Does the environment need it’s own court?

By: Emily Michienzi

In 2018, a father-son wildlife trafficking team was fined one million dollars by a United States court for smuggling over seventeen million dollars’ worth of sea cucumbers through San Diego.[1] Sea cucumbers, “which look something like a large garden slug, are considered a delicacy and an aphrodisiac in some parts of the world, leading to over-fishing and declines in their ocean populations, according to wildlife experts.”[2] The father-son duo was illegally trafficking the sea cucumbers from Mexico, through San Diego, and then selling the animals in Asia.[3] The duo also bribed Mexican officials, opened bank accounts using false names, and lied on importation forms by extremely underrepresenting the value of the imports.[4] Although this team of illegal wildlife traffickers was caught, and subsequently punished for their crimes, at the international level environmental crimes are not prosecuted often.

Environmental crimes are defined as the “criminal exploitation of the world’s natural resources [that] affects our everyday lives, from the food we eat to the air we breathe.”[5] Environmental crimes range from trafficking of animals and animal parts, overfishing, illegal logging, dumping of hazardous waste, and much more.[6] Environmental crimes often occur alongside other crimes such as money laundering, corruption, and fraud.[7] The five most prevalent environmental crimes are: wildlife crimes (such as trafficking), illegal logging, illegal fishing, pollution crimes, and illegal mining.[8]

Crimes against the environment are the fourth largest criminal area in the world behind drugs, counterfeit money and products, and human trafficking.[9] In 2016, environmental crimes raked in an estimated $91-290 billion dollars annually for the global economy.[10] The United Nations estimates there was a twenty-six percent increase in the rate of environmental crimes in 2016 compared to those rates in 2014.[11]

While there are many factors that contributes to the rise in environmental crimes, the lucrativeness, comparatively low risks, lack of data, lack of cooperation among countries and authorities, and lack of governance and legislation are just a few factors that make environmental crimes so prevalent.[12] In addition, the lack of enforcement of environmental laws significantly contribute to the increase and prevalence of environmental crimes.[13]

Although environmental crimes are rising, in 2016 the International Criminal Court (ICC), a court backed by the United Nations, announced that it would begin to prosecute major environmental crimes.[14] Specifically, the ICC stated that although it was not formally extending its jurisdiction, it would focus some prosecutorial attention on the exploitation of natural resources, the destruction of the environment, and illegal land grabbing.[15]

Although the ICC is taking the appropriate steps by beginning to prosecute environmental crimes, another possibility to ensure that individuals, companies, and countries are prosecuted for these crimes, would be to create a subject-specific International Court for the Environment.[16] This new International Court for the Environment would be a specialized court designed and staffed by lawyers and judges who would be able to better understand and resolve environmental crimes and disputes between individuals, companies, and countries.[17] In the past, the ICC and the International Court for Justice have failed to adequately use scientists and experts in environmental crime cases, which has led to skepticism about the International Court’s manner in which it evaluates complex scientific data relating to environmental crimes.[18] With a court designed specifically to handle these environmental crimes, judges, lawyers, and other advocates would have a better grasp on the science and more likely to utilize experts.

The purpose of an International Court for the Environment would be to “build trust among the international community; to clarify legal obligations; to harmonize and complement existing legal regimes; to provide access to justice to a broader range of actors than traditional institutions; and to create workable solutions to modern environmental concerns.”[19] But, most importantly, having a court dedicated solely to prosecuting environmental crimes would increase the enforcement of environmental laws, treaties, and agreements, as well as, increase the potential risk of committing the environmental crimes.[20]

In addition, one important aspect that those advocating for an International Court for the Environment have stressed is that the court would expand the standing needed to bring cases before it.[21] Specifically, any Court for the Environment would need to allow not only states to have access to the Court but also individuals and non-state actors.[22] Currently, international law does not allow non-state actors to bring claims or be sued in the international courts.[23]

A court designed specifically to tackle these complex environmental crimes is a great option for the international community. When there is more enforcement and greater penalties, only then can we begin to see a decline in the prevalence of these environmental crimes. With an International Court for the Environment, maybe the father-son sea cucumber traffickers would have been deterred from trafficking these creatures.

#BlogPost #EmilyMichienzi #EnvironmentalLaw #EvironmentalCourts  

[1] Pauline Repard, San Diego Importers Fined $1M for Smuggling Sea Cucumbers, San Diego Union Tribune (Oct. 2, 2018), https://www.sandiegouniontribune.com/news/courts/sd-me-cucumber-sentenced-20181002-story.html.

[2]Id.

[3] Id.

[4] Id.

[5] Environmental Crime, Interpol, https://www.interpol.int/en/Crimes/Environmental-crime (last visited Dec. 21, 2019).

[6] Id.

[7] Id.

[8] Allan Meso, Environmental Crimes are on the Rise, so are Efforts to Prevent Them, UN Environment, https://www.unenvironment.org/news-and-stories/story/environmental-crimes-are-rise-so-are-efforts-prevent-them (last visited Dec. 21, 2019).

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] John Vidal & Owen Bowcott, ICC Widens Remit to Include Environmental Destruction Cases (Sept. 15, 2016), https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases.

[15] Id.

[16] Stuart Bruce, An International Court for the Environment?, ICE Coalition (Sept. 14, 2016), https://static1.squarespace.com/static/56c0ae80ab48de4417bd17fa/t/5bf73e972b6a28e7ef16d719/1542930073200/An_international_court_for_the_environme.pdf.

[17] Id.

[18] Phillip Riches & Stuart Bruce, Building an International Court for the Environment, ICE Coalition (Feb. 2013), https://static1.squarespace.com/static/56c0ae80ab48de4417bd17fa/t/56d33af3f699bb6f0be8962f/1456684215231/Building+an+ICE+-+A+Conceptual+Blueprint.pdf.

[19] Stuart Bruce, Towards an International Green Court, ICE Coalition (June 18, 2012), http://www.icecoalition.org/towards-an-international-green-court.

[20] Id.

[21] Riches & Bruce, supra note 18.

[22] Id.

[23] Bruce, supra note 16.