A Climate Change Litigation Bench Book for Judges of Asia and the Pacific

Published on Wednesday, 14 February 2018

Post Paris Agreement 2015, the world rushes to agree on best measures for implementing commitments to ensure that countries can collectively work towards the 1.5°C temperature target. For its part, ADB continues in its work to support its developing member countries to meet this critical global climate target.

Earlier this year, we published information on the AJNE website about the Office of the General Counsel’s (OGC) technical assistance (TA) project on Developing Judicial Capacity for Adjudicating Climate Change and Sustainable Development Issues (TA 9279). Since then, OGC’s Law and Policy Reform Program team has been hard at work on designing a bench book for judges to support them in responding to litigation related to climate change, environment, and sustainable development. The idea for the book flowed from outcomes of the 2016 Third Asian Judges Symposium on Law, Policy, and Climate Change. In the course of the symposium, ADB saw the growing need for judges to have tools for navigating the inevitable tide of climate change litigation.

Around the world, climate change legal disputes are growing, as litigants demand that governments take stronger climate action. Climate change disputes will also continue to grow in number and complexity as climate change impacts increase in severity. Across Asia, judges will be asked to look into the eye of the figurative legal storm and discern a just and lawful path. They will be faced with new issues; potentially asking them to expand on previously settled legal principles. Climate impacts will span boundaries. So, just as we need a global response to climate change, we need the region’s judiciaries to continue to unite and work toward climate justice.

The body of literature about climate change litigation continues to grow. And, ADB sees the importance of participating in the discussion and focusing on the needs of judges across Asia and the Pacific. Asia and the Pacific are some of the world’s most vulnerable regions to climate change. Judges in these regions have made a number of judicial innovations in climate change and environmental law that are worth sharing. Similarly, judges across Asia and the Pacific will benefit from a discussion about comparative approaches to climate change and environmental litigation. We are particularly interested in exploring what principles of environmental jurisprudence might be useful to judges when resolving climate change disputes.

Over the last 6 months, ADB has worked with partner judiciaries to develop the framework for a climate change litigation bench book. The bench book will explore critical litigation issues such as court procedures and regional and global approaches to issues like justiciability, standing, and actionable rights. As the focus is on providing tools for judges, the book will examine novel and significant cases across Asia and Pacific, including environmental law cases. Although litigation is the book’s focus, we feel it also needs to provide judges with a background on international and domestic climate change legal frameworks as well as constitutional rights because many actions will likely hinge on these frameworks and rights.

ADB will be undertaking research on the status of climate change litigation and climate change law and policy within its DMCs in South Asia, Southeast Asia, and the Pacific in the early part of 2018. ADB also plans to start blogging about important cases and issues that arise in the course of its research. We recognize that a book will take time to develop and we want to release important information sooner rather than later. Watch this space.