- Title
- Marine spatial planning by the state as trustee of coastal public property
- Creator
- Chasakara, Rachael Sharon
- Subject
- Marine spatial planning
- Subject
- State committee
- Subject
- Coastal Public Property
- Date Issued
- 2023-04
- Date
- 2023-04
- Type
- Doctoral's theses
- Type
- Thesis
- Identifier
- http://hdl.handle.net/10948/60818
- Identifier
- 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.
- Description
- Thesis (LLD) -- Faculty of Law, School of School of Public Law, 2023
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (xvi, 305 pages)
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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NMU Department of Public Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | Chasakara, RS (2).pdf | 2 MB | Adobe Acrobat PDF | View Details Download |