Brave New World (The Star)
28 July 2007
In my last article, I stated that trying to use the International Court of Justice (ICJ) to bring Indonesia to task for allowing its forest fires and haze to continue was a futile effort.
This was because although it is strongly arguable that there exists a customary international law forbidding a country to allow activities within its borders to adversely affect its neighbours (and it is also strongly arguable that Indonesia has State Responsibility to live up to that principle), the fact of the matter is, if they don’t want to be brought to the ICJ, they can’t be forced to.
So, what other options are there? The first port of call would be Asean.
In 2002, Asean made a treaty called the Asean Agreement on Transboundary Haze Pollution (the Haze Agreement). In a way, it is a landmark event as Asean is usually loath to bind itself to an international treaty.
Rather than “hard law” like treaties, it prefers “soft law” documents like declarations and the like. “Soft law” documents are merely influential but not legally binding.
This is due to the “Asean way”, a method of doing business with one another in as non-confrontational and as gentle a manner as possible. More of this “Asean way” will be mentioned later, but first on to the Haze Agreement.
Those of you with an abiding interest in following the developments of Asean affairs will probably realise that right off the bat, there is a problem with the agreement – a pretty big problem.
Indonesia has signed the Haze Agreement but, as of today, has yet to ratify it. What this means is that to all intents and purposes, there is not yet an international obligation on it to comply with this treaty. In other words, the one Asean member that this treaty is aiming for is not bound by it.
However, even if Indonesia does ratify it, the question remains: just how useful would this treaty be?
The Haze Agreement has as its foundational principle the concept that one can do what one wants in one’s own territory but not to the point that such activities cause damage to one's neighbours.
It requires its parties to make sure that there are domestic laws that do not allow for open burning.
Parties are also required to monitor the situation within their own jurisdiction and to cooperate with one another by sharing such information. There is the Asean Coordinating Centre provided for this.
Scientific and technical knowledge (such as of non-burning methods of clearing land) is to be shared.
Fire fighting services from other parties to the Haze Agreement are also to be made available in the event of an emergency. Such fire fighting aid, however, can only be provided if requested by the country that has the problem.
There is, unfortunately, no mention about what happens in the event that there is burning and it affects the neighbours. That is to say, there is no provision at all for any sort of liability and compensation scheme.
And if there is a dispute, the treaty merely states that it is to be settled by negotiation and consultation. These are the weakest possible methods of international dispute settlement, as they do not involve an arbitrating third party, such as the ICJ.
Looking at the obligations, one can see they are vague and general in nature, and a lot of leeway is given to the individual members. There is no standard set, for example, for the quality of domestic anti-burning laws and their enforcement.
In other words, the Haze Agreement is a pretty weak international law and there is little likelihood that those who breach it will face any serious sanction.
Is it totally useless then? Not necessarily. The treaty does provide for the creation of Protocols. These are “sub-treaties”, if you like; a sort of international subsidiary legislation.
These Protocols, if they are created in the future, can provide necessary details such as standard setting and a liability and compensation scheme that will ensure a firmer set of obligations on the parties.
I am not particularly hopeful, though. The Asean aversion to any sort of confrontational stance, let alone strict laws that bind the member countries, is a pretty strong one.
For example, when Singapore complained about Indonesia’s poor control of the fires at the United Nations last year, it stood alone with no outward support from other Asean members, and it got a thorough scolding from the Indonesians for its trouble.
The “Asean way” may be useful in ensuring that we are at peace with one another, but it does seem to be a major hindrance when strong action needs to be taken. And surely when the health of one’s citizens is at risk, such action has to be taken.
Where do we go from here? Well, the most important thing is to try to get Indonesia to ratify the treaty. In the meantime, efforts can still be made to help it keep the fires under control.
The Malaysian Department of the Environment, for example, is already sharing technical know-how on non-burning land clearance systems.
But more can be done. An argument used by Jakarta is that many of the companies that do the burning are not Indonesian but are from abroad, Malaysian companies among them.
I do not have the data as to what the percentage of companies are Malaysian and, more importantly, how many of them practise open burning. However, it is certainly undeniable that they are there and it is possible some of them are breaking Indonesian laws.
The Malaysian Government has responded to this accusation by stressing to the Malaysian companies operating in Indonesia that they should not practise open burning. I believe that this is not enough.
What we can do is sign an extradition agreement with Indonesia so that in the event that our companies do break the law, their directors cannot escape Indonesian justice by hiding over here.
By helping the Indonesian courts in this way, what it does is express our own commitment and seriousness in dealing with this matter.
It also provides the Malaysian Government with the moral high ground. It would give us the sort of authority to demand that Indonesia ratify the treaty and take all measures to live up to its obligations; and it would be in the nice, polite and friendly “Asean way”.
As for us, the people, we have to continuously make angry noises at our government to take the necessary measures to make sure our neighbours stop hurting us every year.
Unless and until the anger of the people is consistently and strongly expressed, it is unlikely that the representatives of the people would feel pressured enough to act.