Faure, Michael; Peeters, Marjan; Wibisana, Andri G. --- "Economic instruments: suited to developing countries?" [2006] ELECD 509; in Faure, Michael; Niessen, Nicole (eds), "Environmental Law in Development" (Edward Elgar Publishing, 2006)

Book Title: Environmental Law in Development

Editor(s): Faure, Michael; Niessen, Nicole

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845425197

Section: Chapter 10

Section Title: Economic instruments: suited to developing countries?

Author(s): Faure, Michael; Peeters, Marjan; Wibisana, Andri G.

Extract:

9. Towards a new model of
criminalization of environmental
pollution: the case of Indonesia
Michael Faure

1. INTRODUCTION
Applying the criminal law to environmental pollution has always been prob-
lematic, due to the structure of environmental legislation. The basic problem
is that environmental interest and values do not enjoy an absolute protection
in the law (such as is the case with traditional values protected by the criminal
law). Instead most environmental statutes regulate the way in which through
pollution environmental values may be endangered by industrial activities.
One can understand the basic structure of environmental law for the simple
reason that most polluting activities not only cause costs for society, but also
generate substantial benefits. That is of course the basic difference with other
crimes such as, for example, theft or murder. These activities may cause
personal benefits to the criminal, but not for society at large. Thus most of
environmental law in many countries is aiming at administrative control of
environmental pollution, usually through licensing and permitting systems.
Administrative agencies decide on the permitted degree of environmental
pollution.
This basic structure of environmental law also has its importance for the
structure of environmental criminal law. Indeed, there is a strong interweaving
of administrative and criminal law since most environmental statutes reveal
that authorities generally only punish the lack of a permit, or a violation of
emission standards. This is referred to as the administrative dependence on
environmental criminal law. However, although this administrative depen-
dence on the criminal law ...