Criminalising international environmental laws - 2

After having recalled some basic tenets of existing international criminal law in the context of our car-free day and environmental harm a fortnight ago, today we look at the possible rationale for the existence of an international criminal environmental law.

The criminalisation of international environmental laws can be justified on the basis of two main arguments. The first is linked to the nature of environmental norms; the second reflects the ineffectiveness of state responsibility to enforce international environmental standards.

Many environmental norms are erga omnes standards, meaning that they represent obligations of states towards the international community as a whole, a principle expressed by the International Court of Justice in the 1970 Barcelona Traction, Light and Power Company Limited case.

This does not mean that international environmental law incorporates only erga omnes norms. Contrarily, the oldest principles, such as the duty not to cause serious injury to the territory of another state, are clearly obligations that may be applied bilaterally, as pointed out in the 1941 Trail Smelter Arbitration case.

On the other hand, fundamental state obligations of an erga omnes nature have emerged over the last two decades, including the duty to protect the marine environment (Article 192 of the UN Convention on the Law of the Sea), the duty not to cause damage to areas beyond national jurisdiction (Principle 21 of the 1972 Stockholm Declaration, Principle 2 of the 1992 Rio Declaration and Article 3 of the UN Convention on Biological Diversity), and the obligation to protect the ecosystem of international watercourses.

The link between crimes under international law and obligations erga omnes is clearly manifested by the core crimes over which the International Criminal Court has jurisdiction.

Moreover, environmental norms concern a vital human interest. Many jurists have stressed that failure to protect the environment may result in massive human suffering on a scale comparable to genocide or crimes against humanity.

Some have also argued that environmental protection calls for a crime of genocide or ecocide. Initially, in the context of the preparation of the draft Code of Crimes Against the Peace and Security of Mankind, some members of the International Law Commission expressed doubts as to whether environmental issues can affect the peace and security of humankind.

This position conflicts with the expanding interpretation given to the concept of international peace and security by the UN Security Council pursuant to Article 39 of the UN Charter and also to the recognised concept of ecological security. The very irreversibility of the loss of biodiversity further strengthens the need for effective sanctions of severe environmental degradation.

The inter-connection between state responsibility and penal repression provides a second rationale for the emergence of an international criminal environmental law. A number of elements in the application of principles of state responsibility to the protection of the environment point to the inadequacy of state responsibility with respect to many environmental norms.

Firstly, many violations of environmental laws occur outside areas controlled by particular states, such as in international waters.

For illegal dumping of toxic waste in the high seas, for example, there is no obvious state suffering direct injury, and no state is likely to seek reparation from the possible flag state, should it be shown to have committed an internationally wrongful act with respect to such dumping. Similarly, damage to the ozone layer does not cause harm to an easily identifiable injured state.

However, the erga omnes nature of environmental norms together with the contemporary notion of intergenerational equity means that all states would be indirectly injured states. This means that any state could pursue jurisdictional action, even on the basis of universal jurisdiction, to seek reparation, for example by adopting counter-measures or petitioning the International Court of Justice.

In fact, this is the model put forward by the International Law Commission, whereby a duty is triggered on all states to adopt measures to repress this type of crime. However, in practical terms, there is little state practice indicating a willingness by third states to risk political and diplomatic relations by adopting counter-measures on a purely erga omnes basis.

Furthermore, even when the harm ensued is more localised, an ecosystem-oriented approach can easily reveal that it may be erroneous to focus exclusively on the immediate effect of the harm and that it is likely to have more diffused, but nevertheless just as real, effects in other parts of the ecosystem, possibly in other countries.

When the internationally wrongful act takes the form of a dispersed and gradual process, rules on state responsibility are unlikely to yield positive results. As shown by the Gabcikovo-Nagyamaros case (1997 Hungary v Slovakia case before the International Court of Justice), the state responsibility system is so complex and cumbersome that its capacity to deter environmental harm is limited.

Another reason why state responsibility may prove to be ineffective is that the apparatus in question will be unable to control the polluting agents. This may occur because the individuals or corporations concerned, escape state control de facto since they operate illegally.

For example, organised crime has become very active in illicit trade and dumping of toxic or nuclear waste in the high seas, a problem emerging as a result of the corruption of state officials.

Environmental contamination may also be caused by evanescent transnational corporations which play off national legal systems against each other and, quite often, succeed in escaping the jurisdiction of all states or electing a state with little capacity to enforce legal norms against powerful corporations.

These problems are mostly encountered by developing countries which have fewer resources to devote to environmental protection or less inclination to give such protection priority over developmental policies.

In the next article, an assessment of the indications of the emergence of a principle of international individual penal responsibility for environmental harm under contemporary international law will be made.

To be concluded