SAYIL South African Yearbook of International Law Sci Mil Scientia Militaria: South African Journal of Military. UCLA J Envtl L & Pol'y University of California Los Angeles Journal of Environmental Law and Policy.
- Introduction
- ESD as a constitutional value in the development of
- The environmental rule of law as an avenue to achieving the
- Research question
- Objectives
- Hypothesis and assumptions
- Methodology
- Framework of study
In this light, the thesis proposes a consideration of the concept of sustainable development and integration. The implication of the above argument is that an environmental rule of law should prohibit laws that legalize environmentally harmful behavior.
Introduction
34; promote the values that underlie an open and democratic society".7 Therefore, as Venter8 points out, courts often tend to follow a value-oriented approach in the interpretation of fundamental rights. Such an argument is based on article 39, a constitutional prescription for a value-based interpretation when judging laws.18 Article 39 in this respect gives the judiciary authority to develop values based "on an open and democratic society".19.
The history of constitutional values in South Africa
- The Apartheid era in South Africa
77 For the purpose of relevance, this thesis does not delve into an extended account of the negotiations that led to the end of apartheid or the adoption of the Constitution. However, it was the Multiparty negotiation process that led to the adoption of the Constitution of the Republic of South Africa 200 of 1993 (hereafter the Interim Constitution) and the Government of National Unity.
Purpose or significance of constitutional values in South Africa
- Values, rights, rules and principles
Van Wyk112 makes an interesting argument about the importance of the constitutional values in the constitution. 118 Section 9(2) of the constitution states that "Equality includes the full and equal enjoyment of all rights and freedoms.
Advancing constitutional values through transformative
- A Post-liberal interpretation of the Constitution
In other words, the courts can engage in the fundamental transformation of the Constitution by developing and implementing constitutional values in its decisions. For the purpose of this thesis, a post-liberal reading of the Constitution will be used as the underlying philosophy for constitutional values in the judgment. As Klare236 asserts, a post-liberal interpretation of the Constitution is at the core of transformative constitutionalism.
According to Du Plessis, 264 sections and 195 of the Constitution are the most authoritative sources of values.
Transformative Adjudication
- Transformative adjudication through the lens of substantive
The legal interpretation must favor the Bill of Rights and other provisions of the Constitution, especially the fundamental values in section 1. The court then has the right to request that the parties present arguments related to the point raised. The Constitution requires that all decisions be able to be substantively defended in terms of the rights and values it enshrines.
Courts are not only obliged to explain their decisions, but must also substantiate them in terms of content within a certain normative framework of the constitution.
Location of values in the Constitution
The Constitutional Court has also determined that the following constitute constitutional values contained in the text of the Constitution: (i) "values of the rule of law, or the regstate" as described in Section 33 of the Interim Constitution (Makwanyane 156) ; (ii). In this light, the content of constitutional values will not always be found in the text of Article 1 of the Constitution. 334 See Kroeze 2001 Stell LR 267-269 for a discussion of constitutional values outside the text of the Constitution.
In other words, ESD is the 'value element' that environmental law in Article 24 of the Constitution aims to achieve.
Conclusion
Applying ESD as a constitutional value in the assessment of environmental rights could facilitate the realization of outcomes such as ecological integrity, environmental justice and poverty reduction. This means that to fully apply ESD as a constitutional value, one must fully understand the history and principles underlying the concept. In the context of this thesis, courts should give substance to Article 24 by developing and applying ESD as a constitutional value in the assessment of environmental rights.
However, to fully apply ESD as a constitutional value, one must fully understand the history and principles that underpin the concept.
Introduction
Simply put, the addition of the adjective 'ecological' to sustainable development indicates the intention to ensure effective environmental protection with a stronger environmental orientation. Therefore, this chapter argues that the reference to ESD in Section 24(b)(iii) imposes a prohibition on the State to ensure environmental protection through 'ecologically' sustainable development. In examining this question, the chapter will consider and explain the historical development of sustainable development as a starting point.
After reviewing the historical development of sustainable development, the chapter will provide a more nuanced understanding of ESD by discussing the need to move from the oft-cited sustainable development to the more practical ESD.
Historical evolution of sustainable development
- Sustainability
A typical case in point is the principle on the use of natural resources cited in principle 2 of the Rio Declaration. 136 Principle 1 of the Rio Declaration states that "human beings are at the center of concerns for sustainable development.
So far, this thesis has discussed some important developments in the history of sustainability.
From sustainable development to ecologically sustainable development: a
- Intergenerational equity
- Intra-generational equity
- Integration
192 Although the Rio Declaration in principle 3 captures the character of the principle of intergenerational equity, i.e. At the heart of the principle of intra-generational equity can be found a twofold recognition. In this light, this thesis proposes the restructuring of the concept of sustainable development and integration.
The explicit inclusion of the adjective 'ecological' in the constitution means that it requires a reconceptualization of sustainable development in the VITR.
Conclusion
Framed differently, what can be expected from laws and policies when ESD is fully operational. As a point of reference, this Chapter considered 'ecologically' sustainable development as envisaged in section 24(b) (iii) of the Constitution. In this aspect, for what purpose should the ESD be applied as a constitutional value in judging environmental rights.
Against this background, this thesis examines how these results can be achieved by considering the environmental rule of law.
Introduction
Moreover, developing the meaning and content of ESD, as this thesis has indicated in Chapter 1, involves an analysis and understanding of the ecological rule of law. For example, the lack of environmental rule of law could hinder ESD and its outcomes, such as ecological integrity, environmental justice and poverty reduction. To date, and to the best of this study, no research has been done on how the environmental rule of law can be used to achieve the outcomes of ESD in the assessment of environmental rights.
In determining the application of the environmental rule of law in the South African context, this chapter determines how the rule of environmental law can be used to achieve the outcomes of ESD.
Rule of law
- A brief note on the historical origins of the rule of law
On this note, the rule of law became the end product of the Enlightenment. Several notable scholars have also written about the importance of the rule of law in a legal system. However, it should be noted that the formal version of the rule of law is quite problematic.
The rule of law in South Africa has since changed following the advent of the Constitution.
The rule of law in South Africa
102 Sachs J's judgment in Port Elizabeth Municipality V Various Occupiers 2005 (1) SA 217 (CC) para 35 is an indication of the Court's formal interpretation of the rule of law. The] rule of law does not mean citizens' full freedom, nor does it mean absolute safety and physical integrity. In short, the rule of law seeks to protect the freedom, integrity and safety of people.
This ushers in the concept of the rule of law for nature or what is referred to in this thesis as 'the environmental rule of law'.
Environmental rule of law
120 Bugge "Twelve Fundamental Challenges in Environmental Law: An Introduction to the Concept of the Rule of Law for Nature" 3-7. 123 Bugge "Twelve Fundamental Challenges in Environmental Law: An Introduction to the Concept of the Rule of Law for Nature" 7-8. 124 Bugge "Twelve Fundamental Challenges in Environmental Law: An Introduction to the Concept of the Rule of Law for Nature" 7-8.
132 Bugge "Twelve Fundamental Challenges in Environmental Law: An Introduction to the Concept of the Rule of Nature" 8.
Environmental rule of law as a means to achieving the outcomes of
- ESD as a means to realising ecological integrity
- ESD as a means to realising environmental justice
- ESD as a means to realising poverty reduction
In other words, the use of ESD as a constitutional value, enshrined in Article 24 of the Constitution, could strengthen the environmental rule of law and result in results such as ecological integrity, environmental justice and poverty reduction. The first result of using ESD as a constitutional value in the assessment of environmental rights could result in promoting the ecological integrity of the environment. However, as already mentioned, ESD requires humanity to pursue a development that does not endanger the ecological integrity of the Earth.
It therefore appears that the main purpose of the mentioned tests is to preserve and maintain the ecological integrity of the earth.
Conclusion
Ages.215 The chapter then proceeded to note that the South African legal system conforms to the rule of law. As the rule of environmental law seeks to protect the environment and its natural resources through ESD, this Chapter considered it necessary to determine how this could be achieved. After defining the outcomes of ESD, the next chapter will argue that the judiciary has an important role to play in the development of the environmental rule of law and the outcomes of ESD.
217 Bugge "Twelve Fundamental Challenges in Environmental Law: An Introduction to the Concept of the Rule of Law for Nature" 7-8.
- Introduction
- Judicial review in environmental law adjudication
- The pursuit of 'ecologically' sustainable development by the judiciary . 183
- The framework of the Court's decision
- An annotation of the Court's approach to ESD
- The extent to which the court has; could have; or should have
- Fuel Retailers
- The framework of the Court's decision
- An annotation of the Court's approach to ESD
- The extent to which the court has; could have; or should have
- VEJA 221
- An annotation of the Court's approach to ESD
- The extent to which the court has; could have; or should have
- Earthlife
- The framework of the Court's decision
- An annotation of the Court's approach to ESD
- The extent to which the court has; could have; or should have
- Conclusion
That is, access to information could serve to protect environmental law. 7 Section 1 of the Constitution states that South Africa is founded on values such as the rule of law and the supremacy of the Constitution. This means that judges must take into account environmental laws such as Section 24 of the Constitution in general, NEMA, and the other SEMAs, where appropriate, when reviewing environmental cases.
In the context of this thesis, judges should do in the course of the judicial review of environmental law.
General background
Research question and objectives
Summary of the analysis
- The meaning and significance of constitutional values in general
- The history, meaning and purpose of ESD
