Achieving an Effective Environmental Rights Regime in the ASEAN Region: Lessons from Indonesia, Malaysia and the Philippines

Abstract

The links between human rights and the environment have become more clearly recognised at international, regional and national levels in the past few decades, as reflected in multilateral environmental agreements, declarations arising out of major environmental conferences and in national constitutions. This has resulted in increasing recognition of a ‘right to environment’ (or similar formulations) as a relatively new branch of the international human rights regime. This thesis explores these links within the ASEAN region. It analyses ASEAN’s role in addressing environmental and human rights issues through its legal instruments and policies, in order to evaluate progress towards the achievement of the rights of ASEAN’s citizens to a safe, clean and sustainable environment and to make suggestions for legal, institutional and policy reform. The thesis argues that weak protection of the environment and human rights in ASEAN member states is triggered by certain factors, including immature political systems, lack of political will, weak social and economic capacity, and overly rigid implementation of the concept of the ‘ASEAN way’. This has resulted in a lack of commitment by ASEAN as a regional organisation to adopt and promote law enforcement practices and environmental rights protection as compared with some other regions. This lack of commitment is also identified as an important factor of why violations of rights related to the environment are prevalent in the region. It is argued that a less strict approach to the ‘ASEAN way’ in dealing with regional and domestic issues is essential. The concept of environmental justice, as a fundamental aspect of the interplay between environmental protection and human rights, is canvassed in the context of the effects of climate change as well as environmental events and disasters such as haze pollution and oil spills. Case studies are drawn from three ASEAN member states: Indonesia, Malaysia and the Philippines. The issue of ‘environmental refugees’ or ‘environmental migrants’ is explored, focusing in particular on the effects of climate change on human displacement. It is suggested that there should be a range of legal and policy responses to these phenomena. In the short term, these include increased international cooperation on voluntary and planned migration, as well as the development of a ‘soft law’ framework and associated guidelines, and in the longer term, legal recognition of ‘environmental migrants’, desirably by crafting a specific legal instrument to address the needs of affected people. In the conclusion to the thesis, it is submitted that ASEAN, as a major and respected regional organisation, should be more responsive and responsible in addressing human rights violations and protecting the rights of the citizens, specifically the rights to a safe, clean and sustainable environment, particularly in the light of the region’s vulnerability to environmental calamities. While the focus is on ASEAN, a number of the findings of the thesis are, arguably, more generally applicable.