Where the rubber meets the road: A critical analysis of climate change policy and water rights in South Africa

Keywords: South Africa, legal geography, climate change, drought, water, discourse analysis, adaptation, rights
Abstract Type: Virtual Paper Abstract

Abstract

Climate change is having significant impacts on water resources around the world. As drought events become more frequent and more intense, states are faced with the challenge of creating policies which support water resource management in the context of uncertainty. As new strategies and policies for dealing with the impacts of climate change come to the forefront, questions about how these policies affect the human right to water also emerge. Since policy is quicker to implement than passing new or revamping existing laws, the provisions set forth in policy are forced to operate within rigid legal frameworks which are often not amenable to dealing with impacts and shocks related to climate change. While the relationship between policy and law has been examined, understandings of how climate adaptation policies affect access to and use of water resources during periods of scarcity are limited. Using a critical legal analytic approach, this study first details the contours of the relationship between climate adaptation and the human right to water as it is currently framed in the literature and then uses both doctrinal legal methods and interpretive policy analysis to describe the case of water rights in South Africa amidst efforts to adapt to climate change impacts. This work demonstrates how a constellation of practices and discourses related to climate adaptation can be used to reframe the human right to water. Finally, this analysis offers an agenda for undertaking more critical approaches in analyzing climate policy and water law in tandem to one another.