protection of the environment protection

International and National Perspective

A Dissertation Submitted in Partial Fulfillment of the Requirements

for the Award of the Degree of Bachelor of Laws By John J Vachaparambil 1216115 Under the Guidance of Ms. Sincy Wilson Assistant Professor

School of Law CHRIST UNIVERSITY BENGALURU, INDIA March, 2017

APPROVAL OF DISSERTATION

Dissertation entitled “A Descriptive Study on the Legality and Application of the Concept of Green Criminology for Environment Protection- International and National Perspective” by John J Vachaparambil; Registration Number 1216115 is approved for the award of the degree of BA.LLB (Hons).

Supervisor(s):

___________________ ___________________ Chairman:

Date: ___________ (Seal) Place: Bengaluru

DECLARATION

I John J Vachaparambil hereby declare that the dissertation, titled “A Descriptive Study on the Legality and Application of the Concept of Green Criminology for Environment Protection- International and National Perspective” is a record of original research work undertaken by me for the award of the degree of BA.LLB (Hons). I have completed this study under the supervision of Ms. Sincy Wilson, Assistant Professor, of Department of Law.

I also declare that this dissertation has not been submitted for the award of any degree, diploma, associateship, fellowship or other title. It has not been sent for any publication or presentation purpose. I hereby confirm the originality of the work and that there is no plagiarism in any part of the dissertation.

Place: Bengaluru Date: …………………Signature of the candidate

Name of the candidate Reg No.…………….. Department of …………… Christ University, Bengaluru

CERTIFICATE

This is to certify that the dissertation submitted by John J Vachaparambil, Registration Number 1216115 titled “A Descriptive Study on the Legality and Application of the Concept of Green Criminology for Environment Protection- International and National Perspective” is a record of research work done by him during the academic year 2016-2017 under my supervision in partial fulfillment for the award of BA.LLB (Hons).

This dissertation has not been submitted for the award of any degree, diploma, associateship, fellowship or other title. It has not been sent for any publication or presentation purpose. I hereby confirm the originality of the work and that there is no plagiarism in any part of the dissertation.

Place: Bengaluru Date: …………………Signature of the Guide

Name of the Guide Designation Department of …………… Christ University, Bengaluru

Signature of the Head of the Department Department of …………….................. Christ University, Bengaluru

ABSTRACT

Green Criminology is the study of crimes and the criminals. The study of green criminology needs to be merged with both national and international laws for the purpose of understanding the cause and effect of the various environmental crimes committed by humans in the different parts of the world. It is important to understand the application of the concept of green criminology to environmental laws at both national and international level. Such a study conducted should help reduce the rate of environmental crimes.

The Right to Life under Article 21 of the Constitution of India also provides the right to a clean environment, including air and water.

ACKNOWLEDGMENT

First and foremost, I register my heartfelt gratitude to my guide, Ms. Sincy Wilson, Assistant Professor, School of Law, Christ University, for her timely assistance and guidance. She was my source of inspiration in my research and she was pragmatic in her approach as well.

Further, I thank Fr. Benny Thomas, Director, School of Law, Christ University for his constant encouragement and support during the course of this study. Moreover, I would seek to express my gratitude towards Dr. Somu CS, Head of the Department, School of Law, Christ University for his constant motivation and help rendered during the course of this study.

I express my humble gratitude towards the entire teaching faculty at School of Law, Christ University for all their assistance and cooperation. Added to this, I seek to thank the library staff members of Knowledge Centre, Christ University, for their immediate help rendered during the course of this study.

I am also greatly thankful to my parents and friends for their unvarying care and support in my endeavor.

John J Vachaparambil Register No. 1216115

School of Law, Christ University, Bengaluru.

LIST OF ABBREVIATIONS

BBC: British Broadcasting Corporation BBMP: Bruhat Bengaluru Mahanagara Palike CPCB: Central Pollution Control Board DDT: Dichlorodiphenyltrichloroethane EIA: Environmental Impact Assessment EPA: Environment Protection Agency GATT: General Agreement on Tariffs and Trade IUCN: International Union for the Protection of Nature and Natural Resources KIMS : Kempegowda Institute of Medical Science MIC: Methyl Isocyanate MoEF & CC: Ministry of Environment, Forest and Climate Change NEERI: National Environmental Engineering Research Institute NGO: Non-Governmental Organization POPs: Persistent Organic Pollutants TTZ: Taj Trapezium Zone UCC: Union Carbide Corporation UCIL: Union Carbide India Limited UNCED: United Nations Conference on Environment and Development UNCHE: United Nations Stockholm Conference on the Human Environment UNEP: United Nations Environment Programme UOI: Union of India

LIST OF STATUTES

National Laws:

1. Air (Prevention and Control of Pollution) Act, 1981

2. Constitution of India, 1950

3. Criminal Procedure Code, 1973

4. Environment Protection Act, 1986

5. Indian Penal Code, 1908

6. National Environmental Tribunal Act, 1995

7. Water (Prevention and Control of Pollution) Act, 1974 International Laws:

1. RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT, 1982

2. The Geneva Convention on Long-Range Trans-boundary Air Pollution, 1979

3. The UN DECLARATION OF THE HUMAN RIGHTS, 1972

4. US National Environmental Policy Act, 1970

LIST OF CASES

National Cases:

1. A.P. Pollution Control Board v. M.Y. Nayudu

2. Better Living in Calcutta v. State of West Bengal

3. Fertilizers and Chemicals Travancore Limited. Employees Association v. Law Society of India

4. Indian Council for Enviro-Legal Action v. Union of India

5. Kinkri Devi v. State of Himachal Pradesh

6. M.C. Mehta v. Union of India & Ors (Calcutta Tanneries case)

7. M.C. Mehta v. Kamal Nath (Span Motel case)

8. M.C. Mehta v. Union of India (Taj Trapezium case)

9. M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu

10. N.D. Jayal v. Union of India

11. Narmada Bachao Andolan v. Union of India

12. S. Jagannath v. Union of India

13. Shobha Rama Subramanayyam v. The Member Secretary, Chennai Metropolitan Authority

14. Union Carbide accident

15. Vellore Citizen’s Welfare Forum v. Union of India International Cases:

1. Ballard v. Tomlinson

2. Chernobyl Accident

3. Chile Air Case

4. Exxon Valdez Oil Spill

5. Love Canal accident

6. River Danube Pollution (Hungary Sludge)

7. Ryland v. Fletcher

8. Songhua River (China)

9. Trans-boundary pollution of Arctic

10. United States v. Canada (Trail Smelter Arbitration)

CHAPTER 1 Introduction

1.1 Introduction

The term “Criminology” originated in the year 1890, and is defined as the scientific study of crime as a social phenomenon, of criminals, and of penal

treatment 1 . The study of criminology is conducted by a person who is trained in the field of criminology and is also the one who studies about crime, criminals and criminal behavior. The study is conduct by individuals called as “Criminologists”, who use scientific methods to study the nature, extent, cause, and control of criminal behavior.

The term “Criminology” has also been defined by the online Oxford English Dictionary as “the science of crime; that part of anthropology which treats of crime and criminals” 2 . The subject of criminology is framed as a discipline alongside sociology primarily with law, psychology, and social work.

The concept of ‘Green Criminology’ is defined as the analysis of environmental harm from a criminological perspective or the application of criminological

thought to environmental issues 3 . Thus it includes the identification of the offence, offenders and the victim and also about the response to environmental crimes, i.e. policing, punishment and prevention.

The concept of Green Criminology has been given different meanings at different levels of study:

i. On the Theoretical level, Green Criminology is study of social, economic and political conditions that lead to environmental crime, and

ii. On the Philosophical level, Green Criminology studies which type of harms should be considered as ‘crimes’.

1 Katherine S. Williams – Textbook on Criminology, 4 th edi. 2 Shoham Knepper Kett – International Handbook of Criminology, pg. 7.

3 What is green criminology, by Dr. Gary R. Potter, available at: http: greencriminology.org/about- green-criminology.

To understand the concept of Green Criminology, one must understand the meaning of the term “Environmental Crimes”, which is the “violation of the criminal law which, although typically committed by businesses or by business officials, may also be committed by other persons or organizational entities, and which damage some protected or otherwise significant aspect of the natural environment” 4 . But the term ‘environmental crime’ can sometime become confusing for the reason that it could refer to a wide range of harms committed by individuals, groups, corporations and states.

Illegal pollution of the environment is considered as one of the environmental crimes committed by large corporations, which can sometime include individual acts caused due to negligence on the part of the polluter. The two main important cases relating to environmental crimes in the history involve the leakage of Methyl Isocyanate from Union Carbide plant in Bhopal, India and the second being the oil spill which occurred when the oil tanker Exxon Valdez ran aground on a coral reef off the coast of Alaska causing damage to the ecological balance, polluting the environment and also the loss of human life.

The most important case in the history which created criminological interest in matters relating to environmental crimes is the Love Canal Scandal. Love Canal is an area close to Niagara Falls in USA. There is also a huge difference between the subject of Green Criminology and Environmental Criminology as both deals with different studies, and hence cannot be confused with each other since both the terms ‘green’ and ‘environment’ always go together. Rather than studying on environmental crimes as in green criminology, environmental criminology is a study which stresses on how crime varies from place to place. It deals with the geographical and architectural features of the place where crime occurs.

There are various issues under environmental crimes that the criminologists these days concentrate upon. They have increased their study to various matters including ‘speciesism’ which is the assumed human right to exploit non-human

4 SIEGEL – CRIMINOLOGY, 9 th edi.

animals for pleasure or profit. As a result the credentials of green criminology and it application are still in debate.

1.2 Research Problem

Despite the presence of various environmental legislations which provide protection for nature and everything in it, man has been polluting nature from the start of industrial revolution. Humans have dominated every kind of living form, and with population increasing worldwide, the demand for goods have increased leading to depletion of natural resources and environmental pollution. There are various national and international legislations and conventions which provide protection for nature and all other forms of life. But humans disregard such guidelines and cross boundaries resulting in large scale environmental damage and destruction of ecological balance.

It is the duty of both the government and the individuals to control the level of pollution at both national and international levels by enforcing laws and regulations and following them. It is also important to enforce strict punishment as given under various laws. The government officials shall act in accordance with the provisions of the particular law and not against it by allowing individuals and corporate firms to pollute and destroy the environment. The fundamental right to life under Article 21 of the Constitution of India 5 shall be preserved by every

citizen and also the member states of every international treaty or convention relating to environment protection shall follow the rules laid down. It is very important to understand the cause and effect of these actions of humans which destroy the ecological balance and try to put an end as such actions still continue to date.

The latest environmental disaster which took place on 28 th January, 2017 two nautical miles off the Kamarajar Port at Ennore wherein two ships collided

releasing 20 tons of fuel oil which spread nearly 35kms along Chennai’s coast

5 P.M. Bakshi – The Constitution of India.

shows that people are not following the laws of the land, sea and air 6 and thus destroying the ecological balance.

1.3 Research Questions

i. Can the concept of green criminology be applied at both international and national levels by criminologists to study the cause of various environmental harms and the effect of such harms on nature and humans as well?

ii. Can the subject of green criminology be applied to various environmental law principles relating to pollution and destruction of ecological balance and to various judicial decisions to impart strict punishment to the polluters?

1.4 Objectives

It is very important to conduct this study and to do research on the topic of how the concept of green criminology can be applied both in international and national scenario, owing to the presence of numerous laws, treaties and conventions.

The objective of the research is to:

i. Identify the cause and effect of various actions of humans which result in

environmental degradation and destruction of ecological balance,

ii. Relate the concept of green criminology to analyze various judicial decisions relating to environmental pollution both international and national,

iii. To understand the already existing laws relating to environment protection and all other living forms, and iv. To enforce strict punishments and to understand various principles like ‘polluter pays’, etc.

1.5 Significance of Research

6 http://timesofindia.indiatimes.com/india/chennai-oil-spill-clean-up-operations-how-it- happened/articleshow/56966999.cms.

It is very important to conduct research on the topic of ‘green criminology’ for the main reason that the concept and the area of study is new and all the existing research on this topic is very general which only explain what the term means. There is not much research on the particular topic of how green criminology can

be applied in cases relating to environmental protection. The definition of criminology should be applied to environmental issues for the following reasons:

i. It identifies a range of crime and criminal justice activity relating directly to environmental issues,

ii. Green criminology allows the study of environmental harm in general, as an extension of the well-established tradition within sociology and criminology of critically questioning the very definition of crime and the core subject matter of criminology.

iii. It is possible to identify a number of areas where environmentalists can benefit from the experience of sociologists and criminologists working within more traditional notions of crime.

1.6 Research Methodology

The method of research is wholly doctrinal which includes both descriptive and evaluative method of conducting research. Doctrinal research asks what the law is on a particular issue. It is concerned with analysis of the legal doctrine and how it has been developed and applied. This type of research is also known as pure. Under doctrinal research, the qualitative method of research is used which is primarily exploratory research. It is used to gain an understanding of underlying reasons, opinions and motivations. It provides insights into the problem or helps to develop ideas or hypotheses for potential quantitative research. The research mainly focuses on various books on criminology and other articles.

CHAPTER 2 Review of Literature

2.1 Books

i. Criminology by Larry J. Siegel

Still the gold standard for criminology courses, Siegel's text now addresses contemporary topics such as transnational/global crime, political crimes, green crime and green criminology, and the new millennium order of criminality.

ii. Issues in Green Criminology by Piers Beirne, Nigel South

Issues in Green Criminology: confronting harms against environments, humanity and other animals aims to provide, if not a manifesto, then at least a significant resource for thinking about green criminology, a rapidly developing field.

iii. P. Leelakrishnan's Environmental Law in India Paperback – 2010

by Leelakrishnan P

Environmental law in India is an exhaustive study of the growth of the law relating to environment in India. The third edition highlights the various aspects of environmental regime law of public nuisance and civil remedies, protection of forest habitat, natural resources and coastal zones, control of pollution, liability for environmental torts, constitutional mandate for environmental protection, judicial review of decisions affecting environment and environmental impact assessment processes.

iv. The Oxford Handbook of International Environmental Law by Daniel

Bodansky, Jutta Brunnee and Ellen Hey

The book provides information relating to the various principles of international environmental law, and so much more about trans-boundary pollution, its impact on the environment and various judicial decisions. It also talks about the dispute The book provides information relating to the various principles of international environmental law, and so much more about trans-boundary pollution, its impact on the environment and various judicial decisions. It also talks about the dispute

v. The Environmental Activists Handbook I by Ritwick Dutta, Sunita

Dubey, Colin Gonsalves and Aparna Bhat- 3 rd edition

This book has a list of judicial decisions on air pollution, water pollution; land pollution, radiation pollution etc.

2.2 Articles

i. Article 21 of Indian Constitution- A Mandate to Pollution Free

Environment by: Dr.G. Indira Priya Darsini & Prof. K. Uma Devi - Professor, Department of Law, Sri Padmavati Mahila Viswa Vidyalayam (women’s university), Tirupati

Environment and life are interrelated. The existence of life on earth depends on the harmonious relationship between ecosystem and environment. Especially homo-sapiens have very close interaction with nature. Human beings are at the centre of concerns for sustainable development and that they are entitled to a healthy and productive life in harmony with nature.

Available at: http://www.legalserviceindia.com/article/l399-A-Mandate-To- Pollution-Free-Environment.html.

ii. Environmental Victims: Challenges for Criminology and Victimology

in the 21st Century by Matthew Hall

The author has addressed the issue of ‘environmental victimization’ (harm to individuals suffered as a result of environmentally damaging activities) and asks what role criminologists in general and vicitmologists in particular will have to play as our understanding of the consequence of climate change and other environmental degradation develops still further. Available at: http://www.fvv.um.si/rv/arhiv/2011-4/02_hall.pdf The author has addressed the issue of ‘environmental victimization’ (harm to individuals suffered as a result of environmentally damaging activities) and asks what role criminologists in general and vicitmologists in particular will have to play as our understanding of the consequence of climate change and other environmental degradation develops still further. Available at: http://www.fvv.um.si/rv/arhiv/2011-4/02_hall.pdf

Shaming by Jovanni Rodriguez

Last year Walmart Stores Inc. pled guilty in three criminal cases that were brought against them by federal prosecutors and a civil case brought by the United States Environmental Protection Agency (EPA). Available at: http://sustainabilityjjay.org/2014/12/walmarts-hazardous waste-crimes-toward-public-awareness-and-shaming/.

2.3 Journals

Law Environment and Development Journal – Green Courts in India: Strengthening Environmental Governance? By Raghav Sharma (4 th year student, National Law University, Jodhpur, Rajasthan) student note – Volume 4/1

The Indian judiciary is set to turn ‘green’ with the Law Commission of India (hereinafter ‘LCI’) recommending, in its 186 th Report, the constitution of specialized Environmental Courts to strengthen environmental governance. The proposal has its roots in the call that emanated from the corridors of the apex Constitutional Court, i.e. the Supreme Court of India, in numerous significant cases. The Law Ministry has formulated the required draft legislation which awaits legislative sanction. The Supreme Court has elevated the ‘right to healthy environment’ to the status of a fundamental right under Article 21 of the Constitution of India in the process of progressive enrichment of the development; polluter pays principle, public trust doctrine, precautionary principle and inter- generated equity.

Available at: http://www.lead-journal.org/content/08050.pdf.

CHAPTER 3 International Perspective

3.1 History and Evolution

The historical evolution of international environmental law generally comprises of three phases which is of major importance 7 . These three phases are:

i. The traditional era until about 1970,

ii. The modern era from Stockholm to the 1992 United Nations Conference

on Environment and Development (UNCED) in Rio de Janerio, and

iii. The post modern era from Rio onwards.

3.1 i Traditional Era

The traditional era consist of the period until 1970, preceding the 1972 United Nations Stockholm Conference on the Human Environment (UNCHE) which is sometimes sub-divided into a pre-1945 and a post-1945 period. For over five hundred years, natural resources management has been a subject of international law-making. It all started with a bilateral and regional regulatory agreement between states, including dispute settlement arrangements over the:

i. Shared utilization of watercourses,

ii. Wildlife and fisheries in trans-boundary areas, and

iii. The allocation and exploitation of marine resources in areas outside national jurisdiction.

While there were many disputes relating to trans-national pollution which was dealt by the domestic courts under the rules of private international law and international administrative law, and some had to be referred for international arbitration like in the famous case of Bering Sea Fur Seals case, Trail Smelter

7 Prof. S. Bhatt - International Environmental Law.

case, and Lake Lanoux case, some conservation-minded green-policies began to appear in the middle of nineteenth century. An example of such a policy is Article

22 of the 1856 Bayonne Boundary Treaty between France and Spain which aims at preventing destruction of the marine resources in the Bidassoa River.

The history of conservation can be related to the legislative models put forth by many, one in particular is that of Jean-Baptiste Colbert’s in 1669 titled Ordonnance des eaux et forets 8 , which can be seen as the forerunner of today’s environmental laws.

Early multi-lateral treaties like the:

i. 1900 London Convention designed to ensure the conservation of various species of wild animals in Africa that are useful to man or inoffensive,

ii. 1902 Paris Convention to protect birds useful for agriculture,

iii. 1931, 1937 and 1946 International Conventions for the Regulation of Whaling aimed at regulation of resources for commercial purpose, and iv. 1929 and 1951 International Plant Protection Conventions aimed solely at cultivated crops, just like its predecessor the 1878 Phylloxera Convention,

gave a reason as to why conservation of natural resources at international level is of importance.

Many efforts were taken to translate these concerns into new inter-governmental institutions, which failed terribly, the non-governmental institution i.e. the International Union for the Protection of Nature established in 1948, which was later renamed as the International Union for the Protection of Nature and Natural Resources (IUCN) 9 in 1956 became an influential source of subsequent and future treaty initiatives.

The beginning of twentieth century marked the period of real and genuine conservation efforts with more ethical values being implemented in policy- making. Nations raised new concerns for the common natural heritage and for the prevention of global environmental risks.

8 Peter H. Sand – the history and origin of international environmental law: introduction. 9 IUCN, International Union for Conservation of Nature, available at: http://www.iucn.org.

3.1 ii Modern Era

The modern era for the international environmental law began all the way back on

5 th June, 1972 which is considered as the opening day of the first United Nations Conference on the Human Environment in Stockholm, Sweden. The day is now annually celebrated as World Environmental Day 10 . The ‘Stockholm Watershed’ in fact played a great role as it was the culmination of an intense preparatory process referring back to two 1968 United Nations resolutions.

It all happened in the context of the following events: i.

A global rise in environmental risks, highlighted by a series of eco- disasters starting with the 1967 Torrey Canyon accident (oil pollution in the North Sea) and the 1971 Minamata cases (river pollution by organo- mercury in Japan),

ii.

A growing public awareness of the world eco-crisis, alerted by media attention and by seminal publications, such as Rachel Carson’s 1962 Silent Spring, Max Nicholson’s 1969 Environmental Revolution and the Club of Rome’s 1972 Limits to Growth readily espoused by the civic protest movements of the 1960s and early 1970s, and

iii. Innovative examples of national legal responses to the environmental challenge, such as Japan’s 1967 Kogai Act, Sweden’s 1969 Miljöskyddslag and the 1970 National Environmental Policy Act, in conjunction with the judge-made ‘public trust doctrine’ in the United States.

But the issue is that the Stockholm Conference did not produce any instant treaty law, instead the United Nations Environment Programme (UNEP) which was established after the conference became a huge success by initiating and negotiating less than 48 multi-lateral conventions and protocols from 1976 onwards.

10 United Nations Conference on the Human Environment (Stockholm Conference), available at: https://sustainabledevelopment.un.org/milestones/humanenvironment.

This has increased the spectrum of international environmental relations beyond trans-boundary matters and the new generation of legal instruments no longer fit the definition of environmental crimes. It has also led to the creation of a consensual international law-making in the form of ‘soft law’.

There has also been lot of developments in the modern era which has been classified into four groups. These four groups of development are:

i. Treaty Developments,

ii. Developments in Dispute Settlement,

iii. Developments in National Law, and iv. Development of International Environmental Law as a discipline.

Treaty Developments

In comparison to the traditional era i.e. before the Stockholm Conference, in the modern era the number of multi-lateral agreements has doubled. The subject matter of the various treaties also changed from the classical risks of natural resource scarcity and extinction to the new man-made risks of industrial pollution and resource degradation. The method of formation of a treaty also changed from

ad hoc diplomatic conventions to dynamic pattern wherein the treaty is open to changes in future by review and negotiation and also can be adjusted.

Developments in Dispute Settlement

It has become very evident that in the modern era the trans-national environmental dispute settlement mechanism has become more flexible. This was illustrated in the Rhinesalt case, wherein a matter relating to conflict of laws was adjudicated by the European Court of Justice in 1976 and by the Dutch and French domestic High Courts in 1983.

All these multi-lateral agreements have formal provisions for dispute settlement by referring the matter to international arbitration, but these clauses are rarely used. Instead new ‘non-adversarial’ procedures are introduced to ensure control over the disputes.

The first case relating to environmental dispute dealt by quasi-judicial proceedings under the General Agreement on Tariffs and Trade (GATT) was in the case of Tuna-Dolphin case 11 in the year 1991.

Developments in National Law

A wave of ‘horizontal diffusion’ was witnessed in the Stockholm-to-Rio period relating to innovative environmental laws and policies, with a dual effect on international law. A perfect example is the Environmental Impact Assessment (EIA), which is given under Section 102(C) of the US National Environmental Policy Act, 1970 and rapidly spread to more than 80 countries worldwide. International environmental agreements have also borrowed various concepts form the core of various domestic environmental laws, thereby creating a ‘vertical transplant’.

Development of International Environmental Law as a Discipline

As acknowledged by the editors of the Harvard Law Review, by 1990s, international environmental law had emerged as a distinctive academic discipline. Environmental activists had their goal set at greening the international law and politics. It also led to the formation of a professional network of international environmental lawyers and also set new standards and schemes for certifying environmental quality of products and services like eco-labels, etc.

3.1 iii Post Modern Era

The Post Modern era has raised the question of the proliferation of the latest multi-lateral environmental norms resulting in the so called ‘treaty congestion’. The implementation process of the multitude of treaties was decentralized, which now consist of quasi-autonomous conference of the parties, hosted by different and already existing international organizations. As the world’s environment continues to degrade at an alarming rate, the focus of the 1992 Rio Conference on

11 WORLD TRADE ORGANIZATION, available at: https://www.wto.org/english/tratop_e/envir_e/edis04_e.htm.

Environment and Development (UNCED) 12 was to check the effectiveness of the already existing international legal instruments. There have also been various other developments like the establishment of the World Bank Inspection Panel in 1993, the Commission on Environment Cooperation established in 1994 under the American Free Trade Agreement, etc. These developments have brought in a collective responsibility upon all the states for the proper management of the natural resources for the benefit of all people and for the future generations.

3.2 Introduction

Potter defines green criminology as “the application of an ecological perspective to the problem of ‘crime’ in general”. The term green criminology focus on two broad categories:

i. Primary Green Crimes: those crimes which constitute harm inflicted on the environment, which include crimes of air pollution, deforestation, crimes of species decline and crimes of water pollution.

ii. Secondary Green Crimes: is the crime that grows out of the flouting of rules that seek to regulate environmental disasters.

Green Criminology is a very new addition to the discipline of criminology as a whole, less than two decades old and as a new branch of criminology, the impact of ‘green’ principles and ideas is, as yet, far from clear. ‘Environmental Crimes’ are defined in the same terms as crimes against persons and property, and the criminological challenge is to devise control systems that can effectively enforce existing laws and punish offenders.

Like other crimes, green criminology is a social construction influenced by:

i. Social locations

ii. Power relations in society

iii. Definitions of environmental crimes iv. Media, and

v. Political process.

12 UN Conference on Environment and Development (1992), available at: www.un.org/geninfo/bp/enviro.html.

The UK Environmental Agency state that environmental crimes include pollution incidents, waste crimes, wildlife crimes and fishing offences. There has also been some research into the crime and justice consequences of environmental degradation, with special reference to the impact of resource scarcity that accompanies despoiled environment. The example of water shortage in Oregon (USA) has lead to conflict between ranchers, farmers and indigenous groups.

Principle 15 of the RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT, 1982 state that in order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective

measures to prevent environmental degradation 13 .

The UN DECLARATION OF THE HUMAN RIGHTS, 1972 said that “…in developing countries most of the environmental problems are caused by under development…developing countries should devote themselves to development”.

In 2014, Walmart Stores Inc. pled guilty in three criminal cases that were brought against them by federal prosecutors and a civil case brought by the US Environment Protection Agency. Walmart violated the Clean Water Act which was designed to ensure the proper handling of hazardous pesticides and wastes and protect water quality. They were fined a total of $110 million for its unlawful conduct involving crimes which were found to not only put the public and the environment at risk, but also gave Walmart an unfair economic advantage over other retailers.

Early cases of criminological interest in environmental crimes include the Love Canal incident. Love Canal is an area close to Niagara Falls in the USA. It takes its name from an old waterway that over several years was used by the Hooker Chemical company as a dump site for its toxic wastes. The canal was covered and the land was sold off to a developer. On the land were built a school and houses into which families moved with no knowledge of what lay beneath the ground.

13 Available at: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm.

During the 1970s it became clear that the chemicals were seeping through the ground contaminating the residents, although studies of their effects proved inconclusive. In 1978 a state emergency was declared at the site and hundreds of families were evacuated. The incident prompted the establishment of the ‘superfund’ for environmental repair and led to an awareness that the vast bulk of American toxic waste were being disposed of without due care. In 1995, the company responsible was sued for $129 million by the US Environmental Protection Agency.

Recent research has pointed to the impact of crime and criminal justice measures on the natural environment. Rosa Del Olmo (1998) examined the ecological impact of the cultivation of drug crops in Latin America. She points out that the mass cultivation has destroyed acres of rainforest resulting in soil erosion, contaminated water resources with pesticides and chemicals and destroyed rare

fauna and flora 14 . In another incident which occurred on March 24, 1989, the oil tanker Exxon Valdez after departing struck a reef which lead to an oil spill releasing 11 million gallons of oil which spread more than 1000 miles of the

coastline of Alaska 15 . Chief Seattle in 1855 said that “mankind has not woven the web of life. We are but

one thread within it. Whatever we do to the web, we do to ourselves. All things are bound together. All things are connected”.

It is not only the pollution in a particular state creating a problem of damaging the nature, but the recent issue of trans-boundary pollution is rising at a very high rate. Trans-boundary impact highlights the crucial relevance of spatial notion of states territory and the separation of cause-effect by international boundaries. Rules of international law governing trans-boundary environmental impact first evolved in the context of states ‘non-navigational’ uses of water-courses. 16

14 OXFORD – CRIMINOLOGY, 2 nd edition. 15 The Exxon Valdez Oil Spill: 25 years ago today, by Alan Taylor. Available at: https://www.theatlantic.com/photo/2014/03/the-exxon-valdez-oil-spill-25-years-ago- today/100703/.

16 DANIEL BODANSKY, JUTTA BRUNNEE, ELLEN HEY: The Oxford Handbook of INTERNATIONAL ENVIRONMENTAL LAW, pg 531.

Hence, trans-boundary pollution can be defined as the pollution that originates in one country but causes damage in another country’s environment by air or water. Such pollution can travel hundreds and even thousands of kilometers, and it cannot be controlled by any nation.

The issue of trans-boundary air pollution is mainly controlled and monitored by the Geneva Convention on Long-Range Trans-boundary Air Pollution, wherein all the parties to the convention commit themselves to work together to reduce, and to finally prevent the emissions of air pollutants in order to prevent any trans- boundary pollution in future.

The Convention defines long-range trans-boundary air pollution as ‘the direct or indirect release of harmful substances due to human activity having adverse

effects on human health and the environment in another country 17 ’. The problem with such pollution is that it can travel from a nation with high

emission levels to a nation with low emission levels and that it can travel to the remote corners of the world making it evident about the emission levels of developed nations. The best example is the emission from the developed nations which has caused trans-boundary pollution in the Arctic region.

The following are the means of travel used by trans-boundary pollution:

i. Wind transportation of the contaminants: Wind current carries the harmful emissions released into the air to the direction the wind blows.

ii. River transportation of the contaminants: As the rivers flow, they carry with them all the harmful contaminants released into them as emissions from various industries located at the banks. These rivers after travelling for long distances merge with the seas and oceans of the world resulting in large scale marine pollution.

17 Geneva Convention on Long-Range Trans-boundary Air Pollution, available at: http://eur- lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Al28162.

iii. Ocean transportation of contaminants: As the rivers meet the oceans, the ocean waves carry the pollutants around the world as all the oceans are connected without any barriers. Strong winds along the water surface also carry the contaminants to remote places like in Arctic where it freezes like in a cold storage place.

iv. Grasshopper effect: Some of the pollutants like the Persistent Organic Pollutants (POPs) travel long distances by attaching themselves to the dust particles and get carried away by wind.

v. Arctic Seabirds: These birds, especially the Guano, act as a taxi service for the ocean borne pollutants to travel inland. These birds acquire pollutants from the ocean water and the food they consume. It has been found that the level of

pollutants like mercury and DDT (Dichlorodiphenyltrichloroethane) 18 is as much as 60 times more than those at the sites with less or no sea birds. As

a result, these pollutants have affected the Arctic food web at all levels since these birds is an important source of fertilizer for the region and many other life form depend upon them.

There is also the problem of dumping, disposal and dispersion of waste and the unwanted substances which have been a very familiar practice. But in the recent years, there has been a major development of not only removing and relocating waste from the developed nations to the developing or the under-developed nations, but also relocating it as ‘resource-rich disposables’ to be de-manufactured and recycled. The developed nations now consume a huge quantity of electronic goods which are manufactured and sold in a market on the premise that once the goods become old; they can be replaced with new. In reality, recycling of such goods is environmentally good but the recent development of the ‘recycling for profit’ industry has enabled waste electronic items to be exported to China, where it is de-manufactured with various parts including natural resources like precious metals, and then is re-used in new electronic items which are imported back to developed nations.

18 Available at: www.panna.org/resources/ddt-story.

All are exploited in a low-paid and dangerously unhealthy industry. Recycling and disposal of these e-wastes has released high quantity of toxic heavy metals and organic contaminants, which was found in samples of dust particles, sand, river sediments, surface water and ground water. This release of harmful substances has caused various health issues to the people living around these industries and also among them how work there.

3.3 Principles

There are many principles under the International Environmental Law which are as follows 19 :

i. Sovereignty and Responsibility

ii. Principles of Good Neighborliness and International Cooperation

iii. Principle of Preventive Action iv. Precautionary Principle

v. The Duty to Compensate Harm vi. Principle of Common but Differentiated Responsibility vii. The Principle of Sustainable Development

3.3 i Sovereignty and Responsibility

The principle of sovereignty and responsibility is contradicting the fact that the states have sovereign rights over their natural resources but at the same time cannot cause damage to the environment. The United Nations General Assembly said that the while exercising permanent sovereignty over the national resources, nations must do so in the interest of its own development and should also consider the well-being of the people.

19 Max Valverde Soto: GENERAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, available at:

http://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1069&context=ilsajournal.

The Statute of the International Court of Justice state that right to permanent sovereignty over natural resources is an international right accepted by all the tribunals under international customs.

Sovereignty does not mean that the states can damage the environment of itself and that of other states, beyond its jurisdiction. The 1992 Rio Declaration state as follows: “states have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction”.

The obligation of a state to protect the rights of other states was elaborated in the Trail Smelter case, wherein it was held that ‘under the principles of international law, no state has the right to use or to permit the use of its territory in a way that can cause damage to the territory, property or person of another state’.

In the year 1961, the United Nations General Assembly declared that “fundamental principles of international law impose a responsibility and duty upon all the states whose actions may have harmful effects on the already existing people, environment and the future generations”. This was considered in all the future international treaties and in customs.

3.3 ii Principles of Good Neighborliness and International Cooperation

The principle of good neighborliness and international cooperation talk’s mainly about two important duties imposed upon the states which are:

i. The duty to protect the environment and not to damage it, and

ii. The duty to prohibit such activities within its territory that are against the rights of other states.

It is considered to be the application of the legal maxim sic utere tuo, et alilenum non laedas, which translates into ‘use your own property in such a way that you do not injure other people’s property’. This maxim finds its application in cases relating to nuisance. This maxim was invoked as a rule by Hungary in the

Gabcikovo-Nagymaros case 20 .

Another rule in this principle is that the state who is acting in such a manner is supposed to give a prior notification and should also provide relevant information to the other states before the damage happens. The acting state should also enter into a good faith conversation with the affected states over a period of time, but the opinions of the consulted states shall not be of a binding nature upon the acting state. This comes into light during transportation of hazardous chemicals etc.

3.3 iii Principle of Preventive Action

This principle is different from the duty to prevent environmental damage. This principle puts states under an obligation to prevent any damage within its own territory. Prevention is better than cure, hence action should be taken to prevent and reduce the pollution and emission levels, rather than waiting to restore the contaminated areas.

3.3. iv Precautionary Principle

This principle, although still evolving, under Principle 15 of the Rio Declaration, state that ‘in order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. When there are threats of serious or irreversible damage to the environment, lack of full scientific certainty shall not be used as an excuse for postponing cost-effective measures to prevent environmental degradation’.

20 1992 I.C.J. 32, (Hung v. Slovk).

This principle was used for the first time in the Vienna Convention for the Protection of the Ozone Layer in the year 1985, after which the principle was widely addressed. Since it is not fully evolved, many questions still remain like what are the requirements of precaution to be taken etc.

3.3. v The Duty to Compensate for Harm

Violation of the duty or failure by a state to control its activities which end up damaging the environment of another state, such an acting state shall be held responsible and should re-establish the condition prior to the damage. If it is impossible to restore the condition prior to the damage in the affected nation, then the nation who is the victim should be given compensation.

The Permanent Court of Justice declared that ‘the essential principle contained in the actual notion of an illegal act is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or if it is not possible, payment of a sum corresponding to the values which a restitution in kind would bear; the award, if needed be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it, such are the principles which should serve to determine the amount of compensation due for an act contrary to international law’.

3.3. vi Principle of Common but Differentiated Responsibility

This principle states that the protection of the environment is a common challenge to all nations. Due to developmental issues, some countries have to carry more burden than others. This principle is embedded in Principle four and seven of the Rio Declaration.

The essential elements of this principle are: