The horizontal application of the environmental right to juristic persons at sea
- Authors: Maseka, Ntemesha Mliwa
- Date: 2024-04
- Subjects: Economic zones (Law of the sea) , Law of the sea , Criminal liability of juristic persons -- South Africa , Environmental Law , Territorial waters
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/65739 , vital:74233
- Description: Due to its vast resources, the ocean has been designated the new “economic frontier”. States are focusing on unlocking this potential to boost economic growth, employment and innovation. Because of their substantial resources, corporations are key actors in driving the development of the ocean economy. Although corporations undeniably contribute significantly to realising the ocean economy’s potential, their main activities—including offshore oil and gas exploration and production and fishing—pose great threats to marine ecosystems. This harm to the marine environment may also threaten and adversely impact many people’s lives, health, well-being, livelihood, culture and traditions. In the South African context, this reality is notably seen through Operation Phakisa. This government initiative aims to unlock the economic potential of the ocean economy to expedite the implementation of solutions to poverty, unemployment and inequality. This race to utilise the oceans and its resources brings to the fore the interaction between the right to have the environment protected and socio-economic development anticipated in section 24 of the South African Constitution. The South African Constitution through section 8(2) acknowledges that non-State actors such as corporations can abuse human rights in horizontal relationships. However, unlike the State, non-State actors are only bound in certain circumstances. Therefore, this thesis examines whether and, if so, to what extent section 24 of the Constitution binds juristic persons at sea. This thesis examines the direct application of international norms to non-State actors to determine how international human rights law addresses non-State actors' conduct that impairs an individual’s guaranteed rights. It was determined that international human rights law has an indirect horizontal effect. This means that in cases where a non-State actor impairs an individual’s human rights, international law permits the victim to hold the State responsible for the violation rather than the non-State actor who was the perpetrator. For a non-State actor to incur direct obligations to uphold certain human rights, the State must create these obligations in its domestic law. The thesis explored how the South African Bill of Rights imposes direct human rights obligations on non-State actors in a horizontal dispute. It was found that whether an entrenched right binds a non-State actor depends on a multi-factor enquiry confirmed by the Constitutional Court. Based on that enquiry, it concluded that the environmental right is capable of and suitable for horizontal application. Furthermore, non-State actors can bear positive and negative constitutional human rights obligations arising from the environmental right. A failure to comply with these obligations would violate this constitutional right. The most significant findings of this thesis pertain to the applicability of South Africa’s human rights law framework at sea. This is because the legal regime applicable at sea differs from that on land. The United Nations Convention on the Law of the Sea assigns jurisdiction to States in the different maritime zones for different purposes. To elucidate South Africa's rights and obligations as delineated in the LOSC, the thesis focused on two examples: the exploitation of marine living resources and the prospection, exploration and exploitation of marine non-living resources. Subsequently, the extent to which South Africa has taken measures in its domestic law to implement those rights and duties was assessed. In addition, this approach was appropriate because questions concerning the horizontal application of the South African Bill of Rights necessitate contextual analysis and cannot be answered a priori and in the abstract. Using the multi-factor enquiry, the study showed that, in principle, section 24 of the Constitution might bind juristic persons within South Africa’s territorial jurisdiction, exclusive economic zone jurisdiction, continental shelf jurisdiction and under South Africa’s personal jurisdiction. Furthermore, juristic persons who control vessels registered in South Africa or control a vessel entitled to be registered in South Africa but has departed to a place outside South Africa without being registered might also be constitutionally bound based on flag State jurisdiction. The sole means of preventing South Africa from exercising its authority this way requires severing the jurisdictional connection between South Africa and the juristic person. It was recommended that in ocean-related matters, the connecting factor between South Africa and the juristic person must be considered as an additional factor in the enquiry to determine whether a particular right binds that juristic person. Additionally, since the scope of corresponding rights-holders are “everyone”, even people outside South Africa present in places where the juristic person who is the corresponding duty-bearer operates or where their conduct is felt can hold these actors accountable for their constitutional human rights obligations. , Thesis (LLD) -- Faculty of Law, Department of Public Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Maseka, Ntemesha Mliwa
- Date: 2024-04
- Subjects: Economic zones (Law of the sea) , Law of the sea , Criminal liability of juristic persons -- South Africa , Environmental Law , Territorial waters
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/65739 , vital:74233
- Description: Due to its vast resources, the ocean has been designated the new “economic frontier”. States are focusing on unlocking this potential to boost economic growth, employment and innovation. Because of their substantial resources, corporations are key actors in driving the development of the ocean economy. Although corporations undeniably contribute significantly to realising the ocean economy’s potential, their main activities—including offshore oil and gas exploration and production and fishing—pose great threats to marine ecosystems. This harm to the marine environment may also threaten and adversely impact many people’s lives, health, well-being, livelihood, culture and traditions. In the South African context, this reality is notably seen through Operation Phakisa. This government initiative aims to unlock the economic potential of the ocean economy to expedite the implementation of solutions to poverty, unemployment and inequality. This race to utilise the oceans and its resources brings to the fore the interaction between the right to have the environment protected and socio-economic development anticipated in section 24 of the South African Constitution. The South African Constitution through section 8(2) acknowledges that non-State actors such as corporations can abuse human rights in horizontal relationships. However, unlike the State, non-State actors are only bound in certain circumstances. Therefore, this thesis examines whether and, if so, to what extent section 24 of the Constitution binds juristic persons at sea. This thesis examines the direct application of international norms to non-State actors to determine how international human rights law addresses non-State actors' conduct that impairs an individual’s guaranteed rights. It was determined that international human rights law has an indirect horizontal effect. This means that in cases where a non-State actor impairs an individual’s human rights, international law permits the victim to hold the State responsible for the violation rather than the non-State actor who was the perpetrator. For a non-State actor to incur direct obligations to uphold certain human rights, the State must create these obligations in its domestic law. The thesis explored how the South African Bill of Rights imposes direct human rights obligations on non-State actors in a horizontal dispute. It was found that whether an entrenched right binds a non-State actor depends on a multi-factor enquiry confirmed by the Constitutional Court. Based on that enquiry, it concluded that the environmental right is capable of and suitable for horizontal application. Furthermore, non-State actors can bear positive and negative constitutional human rights obligations arising from the environmental right. A failure to comply with these obligations would violate this constitutional right. The most significant findings of this thesis pertain to the applicability of South Africa’s human rights law framework at sea. This is because the legal regime applicable at sea differs from that on land. The United Nations Convention on the Law of the Sea assigns jurisdiction to States in the different maritime zones for different purposes. To elucidate South Africa's rights and obligations as delineated in the LOSC, the thesis focused on two examples: the exploitation of marine living resources and the prospection, exploration and exploitation of marine non-living resources. Subsequently, the extent to which South Africa has taken measures in its domestic law to implement those rights and duties was assessed. In addition, this approach was appropriate because questions concerning the horizontal application of the South African Bill of Rights necessitate contextual analysis and cannot be answered a priori and in the abstract. Using the multi-factor enquiry, the study showed that, in principle, section 24 of the Constitution might bind juristic persons within South Africa’s territorial jurisdiction, exclusive economic zone jurisdiction, continental shelf jurisdiction and under South Africa’s personal jurisdiction. Furthermore, juristic persons who control vessels registered in South Africa or control a vessel entitled to be registered in South Africa but has departed to a place outside South Africa without being registered might also be constitutionally bound based on flag State jurisdiction. The sole means of preventing South Africa from exercising its authority this way requires severing the jurisdictional connection between South Africa and the juristic person. It was recommended that in ocean-related matters, the connecting factor between South Africa and the juristic person must be considered as an additional factor in the enquiry to determine whether a particular right binds that juristic person. Additionally, since the scope of corresponding rights-holders are “everyone”, even people outside South Africa present in places where the juristic person who is the corresponding duty-bearer operates or where their conduct is felt can hold these actors accountable for their constitutional human rights obligations. , Thesis (LLD) -- Faculty of Law, Department of Public Law, 2024
- Full Text:
- Date Issued: 2024-04
Arts-based participatory research for more equitable ocean governance in South Africa
- Authors: Strand, Mia
- Date: 2023-12
- Subjects: Marine resources conservation , Marine resources development , Law of the sea
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/66017 , vital:74307
- Description: This research explored the usefulness of arts-based participatory research (ABPR) in identifying more equitable ocean governance in South Africa. Co-developing the ABPR with Indigenous and local knowledge holders as co-researchers, the research expanded on opportunities to inform more equitable marine spatial planning (MSP) and marine protected areas (MPAs) processes. Working with 24 co-researchers in Algoa Bay (Eastern Cape) and 24 co-researchers in Mandeni (KwaZulu-Natal) for over two years, the thesis formulated and contextually adapted an approach incorporating photovoice and digital storytelling for co-researchers to share their ocean knowledges, priorities and stories. As people hold various priorities, interests and knowledges of the ocean, these knowledges shape how people interact with the ocean and coast. Despite a multitude of interconnected and complex ocean knowledges (pluriversality), a growing body of literature describes the exclusionary, top-down and inequitable nature of area-based ocean management in South Africa, which do not recognise Indigenous and local knowledge systems (ILKS). The research was conceptualised as a response to these realities, and the ABPR processes were developed with knowledge holders who felt excluded from current ocean governance approaches. Working within a broader theoretical framework of social and environmental justice, the research drew on contextually relevant literature and theoretical paradigms such as social sustainability, social-ecological systems, decolonial and postcolonial theory, social learning, transdisciplinary knowledge co-production and arts-based research. The ABPR methods were carefully crafted together with co-researchers, and photovoice experts assisted with cross-learning workshops. The ABPR included in situ photography and storytelling processes to ensure co-researchers could convey embodied, daily lived experiences or re-imagined connections with the ocean and coast. Embracing and reclaiming world-making through processes of participatory community mapping, the ABPR also facilitated collaborative analysis of co-researchers’ relationships and interactions with the ocean in light of current MSP and MPA processes. The final photostories from the ABPR processes were shared by the co-researchers at two multimedia exhibitions and two multi-stakeholder workshops that brought together relevant government representatives, coastal managers, conservation authorities, scientists and local community members. The results from the ABPR processes provided a number of novel and significant insights into ocean knowledges, connections and priorities that are currently not recognised in ocean governance processes in South Africa. Specifically, the ABPR proved useful in highlighting strong spiritual and traditional connections to the ocean and facilitating direct engagements and social learning processes between various ocean priorities to start bridging the gap between ILKS, marine science and ocean decision-making. Furthermore, the ABPR was valuable in mapping sociocultural priorities and interactions with the ocean, which could inform more inclusive and equitable MSP and MPAs processes. The ABPR surfaced opportunities for cognitive justice, where ILKS holders could own the knowledge production process, and identify opportunities for greater co-management in ocean decision-making. The insights from the research are relevant for several disciplines, research practices, and ocean governance processes. In summary, the ABPR process was useful to identify practical approaches and pathways necessary for embracing and working with the complexity of social-ecological marine systems and the plurality of ocean knowledges for more equitable ocean futures. , Thesis (DPhil) -- Faculty of Business and Economic Sciences, School of Economics, Development and Tourism, 2023
- Full Text:
- Date Issued: 2023-12
- Authors: Strand, Mia
- Date: 2023-12
- Subjects: Marine resources conservation , Marine resources development , Law of the sea
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/66017 , vital:74307
- Description: This research explored the usefulness of arts-based participatory research (ABPR) in identifying more equitable ocean governance in South Africa. Co-developing the ABPR with Indigenous and local knowledge holders as co-researchers, the research expanded on opportunities to inform more equitable marine spatial planning (MSP) and marine protected areas (MPAs) processes. Working with 24 co-researchers in Algoa Bay (Eastern Cape) and 24 co-researchers in Mandeni (KwaZulu-Natal) for over two years, the thesis formulated and contextually adapted an approach incorporating photovoice and digital storytelling for co-researchers to share their ocean knowledges, priorities and stories. As people hold various priorities, interests and knowledges of the ocean, these knowledges shape how people interact with the ocean and coast. Despite a multitude of interconnected and complex ocean knowledges (pluriversality), a growing body of literature describes the exclusionary, top-down and inequitable nature of area-based ocean management in South Africa, which do not recognise Indigenous and local knowledge systems (ILKS). The research was conceptualised as a response to these realities, and the ABPR processes were developed with knowledge holders who felt excluded from current ocean governance approaches. Working within a broader theoretical framework of social and environmental justice, the research drew on contextually relevant literature and theoretical paradigms such as social sustainability, social-ecological systems, decolonial and postcolonial theory, social learning, transdisciplinary knowledge co-production and arts-based research. The ABPR methods were carefully crafted together with co-researchers, and photovoice experts assisted with cross-learning workshops. The ABPR included in situ photography and storytelling processes to ensure co-researchers could convey embodied, daily lived experiences or re-imagined connections with the ocean and coast. Embracing and reclaiming world-making through processes of participatory community mapping, the ABPR also facilitated collaborative analysis of co-researchers’ relationships and interactions with the ocean in light of current MSP and MPA processes. The final photostories from the ABPR processes were shared by the co-researchers at two multimedia exhibitions and two multi-stakeholder workshops that brought together relevant government representatives, coastal managers, conservation authorities, scientists and local community members. The results from the ABPR processes provided a number of novel and significant insights into ocean knowledges, connections and priorities that are currently not recognised in ocean governance processes in South Africa. Specifically, the ABPR proved useful in highlighting strong spiritual and traditional connections to the ocean and facilitating direct engagements and social learning processes between various ocean priorities to start bridging the gap between ILKS, marine science and ocean decision-making. Furthermore, the ABPR was valuable in mapping sociocultural priorities and interactions with the ocean, which could inform more inclusive and equitable MSP and MPAs processes. The ABPR surfaced opportunities for cognitive justice, where ILKS holders could own the knowledge production process, and identify opportunities for greater co-management in ocean decision-making. The insights from the research are relevant for several disciplines, research practices, and ocean governance processes. In summary, the ABPR process was useful to identify practical approaches and pathways necessary for embracing and working with the complexity of social-ecological marine systems and the plurality of ocean knowledges for more equitable ocean futures. , Thesis (DPhil) -- Faculty of Business and Economic Sciences, School of Economics, Development and Tourism, 2023
- Full Text:
- Date Issued: 2023-12
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