Читать книгу Proceedings of the Second South Asia Judicial Roundtable on Environmental Justice - Irum Ahsan - Страница 6

This report records the proceedings of the Second South Asia Judicial Roundtable on Environmental Justice held from 30–31 August 2013, in Thimphu, Bhutan, hosted by the Asian Development Bank (ADB) and the Royal Court of Justice of Bhutan. Key objectives of the roundtable were to (i) develop an enhanced understanding of shared environmental challenges within South Asia, (ii) share experiences about environmental adjudication challenges and successes in various South Asian countries, and (iii) further the cooperation among South Asian countries by advancing the Bhurban Declaration and agreeing to a memorandum of understanding for cooperation.

Chief Justice Lyonpo Sonam Tobgye of Bhutan opened the conference, stating that the presence of the participants reaffirms their effort to preserve and protect the sacred environment. Christopher H. Stephens, ADB then recalled previous and ongoing initiatives in Asia on environmental justice. Subsequently, Haripriya Gundimeda, Indian Institute of Technology the keynote speaker, discussed the unifying factors and environmental problems of the countries in the region. She stated that more steps are needed to appreciate and respond to the value of nature, through the use of various tools for an alternative development path. Irum Ahsan, ADB discussed ADB’s environment policy, including the technical assistance project for the establishment of the Asian Judges Network on Environment. Justice Syed Mansoor Ali Shah, Judge, Lahore High Court then provided a recap of the First South Asia Judicial Roundtable on Environmental Justice, describing the event as a landmark that set the tone for the enhancement of environmental justice in the region.

Plenary sessions on regional environmental challenges discussed issues such as climate change; conservation of natural resources and biodiversity; and environment, human health, and its economics.

Of all of the environmental issues that have emerged in the past few decades, global climate change is the most serious and the most difficult to manage because of the severity of harms that it may bring. Malik Amin Aslam, International Union for Conservation of Nature (IUCN) provided some background on climate change in South Asia, starting with a discussion of the impacts of the phenomenon on his country. Regarding the issue of glacial lake outburst floods, Archana Vaidya, Indian Environment Law Offices noted that such floods are a regional problem that pose a threat to lives and property. She called for improved and increased management in the region through mitigation and adaptation measures. Sanath Ranawana, ADB then looked at climate change and its impact on food security. He noted that the judiciary has a potential role to play in promoting the rights of the poor and marginalized in regard to access and to advocate for global climate financing to reach developing countries. As for the work of the United Nations Development Programme (UNDP), Karma Rapten spoke about its initiatives and programs on climate change.

International law for the conservation of biological diversity is relatively well developed, with a large number of bilateral and regional treaties that incorporate new approaches. Sanjay Upadhyay, Enviro Legal Defence Firm discussed judicial intervention in India in the forestry sector, recalling the Godavarman case as an example of judicial activism. On biodiversity and conservation in Bhutan, Tashi Yangzome, National Biodiversity Centre, Ministry of Agriculture and Forests discussed the country’s legal and policy framework for the environment, as well as issues that they face. Discussing transboundary water issues, Hamid Sarfraz, IUCN noted that many transboundary watersheds around the world lack the necessary treaties for proper management. He detailed the availability of judicial solutions and how countries like India and Pakistan should move toward a more cooperative water management framework. Taking a more international perspective, Bharat H. Desai, Jawaharlal Nehru University talked about several international treaties, agreements, and instruments for the conservation of biological diversity.

Environment, health, and its economics were then discussed along with the right to a clean and healthy environment, which is fast being recognized in many jurisdictions as a basic right. Haripriya Gundimeda discussed the issue of water and health in India. After presenting a case study on tanneries, she cited various instruments for correcting negative externalities, such as standards, bans, and permits, which can be used to improve the environment. For Pakistan, Justice Syed Mansoor Ali Shah proposed rethinking the scope of environmental justice, saying that the judicialization of human health and health care is essential and an inseparable part of environmental dispute resolution. Scott Perkin, IUCN then gave a presentation on the decline of the vulture population in South Asia due to a drug used on cattle, highlighting the importance and dependence of human health and well-being on biodiversity and a healthy ecosystem.

Next, plenary sessions on challenges for effective environmental adjudication and enforcement discussed issues on limitations on environmental policies and laws, environmental impact assessments (EIAs), access to environmental justice and alternative dispute resolution mechanisms, and capacity constraints. The development of laws, policies, and cooperation has led to the proliferation of laws, rules, regulations, and policies on the environment, both at the international and domestic levels, which are meant to address some of South Asia’s most pressing environmental problems, yet issues and challenges still remain.

Dasho Ritu Raj Chhetri of the Parliament of Bhutan began by recalling Bhutan’s spiritual closeness to the environment and the political will at the highest levels as reasons for Bhutan’s scenic environment. He, however, cautioned that despite the existence of policies, laws, and other advantages, the country is not free from problems. Talking about Nepal, Justice Ananda Mohan Bhattarai, Appellate Court of Nepal discussed the environmental problems and issues facing his country, noting the unique geomorphological features that Himalayan countries share. He added that there is a need to evolve comprehensive policies and laws on vital natural resources and for topographical sensitivity through a local, people-first approach. Matthew Baird, ADB on behalf of Bharat H. Desai, discussed the gradual “greening” of international law. Rizwana Hasan, Bangladesh Environmental Lawyers Association presented her country’s perspective, discussing its legal and policy framework and several issues affecting the environment. She, however, noted that the judiciary has kept hope alive through liberal rules on standing, giving rights to the common people, and establishment of “green courts.” Representatives from Afghanistan, Sri Lanka, the Maldives, and Pakistan then gave their perspectives on the limitations on environmental policies and laws in their countries.

EIAs are now an established international and domestic legal technique for integrating environmental considerations into socioeconomic development and decision-making processes. Ugyen Tshewang, National Environment Commission, Bhutan presented the EIA processes and procedures in his country, noting once again the country’s environmental conservation ethics. Providing a critique of EIA in Pakistan, Saima Amin Khawaja, Progressive Advocates and Legal Consultants said that the system merely provides for a definition of EIA but fails to explicitly state what the EIA is for and when it should be done. Matthew Baird then presented key principles of EIAs, noting that the primary aim of EIAs is to achieve sustainable development and create sustainable societies through public participation and decisions based on the best available information. Sanjay Upadhyay, Enviro Legal Defence Firm said that the EIA is a contentious topic in his country, despite several amendments and improvements of the regulations through the years.

Access to environmental justice and alternative dispute resolution mechanisms are developing concepts in the field of environmental law. Providing a perspective from India, Justice Dhananjaya Chandrachud, High Court of Bombay said that alternative dispute resolution could be understood not as a substitute, but as a supplement for the courts where it is desirable. Justice Mirza Hussain Haider, Supreme Court Division of High Court of Bangladesh suggested that alternative dispute resolution be seen as “active or appropriate dispute resolution.” Discussing environmental justice and alternative dispute resolution, Justice Syed Mansoor Ali Shah stressed that alternative dispute resolution has to be cautiously applied to environmental cases since mutual agreements between the parties cannot overshadow or marginalize the adverse effects on the environment. Harsha Fernando, ADB provided an extensive discussion on conflict management and resolution processes, offering a framework for the use of alternative dispute resolution in handling cases.

Common capacity constraints in South Asian judiciaries is another important topic that needs a regional approach, considering the role of law, as well as that of law enforcement, for the protection of the environment. Chief Justice Md. Muzammel Hossain, Supreme Court of Bangladesh noted that despite the continuing development of environmental justice in Bangladesh, the judiciary still faces several constraints. Justice Priyasath Dep, Supreme Court of Sri Lanka said that despite his country having adequate laws and a good legal framework for the protection of the environment, including updated laws in line with international obligations, issues still remain. Noting Bhutan’s constitutional provisions and philosophy for environmental protection, Justice Sangay Khandu, High Court of Bhutan said that he could not identify any constraints facing his country currently, but cautioned that the country cannot take things for granted and be complacent because of the transboundary nature of issues. Justice Dhananjaya Chandrachud provided suggestions on how to conduct environmental adjudication and identify the doctrines of environmental law to help judges in their efforts to protect nature. Speaking about Nepal, Justice Ananda Mohan Bhattarai stressed the importance of capacity building, especially at the early stages in law schools, given the constraints faced not only by the judiciary but also by the entire justice system.

The Draft Memorandum of Understanding for Co-operation Amongst the South Asia Judiciaries was circulated to the representative judges of the member countries, which is scheduled to be approved and adopted at the Third South Asia Judicial Roundtable on Environmental Justice to be held in Colombo, Sri Lanka in August 2014.

During the closing remarks, Justice Tshering Wangchuk, Supreme Court of Bhutan stressed that he is a firm believer that with the growth of roughly comparable judicial institutions across the region and the world, there is much to be learned from the judicial solutions adopted by other countries. Bruce Lawrence Davis, ADB cited three key messages that emerged from the roundtable: (i) the participants were made more aware of the pressing environmental challenges that imperil sustainable growth in South Asia, (ii) the different judiciaries were able to identify key challenges that they face in resolving environmental disputes, and (iii) there was recognition of a clear need for concrete judicial cooperation on environmental adjudication in the region.