Nicholas Robinson

Introduction: exploring environmental law in Southeast Asia

The environmental performance of most ASEAN Member States, as assessed by reputable studies, is above the world average, and the ecological footprint is much lower than that of many nations. However, ASEAN will continue to face growing environmental challenges given the need to lift a third of its population earning less than

ASEAN and environmental sustainability

2 a day out of poverty, and the many other pressures exerted on the environment such as population growth, urbanization and industrialization. Dr. Surin Pitsuwan, ASEAN Secretary-General Environment is sans frontieres. Many of the current or emerging environmental problems are transnational and transboundary, necessitating legal integration, whether in the form of hard or soft laws, programs, policies or governance innnovations, such as ASEAN Dialogue Partners, or the United Nations Environment Programme consultations. All these are crucial to ASEAN. ASEAN is part of the global order for environmental sustainability. It is a partner of the United Nations in the field of development. As the 1971 Stockholm Conference on the Human Environment and the 1992 “Earth Summit” at Rio De Janiero have made clear, we the peoples of the United Nations and of ASEAN alike, share one world, one atmosphere, one stratosphere. ASEANs economic pillar requires integration to move Southeast Asia forward, and environment must move in tandem to prevent degradation of ecosystems for development to be sustainable regionally and globally. This monograph examines the phenomenon of “integration through law” (ITL), or more particularly how the member states of ASEAN employ law as a means of regional integration, focusing in particular on how this process functions in the context of environmental conservation and sustainable development. The several chapters trace ASEANs struggles to integrate environment within its own community and also with the global community. There are many concerns, not only in terms of the lack of institutional capacity and funding, but in the very nature of environmental problems. The environmental sciences have taught nations how complicated and interrelated human impacts are on the climate or ecosystems. States are left grappling with solutions. The search for environmentally sustainable progress is an ongoing, adaptive process, often without clear, immediate answers. This complexity is compounded by too many inputs that national sectors receive from diverse interdisciplinary studies, without any governance system to connect them.

Founding of ASEAN – a short history

The Association of Southeast Asian Nations (ASEAN) aspires to be a neighborhood where richly diverse nations can attain common purposes by cooperating together in consensual and graduated steps. It proposes and posits “One Vision, One Identity, and One Caring and Sharing Community” as the uniting common ground. Composed of ten sovereign states, ASEAN has at its core an international legal framework, through which it shapes its steps toward a shared vision. The goal of sustainable development, as articulated through the UN Conference on Environment and Development, is a central vision shared by each ASEAN member state. ASEAN cooperation on common policies and laws for the environment and development emerged through agreeing on topics of common concern, preparing draft programs that include capacity-building measures to ensure that each member state is ready to collaborate further, followed by the preparation of draft “soft law” policy declarations vetted through the appropriate governmental levels (civil service, ministers or heads of state). The soft law provides the basis for adopting congruent national laws and regulations to further a common ASEAN approach. In the environmental arena, this is well illustrated by the ASEAN biodiversity programs and the system of protected natural heritage areas. The ASEAN Way builds confidence and avoids conflict among the member states. These goals are fundamental. War in Indochina raged through much of the twentieth century. As Principles 25 and 26 of the 1992 Rio Declaration on Environment and Development proclaim, “Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary … Peace, development and environmental protection are interdependent and indivisible.” ASEAN member states have identified cooperation in the field of environmental protection to be a common priority. Each has acknowledged the objective of sustainable development, as formulated by Agenda 21. Each is at a different point along the pathway to making development sustainable. ASEAN perspectives on environmental sustainability cannot be separated from the history of each member state. Except for Thailand, each was colonized by states from outside the region. This left a legacy of civil law (with the Dutch, French or Spanish variants) and common law (with the British or American variants) and a legacy of Islamic legal principles and more recently socialist law principles, in the various states comprising ASEAN.

The environment in the ASEAN region

From the ASEAN web page: www.asean.org/asean/about-asean/history On August 8, 1967, five leaders – the Foreign Ministers of Indonesia, Malaysia, the Philippines, Singapore and Thailand – sat down together in the main hall of the Department of Foreign Affairs building in Bangkok, Thailand and signed a document. By virtue of that document, the Association of Southeast Asian Nations (ASEAN) was born. The five Foreign Mini sters who signed it – Adam Malik of Indonesia, Narciso R. Ramos of the Philippines, Tun Abdul Razak of Malaysia, S. Rajaratnam of Singapore and Thanat Khoman of Thailand – would subsequently be hailed as the Founding Fathers of probably the most successful intergovernmental organization in the developing world today. And the document that they signed would be known as the ASEAN Declaration. It was a short, simply-worded document containing just five articles. It declared the establishment of an Association for Regional Cooperation among the Countries of Southeast Asia to be known as the Association of Southeast Asian Nations (ASEAN) and spelled out the aims and purposes of that Association. These aims and purposes were about cooperation in the economic, social, cultural, technical, educational and other fields, and in the promotion of regional peace and stability through abiding respect for justice and the rule of law and adherence to the principles of the United Nations Charter. It stipulated that the Association would be open for participation by all States in the Southeast Asian region subscribing to its aims, principles and purposes. It proclaimed ASEAN as representing “the collective will of the nations of Southeast Asia to bind themselves together in friendship and cooperation and, through joint efforts and sacrifices, secure for their peoples and for posterity the blessings of peace, freedom and prosperity.” It was while Thailand was brokering reconciliation among Indonesia, the Philippines and Malaysia over certain disputes that it dawned on the four countries that the moment for regional cooperation had come or the future of the region would remain uncertain. Recalls one of the two surviving protagonists of that historic process, Thanat Khoman of Thailand: “At the banquet marking the reconciliation between the three disputants, I broached the idea of forming another organization for regional cooperation with Adam Malik. Malik agreed without hesitation but asked for time to talk with his government and also to normalize relations with Malaysia now that the confrontation was over.

ASEAN Environmental Legal Integration: ASEAN collaboration towards environmental sustainability

Evergreen tropical forests, mountain forests, monsoon forests, limestone and karst formations, wetlands, marine and coastal waters – these are among the major habitats or ecosystems found in Southeast Asia that store the worlds largest collection of plant and animal life. These are life-giving resources for over half a billion people of the region and millions more around the world. Dr. Surin Pitsuwan, ASEAN Secretary-General 3.1 Evaluating bio-geographic trends in the ASEAN region Members of ASEAN share a common appreciation of nature in their customs, religious beliefs and social values. They also share the experiences of rapid urbanization and growing national populations. From 450 million in 1990, more than 622 million people live in ASEANs ten countries in 2012, soon to be an estimated 650 million by 2020. Human population growth is most rapid in Indonesia (40 percent), the Philippines (17 percent) and Vietnam (16 percent), and the demands on environmental resources grow commensurately. All people among member states rely on the environment for their livelihoods, whether directly or indirectly. Despite disparities in levels of socio-economic development, with gross domestic product per person ranging from US

Integrating sustainability into ASEAN state practice

59,937 to US

ASEAN environmental legal integration : sustainable goals?

1,327, member states collaborate to identify what is needed for environmental protection and the attainment of sustainable development. They cooperate through five-year planning cycles to build their capacity to provide environmental protection as a pillar for socio-economic development. Member states have made significant gains in building their capacity to be stewards of nature and natural resources, and to implement regionally their national obligations under multilateral environmental agreements and other environmental treaties. Nonetheless, as ASEANs Secretary-General acknowledges: The environmental performance of most ASEAN Member States, as assessed by reputable studies, is above the world average, and the ecological footprint is much lower than that of many nations. However, ASEAN will continue to face growing environmental challenges given the need to lift a third of its population earning less than

Conclusions: ASEAN's challenging way forward

2 a day out of poverty, and the many other pressures exerted on the environment such as population growth, urbanization and industrialization. Law provides both a significant foundation and an effective procedure for ASEAN member states as they pursue intergovernmental environmental cooperation. The ASEAN Way encourages the sharing of goals and agreement by consensus on a phased pacing of capacity building for environmental stewardship, as discussed in Chapter 5 of this study.

Foreword – Professor Tommy

ASEAN shall promote sustainable development so as to ensure the protection of the regions environment, the sustainability of its natural resources, and the preservation of its cultural heritage and the high quality of life of its people. ASEAN Charter, Article 1(9) ASEANs agenda for developing environmental policy and law began in 1978 (ASEAN Sub-Regional Environment Programme, Phase I) not long after the Stockholm Conference on the Human Environment ushered in the modern era of international environmental law in 1972. The journey from 1978 culminating in the Cha-Am Hua Hin Declaration on the ASEAN Roadmap for an ASEAN Community 2009–2015 established the interlocking ASEAN Political-Security Community (APSC), ASEAN Economic Community (AEC) and ASEAN Socio-Cultural Community (ASCC), and the Initiative for ASEAN Integration Strategic Framework and IAI Work Plan 2 (2009–2015) intended to bring Cambodia, Lao PDR, Myanmar and Vietnam to a level where they are able to implement the Roadmap. The ASCC Council oversees the overall implementation of the ASCC and ensures coordination and cooperation across all other communities. It is not possible to survey all the areas of work envisaged in the ASCC and other Communities on environmental sustainability. This chapter traces the cooperation and collaboration within ASEAN itself, as well as with organizations outside ASEAN. These measures complemented and helped to reinforce or even to stimulate the establishment of national environmental law and programs in the various ASEAN member states, described above in Chapter 4. In assessing the various levels of environmental integration, this chapter evaluates the gaps and obstacles along ASEANs path toward building an integrated environmental sustainability system. A significant approach that underpins all decisions is the ASEAN Way, which has its origin in the Treaty of Amity and Cooperation in Southeast Asia of 1976. The Treaty provides a set of norms for promoting cooperation in furtherance of peace, harmony and stability. Regional security has become more complex than appeared to be the case in 1976. Concerns for traditional military security, as evidenced in the Indochinese and Vietnam Wars, is matched by non-traditional concerns.

ASEAN and climate disruption

ASEAN is not only a well-functioning indispensable reality in the region. It is a real force to be reckoned with far beyond the region. It is also a trusted partner of the United Nations in the field of development. Kofi Annan, former Secretary-General of the United Nations (February 16, 2000) Since the United Nations General Assembly accepted the Report from the World Commission on Environment and Development, entitled Our Common Future (1987), environmentally sustainable development has evolved to become a central theme for ASEAN. The documentation of this evolutionary progress appears in ASEAN Environmental Law, Policy and Governance: Selected Documents compiled by Koh Kheng-Lian. This body of state practice is substantial. The key measures that illustrate patterns of integration through law (ITL) have been usefully analyzed and collected into two readily available compendia – the first volume, Part I, “Setting the Stage for ASEAN Environmental Cooperation, Harmonization, and Integration” and Part II, “General Legal Frameworks on the Environment,” which contains ASEAN documents on environmental law. These environmental legal instruments appear not only in the ASEAN Socio-Cultural Community Blueprint (also known as the Third Pillar) but across the ASEAN Political Security Community Blueprint (also known as the First Pillar). Volume I also includes documents setting forth ASEANs environmental Programmes, Strategies, Plans of Action and Blueprints, as well as Declarations, Resolutions and Accords. The second volume focuses on specific sectors such as terrestrial ecosystems – natural resources and biodiversity; coastal and marine environment; water resources management; health and environment; energy and climate change; disaster management; environmental education; and ASEAN environmental governance. Both volumes should be considered companions to the commentaries in this monograph. It is beyond the scope of this study to address each of the many ASEAN environmental decision-making processes that constitute environmental law, policy and governance in ASEAN. This monograph will selectively reference ASEAN decision-making documents where relevant to an analysis of the rule of law in ASEAN integration, from an environmental law perspective. It should be noted that not all areas that need environmental integration are as yet amenable to integration for reasons of politics, sensitivity of issues, lack of knowledge and capacity, or other reasons. Evaluating how environmental law functions in the context of ASEAN “integration” can be challenging because the realm of the environment is all encompassing.