AN EVALUATION OF THE INDONESIAN LAW AND POLICY ON SMALL-SCALE FISHERIES*

Melda Kamil Ariadno** and Fitri Amelina***

ABSTRACT

Fisheries play an important role in food security, especially in Indonesia. Two-thirds of the land area is covered by sea and its coastal community is the largest one among the Indonesian communities. Data obtained from the Ministry of Fisheries and Marine Affairs in 2011 shows that 95 per cent of the operators in the Indonesian fisheries sub-sector operated on the small-scale and 42 per cent of them were women. Small-scale fisheries provide a great contribution to the food security of Indonesia and the world, either in the context of fulfilling animal protein needs or providing a basis for the local, national, and international-scale trade in fisheries products. The Indonesian fishing community contributes to the 90 per cent total amount of world fishers, of which half are women (FAO, 2012). To improve this small-scale fishing, the Food and Agriculture Organization (FAO) has initiated the adoption of ‘International Guidelines for Securing Sustainable Small-Scale Fisheries.’ It is still in negotiation regarding the main principles that are to be implemented by states in securing the sustainability of small-scale fisheries and figuring out the solutions that need to be taken by Indonesia to improve the living standard of the small-scale fisherman/woman. The article aims to provide problems identification, regulations assessment, and recommendations on small-scale fisheries in Indonesia.

Keywords: Small-scale fisheries, international regulation, Indonesia.

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.3

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* This article is the outcome of the research funded by the University of Indonesia on a giveaway scheme (Small Scale Fisheries) led by Melda Kamil Ariadno alongside with the research team members, namely, Mutiara Hikmah, Sammira Assovie, Fitri Amelina and Miftahul Khairi.

** Professor of International Law, Department of International Law, Faculty of Law, Universitas Indonesia. Director of the Center for International Law Studies and Editor-in-Chief of the Indonesian Journal of International Law, Faculty of Law Universitas Indonesia.

*** Junior Researcher on Center for International Law Studies, Faculty of Law Universitas Indonesia.

RENEWABLE ENERGY IN UKRAINE: TOWARDS NATIONAL ECO-MANAGEMENT

Katerina Fedorova*

ABSTRACT

The national energy security and independence issue is currently the most important problem in Ukraine. Continuous political games around traditional energy import sources exhaust the Ukrainian economy and lead to a systemic crisis. Ukraine has a huge natural potential for the development of green economy, but sustainable development in Ukraine is still at the initial stage of its evolution. Certainly, the transition to renewable energy technologies will be an effective solution to the key energy, environmental, social and political crises in Ukraine. Thus, the main attention of the author is focused on the renewable energy sources, including solar, wind, hydro, biomass and geothermal. It is emphasized that Ukraine has its national production of technical equipment for each of these areas of renewable energy. Along with alternative energy development issues, the author opens a wide panorama of current political, economic, social and security problems in Ukraine, which are deeply interdependent. The author argues that at its current level of development, Ukraine needs a comprehensive update of national ecomanagement strategy and a rational use of the potential natural programme. This will help the country to overcome the crisis permanently, transit from being a consumerist economic model towards an environmentally sustainable economic development and to integrate completely into Euro-Atlantic structures.

Keywords: renewable energy, sustainable development, eco-management, eco-economy, Ukraine.

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.2

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* PhD (Political Science, Ukraine), Member of the International Scientific Committee, ‘Zwiastowaæ. Nauki i praktyki’, Warsaw, Poland. www.fedorova@gmail.com

ADDRESSING ENVIRONMENTAL CONTAMINATION THROUGH MARKET REGULATIONS: COMPARATIVE LESSONS FROM THE UNITED STATES AND THE EUROPEAN UNION

Alexandra Rosenbluth* Latravia Smith**

ABSTRACT

The existing legal frameworks in the United States (US) and the European Commission (EC) that regulate industrial chemicals represent divergent methods for controlling market entry, market restriction, and subsequent regulatory oversight when enforcement of these mechanisms fail. Contrary to the prevailing view that the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) law, which amended the US Toxic Substances Control Act (TSCA), is the ‘gold standard’ for chemical regulation, the central premise of this article is that the Frank R. Lautenberg Chemical Safety Act for the 21st Century provides unique opportunities for preventing environmental releases from new and existing chemical substances, which amounts to, if not more stringent, than REACH.

Keywords: REACH, TSCA, Lautenberg, toxic chemicals.

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.1

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* Graduated from the College of William & Mary in 2015 where she majored in Government and Environmental Science & Policy. Alexandra is now a community organizer at a small non-profit working on a just transition to renewable energy in Southern Oregon. During the summer of 2014, she served as a Policy Fellow at the U.S. Environmental Protection Agency’s Office of Pollution Prevention & Toxics.

** A student at Florida A&M College of Law, Juris Doctor candidate, class of 2017. She is currently enrolled in the Center for International Law and Justice, which focuses on international and comparative law of developing nations. This past summer, she served as an Honors Law Clerk at the U.S. Environmental Protection Agency’s Office of Enforcement Compliance Assurance. The information presented herein is a synthesis of their research. Note: the views and opinions expressed represent those of the authors and not necessarily those of the College of William & Mary, Florida A&M University College of Law, nor the U.S. Environmental Protection Agency

THE LEGAL STATUS OF SUSTAINABLE DEVELOPMENT IN THE NIGERIAN ENVIRONMENTAL LAW

Emmanuel E. Okon*

ABSTRACT

Sustainable development underpins environmental governance in all jurisdictions, but its legal status is still controversial. The major problem which Nigerian courts and policy-makers will continue to face when implementing and enforcing sustainable development in environmental governance is whether it is a moral or legal concept and, if it is the latter, whether it has metamorphosed into a legal principle or the rule of law having a normative value. This article argues that the legal status of sustainable development in Nigeria depends on which legal instrument it is incorporated and whether it is expressed in a general or specific mandatory language. Also, its legal status depends on the pronouncements of Nigerian courts on it. Methodologically, the qualitative content analysis is used to ascertain the legal status of sustainable development in the statutes and case law examined. In order to enhance the implementation and enforcement of sustainable development in the Nigerian environmental law, the conclusion of this article adopted as recommendations the latter part of its argument that sustainable development should be made an essential part of the right to life, the relevant constitutional provisions on the environmental should be amended to reflect it and, in addition, section 20 of the Constitution of the Federal Republic of Nigeria 1999 should be transferred to Chapter IV of the Constitution, which deals with fundamental human rights.

Keywords: Sustainable development, legal status, implementation, enforcement and qualitative content analysis.

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.6

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* LL.B (UniUyo); LL.M, MBA (Ife); MILR (Ibadan); PhD (Wales); BL; Senior

Research Fellow and Head, International Law Department, Nigerian Institute of Advanced Legal Studies, University of Lagos Campus, Akoka, Yaba, Lagos, Nigeria. emmyokon@yahoo.com.

HUMAN SECURITY IN THE NIGER DELTA: EXPLORING THE INTERPLAY OF RESOURCE GOVERNANCE, COMMUNITY STRUCTURE AND CONFLICTS

Olayinka Ajala*

ABSTRACT

Prior to August 2009, the Niger Delta region of Nigeria witnessed widespread violent conflicts between the government, multinational oil corporations (MNCs) and militant groups. This conflict was widely attributed to deplorable human security, which deprived the indigenes of the region access to their sources of livelihoods due to pollution, by MNCs. In 2009, the government granted amnesty to thousands of ‘repentant militants’ and this programme has achieved mixed results. This article will explore the impact of human security on the outbreak of violence in the Niger Delta and the impact of the Amnesty Programme in addressing issues relating to human security. The article concludes that bottom-up community-driven initiatives offer the best approach to address human security issues in the Niger Delta. The article is based on an ethnographic research carried out in 2013 in three states in the region (Bayelsa, Delta and Rivers states).

Keywords: Human security, justice, environment, Niger Delta, MNCs

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.5

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* Department of Politics, University of York, email: oaa511@york.ac.uk

DISTRIBUTIVE JUSTICE AND HUMAN RIGHTS IN CLIMATE POLICY: THE LONG ROAD TO PARIS

Idowu Ajibade*

ABSTRACT

The Paris Agreement, adopted by 196 countries, is the first global climate change instrument to explicitly reference human rights as a guiding principle. The treaty does not expound on the implications of climate change for human rights but the fact that it calls on State Parties to respect human rights when combating climate change shows a significant improvement in international thinking and acceptance of the linkages between human rights and climate change. Indeed, this is no mean feat. The journey to Paris has been a long and arduous process, especially for the broad coalition of indigenous people, gender, human rights, environmental and climate justice groups that worked tirelessly to bring the issue to global focus. My goal in this article is to explore the implications of a human rights clause in the Paris Agreement. Does it carry any legal or political weight? Are State Parties likely to operationalize it? In what ways can they enforce this part of the Agreement? To answer these questions, this article traces the historical account of the connections between human rights and climate change within the United Nations system and examines issues of equity and distributive justice in international climate change frameworks such as the UNFCCC, Kyoto Protocol, and the Paris Agreement. The article expounds on opportunities for integrating human rights-based approaches into national and international climate policy and concludes on the need for further integration of both issues in future research and treaty negotiations.

Keywords: Climate change, human rights, justice, policy, Paris Agreement

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.4

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* Postdoctoral Fellow, Balsillie School of International Affairs, Waterloo, Canada. jajibade@balsillieschool.ca.

THE CASE FOR AN ANALYTICAL CONSTRUCTION AND ENFORCEMENT OF DEMAND GUARANTEES IN NIGERIA

Kolawole Mayomi*

ABSTRACT

Demand guarantees are independent collateral undertakings that secure the beneficiary against losses arising from the risk of default in an underlying contract. However, unlike in a true guarantee, the surety’s liability in a demand guarantee is insulated from disputes arising on the underlying contract as it is triggered by the beneficiary’s mere demand for payment, without any need to establish the principal’s default in the underlying contract. A review of Nigerian law reveals a lack of clarity in the construction and enforcement of demand guarantees, such that the courts have largely adopted a blanket approach which erroneously conflates the principles that undergird true guarantees and demand guarantees, and treats the payment obligation arising in both categories of guarantee contracts as the same. The consequence of this approach is to (a) open up the surety in a true guarantee to a primary liability; or (b) impose an onerous obligation upon the beneficiary in a demand guarantee to establish default in an underlying contract before the undertaking may be enforced. This article discusses the need for an analytical approach to the construction and enforcement of demand guarantees in Nigeria. It examines the key normative strengths of this approach which includes the ‘pay now, argue later’ rule, and proposes practical legal reforms through which the analytical approach could be better recognized by Nigerian courts and in Nigerian laws.

Keywords: Demand guarantees, collateral, security, Nigeria

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.11

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* Partner, Disputes Resolution; S.P.A. Ajibade & Co, Lagos, Nigeria. Email: kmayomi@spaajibade.com

THE SEARCH FOR LOCAL GOVERNMENT AUTONOMY IN NIGERIA: LEGAL AND INSTITUTIONAL PATHWAYS TO ITS REALIZATION

Ifeolu J. Koni*

ABSTRACT

This article examines the status of the local government under the tripartite governmental system in Nigeria that has been in operation since 1979. It reviews the various reforms that the administration of local government has gone through from the colonial era till 1999 when the extant Constitution of Nigeria came into force. The article finds that notwithstanding the provision of section 7 of the 1999 Constitution which provides for a system of local government by democratic means, many of the State Governments have continued to set up caretaker committees at this tier of government, thereby denying the grassroots population of the benefits of democratic rule. The creation of the infamous State Joint Local Government Account has rendered the Local Governments totally prostrate as they depend completely on the State Governments for funds needed for their development. The article recommends, inter alia, that section 165 of the 1999 Constitution should be amended with a view to abolishing the State Joint Local Government Account and making the Local Government Councils both politically and financially autonomous.

Keywords: Search, local government, autonomy, pathways and realization

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.8

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* LL.B (Hons), Ilorin, LL.M, PhD (Ife) BL, Barrister and Solicitor of the Supreme Court of Nigeria; Senior Lecturer, College of Law, Afe Babalola University AdoEkiti, Nigeria. Email: ife4law@yahoo.com

IMPLEMENTING ISLAMIC MICROFINANCE IN NIGERIA: A MATTER OF EQUITY AND SOCIAL JUSTICE

Abayomi Al-Ameen*

ABSTRACT

Many hardworking people from unprivileged backgrounds are automatically disadvantaged simply because they lack access to financial capital. Observably, microfinance provides a way out of the poverty trap if it is deployed appropriately. Nigeria, like many other developing countries, has thus taken up the challenge of developing inclusive microfinancing initiatives. In the country, funding for small-scale businesses is available from both the government and the private sector. Unfortunately, the nature and conditions of the schemes fail to meet the sensitivities of a substantial group who would otherwise have been eligible for the grants and loans. The practical implication is that such group would be twice excluded from the financial system. These potentially excluded groups are those poor Muslims who might desire funding but are unable to benefit from the government schemes because the loan conditions contradict their faith. It is argued that the effect of the status quo is that it breeds further inequality and inequity and could even amount to outright (or indirect) discrimination. This contention is substantiated through constitutional analysis and also in light of a contemporary economic welfare theory – the Capability Approach. The article argues that this marginalized group has a right to Islamic microfinance. This right, it is further contended, places justiciable (positive and negative) duty on the government. It, therefore, calls that Islamic microfinance should forthwith be embedded into the fabric of public governance in the country. The article demonstrates the exclusionary problem by analysing some of the existing schemes, and it proffers alternative sharia-compliant conditions for existing schemes.

Keywords: Islamic microfinance; social development, distributive justice; indirect discrimination; constitutional law/human right, capability approach.

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.10

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* Lecturer in Commercial Law, Cardiff School of Law and Politics, Cardiff University, UK.

SUSTAINABLE MANAGEMENT OF NIGERIA’S OIL WEALTH: LEGAL CHALLENGES AND FUTURE DIRECTIONS

Solomon Ekokoi*

ABSTRACT

Oil is a very important resource for Nigeria, as it remains the major economic driver and mainstay of the country. The unsustainable management of Nigeria’s oil wealth, rather than the availability of oil itself, remains the real cause of the challenges confronting the economic performance of the country. This article contributes to the debate on how Nigeria can develop more coherent and sustainable practices in the management of its oil wealth. It examines how policies and rules of law that promote mismanagement, corruption, waste and the fixation with the sharing of oil revenues at the expense of production are unsustainable and unethical practices that may continue to stifle sustainable development in Nigeria. The article discusses the need for stronger legal regimes for the efficient management of Nigeria’s oil wealth, and identifies the roles that active stakeholder engagement, such as the Nigerian public and civil society organizations (CSOs) should play.

Keywords: CSOs, sustainable management, oil wealth, mismanagement, State theft, economic development.

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.7

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*Lecturer in Law, Department of Public Law, Faculty of Law, University of Uyo, Nigeria; e-mail: emmanuelsolomon@uniuyo.edu.ng; ekokoisolomon@yahoo. com. The author is grateful to the anonymous reviewers for their useful comments on the earlier draft. However, any error is the responsibility of the author.

PROTECTING THE RIGHTS OF CHILDREN IN NIGERIA: LEGAL FRAMEWORK FOR THE PROGRESSIVE IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Adekunbi Adeleye*

ABSTRACT

This article evaluates the legal framework for the progressive realization of the International Covenant on Economic, Social and Cultural Rights (ICESR) provisions on socio-economic human rights of children in Nigeria. It reviews the nature, scope and content of children’s rights espoused by the ICESR and then examines how these socio-economic rights of children, both nationals and non-nationals, can be guaranteed and progressively realized within the relevant provisions of Nigerian law and the limited available resources, given that Nigeria is a developing country. The article also discusses how legal barriers posed by the non-justiciability of the socio-economic rights under the fundamental objectives and directive principles of the Nigerian Constitution and other challenges to the full realization of the socio-economic rights can be overcome.

Keywords: Nigeria, children, socio-economic rights, progressive realization, core minimum standard.

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.12

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* LLB, BL, LLM, Lecturer, Kwara State University, Malete, Nigeria, email: kumbexadex@yahoo.com

THE JURISPRUDENCE OF PRODUCT LIABILITY IN NIGERIA: A NEED TO COMPLEMENT THE EXISTING FAULT THEORY

Gbade Akinrinmade*

ABSTRACT

This article argues for the adoption of strict liability principle as an additional theoretical basis of liability, to complement the existing fault theory on product liability claims in Nigeria. The fault theory, which currently is the only theoretical basis of liability, unduly burdens claimants. The reason for this is that such claimants are expected to establish fault despite the lack of insight into the complex processes of production. While establishing fault in cases of manufacturing defect may seem less onerous, it is an uphill task when it concerns design or warning defects. Bearing in mind that a principal rationale of tort law is to ensure that prejudiced parties are compensated for losses suffered, this article explains why it is necessary to assess and review applicable principle of liability in Nigeria to ensure that it is in line with the demands of justice, which should be in conformity with the peculiar circumstances of its operating environment.

Keywords: torts, strict liability, fault, product, consumer

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.9

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* Department of Jurisprudence and International Law, Olabisi Onabanjo University, Ago-Iwoye, Ogun-State, Nigeria. Email: gbadeakinrinmade_co@yahoo.com

REALISING THE AFRICA MINING VISION: THE ROLE OF GOVERNMENT-INITIATED INTERNATIONAL DEVELOPMENT THINK-TANKS

Chilenye Nwapi*

INTRODUCTION

In 2008, the United Nations Economic Commission for Africa (UNECA) and the African Union (AU) established a joint technical taskforce to articulate a mining vision for Africa. The resulting Africa Mining Vision (AMV), which was adopted by African Heads of State and Government in February 2009, was informed by the continent’s recognition of its enormous mineral potential, the importance of mineral resources to Africa’s industrialisation and socioeconomic development, and the fact that in most African countries only very little progress has been made to maximise the opportunities.1

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* Senior Fellow, Institute for Oil, Gas, Energy, Environment and Sustainable Development Afe Babalola University, Nigeria. This article is a revised version of a paper presented at the Southern African Institute of Mining and Metallurgy’s “Mining, Environment and Society” Conference: Beyond Sustainability – Building Resilience, held in Johannesburg from 12-13 May 2015. The Institute reserved the right to publish that earlier version in its journal.

1 African Union (AU), Africa Mining Vision, February 2009, accessed 8 December 2015.

THE CIVIL SOCIETY AND THE REGULATION OF THE EXTRACTIVE INDUSTRY IN NIGERIA

Rhuks Ako* and Eghosa O. Ekhator**

ABSTRACT

This article focuses on the role of civil society organisations (CSOs) in impacting on trends and developments in the extractive industry in Nigeria. For example, CSOs take on the government to promote accountability and probity in the management of the sector that is beset by ineffectual regulation; alleged collusion with multinational corporations having as consequences environmental degradation and human rights abuses; and, ineffective judicial processes, among other things. On the other hand, CSOs are increasingly beginning to play prominent roles in collaborations with extractive corporations in the initiation and management of development programmes. In a nutshell, this paper aims to engage with both theoretical (based on the Hood et al conceptualisation of a regulatory regime, which encompasses information gathering, standard setting and behaviour modification activities) and practical frameworks (such as litigation, collaboration and pressure by CSOs) that explain the evolution of CSOs and their “regulatory” roles in Nigeria’s extractive industry. Civil society and civil society organisation are used interchangeably.

Keywords: Nigeria, CSOs, extractive industry, regulatory framework.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.9

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* Senior Fellow, Institute for Oil, Gas, Energy, Environment and Sustainable Development, Afe Babalola University, Nigeria. Email: rako@ogeesinstitute.edu.ng

** University of Hull Law School, UK. Corresponding author: Email: eghosaekhator@gmail.com

THE FEASIBILITY OF IMPLEMENTING THE UNITED NATIONS GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS IN THE EXTRACTIVE INDUSTRY IN NIGERIA

Oyeniyi Abe*

ABSTRACT

Extractive resource governance has been a challenging task for resource-rich countries in Africa. It has fuelled civil wars, ethnic clashes and underdevelopment in this region. This has turned the so-called resource wealth into resource curse. To address this particularly nauseating challenge, the international community came together to adopt the UN Guiding Principles on Business and Human Rights (GPs). Polarised debate on whether the GPs should be binding or voluntary has slowed down the effective implementation of the Principles. This article argues that while the GPs have been the latest attempt at regulating multinational companies (MNCs), greater emphasis should be placed on the readiness of states to domesticate the Principles. To achieve this, the paper explores various approaches through which the GPs can be crafted into national legislation. It also investigates the different methods through which states can ensure that corporations systemically respect human rights obligations in their areas of operation. In order to restore faith in the whole process, it is necessary to examine how human rights principles can be mainstreamed into corporate practice locally. No doubt, rights-based frameworks, such as the GPs, are needed to ensure that human rights are streamlined in business’ projects, policies, and agreements throughout the various stages, including preparation, funding, implementation and monitoring. The issue of corporate liability under international law has had its troubled history, thus, this article argues that MNCs have a heightened responsibility to respect the human rights of the local communities in resourcerich, war-torn zones, particularly in sub-Saharan African, using Nigeria as focal point.

Keywords: Guiding principles, business, human rights, multinational companies (MNCs).

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.7

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* Doctoral Candidate, Centre for Comparative Law, Faculty of Law, University of Cape Town, South Africa, currently Fulbright Visiting Scholar at Loyola University, Chicago School of Law. oabe@luc.edu.

THE JUDICIARY AND SUSTAINABLE DEVELOPMENT: PERSPECTIVES OF A BRAZILIAN FEDERAL JUDGE

Gabriel Wedy*

ABSTRACT

The approval of 17 goals and 169 targets for sustainable development by the United Nations Conference on Post-2015 Development Agenda is unquestionably an advancement for humanity. Economic development alone is however unsatisfactory: it must be paired with human development, respect for the environment and sound governance. Drawing from litigation and jurisprudential development from the Brazilian judiciary, this short legal commentary evaluates the role of the judiciary in promoting sustainable development, especially the attainment of the United Nations Sustainable Development Goals (SDGs). Keywords: Brazil, Sustainable Development, Judiciary.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.10

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* Federal Judge in Brazil, an Environmental Law Professor at ESMAFE/RS (the Federal Judiciary Superior School) and a Visiting Scholar at Columbia Law School(Sabin Center for Climate Change Law).

NEW DIRECTIONS IN AFRICAN DEVELOPMENTALISM: THE EMERGING DEVELOPMENTAL STATE IN RESOURCE-RICH AFRICA

Sara Ghebremusse*

ABSTRACT

African states are reclaiming a greater role in natural resource extraction that is generating significant scholarly interest and debate. This paper contributes to the debate by considering how these measures fit into the developmental state paradigm first used to study East Asian countries following World War II, and the “new” development state framework that currently dominates law and development scholarship. This paper argues that recent policy reforms by African states – including enhanced local participation, increased linkages between extractive industries and other sectors, and broader resource nationalist measures that seek to generate more revenue for national governments – are characteristic of the developmental state and “new” developmental state, neither have fully taken shape in resource-rich Africa as it is unclear how these new measures address “good governance” and democracy concerns. Keywords: Developmentalism, Africa, oil, state.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.1

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* Ph.D. Student, Osgoode Hall Law School at York University, Toronto, Canada.

WHEN POLICY IS NOT ENOUGH: PROSPECTS AND CHALLENGES OF ARTISANAL AND SMALL-SCALE MINING IN SOUTH AFRICA

Pontsho Ledwaba* and Kgothatso Nhlengetwa**

ABSTRACT

As in most countries, artisanal and small-scale mining (ASM) activities are recognised in South Africa. ASM activities first became part of the socioeconomic development agenda of the country in 1994 after the change in government. ASM was identified as an important platform where disadvantaged South Africans can participate and benefit from the mining industry. This is because of the potential benefits that government has sought to support the sub-sector. In the past two decades, several programmes and initiatives have been introduced to promote and advance the sub-sector. In the majority of cases, these interventions failed to facilitate the development of the sub-sector and, to a large extent, its contribution to local economies. This is attributed to a myriad of challenges still facing the sub-sector today. The objective of this paper is to map all the critical developments that took place in the sub-sector in an attempt to develop and deploy appropriate assistance to the sub-sector. The paper assesses their impact, if any, on the growth of ASM in South Africa. With the country into its second decade of democracy, it has become crucial to reflect on past experiences and use them as learning curve to create a new thriving economy.

Keywords: artisanal and small scale mining (ASM), timeline, poverty alleviation, sustainable development, South African mining policy.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.2

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* Corresponding author, Pontsho Ledwaba, Research Engineer, Small-Scale Mining and Beneficiation (SSMB) Division, MINTEK, 200 Malibongwe Drive Randburg, 2125, Republic of South Africa, Tel: +27 11 709 4337, email: pontshol@ mintek.co.za.

** Ph.D Candidate, School of Geosciences, University of the Witwatersrand, Johannesburg, Private Bag 3, WITS, 2050, Republic of South Africa, Tel: +27 11 717 6623, E-mail: kgothatso.nhlengetwa@students. wits.ac.za.

EMERGING PRACTICES IN COMMUNITY DEVELOPMENT AGREEMENTS

Jennifer Loutit*, Jacqueline Mandelbaum**, and Sam Szoke-Burke***

ABSTRACT

Community Development Agreements (CDAs) have the potential to facilitate the delivery of tangible benefits from large-scale investment projects, such as mines or forestry concessions, to affected persons and communities. To be effective, however, CDAs must be adapted to the local context, meaning that no single model agreement or process will be appropriate in every situation. Nonetheless, leading practices are emerging which can be required by governments, voluntarily adopted by companies, and demanded by communities. These practices are grounded in ensuring that all parties are sufficiently informed, capacitated, and prepared to engage in meaningful negotiations regarding how the investor’s operations should benefit local stakeholders. This article reviews existing research on CDAs, as well as available agreements from the extractive sector in Australia, Canada, Laos, Papua New Guinea, Ghana and Greenland. It articulates seven broad leading practices and how different stakeholders could work to achieve more effective agreements.

Keywords: Community development agreement, extractive, investment, leading practices.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.4

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* Attorney, Latham & Watkins LLP, New York, United States.

** Special Counsel, Corrs Chambers Westgarth; former Legal Researcher, Columbia Centre on Sustainable Investment, New York.

*** Legal Researcher, Columbia Centre on Sustainable Investment, Columbia University, New York.

PERIODIC REVIEW IN NATURAL RESOURCE CONTRACTS

Jacky Mandelbaum*, Salli Anne Swartz*, and John Hauert***

ABSTRACT

Periodic contract review mechanisms, which are provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract, are mechanisms that may facilitate the process of negotiating contractual changes to accommodate changing circumstances over the term of extractive industries contracts. Through the review of existing extractive industries agreements, this article considers how such review mechanisms have been incorporated into existing contracts and the use of such mechanisms as a tool for maintaining good relationships between the parties. In addition, the article suggests a new approach to the drafting of these mechanisms by negotiating objective criteria to be incorporated into the contract at the commencement of the contractual relationship in order to facilitate the timing and parameters of contract renegotiation when certain triggers occur.

Keywords: Periodic review, natural resources, extractive industries contracts, renegotiation, sustainable development, long-term contracts; hardship.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.6