Page 20 - Lawtext Environmental Liabilty Journal Example

[2008] 3 Env. Liability : The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson 8787
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under its domestic law aiding or abetting the A number of features stand out for comment in relation
commission of any of the offences established in to these particular provisions on the common definition of
accordance with paragraph 1 of this article. offences. First and foremost, it is important to note that all
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offences cited in Articles 2–4 except one are dependent
Article 3 CPECL requires parties in principle to criminalise upon the offender having perpetrated a breach of domestic
the offences listed in Article 2(1) where committed with law when committing a particular act. Specifically, the vast
negligence. However, this requirement is subject to a majority of offences are defined on the basis of an offender
number of caveats. First, parties may decide to restrict acting on an ‘unlawful’ basis. This means that no liability
criminal liability to covering acts committed with ‘gross will triggered for these offences if a person is carrying out
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negligence’. Secondly, by virtue of Article 3(3), parties an activity authorised by law or administrative decision of
may opt out of criminalising negligence in respect of certain a competent authority. Given that the definition of
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offences. 137 ‘unlawful’ depends ultimately upon the parameters set by
Articles 2–3 address offences which actually cause or national rules, this represents a serious qualification to the
are likely to cause damage to the environment or human commonality of standards underpinning the definition of
health and are considered by the Convention to constitute offences. A number of key elements to the definition of
the most serious type of environmental crime (concrete offences listed in the Convention are not defined, and
offences). By way of contrast, seven offences defined in therefore effectively defer implementation in practice to
Article 4 are considered by the Convention to be less serious Contracting Parties. This risks a distorted and differentiated
in nature in that they involve infringements of application of the convention among parties on various
environmental law, and belong to a different group of points of law, such as regarding the issue of what constitutes
offences (abstract endangerment offences). Parties are a ‘dangerous activity’ and ‘substantial damage’ for the
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required to provide for sanctions in respect of these purposes of the offence referred to in Article 2(1)(d)
particular offences, whether committed intentionally or CPECL.
negligently, although they need not necessarily subject them It is also noteworthy that there is a strong
to the criminal law. Article 4 refers to the following conduct anthropocentric streak in the way in which the Convention
as belonging to this category, namely the ‘unlawful’: 139 categorises the seriousness of offences. For instance, the
discharge, emission or introduction of a quantity of only autonomous offence, ie the only offence in respect of
substances or ionising radiation into environmental which it is no defence for a person to rely upon the existence
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media; causing of noise; disposal, treatment, storage, of authorisation under national law legitimising their
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transport, export or import of waste; operation of a activities, is the one defined in Article 2(1)(a) CPECL. This
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plant; manufacture, treatment, use, transport, export or provision requires parties to criminalise the release of
import of radioactive substances or hazardous chemicals; 144 substances or radiation that cause or risk causing human
causing of changes detrimental to natural components of a death or serious injury. In contrast, under Article 4 CPECL,
national park, nature reserve, water conservation area or other parties are not required to criminalise illegal trade in
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protected areas; or possessing, taking, damaging, killing or wildlife, nor are they required to criminalise conduct
trading of or in protected wild flora and fauna species. 146 infringing domestic law which causes detrimental changes
to wildlife habitats where their activities are not specifically
defined by Articles 2–3. Accordingly, illicit development
projects and hunting activities that interfere with protected
136 Article 3(2) CPECL. nature sites are not required to face criminal sanction by
137 Specifically offences listed in art 2(1)(a)(ii) and art 2(1)(b)
CPECL. the CPECL.
138 See Section III (Commentary) of the Explanatory Report Another notable feature of the manner in which
regarding arts 2–4 CPECL accompanying the convention. offences are addressed under Articles 2–4 CPECL is that
139 Just like for the majority of offences covered by arts 2–3, art
4 CPECL makes liability dependent on the defendant acting in the Convention does not adopt a strong preventive approach
breach of domestic rules of law. Accordingly, if the activity in to tackling conduct which poses a risk to the environment.
question is covered by a licence issued by a competent authority, no
offence will be committed under the terms of art 4. The way that offences are constructed under the
140 Article 4(a) CPECL. Convention has meant that the factor of deterrence is
141 Article 4(b) CPECL.
142 Article 4(c) CPECL.
143 Article 4(d) CPECL.
144 Article 4 (e) CPECL.
145 Article 4 (f) CPECL. 147 Article 2(1)(a) CPECL.
146 Article 4 (g) CPECL. 148 See definition of ‘unlawful’ in art 1(a) CPECL.

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