A Criminal Law Shield for Nature

• Pages: 10543-10566
• Date: 01 September 2025
• Published date: 01 September 2025
• Author: Ying Xie,Michael Faure

SEPT/OCT 2025 ENVIRONMENTAL LAW REPORTER 55 ELR 10543

A CRIMINAL LAW SHIELD FOR NATURE

by Ying Xie and Michael Faure

Ying Xie is a Ph.D. student at the Faculty of Law of Maastricht University.

Michael Faure is Emeritus Professor at the Faculty of Law of Maastricht University and at Erasmus School of

Law of Erasmus University Rotterdam, and an Adjunct Professor at the Faculty of Law of Universitas Indonesia.

The contents of environmental law are often the

result of a balancing exercise between the desire to

use natural resources for developing the economy

and protecting nature.1 e result of that balance can be

found in the various instruments regulating the way in

which the natural environment can be used. Tradition-

ally, command-and-control instruments were used, but

increasingly market-based and sua sive instruments are al so

employed.2 e enforcement of legal rules incorporating

the various instruments can be based on either private law

instruments (such as liability rules) or on public law rules

(such as administrative law or criminal law).

Many legal systems also use criminal law to enforce

rules aiming to protect nature.3 However, the challenge is

to determine how criminal law should be shaped to achieve

1. Mitsuru Kawamoto, Global Environmental Treaty Regimes as Balancer Be-

tween Environmental Conservation and Economic Growth: Facilitating Eec-

tive Implementations of Global Environmental Treaty Regimes, in I-

 D   E: S C 

C M  S 81 (Shiro Hori et al. eds.,

Springer 2020).

2. For a discussion on market-based and suasive instruments, see Judith van

Erp et al., Introduction: e Concept of Smart Mixes for Transboundary Envi-

ronmental Harm, in S M  T E

H 3, 11-13 (Judith van Erp et al. eds., Cambridge Univ. Press 2019).

3. See, inter alia, Michael Faure & Katarina Svatikova, Enforcement of Envi-

ronmental Law in the Flemish Region, 19 E. E  E’ L. R. 60,

62-70 (2010); Mengxing Lu & Michael Faure, Does the Tiger Have Teeth? A

Critical Examination of the Toolbox Approach of Environmental Law Enforce-

ment in China, 31 R. E. C.  I’ E’ L. 89, 94-99 (2022);

Joseph Nwazi, An Evaluation of Environmental Criminal Liability and En-

forcement in Nigeria, 30 A. J. I’  C. L. 323 (2022).

Criminal law has been widely used around the world to protect nature, but how to structure it for optimal

protection remains unclear. This Article proposes a framework for applying criminal liability to offenders who

create a risk of harm or harm to nature. First, it offers three models for liability, including abstract endanger-

ing, actual endangering, and independent/autonomous crime. Second, criminal penalties applied should be

effective, dissuasive, and proportionate, including f‌ines and imprisonment as well as remedies that restore the

original state of nature and prevent future damage. Third, when corporations commit crimes against natural

resources, both the corporations and individuals involved should be subject to criminal liability. The Article

f‌inds features of the framework within international and regional instruments, such as (1) the Convention on

International Trade in Endangered Species of Wild Fauna and Flora, (2) the Rome Statute, (3) the Conven-

tions on the Protection of the Environment Through Criminal Law, and (4) the Environmental Crime Directives.

However, several problems can impede enforcement of criminal nature conservation laws, including (1) lim-

ited capacity and knowledge of judicial authorities; (2) lack of deterrence/dissuasion of potential offenders;

(3) poor enforcement at the national level; and (4) lack of international cooperation.

SUMMARY

optimal protection for nature. In other words, what type of

criminal law provisions should be employed to suciently

protect nature? Can nature and natural resources be pro-

tected in an independent manner through criminal law, or

should criminal law enforce prior decisions (like permits)

issued by administrative authorities? ese issues have not

yet been suciently studied.

ere is scholarship dealing with the question of how

to use criminal law to punish violations of environmental

law. 4 However, that literature has not focused on the spe-

cic question of whether there is a role for criminal law to

protect nature and, if so, how that protection should be

awarded. e use of criminal law to protect nature raises

questions that are to some extent dierent than the use of

criminal law in ghting environmental pollution.

Traditional pollution is often of the so-called point

source type: for example, a corporation releasing wastewa-

ter containing bacteria into the water and polluting it.5 In

the case of nature, we often see fa r more complex issues like

deforestation, forest degradation, reduction in biodiversity,

pollution of wetlands, and so on, which are frequently

more opaque and cannot always be traced to one particu lar

source. at is why the protection of nature through crimi-

4. See, inter alia, Michael Faure, A Paradigm Shift in Environmental Criminal

Law, in F E C  E  B: T

R   E  I M S 17 (Ragnhild Sollund et al. eds.,

Palgrave Macmillan 2016).

5. David Letson, Point/Nonpoint Source Pollution Reduction Trading: An Inter-

pretive Survey, 32 N. R. J. 219, 219 (1992).

Copyright © 2025 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, https://www.eli.org

55 ELR 10544 ENVIRONMENTAL LAW REPORTER SEPT/OCT 2025

nal law raises dierent questions from using criminal law

to ght traditional environmental pollution.

Given the above-mentioned gap, this Article focuses on

the question of how criminal law can adequately protect

nature. In other words, we aim to address the question of

how criminal law can be shaped in an eective manner to

provide optimal protection of nature.

is rather broad question will be developed by rst pre-

senting a framework containing various models of crimi-

nalizing behavior th at violate nature protection laws. Next,

the importance of adequate penalties for crimes against

nature will be stressed, as well as the need to focus crimi-

nal law both on the organizations and on the individuals

that may be involved in crimes again st biological resources.

Notably, a part of those resources equally includes fossil

fuels and minerals. However, this Article will not consider

crimes against those energy sources (like an attack on oil

elds). In fact, the environmental regulation of oil and gas

is a rather “classic” application of environmental law to

point source pollution problems (e.g., focusing on the way

in which oil exploration can pollute the environment).6

Rather, the Article focuses on how to crimina lize and

penalize crimes against biological resources such as for-

ests, water, wild fauna and ora, and legally protected

sites. In other words, we only focus on “crimes against

nature” in a strict sense (like unlawful abstraction of sur-

face water or groundwater, unlawful deforestation, illega l

hunting, or killing of endangered species), which is irrel-

evant to point source pollution problems. Moreover, here

the terms “environmental law” and “environmental pro-

tection” are used interchangeably with “natural resource

law” and “nature protection.”

In order to provide the framework for using criminal

law to protect nature, two theoretical approaches are used.

First, there is literature indicating how to provide adequate

protection of the environment through various models of

criminalization.7 ere is also literature that discusses how

to allocate criminal liability between individuals and cor-

porations in terms of corporate crime.8 at scholarship has

not yet been applied to nature, which is the contribution

of this Article. Second, an economic approach to environ-

mental crime will be used, wh ich has, inter alia, paid atten-

tion to the question of why criminal liability is necessary

in the context of crimes against nature, and how adequate

enforcement measures and remedies can provide incentives

for compliance with laws aiming to protect nature.9

6. See, inter alia, Emmanuel Kasimbazi, Environmental Regulation of Oil and

Gas Exploration and Production in Uganda, 30 J. E  N. R. L. 185

(2012).

7. See, inter alia, Michael Faure, e Revolution in Environmental Criminal

Law in Europe, 35 V. E’ L.J. 321 (2017).

8. See, inter alia, A. Mitchell Polinsky & Steven Shavell, Should Employees Be

Subject to Fines and Imprisonment Given the Existence of Corporate Liability?,

13 I’ R. L.  E. 239 (1993); Lewis Kornhauser, Economic Analysis

of the Choice Between Enterprise and Personal Liability for Accidents, 70 C-

. L. R. 1345 (1982); Jennifer Arlen, e Potentially Perverse Eects of

Corporate Criminal Liability, 23 J. L S. 833 (1994).

9. See, inter alia, Michael Faure, Environmental Crimes, inC L 

E 320 (Nuno Garoupa ed., Edward Elgar 2009).

After establishing this framework, we analyze the

extent to which current legal rules have the features of the

designed framework and provide adequate criminal law

protection for nature. Given the general cross-border fea-

ture of crime related to natural resources,10 the Ar ticle will

focus on international and regional legal instruments. A

discussion of environmental criminal law in a multi-juris-

dictional and comparative perspective can show a variety

of approaches that can be employed, as well as the potential

interactions between them.

At the international level, attention will be paid to the

Convention on International Trade in Endangered Species

of Wild Fauna and Flora (CITES) and to a debate that

started at the beginning of this century on whether the

Rome Statute of the International Criminal Court should

be reformed to include destruction of the environment as

a war crime. Moreover, the European Union (EU) has a

variety of instruments that aim to protect the environ-

ment through criminal law. Hence, the Article will also

focus on Europe. In particular, we will discuss the typical

legal instru ments for protecting nature, including the Con-

ventions on the Protection of the Environment rough

Criminal Law and the European Union Environmental

Crime Directives (ECDs).

Notably, we do not discuss the applicable legal rules

(such as international conventions like CITES or regional

environmental law) in any amount of detail. Instead,

besides assessing these legal instruments under the estab-

lished framework, we aim to illustrate the type of dilem-

mas that confront the legislator when using crimi nal law to

protect natural resources. A lthough not the primary focu s,

it is worth highlighting specic challenges in implement-

ing and enforcing crimina l laws for nature protection. is

consideration relates to the fact that the eectiveness of t his

protection relies on enforcement of these laws.

e structure of the Article is as follows. Part I pres-

ents a framework for the protection of nature (biological

resources) through criminal law. In Part II, we review and

assess some international and regional (Eu ropean) criminal

law provisions on nature conservation within the frame-

work established in Part I. Part III discusses specic prob-

lems in implementing and enforcing criminal provisions

for nature protection. Part IV concludes.

I. Theoretical Framework for

Environmental Criminal Liability

In this part, we set out the theoretical framework for

why and how criminal liability can be used to address

crimes against nature, from both economic and legal

doctrinal perspectives.

We rst discuss the economic theories of criminal

enforcement (Section A) because these theories explain not

only how but also why criminal enforcement is needed to

10. See, inter alia, Greg Warchol, e Transnational Illegal Wildlife Trade, 17

C. J. S. 57 (2004); Lorraine Elliott, Fighting Transnational Envi-

ronmental Crime, 66 J. I’ A. 87 (2012).

Copyright © 2025 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, https://www.eli.org