STATEMENT OF THE ASIA PACIFIC JUDICIAL CONFERENCE ON CLIMATE CHANGE: ADJUDICATION IN THE TIME OF COVID-19
December 11, 2020
INTRODUCTION
This Conference Statement sets out the main concerns of the conference.
The statement follows the form of previous statements and declarations issued by the Judges Round tables issued under the auspices of the Asian Judicial Network on the Environment (AJNE).
The statement does not contain binding commitments, but recognizes and serves as a reminder of the complexities of adjudicating in the environmental law field in general, but especially with regard to climate law, and in particular when faced with a world health crisis that affects the way in which courts operate.
The statement includes reference to multilateral environmental agreements, declarations and policy documents relevant to the topics addressed in the conference subject matter. The declarations and statements issued by previous judicial gatherings in the Asia-Pacific region are also recorded.
The operative parts of the statement recognize the procedural and substantive challenges that many judges and judicial officers are grappling with in administering their courts and conducting cases during pandemics and other major health events.
JUDGES AND COURT REPRESENTATIVES FROM COURTS ENGAGED IN ENVIRONMENTAL DECISION-MAKING
Mindful that the Asian and Pacific regions, in common with all other of the world’s regions, are experiencing the adverse effects of climate change;
Mindful also that the Asian and Pacific regions, in common with all other of the world’s regions, are suffering from the convergent health, environmental and economic effects of the COVID-19 pandemic;
Aware of the growing number of environmental and climate change cases and reports of the Intergovernmental Panel on Climate Change on the dangers of anthropogenically caused global warming;
Concerned by the increasing adverse impacts of humans on the natural environment, and the need to address those impacts though the work of judges and other judicial officers;
Emphasizing that the Asian and Pacific regions are home to countries most vulnerable to the devastating and existential effects of climate change;
Cognizant of State Party obligations under the 1992 UN Framework Convention on Climate Change, the 1997 Kyoto Protocol, and the 2015 Paris Agreement on climate change, including making best efforts to limit global warming to 1.5ºC and to well below 2ºC, reaching net zero by mid-century, strengthening adaptive capacity and resilience, enhancing the successive climate pledges and communicating their efforts;
Cognizant also of the other multilateral environmental agreements especially concerning the conservation of biological diversity and trade in endangered species;
Affirming the principles of the 1972 Stockholm Declaration, the 1992 Rio Declaration on Environment and Development, and the 2015 Sendai Framework on Disaster Risk Reduction;
Recognizing the common environmental governance and rule of law commitments of the 2015 United Nations Sustainable Development Goals;
Taking into account the 2016 IUCN World Declaration on the Environmental Rule of Law:
Taking into account also the 2018 Brasília Declaration of Judges on Water Justice
Further taking into account also the United Nations Environment Programme Environmental Rule of Law: First Global Report of 2019;
Being aware of the intention to issue a new political Declaration on the Environment through the United Nations 50th anniversary conference on the environment in 2022;
Recalling the 2011 Jakarta Common Vision on Environment for ASEAN Judiciaries and the 2014 Hanoi Action Plan to implement the Jakarta Common Vision;
Understanding the environmental rights set out within Article 28 (f) of the 2012 ASEAN Human Rights Declaration;
Further recalling the Bhurban Declaration of the South Asia Conference on Environmental Justice, Bhurban, 2012;
Recalling also the Angkor Statement of Commitment to ASEAN Judicial Cooperation on the Environment of 2015 at the Fifth Chief Justices Roundtable on Environmental Justice;
Noting the Statement of 2016 at the Sixth ASEAN Chief Justices Roundtable on Environment, Puerto Princesa City, The Philippines;
Noting also the Beijing Declaration issued at the National Judges Training on Environmental Adjudication, in Beijing, China, July 2018;
Acknowledging the ASEAN Joint Statement on Climate Change to the 23rd Session of the Conference of the Parties to the United Nations Framework Convention on Climate Change in 2017;
Further acknowledging the Forum Communiqué and the Kainaki II Declaration for Urgent Climate Change Action Now issued by Pacific leaders in Funafuti, Tuvalu, August 2019;
Recalling in addition the issues discussed in the Asia Pacific Judicial Colloquium on Climate Change: Using Constitutions to Advance Environmental Rights and Achieve Climate Justice, February 2018, Lahore, Pakistan; the Asia Pacific Judicial Conference on Environmental and Climate Change Adjudication, October 2018, Nay Pyi Taw, Myanmar; and the Asia Pacific Judicial Conference on Climate Change Adjudication: Trends and Impacts, October 2019, Nadi, Fiji;
Further aware of the 2019 Global Assessment Report on Biodiversity and Ecosystem Services and the evidence of steep declines in global and regional biodiversity;
Noting the 2020 Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment to the 75th Session of the UN General Assembly, the need for urgent action to conserve, protect and restore the biosphere on which all species depend, including Homo Sapiens, and illustrating the devastating effects of coronavirus disease (COVID-19), the global nature emergency on the enjoyment of human rights, and the crucial role of human rights in catalyzing action to safeguard nature;
Further noting the Climate Principles for Enterprises, as revised in 2020, with regard to the obligations of private enterprise to reduce their greenhouse gas emissions;
Recognizing the need for new and innovative approaches in judicial decision-making and the need for knowledge sharing between judges to address the issues of climate change and global health crises, especially in the light of the COVID-19 pandemic;
Appreciative of the establishment of the Global Judicial Institute on the Environment in 2016 and its mission to support the role of judges, courts, and tribunals to respond to pressing environmental crises;
Further recognizing that environmental laws require further development and enhanced implementation and enforcement at the national level as well as in the Asian and Pacific sub-regions;
Aware that the principle of pacta sunt servanda requires States to perform treaty obligations in good faith;
Further aware that the treaties and conventions, to which our States are parties, are binding on all branches of government, including the judiciary;
Recalling the Bangalore Principles on the domestic application of international human rights law, noting that national courts may have regard to international obligations which a State undertakes to remove ambiguity or uncertainty from national constitutions, legislation, or common law, or where the domestic law has a gap or is incomplete;
WE RECOGNIZE THAT:
There is an urgent need to reinforce international and national laws for the protection of the environment for present and future generations.
All people should be able to live in a safe, clean, healthy and sustainable environment.
All people should be protected from the impacts of zoonotic diseases.
All people should have the right to the enjoyment of the highest practicable standard of physical and mental health and access to appropriate and affordable health-care services within their own countries.
All people should have the right to be protected through government action from the adverse effects of anthropogenic climate change.
All people, with particular regard to vulnerable groups, should have access to information, be able to engage in public participation processes and have access to justice in environmental, climate and health matters.
In view of the severe impact of extreme climatic events in the form of flash floods, droughts, forest fires, national governments and judiciaries should evolve a bottom-up approach of legal, institutional and strategic measures for the protection of life and livelihoods, especially in low-lying coastal areas, islands, mountains and other disaster-prone areas.
AND AFFIRM THAT:
Judges and other judicial officers and government agencies in the Asian and Pacific regions should strengthen procedures to ensure the safe conduct of court hearings, including by provision of electronic access to the public, during the current pandemic or other major health events, in particular with respect to exposure of judges, court personnel lawyers, litigants, witnesses and observers, while also ensuring appropriate access to justice for individuals and communities.
Judges and other judicial officers and government agencies in the Asian and Pacific regions should take into account the declarations, reports, principles and procedures set out in this statement in their legal decisions and court administrative procedures to the extent possible and appropriate, in accordance with the laws of their jurisdictions.