Browsing by Department "Institute of Marine and Environmental Law"

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    A critical assessment of Nigeria's Climate Change Law
    (2023) Oniga, Vincent; Paterson, Alexander
    Climate change refers to the significant variation or variability in climate that has persisted and measured over a period of time. It has been identified as one of the greatest threats facing the planet today. These variations are caused majorly by anthropogenic factors such as the emission of greenhouse gases at a harmful level into the atmosphere. Although climate change effects are felt globally, it is projected that Africa will be severely hit by the impacts of climate change even though the continent contributes very little to the activities fuelling the change. This is largely due to the continent's weak capacity to adapt to these changes. In Nigeria, the effects of climate change are apparent in water scarcity in areas prone to drought, floods in the coastal areas and desertification in the northern part of the Country. The emergence of international instruments such as the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement, under which countries have committed to limiting global warming to well below 2°C compared to pre-industrial level represent the main international framework in addressing climate change challenges. Following this international initiative, countries have begun enacting domestic climate change legislation to give effect to their obligations under the international regime. The need to enact climate change legislation has gained global momentum particularly in the last three decades because climate change is a global problem and managing it requires a global and multi-level initiative. In a bid to realise its commitments under these global agreements, Nigeria recently passed the Climate Change Act, 2021. The law is national framework legislation that aims to address climate change challenges across various sectors. It also seeks to facilitate the realisation of the Country's net-zero carbon emission target, provide for adequate climate finance measures and mainstream climate change actions into national development priorities. This new law is an essential tool to translate Nigeria's emission pledges as contained in its Nationally Determined Contribution made under the Paris Agreement into action. Against this backdrop, this minor dissertation provides a critical review of Nigeria's contemporary climate change law against certain elements identified by scholars as essential components of a climate change framework law. It also examines how the framework law interact with other climate change policies and how they all fit together under a regulatory regime. Where anomalies or deficiencies are identified, it proffers solutions that are compatible with the political and socio-economic realities of the Country.
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    Administrative penalties as a tool for resolving South Africa’s environmental compliance and enforcement woes
    (2014) Hugo, Robyn Elizabeth; Paterson Alexander
    South Africa’s environmental resources are in serious decline, despite the constitutional environmental right, and multiple environmental protection laws. A predominant reason for this is that the criminal sanction is the default method of environmental enforcement. Even if prosecutors succeed in proving guilt beyond reasonable doubt, the fines imposed are too low to deter environmental violations. This dissertation proposes the introduction of an administrative penalty system into SA environmental law, as this system has had positive compliance impacts in numerous jurisdictions. Administrative penalties in the Netherlands and United Kingdom (the roots of SA’s civil and common law systems, respectively) are evaluated to identify best practices for administrative penalties. In SA’s environmental regime, there is an ‘administrative fine’ contained in section 24G of the National Environmental Management Act 107 of 1998. This is not a true administrative penalty, nor does it comply with the recommended best practices. Section 24G should either be deleted or substantially improved to meet its obligation of protecting the environment. Given the significant potential of administrative penalties to improve environmental compliance and enforcement, practical suggestions are made regarding their introduction into SA environmental law as a means to halt the current widespread non-compliance with environmental legislation.
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    AfrOBIS: a marine biogeographic information system for sub-Saharan Africa
    (Academy of Science of South Africa, 2007) Grundlingh, M L; von St Ange, U B; Bolton, J J; Bursey, M; Compagno, L; Cooper, R; Drapeau, L; Griffiths, C L; bel Hassen, M; Herbert, D G; Kirkman, S; Ohland, D; Robertson, H G; Trinder-Smith, T; van der Westhuysene, J; Verheye, H M; Coetzer, W; Wilke, C
    AfrOBIS is one of 11 global nodes of the Ocean Biogeographic Information System (OBIS), a freely accessible network of databases collating marine data in support of the Census of Marine Life. Versatile graphic products, provided by OBIS, can be used to display the data. To date, AfrOBIS has loaded about 3.2 million records of more than 23 000 species located mainly in the seas around southern Africa. This forms part of the 13.2 million records of more than 80 000 species currently stored in OBIS. Scouting for South African data has been successful, whereas locating records in other African countries has been much less so.
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    An analysis of the law governing the acquisition of shipwreck
    (1996) Bruk, Judian
    The second half of the twentieth century has brought drastic changes in technology. These advances have changed the way marine resources are harvested or acquired The development of SCUBA made diving to depths of 50m unrestrained by the need for surface support, feasible. 1 This opened up the possibility of exploring below the surface of the sea. It also brought with it the possibility of salvaging wrecks and remains which had been hidden since antiquity.2 The year 1954 saw the first stem trawler the Fairtry converted from a decommissioned whaler. She was to set the standard for trawling efficiency and her design was soon replicated, replacing other types. 3 Nylon fibres made lines and nets lighter and more durable.
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    An Analysis of the International Legal Framework for the Protection of Coral Reefs
    (2009) Guy, Laura; Gibson, John
    The biodiversity found on a coral reef is above and beyond that found in the tropical rainforests, with an estimated 25 percent of all marine species concentrated in an area that only covers 1 percent of the ocean floor. This huge wealth of biodiversity is founded upon a structure made entirely of animals. The coral polyps that provide the limestone structure of the reef date back around 200 million years and they in that time, although their growth is slow, have produced huge areas of various types of reef. These include atolls, fringing reefs and barrier reefs, the most famous being that of the Great Barrier Reef in Australia which covers around 350,000 square kilometres.
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    The Barcelona System: An overview
    (2014-07-30) Deupmann, Peter
    In this paper, the Barcelona Convention and its related protocols, together known as the Barcelona System, will be analysed. The Barcelona System is designed to protect and preserve the marine environment of the Mediterranean Sea. It is astonishing that the Convention, which was adopted as early as 1976, has inspired only few lawyers to write about it. Not even the extensive amendment procedure of 1995 and the subsequent adoption of new protocols lead to the whirl of comments, otherwise common in our field. As a result, the Barcelona System is the domain of only a handful of lawyers, of whom Professor Scovazzi of the University of Milan is probably the most well-known. Besides the limited amount of articles, there is a huge amount of internet publications in the form of workshop reports, brain-storm sessions, exhortations, considerations, news paper articles and expressions of concern. The latter range is interesting to get an impression of the fields of current interest, but have only limited value for juridical purposes. The overall picture of (juridical) sources is thus rather pale. For this reason, I put the various protocols in their context and analysed them after briefly mentioning their global and regional counterparts, with which I compared them. However, the comparison is not always very detailed, since the aim is to show the weaknesses and strengths of the protocols and not those of the other instruments. Besides that, it was not my intention to elaborate extensively on comparison because the primary purpose of the paper is to give an - if you wish critical- overview of the Barcelona System, since this, as far as I know, does not exist. The interested lawyer, who wants to know more about the Barcelona System can therefore only do one thing: read the Convention and protocols, of which the present paper is the result. To provide the necessary juridical background, I begin with the various maritime zones of Mediterranean interest. The case, as you shall see, is that the Mediterranean States have been reluctant to claim much more than a territorial sea of 12 nautical miles. However, some States have recently begun to establish different types of zones beyond the 12 nautical mile limit. This is a point of huge interest and of major importance regarding the enforcement powers of the coastal States in an area that used to be high seas.
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    Big hopes for small-scale fishers: a critical review of South Africa's small-scale fishing policy and regulations
    (2017) Pretorius, Graeme; Lau Young, Micha
    Some 18 years after the enactment of the Marine Living resources Act (18 of 1998), which gives express recognition to the subsistence or small-scale fisheries sector, a regime addressing the needs of this sector has finally been promulgated. That regime consists of the Policy for the Small Scale Fisheries Sector (20 June 2012) in South Africa and the Regulations relating to Small Scale Fishing (8 March 2016). Through a paradigm shift in small-scale fisheries governance, the regime seeks to put an end to the marginalisation and exclusion of these fishers from the fishing rights allocation process that has persisted in the absence of a formal regulatory regime. The Policy for the Small Scale Fisheries Sector purports to adopt and promote a human rights based approach and focuses on food security and livelihood. It seeks to employ co-management of the common pool resources and promote customary practices. It allocates a basket of multi-species rights to community legal entities allowing for a community based resource management with a strong developmental agenda. This paper seeks to reflect on the effectiveness of this regime by critically examining the regime governing the small scale fishing sector against the body of knowledge that has developed internationally regarding successful and effective management of the Small Scale fishing Sector.
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    Biodiversity offsets: towards an effective legal framework in South Africa
    (2015) Midgley, Danjelle; Young, Michaela
    South Africa is one of the most biologically diverse countries in the world. This biodiversity is under threat from economic, social and climate change pressures. One mechanism that could be added to South Africa's conservation tools, is that of the biodiversity offset where certain activities are designed to compensate for unavoidable harm to biodiversity resulting from development. The concept and theory of offsetting is controversial however, and not all commentators are in favour of encouraging a formal biodiversity offsetting regime in South Africa. This dissertation will explore the concept of biodiversity offsets in the regulatory permitting context and the controversies implicit in their theory and implementation. A framework for their inclusion in South Africa's environmental permitting context will be suggested.
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    Biosafety Regulation: a comparative analysis of the South African and Ugandan experience
    (2014-07-30) Joy, Faida
    This study provides a critical and comparative analysis of biosafety regulation in South Africa and Uganda. The overall objective of the study is to establish which country prescribes a more adequate regulatory regime. Biosafety regulation under international and regional law is the first key aspect that this paper examines. This is done in order to set out a context under which domestic biosafety regulation is examined. This study argues that international law generally sets minimum standards while regional law sets higher standards for biosafety regulation. The second key area examined is biosafety regulation in South Africa. The paper sets out an overview of the relevant biosafety laws in South Africa and conducts a critical analysis of these laws pointing out their strengths and weaknesses. The study is premised on the argument that South African regulatory regime is inadequate for purposes of regulating biosafety. The third part of this paper focuses on Uganda's regulatory regime. A similar analysis was carried where the study found that the Ugandan regime is reasonably adequate for purposes of protection of the environment and human health. The final key aspect of this paper is a comparative analysis of biosafety regulation in South Africa and Uganda. This is done thematically, setting out differences and similarities. This part examines the extent to which South Africa and Uganda have attempted to comply with their international obligations. This paper concludes that, although the Ugandan regulatory regime (both existing and proposed) has some weaknesses, it is a more adequate regime than the South African one. Further, Uganda is more compliant with the biosafety Protocol and the African Model Law than South Africa.
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    Can the Kyoto Protocol to the United Nations Framework Convention on Climate Change achieve its ultimate objective?
    (2004) Dalrymple, James; Gibson, John
    Hardly a day goes by without reading, in the national and international media, about new evidence of catastrophic climate change, be it droughts, floods, fires, storms or wildlife extinction. But are we to blame? Are anthropogenic (human-induced) interferences with the climate system causing. climate change? Are the emissions from factories and cars changing the relationship between us and nature? Will we destroy the basic conditions that. have allowed life to thrive on Earth? These are the questions which have caused so much soul-searching amongst people over the past few decades with regard to climate change. It is not within the scope of this paper to prove or disprove the existence of dangerous anthropogenic climate change. What is important from an international environmental law perspective is whether or not the nations of the world believe there is a climate change problem, and if they do what rules must be put in place to deal with the problem. That first significant step towards legally recognising that there is a climate change problem was taken in 1992 with the signing of the United Nations Framework Convention on Climate Change (referred to in this paper as the UNFCCC. or the Convention). This Convention was a direct consequence of scientific evidence, produced by the Intergovernmental Panel on Climate Change (IPCC), showing the devastating effects of dangerous anthropogenic greenhouse gases caught in the atmosphere. A second major step towards legally binding commitments to reducing greenhouse gas emissions was made, after intensive negotiations, in Kyoto, Japan, with the signing of a Protocol to the Framework Convention. The Kyoto Protocol (the Protocol) signed in 1997, is significant because it introduces for the first time, legally binding obligations on developed countries to reduce their emissions of greenhouse gasses. In 1995 the IPCC released a report which concluded that the climate may have already started responding to past emissions. It recommended that, in order to stabilise atmospheric concentrations of greenhouse gases at 1990 levels, it would be necessary to reduce current anthropogenic emissions by 60%. This figure went far beyond the reductions to which even the most environmentally progressive Parties were prepared to commit. So, can the Protocol to the UNFCCC achieve its ultimate objective, which is to stabilise greenhouse gas concentrations in the atmosphere at a level that will prevent dangerous anthropogenic interference with the climate system?
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    The Cartagena Protocol on Biosafety: A comparative analysis of the domestic implementation in South Africa and Uganda
    (2014-07-30) Mutesasira, Peter Davis
    This study makes a comparative analysis of the current biosafety legislation in South Africa and the interim biosafety regulatory regime in Uganda. A set of common characteristics and components in biosafety regulatory systems with reference to related provisions of the Cartagena Protocol on Biosafety were used. The introduction of genetically modified organisms (GMOs) especially in agriculture has produced a new range of governance challenges in the fields of environmental safety and human health. The regulation of modern biotechnology in Africa is still in its infancy. Despite this, legislation is urgently required to regulate modern biotechnology. The study assessed how the Cartagena Protocol on Biosafety is implemented by South Africa and Uganda. The study revealed that though the Cartagena Protocol has gone some way in regulating modern biotechnology, its implementation in countries such as South Africa and Uganda has not resulted in the harmonization of the domestic regulatory process. On the national level, the study noted that the biosafety legislation of South Africa and the interim biosafety regulatory regime of Uganda do not fully comply with the provisions of the Cartagena Protocol. This is mainly because each country has taken a different approach in implementing the protocol depending on its domestic priorities, imperatives and position in the global agricultural market. Finally, the study made recommendations on possible ways in which South Africa and Uganda can coordinate and harmonize their national biosafety regulatory systems. These will enable the two biosafety regulatory systems to become more compliant with the provisions of the protocol.
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    Casting a wider legal fishnet: Assessing opportunities to combat fisheries crime with a focus on the South African abalone poaching and trafficking crisis
    (2018) Herdieckerhoff, Ida; Glazewski, Jan
    The fisheries sector is a fundamental global industry for human prosperity worldwide as fish and fish products are among the most-traded food commodities worldwide. However, the fisheries sector is linked to a high degree of illegality. Fisheries crime is a multifaceted phenomenon – frequently transnational and organised in nature – which comprises a range of various crimes along the fisheries value chain, including corruption, money laundering as well as tax and customs fraud. The abalone poaching and trafficking crisis in South Africa is a prime example of fisheries crime: organised criminal syndicates control the (illegal) lucrative trade of abalone starting from poaching in the coastal waters of South Africa until the abalone ends up in East Asia. The syndicates take advantage of the sensitive socio-economic dynamics in South Africa’s coastal communities for financial gain by recruiting local poachers and using highly organised networks to smuggle abalone to East Asia. The illegal trade in abalone is one significant factor that threatens the species’ survival, thus these criminal syndicates must be disrupted and their activities combated. This dissertation examines legal tools to do so. During the 2nd International Symposium on Fisheries Crime it was pointed out that ‘given the inter-connected and complex nature a successful law enforcement approach to addressing these crimes cannot focus exclusively on one type only; rather, what is required is a coordinated criminal law enforcement response at the domestic and international level that recognises the wide variety of forms fisheries crime can take’1 . This extends beyond the scope of fishing offences and is rooted in the use of all potentially applicable laws. This dissertation examines the applicability of the Marine Living Resources Act 18 of 1998, the Prevention of Organised Crime Act 121 of 1998, the Customs and Excise Act 91 of 1964 as well as the Prevention and Combating of Corrupt Activities Act 12 of 2004 to the abalone and trafficking crisis. The aim is to assess the South African legal framework as well as existing case law to determine how South Africa’s courts have approach the prosecution of fisheries crime to date in order to arrive at suggestions to combat abalone poaching and trafficking in the future.
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    The challenge of creating an effective and equitable legal regime to cover transboundary protected areas considering the challenge through the lens of the Great Limpopo Transfrontier Park
    (2013) Bishop, Davide; Paterson, Alexander
    Contemporary recognition of the need to expand existing protected area systems has culminated in the formulation of the Strategic Plan for Biodiversity 2011-2020 by the parties to the Convention on Biological Diversity (CBD). This Strategic Plan incorporates 20 ambitious 'Aichi Biodiversity Targets'; with Target 11 specifically requiring that by 2020 'at least 17 per cent of terrestrial and inland water and 10 per cent of coastal and marine areas are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas, as well as, other effective area-based conservation measures, and integrated into the wider landscape and seascape.' Target 11 requires compliance with a number of preconditions, two of which will be discussed in this dissertation. First, well-governed protected areas provide an established mechanism for both safeguarding habitats and populations of species, as well as, delivering important ecosystem services. It is, therefore, imperative that governance and planning measures are implemented effectively and equitably. Secondly, protected areas are required to be well-connected to the wider landscape through the use of corridors and ecological networks facilitating connectivity, adaption to climate change and the application of the ecosystem approach. Transboundary Natural Resource Management (TBNRM) provides a unique opportunity for realising both conditions.
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    Clearing or clouding the discourse - a South African perspective on the utility of the IUCN protected areas governance typology
    (2010) Paterson, Alexander
    ‘To illustrate how difficult communication can be internationally, here is an example from outside of conservation. If you walk into a Starbucks in America and ask for a café grande, they will give you a medium-sized cup of coffee. If you ask for a café grande in Mexico, they may give you a bowl of coffee and a quizzical look. Ask for a café grande in Venice, and they will direct you to a shop on the Piazza Indipendenza. To understand parks and protected areas globally, we have to have a common language.
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    Coastal management lines as a key tool to promote integrated coastal management : a comparative review of South Africa's emerging legal framework with that of selected Euro-Mediterranean countries
    (2016) Pienaar, Alecia; Paterson, Alexander
    The coastal zone represents an endemic ecosystem of geomorphic complexity, characterised by its dynamic state of transition and increasing sensitivity. It is widely acknowledged that the environmental complexities and distinctiveness of this area is an attribute matched only be its attractiveness for human settlement and resource utilisation. Viewed through an environmental lens, the proliferation of urban coastal development is, however, diminishing coastal resilience to an extent that is both unsustainable and injudicious. In this context, proper management of the coastal zone necessitates the application of integrated land use planning mechanisms responsive not only to the ecological dynamics of a land-sea interface, but also to the increasing pressures of human use and development activities. This dissertation identified set-back lines or coastal management lines (CMLs) as a regulatory mechanism that essentially conforms to such criterion. South Africa is currently experimenting with implementing the provisions in the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (NEMICMA), which provides for CMLs as a key tool for promoting integrated coastal management. The aim of this dissertation was to critically review the domestic legal framework and experience to date in implementing this scheme. Owing to the novelty of CMLs in the South African jurisdiction, a reference point or legal backdrop was necessary to critically evaluate the peculiarities and potential of the NEMICMA framework. For this reason, this dissertation undertook a critical and comparative study on the regulation of CMLs in both South Africa and selected Euro- Mediterranean states, namely France, Spain and Greece.
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