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Chief Justice Sundaresh Menon: Keynote Speech at the Asia Pacific Judicial Convening on Environment and Climate Law Adjudication
Asia Pacific Judicial Convening on Environment and Climate Law Adjudication
Keynote Speech
“A New Perspective on Climate Disputes: Lessons from Therapeutic Justice”
Monday, 2 December 2024
The Honourable the Chief Justice Sundaresh Menon*
Supreme Court of Singapore
Distinguished Justices, speakers and guests
Ladies and gentlemen
I. Introduction
1. Let me first express my appreciation to Pak Bambang and the organisers for the invitation to address this distinguished and diverse audience on the intersection between climate change, environmental protection and the law. This is a topic of ever-increasing importance to us all. The looming climate crisis is a global threat that affects all of humanity, and while it is by no means a new problem, it now seems to be closing in on us at an alarming rate. Last year, the United Nations’ Intergovernmental Panel on Climate Change (or “IPCC”) warned that there is “a rapidly closing window of opportunity to secure a liveable and sustainable future for all”.(1) And, earlier this year, a report on the state of the climate noted that “[w]e are on the brink of an irreversible climate disaster” and that we are “stepping into a critical and unpredictable new phase of the climate crisis”.(2)
2. Against this backdrop, climate litigation has assumed increasing importance, especially where efforts to address the climate crisis in the political spheres are felt to have been inadequate. Climate litigation has grown in its volume and reach: the cumulative number of climate litigation cases across the world has more than doubled in the five years from 2017 to 2022,(3) and these cases appear to be coming from a broader range of jurisdictions.(4) At the same time, the impact of climate litigation appears to be on the rise. Last year, the IPCC recognised – for the first time(5) – that climate litigation has, in some cases, influenced the outcome and ambition of climate governance.(6)
3. As people around the world turn to the legal process to try to hold public and private entities accountable for their contributions to climate damage, or their failure to mitigate it, courts around the world must recognise the reality that we will need to confront the legal issues pertaining to environmental protection and climate change – if we have not already started to do so.(7) We must therefore ensure that we are ready to deal with these kinds of cases, and deal with them well. And as we navigate these new and evolving realities, one fundamental question we will have to grapple with is whether our conventional models of justice and dispute resolution are best suited to climate disputes.(8) This is the fundamental question that my address to you today seeks to answer. Would a different adjudicative model help to facilitate more broad-based engagement, between the affected communities and experts familiar with the impacts of climate change, and thus contribute more effectively towards shaping climate governance?
4. The central thesis of my speech today is this. I suggest that a bespoke model of justice – informed by the concept of therapeutic justice – should be developed for climate disputes, in order to meet the particular challenges that such disputes give rise to, and to ensure that they are managed and resolved in a way that meaningfully addresses the wider interests and the deeper issues at stake in these cases. I will first explain why a bespoke model of justice should be developed for climate disputes, before setting out a vision of what that might look like, and elaborating on why and how it might be informed by the framework of therapeutic justice in particular.
II. The case for a bespoke model of justice for climate disputes
5. Let me start by making the case for a bespoke model of justice for climate disputes. I will first outline the features that I suggest make climate disputes a distinct category of disputes, and then consider the limitations of existing adversarial models in dealing with such disputes.
A. Climate disputes as a distinct category of disputes
6. I start from the premise that certain categories of disputes are quite different from ordinary civil disputes and should therefore be managed differently. This flows from the importance of what I refer to as contextuality, which is the idea that dispute resolution processes should be tailored to the size, nature and complexity of the disputes they are meant to resolve, and to the circumstances and interests of the parties and stakeholders in different areas of the law, so that they can better serve the needs of users in these different contexts.(9)
7. In Singapore, this idea has manifested itself so far most clearly in the field of family justice. Over the past few decades, we came to recognise that a fundamentally different paradigm had to be adopted for the resolution of family disputes.(10) Family justice is a unique field in the administration of justice for at least three reasons:(11)
(a) First, family disputes arise in the context of enduring human relationships that the parties cannot simply “walk away” from, and which our family justice systems should proactively endeavour to preserve to the extent possible.
(b) Second, unlike commercial cases that generally affect only the immediate parties’ rights and obligations, family disputes often engage the interests and wellbeing of non-parties – most importantly, those of the children caught up in divorces. Our family justice systems should therefore pay close attention to the distinct needs and interests of these non-parties, and strive to minimise the adverse consequences that the breakdown of their family units may have on them.
(c) Third, family disputes involve issues of a unique character. These issues are deeply personal, and often result from and give rise to a complex web of interrelated issues, such as financial or social problems. They cannot be solved by a one-off remedy like monetary damages; instead, they require sustainable solutions that address the deeper interests of the parties and other affected persons over the longer term.
8. These features of family disputes mean that the traditional adversarial approach that is generally adopted in civil justice, which focuses on the adjudication of rights and wrongs, is simply not well-suited to delivering family justice. Family disputes should not be seen as a zero-sum battle between adversaries where the litigation outcomes are to be “won” or “lost”.(12) Instead, the unique nature of family disputes calls for a differentiated model of justice.
9. But family justice is not the only area where a different approach is called for. Indeed, for example, some of the distinct features of family disputes can also be found, in a different form, in what might be a surprising quarter – namely, construction disputes. While these may seem very disparate fields, and there are of course significant differences between them, there are also important similarities. Construction projects are typically complex, long-term enterprises involving multiple parties acting under conditions of uncertainty. An adversarial approach to construction disputes can be particularly undesirable because the successful completion of a project depends on the preservation of the parties’ longer-term relationships and the sustenance of goodwill between them. Zero-sum outcomes based on the parties’ strict legal entitlements will therefore often be neither necessary nor desired by the parties. And unlike other civil disputes, where liability turns on fault and a binary win-loss result may be unavoidable, many construction disputes cannot be neatly determined by applying a fault-based standard, because their underlying causes can arise from unforeseen or exogenous events – such as delays due to inclement weather.(13) Instead, the effective resolution of the dispute often calls for a focus on the shared interests of the parties, the holistic resolution of the underlying issues, and the preservation of the relationships that will continue long after the specific dispute has been determined.
10. Climate disputes, I suggest, form yet another category of disputes where such a distinct approach is needed. These disputes share some important common features with family and even construction disputes.
11. First, because of their very nature, they will almost invariably arise in the context of multi-faceted and longer-term relationships within communities which may have to continue long beyond the duration of a specific dispute, and they will typically involve multiple parties who may be affected in different ways by the dispute. In climate disputes, these might be relationships between governments and their people, or between communities and corporations, and the activities of these corporations may also generate jobs and economic growth for those very same communities.
12. Second, climate disputes often cannot be fully resolved by applying a rights-based or fault-centric approach to dispute resolution. The causes and effects of climate change are polycentric, and causal links are typically indirect. There will often also be a mismatch between the prevailing understanding of the obligations of different actors and the environmental impact of their actions at the time those actions are carried out, and the understanding of the situation at the time a legal claim is made in respect of those actions. In addition, zero-sum outcomes are usually neither necessary nor desirable, especially where it may be possible – and indeed, more sustainable – both to protect environmental features and also to promote commercial activity.(14) A focus on fault and blame can lead to deadlocks and stalemates, and may also exacerbate the polarisation of public discourse, undermining efforts to build consensus, which is so essential to climate action.(15)
13. Third, climate disputes call for a forward-looking focus on developing solutions that protect the broader and longer-term interests of those affected. By the time such disputes crystallise, some degree of environmental harm will usually already have occurred. In these circumstances, it may be more meaningful to focus on how the parties can move forward in a way that is more sustainable for all of them, instead of what one party should or should not have done in the past. A remedy like damages might compensate for specific harms that have already been suffered, but it cannot arrest or reverse the effects of climate change and environmental damage.(16) The issues involved in climate disputes often also play out over long periods of time, and demand sustained monitoring, forecasting, and adaptation and adjustment where necessary.(17)
B. Limitations of existing models
14 . These features mean that traditional adversarial models of adjudication will often not be best suited to providing the most suitable or meaningful resolution of climate disputes, or to addressing the real problems that underlie such disputes. Beyond the differences in philosophy and approach that I outlined earlier, there are also several limitations of existing adjudicative models that might make them inapposite for climate disputes. Let me elaborate on four such limitations.
i. Difficulty of establishing standing
15. First, prospective claimants in climate disputes often encounter difficulties in establishing the requisite standing to bring their claims before the courts. The rules on standing in many jurisdictions require litigants to show that their personal interests have been (or will imminently be) directly affected by the act or omission being challenged. While there may be important reasons for the adoption of such restrictions in other types of disputes, the “indirect, intergenerational and community-wide nature of climate change” does not sit comfortably with many versions of these rules. There may thus be a mismatch between the kinds of interests that the traditional models are designed for, and the kinds of interests that are engaged in climate disputes.(18)
16. This is especially problematic because those likely to be most affected by the impacts of climate change – such as children and future generations – will often not be in a position to act, and might not yet have suffered any provable harm or be able to show that such harm is imminent.(19) But this does not mean that their longer-term stake in preserving a liveable future for themselves and their descendants is any less real. And by the time the full impacts of climate change are felt, it will likely be too late for the necessary preventive and mitigating measures to be taken.
ii. Challenges in proving causation
17. Another limitation of existing models is that the highly polycentric nature of the causes and consequences of climate change can make it difficult to prove the requisite causal links between a particular defendant’s acts or omissions on the one hand, and climate change impacts on the other. As one group of academics has observed, anthropogenic climate change is caused by “the cumulative and indirect impacts of human activities across a range of sectors, at various scales, across different countries”, and its impacts are “similarly indirect, multi-scalar and differentiated”, such that “the relationship between cause and effect cannot always be linked in a linear way”.(20)
18. Some of these difficulties have been ameliorated by advances in climate change attribution science, which – broadly speaking(21) – examines the causal links between human activities, climate change, and the impacts of climate change.(22) This scientific evidence has gone some way in helping claimants to establish the necessary causal links between the actions being challenged and their alleged effects.(23) But often, scientific uncertainty as to the future impacts of climate change will persist to a significant degree, and this can pose a real problem because these future impacts will sometimes need to be controlled if the existential threat of climate change is to be addressed effectively.(24)
iii. Reductionism in the framing of climate issues
19. These challenges in establishing standing and causation contribute to a third limitation of existing models, which is that the legal process – with its narrower focus on specific kinds of harm and specific legal claims and remedies, instead of on broader environmental effects and deeper systemic concerns – can be particularly reductive for climate disputes. Existing models tend to reduce the complexity of factual situations in order to shoehorn them within a framework of legal rules and principles. In the context of climate litigation, this can flatten the real and essential complexity of climate issues, and sideline environmental, social and other kinds of impacts that do not fit neatly into established legal and factual frameworks, but yet which clearly need to be borne in mind if we are to develop meaningful responses and solutions.(25)
20. Let me offer just two illustrations of this point.
(a) The first is the KlimaSeniorinnen case, where the European Court of Human Rights held that Switzerland had breached its obligations under Article 8 of the European Convention on Human Rights by not doing enough to mitigate climate change.(26) While this was hailed by some as a landmark victory, the successful claim was ultimately one brought by an association on behalf of a limited demographic – elderly women who argued that heat waves exacerbated by climate change posed a particular health risk to them.
(b) Another perhaps even more striking example is from Nicaragua, where hundreds of people suffered from pesticide poisoning caused by exposure to a particular pesticide used in banana plantations. This had long-term effects on plantation workers and their children, including cancer, miscarriages, congenital malformations, visual problems and skin diseases. But the claim that was accepted when the matter went to court focused on a single health effect in a single social group – male infertility.(27)
iv. Practical obstacles to accessing justice
21. But perhaps an even greater limitation of existing models is the time and cost of the litigation process, which pose significant practical obstacles to accessing climate justice, and may deter or prevent meritorious claims from being brought at all.
22. First, litigation can be – and usually is – very time-consuming, and this tends to sit in tension with the need for prompt action to tackle environmental harms, to such an extent that it can even render any victories merely pyrrhic. One example is a series of cases in Spain involving waste piles arising from phosphate mining operations that had polluted the Llobregat River Basin. The first criminal complaint against the company running the mine was filed in 1997, followed by three other administrative complaints in the 2000s. Eventually, the High Court of Justice of Catalonia ordered the company to stop dumping waste in the biggest of the waste piles – but this came 27 years after the first complaint.(28) Another example might be the Lliuya case, which centres around damage caused by the melting of glaciers in the Andes and consequent flood risks. Although the claimant in that case has won some significant victories, the proceedings have been ongoing for nearly a decade.(29) This feature of the litigation process can thus be weaponised by defendants with deep pockets, who may adopt deliberate strategies to prolong legal proceedings so that they can continue their activities and avoid accountability while environmental damage and risks continue to mount.(30)
23. And on top of this, litigation can also be very costly. This may pose a particular barrier to accessing justice in this context given the power and resource asymmetries that are likely to exist between prospective claimants and defendants, the latter of which are typically governments or corporations. While climate change affects everyone, it may not affect everyone equally. It has been observed that power and wealth inequalities have tended to direct environmental harms and risk towards groups that are already marginalised along lines of ethnicity, gender and class,(31) such as indigenous peoples.(32) Yet, the justice gap is likely to be the widest for these vulnerable groups, who may face particular difficulties in pursing legal proceedings to safeguard their interests.
C. The need for a differentiated model of justice for climate disputes
24. The upshot of all this is the incongruity between the nature and needs of climate disputes on the one hand, and what most existing adversarial models of adjudication and dispute resolution can offer, on the other hand. How, then, might we develop a model of justice that is better suited to the particular needs of climate disputes, and the circumstances and interests of the parties involved in such disputes?
25. To be sure, my aim today is not to endorse any particular substantive approach that the courts should take to deciding climate disputes. The nature and extent of judicial intervention in this space will inevitably differ based on each jurisdiction’s constitutional, institutional and legislative frameworks.(33) Indeed, given that climate action engages far-reaching public interest and public policy considerations, the executive and legislative branches of government are typically and presumptively best placed to take the lead. This is because these branches are democratically accountable to the electorate and they are, or should be, institutionally equipped to make complex policy decisions that accommodate the interests of a wide variety of different stakeholders, as well as financial and resource considerations. I also do not propose to venture into questions of whether and how specific legal doctrines, including rules on standing and causation, should be modified. These doctrines have evolved over time to meet the needs of different jurisdictions, which may have legitimate reasons for taking a particular approach to them.
26. But it seems inevitable that some portion of the many cries for climate action and justice will come before the courts, as seen in the rising tide of climate litigation, and so courts around the world will need to be prepared when called upon to administer justice in specific cases. As judges, we should therefore be actively thinking about how our courts can best go about the task of managing these kinds of disputes when they do come before us. What do these disputes really need, and what sort of approach would be able to best meet those needs?
III. A new perspective – lessons from therapeutic justice
27. This brings me to the central thesis of my address, which is that therapeutic justice can usefully inform the development of a bespoke model of justice for climate disputes.
A. Why therapeutic justice?
28. But first: why therapeutic justice? The concept of therapeutic justice was developed in the late 1980s by two mental health and disability law professors. Its core idea is that the law is a social force that may – intentionally or otherwise – produce therapeutic or anti-therapeutic consequences. The short point is that traditional adversarial legal systems and processes can sometimes do more harm than good to those involved. We should therefore strive, as far as possible, to enhance the therapeutic potential of the law not only in our substantive laws, rules and procedures, but also through the behaviour of participants such as judges, lawyers and parties. Thus, contrary to traditional perspectives of the law which emphasise its dispassionate and detached nature, therapeutic justice seeks to engage with the deeper human elements and the social, psychological and emotional aspects of the dispute, with a view to using the therapeutic potential of the law to maximise beneficial outcomes for its users.(34)
29. While therapeutic justice has its origins in mental health law, its broader relevance to other areas of law has become apparent,(35) and it has been particularly influential in Singapore’s approach to family justice. It was adopted as the overarching philosophy of our family justice system in 2020,(36) and the “Therapeutic Justice Model" – which we launched recently at the tenth anniversary of our Family Justice Courts – gives concrete expression to how therapeutic justice is to be applied in this context.(37)
30. Like our approach to family disputes in Singapore, a refreshed approach towards climate disputes – informed by therapeutic justice principles – could be driven by three key objectives:(38)
(a) First, it should be restorative, in that it should endeavour to aid the parties to repair their relationships at least to a minimally functioning state. In the context of climate disputes, it should also seek, as far as possible, to restore a state of health and wellbeing to the places and communities affected by climate damage.
(b) Second, it should be holistic, in that it should seek to address not only the visible and apparent legal issues, but also – to the extent possible – their underlying non-legal causes, drawing on expertise and experience from a range of disciplines.
(c) Third, and perhaps most importantly, it should be interest-based rather than rights-based, and forward-looking rather than backward-looking. It should help the parties create sustainable and mutually acceptable solutions by encouraging them to look ahead with a focus on their shared interests, instead of leaving them preoccupied by grievances past. Such shared interests might be in the promotion of environmentally sustainable practices, or in the formulation of protective measures, and even in agreeing on useful procedural devices such as the exchange of information and voluntary disclosure obligations.
31. Importantly, therapeutic justice operates within the framework of the law.(39) It signifies a novel approach towards the use of the law that emphasises the importance of identifying and acknowledging the reality that the parties face a real problem that is harming them; and that requires the parties to adopt a constructive problem-solving approach in order to find a way forward. This inevitably requires the parties to move away from a zero-sum mentality and think instead of the best possible compromises and solutions to address their issues.(40) A therapeutic justice-informed model would therefore mark a shift from a singular focus on the adjudication of rights and wrongs, to the facilitated resolution of conflict through a focus on how the parties can best move forward in their shared interest.(41) To put it another way, the model would offer a framework that allows and encourages the parties to move from an adversarial stance to one that is more collaborative, and very much focused on their shared future. To sustain such a stance, the parties are encouraged to develop conflict resolution skills so that, as they contemplate the future with a better understanding of each other’s difficulties and aspirations, they can also imagine working together to solve any problems that may continue to arise.
32. In this way, such a model could also address some of the constraints that would otherwise be faced by the courts in dealing with climate disputes. I mentioned earlier that the executive and legislative branches are presumptively best placed to take the lead on climate action not least because, in the traditional model, they are institutionally better equipped to make complex, polycentric policy decisions. The judicial process is typically and necessarily more limited in scope. The adjudicative role of the courts is to interpret and apply the law to decide each individual dispute that the parties place before them, on the basis of a specific set of facts that the court must find in the light of the evidence that is led before it.(42) This process is therefore typically reactive or backward-looking in nature.(43) All this reflects the reality that the courts are institutions of law, not primarily institutions of governance.(44) But a shift in focus to how the courts, as institutions that develop and operate systems for the administration of justice, can facilitate the resolution of climate disputes, will help illuminate the potential of therapeutic justice to shape a new approach to the role of the courts in this sphere.
B. What might a therapeutic justice model for climate disputes look like?
33. What, then, might a therapeutic justice-informed model for climate disputes look like? I suggest, as a start, three specific procedural features that should be considered to give effect to such a model.
i. Judge-led approach (including early intervention and triaging)
34. First, the adoption of a judge-led approach to the court process, under which judges would be empowered to take a more proactive role in managing the proceedings from the time a climate dispute is commenced in the courts. A judge-led approach, rather than the party-led approach typically adopted in civil proceedings, is important because the parties to climate disputes are unlikely to be proactive in stepping back from their respective positions to consider what might be the best way forward in overall terms. Indeed, this is precisely why a judge-led approach features so prominently in Singapore’s “Therapeutic Justice Model” for family justice.(45)
35. In line with this, a triage process could be introduced to identify the particular needs of each case once it is filed, based on factors such as severity and urgency. This would help ensure that climate disputes are channelled to the most suitable case management pathways from the start of the proceedings.(46) Case conferences could also be convened to consider potential referrals to relevant support services and programmes, and to explore alternative dispute resolution with the parties, which is something I will elaborate on shortly.(47) The combination of a neutral party taking the lead in framing the issues that need to be resolved, intervening early and proactively to understand these issues and the parties’ positions, and framing the processes by which these issues can best be addressed and solved, is an important feature of the therapeutic justice model because it can be especially effective in de-escalating conflict, and therefore also in preventing matters from becoming further complicated or positions from becoming further entrenched.
ii. Multi-disciplinary expertise
36. The second feature is the integration of multi-disciplinary expertise into court processes. Climate disputes often involve technically and scientifically complex issues and evidence, and tend to have economic, social, psychological and even emotional dimensions. The legal aspects of the dispute may be just the tip of the iceberg. It will therefore be sensible to adopt a holistic approach, in line with the objectives of therapeutic justice, and to harness expertise from the relevant non-legal fields, if the issues involved are to be properly understood and managed by the courts.
37. This might be achieved through, for example, the assignment of cases to multi-disciplinary teams in which judges could work with social workers, mediators, and even court-appointed climate and environmental experts(48) to manage the various aspects of a case in a way that is customised to the needs of that case.(49) Let me just digress to say that we do this in our family justice system and it has been particularly effective. Specific mechanisms for managing expert evidence could also be developed. For example, the courts could be empowered to call for independent expert evidence, instead of or in addition to the evidence adduced by the parties;(50) or to call for special case conferences where expert witnesses can explain technical issues and scientific evidence and answer the judge’s questions in the presence of the parties and counsel.(51)
iii. Alternative dispute resolution
38. The third, and perhaps most important, feature is the prominent role of alternative dispute resolution. Parties to climate disputes should be actively channelled towards alternative dispute resolution processes, such as mediation and conciliation. These can offer particularly significant advantages for climate disputes:(52)
(a) First, such processes are less adversarial, less formal, more flexible, and generally faster and cheaper.
(b) Second, they focus attention on the parties’ real interests and allow them to articulate and seek to address a broader range of concerns, without requiring these to be framed in terms of legal issues and arguments.
(c) Third, these processes can generate innovative solutions that strive to address the real interests and needs of a range of affected parties, including those who may not be immediate parties to the legal dispute. They also support an emphasis on restoration and rehabilitation. For example, the solutions arrived at might include requiring defendants to contribute to ecological restoration projects; to provide assistance or compensation to affected communities; or to adopt or contribute to protective or preventive measures to reduce future harm.
(d) Fourth, the collaborative nature of these processes promises a higher likelihood of compliance with the solutions generated, and thus more durable and meaningful outcomes.
39. Some specialist environmental courts have already recognised the value of integrating alternative dispute resolution mechanisms within the court system. For example, the Land and Environment Court of New South Wales and the Environment Court of New Zealand adopt a “multi-door courthouse” approach, offering various alternative dispute resolution processes – such as conciliation and mediation – and personnel trained in these processes.(53)
40. Importantly, I am not suggesting that all climate disputes should be resolved only through alternative dispute resolution processes. A therapeutic justice-informed model does not start and end with alternative dispute resolution; on the contrary, it brings together a suite of dispute resolution options to enable the court to dispose of the matter in the best way possible. It should also be emphasised that the courts do not surrender their adjudicative control over the matter at hand. On the contrary, these alternative dispute resolution processes take place in the shadow of the law and the prospect of judicial intervention. In the context of our family justice system, for instance, issues that cannot be resolved at mediation will proceed to formal adjudication by the court;(54) in addition, the courts are also empowered to institute independent fact-finding processes to inquire into issues and to take their results into account in considering how best to proceed. Further, in making costs orders, the court will take into consideration whether the parties have conducted themselves in line with the aims of therapeutic justice.(55) This overarching adjudicative control, in combination with the ability of alternative dispute resolution processes to allow the parties to take greater ownership over resolving the issues they face, is what makes a therapeutic justice-informed model such a powerful tool for the facilitated resolution of conflict.
41. Adopting some or all of these procedural features might help to better equip our court systems to meet the challenges that climate disputes raise, and ensure that such disputes are managed and resolved in a way that addresses the broader issues and interests at stake in a more effective and enduring manner.
C. What else might be needed?
42. Looking beyond these specific procedural features, I suggest that three broader forms of action and support will be needed to more fully realise the vision of a therapeutic justice-informed model for climate disputes.
43. As a first step, it would be beneficial, and I suggest essential, for each jurisdiction to engage in focused dialogues with the relevant stakeholders to flesh out the details of how a therapeutic justice model might be implemented for climate disputes in that jurisdiction. In Singapore, our “Therapeutic Justice Model” was co-created by our Family Justice Courts with external stakeholders, after several consultation sessions with members of the Bar and social science practitioners.(56) In the context of climate disputes, platforms like this Convening also provide an excellent opportunity for us to share our perspectives across jurisdictions and gain a better understanding of one another’s experiences in this space. But this should be seen as an iterative process that engages with the key stakeholders within each jurisdiction. In this way, a consensus can be forged as to an adjudicative model that is accepted by those stakeholders and that is capable of working effectively.
44. Second, legislative support would be important to help establish specialised procedural frameworks and rules for climate disputes. This would enable a therapeutic justice-informed model to be implemented more robustly, in a manner that is appropriate for the needs and circumstances of each jurisdiction. Such frameworks could, for example, mandate participation in processes that are designed to help achieve the objectives of therapeutic justice, such as mediation and conciliation, at least in certain types of cases,(57) and to the extent necessary, establish mechanisms for judicial monitoring to ensure the parties’ compliance with orders that need to be implemented over a period of time.(58) They could also empower the courts to issue a wider range of orders and remedies, including interim orders to prevent further environmental harm while court proceedings are ongoing. For example, the Philippines’ Rules of Procedure for Environmental Cases empower the courts to make Environmental Protection Orders directing any person or government agency to perform, or desist from performing, an act in order to protect, preserve or rehabilitate the environment.(59)
45. Finally, training and capacity-building will be essential to educate judges, lawyers, and other groups who may be involved in climate disputes, on what a therapeutic justice model for such disputes entails and why they should embrace it. This will help ensure that all participants involved are familiar with therapeutic justice principles and processes, and turn to them in the right spirit. These efforts build up the therapeutic justice “software” that will complement the “hardware” of rules, procedures and processes.(60)
IV. Conclusion
46. Ladies and gentlemen, my principal thesis today has been that a bespoke model of justice, informed by therapeutic justice, could be developed for climate disputes because this may be more suitable for this unique species of disputes. Let me conclude by making some remarks on why I think the courts have a particular role to play in developing this bespoke model of justice. This lies in the fact that the courts are the institutions responsible for the administration and delivery of justice,(61) within the framework of the law. Beyond dispensing justice in each case that comes before them, that responsibility should also entail an ongoing duty to think about how court systems and processes could be designed and operated in ways that would better deliver justice in particular contexts – including in the context of climate disputes, which as I have observed are a distinct and increasingly important category of disputes.
47. These are challenging issues in a dynamic and difficult area of law and adjudication. While my remarks today cannot possibly offer all the answers, it is my hope that the vision I have outlined today might be able to guide us in asking the right questions, as we strive to ensure that our justice systems are ready to weather the storms that the climate crisis will bring to our shores in the years to come.
48. Thank you very much.
*I am deeply grateful to my law clerk, Eliza Chee, and my colleagues, Assistant Registrars Wee Yen Jean and Bryan Ching, for all their assistance in the research for and preparation of this address.
(1) See Climate Change 2023: Synthesis Report, Contribution of Working Groups I, II and III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (2023) (“IPCC Assessment Report”) at p 24.
(2) See William J Ripple et al, “The 2024 state of the climate report: Perilous times on planet Earth”, BioScience, Special Report (Oxford University Press, 2024) at p 1.
(3) See Michael Burger and Maria Antonia Tigre, Global Climate Litigation Report: 2023 Status Review, United Nations Environment Programme and Sabin Center for Climate Change Law, Columbia University (June 2023) (“Global Climate Litigation Report”) at p 12 (noting that the total number of climate change cases had increased from 884 as at 2017, to 2,180 as at 2022).
(4) See the Global Climate Litigation Report at p 15 (noting that the 2017 edition of the Report had included cases from 24 jurisdictions, the 2020 edition of the Report had included cases from 39 jurisdictions, and this report included cases from 65 jurisdictions).
(5) See the Global Climate Litigation Report at p 7.
(6) See the IPCC Assessment Report at p 52.
(7) See Sundaresh Menon CJ, “The Changing Face of Commercial Law: New Frontiers in an Asian Century”, keynote address at the Masterclass Programme for Commercial Judges in Asia (9 September 2024) at para 7; and Sundaresh Menon CJ, “Reimagining the Rule of Law: A Renewed Conception”, address at the final session of the Singapore Courts – Conversations with the Community (20 September 2024) (“Reimagining the Rule of Law”) at para 42.
(8) See Reimagining the Rule of Law at para 42.
(9) See Sundaresh Menon CJ, “Gateway to Justice: The Centrality of Procedure in the Pursuit of Justice”, 36th Annual Lecture of the School of International Arbitration in Dispute Resolution (30 November 2021) at paras 19 and 39; Sundaresh Menon CJ, “Constructing Collaboration: Remoulding the Resolution of Construction Disputes”, keynote address at the 9th Annual Conference of the International Academy of Construction Lawyers (14 April 2023) (“IACL Address”) at para 14; and, more recently, Reimagining the Rule of Law at paras 26(a) and 42.
(10) See Sundaresh Menon CJ, “The Family Justice Courts: Our Journey over the Past Decade”, opening remarks at the 10th Anniversary of the Family Justice Courts (21 October 2024) (“FJC 10th Anniversary Remarks”) at para 2.
(11) See Sundaresh Menon CJ, “Transformation of the Family Justice System in Singapore”, Special Address at the 4th Asian Family Conference (7 November 2024) (“AFC Address”) at paras 4–7.
(12) See the AFC Address at para 9.
(13) See the IACL Address at paras 4 and 15–16.
(14) On the problems with a zero-sum mentality in the context of environmental law and environmental protection, see David Takacs et al, “Beyond Zero-Sum Environmentalism” (2017) 47(4) Environmental Law Reporter 10328 (for example, at p 10330: “In land conservation, for example, we do not simply decide that land is to be set aside for pure conservation in a reserve-like setting or to be actively exploited to generate wealth. Instead, the potential arrangements and uses of the land are numerous. Indeed, we can often both protect environmental features and promote economic returns for the landowners”; and at p 10334: we should move “away from dualistic zero-sum thinking about environmental problems and lead us to more holistic, equitable visions of a shared future on a sustainable planet”) [emphasis added].
(15) See Ekaterina Aristova and Justin Lim (eds), “Climate Litigation in Europe Unleashed: Catalysing Action against States and Corporations”, Bonavero Institute of Human Rights, University of Oxford (5 March 2024) at p 14.
(16) See Justice Philip Jeyaretnam, “Courts in the Climate Crisis: Accountability and Action”, keynote speech at the NUS Asia-Pacific Centre for Environmental Law, the E W Barker Centre for Law & Business and the Commonwealth Climate and Law Initiative’s “Towards Net Zero Conference: Legal Aspects of Corporate Climate Action in Asia” (17 October 2024) (“Courts in the Climate Crisis”) at para 19.
(17) See Courts in the Climate Crisis at para 20.
(18) See Elizabeth Fisher, Eloise Scotford and Emily Barritt, “The Legally Disruptive Nature of Climate Change” (2017) 80(2) Modern Law Review 173 (“Fisher et al”) at pp 185–186.
(19) See Victoria Adelmant, Philip Alston and Matthew Blainey, “Human Rights and Climate Change Litigation: One Step Forward, Two Steps Backwards in the Irish Supreme Court” (2021) Journal of Human Rights Practice 1 at pp 7–8; and Kumaravadivel Guruparan and Harriet Moynihan, “Climate change and human rights-based strategic litigation”, Chatham House briefing paper for the International Law Programme and the Environment and Society Programme (November 2021) (“Guruparan & Moynihan”) at p 10.
(20) See Fisher et al at pp 178–179.
(21) There are various branches of climate change attribution science. One such branch is source attribution, which seeks to identify the relative contributions of different sectors, activities and entities to climate change: see Columbia Law School and Columbia Climate School, Sabin Center for Climate Change Law, Climate Attribution Database: https://climateattribution.org (“Climate Attribution Database”); and Michael Burger, Jessica Wentz and Radley Horton, “The Law and Science of Climate Change Attribution” (2020) 45(1) Columbia Journal of Environmental Law 57 (Burger et al) at pp 66–67, 76 and 128.
(22) See the Climate Attribution Database; Burger et al; and Petra Minnerop, “Climate Causality: From Causation to Attribution” in Cambridge Handbook on Climate Change Litigation (Margaretha Wewerinke Singh and Sarah Mead eds) (Cambridge University Press, 2024)
(23) See Guruparan & Moynihan at pp 10–11; and Minnerop at p 5.
(24) See, for example, Fisher et al at p 179.
(25) See Marta Conde, Mariana Walter, Lucrecia Wagner and Grettel Navas, “Slow justice and other unexpected consequences of litigation in environmental conflicts” (2023) 83 Global Environmental Change (“Conde et al”) at pp 6–8.
(26) See Verein KlimaSeniorinnen Schweiz and others v Switzerland [2024] ECHR 304.
(27) See Conde et al at pp 4 and 6.
(28) See Conde et al at p 4.
(29) See Lliuya v RWE AG, Case No 2 O 285/15, which was filed in the Essen Regional Court (Germany) in 2015. See also Germanwatch, “8 years of climate lawsuit against RWE” (24 November 2023): https://www.germanwatch.org/en/node/89817.
(30) This phenomenon has been referred to as “slow justice”: see Conde et al at pp 5 and 8.
(31) See the Global Climate Litigation Report at p 68, and Conde et al at p 2.
(32) The Global Climate Litigation Report (at p 68) notes that indigenous groups are disproportionately affected by climate change due to the fact that many indigenous peoples live in areas at greater risk of becoming uninhabitable (such as island and coastal areas, and fragile polar and forest ecosystems); their connection to the land; and their specific vulnerability to marginalisation on other frontiers (such as economic wellbeing and food security).
(33) In Singapore, for example, it is unlikely in the foreseeable future that our courts will need to take an interventionist approach in the public law space, because of the strong and proactive leadership of our executive branch in mitigating and adapting to climate change: see Reimagining the Rule of Law at para 43. For example, the multi-ministry Singapore Green Plan 2030 charts ambitious and concrete targets over the next ten years for Singapore to be a low-carbon leader in the region, and to achieve our long-term net zero emissions aspiration by 2050: see https://www.greenplan.gov.sg.
(34) See Sundaresh Menon CJ, “Through the Eyes of A Child”, keynote address at the 8th Family Law & Children’s Rights Conference: World Congress 2021 (12 July 2021) at para 5; and the AFC Address at para 10.
(35) See David B Wexler, “Creating a Therapeutic Justice Culture” [2021] SAL Prac 20 (4 June 2021) at paras 8–14.
(36) See Sundaresh Menon CJ, “From Family Law to Family Justice”, keynote address at the Law Society’s Family Conference 2020 (14 September 2020) (“From Family Law to Family Justice”) at para 33.
(37) See SG Courts, “Family Justice Courts Therapeutic Justice Model (TJ Model)” (21 October 2024): https://www.judiciary.gov.sg/who-we-are/therapeutic-justice.
(38) See From Family Law to Family Justice at para 33; Sundaresh Menon CJ, “International Family Justice as Collaborative Justice”, paper delivered at the 18th Conference of Chief Justices of Asia and the Pacific (18 November 2022) at para 44; and the AFC Address at para 9.
(39) See VVB v VVA [2022] 4 SLR 1181 at [28].
(40) See Sundaresh Menon CJ, “Procedure, Practice and the Pursuit of Justice”, keynote address at the Litigation Conference 2022 (5 May 2022) at para 32.
(41) See From Family Law to Family Justice at para 35.
(42) See Sundaresh Menon CJ, “The Role of the Courts in Our Society – Safeguarding Society”, opening address at the Singapore Courts – Conversations with the Community (21 September 2023) (“Role of the Courts”) at paras 3–4.
(43) See Courts in the Climate Crisis at para 20.
(44) See Courts in the Climate Crisis at para 21.
(45) Singapore’s Therapeutic Justice Model for family justice states that therapeutic justice in the Family Justice Courts “involves a judge-led process” and that the court is to have regard to the aims of therapeutic justice when exercising its judge-led powers under the applicable Family Justice Rules: see Family Justice Courts of Singapore, “Family Justice Courts Therapeutic Justice Model” (21 October 2024) (“TJ Model”) at paras 2 and 15.
(46) Such a process was recently introduced in Singapore’s Family Justice Courts: see Justice Teh Hwee Hwee, “From Confrontation to Collaboration: A Decade in Transforming the Family Justice Paradigm”, keynote address at the Law Society of Singapore’s Family Conference 2024 and CJ Koh Lecture 2024 (3 September 2024) (“From Confrontation to Collaboration”) at para 21.
(47) These might be modelled after the Family Dispute Resolution Conferences and Therapeutic Justice Cooperative Conferences conducted in Singapore’s Family Justice Courts: see para 11(11) of the Family Justice Courts Practice Directions; SG Courts, “Mediation at the Family Dispute Resolution Division”: https://www.judiciary.gov.sg/family/mediation-at-family-dispute-resolution-division; and From Confrontation to Collaboration at para 21. See also the TJ Model at para 6, Annex A and Annex B.
(48) Some environmental courts and tribunals (such as the Land and Environment Court of New South Wales (“LECNSW”) and the New Zealand Environmental Court) have appointed specially qualified persons to provide expert assistance to judges: see Justice Brian J Preston SC, Chief Judge of the LECNSW, “Characteristics of Successful Environmental Courts and Tribunals”, paper presented to the 27th LAWASIA Conference (5 October 2014) (“Preston (2014)”) at p 19.
(49) These might be modelled after the Therapeutic Justice Teams introduced in Singapore’s Family Justice Courts: see Justice Debbie Ong, “Therapeutic Justice – A Fresh Approach to Family Justice”, Singapore Courts – Conversations with the Community (16 November 2023) at para 44; and From Confrontation to Collaboration at paras 21–22. See also the TJ Model at paras 3(b)(ii) and 6–8.
(50) This might be modelled after what is done in the LECNSW (see Preston (2014) at p 23) and in the Environment and Land Use Appeal Tribunal in Mauritius (see the United Nations Environment Programme, “Environmental Courts and Tribunals 2021: A Guide for Policymakers” (2022) (“UNEP Guide for Policymakers”) at p 39).
(51) This might be modelled after the three-day “technology tutorial” convened by the Singapore Court of Appeal (albeit in the context of an intellectual property dispute) in the case of IIa Technologies Pte Ltd v Element Six Technologies Ltd: see IIa Technologies Pte Ltd v Element Six Technologies Ltd [2023] 1 SLR 987 at [8]; and Sundaresh Menon CJ, “The Complexification of Disputes in the Digital Age”, Goff Lecture 2021 (9 November 2021) at para 13.
(52) See the UNEP Guide for Policymakers at pp 30–31; Preston (2014) at pp 20–21; and Sundaresh Menon CJ, “Mediation: At the Dawn of a Golden Age”, address at the Samadhan National Conference 2023 (15 April 2023) at paras 12–13.
(53) See the UNEP Guide for Policymakers at p 31; and Justice Brian J Preston SC, Chief Judge of the LECNSW, “The Role of the Courts in Delivering Environmental Justice”, the 2023 Sir Ninian Stephen Lecture (4 August 2023) at p 17.
(54) See the TJ Model at pp 5–6.
(55) See the TJ Model at paras 17–19.
(56) See the TJ Model at para 23.
(57) Just as mediation has been made mandatory in Singapore in divorce cases involving minor children, and might also become mandatory in some neighbour disputes under proposed amendments to the Community Disputes Resolution Act (under which authorised agencies would be empowered to direct disputing neighbours to attend community mediation): see Ministry of Law, “Building More Gracious and Harmonious Communities: Facilitating Effective Resolution of Neighbour Disputes” (12 August 2024) (https://www.mlaw.gov.sg/building-more-gracious-and-harmonious-communities-effective-resolution-of-neighbour-disputes). In the environmental law context, the courts in Vermont (US) mandate alternative dispute resolution in all environmental disputes, as do some environmental courts and tribunals in Tasmania (Australia): see the UNEP Guide for Policymakers at p 31.
(58) One such mechanism might be the “continuing mandamus” (which is used in countries such as India, Pakistan and the Philippines), which would grant the court continued jurisdiction over the case after it has issued its decision, so that it can monitor compliance with that decision: see the UNEP Guide for Policymakers at p 35.
(59) See Supreme Court of the Republic of the Philippines, Rules of Procedure for Environmental Cases (A M No 09-6-8-SC), Part I, Rule 1, Section 4(d); and International Commission of Jurists, “Southeast Asian Region: Judicial Dialogue Considers How to Make Courts More Effective in Environmental Cases” (30 September 2024): www.icj.org/southeast-asian-region-judicial-dialogue-considers-how-to-make-courts-more-effective-in-environmental-cases.
(60) See, for example, the IACL Address at para 27(d).
(61) See Role of the Courts at paras 32 and 47; and Sundaresh Menon CJ, “Judicial Excellence in a Challenging World: The Centrality of Trust”, keynote address at the International Association for Court Administration Conference 2024 (12 November 2024) at para 3.
2024/12/11
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