The ADB is a multilateral financial institution established in 1966 to promote economic and social development in Asia and the Pacific. The ADB has sixty-seven member countries, forty-eight of which are classified as ‘developing member countries’ (DMCs). These DMCs benefit from ADB initiatives intended to achieve the three inter-dependent objectives of environmentally sustainable growth, inclusive economic development, and regional integration. The Office of the General Counsel’s Law and Policy Reform (LPR) Program promotes these objectives by supporting the role of legal systems in the region’s economic development. The central premise of the LPR Program is that the rule of law—that is, a properly functioning legal system—is essential to inclusive and sustainable development. It broadly covers five different pillars: (1) environmental law and sustainable development; (2) infrastructure law and regulation; (3) financial law and regulation; (4) private sector development; and (5) inclusive growth and access to justice. The LPR Program achieved remarkable success in the past year, especially with respect to the environmental law pillar. In September, the ADB, in collaboration with the United Nations (UN) Environment Programme, convened the third Asian Judges Symposium on Law, Policy, and Climate Change. More than ten chief justices, as well as other senior judges, climate experts, legal professionals, civil society representatives, and students from Asia and beyond, attended the two-day event. The symposium covered a wide range of topics that lie in the nexus of climate change science and legal and regulatory reform, such as food and water security, urbanization and green city development, energy efficiency and adaptation gaps, mitigation and adaptation solutions and success stories, the impact of climate change on women, children, and other vulnerable groups and their right to a clean and healthy environment, and the legal entitlements of displaced communities. The symposium further highlighted the Paris Agreement, the international climate change regime, and the rights and obligations of developed and developing countries under the agreement as well as the broader UN climate change framework. It also brought to the fore the Asia–Pacific region’s contribution to global environmental law and climate change jurisprudence. Chief justices and justices from the region’s superior courts discussed the role of developing countries in the development of international environmental rule of law. Their analysis covered the various facets and techniques of public interest litigation in the region, and the manner in which environmental adjudication in Southeast Asia, South Asia, and China has evolved over the years in response to challenges posed by climate change shocks. For instance, there were robust discussions on whether the era of climate change litigation is ushering in a paradigm shift in the way environmental rights are framed, from a ‘right to life’ characterization to a ‘right to food and water security’ perspective. One of the key takeaways from the judge-centric sessions is that developing countries must invest in a system that effectively and efficiently assesses risk. Vulnerability assessment is a very important tool that informs and shapes climate change adaptation and mitigation efforts, which the judiciary enforces through its adjudicatory function. However, this may play out differently in Asia–Pacific countries because of varying classifications of public goods and private property. For example, groundwater is classified as private property in India, a public good in Thailand, and within the public domain in Indonesia, Vietnam, and China, so as to permit government management of the resource. The ADB sought to further innovate from previous editions of the symposium—and, indeed, other global environmental conferences—by bringing together the first level of environmental law learning and the highest level of environmental adjudication. The ADB invited the two leading law schools in the Philippines, the University of the Philippines College of Law, and the Ateneo de Manila University School of Law, to participate in a moot court exhibition match on transboundary climate change issues. In preparing for the exhibition match, both teams worked closely with a justice of the Supreme Court of the United Kingdom, the Right Honourable Lord Robert Carnwath of Notting Hill and international lawyers from the ADB. The exhibition match simulated proceedings at the International Court of Justice (ICJ) between two fictional states that have both accepted the ICJ’s compulsory jurisdiction. The crux of the dispute touched on various issues, such as the effect of the Paris Agreement on the international legal obligations of developed and developing countries; the interplay between Article 18 of the Vienna Convention on the Law of Treaties (the obligation not to defeat the object and purpose of a treaty) and the Paris Agreement, which at the time of the symposium had not yet entered into force; the nexus between environmental and climate change law with the law on human rights; and whether or not communities displaced due to climate shocks have any entitlements under international law. The symposium allowed the participants to broaden and strengthen professional relationships that were established through the Asian Judges Network on the Environment (AJNE). The AJNE emerged from the 2010 Asian Symposium on Environmental Decision Making, the Rule of Law and Environmental Governance. Composed of twenty-three countries in Asia and the Pacific, it is an information- and experience-sharing arrangement that has brought together the various stakeholders in the environmental law and enforcement chain—that is, judges, prosecutors, environment ministry officials, environmental law experts, and civil society representatives. Its dedicated website hosts numerous resources that can help judges adjudicate effectively, such as a legal database that brings together the laws, rules, regulations, and case law of different countries (<http://www.ajne.org>). The ADB followed the symposium with sub-regional roundtables for the Southeast Asian and South Asian judiciaries. The sixth Association of Southeast Asian Nations (ASEAN) Chief Justices’ Roundtable on Environment was held in Palawan, the last ecological frontier of the Philippines. Chief justices and justices from all ten ASEAN countries attended the event, where the participants discussed the progress of their respective judiciaries on implementing the Jakarta Common Vision and the Hanoi Action Plan. These documents encapsulate the commitment of the ASEAN judiciaries to ‘collaborate among themselves and, as appropriate, others engaged in the environmental enforcement processes, to significantly improve the development, implementation, and enforcement of, and compliance with, environmental law’ (Inaugural ASEAN Chief Justices’ Roundtable on Environment: The Proceedings (2013) <http://www.adb.org/sites/default/files/publication/31143/asean-chief-justices-roundtable-web.pdf>). Moreover, the ASEAN roundtable featured resource persons who surveyed landmark climate change cases worldwide, discussed the most important climate change treaties and cross-border agreements governing the Southeast Asian region, and highlighted the possible effects of the Paris Agreement on the domestic and regional litigation landscape. A similar judicial conference on the environment and climate change was held for South Asian judiciaries in Dhaka, Bangladesh. Focusing specifically on the impacts and implications of climate change in South Asia, the conference covered the Paris Agreement, climate-vulnerable groups in the region, and legal remedies available to them. The judge-participants also discussed the evolution of fundamental principles in environmental litigation—that is, whether the concept of ‘environmental justice’ has created a much broader principle of ‘climate change justice’ that encompasses not just general environmental issues but also any and all issues dealing with stresses and shocks caused by climate change (for example, a case about building regulations). The conference also had a special dialogue involving lawyers, advocates, and activists who are often petitioners in court, on the one hand, and judges, who are tasked to adjudicate environment and climate change cases, on the other. The AJNE and the regional and sub-regional events convened by the ADB have been instrumental in enhancing environmental jurisprudence in Asia. For instance, one of the AJNE’s champion judges, Chief Justice Syed Mansoor Ali Shah of Pakistan’s Lahore High Court, penned a seminal decision on climate change whose effects have rippled out beyond Pakistan and perhaps exemplifies an emerging global trend on climate change litigation. In Ashgar Leghari v Federation of Pakistan et. al., a law student who comes from a family of farmers filed a public interest suit against the government for its failure to implement the National Climate Change Policy and the Framework for Implementation of Climate Change Policy for the period 2014–30 (Lahore High Court, WP no. 25501/2015 (4 September 2015) (Pakistan)). He alleged that the government’s inaction in addressing Pakistan’s climate change vulnerabilities and the ensuing climate threats violated his constitutional rights—that is, his fundamental rights to life, a healthy and clean environment, and human dignity. The right to life argument was in turn anchored on the effects of climate change on Pakistan’s water, food, and energy security. The court, headed by Chief Justice Shah, agreed with the plaintiff. The decision created a Climate Change Commission, with the authority to: (1) cause implementation of the National Climate Change Policy and the accompanying Framework and (2) command relevant ministries and departments to cooperate with its efforts. The court also ordered the relevant ministries and departments to each nominate a climate change focal person answerable before the court, who must prepare and implement measures to address climate change issues and challenges. It also maintains jurisdiction through continuing mandamus, which it uses to both monitor the progress of the Commission and affiliated ministries, and issue orders directing and expediting the Commission’s tasks. Notably, it was the Green Bench of the Lahore High Court that rendered the Leghari decision. Green Benches were established in Pakistan when the Federal Supreme Court endorsed the 2012 Bhurban Declaration entitled A Common Vision on Environment for the South Asian Judiciaries—the constitutive document that emerged from the ADB’s inaugural South Asia Conference on Environmental Justice. Leghari has spawned similar public interest litigation elsewhere in Asia. In April 2017, a little girl in India filed suit against the government over its failure to prepare a carbon budget and a national climate recovery plan (Original Petition, Ridhima Pandey v Union of India et al., filed before the National Green Tribunal of India). Ridhima Pandey, the nine-year old plaintiff, lives in the Indian state of Uttarakhand, which has been consistently ravaged by flash floods, heavy rains, and landslides over the last several years. Specifically referencing the Leghari case along with Urgenda v State of the Netherlands (Hague District Court (24 June 2015) ECLI:NL:RBDHA:2015:7196 (original language: ECLI:NL:RBDHA:2015:7145)) and Juliana v United States (Case no. 6:15-cv-01517-TC before the United States District Court of Oregon, Opinion and Order dated 10 November 2016), she asked for the following reliefs, among others: (1) that the government assess climate-related issues while appraising projects for the grant of environmental clearance; (2) that the government undertake a realistic, holistic, and detailed assessment of every single case of forest diversion, including its impact on the climate; (3) that, in light of the obligations and targets under the Paris Agreement and India’s nationally determined contributions, the government first ensure compliance of compensatory afforestation for past clearances when considering diversion of forest land; (4) that the government prepare an accounting inventory of each substantial source of greenhouse gas emissions in India; (5) that the government prepare quantifiable targets or a ‘carbon budget’ for the total amount of carbon dioxide emissions that can be released until 2050, with a view to contributing to efforts to reduce atmospheric carbon dioxide to below 350 parts per million by 2100; (6) that the government create a time-bound national climate recovery plan, tied to India’s carbon budget; and (7) that the court constitute a committee to monitor and present quarterly compliance reports to the court. While the case is still pending before the National Green Tribunal of India, its significance cannot be overstated; India is the fourth largest emitter of greenhouse gas in the world, and its decisions in environmental cases are often perceived as persuasive in the South Asian region. The present chairperson of the National Green Tribunal, the Honourable Justice Swatanter Kumar, is an AJNE champion judge, with whom the ADB works closely on various judicial capacity-building initiatives. Moving forward, the ADB will continue providing institutional and financial support to global environmental and climate change events. In March 2017, the ADB co-sponsored the World Conference on Environment held in New Delhi, India. The conference championed pioneering approaches to a broad swath of environmental issues, such as forest, wildlife, and biodiversity; municipal solid waste; environment and public health; air and water pollution; climate change; public health and environment; and innovative approaches for environmental remediation and restoration. Attended by delegates from six continents, it is seen to impact global discussions on major environmental and climate change policy areas, especially with the Paris Agreement having recently entered into force. The ADB is likewise supporting the second Meeting of the Global Judicial Institute for the Environment (GJIE), to be held in Brasilia, Brazil, in May 2017. It is organized by the World Commission on Environmental Law, the United Nations Environment Programme, the General Secretariat of the Organization of American States, the UN Special Rapporteur on Human Rights and the Environment, the International Association of Judges, and other partners, with the support of Brazilian judicial institutions. The two-pronged objective of the second meeting is to (1) draft and approve the by-laws of the Institute and (2) develop an action plan for the next two years. At the same time, the ADB will also fund the participation of several Asian judges in the second meeting of the GJIE to ensure that Asian judges have a voice in such an important global judicial event. The ADB will also provide customized in-country training programs that specifically target capacity gaps and opportunities identified by the requesting country/judiciary. Activities planned for 2017 include judicial training courses in Malaysia (July) and Cambodia (August). The training course in Malaysia is designed for session court judges hearing environmental law cases, while the training course in Cambodia is designed for all levels of the judiciary, including the Supreme Court. Significantly, the Malaysia training course demonstrates the self-sustaining nature of the ADB’s LPR Program—the trainers will be ADB’s environmental champions from the academe. They are professors from the National University of Malaysia (Universiti Kebangsaan Malaysia), the Environment Institute of Malaysia, and the Malaysian Judicial and Legal Training Institute, who were themselves trained extensively under the ADB’s Train-the-Trainers (TTT) Environmental Law Champions technical assistance project. The aim of the TTT Environmental Law Champions technical assistance project is to strengthen the capacity of environmental law professors and lecturers in Asia and the Pacific because of their critical role in educating the environmental law profession and creating the next generation of teachers, judges, public interest lawyers, civil servants, and other environmental law practitioners (ADB Environmental Law Champions Information Sheet, 1). The technical assistance is implemented jointly with the International Union for Conservation of Nature Academy of Environmental Law (IUCNAEL), which is a global network of over 200 law schools from more than fifty-nine countries that share a commitment to the teaching of, and research in, environmental law (ibid, citing <http://www.iucnael.org/en>). It consists of a three-pronged approach: (1) innovative regional and in-country TTT programs on environmental law that are taught through different interactive teaching methodologies and integrate a ‘champions’ sessions to keep the participants inspired; (2) building in-country and regional networks; and (3) development of knowledge resources, such as a knowledge platform that includes online forums, TTT training materials and teaching resources, and a regional database and interactive map of environmental law champions and institutions to quickly connect and tap expertise in the region (<hhtp://www.teachenvirolaw.asia>). Two regional TTT programs and the first regional roundtable of Asian environmental law champions were convened in Manila in 2015 and 2016, respectively. Four in-country programs in Malaysia, China, the Philippines, and Vietnam were also conducted in 2016 in partnerships with the National University of Malaysia, HaNoi Law University, the University of Cebu College of Law, and Peking University Law School as host institutions. To date, the TTT Environmental Law Champions technical assistance project has brought together over 169 environmental champions from more than 105 institutions. They are now leading their own in-country TTT programs, advocating for the inclusion of environmental law courses in their institutions, and promoting the teaching of environmental law in their own countries (ibid.). In 2017, the TTT Environmental Champions technical assistance project will host the second Regional Roundtable of Asian Environmental Law Champions in Cebu, the Philippines, in conjunction with the IUCNAEL Colloquium. Three intensive in-country programs focusing on the Greater Mekong Subregion countries are also planned: (1) in Chiang Mai, Thailand, with Chiang Mai University as the host institution; (2) in Phnom Penh, Cambodia, for participants from Cambodia and the Lao People’s Democratic Republic, with Pannasastra University as the host institution; and (3) in Yangon, Myanmar, with the University of Yangon as the host institution. Other forthcoming resources include a documentary video to be used as tool to inspire law students to pursue environmental law and a report on the status of environmental law teaching in Asia (covering fourteen DMCs) (ibid.). Finally, the ADB’s LPR Program recently launched a technical assistance that aims to identify and address DMCs’ legal and regulatory barriers to (1) accessing international climate finance and (2) implementing nationally determined contributions under the Paris Agreement. This project will commence by fielding a needs assessment mission to two pilot countries in mid-2017. Fiji, which holds the presidency for the upcoming twenty-third Conference of the Parties to the UN Convention on Climate Change, has been chosen as a pilot country. Another pilot country—to be determined on the basis of vulnerability to climate change—will come from Southeast Asia. The resulting diagnostic studies seek to strengthen the legal and regulatory capacities of pilot DMCs to meet their mitigation commitments and adaptation needs under the Paris Agreement, which is an essential step to ensuring that DMCs have adequate financing means to achieve their climate targets (Legal Readiness for Climate Finance and Climate Investments, Overview Summary <https://www.adb.org/projects/50178-001/main#project-overview>). The technical assistance may expand to more Asia Pacific countries in the future, subject to demand and funding. © The Author 2017. Published by Oxford University Press. 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Yearbook of International Environmental Law – Oxford University Press
Published: Dec 28, 2017
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