The Asian Development Bank: Capacity Building for Environmental Law in the Asian and Pacific Region

John A. Boyd
Asian Development Bank

“[C]ompetent international and academic institutions could…cooperate to provide, especially for trainees from developing countries, postgraduate programmes…in environmental and developmental law.” Agenda 21, Para. 8.20.

Introduction

To respond to the call contained in the above-quoted paragraph 8.20 of Agenda 21, more than 200 organizations and individuals have worked together since 1995 to train environmental law professors and to publish in 2002 a two-volume book entitled Capacity Building for Environmental Law in the Asian and Pacific Region: Approaches and Resources. According to the book’s Foreword by Gerald A. Sumida, general counsel of the Asian Development Bank (ADB) and Rolf Zelius, Chief, Office of Environment and Social Development of ADB, this is the “first comprehensive environmental law book based primarily on materials from the region.” This train-the-trainers program and book are recent examples of initiatives by ADB to promote sustainable development and to build capacity for environmental law in the Asian and Pacific Region. These initiatives are helping implement ADB’s overarching goal of reducing poverty, since the poor suffer disproportionately from pollution of such natural resources as water and soil and from overexploitation of resources such as fisheries and forests.

Background

Dr. Parvez Hassan, who was elected in 1990 as the chair of the International Union for the Conservation of Nature (IUCN) Commission on Environmental Law, commenced this capacity-building initiative. As he notes in the Preface of the book, at the time of his election “[i]nternational environmental law…had been grossly neglected on the campuses of the developing world”; in fact his native Pakistan in 1990 had a population of 110 million, but did not have a single law school with environmental law courses. Acting through Dr. Hassan, IUCN then approached ADB, which in Dec. 1995 provided IUCN with a grant of $600,000 from its Japan Special Fund for technical assistance. Subsequently, the United Nations Environmental Programme (UNEP) and many other international organizations joined in this initiative. The value of the in-kind and, in some instances, financial donations to the initiative substantially exceeded ADB’s $600,000 grant.

Two Summer Environmental Law Training Courses in Singapore

Two train-the-trainers courses were taught in the summers of 1997 and 1998 at the Asia-Pacific Centre for Environmental Law (APCEL) within the Faculty of Law of the National University of Singapore. These courses trained and provided resource materials for 63 law professors from 15 countries, spanning the region from Pakistan to the Fiji Islands. The June 7- July 3, 1998 ADB-financed training course offered by IUCN, APCEL, and UNEP, described in some detail in two appendixes to the first volume of the book, included such topics as comparative environmental impact assessment systems and trade and environmental law.

Approaches to and Resources for Environmental Capacity Building for Environmental Law in the Asian and Pacific Region

The three editors of this more than 1800-page book, Profs. Donna G. Craig, Nicholas A. Robinson and Koh Kheng-Lian, have all served on IUCN’s Commission on Environmental Law, and one of them, Prof. Robinson, succeeded Dr. Hassan in 1996 as chair of the IUCN Commission on Environmental Law. Prof. Robinson also serves as co-director of the Center for Environment Law at the Pace University School of Law in New York, and is a member of the ABA’s International Environmental Law Committee. Donna G. Craig is associate professor of the Centre for Environmental Law of Macquarie University in Australia, while Koh Kheng-Lian is a professor of the Faculty of Law and director of APCEL at the National University of Singapore.

The first volume, as explained in the book’s Foreword, “introduces the broad concept of environmental law and capacity building; offers a comprehensive overview of Asian and Pacific environmental law…; and an overview of major strategies, mechanisms, processes, and sectoral concerns of environmental law.” The second volume deals with international environmental law and regional cooperation, including chapters on “Sustainable Use of Freshwater Systems and Dams” and “Sustainable Use of Forests and Fisheries.” Prof. Robinson, in a message to the writer on June 11, 2002, describes how the “[p]ublication has catalyzed the following additional measures:

• Establishment of an Environmental Law Center in Lahore at Punjab University, using the books [sic] to advance environment law teaching in Pakistan;
• A decision of the IUCN-Arab Regional Center for Environmental Law (ARCEL) at Kuwait University to prepare a comparable set of books for Arab states in West Asia and North Africa;
• Use of the books [sic] in IUCN’s Programme for Promoting Environmental Law in China (PELC) with Wuhan University, to advance curricula for environmental law teaching in China’s law schools;
• “[Use by] Arlanga University in Indonesia…[of] the materials to conduct a workshop “training the trainers.”

A Definition of Environmental Law Capacity-Building Efforts

For more than two decades, ADB has assisted in meeting the demands for capacity building described by D. Kaniaru and L. Kurukulasuriya on page 136 of Capacity Building for Environmental Law in the Asia and Pacific Region: Approaches and Resources:

Endogenous capacity building for sustainable development elaborated by the United Nations Conference on Environment and Development in Agenda 21 demands a concerted and coherent approach linking a number of components…. Among them are establishment of environmental institutions and machinery; the development of policies and strategies; the preparation and enforcement of laws and regulations; the development and use of economic instruments and market-based incentives; mechanisms for gathering, assimilating and dissemination of information; training of human resources in relevant technical disciplines; the development of new analytical tools, such as national environmental profiles, impact assessment, environmental accounting, environmental audits, environmental indicators, environmental education, community involvement, technological development and transfer, and financing.

The overarching ADB Poverty Reduction Policy, which deals with several aspects of these components, emphasizes pro-poor, sustainable growth; social development; and good governance; plus a “cross-cutting strategic theme addressing environmental sustainability.” ADB policy on good governance features the importance of (i) transparency, (ii) accountability, (iii) participation, and (iv) predictability. Predictability refers to laws, regulations, policies, and procedures that fairly and consistently regulate society and apply to certain kinds of government action.

ADB Technical Assistance

To address environmental sustainability, ADB has implemented a great many technical assistance activities, including three in the People’s Republic of China (PRC) described on page 891 in Chapter 23, entitled “Financing Sustainable Development,” of Capacity Building for Environmental Law:

These [technical assistance] grants [by ADB and Norway] were made to the Environmental Protection Committee to improve the capacity of PRC’s legislative drafters. During the six years of collaboration, more than 100 PRC drafters, both at national and provincial level, were trained both in the PRC and abroad. The results of these three technical assistance projects included adoption at the national level of a revised ‘Water Pollution Prevention and Control Law’ and a new ‘Land Administration Law.‘

This Land Administration Law contains important and innovative mechanisms to more appropriately price farmland upon conversion, and to compensate farmers whose land is taken for development purposes. At the provincial level the results included ‘Implementation Measures of Sichuan Province on the Land Administration Law of the People’s Republic of China.’

Though not necessarily directly focused on capacity building in environmental law, other ADB projects have been designed to improve the legal aspects of sustainable development in the Asian and Pacific Region. For example, ADB provided two technical assistance grants slightly exceeding $1 million in value to the government of the Republic of Maldives for the purpose of strengthening legal education and judicial training. As related in Chapter 23 of Capacity Building for Environmental Law, these two grants will help build local capacity through improved legal education.

The legal education component is designed to enhance the capacity of the Government’s Institute of Shriah and Law to deliver legal education and to build…capacity in the delivery of legal education. The judicial training component addresses the Government’s need to provide suitable training for judges to improve the efficiency of the judiciary, and to provide a special training program for new recruits who will fill more than 40 vacancies for island court judges.

ADB Loan Projects

ADB loans have also contained components to improve the functioning of judicial systems as well as legal education and training. The Report and Recommendation of the President for the ADB loan to Nepal in 2000 supporting the Corporate and Financial Governance Project includes a component to improve legal enforcement capacity and infrastructure by establishing a National Judicial Academy to train judges and lawyers. The 2001 ADB Access to Justice Program loan to Pakistan is designed, as described in the accompanying Report and Recommendation of the President, to “support… interrelated governance objectives” including the following:

(i) providing a legal basis for judicial … reforms;
(ii) improving the efficiency of judicial … services;
(iii) supporting greater equity and accessibility in justice services for the vulnerable poor;
(iv) improving predictability and consistency between fiscal and human resource allocation…; and
(v) ensuring greater transparency and accountability in the performance of the judiciary, the police, and administrative justice institutions.

Conclusion

Prof. Edith Brown Weiss points out in an article entitled “New Directions in International Environmental Law” on page 13 of Capacity Building for Environmental Law that the “poor are often disproportionately exposed to toxic chemicals and contaminated waste sites, breathe dirty air, drink polluted water, and are forced by poverty to exploit soils, forests and other resources in an unsustainable manner.” ADB environmental law capacity building, including ADB-initiated policy dialogue, technical assistance, and loans, is often designed to assist and protect the poor and others who are adversely impacted by such environmental problems. These efforts are also designed to improve the access of all, including the poor, to justice through better trained judges, legislators, lawyers, and administrators as well as through more transparent and predictable laws and regulations facilitating participation by all sectors. Clearly, Capacity Building for Environmental Law in the Asian and Pacific region will continue to require sustained effort by diverse organizations and individuals, including non-government organizations like IUCN (www.iucn.org), APCEL (www.law.nus.edu.sg/apcel) and the individuals who participated in this ADB-financed technical assistance as well as international institutions like ADB (www.adb.org) and UNEP (www.iucn.org). Indeed, participation from throughout the worldwill be needed to achieve our common goal of achieving for all “a healthy and productive life in harmony with nature”, as envisaged in Principle 1 of the Rio Declaration on Environmental and Development.

Editor’s Note: Mr. Boyd formerly served as senior counsel and principal sector specialist (Sustainable Development) at the Asian Development Bank. The views expressed in this article do not necessarily represent those of ADB Management or staff.