ASEANS agreement on Trans-boundary Haze Pollution.

Environmental Law final project submission

Abhineet Kalia
PRN – 16010223058
Division – C
Programme – B.A. LL. B

“A healthy environment is essential to a liveable Oregon and a strong economy.”1

Human being cannot survive on its own. They need sun water air and most importantly healthy
environment to live in but due to various human practices, the environment is being destroyed and
polluted. To save our environment, various rules and regulation are laid down and treaties and
agreements are signed. One such agreement is ASEAN Agreement on Trans boundary haze pollution.
Due to the agricultural practice of clearing the land through burning, various gases are emitted in the
environment which are responsible for air and haze pollution. By the passage of time, this has resulted
to be hazardous and even fatal in nature. The consequences are even seen in neighboring countries.
This problem prevails in South East Asia mainly in Indonesia, Singapore, Malaysia and Philippines.

The environment that we live in, is fragile in nature and can be depleted by various human
interferences such as by agricultural practice of burning, deforestation, emitting harmful gases in
environment through industrialization etc. All these practices are responsible in climate change that
we are facing today. ASEAN Agreement is one such treaty which aims to curb the effects of these ill
practices in Southeast Asia.

ASEAN Agreement on trans-boundary haze pollution was signed by the member countries
of Association of Southeast Asian Nations in Kuala Lumpur, Malaysia in 2002 2. This agreement has
its foundation from Kuala Lumpur3 Accord among ASEAN ministers of environment on 19 June,
1990. The states that are party to this agreement are Malaysia, Singapore, Thailand, Brunei,
Myanmar, Vietnam, Laos, Cambodia, Philippines, and Indonesia.

BACKGROUND

This agreement came into effect because of the environmental calamity that happened in Southeast
Asia during late 90s. This happened due to agricultural practices which involved clearing the land via
burning on the Indonesian island of Sumatra. 4 There was huge forest and land burnt in the parts of
Malaysia, Singapore, Thailand and Brunei.

1
Ted Kulongoski, Speech by Governor Kulongoski: Inaugural Address, Oregon.gov, State of Oregon, January 13,
2003.
2
ASEAN agreement on transboundary haze pollution, 2002.
3
The Kuala Lumpur Accord on Environment and Development Issued by The ASEAN Ministers for the
Environment at The Fourth ASEAN Ministers for the Environment Meeting.
The haze in South East Asia occur often but it reaches to an alarming rate in the dry season that is
June to September and is deadly in nature. This generally happen when southwest monsoon is in
progress. The south west monsoon shifts the haze from Sumatra, Indonesia towards the Malay
Peninsula and Singapore, sometimes creating a thick haze that can last for weeks. The THPA (Trans
boundary Haze Pollution Agreement) defines haze pollution as “smoke resulting from land and/or
forest fire which causes deleterious effects of such a nature as to endanger human health, harm living
resources and ecosystems and material property, and impair or interfere with amenities and other
legitimate uses of the environment.” (Article 1, para. 6).5

The ASEAN Ministers entered into the ASEAN Agreement on trans `boundary haze pollution on 10
June, 2002 which came in force on 25 November, 2003 the countries were unable to coordinate and it
began difficult to regulate trans boundary pollution through regional governance. The recurring haze
pollution I southeast Asia has raised various question as to why the framework failed in achieving the
result and why governance framework remained ineffective, and whether this position is likely to
change that now Indonesia has joined the treaty. There are many dynamics that effect multilateral
environmental governance regimes. The countries or states make these international treaties only
because they cannot handle the problem on their own. States do not ratify the arrangement that upset
the status quo, as they receive many economic benefits out the pollution. At the same time, the states
not always get benefited by the agreements or treaty, sometimes they have to bear the cost of
mitigating the pollution.6 Because of these reasons, it becomes difficult for the nations to negotiate the
agreement. In Indonesia, there is a Malaysian investor who is engaged in clearing lands for his
economic benefits which may be the cause of haze pollution. The interest of the investors and general
public are different which might have taken so long for Indonesia to ratify the THPA.

RECURRING HAZE POLLUTION

One of the main causes of the haze pollution is the uncontrolled land burning for the purpose of
development like growing crops or infrastructural development in South East Asia. Legal restrictions
are absent in these areas due to lack of law enforcement and appropriates rule for usage of fire in
agricultural practices. Because burning is the economically cheapest way to clear the land without
incurring heavy amount on them and thus encouraging such environmentally and socially unsound
practices. Also, the draining of peatlands– found in numerous parts of Southeast Asia and particularly

4
Andre Vltchek “Welcome to Sumatra, Indonesia, an environmental genocide in the making” retrieved from
https://www.rt.com/op-edge/376207-welcome-sumatra-indonesia-environmental-genocide/ Accessed on 15
January, 2018.
5
Article 1, para 6, ASEAN agreement on transboundary haze pollution, 2002.

6
Tacconi argues that Indonesia has no real incentive to join the THPA for that reason. However, Indonesia also
lost between 1.7 and 2.7 billion USD as a result of the negative impact of fires on timber production, plantation
crops, etc.; see Tacconi, Jotzo, and Grafton 2006: 12.
on the Indonesian islands of Sumatra and Kalimantan – for advancement enormously builds the
danger of fire and haze because of peat's smoke generating characteristics when burnt and the fact that
it can burn through the peat seam layers underground which are out of sight and thus become difficult
to control. Other factors that contribute to this problem is overlapping of the rules and regulation
created by various government agencies which create a gridlock or loophole in the process,
inadequate knowledge or information, the will of the government to tackle the problems etc. In brief,
the basic issue could be summed up as less compliance by land developers and poor enforcement and
the lack of capacity on the part of concerned authorities including having weak judicial systems. It
also showcases the importance to balance economic needs with environmental needs as well as
maintaining good international relations.

The crisis that occurred in 1997 which caused haze pollution, it led to unprecedented damage in the
south east Asia area. Fires from both logging and palm plantations raged on the Indonesian islands of
Sumatra and Kalimantan, when there was shift in the pattern of the wind, the fires spread in Malaysia,
Brunei, Singapore, Thailand, and Philippines. By the time, the fire was controlled, it had already done
damage in that area which could be used for agricultural purposes. Since then haze pollution has
occurred in that region almost every year and increase during the dry season. Especially severe haze
pollution was recorded in the year 2006, 2009, 2013.7

The various impacts resulting from the agricultural fire caused to clear the land can be listed as
follows:

1. Loss caused to property and natural resources like forest, air, water, biodiversity and
ecosystem prevailing in that area and damage to agricultural produce which could be used by
any people.

2. It causes increase in emission of greenhouse gases or gases responsible for global warming
such as carbon dioxide, carbon mono oxide, Sulphur Dioxide, and other hazardous pollution.

3. It causes harmful effects to the health of the people and animal which are fatal in nature such
as breathing problem, skin problems etc.

4. The number of accidents on the road increases manifolds due to the poor visibility caused
because of the air pollution.

5. Negative impact on tourism and business.

6. The people’ s right to clean air, good health, quality livelihood has been violated.

7
After the 2006 haze crisis, Indonesia seemed to be moving towards ratifying the THPA, but later decided to
instead set up a committee to further study the agreement in detail, effectively stopping its parliamentary
ratification process. Indonesia’s position then shifted quickly after the fires were put out, and by June 2007 it
was clear that Indonesia would not ratify the agreement.
 7. The relations of the states in south east Asia has been strained.

It has been estimated that the overall loss from the fires and haze during the 1997–1998 episodes was
up to US$9 billion for Indonesia2and around US$200 million for Singapore.8

POTENTIAL SOLUTION

The international relational and trans boundary cooperation with the neighboring nation is very
important when natural resources and environmental spaces are shared together. These relations are
helpful in promoting better relations and exchange knowledge and concerns which helps to reach a
collective decision to shared problems such as trans boundary pollution, allowing new opportunities
and ways to tackle these problems. Indonesia ratified this treaty in 2003. With Indonesia finally
coming on board, more concerned and major problems were to be tackled. One major shortcoming of
the tans boundary haze pollution treaty is that there is no sanction clause for failure to meet the
stipulated obligations – it is after all the ASEAN Way of resolving disputes diplomatically, through
consultation and negotiation. That is why Singapore has created its own haze pollution law which
seeks o take civil and criminal liability action against people responsible for such environmental
issues. The effective implementation of these measures may result in problems as this is exercise of
extra territorial jurisdiction and sovereignty issues.

Nevertheless, the action required for controlling the haze pollution in Southwest Asia are as follows-

1. The work should be done efficiently and information should be shared on timely basis. The
location of land clearance, burning areas etc should be identified. A haze movement should be
carried out among all ASEAN nation which would enable early detection of problem and
quick action could be taken. A clear example of this is an earlier decision to pursue setting up
the ASEAN Sub-regional Haze Monitoring System (HMS) for the above-stated purpose.

2. All laws and policies related to fire and pollution created by the states should be strictly
enforced and introducing more simplified procedures that enhance the cost effectiveness of
implementation. There should also be some kind of sanction provision for non-compliance.
ASEAN member countries have laws which prohibit / limit the burning off vegetation
especially during restrictive period of time. The major problem is that these laws are not
enforced properly and thus is not followed by any people. So, a mechanism should be
developed where agencies should be accountable to the government and proper work should
be done.

3. Various promotion relating the non-burning of lands and using the land for agricultural
purposes instead of putting that area on fire should be done and alternative for clearing those

8
Quah, E (2002), ‘Transboundary Pollution in Southeast Asia: The Indonesian Fires’, World Development, 3,
p.430.
 land should be suggested to those people which will be in favor of mutual interest and
collective gain.

4. Improving coordination among the ASEAN countries to develop good understanding, close
rapport, and active cooperation including enhancing capacity and awareness among all the
stakeholders like government, farmers, investors, private developers on the fire and haze
issue.

5. Educating ASEAN and other countries about the cause and effect of these problems.
Adopting eco-labelling standards for encouraging more sustainable consumption and
production processes by the public at large would go a long way in sending the right signals
to the producers of agricultural and forestry land to implement more environmentally friendly
non-burning methods of cultivation.

INTERNATIONAL ENVIRONMENTAL LAW STANDARDS

ASEAN agreement on trans boundary haze pollution is the outcome of joint action of ASEAN
member countries. This agreement addresses important aspects of fire and haze pollution and also the
steps to curb it. Article 3 of the agreement states that-

“the parties have […] the responsibility to ensure that activities within their jurisdiction or control do
not cause damage to the environment and harm to human health of other states or of areas beyond
the limits of national jurisdiction.”9

The above-mentioned provision supports the ‘no harm’ principle. This international law standard
states that states or countries are under an obligation of not to pollute the environment of another
country or any area beyond their territory through any of their means. The idea is that state shall not
permit any activity which may cause harm to another state as they are also responsible for global
environment. In context to haze pollution, it was clearly stated in the case of Trail-Smelter Case in
1941 that-

“no State has the right to use or permit the use of its territory in such a manner as to cause injury by
fumes in or to the territory of another or the properties of persons therein, when the case is of serious
consequence.” 10

The agreement also recognizes that the aims to reduce the haze and air pollution can only be achieved
through international efforts and cooperation. The goal that is pursued in the agreement is of
sustainable development that is not focusing only on haze pollution but overall development of that
area. The sovereign right of the states to exploit their natural resources is given in article 3 sub
clause1. It is a manifestation of the core environmental law principle, as exemplified by the ubiquitous
9
ASEAN Agreement on trans boundary haze pollution, article 3.
10
Trail Smelter Case (US/Can.) 1941: 716.
Principle 21 of the 1972 Stockholm Declaration of the United Nations Conference on the Human
Environment, which declares in almost identical wording that-

“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 them. jurisdiction or
control do not cause damage to the environment of other States or areas beyond the limits of national
jurisdiction”11

Thus, states are not completely free to act within their territory but they bear a responsibility to
preserve and protect natural resources from being exploited, not to harm the environment and not to
harm the health of the people living in that region. Researches have proven that sovereign function
and sustainable development cannot go hand in hand. As state will have to exploit the natural
resources which will not let sustainable development happen. The agreement therefore, mandated the
member countries to anticipate the damage and to take precautionary action for the same. The
internationally recognized precautionary principle is stated in Article 3, paragraph 3 of this
agreement.12

CONCLUDING REMARKS

Since, THPA came into force, some efforts have been made to struggle against the haze and air
pollution. The ASEAN member countries have achieved higher level of cooperation including the
simulation exercises and the practice of zero burning and controlled burning policies. In addition to
this, it has spread the information about haze all over the world.

However, the environmental crisis in 2013, has pointed out that there has not been much change in the
position of the haze. The situation has even worsened. The pollution reached to hazardous condition
in Indonesia, Malaysia and Singapore which may even be fatal in nature.

The main area of concern is that, now after all the ASEAN countries have ratified the treaty, will the
condition change and get better. after Indonesia has ratified the treaty, it is believed community
actions are taken and cooperation from all the states are asked for. This is still to see that what impact
this will have on the environment. But at least all ASEAN members have finally accepted that haze is
not a domestic issue but an international issue and this problem can only be solved through
cooperation among all the nation. The main hurdle in recognizing the haze problem has finally been
cleared.

11
Principle 21, Stockholm Declaration 1972).
12
However, the provision on the precautionary principle is in non-mandatory language: The parties “should”
take precautionary measures, as opposed to “shall”.
REFRENCES

1. Apichai SUNCHINDAH (2015) Transboundary Haze Pollution Problem in Southeast Asia Reframing
ASEAN’s Response, ERIA Discussion paper, December, 2015.

2. Heilmann, Daniel (2015) After Indonesia’s Ratification the ASEAN Agreement on Transboundary Haze
Pollution and Its Effectiveness as a Regional Environmental Governance Tool, in: Journal of Current
Southeast Asian Affairs, (2015), URN: http://nbnresolving.org/urn/resolver.pl?urn:nbn:de:gbv:18-4-9073

3. National library board (NLB) Singapore http://eresources.nlb.gov.sg/infopedia/articles/SIP_2013-08-

30_185150.html

4. Jack Greig (2016) Reducing Indonesia’s Transboundary Haze Pollution – A New Policy Approach,
Published 23 JUL 2016 http://www.internationalaffairs.org.au/news-item/reducing-indonesias-
transboundary-haze-pollution-a-new-policy-approach/

5. Jerger, David B. (2014), Indonesia’s Role in Realizing the Goals of ASEAN’s Agreement on Trans
boundary Haze Pollution, in: Sustainable Development Law and Policy.