Southeast Asia: protecting biodiversity in Southeast Asia: challenges and opportunities

Population growth, rapid urbanisation, deforestation, illegal logging, unsustainable industrial and agricultural practices, illegal wildlife trade and declining coral reef health are some of the key challenges facing the region.

In addition, SEA nations are also looking to increase the proportion of renewable energy in their energy mix in order to meet their Paris Agreement goals and Nationally Determined Contributions – causing significant impact on land and habitats further threatening the region’s biodiversity.

These competing goals are also compounded by legal implementation gaps - despite SEA nations having extensive legal frameworks to protect the environment, effective enforcement remains weak.

Like its endemic diversity, the Southeast Asian nations also have a very diverse legal framework with different legal traditions, adding to the complexity in protecting the environment and the region’s biodiversity. The legal and regulatory structures differ within each country in SEA: – for example, Singapore and Malaysia follow the common law system, while Thailand, Vietnam and Cambodia follow the civil law system. The Thai civil law system is influenced by traditional Thai customs, while the Cambodian civil law system is heavily influenced by French legal traditions. Indonesia is a mixed legal system of civil law and customary law.

The vast majority of climate related lawsuits are filed in domestic courts, underscoring the important role played by domestic courts. This makes the differences in the legal framework and tradition, language and culture more acute when trying to obtain a complete picture of the environmental related legal structure in SEA.

All the countries have their own specific environmental legislation that prohibits pollution and focusses on environmental protection. It would not be possible to list all the environmental related legislation of all 10 Southeast Asian nations, but some examples include:

• Some of Singapore’s key legislation aimed at protecting its natural resources and promoting sustainable development include inter alia: (i) the Environmental Protection and Management Act 1999 (EPMA) which governs pollution control and environmental management and establishes regulations for waste management, air quality, and water pollution; (ii) the Resource Sustainability Act 2019 which promotes waste reduction and recycling initiatives and regulates the proper disposal of hazardous waste and (iii) the Wildlife Act 1965 which provides for the protection, preservation and management of wildlife.
•  Malaysia’s key legislation include: (i) the Environmental Quality Act 1974 which prohibits pollution and holds companies accountable for environmental damage, (ii) the Wildlife Conservation Act 2010 which seeks to protect protect wildlife and their habitats; regulates hunting and trade of endangered species and establishes protected areas for conservation; and (iii) the Forestry Act 1984 which governs the management and conservation of forest resources and regulates logging, forest reserves, and sustainable forest practices. Malaysia also has dedicated environmental courts handling environmental crimes and cases, with over 800 cases disposed of in 2022.
• Indonesia has enacted for example: (i) the Environmental Protection and Management Act (Law No. 32 of 2009) which focuses on environmental protection and management; (ii) the Forestry Law (Law No. 41 of 1999) which governs the management and conservation of forest resources, regulates logging, reforestation, and establishes protected forest areas; and (iii) the Conservation of Living Resources and their Ecosystems Act (Law No 5 of 1990), which was revised in 2024 with a view to provide better legal protection to wildlife and the environment.
• Environmental protection is enshrined in Thailand’s constitution. Thailand has also enacted for example: (i) the Enhancement and Conservation of Environmental Quality Act 1992 which inter alia establishes standards for air, water, and noise pollution and requires environmental impact assessments (EIAs) for projects that may affect the environment; (ii) the Wildlife Conservation and Protection Act 2019 which facilitates the conservation, protection, care, and restoration of wild lives and their habitats, ensure the maintenance and administration of wildlife sanctuaries and non-hunting areas, manage wildlife and other natural resources, ecosystems, and biodiversity in these areas in a balanced and sustainable manner; and (iii) the Forest Act 1941 which provides for the control and management of State forests by regulating the logging and collection of forest products, and timber and forest product transportation. Thailand has also introduced a Draft Climate Change Act which covers topics like a climate change fund and carbon tax emissions.
• The Philippines has enacted inter alia: (i) Republic Act No. 10654 which amended the Philippine Fisheries Code 1998 and seeks to prevent, deter and eliminate illegal, unreported and unregulated fishing; (ii) the Climate Change Act 2009 (Republic Act No 9729) which establishes a framework for climate change adaptation and mitigation and created the Climate Change Commission to coordinate government efforts in addressing climate issues;

On an international and regional level, the SEA nations are signatories to the United Nations Convention on Biological Diversity which was concluded in 1992 (the “Convention”). This has meant greater commitment by SEA nations to protecting the region’s biodiversity. For example, nations are implementing national policies on biodiversity management. 1

In June 2024, the SEA nations forming the Association of Southeast Asian Nations (ASEAN) are developing the region’s first-ever environmental rights framework with the assistance of the United Nations Environment Programmes (“UNEP”), seeking to enshrine these rights.

The adoption of the Kunming-Montreal Global Biodiversity Framework in December 2022 at the 15th Conference of the Parties (COP15) of the Convention on Biological Diversity also represents a global effort to address this increasing loss of biodiversity, and the urgent need for recovery.

In October 2024, the ASEAN nations issued a joint statement on biodiversity to the 16^th Meeting of the Conference of the Parties to the Convention on Biological Diversity (“ASEAN Joint Statement”). In the ASEAN Joint Statement, the ASEAN nations inter alia reaffirmed their commitment to contribute towards achieving the Kunming-Montreal Global Biodiversity Framework by developing regional biodiversity strategies and action plans to protect and conserve biodiversity in the ASEAN region.

There has been an increase in environment related litigation in SEA in recent years. As communities become more aware of their rights, and younger generations become more vocal in seeking to hold governments and corporations accountable for environmental and biodiversity rights, there is a growing trend of public interest litigation in the region.

In Malaysia, recent trends show increased non-governmental organizations (“NGO”) activism, particularly from indigenous groups like the Orang Asli, who are asserting their rights against development projects that threaten their ancestral lands, and therefore playing a vital role in biodiversity litigation.

A recent example relates to a decision handed down by the High Court in the state of Perak in September 2024 which halted the development of a hydroelectric dam project after indigenous groups claimed their ancestral rights were violated. The court ruled that the dam developers had failed to properly consult with or gain the consent of the Semai Orang Asli before beginning construction on their land in the village of Ulu Geruntum, in the town of Gopeng. The court ordered the developers to immediately halt operations, to vacate the area, and to remove all equipment within 30 days of the order. 2

This case is a major milestone for indigenous land rights in Malaysia where indigenous groups have historically struggled to safeguard their customary lands against development initiatives. The fact that this decision comes after the initial lawsuit was commenced in 2018, and after the project was commenced in 2012, highlights the risk that developers and companies face in undertaking infrastructure projects without proper environmental impact assessments.

In Thailand, in 2022, seven environmental groups filed a lawsuit against Thai government for failing to address the nation’s pressing air pollution problems, thus failing to protect its citizens from air pollution. 3  In another case in April 2022, 50 plaintiffs representing over 600 people from the Omkoi District of Chiang Mai Province, Thailand filed a lawsuit requesting the Chiang Mai Administrative Court to revoke the Environmental Impact Assessment for a proposed coal mine that will destroy approximately 45.5 hectares of land, including over 40 farm plots and local waterways which the community depends for their livelihoods. 4

In Indonesia, youth activism has also gained traction, with recent complaints filed against the government for failing to address climate change impacts, highlighting a growing awareness of environmental issues among younger generations. In July 2019, 32 local citizens filed a “citizen lawsuit” in the Central Jakarta District Court against government ministers and officials for negligence in failing to fulfil their duty to limit air pollution in Jakarta and surrounding areas. In September 2021, the Central Jakarta District Court issued a landmark decision holding that government ministers and officials were in breach of their obligations. The government was ordered to inter alia, update national air quality standards, develop plans to address the air quality in Jakarta specifically, and enhance air quality monitoring in the transboundary context. 5

What can be seen is that citizens, often supported by NGOs, are increasingly turning to litigation to close the “implementation gap” between strong environmental laws and national commitments, and actions. Increasingly, more legal challenges are aimed at biodiversity protection, and there is some argument to expect rights-based litigation to be used by “people, communities, and organizations concerned about (climate change and biodiversity) crises to try and accelerate action and achieve accountability”. 6

The preservation of biodiversity in Southeast Asia is critical for ecological balance and the livelihoods of millions. While legal frameworks exist to address environmental issues, effective enforcement and collaboration among governments, NGOs, and local communities are essential for achieving meaningful change. Increased public awareness and participation in legal processes can further strengthen biodiversity litigation efforts.

In conclusion, the challenges facing biodiversity in Southeast Asia are complex and multifaceted. However, through continued advocacy and legal action, there is hope for preserving this vital region's ecological heritage for generations to come. The commitment of Southeast Asian governments to biodiversity conservation is evident, but significant challenges remain. Strengthening legal frameworks, enhancing community participation, and fostering collaboration between governments and NGOs are vital for protecting the region's rich biodiversity. Enforcement of existing laws must also be improved to ensure effective protection of Southeast Asia's unique ecosystems.