Doctoral Degrees (Public Law)

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Browsing Doctoral Degrees (Public Law) by Author "Donald, Megan Elizabeth"

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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.