This is the first edited book on specialist Environmental Courts and Tribunals (ects) in the Asia-Pacific region. ects play an important role in improving environmental dispute resolution, access to environmental justice, and overall environmental governance, but data and academic analysis on ects is very limited. In fact, to the best of our knowledge, there are only a few published books about ects in general – Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy by Ceri Warnock (Hart Publishing, 2020); An Environmental Court in Action: Function, Doctrine and Process edited by Elizabeth Fisher and Brian Preston (Hart Publishing, 2022) – and none at all which focus on the Asia-Pacific region. There is thus a critical need for a book of this kind at this time.
Asia-Pacific is a very important region for ects. Nine countries in Asia have operational ects: Bangladesh, China, India, Japan, Malaysia, Pakistan, South Korea, and the Philippines. China had the biggest developments, including how the number of ects increased from 976 to 1,353 in 20191. Thirteen countries in the Pacific have ects: Australia, New Zealand, Kiribati, Marshall Islands, Palau, Papua New Guinea, Tonga, Tuvalu, Vanuatu, Fiji, Nauru, Samoa, and Solomon Islands. In this region, Australia and New Zealand have the most advanced environmental jurisprudence and complex legal systems.
It is increasingly likely that the inadequacy of countries’ environmental commitments will be the main issue in environmental litigation. In other words, governments should prepare to see an increase in environmental litigation against them. ects are better equipped to handle this development compared to general courts. This is because they have the mandate, independence, procedures, resources, and court support necessary to manage the surge of environmental cases. In anticipation of this trend, there is an urgent need to document and analyse ects practices, particularly in Asia and the Pacific where the collective body of such knowledge remains thin. We aim to do so in a book that will capture the best practices, challenges, and ways forward for ects in the Asia-Pacific region. In particular, this book attempts to explore various issues including: the likelihood of ects emerging in Asia-Pacific countries which currently do not have them; how countries without ects handle their environmental cases; whether the development of ects is politically influenced; what specific factors prompted the proliferation of ects in China between 2016 and 2021, and how does this increase affect how environmental cases are handled in China; whether this ect optimism is shared by
This volume builds upon research undertaken by the editors pursuant to a project conducted by the Asia-Pacific Centre for Environmental Law (apcel) at the Faculty of Law, National University of Singapore to produce a 2021 update (2021 Guide) of the report on Environmental Courts & Tribunals: A Guide for Policy Makers 2016 for the United Nations Environment Programme (unep). The 2021 Guide was aimed at policymakers, judges, academics, and stakeholders who are interested in improving the adjudication of environmental disputes and covered all regions of the world. The book, in contrast, will delve into a deeper scholarly exposition of the specific trends and challenges facing ects in the Asia-Pacific region.
Environmental Courts and Tribunals in Asia-Pacific segments scholarly analysis into four parts: (1) Bridging the Gap: Theories and Practice of ects in Asia-Pacific; (2) Challenges and Benefits of ects in Asia-Pacific: Case Studies; and (3) Regional Perspectives on ects: Future and Challenges.
1 Part 1: Bridging the Gap: Theories and Practice of ects in Asia-Pacific
In the first chapter of the book, justice brian preston provides a multifaceted answer to the question: what roles do ects play in creating environmental justice? Within the global trend of exponential growth up to 20162 and sustained growth up to 20213, some ects played important roles in environmental justice while others struggled to stay afloat. As ects address issues – ranging from political, economic, socio-cultural to even psychological issues – as part of their adjudicatory functions, they create precedents and enhance the existing environmental justice system. At the same time, how these issues are addressed will influence the role(s) of ects in the continuous creation of environmental justice. As part of its analysis, this chapter will introduce the thematic question that other contributing authors tackle: what are the main purposes of ects? Among the answers are environmental justice; public engagement and participation in increasing environmental justice; equity; and equality. This line of reasoning lays the groundwork for the subsequent chapters of this book, which address ects in the region both institutionally and practically.
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The second part of the book is an applied analysis of the challenges and benefits faced by ects in different jurisdictions.
In the second chapter, gitanjali nain gill asks the question “quo vadis” (where are you going?) and traces the history of India’s National Green Tribunal (the ngt). It follows the National Green Tribunal’s journey in India using the core values evaluative performance framework as an ‘external’ viewpoint. Ten interconnected and interdependent basic values that help courts (for this chapter, ects) in providing justice and high-quality court services are promoted by the International Framework for Court Excellence (ifce). These fundamental principles include justice, impartiality, accessibility, judicial independence, competence, integrity, openness, and assurance. These values serve as a repository of authority and procedure in the decision-making process to provide access to environmental justice. They are the distinguishing characteristics of a functional judiciary. The success of the ngt in upholding and advancing the basic values in its actions, procedures, and working methods to deliver environmental justice is critically examined in this chapter. In order to avoid falling into the trap of failing to learn from past, it recognises the value of looking backward before looking forward.
In the third chapter, grizelda mayo-anda focuses on practices in the Philippines. The Supreme Court of the Philippines designated 117 local and regional trial courts throughout the country as environmental courts in 2008, five years after making its rulings in Minors Oposa v. Factoran on the significance of fundamental environmental rights in the Philippine Constitution. To aid in the administration of environmental justice, the Supreme Court published the Rules of Procedure for Environmental Cases (rpec) in April 2010. Various parties’ contributions to roundtable discussions and videoconferences on the role of courts and citizens in environmental protection were among the factors that led to the creation of rpec. rpec attempted to address a number of issues, including standing, suit fees, proof, and timeliness. The precautionary principle, continuing mandamus, citizen cases, special writs of Kalikasan, and slapps (strategic litigation against public participation) were all covered. This chapter looks at potential and obstacles in environmental case adjudication since the adoption of rpec.
In the fourth chapter, judge laurie newhook, ceri warnock, and ALAN webb presents the challenges and benefits of New Zealand’s ects through a thorough explanation of the legal status of the New Zealand Environment Court. This chapter discusses its history, current authority, and duties in-depth, as well as the procedures it uses to promote access to
In the fifth chapter, jo TORIYABE shows how Japan’s ets are an example of independently developing procedures, as well as the benefits and challenges of this practice. This chapter will be contextualised within Japan’s non-litigious environmental dispute resolution culture, albeit recognising that the National Environmental Dispute Coordination Commission (edcc) may adjudicate in exceptional cases. The main focus of the analysis explains the functions and difficulties of the administrative environmental tribunals in Japan, with an emphasis on the edcc’s operations. The edcc has been operating for 50 years since it was founded, adapting quickly to the times. The edcc’s handling of environmental issues has frequently drawn attention from the public and, from the standpoint of law and policy, had a considerable influence on Japanese society. In this sense, it is possible to say that the edcc’s efforts have produced a given set of outcomes.
Chapter 6 is written by agung wardana and showcases the green benches in Indonesia. This chapter analyses how on the one hand, judges’ knowledge and expertise in addressing environmental disputes have risen as a result of the environmental certification system. On the other hand, having these abilities does not guarantee that the environment will be better protected. These results seem to be more impacted by the structural conditions in which the courts function than by the personal characteristics of the judges. Therefore, the present call for the establishment of environmental courts must first navigate this difficult structural context, particularly in a nation like Indonesia that mainly relies on an economy built on resource exploitation.
This train of thoughts is continued by the seventh chapter, where justice ayesha a. malik traces the role of Pakistani courts in declaring environmental rights as rights fundamental to the right to life and dignity. The Supreme Court of Pakistan has actively addressed environmental issues through public interest litigation and the exercise of suo moto jurisdiction and has declared the right to a clean and healthy environment a fundamental right under the
In Chapter 8, zhao yuhong explains Environmental Courts (ecs) in China. Since 2007, ecs have been operating with the goal of improving the delivery of environmental justice while enhancing environmental governance. More than 2,000 specialized environmental adjudication bodies are currently in use at four levels of courts with broad jurisdiction as a consequence of fifteen years of rapid development. This chapter explores the development and operation of environmental courts in China and explores if and how specialization in environmental adjudication affects sound environmental governance via the use of case studies, ranging from water contamination and public interest lawsuit exploration in the early days of environmental courts, to the Chinese model of environmental courts by comparing it to international best practices of effective environmental courts and tribunals.
3 Part 3: Regional Perspectives on ects: Prospects and Challenges
This final part of the book concludes on regional perspective for ects in the Asia-Pacific region.
The ninth chapter focuses on South Asian perspectives on ect: prospects and challenges. kokila konasinghe presents a legal analysis with a study on comparative jurisdictions of 8 countries within the South Asia region. The eight tropical nations of South Asia are renowned for having a rich biodiversity that spans a variety of environments. The area has consistently faced a wide range of environmental problems that have called for quick fixes including thorough legislative frameworks, thoughtful administrative decisions, and eco-centric judicial interpretations. Due to the particular nature of these widespread environmental issues, immediate and best-suited legal measures are needed to protect and advance environmental safeguards in the area. In light of these environmental issues, the chapter examines the crucial role that South Asian environmental courts and tribunals have played in the region.
The last chapter, which is the tenth chapter, written by linda yanti sulistiawati and focuses on the regional perspective of ects in Asia-Pacific, and
This edited book gives you access to comprehensive and current materials, as well as first-hand accounts of managing ects, handling environmental cases, and doing national/regional research on ects. As editors, it is our intention that these chapters capture and add to the conversation about ects in the Asia-Pacific area as well as globally, and that they will spark further investigation, debate, and contributions to the advancement of ects, access to environmental justice, and environmental justice in general.
Finally, we would like to express our gratitude to Robin Louis Buxton-Leow, Julia Liaw Zhuo Yi, and Negrine Joseph for their tireless research assistance on this book. Their dedication and tenacity were extremely helpful to this publication.
Linda Yanti Sulistiawati
Sroyon Mukherjee