Covenants, Constitution & Commons: International, constitutional and community responses to achieve access to sufficient water for everyone

This thesis considers how best to achieve access to sufficient water for everyone in South Africa. It encompasses international law, national (including constitutional) law and policy, and finally community organisation, and the ‘vernacular law’ of the commons. The task of achieving sustainable access to sufficient water for everyone in South Africa is long-standing and considerable, culminating in the inclusion of a right of access to sufficient water in the 1996 Constitution. This right has simultaneously provided an overarching moral framework (through the elaboration of relevant human rights norms), while remaining decidedly remote from the experience of many people, for whom insufficient water remains a daily reality. Here, the ability of a right to water to effectively ensure access to sufficient water for everyone is critiqued. In so doing, the practical and conceptual limits of ‘rights-talk’ are considered, in two contexts in particular: International human rights law; and the jurisprudence of the South African Constitutional Court. Crucial to this thesis is a methodology of narrative inquiry, which analyses the stories of people who suffer from access to insufficient water, revealing the disconnection between people’s right to water, and their experience of living without the water they need. Flowing from this narrative is an attempt to reconceive water governance from outside the structural and conceptual closures of the dominant paradigm (characterised by individual rights and commodification) and to explore the potential for alternative practical modes of governance to deliver greater sustainability and equity, for communities living with water poverty. In this thesis, through a blend of contemporary perspectives on vernacular law and multi-level governance, postmodern theories on stories and subjectivity, and empirical observation, a fresh contribution is made to the debate on access to water in South Africa. Key words: Water, South Africa, (Human) Rights, Sustainable Development, Anthropocene, Narrative inquiry, Constitutional Court, Constitutionalism, Commodification, Reasonableness