Environmental Protection at National and International Levels:Potentials and Limits of Criminal Justice

An overview of the empirical study

Anna Alvazzi del Frate, Antonio Herman V. Benjamin, Günter Heine,Jennifer Norberry, Mohan Prabhu

I. Introduction

The United Nations General Assembly resolution 45/121 of 14 December 1990 onthe Eighth United Nations Congress on the Prevention of Crime and the Treatmentof the Offenders welcomed the instruments and resolutions adopted by the Con-gress and in particular the resolution on "The Role of Criminal Law in the Protec-tion of Nature and the Environment".

The Commission on Crime Prevention and Criminal Justice at its First Session(E/CN.15/1992/7, ch. VI, 1.(a)) adopted the issue, as part of a broader topic whichincludes transnational, economic and organised crime, as one of the priorities toguide its work for the period 1992-96. Subsequent to the Second Session of theCommission, the Economic and Social Council resolution 1993/32 in operativeparagraph 2.4 approved the topic "Action against national and transnational eco-nomic and organised crime, and the role of criminal law in the protection of theenvironment: national experiences and international co-operation" for inclusion inthe provisional agenda for the Ninth United Nations Congress on the Preventionof Crime and the Treatment of Offenders. Furthermore, it endorsed the holding ofa workshop on "Environmental Protection at National and International Levels:Potentials and Limits of Criminal Justice" (operative paragraph 5 (e)). The role ofcriminal law in the protection of the environment was also stressed in ECOSOCresolutions 1993/28 and 1994/15.

The United Nations Interregional Crime and Justice Research Institute (UNICRI)took the scientific and organisational responsibility for the workshop in co-operation with the European Institute for Crime Prevention and Control, affiliatedwith the United Nations (HEUNI), the United Nations Asia and Far East Institutefor Crime Prevention and Treatment of Offenders (UNAFEI), the Australian In-

20 Overview

stitute of Criminology (AIC), the International Scientific and Professional Advi-sory Council (ISPAC) - in collaboration with the Institute for the Environment(IPA), the International Centre for Criminal Law Reform and Criminal JusticePolicy and the Max Planck Institute for Foreign and International Criminal Law.Other institutions from the United Nations Crime Prevention and Criminal JusticeProgramme Network were consulted. A Working Group was created to developthe project methodology and to co-ordinate the preparatory work.

Considerable work has been done in this area by the Workshop organisers1 andmany other Institutions. Research on the use of criminal law in environmentalprotection has also been carried out and a very extensive literature exists, espe-cially from developed countries.

The Workshop has three main objectives: (a) to provide information about the re-sponses to pollution incidents in different countries and in different legal systems(presentation and discussion of existing measures; presentation and discussion ofnational case studies); (b) to promote research into the different strategies and ef-fects thereof on the prevention and reaction to environmentally harmful or threat-ening behaviours (presentation and discussion of a "research software"); and (c) todiscuss selected issues in the realm of criminal justice response from a compara-tive perspective and with a view to facilitating international co-operation (expertpanel; examination of guiding principles in respect of developing research and in-ternational strategies in this field).

The Workshop involves the presentation of the results of the empirical study spe-cifically developed for this purpose, covering 11 developing and industrialisedcountries and including case studies of criminal justice response to: (a) trans-boundary pollution; (b) considerable environmental damage derived by operationsof large-scale enterprises involving inadequate risk management; (c) polluting be-haviours resulting from everyday activities of small enterprises, businesses or in-dividuals. In addition, an expert panel on "Environmental Protection ThroughCriminal Law: Limits of Individual Responsibility - Potentials of Collective Li-ability?" will be held during the Workshop.

Eleven countries (Australia, Brazil, Canada, China, Germany, Italy, Japan, Nige-ria, Poland, Sweden and Tunisia) participated in the empirical study. In eachcountry, with the assistance of the collaborating Institutes from the network of the

1 For further information and bibliographical references see the chapter "Project Develop-

ment".

Overview 21

United Nations Crime Prevention and Criminal Justice Programme, an expert wasidentified to carry out the field work. The Working Group developed guidelinesfor data collection for the experts.2

In order to provide information on the way specific systems for environmentalprotection work, each national expert was requested to illustrate three examplesfor each of the three categories of pollution described. The first one should be acase where the legal instruments available in the country were fully utilised or ef-fective implementation took place (sentences, plea bargaining with strict condi-tions, etc.); the second case should represent an example of the system's failure(i.e. there was no prosecution, the case was dismissed without any sanction, or nodecision was taken at all); and finally the third case should be an act presently be-ing identified as environmentally harmful and likely to be dealt with by newstrategies for better environmental protection (development of the law; new envi-ronmental protection structures, e.g. newly established Environmental ProtectionAgency; etc.).

National experts collected information from prosecutorial, administrative and en-vironmental agencies, environmental groups/movements (e.g. Greenpeace, Friendsof the Earth, etc.). In addition, for ongoing cases, other sources of informationwere newspapers and specialised journals.

II. Background and Delineation of the Topic

Over the years, the international community has become increasingly alarmed byenvironmental damage and technological disasters, which have tended to becomemore destructive as they affect ever larger concentrations of population. Interna-tional responses are primarily directed to relief action, but it is now increasinglyrealised that the actual and potential consequences of them are becoming so seri-ous, and increasingly global in scale, that much greater emphasis had to be givento the prevention of environmental damage. In this respect, the role of criminaljustice in the protection of the environment is becoming more important. Further-more, the consequences of some environmental disasters which were perceived farbeyond national borders underlined the international implications of such events.

The right to a healthy and safe environment was recognised in a number of UnitedNations and international fora and principal documents, such as the 1948 Univer-

2 See the chapter "Project Development".

22 Overview

sal Declaration of Human Rights and the United Nations Conference on the Hu-man Environment (Stockholm, 1972). Similar concerns were also expressed bythe Optional Protocol to the International Covenant on Economic, Social andCultural Rights, the Final Report (1985) of the World Expert Group on Environ-mental Law to the Brundtland Commission, the United Nations Conference onEnvironment and Development (Rio de Janeiro, 1992) and entrenched in the con-stitutions of several countries.

A. The role of criminal law in environmental protection

Criminal law was one of the first mechanisms in many countries which directly aswell as indirectly protected certain elements of the natural environment, e.g. airand water, although the objects of protection were human beings. It continues toplay a role which varies in importance according to the jurisdictions. In manycases there has also been a move to introduce substantive criminal offencesagainst the environment.

Some acts of pollution are so serious that they are considered to merit the ultimumremedium of stigmatisation as criminal. On the other hand, a mix of criminal, civiland administrative laws appears more appropriate to deal with the problem. Onereason is that victims can usually institute civil proceedings whereas they are notalways empowered to institute and pursue criminal proceedings. Another signifi-cant reason is that frequently States themselves are the most significant pollutersand the concept of State liability for criminal acts is not recognised at internationallaw.

When discussing the role of criminal law in environmental protection, one of thefirst issues to solve is the definition of environmental crime. Answering this ques-tion requires that the object of protection is defined first. There is a certain level ofagreement at the international level on the importance of defining (a) environmentas the scope of the protection per se, distinguishing it from property and publichealth or individual right to personal integrity, and (b) the components of the envi-ronment meriting protection.3

A "culture problem" might exist in dealing with environmental crimes. Personsand bodies engaged in this type of activity tend not to be regarded as criminals in 3 For example, directive 156/1991 CEE on waste, Art. 3. See also F. Giampietro, Models

and Types of Environmental Offences; Preliminary Considerations, in: H.-J. Albrecht/S. Leppä (eds.), Criminal Law and the Environment, HEUNI No. 22, Forssa 1992, pp.142-151.

Overview 23

the traditional sense, although they usually are quite aware of the consequences oftheir action. In this context, the term "crime against the environment" might bepreferable to the term "environmental crime". This would be consistent with othercriminal law concepts such as crimes against the person, crimes against propertyetc.

Criminal provisions devised to respond to environmentally harmful behaviourhave to deal with the problem of drawing a clear and practically feasible line be-tween crimes against the environment on the one hand and legitimate use of natu-ral resources on the other. Efforts should be made to ensure sustainable utilisationof natural resources in order to maintain a balance which will not hamper futuregenerations. Lack of resources should not impede environmental protection. Thus,the definition of environmental offences must take into account a range of inter-ests, including ecological, industrial and commercial.

Recent acts of aggression in the Gulf War have demonstrated that states can seri-ously damage the environment by weapons of war, producing consequences thatmay be irreversible or reversible only over the long term and at great expense. De-claring not only such aggressive acts but also the deliberate dumping of hazardouschemical and radioactive wastes, or of scuttling vessels carrying such cargo, asinternational crimes and placing them on the same level as genocide would ad-vance the international protection of the environment benefiting both the presentand future generations.

B. Limiting factors

The increased interest in using criminal law in environmental protection hasbrought about a serious debate about the appropriateness and effectiveness ofcriminal measures in preventing and redressing harm to the environment. One ofthe biggest concerns derives from the relationship between administrative andcriminal law; it is feared that criminal law will be inflated and its value therebydiminished since "both murder and mere disobedience of administrative orders isdefined as criminal".4 Similar concerns have been expressed about the danger ofselective prosecution and lenient and inefficient sentencing practices which, inturn, can also lead to the derogation of criminal law. A further problem is the lackof strict standards in criminal law: while strict standards in administrative law en-

4 G. Heine, Elaboration of Norms and the Protection of the Environment, in: C. Zanghì

(ed.), Protection of the Environment and Penal Law (Bari, Cacucci 1993), pp. 78-79.

24 Overview

able direct interaction between the administrative agency and the subject, lackthereof in criminal law makes it "soft" and predicts its malfunctioning.

The high cost factor involved in the use of criminal law for environmental protec-tion might also have a negative effect. Developing countries often lack resourceswhich are needed to enforce criminal provisions. However, poverty and environ-mental degradation are closely interrelated. Environmental protection in develop-ing countries must, in this context, be viewed as an integral part of the develop-ment process and cannot be considered in isolation from it.

Other weaknesses in the use of criminal law are the higher onus of proof required,the need to establish knowledge or intent, and the fact that in a number of juris-dictions it is not possible to convict corporations of criminal offences. Further-more, it may be observed that the application of criminal law can also be used as apurely symbolic measure to show that "something has been done" in order to di-vert attention from ineffective environmental protection as a whole.

Evidential difficulties include establishing mens rea, proving pollution or deleteri-ous effects, and difficulties in linking the pollution, the substance and the polluter.Because of these obstacles, there has been a trend in some industrialised countriestowards introducing devices that facilitate the attribution of criminal responsibil-ity.

In some countries, strict liability has been used as a means of overcoming some ofthe difficulties associated with the use of criminal law. Strict liability operates ir-respective of fault, although a defence of honest and reasonable mistake is avail-able. This might create problems, mostly due to the fact that one of the main pur-poses of criminal law is deterrence, and with culpability standard assessed withoutfault such deterrent effect would be displaced.

The question of who is liable to be criminally sanctioned is also crucial. Naturalpersons may, of course, be subject to criminal sanctions. In some jurisdictions, le-gal persons, government entities and officials from environmental protectionagencies may be criminally (as well as civilly) liable for environmental degrada-tion which results from breach of statutory duty. However, in most civil lawcountries criminal liability cannot be assigned to legal persons at present. At-tempts to target corporations indirectly by penalising responsible corporate em-ployees are found in some cases. These different ways of dealing with harm doneby corporations reflects historical divisions between societies where corporations

Overview 25

have been liable to criminal sanctions and those in which a presumption of socie-tas delinquere non potest exists.

Limitations can also be found in the use of criminal sanctions at the internationallevel. Significant variations in national laws, coupled with the embryonic state ofmutual assistance in criminal matters severely inhibits the effective use of thecriminal law at this level. Additionally, there is no comprehensive conventiondealing with the environment as a whole, and the existing conventions deal onlywith certain aspects of damage to the environment.

An additional limitation on the effective use of criminal sanctions at the interna-tional level is the need in many countries either to pass domestic legislation or toundertake ratification procedures, in order to give effect to international obliga-tions. Experience has shown that in many countries the process of transformationof international prescriptions into national law is very slow.5

C. Potentials

There are also advantages to utilising the criminal law. For example, the deterrenteffect of exposure to conviction of a criminal offence can be perceived as greaterthan exposure to merely civil liability, particularly given the growing range of in-novative sanctions which might be imposed. Further examples of positive effectswhich can only be guaranteed by criminal law are the enforcement of self-responsibility and the establishment of norm-obedience. Finally, the possibility ofterms of imprisonment for individuals, especially officers of corporations, is avery powerful deterrent.

Whilst criminal sanctions may have a greater deterrent effect and increase publicconcern in relation to the protection of the environment, this benefit would be lostif the chance of detection, and hence prosecution, was negligible. In these casesthe prohibited conduct would be engaged in with the risk of detection merely be-ing factored in as a cost of carrying on business. This could, however, be offset ifthe sanctions were sufficiently severe.

Another strength of the use of criminal sanctions in relation to domestic conduct isthat offences could be clearly defined in conformity with substantive and proce- 5 Experts from many countries have highlighted difficulties arising in the process of conver-

sion of international treaties into national laws. For example, the Nigerian expert reportedthat out of some 30 international conventions signed, only five have already been trans-formed into national laws.

26 Overview

dural domestic law and hence ensure compliance with the principle of legality. Inaddition, there is the possibility of domestic laws having extraterritorial applica-tion, and hence being capable of dealing with some transboundary conduct.

There are also good reasons for relying upon the criminal law at the regional level.Some of them are the likelihood of being able to reach an agreement on commondefinitions of the elements of the offences; the greater deterrent effect in relationto transborder conduct; the contribution towards achieving greater consistency inlegal provisions; and the existence of regional extradition and mutual assistance incriminal matters arrangements of which could contribute to effective investigationand prosecution.

D. Implementation

Typically, the penalty for an environmental offence is a fine and/or imprisonment.Fines are a traditional approach to penalising environmental offenders. In recenttimes, in some countries, concern has been expressed about the inadequacy ofmaximum fines provided for in statutes and imposed by the judiciary. Where re-form of environmental law has occurred, the fine continues to be at the centre ofsanctioning frameworks. However, attempts have been made to heighten its im-pact by such means as increasing maximum fines, legislating for minimum fines,subjecting repeat offenders to higher fines, making corporations liable to muchhigher fines than individuals, providing for sentencing guidelines on fines for cor-porations and "day fine" system based upon the income of the offender for con-tinuing offences. The rationale for such amendments is to deter potential offendersby threatening them with a real economic penalty, and to combat the view thatfines are merely a cost of doing business - a cost which is cheaper than installingand maintaining effective anti-pollution technology.

Most countries have predominantly used civil or administrative sanctions to en-courage compliance with environmental legislation, since a broad scope of sanc-tions are commonly seen as more appropriate as well as more effective andspeedier than the traditional penal sanctions of fines and imprisonment. However,the concern for more and more serious cases of pollution has increased the interestfor criminal measures which also have a greater potential for deterrence. Criminallaw is now looking for sanctions which have been used by administrative and civillaw in the past. These new forms of penal sanctions include adverse publicity, for-feiture of illegal profits, reparation orders, and incapacitative and coercive meas-

Overview 27

ures such as interdiction of professional activities and closing down enterprises, inaddition to community service and probation.

Comparison with sentencing instruments of non-penal character shows greatsimilarities to criminal law measures. Most countries provide for administrativesanctions in the case of breaches of administrative orders or norms. The mostcommon of such sanctions is the administrative fine which can partially be utilisedto forfeit profits or savings derived from illegal acts. Also compensative or resti-tutive, coercive and preventive provisions are made available in administrativelegislation. These include clean-ups, closing of enterprises, revocation or altera-tion of permits, confiscation, etc. Civil law sanctions offer generally similar sortsof remedies.

At the level of environmental criminal law enforcement, it is important to keep inmind that administrative agencies, criminal justice agencies, and the judiciary, re-spectively, are independent organisations. The judiciary and the administrativebodies share the overall goal, the protection of the natural environment, but or-ganisational independence is apt to generate conflicts, since the overall goal is in-terpreted in different ways by the independent organisations. The conflicting in-terpretations are reflected in the ways the competent authorities designate theirroles in preventing and combating environmental crimes.

If organisational independence is a value worth maintaining, the other side of thecoin, as a rule, is one-way functional dependency between the judiciary and envi-ronmental administration. Availability of information on pollution activities of apossibly criminal nature is an indispensable condition for implementing environ-mental criminal law. Environmental administration, as a rule, represents the ex-pertise, while police, prosecution, and criminal courts are the non-specialisedbodies in this respect. 6 These agencies simply are not differentiated along theneeds of supervising and controlling the multivariated environmental activities.

These organisational prerequisites lead the discussion to the question of resourcesand know-how. Apparently, specialised know-how is a necessary precondition forthe work of the judiciary in a majority of environmental cases. A lack of it must beremedied somehow. It can be done by increasing skilled manpower and advancedtechnical resources of the judiciary. More often than not that would, however,mean doubling up the resources units of environmental administration already 6 See e.g. H.-J. Albrecht, The Role of Administrative Agencies and the Judiciary in the Pre-

vention and Suppression of Environmental Crimes, in: H.-J. Albrecht/S. Leppä (eds.),Criminal Law and the Environment, HEUNI No. 22, Forssa 1992, pp.196-205.

28 Overview

possess. The solution might be an integrated approach, with a high level of co-operation and communication between the competent authorities7 (e.g. technicalassessors to aid the court in sentencing; a specialised environment court or an en-vironment panel or chamber, as recently established by the International Court ofJustice at The Hague).

For a number of reasons, in many countries knowledge about enforcement is in-complete. First, environmental protection laws may be so recent that it is impossi-ble to draw conclusions about their implementation. Second, enforcement datamay not be collected or published. Third, lack of public disclosure laws may makeit difficult to obtain information even if it exists.

Jurisdictions vary considerably in the type of polluter who is sanctioned. In somecountries it appears that small corporations and individuals are more likely to besanctioned than large companies or government-run agencies. In others, corpora-tions are more likely to be prosecuted than individuals. Commentators have dif-fering views on whether prosecution profiles are representative of polluters. Whilesome would support such a view, others consider that transnational corporationsand government agencies are simply treated more favourably than less powerfulactors such as members of the public or small business.

There is a common misconception that failure to apply pollution laws indicatesthat either the legislation or its administrators are deficient.8 However, there is theperception that statutes are being inadequately and sometimes inconsistently en-forced, as evidenced by continuing (and sometimes alarming) pollution problems.One readily apparent reason relates to the desire to enhance industrial develop-ment - a desire common to both developing and developed countries. In develop-ing countries, desire for the economic, social and political benefits of industriali-sation, coupled with inequalities of bargaining power and fear that foreign or trans-national corporations may locate elsewhere if environmental protection require-ments are too rigorous, may all play a part.

7 See e.g. H. Lefèvre/H. Wattel, Enforcement of Environmental Law in the Netherlands, in:

H.-J. Albrecht/S. Leppä (eds.), Criminal Law and the Environment, HEUNI No. 22, Forssa1992, pp. 112-126.

8 K. Webb, Pollution Control in Canada: the Regulatory Approach of the 1980s Ottawa,Canada, Law Reform Commission of Canada, 1988.

Overview 29

E. Other strategies and instruments facilitating compliance

Attitudes to pollution - held by government, officials and members of the public -are also important in determining what statutory protection is given to the envi-ronment and how those protections are implemented. Political orientations mayalso impact on attitudes to pollution. Societies which have made industrialisationa priority at the expense of other goals have tended to consider pollution to be ofnegligible importance.

Compliance with legislative requirements may be sought through means otherthan enforcement, with conciliation being another strategy. Traditional disputeresolution might be conciliation-based. Education is another compliance strategyand is often used in conjunction with conciliation. This strategy is employed insome countries where environmental protection agencies administer licensing andpermit schemes, but also give advice to industry and enforce environmental pro-tection laws. Many of these agencies regard industry as their clients or customersand see enforcement as non-productive. Prosecution is viewed as a final resort andan indication of failure.

Another approach suggested by several commentators is the proactive method ofEnvironmental Compliance Audits as a means of providing managements of cor-porations that the corporation's health, safety and environmental responsibilitiesare being adequately discharged and that no significant non-compliance exists.Benefits, for corporations thus include an independent verification of compliancewith environmental legislation, the identification of deficiencies in management orsystems problems, an added incentive for self evaluation and an improved capac-ity to consider environmental issues in business planning.

The need for training, equipment, resources and co-ordination of the authoritiesmakes enforcement a very costly exercise. In addition, the lack of expertise andspecialisation might sometimes make it difficult even to suspect an offence. Thesame problems will obviously affect investigation as well. Especially in develop-ing countries, resource constraints may affect the enforcement of environmentalprotection statutes. Where criminal sanctions are available, adequate training willalso be necessary in criminal investigation techniques.

30 Overview

Another important factor is the impact of any new environmental legislation onthe workload of all the agencies called upon to implement it.9 Formal sanctioningstrategies of whatever type involve intensive use of staff time and financial re-sources. Environmental protection officials in some industrialised countries havereferred to the resource intensiveness of criminal sanctions as one reason whyother avenues are often tried first and have also pointed out the need for training incriminal investigation to be supplied to enforcement officers in their agencies.

Finally, most of the efforts relate to pollution control, while very small resourcesare allocated in pollution prevention. Pollution prevention can be an effective andflexible response instead of the damage approach. The pollution prevention ap-proach can be accomplished by creating a framework which encourages pollutionprevention choices in the best interest of the individual or entity concerned.

Since choices are generally made on the basis of cost-effectiveness, it is importantthat the total cost of breaching environmental laws (including liability) is clear tothe regulated entities and that a pollution prevention alternative exists. The sav-ings in adopting the prevention option should be manifest.

Some cost-effective strategies to prevent environmental offences, such as cleantechnology which envisages environmental damage prevention built in; informa-tion on pollution to be provided to the public at large; promoting projects involv-ing NGOs, citizens and community groups in environmental improvement; gov-ernment sponsored technical assistance (e.g. translation of operating instructionsof potentially polluting machinery such as dry cleaning machines into minoritygroup languages) are suggested.

III. Crimes against the Environment and Sustainable Development

A. Sustainable development: socio-economic issues v. environmentalconcerns

Our Common Future, the report produced by the World Commission on Environ-ment and Development in 1987, brought the concept of sustainable developmentto global attention, as meeting "the needs of the present without compromising theability of future generations to meet their own needs". 9 M. Joutsen, Implementation of the norms for protection, in: The Movement of Social De-

fence, the Protection of the Environment and Fundamental Rights, International Society ofSocial Defence, Milano 1993.

Overview 31

The enforcement of environmental protection laws often raises difficult questionswhich reflect many of the issues contested in debates about sustainable develop-ment.10 A number of factors have been identified as contributing to inadequateenvironmental laws and deficient enforcement. Among these were lack of priorityaccorded to environmental issues, lack of resources and, especially in developingcountries, the desire to enhance industrial growth.

On the other hand, unsustainable consumption and production patterns in the in-dustrialised world not only degrade the environment but create imbalances be-tween North and South and exacerbate poverty. Unsustainable consumption andproduction were identified in Agenda 21 as the "major cause of the continued de-terioration of the global environment".11

Truly sustainable development is a vital ingredient in achieving a better environ-ment and in fostering a criminal justice system that can be used vigorously and ef-fectively to secure environmental protection.

The traditions in the industrialised world of consumption and economic growthhave led many commentators to equate the concept of development with the ideaof economic growth. However, "to grow means 'to increase naturally in sizethrough the addition of material through assimilation or accretion'. To developmeans 'to expand or realise the potentialities of; bring gradually to a fuller, greateror better state'. In short, growth is quantitative increase in physical scale while de-velopment is qualitative improvement or unfolding of potentiality. An economycan grow without developing, or developing without growing, or do both, or nei-ther".12

It is development rather than growth that should be the outcome and consequently,it is qualitative rather than quantitative issues that should be emphasised. In addi-tion, a primarily economic focus limits the scope of sustainability and may ob-scure the important issues of equity within and between generations; the need forbiological diversity and social equity; and the existence of poverty in the devel-oping world and unsustainable production and consumption in the industrialisedworld.

10 A. Alvazzi del Frate/J. Norberry, Environmental Crime, Sanctioning Strategies and Sus-

tainable Development, UNICRI/AIC No. 50, 1993.11 Report of the United Nations Conference on Environment and Development, UNCED

1992, chap. 4.3.12 H.E. Daly, Toward some operational principles of sustainable development, Ecological

Economics, vol. 2, 1990, pp. 1-6.

32 Overview

B. Public awareness and sensitivity

The 1972 United Nations Conference on Human Development played an impor-tant role in promoting environmental awareness around the world. Since that time,the significance of environmental issues has been reflected in mass media report-ing, political interest and in the formation and expansion of green organisationsand community groups. Heightened public awareness can be an important force inachieving the enactment, reform and enforcement of environmental laws, and inensuring that adequate financial resources are dedicated to environmental protec-tion. However, it is not only the extent of public concern about the environmentthat is significant, but the nature of that concern.

In most countries environmental issues are regularly dealt with in national news-papers.13 Media coverage of environmental issues was stimulated in the run-up tothe United Nations Conference on Environment and Development. In addition,major political parties acknowledge the importance of environmental issues and"green" parties have been established and are proliferating in many nations.

Green parties have occupied positions of considerable power at national level insome of the nations undertaking research for this Workshop.14 In many countries,green parties have proliferated at local level.

Public opinion surveys are another barometer of support for green issues in thecommunity. Even during the current global recession, there are indications insome nations that issues such as pollution continue to be regarded as importantand pollution offences as extremely serious, even when compared to traditionalcrimes against the person.15 Thus, in Australia, 57 per cent of respondents to a re-cent poll gave environmental protection a higher priority than economic growth.16

13 A. Alvazzi del Frate/J. Norberry (eds.), Environmental Crime, Sanctioning Strategies and

Sustainable Development, UNICRI/AIC No. 50, 1993.14 See the Green Party in Germany as a prime example.15 See e.g. P. Wilson/J. Walker/S. Mukherjee, How the public sees crime: an Australian sur-

vey, Trends and Issues in Crime and Criminal Justice, No. 2, October 1986; J. Walker/M.Collins/P. Wilson, How the public sees sentencing: an Australian survey, Trends and Is-sues in Crime and Criminal Justice, No. 4, April 1987. In these surveys, 2.500 Australianswere asked to rank 13 offences and select appropriate sentences for each. A pollution of-fence in which a factory knowingly polluted the water supply and caused the death of oneperson was ranked as the third most serious offence.

16 Saulwick Opinion Poll, Sydney Morning Herald, 12 April 1994.

Overview 33

Public awareness is a significant determinant in ensuring that environmental pro-tection legislation is enacted and implemented, and in ensuring that sufficientbudgetary resources are allocated to the administration and enforcement of envi-ronmental laws. In addition, public perception that environmental offences aresufficiently serious to be regarded as "crimes" is vital if the criminal justice systemis to be used to protect the environment.

However, for the general public in many developing countries, the "environment"may be seen as less significant and environmental issues, when acknowledged, areoften different to those regarded as important in developed nations. Not surpris-ingly, "the environment" may be overshadowed in impoverished societies by "sur-vival" issues such as health, sanitation and housing. In some nations environ-mental protection has, in the past, been seen as an invention of industrialisedworld. While environment may now be a more important issue on the public'sagenda, many citizens in the Third World still ask: "How clean can we afford tobe?"

C. The role of non-governmental organisations17

NGOs exist at various points on the "green" spectrum and there is considerabledebate among them about what roles they should play in the protection of the en-vironment. However, it is clear that they can and do play a number of roles. TheBrundtland Report commented that citizen groups had stimulated public and po-litical awareness and thus put the environment onto the agenda of many govern-ments. There was support for NGOs as partners in sustainable development at theUnited Nations Conference on Environment and Development in 1992. Agenda21, the action plan of the Conference, dealt specifically with the role of NGOs -including formal and informal organisations and grass roots movements. It identi-fied their strengths as independence, credibility, expertise and experience; re-marked that they were an important source of innovation and action; and advo-cated increased support for them.18

In relation to crimes against the environment, NGOs can play a role in detection,prevention and sanctioning. As a by-product of these activities, and in addition tothem, NGOs can keep environmental issues on the public and political agendas.

17 Reference will also be made in this section to individual citizens and grass roots organisa-

tions.18 Report of the United Nations Conference on Environment and Development, UNCED,

A/CONF.151/26 (Vol. III), Rio de Janeiro, 3 to 14 June 1992.

34 Overview

As a result governments may be stimulated to address environmental degradationthrough the criminal justice system as well as by the use of other means.

NGOs such as Greenpeace have been important in exposing transboundary pollu-tion, maritime pollution and the transport of hazardous wastes. In addition, NGOshave acted as a conduit for information. Their networks at local, national, and in-ternational levels; their connections with other organisations and their skill in us-ing the media have been important in obtaining information about pollution andhazardous waste incidents; in bringing these matters to wide attention; and in se-curing resolutions whether through legal, administrative or political means.

NGOs are also active in exposing domestic pollution as it happened in some casesof rapid and unchecked industrial development. Evidence of the scale and natureof pollution was provided by local citizen groups who documented the pollution,publicised it and established a system for monitoring emissions from industrialplants.19

In some nations NGOs have been important information providers in compilingand issuing of state of the environment reports. Regular and independent state ofthe environment reporting is crucial in identifying problems and monitoring prog-ress towards environmentally sustainable development.

Individual citizens and grass roots organisations have also stimulated the investi-gation and sanctioning of pollution incidents by government authorities or the po-lice. Such action was frequently reported in the case studies undertaken for theResearch Workshop. Citizens are often best placed to observe pollution occurring;administrative agencies and the police simply do not have the resources to monitorall potential polluters at all times.

NGOs have an important role to play in the prevention of crimes against the envi-ronment. They may do this, for example, by undertaking environmental improve-ment schemes and projects that promote health and improve sanitation. They maybe involved by environmental protection agencies and by industry in planning,monitoring and evaluating industrial activity. In addition, citizens and NGOs canplay an important role in stimulating governments to reassess and reform their en-vironmental policies and environmental laws - and in doing so, can be a powerful

19 See e.g. the case of the city of Cubatao, Brazil, in the 1970s. NGOs' actions played an im-

portant role in improving the city environment. J. Hardoy/D. Mitlin/D. Satterthwaite, En-vironmental Problems in Third World Cities, London, Earthscan 1992.

Overview 35

force in the prevention of crimes against the environment and in the protection ofthe environment.

NGOs have themselves played a direct role in the sanctioning of offenders - bothextra-legally and by recourse to conventional legal channels. Some nations - forexample, Australia and China - report that NGOs have taken direct action againstpolluters ranging from temporary interference with discharge pipes to sabotagingpolluting industries. Such actions commonly arise when pollution is known togovernment authorities but is continuing unabated. NGOs have also instituted le-gal action against polluters and government agencies. For example, the SwedishSociety for Nature Conservation was recently given standing in a civil case in-volving pollution of the Swedish coastline; the recognition of public interest liti-gation by the Indian Supreme Court; and the granting of standing to sue given bythe Philippine Supreme Court to prevent further logging operations in forests.

A final role for NGOs and citizens may be to participate directly in the criminaljustice system as initiators of prosecutions against environmental offenders. Thisis a contentious issue for many legal systems, but one which is particularly im-portant for environmental protection groups and pollution victims.

IV. Transboundary Pollution

Transboundary pollution occurs from three significant sources: (a) industrialplants and other land-based sources emitting or discharging pollutants into the seaor transporting to the territory of another state or to the global commons (atmos-phere, oceans); (b) movement and disposal of hazardous chemical, medical andradioactive wastes; and (c) pollution by oil or other noxious substances from ves-sels sailing on the high seas or in territorial waters.

To these three sources can be added the deliberate destruction of ecosystems ofother states or of the global commons by aggression. Excluded from this report arecases of "natural pollution",20 and pollution where the only transboundary elementis that the plant discharging toxic fumes was owned by a foreign company.21 Withthe exception of the last, the appropriate response for the others is not the use ofcriminal sanction, nor even legal proceedings to recover damages, but joint pro-grams to combat them. The response to the last case should be to strengthen na- 20 Such as the water hyacinth weeds and whitefly pest (Nigerian report), the "Lucille

Bouchere" insect and locust plague (Tunisian report).21 Case mentioned in the Chinese report.

36 Overview

tional laws and to ensure that multinational corporations utilise the highest envi-ronmental standards that they use in their home countries.

A. Transboundary emissions and discharges

Pollution originating in one state and damaging the ecosystem of another state orthe global commons has had a relatively longer history than the other two types ofpollution. International law in this area developed through bilateral treaties, suchas the Canada-U.S. Boundary Waters Treaty of 1909, the Nordic EnvironmentProtection Convention of 1974 (Sweden and the other three Nordic countries),Border Rivers Agreement (1971) (Sweden-Finland), Rhine River Convention(Germany, Switzerland and France), and arbitral awards, the most important ofwhich were Trail Smelter (1938) (Canada-U.S.) and Lac Lannoux (1957) (France-Spain). These treaties and decisions accepted the principle that "[n]o state has theright to use or permit the use of its territory in such a manner as to cause injury ...to the territory of another state or the properties of person therein, when the case isof serious consequence and the injury is established by clear and convincing evi-dence".

The Stockholm Declaration of 1972 marks the beginning of a global attempt todevelop international law. In Principles 21 and 22 of the Declaration, states reiter-ated the statement of international law in the Trail Smelter decision when theysolemnly undertook to so conduct their activities as not to injure other states, andto co-operate to develop further the international law regarding liability and com-pensation for the victims of pollution and other environmental damage. Since thenimportant conventions have been concluded, for example, the 1979 Convention onLong Range Transboundary Air Pollution,22 the 1985 Vienna Convention on theProtection of the Ozone Layer,23 and the 1992 Climate and Bio Diversity Con-ventions.24

Despite these bilateral treaties and multilateral conventions, transboundary pollu-tion continues unabated. The situation is complicated by the fact that countries areoften both polluters and recipients of pollution from other countries. This is ap-parent from the cases of acid rain damaging the ecosystems mentioned by the Ca-nadian, Japanese, Polish and Swedish experts.

22 Canada, Germany, Italy, Poland and Sweden are among parties.23 All 11 countries are among parties.24 Australia, Canada, China, Germany, Japan, Sweden and Tunisia are among parties.

Overview 37

While national criminal laws can be given extraterritorial application by virtue ofthe principle that states can consider that an offence is committed both where theact was perpetrated and where harm was suffered (referred to in the German re-port), without the co-operation of official authorities in the country from whichpollution proceeds, prosecutions are likely to be futile; they may also strain inter-national relations.

Alternatives to criminal justice have far greater potential. They include: (a) com-mitments to reduce or eliminate pollution through bilateral treaties and multilat-eral conventions (e.g., Great Lakes Water Quality Agreements and Acid rain ac-cord; Nordic Environmental Protection Convention and Border Rivers Agree-ment; Rhine Convention 1976; Convention on Long Range Transboundary AirPollution and its protocols, Vienna Convention on the Protection of the OzoneLayer and its protocols, etc.); (b) negotiations (reported by the Japanese expertconcerning transboundary pollution derived from acid rain); (c) dispute resolu-tions through arbitration, mediation, etc. (proposals made by the Canadian andAmerican Bar Associations to the Canadian/United States' governments; OECDrecommendations; provisions in some recent conventions); (d) equal access tocourts and administrative processes to nationals of other countries to commencecivil proceedings to obtain compensation and redress and to facilitate mutual en-forcement of judgements, etc. (OECD recommendations; Transboundary Pollu-tion Reciprocal Access laws in several Canadian provinces; NAFTA agreementbetween Canada, the United States and Mexico; etc.).

A prerequisite for the success of these mechanisms is the existence of a friendlyneighbourly atmosphere between states. International co-operation produces betterresults than confrontation. Such co-operation is further strengthened if each coun-try enters into bilateral or multilateral treaties and agrees and stands ready andwilling to prosecute its own nationals which are responsible for transboundarypollution.

International efforts at combating criminality can be further strengthened by giv-ing non-governmental organisations the right to commence prosecution andstanding to sue. Giving standing to victims or private organisations representingthem, and to organisations with primary objectives of protecting the environment,to commence legal proceedings, including prosecution, and ensure that the result-ing judgements are enforced, can be effective in combating transboundary pollu-tion.

38 Overview

B. Hazardous waste

The development of international law in the area of hazardous waste has beenmore recent and began with the London Dumping Convention in 197225 whichprohibited the dumping of hazardous waste in the oceans and the United NationsConvention on the Law of the Sea 198226 by which signatory states agreed to pro-tect the marine environment by, among other measures, prohibiting the ocean dis-posal of hazardous wastes.

The growing waste exports by industrialised countries to developing countries inAfrica, the Far East and Latin America, especially the infamous "Koko" dumpingincident reported by Nigeria, not only prompted the Organisation of African Unityto call for a ban on hazardous waste import into Africa and within African coun-tries, but also put pressure on the international community to call for the control ofsuch trade. With the OECD giving the lead by adapting a recommendation whichasked OECD countries to notify the importing state's authorities before exportinghazardous wastes to non-OECD countries, a few years earlier, the internationalcommunity responded by concluding in 1989 the Basel Convention on the Controlof Transboundary Movement of Hazardous Wastes and their Disposal27 by whichsignatory states agreed to prohibit the illegal transportation of hazardous wastes toand their disposal in other countries without the prior informed consent of thosestates, to agree to take back illegally shipped wastes, and to punish offenders withcriminal sanctions. It was followed by the Bamako Convention in 199128 whichdeclared that the import of hazardous wastes into Africa is illegal and a criminaloffence. The European Community also issued a set of rules for the transport ofwaste (259/1993).

However, despite national criminal laws and international conventions, hazardouswaste trade is still a serious problem. Because of the very high cost of legal dis-posal in industrialised countries, there is a great temptation on the part of produc-ers to lure poor, cash-strapped countries to import these wastes by providing at-tractive financial inducements and even by bribing officials. Transport documen-tation, laboratory analyses, consent documents, etc. are often doctored by shippersand transporters, thus escaping scrutiny by customs and border officials.

25 All 11 countries are among the parties to the convention.26 The Law of the Sea Convention is now in force.27 Australia, China, Nigeria, Poland and Sweden are among the parties28 Nigeria and Tunisia are among the parties to the convention.

Overview 39

Some of the above mentioned practices occur because of the imprecise languageused in the convention, such as the definition of waste pointed by the German andPolish experts (whether waste destined for recycling is waste), the definition ofparties pointed out by the experts from Italy (whether brokers or international fa-cilitators are covered by the Basel Convention) and Australia (whether consent oftransit countries is necessary).

More serious weaknesses in combating this type of criminality, however, are thedifficulties in detecting and investigating, and tracking vessels sailing the oceansand vehicles criss-crossing international borders. In this respect, developing coun-tries lack the infrastructure and laboratory and testing facilities for determiningwhether the "goods" they receive from industrialised countries are prohibitedwastes.

Criminal sanctions have the greatest potential in this area of criminality in whichcriminal elements and organised crime appear to have penetrated. Internationalnon-governmental organisations, such as the Greenpeace, or an international teamof investigators, such as the Green Helmets proposed by the Norwegian govern-ment, could assist governmental efforts in combating midnight dumping in remoteareas and in the high seas. Furthermore, where national criminal courts are pow-erless to deal with such criminality, the idea of giving criminal jurisdiction to aninternational tribunal might have considerable merit.

Vigorous implementation and enforcement of international conventions, such asthe Basel Convention through national laws, with stiff criminal penalties for con-travention, are needed to achieve success in combating cross-border and interna-tional criminality. International co-operation in the form of information, notifica-tion of movement of cargo, and mutual assistance in investigation and prosecu-tion, would also be of considerable assistance. Successful results, including prose-cutions, have been achieved in some cases through such co-operation, which theexperts from Canada, Italy and Sweden have highlighted in their reports, but theambiguities in the conventions, referred to above, have resulted in acquittals inGerman and Italian courts.

Assistance to developing countries which lack administrative infrastructure, in-vestigative techniques and laboratory facilities to analyse samples of shipments, inthe form of technical assistance by industrially advanced countries, would signifi-cantly improve enforcement efforts internationally.

40 Overview

Treating the illegal dumping of toxic hazardous chemical and radioactive wasteswhich create serious danger to the ecosystem of another state or to the globalcommons, as international crimes can be expected to deter this type of criminality.The International Law Commission's proposals in this regard that deliberate andserious damage to the environment should be included within the category ofcrimes against peace and security of mankind, if adopted by the community ofstates, will go a long way to eradicating the crime, especially if the Commission'sconcomitant proposals on an international tribunal and international investigativeand enforcement machinery are adopted.

C. Marine pollution

The area of marine pollution has been regulated by both national shipping and portand harbour laws and, since the establishment of the International Maritime Or-ganisation in 194829 by international conventions such as the Conventions on OilPollution (1954) and its protocols,30 Intervention on the High Seas (1969)31 CivilLiability (1969) and its protocols32 and MARPOL 73/7833 and more recently theUN Convention on the Law of the Sea.

Most of the pollution incidents can be handled through national marine protectionlaws. However, the fines provided in such laws are often unrealistically low whendealing with foreign vessels that pollute the territorial waters of developing coun-tries. It should be noted, however, that Conventions such as the United NationsConvention on the Law of the Sea, prohibit discrimination against foreign vesselsin the imposition of sanctions.34

Victim states are primarily interested in ensuring expeditious clean-up as well asin future deterrence. Alternative sanctioning strategies, such as plea bargaining,compensation agreements (reported by Tunisia), etc., can sometimes ensurespeedy clean-up. In some cases, innovative sanctioning strategies, such as resort tothe deep pockets doctrine, where the financial penalty is intended to be and is ul-

29 All 11 countries are among parties to the IMO Convention.30 Australia, Canada and Nigeria are among the parties.31 Australia, Germany, Italy, Japan, Poland, Sweden and Tunisia are among parties.32 All 11 countries are among parties to the Convention.33 All except Nigeria are among the parties to the Convention34 See s. 227, Part XII. Unless the conduct is wilful and serious only monetary sanctions can

be imposed on foreign vessels in the territorial sea: s. 230.

Overview 41

timately borne by insurers (reported by the German expert) can produce successfulresults.

Prosecution of owners of foreign flag vessels which discharge pollutants in thehigh seas which then enter and pollute territorial waters, poses problems becauseif they are not within the jurisdiction of the country which has been harmed bysuch pollution, their authorities have to rely on national authorities of countries towhich they belong to prosecute those owners. Such reliance has been found to beunsatisfactory in several instances by the Australian and Swedish experts.

International efforts to combat marine pollution should be particularly directed attramp vessels which are often unseaworthy when they start their voyage and breakup in stormy weather. It often pays owners of such vessels to scuttle them ratherthan deliver the cargo to its destination, especially if the cargo is of hazardous na-ture. International conventions should be strengthened and criminals such negli-gent and deliberate conduct.

V. Pollution Originating from the Operations of Large-Scale Plants

A. Developmental and political factors

Many countries (especially common law ones) traditionally criminals enterprises,others adhere to the typical civil law principle of societas delinquere non potest.But many of the latter countries have established legal possibilities for influencingenterprises by "pressure" from the state. This has been done by means of differentlegal instruments. Some countries have installed a specific liability of enterprisesin "penal side systems", oriented towards supporting the administrative agenciesin balancing social risks35 There is also a tendency to impute corporate liability incriminal law, i.e. for serious harmful consequences. Other countries have estab-lished specific possibilities in criminal law to enforce financial sanctions againstenterprises, such as confiscation. Some countries prefer "quasi criminal law"regulations36 or "penal side systems".37 Their objectives are the same as those incommon law countries, to steer enterprises by power of the state. All countries,even those which do not recognise the criminal liability of enterprises, are lookingat more effective tools for influencing enterprises.

35 Such as the "Ordnungswidrigkeitenrecht" (Germany) and the Italian system.36 Poland and Sweden among others.37 Tunisia.

42 Overview

Most countries share a number of common problems. It is still unclear how best toimplement collective responsibility in the realm of environmental protection to re-act to some new problems, such as: impenetrability of corporate structures, ques-tionable individual responsibility, unclear division of responsibility betweenagency and operator, absence of temporal relation to a particular event, and faultydevelopments over time. This is also related to the fact that consistent dogmaticconceptions of the new problems, as well as universally workable law enforce-ment policies, are rarely found. This has certainly led to scepticism towards thehypothesis of introducing collective criminal responsibility in civil law countries,as documented by the German and Italian experts.

The obstacles against effectively influencing enterprises by criminal law are dif-ferent in common law and civil law countries. Furthermore, the role of criminallaw depends on a complexity of legal, economic, technical and social factors.Therefore, the law established in a system has to be interpreted by a broad range ofdifferent elements. As a rule, the multitude of interests in this field favours flexi-ble strategies. To this must be added the social power of enterprises. An importantfactor for the implementation of the law is whether the enterprises are private orstate-owned, especially in developing countries. In the latter case it is a fact that,despite the principle of separation of powers, law enforcement is rendered moredifficult. Finally, different levels of development of administrative law are estab-lished and different standards are set which strongly influence the effectiveness ofcriminalising enterprises. Last but not least, there is a trend in the countries cov-ered by this study to establish new criminal laws after spectacular pollution inci-dents have occurred. As a rule, there is uncertainty in interpreting the new laws fora long period of time.38 Special problems arise in countries which lack norms re-garding implementation. For example, the Chinese report mentioned a case of en-vironmental pollution of property in a rural region in which the population re-sorted to self-help since the law could not stop pollution. Serious problems re-garding the general sense of fairness arise when sabotaging of industrial plants iscriminalised.39

38 See e.g. the Aerosil case mentioned by the Japanese expert.39 See e.g. the Mining Company case mentioned by the Chinese expert.

Overview 43

B. Problems of criminal responsibility

It is a continuing problem for criminal law, which normally punishes the wrongfuldecision of a person in a specific situation, to manage faulty developments overtime, complex structures of enterprises, unclear liability of enterprises and agen-cies, and complexity of involved interests.

In all countries there is a trend towards broadening the criminal responsibility ofindividuals. This is particularly the case with countries in which liability of enter-prises is alien to criminal law. The principle of criminalising an individual so as tohit the enterprise through its employee, and thus influence it to avoid committingfurther crimes in the future, has shown several limits. One reason is that a largescale enterprise functions by different systems, departments, or substructures andnot only by the guidance of a single person. Another reason is that in many coun-tries there are limits to the responsibility of a single person. This widening of indi-vidual responsibility can even be found in countries which have much experiencewith corporate liability. The axiom of corporate liability is that the enterprise mustidentify itself with the persons in charge of it, upon which it depends for its ac-tivities, i.e. on the basis of vicarious liability for the employees.

According to the Canadian report, on the other hand, no problems exist in suchcountry in dealing with "organised irresponsibility" or faulty decisions over time,etc. This may function on the basis of specific legal and social conditions. But itcan hardly be a model for all countries. From the standpoint of many other coun-tries, an important task of individual criminal law is endangered, namely the de-limitation of the realm of responsibility of individuals in the face of exaggeratedclaims of the state repressive apparatus. The more a sanction is alienated fromcertain principles of blameworthiness, the more it loses its punitive character. Inthe end, many civil law countries fear that the loss of substance would deprive thepunishment of natural persons of the specific effects which differentiate themfrom other legal consequences in civil and administrative law.

Another problem is that many countries only envisage classical criminal sanc-tions. Especially in the field of non-compliance with administrative regulationsand orders often only fines are available. For example, the Italian expert men-tioned that the offences specified by sectorial environmental laws are often pun-ishable by fines and these are very mild; the German expert reports that the sanc-tion for an enterprise is a non-criminal fine, and the Polish report, highlightingthat the country hitherto sticks to the principle of societas delinquere non potest,

44 Overview

mentioned that corporate liability is known in the administrative field with ele-ments of penal law (quasi-criminal).

In modern societies, the task of determining the acceptable risks is more and moredelegated to administrative agencies. Furthermore it is often a precondition of thefunctioning that the risks are dealt with jointly by the agency and the enterprise,and this presents many problems for criminal liability. One is that in the case ofincident, for example an ecological catastrophe, the liability is unclear: the princi-ple of in dubio pro reo hinders a decision. Furthermore, if the conditions in thepermission seem too strict (with respect to technical possibilities and social ques-tions, e.g. loss of jobs) the standards will be lowered. The Australian expert, forexample, reports that the State Pollution Control Commission (and its successor,the Environment Protection Authority) has the discretion to vary the limits pre-scribed in the regulations. Thus, the prosecution must be viewed in the context ofthe policy of "prosecutable reality". In general, it can be said that conciliation isthe strategy preferred by the authorities in handling enterprises and environmentalproblems. Criminal law is only considered useful in cases of resistant pollutersthat are unwilling to co-operate with the administrative authorities. Other coun-tries tend to reduce administrative regulations according to the principle of "con-trolling the controllers".

At this stage, in the opinion of the experts, there are only a few cases among thoseconsidered for the study in which criminal law has produced effective results. Ac-cording to the Canadian and Australian reports, the influence of criminal law inthese two countries seems to be more significant than in other countries, wherecriminal law plays a minor role in handling large scale enterprises. If there is asentence then it usually takes the form of a fine.

C. Models of criminal responsibility of corporations

At present, three reasons call for the launching of an international discussion onthe question of corporate liability: first, to activate collective forces towards a re-sponsibility-conscious management of risk; second, to explore adequate methodsof imputing responsibility to individuals; and, finally, to prevent an on-going lev-elling of the notion of individual liability in the criminal law.

In the light of the potential dangerousness of high-risk enterprises, it seems evenmore necessary to agree on a common approach and terminology. The following

Overview 45

overview is a step in this direction. The broad spectrum of ideas to criminaliseenterprises can be summarised in three models:

- an act of management as the enterprise's own misconduct;- defective corporate organisation;- and the principle of causality (initiation).

Act of management as the enterprise's own misconduct: The axiom of the firstmodel is that the enterprise must identify itself with its management, upon whichit is dependent for its activity (that is on the basis of vicarious liability for employ-ees). Although many options exist to impute liability to enterprises, the legislativeand judicial organs find themselves compelled to a step-by-step broadening of in-dividual criminal liability in order to facilitate corporate liability. Therefore, thismodel in no way contributes to the balancing of individual responsibility against acollective concept of liability. It is in line with the phrase: "The more extensive theresponsibility of the individual, the more comprehensive is the liability of the or-ganisation." Indeed, the courts tend to relate quite pragmatically to the basic ideaand allow for exceptions (general guilt). The result is the transition to anothermodel of collective liability.

Defective organisation of the enterprise: The concept of the second model is asfollows: an incident, such as environmental pollution, is linked to defective or-ganisation of an enterprise. It is no longer a question of personification of respon-sibility for faulty single decisions (which is almost impossible to detect in thewrong developments over a long period of time in the enterprise), but rather a typeof organisational blame of the entity for neglecting its duty to concern itself withthe adequate balancing of risks which arise with the opening and operation of acomplex system. Up to now, many countries precautiously go this way: establish-ing punishability of an individual is dispensable in some situations. Such a modelof faulty risk management produces two advantages: on the one hand, it facilitatesan equal corporate liability, whether the difficulties of identifying an individualperson are due to organised or structural personal irresponsibility. On the otherhand, it resists any law enforcement policy which seeks to broaden individualcriminal liability for the sole purpose of gaining influence over the corporation. Ina comparative perspective, different options can be found. One depends on thekind of incident. Some countries emphasise the violation of specific duties, forexample emission standards. Others put the emphasis on serious harm. In the im-putation of these events as anonymous organisational responsibility, different rulesare followed in the determination of individual responsibility. This flows from thefact that much more can be demanded of an enterprise with special technical

46 Overview

know-how and a powerful legal department than of an individual. For example,some countries inquire directly into the abstract avoidability of the incident, thusbarring the door to the causality question. In some environmental prosecutions, thetypical argument of the enterprise - that all organisational precautions were takenand therefore could not forestall the incident - does not constitute a defence.

The causation (initiation) principle: The third model of responsibility envisagesthat proof of actual deficits in corporate organisation is completely dispensedwith. The creation of an organisation with complex operational structures and thecarrying out of intrinsically dangerous processes are rather deemed to be per sesufficient. Prerequisites of corporate liability are only specific results (seriousdamage to the environment, violation of emission standards) and economic benefitfor the enterprise.

D. Perspectives

The international trend encourages the liability of enterprises, especially in casesof large scale enterprises and faulty risk management over time.

Comparative analysis opens a broad spectrum of options. To think that one or theother could quickly solve a country's problem, however, ignores the fact that thedomestic structures and conditions of implementation must first be analysed. Onlythen can it be decided (in conformity with the criminal, administrative, civil andconstitutional law) whether and to what extent one or the other concepts of col-lective responsibility may be recommended.

All attempts to reduce the responsibility of individuals and organisations to acommon denominator (such as a social concept of guilt) suffer from the fact thatthe spheres of responsibility of individuals and organisations can coincide, butmust of necessity diverge for the simple reason that the elements for potential cul-pability of an enterprise are completely different. Thus, the equation of collectiveand individual responsibility leads of necessity to an overtaxing of the one, and anoverall weakening of the persuasiveness of individual criminal liability.

Therefore, it can be recommended to establish a separate criminal system for en-terprises,40 in which the rule of principally analogous orientation to the basic rules 40 As in the case e.g. of ex-Yugoslavia. See D. Cotic, Protection of the Environment through

Penal Law in Yugoslavia, in: C. Zanghì (ed.), Protection of the Environment and PenalLaw (Bari, Cacucci 1993), pp. 197-204. For further details see G. Heine, Die strafrechtli-che Verantwortlichkeit von Unternehmen, 1995, pp. 218 et seq.

Overview 47

of individual criminal law guarantees that it is criminal liability. Differences arisefrom the different goals of enterprise criminal liability and the phenomenology ofbig firms. That means, for example, collective knowledge, collective actorship,"guilt" as the specific responsibility of the enterprise.

This conception facilitates the identification and the solution of new problems ofmodern societies, where more individual liability no longer seems appropriate.And it offers options corresponding to the status of the domestic legal system inindustrialised or developing countries, in civil law or common law countries.Thus, not mere symbolic but effective instruments can be made available.

VI. Small Enterprises or Individual Polluters

A. Small enterprises, individual polluters and environmental degradation

The hall mark of the stereotyped picture of pollution and natural resource degra-dation is its large scale: powerful polluters, large areas affected, numerous victimsand irreversible damage. In reality, however, environmental degradation is notcaused solely by the big and powerful. It results from a combination of multipleattacks where, unfortunately, small polluters play a relevant role.

In less developed countries particularly, individuals and small enterprises arelargely responsible for the unsustainable use of environmental resources. Contraryto popular opinion, the polluting behaviour of individuals and small enterprisesmay have an environmental impact equal to or greater than that of large enter-prises, although apparently negligible or minor.41 "Small-scale" polluters (indi-viduals or small enterprises) are often "major-scale" polluters from the standpointof the damaging effects caused by their behaviour to the environment in a par-ticular context.42

41 The Polish report mentions the case of a farmer who dumped a barrel of fecal matter on a

water-bearing area, leaving an entire community without its regular water supply for 17days. The same is true of a small chemical plant which polluted the drinking water of acommunity of 20,000 people with carcinogenic substances (see the German report).

42 An example of the environmental impact of small-scale polluter behaviour is found in theBrazilian Amazon, where degradation is among the "world's most significant ecologicaldisasters" (see A. Alvazzi del Frate/J. Norberry, Rounding up: Themes and Issues, in: En-vironmental Crime, Sanctioning Strategies and Sustainable Development, Rome/Canberra,UNICRI/AIC, 1993, p. 3). It is estimated that between 1980 and 1988, the gold panningactivity - practised by thousands of individuals - has dumped around 855 tons of mercuryinto the environment (see J.F. da Fonseca Ramos, Garimpagam: Poluição química e física,

48 Overview

The impact of environmentally harmful activities by small-scale polluters can besubstantial in two ways: either the damage is relevant per se (see the cesium inci-dent in the Brazilian report) or minor damages may become relevant due to theircumulative effects. On the other hand, pollution by small enterprises, businessesand individuals may account for only a minor portion of environmental degrada-tion in other countries (see e.g. the German report).

B. Challenges for control of individual or small-scale enterprise environ-mentally harmful activities

The problems covered by this category reflect concern with illegal hunting, de-forestation, the disposal of toxic and dangerous waste and individual mining, par-ticularly in developing countries. It was noted that environmental provisionsagainst individual behaviours are mostly directed towards the protection of publichealth. The activities of small enterprises can also be very dangerous to the envi-ronment because they represent a widespread network and often do not have ade-quate systems of control.

At first sight, the environmental degradation caused by individuals and small-scaleenterprises could be more easily controlled by the enforcement of law. Individu-ally, being neither big nor powerful, one should expect them to have little politicaland economic strength43 or ability to manipulate the media. In short, no fundsnecessary to hire lobbyists or top law firms.

Actually, if monitoring major corporate polluters involves a series of unique en-forcement constraints, (e.g. their economic and political power,44 their ability tosecure expert opinions and the services of reputable lawyers), control of small en-terprises and individual pollution poses problems of another nature that have to dowith enforcement rather than with legal regulation of polluting behaviour.45 First

in: Seminário Internacional sobre Meio Ambiente, Probreza e Desenvolvimento daAmazônia, Anais, Bélem, 16 to 19 February 1992, p. 86).

43 As a group, these individuals may achieve quite substantial political and economic power.An example is the "garimpeiros" (gold prospectors) of the Brazilian Amazon. Their repre-sentative body has free access to federal legislators native to the region and plays a majorrole in keeping them in office.

44 Precisely such economic power that produces an inefficient enforcement of criminal law incertain countries (see the Nigerian report), particularly in cases of industrial and large-scale pollution.

45 It should be noted that enforcement problems are generalised in developing countries bothfor large-scale and minor polluters. For example, in Latin America and the Caribbean, en-forcement of environmental legislation has faced widespread problems of efficiency and

Overview 49

of all, it is extremely difficult to detect some of such behaviours because they arenot as visible as the polluting behaviour of large enterprises and often occur inremote, hard to reach areas.46 Second, they are far more numerous, rarely concen-trate at any specific site or region,47 or attract the attention of mass media.48 Third,because they are performed by the ordinary citizen, they elicit less social disap-proval than degradation caused by large corporations. Fourth, and notably in lessdeveloped countries, such behaviours are often not "profit oriented" but "survivaloriented". They often involve millennia-old traditions49 or are crucial - as the solemeans of sustenance - to human survival. In Latin America, for example, the effi-cacy of any legal model, and more so the criminal law model, is highly question-able in the event of mass violation where the forbidden behaviour is deeply rootedin the social fabric. "This legislation ignores the fact that the behaviour it attemptsto correct through these sanctions does not normally involve individual deviationsfrom an imposed legal order, but generalised social behaviour which is deeplyrooted in society as a result of the predominant style of development based onproduction and consumption patterns that often clash with environmental protec-tion. As is clear, these social processes cannot be corrected by applying sanctionsto individual infractors of this kind of legislation."50

efficacy. See R. Brañes, Institutional and legal aspects of the environment in Latin Amer-ica, including the participation of NGOs in environmental management, Washington D.C.,Inter-American Development Bank, 1991, p. 7.

46 This is not always the case, as illustrated in the Italian report regarding the charcoal kilnlocated along a municipal road.

47 On this point, the Japanese report states that "the number of environmental crimes com-mitted by small enterprises or individuals has been too many for the Japanese law en-forcement authorities to react to all fronts". In the same vein, the Nigerian report says:"There are quite a number of small everyday activities of individuals and enterprises thatresult in pollution." To quote the Swedish report, "About 60 per cent of the criminal casescan be placed in this category."

48 According to the Italian report, none of the cases involving small enterprises and individu-als received nation-wide media coverage. In contrast, two of the cases in the Polish reportdid draw nation-wide media attention.

49 In the case of "Shiga Prefectural Ordinance for Prevention of Over-nutritiousness of LakeBiwa", the Japanese report suggests that enforcement of criminal law can be efficient evenin the face of widespread behaviour (i.e. the use of certain types of detergents).

50 R. Brañes, Institutional and legal aspects of the environment in Latin America, includingthe participation of NGOs in environmental management, Washington D.C., Inter-American Development Bank, 1991, p. 37.

50 Overview

C. The role of criminal law

Any objective assessment of the individual and small enterprise pollution issueshows that, with a few exceptions, law plays an insufficient controlling role. Ad-ministrative laws run the risk of never being implemented in practice because, es-pecially in developing countries, there are almost no agencies - or when they doexist, they lack material means and scientific expertise - to enforce the set of ad-ministrative environmental rules. The situation is not much better in the sphere ofcivil law. On the one hand, there are no efficient and expeditious mechanisms foraccess to justice,51 and on the other, seldom do individuals and small enterpriseshave the funds to remedy or mitigate the environmental damage they have caused.This failure of administrative and civil law generally gives rise to a familiar andmuch criticised phenomenon: laws that "don't catch on".

The issue of the role of criminal law in environmental quality control arisesagainst this backdrop of ineffective legal models. Large-scale and small pollutersdo not react to civil and administrative sanctions in the same or similar fashion. Inother words, deterrence is different for the two groups. Big corporations fear notjust administrative sanctions (administrative restraining orders can be catastrophicto a large industrial complex), but also the negative effects - image deteriorationand the heavy cost of damage payments - of civil suits seeking a remedy for envi-ronmental damages.52 Small polluters, on the other hand, see administrative andcivil law from a different angle. The administrative sanctions (e.g. fines and inter-diction) have less of an impact for them because small polluters enjoy greaterflexibility in moving from one activity to another. In certain cases - such as de-forestation and private mining - all they need to do is "pack up" and move to an-other region or state. Furthermore, if convicted persons can not be found, courtorders to pay environmental damages would be doomed to failure and may neverbe enforced.

When environmental regulations and enforcement are in force, criminal law hassome advantages over civil and administrative law. Criminal sanctions are fearedboth by giant corporations (even in systems lacking criminal liability for corpora-

51 Only recently, in some countries, have NGOs and individuals become entitled to bring a

suit on behalf of an entire community.52 Not to mention the matter of estimating environmental damages, particularly in the case of

natural resources. Normally, in environmental offences per se criminal law waives exactassessment of damages to the environment.

Overview 51

tions) and by individuals and smaller companies.53 In addition, countries generallyhave more comprehensive and nationwide criminal enforcement systems than ad-ministrative-environmental ones. Judges, public prosecutors and police forces areempowered to enforce the law in a variety of situations. Finally, it should be re-called that complex legal issues of collective behaviours which are common in thecase of large corporations hardly ever come up with regard to small polluters.

There are, however, disadvantages or limitations to the use of criminal provisions.In addition to the burden of proof issues mentioned by most authors,54 criminallaw is notoriously ultima ratio and does not apply to all environmental degrada-tion modalities.55 Furthermore, particularly regarding the actions of small pollut-ers, application of a criminal sanction requires far stronger cultural and social sup-port than the mere enforcement of an administrative measure (e.g., a fine) or civilsanction (an order to remedy the damage). Small polluters have a greater chanceof successfully alleging ignorance of the criminal legislation.56 In addition, argu-ments such as state of necessity and poverty are much more powerful in thesecases than in those involving large corporations. It should be stressed that envi-ronmental legislation is often not enforced in developing countries under the ex-cuse of poverty. The poverty rationale has a major impact in criminal law. In manycases, small polluters invoke the "state of necessity", which is frequently used incriminal law to acquit the offender.

Finally, the fact that judges, public prosecutors and police are accustomed to en-forcing criminal law does not make it any easier to enforce environmental criminalprovisions, where the problems entail great technical complexity and, as a rule,have not precedent in the prevailing legal system.

53 It is no wonder that some countries have found it easier to include hard sanctions - e.g.

objective civil liability - than environmental offences in their environmental laws. Suchwas the case in Brazil with Law No. 6938/81 (the National Environmental Policy Act),when the National Congress barred the inclusion of any criminal provision whatsoever (seeP.O. Leme Machado, Direito Ambiental Brasileiro, São Paulo, Malheiros, 1992, p. 398).

54 See A. Alvazzi del Frate/J. Norberry (eds.), Environmental Crime, Sanctioning Strategiesand Sustainable Development (UNICRI/AIC No. 50, 1993), p. 11. Even in offences com-mitted by small enterprises and individuals, there are problems such as causation, particu-larly when the legal provision requires a damage to the environment (see the illegal dis-posal of mercury case in the Polish report).

55 National reports seem to indicate that criminal sanction is provided for only in more seri-ous cases of environmental degradation (see e.g. the Italian and Polish reports).

56 See, e.g., the co-operative dairy plant case in the Italian report.

52 Overview

D. Trends and issues

In developing countries there are problems concerning individuals and behaviourswhich might not occur in the more developed areas or countries. For example,contamination to the Amazon is not done solely by corporations; it mostly comesfrom individual mining, although the damage might amount to millions of dollarsand be irreversible. Hunters who endanger wildlife species should also be consid-ered individual polluters.

This category should not present some of the major problems which are typical oflarge-scale pollution, such as corporate liability. At the legislative level theremight be problems with the values to be protected in developed and developingcountries. In less-developed countries cases of small-scale pollution might be themost important ones. As was pointed out, in many industrialised countries minoroffences are decriminalised. Although decriminalisation does not mean that theconduct remains unpunished (it is still subject to penalties of a non-criminal char-acter) we are witnessing a trend towards criminalisation in some countries wherepollution by individuals is perceived as a major problem, and an opposite trendtowards decriminalisation in others. These two different trends make it difficult topresent a single model and to propose a long-term strategy in this field.

Besides, developing countries often lack the necessary resources to enforce envi-ronmental - criminal, civil or administrative - provisions. However, the protectionof the environment is an integral part of development and is affected by any fail-ure of the justice system. It was suggested that environment criminal provisionsmight provide the judiciary with a direct role by making them responsible for en-vironmental protection.

It was noted that two major problems emerged from the analysis of cases of pollu-tion by individuals or small enterprises:

a) the over-criminalisation of everyday activities of small-scale enterprises andindividuals, and

b) the consequential loss of credibility of control activities through criminal en-vironmental law.

The type of punishment which is considered more appropriate in small cases is notapplicable or does not work in large ones and vice-versa. Some experts noted that,in countries with a federal system, the control of this type of offences is carriedout at the local government level. This might result in a more prompt and effective

Overview 53

action and in a smaller number of failed cases with respect to cases of pollution bylarger enterprises. On the other hand, where the local culture favours the illegalbehaviours, it might be necessary to have some sort of federal or national jurisdic-tion over some of those cases.

Aware of the principle that "Environmental standards, management objectives andpriorities should reflect the environmental and development context to which theyapply",57 there might exist differences for the category of small-scale polluters,since it is here that the poverty issue has its highest importance. In other words, indeveloping countries criminal environmental sanctions might need to address is-sues and difficulties which are rarely or not at all known in more developed coun-tries. In any case, criminal environmental law does have a role to play againstsmall-scale enterprises or individual polluters. As it happens in other areas of en-vironmental law, no "illusions about 'quick-fix' solutions"58 can be cultivated andcriminal law is just a part of a broader set of solutions.59

VII. Conclusions

The results of the study have confirmed that criminal law has an indispensablerole to play in the protection of the environment. Especially in certain cases, suchas deliberate toxic waste dumping for profit motive, it should be the primary toolto combat crimes against the environment.

The reasons for this include the potential of the criminal law to enhance self-responsibility for environmental protection; to support risk balancing by the state;to prevent further environmental destruction; and to avoid over-burdening civiland administrative law with criminal provisions.

However, criminal law must be viewed as one of a number of means of achievingenvironmental goals. Protection of the environment cannot succeed in the absenceof truly sustainable development. Public awareness and vigorous NGOs are im-portant in placing the environment on the political agenda and keeping it there. Inaddition, public awareness and NGOs can be influential in obtaining criminal jus-

57 Principle 11 of the Rio Declaration on Environment and Development.58 The World Commission on Environment and Development, Our Common Future, Oxford,

Oxford University Press 1987, p. 309.59 As the Nigerian report states, "The protection of the environment cannot be left alone to

criminal law."

54 Overview

tice or other interventions - political, administrative or civil - to protect the envi-ronment.

Reforms in legislation, including the recognition of rights and obligations of citi-zens in national constitutions, a wider range of judicial and administrative sanc-tions and procedures are necessary to enhance the potential of criminal law. Inparticular, the study suggests that countries should be encouraged to modify rulesof corporate responsibility where necessary in order to establish effective corpo-rate liability, especially in cases of faulty or negligent development over timewithin the enterprise. This will:

- facilitate improved risk management, thereby reducing the risk for people andthe environment;

- assist administrative agencies in risk-balancing;- avoid the erosion of individual criminal law;- engender a "corporate culture" of compliance.

Countries should establish minimum standards in the area of environmentalcriminal law. While in some countries, especially developing countries, there isnot sufficient criminalisation of behaviours specifically dangerous to the environ-ment, in others there is a trend to overcriminalisation in this field.

On the procedural side, classical guarantees established for individuals are dys-functional for new circumstances and questions. There is a need for more flexibil-ity, especially in the prosecution of collective entities. Possibilities include:

- preliminary injunctions. For example, warning, the closure of a part of aplant, etc. should be available;

- changes in requirements as to the burden of proof;- establishment of specialised investigative units and prosecutors;- more flexibility in standing to sue and to intervene in prosecutions;- enhanced access to information about pollutants, enterprise activities and the

activities of relevant administrative and enforcement agencies.

Classical criminal sanctions alone (e.g. fines and imprisonment) are insufficient tomeet the challenges presented by crimes against the environment. A broader spec-trum of sanctions is needed. To enhance the role of criminal law, countries shouldprovide the following sanctions, especially in respect of corporate wrongdoing:

- closure of the enterprise;- sequestration (removal of managers, installation of experts for a specified pe-

riod);

Overview 55

- compliance programs, including environmental audits;- compensation, confiscation and restitution;- clean-up or restoration orders;- prohibition of particular activities, exclusion from fiscal advantages, annul-

ment or suspension of licenses;- adverse publicity orders;- exclusion from government contracts.

In addition, sanctions such as community service order and probation should beextended to environmental cases.

Sanctions and procedural reforms must be supplemented by factors facilitatingtheir implementation. These factors include:

- adequate material and human resources;- adequate financing;- timely and quality training for criminal justice and administrative agency per-

sonnel.

However, in the cases of transboundary pollution, illicit traffic in endangered spe-cies, as well as in hazardous radioactive materials, it appears that international co-operation in prevention and monitoring of risk development has far greater poten-tial. Such co-operation would include bilateral and regional agreements and trea-ties, negotiated solutions to common problems, joint fact-finding and mutual as-sistance in investigation, giving equal access to governments as well as citizens tothe judicial and administrative process, alternative dispute resolution, and bindingarbitration. It should be recognised, however, that some acts of aggression such asthe deliberate dumping of toxic and nuclear wastes in the Oceans and environ-mental terrorism should be treated as international crimes.

The role of the United Nations system for environmental protection through tech-nical assistance, research, training, advisory services and education is crucial. Theparticular position of the United Nations is facilitating interaction between allthose involved in innovative thinking in this field, including academia, NGOs,private sector or government bodies. In addition to this, co-ordination with otherintergovernmental organisations should be further enhanced, by joining forceswith other United Nations agencies and institutes, such as the United Nations En-vironmental Programme, the United Nations Institute for Training and Research,the Commission for Sustainable Development, etc.

56 Overview

As a result of this study, a series of proposals for international co-operation proj-ects is suggested.

a) enhancement of intelligence gathering and exchange, by co-operation withand greater use of the machinery provided by INTERPOL. This is also inlight of the resolution adopted by the Conference of Parties to the Basel Con-vention in March 1994 calling for co-operation with INTERPOL and in par-ticular with the special working groups in the area of toxic and radioactivewastes;

b) criminal law in international environmental conventions. A research projectdesigned to examine and evaluate national laws and in particular i) the poten-tial for and existence of criminal provisions in international environmentalconventions, and ii) the implementation of criminal provisions from interna-tional conventions in national legislation to assess whether these laws are suf-ficiently harmonious to satisfy the "double criminality" threshold for extradi-tion and mutual assistance obligations. Conventions might include the BaselConvention, Trade of Endangered Species, Law of the Sea, etc.;

c) the development of a standard-setting manual for practitioners;

d) enhancement of policy makers' awareness through a parliamentary conferenceto promote the exchange of information on environmental legislation and tofacilitate its introduction and implementation;

e) a comparative research project on seriousness of crime, aimed at the assess-ment and enhancement of public awareness on the seriousness of deliberatepollution acts;

f) technical assistance, in the form of advisory services (such as needs assess-ments, consultations);

g) training courses for criminal justice and administrative agency personnel,who are often lacking the type of expertise and specialisation in environ-mental protection needed in order to effectively perform their job. Trainingmight include scientific and technical information on how to identify and de-tect various environmental offences, the problem of co-ordination with envi-ronmental protection agencies, environmental legislation, forms of co-operation between administration and courts, and examples of co-operationbetween the different levels of government (e.g. countries with a centralisedMinistry of Environment and other types of distribution of responsibility).

Overview 57

h) a project to develop guidelines facilitating compliance, including access to in-formation and risk assessment, in order to enhance public awareness on howto respond to, as well to prevent, pollution incidents.

i) research on the effectiveness of regulatory and criminal justice actions, in-cluding development of effectiveness indicators.

j) a comparative study on the system of agencies which are called to enforceenvironmental legislation, their organisation and co-ordination and their mu-tual relationships.