Sustainable Development and Environmental Law and Policy Consultant
PHOTO: Flooding in India, Creative Commons: Samenwerkende Hulporganisaties
In the previous Future of Environmental Law blog post, Stephen Minas talked to the important role played by the “broad array of public, private and hybrid mechanisms of climate governance” – including networks such as the Asian Judges Network on Environment.
Following on from Stephen’s post, I want to highlight some of the recent work of the Asian Judges Network on Environment and further demonstrate the capacity of networks, such as regional judicial bodies, to affect climate change law and policy through collective action.
Judges and courts worldwide have the capacity to direct and influence climate change governance through deciding upon—and grappling with—the implementation, development and enforcement of the many regulatory regimes directly intersecting with climate change considerations.
I won’t list every example of climate change crossover with a public policy portfolio here. However, needless to say – there are many and they are varied: tax, development planning and land use, responsible business conduct and low-carbon investment and finance are just some examples.
The judiciary, domestically and globally, has a role to play, and has been steadily continuing to play this role (rather effectively in many countries), in pursuing a sustainable development trajectory when deciding cases that have environmental implications. These cases, and the number of regulatory frameworks intersecting with climate change impacts in particular, are growing exponentially. In this respect, the judiciary is continuously faced with navigating unchartered legal territory. This presents a challenge, but also a major opportunity for collective climate change regulatory reform – an opportunity that the Association of Southeast Asian Nations (ASEAN), and the South Asian Association for Regional Cooperation (SAARC) judicial networks have grabbed with both hands.
Through the Asian Judges Network on Environment, Judiciaries from each of the ASEAN and SAARC countries have each formed sub-regional networks for the purpose of capacity building and knowledge sharing on the adjudication of environmental issues. The ASEAN and the SAARC judicial networks house progressive, environmental justice champions. With climate change being a major item on the environmental agenda for the Asian region – these networks also offer a powerful force in guiding and progressing climate change governance through the courts.
Unlike government ministries, it is often the case that judges (whether in regard to their case load or their training) are not confined to a specific policy or regulatory portfolio, and like climate change, are often affecting all areas of governance – through their law-making capacity. Whether judge-made laws or jurisprudential considerations are reinforced by follow-up legislative action, or stimulate awareness-raising and public participation – they have the capacity to influence our environmental global governance framework.
The ASEAN and SAARC jurisdictions offer some of the most progressive environmental jurisprudence in this regard. The jurisprudential momentum in the region can, and has already begun to, be extended to climate change considerations. By way of quick example, frequently cited, landmark cases from ASEAN judiciaries include:
- Philippines Supreme Court case of Oposa et al. v. Fulgencio S. Factoran, Jr. et al., Supreme Court of the Philippines, G.R. No. 101083, 30 July 1993 where the Philippines Court effectively imported the principle of intergenerational equity into its procedural doctrine; an essential principle for effective climate change governance.
- The Indonesian Supreme Court case of Bandung District Court, Dec. No. 49/Pdt.G/2003/PN.BDG (4 Sept. 2003), upheld on appeal, Supreme Court, Dec. No. 1794 K/Pdt/2004 (22 Jan. 2007) (known as the “Mandalawangi Landslide Case”) where the court not only relied on the precautionary principle but also ruled that even though the precautionary principle was not part of Indonesia’s legislation, it was jus cogens: meaning it is a fundamental principle of international law and an accepted norm from which no derogation is permitted.
These cases, along with the challenges faced by ASEAN courts in the pursuit of sustainable development and addressing climate change, were just some of the topics raised by participating judiciaries at the Fifth ASEAN Chief Justices’ Roundtable on Environmental Justice (Roundtable) held in Siem Reap, Cambodia in December 2015. The Roundtable was hosted by the Cambodian Supreme Court as part of a series of annual Roundtables on Environmental Justice attended by high court judges from each of the 10 ASEAN jurisdictions.
In the wake of the newly introduced Sustainable Development Goals (SDGs) (many of which directly relate to environmental justice pursuits), and while world leaders were debating future action on climate change at COP21, Justices from the highest courts of each of the ASEAN nations came together to discuss their role in addressing environmental challenges through regional, collective action.
The candor of the discussions between representatives of some of world’s most vulnerable countries to climate change, as well as the determination to pursue a sustainable future for all – was pioneering.
Every judicial participant present at the Roundtable voiced their commitment to addressing environmental threats facing our globe; the most pressing being climate change. Together, they have committed to continue judicial knowledge sharing, training and education initiatives in the pursuit of collective action to address environmental challenges – a powerful initiative in strengthening the work of the regional judicial network in influencing climate policy and regulatory reform.
Asia is the only region in the world that brings together judicial bodies to progress environmental justice through the Asian Judges Network on Environment. Through this work, Asian judiciaries are now setting the benchmark for other regions in the world to form similar networks and follow as leaders in global environmental justice, and in particular, climate change governance reform.
Attending the Roundtable, it was clear to me that the role of judicial networks in advancing positive climate change action is not one to be overlooked. As Justice Antonio Benjamin of the National High Court of Brazil (Guest speaker at the Roundtable and Chair of the IUCN World Commission on Environmental Law), mentioned in the opening session, environmental threats are no longer just domestic; the biggest environmental challenges facing our time are inherently transboundary in nature, and therefore, judges should now see themselves and their work as “planetary.”
Judicial networks have the ability to facilitate and support the “planetary” role of judiciaries across regions and the world. Through these networks, judges and courts have the capacity to shape climate change policy through cooperative holistic action. Such work can offer a source of guidance for domestic governments, as well as the global community, in bringing to fruition national and international climate goals, including the implementation of the Paris Agreement.
 These roundtables (along with similar roundtables held separately for the SAARC region) are initiatives of the Asian Judges Network on Environment and supported by the Asian Development Bank (ADB).
This blog post builds on an earlier post written for the ADB Blog, published 17 December 2015.
Sustainable Development and Environmental Law and Policy Consultant
Stephanie works directly with governments, the private sector, NFPs and international development organizations in Sustainable Development Strategy and Environmental Law and Policy.
As a qualified Lawyer specialising in Environmental Law and Climate Change, she is passionate about connecting and working across sectors in driving the transition to a green economy.
Stephanie currently consults for the Asian Development Bank where she manages two regional, capacity-building technical assistance projects in Southeast Asia. These projects work with environmental decision makers in strengthening the rule of environmental law and environmental justice through regulatory reform and capacity building.
As a strategist, systems-thinker and environmental communicator, Stephanie is passionate about creating and implementing policy solutions to sustainable development challenges, particularly in response to climate change.