Climate Change Litigation in Asean

The high vulnerability of South-East Asia to climate change is acknowledged in the ASEAN Action Plan on Joint Response to Climate Change. The region has become ‘less ecologically diverse and more environmentally vulnerable’[2]as evidenced by the Global Climate Risk Index 2019 which rank Myanmar, Philippines and Vietnam amongst the top 10 most exposed countries to climate change. Since 2007, at least 40 climate-related laws, regulations and decrees have been enacted by ASEAN Member States (“AMSs”)[3] and new legislations are currently being drafted[4]. This rapid lawmaking and the setting up of environmental courts[5] illustrate the growing awareness of climate change in the region.

The ASEAN judiciary has recognized the common climate change challenges:

“Southeast Asia is highly vulnerable to climate change and is increasingly a significant contributor to global greenhouse gas emissions.”[6]

In a recent lawsuit in the Philippines, the Court stated:

“The Philippines is one of the country’s most directly affected and damaged by climate change.”[7]

Justice Presbitero Velasco, a prominent environmental Judge of the Philippines, commented:

“The need to address environmental pollution, as a cause of climate change, has of late gained the attention of the international community. Media have finally trained their sights on the ill effects of pollution, the destruction of forests and other critical habitats, oil spills, and the unabated improper disposal of garbage. And rightly so, for the magnitude of environmental destruction is now on a scale few ever foresaw and the wound no longer simply heals by itself. But amidst hard evidence and clear signs of a climate crisis that need bold action, the voice of cynicism, naysayers, and procrastinators can still be heard.”[8]

Amid the vast literature on global climate change litigation, there are few research and database on climate change litigation in ASEAN[9] or on individual member states[10]. Most climate change studies on ASEAN are from scientific, political, legal and policy perspectives[11]. LITIGASIA endeavors to fill the gap via a thorough collection and analysis of climate change litigation. The database’s results reveal that climate litigation is now past the stage at which it would be considered nascent. Atypical investigation [12], landmark decision[13],innovative remedy[14], out of court-settlement[15] have been flourishing in the past years with Philippines, Indonesia and Thailand leading the way. Climate change litigation is about to take new magnitudes in ASEAN. [16]

The ASEAN judiciary demonstrates a level of inclination similar to some jurisdictions (i.e. Europe, India, Pakistan) to fill the institutional vacuum left by governments and parliaments (e.g. Urgenda Foundation v Kingdom of the Netherlands, Supreme Court, 2019),[18] but also in several cases, in light of American jurisprudence on climate change, ASEAN courts have declined to hear politically sensitive matters by manipulating the nebulous concept of legal standing.

How climate change litigation is defined?

There is a wide range of definitions of climate change litigation ranging from narrow to broad. LITIGASIA uses on a broad definition of climate disputes and includes cases where climate change is at the periphery of the pleading, argument or decision or even indirect.

There are two main reasons for this choice:
  • • There is learning to harvest from peripheral cases which petitioners, practitioners or judges may apply to climate change disputes in the future as climate laws continue to develop in ASEAN;

  • • Not all AMs have enacted their climate change legislation and even when such laws are in place their enforcement is nascent or is awaiting implementing regulations. For that reason, there are climate cases which don’t specifically mention “climate change” as a disputed issue which will however be classified as climate change litigation in countries having climate change legislations. This is acknowledged by several Judges in ASEAN, for example:

    Srunyoo Potiratchatangkoon Judge of the Central Administrative Court of Thailand summarizes this challenging situation:

    “National laws on climate change do not exist in Thailand but there are some global warming cases, for example water resources cases.”[19]

    Justice Valesco of the Philippines also further stated:

    “A law specifically limiting GHG emissions is not a prerequisite to the filing of such a case. Cases touching on climate change could be filed on the basis of other relevant laws, such as those requiring the conduct of EIAs (to take account of the environmental impacts, including climate impacts of particular projects), similar to what has happened in some other jurisdictions.”[20]

    Chief Justice Tun Arifin Bin Zakaria of Malaysia further identifies models in Asia Pacific to follow when it comes to litigation:

    “Ultimately we in Malaysia hope to follow in the footsteps of nations like India and the Philippines who have made giant strides in environmental law and enforcement” and his wish is that “the Judiciary [of Malaysia] will continue to embrace the concept of the environment, and its undeniable and irreversible connection with sustainable development.”[21]

[2] Asian Development Bank Report (1997: 99).
[3] Isabelle Whitehead, Climate Change Law in Southeast Asia : Risk Regulation and Regional Innovation, University Of Sydney (2013)
[4] Thailand and Malaysia are currently drafting their Climate Change law.
[5] Environmental Governance and the Courts in Asia, Law and Policy Reform Brief No. 1 June 2012, An Asian Judges Network on the Environment
[6] Second ASEAN Chief Justices' Roundtable on Environment ASEAN’s Environmental Challenges and Legal Responses Editors Kala K. Mulqueeny Francesse Joy J. Cordon, 2013.
[7] Saguisag v. Ochoa, 779, SCRA 241 (2016).
[8] Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48, 574 SCRA 66 (2008)
[9] Chief Judge Tan Sri Richard Malanjum “Evolving Legal Jurisprudence in ASEAN Region and Its Challenges” Journal of the Malaysian Judiciary (2017). Jacqueline Peel, Jolene Lin Transnational Climate Litigation: The Contribution of The Global South, American Journal of International Law, Volume 113 Issue 4 October 2019, pp. 679-726.
[10] David Nicholson, Environmental Litigation in Indonesia, 6 Asia Pacific Journal Of Environmental Law, Vol 6, Issue 47 (2001). Frank W. Munger, Peerawich Thoviriyavej, Vorapitchaya Rabiablok, An Alternative Path to Rule of Law? Thailand’s Twenty-First Century Administrative Courts Indiana Journal of Global Legal Studies Vol. 26 #1 (2019).
[11] Lorraine Elliott, ASEAN and environmental cooperation: norms, interests and identity The Pacific Review, Vol. 16 No. 1 2003: 29–52.
[12] Human Rights Commission of the Philippines investigation to the accountability of global corporations for human rights violations resulting from climate change. Case No. CHR-NI-2016-0001.
[13] Oposa vs. Factoran, Philippines’ Supreme Court decision G.R. No. 101083, July 30, 1993.
[14] Chiang-Mai Administrative Court Judgment No.60-77/2552 and No.64/2548.
[15] Hoang et al, Current Issues of Environmental Management in Vietnam: The Case of VEDAN Vietnam Japan Society for Information and Management 2012, Vol 33. 1 pp.199-209.
[16] David Markell et al, An Empirical Assessment of Climate Change in The Courts: A New Jurisprudence Or Business As Usual? 64 Law Review 15, 21 (2012).
[17] John M. Steadman, “The Myth of Asia”, Simon and Schuster, 1969.
[19] Srunyoo Potiratchatangkoon Global Warming Case in the Administrative Court of Thailand, 3rd ASEAN Chief Justices Roundtable on Environment, 2014.
[20] Third ASEAN Chief Justices' Roundtable on Environment: ASEAN's Environmental.
[21] Chief Justice Tun Arifin Bin Zakaria’s speech for the opening of the legal year 2017.