Air and Water Pollution as a Transboundary Environmental Crime

Abstract

This paper examines criminal liability for transboundary air and water pollution. There are significant obstacles in prosecuting a polluter situated across a national border. One reason is that the crime of pollution is often defined as a violation of state regulations, which are largely found in multiple administrative acts. The polluting activity of a polluter in his country can be tolerated according to the administrative law, but it may bring about harm to the extent that is not tolerated by the administrative law of the affected country. States have discretion to decide on criminal law penalties of acts of pollution that have a trans-border effect. There is, however, a general duty to prevent illegal activities of a transboundary nature, as described in international agreements, by enforcing appropriate legal mechanisms at the national level. There is also the duty to cooperate in addressing the results of illegal transboundary transgressions, and the duty to exchange information concerning such transgressions. It is argued that there is a need for an international agreement to apply criminal law mechanisms to address transboundary pollution.