Browsing by Author "Scholtz, Werner"

Now showing 1 - 16 of 16
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    Addressing climate change through international human rights law: From (extra) territoriality to common concern of humankind
    (Cambridge University Press, 2022) Bellinkx, Vincent; Casalin, Deborah; Scholtz, Werner
    International human rights law (IHRL) offers potential responses to the consequences of climate change. However, the focus of IHRL on territorial jurisdiction and the causation-based allocation of obligations does not match the global nature of climate change impacts and their indirect causation. The primary aim of this article is to respond to the jurisdictional challenge of IHRL in the context of climate change, including its indirect, slow-onset consequences such as climate change migration. It does so by suggesting a departure from(extra)territoriality and an embrace of global international cooperation obligations in IHRL.
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    Agenda 2030: A South African perspective on the sustainable development goals
    (University of Western Cape, 2020) Ceaser, Cheslyn Craig; Scholtz, Werner
    Environmental degradation and the impacts on sustained life for all on Earth has become a global concern. Climate change illustrates one of the Anthropocene affects on continued life for both human and non-humans. The global recognition of the importance of addressing climate change in light of Sustainable development has been well noted in international instruments inter alia the Kyoto Protocol, The Rio Declaration and the Paris Agreement. In recognizing the importance of continued sustainable development on Earth, various soft law goals were adopted.
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    The Bill of Rights as the cornerstone of environmental justice in South Africa : an analysis of section 24
    (University of the Western Cape, 2015) Dheka, Lawrence; Scholtz, Werner
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    “Compliance and enforcement: The Legal Suitability of the Utilisation of Criminal Sanctions in South African Environmental Law”
    (University of the Western Cape, 2020) Davids, Fuad Aldred; Scholtz, Werner
    In this thesis I analysed the suitability and effectiveness of the criminal sanction with regards to compliance and enforcement in South African environmental law. My central argument is that the criminal sanction is not the perfect mechanism to address compliance and enforcement in South African environmental law sufficiently. Compliance and enforcement of South African environmental law has been a stumbling block for years since the implementation of the first piece of environmental legislation. Thus I explored compliance and enforcement in South Africa and identified the various issues that might be the reasons why compliance and enforcement in South African environmental law is not up to standard. I also analysed criminal environmental enforcement and came to the conclusion that criminal law is not suitable for the exclusive enforcement of environmental law. The conclusion was drawn by also analysing the criminal environmental enforcement statistics and the administrative compliance and civil action statistics of 2014-2019 in South Africa. Criminal law possesses too many inherent weaknesses and with our overcrowded criminal justice system there is no capacity for presiding officers to properly apply their mind when adjudicating environmental offences Thus I explored the alternatives to the criminal sanction and discussed and evaluated the different compliance and enforcement mechanisms in our legislative framework. I came to the conclusion that our legislative framework is sufficient to deal with environmental offences and that no new pieces of legislation need to be passed. There are various other compliance and enforcement mechanisms within our legislative framework that are better suited to deal with environmental offences.I came to the conclusion that the reasons for South Africa’s failure in compliance and enforcement in environmental law is due to those responsible for compliance and enforcement lacking the necessary capacity, skill and resources to firstly ensure that the laws are complied with and enforce it when it is not complied with. I also argue for the resurrection of environmental courts in South Africa in light of the successes in foreign jurisdictions. My concluding argument is that the criminal sanction still has a role to play in environmental compliance and enforcement in South Africa, however not as a primary mechanism.
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    “Compliance and enforcement: The Legal Suitability of the Utilisation of Criminal Sanctions in South African Environmental Law”
    (University of the Western Cape, 2020) Davids, Fuad Aldred; Scholtz, Werner
    In this thesis I analysed the suitability and effectiveness of the criminal sanction with regards to compliance and enforcement in South African environmental law. My central argument is that the criminal sanction is not the perfect mechanism to address compliance and enforcement in South African environmental law sufficiently. Compliance and enforcement of South African environmental law has been a stumbling block for years since the implementation of the first piece of environmental legislation. Thus I explored compliance and enforcement in South Africa and identified the various issues that might be the reasons why compliance and enforcement in South African environmental law is not up to standard. I also analysed criminal environmental enforcement and came to the conclusion that criminal law is not suitable for the exclusive enforcement of environmental law. The conclusion was drawn by also analysing the criminal environmental enforcement statistics and the administrative compliance and civil action statistics of 2014-2019 in South Africa. Criminal law possesses too many inherent weaknesses and with our overcrowded criminal justice system there is no capacity for presiding officers to properly apply their mind when adjudicating environmental offences Thus I explored the alternatives to the criminal sanction and discussed and evaluated the different compliance and enforcement mechanisms in our legislative framework. I came to the conclusion that our legislative framework is sufficient to deal with environmental offences and that no new pieces of legislation need to be passed. There are various other compliance and enforcement mechanisms within our legislative framework that are better suited to deal with environmental offences.I came to the conclusion that the reasons for South Africa’s failure in compliance and enforcement in environmental law is due to those responsible for compliance and enforcement lacking the necessary capacity, skill and resources to firstly ensure that the laws are complied with and enforce it when it is not complied with. I also argue for the resurrection of environmental courts in South Africa in light of the successes in foreign jurisdictions. My concluding argument is that the criminal sanction still has a role to play in environmental compliance and enforcement in South Africa, however not as a primary mechanism.
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    The environment and the Sustainable Development Goals: ‘We are on a road to nowhere
    (Edward Elgar, 2018) Scholtz, Werner; Barnard, Michelle
    The 17 Sustainable Development Goals (SDGs) collectively embody the global stance on the economic, social and environmental actions needed to achieve sustainable development. With reference to the environmental component of the SDG framework, one sees that four distinct Goals pertaining to different elements of planet earth, namely: the atmosphere (SDG 13), water resource – both fresh (SDG 6) and marine (SDG 14), as well as biodiversity (SDG 15) are included. The deconstruction of the environment in this way is strongly criticized by some as a step back from the single Millennium Development Goal (MDG) dealing with environmental sustainability (MDG 7) contained in the Millennium Declaration, 2000. The current approach to achieving sustainable development is now fragmented along the lines of the above-mentioned silo-ist division. Another point of criticism against the SDGs framework is the lack of explicit reference to international legal instruments pertaining to individual SDGs. This general critique is to some extent also true of the specific environmental SDGs where we see little cross-referencing to international environmental law that could provide a more solid legal base for the enforcement of the SDGs – which are legally non-binding. It is, however, possible to read in implicit references to a number of international environmental law instruments when analysing the wording of the Targets which underpin the individual environmental SDGs. In this chapter the legal nature of the SDGs, the fragmentation of the environment and the potential role of binding international law in solidifying the legal nature of the 2030 Agenda will be discussed in order to answer the question we pose in the title: the environment and the SDGs – are we on a road to nowhere?
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    The environment as a casualty of war: the role of the African union regulatory framework towards securing environmental protection during armed conflicts
    (2013) Kentaro, Charlyn; Scholtz, Werner
    This mini-thesis analyses the international legal framework governing the protection of the natural environment during armed conflicts. It critically examines the normative rules in international humanitarian law and international environmental law in respect of environmental damage during armed conflicts and it highlights the strengths and shortcomings of international law in this regard. Furthermore, this thesis investigates how the regulatory structures of the African Union (AU) address the problem of environmental damage during armed conflict. It draws on the aforementioned analyses to determine how regional law in Africa differs from the international regime and in what ways the regional framework may serve to complement the international legal regime in order to strengthen the protection of the environment during armed conflict on the continent.
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    The environment as a casualty of war: the role of the African union regulatory framework towards securing environmental protection during armed conflicts
    (2013) Kentaro, Charlyn; Scholtz, Werner
    This mini-thesis analyses the international legal framework governing the protection of the natural environment during armed conflicts. It critically examines the normative rules in international humanitarian law and international environmental law in respect of environmental damage during armed conflicts and it highlights the strengths and shortcomings of international law in this regard. Furthermore, this thesis investigates how the regulatory structures of the African Union (AU) address the problem of environmental damage during armed conflict. It draws on the aforementioned analyses to determine how regional law in Africa differs from the international regime and in what ways the regional framework may serve to complement the international legal regime in order to strengthen the protection of the environment during armed conflict on the continent.
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    Equity
    (Oxford University Press, 2021) Scholtz, Werner
    This chapter critically analyses the notion of equity in international environmental law. It begins by discussing the meaning of equity in international law and briefly reflecting on familiar examples of the manifestation of equity in international environmental law treaties. The prominence of intergenerational and intra-generational equity in international environmental law warrants a subsequent critical analysis of the content, legal status, and relationship between these forms of equity. This discussion indicates that although the two components of equity may prima facie be in conflict, they constitute important complementary aspects of sustainable development. The chapter then calls for the progressive development of aspects of intra-generational and intergenerational equity that may have profound consequences for international environmental law.
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    Global environmental governance: is there a need for a global environmental organisation?
    (University of the Western Cape, 2014) Kasker, Muhammad Sameer; Scholtz, Werner
    In order to address the challenge of global environmental degradation and natural resource depletion, a complex and multi-layered environmental governance structure has materialised over the past few decades. There is widespread agreement that the current international environmental regime is too complex and inadequate to effectively address global environmental challenges. Thus, in order to control the threat of environmental degradation, many countries, authors, commentators and academics alike have opined that one centralised body be created for the effective control and governance of environmental matters on an international level. Governance is not the same as government. It includes the actions of the state and, in addition, encompasses actors such as communities, businesses, and Non-Governmental Organisations (hereafter referred to as NGOs). Within the context of the evolution of global environmental politics and policy, the end goal of global environmental governance is to improve the state of the environment and to eventually lead to the broader goal of sustainable development. The efficacy of global environmental governance will ultimately depend on implementation at global and domestic levels. National implementation is the ultimate key, both to the efficacy of the GEG system and to meaningful environmental improvements. In the following composition, I will critically analyse the concept of a Global Environmental Organisation (hereafter referred to as a GEO) and discuss whether the formation of such an establishment is indeed necessary to handle environmental matters on an international scale.
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    Global environmental governance: is there a need for a global environmental organisation?
    (University of the Western Cape, 2014) Kasker, Muhammad Sameer; Scholtz, Werner
    In order to address the challenge of global environmental degradation and natural resource depletion, a complex and multi-layered environmental governance structure has materialised over the past few decades. There is widespread agreement that the current international environmental regime is too complex and inadequate to effectively address global environmental challenges. Thus, in order to control the threat of environmental degradation, many countries, authors, commentators and academics alike have opined that one centralised body be created for the effective control and governance of environmental matters on an international level. Governance is not the same as government. It includes the actions of the state and, in addition, encompasses actors such as communities, businesses, and Non-Governmental Organisations (hereafter referred to as NGOs). Within the context of the evolution of global environmental politics and policy, the end goal of global environmental governance is to improve the state of the environment and to eventually lead to the broader goal of sustainable development. The efficacy of global environmental governance will ultimately depend on implementation at global and domestic levels. National implementation is the ultimate key, both to the efficacy of the GEG system and to meaningful environmental improvements. In the following composition, I will critically analyse the concept of a Global Environmental Organisation (hereafter referred to as a GEO) and discuss whether the formation of such an establishment is indeed necessary to handle environmental matters on an international scale.
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    Injecting compassion into international wildlife law: from conservation to protection?
    (Cambridge University Press, 2017) Scholtz, Werner
    International wildlife law is concerned with the conservation of sentient species, but generally ignores the welfare of individual animals. It therefore does not reflect a recognition of the moral worth of animals and perpetuates the dichotomy between conservation and welfare. It is the primary goal of this article to ascertain how welfare concerns may be incorporated into international wildlife law in order to ensure that it takes cognizance of the moral worth of animals. The article advocates an injection of ethics, via a welfare-centric approach, into wildlife law in order to escape the dichotomy between conservation and welfare in relation to wild animals, and so to advance the progressive development of law that is conducive to wildlife protection rather than merely to its conservation.
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    The North –South divide in international environmental law after the Paris agreement
    (University of the Western Cape, 2021) Geldenhuys, Benjamin Basson; Scholtz, Werner
    Global climate change is a serious, severe, and potentially irreversible problem. If no actions are taken to curb greenhouse gas emissions, global temperatures and sea levels will rise, wreaking havoc on earth, particularly in developing countries. The Stockholm Declaration of 1972 facilitated the first international consensus concerning the application of CBDR to international environmental problems. This was in reaction to the developing countries refusal to adhere to the same standards as the developed countries as they perceived this as a burden to their economic growth, which is unjust due to the developed countries historical culpability.
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    The North –South divide in international environmental law after the Paris agreement
    (University of the Western Cape, 2021) Geldenhuys, Benjamin Basson; Scholtz, Werner
    Global climate change is a serious, severe, and potentially irreversible problem. If no actions are taken to curb greenhouse gas emissions, global temperatures and sea levels will rise, wreaking havoc on earth, particularly in developing countries. The Stockholm Declaration of 1972 facilitated the first international consensus concerning the application of CBDR to international environmental problems. This was in reaction to the developing countries refusal to adhere to the same standards as the developed countries as they perceived this as a burden to their economic growth, which is unjust due to the developed countries historical culpability.
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    The reconciliation of transnational economic, social and cultural human rights via the common interest
    (VerLoren Van Themaat Centre, 2012) Scholtz, Werner
    In general, human rights obligations are restricted to states' actions within their own territory in relation to their own citizens and residents. However, article 55(c) of the Charter of the United Nations refers to the promotion of 'universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion', while article 56 affirms that '[a]ll Members pledge themselves to take joint and separate action, in cooperation with the Organisation, for the achievement of the purposes set forth in article 55'. Thus, states must promote human rights both individually and jointly. Furthermore, the Vienna Declaration affirms that the promotion and protection of human rights is a legitimate concern of the international community. Therefore, the implementation of human rights is clearly not a purely domestic matter. This is also evident from the horizontal operation of human rights between states as it is actually states which are the principal addressees of international human rights law. Inter-state complaint procedures are used to 'act in the common interest of protecting human rights'. Furthermore, jurisprudence, international treaties, soft law, and customary international law provide examples of a progressive development of the extension of the scope of human rights obligations beyond state borders. In particular, the International Covenant on Economic, Social and Cultural Rights (ICESCR), has interesting provisions which reveal that the 'existence of extraterritorial obligations in relationship to international cooperation and assistance based on specific provisions of the Covenant [is] clear'.
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    Sustainable Development Goal 6: A watershed moment for ensuring sustainable freshwater development and management?
    (University of the Western Cape, 2018) Kasker, Muhammad Sameer; Scholtz, Werner
    Water is at the very core of sustainable development, critical for a thriving people, planet and prosperity. Water is regarded as a public good which is fundamental for health and life. Water is so important that it was debated as being a basic human right on many international platforms. Water access has plagued many parts of the world for a long period of time. In recent years, there have been increasingly urgent warnings of a global water crisis, as the human species consistently uses more water than is sustainably available. The international community tried to work towards overcoming these water-related issues by establishing the then Millennium Development Goals (hereafter referred to as MDGs), with MDG7.C focusing on access to safe drinking water. Even though MDG7.C was achieved in part, issues still remained regarding water access and quality. Sustainable Development Goal 6 (hereafter referred to as SDG 6) was then introduced and the scope of SDG6 is much wider than its predecessor, since the water access and scarcity problems are still prevalent today. The 2030 Agenda for Sustainable Development includes a dedicated goal on water and sanitation that sets out to ensure availability and sustainable management of water and sanitation for all. SDG6 expands the MDG focus on drinking water to now cover the entire water cycle, including the management of water, wastewater and ecosystem resources, with water at the very core of sustainable development. The goal has, in essence, extended to include a much broader spectrum of issues that need to be solved which, in essence, unravels even more challenges along the way. As a result, it is imperative to determine whether SDG6 can allow for actual sustainable development in terms of freshwater resources. Thus, this thesis will discuss the advent of the Sustainable Development Goals (hereafter referred to as SDGs), in particular SDG6, as well as analyse how SDG6 impacts on International Environmental Law, with particular emphasis on International Freshwater Law. The main aim of this research is to determine whether the creation and implementation of SDG6 can result in overall freshwater sustainability and whether this can result in the furtherance of sustainable development.