30 October 2013
The 2013 Southeast Asia haze – a shared responsibility?
Last summer, hazardous levels of air pollution affected the health and lives of many people, the economy (e.g. disruptions of air traffic due to reduced visibility, decreased tourism and business activities) and the environment of multiple states. In both Singapore and Malaysia, record breaking levels of atmospheric pollution were measured. Large parts of Indonesia, Singapore and Malaysia were covered in smog, and the smoke haze even spread to Thailand and Brunei.
Although it was at its worst in June 2013, the annual haze reportedly returned at the end of July 2013 (see here, here and here) and it might not be (completely) over for this year since most forest fires are set from August to October.
The haze of 2013 was not an isolated incident since forests and peatlands are regularly set on fire in Indonesia, especially on the island of Sumatra, in order to clear land for palm oil plantations and the pulp and paper industry. This has also resulted in the burning of habitat of endangered species such as orangutans, rhinos, elephants and tigers, which has even gone as far as clearing land of a National Park on Sumatra (see here for the 2013 WWF Report Palming off a National Park – Tracking Illegal Oil Palm Fruit in Riau, Sumatra). The remaining rainforests in Indonesia (on Borneo, Papua and Sumatra) are rapidly disappearing, mainly due to the fact that Indonesia is the world’s leading producer of palm oil, and a major actor in the pulp and paper industry (see here and here).
Despite being formally prohibited by the Indonesian government, the illegal ‘slash-and-burn’ method is widely practiced as an efficient and cheap technique to clear land. These fires often get out of control, resulting in a thick smog that pollutes the air, which regularly spreads to neighbouring countries. The formal prohibition is poorly or not enforced at all, and widespread corruption in Indonesia (see here, here, here and here) enables forest degradation/land clearing which results regularly in transboundary smoke haze.
It has been however suggested that Singaporean and Malaysian corporations on Sumatra also bore ‘some’ responsibility for the haze since most fires on Indonesian territory are reportedly directly or indirectly caused by Malaysian and Singaporean owned companies. Currently, investors from Singapore and Malaysia – by using joint ventures with local corporations – are controlling more than two third of the entire palm oil plantation area of Indonesia. Moreover, some companies allegedly linked to fires are owned by (Malaysian) government-linked companies.
Therefore, this case of transboundary haze pollution is a prime example of a harmful outcome (e.g. the pollution level was harmful to public health) that was caused by several actors. A combination of lack of action on the part of Indonesia (the haze originated from fires on the island of Sumatra), and acts of companies and individuals have all directly or indirectly contributed to the fires, resulting in hazardous smog. This blog post will use a broad definition of responsibility, thereby including obligations to prevent transboundary environmental harm.
Applicable international law
The involvement of Indonesia might potentially trigger its responsibility in view of the applicable rules of international law. Under customary international law, a state must ensure that activities taking place in its territory do not cause transboundary harm. This ‘no harm’ principle is a fundamental principle of international environmental law, first established in the Trail Smelter case, and discussed in the International Court of Justice’s judgment in the Pulp Mills on the River Uruguay (Argentina v. Uruguay) case.
The ‘no harm’ principle is also part of the legal framework of the Association of Southeast Asian Nations (ASEAN). Although Indonesia is not yet a party to the 2002 ASEAN Agreement on Transboundary Haze Pollution (AATHP or agreement), Article 3(1) prohibits also the causing of ‘harm to human health of other States’. It has been argued in The Borneo Post, that the obligation to not cause transboundary harm, and the duty to compensate for the damage caused might not fully apply since they are ‘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.’ The argument that the obligation to not cause transboundary harm might not be fully applicable in the ASEAN context is a weak one, since this is a rule of customary international law, also applicable to ASEAN member states such as Indonesia.
The focus of this agreement is on the parties to cooperate in the development and implementation of measures to prevent, monitor and mitigate transboundary haze pollution. Parties cannot be sanctioned by the ASEAN in case they fail to comply with the provisions of the treaty. It seems that the 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’. The haze is considered to be a ‘common problem’ that should be solved ‘together in the spirit of Asean solidarity’ (see here or here). It can be noted that besides the AATHP, there is a history of environmental cooperation within ASEAN, including several haze related soft law instruments. There is a Sub-Regional Ministerial Steering Committee, composed of ministers from the most affected states (Brunei, Indonesia, Malaysia, Thailand and Singapore), that addresses transboundary haze pollution. Indonesia has furthermore bilateral cooperation agreements with Malaysia and Singapore where the two latter help Indonesia to address transboundary haze issues such as fire prevention and capacity building. Indonesia also participates in the regional ASEAN Peatland Forest Project. Singapore attempted to raise the haze issue at the United Nations General Assembly in 2006, as it saw global implications, and thought international assistance and resources were needed. However, Indonesia intervened and stopped a joint ASEAN/Singaporean statement on the haze topic from being issued. Indonesia indicated that the haze was a domestic problem, and it did not wish any interference with their domestic affairs. According to Indonesia, the regional and bilateral arrangements to address the problem were enough, therefore the issue (remains) to be resolved at the ASEAN level, in the spirit of cooperation.
Whatever its shortcomings, and the fact that Indonesia is not yet a party to the agreement (although it benefits from the treaty financially, through the Haze Fund), it is a positive sign that Indonesia reportedly seeks to ratify the AATHP by early 2014. Tommy Koh and Michael Ewing-Chow (see here or here) rightly observe that pending ratification, Indonesia is under the obligation to abstain from acts that would defeat the purpose of this agreement on transboundary haze pollution it has signed.
The primary responsibility of Indonesia
At the end of June 2013, the President of the Republic of Indonesia eventually apologised to the people of Singapore and Malaysia, saying that ‘Indonesia had no intention to cause this. And we will continue to bear responsibility to overcome what has happened… Whether it is an Indonesian company or foreign company, the law will be applied firmly and fairly.’ President Yudhoyono gave ‘an assurance that action will be taken against errant plantation companies, whether based in Indonesia, Singapore or Malaysia or elsewhere.’ He furthermore stated that ‘We accept it is our responsibility to tackle the problem’ (see here, here) and here), and said ‘The fact is the haze was from Indonesia, so we take responsibility’, hereby accepting that Indonesia has the obligation to (ex ante) prevent activities that take place in its territory from causing transboundary harm and to (ex post facto) investigate incidents and in short, take action against the polluters.
As said by the Singaporean Minister for Foreign Affairs and Law, Kasiviswanathan Shanmugam, the primary responsibility for taking (legal) action against corporations lies with Indonesia. It would seem that Indonesia has on the basis of customary law (the ‘no harm’ principle), as well as its acceptance of responsibility and assurances the following obligations. First, before a haze occurs, the primary obligation to prevent the fires as much as possible (oversight of the government at the local level is in any case required); second, during a haze, the obligation to respond to fires by mitigating and controlling the escalation of fires and the subsequent spreading of smoke haze; and third, after a haze has occurred, Indonesia is responsible for law enforcement through legal action (criminal and or civil law suits) against corporations that are operating on its territory, but also against individual wrongdoers who (directly or indirectly) caused the fires on Sumatra.
It is reported that Indonesian investigators are working on criminal cases against eight corporations (all owned by Malaysian investors) that are suspected of being responsible for the fires causing the haze of June 2013 (see here and here). The latest news is that of these eight corporations, one Malaysian company has been charged with environmental damage, and four other companies are still investigated for alleged involvement in these fires (see here and here). It is furthermore reported that the police of the Riau province is investigating 19 cases which involve 25 individuals (although it is unknown whether they are independent farmers or employees of companies) and a Malaysian palm oil corporation for setting fires in June and July 2013.
The responsibility of Singapore and Malaysia
As an Indonesian official rightly suggested, Singaporean and Malaysian corporations in Sumatra also bore ‘some’ responsibility for the haze. This responsibility could be dealt with by Singapore and Malaysia through the (subsidiary) option of extraterritorial legislation, as suggested in an op-ed in The Straits Times and The Jakarta Post. In the op-ed, Tommy Koh and Michael Ewing-Chow argued that extraterritorial legislation against ‘such acts of pollution’ is an option for states such as Singapore and Malaysia in order to be able to prosecute plantation owners (who they consider to be ‘the main culprits’) for acts that harmed them and their people, but occurred outside their own territory (see here or here).
At present, investors from Singapore and Malaysia – by using joint ventures with local corporations – are controlling more than two third of the entire palm oil plantation area of Indonesia. A complicating factor is that the palm oil sector in Southeast Asia is ‘regionalised’, and ‘plantation companies cannot be easily identified with a specific national home base’. For example, some companies that are under investigation in Indonesia are owned by government-linked companies in Malaysia. Malaysia and Singapore could deal with companies that are owned by investors having their nationality and companies that are incorporated in Malaysia or Singapore. This is important since evidence suggests that big plantation corporations ‘were systematically setting fire to both peatlands and other areas for land clearing’. In addition, the question arises whether it can be argued that since reportedly Malaysian government-linked companies are involved in the fires leading to the haze, Malaysia has stronger obligations concerning this haze situation than for example Singapore.
Regarding Singapore, Minister Shanmugam said that extraterritorial legislation is being considered by the Attorney-General to tackle this recurring problem. He furthermore stated in July 2013 that: ‘As to whether Singapore-linked companies are involved, we have formally sought clarification through a diplomatic note, and have requested that Indonesia provide any evidence of wrong-doing that Indonesia has. We are awaiting Indonesia’s response.’ Furthermore, Singapore requested Indonesia to share land concession maps that might help to make plantation companies accountable for setting the fires that caused the smog haze in Singapore and Malaysia. Singaporean officials are reportedly considering legal action against two corporations.
Concluding remarks – the ASEAN approach to the transboundary haze problem
Although the costs of the haze were high, no legal action (e.g. of Thailand, suing a combination of states involved) on an interstate level is to be expected. Furthermore, Indonesia accepted its responsibility and apologised for the haze, which may qualify as a form of satisfaction under international law for the affected state(s).
In the ASEAN context, the focus is on cooperation between states, which is the ‘ASEAN Way’ of doing things. The transboundary haze pollution is considered to be a ‘shared environmental problem’ of the ASEAN member states. The haze is seen as a ‘common problem’ that should be solved ‘together in the spirit of Asean solidarity’ (see here or here). It remains to be seen whether such cooperation and information sharing will eventually lead to a determination of accountability of all actors who contributed to the haze.
 Two people reportedly died in June 2013 due to the fires in the Riau province, Indonesia, see here. Contributions of natural causes to the haze (e.g. during El Niño years) will not be dealt with here.
 The Pollutant Standards Index (PSI) was some days far above the ‘hazardous’ level in both states. A record for Singapore was reached on 21 June 2013 when the level was 401 locally, and a PSI level of 495 was measured at Port Klang, Malaysia, see here, here, and here.
 Article 1(6) of the 2002 ASEAN Agreement on Transboundary Haze Pollution defines ‘haze pollution’ as follows: ‘smoke resulting from land and/or forest fire which causes deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment’. Article 1(13) defines ‘transboundary haze pollution’ as: ‘haze pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one Member State and which is transported into the area under the jurisdiction of another Member State’.
 For an overview see Koh Kheng-Lian, ‘A Breakthrough in Solving the Indonesian Haze?’, in Sharelle Hart (ed.), Shared Resources: Issues of Governance, IUCN Environmental Law and Policy Paper No. 72 (2008), para. 12.3.1-12.3.2, available here.
 Ibid., para. 12.5.6.
 Helena Varkkey, ‘Patronage politics as a driver of economic regionalisation: The Indonesian oil palm sector and transboundary haze’ 53(3) Asia Pacific Viewpoint (2012), pp. 314-329, at p. 321 and 315, available here.
 Ibid., p. 315.