The influence of international law upon ASEAN approaches in addressing transboundary haze pollution in Southeast Asia.
Finding a solution to transboundary pollution requires international and regional environmental law mechanisms, in addition to domestic legal systems that are more effective. (5) As international law provides frameworks and mechanisms for an appropriate response to transboundary haze, this article addresses two frameworks: customary international law and treaties. (6) The former involves the state responsibility principle, which comprises the duty to prevent transboundary pollution and to compensate accordingly. Implementation of the state responsibility principle is particularly problematic in Southeast Asia, as state sovereignty is strongly embedded in the ASEAN Charter. (7) A further complication is the so-called "ASEAN Way", a term that describes the preference of ASEAN countries for non-interference in each other's domestic affairs, the use of consensus decision-making and cooperative programmes, and national implementation rather than reliance on a strong region-wide agency or bureaucracy. (8)
The second framework for addressing haze pollution is Multilateral Environment Agreements or MEAs, namely treaties on atmosphere and biodiversity. These include the United Nations Framework Convention on Climate Change (UNFCCC), (9) and its Kyoto Protocol, (10) the Convention on Biodiversity (CBD), (11) and the Ramsar Convention. (12) MEAs are international frameworks, which can indirectly support the efforts in combating forest fires at the national level. However, there are constraints on the domestic implementation of MEAs in Southeast Asia, namely, overlapping domestic legal frameworks, lack of financial and human resources, and capacity building.
Based on the two international legal frameworks mentioned above, this article will firstly examine the extent to which international law has influenced ASEAN approaches in addressing transboundary pollution in the region. Secondly, it will assess whether international law has successfully contributed to regional environmental solutions. This article argues that further implementation of international law at the regional level is a necessary step forward.
International Legal Regime Addressing Transboundary Air Pollution
Transboundary air pollution has long been a concern of international law. (13) It has remained high on the environmental agenda in many regions including Europe, North America and Southeast Asia. (14) As transboundary air pollution is now a global threat that is contributing to issues such as ozone depletion and climate change, addressing it requires international cooperation. International law has responded to this threat by developing customary international law and MEAs on atmosphere and biodiversity as respective frameworks for its management. For customary environmental law, the principle of state responsibility for transboundary environmental harm, or the "no harm" principle, is particularly significant. Treaties also play an important role, especially those relating to atmosphere and biodiversity. Although these MEAs do not directly address land and forest fires, they can help to provide a framework for countries to protect their natural resources, prevent the transboundary spread of pollution and avoid international conflict. (15)
Customary International Law: The State Responsibility Principle
The main obligation under international law on transboundary pollution is that a state should not cause harm to other territories. (16) The International Court of Justice (ICJ) regards this principle as customary international law, (17) thus creating binding legal obligations for states which can be held responsible for their breach. (18) As the state responsibility principle has both preventative and deterrence elements, it can ensure that states do not cause environmental damage to other countries and pay compensation for any damage caused. Depending on the legal context, this principle could effectively address the ASEAN transboundary haze pollution problem.
Principles of no harm and state responsibility for environmental harm are derived from the decision of the Trail Smelter Arbitration in 1941. Two states, the United States and Canada, were involved in this case over transboundary fumes which had caused damage to the property of apple growers in Washington State in the United States. In the decision, the Arbitral Tribunal held that
under the principles of international law, as well as of the law of the United States, no state has the right to use of its territory in such a manner as to cause injury by fumes in or to the territory of another or properties or person therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. (19)
Law on transboundary pollution was stimulated by, and has developed, since this seminal decision. Alexander Kiss and Dinah Shelton state that the Trail Smelter case is regarded as "having laid out the foundations of international law at least regarding transfrontier pollution". (20) Others argue that the Trail Smelter Arbitration contains substantive customary law rules regarding transboundary air pollution disputes and has gained importance as a legal precedent for diplomatic solutions to such disputes and possible future international litigation. (21) Finally, Rebecca Bratspies and Russel Miller point out that two core principles of international law were born from this decision: "first, ... States have a duty to prevent transboundary environmental harm, and second they have an obligation to pay compensation for the harm they cause". (22)
Following on from the Trail Smelter Arbitration, the obligation to cause no harm to other territories was enshrined in the Stockholm Declaration 1972 (Principle 21) and the Rio Declaration 1992 (Principle 2). The latter stated this renowned "no harm" principle as follows:
States have, in accordance with the Charter of the United Nations and the principle of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and 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. (23)
According to Sanford Gaines, the term "responsibility" in Principle 21 of the Stockholm Declaration implies the duty to provide reparation or compensation. (24) Yet he argues that, as the term is undefined, the duty to compensate remains a hollow concept. (25) Similarly, the Organisation for Economic Co-operation and Development (OECD) considers the word "responsibility" in Principle 21 of the Stockholm Declaration as not a clearly defined legal concept. (26) However, the OECD points
out that combined political, ethical and legal preoccupations have given two meanings to the principle: first, preventing damage to the environments of other states; and second, the compensation of such damage to prevent it from occurring. (27) Thus, state responsibility and liability are important instruments of redress within the system of environment protection, especially in transboundary pollution. (28)
Yet there is still potential for conflict between the two important principles of "sovereignty" and "responsibility". The Westphalian system enshrines the traditional principle of state sovereignty, but this has evolved over time. Philippe Sands argues that Principles 21 and 2, which reflect the general rule of customary international law, signal that the right of states over their natural resources in the exercise of permanent sovereignty is not unlimited. (29) Furthermore, Allan Rosas goes so far as to suggest that, "Westphalia's heritage, that is the inter-State system of sovereign and equal nation States, should be destroyed to save the world and common heritage of mankind". (30) However, his argument may be exaggerated, as achieving these goals probably relies on balancing state sovereignty and state responsibility. The responsibility principle has also evolved since it first emerged. For example, it generally provides a more balanced approach which requires states to undertake due diligence to prevent significant harm, or to reduce or mitigate it. (31) The duty to make reparation is owed in principle only if a state fails to fulfil its obligation of due diligence. Consequently, the focus is more on pollution prevention and control and the duty to cooperate with the affected state. There has been less emphasis on creating compensation schemes to pay victims of pollution. Likewise, state sovereignty is constantly under challenge from other principles of international law, (32) such as: state responsibility, sustainable development, good neighbourliness, common heritage of mankind, the obligation not to cause environmental harm, and inter- and intragenerational equity. At most, it provides a legal basis for bringing claims under customary law by asserting liability for environmental damage. (33)
The law on "state responsibility and liability" has also developed as a result of the work of the International Law Commission (ILC) on the codification of these principles. (34) According to the ILC, "every internationally wrongful act of a State entails the international responsibility of that State". (35) However, the ILC has focused on private operator liability, rather than the state. This shift towards civil liability for transboundary environmental damage is due to the difficulty in developing the law on state responsibility for environmental harm, and the main standard for due diligence being limited to channelling damage costs to the state from which pollution originates. (36) In fact, in many environmental treaties, state liability has rarely been developed and less frequently applied. Nevertheless, the law on state responsibility has remained fairly static, as states remain reluctant to develop and implement a liability regime at the international level. Many states do not rely on state liability because: the rule of state liability in some treaties is not well developed which causes great uncertainty among parties; the jurisdiction of the formal dispute resolution mechanisms may be inadequate to provide meaningful remedy; these mechanisms can be slow and costly; dispute settlement procedures may be inappropriate for reaching effective and practical solutions to the issue; and the use of state liability mechanisms might have negative effects on the long-term relationship between disputing states in the future. (37)
Conversely, Ben Boer argues that the development of the state responsibility principle has resulted in states becoming increasingly concerned about meeting their international obligations for protecting the local, regional and global environment. (38) States have also been increasingly prepared to litigate their environmental disputes before courts and international tribunals. For example, Nauru claimed against Australia for environmental damage from mining operations. (39) In 2010, Argentina referred a dispute against Uruguay to the ICJ, (40) arising from Uruguay's decision to construct two pulp mills on the River Uruguay. Argentina claimed that Uruguay had violated procedural and substantive obligations under the 1975 Statute of the River Uruguay, particularly in regard to the environmental damage from the construction work. The court rejected these contentions. A majority found that Uruguay had acted with due diligence in carrying out an environmental impact assessment and that Argentina had not provided conclusive evidence that discharges of effluent from the mill had had a deleterious effect on the ecology or quality of water in the river. (41) This case made an important contribution to international law with the Court's recognition of the environmental impact assessment principle, and the duty to cooperate, as customary law. (42)
Some problematic issues arising from the case are the difficulties that judges may experience in assessing complex scientific and technical matters and that the decision may, as Sands and Peel note, cause states "to avoid co-operative obligations in disputes over the environmental impacts of certain projects, in the sense that the consequences of the violation of procedural obligations will be negligible". (43) This case would mean that in order to prevent haze from Indonesia, international law would require an assessment of a project's potential harmful transboundary effects on people, property and the environment of other states. (44) However, even when these procedures are in place, it seems from the ICJ decision that there would be few consequences for a breach. Thus, the state responsibility principle is still weak and difficult for Southeast Asia to apply to transboundary pollution.
ASEAN Approaches to the State Responsibility Principle Addressing Transboundary Haze Pollution
By adhering to the "ASEAN Way" principle, ASEAN addresses regional environmental problems like transboundary haze pollution through prevention and cooperation measures rather than by establishing a liability regime or adopting formal legal instruments to protect the environment. (45) This cooperative approach has resulted in an ASEAN preference for soft law over hard law. (46) Hence, Rodziana Razali asserts that ASEAN's prevention and control of transboundary haze pollution is weak and ineffective due to the absence of a legal framework in its instruments to enforce compliance. (47)
A spirit of prevention and cooperation is also embodied in the Non-Traditional Security approach (NTS) and the Responsibility to Protect (R2P) principle. R2P was unanimously endorsed at the 2005 World Summit. The United Nations High Level Panel on Threat, Challenges, and Change defines the R2P concept in broad terms and includes new security challenges for prevention in the decades ahead, namely economic and social threats including: poverty, infectious diseases, and environmental degradation besides traditional security (e.g. war, genocide, etc.). (48) The NTS approach is embodied in the ASEAN Political-Security Community (APSC) Blueprint, which states that a key purpose of ASEAN is to respond effectively and in a timely manner to all forms of transboundary challenges, like haze pollution. (49) However, this approach is still problematic as haze pollution is an issue of national sensitivity. (50) Therefore, APSC does not specifically mention the issue of transboundary haze pollution under NTS issues. Instead it focuses on enhancing cooperation in addressing matters such as drug and human trafficking, illegal unreported and unregulated fishing and counter terrorism. Under the APSC, the ASEAN Way has been modified to enhance cooperation. Enhanced cooperation on addressing haze pollution was adopted in 2013 when ASEAN leaders agreed to adopt a haze monitoring system which involved sharing satellite data to help locate fires, and determine when fires are occurring on land owned by plantation companies. However, Indonesia and Malaysia have been reluctant to share information on concession maps. (51) In 2013, the Indonesian Environment Minister Balthasar Kambuaya argued that the country's freedom of information law prohibited the public disclosure of such information to neighbouring countries. (52) This would suggest that the modification of the ASEAN Way under the APSC and the call for "enhanced cooperation" does not apply in all cases, at least not in relation to transboundary haze pollution.
ASEAN ought to play a role in preventing and responding to major environmental disasters such as transboundary haze pollution with the principle of R2P. The core focus of R2P is on prevention and capacity building. (53) However, this must be reconciled with established norms, such as the principles of non-interference and consensus decision-making. (54) Therefore, implementing either R2P or NTS principles to address transboundary haze pollution still poses a great challenge to ASEAN.
Using soft law to address transboundary haze pollution takes the form of declarations, resolutions, action plans, guidelines and other policy initiatives. Significant soft laws include: the 1995 ASEAN Cooperation Plan on Transboundary Pollution; the 1997 ASEAN Regional Haze Action Plan; the 2003 ASEAN Zero Burning Policy; and the 2006 ASEAN Peatland Management Strategy. These laws have different focus areas. For example, the ASEAN Cooperation Plan addresses transboundary atmospheric pollution, transboundary ship-borne pollution and transboundary movements of hazardous waste. Meanwhile, the Regional Haze Action Plan emphasizes national prevention, regional monitoring mechanisms and mitigation and strengthened fire-fighting capability. The Zero Burning Policy promotes zero burning techniques for plantation companies and timber concessionaries in the region, while the
ASEAN Peatland Management Strategy guides the management of peatland.
Hard law has a role in the ASEAN regional legal framework, with the 2002 ASEAN Agreement on Transboundary Haze Pollution (AATHP) being the most significant haze pollution law. The UNEP Executive Director Klaus Toepfer stated that, "with the Agreement, the region has a legal framework, as well as a comprehensive system of prevention and response against land and forest fires". (55) Although the AATHP entered into force in 2003, Indonesia only ratified it in 2014. Reasons for this delay included the perception that the Agreement encroached on its sovereignty, and the lack of readiness and coordination of Indonesian government institutions in implementing the Agreement. For Indonesia, the cost of ratification and implementation outweighed the benefits gained, such as access to the ASEAN haze fund and other technical assistance. (56) Ratification of the AATHP by Indonesia was a result of continuing pressure from Singapore and Malaysia for Indonesia to show the seriousness of its commitment in controlling land/forest fires. Hence, ratification of the AATHP evidenced Indonesia's good faith and intention to cooperate with its fellow ASEAN members.
ASEAN has adopted a no harm principle or state responsibility principle in the legal framework, particularly in Article 3(1) of the AATHP. The formulation of this principle is similar to Principles 21 and 2 of the Stockholm and Rio Declarations, but with the addition of the words, "harm to human health of other States". It states as follows:
The Parties have, in accordance the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental 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. (57)
The adoption of the no harm principle by ASEAN implies an acceptance that its sovereignty over the development of natural resources is limited by the principles governing transboundary pollution. This change in discourse suggests that some progress may have been made on modifying the ASEAN Way to encourage greater compliance with the evolving principles of international environmental law.
Although the AATHP is intended to provide rules of good conduct in preventing and controlling haze pollution, it does not directly forbid certain conduct. Instead it merely encourages the parties to promote zero burning policies and does not contain any rule on state liability as to damage. It neither develops a civil or state liability regime for compensating the victims of transboundary haze pollution, (58) nor provides for the principle of access to justice. (59) This principle requires:
Polluters causing transfrontier pollution should be subject to legal or statutory provisions no less severe than those which would apply for any equivalent pollution occurring within their country, under comparable conditions and in comparable zones, taking into account, when appropriate, the special nature and environmental needs of the zone affected. (60)
There are a number of issues that need to be resolved with the AATHP to ensure effective environmental protection. Arguably, ASEAN needs to develop a liability scheme and redress to compensate the victims of transboundary pollution to ensure compliance, (61) as this is in accordance with the "polluter pays" principle. At the very least, the AATHP should establish a clear duty to cooperate with neighbours in sharing information. Furthermore, there is a deficiency in the Agreement itself, particularly with regards to dispute resolution mechanisms. Article 27 of the AATHP states that any dispute between Parties as to the interpretation, application of, or compliance with this Agreement or any protocol thereto, shall be settled amicably by consultation or negotiation. (62) There is no provision for disputes to be referred to the ICJ. This is a critical omission as state responsibility and liability are important instruments of redress within the system of environment protection, especially in transboundary pollution. (63)
MEAs in Atmosphere and Biodiversity: UNFCCC, CBD and the Ramsar Convention
Customary international law provides an important framework for negotiating solutions to global and regional atmospheric pollution, but international environmental law also relies on MEAs. International environmental law has been developed by the incorporation of the principles set out in the Rio Declaration and customary international law into MEAs. There are no specific treaties or conventions addressing forest fires and haze pollution other than the current international MEAs, which focus on broader issues such as biodiversity, wetlands and climate change. Nevertheless, there are several conventions aimed at protecting the atmosphere and biodiversity, including forests, which help international instruments to combat forest fires directly or indirectly. These include: the United Nations Convention on Biological Diversity (CBD), the Ramsar Convention, and the United Nations Framework Convention on Climate Change (UNFCCC) (64) and its Kyoto Protocol. (65)
The UNFCCC acknowledges the importance of forests in stabilizing greenhouse gas concentration in the atmosphere and maintaining life-sustaining systems of the biosphere. Forests produce greenhouse gas emissions with the burning of biomass including natural fires, man-made fires and fires caused by land use changes. Forest fires are a drawback and need to be eliminated in order to achieve the goal of this Convention.
Meanwhile, the CBD provides a framework at the national level to conserve biodiversity, particularly forests. (66) It indirectly combats land and forest fires by taking measures for the prevention of damage to biodiversity and liability and redress in the national legislature. (67) In fact, forest fires are considered to be a significant threat to the conservation of biodiversity as they cause the death of flora and fauna and the indirect loss of habitats and food for wildlife. (68)
The Ramsar Convention provides a framework for national action and international cooperation for the conservation and management of wetlands and their resources. (69) By burning peatlands or wetlands, this frustrates the goal of the Convention. As the effectiveness of MEAs depends on implementation and compliance, ASEAN's commitment to these MEAs is discussed below.
ASEAN Approaches to MEAs on Atmosphere and Biodiversity
The UNFCCC and ASEAN Approach (70)
At a regional level, the ASEAN Working Group on Multilateral Environmental Agreements (AWGMEA) was established in 2009 to promote cooperation among member countries on global environmental issues, especially on atmospheric and chemical related conventions such as the UNFCCC and Montreal Protocol. The AWGMEA meets at least once per year or when the need arises, and consists of two technical clusters called the Atmosphere Technical Cluster and Chemicals Technical Cluster respectively. These clusters focus on national priority areas with technical assistance from relevant ministries and agencies. It also identifies and addresses any constraints of member countries in implementing these MEAs, most of which ASEAN identified as the financial and human resources of member countries. (71) In this regard, ASEAN has a crucial role in giving assistance to overcome those national constraints and thereby helping member states to comply effectively with international obligations.
The CBD and ASEAN Approach (72)
In keeping with the CBD, ASEAN has enacted the 1985 Agreement on the Conservation of Nature and Natural Resources that aims for regional conservation and management of living resources and deals with issues of biological diversity. It takes a holistic approach in regulating the conservation of nature and natural resources, encompassing the use of environmental planning measures, land use planning, protected areas, impact assessment, international cooperation and shared resources, and examining transfrontier environmental effects. ASEAN also established a Working Group on Nature Conservation in 2006 whose terms of reference include incorporation of the CBD and the 2003 World Heritage Convention into the ASEAN Declaration of Heritage Parks. The Working Group aims to increase regional cooperation, take concrete measures and develop a common ASEAN policy to address problems around conservation and sustainable use of biology.
This Agreement is regarded as "progressive" and even "remarkable" by some scholars. (73) Contracting parties are guided towards the goal of sustainable development, within the framework of national laws. These parties adopt measures to preserve genetic biodiversity by maintaining essential ecological processes and life support systems, and to ensure that natural resources harvested under their jurisdiction are used sustainably. (74) Additionally, this Agreement addresses forest fires, with specific provisions that encourage the Parties to control clearance of vegetation and thereby prevent bush and forest fires in Article 6(2)(a). Overall, the Agreement is promising for conservation of biodiversity in the region. However, as Boer et al. argue, the real challenge is translating the Agreement into actual national implementation measures. (75) The Agreement formally entered into force on 16 November 1997. (76) Only Cambodia, Indonesia, Myanmar, Philippines, Thailand and Vietnam are parties to the Agreement.
The Ramsar and ASEAN Approach (77)
At a regional level, wetlands are covered by the 1985 Agreement on Conservation of Nature and Natural Resources. This Agreement does not explicitly mention the conservation of wetlands. However, certain provisions encourage the Parties to conserve natural, terrestrial, freshwater and coastal or marine habitats, which can include wetlands. According to the Ramsar Convention, a wetland is defined as "areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including marine water the depth of which at low tide does not exceed six meters". (78) In addition, ASEAN has established soft law initiatives such as the ASEAN Peatland Management Strategy (APMS) and ASEAN Peatland Management Initiative (APMI). APMS aims to provide a framework for sustainable management of peatland in ASEAN member states. APMI aims to provide a mechanism for collective cooperation between ASEAN members on the issue of peatland management, and to reduce its transboundary haze pollution and climate change impact. (79)
Indonesian Approaches to Transboundary Haze Pollution
The primary international obligation of Indonesia is to prevent and minimize transboundary haze pollution, under the no harm principle. Thus, a state must practise due diligence. Due diligence is a concept developed in international case law at the end of the nineteenth century that concerns expectations of a "good government". (80) It requires the introduction of legislative and administrative controls for public and private conduct that are capable of effectively protecting other states and the global environment. (81)
Indonesia has taken a reactive rather than proactive approach to the transboundary haze environmental problem. This means that the government has only taken action to mitigate and minimize land/forest fires and its adverse impact when the fires occur. With an emphasis on fire-fighting as the main solution and a preference for short-term over long-term solutions, there is no significant effort to prevent the recurrence and root causes of land and forest fires. These are important issues to which the Indonesian government pays little attention.
Indonesian law and regulations have adopted a zero burning policy in responding to land and forest fires, in keeping with the AATHP. Since Indonesia has ratified the AATHP and the ASEAN Community will be established on 31 December 2015, there are strong grounds for believing that Indonesia will increase its efforts to deal with haze. In addition, forest fire reduction effort has been incorporated in the REDD+ initiative in Indonesia from the broader context of the Convention on Biological Diversity. REDD+ is a climate change mitigation strategy that places a price on carbon sequestered in forests to incentivize developing countries to reduce emissions from deforestation and forest degradation, as well as to adopt sustainable forest management practices. However, the use of fire for agriculture is a long established practice in Indonesia. (82) As fire is considered a cheap and effective community wetland management tool, this arguably became a leading cause for fires in much of the wetlands of Sumatra and East Kalimantan. (83) Poverty is blamed as the underlying cause for why local people use fires, (84) yet large companies also use fires to clear land for plantations. The zero burning policy has not been implemented due to a lack of law enforcement, so the solution to deal with land/forest fires is to change attitudes at the local level. However, this is not easy. The government regulation has mandated the governor/mayor/regent to assist in promoting community values, institutions of customary adat or systems of traditional laws, and traditional customary practices of the community, which support the control of land/forest fires. (85) In fact, strengthening community-based fire management, and enhancing adat institutions are essential to improve protection of the environment.
Based on international customary law and treaty obligations, Indonesia could potentially be held liable for breach of an international obligation not to cause environmental harm to other countries. However, there are limits and shortcomings to the enforcement of state responsibility, particularly in Southeast Asia. This is because the ASEAN Way is based on the Westphalian principles of state sovereignty and non-intervention, which are now embedded in the ASEAN Charter. (86) Although principles of a prevention and cooperation regime remain the preferred approaches of ASEAN state practice in addressing transboundary pollution, as clearly reflected in the ASEAN legal framework, particularly in the AATHP, they are seldom implemented in practice. (87) Hence, none of the states affected by haze pollution have ever sued Indonesia. These rules pose obstacles to resolving the Indonesian haze problem. Yet even if it is argued that it is unrealistic to expect Indonesia to compensate victims of pollution in other ASEAN states, Indonesia should nevertheless accept the duty to exercise due diligence to prevent and reduce transboundary pollution and to cooperate with its neighbours in sharing information.
If neighbouring countries do raise the issue of haze pollution at an international level, Indonesia strongly disapproves of it. For example, when Singapore Prime Minister Lee Hsien Loong raised the issue at the United Nations General Assembly in October 2006 in order to seek assistance for resources and enforcement, Indonesia accused Singapore of not upholding the spirit of cooperation among ASEAN member states. (88) As a result, Singapore resorted to national Indonesian mechanisms to take legal action against some of the corporations involved in causing the fires. This proved unsuccessful because the Indonesian government failed to enforce the law. Due to this response and the severity of haze pollution in 2013, Singapore subsequently enacted the 2014 Transboundary Haze Pollution Act, which came into operation on 25 September 2014 and allows its government to take action against entities (corporations) outside Singapore that cause or contribute to any domestic haze pollution. (89) These measures to resolve transboundary pollution disputes show that ASEAN states are willing to rely on national mechanisms and extra-territorial legislation to hold private entities liable, but that the ASEAN Way principle remains a barrier to action against the state.
The Influence of International Law on the ASEAN Legal Regime to Address Haze Pollution: A Way Forward
International environmental law, in the form of both customary law and treaties, noticeably influences ASEAN's legal regime concerning the environment. This is demonstrated by the adoption of the principle of sustainable development contained in the Stockholm Declaration and Rio Declaration into ASEAN soft law instruments, with most resolutions and declarations now endorsing this principle. Furthermore, ASEAN has already adopted several international environmental principles in the AATHP. These include: the obligation not to cause environmental harm, (90) the precautionary principle, (91) the principle of good neighbourliness, the duty to cooperate, (92) the principle of sustainable development, (93) the principle of public participation, (94) the principle of prevention (95) and the principle of notification and information. (96) Yet the principle of equal right of access to justice and a liability scheme are noticeably absent in this Agreement.
It seems unlikely that ASEAN will establish a liability regime in its legal framework to protect the environment and address regional transboundary haze pollution, as this is not likely to be a politically viable option. (97) Then ASEAN Secretary-General Rodolfo Severino stated in (1999) that the member countries cannot sue polluting members which are responsible for transboundary pollution because of the group's principle of non-intervention. (98)
Severino asserted that:
Legal enforcement by ASEAN member countries against Indonesia for the haze is not in the books right now. ASEAN is one forum to discuss the issue but it does not have a precedent for such legal action. (99)
If ASEAN is to focus more on people and community, rather than the ASEAN Charter elite, it is essential for ASEAN to consider adopting the principle of access to justice and non-discrimination in its regional legal framework.
The 1985 Agreement on Conservation of Nature and Natural Resources also refers to and adopts the principles of international law--particularly the no harm principle, duty to assess environment impact (EIA), the duty to notify and consult, and access to information. Article 20(1) of the Agreement states the no harm principle as follows:
the contracting Parties have in accordance with generally accepted principles of international law the responsibility of ensuring that activities under their jurisdiction or control do not cause damage to the environment or natural resources under the jurisdiction of other contracting parties or areas beyond the limit of national jurisdiction. (100)
The EIA principle is contained in the Rio Declaration and 1991 Espoo Convention (Convention on Environmental Impact Assessment in a Transboundary Context Project) (101) and has been declared as customary international law by international courts. The duty to assess EIA, notify and consult, and provide access to information is stated in Article 20(3) as follows:
a To make environmental impact assessment before engaging in any activity that may create a risk of significantly affecting the environment or the natural resources of another Contracting party or the environment or natural resources beyond national jurisdiction;
b To notify in advance the other Contracting Party or Contracting Parties concerned of plans to initiate, or make change in, activities which can reasonably be expected to have significant effects beyond the limits of national jurisdiction; c To enter into consultation concerning the above mentioned plans upon request of the Contracting Party or Contracting Parties in question;
d To inform the Contracting Party or Contracting Parties in question of emergency situations or sudden grave natural events which may have repercussion beyond national jurisdiction. (102)
It is debatable as to the extent to which the influence of international environmental law upon the regional legal framework is contributing to a resolution of pressing regional environmental problems such as transboundary haze pollution. Simon Tay argues that international law principles have so far been of no assistance in finding workable solutions to the forest fires in Southeast Asia. (103) However, Nicholas Robinson argues that if the public international law of state responsibility and the obligation of cooperation cannot provide an effective working legal framework, environmental law still provides an answer by being integrated into domestic, regional and global frameworks. (104) This integrative role makes environmental law the most useful system for resolving the challenge of preventing forest fires. (105) Furthermore, environmental law builds systems and relationships across sectors of government, territories of different jurisdictions and levels of authority from local government to the UN. (106)
Conversely, Boer et al. suggest that the implementation of international conventions or treaties in Southeast Asia has little implication for wide-ranging reforms in ASEAN (107) due to the institutional norms of the ASEAN Way, such as non-intervention. Yet there are some pressures from the international community on ASEAN to modify the non-intervention principle. (108) Under APSC, the ASEAN Way is modified to allow for "enhanced cooperation" which is a matter of branding. In some cases like haze pollution, states are reluctant to follow this example because of concerns that it will allow other states to interfere in their domestic affairs. Tay argues that at the regional level, ASEAN may have to reconsider the ASEAN Way if it is to deal effectively with situations of transboundary harm. (109) It probably needs to adjust state sovereignty and nonintervention in light of Principle 7 of the Rio Declaration on states' cooperation. As discussed above, the principle of state sovereignty, including the permanent sovereignty over natural resources, is not absolute--it is constantly challenged in international law. (110) Stephen McCaffrey considers that the absolute territorial sovereignty approach, as supported by Harmon, (111) is undesirable and has long been rejected. (112)
Therefore, to deal with the problem of transboundary haze pollution, ASEAN needs to balance the principle of non-intervention with greater flexibility in its application, namely a more proactive and modern approach to environmental issues. According to Ellen Basse, modern environmental law is based on the concept of sustainability, which includes the concept of liability. (113) As Tay argues, sustainable development is the goal that needs to be achieved in Southeast Asia. (114) Thus, environmental law and policy should respond to the forest fires not simply with fire-fighting, but through sustainable development. (115) Sustainable development in the forestry sector can contribute to the protection of the natural environment and assist in preventing fires.
ASEAN has adopted a prevention and cooperation regime in addressing the haze pollution problem but has not developed a liability regime. Whilst this approach has potential to reduce haze pollution, there are lingering concerns about its effectiveness. The principles of prevention and cooperation have already been codified by the International Law Commission (ILC) in draft articles on prevention of transboundary harm from hazardous activities. (116) Article 3 of this draft mentions the prevention principle, by declaring that the state of origin shall take appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof. Article 4 states the cooperation principle: "States concerned shall cooperate in good faith and, as necessary, seek the assistance of one or more competent international organizations in preventing significant transboundary harm or at any event minimizing the risk thereof." (117) ASEAN shares these prevention and cooperation principles, instead of the liability scheme.
Criticism of the prevention and cooperation approach stems from the failure of ASEAN to prevent and deal with regional haze pollution, especially with regard to state responsibility. Tay argues that regional organizations should play a greater role in making and enforcing environmental laws and policies that are best suited to particular circumstances. (118) Roda Mushkat also argues that in the absence of an enforceable rule-based system, the cohesive implementation of numerous declarations, agreements and integration initiatives within ASEAN remain elusive. (119) Yet the countries in the region do not rely on the law of state responsibility, as these rules and principles of international environmental law have not been fully explored. (120) Despite claims that international law has influenced environmental governance in Southeast Asia, the prevention and cooperation approach in relation to transboundary haze pollution is not enforced, and a liability regime has not been adopted. While the draft principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities calls for the development of specific international regimes on compensation and remedies, little has been done by ASEAN to respond to this development of international law. ASEAN's preferred liability regime is implemented at the national level.
The principles of the UNFCCC, CBD and Ramsar Convention have already been adopted in the ASEAN legal framework, along with some of the principles from the Climate Change Convention and Convention on Biodiversity. For example, Article 3(2) of the AATHP makes reference to the principle of common but differentiated responsibility, as "the Parties shall, in spirit of solidarity and partnership and in accordance with their respective needs, capabilities and situations strengthen cooperation and coordination to prevent haze pollution". (121) Article 3(1) also makes reference to the principle adopted in the Convention on Biodiversity, as
States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to environment of other States or of areas beyond the limits of national jurisdiction. (122)
Thus, some progress has been made in modifying the ASEAN Way principle, at least in relation to the traditional view of state sovereignty over natural resources.
The principles of the CBD and the Ramsar Convention are already incorporated in the ASEAN Agreement on Conservation of Nature and Natural Resources. Koh states that this Agreement has a similar approach to the MEAs on biodiversity, by calling for conservation strategies and wise management in order to achieve sustainability. (123) She further argues that the Agreement plays a complimentary role to global as well as national biodiversity related instruments. Furthermore, the Agreement provides framework cooperation in ASEAN to deal with biodiversity conservation, as well as containing a provision for combating land/or forest fires. Article 6(2) states that the Contracting Parties shall control clearance of vegetation and endeavour to prevent bush and forest fires. However, these treaties have had a limited impact to date on solving regional problems on haze pollution due to the weak implementation at national levels.
To solve the haze pollution problem, a way forward is needed. With the emphasis of the ASEAN states on increased cooperation and integration in Southeast Asia, it is necessary to strengthen the existing regional legal framework by fully applying the principles of international law and improving prevention and cooperation. In the implementation of R2P, Indonesia must exercise due diligence to prevent and reduce transboundary pollution. Furthermore, ASEAN states could help the Indonesian government to strengthen capacity at provincial, municipal and village levels to manage land and forest fires.
International environmental law has influenced the ASEAN approach to address its regional haze pollution problem. This is shown by the adoption of several international principles and customary international law in the ASEAN legal framework, as well as their emphasis on prevention and cooperation in addressing haze pollution. Yet ASEAN still retains its own values and the ASEAN Way, with a preference for state sovereignty or non-intervention in domestic affairs of member countries as its approach to solving conflict or regional problems. While ASEAN has already adopted the principle of state responsibility for transboundary environmental harm in its legal framework, the liability regime required for its implementation is yet to be developed.
International law provides a framework through customary international law and treaties for addressing transboundary haze pollution. Customary international law is reflected in the state responsibility principle or no harm principle, which is embodied in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration. This principle implies the duty to prevent transboundary environmental damage to other countries and the duty to compensate such damage as a deterrent. Treaties in biodiversity and atmosphere namely the UNFCCC, CBD and Ramsar Convention provide a national framework to combat and mitigate climate change, conserve biodiversity and wetlands through, inter alia, preventing and reducing land and forest fires. Nevertheless, the success of these treaties is dependent on implementation at the national level. ASEAN has assisted at the national level to overcome constraints to the implementation of such conventions, especially with regard to strategy and planning, institutional and legal frameworks, financing, capacity building, information management, communications, networking and stakeholder participation.
Arguably, the ideal solution would be to design ASEAN efforts to deal with land and forest fires in accordance with international environmental principles and to disregard the ASEAN Way. (124) This would not be legally possible as the principles of the ASEAN Way are part of the ASEAN Charter. Nevertheless, it is clear that there have been some modifications to the ASEAN Way so that it is more compatible with the evolving principles of international environmental law, namely the acceptance that a state's sovereignty is limited by the principles governing transboundary pollution. This process should be extended to transboundary haze pollution. Improving cooperation is one of the options, particularly by increasing capacity building of local people. The best solution to deal with land/forest fires is to change attitudes at the local level, particularly among the companies and local communities who adopt burning practices. Strengthening community based fire management and activating and revitalizing adat institutions are the keys to addressing haze pollution and improving protection of the environment.
(1) Simon C. Tay, "Fires and Haze in Southeast Asia", in Cross-Sectoral Partnerships Enhancing Human Security, edited by Pamela J. Noda (Tokyo: Japan Center for International Exchange, 2002), p. 53.
(2) Mark E Harrison, Susan E Page and Suwido H. Limin, "The Global Impact of Indonesian Forest Fires", Biologist 56, no. 3 (2009): 159.
(3) National Development Planning Agency of the Bureau of Marine, Aerospace, Environment, Science and Technology, Causes, Extent, Impact and Costs of 1997/98 Fires and Drought: Final Report, annex 1 and 2, "Planning for Fire Prevention and Drought Management Project" (Jakarta: Asian Development Bank TA 2999-INO, 1998), p. xiii.
(4) Blueprint for The ASEAN Socio-Cultural Community (2009-2015), available at <http://www.asean.org/archive/5187-10.pdf>.
(5) Noah D. Hall, "Transboundary Pollution: Harmonizing International Law and Domestic Law", University of Michigan Journal of Law Reform 40, no. 4 (2007):681.
(6) The main sources of international law can be found in treaties and international customary law. Under the Statute of the International Court of Justice, Article 38, in deciding the dispute the Court should take into account international conventions, international custom, general principles of international law and the teachings of highly qualified publicists.
(7) Koh Kheng-Lian, "ASEAN Environmental Protection in Natural Resources and Sustainable Development: Convergence versus Divergence?", Macquarie Journal of International and Comparative Environmental Law 4 (2007): 46.
(8) Koh Kheng-Lian and Nicholas A. Robinson, "Strengthening Sustainable Development in Regional Inter-Governmental Governance: Lessons from the 'ASEAN WAY'", Singapore Journal of International & Comparative Law 6 (2002):642.
(9) United Nations Framework Convention on Climate Change, signed on 9 May 1992 (entered into force on 28 June 2002).
(10) Kyoto Protocol to The United Nations Framework Convention on Climate Change, adopted in Kyoto, Japan, 11 December 1997 (entered into force on 16 February 2005).
(11) Convention on Biological Diversity, opened for signature on 5 June 1992 (entered into force on 29 December 1993).
(12) Convention on Wetlands of International Importance especially as Waterfowl Habitat, opened for signature on 2 February 1971, UNTS 14583 (entered into force on 21 December 1975).
(13) The first and most famous legal case of transboundary air pollution is the Trail Smelter Arbitration (1941), Arbitral Trib., 3 U.N. Rep. Int'l Arb. Awards 1905 (1941).
(14) "First transboundary air pollution agreement in 20 years", UNEP News Release, 8 September 1999, available at <http://www.grida.no/news/press/1995.aspx>.
(15) Jack Jacobs, "A New Look at Environmental Impact Assessments: Using Customary Law to Prevent Domestic and Transboundary Environmental Damage", in China International Environmental Liability Legal Remedies for Transboundary Pollution, edited by Michael Faure and Song Ying (Cheltenham, UK: Edward Elgar Publishing Limited, 2009), p. 231.
(16) David Hunter, James Salzman and Durwood Zaelke, International Environmental Law and Policy, 2nd ed. (St. Paul, Minnesota: Foundation Press, 2002), p. 419.
(17) Ibid., p. 502.
(18) Ibid., p. 291.
(19) "Trail Smelter Arbitration Decision", American Journal of International Law 35 (1941): 716.
(20) Alexander Kiss and Dinah Shelton, International Environmental Law (Leiden, Germany: Martinus Nijhoff, 1991), p. 185.
(21) Hunter et al., International Environmental Law and Policy, op. cit., p. 504.
(22) See Rebecca M. Bratspies and Russel A. Miller, eds., Transboundary Harm in International Law Lessons from the Trail Smelter Arbitration (Cambridge, UK: Cambridge University Press, 2006), p. 3.
(23) The United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, UN Doc Sales No. E. 73.11.A, 3 to 14 June 1992 (emphasis added).
(24) Sanford E. Gaines, "International Principles for Transnational Environmental Liability: Can Developments in Municipal Law Help Break the Impasse?", Harvard International Law Journal 30, no. 2 (1989): 311.
(26) OECD, Legal Aspects of Transfrontier Pollution (Paris, France: OECD, 1977), p. 381.
(28) Karl Zemanek, "State Responsibility and Liability", in Environmental Protection and International Law, edited by Winfriend Lang, Hanspeter Neuhold and Karl Zemanek (London, UK: Graham & Trotman/Martinus Nijhoff, 1991), p. 197.
(29) Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, 3rd ed. (Cambridge, UK: Cambridge University Press, 2012), p. 200.
(30) Allan Rossa, "Issues of State Liability for Transboundary Environmental Damage", Nordic Journal of International Law 29, no. 60 (1991): 43.
(31) Noah D. Hall, "Transboundary Pollution: Harmonizing International Law and Domestic Law", University of Michigan Journal of Law Reform 40, no. 4 (2007): 686.
(32) Hunter et al., International Environmental Law and Policy, op. cit., p. 381.
(34) Three drafts have been adopted by the ILC on this issue: draft articles on Responsibility of States for Internationally Wrongful Acts adopted in 2001, draft articles on Prevention of Transboundary Harm from Hazardous Activities 2001, and the draft principles on Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities 2006.
(35) Responsibility of States for Internationally Wrongful Acts, 56/83, fifty-third session, UN Doc A/56/49(Vol. I)/Corr.4. Article 1.
(36) Jutta Brunee, "Of Sense and Sensibility: Reflections on International Liability Regimes as Tools for Environment Protection", The International and Comparative Law Quarterly 53, no. 2 (2004): 354.
(37) Hunter et al., International Environmental Law and Policy, op. cit., p. 488.
(38) Ben Boer, Ross Ramsay and Donald Rothwell, International Environmental Law in the Asia and Pacific (London, UK: Kluwer Law International, 1998), pp. 1-2.
(39) Case concerning certain Phosphate Lands in Nauru (Nauru v Australia), International Court of Justice Judgment on Preliminary Objections (1993) 32 ILM, 530.
(42) Argentina v Uruguay (International Court of Justice), (Judgment)  ICJ Rep 14, 104 para 204.
(43) Sands and Peel, Principles of International Environmental Law, op. cit., p. 333.
(44) Argentina v Uruguay (International Court of Justice), (Judgment)  ICJ Rep 14, 104 para 203.
(45) Koh and Robinson, "Strengthening Sustainable Development in Regional Inter-Governmental Governance: Lessons from the 'ASEAN WAY'", op. cit., p. 645.
(46) Koh Kheng-Lian states that the ASEAN Way is generally typified by soft laws rather than hard laws. See Koh Kheng-Lian, "Asian Environmental Protection in Natural Resources and Sustainable Development: Convergence Versus Divergence?", Macquarie Journal of International and Comparative Environmental Law 4, no. 1 (2007): 43.
(47) Rodziana Mohamed Razali, "The Shortcomings of the ASEAN's Legal Mechanism to Address Tranboundary Haze Pollution and Proposals for Improvement", Chinese Society of International Law (2011): 1.
(48) United Nations, A More Secure World: Our Shared Responsibility, A Report of the High-level Panel on Threats, Challenges and Change (New York: United Nations, 2004), p. 2, available at <http://www.un.org/en/peacebuilding/pdf/historical/hlp_more_secure_world.pdf>.
(49) ASEAN Political Security Community Blue Print, available at <http://www.asean. org/archive/5187-18.pdf>.
(50) Rizal Sukma, ASEAN and Non-Traditional Security (Jakarta: Centre for Strategic and International Studies, 2010), available at <www.waseda-giari.jp/sysimg/imgs/20101203_2 c_sukuma_paper.pdf>.
(51) Alan Khee Jin Tan, "The 'Haze' Crisis in Southeast Asia: Assessing Singapore's Transboundary Haze Pollution Act 2014", NUS Law Working Paper 2015/002 (February 2015), p. 4.
(52) "Activists Demand Environment Minister's Transparency on the Concession Map", Jakarta Post, 28 July 2013, available at <http://www.thejakartapost. com/news/2013/07/28/activists-demand-environment-minister-s-transparency-concession-map.html>.
(53) Catherine Drummond, "Non-interference and the Responsibility to Protect: Canvassing the Relationship between Sovereignty and Humanity in Southeast Asia", Dialogue e-Journal 7, no. 2 (2009): 4, available at <http://www.polsis. uq.edu.au/dialogue/articledrummond2.pdf>.
(54) Alex J. Bellamy and Mark Beeson, "The Responsibility to Protect in Southeast Asia: Can ASEAN Reconcile Humanitarianism and Sovereignty", Asian Security 6, no. 3 (2011): 275.
(55) David Seth Jones, "ASEAN Initiatives to Combat Haze Pollution: An Assessment of Regional Cooperation in Public Policy-making", Asian Journal of Political Science 12, no. 2 (2008): 67.
(56) Paruedee Nguitragool, Environment Cooperation in Southeast Asia ASEAN's Regime for Transboundary Haze Pollution (Abingdon, Oxon.: Routledge, 2011), p. 84.
(57) ASEAN Agreement on Transboundary Haze Pollution (signed and entered into force on 10 June 2002 and 25 November 2003 respectively).
(58) It is similar to the 1979 Convention on Long Range Transboundary Air Pollution as it does not contain rules on state liability as to damage. This is due probably to the nature of long range transboundary air pollution, in that it is generally not possible to distinguish the contribution of individual emission sources or groups of sources.
(59) See for example, The United Nations Economic Commission for Europe's Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (The Aarhus Convention, 25 June 1998), available at <http://www.unece.org/fileadmin/DAM/env/pp/ documents/cep43e.pdf>.
(60) OECD, Legal Aspects of Transfrontier Pollution, op. cit., p. 61.
(61) Introduction to Convention on Biological Diversity (New York: CBD Secretariat, 2015), available at <http://www.cbd.mt/liability/introduction.shtml>.
(62) ASEAN Agreement on Transboundary Haze Pollution (signed and entered into force on 10 June 2002 and 25 November 2003 respectively).
(63) Zemanek, "State Responsibility and Liability", op. cit., p. 187.
(64) United Nations Framework Convention on Climate Change, op. cit.
(65) Kyoto Protocol, op. cit.
(66) The Convention on Biological Diversity (CBD), signed on 5 June 1992 (entered into force on 29 December 1993).
(67) Ministry of Environment, Indonesia Third National Report to The Convention on Biological Diversity (Jakarta: Ministry of Environment, 2005).
(68) Ministry of Environment, Fourth National Report to The Convention on Biological Diversity (Jakarta: Ministry of Environment, 2009).
(69) Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, Iran, 2 February 1971.
(70) Indonesia ratified the UNFCCC on 23 August 1994, Singapore on 29 May 1997, Malaysia on 13 July 1994, The Philippines on 2 August 1994, Laos on 4 January 1995, Vietnam on 16 November 1994, Thailand on 28 December 1994, Cambodia on 18 December 1995, Brunei on 7 August 2007 and Myanmar on 25 November 1994.
(71) ASEAN Cooperation on Environment, Global Environment Issue (Jakarta: ASEAN, 2015), available at <http://envirornnent.asean.org/global-environmental-issues/>.
(72) Indonesia ratified the CBD on 18 February 1994, Malaysia on 24 June 1994, Laos on 20 September 1996, The Philippines on 10 August 1993, Singapore on 21 December 1995, Thailand on 31 October 2003, Brunei on 28 March 2008, Myanmar on 25 November 1994 and Cambodia on 9 February 1995.
(73) Koh Keng Lian, "ASEAN Agreement on the Conservation of Nature and Natural Resources, 1985: A Study in Environmental Governance", in Governance Stream of the Vth World Parks Congress, edited by Diane Pansky (Ottawa, Canada: Parks Canada and IUCN/WCPA, 2005).
(74) Agreement on the Conservation of Nature and Natural Resources, signed on 9 July 1985 (entered into force on 16 November 1997) ['ACNRR').
(75) Boer, Ramsay and Rothwell, International Environmental Law in the Asia and Pacific, op. cit., p. 307.
(77) Indonesia ratified the Ramsar Convention on 8 April 1992, Malaysia on 10 November 1994, Myanmar on 17 November 2004, Laos on 28 May 2010, Vietnam on 20 September 1988, The Philippines on 8 July 1994 and Thailand on 13 May 1988.
(78) Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 1971, Article 1.
(79) Global Environment Center, The Peatland Program, 2015, available at <http:// www.gecnet.info/index.cfm?&menuid=90>.
(80) Pierre Dupuy, "International Liability of States for Damage Caused by Transfrontier Pollution", in Legal Aspects of Transfrontier Pollution (Paris: OECD, 1977), pp. 345-68, 369.
(81) Patricia W. Birnie and Alan Boyle, International Law & The Environment, 2nd ed. (Oxford: Oxford University Press, 2002), p. 112.
(82) Ivan P. Anderson and M. Roderick Bowen, "Fire Zones and the Threat to the Wetlands of Sumatra, Indonesia", Ministry of Forestry and Forest Fire Prevention and Control Project, November 2009, available at <http://www.dephut.go.id/ Halaman/Informasi_Kebakaran_Hutan_dan_Lahan/FFPCP/PDF/Firezone_and_the_ threat_to_the_wetlands_of_Sumatra.PDF>.
(83) Unna Chokkalingam and Suyanto, "Fire, Livelihoods and Environmental Degradation in the Wetlands of Indonesia: A Vicious Cycle", CIFOR no. 3 (October 2004): 2, available at <http://www.cifor.org/publications/pdf_files/ firebrief/FireBrief0403.pdf>.
(84) Ministry of Environment, Case Study of Indonesian Efforts in Dealing with Transboundary Haze Pollution Caused by Forest and Land Fires (Jakarta: Ministry of Environment, 2006), available at <cleanairinitiative.org/portal/sites/ default/files/SP12_4.ppt>.
(85) Government Regulation No. 4/2001 concerning Control of Environment Degradation and/or Pollution related to Forest and/or Land Fires (Indonesia) Article 42(2).
(86) The principles were derived from the Peace of Westphalia signed in 1648.
(87) Article 2 of the AATHP clearly shows the approach to prevention and cooperation in responding to transboundary haze pollution as follows: "The objective of this agreement is to prevent and monitor transboundary haze pollution as land and forest fires which should be mitigated, through concerted national efforts and intensified national, regional and international cooperation."
(88) Jeff Ooi, Haze: Balls on UN table, Indonesia upset, Asian Correspondent, 6 November 2006, available at <http://asiancorrespondent.com/6717/haze-balls-on-un-table-indonesia-upset/>.
(89) "Transboundary Haze Pollution Bill 2014", Singapore, available at <https://www. reach.gov.sg/Portals/0/EConsult/144/Draft%20Transboundary%20Haze%20 Pollution%20Bill%202014%20Public%20consultation.pdf>.
(90) The Parties have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental 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.
Article 3(1) AATHP
(91) The Parties should take precautionary measures to anticipate, prevent and monitor transboundary haze pollution as a result of land and/or forest fires which should be mitigated, to minimize its adverse effects. Where there are threats of serious or irreversible damage from transboundary haze pollution even without full scientific certainty, precautionary measures should be taken by Parties concerned.
Article 3(3) AATHP
(92) The parties shall, in the spirit of solidarity and partnership and accordance with their respective needs, capabilities, and situations, strengthen cooperation and coordination to prevent and monitor transboundary haze pollution as a result of land and/or forest fires which should be mitigated.
Article 3(2) AATHP
(93) The Parties should manage and use their natural resources, including forest and land resources in an ecologically sound and sustainable manner.
Article 3(4) AATHP
(94) The Parties, in addressing transboundary haze pollution should, involve, as appropriate, all stakeholders, including local communities, non-governmental organizations, farmers and private enterprise.
Article 3(5) AATHP
(95) Each Party should undertake measures to prevent and control activities related to land and/or forest fires. This includes taking legislative, administrative, and other measures.
Article 4(3) and Article 9 AATHP
(96) When the transboundary haze pollution originates from within their territories.
Article 4(2) AATHP
(97) Claudio Forner et al., "Keeping the Forest for the Climate Change's Sake: Avoiding Deforestation in Developing Countries under the UNFCCC", Climate Policy 6, no. 3 (2006): 275-94.
(98) Li Lin Chang and Ramkishen S. Rajan, "Regional Versus Multilateral Solutions to Transboundary Environmental Problems: Insights from the Southeast Asian Haze", The World Economy 24, no. 5 (2001): 655-71.
(100) Agreement on the Conservation of Nature and Natural Resources, signed on 9 July 1985 (entered into force on 17 November 1997) ('ACNRR').
(101) Convention on Environmental Impact Assessment in a Transboundary Context, opened for signature at Espoo from 25 February to 1 March 1991 and thereafter at United Nations Headquarters in New York until 2 September 1991 (entered into force on 10 September 1997).
(103) Simon C. Tay, "South East Asian Forest Fires: Haze over ASEAN and International Environmental Law", South East Asian Fires 7, no. 2 (1998): 206.
(104) Nicholas A. Robinson, "Forest Fires as a Common International Concern: Precedents for the Progressive Development of International Environmental Law", Pace Environmental Law Review 18 (2001): 486.
(107) Boer, Ramsay and Rothwell, International Environmental Law in the Asia and Pacific, op. cit., p. 241.
(108) John Funston, ASEAN and the Principle of Non-Intervention Practice and Prospects (Singapore: Institute of Southeast Asian Studies, 2009), p. 9, available at <http://www.kysd.org/ngosplatform/wp-content/uploads/2012/12/002-12-Asean-and-the-Principle-of-Non-Intervention- Pratice-and-Prospects-www.iseas_.edu_.sg_.pdf>.
(109) Tay, "South East Asian Forest Fires", op. cit., p. 206.
(110) Hunter et al., International Environmental Law and Policy, op. cit., p. 381.
(111) The Harmon Doctrine: The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its territory. Stephen C. McCaffrey, "The Harmon Doctrine One Hundred Years Later: Buried, Not Praised", Natural Resources Journal 36 (1996): 549-90.
(112) Stephen C. McCaffrey, The Law of International Watercourses: Non Navigational Uses (Oxford: Oxford University Press, 2001), p. 111.
(113) Ellen Margrethe Basse, "Environmental Liability-Modern Developments", Scandinavian Studies in Law 41 (2001): 34.
(114) Tay, "South East Asian Forest Fires", op. cit., p. 207.
(115) Ibid., p. 202.
(116) Prevention of Transboundary Harm from Hazardous Activities, text adopted by Commission at its fifty-third session in 2001, and submitted to General Assembly as a part of the Commission's report.
(117) Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with Commentaries, text adopted by Commission at its fifty-third session in 2001, and submitted to General Assembly as a part of the Commission's report.
(118) Tay, "South East Asian Forest Fires", op. cit., p. 205.
(119) Roda Mushkat, International Environmental Law and Asian Values: Legal Norms and Cultural Influences (Vancouver, Canada: UBC Press, 2004).
(120) Tay, "South East Asian Forest Fires", op. cit., p. 206.
(121) Agreement on the Conservation of Nature and Natural Resources.
(123) Koh and Robinson, "Strengthening Sustainable Development in Regional InterGovernmental Governance: Lesson from the 'ASEAN WAY'", op. cit., p. 648.
(124) Tay, "South East Asian Forest Fires", op. cit.
LAELY NURHIDAYAH is a Researcher at the Research Center for Society and Culture, Indonesian Institute of Sciences (P2KK-LIPI) Jakarta, Indonesia. Postal address: PMB-LIPI Jl. Gatot Subroto No. 10, Jakarta 12710, Indonesia; email: firstname.lastname@example.org.
SHAWKAT Alam is an Associate Professor of Law and Director of the Centre for Environmental Law at Macquarie University, Australia. Postal address: Building W3A School of Law, Macquarie University, Balaclava Road, NSW 2109; email: email@example.com.
ZADA LIPMAN is an Emeritus Professor of Law at Macquarie University, Australia. Postal address: Building W3A School of Law, Macquarie University, Balaclava Road, NSW 2109, Australia; email: zada.lipman@ mq.edu.au.
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|Author:||Nurhidayah, Laely; Alam, Shawkat; Lipman, Zada|
|Publication:||Contemporary Southeast Asia|
|Date:||Aug 1, 2015|
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