New and Emerging Transnational/Transboundary Environmental Challenges: At Crossroads Between International Law/ Relations and Environmental Law: The ASEAN Discourse

It is interesting to note that the Center for International Law Studies (CILS), Indonesia, organised a conference on “ASEAN’s Role in Sustainable Development” 21-22 November 2011, Jogjakarta. This shows international lawyers are still thinking of Environmental Law as part of International Law/Relations. In the 1970s, international environmental law used to form some chapters in international law textbooks. Today, there are textbooks devoted only to international environmental law. Thus it can be said that International Environmental Law has cut its apron strings from International Law. There are many issues relating to environment that interface with international law principles (ILPs) such as sovereignty, non- interference and human rights. These principles/rights are often applied, at least in the ASEAN context, without calibration. Other potential ILPs include the newly emerging concept of R2P (Responsibility to Protect), which is also at the crossroads between national sovereignty and collective sovereignty (pooling) in the context of transboundary environmental challenges. R2P has its roots in the human security approach and is also connected to humanitarian intervention. ‘Human security’ as mentioned in the United Nations Development Programme\u27s 1994 Human Development Report, is global in scope and covers threats in seven areas including environment. Such threats also have impacts on international relations and politics. ASEAN is helping to shape this concept through its Non- Traditional Security (NTS) approach under the ASEAN Political- Security Community (APSC) Blueprint, 2009-2015. This approach applies in “transboundary challenges” which could include transboundary environmental challenges such as pandemics (avian flu), climatic disasters (flooding, climatic migrations, impact of climate change, food and water security). The paper will examine the above discourse in the ASEAN context with some illustrative case studies from (1) disaster management in Cyclone Nargis in Myanmar( albeit a natural disaster)and the recent floods in Thailand;(2) Indonesian Haze – ASEAN’s approach: a down play under the ASEAN Socio-Cultural Community (ASCC) Blueprint rather than the NTS approach under the ASEAN Political- Security Community (APSC) Blueprint. The Haze is classified as “transboundary pollution” under ASCC. Is this not also a transboundary challenge calling for an NTS approach under APSC? Or, it could morph from ASCC into the APSC; (3)zoonotic diseases (eg Avian Flu) which has the potential of becoming pandemic; and climate migration (should this occur in the region, eg sea- level rise, it can cause climatic migrations of thousands into another country. The rationale for the NTS approach, and R2P can be based on human security. According to the former UN Secretary-General Kofi Annan: “The demands we face also reflect a growing consensus that collective security can no longer be narrowly defined as the absence of armed conflict, be it between or within States ... environmental disasters present a direct threat to human security.” Human security has entered the lexicon of environmental law, and ASEAN is shaping to give it more contexts in the area of environment. The complexity of the above environmental issues inevitably brings to the fore many issues at crossroads