Contributed By Roger Chan Weng Keng, Chairperson of the Bar Council Environmental and Climate Change Committee
Malaysia is in the middle of an environmental haze crisis for weeks. The air quality no less has deteriorated to such an extent that it is unhealthy to venture outdoors. The word crisis is deliberately used to show that if this perennial problem is not handled properly it may spiral out of control to become an environmental catastrophe. The haze by the way is only an individual environmental issue, discounting all other sources of pollution such as those emitted daily from industries, private and commercial vehicles, that most of us have to put up with daily.
The haze is not peculiar to the South East Asian nations alone as Japan experiences wind–blown haze from the factories in mainland China, and even Hong Kong encounters haze from industrial activity in the nearby Shenzhen region. But that is no reason to be smug. The haze that we experience here in the ASEAN region, though different in particulate matter, is affecting the health of over one hundred million people almost perennially and is substantially damaging the environment.
The Regional and International Dimensions of the Haze Problem
The haze originates from Indonesia. It is due to open burning of forest and peat–land. Open burning can be controlled through deployment of water bombers whereas peat–land fires are more difficult to control as these fires are subterranean in nature. As the haze is carried by the seasonal monsoon winds, the haze problem assumes both regional and international dimensions. Here is where domestic environmental laws are limited in their capacity to deal with the problem. We need some kind of regional environmental mechanism in place and this brings into focus the ASEAN Transboundary Haze Pollution Agreement (“THPA”).
The ASEAN Transboundary Haze Pollution Agreement (“THPA”)
The THPA was signed by all ASEAN member states on 10 June 2002 in Kuala Lumpur during the World Conference on Land and Forest Fire Hazards. It came into force on 25 November 2003, sixty days after the deposit by Thailand of the 6th instrument of ratification by Thailand with the Secretary–General of ASEAN. But strange to say it took another eleven years for the tenth and final ASEAN member, Indonesia, to ratify the THPA on 20 January 2015.
That being the case, it does not mean that nothing was done about the haze problem over the years before the THPA. In fact a lot has been done; the only question remaining is whether those efforts were sufficient or effective. It started in 1985 where ASEAN began to acknowledge the haze problem by adopting the Agreement on the Conservation of Nature and Natural Resources, which included a reference to air pollution and transfrontier environmental effects. This was followed the Kuala Lumpur Accord on Environment and Development 1990 and the Singapore Resolution on Environment and Development 1992, both making references to transfrontier pollution. Then ASEAN member states adopted the Cooperation Plan on Transboundary Pollution in 1995, as a result of which a Haze Technical Task Force (“HTTF”) was set up to put into operation the measures included in the cooperation plan, one of which was the activation of an alert system.
In 1997, the haze in ASEAN was edging to catastrophic proportions. The ASEAN Ministerial Meeting on Haze was established the same year to give haze a special importance in the organisation. The Meeting formulated the Regional Haze Action Plan (“RHAP”) whose primary objectives includes inter alia, establishing operational mechanisms to monitor land and forest fires, and strengthening of regional monitoring mechanisms. In 1998, the ASEAN Summit issued the Hanoi Plan of Action which called for the full implementation of the RHAP by 2001, and in 1999, ASEAN adopted a zero–burning policy, following which dialogues and workshops were convened to promote such policy among plantation owners and timber concessionaires. However, there was no regional enforcement mechanism and RHAP was not binding on ASEAN states.
Hence, the THPA was proposed in 2001 with the goal of having a full–fledged treaty with binding obligations to solve the transboundary haze issue.
Some Important Features of the THPA
Is the THPA consistent with the “no harm” principle under International Environmental Law? This principle was articulated in clear terms in the famous Trail Smelter Case 1941 following complaints from the residents of the State of Washington of sulphur dioxide emissions from a smelter in Trail, British Columbia. The arbitral tribunal enunciated the principle that no state has a right to permit the use of its territory in such a manner as to cause injury by fumes to the territory of another. The THPA addresses crucial issues of monitoring and prevention that relate to haze pollution through Article 7 and 9 respectively. These Articles use of the word “shall” reflect a commitment to the “no harm” principle, and that sounds encouraging.
Article 3 Para 1 states: “The Parties 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 and developmental policies, and 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”. The wording is a reflection of the core environmental law principle under Principle 21 of the 1972 Stockholm Declaration of the United Nation Conference on Human Environment. States therefore are not free to act on their territory but bear responsibility to ensure that activities within their jurisdiction do not cause damage to the environment and harm to human health of other states.
Article 5 of the THPA provides for an ASEAN Centre whose purpose is to facilitate cooperation and coordination among the Parties in managing the impact of land and/or forest fires in particular haze pollution arising from such fires. However, the ASEAN Centre shall work on the basis that the national authority will act first to put out the fires. When the national authority declares an emergency situation, it may make a request to the ASEAN Centre to provide assistance. So the ASEAN Centre cannot act on its own accord if a member state chooses to act unilaterally though the Centre can be an effective tool if assistance is requested.
Apart from the ASEAN Centre, request and offer of assistance may not be a smooth process in view of the wording of Article 12 (2) which states that “ Assistance can only be employed at the request of and with the consent of the requesting Party, or, when offered by another Party or Parties, with the consent of the receiving Party.” It means that assistance can be refused even if a member states choose to offer.
The Failure of the THPA in Addressing Haze Pollution
In the last haze crisis of 1997, unprecedented damage for the region was estimated at USD 9 billion. The losses arose from the destruction of crops, land and decline in tourism and foreign investment not to mention loss of biodiversity, reduced photosynthesis and impairment in the state of health of hundreds of millions of people. How much damage this region will sustain this time around is left to be seen.
Judging from the present crisis, the THPA has failed to response swiftly. Though the THPA refers to fundamental principles of international environmental law such as the no harm rule and the precautionary principle, no swift concerted regional action seems to have been taken under the THPA. On the other hand, a case can be made out against Indonesia (the source state) in transgression of international environmental law. Yet, again no action, and “why is that so?” one may ask. We only have to examine the root cause.
The Root Cause of Failure of the THPA
Many reasons can be given why the THPA fails and the list seems to be long. We need not go into that. It is sufficient and relevant to identify the root cause that represents a major stumbling block for a regional treaty so painstakingly written, to be effective and it is this.
There is the ASEAN way of doing things when it comes to regional affairs. This ASEAN way is normally prescribed in the various ASEAN treaties including the 1967 Bangkok Declaration. It means a set of norms to search for consensus, the principle of non–interference in internal affairs of a member state. It also means politeness and also non–confrontational in attitude and approaches, behind–the–door discussions, and informal and non–legalistic procedures. Hence it is not surprising that no formal sense of urgency is felt at least at the regional level.
To elucidate the point further, diplomatic tension occurred in 2006 when Singapore raised the haze issue at the General Assembly of the United Nations, calling for international support and expertise. Indonesia reacted by stating the move as tantamount to interference in the domestic affair and sovereignty of Indonesia. Singapore however contended that there was intrusion in its domestic environment and pointed to the Article 2 of the ASEAN Transboundary Haze Pollution Agreement (“THPA”) which mentions that transboundary haze pollution should be prevented and monitored by domestic effort as well as international cooperation.
Can we rely on ASEAN and the governments to solve the haze pollution problem for us?
Not totally. Besides to be realistic, an individual environmental issue like the haze cannot and should not be treated in isolation. It fits into the larger context of Climate Change and Goals of Sustainable Development, and that context is already indicating a very frightening picture. The problem is too important to be left to ASEAN and the respective governments alone. In the final analysis, we are the ones who are breathing in the haze. We have to take action ourselves too in terms of awareness campaigns, public or strategic interest litigation, education, name–and–shame campaign, peaceful protests and assemblies and refrain from unethical purchases until the whole idea of environmental protection sinks in. The people of this region have a right to environmental justice for themselves and posterity, and to protection from those who are incrementally destroying the world. Just about a week ago in the Riau province of Indonesia, it was reported that the Air Pollutant Index (“API”) hit 1000 points. That is more than three times the hazardous level of 300 points. Who will choke to death first?
Roger Chan Weng Keng is the Chairperson of the Bar Council Environmental and Climate Change Committee. This article is the personal opinion of the writer and does not necessarily represent the views of the Bar Council.