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Issues and Reports
Issues & Reports No 12.
CRIMINAL LAW AND ITS ADMINISTRATION IN INTERNATIONAL ENVIRONMENTAL CONVENTIONS
Summary Proceedings of a Regional Workshop
Apia, Samoa 22 - 26 June 1998
UNICRI, Commonwealth Secretariat and
South Pacific Regional Environmental Programme (SPREP)
Svend Soyland and Mohan Prabhu
International conventions on
environmental protection generally contain few criminal provisions, if any. Among them, maritime conventions (International Convention for the Prevention of Pollution from Ships - MARPOL - Convention on the
Prevention of Marine Pollution by Dumping of Wastes and other Matter) and the Convention on Trade of Endangered Species of Wild Fauna and Flora have small penal components, while the South Pacific Nuclear
Free Zone Treaty and the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal, contain broader sections with specific criminal provisions.
Increased concern with environmental protection across the globe has resulted in a shared belief that effective environmental protection requires, inter alia, a more pronounced role of criminal law.
There is also a shared commitment to international as well as regional and (sub) regional co-operation, including common strategies and legal provisions to facilitate it.
States that have
acceded to environmental conventions should also have given effect to the assumed obligations through national laws, and those that have not should either be encouraged to do so or be assisted in the
development of national laws and infrastructures that would align with the principles contained in international conventions. Close co-operation between public prosecutors and environmental agency officers
is of utmost importance. The exchange of experiences and suggestions for more effective protection of the environment and responsibility of the violators at the domestic and regional levels will greatly
facilitate the development of common practically oriented strategies and models to be shared by the Pacific Island Countries.
In this context, the United Nations Interregional Crime and
Justice Research Institute (UNICRI), the Legal and Constitutional Affairs Division of the Commonwealth Secretariat and the South Pacific Regional Environmental Programme
(SPREP) joined forces in
organising the project "Criminal Law and its Administration in International Environmental Conventions", with the following main objectives:
analysis of provisions and procedures providing for criminal law response to, and criminal prosecution of environmentally harmful acts and offenders with particular attention to
the international treaties;
- discussion of difficulties faced in the prosecution of environmental crimes and issues related to the practical implementation of international/regional conventions and bilateral agreements on
environmental protection of relevance to the small island states in the South Pacific; and
- conveying suggestions to facilitate the effective prosecution on a national level and effective international co-operation.
The project identified experts and prepared the collection of country reports from Cook Islands, Fiji, Kiribati, Nauru,
Niue, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu on the
existing legal framework for environmental protection and its functioning, the nature and level of the enforcement activities applied in the areas of interest, as well as case studies on specific relevant
The workshop on "Criminal Law and its Administration in International Environmental Conventions" was held at Apia, Samoa, from
22 to 26 June 1998. It was organised by the Commonwealth Secretariat, the United Nations Interregional Crime and Justice Research Institute (UNICRI) and the South Pacific Regional Environment Programme
(SPREP), with the participation of representatives from the above mentioned eleven Pacific Island countries.
Presentations were also given by experts from international, inter-governmental,
governmental and non-governmental
organisations, including Forum Secretariat, Environment Australia, Greenpeace International and the University of Auckland. The Hon. Tuala Sale
Tagaloa, Minister of Lands,
Survey and Environment, opened the workshop.
Sessions dealt with recent developments in the activities of the UN and international treaties and conventions, regional co-operation in enforcement of
environmental conventions, legislation in the Pacific, and examples of tools and resources for training and investigation. Particular attention was given to country reports and case studies from the eleven
participating countries. Two mock trials were organised dealing with cases of dumping of hazardous waste and hunting of endangered species respectively.
Background and Objectives of the Workshop
In many instances environmental problems may not have been translated into legal issues and defined in laws.
Legislation at the national, regional and international levels should be regarded as a continuum. It is furthermore important to utilise the competence possessed by non-governmental organisations at both the
international and regional levels. Workshop materials included: case studies, two books; ("Environmental Protection at National and International Levels: Potentials and Limits of Criminal Law" and "
South Pacific Handbook of Treaties and other Legal Instruments in the Field of Environmental Law"), a CD-ROM, a selection of relevant research materials and UN documents. The workshop consisted of
examinations of international and regional environmental conventions, discussions on capacity building, legislative reforms and model legislation. Country reports, case studies and mock trials uncovered
interesting examples of successful enforcement approaches as well as legal bases and enforcement that can be further improved.
UN Initiatives in Relation to Crimes against the Environment
Anna Alvazzi del Frate, UNICRI
UNICRI has identified ways of promoting awareness of the role of criminal justice in the environment area, carried out research, and assisted in the
review of legislative development, in co-operation and technical training. The most important activity has been participation in the 9th
UN Congress on the Prevention of Crime and the Treatment of Offenders, held in Cairo in 1995, where UNICRI organised a research workshop on crime against the environment and a panel on collective responsibility. The proceedings of the Cairo workshop identified the advantages and disadvantages of using criminal law. The most obvious advantage was the deterrent effect of imposing modern criminal sanctions, such as compliance
programmes, confiscation, clean-up and restoration orders, prohibition of particular activities, exclusion from fiscal advantages and government contracts, etc. All these measures are considered very effective especially when dealing with corporate offenders. The advantage of using criminal law needs to be balanced with the disadvantages. Often the state of poverty is claimed for not complying and ignorance and defence of necessity may be pleaded. Offenders may be well aware that the law exists to protect the environment, but plead necessity for breaking it. This may be one reason why criminal law is not important when dealing with such situations. It is crucial to develop domestic laws to properly and effectively implement environmental conventions. Developing appropriate national laws reflects the commitment of a state to international obligations and their effective implementation. Enlarging the scope of regional and international co-operation is also crucial. Future orientation of UNICRI is in research activities on transboundary environmental crime, criminal organisations and crimes against the environment.
INTERNATIONAL CONVENTIONS AND TREATIES VS. DOMESTIC LAW
Recent Developments in International
Treaties and Protocols to Protect the Environment
Prabhu, International Consultant to the Workshop
1992, many protocols, amendments, agreements and other international instruments relating to the conventions were signed or entered into force. These covered protection and conservation of the marine and
atmospheric environment, management of toxic chemicals and hazardous wastes, and the sustainable development of lands, forests and biodiversity. These included the Protocol to the London Dumping Convention
(LDC) (1996) which would eventually replace the 1972 Convention, MARPOL 1973/78 and the Law of the Sea Convention (1982)
(UNCLOS). Protection of the marine living resources is also covered in UNCLOS
Agreements. The two major conventions relating to the protection of the atmosphere were the 1985 Vienna Convention on the Protection of the Ozone Layer and the 1987 Montreal Protocol on Ozone Depleting
Substances. In addition, the UN Framework Convention on Climate Change (1992) and the Kyoto Protocol (1997) are also relevant. There are several international instruments relating to the management of toxic
chemicals but only the Basel Convention (and the corresponding Waigani Convention, for the South Pacific Region) relates to waste. Toxic chemicals and pesticides are still governed by instruments adopted in
the 1980s. UNEP is now preparing a draft of what may become a PIC treaty and a treaty on persistent organic chemicals
(POPs). UNEP has also elaborated a liability and compensation regime under the Basel
Convention. Protection of sustainable development of land, forests and biodiversity are covered in the UN Convention to Combat Desertification and Drought (1994) and the UN Convention on Biological Diversity
(1992). Forestry management is currently covered in the Rio Forestry Principles (1992) and the International Tropical Timber Agreement (1994). The Programme of Action and the Barbados Declaration on Small
Island Developing States may also serve as inspiration and starting points for sustainable development strategies.
The Convention for Prevention of Pollution from Ships MARPOL (1973 / 1978)
Kosimiti Latu, Commonwealth Secretariat
The MARPOL Convention regime was adopted in 1973 and modified in 1978. The background of the Convention stems from the OILPOL Convention
and the increase in oil transport in the 1950's and the risk of marine pollution. The main concern in the 1970s was routine operational discharges. The control regime of MARPOL established prohibited zones
50 miles from the nearest land, where discharge of oil or oily substances was forbidden. It also required parties to establish reception facilities for oily wastes and to report to IMO violations of the
Convention. Limitations of the OILPOL Conventions and the 1967 MS
"Torrey Canyon" disaster called for increased protection of the marine environment. MARPOL (1973) superseded OILPOL and had a broader scope,
covering also noxious substances, sewage and garbage, but did not cover dumping or pollution from seabed mining. Ratification and implementation were very slow, mainly due the procedure for reporting
violations and flag state enforcement. Port State control was introduced in 1983 to authorise inspection of vessels in territorial sea by coastal states of anti-pollution activity. The enforcement mechanism
of MARPOL gives concurrent jurisdiction to port states along with the vessel's flag state. Coastal states are considered to be more likely to report violations. Limitations and problems in relation to
implementation include poor recording of reported incidents and failure to establish reception facilities.
A Critical Review of the Raratonga Treaty (Nuclear Free Zone Treaty)
Andie Fong Toy, Forum Secretariat
The provisions of the Raratonga Treaty and, in particular, the obligations in relation to the dumping of nuclear wastes in the South Pacific were explored.
The Raratonga Treaty is the Region's contribution to global security and despite the recent Convention on the Banning of Nuclear Weapons, it is still relevant today. The obligation not to dump radioactive
waste at sea has also been incorporated in the more recent South East Asia Nuclear Free Zone Treaty (Bangkok) and is stricter on this point than the Raratonga Treaty. The Raratonga Treaty contains three
Protocols. France, UK and USA signed the Protocol in 1996 but the US has not so far ratified it. The People's Republic of China and the former Soviet states were also invited. Elimination of nuclear weapons
was the primary purpose because of the threat they pose to human kind and also to the environment.
An Environmental Act for the Pacific
Clark Peteru, Regional Consultant to the Workshop
Piecemeal legislation is a fast avenue to enact and target specific problems but may not be appropriate in the overall context of environmental
legislation. The Resource Management Act (1991) in New Zealand and the Sustainable Development Bill of Fiji are good examples of comprehensive legislation. Preparing laws of this kind (one-stop shop) is
however an expensive and lengthy exercise. Examples of framework legislation can be found in Bills enacted in Kiribati, Samoa and
Niue. These deal with specific pressing problems. Framework laws are - in
contrast to comprehensive Bills - inexpensive and will normally be easier to pass and implement. The main problems are that they tend to avoid controversial issues and depend on supplementary detailed
regulations which may be affected by shifting day to day political priorities. Definitions used in laws have to correspond to international conventions, treaties and protocols. A law should be equally
binding on corporate entities, individuals and the state. The Act may contain an exhaustive list of items to be preserved or protected. It may also be useful to have a supremacy clause letting an
environmental act override any other laws. Penalties should be deterring. In cases of strict liability, fines up to $ 1,000,000 should be available. An environmental Act should also provide the possibility
to punish individuals within a corporate structure. Creative sentencing may include closure and suspension of permissions, payment of compensation, replacement, and restitution or even rehabilitation paid by
the violator. Use of bonds, community service orders and payment to an environment fund are also useful tools. Failure to comply with laws will provide parties suffering from damages a right to initiate
civil action. A person or company found guilty may also be barred from conducting similar activities (fishery, agriculture or waste handling) for a given period and may also have the instruments used to
commit the offence confiscated. Punishment based on customary practices has the potential of being highly effective as well as promoting self-policing.
The International Law of Shipments of
Ultrahazardous Radioactive Materials: Strategies and Options to Protect the Environment
Duncan Currie, Greenpeace International
Over the past decades the
Pacific environment has been faced with threats such as atmospheric nuclear testing, underground nuclear testing, and driftnet fishing. These issues have been addressed by the Pacific community in the
international environmental legal framework. Nuclear transports and, most recently, at-sea rocket launches are new challenges for environmental policymakers and legislators The Pacific countries run the risk
of becoming a testing ground for new technologies unless they address these challenges effectively. The Law of the Sea Convention and other applicable treaties and customary international law, provide a
basis for developing policies. Concerned countries should be working through international organisations such as the International Maritime Organization (IMO), the International Atomic Energy Agency
and regional organizations to develop and strengthen the rules that govern these matters.
It is important that Pacific Island countries work on a regional basis to address these matters in a
co-ordinated fashion. Until a new regime is fully developed, affected nations can take unilateral or
regionally-co-ordinated action to protect themselves, including national legislation and measures to keep
ultra-hazardous nuclear shipments out of their territorial seas and exclusive economic zones. On a regional basis, a new protocol to address specific issues may be developed. The Law of the Sea Convention
provides an avenue for settlement since the provisions are designed to address and resolve disputes between nations claiming the right to free navigation and nations seeking to protect their adjacent marine
environment. An action brought by concerned coastal and island nations could increase the pressure on the shipping nations and bring about clarification of laws.
ENFORCEMENT AND CAPACITY BUILDING
Regional Co-operation in Enforcement of Environmental Conventions
SPREP serves as the secretariat for five regional conventions in the South Pacific concerning natural resources
management and environmental protection. These cover biodiversity and natural resources; climate change; waste management/pollution emergencies and control of the South Pacific nuclear free zone. SPREP also
provides environmental management planning assistance; environmental education, information and training. It also offers advice on the development of national legal instruments and assistance in the
implementation and enforcement of environmental conventions. This process involves legislative reviews; follow-up projects on building national capacities in relation to legislation and development.
Traditional/customary laws in the Pacific Islands are very important to consider before introducing new legal frameworks. Many countries have old laws from the colonial era,
approaches are often missing and there is little recognition of the newly emerging environmental departments by the established departments. Legal personnel do not have the resources to prosecute
environmental offences adequately and countries are slow to enact laws due to shortage of skilled legal drafters. Enforcement of such legislation is limited, especially when environmental legislation is
regarded as anti-developmental. Weak enforcement is the outcome of shortage of resources, low priority to environmental matters and lack of public awareness and participation. There is however an increasing
awareness of all aspects of the environment, especially after the UNCED Meeting and the Barbados Conference.
Port State and Flag State Control
Kosimiti Latu, Commonwealth Secretariat
The efforts of port states and flag states are important for the achievement of the objectives of ship safety and prevention of pollution from ships.
Flag state jurisdiction has been universally recognised and provides control over ships. The primary responsibility of the flag state is to maintain law, safety of sea navigation and secure the welfare and
safety of seamen. Port state control is now increasingly being used because flag states have failed to enforce their laws in relation to pollution of waters from ships, safety and issues in relation to
training and living conditions of seamen. Port state control empowers port states to inspect foreign vessels visiting their ports in cases where they discharge oil and to ensure that other IMO regulations
are being complied with. The port state control is especially useful to control vessels flying flags of convenience. Regional enforcement is much more effective than one single coastal state in exercising
adequate control. A number of regional Memorandums of Understanding
(MOU) on port state control have been signed covering areas such as: Europe, Latin America, the Pacific, Caribbean and Mediterranean seas.
These agreements are put in place to monitor and enforce various obligations under relevant IMO conventions. The Pacific MOU (signed in Tokyo) includes Australia, New Zealand, Fiji,
PNG, Solomon Islands and
Vanuatu from the South Pacific. MOUs contain clauses to prevent unfavourable treatment of non-party flag ships and prevent undue delay. If a flag ship country is not party to a convention, the convention
cannot be used against it for inspection purposes. Enforcement includes: infrastructure, inspection, legal proceedings and imposition of fines.
Capacity Building in Compliance and Enforcement of Environmental Laws
Prabhu, International Consultant to the Workshop
Agenda 21 stresses the importance of capacity building to enable
developing countries to carry out their environmental responsibilities properly. Agenda 21 contains mostly programmes of action, activities, and means of implementation and financial mechanisms. Small Island
Developing States are mentioned in particular due to their size, limited resources and isolation. Many of these states tend to be ecologically fragile and vulnerable to global warming and sea level rise. The
Capacity 21 programme was launched to substantiate the Agenda 21. Capacity building is defined by Agenda 21 as efforts to: "develop a country's human, scientific, technological,
institutional and resource capabilities, in order to enable it to implement the objectives, programmes and action plans elaborated in the other chapters of Agenda 21." This means finding and
developing resources within each country (endogenous capacity building) as far as possible. Compliance enforcement comprises a full range of "carrot-and-stick" approaches to gaining compliance and
enhancement of national standards by monitoring compliance through inspections, detection and investigation. The main challenge is to strengthen voluntary compliance, as well as to strengthen governments'
capacity to monitor and enforce laws. Community participation and involvement may play a key role in the effort to strengthen voluntary compliance. An effective environmental management programme poses
challenges for most developing countries lacking skilled legislative drafters, trained inspectors and investigation. They often also lack enforcement officials, prosecutors, technical facilities and the
expertise to analyse substances and to gather intelligence of illegal activities. The essential capacity-building requirements in environmental laws have been elaborated in several packages in the monographs
submitted to UNDP by various UN agencies, including the Crime Prevention and Criminal Justice Programme in collaboration with UNICRI, and proposals for model laws.
Compliance and Enforcement Mechanisms
under the New Zealand Resource Management Act 1991
Tim McBride, University of Auckland, New Zealand
The New Zealand Resource Management Act
(RMA) was regarded as the first
one-stop resource management law in the world. Its core objective is sustainable management of natural and physical resources. The Act emphasises substantial management of resources, as opposed to
sustainable development. Resource management includes social, economic, cultural, health and safety factors. There are three main mechanisms in the Act aimed at ensuring compliance: voluntary mechanisms,
economic instruments and regulatory/ coercive mechanisms. The RMA enforcement can be divided into two main groups: non-litigious/ non-coercive such as planning, bonds, economic instruments, negotiation and
mediation, and substantive/coercive such as administrative policing, civil actions and criminal prosecutions. Civil enforcement may include enforcement orders issued by the court or using common law remedies
such as trespass and nuisance provided they are consistent with the
RMA. Only the most serious cases are criminally prosecuted. Offences of strict liability are akin to absolute liability and no defence is
therefore allowed. Mens rea
offences are criminal offences punishable by a maximum of a 2 year jail term and higher fines than other types of violations. Factors to be considered when sentencing includes type of environment affected; extent of damage caused; deliberateness of the offence; and the attitude of the defendant. When sentencing corporate offenders, the size of the company, financial resources, and nature of the operations, power of the corporation, compliance attitude, remorse, profits realised by committing the offence; and previous compliance history are taken into account. Corporate officers can be criminally liable along with the corporation if they authorised or accepted the illegal activities. Private litigations are rare since courts impose heavy court costs on losing parties.
Environmental Litigation in Asia and Australia
Clare Cory, SPREP
Criminal actions are particularly difficult, because of the need to prove mens rea
(or knowledge, intent) which is a burden on the prosecution. As a result, most cases are proceeded either by regulatory penal law demanding a lower threshold of proof (strict liability, and in some cases, absolute liability) or by civil litigation. The last type of proceeding is especially relevant when seeking damages, compensation or restoration of the environment, or when orders to suspend, close or relocate an offending enterprise are claimed. Jurisprudence from Indian courts since the landmark settlement approved by the Supreme Court in the Bhopal gas leak case, and other landmark cases in Bangladesh, Pakistan, Malaysia, the Philippines and China, are also instructive. The proposed reforms in Australia, which included the consolidation of a number of environmental statutes administered by the Commonwealth Government under three primary laws, and bringing penalties for environmental crimes are in line with those in the Australian Criminal Code Act of 1995.
Enforcement of Wildlife Protection in Australia
Carey Robinson, Wildlife Protection, Environment Australia
There are four Acts in Australia dealing with protection of
wildlife and wildlife habitats: National Parks & Wildlife Conservation Act (1975), Whale Protection Act (1980), Wildlife Protection (Regulation of Imports and Exports) Act of 1982 and Endangered Species
Protection Act (1992). The Wildlife Protection Act fully complies with the CITES Convention and replaces scattered clauses in different Acts into one comprehensive (one-stop) law. The Australian Act goes
further than CITES, since importers of CITES items will also need a valid Australian import license in addition to the export license from the country of origin. Export and import without a permit or
non-compliance with permits are the most common violations. The enforcement of these acts is conducted mainly by customs officers. In addition, federal police officers, and wildlife and national park wardens
may be appointed as enforcers. The Australian Government has prepared several databases such as the Wildlife Trade Database and the National Exotic Bird Registry Scheme and an enforcement intelligence
database to streamline the enforcement. The Australian Act has the possibility to issue strong deterrent penalties. Individuals can be fined up to 100,000 Australian Dollars or up to ten years of
imprisonment. Fines for corporate bodies can go as high as 500,000 Australian Dollars.
BACKGROUND STUDIES FOR THE WORKSHOP
Environmental Tools and Resources on Internet
Svend Soyland, Project Consultant, UNICRI
Increasing amounts of environmental information are now available on Internet. This allows access to the texts of international conventions and treaties, homepages of treaty secretariats, United
Nations agencies, as well as inter- and non-governmental
organisations. Most research institutions and universities as well as many enforcement agencies also provide relevant information on their homepages.
Environmental law officials may benefit from access to the above mentioned sites in order to find case law, enforcement models and federal and state legislation when facing an environmental problem or acts
of crimes against the environment.
UNICRI has prepared a CD-ROM for this workshop. This CD-ROM contains: the full text version of international and regional conventions, treaties and legal
instruments, the homepages of several UN
organisations, enforcement agencies as well as regional and non-governmental organisations working in the area of the environment. This CD is intended to provide an
idea of the resources available and to be a starting point for finding further information. The CD can also be used without an Internet connection or it can be accessed online on the UNICRI homepage
Regional Overview and Main Findings from National Reports
Peteru, Regional Consultant for the Workshop
The most serious general environmental
problems faced by the Pacific Island countries include global warming leading to sea level rise, natural disasters, and a generally vulnerable and fragile environment. Man made environmental problems range
from waste oil spills into rivers, to import of hazardous waste and clearing of mangrove and various customary practices causing environmental damage. There is an increased environmental awareness among the
Pacific Island countries shown by the signing of regional and international environmental treaties. The implementation process in relation to these treaties and agreements are however scanty and uneven. Only
PNG has environmental rights clauses in its constitution. Allocation of responsibilities is usually scattered. Vanuatu for instance, has 5 departments administering 18 statutes with relevance to
environmental protection. Only Nauru had established a parliamentary committee to monitor environmental issues. In PNG a few green political parties have emerged. Only three countries
(PNG, Solomon Islands
and Vanuatu) stated the existence of environmental NGO's. Criminal sanctions were found in some sector-specific acts (wildlife, marine areas, and customs), but environmental offences were not incorporated
into the criminal code. Many reports stated an urgent need for comprehensive (one-stop) laws. Fiji, Samoa and Niue reported that new legislation was being developed. The enforcement of environmental
standards is difficult to achieve, mainly due to lack of personnel and resources. Departments dealing with environmental matters and their budgets range from 3 to 153 employers and US$18,000 to US$5 million.
In some countries the NGO's have bigger budgets than the government section responsible for the environment. Complaints are mainly investigated by administrative agencies, but local communities and NGO's are
also presenting complaints. Most incidents were covered and elaborated in newspapers and on television. Consultations with stake-holders/grassroots organisations occurred. Education and training were
considered to be very important in improving the environmental awareness. The external pressure towards the development and exploitation of natural resources as well as the financial interests of governments
occasionally leads to political intervention setting aside environmental reservations. Fisheries appears to be the best regulated sector. Environmental Impact Assessments are prepared in some cases. PNG
reported arrangements with Australia for joint investigation; mainly in fisheries. Bilateral agreements relating to prosecution in fisheries were regarded as successful. A few criminal prosecutions occurred
in this area. Intentional offences were found in respect of land degradation in Nauru and fisheries violations in
PNG. Prosecution is not favoured due to a lack of funding and lack of political support.
Sanctioning strategies such as: regulations; provisions in the penal code; administrative laws and customary laws are all available, but fines and imprisonment are seldom applied. No sanctions whatsoever are
used in case of minor damage. Statistics on crimes against the environment are poorly kept and often nonexistent.
The participants had submitted a questionnaire
developed by UNICRI covering the general issues in relation to environmental legislation and enforcement analysed and presented in the "national overview and country reports". They were also asked to submit
cases studies on the following five categories: a)
(transboundary offences), b) pollution from large enterprises (e.g. power plants, gold mines) and toxic waste imports, c) illegal activities of small
enterprises, businesses and individuals (e.g. illegal fishing and hunting) and d) other resource depleting activities (e.g. illegal logging, mangrove destruction, environmental devastation and other
environmental damage). A fifth category gave the participants an opportunity to report cases that did not fit under the other categories.
The participants presented eleven case studies from
the Pacific Island countries and three by Australia. They illustrated environmental problems, prosecution or other proceedings in four environmental fact situations. Presentations were followed by informed
discussions, clarifications as well as sharing of experiences among countries in handling similar cases. Not all the cases resulted in prosecution or other types of litigation. Some prosecutions were
unsuccessful or not pursued due to unclear statutory provisions, including definitions, multiplicity of laws and overlapping or conflicting departmental mandates and jurisdictions, government's interest in
the enterprise concerned, and inability to analyse or identify samples and specimens. Legal action was difficult because of unclear lines of responsibility, and insufficient evidence. The modest penalties
available were another reason for not using the criminal prosecution route. One prosecution ended in a guilty plea but the fine imposed was very small in relation to the maximum amount provided by law.
Another prosecution was dismissed mainly because of poor handling of evidence. Prosecutions were also hindered by conflicts with customary use of resources by communities. Enforcement could deprive people of
their source of livelihood. A general lack of alternative administrative or civil law options to deal with such incidents was identified.
Two mock trials were held during
the workshop. The first case involved illegal importation of hazardous waste; the second involved illegal hunting and killing of protected wildlife/ CITES contravention. Representatives from all countries
were thus involved in the mock trials. The Counsels for both prosecution and defence had difficulties with inadequacies in evidence caused by lack of technical facilities to analyse samples and to identify
specimens locally. They had to call in external expertise. Problems with unclear and ambiguous legal provisions were also discovered. Despite these problems, the prosecutors assisted by co-counsel and the
defence attorneys mounted strong arguments on behalf of their clients.
Illegal Importation of Toxic Waste
A shipment of 200 barrels of oil originating from California by a company
called "Recycling Merchants Ltd." was imported to Samoa by a local company called Popo Imports Ltd. The shipment was carried by "Western Star" sailing under a flag of convenience. The oil was described and
labelled as "recyclable waste" but closer examination showed that it was waste oil, destined for burning. The director of the local company, Fred
Popo, received a substantial payment for handling this
shipment. Most of the oil had been mixed with PCBs. The content of the barrels exceeded acceptable safety levels. Such shipments are banned under the Waigani Convention. Unaware of the true nature of the
shipments, the Samoan authorities allowed the importation. Storage space was inadequate and some 20 barrels were left outside the warehouse. There was a fire in the warehouse and toxic fumes covered an area
of 5 miles circumference causing serious discomfort to many residents and also seriously injuring firemen who tried to put out the fire. Popo Ltd turned out to be a shell company and the owner fled to Tonga.
The vessel had departed for Fiji to discharge other cargo. The barrels left outside were unharmed and the investigators collected samples for testing. Air emission samples taken during the fire were also
submitted for testing. Fred Popo was extradited from Fiji and appeared in court.
Popo, as Managing Director and owner of Popo Ltd., was charged of a) illegally importing toxic waste and
b) providing false declaration to the Samoan authorities. It was further argued that - as an experienced handling agent of oily liquids and based on the very substantial payment received ? he was aware that
he was handling toxic waste and not "recyclable waste". The defence argued that the accused had acted in good faith and that the mislabelling and wrongful declaration should be blamed on the Recycling
Merchants Ltd. The verdict was non-guilty because it was not possible to prove that the managing director had intentionally imported toxic waste or provided false information to the authorities. Since the
vessel had departed and the exporting company was based overseas no action was taken against them.
Illegal Hunting and Killing of Protected Wildlife/ CITES Contraventions
participants at a regional workshop held in Apia, Samoa were invited to a function hosted by a Cabinet Minister (Henry
Pusi). Local dignitaries and official representatives also attended the function. On the
invitation it was stated that a barbecue of some 50 birds would take place. One of the visitors, who was a wildlife inspector in one of the neighbouring Pacific Island countries, suspected that the bird he
ate was an endangered type and put the partially eaten bird in his pocket. The next morning he visited the Samoan Division of Environment and Conservation and was told that the sample "was most probably a
wild pigeon". Wild pigeons are a protected species. The sample was stored in a freezer. The local DEC staff informed the police and a charge was promptly laid. The police conducted a search of the Minister's
residence and were able to identify from several other portions left from the barbecue that they were wild pigeons and also a flying fox. The flying fox is a partially protected species., the person who was
identified as having caught the birds, John Pea, stated that: "the Minister asked me to get some birds from the bush for a traditional Samoan feast and so I did". The Minister in a separate cross-examination
claimed that: "I never told him to hunt protected species".
Charges were laid against John Pea on the ground that he had committed an offence of killing protected species. It was also
considered to charge the Cabinet Minister but no reliable evidence was found that he had incited the killing of endangered species as such. The actual deeds were not contested, but the defence argued that
the wild animals found in the freezer were not killed by the accused. Concerns were also expressed over the way the first sample was handled and the expertise of the testing facility and its staff. The
evidence proved beyond all reasonable doubt that John Pea had with full intent killed protected species. He was therefore found guilty and sentenced to pay a fine.
adoption of a set of recommendations and the presentation of attendance certificates marked the Workshop conclusion. Closing speeches were delivered by Mr. Bernard Moutou on behalf of
SPREP, Mr. Kosimiti
Latu for Commonwealth Secretariat and Ms. Anna Alvazzi del Frate for UNICRI. The organisers agreed to explore follow-up activities based on the Workshop recommendations. In particular, the creation of a
Regional Network of Environmental Law Enforcement Officials, the publication of the Workshop proceedings and further distribution of the CD will follow.
The workshop on its conclusion put forward the following recommendations:
- In order to foster greater national co-operation in the area of environmental management and sustainable development, relevant state agencies should collaborate in improving the enforcement and
implementation of national regulations and laws, as well as regional and international treaties. E.g. by establishing a focal point to co-ordinate activities.
- The workshop recommends the establishment of a Regional Network of Environmental Law Enforcement Officials to facilitate exchange of information and experiences. The workshop request SPREP to take
the leading role in the co-ordination of the establishment of the Network.
- Resources and means should be identified for a regular exchange of information and documentation through the Network, including making available amendments to conventions, protocols and annexes,
information on international meetings, framework legislation, precedent cases and training manuals. The workshop recommends distribution of the CD on "Criminal Law and its Administration in
International Environmental Conventions" developed by UNICRI to other Pacific island countries. UNICRI and SPREP may assist in the provision of these resources.
- The enhancement of capacity building in compliance and enforcement of domestic environmental laws and regional and international treaties and protocols should be furthered through training, technical
co-operation and strengthening of human resources and infrastructures. In particular, the workshop recommends to undertake judicial training. Pacific island countries in co-operation with relevant
international and regional organisations should identify the necessary resources to fully respond to the commitments of international legal instruments.
- The workshop acknowledges the importance of public awareness campaigns, public participation in decision making and the establishment of conservation areas governed by local communities, with outside
assistance if needed. This approach may often provide innovative solutions to the inherent contradictions between customary and other laws.
- The workshop recommends strengthening of in-country capacity and establishment of regional laboratory and testing facilities and the provision of forensic expert assistance for toxic substances and
hazardous wastes and DNA-testing of endangered species. Pacific island countries in co-operation with relevant international and regional organisations and tertiary institutions should identify the
necessary resources to this respect.
- The workshop recommends that Pacific island countries which are parties to the MARPOL convention (1973/78) should consider the adoption and provision of national reception facilities to the extent
- The workshop recommends the establishment of legally enforceable mechanisms to control, monitor and ensure safety in relation to the shipment of nuclear wastes through the Pacific region.
- The workshop requests UNICRI to undertake research, as a matter of urgency, on the scope and nature of trafficking in endangered species, and illegal dumping, shipment and trafficking in hazardous
wastes with a particular focus on the involvement of criminal
organisations, with the aim of exploring crime types and patterns, characteristics of the offenders, countries affected by the crimes and
identifying trafficking routes. Relevant legislation and its enforcement should be examined in view of identifying best practices for the elaboration of guidelines for improving international
co-operation. The project will be undertaken in collaboration with relevant international and regional
- The workshop requests SPREP to raise with Forum Secretariat, for its consideration during the next Forum Meeting, issues concerning trade in endangered species, such as trafficking in coral, shells
and marine life, and in particular co-operation with non-party States to the CITES- convention. Participants recommended SPREP to address the above issues in their environmental Agenda prepared for
the Forum Meeting.
- The workshop recommends that
SPREP, in collaboration with regional tertiary institutions and legal offices, explore the possibility to collect and make available environment Acts and Bills, and
environmental case law for the Pacific.
- The workshop acknowledges the importance of resources available to Non-governmental organisations and seeks their assistance in this regard by consultations, access to documents and co-operation in
compliance and enforcement in regard to environmental offences.
- The workshop recommends that Pacific island countries (non-parties) explore their participation in negotiations leading to modification, signing, ratification and implementation of International and
Regional Conventions, protocols, treaties, in particular the Rarotonga Convention, Waigani Convention, Climate Change Convention, Convention against International Trade in Endangered Species,
Biodiversity convention, as well as marine related conventions.
- The workshop recommends that ways of extending sanctions and remedies available against offenders should be explored in the Pacific island jurisdictions, such as objective responsibility, corporate
and director's liability, relaxed and reverse burden of proof and a spectrum of administrative, civil and criminal sanctions and remedies.
- The workshop urges the implementation of the recommendations of the UN Special Session of the General Assembly of 1997 that assistance by international donor agencies and governments of developed
countries be increased in order to enable developing countries, especially small island developing countries in the South Pacific, to meet the 1994 Barbados Programme of Action.
- The participants recommend to their Governments to take up the issue of effective enforcement of environmental conventions at the next Forum Meeting in August 1998 and to the SPREP Meeting in
- UNICRI is requested to bring the workshop recommendations to the attention of the 8th Session of the United Nations Commission on Crime Prevention and Criminal Justice in April 1999.
Apia 26 June 1998
INTRODUCTION AND OVERVIEW OF THE TOPIC
Official opening of the workshop
Commonwealth Secretariat, SPREP, UNICRI and
The Honourable Minister of Lands, Survey and Environment, Samoa.
UN Initiatives in Relation to Crimes against the Environment.
Anna Alvazzi del Frate, UNICRI
Background and Objectives of the Workshop.
Soyland, Project Consultant UNICRI
Regional Overview and Main Findings from National Reports.
Peteru, Regional Consultant to the Workshop
Development in International Treaties and Protocols to Protect the Environment.
Mohan Prabhu, International Consultant to the workshop
Regional Co-operation in Enforcement of Environmental Conventions.
International Convention for Prevention of Pollution from Ships
Kosimiti Latu, Commonwealth Secretariat
A Critical Review of the Rarotonga Convention.
Andie Fong Toy, Forum Secretariat
CASE STUDIES FROM 11 PACIFIC ISLAND COUNTRIES
Introduced and chaired by
Peteru, Regional Consultant to the Workshop.
Discussant: Mohan Prabhu, International Consultant to the workshop
Case studies I
Case studies II
Case studies III
Case studies IV
Discussion / Rounding up of case studies
LEGISLATION FOR THE PACIFIC
Environmental Litigation in Asia and Australia.
Clare Cory, SPREP
Port State and Flag State Enforcement.
Kosimiti Latu Commonwealth Secretariat
EXAMPLES OF TOOLS AND RESOURCES FOR TRAINING AND INVESTIGATION
Environmental Tools and Resources on Internet.
Enforcement of Wildlife Protection in Australia.
Carey Robinson, Environment Australia
Illegal Trade in Endangered Species.
Video from the Endangered Species Project (NGO).
NEW APPROACHES AND REGIONAL CO-OPERATION
Mock trial I Dumping of Hazardous Waste
Mock trial II "Bird Barbecue" case
Capacity Building, Compliance and Enforcement of Environmental Law.
An environmental act for the Pacific.
Peteru, regional consultant to the Workshop
Compliance and Enforcement Mechanism's under the Resource
Management Act 1991.
Tim McBride, University of Auckland New Zealand
The International Law of Shipments of Ultrahazardous Radioactive Materials: Strategies and Options to Protect the
Duncan Currie, Greenpeace International
CONCLUSIONS AND RECOMMENDATIONS FOR FOLLOW-UP ACTION
Further follow-up and recommendations
LIST OF PARTICIPANTS
Ms. Carey Robinson
Deputy Director, Wildlife Protection
Environment Australia, GPO Box 636
CANBERRA ACT 2601, Australia
Telephone: (612) 6250 0343
Fax: (612) 6250 0704
Mr. Peter W. Graham
Crown Counsel, Crown Law Office
PO Box 494
RAROTONGA, Cook Islands
Telephone: (682) 29 337
Fax: (682) 20 839
Mr. John McFadzien
Law Drafting Cons. Crown Law Office
PO Box 494
RAROTONGA, Cook Islands
Telephone: (682) 29 337
Fax: (682) 20 839
Mr. Kamaua Tirae
Police Superintendent Kiribati Police Force
PO Box 497
Betio, TARAWA, Kiribati
Telephone: (686) 26 187
Fax: (686) 26370
Mr. Kautu Temakei
EIA Officer, Environment Unit
Env. & Social Development.
PO Box 234 TARAWA, Kiribati
Telephone: (686) 28 593
Fax: (686) 28 334
Mr. Andrew Pitcher
Senior Project Officer II, Environment Unit
Dep. of Island, Development and Industry
Government Offices, Yaren District, Nauru
Telephone: (674) 444 3181
Fax: (674) 444 3791
Ms. Christine Stewart, Legislative Counsel
Government Offices, Yaren District, Nauru
Telephone: (674) 444 3831
Fax: (674) 444 3831
Mr. Tim McBride
Senior Lecturer in Law, Faculty of Law
The University of Auckland
Private Bag 92019
AUCKLAND; New Zealand
Telephone: (649) 373 7599
Fax: (649) 373 7473
Mr. Crossley Tatui
Department of Community Affairs
Telephone: (683) 4019
Fax: (683) 4391
Mr. Togia Sioneholo
Secretary for Justice
Department of Justice, Lands and Survey
PO Box 75,
Telephone: (683) 1127
Fax: (683) 4231
Papua New Guinea
Mr. Colin Makail
Acting Senior Legal Officer
Department of Attorney General,
PO Box 591
NCD, Papua New Guinea
Telephone: (675) 301 2918
Fax: (675) 325 2010
Ms. Phoebe Kibikibi
Dept. f Environment & Conservation
PO Box 6601
NCD, Papua New Guinea
Telephone: (675) 301 1611
Fax: (675) 301 1691
Mr. Laavasa Malua
Senior Environmental. Planning Officer
Department of Lands and Environment
PO Private Mail Bag, APIA, Samoa
Telephone: (685) 22 481
Fax: (685) 23 176
Ms. Potoae Tanielu
Principal State Solicitor
Attorney Generals Office
PO Box 27, APIA, Samoa
Telephone: (685) 20 295
Fax: (685) 22 118
Ms. Andrea Williams
Department of Foreign Affairs
Government Building, APIA, Samoa
Mr. Johnson Airau
Min. of Forests, Environment and Cons.
PO Box G24, HONIARA, Solomon Islands
Telephone: (677) 22 944
Fax: (677) 21 245
Mr. Ronald Bei Talasasa
Deputy Director, Dir. of Publ. Pros. Office
PO Box 1216, HONIARA, Solomon Islands
Telephone: (677) 23 471
Fax: (677) 25 922
Mr. Taniela Tukia , Physical Planner
Min. of Lands, Survey and Natural Res.
PO Box 5 NUKU'ALOFA, Tonga
Telephone: (676) 23 611
Fax: (676) 23 216
Mr. Suka Mangisi
Assistant Crown Counsel
Crown Law Department
PO Box 85, NUKU'ALOFA, Tonga
Telephone: (678) 24 055
Fax: (678) 24 005
Mrs. Annie Homasi
Ass. Secretary, Dept. of Foreign Affairs
Office of the Prime Minister
Private Mail Bag, FUNAFUTI, Tuvalu
Telephone: (688) 20 839
Fax: (688) 20 843
Mr. Minute Taupo
First Secretary Tuvalu High Comm. Fiji
PO Box 14449, 16 Gorrie Street, SUVA, Fiji
Telephone: (679) 301 355
Fax: (679) 301 023
Mr. Arthur Victor Faerua
Assistant Legal Officer AG's Chambers
Private Mail Bag 048, PORT VILA, Vanuatu
Telephone: (678) 22 362
Fax: (678) 25 473
Mr. Ernest Bani
Head, Environment Unit
PMB 063, PORT VILA, Vanuatu
Telephone: (678) 25 302
Fax: (678) 23 565
Ms. Ana Rokomokoti
Legal Officer, Fiji Military Forces
PO Box 102 NABUA SUVA, Fiji
Telephone: (679) 385 222
Fax: (679) 382 289
Mr. Manasa Sovaki
Principal Environmental Officer
PO Box 2131
Government Building, SUVA, Fiji
Telephone: (679) 311 699
Fax: (679) 312 879
Ms. Andie Fong Toy
Int. Legal Adviser
Political and International Affairs Division
South Pacific Forum Secretariat
Private Mail Bag, SUVA, Fiji
Telephone: (679) 312 600
Fax: (679) 305554
Mr. Duncan Currie
7 Rangatira Tce., St Andrews Hill
Christchurch 8, New Zealand
Telephone: (64) (21) 632 335
Fax: (64) (21) 789 334
Mr. Clark Peteru, Associate, Peteru Law Firm
Telephone: (685) 21 083 (h
Fax: (685) 20 799 (w)
Mr. Mohan Prabhu, Q.C
Interstice Consulting Corp.
34 Whippoorwill Drive
Ottawa, Ontario, Canada K1J 8P2
Telephone: (1 613) 749 7293
Fax: (1 613) 749 1691
Mr. Kosi Latu
Legal and Constitutional Affairs Div.
Marlborough House, London, UK
Telephone: (44) 0171) 747 6414
Fax: (44) 0171) 747 6406
Mr. Bernard Moutou Legal Officer
Ms. Clare Cory, Environmental Lawyer
P O Box 240, APIA, Samoa
Telephone: (685) 21 929
Fax: (685)20 231
Ms. Anna Alvazzi del Frate
Research Officer UNICRI
Mr. Svend Soyland
Project Consultant, UNICRI