oa Comparative and International Law Journal of Southern Africa - Environmental liability under the terminal operators convention: a South African perspective
This article examines the Terminal Operators Convention (TOC) in light of South Africa's environmental law regime. Entrenched in section 24 of the Constitution of the Republic of South Africa, 1996 and environmental framework legislation, are environmental rights and responsibilities that may govern a terminal operator's activities, irrespective of other international environmental obligations. The article explains the role of a terminal operator and illustrates how his activities may harm the environment. The article also focuses on interpreting article 5(1) of the TOC by using some South African approaches of judicial interpretation. In particular, it considers whether under the TOC, a terminal operator could be liable for loss or damage to the environment. To facilitate this determination, a comprehensive study of the principle of remoteness, and the role it plays in determining the extent to which loss or damage can be covered, is made. In the final instance, this article examines the inadequacies of the TOC, the greatest being that it is unlikely to cover environmental loss and damage. The authors draw ideas from the TOC and other international environmental instruments, and propose that South Africa should promulgate suitable legislation that imposes rigorous liability on a terminal operator for damage caused to the environment through his/her activities.
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