Asian judiciary: Emerging leaders in climate change action

Published on Friday, 8 April 2016

In the flurry of reports and social media updates on the progress of COP21—and its historic success—there has been a major focus on the role of national governments working together to shape effective global climate change policy and regulatory reform.

Notwithstanding the capacity of governments to perform this role well, there is another major player that we believe is deserving of some of the limelight.

We are referring to the judges and courts worldwide that are deciding upon and grappling with the implementation, development and enforcement of regulatory regimes, many of which directly intersect with climate change impacts and policy considerations. 

The judiciary, domestically and globally, has been steadily - and rather effectively in many countries – pursuing a sustainable development trajectory when deciding cases that have environmental implications. The ASEAN judiciary, in particular, is continuing to prove itself as a body of judges housing progressive, world-leading environmental champions and in turn, leaders in the development of positive climate change action.

Climate change traverses a wide range of public policy portfolios including taxation, development planning and land use, responsible business conduct, and low-carbon investment and finance, to name a few. The types of cases that have environmental implications, and the number of regulatory frameworks intersecting with climate change, is growing; in this respect, the judiciary constantly faces the task of navigating unchartered legal territory. This presents a challenge, but also a major opportunity for regulatory reform that many Asian judiciaries have grabbed with both hands.

Unlike government ministries, judges (whether with regard to their case load or their training) are often not confined to a specific policy portfolio, and like climate change can affect a range of governance areas. Whether judge-made laws are incorporated into the legal framework by follow-up legislation or by stimulating awareness and raising public participation, they are slowly but surely influencing global environmental governance.

The ASEAN jurisdiction offers some of the world’s most liberal and advanced environmental jurisprudence in this regard. This jurisprudence has already begun to extend to climate change considerations.

Landmark ASEAN environmental cases, including those importing principles relevant to effective climate change policy, were just some of the topics discussed by participating judiciaries at the Fifth ASEAN Chief Justice Roundtable on Environmental Justice held in Siem Reap, Cambodia earlier this month.

In the wake of the newly introduced Sustainable Development Goals—many of which directly relate to the environment—and while world leaders were debating future action on climate change at COP21, justices from the high courts of the 10 ASEAN nations spent two days together discussing their role in the pursuit of environmental justice 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 and inspiring. Each ASEAN judiciary committed to continue judicial knowledge sharing, training and education initiatives through collective action to address environmental challenges facing ASEAN – a powerful initiative that extends to progressing climate change policy through legal and regulatory reform.

Asia is the only region in the world that brings together judicial bodies to progress environmental justice, and where the threat of climate change is a major item on the agenda. Through this work, Asian judiciaries are now setting the benchmark for other regions in the world to follow suit.

As the organizer of the roundtable, it was clear to us that the judiciary’s role in advancing positive climate change action is not one to be overlooked. As guest speaker Justice Antonio Benjamin of the National High Court of Brazil 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 consider themselves “planetary.”

The power of “planetary judges” to change our global regulatory frameworks and shape climate change policy through cooperative, holistic action is growing exponentially.

As the world begins to implement the post-COP21 climate change agenda, the influence of judicial action in guiding domestic governments—and the global community—in the implementation and enforcement of the new Paris Agreement, is one to pay close attention to. ADB is committed to assisting Asian courts to implement environmental justice outcomes through its Office of the General Counsel’s Law and Policy Reform Program.