Emergence of an international environmental criminal law?

• Author: Cho, Byung-Sun

ABSTRACT

Environmental misconduct increasingly extends beyond national borders. However, because of the traditional international law of territoriality, few conventional laws and domestic laws criminalize international environmental misconduct effectively. Because this deficiency must be corrected, international conventions and bodies seek suitable ways of penal enforcement. Following a brief introduction, this Article examines some penal provisions in international environmental conventions. Section III sets forth the process of domestic penal legislation of conventions including the way of shaping environmental criminal law. Several different possibilities for punishing international environmental pollution are then discussed. At the domestic level models of "standardization" and "transnationalization" of environmental criminal law are presented. Section IV will turn to some recent attempts to establish a supranational regulatory authority empowered to penalize core environmental crimes to protect the earth's shared global commons and preserve the ecosystem. Finally, some concluding remarks will be formulated together with ideas for the further development of international environmental criminal law.

I.

INTRODUCTION

Transnational ecological connections and the new quality of global threats have led to great activity on the international stage. While the conventional law of the environment is replete with examples of penal provisions, the international community relies for their enforcement upon municipal rather than international institutions. Thus conventions aimed at protecting the global environment call upon state parties to enact legislation to penalize prescribed conduct. Also, agreements concerning pollution of the sea rely principally upon port, coastal or flag states for their enforcement. However, these conventions give the State wide discretion in domestic penal legislation. An environmental criminal law legally binding the citizens of all nations does not exist, nor is there an organization to which such a legislative competence could be granted. At present, the prosecution of environmental crimes which international environmental conventions have introduced is only possible before national courts. Therefore, the internationalization of environmental criminal law, including its standardization and transnationalization, assumes two central themes of this paper.

This paper is structured as follows. After sketching some penal provisions in international environmental conventions (below II) a detailed harmonization in domestic penal legislation of conventions will be discussed (below III). The article then turns to some recent attempts to establish a supranational regulatory authority empowered to penalize core environmental crimes to protect the earth's shared global commons and preserve the ecosystem (below IV). Finally, some concluding remarks will be formulated together with ideas for the further development of international environmental criminal law (below V).

II.

PENAL PROVISIONS IN INTERNATIONAL ENVIRONMENTAL CONVENTIONS

1. Reasons for Criminalizing Environmentally Harmful Conduct

   A principal reason for criminalizing environmentally harmful conduct in international environmental conventions in general is to deter conduct which is particularly harmful to the environment that is shared on the domestic and international levels. Because it is likely that the internationally shared environment will often be protected even less by private vigilance than its domestic counterpart, the argument for protection by penal sanctions would seem to be stronger than that applicable on the domestic level. Furthermore, some elements of the internationally shared environment -- such as flora and fauna or a "life support system for the whole planet"(1) may be entirely and forever extinguished because of the "commons" effect. That effect may be more pronounced when the commons in question overlaps jurisdictions or is beyond the limits of national jurisdiction. To the extent that (a) national law does not reach the conduct in question and (b) is not governed by a relevant international regime, it will operate free of both private and any existing public regulatory constraints.(2) The development of international environmental law is subject to the basic handicap that international environmental law functions mainly within the interstate system. It is difficult for a system based on inter-state relations to regulate impacts and effects which are not themselves state to state.

   Although this paper is not intended to examine the reasons for criminal enforcement of environmental offenses in general, a brief overview of this topic will assist the reader in understanding international environmental criminal law. At the heart of this debate is the purpose of the criminal law. Although there have been many different legal and economic theories that attempt to explain the need for criminal enforcement of environmental law and criminal sanctions, fundamentally one can identify three possible rationales for criminal enforcement of environmental offenses. One possible rationale stems from the failure of the civil/ administrative law to adequately deter violations.(3) Another possibility is that society prefers to call certain actions "criminal" in order to express its moral outrage and to prohibit the activity unconditionally.(4) The third rationale is a kind of economic analysis of crime and punishment such as Gary S. Becker's "optional penalty model"(5) In general, an effectively enforced criminal statute raises the cost of certain kinds of conduct and thereby encourages compliance with laws and regulations that would otherwise be largely ignored. Based on this point of view, an increasing number of states have enacted legislation providing for punishment of environment-related offenses.(6) Furthermore, a number of states have enacted legislation to protect resources outside their borders. The most common form of these measures is that which is designed to protect the oceans from pollution.(7) This trend has given a significant boost to the international environmental criminal law, because international criminal law has as its principal raison d'etre the protection of certain shared values which the international community has come to recognize as being so important that penal sanctions must be employed.

2. Types and Characteristics of Penal Provisions

   At the level of international agreements, a State Party's obligation to penal legislation is of importance not only in the historically fundamental field of pollution of the high seas. With respect to specific global problems such as transboundary pollution, destruction of the ozone layer, global warming, acid rain and the loss of biological diversity, penal provisions of international environmental conventions appear to be one approach to problem solving. Now most environmental conventions have penal provisions.

   Many international conventions require states that are parties to the convention to develop appropriate national domestic legislation to punish the prohibited acts. The first type requires the contracting parties to take "appropriate measures to ensure the application of the [agreement in question] and the punishment of infractions against [those] provisions." For example, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes states that parties to the convention shall consider illegal traffic in hazardous wastes and other wastes to be criminal. It also states: "Each party shall introduce appropriate national domestic legislation to prevent and punish illegal traffic." This formula, or a very close approximation thereof, is employed in many conventions.(8) The second type of approach includes requiring the parties to "enact and enforce such legislation as may be necessary to make effective the ... provisions [of the agreement] with appropriate penalties for violation thereof".(9) The third type includes providing that violations "shall be an offence punishable under the law of the territory in which the ship is registered"(10) or "shall be made a punishable offense by each State Party under its national law.(11) The fourth type includes providing that the parties "shall enact and enforce such legislation and other measures as may be necessary for the purpose of giving effect to [the] agreement," and includes various prohibitions. These types of provisions are found in some fifteen multilateral agreements relating to the environment.(12) They are also found in a number of bilateral and limited multilateral instruments. Some agreements expressly recognize their deterrent function to the effect that "the penalties specified under the law of a party shall be adequate in severity to discourage violations of the present Convention...." For example the United Nations Convention on the Law of the Sea (UNCLOS)(13) states: "Penalties provided for by the laws and regulations of States for vessels flying their flag shall be adequate in severity to discourage violations wherever they occur." Also the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movements and Management of Hazardous Waste within Africa(14) states: "Each state shall introduce appropriate national legislation for imposing criminal penalties on all persons who have planned, carried out, or assisted in such illegal imports. Such penalties shall be sufficiently high to punish and deter such conduct."

   A number of the above-mentioned conventions contain what might be referred to as "policing provisions" which allow parties to take action on the spot to enforce the rules of the agreement. This is true, for example, of the 1911 Convention for the Preservation of Fur Seals in the North Pacific, which provides in article i that persons violating the Convention's prohibition against pelagic sealing "may be seized" by the authorities of the...