The conceptualisation of environmental justice within the context of the South African constitution

[摘要] ENGLISH ABSTRACT:The aim of this dissertation is to conceptualise the principle of environmentaljustice. In doing so it attempts to determine its meaning, assess its possible use for theprotection of environmental rights in the light of the South African Bill of Rights, anddraw, in a comparative manner, on examples from two other jurisdictions, namely theUnited States of America (USA) and India.In the first part of the study environmental justice is defined and thereafter theways in which the idea of environmental justice has found expression in the USA andIndian jurisprudence as well as in legislative and administrative practices in these twocountries are analysed comparatively. In reviewing the US experience the studyconcludes that the courts have shown a conspicuous measure of self-restraint in theconceptualisation of environmental justice. Due to its non-activist and formalisticapproach, the judiciary has failed to address systemic environmental inequities, and tocarve out remedies whereby environmental injustice could have been dealt with in aneffective and meaningful way.The more activist approach of the Indian judiciary, on the other hand, has led tomore effective protection of the environment and of people adversely affected byenvironmental degradation. The judiciary has imposed positive obligations on the stateto carry out its social duties as laid down in the Directive Principles of the IndianConstitution. Although India does not have a constitutionally entrenched environmentalright, the courts have interpreted the right to life proactively so as to include quality oflife.The study concludes by examining possible applications of the principle ofenvironmental justice for the protection of environmental rights in South Africa,assessing the law as it stands and exploring new avenues in the light of the Bill of Rights.In this respect the following guidelines are proposed by this study:o Environmental problems in South Africa must be placed within their specifichistorical and political context. Consequently environmental injustice must beunderstood as a form of inequity that impacts on people disproportionately on thebasis of race and socio-economic status.The concept environment can therefore not be narrowly understood, whether it isbeing dealt with in the Constitution, legislation or common law. It must berecognised that the concept goes beyond ecosystems and that it includes amultiplicity of relationships, in many of which humans are the focal point.o Environmental justice claims in South Africa may best be framed as constitutionalclaims. Regard should be had not only to the environmental right in section 24 ofthe Constitution, but also to other rights that support the notion of environmentaljustice, such as the rights to life, equality and dignity.o Judicial activism is a key to the promotion of environmental justice. The judiciaryplays an important role in ensuring that the state and other actors fulfil theirobligation to respect, protect, promote and fulfil the rights in the Bill of Rights.Transformation requires a judiciary that is prepared to reconsider the traditionalboundaries of the doctrine of separation of powers and to lay down directives forother branches of government, in particular the executive.

[发布机构] Stellenbosch University