Symposium: Climate Change in an Unequal World: Does International Law Matter?
Climate Change Litigation: A View from ASEAN
by Jolene Lin
Published on 16 September 2022
Frustrated by governmental inaction and threatened by the impacts of climate change on their homes and livelihoods, citizens and environmental groups around the world have taken the quest for climate justice to the courts. Greenpeace, the world’s largest environmental NGO network, has filed climate change-related lawsuits in Argentina, Norway, Mexico, Germany and Indonesia for example. In 2020, four East African civil society organisations filed a legal challenge against the East African Crude Oil Pipeline (EACOP) in the East African Court of Justice.In Sacchi and Others v. Argentina and Others, sixteen youths (then aged between eight and seventeen years) filed a complaint to the Committee on the Rights of the Child (CRC), which is an adjudicatory body for the Convention on the Rights of the Child. The Sacchi petitioners brought suit against five countries – Argentina, Brazil, France, Germany and Turkey – alleging that the state parties’ acts and omissions “recklessly [caused] and [perpetuated] life-threatening climate change” and violated their Convention rights.
Since the signature of the Paris Agreement in 2015, the total number of climate change-related lawsuits has doubled. Just over 800 cases were filed between 1986 and 2014 and over 1,200 cases have been filed between 2015 and 2022. Apart from a handful of cases filed at international and regional tribunals, the vast majority of climate change lawsuits are filed in domestic courts. In this regard, domestic courts are playing an important role in the implementation of the Paris Agreement. The role of litigation in affecting “the outcome and ambition of climate governance” was recognized by the Intergovernmental Panel on Climate Change (IPCC) Working Group III in 2022.
The majority of cases have been filed in the Global North, particularly the United States and Australia, but the number of climate litigation cases in the Global South continues to grow. There is also growing interest in the study of climate change litigation in the Global South as some courts have issued groundbreaking decisions and there is a steady tide of lawsuits being filed across Latin America, Africa and Asia. Against this background, it is not surprising that climate change litigation has also emerged within the ASEAN region which comprises of Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam. This region is home to some of the most climate vulnerable countries in the world. The IPCC has warned that the region is facing rising sea levels, heat waves, droughts and increasing intense rainstorms. A survey by the ISEAS-Yusof Ishak Institute found that Southeast Asians view the increasingly intense rainstorms and flooding as the most serious climate change risks they face. While climate change has been identified at ASEAN summits and meetings as a significant regional challenge, it can be argued that there remains a lack of concerted action.
Climate-change related lawsuits have been filed before the courts in the Philippines, Thailand and Indonesia. In a handful of cases brought by the Indonesian government (through the Ministry of Environment and Forestry (MoEF)) against timber companies and oil palm concession holders for illegal logging and causing peatland fires, the MoEF sought compensation for the environmental damage resulting from the defendants’ illegal conduct as well as costs to restore the natural resource to its prior state. The climate change dimension lies in the MoEF’s claim requiring the defendant to pay the costs restoring the damaged carbon sink such as a forest or a mangrove area (restoration costs) or compensation for the release of greenhouse gases (GHGs) due to the destruction of the carbon sink. The courts ruled in favour of the MoEF in these cases and imposed huge fines on the defendant companies for their environmentally destructive behaviour. However, the enforcement of judgments is a challenge in Indonesia and at the time of writing, many of the fines remain unpaid. While this points to a significant limitation of the use of litigation to advance climate change protection and the importance of strengthening enforcement capabilities in many jurisdictions, these cases represent a novel approach to deterring illegal deforestation and peatland fires which are a major source of GHG emissions in Indonesia. Tackling deforestation and peatland destruction is critical from a climate change perspective because they are vital carbon sinks. The destruction of tropical forest cover results in an average of 4.8 gigatons of carbon dioxide emissions annually, “causing more emissions every year than 85 million cars would over their entire lifetime”.
In Thailand, a coalition of NGOs and environmental law firms has been working with a Karen minority community to file a lawsuit at the Chiang Mai Administrative Court on grounds that the approved Environmental Impact Assessment (EIA) conducted for the proposed opening of an open-pit lignite coal mine in the remote mountains of the Omkoi district was riddled with errors and omissions and failed to provide any meaningful opportunities for public participation. In March 2022, NGOs brought a lawsuit against the Thai government for failing to protect its citizens from air pollution. Such lawsuits for clean air offer an important pathway for tackling climate change through enforcement of existing environmental laws.
An early example of climate change litigation in the Philippines is Global Legal Action on Climate Change v the Philippine Government filed in 2010. The petitioners sought to compel the government to perform its duty under Republic Act 6716 to construct rainwater collectors in every barangay (village) throughout the country “in such number as may be needed and feasible.” It was argued that this action was necessary to ensure that the population enjoys a sustained supply of freshwater and is safe from flooding which is occurring more frequently and with greater intensity because of climate change. The case was settled when the defendant government department signed a settlement agreement committing to carry out the required works.
However, the most visible climate-related case in the Philippines must be the Carbon Majors Petition. The “Carbon Majors” refer to the ninety fossil fuel producers which are responsible for more than half of industrial carbon emissions. In 2015, the Philippine Reconstruction Movement and Greenpeace Southeast Asia filed a petition with the Commission on Human Rights of the Philippines on behalf of 13 organisations and 20 individuals. The petitioners argued that the “Carbon Majors” have an obligation to protect human rights, which they have violated by contributing to climate change, which has an adverse impact on rights including the right to a healthy environment, to life, to food and to self-determination. The Commission published its report on 6 May 2022. Amongst the key findings were that the Carbon Majors had early notice or knowledge of their products’ adverse impacts on the environment and the climate system and yet they continued to engage in acts to obfuscate climate science. The Commission held that a state’s duty to protect human rights necessarily includes regulating the conduct of non-state actors to ensure that their activities do not cause harm to people within and outside its jurisdiction. Corporations also have a responsibility to respect human rights and ought to undertake human rights due diligence and provide remediation. The Commission’s report is an important precedent for the development of the body of human rights law in relation to climate protection and the obligations of corporations.
In an unequal world in which many of the most vulnerable countries are also the ones which have contributed the least to causing climate change (including many of the ASEAN states), litigation has emerged as a choice of instrument for those seeking climate justice and accountability. Across the Global North and the Global South, the current wave of climate change litigation is unprecedented in terms of scale, the type of defendants being targeted, and the novelty of legal arguments. There is also a small but growing number of anti-climate cases. As a region that is home to communities that are highly vulnerable to the impacts of climate change, there is significant scope for litigation by NGOs and grassroots organizations to put pressure on governments to prioritize climate change adaptation. Constitutional rights including the right to a clean and healthy environment provide effective bases for challenging governmental inaction. ASEAN countries also remain heavily dependent on fossil fuels, including coal. Corporations and governments can expect an increase in legal mobilization efforts to accelerate the energy transition away from fossil fuels in the ASEAN region.
Finally, while climate change litigation is frequently described as transnational in nature or part of a global climate justice movement, most cases continue to be filed at the level of domestic courts. This trend is likely to continue. The prospects of international litigation are slim given the lack of enforcement mechanisms under the Paris Agreement and the difficulties of applying other international law dispute settlement mechanisms to climate change disputes. Obvious hurdles include jurisdictional limits. The jurisdiction of the International Court of Justice (ICJ) in contentious proceedings is based on the consent of the States to which it is open. International politics also come into play. Many governments would hesitate to bring proceedings at the International Tribunal for the Law of the Sea even though a legally sound case can be made against many potential defendant States. There is, of course, scope for seeking advisory opinions. The World’s Youth for Climate Justice is a global campaign to seek an advisory opinion from the ICJ that clarifies the obligations of States to protect the rights of current and future generations from the adverse effects of climate change. This is promising. At the end of the day, all avenues for action should be utilized to achieve climate justice. And that includes international law.
Jolene Lin is Associate Professor at the Faculty of Law, National University of Singapore. She is also the director of the Asia Pacific Centre for Environmental Law.