Action by Member States of ASEAN to Address the Haze affecting the region

Malaysia is suffering from the haze that envelopes her for long periods of time. Adverse effects resulting from the haze affects many of her citizenry and economy. This is especially evident in the past weeks wherein Malaysia’s Air Pollutant Index (API) soared to “very unhealthy” levels. Malaysia’s repeated offers to help on a transboundary basis have not been as enthusiastically received as one would have thought. Our Minister of Natural Resources and Environment has called upon the Attorney General to look into the armoury of the law to see what can be done. In the meantime, the ground swell of resentment in having to live in such unhealthy conditions grow by the day.

It is highly ironical that Malaysia who often face with trepidation the usual floods that come at the end of the year, now looks forward to the Northeast monsoon expected in mid-November to bring the rains to the region to put out the forest fires raging in Sumatra and Kalimantan as the limited human intervention, thus far, has not been good enough.

Based upon reports published in the mass media, the haze seems to be caused by the use of slash-and-burn method to clear forests and plantations for agricultural purposes in Indonesia. According to Herry Purnomo, a scientist at the Center for International Forestry Research (CIFOR) and professor at Bogor Agricultural University, the costs of mechanised [land clearing] is US$150.00 per hectare whereas the slash-and-burn clearance method costs only US$7.00 per hectare. Unfortunately, the employment of the latter method was apparently not well managed leading to the fires burning out of control.

Both Malaysia and Indonesia are parties to the ASEAN Agreement on Trans-Boundary Haze Pollution of 10th June 2002 (“ASEAN Haze Pollution Agreement”) with Indonesia having ratified it on 14th October 2014. The other member states who are parties to this agreement are Cambodia, Lao, Myanmar, Philippines, Singapore, Thailand and Vietnam. Article 4 of the agreement expressly provide that the member states shall co-operate in developing and implementing measures to prevent and monitor transboundary haze pollution as a result of land and/or forest fires which should be mitigated, and to control sources of fires. Article 9 calls upon each member state to undertake measures to prevent and control activities related to land and/or forest fires that may lead to transboundary haze pollution. Whilst there is a host of provisions enjoining each party to assist one another, unfortunately, there is no provision on what the consequences will be if any member state were to neglect, fail and/or refuse to comply with her obligations.

It is indisputable that the ASEAN Haze Pollution Agreement does not have any provisions allowing any member state to be taken to task for any breaches of her obligations, for preventive measures to be imposed and compensation paid for damages suffered.

In the international front, two cases are instructive. One is The Corfu Channel Case and the other, the Trail Smelter Case (1938). The Corfu Channel Case was decided by the International Court of Justice in 1949. In this case by special agreement made between the Government of Great Britain & Northern Ireland and the Government of the People’s Republic of Albania, their dispute was referred to the International Court of Justice (“ICJ”). One of the issues to be resolved was whether Albania is responsible under international law for the explosions which occurred in Albanian waters and for the damage to property and loss of human life and whether there is any duty to pay compensation. The damages here was the loss of lives of 44 and personal injuries suffered by 42 British officers and men and damage to two ships. By a majority decision (eleven votes to five) the ICJ held that Albania is responsible under international law for the explosions which occurred in Albanian waters and for the damage and loss of human life that resulted therefrom with damages to be assessed.

In the Trans Smelter Case, the government of the United States of America (“US”) took legal action against Canada. Here, a Canadian smelter company was operating within the Canadian border adjoining the Washington State in the US. The Canadian company smelted zinc and lead leading to the emission of sulfur dioxide gases which were carried by the wind over to the farms in US causing damage to forest trees, soil and crop yields. The US charged Canada for these damages. Under the International Boundary Waters Treaty,1909 made between Canada and the US, the matter was referred to the International Joint Commission which recommended that Canada pay $350,000 by way of damages but did not make any decision on whether the Canadian smelter company could continue or what measures it had to take to prevent pollution. The US rejected the recommendations and a tribunal was formed comprising one Belgian, one Canadian, one American and two scientists. One of the findings of the tribunal was that it was the upper air currents rather than the trade winds that were responsible for the delivery of smoke into the US. Compensation was ordered to be paid and more importantly it was ordered that the Canadian company has to undertake a regime to eliminate the damage its smoke was causing. It was estimated that the costs to undertake such a regime was in the region of $20 million. The two principles that came out of this case are that a state has an obligation to prevent transboundary harm and the other is that the polluter pays.

In the ASEAN Haze Pollution Agreement, Article 27 merely provides that any dispute between the parties as to compliance shall be settled amicably by consultation or negotiation. It follows, that if no settlement can be achieved by consultation and negotiation, there is no further recourse to an independent tribunal for claims to be made. In the circumstances, whilst the Malaysian government look into passing laws akin to the Singaporean Transboundary Haze Pollution Act 2014 which has limited bite, the member states of ASEAN must with due haste take urgent steps to provide provisions in the ASEAN Haze Pollution Agreement to take defaulting parties to an independent tribunal to seek recourse and compensation. In this regard, this matter should be put on the table and dealt with as the first matter of importance during the 11th Meeting of Conference of Parties to Haze Agreement which is to be held in Hanoi, Vietnam from the 26th October to 31st October, 2015. Even if this cannot be resolved during this meeting, all the non-defaulting member states must make concerted efforts to bring pressure upon Indonesia for her to agree to a special agreement, just like in the Corfu Channel and Trans Smelter cases, for this issue to be brought to an independent tribunal for claims to be made and for a preventive regime to be ordered to be put in place and which can be enforced.