Brave New World (The Star)
26 June 2013
If we make a move to punish Malaysian companies responsible for the haze with our fiery domestic laws against open burning, the Indonesians may be persuaded to ratify the Asean Transboundary Haze Pollution Agreement.
IN 2007, I wrote two lengthy articles in this column about the haze. Five years on, the problem still persists. As tempted as I am to just cut and paste those earlier works (like the editors will remember what I wrote five years ago), what I will do instead is just summarise the salient points and make some suggestions.
Is Indonesia breaking any international law?
Yes it is. I would argue that causing damage to your neighbour’s territory via activity on your own is clearly against customary international law. The Stockholm Declaration has this to say: “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 the environment of other States or of areas beyond the limits of national jurisdiction.”
This principle found its basis in the Trail Smelter Arbitration of the 1930s where it was held that Canada was liable for damage done to American crops due to the pollution from a smelting operation within its own borders. In the Gabcikovo dam case of 1997, the International Court of Justice (ICJ) decided that this principle is now customary international law. This means that all countries are bound by it.
So, Indonesia is in breach of international custom; the thing is, what can we do about it? We can try to bring them to the ICJ but the reality is, due to the voluntary nature of international law, if they don’t want to go, we can’t force them to go.
What about Asean?
There is the Asean Transboundary Haze Pollution Agreement (ATHPA), but there are two problems with this law.
Firstly, Indonesia has not ratified it, therefore they are not legally bound by it. They have however signed it, and according to the Vienna Convention on the Law of Treaties, there is a general obligation for them not to do anything that goes against the principles and objectives of the treaty. Perhaps they can be reminded of this.
But even if they do ratify the ATHPA, the second problem is that in its current form it does not provide for any process to determine liability and compensation.
In other words, there is nothing in there to punish a country that conducts or allows open burning which damages their neighbours. It is, after all, an Asean law and the Asean way is to avoid any sort of confrontation or nastiness, even if it means their citizens choke.
Does this mean the ATHPA is useless? Not necessarily. The most important international measure to be taken now is to pressure Indonesia to ratify.
After all, what are they frightened of? The treaty is not a fearsome one, quite the opposite actually, it’s a cuddly treaty.
Why, even the provisions for fire-fighting aid from neighbouring countries come with the proviso that we can only help if we are asked to help. But if Indonesia ratifies it, then there are provisions for cooperation between countries in the field of data sharing. And this is where we can all show our seriousness in handling the crisis.
The Indonesian government is fond of saying that it is foreign companies who are doing the burning, and by foreign they mean Malaysian and Singaporean. Now it would take a leap of logic of illogical proportions to suggest all the companies doing open burning are foreign. Surely there are Indonesian companies in there too.
But it would be fair to say that in all likelihood there are Malaysian companies doing the deed over the Straits of Malacca. Well, if this is so, why don’t we prosecute them here? Why depend on the Indonesian justice system? After all, if Malaysians are harming Malaysians, then it is jurisprudentially possible to extend the reach of our domestic laws onto them; and we have some pretty fiery domestic laws against open burning.
If we make the necessary legislative changes to allow for this, we can remind our friends in Jakarta that we can only make this work if they cooperate with us, in particular with regard to sharing data. And the best way for them to do so is by ratifying the ATHPA which already provides for such cooperation.
If Malaysia does this, Indonesia will not have their high horse to clamber upon. We will show them we mean business and that we will punish our citizens who commit this despicable act. And if we mean business, then they jolly well should too.