PUBLIC LAW AND THE ENVIRONMENTAL CRISIS III
Panel formed with individual proposals.
In a deeply questionable, but hardly debated criminal policy, Colombian legislation continues to limit the opportunity in which the jurisdiction can be activated to punish and restore legal goods of constitutional relevance - like the integrity of the ecosystems and the public funds. As a consequence, the prosecution of these serious wrongdoings - that directly affect the live conditions of thousands and sometimes millions of people, is only possible during a certain period of time - after which, the wrongdoings are considered legally extinguished by the procedural institution of the prescription - and therefore, out of the reach of the justice administration. The application of these regulations, known in comparative and international law as “statutory limitations'', although reasonable in the sphere of private law, that arbitrates the interest of particulars - is unreasonable in the context of cases that involve the reestablishment of social expectations of greater collective relevance. The Environmental harms that have everlasting consequences, and the corruption that affects social programs, public infrastructure, and other State services needed by the taxpayers, should be excluded from the application of any type of statutory limitations that may restrict the criminal liability and promote impunity. As occurs with human rights violations, and according to international standards of justice - those responsible for these crimes, should be accountable and subject to punishment at any given time. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity signed in 1968, is the consequence of a long claim for normative measures concerned with the fight against impunity and the promotion of universal standards of justice, that came together with the transition of Europe to democracy. A notable case of this is France, where the law 64-1326 of 1964 declared that, in terms of The United Nations Resolution of February of the same year, the crimes against humanity were imprescriptible. With this approach, France made possible the trial against several notable war criminals like Touvier, Papón y Barbie. Ever since, and in the context of the transition from totalitarian regimes and the aftermath of non-international armed conflicts, the precedents of the Interamerican Court of Human Rights and the Apex Courts of Colombia, have favored the rights of the victims when interpreting the right to access justice. In this sense, they have ruled unequivocally that justice should be served at least on behalf of truth and reparation for the victims - regardless of the passing of time. However, and despite having recognized their link to human rights, this interpretation has not yet been extended to the crimes of corruption or those committed against the environment. This research, is aimed at proving that the existent interdependence between the environment, the public funds and the satisfaction of human rights, calls for the application of a control of conventionality, on the statutory limitations regarding crimes committed against the above mentioned international legal goods.
Human rights cases concerning the effects of climate change have recently begun to come before regional and international human rights bodies. At the European Court of Human Rights, three such applications are currently pending. In one of these cases, the Court raised Article 3 ECHR, the prohibition of torture and inhuman and degrading treatment. Exploring climate change from the perspective of ill-treatment could mean capturing not only physical harms, but also the climate crisis‘ psychological impacts. This means analysing how the Court, and human rights law more generally, captures experiences of anguish and suffering. In particular, this contribution will explore the issue of climate anxiety, i.e. the harm caused by worries about impending climate catastrophe, as a potential violation of Article 3. It will also consider how an experience of vulnerability can, under certain circumstances, violate that provision, and what this might mean in the climate context.
Climate issues are nurturing the shift from the environmental legal approach, based on conservation and restoration, towards resilience and responsiveness, establishing crucial principles even for the constitutional debate, with the ambition of providing suitable legal methodologies and/or tools to cope with anthropogenic climate change. From the aforementioned assumptions, the analysis aims to foster a critical approach to constitutional legal paradigms between environmental law and climate change law through four main grounds of investigation: i) international and supranational, ii) (comparative) constitutional, iii) domestic, iv) judiciary and jurisprudence. The conclusion suggests a comparison between the development of environmental law and the “new-born“ climate change law, arguing that a “flexible approach“ is the key-tool for legal systems that have to deal with legal responses to physical events, requiring the adaptation of constitutional schemes.
At a time when, more than ever, a decisive action to fight climate change is urgent, public law plays a fundamental role. Indeed, the awareness of the existence of a climate emergency and of the need for joint action to overcome it is now shared by almost the entire international community and has found expression in important international agreements that have followed one another with increasing frequency over the past fifty years. In this direction, the European Green Deal proposes revisions to the current regulatory framework on environmental and energy protection. The paper aims to analyse, within this framework, the proposal to extend the derogation regime to the prohibition of state aid, in order to highlight the importance of a pro-competitive approach to sustainability and the need for the European Union to adopt measures of more intense regulation of the market, even though these involve undoubtedly difficult political choices.
In 2001 Crutzen and Stoermer coined the term “Anthropocene“ to describe human activity as a geological force. For legal scholars the notion of the Anthropocene works as a device to make us aware of the negative effects of human driven activity to the earth. The implications of such effects are numerous, specially for criminal law and international criminal law. Until now, all protected legal interests have had as core the human being, however the Anthropocene poses the challenge to embrace the environment or the planet as a legal interest to protect in itself. This becomes relevant for international criminal law when conceptualizing the crime of ecocide. Additionally, the cross-boundary effects of environmental damage, challenge the rules of causation, where does the criminal act start and where does individual criminal responsibility begin? These challenges could lead to unify criminal law provisions at the domestic and international level in order to effectively protect the planet.