The earth and its inhabitants face significant environmental challenges. So far, the existing legal attempts have failed to address these challenges. The development of the last decades shows that the state of the environment has steadily worsened. Therefore, it is essential to explore new approaches. The concept of rights of nature offers a new legal perspective for creating a more effective approach to environmental regulation than traditional anthropocentric approaches. Rights of nature form part of a relatively new movement called Earth Jurisprudence which calls for a fundamental rethink of law. The concept of rights of nature requires that nature be accorded its own legal right. In order for rights of nature to be effective, their implementation must consider and overcome several procedural and substantive challenges. This dissertation explains the origins, form and nature of existing domestic rights of nature, and then critically analyses the main procedural and substantive challenges for their effective implementation in domestic legal frameworks. The most crucial procedural constraints are standing and representation of rights of nature whereas the most problematic substantive challenges are to define the scope of the right and to balance rights of nature with other rights. Having unpacked these challenges, the dissertation then explores possible solutions to overcome them. It comes to the conclusion that – amongst others - the key prerequisites for an effective implementation are to establish rights of nature as a constitutional right and to concisely define its content. Finally, the dissertation provides a set of guidelines for effectively implementing rights of nature into a domestic legal regime as well as a proposal for the wording of a rights of nature norm.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uct/oai:localhost:11427/24928 |
| Date | January 2017 |
| Creators | Bittermann, Benjamin |
| Contributors | Paterson, Alexander |
| Publisher | University of Cape Town, Faculty of Law, Institute of Marine and Environmental Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Master Thesis, Masters, LLM |
| Format | application/pdf |
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