The enforceability of environmental rights as human rights: a tale of two countries.

Increasingly, states are including environmental rights as human rights either in their Constitutions or in other human rights legislation. South Africa, a relatively young democracy, entrenched the right to a healthy environment in section 24 of its Constitution. This section states that everyone has the right to an environment that is not harmful to their health or well-being. Moreover everyone has the right to the protection of the environment to ensure inter-generational justice, balanced with the aim of justifiable economic and social development. Little more than a decade later, and with several Acts of Parliament further, the question needs to be asked whether and to what extent this right has been given practical content. It is found that the South African legislature and judiciary have been robust in their enforcement and interpretation of both the constitutional right to a clean and healthy environment, as well as the legislation enacted to give effect to this right. From this developing nation perspective, the paper then examines the Netherlands as an example a developed country where such a right is also recognised as a human right. Despite a longstanding reputation of judicial activism on, and popular ease of access to, environmental justice in this country, it is found that this tradition is facing a serious political and governmental threat which is only obviated by the Netherlands’ accession to European legislation. The paper concludes that, from these examples, it is clear that the enforceability of constitutionally protected environmental rights depend to a large extent on the way in which the right itself is constituted and classified, and that in both instances the support of both the judicial and the executive branches of the trias politica are crucial in order for the constitutionalisation itself to be of practical significance.