Does it really matter that our judges are talking about the 1.5°C rise in global mean temperature, melting glaciers, increased and stronger typhoons, dying ecosystems? What about poor people, who are the most vulnerable to the impacts of climate change, or the growing number of climate refugees? And if Asian judiciaries start addressing today’s pressing environmental and climate challenges?
Yes. A resounding yes. It matters that judges talk about these issues precisely because they have the power to make a difference. Judges enjoy a position of leadership within the legal profession, and as such can influence legal, regulatory, and policy changes. This power is even more pronounced in climate change cases, which are often brought in the community interest and concern both public and private rights.
In Asia, judiciaries have actually developed the environmental rule of law through broad and flexible judicial interpretations, despite weak constitutional protections and unclear laws. Asian judges are heavily burdened with the responsibility of tackling with difficult issues like climate rights, climate migration, refugee protection, needs-based adaptation measures – all under the garb of the judicial review of governments’ responsibilities in the public interest.
Judges can deal with questions like if climate change law should be defined with a human rights lens, and similarly—but not quite the same—if human rights and humanitarian law should be re-defined using a climate change lens? If the answer is yes to both, will this approach not undermine these separate areas of law and create a farrago of doctrines that are neither here nor there? Judges must strike the right balance between these climate change rights and private rights.
For instance, groundwater is still considered private property in India, as one of the speakers mentioned at the Third Asian Judges Symposium held last September by ADB. Given the link between climate change and food and water security, exactly at what point would this proprietary right yield to a plaintiffs alleging public interest?
When judges resolve these climate change issues, it will not merely be an academic or pedantic exercise. These cases will trigger a maelstrom of policy and regulatory changes that will cascade down into noticeable differences in our daily lives. They will influence simple everyday matters such as the water we drink (tap or bottled water), how much we pay for electricity (cheap energy from coal-fired power plants or renewable energy that might be more expensive in the short-term), the car we drive (eco-friendly or diesel), or if we even should drive at all (Uber Pool, anyone?). Often these policy and regulatory changes may seem innocuous or disconnected from each other, but taken together they are the harbinger of where we want to go as a society, of what values define us, and how much of today we are willing to imperil at the risk of having no tomorrow.
The 2015 Paris Agreement is an international instrument of, but its objectives will not be achieved if governments do not translate this global call to action into a domestically enforceable rights-based policy regime. Judges will be called upon to interpret and define these rights. In doing so, they will inevitably have to navigate thorny questions of law that have no clear answer, using traditional principles that were developed or expanded for environmental protection, or perhaps drawing on established international principles like inter and intra generational equity.
Judges’ awareness of and unity in the fight against climate change are badly needed to move forward efforts to address climate change. A level playing field, under the rule of law, is essential. Stable legal frameworks protect the ability of innovators and inventors of much-needed mitigation and adaptation technologies. Judges can also protect and uphold the rights of those who are particularly vulnerable to climate change, until such time that society truly treats them fairly and equally.
Asian judges should become the new drivers of change and the peoples’ champions in protecting the world we live in. At a time when halting climate change seems impossible, let us work with our judiciaries and become their partners to deal with this crisis head-on. More importantly, let’s continue to strive for—and look forward to—a greener and better future, which our children and grandchildren truly deserve.