June 29 Use the law to fight transboundary haze

June 29 Use the law to fight transboundary haze

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

The increase in the number of hot spots and the ineffectiveness of efforts by Indonesia to reduce them has frustrated these Asean neighbours.

The fundamental principle of sovereignty in international law means that they, without Indonesia's consent, cannot try 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 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 Canada 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 is a citizens' boycott of products made by plantations that clear land by burning.

As this would not be a governmental measure, it will 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 will have to be proven that the products were linked to the fires and that this was the "least trade restrictive" solution.

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