ENVIRONMENTAL PROTECTION: the role for a 'globalising legal profession’[1]
Gurdial Singh Nijar,
Advocate & Solicitor,
Professor, Law Faculty,
University of Malaya
Introduction
For a long time the legal profession understood that policy formulation and legislative impetus were propelled solely by national processes. Countries looked at national problems and approached them from an entirely national perspective.
This has changed. How so?
First, it is now increasingly recognized that many problems have an international dimension. This is particularly clear in issues relating to the environment. For example, global activities contribute to the emission of green house gases as well as global warming – and climate change. We all have felt the impact of the haze caused by the burning in Indonesia. And we have yet to assess the potential deleterious environmental consequences of the cutting of a swathe of forest belt in Sarawak the size of Singapore to make way for the Bakun Dam. With enhanced technology, the pace and extent of activities has increased exponentially. Disasters such as the Tsunami now cross boundaries and are of an order rarely ever seen before. And they cause incredible damage within jurisdictions – witness the recent earthquakes in Pakistan, Hurricanes Rita and Katrina. The statistics makes all this clear. The world is experiencing 3 times as many extreme events of climactic or water related emergencies per year compared to the 1970s. Annual economic losses have increased sixfold: [Newsweek, October 31, 2005, p. 74]. The global clearly affects the nation state – with greater frequency and with increased consequences.
Second, decisions that may have an environmental impact, among other things, are increasingly being made outside the national sovereign sphere. Treaties made elsewhere dictate the shape of national legislation. We lawyers have felt this first hand. Our legal profession has had to open up to foreign lawyers because of decisions made at the WTO. No debate by our executive or the legislature preceded this shift in policy. Our 'sovereign’ national government is now in the process of merely finalizing the mechanics of the implementation – in a manner compatible with the mandatory requirements of the WTO.
The Response of the Profession
Lawyers must respond to these changes. Lawyers – be they in the public or private sector – routinely give advice on policy, and help clients deal with changes in law and policy. Now that the globalizing process is in full stride, the challenge is for the 'national’ lawyer to respond to the impact of the international. To go global. But how?
I will focus on the lawyer who has to deal with measures relating to the protection of the environment.
First, he must gain a clear understanding of the interplay between the global and the local. Take just one issue: climate change. First, that the problem is real is now no longer disputed. The world’s top climate scientists are empanelled to report on it. The third report issued in 2001 sounded a note of sober alarm. Some advanced countries (US and Australia) exaggerate the cost of compliance – principally to avoid compliance. But the cost of not doing anything is not calculated. It is huge. The clean–up bill for Hurricane Katrina is estimated to be US$200 billion. Tim Flannery notes in his explosive book on climate change, The Weather Makers, that the costs of doing nothing are so large that the failure to calculate it bankrupts the argument. And climate change combined with other forces at work – for example – deforestation – results in a highly combustible mix for the environment. The European summer of 2003, for example, was so hot that statistically, such an event happens once in 46,000 years. Janos Bogardi, director of the UN University’s Institute for the Environment and Human Security illustrates clearly the interplay between the global and the national:
'Climate change certainly plays an important role. That leads to extremes at both ends of the spectrum. We have more floods, more droughts, longer heat spells without rain and more storms. But we also have increasingly unsustainable land use. With increasing deforestation, there is a much higher rate of runoff, leading to floods and landslides. Unmanageable urbanization is creating a big concentration of people in areas that are most vulnerable. Just look at how many thousands in New Orleans lived under sea level. Tthe shanty towns of developing countries are probably in worse shape. There are around 100 million people who live at or below sea level around the world, so they are in danger. ’[2]
For us in Malaysia the problem has been underlined by the physical impact of the Tsunami, the impact to the environment, to human health and to the economy of the haze. Note also the recent prediction by an expert of a potential Tsunami occurring at a higher point – north of Sumatra and hence not shielded by the island – that could wreak havoc on Malaysia and submerge parts of Singapore.
Clearly then, it is difficult to understand the problem and, more importantly, the ways to deal with it, from a purely national perspective
Second, participate – or at least take an active interest – in the international processes that could impact adversely on the environment. This would involve knowing the various discussions and negotiations at the various fora that leads, or could lead, to obligations by governments. For then the national law and policy may be adjusted to comply with international commitments. These could have implications for the legal profession. For example, there is an important environment treaty to which our government is a party – the Convention on Biological Diversity. Under it was negotiated a highly contentious protocol – essentially another binding treaty – the Cartagena Protocol on Biosafety. It prescribes safety measures – to the environment and human health – when genetically modified organisms (gmos) are moved from one country to another and handled within a country. The ongoing negotiations relate to the issue: should the country exporting the gmo intended for food, feed and processing – for example, genetically modified corn – disclose what gmo is in the shipment? As well, in what kind of a document should the disclosure be made – in a stand alone document that can then be directed to the relevant authority for safety assessment – or hidden away in the interstices of a commercial shipment document? Considering the potential impact of gmos on the environment and human health, taking a proactive role in the negotiations could preempt measures that will be protective of the environment at the national level.
The other issue under the same protocol relates to redress and liability in respect of damage caused by the transboundary movement of gmos: what kind of liability and how to pursue it if there is damage resulting from the transboundary movement of gmos?
Yet another example, is the ongoing debate in the agreements under the WTO such as TRIPS that could have an impact on the environment. I refer in particular to the debate on the patenting of life forms. Life forms are genetically engineered and then patented as biotechnological inventions. The relationship between man and nature is being recast. And it can have an impact on the environment. Seeds that are engineered to resist pesticides can pass this trait to the environment and produce super weeds that then overwhelm agriculture. Similarly manipulated bacteria in the soil can cause the soil to reject nitrogen uptake and starve the plants of nourishment. A whole agricultural system can be destroyed irreparably, and forever – as the life forms mutate and cannot be subject to recall – unlike a defective machinery or car. Seeds that are genetically engineered so that they will not flower – a biological form of managing intellectual property rights – change the whole way in which farmers have been innovating crops that feed the world for millennia.
Lawyers participate in these international processes. The Attorney General’s Chambers – in particular its International Law Advisory section – routinely sends lawyers for these negotiations and processes. Private practitioners are also sometimes called upon. In any event a client may want to know the legal implications for his business. Merely knowing the skill of drafting international laws clearly does not suffice.[3] More important is an understanding of the subject matter as well as the skills of negotiations especially the range of strategic interests of particular countries or groupings. It is these facets that a globalizing profession must focus on and enhance. Practitioners in environmental law – be they from the public or private sector engaged in this process whether directly or indirectly – will then acquire an intimate understanding of the subject matter and are better placed to advise their clients – whether they be government ministries, corporations, or consumers.
How does the 'globalising’ profession acquaint itself with the subject matter. This could be at law school (the curricula must take this into account, of course), and through workshops for lawyers from the private and public sector. This exposure exercise must necessarily be continuing – as the processes at the international level are ongoing and dynamic. Lawyers must be updated periodically. The challenge for those in charge – the Bar Council, the AG’s Chambers and the universities – is immense.
Judges too must be introduced to these areas of the law. Often the environmental protection facets are missed in a case that may have an international environmental law dimension – such as the Bakun Dam case. Much can be learned from the level of scholarship and understanding of this particular area of the law displayed by the higher judiciary in Australia and India.[4]
Additionally there is emerging a trend to incorporate the norms in international treaties in national adjudication. If this trend is accepted here, it means that international norms established in these internationally negotiated instruments to which our country is a party, may be incorporated in national adjudication.[5] Even where there is no binding treaty, international norms can be the basis of adjudication – particularly where they reflect universal standards. This will be particularly so in treaties or other instruments involving the protection of the environment and human rights. This means that in such cases, the judiciary, the legal profession, law schools and all others engaged in law and policy issues must have a clear and intimate understanding of the international processes and the subject matter that impacts on the environment
In this way, the demands made by an enlightened judiciary will provide the right encouragement for the 'globalising–aware’ legal profession to advance the cause of environmental protection at the national as well as the international level. This in turn could promote the need amongst lawyers to involve themselves in the international and national processes. And provide the right impetus for laws and policies protective of the environment.
[1] Paper presented at the 13th Malaysian Law Conference, Kuala Lumpur, November 2005.
[2] Interview with Newsweek, October 31 2005, p. 74.
[3] Ignorance of these international processes and their potential impact on your client may even amount to negligence, on one view. England: Hurlingham Estates v Wilde & Partners [1997] 1 Lloyd’s Rep. 525, 530; Australia: Bayer v Balkin (1995) 95 ATC 4609. Lawyers held responsible for not advising on tax implications of the transaction – although this was outside the scope of the retainer.
[4] See Gurdial Singh Nijar, The Bakun Dam Case: A Critique, [1997] 3 MLJ ccxxix. Also Gurdial Singh Nijar, Papers, Environmental Law: Are the Present Laws Sufficient, 11th Malaysian Law Conference, 2001, p. 137 at 143.
[5] See further, Gurdial Singh Nijar, The Application of International Norms in the National Adjudication of Fundamental Rights, 12th Malaysian Law Conference,Kuala Lumpur, Papers, 2004, p. 52.