Marine spatial planning by the state as trustee of coastal public property
- Authors: Chasakara, Rachael Sharon
- Date: 2023-04
- Subjects: Marine spatial planning , State committee , Coastal Public Property
- Language: English
- Type: Doctoral's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60818 , vital:67845
- Description: The world is facing an unprecedented biodiversity crisis, endangering human wellbeing, human rights, and the future of life on Earth. This is because the state of the ocean is deteriorating due to increased human activities, which have resulted in the destruction of limited marine resources in terms of space, time, and quantity. Marine spatial planning (MSP) and the public trust doctrine are two concepts that have been proposed to address this ecological crisis. The relatively new notion of MSP has emerged as a comprehensive way to allocate ocean use in space and time to improve coordination and deliver a more sustainable use of the ocean space. While different States have utilised the public trust doctrine to manage trust resources for the exclusive benefit of their current and future citizens. The thesis examines the MSP process and the public trust doctrine in international law to determine international obligations that can be relied on to ensure State compliance at a domestic level. It was determined that MSP and the public trust doctrine are only implicit in certain international law instruments. The thesis further sets out to examine whether both approaches must be explicitly mentioned in binding international law instruments. The thesis is expected to determine whether the South African environmental law regime includes the public trust doctrine – expressly or impliedly. The public trust doctrine is not expressly provided for in the Constitution since section 24 contains an implicit duty. The implicit duty is a constitutional human rights imperative applicable to all environmental management statutes. The picture in South Africa’s environmental legislation differs because the public trust doctrine is expressly mentioned, albeit in different terminology in several environmental law statutes dealing with specific natural resources. However, the legislature failed to include an express public trust provision in the Marine Spatial Planning Act (MSPA). 1 The thesis then embarks on a journey of statutory interpretation. It examines the applicable canons of interpretation to determine whether the MSPA supports or contradicts the public trust doctrine. An implicit public trust duty was found in the MSPA. This exercise also led to the conclusion that the trusteeship clause in National Environmental Management: Integrated Coastal Management Act (NEM: ICMA) also applies in the same geographical area as the MSP Act. Moreover, there is no provision in NEM: ICMA requiring its provisions to be applied or read in accordance with MSP regulation. However, a thorough examination of the NEM: ICMA and MSPA provisions leads to the conclusion that there will be no conflict if both instruments are read together. The most significant finding of this thesis is that, due to the provisions of both statutes, the State, a trustee in NEM: ICMA, is also a trustee in the MSPA. Finally, the combination of MSP and the public trust doctrine in MSP regulation may have several positive impacts, which include useful intervention for the existential crisis that underpins South Africa’s maritime domain and the promotion of sustainable development of the ocean space for both current and future generations. MSP and the public trust doctrine should be used in tandem to ensure that the ocean space is developed sustainably for current and future generations. This thesis demonstrated that the ultimate impact of the State’s implementation of MSP on the relevant State actors is that they must constantly remind themselves of the full implications of their role as trustees of coastal public property to avoid violating their public trust duties. , Thesis (LLD) -- Faculty of Law, School of School of Public Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Chasakara, Rachael Sharon
- Date: 2023-04
- Subjects: Marine spatial planning , State committee , Coastal Public Property
- Language: English
- Type: Doctoral's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60818 , vital:67845
- Description: The world is facing an unprecedented biodiversity crisis, endangering human wellbeing, human rights, and the future of life on Earth. This is because the state of the ocean is deteriorating due to increased human activities, which have resulted in the destruction of limited marine resources in terms of space, time, and quantity. Marine spatial planning (MSP) and the public trust doctrine are two concepts that have been proposed to address this ecological crisis. The relatively new notion of MSP has emerged as a comprehensive way to allocate ocean use in space and time to improve coordination and deliver a more sustainable use of the ocean space. While different States have utilised the public trust doctrine to manage trust resources for the exclusive benefit of their current and future citizens. The thesis examines the MSP process and the public trust doctrine in international law to determine international obligations that can be relied on to ensure State compliance at a domestic level. It was determined that MSP and the public trust doctrine are only implicit in certain international law instruments. The thesis further sets out to examine whether both approaches must be explicitly mentioned in binding international law instruments. The thesis is expected to determine whether the South African environmental law regime includes the public trust doctrine – expressly or impliedly. The public trust doctrine is not expressly provided for in the Constitution since section 24 contains an implicit duty. The implicit duty is a constitutional human rights imperative applicable to all environmental management statutes. The picture in South Africa’s environmental legislation differs because the public trust doctrine is expressly mentioned, albeit in different terminology in several environmental law statutes dealing with specific natural resources. However, the legislature failed to include an express public trust provision in the Marine Spatial Planning Act (MSPA). 1 The thesis then embarks on a journey of statutory interpretation. It examines the applicable canons of interpretation to determine whether the MSPA supports or contradicts the public trust doctrine. An implicit public trust duty was found in the MSPA. This exercise also led to the conclusion that the trusteeship clause in National Environmental Management: Integrated Coastal Management Act (NEM: ICMA) also applies in the same geographical area as the MSP Act. Moreover, there is no provision in NEM: ICMA requiring its provisions to be applied or read in accordance with MSP regulation. However, a thorough examination of the NEM: ICMA and MSPA provisions leads to the conclusion that there will be no conflict if both instruments are read together. The most significant finding of this thesis is that, due to the provisions of both statutes, the State, a trustee in NEM: ICMA, is also a trustee in the MSPA. Finally, the combination of MSP and the public trust doctrine in MSP regulation may have several positive impacts, which include useful intervention for the existential crisis that underpins South Africa’s maritime domain and the promotion of sustainable development of the ocean space for both current and future generations. MSP and the public trust doctrine should be used in tandem to ensure that the ocean space is developed sustainably for current and future generations. This thesis demonstrated that the ultimate impact of the State’s implementation of MSP on the relevant State actors is that they must constantly remind themselves of the full implications of their role as trustees of coastal public property to avoid violating their public trust duties. , Thesis (LLD) -- Faculty of Law, School of School of Public Law, 2023
- Full Text:
- Date Issued: 2023-04
Constitutional and human-rights aspects of marine spatial planning
- Authors: Chasakara, Rachael Sharon
- Date: 2018
- Subjects: Human rights , Marine resources development -- Law and legislation Law of the sea
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23470 , vital:30566
- Description: The importance of oceans cannot be overstated as they are vital for the environmental and economic well-being of South Africa. The state of South Africa’s ocean is on the decline due to increased human activities within its waters, which have caused devastation among marine resources that are limited in space, time and amount. These activities have caused elevated competition among ocean users resulting in undesirable effects such as loss of biodiversity. The challenge is not that these human activities are unregulated or unplanned, rather that there are planned and regulated on a sectoral basis by different sectors each with its own specific approach to the allocation and use of the ocean space. There is, therefore, a need for a holistic approach to ocean governance that views the ocean as a whole and not merely on a sectoral basis. The relatively new notion of Marine Spatial Planning (MSP) which establishes its authority in MSP instruments,1 has emerged as a comprehensive way to achieve this. This dissertation grapples with the questions surrounding whether the MSP instruments are consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution). The dissertation departs by providing a background into the spatial jurisdiction of coastal states in the ocean space to clarify how far at sea South Africa can exercise its authority. This study concluded that even though the area of application claimed by the MSP Bill is consistent with the internationally prescribed territory of coastal states at sea, the MSP Bill should expressly state the different sovereign rights vested in coastal states by the United Nations Convention on the Law of the Sea, 1982 (‘the LOSC’) subject to the rights of other states in these waters. From here, the dissertation ventures into an analysis of which organs of state will be responsible for the development and implementation of MSP since it is an exercise of public power by the state. This part of the discussion involves inter alia an in-depth analysis of the separation of powers doctrine as far as planning matters are concerned. An essential premise is that MSP regulation requires all spheres of government to cooperate with each other. It is proposed that the MSP Bill should 1 The MSP Bill, GN 347 in GG 39847 of 2016-03-24 and the National MSP Framework for South Africa, GN 936 in GG 40219 of 2016-08-19. provide how these spheres of government should work together for the successful implementation of MSP. This dissertation then proceeds to discuss the right to equality, the environmental right, and the right to freedom of trade, occupation and profession which could potentially be impacted by the implementation of MSP. It is submitted that in the implementation of MSP, the goal must be to achieve an appropriate balance amongst these competing rights. Finally, considering the above analysis and discussions this dissertation moves to propose recommendations on how the MSP instruments can be amended to give effect to the requirements of these rights. Generally, the findings of this research reflect the consistency of the MSP instruments with the Constitution. However, for MSP to be implemented constitutionally, the proposed recommendations must be adhered to.
- Full Text:
- Date Issued: 2018
- Authors: Chasakara, Rachael Sharon
- Date: 2018
- Subjects: Human rights , Marine resources development -- Law and legislation Law of the sea
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23470 , vital:30566
- Description: The importance of oceans cannot be overstated as they are vital for the environmental and economic well-being of South Africa. The state of South Africa’s ocean is on the decline due to increased human activities within its waters, which have caused devastation among marine resources that are limited in space, time and amount. These activities have caused elevated competition among ocean users resulting in undesirable effects such as loss of biodiversity. The challenge is not that these human activities are unregulated or unplanned, rather that there are planned and regulated on a sectoral basis by different sectors each with its own specific approach to the allocation and use of the ocean space. There is, therefore, a need for a holistic approach to ocean governance that views the ocean as a whole and not merely on a sectoral basis. The relatively new notion of Marine Spatial Planning (MSP) which establishes its authority in MSP instruments,1 has emerged as a comprehensive way to achieve this. This dissertation grapples with the questions surrounding whether the MSP instruments are consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution). The dissertation departs by providing a background into the spatial jurisdiction of coastal states in the ocean space to clarify how far at sea South Africa can exercise its authority. This study concluded that even though the area of application claimed by the MSP Bill is consistent with the internationally prescribed territory of coastal states at sea, the MSP Bill should expressly state the different sovereign rights vested in coastal states by the United Nations Convention on the Law of the Sea, 1982 (‘the LOSC’) subject to the rights of other states in these waters. From here, the dissertation ventures into an analysis of which organs of state will be responsible for the development and implementation of MSP since it is an exercise of public power by the state. This part of the discussion involves inter alia an in-depth analysis of the separation of powers doctrine as far as planning matters are concerned. An essential premise is that MSP regulation requires all spheres of government to cooperate with each other. It is proposed that the MSP Bill should 1 The MSP Bill, GN 347 in GG 39847 of 2016-03-24 and the National MSP Framework for South Africa, GN 936 in GG 40219 of 2016-08-19. provide how these spheres of government should work together for the successful implementation of MSP. This dissertation then proceeds to discuss the right to equality, the environmental right, and the right to freedom of trade, occupation and profession which could potentially be impacted by the implementation of MSP. It is submitted that in the implementation of MSP, the goal must be to achieve an appropriate balance amongst these competing rights. Finally, considering the above analysis and discussions this dissertation moves to propose recommendations on how the MSP instruments can be amended to give effect to the requirements of these rights. Generally, the findings of this research reflect the consistency of the MSP instruments with the Constitution. However, for MSP to be implemented constitutionally, the proposed recommendations must be adhered to.
- Full Text:
- Date Issued: 2018
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