The horizontal application of the environmental right to Juristic persons at sea

Maseka, Ntemesha Mwila

Title: The horizontal application of the environmental right to Juristic persons at sea
Creator: Maseka, Ntemesha Mwila
Subject: Environmental law--South Africa
Subject: Marine Living Resources Act
Subject: Marine environment
Date Issued: 2024-04
Date: 2024-04
Type: Doctorial theses
Type: text
Identifier: http://hdl.handle.net/10948/66098
Identifier: vital:74350
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.
Description: Thesis (LLD) -- Faculty of Law, 2024
Format: computer
Format: online resource
Format: application/pdf
Format: 1 online resource (503 pages)
Format: pdf
Publisher: Nelson Mandela University
Publisher: Faculty of Law
Language: English
Rights: Nelson Mandela University
Rights: All Rights Reserved
Rights: Open Access

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