Doctoral Degrees (Environmental Law)

Permanent URI for this collectionhttps://hdl.handle.net/10413/8397

Browse

Now showing 1 - 5 of 5

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.
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.
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.
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).
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.

Browse

Browsing Doctoral Degrees (Environmental Law) by Author "Kidd, Michael Anthony."