Volume 7: Issue 2 (2011)
Sébastien Jodoin and Yolanda Saito
Abstract: The existing approach of states to the global objective of sustainable development evinces a clear failure to address acts and conduct that are unsustainable in fundamental ways. Populations around the world are experiencing the contamination of their freshwater sources and critical ecosystems, the embezzlement of state resources, the forced labour of children and women, and the discriminatory denial of access to food, shelter, medical care, education, and cultural freedoms without adequate legal recourse. This article argues that serious violations of the International Covenant of Economic, Social, and Cultural Rights and severe environmental damage can strike at the very foundations of the economic, social and environmental pillars of sustainable development. It outlines the legal foundations and possible legal pathways of a new crime under international law aimed at acts and conduct that have severe consequences on the long-term health, safety and means of survival of any identifiable group or collectivity of humans. Crimes against future generations recognizes the power of individual criminal liability to fill the current governance gap that provides the permissive environment for transnational corporations and states to deny populations the basic living and environmental conditions to take first steps towards their own sustainable development.
Frédéric Mégret
Abstract: Jodoin and Saito’s proposals for Offences Against Future Generations is an interesting prospective exercise and a welcome effort to work on the intersection of international criminal law with environmental, economic and social issues. However, the way in which the notion is constructed is somewhat misleading in that the idea of offences against future generations is really a shorthand for grave environmental, economic or social crimes occurring today that happen to have potentially long term impacts. As such it is not clear, for example, why the proposal could not (except for tactical rather than principled reasons) be subsumed under an extended understanding of the notion of crimes against humanity. In other words, the proposal does not take seriously the idea of crimes against future generations and in particular fails to incorporate much current thinking on duties towards such generations. The article proposes some thoughts on what taking the idea of crimes against future generations seriously might involve. At this stage, such an exercise certainly seems to create quite novel issues for criminal law, although none seem insurmountable as long as one circumscribes the idea of crimes against future generations to the most clear cut cases of deliberate harm to future interests.
Émilie Gaillard
Abstract: Evoking the notion of crimes against future generations is certainly an indication of the development of a new awareness regarding accountability for the future of human, other living species and the environment. This notion contributes to the ongoing contemporary paradigm change, which is not only specific to our times, but also necessary. As a reflection of this new international mindset, the project of formalizing crimes against future generations has the potential for novel and powerful transformations at the legal level. Relying on the ethical theories of transgenerational liability, it becomes possible to shed light on the notion of crimes against future generations. Certain theoretical precisions might become necessary within the context of this discussion. The recognition of a non-discrimination principle that transcends time, based on which the absence of temporal existence no longer results in an absence of rights or legal safeguards, may truly be considered an intellectual conversion. Thus, the implementation of crimes against future generations becomes possible by rendering more complex traditional legal concepts. Formulating crimes against future generations is also an impressive feat in that it upholds a principle of dignity of the future generations. Such a principle has the further potential of propelling forward the domain of human rights law by opening it to discussions of a transgenerational perspective. Finally, the notion of crimes against future generations also contributes to the discussion of how to integrate the protection of the future human condition into contemporary considerations. In addition to these promising elements, a few prospective warnings will also be presented.
Disclosure of Environmental Law Enforcement in Canada: Lessons from America
Meredith Cairns, Ceyda Turan and William Amos
Abstract: Publication of environmental enforcement information is an effective means of deterring potential offenders and allowing the public to make informed choices about the environmental risks to which they could be exposed. This paper critically assesses the federal government’s efforts to provide online public access to environmental enforcement information. While the federal-provincial divide is often pointed at as an explanation for the fragmented nature of environmental law in Canada, we contend that the exercise of political will by successive federal governments can create a holistic approach to reporting environmental enforcement information. An analysis of the enforcement reporting practices in the United States, also a federal state with no clear constitutional jurisdiction over the environment, illustrates the possibility and benefits of a centralized database on environmental enforcement data. By comparing Canada’s online enforcement information to what is available in the United States, we make recommendations as to how Canada can make improvements to its domestic system.
