The 'Burning' Problem of Air Pollution in South East Asia
Will the ratification of the ASEA Agreement on Transboundary Haze Pollution from 2002 fix South East Asia's haze problem.
Nelly Stratieva holds a Master’s degree in EU Law and has coordinated trade and sustainability projects in South East Asia over the past three years.
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|BY NELLY STRATIEVA | April 18, 2014|
Smoke from land clearing fires in Indonesia causes hazardous haze pollution in South East Asia every year. Record high levels of air pollution caused by haze were reached in June 2013 in Singapore, Malaysia and Indonesia. In response to regional pressure after the latest haze crisis, Indonesia has finally agreed to adopt the ASEAN Agreement on Transboundary Haze Pollution from 2002. However, given the pact’s weak compliance provisions, will the ratification really be a game-changer in South East Asia’s struggle with haze?
THE HAZE CRISIS
In June 2013 South East Asia was suffocating in a cloud of record-breaking haze pollution. The haze, toxic smog caused by fires to clear land for agriculture in Sumatra, Indonesia, exceeded almost three times the hazardous limit for air quality. For a week the most affected areas of Singapore, Malaysia and Indonesia resembled a post-apocalyptic scene – people only dared go out with face masks, schools were closed, the economy took a hit as businesses suspended work, events were cancelled, tourists stayed clear of the area and hospitals faced a surge of respiratory illnesses. The fires also impact climate change because they produce large amounts of greenhouse gas (GHG) emissions from the burning of carbon-rich peatland and forests. To illustrate the magnitude of the problem: the land-clearing fires which cause transboundary haze are also the biggest contributor to Indonesia’s overall GHG emissions. 2013 may have been the worst haze crisis in the region’s recorded history, but similar occurrences are the norm during ‘haze season’ every year since the 1980s.
Kuala Lumpur at the peak of the haze crisis in 2013. Image Credit Nelly Stratieva
THE ASEAN AGREEMENT ON TRANSBOUNDARY HAZE
In 2002, ASEAN member countries addressed the environmental issue by adopting the world’s first regional agreement against haze – the ASEAN Agreement on Transboundary Haze Pollution. The Agreement is a legally binding regional environmental treaty that aims to prevent and mitigate haze pollution ‘through concerted national efforts and intensified regional and international cooperation’. Unfortunately, two big problems reduce the effectiveness of the Agreement. The first is that Indonesia, the only ASEAN member state yet to ratify the Agreement, is also the main polluter. The second problem concerns the design of the Agreement, which has a weak mechanism for dispute settlement and punishing non-compliance. The Agreement does not prescribe specific sanctions against a signatory country that has infringed its obligations. Instead, Article 27 of the Agreement feebly states that any disputes over non-compliance ‘shall be settled amicably by consultation or negotiation’. In other words, enforcing the Agreement, even over countries that have ratified it, remains a matter of diplomacy, rather than law. It would not provide suffering countries and people with new legal remedies in future outbreaks of haze pollution.
WHO’S WHO IN THE HAZE
The fact that the transboundary haze problem is not resolved for almost three decades is a testament to the complexity and magnitude of the interests and issues behind it:
At the Producer Level
Large producers in Indonesia – most are controlled through a joint-venture set-up by their mother-companies in Singapore and Malaysia. Allegedly get away with illegal burning practices through the network of patronage politics with the Indonesian government.
Small-scale producers in Indonesia – regularly practice the cheap, traditional slash-and-burn method of agriculture and sell their produce to the big palm oil companies. It is difficult to oversee or control the practices of these farmers because they are numerous and fragmented.
At the Government Level
Malaysia and Singapore – their governments are also blamed for too close links with the national palm oil companies. This can be excused as an attempt to protect local economic champions and maintain the countries’ positions in the strategic palm oil industry. On the flipside, the leniency of the Malaysian and Singaporean governments towards misdeed of national companies perpetuates the haze problem.
INDONESIA’S RATIFICATION – SAME SAME BUT DIFFERENT?
Indonesia has expressed willingness to adopt the haze pact although the exact timeframe for it is yet unclear. What, if anything, can we expect to change as a result of this ratification? Here are three possible scenarios:
1) Nothing changes in practice, following Indonesia’s ratification of the ASEAN Haze Agreement. The environmental pact has been designed to faithfully follow ASEAN’s founding principles of non-intervention, voluntary cooperation and focus on diplomacy over strong legal mechanisms. In the absence of sanctions the Indonesian government can continue to pick-and-choose to what extent it cooperates with neighbouring countries. Enforcement of the state obligations under the Agreement, such as duty to cooperate and due diligence to prevent fires, would remain a diplomatic endeavor.
2) The ratification might also be a step in the incremental evolution of the Haze Agreement. The signing of the Agreement in the early 2000s was a landmark in ASEAN cooperation on environmental problems. However, at the stage of its inception, the Agreement was not adopted by one of the main actors – Indonesia. Now, over a decade later, in the second stage of the Agreement’s evolution Indonesia is willing to ratify it. Perhaps in a next step, at an opportune time in the future, the ASEAN members most affected by the haze will attempt to strengthen the Agreement’s compliance provisions.
3) Indonesia’s ratification might pave the way for a multi-level action to ease the haze problem through a combination of international technical cooperation and national legal action against culprit companies. The targeted corporates are big palm oil producers headquartered in Singapore and Malaysia who own large plantations in Indonesia. They are blamed for allowing clearing-by-burning farming practices in their production abroad. A problem currently is that the crucial collection of evidence ‘at the scene of the crime’ in Indonesia falls outside the Singaporean and Malaysian jurisdiction. Singapore’s Advocate-General has already announced his intention to introduce new extraterritorial laws that make Singaporean palm oil companies accountable for their subsidiaries’ actions in Indonesia. If Jakarta adopts the Haze Agreement, that would strengthen the sharing of technical data under the umbrella of ASEAN cooperation. The data exchange can facilitate collection of evidence for criminal or administrative cases against companies in Singaporean courts. This strategy can improve the accountability of the big players in the region’s palm oil business.
The commitment of policy-makers to tackle the complex issues surrounding the haze problem is still unclear. So is the feasibility of the outlined scenarios. One thing is certain though - haze season 2014 is approaching.