Proposals to apply environmental protection laws under new criminal laws
DOI:
https://doi.org/10.61841/axccmy16Keywords:
environmental protection, laws, proposals for directivesAbstract
Awareness of environmental degradation and waste of natural resources in the early 1970s has led, at the state level, to the European Community and international more and more precise and binding. If, in the European Union, the normative arsenal seems close to exhaustiveness, the question of its effectiveness remains intact.
The search for an effective sanction of environmental rules is currently inspiring a double movement: on the part of the European authorities, a reflection on the adaptation of the traditional remedies for criminal sanction and civil liability to the particularism of risk and environmental damage; on the part of the magistrates, a desire to be involved in the implementation of this new branch of law and international cooperation.
Two proposals for directives from the Parliament and the Council bear witness to these new concerns. One tends to criminalize breaches of obligations deriving from Community law that cause or are likely to cause substantial damage to the environment (proposal of 26/06/2001: OJEC No. C-180 E, followed by a Council Framework Decision of 27 January 2003). The other relates to the creation of an environmental liability regime for the prevention and repair of damage (proposal of 23/01/2002, COM 2002 0021 COD: JOCE of 25 June 2002). These texts echo two conventions adopted under the auspices of the Council of Europe, one devoted to the responsibility for damage resulting from activities dangerous to the environment (Lugano, 21 June 1993), the other to protection of the environment through criminal law (Strasbourg, 4 November 1998)
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1. These are climate change, biosphere integrity, and biochemical flows. See Johan Rockström and others, "A Safe
Operating Space for Humanity" (2009) 461 Nature 472; and Will Steffen, Katherine Richardson and Johan
Rockström, "Planetary Boundaries: Guiding Human Development on a Changing Planet" (2015) 347 Science
736.
2. Will Steffan, Paul J Crutzen and John R McNeil, "The Anthropocene: Are Humans Now Overwhelming the
Great Forces of Nature?" (2007) 36 Ambio 614; and Will Steffan and others, "The Anthropocene: Conceptual
and Historical Perspectives" (2011) 369 PTRSA 8.
3. This is a general rather than a universal proposition. Some MEAs provide for "reciprocal" as well as
"legislative" obligations. For example, the extent to which developing countries are required to comply with
their obligations under the 1992 United Nations Framework Convention on Climate Change is explicitly
dependent upon the effective implementation of developed countries' obligations under the Convention in
respect of financial resources and technology transfer: United Nations Framework Convention on Climate
Change 1771 UNTS 107 (opened for signature 9 May 1992, entered into force 21 March 1994) [UNFCCC],
art 4(7). See also Protocol to the United Nations Framework Convention on Climate Change 2303 UNTS 162
(opened for signature 11 December 1997, entered into force 16 February 2005) art. 11 [Kyoto Protocol]; and Stockholm Convention on Persistent Organic Pollutants 2256 UNTS 119 (opened for signature 22 May 2001,
entered into force 17 May 2004), art. 13(4).
4 Vienna Convention on the Law of Treaties 8 ILM 679 (opened for signature 23 May 1969, entered into force
27 January 1980) [VCLT].
5 Draft articles on Responsibility of States for Internationally Wrongful Acts UN Doc A/56/10 (12 December
2001), art. 42.
6. This is also a feature of human rights law, for example.
7 B Simma, "From Bilateralism to Community Interest in International Law" (1994), 250 Hague Recueil 221 at
238.
8 Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3 at 32.
9 J Pauwelyn, "A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in
Nature?" (2003) 14 EJIL 907 at 908. See also Simma, above n 8, at 298–299.
10 See Barcelona Traction, Light and Power Company Ltd, above n 9, at 47; and East Timor (Portugal v
Australia) [1995] ICJ Rep 90 at 102. Article 48 of the 2001 Draft Articles, above n 6, provides for the
invocation of responsibility by a non-injured state in respect of erga omnes obligations but the rights of
noninjured states to intervene are limited to their ability to claim that the wrongful conduct cease and a
demand for reparation on behalf of the injured state or "of the beneficiaries of the obligation breached."
11 See for example, Antarctic Treaty 5778 UNTS 402 (opened for signature 1 December 1959, entered into force
23 June 1961) art 10.
12 See for example Convention on International Trade in Endangered Species 993 UNTS 243 (opened for
signature 3 March 1973, entered into force 1 July 1975) [CITES], arts 2(4), 3(1), 4(1), 5(1)and 10; Cartagena
Protocol on Biosafety to the 1992 Convention on Biological Diversity (opened for signature 29 January 2000,
entered into force 11 September 2003), art. 24; Stockholm Convention on Persistent Organic Pollutants 2256
UNTS 119 (opened for signature 22 May 2001, entered into force 17 May 2004), art. 3(2)(b)(iii); and
Minamata Convention on Mercury 55(3) ILM 582 (signed 10 October 2013, entered into force 16 August 2017), art. 3(6)(b).
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