Land Law Focus Group

Kirstin GilmourGLMKIR001

An exploratory inquiry into the right to mine in South Africa within the context of the international paradigm of sustainability

Research Topic

The Constitution of the Republic of South Africa 1996

S24: Everyone has the right-

(a) To an environment that is not harmful to their health or wellbeing; &

(b) To have the environment protected, for the benefit of present and future generations, through reasonable legislative & other measures that-

(i) prevent pollution & ecological degradation;

(ii) promote conservation; &

(iii) secure ecologically sustainable development & use of natural resources....

The New Minerals and Petroleum Resources and Development Act 28

of 2002

Preamble:

‘....it is the State’s obligation to protect the environment for the benefit of present and future generations and to ensure ecologically sustainable development of mineral and petroleum resources....’

Today’s Focus:

Determining what sustainability means under international law &what has influenced its development over time to become the foundational norm it is today.

Sustainability under international law

Developments by International Organisations:

-The UN Commission on Sustainable Development, 1992.

Of Regional Significance:

- Southern African Development Commmunity 1992;

Sustainability under international law

Developments in Formal Sources of International law:

-Article 38 ICJ: particularly Conventions & Customary Law.

- Revised African Convention on Conservation of Nature & Natural Resources

Sustainability under international law

Developments in Informal sources / ‘soft law’:

1) Stockholm Declaration 1972;2) UN Conference on the Environment and

Development 1992;- Rio Declaration &- Action plan Agenda 21 adopted.

3) World Summit on Sustainable Development 2002.

- Johannesburg Declaration & - Plan of Implementation adopted.

Sustainability under international law

Development by decisions of the ICJ:

Cases often reflect rules of customary international law:

-Advisory Opinion on the Legality of the Treaty on Nuclear Weapons.

- Case Concerning the Construction of the Gabcikovo-Nagymaros Project (Hungary/Slovakia)1998 37 ILM 162

Sustainability under international law

Internationally accepted definition of Sustainable Development:

Brundtland Report:

“[D]evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs. Two key concepts:

1) Concept of ‘needs,’ especially of the world’s poor;

2) Idea of limitations imposed by State such as social organisation on the environment’s ability to meet present & future needs.”

The End

Bibliography:

- Glazewski J Environmental Law in South Africa (2005) Lexis Nexis Durban.

- Glazewski J and Posnik S “Compliance with international environmental standards and expectations: review of international developments” 2000 SAIMM 211.

- Constitution of the Republic of South Africa, 1996.- New Minerals and Petroleum Resources and Development Act 28 of 2002.

- Decision of the Revised 1968 African Convention (Algiers Convention) on the Conservation of Nature and Natural Resources, Doc. Ex/CL/50(III), Assembly/AU/Dec.9(II).-Report of the World Commission on Environment and Development 43.-Treaty of the Southern African Development Community, Windhoek, 17 August 1992.

- Case Concerning the Construction of the Gabcikovo-Nagymaros Project (Hungary/Slovakia)1998 37 ILM 162.- Legality of the Treaty on Nuclear Weapons (Advisory Opinion) [1996] 35 ILM 809.