Abstract
Since the 1980s, Southeast Asia has experienced transboundary haze pollution. To combat this, ASEAN member states have taken action, culminating in the signing of the ASEAN Agreement on Transboundary Haze Pollution in 2002. Nevertheless, transboundary haze pollution remains a problem in the region. This note argues that the ASEAN Agreement on Transboundary Haze Pollution has had limited success for five reasons. First, there is no regional centre to monitor haze pollution and facilitate co-operation. Second, there are bilateral relations hindering joint response towards pollution. Third, there is ineffective legislative action and enforcement at the national level. Fourth, there are potential conflicts of interest between stakeholders involved in transboundary haze pollution. Fifth, an overarching issue lies in the ASEAN mode of governance, in which member states are reluctant to adopt an adversarial approach towards regional problems.
Keywords
Introduction
Since the 1980s, Southeast Asia has experienced major episodes of transboundary haze pollution.
1
The resulting environmental and health damage has prompted Southeast Asian countries to take steps to combat haze pollution, culminating in the signing of the Association of Southeast Asian Nations (“
Despite ratification of the Haze Pollution Agreement, transboundary haze pollution remains a problem in Southeast Asia, most recently affecting Singapore, Malaysia and Indonesia. 3 This paper argues that there are five issues impeding ASEAN member countries in fulfilling their obligations under the Haze Pollution Agreement. These include the absence of a regional monitoring centre, bilateral tensions between ASEAN member states, ineffective legislative action and enforcement at the national level, conflicts of interest among stakeholders in transboundary haze pollution, and a non-legalistic approach towards governance in Southeast Asia.
This article is divided into three sections. The first section outlines the background to the Haze Pollution Agreement. The second section outlines the key issues. The final section provides concluding remarks.
Background
One of the major contributors to transboundary haze pollution is peatland fires, often attributed to slash and burn farming techniques which are performed to clear land quickly for palm oil and pulpwood plantations. 4 Smoke from peatland fires is carried by prevailing winds into neighbouring countries. In Southeast Asia, transboundary haze pollution has been addressed regionally through ASEAN which aims to promote active collaboration on matters of common interest. 5 The ASEAN Co-operation Plan on Transboundary Pollution was formulated in 1995, this elaborated strategies and institutional arrangements for tackling transboundary atmospheric pollution. 6 In 1997, Ministers of Environment in ASEAN member countries endorsed the Regional Haze Action Plan, with a view to monitor and prevent land and forest fires through better management policies and enforcement. 7
These steps culminated in the signing of the Haze Pollution Agreement on 10 June 2002. 8 This agreement prescribes obligations on parties to monitor and respond to transboundary haze pollution. The Haze Pollution Agreement entered into force on 26 September 2003, following ratification by Brunei Darussalam, Malaysia, Myanmar, Singapore, Vietnam and Thailand. 9 Indonesia ratified the Haze Pollution Agreement much later on 16 September 2014. 10
The Haze Pollution Agreement's overarching aim is to prevent and monitor transboundary haze pollution from land or forest fires.
11
To achieve this aim, the agreement provides five guiding principles. These include:
Imposing a responsibility on member states to ensure that, in pursuing their sovereign right to exploit resources within their own jurisdiction, these activities do not cause damage to the environment or harm to human health in other States/areas outside their national jurisdiction. Co-operating in preventing transboundary haze pollution. Taking precautionary measures to anticipate, prevent and monitor transboundary haze pollution where there are threats of serious damage, even without full scientific certainty. Managing and using natural resources in an ecologically sound and sustainable manner. Engaging with stakeholders to address transboundary haze.
12
Developing and implementing measures to prevent and monitor transboundary haze pollution. Promptly responding to requests for relevant information or consultations sought by a State affected by haze pollution originating from that party's jurisdiction. Enacting legislative, administrative or other measures to implement obligations under the agreement.
13
Against the backdrop of these principles, the Haze Pollution Agreement sets out three obligations:
Whilst the Haze Pollution Agreement represents a step forward in tackling transboundary haze, there are five key issues which limit its effectiveness. These are discussed in the following section.
Key issues
Monitoring obligations under the Haze Pollution Agreement
Monitoring at the national and regional level is a key part of the Haze Pollution Agreement. At the national level, each party shall designate national monitoring centres to monitor land and forest fires. 14 At the national level, Indonesia, Malaysia, and Singapore have national monitoring centres. In Indonesia, the Meteorological, Climatological, and Geophysical Agency publishes information on concentration levels of PM10 and PM2.5 within various cities, and satellite images of the region. 15 In Malaysia, the Department of Environment provides real-time updates on the Air Pollutant Index in different Malaysian states and in different countries in the region. 16 In Singapore, the National Environment Agency provides 24-hour Pollutants Standards Index readings, haze outlook and satellite images of fires in the region. 17
However, given the transboundary nature of haze, national monitoring alone is insufficient, and co-operation is key. Monitoring attempts at the national level are limited by deficiencies at the regional level. Article 5 of the Haze Pollution Agreement provides that the ASEAN Co-ordinating Centre for Transboundary Haze Pollution Control (the “
However, the ASEAN Centre has still not been established. 19 Its absence hinders joint response towards transboundary haze pollution. ASEAN member states are unable to leverage on the ASEAN Centre to consolidate data from national monitoring centres, communicate requests to combat forest fires and mobilise financial resources, as envisaged under the Haze Pollution Agreement. 20
Bilateral tensions and joint response to transboundary haze pollution
Bilateral tensions between ASEAN member states may impact joint responses to transboundary haze pollution. This was illustrated during the haze crisis in 2015. Singapore offered to assist Indonesia's efforts to combat forest fires in Sumatra. 21 However, Indonesia initially declined Singapore's offer for assistance. 22 Subsequently, Indonesian Vice President Jusuf Kalla called on Singapore to “step in to help Indonesia to combat the fires”. 23 As a result it was only in early October 2015 that the Indonesian government agreed to receive help from foreign countries to extinguish peatland fires, three months after the initial forest fires. 24
It is unclear why the Indonesian government adopted an ambiguous position in receiving assistance. One explanation is that there are bilateral tensions between Singapore and Indonesia. Indonesian policy makers perceive Singapore to be dependent on Indonesia, and their relationship to be unequal. 25 Previous interactions may also play a part, with a former Indonesian president commenting that Singapore did not help Indonesia in previous times of need. 26 This episode suggests that bilateral tensions may play an important and wider role in facilitating any joint response.
Legislation and enforcement by ASEAN Member States
Under Article 4 of the Haze Pollution Agreement, parties are to take legislative measures to implement their obligations under the agreement. 27 In this regard, Indonesia, Malaysia and Singapore encounter difficulties in taking legislative action/enforcing legislation against transboundary haze pollution, for various reasons.
Indonesia
In Indonesia, Law No. 32 of 2009 (Environmental Protection and Management) places responsibility on the government, both provincial and regional, to provide education and training, to protect and manage the environment. 28 In terms of liability for pollution, anybody who burns land shall be subject to a minimum imprisonment of 3 years and a fine amounting to 3 billion rupiah. 29
However, legislative enforcement is problematic for Indonesia in two ways. First, governance in Indonesia has been decentralised through different administrative levels to bring the government closer to their constituents, via the enactment of Law No. 22 of 1999 (Concerning Regional Administrations). 30 In theory, Indonesia's decentralization policy may be expected to yield better results for environmental management, as environmental policies may be more sensitive toward local community needs. 31 However, there is a lack of formal education and political experience at the municipal level and serious confusion about the scope of duties, including who has the rightful authority to grant approvals for plantation development. 32
Second, the effectiveness of legislative sanctions for environmental pollution is questionable. Although there are reports of plantation companies being charged and fined under Law No. 32 of 2009, 33 there is a lack of information regarding the actual number of cases prosecuted and the number of successful convictions. There is also no clarity on whether judgment sums were successfully recovered from plantation companies found to be liable. At present, despite enacting relevant legislation, there are ongoing issues with governance and enforcement in Indonesia.
Singapore
On 25 September 2014, Singapore's new Transboundary Haze Pollution Act (the “
The Act adopts a framework where potential defendants are first served a notice requiring them to provide information regarding haze pollution, and to take preventive measures. 36 The Director-General may give notice to any entity that, in his opinion, is involved in haze pollution, with such notice requiring the said entity to prevent, reduce or control pollution. 37 The Director-General may also give notice in writing to any person (whether within or outside Singapore) requiring the person to furnish information regarding haze pollution. 38
On closer scrutiny, the Act is ineffective in three ways. First, there is no compulsion on entities to stop haze pollution after a notice is served. This was borne out during the haze crisis in 2015 when the Singapore government served preventive measure notices on four Indonesian companies, PT Rimba Hutani Mas, PT Sebangun Bumi Andalas Wood Industries, PT Bumi Sriwijaya Sentosa, and PT Wachyuni Mandira. 39 However, there were no reports on whether these companies had taken remedial steps under these notices.
Second, it is challenging for potential claimants to prove that perpetrators caused pollution. In this regard, the Act contains a presumption that there is haze pollution in Singapore involving smoke resulting from a land or forest fire on any land situated outside Singapore, and smoke from that fire is moving in the direction of Singapore based on meteorological information. 40 While this presumption may in theory make it easier for claimants to prove civil liability, it does not remove all evidentiary hurdles. Claimants require maps to track haze pollution in the region. Authoritative, updated, and accurate maps must be obtained from relevant sources. 41 This is not a given since countries may be unwilling to share maps. 42 Further, there may be multiple “official” maps which provide mutually contradictory information. 43
Third, even though the Act imposes civil liability on companies outside Singapore, Singapore judgments are unenforceable in Indonesia. 44 This is problematic as many plantation companies are located in Indonesia, given that Indonesia is the largest producer and exporter of palm oil worldwide. 45 An applicant must file a new lawsuit to re-litigate the case at the relevant Indonesian district court. 46 Thus, enforcement and prosecution in Indonesia matter most in resolving the pollution problem caused by companies within that jurisdiction. 47
These three issues may deter parties from commencing claims under the Act and would further explain why there have been no reported court decisions of companies found liable under the Act. 48
Malaysia
Unlike Singapore, Malaysia does not have its own legislation allowing claimants to seek redress against foreign companies for haze pollution in their home country. Initially, there were discussions to table a bill for a proposed Transboundary Haze Pollution Act within the Malaysian Parliament. However, this plan was shelved. Reasons for this reportedly include: consideration of Singapore's experience, views from legal experts including the Attorney General's Chambers, and issues associated with collection of evidence to take action against Malaysian-owned companies operating abroad. 49 Further the Malaysian government believes that enhanced co-operation with neighbouring countries and ASEAN is the best way to address the issue. 50
However, none of the above reasons should justify a refusal to table the Transboundary Haze Pollution Act in the Malaysian Parliament. The perceived ineffectiveness of Singapore's Transboundary Haze Pollution Act should not be seen as a disincentive for Malaysia to enact its own legislation. Instead, this should be viewed as an opportunity for Malaysia to build on and improve legislation designed to combat transboundary haze pollution. Moreover, Malaysia's failure to enact its own Transboundary Haze Pollution Act is a breach of its obligations to take legislative measures under the Haze Pollution Agreement. 51 As a result, there is a need for action, and there have been calls urging the Malaysian government to continue with efforts to develop Malaysia's own Transboundary Haze Pollution Act. 52
Conflict of interest between stakeholders in transboundary haze pollution
To compound the above issues, there are conflicts of interest among stakeholders and institutions within and between ASEAN member states. First, there is a lack of cooperation between domestic institutions within member states due to conflicts of interest among different stakeholders. 53 A higher degree of local autonomy in Indonesia combined with direct local election has led to a heavy focus on revenue. 54 Plantation companies are primarily profit-driven and may operate at the expense of the environment. Local farmers may be so used to traditional slash-and-burn techniques that they are resistant to spend time and money in adopting alternative methods of preparing land without burning. 55 Furthermore, it has been suggested that people may be paid to burn land to open new land for plantations or to sell burnt land to plantation investors. 56
On a related note, there may also be “state capture” within ASEAN member states, in which private individuals influence the state's decision-making process through various means, to serve their personal interests. 57 State capture is a risk where control and management of business groups are closely intertwined with state apparatus. 58 For example. members of the board of directors in Indonesian plantation companies are typically retired senior bureaucrats who act as intermediaries with the state and perform “advisory and brokerage functions” on behalf of the company when needed. 59
Second, there have been allegations of conflicts of interest involving Indonesian stakeholders and Malaysian politicians. 60 It has been asserted that haze pollution results from the activities of Malaysian and Singaporean firms operating in Indonesia, and these firms have close ties to the respective national governments. 61 This alleged conflict of interest may give the impression that there is a compromise in the ability of Singapore and Malaysia to prosecute foreign companies for transboundary haze pollution.
Limitations of the ASEAN Way
Besides the above-mentioned problems, there is an overarching issue regarding the mode of regional engagement in Southeast Asia termed the “ASEAN Way”. The ASEAN Way prioritizes non-confrontational approaches to negotiations, principles of sensitivity and politeness, as well as an emphasis on informal and non-legalistic procedures. 62 While it has been argued that the ASEAN Way is well-suited to respond to environmental challenges, such an argument does not hold water when one assesses how ASEAN member countries have addressed transboundary haze pollution. 63
First, an adherence to the ASEAN Way may explain why ASEAN member countries have delayed in fulfilling their commitments under the Haze Pollution Agreement. Transboundary haze involves sensitive areas of decision-making within ASEAN, where protracted discussions and irreconcilable differences are almost inevitable by nature, risking paralysis instead of action. 64 For instance, Indonesia's delay in ratifying the Haze Pollution Agreement, and the failure to establish the ASEAN Centre despite the Haze Pollution Agreement being in force since 2003.
Second, the ASEAN Way encompasses the principles of sensitivity and politeness, which manifests itself in the way Singapore and Malaysia engaged Indonesia during bouts of transboundary haze pollution, by sending diplomatic notes to Indonesia over forest fires, as opposed to more drastic action such as suing Indonesia in an international court. 65 The ASEAN Way has been juxtaposed against a more adversarial and legalistic style adopted by Western countries in multilateral negotiations. 66
Third, the ASEAN Way emphasizes informal and non-legalistic procedures. This may, in part, explain why the Haze Pollution Agreement lacks strong dispute resolution and enforcement mechanisms. 67
Concluding remarks
Twenty years on from the signing of the Haze Pollution Agreement, parties have yet to fully meet their obligations to monitor transboundary haze pollution and to facilitate joint responses to haze pollution under this agreement. It is imperative that ASEAN member states look beyond their differences and continue working towards a common goal of mitigating transboundary haze pollution. This paper has outlined five key issues with the current agreement and acknowledges the practical difficulties in addressing these challenges.
Whilst a detailed discussion of solutions is beyond the scope of this note, this note has shown that action is needed on several fronts. First, in relation to monitoring and co-operation the establishment of the ASEAN Centre is crucial. Second, one needs to acknowledge the problematic role that bilateral relations may play in facilitating meaningful joint responses between ASEAN members. Third, a review of legislation and enforcement strategies is needed across member states. Fourth, the potential conflicts of interest relating to transboundary haze pollution must be acknowledged and addressed. Fifth, given the limitations of the ASEAN Way, there needs to be a gradual shift in mindset away from the traditional ASEAN Way towards a more legalistic approach. While the Haze Pollution Agreement marks considerable progress, there is some way to go before its obligations are met.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received support from/ no financial support for the research, authorship, and/or publication of this article.