Читать книгу Justicia climática y eficiencia procesal - Andrea Spada Jiménez - Страница 8

The structure of this essay is exposed in five chapters. The contents of the previous mentioned chapters present the definition of climate change, the crime responsibility system for the environment, the climate justice, the jurisdictional crime guardianship for the environment and as a conclusion the future proposal for crime jurisdictional systems regarding these subjects.

In order to approach the current investigation, we started determining which were the causes of the climate change. As for the first chapter we focused on conceptualize what the climate change is and offer its causes and consequences. In order to fulfill this task, we carried out a qualitative character research of the general and specific yearly reports provided by official resources of the “Grupo Intergubernamental de Expertos para el Cambio Climático” (Intergovernamental Group of Expert for the Climate Change), “La Organización Meteorológica Mundial” (World Wide Metheorology Organization), United Nations Program For the Climate Change, INTERPOL and United Nations for Food and Agriculture, among others. These reports are elaborated following strict qualitative and quantitative investigation techniques that provide empiric information from different areas around the world, performing a laudable labor, as they provide causes and impact in different scenarios of the social and economic affectation of the effect.

From the above mentioned investigations we got to the conclusion that natural causes have little influence on the increase of the planets temperature, and the main origin of the problem is the human activity, which causes the climate change. This mentioned activity may proceed from the lawful or non lawful activities. That is to say, that these causes may come from the life development of a market based economy that it is based on industrial production, or other lawful crimes that may downgrade the environment and they may also enable the commition of other criminal behavior.

Additionally, from the information provided and studied we could observe that most scientists alert that effective short term actions should be taken, taking into account that the lack of effective political policies against the climate change are leading us to a world global worming that has increased more than it was expected, and has generated mayor impact against all predictions. That is why, if we do not stop activities that promote the increasing of the planet temperature soon, human beings might be in danger of extinction.

No doubt, that assuming the previous statements we were lead to prepare the next chapter, chapter II, that we named “Legislative and para-legislative instruments regarding climate change”. This chapter approaches legislative policies adopted internationally and in Europe that appear to be relevant for climate change. We mean to provide a chronological tour through existing instruments and main aims that may raise regarding this subject, as well as how it is implemented and its international recognition.

Our tour starts at the Stokholm Conference in 1972, as the first instrument that gathered the fieat concerns regarding the environment degradation as a result of the decontrolled industrial development and in which the first basis for the international environment law is based. As a result of the above mentioned conference, we would like to highlight the creation of the problem first approach. Beneath the above mentioned conference, it is important to highlight the creation of the United Nation´s for the Environment program and the Intergovernmental Climate Change panel. The Conference of Rio in 1992 takes relevance because it was focalized in sustainable development achievement and to bring up to date the principles of the conference of 1972.

At the same time, we refer to Kyoto protocol, which raises different procedures that may be applied to promote of greenhouse gasses emission limit compliance, and Paris agreement, that it is promoted as the instrument in which governments take a compromise to decrease the emission of greenhouse effect gasses and make for sustainable development.

In the same chapter, in pursuit of a global vision of environment protection and the resilience to climate change of behalf of the European Union, we carry out an investigation regarding the existing administrative and legislative policy in terms of environment, where we establish the competence regulation framework, where the European Union´s Program stands out to face the climate change problems and where the existing normative tools are established to protect the environment, and they are classified according to its contents, regarding flora, fauna, atmosphere or hydrological resources.

As we dive into the investigation on the existing policy, we have reached to the conclusion that both in regional and international law, there is rich variety of instrumental norms regarding environment protection and the fight against climate change. However, international agreements depend on the discretion of a party to a contract, and that makes its implantation ineffective or invalid. The same thing happens when we refer limitation of the emission of the greenhouse effect gases, as limits are proved not only to be inefficient, but they have also promoted a development of a trading market for emission rights, where governments use to continue emitting gasses.

If we consider the European Union´s environment, even where it is a clear ground objective and there are stipulated plans to achieve a sustainable development that pretends to reach a circular economic system which is necessary to resist climate change, as the only solution is to restore the economic and productive system. There is still a long way to run, as the main problem is the absence of and effective implementation of the regulation by the governments. This lack of regulation comes from a limited policy regarding the administrative law, allowing the judicial power on the politician responsibility. As a result of the previous mentioned, the treatment is uneven and not coherent.

Beyond fostering, prevention and promotion instruments that have been already exposed in the chapter, when we investigate instruments in criminal matter, we could observe that criminal policy for the environment is not available in the international law for the European Union. It is available, but never applied in an effective way, as the European Commission has agreed to recognize.

Considering the previous context, and performing a wide biographic investigation of the regulation, we have considered to present crime redress systems for the environment depending on the context, armed conflict, when it is carried out by organized gangs, or when they take place in a pacific way.

The investigation has demonstrated that there is little improvement regarding this matter, and we reached to the conclusion that its guardianship belongs to the International Humanity law, but our of this context, there is no specific guarding on this matter, even when most of the crimes actually take place in a pacific way.

As the level of protection was limited, that immediately guide us to investigate the possible codification proposals or conventions. We found 3 proposals: recognition the ecocide international crime, the international codification of environmental crime law through the recognition of eco-crimes and the recognition of economic crime against humanity at an international level.

In this essay we pose to substantiate and develop three main proposals that would be the future instruments of crime guardship that are building a criminal policy for the environment. The conclusions that we may point out that they are all a result of the lack of crime guardianship of the environment that belongs to: an absence of international regulation to protect the environment, a non existing crime responsibility system for the environment protection in peaceful times, economic and political abuse of the governments, absent international jurisdictional system, the transnational characteristics of the criminal behavior, the considerable raise of crimes against the environment at an international level and the lack of interest on governments behalf to develop sustainable systems.

The actual configuration of actual crime policy leads us to investigate the international responsibility organization of crime and the existing European Union, and this point is presented in chapter II, which is named “Ineffective international crime responsibility system”. The name brings forward the conclusion raised through the investigation. The setting up exposed in the chapter, starts from the legal bases that sustains the crime responsibility system for the environment, through the approach of the different principles that adjust the system. We face a basic problem, as not all the principles are recognized as international law, and they are not embraced as binding instrument. Therefore, the environment law is recognized as a human right only legislated in national and regional texts, but still not as international law, even when it is planned to be.

Taking that as the basis, and considering that the responsible parties of climate change are natural persons, multinational corporations, and governments; we have exposed the international responsibility crime systems for each of them, and the international civil liability system exdelicto, making reference to the repair right in the international law of the European Union and the Alien Tort Claims Act. Our conclusion states that even when the environment is an international community interest, there is no responsibility system that could be adequate for these persons when they cause harm to the environment.

On the basis of the inefficient responsibility and legislative instrument crime system to care for the environment, get to the main issue, there is no climate justice, and at the same time or aim, to apply a crime framework in order to achieve justice for the environment framework and stop the climate change in the short run.

In chapter IV, we expose the climate justice foundation, that is born as a social movement, but it is strengthen in our society, through social and judicial actions to create for a procedural system that aims to be effective to fight against the economic and politic power of the multinational companies and on behalf of human rights.

Additionally, as a result of a deep investigation of the international Crime court as the only jurisdictional crime international system that belongs to universal jurisdiction, as this may be an appropriate jurisdictional system that may protect the international community interests to fight against impunity, in this chapter, we expose the justice access that we consider could be applied nowadays in favor of climate justice. At the same time, we suggest an overhaul of the universal justice as the most appropriate way to guard the environment in a short term.

In a close relationship with the exposed previously, in chapter V, we wanted to reflect the future procedural systems that on behalf of society and doctrine are available when applying a climate crime justice. For that purpose, we suggest, on one side, a proposal to create and international jurisdictional crime system, like Climate Justice Court and Environmental International Criminal Court.

According to the previously exposed, and that all the chapters are deeply related, we aim to demonstrate the state of action and substantiate the need for a climate justice, we decided to approach the problem as follows:

It is well known that globalization has been an advantage for the international society as a whole, mainly from the economic point of view, and these advantages have increased de development of the economic market, the cultural increase of societies and international cooperative systems which have been economically efficient. All this has turned the international community as a whole to progress.

Nevertheless, on the other side of globalization, the legislative and judicial systems progress has a very low pace, and it is even not taken into account when human rights are affected on behalf of the economic development. This framework is organized to favor the economic and politic goals, that governments and traditional multinational companies lead for, not taking into account that they may harm the human being livelihood because of the climate change.

It is important to have in mind that the climate change and human rights have an unbreakable relationship. The climate change affects the right to live, health, food, water, sanitation, children´s rights, peace, security and development. For these reasons, the solution to this problem cannot be focused only on the scientific level but also has to be part of the society and its legal framework.

The increase on the planet´s temperature has increased in the last years; and we have registered the highest temperatures in history since this data has been registered. The temperature of our atmosphere and seas is increasing, this has turned into droughts and floods that determine that fertile land, water and crops or beef cattle is affected. For this reason, desertification and need for food is a reality. We have reached to a point in which 1 per 9 people suffered from starvation in 2018.

Likewise, ice melting leads to the increase of the sea level and causes floods, change of tide, species migration, typhons, hurricanes and storms all over the planet.

All these emergency situations are the reason why I the middle 2019 6.7 million new relocations have taken place. It is estimated that in 2050 more than 150 million people will have to be relocated. It is really alarming.

Forests have been degraded and 6,5 million acres disappear every year. The loss of flora and fauna in the last 40 years has increased 58 per cent. Fires in 2029 have been terribly devastating and they have extended to Siberia and Alaska, where fires were not at all common. Fires in Amazonia, Brazil and Australia caused a loss of 7 million acres in each of them.

Our oceans are becoming more acid, which means that they absorb part of the gases from the greenhouse effect to the atmosphere. These gases are reused in our soil and end in seas. That is why, our seas are more acid and this causes the loss of many marine species like corals, mollusks and fish. These circumstances have taken place as a result of losing the balance to keep the right temperatures that the planet needs to survive.

The causes of the nature decline have anthropological origins. The massive and frenetic development that it is only focused on the economic enrichment and does not attend any precautionary actions that could protect the environment. Multinational corporations and governments are responsible for over exploitation of agriculture and beef cattle, deforestation, change in soil, contamination, waste trailing, illegal logging, unsustainable and illegal fishing, extraction activities, and traffic of species. Ultimately, economic greediness of governments and multinational corporations.

Human being activity is the main factor that leads to climate change and it is represented with activities that shows activities that are developed in legal and illegal ways, as it shows:

• Emission of greenhouse effect gases.

• Gas, carbon or oil combustion.

• Deforestation of tropical rainforests and change of use of land.

• Massive livestock farming.

• Use of nitrogen and fluoride gases in fertilization.

• Environmental crime (wildlife, forests, fishing, or contamination).

Meanwhile, we could claim that the causes are immersed in the development of the economic activities and social life of humans, to fulfill their needs of production and consuming as a result of exploitation of natural resources with economic purposes. However, the planet is being destructed and it is seen as evolution.

Still, we should not see forest clearance without taking into account that a forest is the habitat of a wide variety of flora and fauna, and that its life depends on those forests. We should not perform mining extraction or oil exploitation in protected or non protected areas without taking into account the environment. Waste management cannot be done in one state or another, trawl fishing harms the sea bed or over consuming food that it is not necessary because it spoils the ecosystem. We should not enable food production that only reaches superficial standards to consume if it is not necessary on expense of destroying ecosystems. We should not pour careless waste to the sea or practice illegal hunting, trafficking with wild animals, massive and illegal fishing.

Development means to carrying out productive activities with techniques that are environmentally respectful, in order to achieve a better life quality and makes possible the development of a circular economy system that enables to keep a balance between the economic and productive activities of the human beings and the protection of natural resources, as we depend on them.

From this premise on, we have to have in mind that the determining factors that enable this particular human activities which represents an obstacle when we want to develop a viable development, destroying the environment and rebound on climate change are varied. Taking into account PNUMA and GRID-Arendal we understand that the main factors that cause environmental crime are established as follows:

1. Corruption in national and local scope.

2. Absence of national legislation.

3. Absence of efficient methods that can guarantee to comply with national and international regulations related to environment.

4. National and international demand of criminal offence products which may be flora, fauna or natural resources like wood or waste.

5. National and local existing conflicts. Conflictos existentes a nivel nacional y local.

6. National and international crime organizations.

Also, we should have in mind that IPCC agrees that in order to achieve a sustainable development and to keep temperature at 1,5C, which is clue to reinforce the international cooperation it is clue to make emphasis on the need to strengthen local communities, civil society, the private sector and national and local governments.

This validation, concludes that the main cause for environmental crime offence is the absence of a specific and judicial responsibility organization that would be efficient nationally and internationally and would enable to fight against these activities.

The main reason for the absence lies on the lack of willingness on behalf of political leaders that avoid appraisal this type of activity, as they enable economic public and private earnings and they tend to reach commercial and political agreements. In order to reach these controvert agreements hetero- compositive and auto- compositive approaches have been created, but they deal with inversion or commerce without evaluating environmental harm.

The actual livelihood of human being is what it is at stake but governments do not take that into account. They have already proved their disability to protect natural resources, or to see beyond economic consequences of their actions. However, as the Human Rights Compete has already declared in 20182 environment degradation and climate change and non sustainable development are one of the most important and serious hazards for the current generations, as well as for the ones to come for them to enjoy their right to live”. That is why, we understand that a solution for this problem must be found.

Considering the above mentioned, it is transcendental to create a pleading system that proves to be effective and shows guarantee of prevention, retribution and repair. Its main goal should be to stop climate change from happening, as we can observe that its main impact goes beyond national borders and build a social, economic and environmental impact, and affects human rights. International legislation does not provide any specific guardianship system in order to protect the environment, unless the international auto-compositive for environmental disputes resolution which judicial supervision takes optional basis.

Ultimately, without a binding legislation and without government cooperation, the only solution would be to fight against climate change with pleading and judicial weapons within reach, through universal jurisdiction.

It is important to mention that, fortunately, there is a growing tide both in society and in legal doctrine that tends to make people responsible for omission and active actions in favor of climate change. To this effect, human actions that deeply undermine the environment in a superior and special category, as ecocide crime and; on the other side, there is a track that considers the need for recognition of international economic crime, which include the ones that undermine the environment with an economic aim.

With the enforcement of a universal jurisdiction, not only that we could take action against the lawlessness of the crimes against the environment, but vulnerable human rights with polluted activities. However, it may be applied in a short amount of time, as it already exists, and it would have a deterrent effect that it is necessary to fight against climate change. We have to take into account, that most governments collect responsibility for the juridical person. In other words, It would be a procedural instrument that may be applied to get claimed climate justice.