气候变化领域集成服务门户(CCPortal): The Judge-Made 'Duty' to Consider Climate Change in South Africa

CCPortal

DOI	10.1093/jhuman/huad069
	The Judge-Made 'Duty' to Consider Climate Change in South Africa
	Murcott, Melanie Jean; Vinti, Clive
发表日期	2024
ISSN	1757-9619
EISSN	1757-9627
起始页码	16
结束页码	1
卷号	16 期号:1
英文摘要	Environmental legislation in South Africa does not explicitly require that the executive branch consider climate change in environmental decision-making. Yet, in a handful of climate cases, the executive has been found to have acted unlawfully (and thus unconstitutionally) by failing to do so. We argue that the case law has implicitly introduced a 'duty' to consider climate change mitigation and adaptation issues. The precedent set entails that in order to act lawfully as required by the Constitution of the Republic of South Africa, 1996, decision-makers must take climate change into account in various contexts. This article describes the role of the judiciary within South Africa's transformative constitutional regime, and the interpretive approach they are mandated to adopt. The interpretive approach is a feature of South Africa's normative conceptualization of the separation of powers. We then describe how, in the exercise of this role, the 'duty' to consider climate change has emerged and evolved through three instances of climate litigation in the High Courts, and one before the Water Tribunal. We conclude that the power of judiciary in South Africa to respond to the myriad human rights and justice implications of the climate crisis derives not only from constitutionally entrenched human rights. Equally important are the mechanisms within the broader transformative architecture of the constitutional order. By making this modest point, we hope to deepen the understanding of the utility of human rights in climate litigation in the Global South.
英文关键词	climate crisis; climate litigation; legal interpretation; transformative adjudication; South Africa
语种	英语
WOS研究方向	International Relations ; Government & Law
WOS类目	International Relations ; Law ; Political Science
WOS记录号	WOS:001151587300001
来源期刊	JOURNAL OF HUMAN RIGHTS PRACTICE
文献类型	期刊论文
条目标识符	http://gcip.llas.ac.cn/handle/2XKMVOVA/307182
作者单位	University of Cape Town; University of Witwatersrand
推荐引用方式 GB/T 7714	Murcott, Melanie Jean,Vinti, Clive. The Judge-Made 'Duty' to Consider Climate Change in South Africa[J],2024,16(1).
APA	Murcott, Melanie Jean,&Vinti, Clive.(2024).The Judge-Made 'Duty' to Consider Climate Change in South Africa.JOURNAL OF HUMAN RIGHTS PRACTICE,16(1).
MLA	Murcott, Melanie Jean,et al."The Judge-Made 'Duty' to Consider Climate Change in South Africa".JOURNAL OF HUMAN RIGHTS PRACTICE 16.1(2024).