Application of Principle 10: Development in Asia

1. Application of Principle 10: Development in Asia Osaka UniversityNoriko Okubo

2. Green Access Project investigates application of Principle 10 in different regions of the world. One of our Research Project’s objective is to elaborate international legal performance indicators on Principle 10 in Environmental Law, and to promote Environmental Democracy. WhatisGreenAccessProject? http://greenaccess.law.osaka-u.ac.jp/

3. International Development of P 10 and Asia No such regional movement in Asia Why not? Languages and cultural/social/natural environment are diverse. Are there no common features? 1998Aarhus Convention 47 Parties from UNECE 2010Bali Guidelines On going New regional instrument for ECLAC

4. Environmental right ・The environmental right to live in a healthy environment is guaranteed nowadays by constitutions, case law, and the specific environmental laws of many countries in Asia. ・Provisions are normally very simple. ‘All citizens shall have the right to a healthy and pleasant environment’, and the substance of the environmental right is determined by Act (Korea). ・In South Asian countries, environmental rights may be guaranteed as a part of the right to life by case law (India).

5. ・ Constitutional lawsuitsThailand: Map Ta Phut Despite the serious air and water pollution involved, the government announced the third development plan, with 76 new projects earmarked for this area (2007). http://pattayatoday.net/news/thailand-news/map-ta-phut-reaches-new-climax/

6. Victory at Supreme Court ・ENGO and local people sought an injunction. ・Supreme Administrative Court issued temporary suspension order for 65 projects (2009). ・Reason: It is unconstitutional to carry out these projects without the EIA and HIA procedures. ■Right of PP, right of a community to sue government Article 67 of 2007 Constitution of Thailand Any project or activity which may seriously affect a community’s environmental quality is not permitted without EIA/ HIA with a public hearing, and a hearing of an independent organization, including representatives from environmental NGOs. ・New 2016 Constitution: partially similar provisions

7. Reform of environmental law after the Rio Summit and PP

8. Provisions for P10 Indonesia: most comprehensive ‘Everybody shall be entitled to environmental education, information access, participation access and justice access in fulfilling the right to a proper and healthy environment’. Remark Right to lodge a complaint Recently, the number of SLAPPs has increased in some Asian countries. A SLAPP is a civil complaint or counterclaim filed against NGO/individuals because of their communication to a government or the electorate on an issue of some public interest or concern. Important:to specify the right to lodge a complaint

9. Community-based approach (e.g. Indonesia, Thailand) 1 Communities have the equal and broad right and opportunity to participate actively. 2 Involvement of communities should be based on the principle of information transparently and completely. 3 Right of communities to file class actions.

10. Provisions for role of eNGOs Registration system for ENGOs (Thailand) ・NGOs may request of government the various supports for a public relations campaign, environmental research, and providing legal aid to victims of pollution, etc. ・NGOs may nominate private sector representatives for the National Environment Board.

11. How to improve the formality of PPin EIA ・India (reform in 2006) Key stakeholders, including gram panchayat (village councils), women, marginal groups, and community-based organizations are identified. The entire process is video recorded to ensure a fair process. ・Taiwan Developer prepares a draft EIA report based on the opinions of the competent authority, experts, groups, and local residents. The EIA Act also includes a provision for a citizen lawsuit that is similar to the US scheme.

12. Trends of Access to Justice and EPIL in Asia Supreme Court, Philippines↑ DistrictCourt, ↑　PamekasanIndonesia NGT, India ↑ Supreme Court, Indonesia → EnvironmentalCourt, China ↓ Supreme Court & Supreme Administrative Court, Thailand SupremeCourt, Japan　↓

13. THAILAND Environmental benches in ordinary and administrative courts JAPAN No specialized court Specialized Environmental Courts? CHINA Environmental courts/benches in some cities PHILIPPINES 117 designated environmental courts INDIA National Green Tribunal + Supreme Court INDONESIA Certified Environmental Judges in ordinary courts

14. India: Leading Country of EPIL National Green Tribunal since 2010 ・Judicial member + expert member ・ Detailed and concrete directions ・Principles 1) PPP 2) Precautionary Principle 3) SD ・Procedure: Natural justice ex. Shift of the burden of proof to polluter ・Follow up of the judgement

15. Mandamus and follow up India: Yamuna Case Before After BioCityPark

16. Yamuna Case in India(Judgment of 13 January 2015) ・NGT ordered concerned agencies to make Action Plan. ・During the course of the NGT hearing around 20,000 truck loads of construction debris and municipal waste has been removed from the River bed. ・The minimum flow released in the river has been almost doubled from160 cusec to 352 cusec.

17. JAPAN Limited, no special standing rule for NGOs, communities and local governments. Case law is reluctant to expand standing. THAILAND NGO has standing at ordinary and administrative court. Legal Standing PHILIPPINES Wide standing for NGOs, individuals, communities (case law + special provision for citizens’ suit/Writ of Kalikasan by court’s rule). CHINA NGOs have sanding only in civil cases. INDIA Wide standing for NGOs, lawyers, individuals and communities (case law). INDONESIA Legislation admits wide standing.

18. Judicial Control over Acts of Administrative OmissionJapan: State Redress Act ■ State liability for public officers exercising the authority of the StateWhen a public officer who exercises the public authority of the State has unlawfully inflicted damage on another person intentionally or negligently, the State or public entity shall assume the responsibility to compensate therefor. ■“Exercise of authority” also includes the non-use of its regulatory power.

19. Asbestos Case: VictoryJudgement of on 9 October 2014 ・National government was liable for failing to promptly regulate asbestos, as of 1958. It ruled that the State must pay plaintiffs totally about 3 million Euro for around 80 victims. http://image.search.yahoo.co.jp/search?rkf=2&ei=UTF-8&p=%E6%B3%89%E5%8D%97%E3%82%A2%E3%82%B9%E3%83%99%E3%82%B9%E3%83%88+%E6%9C%80%E9%AB%98%E8%A3%81#mode%3Ddetail%26index%3D1%26st%3D112

20. THAILAND • Prima facie • Hard redress • No problem to the Administration • JAPAN • Serious Damage • Urgency • No serious impact to public welfare • Prima Facie Interim Relieve (Administrative Cases) PHILIPPINES Temporary Environmental Protection Order within 72 hours. Extreme urgency Grave Injustice and irreparable injury CHINA No data. INDIA Provide the parties the opportunity to be heard before the interim order. INDONESIA a) real damage b) not related to public interest in development

21. THAILAND No court fee. JAPAN Inexpensive court fee. Legal aid. Affordable Access (Administrative Cases) PHILIPPINES Court may grant proper relief including e.g., attorney’s fee. CHINA No data. • INDIA • Legal aid. • 1% of the compensation. • 1000INR for other cases. INDONESIA Regulation on the fixed fee

22. Future perspectives

23. Japan and Asia Green access rights have been strengthened in many Asian countries over the last 20 years. This kind of rights-based approach seems to be increasingly. On the one hand, there are also some common, for example, stressing community rights and capacity building, and promoting PIL. On the other hand, There is insufficient implementation of PP provisions. In comparison with other countries, in general, PP in Japan has been traditionally grounded in voluntary activities. This is the primary characteristics of Japanese environmental policy. This could be called the Japanese Environmental Cooperation Model, a kind of voluntary-based approach in contrast to the rights-based approach of the Aarhus Convention.

24. Japanese Environmental Cooperation ModelOnly in Japan? Although the rights-based approach has been legally introduced in many Asian countries, voluntary approach seems dominant in some of such countries.

25. Next Step It may be important to appropriately combine the rights-based approach and the voluntary-based approach in Japan in order to improve the effectiveness of PP. A Japanese model could contribute to effective implementation of legal provisions for PP in Asia. In this context, it might be effective to develop international indicators on P10, and to evaluate each legal structure and its implementation based on such common indicators. Now, new leading projects for such indicators as EDI (the Environmental Democracy Index) by the TAI are running. Also, it is important to develop and improve this process.

26. DziękujęThank you for your attention!