Hydrocolonisation in the Lesotho highlands water project treaty: legitimate treaty or murky waters?

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2021

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Vinti, Clive

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Abstract

The world is endowed with an excess amount of water. The challenge with water is that most of it is inaccessible. This creates intense competition for accessible water resources. Further compounding this issue is that most of the water on earth is shared between different countries. This obviously leads to tension between countries that share a specific watercourse. These countries have to choose to be either in conflict or to cooperate over these shared watercourses. The power imbalance of the countries in question can sometimes operate to result in an inequitable water-sharing regime. The Treaty on the Lesotho Highlands Water Project between the Government of the Kingdom of Lesotho and the Government of the Republic of South Africa (LHWP) is an apt illustration of this conundrum. The central object of this agreement is that Lesotho will supply water to South Africa from the Orange River in return for royalties. However, various climate change projections predict that eventually, Lesotho will be unable to meet its water supply obligations to South Africa under the LHWP. This will create a ‘conflict of uses’ in the LHWP. On the one hand, the LHWP appears to suggest that the supply of water to South Africa must always trump the water uses of Lesotho residents. Whereas the legislation of Lesotho provides that the ‘domestic water uses’ i.e. water for personal and household needs of Lesotho, trump all other uses in a conflict of uses. In this regard, the LHWP regime requires that the domestic legislation of both countries must be brought into line with the LHWP. In this way, there is a disjuncture between the domestic legislation of Lesotho and the LHWP. This disjuncture remains unresolved. Thus, in a conflict of uses, Lesotho may be compelled either to provide water for ‘domestic water use’ to its residents or to comply with its water supply obligation to South Africa under the LHWP. This stark choice certainly raises questions about the equitability and sustainability of the water uses in the project. Consequently, this thesis seeks to assess whether the LHWP is in line with the key underlying transboundary water principles that address the anticipated conflict of uses. That is to say, this thesis will assess whether the LHWP complies with the principles of equitable and reasonable utilization, sustainable development and permanent sovereignty over natural resources, which address the projected conflict of uses. In this regard, the study found that the LHWP is inequitable, unsustainable and violates Lesotho’s right to permanent sovereignty over the water in the LHWP. It is then my recommendation, that the LHWP be amended to incorporate these principles that will address the anticipated conflict of uses and align the LHWP with international law.

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A thesis submitted to the in fulfilment of the requirements for the degree of Doctor of Philosophy to the Faculty of Commerce, Law and Management, School of Law, University of the Witwatersrand, Johannesburg, 2021

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