Browsing by Author "Donald, Megan Elizabeth"

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    Advancing the constitutional goal of social justice through a teleological interpretation of key concepts in the environmental rights in section 24
    (Stellenbosch : Stellenbosch University, 2014-12) Donald, Megan Elizabeth; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The protection and conservation of the environment is essential for the continued existence of humankind, particularly in light of the challenges of climate change and environmental degradation. Along with these environmental concerns, South Africa faces challenges of poverty and inequality which can exacerbate environmental degradation. It is also often the poor who bear the brunt of the impacts of pollution and environmental degradation. Any effective approach to environmental protection must be mindful of the need for poverty alleviation, while any socio-economic development must bear in mind the absolute necessity of the environment for the existence of humankind. Section 24(a) of the Constitution provides for the right to an environment not harmful to health or well-being, while environmental protection is included in section 24(b). A handful of cases have dealt with this right, but its meaning has not been developed or sufficiently defined. This thesis looks at the interpretation of the key concepts of “environment”, “health or well-being”, and “sustainable development” in section 24. This is done through a teleological interpretation of the right which is mindful of the role of the interdependence of rights, and the context of the Bill of Rights and the Constitution as a whole. In light of the transformative goals of the Constitution it is important that section 24 is construed with due regard to the influences and challenges of socio-economic concerns such as poverty, unemployment and inequality. This thesis argues that the environmental right in section 24 can and should be interpreted to advance the needs of the poor and improve their quality of life alongside the protection of the natural environment.
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    Greening the covenant : integrating environmental considerations in the Interpretation of States Parties' Obligations under Article 2(1) of the International Covenant on Economic Social and Cultural Rights
    (Stellenbosch : Stellenbosch University, 2021-03) Donald, Megan Elizabeth; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The realisation of economic, social and cultural rights is inextricably linked to the condition of the environment. The rights in the International Covenant on Economic, Social and Cultural Rights (“the Covenant”) are increasingly threatened by environmental degradation and climate change. The UN Committee on Economic, Social and Cultural Rights (“the Committee”) has recognised the relationship between the environment and Covenant rights. However, the Committee has not yet developed a systematic approach to integrating the environment within its supervisory mandate. The integration of environmental considerations within the scope of the Covenant through interpretation (or “greening” the Covenant) must follow the rules applicable to the interpretation of human rights treaties. A teleological interpretation of human rights treaties demands that the object and purpose of the treaty be given practical effect in the lives of individual rights-holders. The evolutive approach to interpretation emphasises that human rights treaties are living instruments that must evolve according to changing circumstances. In order to evolve appropriately and be effective in realising Covenant rights, it is critical that the interpretation of the Covenant takes the threats posed by climate change and environmental degradation into account. To guide this greening of the Covenant, the dissertation draws on established principles of international environmental law. These principles include: sustainable development; the no-harm principle; the principle of prevention; the precautionary principle; the polluter pays principle; and the principle of common but differentiated responsibilities. The principle demonstrate recognised approaches to environmental challenges under international environmental law and are a valuable source of insight for greening the Covenant. The dissertation focuses on the interpretation of key aspects of State Parties’ obligations under article 2(1), namely: maximum available resources; core obligations; progressive realisation; and non-retrogression. Given its central role in the Covenant, the interpretation of article 2(1) has relevance for all Covenant rights. Focusing on key aspects of article 2(1) thus facilitates a substantive and systematic integration of environmental considerations within all Covenant rights. A number of significant contributions are made by the dissertation with regard to the proposed greening of article 2(1). First, the dissertation argues that maximum available resources should be understood from a qualitative perspective, particularly in relation to natural resources and their inherent contribution to the enjoyment of Covenant rights. Secondly, it proposes the establishment and protection of the baseline environmental conditions necessary for the enjoyment of the core of economic, social and cultural rights. Thirdly, the dissertation argues that measures towards the progressive realisation of Covenant rights must be environmentally sustainable in order to prevent future retrogression. Finally, it is argued that the interpretation of the full realisation or ceiling of Covenant rights must be defined according to planetary boundaries and environmental limits. This greening of article 2(1) aids in protecting Covenant rights from the threats of environmental degradation, and supports the protection of the environment on which those rights depend. Through greening States Parties’ obligations, the dissertation offers an interpretation of the Covenant that would ensure its relevance and responsiveness to the urgent and existential environmental challenges confronting humanity.