Law Speak - Transboundary haze: What to do?

THE haze (or smog) that envelopes us every year is becoming intolerable. It has continued for almost 13 years. Each time we are assured that the levels are acceptable, not that dangerous and a solution is coming. Recently, a deputy minister promised that a "haze free region" will soon be achieved.
The Indonesian government says it's getting tough – "no more dragging of feet". True to word 140 suspects were rounded up last month including some corporate figures.
More recently an Indonesian and a Malaysian palm oil company were dealt with rather severely; the former an unprecedented record fine of RM107 million; the latter's manager jailed for a year as well.
Heavy penalties are rare. Although, to be fair, under the new president Joko Widodo, the Indonesian government has revoked (on Oct 7) the licences of four plantations identified as being the culprits.
But green groups and others are sceptical. Several cases dating back to 2012-2013 remain in limbo with no conviction. Remember, that was when Malaysia had to declare a "haze emergency" because air pollution was at a record high.
In the meantime although accepting fire-fighting help now, Indonesia has spurned the Asean-level initiative "for at least a month". It is building canals, it says, to solve the problem. Our government has just proposed they build tube wells instead.
Meanwhile, the haze continues unabated – coming from the source in Sumatra and Kalimantan, even as I write – blanketing everything around us, causing havoc to schools, industries, offices, air flights; damaging the health and well-being of babies, children, workers, the elderly; indeed the general public.
Who is to blame? At the peak of the 2013 haze incident satellite images of burning tracts of land in Indonesia showed fires burning in large agri-business plantations. These big boys promptly placed the blame on smallholders and communities living in the vicinity or within their lands.
In this satellite-imaging age that can fix the precise coordinates of any activity, it seems unacceptable to suggest that the culprits cannot be tracked.
Whoever is to blame the key question is: what can be done? Are we completely helpless?
Let me explore some avenues for recourse.
Asean Agreement on Transboundary Haze Pollution
We have this agreement dating back to 2002 between the 10 Asean member countries – a historic first regional arrangement in the world binding contiguous states to tackle transboundary haze pollution resulting from land and forest fires. Indeed it has been described as a global role model for tackling transboundary issues. It has a wide mandate: parties must cooperate in developing and implementing measures to prevent, monitor, and mitigate the transboundary haze pollution.
How? By controlling sources of land and/or forest fires, by the development of monitoring, assessment and early warning systems, exchange of information and technology, and the provision of mutual assistance. The agreement provides for a centre to coordinate the management of the land and forest fires.
But this agreement lacks "bite". There are no enforcement measures; no sanctions for non-compliance. The most that can be done is for parties to meet to ensure the effective implementation of this agreement. And even this is not being pursued.
Ironically Indonesia – the main source of the problem – was the last to join just three years ago in 2012.
National measures
Another recourse is for countries to take legal, administrative and/or other measures to implement their obligations under the agreement, as stated in the Asean Agreement.
Singapore has enacted a law – Trans-boundary Haze Pollution Act 2014 – on the basis of which it has sued five Indonesian companies blamed for the farm and plantation fires. The penalties include a hefty fine and a further fine of S$80,000 for each day the activity continues.
Significantly, the law has extra-territorial effect – meaning criminal or civil action can be taken for any conduct or thing outside Singapore which causes or contributes to any haze pollution in Singapore. There is clear precedent for such an extra-territorial law. For example, in the 2006 Pakootas case a US court made an award against a Canadian company for discharging hazardous untreated effluents into the Canadian part of a river that flowed into the US state of Washington.
To establish fault, Indonesia must supply a map of the area to pinpoint the source of the delinquent activity; and of the concessions granted to these companies. This Indonesia says it cannot do until its national mapping project is completed – which will take years! This despite the obligation under the Asean Agreement to "respond promptly to a request for relevant information sought by a State or States that are or may be affected by such transboundary haze pollution".
Singapore prosecutors may also face the problem of providing direct proof of the facts giving rise to the responsibility. However, most systems of law allow indirect evidence based on inferences of facts and circumstantial evidence – "a series of facts linked together and leading logically to a single conclusion" (Corfu Channel case).
In any event, a prosecution will at the very least bear pressure on the source country on its failure to prosecute and to act in accordance with the Asean Agreement.
The grapevine suggests Malaysia is contemplating a similar law. Malaysian companies have been implicated in causing these fires.
State responsibility under international law
Can a country be held liable for failing to control the fires and for the resulting haze and pollution in other countries?
Yes, says international customary law. A country has an obligation to prevent any harm to the territory of another; even if the source is from private companies. It has an obligation to act diligently. It must take effective action against those causing the problem – whether private companies or whosoever else.
Its only defence is that it did all that was possible but yet could not prevent the activity that caused the damage. The greater the harm the more must be done.
Indonesia has elaborate national laws against open burning especially in peat areas. But as noted earlier, the implementation of these laws is ineffective. This is attributed to corruption as well as a lack of adequate mustering of manpower to investigate and charge.
There are cases of lax enforcement, lenient sentences as well as acquittals. There are the usual institutional difficulties – local authorities emboldened by greater regional autonomy that issue concession licences in defiance of central regulations. Prosecutors and courts seem compromised by graft.
Malaysia and/or Singapore could seek a resolution through arbitration or the International Court of Justice. For this Indonesia's consent is necessary. That may be the first obstacle to surmount.
Also, Malaysia may not wish to pursue this course because of "comity of nations" – to maintain friendly relations with neighbours. But we have resorted to this before – the Batu Puteh case with Singapore. And our cordial relations with Singapore have not been marred.
Above all "we, the people" deserve more than assurances. For how can a "responsive" government simply stand idly by while its citizenry suffocates in this never-ending haze year in and year out?
Gurdial is professor at the Law Faculty, University of Malaya. Comments: letters@thesundaily.com