Literature Review

Climate change can be litigated through tort, common law, statute/policy, public trust doctrine or human rights among others. While climate change litigation appears to have developed in states of the Global North, its use is still relatively recent in states of the Global South. Nor has it been seriously considered from the perspective of international tribunals from the Global South. Therefore, this study examines a human rights approach to climate change litigation in the Economic Community of West African States Court of Justice (ECOWAS Court). This study finds that there are some developments in certain jurisdictions which make a human rights approach promising in terms of locus standi, justiciability, causation and separation of powers and that they can be related to the jurisprudence of the ECOWAS Court. It also finds that the doctrine of exhaustion of local remedies does not apply to the ECOWAS Court. Based on these findings, it is argued that a human rights approach can be successfully deployed to litigate climate change before the ECOWAS Court and that it can wake up West African States from their lethargy in terms of policy on, and treatment of, climate issues. The study concludes that individuals and NGOs may adopt a human rights approach before the ECOWAS Court to influence policy change and/or state behaviour in West African States.

This dissertation is about security governance and land governance particularly land guards, landguardism and associated security in Ghana. Its central argument is that land guards and landguardism threaten Ghana’s stability, peace, security and development. It challenges the ‘Ghana is stable’ thesis which has been dominant in the academic and policy literatures in the last three decades which portray Ghana as a ‘small heaven’, ‘an island of peace’ and ‘an oasis of peace’ in a region associated with instability. It agrees that while Ghana has been stable relative to her neighbours, the Ghanaian state also faces several non-military threats and challenges one of which is landguardism which involves the use of violence or the threat of violence by some actors to protect or guard land or housing property belonging to those actors or other actors. The dissertation traces the genesis of landguardism to the decision in 1877 by the British colonial government to move the capital from Cape Coast to Accra, a decision which dramatically changed the value of land in the town and set in motion a litany of problems including disputes, litigation, conflict and violence. The emergence of landguardism is also strongly linked to Ghana’s land tenure system which is largely insecure and does not protect both communal and private property rights. It is also observed that the Ghanaian state’s lack of political will, its institutional incapacity to democratically resolve social conflicts such as land conflicts and land disputes and to end the ubiquity of landguardism in the cityscape has contributed to the evolution and transformation of landguardism into extremely violent activity in which land guards routinely employ violence, harassment, intimidation and murder to enforce their will. Consequently, landguardism has grown to become a leading security and development problem in southern Ghana particularly in the transition peri-urban zones. Landguardism particularly threatens governability of the entire Greater Accra Region (GAR) as well as the regions bordering GAR. Particularly, the murders, assaults and violence iv destabilise communities, and threaten human security including personal security, food security and livelihoods of peri-urban farmers. It threatens Ghana’s economic security dealing heavy blow to confidence of investors, real estate developers, as well as small businesses such as salt producers, and tourism providers. Besides, landguardism erodes the capacity of the police to provide security as vital police resources are devoted to fighting the menace. Metropolitan, district and municipal authorities facing myriads of economic, security, social and environmental problems are forced to divert their limited resources to ameliorate landguardism. Landguardism also worsens land and chieftaincy disputes. The dissertation explores the state’s relationship with land guards as well as its response to the landguardism threat particularly the state’s decision to criminalise landguardism through Acts 999 and 1036 and the public’s perception of that response. There is a mixed public opinion regarding whether Acts 999 and 1036 are needed in the first place. There is however, public consensus that the lack of enforcement of existing rules and laws governing land management, land acquisition, use of proceeds by chiefs as well as urbanisation, fragile economy, youth unemployment among others have acted as the fuel to fan the flame of landguardism. There is also consensus that criminalising and outlawing landguardism by the state is a right decision. This is shown by the outright opposition to the idea of legalising and regulating landguardism. The thesis identifies landguardism as a network and because it is a network the state by disproportionately focusing on the land guards and ignoring the role of other institutions and actors, has made its policies ineffective. As such more attention should be paid to other actors in the network whose actions and inactions allow landguardism to thrive. The thesis identifies the decline of Asafo Companies that formerly acted as a countervailing force against the chiefly and landowning class as well the fragile economy as playing a major role in the proliferation of landguardism in southern Ghana and recommends that the revival of the Asafo institution and building a robust economy could go a long way to bring sanity to the land sector.

This chapter analyses the leeway for the operationalisation of animal property rights within the European Union. After having outlined the theoretical underpinnings of the concept of human property, this chapter assesses the possible interplay between the concept of animal property rights and recent manifestations of rights of nature. Through a detailed analysis of the case law of the Court of Justice of the EU, this chapter claims that a recalibration of the existing human duties towards strictly protected species, such as grey wolves, provides a more promising new pathway for the recognition of property rights of wild animals in the EU. In fact, it is established that new litigation strategies might focus on pushing courts to acknowledge the property rights of strictly protected species that lie dormant in the existing legislation, which would have a significant normative value for the further development of EU environmental law and governance.

One of the most pressing issues of present times is climate change. With over 55% of the world population living in cities, the question is particularly relevant for urban settlements, and how to consolidate environmental justice in such scenarios. How shall the rule of law approach the matter? It will depend on each place's specific environmental, social and cultural elements, keeping in mind the most needed safeguard of fundamental rights. One of those is property. How does property, underpinning land use and urban planning law, relate to such challenges? This chapter aims to provide an introductory theoretical overview of real (land-related) property and climate change. (Henceforth, by “property” we will be referring to real property). We argue that the impact of property rights on mitigation and adaptation to climate change can be both positive and negative. These will differ across different property rights and planning law regimes in contending with the challenges of climate change.

In contemporary parlance, the environment and its preservation have emerged as a principal focus and concern for the global populace. This phenomenon is known to escalate during times of armed conflict. Armed conflicts directly impact the environment (such as destroying natural resources or pollution resulting from military operations). The investigation into the ecological destruction inflicted upon the natural world during the two world wars demonstrates that the emphasis on safeguarding the environment is no longer a theoretical notion but a concrete actuality encapsulated within the framework of legal doctrines. The protection of the environment encompasses a diverse array of International Humanitarian Law (IHL) and International Criminal Law (ICL). This study scrutinized the safeguards and preservation of environmental rights in times of armed conflicts, whether domestic or international, through the lenses of ICL and IHL.

New fossil fuel developments are inconsistent with keeping global warming below 1.5 °C, and while most climate policies focus on reducing demand for fossil fuels, an emerging transversal consensus promotes efforts to simultaneously reduce supply. In this article, we discuss the obstacles to effective supply-side climate policies posed by international investment treaties that protect corporations against state interventions through investor-state dispute settlement (ISDS). We focus on two recently concluded ISDS cases (Rockhopper v Italy and Lone Pine v Canada) that concern prohibitions on fossil fuel development in ecologically sensitive areas. Italy was ordered to pay a British firm approximately € 250 million in compensation for a ban on offshore oil developments along the coastline, whereas Canada successfully defended Québec’s ban on gas development in the St. Lawrence River. Arbitrators in both cases reasoned that investors should be compensated when oil and gas exploration permits are revoked (even if such a remedy is not available under domestic law) and expressed antipathy towards civic engagement in the policy process. As companies can seek lost future profits through ISDS, these cases show that the system can engender material costs for states enacting supply-side policies. The threat of ISDS can generate a chilling effect, limiting the potential for supply-side initiatives, particularly in the Global South. Initiators of global efforts to limit further fossil fuel developments must consider the obstacles posed by international investment treaties, support efforts to abolish ISDS, and as an interim measure, promote the interpretation of treaty protections in line with climate objectives.

Severe deforestation, land degradation, and the lack of forest products in Ethiopia have necessitated the implementation of a community forestry program since the 1980s by mobilizing the local communities. However, there have been incidents indicating that many of the community forests are either degrading or remaining unproductive. While community forests are, in principle, the collective property of the local community, empirical evidence concerning how property rights impact their management and their role in enhancing rural livelihoods and environmental rehabilitation is lacking. This study aims to investigate the performance of community forestry through the lens of property rights and tenure security, in order to uncover the challenges impeding community forestry in Ethiopia, with a focus on community forests in the Amhara Region. The study gathered primary data on community forest management from two community forests located in East Gojam and North Wollo, using questionnaires, focus group discussions, key informant interviews, and field observations. Additionally, secondary data on legal frameworks were collected from institutions involved in community forestry. The data analysis employed descriptive statistics and thematic analysis. The findings of the study revealed that a majority of respondents (91%) lacked clarity regarding the objectives of establishing community forests, and about 95% claimed that community forests belong to the state. These incidents have led to diminished interest in continuing the program. The study highlighted that the community forestry program suffers from inadequate policy and legal provisions, chronic institutional instability, overlapping mandates, and limited community engagement. These factors have weakened property rights, which are reflected in tenure insecurity and the absence of individual household benefit packages. Consequently, it can be concluded that community forest interventions have been promoted based on general belief in the importance of trees for rural livelihoods and ecosystem rehabilitation, rather than as part of a deliberate and directed policy and strategy. In summary, revitalizing community forestry in Ethiopia necessitates a thorough understanding of property rights and tenure security issues. In this regard, it is imperative for government agencies to enact a clear national strategy for community forestry development and adopt a supportive role to enable communities to establish robust community forestry institutions to safeguard their rights while fostering community forestry and environmental protection activities.

The law relating to intellectual property promotes innovation and other human creations. Concomitantly, environmental law aims to protect the environment. Even though intellectual property rights are temporary grants given to the owner, IP has made a noteworthy contribution to addressing environmental issues. Erstwhile, the awareness of the environmental harm caused by a lot of the technology used in manufacturing, agriculture, and transportation has gained impetus, especially in the last twenty years. Other forms of technology, however, can lessen resource waste and reduce pollution. Therefore, the fundamental motto of intellectual property becomes extremely significant in attaining sustainable development. Sustainable development (SD) has environmental sustainability among the four of its pillar, which can be synergized through intellectual property. The relationship between the TRIPS agreement pertaining to intellectual property and environmental law is complex, but there are still deliberations over it. Simultaneously, the relationship among the WTO’s IP agreement and the (CBD) Convention on Biological Diversity has its focal point of in the Committee on Trade and Environment (CTE).

Climate change crises and environmental imbalances have been a significant concern globally in recent times. The climatic changes give rise to various issues such as global warming, depletion of the ozone layer, deterioration of natural resources, soil erosion, deforestation, and more. Many international and national agreements and policies have been created to protect the environment, from the UNFCCC to the recent Paris Agreement, aiming to control rising environmental issues. However, developed and developing countries must achieve desirable results in combating climate change. Industrial and technological developments are critical reasons for environmental pollution and degradation. Progress is necessary for planned developing countries, but growth and expansions shall also consider ecological sustainability. Technology shall be novel in adapting to the changes, considering the effects it can produce on the environment. Green technology combines technology with the environment, also called environmental technology, clean technology, or sustainable technology. It is a combination of science and technology together to mitigate climatic changes and protect the environment. Green technology is the modern sustainable solution to pressing environmental concerns. India is one of the countries globally showing rapid green technology developments. The authors of this paper have tried to highlight the dire need to modify technological developments vis-a-vis environmental sustainability to protect the environment. The research paper delves into and understands the interface between clean technology’s importance and relevance for ecological sustainability and the role of patent law, particularly in dealing with issues of the environment. The paper shall also establish a harmonious relationship between patent law and its role in ensuring environmental sustainability.

In the last few decades, climate change has created a number of weather anomalies along with their distortive impacts on the environment. Various forms of natural disasters such as floods, landslides, droughts and forest fires disrupt the cultivation of the agricultural sector and strengthen food security. The problem is, the impact of climate change like that has caused crop failures, food crises and even social crises. In fact, climate change is a major risk to good development outcomes. Consequently, there is a need to integrate climate action into the core of development agenda. This sociological juridical research aims to examine what policies and steps the government must prepare to save the agricultural sector, food availability, and the environment. For Indonesia, empowering Intellectual Property Rights (IPR) is a strategy that needs to be used as a guide and direction. The legal system for patents, new plant varieties and geographical indications needs to be used as an instrument as well as a driving force to support agricultural development, food security and distribution of commodities for the people of Indonesia whose population continues to grow.

I consider the role of populism and of private property rights in President Trump’s choice to withdraw the United States from the Paris Agreement on climate change. Despite Trump’s campaign promise, the decision to withdraw was uncertain due to significant disagreement among his advisors, and the perceived but eventually rejected availability of an option permitting the United States to stay in the Paris Agreement while downsizing the commitments made by President Obama. Populist themes are evident in Trump’s June 2017 speech announcing the US withdrawal, including repetitive statements of the need to defend against the machinations of countries which are unfairly taking advantage of the United States, his use of populist tropes such as acting for the people of Pittsburgh rather than the people of Paris, and that the rest of the world is laughing at us. Following significant disagreement among his advisors, the decision to withdraw was in large part due to an active alliance between Steve Bannon, a right-wing populist, and EPA Administrator Scott Pruitt, a staunch ally of major extractive industries exploiting natural resources - organizations that had historically been the target of American populism and progressivism. The legal implications of the Paris Agreement to the American coal industry was crucial to Trump’s ultimate decision to withdraw. Two often overlooked factors of particular importance to American anti-environmentalism are the belief among right wing and rural Americans that modern environmentalism is a threat to constitutionally derived rights to control their private property without government interference; and the relatively greater insistence of Americans on individual freedom rather than collective security. Further, the anti-elitism central to both right and left-wing populism had been successfully extended to climate change science and scientists. I conclude that Trump’s decision primarily was based on those factors that were most likely to validate him personally through reelection - keeping faith with both his right-wing populist voting base and his industry funding base. In doing so he actively brought toward the mainstream the anti-environmentalist views of right-wing populists. Approaches that might lessen the voting strength of anti-environmental right-wing populists include recognizing and exploiting the unholy alliance between big industry and right-wing populists; focusing more attention on the significant environmental risks faced by populations that tend to vote for Trump or Trump-like candidates, such as farmers and military families; and respectful sensitivity to constitutionally-derived property rights and similar issues underlying American anti-environmentalism.

The development of environmental law starting in the mid-20th century involved constant tension with private property. Attempts to protect the dwindling natural resources, extinct species of animals, and ecosystems at risk have often encountered obstacles when they demanded interference with private property. Although the theoretical roots of private property do not justify its transformation into an environmental obstacle and, to a large extent, attach importance to environmental values in justifying private property rights, it was private property that stood at the forefront of legal conflicts that revolved around attempts to expand the environmental protection of natural resources.