Time for a Protocol on Transnational Environmental Crime?

1 Introduction

Are environmental law and criminal law ready for an international marriage? If so, whom exactly are the right partners and what preparations need to be made? This chapter argues that the time is right to bring together certain elements of international environmental and transnational criminal law. Environmental law became global through the adoption of environmental treaties in the last quarter decade of the 20th century. Similarly, globalisation of criminal law accelerated when the Convention on Transnational Organised Crime 2000 1 (CTOC) deepened international legal cooperation between States to combat transnational crime.

By the second quarter of the 21st century, both are ready for partnership but the main challenge facing their betrothal is the diversity of national approaches to environmental crimes. The solution suggested here is the international harmonisation of national approaches of a few selected environmental crimes, guided by common standards derived from some relevant multilateral environmental agreements, and by the CTOC, to which the protocol could be appended.

2 Not an International Environmental Crime

At the outset it needs to be noted that the objective articulated here is not to address ‘international environmental crime’. It is important to distinguish international from transnational crime. International crimes are activities that offend against direct and universal prohibitions in international law proscribed by the international community collectively, rather than by national governments individually. Clear-cut examples of international crimes include genocide, war crimes and crimes against humanity, as set out in the Statute of the International Criminal Court.

Notions of environmental crimes proscribed directly by States have been explored in academic writings concerning whether an international crime of ‘ecocide’ might be developed. 2 In preparing a draft Code of Crimes Against the Peace and Security of Mankind, the International Law Commission in 1991 also adopted a draft article on wilful and severe damage to the environment. 3 That draft article was dropped in 1996 and, at present, there is no direct criminalisation under international law of environmental harm as such.

Instead, an international environmental crime in the context of war was incorporated into the Statute of the International Criminal Court, i.e., the ‘intentional launching of an attack in the knowledge that such an attack will cause widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’ during an international armed conflict. 4 A series of academic journal articles have also investigated whether other existing ‘war crimes’ and ‘crimes against humanity’ could be interpreted to include major international crimes against the environment. 5 The International Committee of the Red Cross (ICRC) recently sought to expand the notion of war crimes against the environment in its 2020 guidelines on broadening this class.

However, accusations of war crimes and crimes against humanity levelled against people engaging in State acts are inherently controversial. Even in the most exceptional and egregious cases, they can be disputed as politically biased against the defendant’s nation. Therefore, if one is seeking to enforce day-to-day environmental protection measures, a focus on war crimes and crimes against humanity is a strategic mistake. It limits criminal enforcement to rare circumstances of armed conflict, mired in controversy and in which the boundaries of international law are poorly defined. Therefore, for the time being, promotion of the notion of international crime as a legal tool to protect the environment would draw upon major political capital to deliver poor marginal environmental results.

3 Fous on Transnational Environmental Crime

A more appropriate focus for international enforcement for environmental protection is the suppression of transnational environmental crime. A preliminary definition of transnational crime is that it means ‘acts committed in breach of national laws and that have elements that cross-national borders’. Transnational environmental offences are against national laws, not against international law. 6

The UN Convention on Transnational Organised Crime provides a more detailed definition that:

“. . . an offence is transnational in nature if: (a) It is committed in more than one State; (b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; (c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or (d) It is committed in one State but has substantial effects in another State.” 7

Environmental non-compliance becomes criminal in domestic law where it is penalised by criminal sanctions. These are part of a State’s regulatory strategies to ensure legal compliance, usually lying at an extreme of the spectrum of compliance tools. Where non-compliance with environmental regulations is criminalised under national laws and those illegal activities have transnational elements, they can be regarded as transnational environmental crime. They often need to be combated through internationally coordinated national law enforcement efforts.

Relatively few international legal and institutional frameworks have been designed specifically to address the transnational environmental crime or to coordinate law enforcement efforts. Since 2005, the Commission on Crime Prevention and Criminal Justice has undertaken an annual programme of work focused on illegal logging. 8 However, despite the recent growth in international norms relating to each environment and to crime, international environmental law has not yet formally meshed with transnational criminal law.

4 International Harmonisation of Selected National Laws

Harmonised national environmental crime laws are a condition precedent to systematic international cooperation to enforce them. Many mechanisms to address harmonisation have been developed within international frameworks for the prevention of other types of organised crime. Certain transnational crimes –including terrorism, corruption, trafficking in narcotics, arms, and people –have become subject to treaties harmonising national laws and facilitating cooperation in their suppression. Studies for the Council of Europe and the European Commission have found that definitions of environmental crimes are diverse and disharmonious. 9 A concerted international effort to harmonise the national definition of a few important environmental crimes is necessary.

5 Harmonisation of Environmental Crime Laws in MEAs

A few multilateral environmental agreements (MEAs) could set agreed global standards in specific environmental sectors that provide a global framework for national laws defining illegal activities. An analogous model for this approach is to be found in European Union environmental crime Directives that concern breaches of national laws implementing other previously adopted environmental Directives. 10

Translated to the global level, environmental harms that countries have already agreed to treat as unlawful under MEAs would form the basis of the acts to be criminalised under a potential new multilateral instrument to harmonise national definitions of environmental crimes. Several MEAs address environmental crimes but principally in relation to general enforcement cooperation. It is unfortunate that none address in any detail the harmonising of domestic criminal law mechanisms. 11

6 Pollution Prevention Agreements

The Basel Convention on Hazardous Waste states that illegal traffic in hazardous wastes or in other wastes is criminal. 12 Conferences of Parties to the Basel Convention urge Parties to promulgate laws that render illegal traffic in hazardous wastes a criminal act entailing appropriate sanctions or penalties. At the Eighth Conference in 2006, Parties requested the Secretariat to prepare a draft legal instruction manual on prosecuting illegal traffic and to continue to maintain a collection of national legislation and other measures adopted by Parties to implement the Basel Convention, including measures to prevent and punish illegal traffic. 13 Parties are also encouraged to submit to the Secretariat judgments of their respective courts dealing with illegal traffic, so it can publish them as an information tool for other Parties.

The Montreal Protocol on Substances that Deplete the Ozone Layer does not require criminalising of illegal trade in ozone-depleting substances, but Parties are invited to report to the Ozone Secretariat fully proved cases of illegal trade. The Secretariat circulates the reported information to all Parties to facilitate efforts to combat illegal trade. The Parties have adopted a number of decisions to streamline information sharing procedures as well as coordination of efforts to track and suppress illegal trade. 14

The UN Strategic Approach to International Chemicals Management includes as an objective the prevention of illegal international trade 15 in breach of the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 16 or the 2002 Stockholm Convention on Persistent Organic Pollutants. 17 In 2015, the Conferences of Parties to the Basel Convention and the Stockholm Convention were invited to consider whether to adopt ‘common decisions that would form the basis of a synergistic approach to preventing and combating illegal traffic and trade in hazardous chemicals and wastes’. 18 Further, the Governing Council of UNEP in 2005 requested the Executive Director of UNEP to promote cooperation between the Montreal Protocol and the Basel, Rotterdam and Stockholm Conventions to address international illegal trafficking of hazardous chemicals and hazardous wastes. 19

7 Biodiversity Conservation Agreements

The 1973 Convention on International Trade in Endangered Species of Flora and Fauna (CITES) requires parties to penalize trade in endangered species that violate the Convention. However, it does not specifically describe such violations as a criminal. 20 The Conference of Parties has adopted two resolutions elaborating on the Secretariat’s role in providing enforcement assistance, which focuses on preventive and reactive enforcement activities 21 and enforcement priorities. 22 CITES hosts species-specific law enforcement support units, such as the Tiger Enforcement Taskforce established in 2001. 23 In 2011, ECOSOC requested that member states consider making illicit trafficking in endangered species of wild fauna and flora a serious crime, in accordance with their national legislation and article 2, paragraph (b), of the United Nations Convention against Transnational Organized Crime’. 24

The Conference of the Parties to the Convention on Biological Diversity adopted the supplementary Cartagena Protocol on Biosafety in 2000, which obliges Parties to adopt measures to penalise illegal transboundary movement of living modified organisms, although it does not prescribe criminal sanctions. 25 The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization touches upon the adoption of national laws to criminalise breaches of national implementation regimes but does not describe international harmonisation of those national laws. 26 These MEAs could provide a global platform for the harmonisation of a few national laws proscribing transnational environmental crimes.

8 Application of Transnational Organized Crime Elements

The UN Convention on Transnational Organised Crime (CTOC) addresses the harmonisation of certain criminal laws of its parties. The CTOC and requires that its parties criminalise activities that are transnational in nature 27 whenever they involve: Participation in an organised criminal group (article 5); laundering of the proceeds of crime (article 6);corruption (article 8); or obstruction of justice (article 24). This consensus can apply to a wide range of environmental crimes, as the transnational nature of environmental crimes includes complex layered transactions across multiple jurisdictions by organised criminal syndicates, e.g. where transnational waste smuggling is undertaken by an organised group.

The CTOC also extends broadly to any ‘serious crimes’ which carry a maximum penalty of at least 4 years imprisonment, where the offence is transnational and involves an organized criminal group. However, the disparities between national penalties for environmental crimes mean that there is little certainty about whether simple movements, such as across a border between two countries by a lone poacher, is a serious environmental crime.

9 Formula for Environmental Crime Harmonization

National jurisdictions require that they each recognise the same crime (i.e., equivalent proscription or ‘dual criminality’) to facilitate their law enforcement cooperation. Dual criminality in environmental crimes would mean that States have common legal approaches to defining the physical and intangible elements of the relevant environmental crimes. It is proposed here that harmonisation of selected environmental crimes is achievable through a protocol on transnational environmental crime.

The physical components can be harmonised in accordance with international consensus on prohibited acts set out in key MEAs. Those prohibitions focus specifically on the criminal offence of unauthorised international trade in the following: ‘Hazardous wastes (Basel Convention); ozone-depleting substances (Montreal Protocol); persistent pollutants (Stockholm Convention on POPs); certain chemicals or pesticides (Rotterdam Convention on the PIC); endangered species (CITES); living modified organisms (Cartagena Protocol); genetic resources (Nagoya Protocol)’.

The exact terms of criminalisation of unauthorised trade would need to be refined further in the protocol but the basic prohibitions are already established. Not listed are other kinds of harmful environmental acts not yet internationally agreed to be subject to domestic penalties, such as cross-border pollution through air or water or trade in illegally harvested timber.

In addition to the MEAs on illegal trade, there is already an international consensus on prohibition of transnational organised crime. Its components are largely intangible and include organising, financing, laundering or profiting. Therefore, the proposed protocol could specify that the selected environmental crimes are predicate offences for money laundering. The CTOC currently facilitates three protocols concerning some prevalent 21st century transnational crimes (i.e. Trafficking in Persons, Smuggling of Migrants, and Illicit Manufacturing of and Trafficking in Firearms), and it could accommodate a fourth on Transnational Environmental Crime.

States usually require that crime also be classified as ‘serious’ under their domestic law in order for it to mobilise the governmental resources needed for cross-border law enforcement cooperation. National approaches to penalties are varied and environmental crimes are often subject only to minor fines and do not necessarily meet the CTOC threshold of ‘serious’ crime. To harmonise national approaches, the selected environmental crimes, would be classified in the protocol as serious in specified circumstances and by reason of their specified type.

Other issues to be clarified include the criminal penalisation of corporations and their principal officers (which is less usual in civil law system countries), and the extension of environmental criminal jurisdiction beyond the geographical boundaries of the sovereign State (which is less usual in common law countries).

10 Conclusion

Thus, it appears, consensus about what comprises environmental criminal activity is achievable on the basis of common global agreement prohibiting illegal trade under some multilateral environmental agreements. A cautious approach would avoid international harmonisation of crimes in environmental sub-sectors that are not yet the subject of internationally agreed prohibitions, e.g., cross-border pollution through air or water would not be included.

However, beyond the multilateral environmental agreements, the existing international consensus in transnational crime suppression treaties that already prohibit other forms of organised crime can also apply to a wide range of environmental crimes. To facilitate better understanding and cooperation to combat transnational environmental crime, their applicability to agreed priority environmental harms could be specifically elaborated, such as to unauthorised trade in illegally harvested timber or fish.

A protocol to the CTOC, complemented by voluntary guidelines and model legislation, could promote environmental crime harmonisation. It presents an opportunity to marry criminal and environmental laws in a global regime that will better suppress transnational environmental crime.