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Documentation Centre - PublicationsIssues and ReportsIssues & Reports No 12. CRIMINAL LAW AND ITS ADMINISTRATION IN INTERNATIONAL ENVIRONMENTAL CONVENTIONS Edited by INTRODUCTION 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:
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
incidents.
THE WORKSHOP 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
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 Since 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)
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) 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 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 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 (IAEA), 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, co-ordinated 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 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 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, organisational, 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
(RMA) 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 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 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 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 (http://www.unicri.it). Regional Overview and Main Findings from National Reports 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. CASE STUDIES 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. MOCK TRIALS 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. Fred 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 The 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. Conclusions The 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.
WORKSHOP RECOMMENDATIONS The workshop on its conclusion put forward the following recommendations:
Apia 26 June 1998
PROGRAMME MONDAY 22.6 INTRODUCTION AND OVERVIEW OF THE TOPIC Official opening of the workshop UN Initiatives in Relation to Crimes against the Environment. Background and Objectives of the Workshop.
Regional Overview and Main Findings from National Reports. Development in International Treaties and Protocols to Protect the Environment. Regional Co-operation in Enforcement of Environmental Conventions. The
International Convention for Prevention of Pollution from Ships
(MARPOL 73/78). A Critical Review of the Rarotonga Convention.
TUESDAY 23.6 CASE STUDIES FROM 11 PACIFIC ISLAND COUNTRIES Introduced and chaired by Discussant: Mohan Prabhu, International Consultant to the workshop Case studies I Case studies II Case studies III Case studies IV
WEDNESDAY 24.6 LEGISLATION FOR THE PACIFIC Environmental Litigation in Asia and Australia. Port State and Flag State Enforcement. EXAMPLES OF TOOLS AND RESOURCES FOR TRAINING AND INVESTIGATION Environmental Tools and Resources on Internet.
Enforcement of Wildlife Protection in Australia. Illegal Trade in Endangered Species.
THURSDAY 25.6 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. Compliance and Enforcement Mechanism's under the Resource
Management Act 1991. The International Law of Shipments of Ultrahazardous Radioactive Materials: Strategies and Options to Protect the
Environment.
FRIDAY 26.6 CONCLUSIONS AND RECOMMENDATIONS FOR FOLLOW-UP ACTION Further follow-up and recommendations
Australia Ms. Carey Robinson Cook Islands Mr. Peter W. Graham
Mr. John McFadzien Kiribati
Mr. Kamaua Tirae
Mr. Kautu Temakei Nauru Mr. Andrew Pitcher Ms. Christine Stewart, Legislative Counsel New Zealand Mr. Tim McBride Niue Mr. Crossley Tatui
Mr. Togia Sioneholo Papua New Guinea Mr. Colin Makail
Ms. Phoebe Kibikibi Samoa
Mr. Laavasa Malua
Ms. Potoae Tanielu Ms. Andrea Williams Solomon Islands Mr. Johnson Airau Mr. Ronald Bei Talasasa Tonga Mr. Taniela Tukia , Physical Planner Mr. Suka Mangisi Tuvalu Mrs. Annie Homasi Mr. Minute Taupo Vanuatu Mr. Arthur Victor Faerua Mr. Ernest Bani Fiji Ms. Ana Rokomokoti Mr. Manasa Sovaki Experts Ms. Andie Fong Toy Mr. Duncan Currie Mr. Clark Peteru, Associate, Peteru Law Firm Mr. Mohan Prabhu, Q.C Commonwealth Secretariat
Mr. Kosi Latu Mr. Bernard Moutou Legal Officer Ms. Clare Cory, Environmental Lawyer SPREP UNICRI Ms. Anna Alvazzi del Frate Mr. Svend Soyland
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