The transboundary haze and the international law

The transboundary haze and the international law

The fires in Sumatra have choked Malaysia and Singapore, causing the air to be hazardous to the health of their citizens.

The increase in hotspots and the ineffectiveness of the efforts by Indonesia to reduce them has frustrated these ASEAN neighbours. The fundamental principle of sovereignty in international law means that they, without the consent of Indonesia, cannot attempt to put out the fires in Sumatra.

However, the law does not leave them without recourse. If the perpetrators of the fires can be identified, they could be subject to legal action. In domestic law, if the owner of a house were to start a fire, whether on purpose or negligently, the owner would be liable for any damage caused to his neighbours.

A similar doctrine has also been developed in international law. The 1941 Trail Smelter dispute involved a smelter in Canada whose smoke spread over the border causing air pollution in the US. An international tribunal found that Canada was responsible for environmental damage caused by the transboundary pollution. This is a fundamental principle of international environmental law - that activities in a state's territory should not cause transboundary harm.

The main culprits in the present case are the plantation owners, who have chosen to clear land on the cheap by burning. They are the ones starting the fires without regard for the damage caused to their own citizens and their neighbours.

While a civil lawsuit against them may be an option, a more immediate alternative would be a citizens' boycott of products made by plantations that clear land by burning.

As this would not be a governmental measure, it would not affect trade obligations. The owners of the plantations would then have to prove to the public that they do not engage in such practices. This has in the past been effective in hitting corporations where it hurts - their bottom line.

Governments could also take action against the plantation owners. They could ban the import of their products by using the "necessary to protect […] health" exception found in trade agreements. It would have to be proven that the products were linked to the fires and that this was the "least trade restrictive" solution. Governments could also enact criminal laws against such acts of pollution.

Most laws are territorial. However, international law has also recognised the effects doctrine allowing for extraterritorial jurisdiction if the actions affect the state asserting such a jurisdiction. If such laws were passed, governments could prosecute the plantation owners for activities carried out outside their territory.

A contributing factor to the haze was the slow response of officials. Several Indonesian ministers appeared to be in denial and made unhelpful remarks. Eventually, President Susilo Bambang Yudhoyono stepped in, ordered immediate water bombing of the fires and apologised to his ASEAN neighbours. His actions were commendable and we thank him for his statesmanship.

Indonesia should accept M'sian help
Click on thumbnail to view (Photos: SwitchUp.tv, The Star, AFP, Reuters)

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