Green energy, economy, equity are key
The challenge of climate change and environmental degradation is an existential threat which is increasingly recognised in all corners of the globe. Its urgency is all the more pressing because it harbours ill for our children and the next generations in terms of their survival and modus vivendi, unless comprehensive action is taken, anchored on the “whole of humanity and whole of society” approach and premised on effective globallocal partnerships to prevent, reduce and rectify harm.
Formally, Asian countries cooperate well with regard to international treaties on the environment and most are parties to key treaties such as the UN Framework Convention and the Paris Accord on climate change.
At the most recent international conference on climate change — COP27 — in Egypt, there were more plans submitted on the required Nationally Determined Contributions (NDC) to tackle carbon emissions and related questions. The conference’s agreement to set up a fund for loss and damage can also benefit Asian countries.
In the quest for more green and environment-responsive policies and practices in this region — the greening of Asia — there are three novel developments to be reflected upon, namely: green energy, green economy, and green equity. In regard to green energy, it is understandable that countries are opting for alternative energy sources beyond fossil fuels and this should be done in compliance with human rights.
For example, the setting up of wind turbines and solar cells on land has to reckon with the issue of human settlements nearby and the potential unjust evictions resulting from that green energy. The invitation is thus to ensure that people’s rights to information and to consultation-cum-participation, and related redress, are well respected. International standards on the right to shelter, at times linked with traditional communities and indigenous peoples, advocate that no displacements should take place without their “free, prior and informed consent”.
In regard to the green economy, much is linked with the digital economy and new businesses ranging from seminar conductors to electric cars (EV) and EV batteries. The region is likely to be a hub for EV and EV battery production. Southeast Asia interestingly has some of the world’s largest deposits of nickel which can be used for the newer type of batteries, but there might be detriments along the way in regard to extraction. Investment in this regard should assess well before, during, and after operations the impact on human rights and the environment. The business sector, especially state enterprises, should undertake “human rights due diligence” (HRDD) based on the UN Guiding Principles on Business and Human Rights (UNGP). These principles posit a three-fold framework for shared action — the state’s duty to protect, the business sector’s duty to respect, and the duty of both actors to remedy harm and damage. In essence, the advocacy is to move from the interests of the shareholders to the interests of the stakeholders, the latter comprising workers, communities nearby, vulnerabilities facing gender, women, children, migrants, the disabled, minorities, indigenous peoples, human rights defenders, and many more concerns. HRDD to mitigate the damage would need to be done as a precaution, with good planning for reducing the potential harm and providing redress. There should be more expansion of civic and political space to enable progress to burgeon in a participatory manner. Beware of disincentivising litigation launched by the business sector and/or government(s) against human rights defenders, known as Strategic Litigation against public participation (SLAPP)!
From the novel angle of digitalisation, investments are now coming not necessarily from the state or big multinational enterprises but other sources such as private equity and venture capital, especially in regard to start-ups as a new form of small- and medium-scale (SME) industries. Larger firms should be well incentivised to help SMEs fulfil their human rights duties and related environmental commitments, as a kind of pairing, in a supportive partnership-building manner. This strategy can be called “Peers and Pairs” (P-n-P).
In regard to green equity, the heart of the matter is to ensure that the benefits of Asia’s greening should be shared well to overcome poverty and disparities and, at this juncture, to ensure post-Covid revival. The issue of social protection is intrinsically linked with the need for a broader range of guarantees for human development in keeping with the natural environment. Access to health care and vaccinations, income security, support for worker upskilling and reskilling, life-long education, food security, and the full range of basics of life in a world of rapid change invite proactive planning, implementation, assessment, and follow-up.
That greening evolution is interfacing with another revolution: the advent of Artificial Intelligence (AI) and its connectivity with digitalisation. The animate now has to work with the inanimate. There are concerns surrounding self-automated AI, which might trigger its own decision-making without human control. There are delicate issues in regard to social profiling and surveillance leading to discrimination and arbitrary constraints. There is also datafication, processed by computerised algorithms, inviting attention as it may impinge on the right to privacy and its balance with the right to expression. There is then the challenging national security invocation to constrain such rights, especially where personal data protection laws are emerging in the region.
An essential message is that while those rights are not absolute and can be limited by national security, public health and public order, those limitations need to be wellreasoned. International human rights law offers a pivotal three-part test to guide actions: limitations on human rights should not be arbitrary (“legality”); they should be proved to be necessary in the face of the risks (“necessity”), and they should be proportionate to the circumstances ( “proportionality”). The greening of Asia depends essentially on those checks and balances grounded on democratic values.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok. He has helped the UN as UN Special Rapporteur, Independent Expert and member of UN Commissions of Inquiry on human rights. This article is derived from his closing speech at the Asian Human Rights Forum 2022 organised by Renmin University, China, 26-27 November 2022.
Formally, Asian countries cooperate well with regard to international treaties on the environment.