Ownership in trans-boundary water resources-A case study of the Zambezi Watercourse

Abstract

This research was undertaken to contribute to the body of knowledge policy makers may apply when determining the kinds of trans-boundary water agreements they would like to have in place. The objective was to explore notions and determine levels of ‘ownership’ in relation to water resources and its implications for water sharing agreements. The subject of ownership was explored through selected agreements and legal doctrines with a bearing on the Zambezi Watercourse. The rights of access, use and control of the trans-boundary waters of the Zambezi Watercourse among interested countries that would like to secure and use the Watercourse for their social and economic benefit are uncertain. This represents a risk of conflict between countries in the event that certain considerations such as water scarcity and competition come into play. Risk of conflict can also result when opportunity cost and beneficial use considerations are brought to the fore. This is despite the existence of a number of trans-boundary water agreements within the basin. Ownership in water has not been given sufficient explicit consideration in the formulation of trans-boundary water sharing arrangements in the basin. Principles of equitable and reasonable utilisation are instead globally being promoted as the sound basis of sharing water. Legal reasoning was the primary methodology applied in the research. Informed by literature review, a framework for analysis was constructed to aid the determination of the dimensions of ownership associated with legal doctrines and agreements with respect to water resources. The results confirm that there are incidents of ownership in water and affirm that, regardless of the various water sharing arrangements and legal doctrines applied; the final outcome or result is the conferring of various degrees of ownership congruent with the bundle of rights metaphor or, Lockean theories of property. All existing agreements in the Zambezi Watercourse region confer incidents of ownership in water. States can determine where they stand in relation to ownership or in the very least their rights of access, use and control by knowing the incidents of ownership conferred within water sharing agreements. This appreciation of their situation could help states reposition themselves to secure their interests more effectively. Negotiations and agreements regarding the sharing of trans-boundary water resources should include aspects of water ownership and the application of the beneficial use principle. Further research possibilities to compliment the recommendations of this research may include a study to estimate and quantify benefits from the Zambezi Watercourse with a focus on existing schemes; benefits forgone based on current arrangements and benefits accruable based on the application of principles of ownership and beneficial use. Another area could be a legal review of existing schemes in the Watercourse and a design of optional arrangements to satisfy the beneficial use principle.