I'm not a lawyer: I have so much difficulty in practice is not my field. But it's inevitable: look contributions. I start from the distinction between crimes and offenses.
The offense is defined by a law positive law through specific case and sanctioned. In Italy complains about the lack of declarations and sanctions, so that environmental crimes are not covered as such in the penal code.
Even the Italian Constitution protects the environment as such (not appointment) except in the form of landscape and cultural heritage.
CRIME, however, the object of which we dealing with here is a wider concept: it includes behaviors that may affect the rights of others, even if these rights are somewhat vague, because the behaviors that violate them are not sanctioned by a law or an international convention, and even if the finding of this case is neither accurate nor specific. For this is a very elastic concept, but there is no doubt that the concept of crime is part of a common feeling that is the basis of human society.
The two issues that the concept of crime are brought into play: such behavior can or should be considered crimes? And what are those whose rights are violated by conduct criminal? Matters get complicated when the soil properly social relationships between citizens, or between individuals or between communities, classes, peoples and nations will go to the environment, about the relationship between man and nature.
The so-called environmental crimes are considered as such because they produce damage to the public, that the national community or local community and as such are prosecuted ex officio. In Italy these crimes are many. Legambiente each year, with the cooperation of the NOCs, will present a report called Ecomafie that contains an anthology of environmental crime statistics recorded during the year. Course registration is limited to crimes identified, that is the subject of a complaint of criminal proceedings or convicted in one of three instances. Escape this report crimes that have not been identified and in some cases are the majority. The main areas of concern this survey, in order, waste management, illegal building, pollution of air, water and soil, hydrogeological, violence against animals.
Both the crime that the crime should be distinguished from environmental damage, which is a concept of economic order, although it may be caused, and for the most part it is, by conduct which prejudices the rights of others. The concept of environmental damage found the basis for a systematization of its liberal system - not by chance due to the Chicago school - in his essay The Problem of Social Cost of Ronald H. Coase, which leads to a question of law. A more precise allocation of property rights can call on market mechanisms to negotiate compensation for the damage inflicted or suffered.
In other words, the extent to which the ownership of a property is connected to the right to pollute other people's property or public goods? For example ilo car ownership includes the right to emit particulate matter from the exhaust? The possession of a home includes the right to emit smoke from the chimney? And vice versa il possesso di un’area include il diritto di non essere attraversata o investita dalle emissioni provenenti da sorgenti esterne? O il possesso di un campo include il diritto di non essere contaminati dal polline proveniente dagli OGM di un campo vicino? Se questioni come queste sono definite per legge, le eventuali esternalità possono essere fatte oggetto di una negoziazione: tra privati o tra i detentori di una proprietà privata e lo Stato, o una sua articolazione, in quanto titolari di una proprietà pubblica.
Nasce di qui la teoria e la pratica dei diritti di emissione, accolti in varie forme sia dai Protocolli di Kyoto che dalla normativa dell’UE: L’inquinamento è un reato, viola l’altrui law, only if it is not subject to negotiation. The building amnesty, which sound a series of crimes related to illegal construction, is only a special case of this approach.
In both cases, which is that both parties are private parties, is that one of them is a public, those involved in trading - and the prior definition of their property rights - are the citizens as holders Property Rights: Testing and undivided in one case, public and shared another.
If the protection of citizens' rights is taken by a public office, they may still constitute as a civil party in the event that there is found a violation of their right too specific.
But it is known as the law allows a civil action which may, through intermediaries, that is, through a guardian, not only children, the disabled, even in limited companies under private law and even civic associations or environmental organizations.
In the latter case, the question arises: who or what protects the interests of environmental organizations? Only citizens damaged, or even of the resource, good, hurt the environment? It 'clear that we'll be in a hole in the idea that the law only regulates relationships between people, that is, holders of rights may only be natural persons or legal entities.
A second passage seems to have been opened by the claims, formalized during the conference in Cochabamba in April of last year, and proposed to the COP16 summit in Cancun - both sponsored or promoted by the UN - to establish an International Criminal Court ON CRIMES AGAINST NATURE (not against nature). There is no legislation or national or international, or any agreement that defines these crimes and penalties.
Yet the court under this proposal has a precedent in the Nuremberg Tribunal, which has judged and condemned the Nazi criminals - individuals, not a state, although because of their role - for crimes such as genocide, which did not exist in any state law or under any international convention.
Only after the crime of genocide was introduced by the UN Convention on Human Rights (1948) and then in the legislation of many countries, including Italy (1967)
The proposal for an international tribunal environmental crimes reproduces this approach. For those who have cognizance of the consequences which already processes such as climate change caused by the abuse of fossil fuels or deforestation, or pollution of entire rivers have sull'assetto of an increasing number of geographical areas and the fate of the people who inhabit it, there is no doubt that if they are identified personal responsibility - and not just the general government - especially those who seek to impede the adoption of appropriate measures to reverse the current trends, these behaviors have all the features of a crime against humanity, although this review has not yet ratified by any law or agreement.
The establishment of an international tribunal on crimes against the environment, especially if endorsed and legitimized by the UN, might be the way to the assertion, at least in principle, a concept of crime that is now part of a common feeling for an increasing share of world population: particularly in the countries most vulnerable to the impacts of climate change and especially for the respective components of active citizenship and, in some cases, even to their representatives in government.
no coincidence that the proposal of an international tribunal on environmental crimes has been accompanied by the claim that the UN do its Declaration of Rights of Mother Earth.
And here we come to the last point. The rights of Mother Earth (Pachamama, language Quechua) have recently been included, and elected to general principles regulated directions in the recent establishment of two Latin American countries: Ecuador and Bolivia.
There is no doubt that this position translates a worldview marked by an interpenetration between man and nature's many traditional cultures, and predominantly rural community that is foreign to the thinking part of an urban dweller a Western country.
But it also said that the impending environmental disaster is attracting a growing number of people in a new sensibility and a desire to treat nature not as an entity da sottomettere e dominare, come era nel programma scientifico di Bacone, ma come un interlocutore capace in qualche modo di parlarci e di insegnarci qualcosa.
Un interlocutore che, nelle sua varie manifestazioni, è titolare di diritti ineludibili, come era stato annunciato alcuni decenni fa, per la prima volta, e sul solco di un ragionamento di pretta matrice occidentale, da Hans Jonas
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