The first explanation looks at a governance crisis. This coincides with a recent statement from the water epistemic community which views the water crisis not as one of scarcity but of governance failure (Rogers and Hall 2003). However, there are two alternative views to the root cause of this governance in crisis (as discussed above): whether it is due to state failure and thus the risk that private environmental governance could supplant
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Table 2 Government and governance in bilateral shared groundwater resources State A State A State B Domestic governance led International government led State B

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International government led Domestic governance led

the state, or whether (a more benign view) the state is simply in decline, and that decline is substituted by a parallel rise in network governance. At present, in terms of research evidence, there has as yet been little work undertaken looking specifically at the management of transboundary aquifers, but plenty of research at the national scale. Evidence at the national scale suggests that it is very much on a case-by-case basis, or context specific, whether what has developed is the capture of groundwater resources for private use because of a lack of a regulatory framework, or its implementation and enforcement, or both. Yet, there is also evidence on a number of cases increasingly reported in the literature that network governance offers the synergy of state, private and civic actors. In countries like Spain, institutional frameworks are slowly developing that simultaneously address the regulatory framework (rules as norms) and the rules in use (or norms and values) translated in efficient monitoring and sanctioning that underpin the enforcement of regulation. At this stage, without further research, statements cannot be made on the transnational scale, but it remains a vital research question; i.e. is there anything inherently different about operating at the international scale? Would transboundary water management benefit from the introduction of network governance to dilute state sovereignty? It is interesting that, at least in the case of shared groundwater basins, there is little evidence that the global hegemonic order in groundwater is pursuing ideologically a market-enabling regime. Instead, evidence suggests that the emphasis is still on the development of a regulatory regime for transboundary groundwater, through the development of international conventions (i.e. regulations) and institutional frameworks to implement these regulatory frameworks, like the development of joint commissions. Therefore, the explanation in private environmental governance, which looks at state failure and the risk that private environmental governance will undermine or supplant state, is at the moment unfounded in the case of transboundary groundwater management. At present, at least at the international level, there is no shifting of the burden of transboundary aquifer management to other actors. However, as stated before, international relations follow a two-level game (Putman 1988), and
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domestically this might be a very different story. The dominant actors might heavily influence the position of individual states, which could be private water users at the domestic level. Domestically, therefore, there might be a shift in burden of implementation to other actors (steering and rowing), and this might have direct impacts on state capacity, vis vis other states, on the effectiveness of international conventions and on joint commissions. Therefore, the rise in private environmental governance could affect the effectiveness and efficiency of sovereign states because of the impact on state capacity domestically, and how this will affect the state vis vis other states (Table 2). Private environmental governance and transnational operating space The second explanation looks at the development or creation of a politicised space for transnational interaction and debates, and the potential to develop managerial, winwin, partnerships. In this case, it is probably relevant to mention briefly four initiatives in transboundary groundwater management. The first is the initiative by the Global Environmental Fund to help support the joint management of a coastal aquifer in the Gulf of Guinea,6 which at this stage is mainly led by states. It is focused on a functionalist view of policy through the identification and ranking of key management priorities by each state, then a move towards bilateral and regional negotiation and cooperation. The second initiative is being pursued by UNESCO with its From Potential Conflict to Cooperation Potential Project (PC-CP),7 which has also adopted a technocratic approach to management, focusing on risk assessment and multicriteria decision making, thus steering away from political (and politicised) issues. It is also keeping policymaking as a technical endeavour, but with little active involvement from a network governance point of view (e.g. the private sector and/or civil society). The third initiative, as discussed earlier, is the preparation of a new International Legal Instrument on Transboundary Aquifers, which again mirrors a government-centred path on transboundary management, via the development of international conventions.8 The fourth initiative is the ISARM

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Table 3 Comparative table of a selection of case studies on transboundary groundwater management: evidence of government over governance Examples of transboundary governance in shared groundwater Global Environmental Fund Projects Western Africa Yrenda-Toba-Tarijeno aquifer system Guarani aquifer UN Draft Convention on Transboundary Groundwater UNESCO PC-CP Project, e.g. in the Balkan region Regional Incomati/Maputo agreement (Mozamique, South Africa and Swaziland) (2002)

Scale Global

Main characteristics Technical cooperation; neo-functional Raising awareness due to land use changes Technical cooperation; neo-functional Development of international regulatory framework Expertise based multi-criteria decision making Interim agreement for the protection and use of Incomati and Maputo watercourse (includes aquifers connected to surface waters) Consultation mechanism Institutionalises cooperation among US states and with Mexico

Verdict: government/governance Government led Government led (also includes epistemic community and local groups) Government led (also includes IGOs and epistemic community) Government led (also includes IGOS and epistemic community) Government led Government led

SASS (Systeme Aquifer du Sahara Septentrional) (Lybia, Algeria and Tunisia) Bilateral USMexico Transboundary Aquifer Assessment Act (Public Law No. 109-448) (December 2006)

Government led Government led

project (International Shared Aquifer Resource Management Project), launched by UNESCO and the Organization of American States (OAS), which has the task of identifying transboundary aquifers in different world regions: America (65 aquifers), Africa (38 aquifers) and the Balkan countries (47 aquifers). Among the aquifers inventoried to date, there are 150 whose boundaries do not correspond to equivalent surface water basins, and therefore would fall under the aegis of the new draft ILC Convention. Table 3 highlights that the steering of states takes place indirectly, rather than directly, through instruments of legal regulation, like the ILC draft convention or regional or bilateral agreements, or through epistemic communities that have developed as a result of UNESCOs and GEFs work. So far there has been only a very limited direct involvement of NGOs, civic society and the private sector. This explanation of private environmental governance, which focuses on trans-nationalisation and the rise and growth of a global civil society, would imply the creation of a new political space, with potentially new political levers and the possibility of global activism. This explanation opens up alternatives or options for developing global environmental awareness through global communications and new forms of world civic

politics. In this context, there is evidence of change: first, groundwater has been rising steadily up the agenda of global water fora and conventions, as, for example, the World Water Forum in Mexico and the Stockholm Water Week, which featured specific sessions on groundwater, including aspects of transboundary groundwater management.9 Second, there is now an increased awareness in international meetings convened to discuss conventions for freshwater, acknowledging that a substantial amount of shared water resources are actually located in aquifers rather than rivers. Thirdly, there is a growing body of literature referring to the quiet global revolution of groundwater use (Forns et al. 2005; Llamas and Martnez-Santos 2005a 2005b). Finally, this understanding of private environmental regulation emphasises the key role played by the international community and international regulatory systems and initiatives, like the Human Right to Water Initiative or the implementation of the Millennium Development Goals, in shaping global water discourses and understandings on groundwater. It also highlights the opportunity through transnational activities and activism to shape a new regulatory system. At present, the main actors in relation to transnational transboundary water are international
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organisations like UNESCO (and ISARM), initiatives like WHYMAP (mentioned earlier), GEF projects in Africa, Latin America or the Balkans, and associated epistemic communities like the International Association of Hydrogeologists and related bodies. Until now, it is precisely the fact that groundwater, like virtual water, is politically silent that has played against its recognition as a global public policy good, and its use (and misuse) politically to avoid difficult questions on re-allocation between sectors and users of water. Groundwater has played a key role globally although in the silent revolution of water management and its potential third party effects have only recently been considered. Private environmental governance and defining a new hegemonic order The third explanation centres on a new hegemonic order, and the ideological battle to contest and realign this dominant order. The existing dominant neoliberal agenda is strongly reliant on an alliancebuilding process. In this context, debates around groundwater at the international level mirror parallel debates in other sectors over privatisation and rights-based approaches. Globally, in water, there are genuine pressures over privatisation in global environmental politics. This is reflected in the institutionalisation of water as an economic good which ranges from including pricing polices, reassessing cross-subsidisation (e.g. in electricity pricing or crops), to the liberalisation of water services (Bakker 2007 2003; McCarthy et al. 2007). In the 1990s, the concepts of demand-based development and user financing of services came to the forefront. Concerns have been raised, particularly related in the case of civil society, on access, accountability and equity of use, and the ability to pay (Nicol and Slaymaker 2002), while on the side of the state, questions are centred on state capacity for enforcement and regulation (Mukherji and Shah 2005; McCarthy et al. 2007; Jarvis 2008). This concern over state capacity and the rise of water markets is also mirrored in groundwater at the national level. This analysis of private governance focuses on power and ideological dominance (and information flows), and different strategies to shift or influence global discourses on transboundary groundwater management. For example, this is reflected in transboundary groundwater management and current debates around benefit sharing compared with water rights allocation, with a clear ideological fault line in political choices made (or even politically feasible options) of adopting a rights-based approach or a benefit-sharing approach (Phillips et al. 2006; UNESCO-WWAP 2006; Quddumi 2008). The benefit-sharing approach, as will be seen below,
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links well with networked concepts of governance, yet also with a reformist approach to policy, in line with winwin ecological modernisation theories, rather than a radical policy agenda. There is a clear ideological debate between water as a right versus water as a need. For example, countries like South Africa, Argentina and Bolivia have instituted a universal right to water as part of their domestic legal system (Smets 2006). This debate is also mirrored at the international level, with ongoing debates in the United Nations and at the 2006 World Water Forum in Mexico over water as a human right (Dubreil 2006). In contrast, there is a view on water as a need, and related need-based allocations. Debates are starting on the meaning of allocations, from looking at issues like affordability to a range of parameters like quality of the water received, water quantity and quality of return flows (Feitelson 2000). In the case of the Jordan basin, during the Oslo negotiations, Israel sought to focus on Palestinians needs rather than rights, and emphasised the need to transfer not sovereign water resources but water supplies. A more political understanding of rights addresses who gets what in a static world of nation states in which sovereign and territorial rights are seen as absolute. Is private environmental governance a useful or relevant concept for transboundary aquifer management? The question we now turn to is whether private environmental governance could be better at delivering equitable and efficient transboundary aquifer management? At present, there is little evidence of private environmental governance in transboundary groundwater management. However, there is also growing evidence that private environmental governance is starting to permeate into transboundary aquifer management. Currently, however, most activities around transboundary groundwater management have largely been initiated by international organisations and individual states in a traditional international relations model centred on sovereign states, pooling their sovereignty to develop international agreements and institutional arrangements, either bilaterally or regionally, for the common pool management of goods. The water crisis is increasingly acknowledged to be a crisis of governance (Rogers and Hall 2003). In the case of groundwater, there is mounting research on transboundary and national groundwater management, particularly as applied to specific basins (Eckstein and Eckstein 2005; Mateljan 2007). However, evidence at the domestic level on the problems of aquifer management, which includes

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implementation problems and aquifer overuse, seems to point in the direction that this problem might be exported upwards, to the global level. In terms of future study, there are important questions that need to be addressed in the context of global public policy networks (trisectoral) and private environmental governance. The onset of globalisation increasingly requires innovative mixes of local, regional, national and supranational bodies, incorporating both the public and private sectors as part of management regimes (Feitelson 2000). Evidence from most natural resource management, particularly the management of common goods, suggests that regimes need to be tailored to the particular circumstances of individual aquifer cases. For example, at present it has been stated that in the Jordan basin the only policy option is volumetric allocation a rights-based approach very much centred on a government approach. Other options linked with network governance in the Jordan basin are water trading and water markets. One potential advantage, if properly designed, of involving the private sector (e.g. the privatisation of the wastewater system in Jerusalem and Bethlehem area) is that it may help to de-politicise the wastewater issue, since some of the key issues identified are enforcement, financing, flexibility and accountability for dealing with transboundary sewage flows. In addition, there are new policy innovation experiments, like the horizontal localisation of water governance, a twinning water solidarity approach, where municipalities from developed countries are getting involved in local water aid projects in developing countries (and areas under conflict like Gaza), directly circumventing the state. Yet it needs to be explored whether the introduction of new potential actors namely the private sector and civil societies into the equation automatically opens windows of opportunity for a wider range of policy options (and policy tools) from which to choose. Alternatively, it may be claimed that the inherent power issues (and hydrohegemony and inequitable allocations) involved mean that the opening of private environmental governance might actually worsen the existing problem. In this case, the slow build-up of parallel institutions might be a preferred choice to design out (potentially) inequitable biases. However, as the shift towards private environmental governance deepens, so do the internal debates and discourses on the privatisation of water services. For example, new understandings on the private sector try to look deeper at the range of options available, from microfinance to social entrepreneurs, to local finance markets, and to community financing initiatives. Indeed, one potential option is for innovative partnerships such

as between local communities and social entrepreneurs. Meanwhile, as the case of the Mekong basin demonstrates (Phillips et al. 2006), benefit sharing is more likely when joint management is an available policy option. The key idea is that new tensions also bring new opportunities. New alliances can either dilute the hegemonic dominance of certain actors or, by contrast, reinforce the existing hegemonic imbalance. More research is needed to quantify and operationalise on a case-by-case basis the potential advantages and disadvantages of private environmental regulation or a wider concept of trisectoral public policy networks or bisectoral private environmental governance. Table 3 highlights how, at present, there is a high degree of vertical institutionalism, i.e. the growing importance of the role of international rules, norms and regimes constraining state sovereignty (Karkkainnen 2004). However, there is much more sporadic evidence of examples of horizontal diffusion, i.e. policy innovation which occurs chiefly at the level of the nation state and is diffused horizontally through mimesis, benchmarking and networking. The case of the GEF project in the Guarani is interesting because networking among the actors in a fairly closed epistemic community is strong and there is direct involvement of civic society, through the establishment of the Guarani Citizen Fund. It is an example of preventative diplomacy, since the emphasis at present is on scientific knowledge and fact finding as a preliminary step, before political agreements or discussions over joint management come onto the table. It is probable that it exemplifies multilevel governance and the rising influence of supranational, sub-national and non-state actors in a multi-polar world increasingly characterised by multiple tier decision-making. However, according to some elite interviews,10 sovereign states (in this case, particularly Brazil) remain the natural locus for decision-making, even if their behaviour is now much more permeable and more easily accessible. This new style of collaborative, flexible policymaking approach, based on principles of continuous experimentation and dynamic adjustment in response to scientific advances, changing conditions and observed effects of past management efforts could still come up against the wall of state sovereignty, where the dominant state in the transboundary basin (in this case Brazil) would still have to accept voluntarily that its sovereign rights would be curtailed in some way. The reluctance to refer to the Guarani as an international aquifer, and its preference over the term shared, might be an indicator of the limits of governance. Indeed the role of the state in private environmental governance is perhaps still the central issue for future research.
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Conclusions The main conclusion reached in this paper is to highlight that networks of actors across the public private continuum can potentially lead to more effective and more legitimate forms of sharing groundwater resources. The rationale is based on the fact that by bringing together actors from government, private business and civil society in order to find a specific solution, these networks are part of the wider debate on the role of public private partnerships in world politics (Dingwerth 2003, 11), and that the potential governance contributions from private actors (eg private sector, NGOs or community groups) might compensate for the decreasing capacities of national government in providing public goods (Knill and Lehmkuhl 2002). There is enough potential, identified in the theory on networks, for synergistic relationships between the public and private actors to be achieved. However, at present, this potential is theoretical, and more research is needed, focusing on examples on the ground, particularly looking at questions related to the equitable allocation of transboundary groundwater resources. At present, there is a de-synchronisation of the domestic and international levels where different and often incompatible governance models prevail at the domestic and international levels. In the age of multi-level governance, this might mean that, at the global level, smarter horizontal governance approaches might have to be pursued, i.e. through global public policy networks. As shown above, there is rising evidence that these might be developing spontaneously, a classic sign of network governance. Meanwhile, at the state or local level, it also means that regulatory frameworks (i.e. the pure government element of the equation) also have to be strengthened and reinforced, for ultimately there is no government without governance and no governance without government.
Notes
1 Paper presented at the Conference of the NATO Advanced Study Institute Overexploitation and contamination of shared groundwater resources: management, (bio)technological, and political approaches to avoid conflicts, Varna, Bulgaria, 112 October 2006. 2 This is meant to include non-governmental organisations. 3 See http://igrac.nitg.tno.nl/system.html 4 According to Raya Stephan, lawyer at UNESCO, within the framework of the International Hydrological Programme, the Internationally Shared (transboundary) Aquifer Resource Management (ISARM) project, a multidisciplinary ad-hoc task force of experts, has been established by UNESCO to assist the Special Rapporteur of the UN-ILC in the preparation of
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7 8

9 10

a new international legal instrument on transboundary aquifers. Thanks to Raya Stephan at UNESCO for information on the latest developments in this draft convention. The Guarani aquifer is estimated to have an extension of 1 200 000 km, with a volume of about 37 000 km of water (http://en.wikipedia.org/wiki/Guarani_aquifer). See Environmental and Sustainable development of the Guarani Aquifer Project (http://www.sg-guarani.org/index/site/archivo/ infomens/html/2008-05.html#en). Personal communication, Shammi Puri (UNESCO) and Professor P. Jourda, Department of Soil Sciences and Mineral Resources, University of Cocody Abidjan, Cte dIvoire (December 2006). See http://www.unesco.org/water/wwap/pccp/ Shared groundwater regulatory frameworks are slowly being strengthened. At present, there is only one international agreement that directly addresses transboundary aquifers, an agreement between France and Switzerland over Lake Geneva (Arrangements for the protection, utilization and recharge of the Franco-Swiss Genevese aquifer Sept 1977; Eckestein 2004; Stephan 2008; Burchi and Mechlam 2005). Equally, according to Jarvis (2008), out of the 98 regionally important transboundary aquifer systems, only 36 can be found within river basins that have treaties containing provisions for groundwater, with the drawback that no differentiation is made between type of aquifers (porous, fractured rock or karst). See http://www.worldwaterweek.org/Downloads/Final_Programme_ 08_lowres.pdf Interviews with the Brazil, Uruguay and Argentina water directors (Zaragoza, CODIA Meeting, June 2008).

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