IMPOSITION OF A COPYRIGHT LEVY IN NIGERIA: LEGAL JUSTIFICATIONS AND COMPARATIVE ANALYSIS

Ifeoluwa A. Olubiyi*

ABSTRACT

Copyright owners have the exclusive right to control the reproduction of their works. Since the advent of recording and copying technology, reproducing copyright works has become easier. Cases such as Sony Corp of America v. University City Studios, Inc indicate that copyright owners cannot stop technological advancements since they have both infringing and non-infringing uses. The reality is that private copying/reproduction is damaging to the right of owners and the entire copyright industry. One of the ways this situation is addressed is the imposition of copyright/private copying levies in some jurisdictions. Different rationales have been advanced for the imposition of this levy such as harm/compensation rationale and the statutory licence rationale. Nigeria is joining other jurisdictions in imposing this levy as the Copyright Levy Order 2012 was recently signed into law. This paper discusses the origin and justifications for the imposition of copyright levies. This practice is examined particularly in the light of the ‘fair dealing for private use’ exception under the Nigerian copyright law and in other jurisdictions such as the European Union, Germany, United Kingdom and the United States. It provides a detailed understanding of ‘fair dealing for private use’ and also a justification for the Nigerian Copyright Levy Order under the Nigerian legal system.

Keywords: copyright levy, fair use, fair dealing, private use

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* Intellectual Property Law Lecturer, Department of Private and Business Law, College of Law, Afe Babalola University, Ado-Ekiti, Nigeria; LL.M [IPLKM] (Maastricht), B.L (NLS, Abuja), LL.B (OAU, Ife). E-mail: ifejemilugba@gmail.com.

GOVERNANCE AND THE CHALLENGE OF SOCIO-ECONOMIC DEVELOPMENT IN NIGERIA.

Patrick Oluwole, Ojo Friday Aworawo, and IfedayoTolu Elizabeth*

ABSTRACT

Various factors are said to be responsible for Nigeria’s current status as an underdeveloped country. These range from historical colonial experience, political instability, the monoculture nature of the national economy, and the persistent lack of commitment to focused development strategies on the part of the political elites. The most popular among the prescriptions for tackling the phenomenon of underdevelopment emphasized macroeconomic policies, economic diversification, transparency and accountability in governance and even direct distribution of resource proceeds to the general population. These solutions have not been able to adequately address Nigeria’s development challenges. However, the crucial role of the regulatory institutions, especially their oversight functions, has arguably been the missing link in establishing the complimentary relationship between governance and development in Nigeria. This paper discusses the importance of governance institutions as a fundamental determinant of robust and sustainable social and economic development in Nigeria.

Keywords: Democracy, Corruption, Governance, Socio-economic development

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* Department of Political Science and International Studies , Afe Babalola University, Ado-Ekiti.

THE RIGHT TO A HEALTHFUL ENVIRONMENT IN NIGERIA: A REVIEW OF ALTERNATIVE PATHWAYS TO ENVIRONMENTAL JUSTICE IN NIGERIA

Abdulkadir Bolaji Abdulkadir, Ph.D*

ABSTRACT

The Constitution of the Federal Republic of Nigeria includes in its Chapter Two on “Fundamental Objectives and Directives Principles of State Policy” provisions on the protection of the environment. However, these provisions are made unjusticiable by other provisions in the Constitution that oust the jurisdiction of the court to entertain any matter related to the enforceability of the provisions of chapter two of the Constitution, which includes the protection of environment. These ouster provisions have led to an explosion of scholarly views on the question of how best environmental rights could be constitutionally derived and protected in Nigeria. This paper aims to contribute to these debates. The paper explores how the right to a healthful environment can be derived and secured using other enforceable provisions in the Nigerian Constitution, and through other domesticated international instruments in Nigeria, to enhance access to environmental justice in Nigeria.

Keywords: Constitution, Environment, Health

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* LLB (Unilorin), B.L (Abuja), LLM (Unilorin) PhD (IIUM, Malaysia), Lecturer, Department of Public Law, Faculty of Law, University of Ilorin, Nigeria.

THE RIGHT TO LIFE OR THE RIGHT TO COMPENSATION UPON DEATH: PERSPECTIVES ON AN INCLUSIVE UNDERSTANDING OF THE CONSTITUTIONAL RIGHT TO LIFE IN NIGERIA

Amos O. Enabulele*

ABSTRACT

This paper discusses the right to life in its most inclusive sense. It argues that the right to life cannot be seen only in the light of the deprivation of life, but more importantly, in the light of the sustenance of life. Accordingly, that the right to life should be broadly interpreted to encompass all its components and that some of its important components are contained in the non-justiciable provisions of our Constitution. The paper further argues that by assimilating the provisions which the Constitution declares non-justiciable with the right to life, such provisions become justiciable without disturbing the their otherwise non-justiciable character since they are not enforced on their own force but on the force of the justiciable right to life provisions of the Constitution.

Keywords: Right, Compensation, Life, Death, Constitution

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* LLM, PhD (Lond.) BL, Chair, Committee on the Teaching of International Law, International Law Association, Nigerian Branch and Senior Lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Benin, Nigeria. email: amos.enabulele@uniben.edu.ng

CHALLENGES OF CORPORATE SOCIAL RESPONSIBILITY IN THE NIGER DELTA REGION OF NIGERIA

Hakeem Ijaiya, Ph.D*

ABSTRACT

The Niger Delta Region of Nigeria produces a significant portion of the aggregate oil wealth of Nigeria. Since 1956 when oil was first struck in Oloibiri in Southern Nigeria, the Niger Delta region has accounted for over 90 per cent of Nigeria’s oil income. However, the region has perennially suffered from environmental neglect, crumbling infrastructures and services, high unemployment, social deprivation, abject poverty and endemic conflict. This has led to calls for oil companies operating in the Niger Delta to demonstrate the value of their investments to Nigeria by undertaking increased community development initiatives that provide direct social benefits such as local employment, new infrastructure, schools, and improved health care delivery. This paper examines the concept of Corporate Social Responsibility (CSR) that is, how companies manage their oil exploration and business processes to produce an overall positive impact on society. It reviews the evolution and growth of the CSR concept under international law and the key institutions that have spearheaded this growth. Since the emergence of the CSR concept in Nigeria, it has been espoused mainly as an optional and non-obligatory responsibility for oil companies. There is currently no national law in the area of CSR. More so, many of the International Corporate Responsibility Instruments, such as, the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises; United Nations (UN) Global Compact and the 1998 ILO Declaration on Fundamental Principles and Rights at Work are soft law instruments with less binding status in international law and by extension in Nigeria. This paper examines the need for a more coherent and binding recognition of the CSR principle in Nigeria. In a country such as Nigeria, where the principles and benefits of democratic governance are still fragile, there is a need for a dynamic and step-wise approach through which the CSR concept could be continually mainstreamed into national laws and policies. Keywords: Corporate Social Responsibility, Niger Delta, Environment

VESSEL-SOURCED POLLUTION: A SECURITY THREAT IN MALAYSIAN WATERS

Abdulkadir O.Abdulrazaq* and Sharifah Zubaidah Syed Abdul Kader**

ABSTRACT

Vessel- sourced pollution is one of the major sources of marine pollution and it encompasses accidental discharge of oil, intentional discharge of oil (like discharge from ballast tanks), chemicals, dumping, etc. The United Nations Convention on the Law of the Sea (UNCLOS), 1982 and some other conventions make provisions concerning protection of marine environment and this has the support of many other regional, national and global institutions. In Malaysia, the consent of the relevant authority is required for a discharge of oil that is above the quantity allowed under the law. However, despite the fact that there have been enormous regulations on the pollution of the marine in Malaysia, it appears that pollution by vessels is still on the increase. The legal framework stipulating conditions for discharge of oil at seas are well founded in many jurisdictions like Malaysia but some of the legal regulation appears to be inadequate, thereby threatening sea’s environment and causing the irreparable damage to marine resources and human safety. This paper considers the number of ships that traverse the straits of Malacca and the implications of pollution arising therefrom. It recommends for consent of the appropriate authority and a stiffer penalty for every discharge of oil by vessel in order to avert hazardous damage arising from pollution by ships.

Keywords: Vessel-Sourced, Pollution, Security, Threat, Malaysian, Waters.

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* Ph.D (IIUM, Malaysia) LL.M, (O.A.U, Ile-Ife, Nigeria), LL.B (Ilorin, Nigeria), Lecturer, Department of Private and Property Law, Faculty of Law, University of Ilorin, Nigeria. Email-kor181law@gmail.com.

** SJD, (Bond, Australia), MCL, LL.B, Associate Professor of Law, AIKOL, International Islamic University Malaysia.

LEGAL ANALYSIS OF THE EUROPEAN UNION SUSTAINABILITY CRITERIA FOR BIOFUELS

Evgenia Pavlovskaia*

ABSTRACT

This paper provides a legal analysis and review of the European Union (EU) sustainability criteria for biofuels, presented in Directive 2009/28/EC. The paper discusses the EU sustainability criteria as a tool that could be efficiently utilized to operationalize and implement the concepts of sustainable development and sustainability in an industrial setting. The results of the analysis highlight that to safeguard the sustainable quality of biofuels and their production, the list of the EU sustainability criteria should be elaborated further. Other criteria that regulate various aspects of environmental, social and economic sustainability need be added. For example, there is a need for further elaboration of the sustainable agricultural practices and tolerable use of water resources. Furthermore, as long as the EU requirements to fulfill the sustainability criteria have global impacts, the perspective of the involved actors from other regions and countries should be taken into account. Practical possibilities of the involved actors, their costs for the implementation of the sustainability criteria and regional differences should also be considered. More generally, the paper suggests that the list of sustainability criteria, incorporated in a legal framework, should neither be too long, nor too short. A long list is not easy to implement. For a short list, as illustrated by the EU, it could be difficult to guarantee sustainability. Consequently, to the extent possible, the legislated list of sustainability criteria should be complemented by non-binding recommendations, explanations and guidelines. Furthermore, before making the suggested sustainability criteria legally binding, possible conflicts between different interests and contradictions with the already existing regulations from neighboring spheres of law should be investigated as a matter of necessity. Keywords: Sustainability, Sustainability criteria, Biofuels, Directive 2009/28/EC.

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* Evgenia Pavlovskaia, Ph.D. Candidate, Faculty of Law, Lund University, Sweden, evgenia. pavlovskaia@jur.lu.se.

BIO PROSPECTING IN NIGERIA: EVALUATING THE ADEQUACY OF LAWS AND PRACTICES AND THE IMPLICATIONS FOR THE ENVIRONMENT

Chris Chijioke Ohuruogu* and Chukwudumebi Okoye-Asoh**

ABSTRACT

Bio-prospecting is a subject of interest especially as to its utility in environmental protection. It is the purposeful evaluation of wild biological materials in search of valuable new products and involves the application of advanced technologies to develop new pharmaceuticals, agrochemicals, cosmetics, flavorings, fragrance, industrial-enzymes and other products from biodiversity. On the face of it, bio-prospecting is a major threat to the continuous flow of genetic resources. However when substituted with other consumption patterns or when properly regulated such that benefits derived from it are invested in technologies geared towards conserving the databank of the bio resources, or the provision of the needs of the local peoples whose practices mount undue pressure on the resources, it becomes a viable tool for resource conservation. This paper examines the regulatory regime of bio-prospecting in Nigeria from international and national perspectives to evaluate their adequacy. It also examines the environmental implications of the state of affairs and recommends the protection of the local peoples’ interest, and their involvement in strategic planning and policy formulation on bio prospecting, amongst others as a way of bio conservation to profit bio-prospecting.

Keywords: Bio-prospecting, environment, biodiversity

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* Professor of Law, Department of Public and International Law, College of Law Afe Babalola University, Ado Ekiti, Nigeria. Correspondence email: ccoh2008@googlemail.com.

** Legal Consultant, Port Harcourt, Nigeria.

SAFE DISPOSAL OF MUNICIPAL WASTES IN NIGERIA: PERSPECTIVES ON A RIGHTS BASED APPROACH

Nnamdi Ikpeze*

ABSTRACT

The safe disposal of municipal waste is imperative for the realisation of several fundamental human rights, most especially the right to life and the right to a healthy environment. Nigeria is a signatory to and has ratified the African Charter on Human and People’s Rights (ACHPR). Ratification of the ACHPR comes with the attendant responsibility of maintaining a healthy environment. The entitlement to a healthy environment is also a constitutional right in Nigeria, albeit in a non-justifiable form. However challenges abound in the area of municipal waste management which negate the realisation, protection and fulfilment of the right to a healthy environment as enshrined in both the Constitution and the ACHPR. While rudimentary frameworks for waste disposal exist especially in the form of municipal and environmental laws and judicial remedies, poor funding, lack of modern scientific methods of waste management, treatment and disposal, the non-enforcement cum non-justiciability of laws and poor access to judicial remedies have resulted in the near-total failure of responsible municipal authorities to execute their mandate thus leading to an appalling state of affairs in the management of municipal solid waste in most parts of Nigeria. It may seem that the municipal authorities have contributed largely to the failure of the system by not improving capacity to meet with contemporary responsibilities. Furthermore, the prevailing piecemeal approach of treating safe disposal of wastes as an “add on” arguably demonstrates an institutional failure and inadequate understanding by authorities that without proper waste management, the realisation, protection and fulfilment of a number of social and economic human right in Nigeria will remain illusory. This paper discusses the need for a more human rights based understanding of the need for proper management and safe disposal of municipal wastes in Nigeria. This paper analyzes the existing legal framework on waste management in Nigeria and elaborates on relevant provisions of law, judicial decisions and legislative interventions that support a rights-based understanding of waste management and disposal in Nigeria; and concludes by recommending positive actions and reforms that could give impetus to a more robust and efficient waste management system in Nigeria.

Keywords: Nigeria, municipal, waste disposal, environment, environmental rights.

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* LL.B, LL.M, B.L, ACI.Arb. Lecturer, College of Law, Afe Babalola University, Ado-Ekiti (ABUAD), Research Fellow at the OGEES Institute, ABUAD, Doctoral candidate at the Department of Public and Private Law, Faculty of Law, Nnamdi Azikiwe Universtiy, Awka, Anambra E-mail 1: pioneer183@yahoo.co.uk, E-mail 2: nikpeze@ogeesinstitute.edu.ng

WORKABILITY OF THE NORMS OF TRANSPARENCY AND ACCOUNTABILITY AGAINST CORRUPTION IN NIGERIA

Simeon Igbinedion*

ABSTRACT

This paper discusses the workability of the existing norms of transparency and accountability in the battle against corruption in Nigeria. Incontrovertibly, high level corruption pervades every nook and cranny of the country to the detriment of its citizens. Although anti-corruption norms exist in the Nigerian legal order, high profile corruption remains endemic, suggesting that the norms are unworkable. This paper argues that the unworkability of transparency and accountability norms in Nigeria is largely attributable to the contradictions, inconsistencies or deficiencies inherent therein. Consequently, the paper suggests ways of putting the norms to work against corruption in Nigeria.

Keywords: Corruption, Governance, Sustainable Development

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* LL.B, B.L, LL.M, Ph.D: Lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Lagos; E-mail: sigbinedion@unilag.edu.ng. I am grateful to the two anonymous referees who reviewed and offered useful comments on the earlier draft of this article.

INTERNATIONAL LAW AND THE RESPONSIBILITY TO PROTECT: LEGAL AND THEORETICAL BASIS FOR INTERNATIONAL INTERVENTION IN NIGERIA

Oyeniyi Ajigboye*

ABSTRACT

One of the primordial aims of international law is to foster international co-operation, peace, security and amicable relations among nations of the world. Internal conflicts, however, continue to pose threat to the international order and development globally. Consequently, the Responsibility to Protect (R2P) principle has recently gained recognition as an emerging norm of international law that enjoins the international community to intervene when countries fail to protect their populations from mass atrocity crimes namely: genocide, crimes against humanity, war crimes and ethnic cleansing. One of the key foundations of the emerging R2P norm is the principle of intervention which allows international action whenever it is necessary and justifiable to reduce or resolve internal conflict among the constituent States of the world. Despite the growing application of the norms of intervention in international law, its practical implementation and effects have been received with mixed feelings. There are especially, questions whether interventions really aid or hinder international peace and security, although it may be functional to avert apparent helpless situations. This paper examines the imperatives of intervention in internal conflicts and its continued relevance in international law. It also comments on the applicability and desirability of international intervention in Nigeria in response to the Boko Haram conundrum. It argues that although intervention is appropriate as it were to protect Nigerian citizens from Boko Haram in the apparent failure of the Nigerian government so to do, international intervention should be properly regulated to ensure that it is not used as a tool to jeopardize sustainable development in Nigeria as well as in other developing countries.

Keywords: Intervention, R2P, Internal conflicts, and International Law

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* LL.M (Ibadan), B.L (NLS, Abuja), ACIArb.UK; Email: oyeajigboye@gmail.com.

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.

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∗ 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.

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* 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.

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∗ 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

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*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.

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*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.

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* 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.

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*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

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* 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