Raymond Michalowski & Kevin Bitten. Handbook of Transnational Crime & Justice. Editor: Philip Reichel. Sage Publication. 2005.
The problem of environmental crime is inherently transnational. Unlike most other harms, toxins travel freely from one country to another, on the wind, in surface and ground water, and through the movements of humans and animals. Other environmental threats such as species extinction, ozone depletion, and global climate change are likewise felt around the world, not just in their countries of origin. Despite their transnational character, most cross-border environmental harms are not defined as crimes or regulatory violations. Moreover, attempts to do so are frequently confounded by legal systems rooted in national sovereignty and, thus, ill suited to address transborder injuries.
The bounded nature of national legal systems introduces a significant ambiguity into the study of transnational environmental crime. From a juridical standpoint, only a small proportion of the environmental harms that occur across borders are subject to legal control, as either crimes or treaty violations. The release of a toxic substance in Country A that harms the health of people in Country B, for instance, falls outside legal control unless one of the following conditions applies. One, A and B are signatories to a treaty that would authorize the government or citizens of Country B to seek redress from responsible parties in Country A. Two, a treaty between A and B authorizes law enforcers in Country B to take action against responsible parties in Country A or requires legal authorities in Country A to prosecute their own citizens for causing harm in Country B. Three, the event falls under the jurisdiction of an international body such as the International Atomic Energy Agency or International Whaling Commission that can initiate enforcement actions against Country A or responsible parties within it. In reality, most transnational environmental harms fall outside these conditions.
The ambiguous juridical character of transnational environmental harms is further complicated by the power differentials associated with uneven patterns of national development. The corporations, governments, and consumption practices of highly developed nations are responsible for a disproportionately large share of environmental harm. By virtue of their economic and political power, however, highly developed countries— particularly the United States, the European Union, China, and Japan—enjoy substantial leverage in framing the international treaties that govern environmental harms. In addition, powerful transnational corporations and the governments of their home countries are frequently able to influence the formation of domestic environmental law in developing countries where these corporations will operate (Michalowski & Kramer, 1987).
Current international environmental law is a product of international geopolitics more than of straightforward concerns to minimize the harmful consequences of environmental hazards reaching from one nation to another. Thus, a serious consideration of transnational environmental crime must include a broader range of harms than those currently under direct legal control. For this reason, we use the term transnational environmental crime to mean any action that causes environmental harm outside its country of its origin, whether or not its victims or some other entity have been given legal standing to punish wrongdoers or seek redress for damages. This approach is comparable to that taken by those concerned with human rights violations in countries where the acts involved are not defined as crimes under the authority committing them. Both cases point to the need to make the political intricacies behind international law part of what we study rather than simply studying the operations of international law while ignoring the political forces that determine its content.
The Transborder Flow of Environmental Harm
The transnational dimensions of environmental crime are shaped by three interrelated mechanisms: (a) Transborder flows of toxic substances, (b) transborder flows of economic decisions, and (c) transborder projections of power, particularly war.
Transborder Flows of Toxic Substances
The transborder flow of toxic substances occurs when pollutants that originate within one nation-state spread to neighboring or distant countries through natural ecological processes such as the movement of streams, rivers, air currents, and living organisms or through deliberate transportation.
Most legal jurisdictions are closed systems, largely circumscribed by a nation’s borders. By contrast, ecosystems are open systems, governed by biological, chemical, and geological boundaries, not political ones. Environmental toxins spread throughout ecosystems, routinely exceeding the reach of closed legal systems. Rivers and streams contaminated with toxins cross national borders. The jet stream and other prevailing wind systems girdle the globe, spreading pollution from smokestacks and vehicles well beyond the countries in which they originate. Migratory animals bearing environmentally caused diseases cross national borders, damaging the biosphere as they move. Meanwhile, the destruction of wildlife habitat and species extinction in one nation (or in international waters) can have destructive environmental, economic, and aesthetic impacts on places far removed from the source of the problem.
Ecosystems are just that—systems. This means that each part is connected, however distantly, to every other part and damage to any part will eventually harm the whole. In recent years, the scientific recognition of worldwide environmental threats such as ozone depletion and global warming have made the systemic and transborder nature of environmental problems increasingly apparent. The political boundaries of national legal systems, however, pose significant barriers to controlling free-flowing toxins and other far-reaching forms of environmental damage.
A good example of the limits that nation-states place on transborder control of environmental hazards is found in the controversy created by the problem of acid rain in Canada. Throughout the 1970s and 1980s, water, soil, and plants in both the United States and Canada were showing increasing damage due to acid rain. The Canadian environment, however, was more sensitive to acid damage. Thus, Canada suffered more from U.S. smokestack emissions than the United States suffered from Canadian pollution. As much as 50% of the acid rain falling in Canada was a product of U.S. emissions, whereas only 15% to 25% of the acid rain falling in the United States was caused by Canadian emissions. Despite clear evidence that the U.S. failure to limit toxic emissions had a profound impact on the health of the Canadian environment, debate on the issue took place in the context of the dramatic differential in the political and economic power between these nations. Due to Canada’s limited ability to exert influence over its much more powerful neighbor to the south, 12 years passed before the U.S. government agreed to sign a watered-down treaty to control cross-border smokestack emissions. Eight of those 12 years were marked by deliberate foot-dragging on the part of the Reagan administration as it pursued its promise to reduce rather than increase the regulation of American corporations. The treaty that was eventually signed by the subsequent administration did not go beyond any existing controls over acid rain precursors. By this time, however, domestic air quality problems had led to increased control of emission in each nation, with some reduction in cross-border production of acid rain. That it took 12 years to produce a treaty that, in the end, gave Canada very little power to control acid rain precursor produced in the United States is characteristic of the geopolitical complexity of controlling cross-border flows of toxins (Cataldo, 1992).
Transborder Flows of Economic Decisions
Like environmental toxins, economic decisions that originate in one country can have devastating and often criminal consequences for the environment and people in another country. Since the late 1400s, the pursuit of economic growth has increasingly bound the world into a single global economic system (Gunder-Frank, 1978). For 500 years, powerful economic institutions from Europe—and later the United States—have pursued profit-making strategies that have often been detrimental to the well-being of the people and environments of less-developed nations, frequently doing so with the assistance of the military and political power of their home country.
The initial colonization of Africa, India, and the Western Hemisphere by England and Europe began a grand global flow of economic decisions across borders. From the 15th through the early 20th century, European colonization strategies based on direct political and military control ensured that the land and resources of subordinated peoples would be used to advance the economic interests of the colonizers. This transborder flow of economic decisions was not a gentle process. Over the centuries, unknown millions of people in less-developed regions were killed, enslaved, or had the environment on which they depended for their way of life destroyed to fulfill the economic desires of people in more powerful parts of the world.
The transborder flow of economic decisions did not cease with the end of formal colonization in the late 20th century. As nations withdrew or lost political and military control over former colonies, a new framework for economic domination emerged. Variously termed neocolonialism, neoliberalism, or globalization, these new strategies revolve around direct foreign investments by transnational corporations (TNCs). Backed by powerful financial institutions such as the World Bank, the International Monetary Fund, and the U.S. Overseas Investment Bank and protected by the political and military power of their home countries, the increasing penetration of TNCs into less-developed nations ensures that economic interests outside these subordinated countries will continue to shape economic development and resource usage within them, often with damaging environmental consequences.
Historically, TNCs have more often promoted the exploitation rather than the preservation and development of the human and biological environments of their “host” nations. As anthropologist John Bodley (1976) noted, when decisions are made by people who do not have to live with the consequences of these decisions, far less care is taken to minimize their destructive impact on the natural and the cultural environment. An ongoing example of the consequence of this can be found in the controversies surrounding the operations of Shell, Mobil, and other petroleum companies in the Niger Delta. The Niger Delta is one of the largest wetlands in the world, covering approximately 27,000 square miles. In 1956, Shell Petroleum discovered oil there, and in 1961 extensive oil fields were located off the coast of Nigeria by Mobil Corporation. From then until the present, efforts to extract this oil have resulted in significant damage to the delta’s sensitive ecosystem. Almost every aspect of the oil industry—drilling, transportation, the elimination of waste, the flaring off of natural gas—harms the environmental health of the Niger Delta. The burning of “waste” natural gas alone adds 526.6 billion standard cubic feet of pollutants into the atmosphere over the delta. Spilled oil and destruction of habitat to make room for oil production has led to a disappearance of the mud skippers, crabs, periwinkles, and shrimp that were formerly common in the delta’s waters (Okoji, 2000).
The people of the Niger Delta, the Ogoni, have seen their way of life devastated by the environmental catastrophe resulting from the oil wells. In 1995, Ken Saro-Wiwa, an environmental and human rights activist, Nobel Peace Prize Nominee, and 1995 recipient of the Goldman Environmental Prize, was executed by the military government of Nigeria for charges related to his activities as the founder and leader of the Movement for the Survival of the Ogoni People (MOSOP). MOSOP sought to force TNCs extracting petroleum from the delta to repair the extensive environmental damage they had done to the delta ecosystem, the traditional source of livelihood for the Ogoni people (Daniels, 2000).
The oil industry executives whose decisions led to the cumulative ecological destruction of the Niger River Delta do not depend on the waters and rainforest of the delta region for their livelihood or for the continuation of their Euro-American cultural practices. Nor does the environmental destruction of the Niger Delta have any obvious consequences for most stockholders who benefit annually from oil industry profits generated by Nigerian oil. Because oil revenues play an important part in financing the Nigerian government, and in keeping many Nigerian businesses solvent, local elites are willing to support military repression of the tribal peoples struggling to avoid “cultural death” at the hands of oil company policy. Similar conflicts between local needs and external economic interests are ongoing in the rainforests of South America, the mountains of Tibet, the Maharashtra state of India, and in many other locales where those who must live with the environmental consequences of foreign development decisions struggle to gain a measure of control over those decisions (Roy, 2001).
Transborder flows of economic decisions accelerated rapidly in the years after World War II. Consumer economies expanded dramatically in the developed world, and manufacturing corporations initially located in the United States, Britain, Europe, and Japan increasingly sought cheaper labor and new markets in less-developed nations. In the two decades between 1960 and 1980 alone, the revenue of TNCs grew tenfold, from 199billionto2,155 billion (Cavenaugh & Clairmonte, 1983). Overall, the combined revenues of the Fortune 500 companies have grown for 43 of the 49 years between 1954 and 2002, clear evidence of the continuing growth of TNCs (Harrington, 2002). A significant proportion of this growth resulted from increasing relocation of manufacturing facilities from developed nations, such as the United States, to less-developed ones such as Mexico, Guatemala, Malaysia, and Singapore. As early as 1975, over three fourths of all U.S. corporations with sales of $100 million had manufacturing facilities in other countries (Blake & Walters, 1976). By 2002, nearly all had overseas operations (Hertz, 2003).
As TNCs expanded their industrial operations in developing nations, many of the environmental dangers associated with industrial production were relocated from developed nations that were beginning to formulate environmental protection laws, to less-developed ones where the political leadership was unprepared, unwilling, or unable to address these new hazards. In some instances, it was this lack of environmental controls that made certain developing countries attractive sites for industrial relocation.
Corporate decision makers recognize that differences in the pollution control standards among nations can affect operating costs and profits, and this awareness plays a role in decisions to relocate industries to countries with less stringent environmental laws. Early recognition of this trend was signaled by President Carter’s chief trade negotiator, Robert Strauss, who warned in 1978 that there was an emerging “pattern of flight” as U.S. companies were being drawn toward developing nations with less costly pollution control laws. Another analyst of corporate relocation patterns noted that “hazard export is emerging as a driving force in new plant investment in many hazardous and polluting industries” (Castleman, 1978, p. 8). In some cases, entire industries involving highly toxic substances such as asbestos, arsenic, mercury, and benzene dyes were relocated to developing nations such as Korea, Mexico, Brazil, India, and Ireland to avoid the costs of meeting U.S. environmental regulations (Leonard & Duerksen, 1980).
This variability in environmental law is one of the key problems in understanding and controlling transnational environmental crime. In the 1980s, for instance, Mexican law allowed companies to emit more parts-per-million of arsenic or benzene into that country’s waters than did U.S. environmental law. From a juridical standpoint, an American company that took advantage of these less stringent regulations committed no environmental crime. From a substantive perspective, however, the release of these larger quantities of toxins were as harmful to Mexicans as they had been judged to be to Americans, even though they were now legal.
Transborder Projections of Power
In addition to transborder flows of economic decisions, environments are also harmed by transborder projections of power in the form of military force. This problem is endemic in a world system where nation-states continue to rely on military power to pursue economic and political goals beyond their borders. Both war and the preparation for war, whether offensive or defensive, pose serious threats to the health of ecosystems.
Military power plays an important role in magnifying the harms resulting from economic differentials among nation-states. Environmental harms resulting from disproportionate economic power are often compounded when that power imbalance is obtained or preserved through the use of military power, creating a kind of “double jeopardy” for the environments of less-powerful nations. Nation-states are not the only purveyors of armed violence. Revolutionaries and terrorists who lack nation-state authority to legitimize their violence have also caused environmental harm through the use of force. The environmental consequences, particularly air pollution, resulting from the September 11, 2001, attack on the World Trade Center were substantial (Nordgren, Goldstein, & Izeman, 2002). Nevertheless, nation-states remain the greatest military threat to the environment. With rare exceptions, non-state actors cannot match the resources, firepower, or global reach of powerful national militaries.
The scale of environmental harm resulting from violent projections of power, particularly state power, is enormous. According to the Science for Peace Institute at the University of Toronto, military actions account for an estimated 20% to 30% of all environmental degradation on the planet (Du Nann Winter, 1998). Part of this damage is the unintentional consequence of creating and using military hardware.
On a per-machine basis, military vehicles demand far more fossil fuels than do domestic ones. In only 1 hour, an F-16 fighter jet burns approximately 850 gallons of fuel, the equivalent of driving nine automobiles from Los Angeles to New York City. The M-1 A-1 Abrams Battle Tank, used prominently in the 2003 U.S. invasion of Iraq, consumes 19 gallons of fuel per mile— 150 times more fuel per mile than the average domestic automobile. Simply keeping this machinery supplied poses significant environmental risks. At the Ramstein air base in Germany, for instance, 300,000 gallons of jet fuel leaked into the aquifer that supplies the drinking water for the city of Frankfurt (Singer & Keating, 1999).
The production of military weaponry also involves the extensive use of toxic materials that are difficult to refine and use safely, including titanium, beryllium, germanium, and depleted uranium. One study of the consequences of reducing military production in Norway concluded that commercial industry was far less harmful to the environment than equivalent military production (Singer & Keating, 199, p. 330). One of the most significant environmental threats associated with military production has been the creation of nuclear arsenals. The production of nuclear weapons in the United States has been rife with violations of environmental regulations and accidental releases of radioactive material into the environment. A total of 423 atmospheric tests and about 1,400 underground tests of nuclear weapons worldwide resulted in widely dispersed releases of radioactive elements strontium-90, cesium-137, plutonium-329, and carbon-14 into the environment (Kauzlarich & Kramer, 1998; Leaning & McCally, 2000).
The production and testing of weapons, particularly nuclear ones, is not only hazardous to the environment, it is typically shrouded in secrecy. This concealment, sometimes even from other branches of government, shields these operations from public scrutiny, thereby increasing the likelihood of environmental violations in the absence of accountability or likelihood of detection.
Environmental damage does not occur only as a “side effect” of military projections of power. Warring nations have often used environmental damage as military strategy. The classic use of the environment as a weapon are “scorched earth” military campaigns, whether Sherman’s “march to the sea,” or the World War II destruction of 17% of Dutch farmland by Nazi forces through deliberate flooding by salt water (Du Nann Winter, 1998). In Vietnam, American forces used the chemical defoliant Agent Orange in an attempt to deny the North Vietnamese and Viet Cong cover and sustenance. As recently as 2003, areas that once held American bases of operation in Vietnam remained contaminated with dioxins from the spraying, and high levels of birth defects continued to be recorded among nearby populations. Intentional environmental damage is particularly likely in conflicts where one belligerent is markedly superior in its fighting power. In these “asymmetrical” wars, weaker powers are more likely to resort to using the environment as a weapon. During the 1992 Gulf War, Iraqi forces set fire to over 600 oil wells and deliberately spilled millions of barrels of oil directly into the Persian Gulf, an act that the conventionally arrayed forces could do little to prevent (Du Nann Winter, 1998, p. 418). During the 2003 U.S. invasion of Iraq, Iraqi forces fired oil-filled trenches to confuse coalition forces and aircraft by filling the air with toxic petroleum smoke.
Protecting natural ecosystems during war is particularly difficult because the treaties and accords between belligerents traditionally have been considered null and void at the outbreak of hostilities. Silja Vöneky (2000) has argued, however, that there is precedent under international law to support enforcement of environmental agreements and their accompanying sanctions even at times of war because environmental law exists for the good of the world community as a whole. Vöneky further argues that environmental law is comparable to treaties and accords governing human rights and humanitarian issues. Just as these apply, by design, during wartime, so should environmental agreements.
In addition to the case for applying peacetime environmental agreements during wartime, in the last decades of the 20th century several international laws specifically addressed the environmental conduct of warring parties. The first Protocol Additional to the Geneva Conventions, adopted in 1977, addressed the unlawful nature of environmental warfare.
Article 35, paragraph 3, states: “It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment” (quoted in Kiss, 2001, p. 225). The standard for violation of this passage is relatively high due to the use of the conjunctive “and,” requiring that all three conditions (widespread, long-term, and severe) be present before a violation can be charged. In contrast, the 1977 Convention on the Prohibition of Military or other Hostile use of Environmental Techniques (ENMOD), replaced and with or, thus requiring only one of the conditions to produce a violation. Developed in response to the use of defoliants in Vietnam, ENMOD was limited to “deliberate manipulation of ‘natural processes,’” limiting its scope. Under ENMOD, the firing of oil wells in Kuwait in 1992, for instance, could not be considered an international environmental crime because oil wells are not a “natural process” (Burhenne, 1997).
Turning Transborder Harms into Transnational Crimes
A social problem is a harmful condition that comes to be understood as both caused and correctable by human action. Social problems emerge when organized movements bring emergent problems to the attention of the public and political decision makers (Blumer, 1969). The movement of international environmental harms from barely recognized to political center stage to the basis for new laws is typically the result of the efforts of nongovernmental organizations, or NGOs. NGOs are nonprofit, value-based private organizations supported primarily through charitable donations and voluntary service. Typically, activists form NGOs around some issue in order to provide services and expertise in service of the NGO’s preferred outcomes. The central goal of most NGOs is to influence the formation of policy at national and international levels through compiling data, monitoring government activity, and mobilizing public and political advocacy for change (Yamin, 2001).
The role of NGOs in international environmental policy is clearly demonstrated by the struggle during the 1970s and 1980s to “save the whales.” The rapid decline of whale populations due to 19th- and 20th-century whaling practices was not a broadly recognized problem until groups such as Greenpeace brought it to public consciousness. Using a variety of high-profile tactics, they transformed an environmental harm with relatively little political significance into an international social problem and eventually into a worldwide moratorium on commercial whaling imposed by the International Whaling Commission (IWC) in 1982. In the face of extensive grassroots pressure, the IWC underwent a fundamental philosophical shift in its mission, from preserving the commercial whaling industry through conservation to protection of whales at the expense of the industry. NGOs represent a form of political influence that frequently seeks to circumvent or disrupt established power structures, much to the displeasure of those who benefit from status quo power arrangements. In this vein, the IWC’s whaling ban led some advocates of the whaling industry to complain that the IWC had been “hijacked” by environmental NGOs (von Zharen, 1999).
NGOs have been central to the environmental movement since its inception. Historically, businesses and governments have had little internal motivation to protect the environment. The logic of growth through profit maximization and economic competition means that corporations must continually search for the least costly ways to extract raw materials from the environment, transform them into finished products, and create expanding markets for their goods. Environmental protection typically increases the costs of production, distribution, and marketing and, thus, threatens profits—at least in the short run. It is cheaper to ignore oil spills than to clean them up, and cleaning up oil spills is cheaper than redesigning all the ships and pipelines that carry oil to ensure that spills are unlikely to occur. Similarly, it is cheaper to release pollutants such as sulfur dioxide and nitrous oxide into the air than it is to clean up smokestack and vehicle emission.
The incentive for corporations to be proactive in environmental protection is further reduced by the migratory ways of environmental hazards. Environmental toxins will often have significant effects outside the legal jurisdiction of their initial release. Varying standards for culpability and varying abilities for investigation across jurisdictions reduce the likelihood of transnational polluters being identified or, if identified, being prosecuted. Even when the source of a toxin can be determined, it is difficult and often impossible to determine the actual effect a specific toxin on the environment or public health. This is especially true where environmental damage results from multiple sources. The complexity of legal jurisdiction over transnational environmental harms means that corporations are often able to externalize the cost of these harms. Rather than requiring corporations to pay for environmental damage and human disease caused by their transborder pollution, in most cases the current legal environment permits them to pass these costs on to those whom they have harmed.
Because there are relatively few inherent incentives for profit-seeking institutions to protect the environment, and many incentives to externalize the costs of environmental damage, the development of international environmental protection laws has depended heavily on the actions of environmental NGOs. NGOs such as Greenpeace, Friends of the Earth, the Environmental Defense Fund, Physicians for Social Responsibility, Earth Council, the Rainforest Action Network, Women’s Environment and Development Organization, and thousands of other citizen action groups have played a crucial role in bringing the international dimensions of environmental protection to worldwide attention. In doing so, they have created an emerging structure of international environmental law.
International Environmental Frameworks
In the last half of the 20th century, a number of environmental issues emerged that highlighted both the global nature of many environmental problems and the need for international responses to them. Although some concern for global environmental problems existed prior to World War II, two events in 1946 played crucial roles in galvanizing movements for environmental protection at the international level.
The first was the detonation of atomic bombs over the cities of Hiroshima and Nagasaki in the final days of World War II. The second was the establishment of the United Nations. The radioactive fallout from the atomic attacks on Japan, along with continued nuclear testing in the United States, and later the Soviet Union, increased worldwide public awareness of how readily toxins released into the atmosphere could disperse around the globe. Fear of “radioactive fallout” became the most prominent international environmental issue of the early postwar years. Widespread fear of nuclear fallout led NGOs and many governments to begin working for international controls over atmospheric testing of nuclear weapons. Most of this activity was motivated by the threat posed by radioactive fallout for human health rather than by a concern for overall environmental protection. Nevertheless, the issues raised by the threat of nuclear weapons were a powerful catalyst for the eventual development of more broad-based movements for the protection of the global environment (Matthew & Gaulin, 2002).
The establishment of the United Nations near the end of World War II also played an important role in the movement for international environmental controls. The United Nations provided a forum toward which nations, scientists, and NGOs concerned about international environmental problems could direct their efforts. In August of 1963, the United Nations approved the multilateral Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water. This was not the first multilateral treaty dealing with environmental issues sponsored by the United Nations. There had been a few earlier environmental treaties, mostly addressing marine issues. The ban on atmospheric testing of nuclear weapons, however, represented a major step toward addressing the global dimension of environmental issues and in shaping the United Nations as a mechanism through which NGOs and other entities could begin to address these problems.
It was also the first formal treaty addressing the need to control what today are called “weapons of mass destruction” and recognizing that their use, even in a testing situation, represents a serious threat to the environment.
From the 1960s onward, the movement for international environmental protection grew substantially. The earliest environmental issues addressed by the United Nations were fairly specific in their focus. Atmospheric nuclear testing, protection of specific bodies of water such as the Mediterranean and the North Atlantic from oil spills, controlling overfishing in particular areas, and environmental protection of Antarctica were typical of the narrowly targeted treaties ratified by the United Nations from the late 1940s to the early 1970s. During the last quarter of the 20th century, the discussion of global environmental issues began to take on a different character. Increasing scientific documentation of global environmental problems, intensification of industrial damage to the ecosystems of both developed and developing nations, acceleration of the rate of species loss, and emerging demands from poorer nations for a more equitable distribution of the earth’s wealth led to the incorporation of many separate and specific environmental problems issues under the umbrella of three major issue areas: (1) protecting biodiversity, (2) global warming and climate change, and (3) sustainable development. By the 1990s, these three issue areas had come to dominate the debate over international environmental protection.
In addition to these three explicitly environmental foci, the overall goal of the United Nations to promote peaceful rather than military solutions to international disputes can be seen as having significant environmental impact by working to limit the environmental damage caused by war.
Biological diversity refers to the variability among and within species of plants, animals, microorganisms, and marine life and also the variability among entire ecosystems. Biodiversity is threatened whenever a network of living organisms, and the nonliving environment that sustains them as a functional unit, is altered in ways that lead to extinction of one or more life forms in that network.
In recent years, considerable energy has been directed by NGOs, governments, and businesses toward protecting biodiversity. The movement to protect biodiversity comes from a number of directions. One source is individuals and groups who believe that biodiversity is intrinsically valuable. From this perspective, strategies to protect biodiversity and the overall ecological well-being of the planet must take precedence over any benefits that humans might derive from altering its ecological makeup. This planet-first approach is sometimes referred to as deep ecology (Devall & Sessions, 1985; List, 1993; Manes, 1990). For many others, the reason to protect biodiversity is for its benefits to human populations. The importance of biodiversity for human life has been framed in a number of ways: (a) as necessary for the evolutionary processes that sustain human life; (b) as critical to preserving the way of life for indigenous peoples and communities that would be harmed by the extinction of species on which they depend; (c) as essential stock for future development of medicines, crops, and genetic engineering; and (d) as a critical component of the aesthetic and recreational value people derive from natural settings.
The most obvious example of human threats to biodiversity is the elimination of species of animals or fish from ecosystems through hunting, fishing, or destruction of habitat. Because ecosystems are systems, the consequences of these direct extinctions are far more damaging than the loss of a single species from that ecosystem. In the high desert of southwestern United States, for instance, the virtual elimination of the mountain lion, one of the only predators that controlled the population of porcupine, resulted in widespread damage to piñon trees whose bark happens to be a favorite porcupine food. As the trees are lost, so is habitat for many species of birds and nutrition for the many animals for whom piñon nuts is an important food source. Species extinction or damage to the species composition of an ecosystem also occurs in indirect ways. Dramatic changes or destruction of terrestrial or marine habitats through deforestation, damming of rivers, acidification of lakes and streams, or draining of wetlands can deprive a number of cohabiting species of sustaining environments. Similarly, the introduction of species of plants or animals that are not native to a given ecosystem can dramatically change species composition within an ecosystem by eliminating native plants or animals from that ecosystem. The introduction, for instance, of kudzu in Southeastern United States and the tamarisk tree, commonly known as the “salt cedar,” in Southwestern riparian environments has resulted in the disappearance or near disappearance of many native plants from those ecosystems.
Because the greatest current threats to biodiversity come from human activity, efforts to protect biodiversity must inevitably confront a complex web of social, economic, and political interests. The growing demand for more consumer goods, more land for crops and human settlement, more plastics and petrochemical products, more electricity, more fuel for vehicles, and more electronic devices and the increased desire of economic institutions for more profits derived from stimulating and meeting these consumer demands represent a growing threat to biodiversity. Thus, widespread acceptance of the general truth that we need to protect biodiversity often falters in the face of specific demands for the right to exploit the environment for human benefit. In the United States during the 1990s, for instance, neoconservative politicians mounted a powerful effort to weaken the Endangered Species Act on the grounds that protecting species such as birds and aquatic life by prohibiting or limiting exploitation of forests and wetlands was fundamentally wrongheaded because it put the needs of animals ahead of the needs of humans. A similar battle has been waged for years over the protection of rainforests in South America and elsewhere (Rehmke, 1991). Thus, the international interest in creating legal structures that would protect biodiversity on a global basis must address a complex of local interests, including those of developing nations to use their resources for economic growth.
Global Climate Change
Concern for global warming and climate change emerged in the 1970s as a highly controversial part of the international environmental debate. By the mid-1980s, however, climatological data increasingly confirmed that the earth’s temperature was rising. Scientific data and computer modeling also pointed toward increases in the proportion of greenhouse gases in the earth’s atmosphere as the most important human contribution to this warming trend. Greenhouse gases absorb higher levels of radiant energy than do other components of the atmosphere. Thus, as the proportion of greenhouse gases in the atmosphere increases so does planet temperature. Although natural biological processes can alter the level of greenhouse gases, evidence increasingly indicates that human activity is a significant contributor to the current trend in global warming. Activities such as the burning of fossil fuels and deforestation increase the levels of carbon dioxide, nitrous oxide, and methane in the atmosphere, and the introduction of chlorofluorocarbons (CFCs) from manufacturing, refrigeration, and aerosol sprays has the double impact of increasing the greenhouse gases near the earth and reducing the stratospheric ozone layer that serves to block a portion of the sun’s radiant energy from reaching the earth.
It has been estimated that the average surface temperature of the globe has increased between .6 and 1.3 degrees Fahrenheit over the last 100 years. Although these numbers appear small at first glance, computer models indicate that this increase is both larger and faster than any change in the earth’s temperature over the last 9,000 years (U.N. Convention on Biodiversity, 1992). A change of global temperature of this magnitude poses serious threats to ecosystems and human habitation. Rises in average sea levels due to increased melting of polar ice caps will lead to increased flooding of coastal communities and salinization of underground water supplies. Changes in patterns of rainfall and the moisture levels of soils will pose significant threats to agriculture. Entire ecosystems and the human communities that depend on them—particularly those based in subsistence agriculture—could be drastically and negatively affected if the current global warming trend continues.
The terms sustainable development, sustainable use, and sustainable livelihoods refer to strategies for production and consumption that would promote a dignified continuation of human life on the planet while simultaneously minimizing practices that degrade the environment, consume nonrenewable resources, and threaten ecosystems. The central proposition of sustainable development is that current production and consumption practices cannot continue indefinitely. From this perspective, the future well-being of humans and the other species that inhabit the planet depends on developing alternative systems for human survival that (a) use renewable energy sources, (b) do not require extensive transportation of people between work and home and of goods between producers and consumers, and (c) reduce overall levels of resource consumption while (d) equalizing disparities between rich and poor nations
The movement for sustainability promotes two controversial ideas. The first is that global environmental problems can be solved only by radical restructuring of how people live, work, and consume. The second is that achieving sustainability will require drastic reductions in the current levels of economic and political inequality between social groups and nations. Despite the wide gap between the ideals of sustainability and actual systems of production and practices of consumption, the concept of sustainability has become one of the most significant guiding principles of emerging efforts to create international legal structures for environmental protection at the international level.
Laws for Protecting the Global Environment
Creating and enforcing international law is a difficult process, particularly when dealing with environmental degradation. Nevertheless, a desire for predictable and nonviolent ways of conducting international relationships has led to the development of “rules and principles … dealing with [the] conduct of states and international organizations” (American Law Institute, 1986, p. 2). These rules and principles have served as the basis for a rudimentary framework for the management of transnational environmental crime.
International Agreements of Limited Scope
The primary mechanism for establishing transborder environmental controls takes the form of international treaties or accords. These agreements may be bilateral, multilateral, or global in scope.
Bilateral environmental accords are legal agreements between two neighboring nation-states that promise to undertake specified actions to reduce some transborder environmental problem. The problems most often addressed in this manner are the pollution of shared waters, the reduction of immediate transborder air pollution, and the protection of fishing grounds in common coastal waters. A typical example of a bilateral agreement is the United States-Canada Air Quality Accord of 1991. Through this accord, the governments of the United States and Canada agreed to achieve specified reductions in their respective emissions of sulfur dioxide and nitrous oxides from mobile and stationary sources, to share data about the sources of the atmospheric pollutants within their jurisdictions, and to regularly exchange information regarding emission levels, monitoring systems, and technologies for measuring and reducing the emission of pollutants. The Air Quality Accord also sets forth a system for settlement of disputes arising from implementation or nonimplementation of the various components of the treaty (Agreement, 1991).
Multilateral environmental accords are agreements among a group of nations seeking to alleviate some shared ecological problem. Like bilateral treaties, multilateral accords generally focus on a specific set of issues arising from some shared resource, most often water. Agreements such as the Berne (Rhine River) Accord of 1963, the Convention on the Protection of the Black Sea against Pollution, and the Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment are typical of multilateral accords. Each of these treaties requires nations bordering on particular bodies of water to reduce the pollutants discharged into them, and to take other specified actions to minimize future introduction of pollutants to the ecosystem in question.
Bilateral and multilateral treaties are the most common form of legal instrument for addressing transborder environmental problems. There are over 300 bi- and multilateral treaties dealing with issues of transborder water issues alone. The strength of bilateral and multilateral treaties and accords is that the nations entering into them frequently have a clear and immediate common interest in protecting some shared resource.
Global Environmental Law
Global environmental treaties and accords are agreements among nations to follow specific courses of action to protect some element of the planet’s overall environment. They are particularly difficult to negotiate because they tend to be far broader in scope than bi- and multilateral environmental treaties in three important ways.
First, global environmental accords typically address problems from system-wide and multidimensional perspectives. Protecting biodiversity, for instance, refers to reducing all threats to all species in all ecosystems rather than addressing the specific problems posed by one or two pollutants in a single ecosystem or threats to a particular species.
Second, to be truly “global,” these accords must be agreed to by a significant proportion of the nations of the world, which means that they must accommodate even more conflicting and competing sets of interests than do bilateral or multilateral treaties. The multilateral Berne Accord of 1963, for instance, required that five nations, France, Germany, Luxembourg, the Netherlands, and Switzerland, come to agreement. Although important differences exist between these nations, they also share many commonalities. All are developed European nations with high material standards of living, a common hemispheric history, and relatively similar cultures. Most important, they share an obvious common resource—the Rhine River. In contrast, global treaties must create a worldwide understanding of a problem and offer solutions to it that accommodate the interests of both developed and developing nations while incorporating understandings arising from what are often significantly different cultures and political systems.
Third, global accords typically address problems where cause and effect are often separated spatially, temporally, or distributionally. For instance, pollution or waste transported from one country to some other part of the globe may not appear as a pressing problem to people living in the country that generated the waste. The time lapse between a cause (e.g., pollutants in an ecosystem) and their effect (e.g., increased cancer rates) also makes many global environmental problems difficult to identify. These time lags also provide strong arguments for inaction or slow responses by those who benefit from the current ways of doing things because it enables them to argue that claims about the supposed “problem” are based on forecasts rather than on hard evidence of an immediate problem. The arguments put forth by the U.S. government under several administrations that global climate change is scientific theory that needs more research, not scientific fact that needs remediation, is a good example of how cause-and-effect time lags can weaken movements for global environmental treaties. Finally, the effects of global environmental threats and the consequences of controlling them are not distributed equally. This makes arriving at agreements on the importance of specific problems and the strategies for responding to them often difficult to achieve. For instance, according to current estimates, global climate change is likely to have more devastating effect on peoples and nations that depend on low-technology subsistence agriculture than on industrial nations, thus creating different levels of concern and urgency among different nations (U.N. Environmental Programme, 2003). These kinds of conflicting interests make the negotiation of global environmental agreements that will be acceptable to over 150 sovereign nations a particularly complex task.
Despite the impediments to creating global accords, recent developments in the international environmental arena suggest there is a growing worldwide recognition that many of the most serious environmental problems can be addressed only through world-scale agreements. In 1972, the United Nations held the first “Earth Summit,” formally known as the Stockholm Conference on the Human Environment. This conference revealed a deep division between developed and developing nations with respect to the responsibility for global environmental protection. Developed nations sought limitations on environmentally damaging development practices of the less-developed nations such as clear-cutting of rainforests, overgrazing, soil depletion due to unmanaged land clearing and farming, and lack of controls on mining and industrial wastes. In contrast, representatives of less-developed nations argued that it was the developed nations of the world with their widespread industrialization, high levels of material consumption, and high levels of toxic industrial and military wastes that posed the gravest threats to the global environment. Moreover, developing nations argued that the costs of global environmental protection should be shouldered by the already-developed nations, because they had benefited most from damaging the earth’s environment. This conference, and the tensions within it, led to the establishment of a set of environmental principles that have shaped subsequent developments in the environmental arena. In an attempt to sidestep the tension between developing and developed nations, the conference agreed on the following:
- Nations have a responsibility to protect the ecosystems under their jurisdiction.
- Nations should pursue “sustainable development” plans that incorporate measures for preserving ecosystems, avoiding depletion of nonrenewable resources, and preserving the earth’s ability to reproduce other resources, such as clean water, clear air, forests, and grasslands.
- Every nation has a sovereign right to exploit its own resources, presumably in keeping with principles of environmental protection.
- Developed nations should offer financial and technological assistance to less-developed nations to assist them in implementing strategies for sustainable development.
The principles formulated at the 1972 Earth Summit subsequently became the basis for negotiated agreements concerning the transportation of hazardous wastes, protecting the earth’s ozone layer, protecting biodiversity, and reducing global warming and climate change.
Hazardous Waste Transportation
In 1989, the U.N. Environmental Programme negotiated the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. The process and problems leading to this convention illustrate four issues associated with the creation and enforcement of global environmental issues: the differing interests of developed and developing nations, the possibility for corporate-state conflicts, potential governmental support for environmentally destructive but lucrative activities, and the need for governmental ratification and enforcement of environmental treaties.
Historically, developed nations have been the primary producers of hazardous waste, and developing nations have been the most common destinations for international shipments of these wastes (Vallette, 1989). As a result, delegates to the Basel conference from developing nations supported a total ban on the transboundary shipment of hazardous wastes, whereas representatives from more-developed nations sought an agreement that would not require that all developed nations dispose of their toxic wastes entirely within their own borders.
Another issue that surfaced at the conference is the relationship between international economic organizations and nation-states. Historically, hazardous waste from developed nations often has entered less-developed nations through a business arrangement between a waste-producing corporation or a company specializing in the transportation of hazardous waste and landowners or other businesses in developing countries that contract to accept that waste. Traditionally, many of these international business contracts were negotiated without government involvement. Thus, one of the issues to be negotiated was the relative autonomy of businesses versus governments. In the end, the agreement did not ban international traffic in hazardous wastes; instead, it limited it to shipments that had been agreed to by the government of the receiving nation, after having been notified by the government of the originating nation.
The provision requiring government approval enables nations opposed to accepting hazardous wastes from other countries to limit the ability of international corporations to enter into private hazardous waste agreements within their jurisdiction. On the other hand, under the Basel convention, any government that is willing to permit landholders or businesses within its boundaries to accept hazardous waste from other countries can do so. This leaves open the possibility that some developing nations may agree to accept foreign hazardous waste as a means to obtain foreign currency for their national economy.
Finally, conventions such as the Basel agreement are applicable only in those countries that sign the agreement and ratify it through their own internal political process. By 2003, 156 nations and the European Union had ratified the Basel convention, and 3 more have signed but failed to ratify the convention: Afghanistan, the United States, and Haiti. Thus, Although the Basel agreement was an important step toward addressing the problems of transboundary shipments of hazardous wastes, there remain a number of loopholes through which international shipments of hazardous waste can still pass.
Protecting the Ozone Layer
In 1985, the Vienna Convention formally recognized the threat of ozone depletion and called on signatory nations to engage in systematic research to identify the sources and consequences of ozone-depleting chemicals, and to work “to control, limit, reduce or prevent” ozone-depleting activities within their boundaries. Two years later, the Montreal Protocol on Substances That Deplete the Ozone Layer extended the Vienna Convention by setting deadlines for specific actions to reduce ozone-depleting chemicals. The 185 nations that had ratified the Vienna convention ultimately agreed to phase out all production of CFCs by the year 2000. This agreement also provided a political context through which NGOs were able to effectively pressure Dupont—the largest U.S. producer of CFCs—to phase out all production of these chemicals by 1995.
The Montreal Protocol represents a concrete and potentially effective strategy to address a global environmental problem. By 2002, it had been ratified by 185 nations, and scientists predicted that if the protocol remained in effect, the earth’s ozone layer would recover to pre-1980 levels by 2050. Two factors aided in the effectiveness of the Montreal protocols. First, non-ozone-depleting alternatives for CFCs were developed rapidly in response to the pending ban. Once confronted with the inevitability of the elimination of CFCs, industry made impressive strides in developing replacements that would protect profitability. Second, the 1990 London amendments established a multilateral fund to assist developing nations in complying with the Montreal protocols. The fund has paid over $1 billion of assistance since its formation and has played a major role in helping the developing world eliminate the use of CFCs from industry. The fund was especially relevant in enabling India and China to eliminate the use of CFCs, a large step in reducing worldwide production (Leaf, 2001).
In 1992, a “Second Earth Summit” was held in Rio de Janeiro, Brazil. This conference, formally known as the 1992 U.N. Conference on the Environment and Development, resulted in two wide-ranging agreements—the Convention on Biological Diversity and the Framework Convention on Climate Change. These agreements are broader in scope than the hazardous waste and ozone conventions because their goals can be achieved only by simultaneously addressing multiple threats to the environment.
The Convention on Biological Diversity requires its signatories take steps to limit activities that threaten species loss and ecosystem degradation within jurisdictions under their control and to ensure that activities within their jurisdiction do not damage the environments beyond their national boundaries. These steps include (a) rehabilitating and restoring degraded ecosystems, (b) preventing introduction of foreign species that threaten ecosystems and eliminating those that have been introduced, (c) creating and enforcing laws and regulations to protect threatened species, (d) establishing special areas to protect threatened species or ecosystems, (e) managing the risks associated with modified organisms resulting from biotechnology, (f) conducting environmental impact assessments of all proposed development projects, and (g) in general “to conserve and sustainably use biological diversity for the benefit of present and future generations” (U.N. Convention on Biodiversity, 1992, p. 1).
The convention also addresses the interest of developing nations in having access to new biotechnology created in developed nations and using genetic stock taken from species within developed nations, and of developed nations in having access to the genetic stock of plants and animals within developing ones. Thus, the convention grants the individual states the “authority to determine access to genetic resources” while requiring that countries “shall not impose restrictions” on access to genetic stock unless it violates other components of the treaty.
The Convention on Biological Diversity represents a significant step toward creating a worldwide commitment to defining the maximization of species as an important component of sustainable development. Like other international environmental treaties, however, it could be negotiated only by recognizing the sovereignty of nations. Thus, the convention affirms that “economic and social development and poverty eradication are the first and overriding priorities of developing countries” (U.N. Convention on Biological Diversity, 1992, p. 1) and that “States have … the sovereign right to exploit their own resources [according to] their own environmental policies” (U.N. Convention on Biological Diversity, 1992, Art. 3). These components of the treaty mean that steps to protect biodiversity will continue to be limited by other development priorities within the individual nations.
Addressing Climate Change
The Framework Convention on Climate Change is designed to limit the worldwide emission of greenhouse gases. Because industrialized nations represent the largest source of greenhouse gas emissions, the treaty established different and higher standards for these nations than for developing ones. During treaty negotiations, the United States was the only industrialized nation that refused to accept binding rules for the reduction of greenhouse gases, and the U.S. delegation eventually succeeded in obtaining treaty language that made compliance with greenhouse gas reduction goals voluntary. In 1994, President Clinton reversed the policy of George H. Bush’s administration, and announced that the United States would comply with the treaty goals of reducing greenhouse gas emissions to 1990 levels.
On December of 1997, delegates from 170 nations met in Kyoto, Japan, to again address global climate change at the third conference of the parties to the Framework Convention on Climate Change. This meeting resulted in the Kyoto Protocol—a multilateral agreement on legally binding targets for the reduction of greenhouse gas emissions. The Kyoto Protocol mandated a 5% reduction of greenhouse gases by 2012, with the United States agreeing to cut emissions by 7%, the European Union committed to 8% reductions, and Japan committed to 6% reductions. Achieving these goals would require that the United States and other developed countries reduce pollution and consumption in key areas by as much as 30% (Yamin, 1998). In recognition of the difficulty developing nations would have in modernizing their economies while simultaneously reducing greenhouse gases, no binding targets or timetables were set for developing nations (Leaf, 2001, p. 1218).
The protocol included several novel legal mechanisms to facilitate compliance, one of which was the trading of greenhouse gas reduction credits between states. Under this part of the protocol, a state that had exceeded its goal in reduction could offset the greenhouse gases produced by a state that had failed to meet its goal through the trading of emission reduction credits in an international market. The unanimous adoption of legally binding controls of greenhouse gases at the Kyoto conference represented a historic milestone in the development of multilateral environmental treaties, and emotions ran high as chairman of the conference Raul Estrada-Oyuela suggested that December 10 might come to be recognized as an international “day of the atmosphere” in commemoration of the signing (Yamin, 1998).
The Kyoto Protocol would become legally binding on the United States only after its ratification by the U.S. Senate. Just prior to the Kyoto conference in 1997, the U.S. Senate indicated it would not ratify any climate change protocol that failed to impose legally binding standards for reduction of greenhouse gas emissions on the developing world or that would “cause serious economic harm to the United States.” Facing rejection of the treaty, the Clinton administration elected not to submit the protocol to the Senate for ratification. Clinton stated that he would not do so until there was “meaningful participation” in greenhouse gas reductions in “key developing countries” (Leaf, 2001, p. 1219).
Due to gridlock on this issue, the Kyoto Protocol was not ratified during the remainder of the Clinton administration. In March 2001, the administration of George W. Bush formally withdrew the United States from the Kyoto Protocol. In June of 2001, the administration introduced a series of unilateral initiatives on climate change, which included funding for further research on the issue and several unilateral moves to reduce greenhouse gas emissions, such as selling cleaner-burning U.S. technology to the developing world and voluntary energy efficiency programs for U.S. consumers. These, however, did not include any binding targets or timetables for the reduction of U.S. emissions (Leaf, 2001).
Development and Trade versus Environmental Protection
During the last two decades of the 20th century, a growing recognition of the global nature of environmental problems promoted a search for a legal framework of international environmental protection. This has led to the negotiation of global conventions governing hazardous waste transportation, biodiversity, ozone depletion, and climate change, as well as numerous bi- and multilateral treaties of more limited scope. Unlike most legal control exerted over social harms, these treaties constituted voluntary agreements among potential offenders with limited enforcement potential. Consequently, national self-interest in protecting the biosphere and the pressure of world opinion still remain the primary forces for ensuring compliance with international agreements to protect the global environment.
There are also powerful forces running counter to the protection of the global environment. These are continued demand for increased standards of living, growth and expansion of TNCs, increased expansion of the free-trade movement, and continued use of military power to achieve geopolitical goals.
As citizens of both the developed world and the developing world struggle to consume ever more material goods, the strain on the world’s resources, its biological diversity, and its atmosphere will intensify. It remains an open political question as to how far nations will go to restrict present growth of material consumption for a healthier environment in the future.
Increased worldwide consumerism also has the consequence of expanding both the profitability and the power of TNCs. With many TNCs already in command of greater wealth than many nations, their ability to influence the creation and enforcement of national environmental laws is likely to increase. Corporate promises of large-scale investments, or the fear they will relocate to more hospitable countries, remains an important consideration in framing environmental and labor policies in many nations, particularly (but not only) in developing ones.
An important element of the growing power of TNCs is the free-trade movement promoted by powerful Western countries such as the United States and Britain. The central idea of “free trade” is that all barriers to the international movement of capital and goods by TNCs should be eliminated. The proponents of free trade argue that unless TNCs can invest where they deem it most profitable and sell their products profitably wherever there is a market for them, they will not be able to foster development, particularly development among the poorest nations. Environmental protection laws that slow the movement of goods and capital run counter to the goals of international free-trade agreements such as the General Agreement on Trade and Tariffs (GATT) and the North American Free Trade Agreement (NAFTA) (Jackson, 1992).
The tensions between free trade and environmental protection take several forms. First, there is wide disparity among nations in the establishment and enforcement of environmental protection laws. If TNCs can easily and freely move goods from nations with lax environmental protection laws to those where such laws are more stringent, there is a strong incentive to relocate industrial facilities to nations whose legal system will ensure higher profits. Although prohibiting the importation of goods produced in nations with lax environmental laws is a potential mechanism for enforcing international agreements regarding environmental protection, free-trade agreements such as GATT and WTO frameworks expressly prohibit the exclusion of products from one nation simply because they were manufactured elsewhere in an environmentally damaging manner. Similarly, the initial draft of NAFTA provided no guarantees that both environmental and labor standards in the United States would not be driven downward to ensure economic competitiveness with products produced under the less-stringent laws of some NAFTA trading partners, particularly Mexico. In response to pressure by NGOs in the United States, several “side agreements” designed to protect against the erosion of environmental and labor laws in the United States were drafted as part of obtaining congressional approval for NAFTA. Canada and Mexico, however, have resisted allowing the United States to encroach on their sovereignty by determining the content of Canadian or Mexican environmental and labor laws.
With the end of the Cold War in the late 1980s, there was a brief hope that use or threat of military force would decline as a means of international politics. Since then, however, two U.S. wars against Iraq, the war in Kosovo, the nuclear standoff between India and Pakistan, and the rise of international terrorism suggests that the threat of environmental damage from conventional, asymmetrical, or even nuclear war remains significant.
The various international environmental protections treaties and accords established over the past 20 years constitute genuine progress in defining a variety of environmental harms as transnational violations of law. Efforts to define cross-border environmental harms as legal wrongs, however, are frequently hindered by TNCs and the national self-interest that supports them. As increasingly free-floating political entities, TNCs cannot be easily compelled to behave in socially and environmentally responsible ways. Although their actions may have consequences far more devastating than many harms currently defined and punished as transnational crimes, the likelihood of significant legal controls being exerted over transnational corporate offenders is limited. For these reasons, the meaning of transnational environmental crime will remain an arena of conflict well into the foreseeable future.