Haze — a legal perspective

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HELPING HAND: A teacher helps a student put on a face mask due to the haze at a school in Putrajaya, outside Kuala Lumpur in this file picture. — Reuters photo

KUALA LUMPUR: Malaysia, Singapore and other Asean nations have raised concerns over the dangers of the annual “migration” of haze from Indonesia to its neighbouring countries.

Amid the recent haze pollution which badly struck Malaysia and Singapore, Asean countries have urged Indonesia to quickly ratify the Asean Agreement on Transboundary Haze Pollution (ATHP), which was signed in June 2002.

Indonesia is the only Asean member that has not ratified the agreement, which was enforced in November 2003, even though the country is singled out regularly as the “biggest contributor” to the transboundary haze problem.

Now, the question arises as to whether any legal action could be taken against Indonesia, in light of the recent haze, which was the worst-ever air pollution crisis in the region. In fact, the air pollution index (API) in Muar had skyrocketed to 746 — more than twice the standard hazardous level.

The haze spread to Malaysia and Singapore due to the forest fires on the Indonesian island of Sumatra. Reports have stated that clearing land by burning forests is still practised in Indonesia despite a total ban by the government.

According to Dr Mohd Yazid Zul Kepli, Assistant Professor in the International Law department, International Islamic University’s Ahmad Ibrahim Kulliyyah of Laws, a positive aspect on the issue was that Indonesia has agreed to bring forward the Meeting of the Sub-Regional Ministerial Steering Committee (MSC) on Transboundary Haze Pollution to July 15-17 from Aug 20-21.

Speaking to Bernama, he said that the legal aspect concerning the agreement could offer some remedies, but a comprehensive solution covering political, economic and social areas is also necessary.

He said that from a legal perspective, it was wrong to assume that a state is helpless when another state refuses to ratify an international environmental law.

“Countries are sovereign entities and cannot be dictated by others. But it doesn’t mean that harmful actions should be tolerated, without providing legal remedies,” he said.

He said under the domestic law, a house owner, who started a fire on purpose or by accident, would be liable for any loss or damage caused to the neighbours, noting that a similar doctrine has been developed in international law.

He cited the 1941 Trail Smelter dispute, which involved a smelter in Canada, where smoke from the smelter spread across the border, causing air pollution in the US. In this case, an international tribunal held Canada responsible for the environmental damage and ordered it to pay for the damages, he said.

According to Yazid, this is the fundamental principle of international environmental law — activities conducted in a state should not cause transboundary harm.

He further explained that while it is possible to bring Indonesia to the international court and claim for compensation, it is a challenging task as Indonesia’s consent might be required for this purpose.

In such a situation, it is better to address the matter peacefully in a bilateral discussion and in a regional forum since claiming compensation from Indonesia is not necessarily a positive action.

According to Yazid, if a state fails to comply with the Asean agreement, it is considered to have breached international obligations. In this case, he believes that punishments should be in line with the nature of agreements.

However, no one can force any country to accept any international convention or agreement; once a country accepts an agreement voluntarily, the country should fulfill its obligation, he said.

The Asean Agreement on Transboundary Haze Pollution is the first regional arrangement in the world to bind a group of contiguous states to tackle transboundary haze problem that results from land and forest fires.

The agreement requires relevant parties to cooperate in developing and implementing measures to prevent, monitor, and mitigate transboundary haze; respond promptly to a request for relevant information sought by a state or states that are or may be affected by such transboundary haze problems; and take legal, administrative, or other measures to fulfill their obligations as per the agreement.

Explaning further on the legal aspect, a researcher at Indonesian Institute of Sciences (LIPI) Jakarta, Laely Nurhidayah,  said that there were two international frameworks that can be used to address the transboundary haze pollution in the Asean region namely the customary international law and treaties.

The customary international law’s framework involves the state responsibility’s principles namely the duty to prevent transboundary pollution and duty to compensate, she said in her paper “The Influence of International Law upon Asean Approaches in Addressing Transboundary Haze Pollution in the Asean Region.

Laely who is currently doing her Phd in Law at Macquarie University, Australia, had presented the paper at the 3rd National University of Singapore (NUS)-Asian SIL (Society of International Law) Young Scholars Workshop in 2012. She made available the paper when contacted by Bernama on the haze issue.

She said that these principles, known as the no harm principle, state that: “States have, in accordance with the Charter of United Nations and the principle of international law, the sovereign right to exploit their own resources pursuant to their own environmental and development policies.

“The States also have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

Legally, these principles can be effective in addressing the transboundary haze pollution problem because according to the principles, state has an obligation not to cause environmental damage to other countries and to pay compensation for the damage caused, she said.

However she said that the principles were constrained by the rule of State sovereignty, reflected in the “Asean Way”, especially in developing a State responsibility and liability system at regional level, which is not a politically viable option.

Laely quoted a statement by former Asean Secretary-General, Rodolfo Severino in 1999, who said that the 10-member Asean countries cannot sue polluting members, which are responsible for transboundary pollution because of the grouping’s principle of non-intervention.

She said that Asean has adopted the customary international law no harm principle into its legal framework, particularly as stated in article 3(1) of the Asean Agreement on Transboundary Haze Pollution (AATHP), but with the addition of the words “harm to human health of other States”.

Article 3(1) reads: “The parties have, in accordance with the Charter of United Nations and the principle of international law, the sovereign right to exploit their own resources pursuant to their own environmental and development policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment and harm to human health of other States or of areas beyond the limits of national jurisdiction.”

This agreement however does not contain any rule on State liability as to damage, she said citing Article 27 of the AATHP, which stated that any dispute between Parties as to the interpretation or application of, or compliance with, this Agreement or any protocol thereto, shall be settled amicably by consultation or negotiation.

Laely explained that Asean is relying more on prevention and cooperation measures rather than establishing a liability regime or adopting formal legal instruments to protect the environment in addressing shared environmental problems.

She also noted that the agreement does not directly forbid certain types of conduct but instead, merely encourages the parties to promote zero burning policies and reiterated that the provisions in the Asean Agreement on Transboundary Haze Pollution do not contain any obligation to make compensation.

With the meeting on the Transboundary Haze Pollution brought forward it is hoped that Asean will be able to tackle and take another look into the issue in the spirit of togetherness, so that there won’t be anymore “finger-pointing.” — Bernama