The unwanted smoke brought about by the winds from forest fires in Sumatra and Borneo has since been hovering over our skies, compromising our rights to clean air.
Beginning 1997, this uninvited trans-boundary phenomenon visited Southeast Asia for a couple of more years mainly in 1999, 2005, 2006, 2009, 2013 and currently, 2015.
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Gasping for clean air, what are the legal options available for Malaysia?
Southeast Asian Haze Phenomenon
Indonesia is the main contributor to the haze phenomenon that has been choking Southeast Asia.
Primarily caused by slash and burn techniques adopted by farmers in the islands of Borneo and Sumatra, this method has been extensively practised for its low cost and easy way to clear the lands for traditional agriculture.
Forest fires created through this technique generated thick smoke and the smog worsens due to scarcity of rain.
There are several problems brought about by haze which are affecting the country.
The health impact of haze for instance, caused Malaysians to suffer or to likely suffer from asthma, upper respiratory infection, decreased lung function as well as eye and skin irritation.
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As young children has been classified as the most vulnerable group, schooling sessions have been postponed for much of Peninsular Malaysia’s west coast states this year only.
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Malaysia’s multi-billion tourism industries that accounted for about 7% of Malaysia’s yearly economy could also be adversely affected by haze.
Despite the million dollar investment on the ‘Malaysia Truly Asia’ campaign, tourists may shun away as the air quality within Malaysia decreased tremendously.
The reduced sunshine could bring about negative implications on plantations, while terrible hazy conditions could delay construction projects.
In addition, the haze over Malaysia has not only affected human beings but also the flora and fauna of this country.
The hazardous particulate in the polluted air affected migratory birds making their annual journey to Malaysia to escape winter of East Asia.
Other animals may find it hard to survive through the haze, which brought ash and a nauseating smell, making situations intricate for them to find food in the wild.
However, economic experts opined that the haze problem is currently not serious enough to affect the country’s gross domestic product (GDP).
The situations could be detrimental to Malaysia if the haze amplified to hazardous levels and stays around for the next few weeks or months. If no immediate action is taken, the situation will get worse depriving many Malaysians from their right to clean air and clean environment.
Despite a number of complaints made by Malaysia and Singapore, Indonesia has failed to put a stop to this smoke ‘fiesta’ which continues to get worse every year.
Indonesia’s Vice President Jusuf Kalla has also lashed out at both Malaysia and Singapore for not being grateful for enjoying the clean air provided by the jungles of Borneo and Sumatra – an unsolicited statement coming from a respected politician of the neighbouring country.
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Indonesia has also refused to accept assistance to put out fires until only quite recently.
Malaysia is now spending more than RM1.5 million to dispatch fire fighters to the affected areas in an attempt to bring back clear blue skies to the country.President Joko Widodo clarified that Indonesia needs three years to end smog problems.
Legal Options for Malaysia
As haze is likely to become a yearly phenomenon, Malaysia should come up with a number of legal options against those involved.
Under the law of torts, a house owner, who started a fire on purpose or by accident, would be liable for any loss or damage caused to the neighbours.
A similar doctrine however has been developed in international law as depicted in the 1941 Trail Smelter Dispute.
This case involved a smelter in Canada, where smoke from the smelter spread across the border into the United States of America (USA), causing air pollution in the American state of Washington to deteriorate badly.
In this case, an international tribunal held Canada responsible for the environmental damage and ordered it to pay for the damages.
Under international law, a country is required to take extra precaution not to cause injury to the subjects of another sovereign.
In the 1949 Corfu Channel Case, Albania has failed to provide due notice to British war vessels navigating its waters of the presence of mines.
This failure has caused deaths and injuries to British troops when these vessels struck the mines.
The International Court of Justice (ICJ) instructed Albania to pay reparations to the British government for the damage caused to the British military.
The Land Reclamation Case involving Malaysia and Singapore is also a good example to exemplify the position of international law on environmental protection.
In April 2002, Malaysia lodged a protest against Singapore’s reclamation works around Pulau Tekong and Pulau Ubin, two islets lying on the Strait of Johor on the grounds that they were causing trans-boundary environmental harm to Malaysia’s territorial waters.
Subsequent to an unsuccessful meeting between the parties in 2003, Malaysia initiated proceedings against Singapore at the International Tribunal for the Law of the Sea (ITLOS), to refrain from continuation of its reclamation works around these islands.
Nevertheless, ITLOS prescribed that both States to cooperate and consult independent experts to undergo specific research to ascertain the effects of such reclamation works. Both States were recommended to propose measures to overcome adverse effects of such a project to the environment, if any.
These three international cases display that international law does not condone to the idea that a State may perform any acts that would injure the well-being of other States.
Unlike legal actions against individuals, nations are sovereign entities and cannot be dictated by others.
While it is possible to bring legal action against Indonesia to the ICJ or any international tribunals and claim for compensation, Indonesia’s consent is required for this purpose.
As a sovereign, no entity could compel Indonesia to be dragged to any international courts.
Overcoming the Haze Problem
The former ASEAN Secretary-General, Rodolfo Severino in 1999 contended that the State members of ASEAN, unless consented, cannot take legal actions against State-parties which are responsible for committing transboundary pollution.
ASEAN holds firmly to the principle of non-intervention. As such, it is a viable approach to address the matter peacefully and diplomatically in a bilateral discussion and in a regional forum or fondly known as ‘the ASEAN way’.
The ASEAN Agreement on Transboundary Haze Pollution came into being on 10 June 2002, with Indonesia being the last State-member to ratify it in 2014.
This agreement mainly provides the grounds for co-operation between ASEAN countries should an outbreak of haze takes place. In line with the ASEAN way, it does not provide provisions to allow member States to claim damages, reparation or compensation from the offending State.
At the rate this epidemic is developing, it is unsure whether or not this Agreement would be effective in combating haze.
This haze phenomenon is now no longer an ASEAN problem but has escalated into a global calamity.
A recent report issued by the World Resources Institute contended that Indonesia’s Fire Outbreaks produce more daily greenhouse gas emissions than the entire US economy contributing significantly to global warming.
Besides that, massive forest fires have destroyed the flora and fauna of Indonesia, one of the most mega-diverse nations on Earth. As a State-party to the Convention on Biological Diversity (CBD), Indonesia has duties to conserve its biological diversity and put it to sustainable use.
Obviously, causing massive forest fires in the wilderness of the islands of Borneo and Sumatra are not an act prescribed by the CBD.
Conclusion
Indonesia has apologised to its neighbours for the haze problems engulfing Southeast Asia.
Obviously, a mere apology does not change anything.
As the main cause of haze originates from Indonesia, the central government in Jakarta must do something about this.
It is very unbecoming for Jakarta to wait for this thick polluting smog to reach the shores of the island Java or their mega cities of economic importance before they start to decide to act firmly.
As stated earlier, Indonesia needs three years to put an end to this calamity. Three years is a long period of time for Malaysia and Singapore to endure.
Where is the ASEAN’s spirit of ‘prosper thy neighbour’?
Everyone possesses the right to clean air and healthy environment.
Should the haze problems prolong, the world community should consider putting diplomatic pressures on Indonesia as the thick smog does not only affect Southeast Asia, but the world as whole.
Apart from contributing to global warming, these forest fires unwarrantedly destroy areas rich in biological diversity. Malaysia is not intending to institute legal action against Indonesia.
Apart from strong political will of Jokowi’s government, the best way for Malaysia and other ASEAN countries to combat this smog dillema at the moment is by ensuring that the long-overdue provisions of the Transboundary Haze Pollution Agreement are put into practice.
Dr. Mohd Hazmi Mohd Rusli and Dr. Amalina Ahmad Tajudin are senior lecturers at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia. Dr. Hazmi is also a visiting professor at the School of Law, Far Eastern Federal University, Vladivostok, Russia.
* The views expressed here are strictly of the author's and doesn't necessarily reflect Astro AWANI's.
