Delegated Legislation and Administrative Discretion in Climate Litigation: A Comparative Constitutional Analysis of Rights-Based Claims in the Netherlands and South Africa

Climate litigation increasingly challenges executive inaction and delegated legislative choices by invoking constitutional and human rights frameworks. This article examines how courts handle executive discretion and statutory rule-making powers in climate-related claims, offering a comparative constitutional analysis of the Netherlands and South Africa. In the Netherlands, rights-based claims grounded in the European Convention on Human Rights (ECHR) led the Judiciary to impose positive emission-reduction duties on the state, significantly circumscribing executive policy choices. In South Africa, rights-based challenges leverage Section 24 of the Constitution alongside statutory mechanisms under the National Environmental Management Act (NEMA), challenging administrative authorizations for fossil fuel projects based on constitutional duties and climate impact assessments. Through comparative doctrinal analysis, this study demonstrates that while Dutch jurisprudence relies on duty-of-care obligations to compel regulatory recalibration, South African courts employ administrative law reasonableness and constitutional transformative imperatives to supervise delegated rule-making and discretionary approvals. The findings reveal distinct judicial postures regarding separation of powers: Dutch courts operate through systemic human rights compliance mandates, whereas South African courts synthesize procedural administrative justice with socio-economic rights guarantees. Ultimately, the paper provides a normative framework for evaluating judicial intervention in administrative discretion, balancing democratic accountability with the urgent constitutional imperative of climate mitigation.