Victims of Environmental Harm

Rights, Recognition and Redress Under National and International Law

Matthew Hall

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415677004
• eBook ISBN: 9781136185052
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

In recent years, the increasing focus on climate change and environmental degradation has prompted unprecedented attention being paid towards the criminal liability of individuals, organisations and even states for polluting activities. These developments have given rise to a new area of criminological study, often called 'green criminology'. Yet in all the theorising that has taken place in this area, there is still a marked absence of specific focus on those actually suffering harm as a result of environmental degradation. This book represents a unique attempt to substantively conceptualise and examine the place of such 'environmental victims' in criminal justice systems both nationally and internationally.

Grounded in a comparative approach and drawing on critical criminological arguments, this volume examines many of the areas traditionally considered by victimologists in relation to victims of environmental crime and, more widely, environmental harm. These include victims' rights, compensation, treatment by criminal justice systems and participation in that process. The book approaches the issue of 'environmental victimisation' from a 'social harms' perspective (as opposed to a 'criminal harms' one) thus problematising the definitions of environmental crime found within most jurisdictions.

Victims of Environmental Harm concludes by mapping out the contours of further research into a developing green victimology and how this agenda might inform criminal justice reform and policy making at national and global levels.This book will be of interest to researchers across a number of disciplines including criminology, international law, victimology, socio-legal studies and physical sciences as well as professionals involved in policy making processes.

1 Victims, environmental harm and international law

1.1 Introduction and goals of this book

In the twenty-first century, criminal victimization has become a major area of academic debate and policy movement across most of the developed world. One of the most significant consequences of this has been the light that has been shed on the needs and suffering of a multitude of victims who were previously all but invisible in the eyes of both criminal justice systems and the public at large. Such victims include those affected by domestic violence; child and other vulnerable victims; the friends and family of murder victims; and both male and female victims of rape.¹ Recognition of the problems faced by these distinct groups, both within and beyond criminal justice processes, has undoubtedly led to significant improvements in their treatment and support in many jurisdictions (Hall, 2010). Yet the victimological literature increasingly recognizes that other groups have to some extent been left behind the main vanguard of this ‘victims’ movement’. Among these still neglected groups are those victimized by actions of the state, corporate victims, the corporate and individual victims of white collar crime, and those harmed by the effects of environmental degradation perpetrated or brought about by individuals, corporations and states. It is with this last group, which I will refer to as ‘environmental victims’, that this volume is primarily concerned.²

In recent years, the enduring problem of environmental pollution and climate change³ has become an accepted reality for most scholars and practitioners working in both the physical and social sciences.⁴ The progress made in our understanding of the causes of environmental degradations of all kinds has presented a number of challenges for lawyers in particular, as questions are increasingly raised concerning the responsibility of individuals, corporations and states for environmental harms. Given the transboundary nature of the issue, international law has also been obliged to adapt itself rapidly to meet these new challenges, with the development of international environmental law.⁵ Surprisingly, however, there has been almost no attempt by commentators to combine an analysis of these developments in the domestic and international legal orders with some of the relatively well-established lines of critical criminological and victimological enquiry.

In light of the above observations, the present volume addresses the issue of environmental victimization: representing the first broad-scale attempt to apply ideas and concepts developed by victimologists over the last 30 years to this relatively new field. The book will also explore the question of who are the victims of such environmental harms and how such victimization is often unequally distributed among the world’s populations (see White, 2008a). The resulting analysis will be grounded in the author’s long-term interest in the legal position and rights of victims of crime and other social harms (Hall, 2009, 2010) coupled with the growing field of green criminology (Edwards et al., 1996) and the development of international environmental law.

In combining these areas of analysis, and thereby approaching the issue of environmental crime and environmental victimization from an interdisciplinary and comparative perspective, this volume will offer fresh insight into the important questions raised by such victimization. In particular, because international (environmental) law has tended to exclude consideration of the individual in favour of the state, the approach taken by this volume will offer a rare, unified consideration of both structure and agency as they relate to such matters. Given the growing interest from governments and international organizations in the harms caused by environmental pollution (spurred on by the developing evidence of the full impact of environmental degradation of all kinds), such an analysis is long overdue, and should prove an important contribution to the on-going policy debate now occurring in all jurisdictions on how they can adapt their justice systems (and other forms of conflict redress) to address these matters. To this end, this volume will present a theoretical framework for understanding and approaching the issue of environmental victimization through criminal (and other) justice mechanisms.

With the above aims in mind, the principal research questions to be addressed in this volume are these:

1. Can criminal justice play an effective role at the national and international levels in providing official recognition, support and redress for victims of environmental harm?

This necessitates two secondary questions:

• 2 What are the limitations to current provisions for official recognition, support and redress for victims of environmental harm⁶ through criminal justice, both within individual jurisdictions domestically and at the international level?
• 3 What does an interdisciplinary approach (encompassing socio-legal analysis, criminology, victimology and international law) teach us about how to effectively address these limitations?

The principal contention of this book is that closer collaboration between international legal scholars, criminologists interested in green issues generally, and those interested in victimization specifically, has the potential to markedly advance our understanding of a wide range of under-researched issues, including: the support needs of those affected by environmental harms; the state’s responsibility for the adverse impacts of climate change; and the mechanisms of redress and compensation available to those suffering the impacts of man-made environmental disasters at the national and international level.

To clarify the intended scope of this volume, two points need to be made from the outset. First, as mentioned above, this book is primarily concerned with the victims of man-made environmental disasters as opposed to the ‘casualties’ (Williams, 1996) of natural catastrophes. Of course, the distinction between what is ‘natural’ and what is ‘man-made’ may be at the heart of any dispute over the obligations of the state or other parties to provide compensation, restitution and support to victims. An analysis and comparison of the state’s responsibility in both cases forms an important component of Chapter 5. The second preliminary point is that this volume is chiefly concerned with the human victims of man-made environmental degradation. This is not however to deny or dismiss the wealth of arguments in the literature that such an anthropocentric approach ignores the complex relationship between humans, animals and the biosphere (Lynch and Stretesky, 2003), together with wider notions of ecological justice (White, 2008a), and these issues will not be excluded from my overall analysis. Indeed, White (2011) has also found it necessary to confine his most recent chapter dedicated to victims of environmental harm to human victims, as a way of situating his discussion within a conception of environmental rights (as an extension of human social rights), and also in the context of an argument⁷ that environmental victimization, like other forms of victimization, is an active social process. The present volume draws on a similar theoretical approach but, unlike White, factors in a more legalistic analysis of the position of environmental victims at the national and international levels. At the same time, however, I fully acknowledge (along with White) that a book of this length can inevitably offer discussion of only one part of a far wider problem.

Three further terms require explanation before proceeding further. First, as I have already noted, individuals or groups harmed by the effects of environmental degradation perpetrated or brought about by individuals, corporations and states will be referred to as ‘environmental victims’ in this volume. It is important to note that this term is deliberately wider than ‘victims of environmental crime’. It will be seen later in this chapter that the question of whether any given environmental victimization is officially criminalized within a given jurisdiction (or internationally) will be an important theme for this volume as a whole.

Second, throughout the course of this book I will often draw contrasts between both environmental victims and victims of environmental crime on the one hand with ‘traditional victims’ on the other. ‘Traditional victims’ here refers broadly to all classifications of victims of crime which have received extended attention by criminologists and victimologists, and by policy-makers, in most developed jurisdictions (see Goodey, 2005). These include those usually covered on crime surveys (victims of acquisitive and violent crime, the latter comprising both ‘public’ violence and domestic violence) and victims of sexual crimes. I am also including within this category secondary victims (‘survivors’) of homicide. The term is not used in a prescriptive sense, and will usually be used to draw comparisons between the availability of services, support and redress mechanisms for other kids of victims and the relative absence of such facilities for environmental victims.

Finally, this volume will use the term ‘environmental degradation’. This has been variously defined (see Lonergan, 1998), but is used here in the same sense as the UN’s International Strategy for Disaster Reduction (2007): ‘the reduction of the capacity of the environment to meet social and ecological objectives and needs’ (unpaginated). Note that this definition includes the effects of climate change more broadly. In light of the above definition of ‘environmental victims’, in practice this volume will often be discussing environmental degradation brought about by human actions or inactions, albeit of course the question of culpability will often be key to any associated legal debates.

The remainder of this chapter has two key purposes. First, it will set out the academic and conceptual background informing the above research questions. Second, the chapter will highlight at various points the potential contribution of an interdisciplinary approach (advocated by this volume) to these issues, both as a means of taking forward this established literature and, perhaps more importantly, of converting the theory into something practical that can be utilized by legal practitioners and policy-makers. It seems logical to begin this discussion with an introduction to a number of the key literatures that will be drawn upon, starting with the developing field of ‘green criminology’ and moving on to the growth of the victims’ movement; cultural victimology; ‘green victimology’; and the role of the state in environmental harms.

1.1.1 Green criminology?

‘Green criminology’ is defined by White (2008a) as ‘basically refer[ing] to the study of environmental harm, environmental laws and environmental regulation by criminologists’ (p. 8). Although the term ‘environmental criminology’ is sometimes used interchangeably with ‘green criminology’,⁸ the former label has more traditionally been associated with the study of crime patterns as they relate to particular locations. For this reason the terms ‘green criminology’ and ‘green victimology’ are generally employed throughout this volume. Indeed, on the question of terminology Ruggiero and South (2010) have argued:

[F]or all that it invites criticism as lacking precision and possibly being open to interpretation as aligned with a ‘green political party’ position, the term ‘Green Criminology’ has become the most familiar and suggestive term, and also serves well as the most comprehensive conceptual umbrella.

(p. 247)

As hinted by this extract, the use of such terminology is still contentious in some quarters. On this point, Lynch and Stretesky (2003) have refined the use of the term ‘green’ in this context to include environmentally damaging outcomes brought about by actions that are not necessarily illegal⁹ or in contravention of regulatory frameworks, or even at odds with public morals. As noted by Skin-nider (2011):

[M]any environmental disruptions are actually legal and take place with the consent of society. Classifying what is an environmental crime involves a complex balancing of communities’ interest in jobs and income with ecosystem maintenance, biodiversity and sustainability.

(p. 2)

Or, as Gibbs et al. (2010) have put it:

A grey area emerges for environmental risks that are not currently subject to regulation or criminal enforcement but where further understanding of the risk may lead stakeholders to argue for regulation and/or criminalization.

(p. 133)

Halsey (2004), in criticizing Lynch and Stretesky (2003), has argued that the label ‘green criminology’ is in fact too simplistic to adequately reflect the complexities of the issues at hand:

Indeed, I want to suggest that the term ‘green’ should be jettisoned from criminological discourse, primarily because it does not adequately capture the inter-subjective, inter-generational, or inter-ecosystemic costs which combine to produce scenarios of harm.

(p. 247)

For Lynch (1990) ‘green criminology’ was a product of the coming together of at least three movements. First, ‘ecofeminists’ (as Lynch understands this label) from the mid-1970s began arguing that the effects of environmental degradation fall disproportionately on women compared to men¹⁰ (Griffin, 1978; Nash, 1989). Lynch attributes the second foundation of green criminology to growing discussions of what has come to be known as ‘environmental racism’. This is the suggestion that the impact of environmental degradation falls disproportionately on some races (Collin, 1994). Finally, Lynch draws on what he calls ‘red/green alliances’, by which he means forms of ecological socialisms, the adherents of which sought to emphasize the inequalities of wealth and power in society which lead to increased environmental degradation while also ensuring it is the poor and socially excluded who bear the brunt of its negative effects (Pepper, 1993).

What is significant about Lynch’s conception of the growth of green criminology for the purposes of the present volume is that all three of his pillar...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Foreword
• Acknowledgements
• List of abbreviations
• 1 Victims, environmental harm and international law
• 2 Identifying and conceptualizing the victims of environmental harm
• 3 Environmental victims across jurisdictions: criminal law and state responsibility
• 4 Human rights, victim rights, environmental rights?
• 5 Responding to environmental victimization: compensation, restitution and redress
• 6 Mapping out a green victimology
• Notes
• References
• Index