Volume 11/2

Camena Guneratne

Using Constitutional Provisions to Advance Environmental Justice – Some Reflections on Sri Lanka

This paper examines the principle of environmental justice and its potential applicability to developing countries such as Sri Lanka.  It first considers the interpretation and application of the principle in its country of origin, the United States, where it is used primarily to address problems of discrimination in the context of pollution.  The paper takes the view that while such an interpretation of environmental justice is valid in this particular context, it cannot address issues of environment and development that arise in countries of the global South, which are grappling with development processes.  These processes give rise to issues that may be subject to judicial determination, including sustainable development, protection of natural resources, human rights and social equity.  The principle must therefore be re-interpreted to encompass all these dimensions.

This paper argues that such an expansion and implementation of the principle of environmental justice in a context of environment and development in countries such as Sri Lanka, is most effective within a constitutional framework of human rights. Constitutions provide both the substantive and procedural foundation of rights, which are interpreted, enforced and given validity at the highest level of the judicial process. Even where environmental rights per se are not contained in a constitution, the existing rights can be, and have been, re-formulated to address issues of environment and development and related human rights. This paper analyses constitutional rights in Sri Lanka, which although limited in scope, has nevertheless formed the basis of a wide body of jurisprudence which brings new dimensions to the principle.

Nicholas N. Kimani

Enacting National Seabed Mining Laws in Africa: Importance of a Practitioner’s Perspective

Countries should develop seabed mining laws that maintain environmental and social protections, yet whose safeguard rules are easier to understand and can be implemented at lower cost. Blindly adopting foreign laws, however well drafted, may result in a regime that is fragmented, inefficient and costly to administer from industry’s perspective. Insights from Kenya, demonstrates the value of adopting a practitioners perspective to identify practical problems, potential opportunities and important policy issues.

Tinashe Madebwe

Carving Out a Greater Role for Civil Litigation as an Environmental Law Enforcement Tool in Zimbabwe’s 2013 Constitution

Traditionally, civil litigation has been marginalised as a complementary enforcement tool to state-led efforts at enforcing environmental law in Zimbabwe. This is despite the fact that its value as a complement to other enforcement efforts has increasingly been recognised across the world, and that the Environmental Management Act, the leading statute on environmental law in the country for the last eight years, makes extensive provision for the avenue as a complementary enforcement tool. This paper argues that the inclusion of environmental rights in the 2013 Constitution holds the promise of invigorating civil litigation’s role as a complement to state-led enforcement techniques in Zimbabwe’s environmental law regulatory framework.


Moroccan Law on Municipal Waste and Sustainable Development

by Nabil Madani

The management of municipal waste suffered from the absence of a specific regulatory and institutional framework for a long time. This situation led to anarchic management, triggering structural problems and contributing to environmental degradation.

Indeed, are enshrined in the 28-00 Law adopted in Morocco in 2006, the rules and fundamental principles linked to waste management and its removal, establishing rational, modern and efficient sectorial management, respectful of sustainable development and environmental protection.

Nonetheless, the objectives emanating from sustainable development linked to the law on municipal waste face difficulties which limit their success. In this article, we first attempt to scrutinise the law on municipal waste in the context of sustainable development, to then move on to assessing its effectiveness.

Droit marocain des déchets municipaux et développement durable

by Nabil Madani

La gestion des déchets municipaux a souffert pour longtemps de l’absence d’un cadre réglementaire et institutionnel spécifique. Cette situation s’est traduite par une gestion anarchique qui a générée de problèmes structurels et a contribué à la dégradation de l’état de l’environnement.

En effet, la loi 28-00 adoptée au Maroc en 2006 arrête les règles et les principes fondamentaux qui se rapportent à la gestion des déchets et à leur élimination et permet d’asseoir une gestion rationnelle, moderne et efficace du secteur, respectueuse des exigences de développement durable et de la protection de l’environnement.
Néanmoins, les objectifs du développement durable liés au droit des déchets municipaux sont confrontés à des obstacles qui limitent leur réalisation.
Dans cet article, nous essayons, dans un premier lieu, de passer au crible du développement durable le droit des déchets municipaux, pour passer, en deuxième lieu, à dresser l’état de lieux de son effectivité.

Volume 11/1

Kabir Sanjay Bavikatte and Morten Walløe Tvedt

Beyond the Thumbrule Approach: Regulatory Innovations for Bioprospecting in India

In the wake of the Nagoya Protocol on Access and Benefit Sharing (ABS), there is unprecedented attention on good Green Governance, which implies the development of resource efficient, rights based and effective domestic frameworks to regulate bioprospecting. India has been pioneering in this regard due to its ABS legislation in 2002 that long preceded the Nagoya Protocol. However much has changed since 2002 and while India has learnt a great deal from its “learning by doing” method, there are valuable lessons that can be learnt from innovations in the ABS frameworks of other countries. The innovations of these countries are a great resource for National Biodiversity Authority (NBA) in India that is seeking to make the processing of the bioprospecting applications in India more optimal. The current paper highlights the challenges faced by the NBA in processing the high volumes of bioprospecting applications, analyses the reasons for such challenges and proposes solutions for the same.

Morten Walløe Tvedt

Changes in the Plant Treaty – How Can Benefit Sharing Happen and the Link to Intellectual Property Rights – Assessing the Mutually Supportiveness

In the discussions concerning the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA or the ‘Plant Treaty’) often the access side takes up most of the attention. This leaves the benefit sharing aspects somewhat in the shadows. This article explores the relationship between the utilisation of plant genetic resources and the required benefit sharing. It also looks at the relationship to the intellectual property right systems that are relevant to the plant sector, namely patents and plant variety protection. As this article shows, it is of crucial importance for the Plant Treaty to redefine the trigger points for benefit sharing so that the rights of the providers and particularly farmers in developing countries can benefit from their utilisation. The raison d’être for the multilateral system for open access to plant genetic resources is dependent on the benefit sharing also to happen. Significate changes are required for these obligations to be made actual for the plant breeder companies that are heavily dependent on the open access to plant genetic material for further breeding.

Morten Walløe Tvedt

Access to Plant Genetic Resources – Legal Questions for Material on its Way into the Multilateral System of the Plant Treaty

This article concerns the topic of access to plant genetic resources for food and agriculture. Two international regimes for access and benefit sharing (ABS) are operating side by side. This article discusses the relationship between these two systems for access and benefit sharing, with a particular view to the inclusion of plant genetic resources into the multilateral system for exchange. Since both these systems regulates access and benefit sharing related to genetic resources, it is particular important to clarify the grey-zones between them. Clarifying this grey-zone is important since clarifying them will give guidance to the users as to which access authorities that shall address their access requirement and under which system access will be granted.

Emeka Polycarp Amechi

Using Patents to Protect Traditional Knowledge on the Medicinal Uses of Plants in South Africa

The movement towards the protection of traditional knowledge particularly on the medicinal uses of plants (TKMUP) in South Africa reflects a global albeit belated interest in the protection of traditional knowledge associated with biological resources. Hence, it was not surprising South Africa like most developing nation, sought in response to instances of the misappropriation of its TKMUP and other TK associated with its biological resources, to provide a measure of protection for such knowledge using the intellectual property (IP) system. This is evident in the adoption of the Policy Framework for the Protection of Indigenous Knowledge through the Intellectual Property System in 2008 which identified patent as one of the major IP tools in the protection of the TK. The Policy Framework represents a paradigmatic shift from South Africa’s earlier sceptical and dialectical approach to, and experience with the IP system in context of TK.  This paper therefore examines the benefits and challenges involved in using the patent system in the protection of TK particularly those relating to the medicinal uses of plants (TKMUP). Such examination became necessary as South Africa’s natural capital of biological diversity, together with its wealth of indigenous TK, has been recognised as an important resource base for promoting economic growth through biological innovations under the recently adopted Bio-economy Strategy. It finds that patents offer a great potential in not only protecting TKMUP from misappropriation, but also in promoting the commercialisation of innovative TKMUP or inventions based on or derived from TKMUP in South Africa. However, this can only be possible if the challenges identified in this paper can be successfully navigated.