No Planet Without Justice? The Case for International Environmental Crimes

Abstract

Humans are inflicting unprecedented damage on the global environment that sustains us and the international community has demonstrably inadequate tools for preventing or regulating the harm done. That much, at least, is easily apparent. Atmospheric concentrations of carbon dioxide are higher than at any time in hundreads of thousands of years; the extinction rate of species is at least 50 to 100 times higher than pre-industrial times, perhaps as much as 1000 times higher; a Nature article has predicted that the world’s fisheries will all have collapsed by 2048; about 60 percent of global ecocystems are being degraded; half of the world’s wetlands have disappeared; 20 percent of coral reeds are destroyed and a further 20 percent degraded; and 6 million hectares of forest are destroyed or modified each year. The list can grow much longer than that. Even when environmental obligations or standards can be agreed to, enforcement can normally be characterised as ineffective or non-existent. Indeed deliberately flouting international environmental rules is big business. Egregious conduct that leads to massive environmental catastrophe frequently goes without sanction. The picture is not friendly. An optimistic outlook is that we are awakening to this challenge. As we become progressively more aware of our dependency on the global commons and how we are impacting it, the international political will to take necessary steps is crystalising. International criminalisation of environmental wrongs has been put forward as an important, perhaps vital, tool for enforcing international environmental standards and protecting the global environment. Dramatic and emotive pleas for “ecocide” or “crimes against future.generations” to come under the jurisdiction of a supranational court have received some significant media attention. They are bolstered by civil society’s intensifying moral condemnation of especially egregious actions and incidents: the Gulf of Mexico oil-spill; flagrant and wanton illegal logging or fishing; or the dumping of toxic waste in our oceans. The timeworn notion that these activities are relatively victimless cannot be sustained; today they can properly spark outrage and calls for justice. Increasingly of the criminal variety. Whilst an international environmental war crime is now established there is no wider system of international environmental crimes. This paper has two overarching goals. First it examines and progresses the normative justifications for the international criminalisation of environmental harm or wrongdoing. Second it discusses some of the key issues about how international environmental criminal law may be developed in practice and elucidates some important insights from that discussion. Overall the paper situates itself as part of an ongoing discussion or normative evolution within international law which it aims to make a contribution to. Its approach is decidedly pluralistic. That is to say it canvasses a variety of ideas which may provide the foundation of change ...