AN EVALUATION OF CHINA’S CARBON EMISSION REDUCTION POLICIES ON URBAN TRANSPORT SYSTEM

Hou Jiaru* and Feng Xiangzhao**

ABSTRACT

Climate change has become one of the hottest issues in international law. As the world’s second-largest greenhouse gas emission sector, the transport sector, especially the urban traffic system, is facing much more pressure to reduce its aggregate emissions. This article begins with a theoretical examination of the system theory, takes the cobenefit concept as a methodological guide and discusses various urban traffic emission reduction policies such as travel demand management, vehicles policies, fuel policies, road policies and comprehensive management policies of the urban transport system. It argues that holistic policy reform is the most important means of promoting CO2 emission reduction effectively in urban traffic system. It is unrealistic to only implement one type of policy to achieve CO2 emission reduction targets in urban traffic system; a policy mix will arguably be of great significance to achieve and sustain emission reduction. Therefore, the promotion and perfection of policy system of CO2 emission reduction in urban traffic system and the intensification of policy innovation should be deemed a strategic choice to effectively realize CO2 emission reduction targets in urban traffic system, while promoting the sustainable development of the urban traffic system, the city and the economy.

Keywords: Urban transport system, greenhouse gas emission reduction, policy summarizing.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.2

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* Hou Jiaru, LLM (Vermont), PhD (Remin), Professor at Civil, Commercial & Economic Law School, China University of Political Science and Law, Beijing.

** Corresponding author: Feng Xiangzhao, PhD in economics, Associate Professor, currently serves at Climate Change Research Department, Policy Research Center for Environment and Economics of the Ministry of Environmental Protection, Beijing, China. Email: feng.xiangzhao@prcee.org. The article is supported by Program for Young Innovative Research Team in China University of Political Science and Law.

ACHIEVING SUSTAINABLE DEVELOPMENT THROUGH TAX HARMONIZATION: POTENTIALS, PARADOXES AND POLICY IMPERATIVES

Aniyie Ifeanyichukwu Azuka*

ABSTRACT

Using Nigeria as a case study, this article examines the efficacy of tax harmonization as an option for the achievement of two objectives: the integration of a developing country with other economies, and its sustainable development. It highlights the nexus between tax harmonization – a tax policy option – and sustainable development, as well as the potentials and paradoxes of tax harmonization. The article proceeds on the premise that striking the right balance between the multiplicity of policy options when designing and implementing tax policies is a great challenge for governments; tax harmonization can be adopted for diverse reasons; and the policy of harmonization within the tax sphere impacts on development of the state. The article discusses how practical barriers and challenges associated with implementing tax harmonization may be navigated through empirical information and/or research.

Keywords: Tax, harmonization, sustainable development, Nigeria, economy.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.12

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* MPhil Taxation (Pretoria); LLM (Benin); BL., ACIArb. (UK); ACTI. Associate Research Fellow, Institute for Oil, Gas, Energy, Environment and Sustainable Development, Afe Babalola University, Nigeria.

PENALTIES AND LIQUIDATED DAMAGES IN A CHANGING WORLD: RETHINKING THE COMMON LAW POSITION

Oluwadamilola Odetola*

ABSTRACT

Why did Antonio agree to give Shylock a pound of his flesh in the Merchant of Venice? Why was Shylock unable to get his pound of flesh? Parties to a contract are allowed to determine their obligations but cannot freely determine the consequences of breach in the event of nonperformance. Such is the paradox in the law of obligations. Virtually every modern contract contains a liquidated damages clause and common law jurisdictions strive to ensure that such clauses do not offend the rule against penalties. This paper examines the principle of contractual freedom within the narrower context of liquidated damages and penalty clauses. It revisits the principles of the law of penalties as expounded in the classic case of Dunlop Pneumatic Tyre Co. Ltd v. New Garage & Motor Co. Ltd, and considers how well they have fared after a century. In making this evaluation, particular attention is paid to English, Australian and Nigerian law. There are issues thrown up by the rigid dichotomy between liquidated damages and penalties and the extent to which commercial partners can negotiate around them. As commercial contracts become more complex and multi-jurisdictional, clarity, certainty and security of transactions have become more fundamental to commercial dealings. This article finds that the dichotomy between penalty and liquidated damages has not only become irrelevant, it also undermines these fundamentals. Arguments made in favour of the dichotomy are self-defeating and confusing. Judicial attempts to bring the penalty rule in consonance with commercial realities also come with problems of their own. Therefore, an abolition of the dichotomy is advocated. This article proposes that in place of the existing unjustifiable paternalistic approach, all agreed damages should be prima facie valid, subject to clear cases of unequal bargaining power and economic oppression.

Keywords: Penalties; liquidated damages; genuine estimate; commercial justification.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.11

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* LL.B (Ibadan), B.L, BCL (Oxon), Law Teacher and Doctoral Researcher at the University of Kent, United Kingdom; and Associate Research Fellow, Institute for Oil, Gas, Energy, Environment and Sustainable Development, Afe Babalola University, Nigeria, email: dodetola@ogeesinstitute.edu.ng

LAW OF THE DANCE: LEGAL AND REGULATORY FRAMEWORK FOR PROMOTING APPROPRIATE MUSIC CONTENT IN NIGERIA

Augustina T. Clark*

ABSTRACT

The Nigerian music industry has evolved from humble beginnings. It has witnessed a rapid ascendance from ancient cultural songs based on the norms and customs of the people around where the music emanated, to a global multi-billion-naira industry. The industry is largely regulated by the National Broadcasting Commission, National Film and Video Censors Board, and the Copyright Protection laws and other interest bodies. These institutions have statutory roles to review and censure music contents that overstep or collide with cultural, legal, ethical or intellectual property requirements or norms. However, the recent rise in the rate of release and production of lewd, inappropriate and culturally incompatible music contents in the Nigerian music industry have generated calls for a closer review of how regulatory institutions can be strengthened to effectively address the negative impacts of contemporary music on Nigerian laws and norms, especially among youths. This article evaluates the roles of law in regulating the contemporary music industry in Nigeria to ensure coherence and compatibility with ethical, legal and cultural norms. It analyses how current regulatory institutions in Nigeria can be strengthened to effectively discharge their regulatory roles of ensuring the appropriateness of music content for the good of the Nigerian society.

Keywords: Music, appropriate content, videos, lyrics, effects, youths, culture.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.13

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* LLB (Benin), BL (Abuja), LLM (Ibadan), Doctoral Candidate (Unilorin), Member (DCON) (Professional Negotiator and Arbitrator). Contact: tobotina@yahoo.com; clarkau@abuad.edu.ng; 08023598075; 07061648378.

THE DOCTRINE OF PARTY AUTONOMY IN INTERNATIONAL COMMERCIAL ARBITRATION: MYTH OR REALITY?

Sunday A. Fagbemi*

ABSTRACT

The increased preference for arbitration has buttressed the growing disenchantment for traditional adversary method of litigation. The foundation of every arbitration proceeding is the arbitration agreement. The parties’ agreement constitutes a contract to refer disputes, which have arisen or may arise in future between them to arbitration. The freedom of parties to consensually execute arbitration agreement is known as the principle of party autonomy. The principle provides a right for the parties to international commercial arbitration to choose applicable substantive law and these laws when chosen shall govern the contractual relationship of the parties. However, the pertinent questions have always been: Do parties actually have absolute freedom to determine the arbitration process? To what extent has this been achieved in the resolution of disputes having international concerns? And lastly, is party autonomy a myth or reality? These questions and many others have continued to provoke discussions in many fora on the applicability of party autonomy in international commercial arbitration. To find meaning to the above questions, this article analyses the principle of party autonomy. The ultimate aim of the article is to answer the question whether the practical application of the principle of party autonomy is indeed a myth or reality?

Keywords: Party Autonomy, International Commercial Arbitration.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.10

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* LL.B (Hons), LL.M (Ife), BL, Senior Lecturer, Department of Public Law, Faculty of Law, University of Ibadan, Ibadan, Nigeria, telephone: 08034709340; 08101800280, e-mail: sakinfagbemilaw@gmail.com.

INTERNATIONAL LEGAL PROTECTION FOR CLIMATE REFUGEES: WHERE LIES THE HAVEN FOR THE MALDIVIAN PEOPLE?

Simran Dolla*

ABSTRACT

Climate change and sea level rise are not just mere words for the Maldivian people; they are a grim reality that is consuming their nation. Sea level rise presents one of the gravest dangers for the Maldives because of its already low-lying characteristics. As the levels continue to rise, the nation is sinking into extinction. Some 300,000 people of the Maldives are on the brink of losing their homes and becoming climate change refugees. The existing international laws are not only ill-equipped to provide protections or the much-needed relief, they also make no mention of climate change refugees. Therefore, as the Maldivians await the result of the 2015 Paris Convention whose purpose is to achieve a binding universal agreement on climate change, they continue to face numerous human rights violations. Additionally, the loss of a nation does not only mean the loss of a home, it also means the loss of sovereignty at the international level. However, at the present time, finding a safe haven for its people is at the top of the Maldives agenda. The former president of the Maldives, Mohamed Nasheed, fought vigorously to bring the issue of sea level rise and climate change to the forefront. Knowing that such a day where he would have to move his people was not far in the distance, he also made plans to relocate. India and Australia have both been considered possible new homes; however, are both countries willing to take in such a large infiltration of refugees? What are the repercussions of moving to these countries? Would an artificial island possibly be the home the Maldivians are looking for? This article examines the options the Maldives has for relocation and why perhaps an artificial island may be a better solution.

Keywords: Maldives, climate change, refugees, justice, protection, international law.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.1

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* J.D. (cum laude), Florida A&M College of Law, United States of America.

EYES ON BANGLADESH’S DISAPPEARING COASTS: PROPOSED CONSTITUTIONAL PROTECTIONS FOR COASTAL COMMUNITIES PARTICULARLY VULNERABLE TO CLIMATE CHANGE1

Sabrina Persaud*

ABSTRACT

Climate change, a phenomenon caused by global warming, has impacted just about every part of the earth. As polar ice caps continue to melt, people across the world are experiencing record-breaking heat waves and warmer winters. These erratic weather patterns are just one of the many impacts of climate change. Changes in temperature have altered ecosystems and habitats for terrestrial and marine wildlife, and caused human health to deteriorate. Larger, more industrialized countries are the major contributors to climate change; however, smaller countries, such as Bangladesh, suffer the consequences. This article analyses the negative effects that climate change has had on Bangladesh, particularly the vulnerable coastal communities of Bangladesh. Warmer temperatures lead to warmer waters, a breeding ground for tropical cyclones and spells disaster for those living along Bangladesh’s coasts. This article proceeds to suggest possible domestic and international legal solutions to the problem and examines the law that supports these proposals.

Keywords: Climate change, coast, Bangladesh, constitution

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.3

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* Juris Doctor (JD) Candidate, Florida Agricultural and Mechanical University (FAMU) Law School, United States.

1 “Eyes on Bangladesh’s Disappearing Coasts” is a subtle reference to the eye of a tropical system that maintains contact with the Bangladeshi coasts and wreaks havoc for coastal communities. Every cyclone with wind speeds exceeding 74 mph has an eye at the centre of the storm, which is the calmest part of the storm. National Weather Service, “Tropical Cyclone Structure” accessed 28 July 2015.

PRISONERS’ RIGHTS UNDER THE NIGERIAN LAW: LEGAL PATHWAYS TO PROGRESSIVE REALIZATION AND PROTECTION

Marcus Ayodeji Araromi*

ABSTRACT

A prisoner is denied certain rights as a result of the custodian judgment passed on him or her by a court of law. A prisoner in custody is specifically subjected to restraint of movement and can, therefore, not have total assurance of enjoyment of the freedom of personal liberty under the law. Be that as it may, a prisoner who is observing the sentence of court by being in custody does not totally lose his rights as a human being and must, therefore, enjoy some basic rights despite being confined to prison. In reality, prisoners are seen as being less of human beings and are not well treated when observing custodian sentence. Some rights are denied the prisoners by the prison administrators and, by extension, the State by lack of will to promote enabling environment and treatment to the prisoners. It is against this backdrop that this article appraises prisoners’ rights that are to be respected, protected and fulfilled under the law, at national, regional and international levels. The article argues that there are certain essential and set global standards for the treatment of prisoners, which are not currently followed in prison administration in Nigeria. This article examines basic fundamental human rights which should not be forfeited as a result of incarceration. It evaluates how such rights fare in the Nigerian prison system, and itemizes practical measures that must be put in place to ensure the protection and fulfilment of these rights in Nigeria.

Keywords: prisoners, human rights, health, liberty, freedoms.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.8

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* Senior Lecturer, Department of Public Law, Faculty of Law, University of Ibadan; email address: demarc007@hotmail.com, phone no: 08052236247.

THE MULTI-AGENCY RESPONSE APPROACH TO THE MANAGEMENT OF OIL SPILL INCIDENTS: LEGAL FRAMEWORK FOR EFFECTIVE IMPLEMENTATION IN NIGERIA

Ayobami Olaniyan*

ABSTRACT

The devastating effects of oil spill incidents on humans and the environment can be overwhelming. Effects such as loss of life, forced displacements, loss of property and serious health risks cannot be overlooked. Also, the long-term damage to the ecosystem, sea life and biodiversity are some of the long-term consequences of an oil spill incident. Thus, a swift response to oil spill incidents is always necessary in order to minimize these effects. The multi-agency response approach emphasizes a holistic and coordinated involvement of several related institutions and entities in order to ensure adequate response to any category of oil spill incident. Even though the multi-agency approach seems to be already embedded in relevant legislation on oil spill control and containment in Nigeria, its operationalization has been less impressive. This article discusses the practical relevance and implementation of multiagency response to oil spills in Nigeria. It appraises the efficacy of relevant Nigerian legislation providing for multi-agency response to oil spill control and containment in Nigeria, highlights the weaknesses of the current regulatory arrangement, and suggests legal reforms to make the multi-agency response approach more efficient and effective in Nigeria. This includes the need to harmonize several overlapping legislations and governance institutions on oil spill response and management to ensure coherence and systemic integration.

Keywords: Multi Agency Response, oil spill, polluter-pays, human rights, Niger Delta.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.5

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* LL.B (Ife), B.L (Abuja), LL.M (Aberdeen), Lecturer, College of Law, Afe Babalola University, Ado-Ekiti (ABUAD), Nigeria; ajolaniyan@abuad.edu.ng, ayobamiolaniyan@gmail.com; Associate Fellow at the Institute for Oil, Gas, Energy, Environment and Sustainable Development, Afe Babalola University, Nigeria.

POWERING NIGERIA THROUGH RENEWABLE ELECTRICITY INVESTMENTS: LEGAL FRAMEWORK FOR PROGRESSIVE REALIZATION

Peter Kayode Oniemola*

ABSTRACT

Renewable energy has a prominent role in promoting energy access and addressing environmental concerns with energy use in Nigeria. However, there are legal barriers that have not allowed renewable energy to be used in the Nigerian electricity sector. The absence of an effective legal framework to encourage and promote investment in renewable energy is a major challenge. This article investigates the barriers to promotion of investment in renewable electricity in the country. These barriers include the lack of unison and clarity of roles for institutions relevant to the promotion of renewables, high cost and lack of funds, inability of consumers to bear the cost of subsidies, lack of priority access and connection to the grid, short licensing duration, and lack of adequate and reliable information, which consumers, investors and the government can rely upon. To address these concerns, and to make investments in the renewable energy sector more favourable, there is the need to develop an effective legal framework that addresses barriers to investment in renewable electricity. This article presents insights on how the law can be used as an instrument for realizing the development of renewable electricity in Nigeria.

Keywords: Renewable, energy, power, electricity, investment, sustainable development.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.4

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* LL.B (Ilorin), BL (Nigerian Law School), LL.M (Ibadan), PhD (Aberdeen), Legal Practitioner & Consultant email: petermola@yahoo.com.

REALIZING THE RIGHT TO DEVELOPMENT IN NIGERIA: AN EXAMINATION OF LEGAL BARRIERS AND CHALLENGES

Olaitan Olusegun* and Oyeniyi Ajigboye**

ABSTRACT

The United Nations General Assembly has, through several Conventions, emphasized the need for the full realization of the right to development, alongside the rights to food and clean water, the right to shelter and the right to housing. According to the United Nations, if Economic Social and Cultural Rights (ESCR) are violated, the right to development is also violated. However, the realization of ESCRs in Nigeria continues to face challenges, therefore, the realization of development remains germane both in Nigeria and the international community at large. The search for development in Nigeria, therefore, requires the grasping of the conceptualized Right to Development (RTD), and dealing with the barriers and legal challenges, which affect the realization of the RTD. This article, therefore, aims to analyse the content, commitment, and nature of the right to development and examines the barriers to its implementation in Nigeria. The article discusses problems such as governmental corruption, lack of resources, lack of institutional capacity, poverty, internal conflicts, judicial performance, lack of implementation and enforcement of laws, and concludes that the goals of sustainable development in Nigeria cannot be fully realized without a conscious effort towards reduction in corruption which can practically serve as a panacea for achieving meaningful development.

Keywords: Development, Developing Countries, Human Rights, Economic, Social and Cultural Rights

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.7

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* Lecturer, Department of Public and International Law, College of Law, Afe Babalola University, Ado Ekiti, Ekiti State, Nigeria. Email: o.olusegun @hotmail.com

** Lecturer, Department of Public and International Law, College of Law, Afe Babalola University, Ado Ekiti, Ekiti State, Nigeria. Email: oyeajigboye @gmail.com

CUSTOMARY ARBITRATION IN NIGERIA: A REVIEW OF EXTANT JUDICIAL PARAMETERS AND THE NEED FOR PARADIGM SHIFT

Muhammed Mustapha Akanbi*, Lukman Adebisi Abdulrauf**, and Abdulrazaq Adelodun Daibu***

ABSTRACT

Two forms of arbitration exist in present-day Nigeria; the first is indigenous to the various communities in the country and it is determined by the customs and traditions of the individual community. The second, which was imported, derives its source from the general laws and practice of England. The latter, which is arguably, alien to the culture and tradition of traditional Nigerian communities, has often been superimposed and applied by courts. The continuing subjugation of customary arbitration can be seen in the attitude of the Nigerian courts, whereby reliance is placed on the parameters of modern arbitration in the determination of a valid customary arbitration award in Nigeria. This article contends that the attitudes of courts in the determination of the binding nature of an award given under customary arbitration, using the parameters of modern arbitration, has caused considerable damage to the essence and potency of customary arbitration practice in Nigeria. In order to be authentic, it is contended that judicial development of customary arbitration, must respond to the traditions, attitudes and goals of the people whose society is under consideration. It should not be subject to a validity test by reference to orthodox arbitration or arbitration under the received English law. Consequently, the article examines the extant parameters to which the Nigerian courts subject the characteristics of customary arbitration in Nigeria. The article discusses the need for a paradigm shift in order for customary arbitration to respond to the exigencies of customs.

Keywords: Arbitration, custom, tradition, dispute resolution, English law, Nigeria.

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* LL.B (Ife), LL.M (Lagos), Ph.D. (KCL, London), BL; Professor of Law, Department of Business Law, Faculty of Law, University of Ilorin. Nigeria e-mail: laroungbe@yahoo.co.uk

** LL.B (Zaria), LL.M, (Ilorin) BL; Lecturer, Department of Public Law, Faculty of Law, University of Ilorin, Ilorin. Nigeria e-mail: lukmanrauf@gmail.com

*** LL.B, LL.M, (Ilorin) BL; Lecturer, Department of Private and Property Law, Faculty of Law, University of Ilorin, Ilorin, Nigeria: E-mail: abdulrazaqdaibu@yahoo.com

ENHANCING STAKEHOLDER PARTICIPATION IN THE NIGER DELTA REGION: THE POTENTIAL CONTRIBUTIONS OF THE ILO CONVENTION 169

Afolasade A. Adewumi* and Adeniyi Olatunbosun**

ABSTRACT

Nigeria’s indigenous people, found in the Niger Delta area, have for many years experienced developmental challenges associated with oil exploration. The region has been perennially engulfed in various forms of agitation pertaining to self-government and resource control. Over the years, attempts to solve these problems have been merely palliative, basically due to local stakeholders’ perception that they are excluded from decision making about the issues that affect their existence. For many years, the Nigerian government has grappled unsuccessfully with the challenge of fostering broad-based participation and stakeholder engagement in the Niger Delta. This article contends that the problems which have arisen can be addressed through the ratification of the International Labour Organization (ILO) Convention 169 by the Nigerian government. Owing to a recent constitutional alteration in Nigeria, the ILO Convention 169 will not require domestication, arguably, making it a ready and viable toolkit for the progressive realization of participatory rights in the Niger Delta.

Keywords: Niger Delta, ILO, constitution, human rights, pollution, participation.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.6

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* LL.B, LL.M, PhD, BL, Lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Ibadan, Ibadan, Nigeria.

** LL.B, LL.M, M.Phil, PhD, BL, Professor of Law and Dean, Faculty of Law, University of Ibadan, Ibadan, Nigeria.

AN EXAMINATION OF CONTEMPORARY ISSUES RELATING TO MEDICAL LIABILITY

Elizabeth Smaranda Olarinde* and Clement Chigbo**

ABSTRACT

A member of any profession, it is supposed, possesses the skills, which her/his training asserts. As such, the person is liable for the exercise of duty within their trained capacity and culpable for negligence in its practice. In Nigeria, cases of negligence are under-reported; consequently marginal compensations are made out. If the standard of measure suitable to the Court is that the professional should act within the generally accepted practice, what becomes of the practitioner who is aware of better measures that the exercise of due care would demand? To what extent is the patient’s consent informed, valid and real? What of specific cases where a patient is not in the position to grant consent? Using the Bolam criteria, this paper argues that standard of care is relative. Arguably, a professional having specialised skill should exercise discernment concomitant with their speciality and better judgement than the general skill level. Furthermore, a doctor has the obligation to inform the patient of the risks, however small, otherwise (s) he dispossesses the patient of an informed choice and that such explanation must be within the limits of the practice among colleagues. Such cases may transcend from the domain of contract into torts. For example the promise of an operation different from the promise of success, lies within the field of tort. In specific cases where it is impossible for the patient to give consent, the doctor retains the duty to do what is in the best interest of the patient. The Bolam test is a valid threshold in determining whether the doctor has acted within prescribed and expected standards to avoid negligence and whether such doctor is liable or not for damages.

Keywords: Medical, liability, negligence, Bolam, standard of care

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* E. Smaranda OLARINDE, Associate Professor and Provost College of Law, Afe Babalola University Ado-Ekiti, Solicitor and Advocate of Supreme Court of Nigeria, E: esolarinde@ abuad.edu.ng/ smarandao@yahoo.com.

** Clement CHIGBO, Solicitor of England and Wales, Senior Lecturer, Department of Private and Business Law, College of Law, Afe Babalola University Ado-Ekiti, Ekiti, Nigeria.

NESREA AND NCC REGULATIONS ON TELECOMMUNICATION MASTS: IMPLEMENTING THE PRECAUTIONARY PRINCIPLE

Tolulope Ogboru*

ABSTRACT

There have been conflicting findings in studies conducted to determine whether or not electromagnetic radiations (EMR) emitted by telecommunication masts are injurious to human health and the environment. The recent imbroglio between the National Environmental Standards and Regulations Enforcement Agency (NESREA) and the Nigerian Communications Commission (NCC) brought this matter to the fore in Nigeria. The conflict relates to the set back distance telecommunication operators are required to adopt as they site their masts near buildings. While NESREA’s Regulation provides for a farther distance because of its belief that electromagnetic radiations do have adverse impact on human health; NCC on the other hand insists that EMR does not pose any danger to human health. Having examined literature, report of studies and various opinions, it is evident that the scientific community is yet to agree on the effects of EMR on human health and the environment. This paper argues that this lack of scientific certainty should not be a reason to delay legislative action that will safeguard people’s health and their environment. The paper evokes the importance of the precautionary principle of international law to the effect that lack of full scientific evidence should not be used as a reason for postponing measures to prevent irreversible illnesses and environmental degradation that may result from EMR emitted by telecommunication masts. This paper discusses the need for regulatory agencies and the legislature to adopt the precautionary principle as they review and harmonise the two overlapping Regulations.

Keywords: Telecommunication Towers, NESREA, NCC, RF, EMR, Precautionary principle

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* LL.B, BL, LL.M, Ph.D, Senior Lecturer, Faculty of Law, University of Jos, Nigeria. Correspondence e-mail: ogboruit@yahoo.com; Tel: 08035024290.

IMPROVING SUBSTANTIVE AND PROCEDURAL PROTECTIONS FOR INDIGENOUS RIGHTS IN REDD+ PROJECTS: POSSIBLE LESSONS FROM BRAZIL

Kristen Taylor*

ABSTRACT

Nations around the world are beginning to acknowledge that climate change is an imminent threat to our planet and are responding with mitigation efforts. REDD+ (reducing emissions from deforestation and degradation plus) may be a way to minimize the deforestation that has lead to the increased greenhouse gas emissions causing a change in our global climate. Although REDD+ is one the leading proposals to address climate change, it lends itself to potentially harmful effects on indigenous people, if the regulating nation does not possess adequate policy for protections of their indigenous peoples. Indigenous peoples face the challenge of safeguarding access to their lands and the surrounding forests. In Brazil, there have been issues regarding who has property rights to the rainforest, and because of Brazil’s current legal framework, ambiguity regarding land tenure rights is the greatest obstacle to overcome when implementing successful REDD+ programs. As demonstrated in Colombia, the enumeration of specific environmental rights in their newest Constitution has effectively acknowledged indigenous rights and specific autonomy in land rights to their communities, thus requiring equal treatment and guaranteeing respect for indigenous cultures. Is constitutional recognition of indigenous peoples’ land tenure rights enough to ensure a successful implementation of REDD+ programs? If so, can Brazil effectively balance the need to implement climate change mitigation efforts while upholding indigenous people’s sacred ties to their lands? This paper examines how Brazil can prepare itself for an Indigenous REDD+ by modeling the implementation and enforcement of its current legal framework after that of Colombia.

Keywords: REDD+, indigenous rights, land grab, Brazilian Amazon, deforestation, Kayapó

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* JD (Florida A&M University College of Law); B.B.A (Georgia State University). Special thanks to Randall S. Abate, Professor of Law and Director of the Center for International Law and Justice at Florida A&M University College of Law, for his treasured advice and support in the preparation of this article.

INCREASED RELEVANCE AND INFLUENCE OF FREE PRIOR INFORMED CONSENT, REDD, AND GREEN ECONOMY PRINCIPLES ON SUSTAINABLE COMMONS MANAGEMENT IN PERU

Carlos A. M. Soria Dall’Orso, Ph. D.*

ABSTRACT

This paper examines unique opportunities provided by international discourses and practices of the Green Economy approach and valuation of ecosystem services (as promoted under the international climate change regime) on the sustainable management of indigenous forests and lands in Peru. It examines the influence of epistemological changes prompted by the United Nations Framework Convention on Climate Change (UNFCCC) on the improved understanding and conceptualization of the role of forests and sound natural resource management; and how these changes at the international level have positively impacted traditional land rights in Peru.1 It also analyses how increased development and financing of Reducing Emissions from Deforestation and Forest Degradation (REDD) processes and projects have enhanced the incorporation of interculturality into indigenous peoples’ public policy in Peru. This paper discusses the Peruvian experience, most especially how international demands for greater transparency in forest management led to the evolution of the Prior Consultation Law and Forestry (FPIC) Law in Peru. It reviews the growing relevance and influence of the Peruvian FPIC law, its impact on sustainable forest management, and the opportunities and practical challenges it portends for sustainable commons management in Peru.

Keywords: Peru, forests, green economy, FPIC, REDD, indigenous

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* MSc (Ecuador), PhD (Australia), international consultant, researcher, lecturer and activist on environmental and indigenous public policy since 1988. Dr. Soria Dall’Orso is the co-author of the Code of Environment and Natural Resources of Peru (1990); the General Environmental Law (2005), the Forestry and Wildlife Law 29763 (2011) and Regulation of the Forestry and Wildlife Law 27308 (2001). He is an Associate Researcher with the Institute for Nature, Territory and Renewable Energies Sciences (INTE) of the Pontifical Catholic University of Peru (PUCP). He teaches in the Master’s Program in Sustainable Development and Biocomerce at PUCP; Master’s programs of the Faculty of Forestry at the Universidad Nacional Agraria La Molina; Faculty of Business Administration at the Universidad San Ignacio de Loyola; and at the Postgraduate School of the Pedro Ruiz Gallo University of Lambayeque. He supported the Amazonian indigenous peoples and the Peruvian government negotiations in 2001 and 2009. From 2012-2014, he returned to the World Wide Fund for Nature WWF-Peru as Senior Policy Specialist on issues of indigenous peoples in isolation, developing voluntary standards for palm plantations, development of forestry legislation, among others. As such, he was very instrumental to the activities of World Wildlife Fund and the Coordinator of Indigenous Organizations of the Amazon Basin COICA to develop the content of the proposed Amazonian Indigenous REDD in various projects. In 2014 he helped the dialogue around the development of the regulations of the Forestry and Fauna Law.

1. The United Nations Framework Convention on Climate Change (UNFCCC) came into force in 1994 with the aim of reducing greenhouse gases (GHGs) emissions into the atmosphere. The UNFCCC COPs have been organized since 1995 as part of the commitments of the UNFCC. The Kyoto Protocol, although failed to come in to force, was, nevertheless, an important milestone whose failure to achieve still haunts us. The Kyoto Protocol ended in 2012 and the world seeks to establish a new solid and binding agreement climate change measures. For a list of UNFCCC COPs, see accessed June 15, 2015.

FOOD AND AGRICULTURAL LAW: READINGS ON SUSTAINABLE AGRICULTURE AND THE LAW IN NIGERIA

Yemi Akinseye-George, SAN, FCIArb.*

OVERVIEW

The book, Food and Agricultural Law is Nigeria’s first authoritative book publication on food, agriculture and renewable energy. In reviewing this book, the ultimate aim is to examine the key arguments and fundamental assumptions of the book and to evaluate whether it significantly advances knowledge in this unique and important area of law in Nigeria. After a painstaking review and analyses of this book, it is evident that the book delivers more than it promised. This theory-laden, analytical and expository publication offers excellent wealth of materials and knowledge on food, agriculture and renewable energy. The book will be relevant for a long time to come.

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* Professor of Law, Legal Practitioner, Consultant and Head, Department of Public and International Law, Nasarawa State University, Keffi and Visiting Professor, Afe Babalola University, Ado-Ekiti.

FORUM ISSUES IN THE ENFORCEMENT OF REGULATORY OBLIGATIONS OF NIGERIAN PUBLIC COMPANIES

Olumide Famuyiwa*

ABSTRACT

Jurisdictional conflict between judicial fora is often a common issue in countries that use a mix of specialist and regular Courts to resolve civil and criminal cases. In Nigeria, owing largely to lack of clear guiding principles, this conflict reflects presently in the judicial determination of the regulatory obligations of the country’s public companies. This paper focuses on this conflict. It examines statutory and case law rules at the centre of the jurisdictional conflict between the Federal High Court and the Investment and Securities Tribunal, in relation to the enforcement of reporting obligations of Nigerian public companies. As a contribution to regulatory clarity and law reform, it proposes and discusses normative principles for the resolution of this perceived jurisdictional conflict.

Keywords: regulation, jurisdiction, banking, public companies.

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

LEGAL STATUS OF SECTIONS 10 AND 12 OF THE NIGERIAN OIL AND GAS INDUSTRY CONTENT DEVELOPMENT ACT (2010) UNDER THE GATT REGIME

Adewale Adetola Aladejare*

ABSTRACT

The Nigerian Federal Government in 2010 made a regulatory intervention in the Nigerian oil and gas industry by enacting the Nigerian Oil and Gas Industry Content Development Act (The “Act”). The Act prescribes in sections 10 and 12 that preference should be given to ‘...goods manufactured in Nigeria’. This paper considers the legal standing of these sections in international trade law against the backdrop of the national treatment principle contained in Article III of General Agreement on Tariffs and Trade (GATT). A comparative analysis is made using Article III to establish that the two sections flagrantly violate the obligations of the Nigerian state as a member of the World Trade Organisation (WTO) and GATT. An unexplored contract alternative to legislation argument is then advanced and recommended.

Keywords: Local content, trade, GATT, WTO, national treatment

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* Adewale Aladejare, LL.M (UK), LL.B (Ife) is a lecturer at the College of Law, Afe Babalola University, Ado Ekiti.