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SOLVING ASIA PACIFIC’S ENVIRONMENTAL CHALLENGES: A CLOSER LOOK AT TRANSNATIONAL LITIGATION
by Setyawati Fitrianggraeni, Eva F Fauziah, and Sri Purnama*
Research Group Arbitration and Alternative Dispute Resolutions
Working Committee Disputes and Transnational Litigation
Legal Lab Team, Anggraeni and Partners
INTRODUCTION
The environment, paramount to sustaining life on Earth, is under considerable duress, especially in Asia, home to the world’s largest population.[1] Climate change, a pressing environmental concern, equally impacts all nations within this region, intricately weaving economic growth, poverty, and environmental protection issues.[2] Whilst states bear primary responsibility for environmental degradation, business entities, many notable emitters, cannot evade their culpability. As the damaging consequences of climate change mount, affected parties are increasingly seeking redress through litigation against transnational corporations and states implicated in environmental harm. Transnational environmental litigation serves as a crucial platform to address these disputes, encompassing state actors and non-state entities under the ambit of international law.[3] Moreover, it epitomizes the collective duty to safeguard our environment by pre-empting, mitigating, and overseeing environmental threats.[4]
This article endeavors to shed light on three pivotal aspects. Firstly, it accentuates the significance of transnational environmental litigation in solving international environmental disputes within the Asia Pacific, particularly those tethered to climate change. Secondly, it delves into pertinent cases of transnational environmental litigation from this region. Lastly, it probes into the inherent challenges and forecasts the trajectory of transnational litigation in Asia.
BACKGROUND ON TRANSNATIONAL ENVIRONMENTAL LITIGATION
Transnational litigation, at its core, bridges national and international judicial systems. It encapsulates cases involving state and non-state actors, whether against states, between individuals across borders, or between individuals and states.[5] Distinctively, transnational environmental litigation intertwines transnational laws—governing actions or occurrences crossing national boundaries—with environmental statutes.[6]
This mode of litigation functions within a justice-oriented paradigm, uniting the push for a human rights-centric approach to international climate conventions. This perspective perceives climate concerns within the broader environmental governance and sustainable development pursuits.[7]
Historically, procedural law witnessed transnational litigation as an emergent concept, mirroring contemporary needs. Whilst traditional dispute resolution remained within national borders, foreign elements ushered in an international litigation framework.[8] With the dynamic nature of the law, which specialised facet predominantly addresses environmental harm cases, whether by non-state entities against nations or claims against global corporations?[9]
Frequently, such litigation is the avenue victims seek compensation for their incurred damages. Within the Asia Pacific domain, should consensus-driven negotiations under the United Nations Framework Convention on Climate Change (UNFCCC) fall short in adequately aiding victims,[10] alternative routes—taken by states, non-governmental organisations (NGOs), or the aggrieved communities—are pursued to secure redress for environmental harm.
OVERVIEW OF ENVIRONMENTAL LAW IN THE ASIA-PACIFIC REGION
The right to a pristine, sustainable environment is an intrinsic human entitlement.[11] Globally, critical legal instruments addressing climate change encompass the 1997 Kyoto Protocol, the 2010 Cancun Agreements, the 2012 Doha Amendment, and the 2015 Paris Agreement. Pertinently, the Asia Pacific region has established several legal mechanisms in response, including the 2002 Association of Southeast Asian Nations Agreement on Transboundary Haze Pollution, the 2007 Malé Declaration on the Human Dimension of Global Climate Change, 2012 Action Plan on Joint Response to Climate Change, 2016 Framework for the Resilient Development of the Pacific, and the 2018 Boe Declaration on Regional Security.
The pursuit of environmental protection and management has intensified. This commitment is mirrored in the proliferation of conferences, international accords, and regional entities—both governmental and non-governmental—devoted to environmental contemplation and action.
Focusing on Indonesia, a key player in the Asia Pacific, the nation grapples with multifaceted environmental challenges, encompassing climate variances, land degradation, and biodiversity conservation. Indonesia has enacted Law Number 32 of 2009 on Environmental Protection and Management (Law 32/2009). This comprehensive legislation harmonises the stewardship of marine, terrestrial, and aerial domains, promoting sustainable development.[12] Law 32/2009 is complimented with several complementary regulations, including Law Number 31 of 2009 on Meteorology, Climatology and Geophysics, and Law Number 18 of 2008 on Waste Management, alongside Government Regulation Number 22 of 2021 on the Implementation of Environmental Protection and Management, amongst others.
Recognising the vastness of environmental concerns—from aquatic, terrestrial, to aerial protection—the extant regional and national laws appear robust. Environmental law, emblematic of progressive development legalities at national and international fronts, has been pivotal to environmental evolution.[13] Given the Asia Pacific’s unique societal and environmental fabric, its environmental focus diverges from other regions, emphasising biodiversity conservation, marine plastic waste mitigation, greenhouse gas emission control, global temperature modulation, and enhancing ecosystem viability.
Nevertheless, despite such laws, their practical execution, especially in law enforcement and environmental dispute redressal,[14] remains suboptimal. The populace’s environmental cognisance is still nascent, and current regulations, whilst present, often lack the teeth to hold both public and private entities to account for failing to honour climate commitments, subsequently inflicting harm upon others. This enforcement gap has, unsurprisingly, propelled many to seek legal recourse for their grievances.[15]
CASE STUDIES OF TRANSNATIONAL ENVIRONMENTAL LITIGATION IN THE ASIA-PACIFIC REGION
Climate change is primarily driven by two categories:[16]
- Anthropogenic Causes: This encompasses activities such as deforestation, alterations in land use, greenhouse gas emissions, combustion of fossil fuels, urban development, pollutant release, and the expansion of agriculture.
- Natural Causes: Changes in solar intensity, alterations in the Earth’s orbital path, shifts in oceanic circulation patterns, volcanic eruptions, glacial melting, and subsequent sea-level rise.
It is evident from the above that human activities are significant contributors to climate change. Litigations related to climate change predominantly seek remedy for damages attributed to carbon producers and demand compensation.[17]
A paramount example of transnational environmental litigation in the Asia-Pacific is the case initiated by the Philippines Reconstruction Movement and Greenpeace against several high-emitting entities, colloquially termed “Carbon Majors”.[18] These are corporations perceived to be significant contributors to climate change. The lawsuit, presented by a consortium of 12 organisations, 20 individuals, and over 1,000 Filipinos, implored the Philippine Commission on Human Rights to diligently investigate the Carbon Majors’ role in inducing climate change and ocean acidification. The plaintiffs sought to hold these corporations accountable for a significant quantum of global greenhouse gas discharges.[19]
Post-investigation, the Commission determined that 47 of the implicated carbon corporations bore liability for the human rights infringements resulting from their climate-altering actions. The Commission articulated that while the existing civil jurisprudence in the Philippines offers a foundation for redress, it does not preclude potential criminal indictments should the actions be demonstrated as intentional.[20]
This Philippine litigation underscores the intricate interplay between environmental legislation and human rights norms, particularly the entitlement to a healthy environment. Whilst legal accountability for climatic impairment might not be cherished in prevailing national and international human rights charters, corporations undeniably possess a palpable moral obligation. Furthermore, the state, bearing the mantle of environmental stewardship,[21] must continually adapt to emerging challenges, especially in safeguarding foundational human rights. The Philippine Government is anticipated to formulate and institute lucid regulations related to climate redress, particularly concerning evidentiary rules linking climate change repercussions and damage assessment.[22]
CHALLENGES AND OPPORTUNITIES IN TRANSNATIONAL ENVIRONMENTAL LITIGATION IN THE ASIA-PACIFIC REGION
Environmental law enforcement plays a pivotal role in preserving and managing our natural ecosystems. However, like any regulatory system, its application faces intrinsic and extrinsic challenges. Within the core of these challenges lie various influencing factors: the intricacies of legal provisions, the efficacy of enforcement mechanisms, the availability of resources, community dynamics, and prevailing cultural norms.[23]
One of the most pronounced challenges in this context is the intricacy of international legal dispute resolution. The global nature of environmental concerns, especially those that transcend national borders, brings forth jurisdiction issues. International environmental disputes often grapple with the complexities of jurisdictional boundaries, reflecting the intricate interplay of sovereign states in matters that affect the global commons. Furthermore, transnational environmental litigation often confronts procedural hurdles such as establishing the right to sue, determining appropriate remedies, and navigating substantive legal concerns surrounding causation and the obligation of care.[24] These multifaceted challenges underscore the complexity of achieving environmental justice on a transnational scale.
Nevertheless, amidst these challenges, the promise and potential of transnational environmental litigation emerge. This form of litigation offers hope, particularly for the Asia-Pacific region. It represents an effort to address the lacunae between accountability and robust enforcement of climate change law domestically and internationally.[25]
The rising prevalence of such litigation attests to its growing recognition as a preferred legal avenue for parties pursuing climate justice and corporate accountability. The scope for seeking redressal has expanded, bolstered by advancements in scientific understanding, particularly regarding the anthropogenic contributions to greenhouse gas emissions, and evolving jurisprudential debates on causation. Both state and non-state actors now find themselves within the purview of potential liability, opening doors to seek compensation through transnational environmental litigation.[26]
THE FUTURE OF TRANSNATIONAL ENVIRONMENTAL LITIGATION IN THE ASIA-PACIFIC REGION
The alarming rise in extreme weather events, natural disasters, and ecosystem degradation linked to climate change has profoundly threatened human existence in the present and foreseeable future. Whilst “climate change” has often been attributed to unsustainable human actions, it is essential to recognise that while the climate would evolve irrespective of human interference, certain anthropogenic activities exacerbate its detrimental impacts.[27]
Given the extensive ramifications of climate change, all stakeholders must commit to environmental protection and management. Transnational environmental litigation emerges as a tangible embodiment of international environmental law enforcement. This legal avenue has evolved significantly, driven by advancements in scientific research specific to climate change litigation and the broader intersections of legal theory, notably within human rights law.[28]
This evolving landscape of climate change litigation highlights the existing disparities in environmental statutes, particularly within the Asia-Pacific ambit. It further underscores the potential to progress towards more unified and consistent legal provisions across Asia, addressing environmental matters.
The primary objective of transnational environmental litigation transcends the binary of courtroom victories and losses. Its overarching aim is the realisation of a more pristine and sustainable environment.[29] Hence, every entity that benefits from the environment—which essentially encompasses all—should actively foster environmental conservation. They should leverage the mechanisms of transnational environmental litigation, particularly those tailored for redressing environmental harm and ensuring adequate compensation.[30]
For effective realisation, stakeholders, ranging from individuals to legal professionals, NGOs, and governmental bodies, must amplify their reliance on these judicial means. It is equally crucial for these entities to invest in research continually, maintain vigilant oversight of environmentally impactful activities, and foster collaborations to champion the cause of sustainable development. Within the Asia-Pacific context, there is a palpable aspiration that transnational environmental litigation will catalyse harmonising approaches to resolving environmental disputes.
CONCLUSION
The discourse surrounding climate change remains a central concern in the Asia-Pacific domain, notably because the region encompasses multiple nations especially susceptible to its ramifications. Whilst climate evolution is not solely attributable to anthropogenic interventions — natural processes play a role — human endeavours across industrial, agricultural, and domestic sectors undeniably influence its trajectory. This environmental quandary carries the potential for future legal disputes, specifically those arising from claims for damages and pollution by entities accountable under environmental law. A salient example is the lawsuit initiated by the Philippines Reconstruction Movement and Greenpeace against the so-called Carbon Majors, highlighting the role of transnational environmental litigation in enforcing international environmental stipulations.
Given the profound implications of climate change for the present and future cohorts, addressing environmental challenges becomes paramount. However, implementing transnational environmental litigation is not without its challenges. These encompass a range of juridical constraints, procedural hurdles, and substantive concerns. Nevertheless, despite these complexities, transnational environmental litigation is a pivotal adjunct to the global tenets of environmental law, particularly for the Asia-Pacific sphere. This litigation is instrumental in addressing international environmental dilemmas. It remains a steadfast instrument in the relentless pursuit of environmental justice across the Asia-Pacific landscape.
*Setyawati Fitrianggraeni holds the position of Managing Partner at Anggraeni and Partners in Indonesia. She also serves as an Assistant Professor at the Faculty of Law, University of Indonesia, and is currently pursuing a PhD at the World Maritime University in Malmo, Sweden. Additionally, Eva Fatimah Fauziah is former Senior Associate in the International Arbitration and Litigation Group and also Head of Legal Lab at Anggraeni and Partners, and Sri Purnama is Head of Legal Lab.
BIBLIOGRAPHY
Books
Adolf H, Aspek-Aspek Negara dalam Hukum Internasional, (Bandung: Keni Media, 2011)
Bram D, Hukum Perubahan Iklim: Perspektif Global dan Nasional, (Malang: Setara Press, 2016)
Husin S, Hukum Internasional dan Indonesia tentang Perubahan Iklim, (Depok: Raja Grafindo Persada, 2016)
Jessup P, Transnational Law, (New Haven: Yale University Press, 1956)
Silalahi D, Hukum Lingkungan: Dalam Sistem Penegakan Hukum Lingkungan Indonesia, (Bandung: P.T. Alumni, 2001)
Soekanto S, Faktor-Faktor yang Mempengaruhi Penegakan Hukum, (Jakarta: PT Raja Grafindo Persada, 2008)
Journals
Dubois SM, “Climate Change Litigation”, Encyclopedia Entries, Oxford Public International Law, (2023), https://opil.ouplaw.com/display/10.1093/law-mpeipro/e3461.013.3461/law-mpeipro-e3461#law-mpeipro-e3461-div1-5, accessed 23 August 2023
Fakana ST, “Cause of Climate Change: Review Article”, Global journal of Science Frontier Research, (2020), 20(2), 8-10, https://www.researchgate.net/publication/342452772_Causes_of_Climate_Change_Review_Article, accessed 22 August 2023
Ganguly g, Joana Setzer, and Veerle Heyvaert, “If at First You Don’t Succeed: Suing Corporations for Climate Change”, (2018), 38(4), Oxford Journal of Legal Studies, 13, http://eprints.lse.ac.uk/89702/7/gqy029.pdf, accessed 25 August 2023
Heyvaert V and Leslie Anne Duvic Paoli, “Chapter 1: The Meanings of Transnational Environmental Law”, Handbook Chapter, 2020, 7, https://www.elgaronline.com/display/edcoll/9781788119627/9781788119627.00009.xml, accessed 21 August 2023
Hunter Dand James Salzman, “Negligence in the Air: the Duty of Care in Climate Change Litigation”, (2007), 155(6), University of Pennsylvania Law Review, 1775, https://scholarship.law.upenn.edu/penn_law_review/vol155/iss6/8/, accessed 26 August 2023
Peel J and Jolene Lin, “Transnational Climate Litigation: The Contribution of The Global South”, 2019, 113(4), American Journal of international Law, 726, https://doi.org/10.1017/ajil.2019.48, accessed 22 August 2023
Savaresi A and Joana Setzer, “Right-based litigation in the Climate Emergency: Mapping The Landscape and New Knowledge Frontiers”, (2022), 13(1), Journal of Human Rights and The Environment, 12, https://doi.org/10.4337/jhre.2022.01.01, accessed 23 August 2023
Sembiring ZA and Audi Gusti Baihaqie, “Litigasi Perubahan Iklim Privat di Indonesia: Prospek dan Permasalahannya”, (2020), 7(1), Jurnal Hukum Lingkungan Indonesia, 124, https://doi.org/10.38011/jhli.v7i1.215, accessed 25 August 2023
Slaughter DAM, “A Global Community of Courts”, (2003), 44(1), Harvard International Law Journal, <https://www.jura.uni-hamburg.de/media/die-fakultaet/personen/albers-marion/seoul-national-university/course-outline/slaughter-2003-a-global-community-of-courts.pdf>, accessed 21 August 2023
Toussaint P, “Loss and Damage and Climate Litigation: The Case for Greater Interlinkage”, (2020), 30(1), Review Of European, Comparative, and International Environmental Law, 16, https://doi.org/10.1111/reel.12335, accessed 22 August 2023
Regulations
United Nations, The human Right to A Clean, Healthy and Sustainable Environment, General Assembly of the United Nations, No. A/RES/76/300.
Law Number 32 of 2009 Concerning Environmental Protection and Management.
[1] Daud Silalahi, Hukum Lingkungan: Dalam Sistem Penegakan Hukum Lingkungan Indonesia, (Bandung: P.T. Alumni, 2001), 4.
[2] Deni Bram, Hukum Perubahan Iklim: Perspektif Global dan Nasional, (Malang: Setara Press, 2016), 1.
[3] Veerle Heyvaert and Leslie Anne Duvic Paoli, “Chapter 1: The Meanings of Transnational Environmental Law”, Handbook Chapter, 2020, 7, https://www.elgaronline.com/display/edcoll/9781788119627/9781788119627.00009.xml, accessed 21 August 2023.
[4] Huala Adolf, Aspek-Aspek Negara dalam Hukum Internasional, (Bandung: Keni Media, 2011), 252.
[5] Dean Anne Marie Slaughter, “A Global Community of Courts”, (2003), 44(1), Harvard International Law Journal, 192, <https://www.jura.uni-hamburg.de/media/die-fakultaet/personen/albers-marion/seoul-national-university/course-outline/slaughter-2003-a-global-community-of-courts.pdf>, accessed 21 August 2023.
[6] P. Jessup, Transnational Law, (New Haven: Yale University Press, 1956), 113.
[7] Jacqueline Peel and Jolene Lin, “Transnational Climate Litigation: The Contribution of The Global South”, 2019, 113(4), American Journal of international Law, 726, https://doi.org/10.1017/ajil.2019.48, accessed 22 August 2023.
[8] Dean Anne Marie Slaughter, Loc.Cit.
[9] Sandrine Maljean-Dubois, “Climate Change Litigation”, Encyclopedia Entries, Oxford Public International Law, (2023), https://opil.ouplaw.com/display/10.1093/law-mpeipro/e3461.013.3461/law-mpeipro-e3461#law-mpeipro-e3461-div1-5, 17.
[10] Patrick Toussaint, “Loss and Damage and Climate Litigation: The Case for Greater Interlinkage”, (2020), 30(1), Review Of European, Comparative, and International Environmental Law, 16, https://doi.org/10.1111/reel.12335, accessed 22 August 2023.
[11] See, United Nations, The Human Right to A Clean, Healthy and Sustainable Environment, General Assembly of the United Nations, No. A/RES/76/300.
[12] Law Number 32 of 2009 Concerning Environmental Protection and Management, General Explanation.
[13] Daud Silalahi, Op.Cit., 253.
[14] Ibid.
[15] Annalisa Savaresi and Joana Setzer, “Right-based litigation in the Climate Emergency: Mapping The Landscape and New Knowledge Frontiers”, (2022), 13(1), Journal of Human Rights and The Environment, 12, https://doi.org/10.4337/jhre.2022.01.01, accessed 23 August 2023
[16] Selemon Thomas Fakana, “Cause of Climate Change: Review Article”, Global journal of Science Frontier Research, (2020), 20(2), 8-10, https://www.researchgate.net/publication/342452772_Causes_of_Climate_Change_Review_Article, accessed 22 August 2023
[17] David Hunter and James Salzman, “Negligence in the Air: the Duty of Care in Climate Change Litigation”, (2007), 155(6), University of Pennsylvania Law Review, 1775, https://scholarship.law.upenn.edu/penn_law_review/vol155/iss6/8/, accessed 26 August 2023
[18] See, Geetanjali Ganguly, Joana Setzer, and Veerle Heyvaert, “If at First You Don’t Succeed: Suing Corporations for Climate Change”, (2018), 38(4), Oxford Journal of Legal Studies, 13, http://eprints.lse.ac.uk/89702/7/gqy029.pdf, accessed 25 August 2023, Also see: Philippines Reconstruction Movement and Greenpeace Southeast Asia v. Carbon Majors (2015) Case No CHR-NI-2016-0001
[19] Ibid.
[20] Ibid., 14.
[21] Huala Adolf, Loc.Cit.
[22] Geetanjali Ganguly, Joana Setzer, and Veerle Heyvaert, Op.Cit., 21.
[23] Soerjono Soekanto, Faktor-Faktor yang Mempengaruhi Penegakan Hukum, (Jakarta: PT Raja Grafindo Persada, 2008), 8.
[24] Zefanya Albrena Sembiring and Audi Gusti Baihaqie, “Litigasi Perubahan Iklim Privat di Indonesia: Prospek dan Permasalahannya”, (2020), 7(1), Jurnal Hukum Lingkungan Indonesia, 124, https://doi.org/10.38011/jhli.v7i1.215, accessed 25 August 2023.
[25] Annalisa Savaresi and Joana Setzer, Op.Cit., 13
[26] Zefanya Albrena Sembiring and Audi Gusti Baihaqie, Loc.Cit.
[27] Sukanda Husin, Hukum Internasional dan Indonesia tentang Perubahan Iklim, (Depok: Raja Grafindo Persada, 2016), 59
[28] Ibid., 128
[29] A clean, healthy and sustainable environment is a basic human right, See: United Nations, The Human Right to a Clean, Healthy and Sustainable environment, General Assembly of the United Nations, No. A/RES/76/300.
[30] Zefanya Albrena Sembiring and Audi Gusti Baihaqie, Op.Cit., 126
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