53 - Drawing Influence from Aarhus and Escazu:…

Introduction

The Association of Southeast Asian Nations’ (ASEAN) is currently developing the Declaration on Environmental Rights. This will be the first-ever environmental rights framework in the region following (closely, or not) in the footsteps of the Aarhus Convention and the Escazu Agreement.

This post will begin by introducing ASEAN, followed by an overview of the procedural history behind the development of the framework. Finally, it will examine the Draft Declaration on Environmental Rights as released to the public.

Introduction to ASEAN

ASEAN is a regional group formed in 1967, which comprises ten members: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam. It aims to promote economic and security cooperation as well as environmental cooperation among its Member States and its partners. In this regard:

(1) In 2007, ASEAN adopted the ASEAN Charter, which, for this blog’s purposes, has as its objective the promotion of ‘sustainable development so as to ensure the protection of the region’s environment, the sustainability of its natural resources, the preservation of its cultural heritage and the high quality of life of its peoples’ (Article 1.9).

(2) In 2012, the Association adopted the ASEAN Human Rights Declaration. Notably, Article 28(f) provides: ‘[e]very person has the right to an adequate standard of living for himself or herself and his or her family including … The right to a safe, clean and sustainable environment’.

The ASEAN Intergovernmental Commission on Human Rights (AICHR)

The AICHR is a consultative body of ASEAN whose purpose is to promote and protect human rights and fundamental freedoms of the peoples of ASEAN, amongst others.

One of the priority areas for AICHR within the AICHR Five-Year Work Plan (2021–2025) provided for ‘promoting mechanisms for coordinating to undertake consultations on linkages between human rights and the environment generally, and to explore initiatives to further integrate human rights-based approaches to environmental policy-making and protection’. Accordingly, the AICHR established the ASEAN Environmental Rights Working Group (AER WG) with the purpose of developing a regional framework on environmental rights for further consideration by ASEAN Sectoral Bodies before eventual adoption by leaders of ASEAN. There followed a series of meetings of the AER WG, supported by a number of UN agencies, including UNESCAP, UNEP, and OHCHR:

(1) Preparatory Session, 2 December 2022: The AICHR held a preparatory session for the ASEAN Environmental Rights Framework and Interim Working Group Meeting. Key outcomes included agreement on the Terms of Reference of the AER WG to be established in the drafting of the regional framework.

(2) 1^st AER WG Meeting, 21–22 August 2023: The meeting set a timeline and goals for developing an ASEAN environmental rights framework aligned with international standards. It emphasised broad stakeholder consultation, led by the AICHR, to ensure consensus among ASEAN Member States. Discussions covered key elements of the framework, incorporating best practices from environmental and human rights treaties.

(3) 2^nd AER WG Meeting, 21–22 November 2023: The meeting included a presentation of a discussion paper by technical consultant experts. Discussions focused on a comprehensive framework in line with internationally recognised norms, while taking into consideration national circumstances and domestic laws of ASEAN Member States. The WG also deliberated on the timeline of the consultation process in 2024 with proposed platforms for compiling inputs from stakeholders before the drafting of a document to submit to the AICHR.

(4) 3^rd AER WG Meeting, 27–28 February 2024: The meeting reviewed and deliberated the progress of revisions to the consultation document on environmental rights in ASEAN from the previous meeting. Specifically, the proposed provisions of the documents focused on aligning with the existing ASEAN agreements and relevant international standards regarding the right to a safe, clean, healthy, and sustainable environment. The WP emphasised the need for stakeholder consultation in 2024 and collaboration with ASEAN sectoral bodies to ensure consensus.

(5) Draft ASEAN Declaration on Environmental Rights, 7 March 2024: Following three AER WG meetings, a draft document, the ‘Draft ASEAN Declaration on Environmental Rights’ (the ‘Draft Declaration’), was released for stakeholder consultation. The Asian Research Institute for Environmental Law also prepared an ‘Information and Issues Sheet’ to assist with the stakeholder engagement process. Deadline for submission on the Draft was 30 April 2024. The Draft proposal will be considered in further detail in a section below.

(6) 4^th AER WG Meeting, 6–7 May 2024: The meeting presented an initial assessment of stakeholder submissions and discussed how to consolidate comments for further review by the AICHR and ASEAN Sectoral Bodies. Operationalisation of the rights to a safe, clean, and sustainable environment in ASEAN was also discussed, with reference to procedural and substantive requirements. The AER WG agreed to continue discussing the draft Declaration at the 5th Meeting, which is yet to take place.

(7) 5^th AER WG Meeting, 6–7 May 2024: The Meeting WG in July referred the draft of the ASEAN declaration on the right to a safe, clean, healthy, and sustainable environment, to AICHR for consideration.

Draft ASEAN Declaration on Environmental Rights

As already foreshadowed, the Draft Declaration was published for the purposes of public submissions and the AER WG is now working on the Declaration in light of these contributions. At first glance, however, a four-week consultation period for submissions does not seem reminiscent of promotion of participatory rights (as promoted by the Draft Declaration). While only a draft, with formulations of the provisions yet to be fully agreed, a number of observations can be made.

First, the eventual Declaration on Environmental Rights (in whatever form it takes) will not be legally binding. It is for this reason that provisions of the Draft Declaration suggest that ASEAN Member States ‘should’ do X and not ‘shall’. This will raise questions as to its practical effect in ASEAN, but on the other hand, it provides an opportunity for the drafters to be, arguably, more ambitious. As noted by a UNEP press release, the Declaration seeks to: ‘promote and protect environmental rights in line with Article 28 of the ASEAN Human Rights Declaration. It will also advance political commitment to recognizing the right to a clean, healthy and sustainable environment globally’.

Second, the Draft Declaration draws inspiration from the Aarhus Convention and the Escazu Agreement. As such, it embodies the classic pillars (and as with others, the final formulation is yet to be agreed):

Access to information in environmental matters (Arts.12–13)
Public participation in environmental matters (Arts.15–18)
Access to justice and effective remedies in environmental matters (Arts. 19–20)

Third, the Draft Declaration also contains some more ‘ambitious’ provisions, seemingly because it will not be legally binding. For example, it contains a Recognition and protection of those who promote and defend environmental rights (Arts. 21–22). ASEAN Member States ‘should’, amongst others, ‘take adequate and effective measures to recognize and protect those who promote and strive for environmental rights, as well as their ability to exercise their rights’. This provision is reminiscent of the protection of environmental defenders contained in Article 9 of the Escazu Agreement, which, as will be recalled, was the world’s first provision safeguarding the rights of environmental defenders.

Fourth, the Draft Declaration seeks to promote actions that assist the realisation of the right to a safe, clean, healthy, and sustainable environment, with reference to the substantive elements of such a right. These include, amongst others:

Climate change mitigation, adaptation and resilience
healthy ecosystems and biodiversity
safe and sufficient water and adequate sanitation
land degradation
healthy oceans and marine environment and coasts

Fifth, Arts. 27–28 provide for Environmental Impact Assessment (EIA). These provisions note that ‘procedures should be developed to include relevant components of impact assessment, including health, social, and human rights impact assessment, using international best practices and evidence-based science’. While there is a growing recognition of the role of EIA in climate change mitigation in ASEAN, the current integration of climate assessment into EIA procedures amongst ASEAN community remains loose. One would have thought that the Draft Declaration would be more explicit on greenhouse gas emissions/climate change within the EIA provision.

Conclusion

In July 2024, a Draft ASEAN Peoples Declaration on Environmental Rights was released by the civil society members of the AER WG. The People’s Draft was ‘designed to be ambitious and respond to submissions received during the stakeholder consultation process in April and May 2024’. While the final form of the Declaration on Environmental Rights is still uncertain, the People’s Draft clearly highlights that the current Draft Declaration falls short of expectations. For now, however, we can take respite in the knowledge that there are signs that the Aarhus Convention and the Escazu Agreement remain influential instruments on the international fora in shaping the discussion on environmental rights.

This guest blog post was written by our guest contributor: Mateusz Slowik.

Mateusz is a Judicial Assistant in the High Court of England and Wales. Previously, he worked at the Chinese University of Hong Kong as a Research Assistant to Professor Benoit Mayer on ‘Environmental Assessment as a Tool for Climate Change Mitigation’ (Oxford University Press 2024).

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.