Here Comes the Haze Again

Brave New World (The Star)
12 July 2007

"The haze is back earlier than last year and as we rant and rave there is very little we can do as long as the Indonesian authorities take a lackadaisical attitude towards it."

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Some things come round every year. Hari Raya, Christmas, Deepavali, the haze.

Yes, the blue skies and hot weather that we are experiencing now is the harbinger of the dreaded haze. For in this dry heat, it is easy to burn things – like forests and such.

It won’t be long then before we get daily reports of dangerously high Air Pollution Index (API – oh how apt an acronym) and pictures in the press of school children struggling to school with their overloaded back packs and face masks. Along with the media frenzy, there will also be the usual calls for action from an understandably angry and frustrated populace.

But what really can be done? In our own country, we can pass laws that outlaw open burning. This we have done through the Environmental Quality Act. It is, however, a little misleading to say that the Act bans open burning. There is a list of exceptions that allow a diverse array of fire-related activities – from temple joss sticks to padi husk burning.

From the list, it seems quite clear that the Malaysian law is designed really to ban large-scale plantation clearance-type burnings. However, the minister has the authority to stop all forms of burning, whether they fall in the list of exceptions or not, if the API is very bad.

The punishment for defying this law is fairly severe with a maximum fine of RM500,000 and a possible jail sentence. I think it is fair to say that by and large, the enforcement of this Act is not too bad.

Sure, we get hotspots here and there and some irresponsible urban residents do burn their refuse (rural residents are allowed to), but the severe haze we experience is not the result of Malaysian burning. Everybody knows that we suffer, to paraphrase Deep Purple, “smoke from across the waters.”

This is one time that blaming one of our neighbours for our problems is justified. The Indonesians burn huge tracts of forests, primarily to clear land for plantations. It is their smoke that we are going to be breathing.

It is very arguable that the Indonesian authorities by allowing the burning to continue to the extent that it affects us (as well as Singapore and Brunei) are going against international customary law.

In the 1930s, there was an international arbitration case between Canada and America. A smelting company in Canada was producing pollution that was damaging American crops. The company was totally legal according to Canadian law but it was held that a country could do what it wished in its own territory as long as those actions did not cause damage to their neighbours.

This principle has been confirmed in International Court of Justice cases as well as international environmental documents like the Stockholm Declaration of 1972 and the Rio Declaration of 1992. Therefore, although this principle has not been codified in a properly legally binding international treaty, it can be said that an international custom (which is equally binding as a treaty) has been established.

The fires that occur in Indonesia are caused by private companies and are done illegally (Indonesia has anti-open burning laws). In such a scenario, can the Indonesian government still be held accountable? In international law parlance, can we say that they have State Responsibility to us, their neighbours? After all, the entire act complained about is being done by, what are in effect, criminals.

May it not be deemed unreasonable to hold the Indonesian government liable for the acts of people who have chosen to break the laws that they have put in place?

The argument against this says that the Indonesian government has a responsibility to make sure that those laws of theirs are properly enforced. The fact that every year this catastrophe keeps happening shows that they have not lived up to that responsibility.

One of the problems is that since the fall of Suharto, a lot of power has been decentralised and so the enforcement responsibilities for preventing fires are now in the hands of the various provinces. This means that the standard of enforcement differs from province to province, and to make matters worse, the opportunity for corruption has multiplied as well.

Be that as it may, no matter who is in charge – the central government or the provincial governments – the Indonesians are not doing enough to stop the haze and they, therefore, should be brought to task. But this is a lot easier said than done.

Over the years, the usual cry would be “take them to the International Court of Justice (ICJ).” What we must understand here is that the ICJ does not work in the same way as domestic courts. Based on that most holy of international law principles, state sovereignty, we can’t just bring countries to court with a writ of summons.

There is only one way that a sovereign country can be brought to the ICJ – they must agree to being brought there. We can rant and rave all we want but unless the Indonesians actually agree to go to The Hague, we can’t force them.

So, with the ICJ option closed, what else is there? Well, readers tune in two weeks from now, same column, same paper, to find out. That is, if you can find your way to the newsstands in the smog.