Protection of Environmental Rights through Criminal Law - Essay Example

? PROTECTION OF THE ENVIRONMENT AND ENVIRONMENTAL RIGHTS THROUGH CRIMINAL LAW al Affiliation) Introduction In matters relating to environmental protection, three major bodies are concerned. There is the government, international environmental groups, and the society. In regard to Principle 10 of the Rio Declaration (Low, 2000), environmental issues are best handled when all concerned citizens participate; at the relevant level. It is a right for each individual to have appropriate access to information on environmental concerns, and the chance to participate in decision-making processes (Initial study/proposed mitigated nagative declaration, Rio Vista Natural Gas Pipeline Project, 2002). Environmental pollution has been an issue of concern over the recent years. History has been a crucial witness to many deliberate acts aimed at destroying the natural environment so as to achieve strategic objectives (Vanderheiden, 2012). Accidental causes also have a fair portion of the blame for environmental pollution. In recent years there have been very serious accidents resulting in massive environmental damage. (Dinar, 2011). A negotiation drafted to serve as a General Assembly Resolution on the protection of the environment is the first step of a solution process to mitigate serious environmental damage regardless of whether it is deliberate or accidental. The resolution determinates the jus puniendi of the States and acts as a harmonizing mechanism of the environmental criminal law of the States (Chowdhury, 2010). Discussion Member States of the General Assembly are responsible for coming up with a resolution, calling for the protection of the environment through international criminal law. This resolution aims at discouraging acts causing or likely to cause environmental damage. Nowadays, individual States protect the environment through criminal law but from an international point of view, the criminal protection has by far become disorderly since some cases of environmental criminality cause damage independently of the political organization of the international community. States shall enact effective environmental legislation (Bullard, 2005). For the purposes of the negotiation, the ‘use of terms’ must be regulated and a standard meaning of terms be agreed upon. ‘Unlawful’ means infringing a law or a decision taken by a competent authority that aims to prevent environmental damage (Davis, 2007). The resolution is open to signature for both the developing and the developed countries and shall enter into force immediately after the Member States have expressed their consent to be bound by it. Though the resolution is aimed at protecting the environment through international criminal law, it should not affect the rights and undertakings derived from international multilateral conventions concerning special matters (Castree, 2005). According to Ultima Ratio Principle and criminal law intervention, criminal law is the last legal weapon capable of defending the interests of the society. In the preamble, the ultima ratio criminal law principle claims that, while the prevention of the impairment of the environment must be achieved through other measures, international criminal law has an important part to play in protecting the environment (Kutz, 2005). International criminal law plays a crucial role as it controls small-scale, large-scale and individual polluters. It helps to prevent further environmental destruction, and avoids over burdening of civil and administrative law with criminal provisions. Its responsibility provides an added incentive for individuals to refrain from conduct that may be harmful to the environment by emphasizing its culpable character and by allowing more stringent enforcement measures to be imposed (Cocks, 2009). Individual states should be responsible for the protection of the environment even though the resolution is agreed at in a convention. A state cannot plead provisions or deficiencies of its own law in answer to a claim against it for any breach of its obligations. The legislature proceedings and internal rules are not to be regarded as acts of some third party for which the concerned state is not responsible (Gerdes, 2011). The need for a resolution calling for the protection of the environment through international law indicates that there is need to pursue a common criminal policy aimed at the protection of the environment (Gore, 2006). Each state shall adopt such appropriate measures as may be required by a directive and adhere to the legislative activity which will serve as the instrument which the States will utilize to pursue a criminal policy. The directive lists a number of serious environment-related offences and will require Member States to provide for more dissuasive penalties for the type of offence when committed intentionally or as a consequence of gross negligence. This minimum threshold for harmonization will provide room for environmental protection. (McNeill, 2000). Member States will class behaviors to term as criminal offence if any set community regulation in the area of environmental protection is infringed if the behavior was committed through acts of serious negligence. The following will be classed as criminal offences; which may have a detrimental effect(s) on the environment (Koch, 2010); Unlawful shipment of a quantifiable amount of waste; Unlawful disposal into water, air or soil of ionizing radiation; Unlawful production, treatment, transport, storage, import, export, disposal or use of nuclear materials or hazardous radioactive material; Unlawful transport, recovery, collection or disposal of waste; Unlawful possession, killing, damaging, taking or trading of or in protected wild flora and fauna species; Unlawful causing of noise. Member States should also ensure that any acts of incitement, aiding, and abetting the committing of an act that may cause serious damage to the environment is also punishable (Koch, 2010). The resolution should make it certain of risk misconducts. Risk is inevitable in an industrialized society. This means that it is the duty of an individual State to ensure that there is maximum protection of the environment from damage. In this sense, economic activities must be developed in a framework of security. An environmental risk criminal prohibition may be necessary due to the fact that, the environment requires an anticipated protection since environmental damages are a consequence of a reiteration of accumulative acts. Furthermore, these acts would be harmless at individual level. This option is not only conformed by the preventive finality of criminal law but also by the precaution principle of international law of the environment (Evans, 2006). According to principle 15, the precautionary measures shall be widely applied by States according to their capabilities in order to protect the environment. In instances of vast environmental damage, insufficient scientific proof will not serve as a reason for not implementing cost-effective measures to prevent environmental degradation (Yu, 2005). In respect to negligent offences, confiscation measures will be implemented. Confiscation as a measure of simultaneous utility serves to express the concept of loss of control upon the instruments of offence (Schabas, 2012). Each State shall adopt appropriate measures as may be required to enable it to confiscate proceeds in respect to negligent offences. On the reinstating the environment, Principle 13 implies that; ‘States shall develop national law in relation to liability and compensation for their victims of environmental damage.’ Member States should cooperate in a more determined way to develop further international law regarding liability and compensation for any victim of environmental damage caused by activities within their jurisdiction to areas beyond their jurisdiction. This permits criminal law to enter a field belonging to civil liability by an optional provision (Bantekas, and Nash, 2007). This General Assembly Resolution is aimed at accommodating the interests of Member States and environmental groups on the protection of the environment. International environmental groups are key players in calling for mandatory protection of the environment. Through a new international convention ‘Crimes Against the Environment’ representatives of international environmental groups manage to call for mandatory protection of the environment for cases of very serious environmental damage regardless of whether it was caused deliberately or accidentally (Speth, and Haas, 2006). In a declaration addressed to the Secretary of the Member State Council, it is indicated that each Member State may grant any group, or association, which aims at preventing environmental damage, the freedom to take part in proceedings concerning offences established in accordance with this convention. This should be in accordance to the individual State’s domestic law (Epps, and Graham, 2011). Co-operation between authorities is vital for successful measures aimed at protecting the environment. The convention affirms that the two parties shall afford each other the widest measure of co-operation in investigations relating to criminal offences established in accordance with this convention (Cassese, 2003). The co-operation should be in accordance with the provisions of relevant international instruments on international co-operation in criminal matters and their domestic law. The parties may also afford each other assistance in investigations and proceedings. Representatives of these environmental groups should co-operate with the Member States in a broader sense in respect to the following; Informing the relevant authorities, on reasonable grounds, that an offence has been committed-this is done on their own initiative Informing the authorities according to domestic law- this is done upon request (White, 2008). This convention shall be open for signature by the Member States, both the developed and the developing, and the representatives of the international environmental groups which have played a role in its elaboration. Such groups may express their consent to be bound by a signature without reservation (Bassiouni, 2008). Any State may specify the territory or territories to which the convention shall apply and may also extend its application to any other territory specified in the declaration (Liddick, 2011). In case a dispute arises between States as to the interpretation of this convention, settlement shall be sought through negotiation or any other peaceful means (Gillespie, 2007). With respect to transborder pollution: The competent jurisdiction, by territorial principle, is the one which arises from where provocation of the pollution occurs. In a case whereby the concerned State does not exercise its jurisdiction, the other affected State(s) can apply for the extradition of the offences. The applicable criminal law will be of the State that exercises jurisdiction. Bilateral and multilateral treaties may hold a different option in the case of transborder pollution (Greenberg, 2007) Is the pollution prosecutable when the action is not unlawful in accordance to domestic State law of the misconduct though being unlawful according to other domestic criminal law? By the intervention of Administrative law, misconduct alone warrants punishment by the justice of a second State if its domestic criminal law permits the punishment of damages provoked in its territory from the territory of another state (Mara, 2013). Conclusion Even though international criminal law aims at protecting States from environmental damage, it is the responsibility of individual states to seek effective measures that inhibit this damage (Moriarty, Massa, and Cotter, A. 2008). Whether the damage is deliberate, such as in Kuwaiti where 736 oil well heads were deliberately ignited by retreating Iraqi forces, or accidental, such as the BP Deepwater Horizon oil spill, the consequences are dire. Member states should incorporate the international environmental groups and the society at large in a mission to sensitize on ways to ensure that the environment is safe from pollution (Orme, 2009). 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