Rights-Based Climate Litigation in South Africa and the Netherlands

Abstract

Academic research into international climate change litigation has shown that the courts yield significant power in bringing about an awareness of climate impacts as well as firmly entrenching rights and responsibilities for claimants and defendants. In April 2022, the IPCC’s Sixth Assessment Report noted in some detail how climate litigation is shaping climate governance. This article considers these statements within the framework of how courts have drawn on fundamental constitutional rights even without an exclusive reliance on the right to a healthy environment within the jurisdiction of South African climate litigation. The objective of this study is to investigate this claim by analysing the available legal mechanisms in South Africa and what legal strategies have been used in climate litigation to determine how South African climate litigation has shaped climate governance in comparison to climate litigation from the Netherlands. The core analysis examines firstly what the litigation is seeking to achieve, secondly which legal mechanisms and avenues were relied upon and thirdly, how this resonates between different jurisdictions. The key results will contribute to an understanding of the contribution that South African and Dutch climate litigation lends to global climate governance, the extent to which litigation relies on entrenched fundamental rights; it further tracks how, if at all, transnational climate governance litigation has developed in this respect.