Abstract
South Africa’s rhino population is under threat of extinction due to poaching for purposes of illegal international trade of rhino horn. The South African government has thus far been unable to regulate rhino poaching effectively. One of the legal responses was to introduce a moratorium on local trade of rhino horn. However, in 2015 the High Court set aside the moratorium. Subsequent appeals against the High Court’s decision to the Supreme Court of Appeal and the Constitutional Court were dismissed without a hearing. The anthropocentric approach to the protection of biodiversity under South African environmental law is reflected upon in this article. It is argued that the High Court adopted an unapologetic and uncritical anthropocentric approach to the issues before it. A legal theory of transformative environmental constitutionalism is proposed as a means to infuse litigation about global environmental problems with substantive environmental considerations, such as precaution, prevention and equity. These principles could facilitate a more ecocentric orientation towards the application of environmental laws.
Highlights
Species extinction and biodiversity loss are two of the many disturbing impacts of the Anthropocene, a time that acknowledges ‘the devastating and overwhelming impact of people on Earth and its systems’, as ‘the consequences of human actions have become the major factor in influencing ecological outcomes’1
This article posits a legal theory of transformative environmental constitutionalism as a conceptual framework for grappling with how, notwithstanding the predominantly anthropocentric orientation of South African environmental laws, ecocentrism can be pursued by lawyers and applied by courts so as to be more responsive to the challenges and context of the Anthropocene
See for example Kruger para 17, where the court links the procedural requirements for imposing a moratorium on rhino horn trade with the provisions in the environmental right providing for the sustainable use of natural resources, rather than with the provisions relating to conservation
Summary
Species extinction and biodiversity loss are two of the many disturbing impacts of the Anthropocene, a time that acknowledges ‘the devastating and overwhelming impact of people on Earth and its systems’, as ‘the consequences of human actions have become the major factor in influencing ecological outcomes’. The High Court interpreted and applied South African administrative justice laws alongside anthropocentrically oriented environmental laws providing for biodiversity conservation in a manner that showed scant regard for the impact of its order on rhino populations. This article posits a legal theory of transformative environmental constitutionalism as a conceptual framework for grappling with how, notwithstanding the predominantly anthropocentric orientation of South African environmental laws, ecocentrism can be pursued by lawyers and applied by courts so as to be more responsive to the challenges and context of the Anthropocene. It is argued here that the existence of principles that create the potential for recognizing the intrinsic value non-human life independent of its value to human life could facilitate the interpretation and application of environmental law that is more responsive to the Anthropocene. As courts in South Africa are enjoined to interpret statutes in a manner that upholds the spirit, purport and objects of the Constitution, a more transformative approach was possible, and, appropriate
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