Malgosia Fitzmaurice
Kobe and QMUL Symposiumon International Law“Diversity of Transnational
Criminal Justice”
Environmental Crime inInternational Law
1• Criminalization of environmental crime is included in 3
conventions:• The Convention on International Trade of Endangered 1973 Speciesof Wild Fauna and Flora (CITES);• 1972/1973, The Convention on the Prevention of Pollution from
Ships (MARPOL); and• 1989 The Convention on the Control of Transboundary Movementsof Hazardous Waste and Their Disposal (Basel Convention).
• The EU is not a party to some of these Conventions (the MARPOL;) will be a party on the basis of the basis of an enabling
amendment (the CITES); and a party (the Basel Convention).
• All of them are global Multilateral Environmental Agreements(MEAs)

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• CITES penalizes trade in, or possession of, specimens, or both; and toprovide for the confiscation or return to the State of export ofspecimens.
• MARPOL is regulates and criminalises pollution from vessels.
• The BASEL Convention introduced control over the transboundary
movement of hazardous and other wastes., The Parties are obliged
to adopt appropriate measures to minimize the generation of
hazardous and other wastes and ensure adequate disposal facilities
within the generating State. The Convention states that the Parties“consider” illegal traffic in hazardous wastes or other wastes ascriminal and requires each Party to take appropriate legal,
administrative and other measures to prevent and punish suchconducts

3• Frequently the EU goes beyond the international
regulation such as in the case of the MARPOL where it hadgone further than the requirement of the IMO after oil
spillages such as in the cases of Erika and Prestige
accidents.
• These Conventions are considered to be very effective,
even a success story. However, there is a pending issue
with compliance, notwithstanding that some of these
Conventions (such the CITES and the Basel Convention)
have instituted special bodies to monitor compliance.
There are also States that avoid imposing criminal
penalties. However, it may be said the criminal penalties
under the MARPOL are frequently imposed.

4• CITES aims at ensuring that international trade in
specimens of wild animals and plants does notthreaten the survival of the species in the wild
and accords varying degrees of protection tomore than thirty‐four thousand species ofanimals and plants. CITES provides for thefollowing penalties: to penalize trade in, or
possession of, specimens, or both; and to provide
for the confiscation or return to the State ofexport of specimens

5• MARPOL 73/78 is the main international Convention
regulating pollution from vessels. The MARPOL
Convention is one of the international legal responses
that have been adopted after the occurrence of severe
accidental releases of oil and other substances fromships.
• As to the punishment of “any violations of therequirements of the Convention”, Article 4 provides a
double system of national prohibitions and sanctions.
First, violations are to be prohibited and sanctions tobe established under the law of the Administration of
the ship concerned, wherever the violation occurs;
and, secondly, violations are to be prohibited andsanctions established under the law of the Party within
whose jurisdiction they occur.
6• These MEAs rely on their State parties to enact domestic
legislation to sanction targeted environmentally harmful
actions through administrative and criminal laws and todevelop the domestic institutional system to combat
environmental crimes, such as environmental police forces
specialized in the protection of the environment and the
judiciary. The European Union and its Member States as
parties of most of the MEAs have added value to thisprocess of enforcement of environmental criminal law
through the adoption of the EU legal instruments that
constitute the pillars for the harmonization of domestic
criminal laws in order to protect the environment, as in
the case of the Directive 2008/99/EC on the protection of
the environment through criminal law and the Directive
2009/123/EC, amending Directive 2005/35/EC on ship
source pollution and on the introduction of penalties forinfringements.
7• The BASEL Convention seeks to provide enhanced
control over the transboundary movement of hazardous
and other wastes, so that it may act as an incentive forenvironmentally sound management (ESM) and reduce
the frequency of such movements. The Parties are
obliged to adopt appropriate measures to minimize thegeneration of hazardous and other wastes and ensure
adequate disposal facilities within the generating State.
Such measures are intended to ultimately reduce thetransboundary movement of wastes. The Convention
states that the Parties “consider” illegal traffic in
hazardous wastes or other wastes as criminal andrequires each Party to take appropriate legal,
administrative and other measures to prevent andpunish such conducts.
8• Criminal provisions of these agreements
constitute “an ‘indirect’ criminal law emanatingfrom international mandates of criminal sanctions
for the violation of certain environmental norms” ,however, they are the source of obligations for theStates Parties and have to be implemented indomestic legislation. The international origin of
these rules explains their difficulties in taking rootin the domestic legal systems, where on mostoccasions criminal laws are just ancillary to
relatively new administrative laws protecting theenvironment
9• The practice of these agreements shows how frequently systems
for enforcing international law have failed to keep up withcompanies that operate transnationally, and how businesses –cruise lines, oil companies, etc. – have been able to take fulladvantage of legal uncertainties and jurisdictional loopholes. For
these companies, activities damaging the environment such as
operational discharges of oil or sewage or transporting waste todeveloping countries, are profitable and are done to save money
and increase their competitive advantage over other companies
complying with international and domestic rules. Organised crime isalso a big problem for the enforcement of these agreements, sincecriminal networks can misuse their systems of permits andauthorizations in order to legalise illegal products, and forge themto circumvent the measures adopted by international institutions
and States parties to control poaching and smuggling.

10• The CITES requires that a permit or certificate is
obtained for each consignment of specimens and thatan export permit is considered valid only for six
months from the date it was granted. CITES regulates
trade not only between Parties but also between
Parties and non‐Parties. The criteria for trading with
non‐Parties have been adopted by the ninth COP andprovide a very strict regulation under which the Parties
cannot accept permits or certificate issued by a non‐Party unless they respect the requirements of theConvention . The import‐permitting requirement
applies in fact even to non‐Parties that must comply
with the conventional provisions on export, providing
less incentive for non‐participation to the Convention.
11• CITES allows parties to present a reservation with regard
to any species included in the three Appendices.
Reservations must be specific as to the species that they
cover and must be taken at the time a Party deposits its
instrument of ratification, acceptance, approval oraccession to the Convention. However, there is also thepossibility of reservations to amendments to theappendices at the time they are amended Reasons fortaking reservations need to be given although they arenormally made by Parties objecting to increased
protection for which they have an established trade.
• CITES requires that Parties be treated as non‐Parties inrelation to trade in species on which they have taken
reservations12• Art. VIII of CITES provides that:• “The Parties shall take appropriate measures toenforce the provisions of the present Convention
and to prohibit trade in specimens in violation
thereof. These shall include .measures:•
1. to penalize trade in, or possession of, suchspecimens, or both; and•2. to provide for the confiscation or return to
the State of export of such specimens”

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It has been reported that “Hong Kong made some 350 prosecutions under its Animal and Plants (Protection ofEndangered Species) Ordinance between June 1978 and November 1981, but a fine of approximately US$ 1.000
was the highest penalty levied because it was the maximum allowed under the Ordinance at that time. Thus,
although a trader who had illegally imported 319 cheetah skins into Hong Kong in 1979 was fined the maximum
amount, the fine bore no relation to the value of the shipment. However, in 1997 the relevant Hong Kong
Ordinance was amended to allow for the imposition of a HK$5 million fine (approximately US$640.000) and aterm of imprisonment of up to two years. Of course, these represent maximum penalties in Hong Kong. A recent
prosecution is more indicative of actual fines imposed in practice and arguably underlines that the imposition of
inadequate fines remains an issue. Over three hundred live Indian star tortoises (listed on Appendix II) were
found in an unclaimed bag on a flight from Malaysia, leading to the imposition on the offender of a HK$29.000
fine (approximately US$3.400) for illegal importation and a HK$1.000 fine (approximately US$130) for animal
cruelty, together with a two–month suspended prison sentence. There is a growing number of cases in which
offenders have been imprisoned. An individual thought to be responsible for widespread criminal activity inwildlife in India was sentenced to five years’ imprisonment in April 2004. This sentence was the harshest then
imposed in India under the Wild Life (Protection) Act in 1972. In August 2004, following their conviction forpoaching of and trading in the Sumatran tiger, five individuals were imprisoned for six years and also fined 70
million rupiah (approximately US$7.750). It is thought that in the preceding ten‐year period a minimum of sixty
tigers were sold by the network to which these five people were connected. Moreover, a smuggler or trader inrare birds was given the then‐longest sentence given by a UK court for a wildlife offence of six and a half years
after being arrested at Heathrow Airport in July 2000. He was involved in the smuggling of twenty‐three
Appendix II‐listed birds which had been placed in tubes fifteen centimeters in diameter for their flight to
Bangkok. Around a quarter of the birds died in the flight. The offender was also found to have been keeping alarge number of endangered birds at premises in Norfolk. In China, penalties can be even more severe; in March2009 a smuggler of saker falcons was sentenced to death, and three accomplices to life imprisonment. There iscertainly evidence that some parties will impose both heavy fines and prison terms on offenders; a Canadian in2008 was sentenced in the US to five years’ imprisonment and fined US$100.000 for illegally smuggling ivory
from Cameroon ”.
A study has noted that low awareness amongst the judiciary is also an exacerbating factor: even EU Member
States with legislation allowing for high penalties may find that illegal traders escape heavy fines or
imprisonment because prosecutors do not understand the impact that illegal trade can have on species,
ecosystems and livelihoods. Since 2000 penalties in the UK have been increased and training workshops to raiseawareness amongst the judiciary carried out .
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14• Recently, a toolkit dedicated to wildlife and forest offences
has been adopted by the International Consortium on
Combating Wildlife Crime in order to help the States tocomply with these provisions . The CITES Secretariat is amember of the International Consortium on Combating
Wildlife Crime , that is the collaborative effort by five inter‐governmental organizations (Interpol, United Nations Officeon Drugs and Crime (UNODC), the World Bank and theWorld Customs Organization) working to bring coordinatedsupport to the national wildlife law enforcement agencies
and to the sub‐regional and regional networks that, on adaily basis, act in defence of natural resources (see further
below: international cooperation15

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As to ‘sentencing and sanctions’ the toolkit highlights that:••“wildlife and forest offences are seen by many, including investigators, researchers and, most importantly, perpetrators, as a high‐profit, low‐risk activity. This is because penalties for wildlife and forest offences are often lenient in relation to the crime committed. Accordingly,
countries should take the measures necessary to ensure that the relevant offences […] are punishable by effective, proportionate anddissuasive criminal penalties. Furthermore, convictions need to be followed by sentences that adequately:‐
Punish the offender to an extent or in a way that is justified in all circumstances;‐
Provide conditions that will help the offender to be rehabilitated;‐
Deter the offender and other persons from committing the same or a similar offence;‐
Make clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; and‐Protect the community from the offender, where necessary.
In addition, the court, in imposing a penalty for a wildlife or forest offence, may also take into account:‐
The extent of harm caused or is likely to be caused to the environment (including the natural habitat, species and biodiversity) by
the commission of the offence;‐
The practical measures that could have been taken to prevent, control, abate or mitigate the harm;‐
The extent to which the person committing the offence had control over the causes that gave rise to the offence and the extent towhich he or she could have reasonably foreseen the harm; and‐Whether, in committing the offence, the person was complying with orders from an employer or supervisor” .

•As to the principles of sentencing:•“In determining sentences, the court should be guided by the gravity of the offence, which is determined by the harm caused, and the
culpability of the offender. The harm may be reflected in the damage that is caused by the offence to the environment or individual species,
plants or animals, in the injuries, loss or other harm caused to individuals, and any detriment, loss or damage caused to local communities or
the public at large. The culpability of the offender is generally reflected in his or her mental state at the time the offence was committed.
Generally, higher penalties are reserved for those acting intentionally, knowingly or recklessly, while lower penalties (or no punishment) areappropriate for offenders acting negligently or with no fault of their own. The severity of the sentence will be further determined by evidenceof mitigating or aggravating circumstances presented to the sentencing judge(s). For example, the commission of an offence for financial gain
or on behalf of a criminal organization is a common circumstance that may aggravate a sentence. Recurrent offenders also often face higher
penalties. Repeated breaches of the law can also be followed by the “blacklisting” of companies. Another important factor is that the courts
tend to be lenient if, in their subjective judgment, they believe that wildlife and forest offences are less serious offences than other types ofcrime. Some organizations and individuals have recommended the requirement of minimum penalties as a possible way to counter this belief.
These suggestions have, however, only very limited support as they may infringe upon the independence of the judiciary and limit the courts’ability to take into account all relevant circumstances when determining a sentence” .
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As to ‘sanctions’ the toolkit specifies that:•“Most convictions for wildlife and forest offences presently result in the confiscation of illegally acquired
property and assets, and the payment of fines and damages. Other types of sanctions include warnings,
incarceration, territory bans, the deprivation of civic rights, bans on continuing the trade or the occupation in
the course of which the offence was committed, licence or permit revocations, restrictions on being inpossession of wildlife or forestry that is related to the offence or of specific tools and instrumentalities related
to the offence, the publication of the offence, remediation and restoration. In practice, a combination of thesesanctions may often be appropriate. Territory bans can be useful, for instance, in denying an offender access toan area or population of species which in turn may prevent illegal harvesting or poaching, and thus also breakthe illegal trade chain to transit and destination points. Bans on continuing the trade or the occupation in thecourse of which the offence was committed may equally be an effective means of preventing future violations.
The same can be said for the suspension of logging and hunting licences, trade permits and so forth. In
determining the appropriate sentence, it is pertinent that courts consider the whole range of sanctions provided
for under current laws. Imprisonment should be reserved for the most serious offences. The imposition ofsentences involving corporal or capital punishment should be discouraged. Administrative penalties (sanctions)
are generally carried out by enforcement agencies, with the possibility of judicial review by aggrieved parties.
Civil and criminal penalties usually require judicial involvement and depend upon the law and practice of theparticular State. Certain penalties, such as fines, can apply to administrative, civil or criminal contexts” .

•As to ‘restitution, compensation and restoration’:•“Offenders should, where possible and appropriate, make restitution to victims. The restitution should include
the return of property or payment for the harm or loss caused, the reimbursement of expenses incurred as aresult of the victimization, the provision of services and the restoration of right,17• MARPOL• The definition of ‘discharge’ is broad and covers intentional andunintentional releases from ship, including “any escape, disposal,
spilling, leaking, pumping emitting or empting”; however, it does
not include dumping within the meaning of the 1972 London
Convention, releases directly arising from exploration andexploitation of seabed mineral resources, or releases for certain
scientific research.
• MARPOL 73/78 applies to ships that are entitled to fly the flag of a
Party or which operate under the authority of a State and are used
only on governmental non‐commercial service. The MARPOL
Convention does not apply to any warship, naval auxiliary or othership owned or operated by a State and used on government non‐commercial service. However, the Convention imposed an
obligation on these ships to act in a manner consistent with theConvention, a long as it is practicable.

18• With respect to ships of non‐parties to the
MARPOL Convention, the Parties are to apply
such requirements as may be necessary to ensurethat no more favourable treatment is given tosuch ships (Art. 5). Article 5 is the source of some
doctrinal controversy in so far as they purport toapply to ships flying the flag of non‐parties. As an
exercise of jurisdiction of the coastal State overforeign ships, these provisions cannot, according
to one of the authors, restrict the rights enjoyedby non‐Parties under the general internationallaw principle of pacta tertiis nec nocent nec
prosunt.
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• MARPOL consists of an umbrella convention and 6 Annexes:
Annex I: Prevention of Pollution by Oil;
• Annex II: Regulations for the Control of Pollution by Noxious
Liquid Substances in Bulk;• Annex III: Regulations for the Prevention of Pollution by
Harmful Substances in Packaged Form;• Annex IV: Sewage;• Annex V: Garbage;• Annex VI: The Regulations for the Prevention of Air Pollution
from Ships• Under MARPOL States can also establish MARPOL Special
Areas and Particularly Sensitive Areas.

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The enforcement of MARPOL can be done in three different ways:•
through ship inspections to ensure that vessels fulfil minimum
technical standards;•
by monitoring ship compliance with discharge standards;•
and by punishing ships violating the standards .
The main responsibility of inspections of ships is bestowed on the flag
State. The MARPOL requires States to conduct inspections or surveys prior
to putting the ship into service and when issuing the five year International
Oil Pollution Prevention Certificate (IOPP). At minimum a survey must be
conducted once every five years. The ship which fails such a survey cannot
sail unless it has fulfilled MARPOL standards.
One particular features of MARPOL is the wide scope of the port Statejurisdiction. The PSC officers can board the vessel and inspect the ship's
IOPP certificate and other MARPOL certificates. In case of the lack thereofor there are “clear grounds” to believe that the condition of the ship, its
equipment or crew does not substantially meet international Convention,
the PSC has jurisdiction of conducting the full detailed survey. If the ship, on
the other hand has IOPP, the PSC has to treat it as its own and issue a“clean” inspection report to the master of the ship

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As to the punishment of “any violations of the requirements of the Convention”, Article 4 provides a
double system of national prohibitions and sanctions. First, violations are to be prohibited andsanctions to be established under the law of the Administration of the ship concerned, wherever
the violation occurs (Art. 4(1)); and, secondly, violations are to be prohibited and sanctions
established under the law of the Party within whose jurisdiction they occur (Art. 4(2)).
In the event of such a violation within a jurisdiction of any Party of the Convention, according to
Article 4(2), this Party can either start proceedings in accordance with its own law or furnish suchinformation and evidence as it may have in possession that violation has occurred to the
Administration of the ship concerned (Art. 4 (2a‐b). Article 4(1) further provides that if the
Administration of the ship involved in a violation is informed of it is satisfied that sufficientevidence is available to enable proceedings to be brought that Administration shall cause suchproceedings as soon as possible in accordance with its law. The Administration has also an
obligation of notifying the State Party which reported the violation of the action it had taken . It
may also be noted that ‘any violation’ in Article 4(2) means that it applies to operational anddischarge standards, as well as to design and equipment standards of the Convention. Art. 4(4)further states that the penalties applied shall be adequate in severity to discourage violations of
the Convention and shall be equally severe irrespective of where the violations occur.

22• The Basel Convention seeks to provide enhanced
control over the transboundary movement of
hazardous and other wastes, so that it may act as
an incentive for environmentally soundmanagement (ESM) and reduce the frequency ofsuch movements . The parties are obliged toadopt appropriate measures to minimize thegeneration of hazardous and other wastes andensure adequate disposal facilities within thegenerating State. Such measures are intended toultimately reduce the transboundary movementof wastes23

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The Basel Convention provides for a broad definition of the term hazardous waste. As it has beenreported, “‘[w]astes’ are defined as “substances or objects which are disposed of or are intended tobe disposed of or are required to be disposed of by the provisions of national law.” A waste ishazardous if it is listed under Annex I, unless it does not possess any of the characteristics
enumerated in Annex III, namely flammability, explosivity, toxicity and eco‐toxicity. Wastes that are
not covered by this clause can still be considered as hazardous wastes if they are so considered
under the national law of the Party of export, import or transit . Radioactive wastes and wastes
arising from the normal operation of a ship, which are governed by MARPOL are excluded from its
ambit. Annexes I and II list the wastes regulated under the Basel Convention (subject to thecriteria mentioned in Annex III); Annexes VIII and IX clarify the specific wastes that can be coveredby the Convention. Wastes that belong to any category contained in Annex II that are subject totransboundary movements shall be “other wastes” : such as household wastes and their residuals.
As far as the major actors in the trade are concerned, the Basel convention envisages five natural or
legal persons that can be involved in the transport of hazardous wastes. The first is the “generator”,
the entity whose activity has produced the wastes or, in cases where the entity is not known, theperson who has possession or control over the wastes . The second is the “exporter” who arranges
for the export of hazardous wastes and is under the jurisdiction of the exporting State . The “carrier”
is the performing carrier , while the “importer” is any person under the jurisdiction of the importing
State who imports the hazardous wastes . The final player, the “disposer”, receives the hazardous
cargo for disposal . These entities operate in a broad framework where the main drivers are theStates of export , import and transit

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The Basel Convention requires the State Parties to “The Basel Convention requires
the State Parties to “consider criminal” illegal traffic that includes any
transboundary movement of hazardous wastes or other wastes undertaken
without compliance with the provisions of the Convention ..It is interesting that thewording of Article 4(3) does not actually impose a clear obligation to make illegal
traffic criminal. It simply says that parties “consider” it to be criminal
Illegal traffic occurs if the transboundary movement of hazardous wastes is taking
place under the following conditions:•
without notification pursuant to the provisions of the Convention to all
States concerned; without the consent of a State concerned; through consent
obtained by falsification, misrepresentation or fraud; when movement does notconform in a material way with the documents; or when movement results indeliberate disposal of hazardous wastes in contravention of the Convention andof general principles of international law.
Common methods of illegal traffic include making false declarations, theconcealment, mixture or double layering of the materials in a shipment and themislabelling of individual containers. Such methods seek to misrepresent the actual
contents of a said shipment and, because of this the meticulous and thoroughscrutiny of national enforcement officers is required to detect cases of illegal traffic. The Secretariat is not mandated to take a unilateral decision to intervene when acase of alleged illegal traffic is brought to its attention. Under Article 16 (1)(i) of theConvention, the Secretariat’s functions include assisting Parties, upon request, in
the identification of cases of illegal traffic and to circulate immediately to theParties concerned any information it has received regarding illegal traffic.

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The Basel Convention is one of the few environmental treaties to define a prohibited activity as “criminal” eventhough the wording of Article 4(3) does not impose a clear obligation to make illegal traffic criminal, as it simply
says that parties “consider” it to be criminal (see also above).
According to the Secretariat, the fact that illegal traffic is deemed a crime that Parties undertake to prevent andpunish says a lot about the international community’s commitment to the environmentally sound management of
hazardous and other wastes. Illegal traffic of hazardous waste is unfortunately still very common in all corners of
the world .
Art. 4 of the Convention states that the Parties “consider” illegal traffic in hazardous wastes or other wastes ascriminal and requires each Party to take appropriate legal, administrative and other measures to prevent andpunish such conducts:(3) The Parties consider that illegal traffic in hazardous wastes or other wastes is criminal.
(4) Each Party shall take appropriate legal, administrative and other measures to implement andenforce the provisions of this Convention, including measures to prevent and punish conduct incontravention of the Convention.
Furthermore, the Convention requires that Parties cooperate when dealing with illegal traffic (Art. 9(5).
It has to be noted though that each State has its own, necessarily different, means of investigation, complianceand enforcement and of effecting legislation to define penalties according to its own established framework. The
application of national offences and penalties to the various actors involved in a transboundary movement has tobe set out in the national legal framework. Similarly, how far the powers of a prosecutor and the jurisdiction of acourt can extend to such actors who are physically or legally established in a foreign country is a matter fornational legislation to clarify. However, Part VII of the Model National Legislation provides some guidance andcontains model provisions on illegal traffic .
One of the major problems faced by the actors involved in the fight against illegal traffic is to prove the existenceof a “waste” that is “hazardous”. Under the Basel Convention, a substance or an object is waste if it is disposed of,intended to be disposed of or if it is required to be disposed of by the provisions of national law. This definition
clearly relies on subjective elements that are difficult to assess.

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1. there is a great difference in criminalisation ecological crime in these 3
MEAs;
The main feature is that national laws are implementing their provisions,
therefore there is a great degree of subjectivity, which is also present invarious definitions, makes criminalization patchy;
Criminalization of ecological crimes is a part and parcel of a holistic
approach to enforcement of MEAs which involves e.g. Compliance
Procedures;
The international cooperation is improving but need closer links.
However, it must be stated that MARPOL and CITES are indeed a successstory of environmental law.

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