Transcript Application of Principle 10: Developments in Asia

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– Application
Second level
of Principle 10:
• Third level
in Asia
–Development
Fourth level
» Fifth level
Osaka University
Noriko Okubo
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What is Green Access Project?
http://greenaccess.law.osaka-u.ac.jp/
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– Second level
Green
Access
Project
investigates
• Third level
application
oflevel
Principle 10 in different regions
– Fourth
» FifthOne
level of our Research Project’s
of the world.
objective is to elaborate international legal
performance indicators on Principle 10 in
Environmental Law, and to promote
Environmental Democracy.
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International Development of P 10 and Asia
No such regional
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47 Parties from UNECE
movement in
– Second level
2010 Bali Guidelines
Asia
• Third level
On going – Fourth level
Why
not?
» Fifth level
1998 Aarhus Convention
New regional
instrument for ECLAC
Languages and
cultural/social/natural
environment are diverse.
Are there no common
features?
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Environmental right
・The environmental right to live in a healthy
•environment
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is Master
guaranteed
by
constitutions,
case law, and the specific
– Second level
environmental
• Third levellaws of many countries in Asia.
– Fourth
・Provisions
arelevel
normally very simple.
» Fifth level
‘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).
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Constitutional lawsuits
Thailand: Map Ta Phut
・
Despite the serious air and
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water
pollution
involved,
government
announced
the
– Second
level
third development plan, with
Third level
76 new •projects
earmarked
level
for this area– Fourth
(2007).
» Fifth level
http://pattayatoday.net/news/thailand-news/map-ta-phutreaches-new-climax/
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Victory at Supreme Court
・ENGO and local people sought an injunction.
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・Supreme
Court
issued temporary
suspension
– Secondorder
level for 65 projects (2009).
・Reason: It is unconstitutional to carry out these
levelthe EIA and HIA procedures.
projects• Third
without
Fourth
level of a community to sue government
■Right of–PP,
right
Fifth level
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
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Reform
– Second
level of
environmental law
• Third level
after
the
Rio
Summit
and
PP
– Fourth level
» Fifth level
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Provisions for P10
Indonesia: most comprehensive
‘Everybody shall be entitled to environmental education,
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information
participation
access and justice access
in fulfilling
the right
– Second
levelto a proper and healthy environment’.
Remark• Third level
Right to lodge
a level
complaint
– Fourth
Recently, the »number
Fifth levelof 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
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Community-based approach
(e.g. Indonesia, Thailand)
1•Communities
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the equal and broad
Second
level
right– and
opportunity
to
• Thirdactively.
level
participate
– Fourth level
2 Involvement
of
» Fifth level
communities should be
based on the principle
of information
transparently and
completely.
3 Right of communities
to file class actions.
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Provisions for role of eNGOs
Registration system for ENGOs (Thailand)
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– Second level
・NGOs
may
request
of
government
the
various
• Third level
supports–for
a public relations campaign,
Fourth level
environmental
research,
and providing legal aid to
» Fifth
level
victims of pollution, etc.
・NGOs may nominate private sector
representatives for the National Environment
Board.
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How to improve the formality of PP
in EIA
・India (reform in 2006)
• Key
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stakeholders, including gram panchayat (village
– Second
levelmarginal groups, and community-based
councils),
women,
organizations
are identified.
• Third level
The entire
process
– Fourth
level is video recorded to ensure a fair
process.
» Fifth level
・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.
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Trends of Access to Justice and EPIL in Asia
NGT, India ↑
Supreme Court, Philippines↑
Supreme Court, Indonesia
Environmental
Supreme Court &→
Supreme
Court, China ↓
Administrative Court,
Thailand
District Court, ↑
Pamekasan Indonesia
Supreme Court,
Japan ↓
THAILAND
Environmental benches
in ordinary and
administrative courts
PHILIPPINES
117 designated
environmental
courts
INDONESIA
Certified
Environmental
Judges in
ordinary courts
JAPAN
No specialized court
Specialized
Environmental
Courts?
CHINA
Environmental
courts/benches
in some cities
INDIA
National Green
Tribunal +
Supreme Court
India: Leading Country of EPIL
National Green Tribunal since 2010
・Judicial member + expert member
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・ Detailed
and
concrete
directions
– Second level
・Principles
• Third level
1) PPP – Fourth level
» Fifth level
2) Precautionary Principle
3) SD
・Procedure: Natural justice
ex. Shift of the burden of proof to polluter
・Follow up of the judgement
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Mandamus and follow up
India: Yamuna Case
Before
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After
– Second level
• Third level
– Fourth level
» Fifth level
Bio City Park
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Yamuna Case in India
(Judgment of 13 January 2015)
・NGT
concerned
agencies to make
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Action Plan.
– Second level
・During
the
course of the NGT hearing
• Third
level
Fourth leveltruck loads of construction
around –20,000
Fifth level
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.
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THAILAND
NGO has standing at
ordinary and
administrative court.
JAPAN
Limited, no special
standing rule for
NGOs, communities
and local
governments. Case
law is reluctant to
expand standing.
PHILIPPINES
Wide standing for
NGOs, individuals,
communities
(case law +
special provision
for citizens’
suit/Writ of
Kalikasan by
court’s rule).
INDONESIA
Legislation admits
wide standing.
CHINA
Legal Standing
NGOs have sanding
only in civil cases.
INDIA
Wide standing for
NGOs, lawyers,
individuals and
communities
(case law).
Judicial Control over Acts of Administrative
Omission Japan: State Redress Act
■ State liability for public officers
•exercising
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authority of the State
– Second
level officer who exercises the
When
a public
• Third level
public authority
of the State has unlawfully
– Fourth level
inflicted damage
» Fifth level 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.
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Asbestos Case: Victory
Judgement of on 9 October 2014
government
was liable for
•・National
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failing
to promptly
regulate asbestos, as
– Second
level
of 1958.
ruled that the State must pay
• ThirdIt
level
– Fourth level
plaintiffs
totally
about
3
million
Euro
for
» Fifth level
around 80 victims.
http://image.search.yahoo.co.jp/search?rkf=2&ei=UTF8&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
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THAILAND
a) Prima facie
b) Hard redress
c) No problem to the
Administration
PHILIPPINES
Temporary
Environmental
Protection Order
within 72 hours.
Extreme urgency
Grave Injustice
and irreparable
injury
INDONESIA
a) real damage
b) not related to
public interest in
development
JAPAN
a) Serious Damage
b) Urgency
c) No serious impact
to public welfare
d) Prima Facie
Interim Relieve
(Administrative
Cases)
CHINA
No data.
INDIA
Provide the parties
the opportunity to
be heard before
the interim order.
JAPAN
Inexpensive
court fee.
Legal aid.
THAILAND
No court fee.
PHILIPPINES
Court may
grant proper
relief including
e.g., attorney’s
fee.
INDONESIA
Regulation on the
fixed fee
CHINA
Affordable
Access
(Administrative
Cases)
No data.
INDIA
(a) Legal aid.
(b) 1% of the
compensation
.
(c) 1000INR for
other cases.
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– SecondFuture
level
perspectives
• Third level
– Fourth level
» Fifth level
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Japan and Asia
Green access rights have been strengthened in many
Asian
countries
the last
20 years.
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stylesThis kind of rightsbased approach seems to be increasingly. On the one
– Second level
hand, there are also some common, for example, stressing
• Third
leveland capacity building, and promoting PIL.
community
rights
– Fourth
level
On the other
hand,
There is insufficient implementation of
PP provisions.» Fifth level
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 voluntarybased approach in contrast to the rights-based approach of
the Aarhus Convention.
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Japanese Environmental Cooperation Model
Only in Japan?
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Although
– Second level
the rights-based approach
Third level
has •been
legally introduced in many
– Fourth level
Asian countries,
voluntary approach
» Fifth level
seems dominant in some of such
countries.
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Next Step
It may be important to appropriately combine the rights•based
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the voluntary-based
Japan
in orderlevel
to improve the effectiveness of PP. A
– Second
Japanese
model
• Third
levelcould contribute to effective
implementation of legal provisions for PP in Asia.
– Fourth level
In this context,
it might
» Fifth
level 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.
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Dziękuję
Thank you for your attention!
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– Second level
• Third level
– Fourth level
» Fifth level
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