Doctoral Degrees (Environmental Law)
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Item The climate change and freshwaters nexus: possible implications for water treaties on the transboundary tributaries of the Congo River.(2019) Malassi, Joseph Longunza.; Kidd, Michael Anthony.While it is widely predicted that climate change will cause a significant decline of water availability in diverse regions of the planet, it is also established that the same phenomenon will cause frequent and intense floods in many other regions of the globe, including the Congo River basin, in Central Africa. This basin, which houses the second-largest tropical rain forest in the world is under threat of seasonal floods due to climate change. Studies concerning the impact of climate change on the basin’s hydrology have revealed that the phenomenon will cause an increase of approximately 10 to 15 percent of the run-off of the basin, and a rise of about 11 to 17 percent of the Congo River’s discharge, by the year 2050. The Congo River is the main outlet of the Congo basin. It discharges approximately 45,000 cubic metres of waters per second in the Atlantic Ocean, of which one third are the waters from the Congo River’s transboundary tributaries. Eleven to seventeen percent in addition to what already exists suggests a higher likelihood of intense seasonal floods across the Congo River basin. The 1997 United Nations Convention on the non-navigational uses of international watercourses has required water cooperation across river basins in order to jointly adopt the appropriate measures including the laws, to address the predicted impacts of climate change. However, the consulted literature has given very little interest in this matter as far as the Congo River basin is concerned. Furthermore, no previous study has examined the legal implications thereof. This thesis has, therefore, tried to comprehend the implications that these climate change impacts on the hydrology of the Congo River basin will have on the laws that govern the Congo River and its transboundary tributaries. This thesis has at first assessed the legal framework that governs the Congo River and its transboundary tributaries against Cooley & Gleick’s criteria framework, which verifies the integration of the climate change dimension in transboundary water treaties. At a second stage, this thesis has undertaken a comparative analysis of the said regime with the flood management regime that is in place in the Rhine River basin. From the analysis undertaken in this thesis, it has transpired that the legal regime that governs the Congo River and its transboundary tributaries has not adequately integrated the climate change dimension. Furthermore, it is deprived of any flood management provision or mechanism, thus suggesting an alarming vulnerability to floods along the Congo River especially. Inspired by the Rhine flood management regime, and having elucidated the hydro politics at play across the Congo River basin, this thesis has formulated some critical recommendations that aim at equipping the basin with an adequate flood management legal regime.Item The protection of the environment through the use of criminal sanctions : a comparative analysis with specific reference to South Africa.(2002) Kidd, Michael Anthony.; Milton, John Robert Landrey.The purpose of this work is to examine critically the use of criminal sanctions in the enforcement of environmental law in South Africa. The two principal issues considered are, first, whether criminal sanctions are the best enforcement instrument and, if not, what alternative enforcement tools exist. Second, the thesis considers ways in which the use of criminal sanctions can be made more effective in those cases where it is found that criminal sanctions do have a role to play. In determining the object of criminal law in the context of environmental regulation, it is concluded that the primary aim is deterrence. The question that this raises is whether deterrence can adequately be achieved through use of alternatives to the criminal sanction. A comprehensive analysis of South African environmental legislation reveals an overwhelming reliance on the command and control approach to regulation, with criminal sanctions being used in almost all cases as the primary enforcement mechanism. It is argued that there are several shortcomings of criminal law that militate against its use as the default enforcement mechanism and the conclusion reached is that they should be reserved for the most serious contraventions of the environmental law. The thesis examines several viable alternatives to criminal sanctions, both administrative and civil, and makes recommendations as to how these can be used effectively instead of criminal sanctions. Following this initial conclusion, the focus then shifts onto how the use of criminal sanctions can be improved in those (serious) cases for which they should be reserved. It is agued, first, that the use of strict criminal liability is not necessary. This is followed by an examination of vicarious and corporate liability where recommendations are made for ways in which these aspects can be improved. The issue of sentencing environmental crime is then considered and it is argued that penalties are largely adequate but suggestions are made as to innovative sentencing options. Finally, several procedural improvements are put forward. In conclusion, a model enforcement chapter for environmental legislation is mooted, taking into account the various recommendations made in the course of the thesis.Item An appraisal of the law relating to oil pollution in the inland, territorial and maritime waters of Nigeria.(2012) Oyende, Kayode Babatunde.; Kidd, Michael Anthony.This dissertation titled ‘An appraisal of the law relating to oil pollution in the inland, territorial and maritime waters of Nigeria’ examines whether the law governing oil pollution in Nigeria is satisfactory in so far as determining issues of liability and compensation for oil pollution are concerned. The thesis examines a research hypothesis on the determination of the question whether the law adequately caters for victims of oil pollution occurring in the inland, territorial and maritime waters of Nigeria and if not, what are the observable defects and how can these defects be remedied. Not only has there been a considerable environmental degradation in Nigeria occasisoned by oil exploration and exploitation, particularly in the areas around the Niger Delta, but there has been serious socio-economic consequences pertinent to sustainable development of Nigeria as a nation. These impacts and the government’s attempts to tackle the problems have been the focus of this thesis.Item Intellectual property rights and biological diversity : an international legal analysis.(1999) Mneney, Edith.; Kaburise, John K. B.Biological diversity is defined in Article 2 of the Convention on Biological Diversity as the variability among living organisms from all sources including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part. This, includes diversity within species and of ecosystems. Biological diversity and its components is valuable in meeting the social, economic, scientific, educational and other human needs. Biological diversity is also important for revolution and maintaining of life sustaining systems of the biosphere. For many years biological resources were treated as coon heritage of mankind; free access was consequently accepted. Most of the genetic resources used for developing new products originated from developing countries in the South; on the other hand research and development in respect of new technologies is carried out mostly by firms in developed countries in the North. New products resulting thereof are subsequently protected by the intellectual property rights (IPR). It is now recognised that new products using biological resources benefit directly or indirectly from indigenous knowledge. Such knowledge is of significant value for the understanding of the natural environment and for sustainable use of natural resources. However, the contribution made by these communities does not receive the same recognition or protection as products which benefit from their knowledge. Existing IPR systems were not designed to extend benefits to indigenous knowledge. Changes in this area were necessitated by concerns about the significant reduction of biological diversity due to certain human activities. These concerns coupled with the recognition that issues of conservation of biological resources cannot be dealt with without addressing issues of equity in access to and sharing of both genetic resources and technologies, recognition of the role of indigenous and local communities, eradication of poverty and international co-operation among others. The Convention on Biological Diversity entered into force in 1993 as a global effort into addressing these issues. It is recognised in the Convention that access to and transfer of technology among members are essential elements for the attainment of its objectives. Parties are therefore called upon to facilitate access and transfer technologies that are relevant to conservation and sustainable use. Protection to IPR holders is provided by the requirements that access to and transfer of technology which is subject to patents and other IPR is to be provided on terms which recognise and are consistent with the adequate and effective protection of IPR. The relationship between environmental protection and IPR is thus made an important issue which may influence implementation of the Convention. This thesis focuses on the study of national and international IPR regimes and their role in implementation of the provisions of the convention. Limitations of these regimes are identified, recent developments in addressing these limitations are analysed and possible alternatives are proposed. This study purports to supplement global efforts to effectively implement provisions of the Convention.Item The effectiveness of environmental law in Malawi : an analysis of the principal legal tools for achieving environmental protection with emphasis on the criminal sanction.(2006) Kalima, Justin Moses.; Kidd, Michael Anthony.The magnitude of environmental degradation in Malawi suggests that environmental law has not been effective. While inadequate enforcement of the law is certainly a significant cause of ineffectiveness, it is demonstrated that the other cause is the current normative state of the law. Malawi uses three traditional legal tools for achieving environmental protection: the criminal sanction, administrative measures and civil measures. An examination of the current environmental laws reveals that the criminal sanction is the primary tool prescribed in Malawian environmental circles. From a stage when the criminal sanction was used to reconcile the parties to a dispute and to discipline the recalcitrant party, the criminal sanction has evolved to the current stage when its purposes are retributive and utilitarian. It is contended that in the context of environmental protection the most acceptable aspect of retribution is just deserts, especially the notion of proportionality. With regard to utilitarianism, deterrence, prevention and reinforcement may in various degrees be regarded as legitimate purposes of the criminal sanction in environmental law. In the current stage of the criminal sanction its operation is affected greatly by the Bill of Rights in Malawi's Constitution. It is suggested that in dealing with various aspects of the criminal sanction vis-a-vis the Constitution, Malawian courts should lean towards saving them from unconstitutionality in the interest of environmental protection. An analysis of Malawi's environmental statutes shows that some of the criminal offences have not been articulated clearly and others conflict with constitutional provisions in a non-defensible way. The criminal sanction is also shown to have weaknesses. When these weaknesses are weighed against the criminal sanction's strengths, it is clear that the criminal sanction has more weaknesses than strengths. This scenario has led many scholars to conclude that criminal sanctions are not appropriate for crimes of all sorts. They suggest that criminal sanctions should be reserved for serious offences and that other measures should be used for less serious offences. While this suggestion certainly has merit especially in respect of First World and Second World countries, the practical realities in Malawi as a Third World country urge a different - but related - approach. These practical realities relate to the availability of alternatives to the criminal sanction in Malawi. An analysis of the alternatives reveals that most of them are not viable alternatives to the criminal sanction in Malawi at present and so criminal sanctions inevitably remain the primary tool for achieving environmental protection. In these circumstances, it is suggested that certain aspects of the criminal sanction should be attended to in order to improve its performance. In this connection, it is suggested that corporate criminal liability must be reformed in order to make available additional bases upon which corporate offenders may be made answerable for their activities. Sentencing must also be reformed in order to prescribe more effective punishments. Further, the use of strict criminal liability should be discouraged: instead there should be wider use of negligence as the fault element and wider use of the due diligence defence. In addition, vicarious criminal liability may be retained as long as an element of fault on the part of an employer or principal is introduced or the defence of due diligence is made available to the employer or principal. Alternatively, vicarious criminal liability may be abrogated in favour of primary criminal liability. Finally, it is suggested that provision be made for the award of costs after successful prosecution of environmental offenders and for the payment of fines to government departments or public bodies responsible for environmental protection.Item Wilderness and the law.(1992) Glavovic, Peter Dusan.; McQuoid-Mason, David Jan.Wilderness areas face serious threats to their integrity and continued existence. The law has a critical role to play in their protection. To be effective, however, the law must be based on sound philosophical and socio-economic considerations. There is increasing recognition, internationally and nationally, of the utilitarian, intrinsic and biocentric values of wilderness and wildlife. There is also an international trend toward recognition and accommodation of tribal cultures and their traditional natural resource harvesting rights within national legal and political systems. Effective protection of the wilderness resource on which South African tribal cultures depend for their continued existence is essential. Communities adjacent to wilderness areas must be allowed to participate in the determination of the boundaries of, the preparation and implementation of the management plans for, and the benefits derived from, such areas. Wilderness management in South Africa must be linked to economic planning and rural development. The values of wilderness to humankind are increasingly being recognised and protected in international treaties and national legal systems. A comparative analysis of relevant events in the United States, in particular, clearly demonstrates that the most effective vehicle for establishment of a national wilderness system is a national wilderness statute. South Africa should acknowledge the international trend towards wilderness preservation, take instruction from the legal initiatives and protective mechanisms adopted in other countries, recognise that its wilderness is a global heritage, and accept ' that it has an obligation to protect what remains of its wild country, not only in the interests of its present and future generations, but also in the interests of the world community. A review of the history and current status of wilderness in South Africa, and of the laws which indirectly or directly provide protection of wilderness areas, wilderness values, or wilderness equivalents, suggests that there is a need for a new legal dispensation for the preservation of the remnants of South African wilderness. At present there is statutory protection of declared wilderness areas in State forests only, in terms of the Forest Act 122 of 1984. There is no direct legislative protection of wilderness on other public lands, and no legal protection of wilderness on private land. Effective and sustainable protection of South African wilderness will best be achieved through the medium of an appropriate national Wilderness Act.Item Large and grey : whales, elephants, and international law and politics.(2008) Edmund, William Franz Couzens.; Kidd, Michael Anthony.This thesis is an investigation into, and a gathering of evidence on, the various ways in which two iconic species, whales and elephants, and the two conventions which govern their management, the 1946 International Convention for the Regulation of Whaling (ICRW) and the 1973 Convention on International Trade in Endangered Species (CITES), are linked in international law and politics. After explaining the nature of international conventions governing wildlife species generally, the respective histories of the two conventions are considered: first, that of the ICRW is considered, together with its strengths, weaknesses and current position; after which a similar assessment is made of CITES. The history of linkage between the two is considered, including attempts made to use the one to undercut the other. Various aspects of the protection, use and management of the two species are then canvassed; and it is shown how important political actors hold apparently mutually exclusive views. Throughout, the position of South Africa is particularly considered. The importance of protecting biological diversity is then considered, together with the potential harmonising role of the 1989 Convention on Biological Diversity (CBD), and the political stances of various countries, together with ongoing analysis of efforts to effect change. The natures of whales and elephants as symbols, and as special animals, are then considered. In conclusion, it is explained that both treaties could work if the political drive was present - but that this is currently absent, and the environment is suffering whilst politicians argue over the best courses to follow to protect natural resources. It is suggested that the reason that the arguments in respect of whales and elephants, the ICRW and CITES, are so bitter is because so much is at stake - for the fight on this battleground is not simply about the particular species, but the course the world as a whole should follow in all of its use of natural resources. Understanding the links between species and between treaties helps us to understand alternative possible courses. By exploring one such set of links that has not previously been analysed, the research presented in this thesis is intended to make a contribution to that understanding (both internationally and within South Africa).