Byung-Sun Cho, Emergence of an International Environmental Criminal Law?, 19 UCLA J. ENVTL. L. & POL’Y 11 (2000)

This article explores possibilities for developing international environmental criminal law as an enforcement system, citing the jurisdictional challenge of territoriality that limits domestic criminal laws’ effectiveness, as well as the deficiency of environmental treaties, under which state parties must develop domestic legislation to prohibit, prevent, punish and/or prosecute international environmental crimes, possible only before national courts. Due to the discretion they enjoy under these treaties, state parties’ penal legislations vary in defining and proving environmental crimes, as well as whether to sanction corporations. To address the resulting difficulty of uniformly applying such treaties, Cho argues for harmonizing domestic environmental laws by standardizing punishable behavior. As a regional example, the Council of Europe’s Convention on the Protection of the Environment through Criminal Law harmonizes substantive criminal law, which Cho calls “a modern instrument for international cooperation in the area of transboundary environmental crimes.”

The article finally discusses attempts to codify international environmental crimes, including the International Law Commission’s Draft Articles on State Responsibility and the Draft Code on Crimes Against Peace and Security of Mankind. Cho concludes by envisaging the future of international environmental criminal law based on a model of international human rights law. He argues that “a fundamental human right to a healthy environment should be recognized when the protection of the environment is neglected by a state to such an extent that the individuals who live in the affected region are seriously oppressed.”