EIA in any Asian countries is regarded as the most ...



Environmental EIA participation in Asia really leads to environmental democratization ? 　　　　　　　　　　　　　　　　　　　　　　　　　　　　

I. EIA is widely accepted and diversified in Asia

EIA was adopted and legalized in almost all Asian countries in so short a period at a fast speed(Pease see Table 1). Exceptions among these are only Singapore and Brunei Darussalam in Southeast Asia. These countries are carrying out EIAs without solid legal foundations. Singapore, for instance, has carried out EIAs in such projects as may cause adverse environmental impacts on an ad hoc basis. In Greater Mekong Subregion, EIA is applied to trans-frontier water issues. This means that EIA is widely welcomed in Asia like in other part of the world. EIA is considered as one of the most powerful and indispensable environmental management tools. Types of EIA adopted in this region are diversified and includes commonly accepted EIA, Health Impact Assessment, Strategic Environmental Assessment, and Environmental Social Impact Assessment.

While environmentally-caused damages from various sources are on the increase, Asian countries are strengthening their implementing ability of EIA to abate environmental degradation. One of the most common issues faced by Asian countries is the lack of enforcement. Enforcement issue related to EIA is not limited to Asian region alone. Lack of enforcement is regarded as the result of inefficient and insufficient law application. One major reason of such enforcement issue derives from inability in supervising EIA process through democratic participation.

In the early developmental stages of environmental law and administration in Asia from 1970s to 1980s, pollution prevention based on regulatory framework initially prioritized the mitigation of pollution damages as the main focus. Presently, Principle 1 of Rio Declaration of 1992, emphasizes that human beings should be laid in the center of sustainable development. Asian countries gradually came to realize the importance of social aspects of EIA including community ties, human life and health, and culture. This means that protection of human beings must be prioritized among other things in the framework of sustainable development. In other words, EIA is becoming more and more the indispensable environmental management tool for Asian countries to protect the environment and human life.

II. Fully democratized society based on human rights is indispensable to protect the environment in Asia

It looks as if almost all Asian countries successfully established democratized country after overthrowing authoritarian political regime. Many countries showed robust developments in environmental administrative and legal institutions. And, as a result, it seems that Asian countries have moved to a fully democratized country. However, this is not true. Whether they were successful in democratization movement and whether they can keep a democratized state of a country is a different thing. It may be right to say that almost any Asian countries have gone through democratization movement but how many of them are successfully keeping the real democratized state in their countries. Real democratization will take time until it takes root.

Such a democratized situation in Asian countries decides the EIA implementation substantially meaningful or not. This is because EIA has two opposite faces like JANUS, a god in ancient Roman days. One face of EIA is a regulatory aspect and another is a democratized participatory aspect. In Asia, EIA has been appreciated as a useful tool to regulate the environmental management and not as a tool to enhance democratization. This is where a gap is underlying between regulatory based system and democracy-based participation system in Asia.

It is true that democratization cannot be obtained in a moment. Rather, most Asian countries are said in halfway of its democratization goal. Still, many Asian countries are worried with human rights problems and some with poverty issues. Regarding the human rights and democratization discussion in Asia, there are extremely opposite ways of understanding these concepts. One is based on universalism of human rights ideas without allowing for any exceptions in Asia, and another one is called as cultural relativism based on Asian peculiarities. Those who focus on endogenous Asian cultural values emphasize different aspects of human rights in its socio-cultural backgrounds. In the past, such cultural relativism was expressed by Asian authoritarian leaders to negate human rights abuse by the political powers and to exclude foreign intervention in domestic human rights matters in Asia. Such stance has been criticized a lot by NGOs and human rights groups as it has provided an excuse for human rights suppression. We have to admit that such a discrepancy is underlying when we try to discuss EIA from the point of democratization and human rights in Asia.

In Asia, the depth and pattern of democratization is different in respective country. Criteria of democracy should also be classified depending on their components including socio-cultural aspects. This does not necessarily mean that the author sticks to Asian values, however, what and where the general public might perceive free and independent are not totally the same with European ideas. Freedom in Asia does not necessarily mean individualism or freedom from the governmental powers. Sometimes, freedom from poverty or security from daily violence becomes a matter of more importance to the general public in Asia. This discussion needs to go back to their history. The suzerain government did not take much interest in saving the poor or keeping security of the society. Rather, traditional community has long played the role of the government instead of colonized central government. Traditional community was ruled by customary laws. The function of community is multi-faceted and it sometimes worked as a shelter to help the poor and to promote mutual assistance and sometimes as a sanction system like a court. Such a symbolic concept as “Gotong Royong” (mutual-help system) is still alive in the society and supported strongly by the public in Indonesia.

III. Environmental rights become the basis of public participation

Asian societies are exposed to rapid developmental process and globalization process. Presently, many criticisms are given against insufficient and undemocratic enforcement of EIAs in Asia by researchers, NGOs, donors, and so on. It could be understood that the lack of public participation in EIA derives from the lack of democratic background in each Asian country. Public participation discussion in EIA cannot be separated from general discussion of human rights and democratization issue. The number of Asian countries where environmental rights are assured at Constitutional law level is small (Please see Table 2), and most countries in this region depend on the environmental obligations to protect the environment. Further, some countries adopt both aspects of environmental rights and obligations. Public participation in EIA process should preferably be legally assured and the process should be supported by environmental rights and duties to make the process more substantial and meaningful.

For instance, in the Japanese EIA system, environmental rights are not legally guaranteed yet, nor social consideration input in the EIA procedure. EIA third party review committee is not existent at a national level or SEA, though partially introduced already, but has not yet been fully introduced. Rather, we have to admit that a gap exists between the domestically applied EIA system and the EIA system especially applied to overseas ODA projects. The reason for such a gap has not been discussed much in Japan. Japanese EIA system is generally understood well refined and detailed, and well enforced. One of the reasons of such a gap could be attributed that Japanese EIA system is basically founded on pollution prevention concept and Government-led regulatory system in its nature, however, once EIA is implemented, it is strongly supported by people and local governments to make the system efficient and effective. According to the Environmental Democracy Index[1] which evaluates such aspects as the transparency, participation, and justice in environmental decision-making based on written law and statues, Japan ranks in No. 32 in the total number of 70 countries and only 5 other Asian countries are ranked within the top 50 countries. It is hardly difficult to judge whether Asian countries are generally democratized in terms of environmental protection or not, only with such data on written laws, however, it can pose us an important question whether Japanese written laws are adequately democratized or not?

Table 1 Developmental Stage of Environmental Law and EIA in Asia*

1．Comprehensive Environmental Law; China(79, 89, 14), Korea(77, 90,99), JP(67, 70, 93), SIN(68, 99,02),TH(75 92), MA(74, 85, 96, 98, 01…),PH(77), BA(77), RI(82, 97,09), SL(80), PAK(83), Indiaﾞ(86), VT(93, 05, 14), CA(96), Nepal(97), Laos(99)

2．Specific areas of Air(A) & Water(W) Pollution Prevention law：JP（A62, W58）, SIN(A75, W71), India(W74),Taiwan(W74,A75), HK(W80,A83), India(A81),China(89),Korea②(A&W90)

3．Independent EIA law: PH(77,96), MA(87), Korea(93）, India (94), JP(97), TH(92), RI(93,97), VT(94, 05,14), CA(99), China(03), MY (2015)

4．Environmental Rights & Duties at Constitution level: China(82), SL(84), India(85), PH(86), Korea(87), Laos(91), VT(92), TH(97), RI(02),

5．Public Participation in EIA: MA(87, at Federation level),India(94), PH(96）, TH（97,without procedures), RI（97）, CA（99, if requested by inhabitants),China(03,without

procedures)

6．Env. Dispute Settlement law：Korea(90),Taiwan(92)

7. Env. Criminal law: JP(70), Korea(91), VT(15)

(note)* Abbreviations; HK=Hong Kong, JP=Japan, SIN=Singapore, TH=Thailand, MA=Malaysia, PH=Philippines, RI=Indonesia, BA=Bangladesh, SL=Sri Lanka, PAK=Pakistan, CA=Cambodia, VT=Vietnam, MY=Myanmar. Numbers shown in parenthesis ( ) express the year of enactment and the following number as amendment years, if any.

Table 2 Environmental Rights and Duties at Constitutional Level and Acts related to the Right to Information in Asia

|  |Const. & information disclosure|Env. rights |Env. obligations |Both rights & |No env.-related |Env. information related |

| |related Acts |alone provided |alone provided in|obligations are |related provision |Acts |

| | |in Const. |Const. |provided in |in Const. | |

| | | | |Const. | | |

|China |Const. of 1992 |  |○ |  |  |  |

| |(Art.26/responsibility of the | | | | | |

| |State) | | | | | |

|Korea |Const. of 1987, |  |  |○ |  |○(Information Disclosure |

| | | | | | |Act of 1996) |

|Japan |Const. of 1945 | | | |○ | |

|Philippines |Const. of 1987 (Art.2(16)), |○(both rights | |  |  |○Solid Waste Act of 2000 |

| |information (Art. 3(7)) |to protect the | | | |(includes information |

| | |env. and to | | | |disclosure related |

| | |participate) | | | |Articles.) and etc. |

|Indonesia |Const. of 1945 (Arts.28F,28H), |○ |  |  |  |○(BAPEDAL Regulation of |

| | | | | | |2000 regarding public |

| | | | | | |participation and env. |

| | | | | | |information disclosure) |

|Thailand |Const. of 2007(Art.67), |○(Rights to |  |  |  |○ |

| |Information Disclosure Act of |participate and| | | | |

| |1997 |to sue gov. | | | | |

| | |agencies) | | | | |

|Vietnam |Const. of 1992 (Arts.29,11) |  |○(Gov. & |  |  |  |

| | | |individuals & | | | |

| | | |etc.) | | | |

|Laos |Const. of 1991(Art.17) |  |○(State & |  |  |  |

| | | |citizens) | | | |

|Cambodia |Const. of 1993 |  | | |○ |  |

| | | | | | | |

|Myanmar |Const. of 2008(Art.390) | |○ | | | |

|India |Const. of 1985(Arts. |  |○(Gov.& |  |  |○ |

| |48A､51A；52th revised), | |individuals ) | | | |

| |Notification of 1997 by MOEF, | | | | | |

| |Information Disclosure Act of | | | | | |

| |2005 | | | | | |

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[1] WRI他.Environmental Democracy Index, which traced and ranked the state of national laws protecting transparency, participation, and justice in environmental decision-making( ), (Visited February 28, 2016)

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