ARE WE THERE YET? A LEGAL ASSESSMENT AND REVIEW OF THE CONCEPT OF SUSTAINABLE DEVELOPMENT UNDER INTERNATIONAL LAW

Evgenia Pavlovskaia*

ABSTRACT

Some of the most consistently utilized terms in international environmental law are “sustainable development” and “sustainability”. Sustainable development is mentioned in virtually every domestic, regional and international laws on environment, energy and natural resources. This has led to the contentions by some scholars that the concept of sustainable development has matured into customary international law, or at least has become a general principle of international environmental law. Many researchers, however, argue that the idea of sustainable development is vague, elusive and does not add much to the efficient implementation of international environmental law. This article aims to examine and discuss these views. In this paper, the content of the widely used concepts “sustainability” and “sustainable development” are studied from the perspective of their implementation in different parts of the world. The article examines the status of the concept of sustainable development under international law, its implementation across sectors, its key contributions to international law and how its practical actualization can be further strengthened. The article sets out with a broad inter-disciplinary review of the existing definitions of the concepts “sustainability” and “sustainable development”. The article will then examine examples of how “sustainability” and “sustainable development” are incorporated in contemporary environmental law, in order to highlight its current status under international law and its overall influence on different spheres of our life. Major difficulties and challenges associated with implementing and enforcing sustainability are also examined. It is suggested that market systems should be supplemented by political processes and legal regulations that include special mechanisms and tools to protect and control the health of the environment. Growing awareness of sustainability, primarily environmental, among produces is viewed in the article as a very positive trend. It is welcomed that more and more industries are engaged in sustainable production throughout the entire product life cycle. The use of such tools as sustainability criteria, sustainability standards and eco-labels must also be promoted.

Keywords: sustainability, sustainable development, implementing sustainability, industrial sustainability.

---

∗ Evgenia Pavlovskaia, PH.D Student, Law Faculty, Lund University, Sweden, email: evgenia.pavlovskaia@jur.lu.se

JUDICIAL ATTITUDE TO ENVIRONMENTAL LITIGATION AND ACCESS TO ENVIRONMENTAL JUSTICE IN NIGERIA: LESSONS FROM KIOBEL

Rufus Akpofurere Mmadu *

ABSTRACT

This paper examines judicial attitude to environmental litigation and access to environmental justice in Nigeria. The paper employs expository analysis as its methodology in discussing the theme. Essentially, the paper finds that environmental litigations in Nigeria are bedeviled by legal technicalities such that victims of environmental pollution and degradation are ultimately denied access to justice. Ranging from issue of locus to territorial and subject matter jurisdiction, victims of oil spill and environmental degradation are often left without judicial remedies. The paper finds that consequently, the people of the Niger Delta are increasingly losing confidence in the judiciary both at the domestic and international level. This has heightened militancy and youths’ restiveness in the area leading to loss of revenues and sometimes lives. The paper notes with concern the recent trend of outsourcing justice, as evident in attempts to bring environmental pollution cases in Nigeria before domestic courts abroad. For example the celebrated case of Kiobel v Royal Dutch Shell, heard in United States of America. Kiobel is arguably a setback to this approach of searching for environmental justice before international courts and a reminder on the need to look inwards. This paper calls for judicial flexibility and a more proactive approach to legal reasoning by Nigerian courts, in order to put environmental matters on the front burner of our national discourse. Unless and until environmental justice is entrenched in Nigeria through judicial activism, Governmental inertia and unwillingness to provide remedies for victims of environmental degradation may continue to fuel militancy in the years ahead.

Keywords: Environmental Litigation, Access to Justice, Nigeria.

---

* Rufus Akpofurere MMADU, LL.M, LL.B (Lagos); Barrister and Solicitor of the Supreme Court of Nigeria; Lecturer, College of Law, Osun State University, Osogbo and also Mphil/Doctorial candidate of the Obafemi Awolowo University, Ile-Ife, Osun State, Nigeria. Email: mmadurufus@yahoo.com, rufusmmadu@uniosun.edu.ng . Tel: +2348035319283, +2348127017430.

THE ENFORCEMENT OF SOCIAL AND ECONOMIC RIGHTS IN AFRICA: THE NIGERIAN EXPERIENCE

Ajepe Taiwo Shehu*

ABSTRACT

The debates on socio-economic rights have now shifted from desirability to problems of enforcement. This does not indicate that socio-economic rights have gained universality such that all countries in Africa embrace and enforce them. There are few countries such as South Africa where these rights have not only been constitutionalized, but have been duly enforced. Nigeria has them under the nonjusticiable directive principles of state policy. However, the fact today is that there are cultural and other impediments to the effective and efficient enforcement of such rights. Thus, the main objective of this paper is to identify some of these impediments and to proffer solutions. The paper depends largely on perception of the nature of socio-economic rights arguing that such rights depend squarely on the state of economy of the state and the effective and efficient management of the economic resources. The paper finds that unlike the traditional, first generation rights, the enforcement of socio-economic rights puts huge financial claims on the state and also involves legislative appropriation without which the executive cannot effectively enforce such rights even where the judiciary orders enforcement of the rights in deserving situations. The paper observes that the enforcement of such rights would also invariably depend on ability and readiness to combat the pervasive corruption in most countries of the continent. Besides, although science and technology in the area of agriculture have rendered suspect the Malthusian theory on population, African nations must control population growth in the continent, and also redirect cultural imperatives that encourage unchecked child rearing, illiteracy and poverty.

---

∗ Ph.D, Senior Lecturer, Department of Public Law, Faculty of Law, University of Ilorin, Nigeria. Email Address: atshehu2000@ymail.com, atshehu2000@gmail.com, Phone: (+234) 8034810069

TOWARDS SUSTAINABLE FARMING: AN ANALYSIS AND REVIEW OF THE EUROPEAN UNION’S AGRICULTURAL SUBSIDY POLICY

Laura De Deyne*

ABSTRACT

This paper provides an overview of the most important European agricultural subsidies, which aim at promoting a more sustainable way of farming. The European Union has put these subsidies into place in order to create a better balance between agriculture and the environment. Through these ‘green’ subsidies agro-biodiversity can be protected, which is a very important goal since approximately 50% of all species in Europe depend on agricultural habitats or landscapes. The major pressures on biodiversity in agricultural land result from changes in the type and intensity of farming, which generate changes in agricultural landscapes. Such changes can result either from intensification or abandonment, both of which can be detrimental to biodiversity. Each and every single one of the discussed subsidies has its own goals and purposes. (1) Cross compliance, (2) agro-environmental measures, (3) less favoured area payments and (4) subsidies for organic farming have different objectives, which will be addressed in this paper. I will aim at analyzing their overall contributions to the goal of fostering sustainable farming within the EU, through highlighting the benefits, strengths and contributions of these four types of subsidies. This paper will examine their key contents and provisions, their current level of implementation and practical measures that could be put in place to further enhance their successful implementation.

AN APPRAISAL OF THE POTENTIAL CONTRIBUTIONS, PARADOXES AND CHALLENGES OF IMPLEMENTING THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) IN NIGERIA.

Kenneth I Ajibo*

ABSTRACT

Nigeria is currently not a contracting party to the United Nation Convention on Contracts for the International Sale of Goods (CISG), which governs transactions and sales of goods globally. Sadly enough, the current legal framework regulating the sale of goods in Nigeria remains the 18th century Sale of Goods Act 1893 which is arguably obsolete and out of touch with modern day business reality. This paper argues that despite the potential practical challenges in implementing the CISG, Nigeria has a lot to gain economically by becoming a contracting party to CISG; particularly as the nation inches toward the target of becoming one of the world’s twentieth largest economies by 2020.

Keywords: Private International Law, CISG, Nigeria, Goods

---

*Kenneth I Ajibo LL.B. BL. LL.M. PhD Candidate at the Law School, University of Hull, United Kingdom; email: K.I.Ajibo@2010.hull.ac.uk

RE-EVALUATING THE ORIGINS OF THE EUROPEAN UNION’S EMISSIONS TRADING SCHEME: THE EUROPEANISATION OF EMISSIONS TRADING

Gerard H. Kelly∗

ABSTRACT

The adoption of carbon market trading in the European Union (EU) was far from assured. Prior to the Kyoto Protocol, the EU had been critical of market trading and had expressed grave reservations regarding its potential contribution to climate governance. Given this historical backdrop, the EU’s conversion to market trading and subsequent vocal championing of the merits of this regulatory approach, is particularly intriguing. Whilst emissions trading gradually garnered support within the EU, institutionally the Union remained trapped by the normative objections, which it had initially articulated against the idea. Such norm entrapment – the inability to pursue a preferred policy that violates a norm because of prior rhetorical affirmation of the norm – presented a particular dilemma for the EU. Paradoxically, the contribution of individual norm entrepreneurs, located within the Commission, in reframing emissions trading as an effective and efficient instrument for climate governance in the EU proved considerable to unlocking this entrapment dilemma. As a result, a concept, which the EU had previously delegitimised as evasive of domestic responsibilities, was instead reconstructed as a legitimate strategy to salvage the Kyoto Protocol. As market trading internationalises, understanding the drivers and processes by which the EU ETS came to occupy the cornerstone of EU climate policy may offer valuable insights to policy-makers and stakeholders endeavouring to promote global emissions trading initiatives.

---

*LL.B. (Dublin), B.C.L. (Oxford), Fellow of the Higher Education Academy; Attorney-at-Law, New York; Lecturer in Law, University of Liverpool.

DEVELOPING COUNTRIES AND THE WTO DISPUTE RESOLUTION SYSTEM: A LEGAL ASSESSMENT AND REVIEW

Linimose Nzeriuno Anyiwe * and Eghosa Osa Ekhator**

ABSTRACT

The aim of this paper is to review and analyse the WTO procedures and rules designed to resolve developing countries disputes. The Dispute Settlement Understanding (DSU) of the World Trade Organization is generally considered as providing innovative set of rules through which countries could address and resolve trade disputes amongst themselves. The DSU also establishes an Advisory Centre, which seeks to assist developing countries to resolve trade disputes. Despite these innovations, opinions are divided on the practical effectiveness of the DSU and the Advisory Centre, particularly with respect to resolving disputes involving developing countries. In this paper, we shall examine the practical effectiveness of DSU and the roles of the Advisory Centre in the dispute resolution processes involving developing countries. Drawing examples from previous disputes, some practical challenges and constraints with the current procedures faced by developing countries are identified and discussed; they are: lack of expertise, inability to enforce WTO rulings, reluctance to institute trade disputes and economic pressure applied by developed countries on developing countries in trade disputes amongst others. Addressing these challenges are critical to the overall success of the DSU. This paper calls for a review of the DSU to incorporate the reforms enunciated by various stakeholders to the WTO.

---

* Linimose Nzeriuno Anyiwe LL.B (Benin), LL.M (University of Central Lancashire)

** Eghosa Osa Ekhator LL.B (Benin), LL.M (Hull), PhD Candidate at the Law School, University of Hull, eghosaekhator@gmail.com. Corresponding author

AN EXAMINATION OF RISK ALLOCATION PREFERENCES IN PUBLIC-PRIVATE PARTNERSHIPS IN NIGERIA

Olufemi Vincent Tolani*

ABSTRACT

Risk allocation preferences are important elements of Public-Private Partnerships (PPP), as the fundamental tension in many negotiations between the public and private sector in PPPs usually comes down to the question: who is responsible for managing a particular risk? Yet research literature suggests that risk allocation preferences phenomena have not been adequately studied; hence they remain poorly understood. This paper provides an empirical analysis and study of risk allocation preferences in PPPs in Nigeria. Research participants (spanning banking, construction, and public sector groups who were selected through a convenience sampling method) completed an online survey with Likert-type items within six months (i.e. between June and November 2011) to gauge probabilities of occurrence, risk impact and risk significance of 46 risk factors pertaining to PPP projects. As data did not meet the assumptions for parametric statistics, Mann-Whitney U tests were performed to evaluate the ranked differences in the independent variables (46 risk factors) between private and public sector groups. This paper shows that 27 (59%) out of the 46 risk factors are preferred to be allocated to the private sector, while 8 (17%) risk factors are to be allocated to the public sector and 11 (24%) of the risk factors are to be equally shared between the private and public sectors.

Keywords: Risk Allocation Preferences, Nigeria, Agency Theory, Public-Private Partnerships, and Mann-Whitney U tests.

---

*Director of Policy and Project Development, Ministry of Infrastructure, Alberta, Canada. Dr. Tolani (MPA) (PhD) email: otolani@ucalgary.ca.

HAZE POLLUTION IN INDONESIA

Melda Kamil Ariadno*

ABSTRACT

Haze pollution has been one of the most serious environmental catastrophes in countries with wide areas of forest, such as Indonesia. Efforts to combat haze pollution have been carried out at the national, regional and international levels. Adopting principles developed within international law arena such as sustainable development, precautionary principle, foreseeability, due diligence and good neighbourliness have been canvassed for every state in the world especially those having activities which have potential impact to cause transboundary pollution. Indonesia has been experiencing forest burns from time to time and trying to combat it ever since. National law has been developed, institutions have been designated, and mechanisms have been created. These efforts are however far from complete. Indonesia needs to go much further than what have been undertaken this far. A necessary way forward would be to ratify the 2002 Association of Southeast Asian Nations (ASEAN) Agreement on Transboundary Haze Pollution, which Indonesia fails to ratify. This paper discusses the problems of haze pollution in Indonesia, the applicable rules under international law including the state responsibility doctrine, the mechanism developed within the ASEAN Agreement, what steps have been taken by Indonesian Government in combating haze pollution, and the need for Indonesia to ratify the ASEAN Agreement.

Keywords: Haze, Pollution, ASEAN, Indonesia

---

* Melda Kamil Ariadno (LL.B) (LL.M) (Ph.D.) is a Senior Lecturer (Associate Professor) of International Law at the Faculty of Law, University of Indonesia, majoring in law of the sea, the law of treaties and international environmental law. email: meldakamil@gmail.com

THE CONCEPT OF GENDER JUSTICE AND WOMEN’S RIGHTS IN NIGERIA: ADDRESSING THE MISSING LINK

Ngozi Oluchukwu Odiaka*

ABSTRACT

Over the years, Nigeria has gained the unpopular recognition globally as a patriarchal society in which the inalienable rights of women are often subjected to ridicule, extensive abuse, neglect and violations. Cultural, religious and societal norms have arguably entrenched a historical imbalance in power relationships between men and women and have tilted the overall perceptions and roles of women in Nigeria. In Nigeria, it could be said that the abuse of the natural rights of a woman begins from the time of her birth and only comes to an end at the time of her death. In many parts of Nigeria, particularly the North, women who are prematurely and compulsorily betrothed to a man at birth are not allowed access to basic education and are generally burdened with domestic household chores. These becomes the foundation for a lifetime of circular and absolute dependence on a man she does not know: and upon the demise of the man her right to inherit his property is denied and her life becomes miserable because of obnoxious practices which she could be made to undergo as a sign of respect for the deceased husband. These cultural, religious and societal norms are arguably at the root of the historical neglect of women in Nigeria. The rapid ascendancy of human rights in Nigeria, coupled with Nigeria’s prominent role as a signatory to virtually all the core international human right treaties and instruments raised expectations that women in Nigeria may begin to enjoy some measure of protection from archaic and anachronistic practices that subject them to a wanton abuse. The scope of these happenings requires an extensive reflection and worthy of scholarly examination in the light of recent debates in the Nigeria National Assembly on child marriage, women’s right and the need for constitutional protection for the girl child. This paper examines the nature, scope and extent of human rights protection afforded to women under Nigerian domestic laws and under international law. It reflects on how key issues such as child marriage, women’s property rights and female succession norms and practices affect gender justice and the protection and fulfillment of the rights of women in Nigeria. It discusses the possible legal panacea to these historical and cultural challenges in this 21st century.

---

*Ngozi Oluchukwu Odiaka LL.M (Ibadan) is a Lecturer in the Department of Private and Business Law, College of Law, Afe-Babalola University Ado-Ekiti: ngodiaka@abuad.edu.ng; ngodiaka@yahoo.com

THE NIGERIAN FINANCIAL CRISIS : A REDUCTIONIST DIAGNOSIS

Olumide Famuyiwa∗

ABSTRACT

The crisis in the Nigerian financial system from 2008 to 2009 triggered an explosion of scholarly debates on the legal and institutional inadequacies of the Nigerian financial regulatory system that contributed to its inability to anticipate or prevent the financial crisis. Many of the analyses however have yet to consider closely the part played by sub-optimal enforcement of financial laws and regulations before the crisis and how this created opportunities for the crisis. This paper argues for a supervisory failure account of the Nigerian financial crisis. It conceives this failure as an incidence of sup-optimal enforcement of regulatory norms, induced by low or weak regulatory accountability and which largely provides opportunities for a financial crisis. Through a normative analysis of the indicators public sector and financial regulation accountability, it demonstrates how the crisis could have been prevented. In doing so, the paper partly examines the legal and institutional problems of financial regulation in Nigeria; how the Nigerian financial system fared during the financial crisis of 2008 to 2009; and what could have been done to prevent the crisis.

---

∗ Doctoral Candidate and College Lecturer, Faculty of Law, University of Oxford, United Kingdom. Email: olumide.famuyiwa@law.ox.ac.uk