The influence of international law upon ASEAN approaches in addressing transboundary haze pollution in Southeast Asia.

AuthorNurhidayah, Laely

Transboundary haze pollution is the Association of Southeast Asian Nation's (ASEAN) greatest environmental challenge to date. (1) Haze pollution from land and forest fires, largely in Indonesia, has repeatedly caused havoc in Malaysia and Singapore. These fires have far-reaching impacts, from causing significant damage to biodiversity, health and local economies to contributing to global climate change. (2) The worst forest fires were during 2013 and 1997-98, yet occur annually during the dry season with varied intensity. Humans are responsible for most of the fires, by clearing forest and lands for plantations and agricultural activity, especially in peatland areas. (3) Given the ongoing threat of transboundary haze pollution, its management and prevention has been listed as one of ten priority areas of regional importance for ASEAN environmental cooperation for 2009 to 2015. (4)

Finding a solution to transboundary pollution requires international and regional environmental law mechanisms, in addition to domestic legal systems that are more effective. (5) As international law provides frameworks and mechanisms for an appropriate response to transboundary haze, this article addresses two frameworks: customary international law and treaties. (6) The former involves the state responsibility principle, which comprises the duty to prevent transboundary pollution and to compensate accordingly. Implementation of the state responsibility principle is particularly problematic in Southeast Asia, as state sovereignty is strongly embedded in the ASEAN Charter. (7) A further complication is the so-called "ASEAN Way", a term that describes the preference of ASEAN countries for non-interference in each other's domestic affairs, the use of consensus decision-making and cooperative programmes, and national implementation rather than reliance on a strong region-wide agency or bureaucracy. (8)

The second framework for addressing haze pollution is Multilateral Environment Agreements or MEAs, namely treaties on atmosphere and biodiversity. These include the United Nations Framework Convention on Climate Change (UNFCCC), (9) and its Kyoto Protocol, (10) the Convention on Biodiversity (CBD), (11) and the Ramsar Convention. (12) MEAs are international frameworks, which can indirectly support the efforts in combating forest fires at the national level. However, there are constraints on the domestic implementation of MEAs in Southeast Asia, namely, overlapping domestic legal frameworks, lack of financial and human resources, and capacity building.

Based on the two international legal frameworks mentioned above, this article will firstly examine the extent to which international law has influenced ASEAN approaches in addressing transboundary pollution in the region. Secondly, it will assess whether international law has successfully contributed to regional environmental solutions. This article argues that further implementation of international law at the regional level is a necessary step forward.

International Legal Regime Addressing Transboundary Air Pollution

Transboundary air pollution has long been a concern of international law. (13) It has remained high on the environmental agenda in many regions including Europe, North America and Southeast Asia. (14) As transboundary air pollution is now a global threat that is contributing to issues such as ozone depletion and climate change, addressing it requires international cooperation. International law has responded to this threat by developing customary international law and MEAs on atmosphere and biodiversity as respective frameworks for its management. For customary environmental law, the principle of state responsibility for transboundary environmental harm, or the "no harm" principle, is particularly significant. Treaties also play an important role, especially those relating to atmosphere and biodiversity. Although these MEAs do not directly address land and forest fires, they can help to provide a framework for countries to protect their natural resources, prevent the transboundary spread of pollution and avoid international conflict. (15)

Customary International Law: The State Responsibility Principle

The main obligation under international law on transboundary pollution is that a state should not cause harm to other territories. (16) The International Court of Justice (ICJ) regards this principle as customary international law, (17) thus creating binding legal obligations for states which can be held responsible for their breach. (18) As the state responsibility principle has both preventative and deterrence elements, it can ensure that states do not cause environmental damage to other countries and pay compensation for any damage caused. Depending on the legal context, this principle could effectively address the ASEAN transboundary haze pollution problem.

Principles of no harm and state responsibility for environmental harm are derived from the decision of the Trail Smelter Arbitration in 1941. Two states, the United States and Canada, were involved in this case over transboundary fumes which had caused damage to the property of apple growers in Washington State in the United States. In the decision, the Arbitral Tribunal held that

under the principles of international law, as well as of the law of the United States, no state has the right to use of its territory in such a manner as to cause injury by fumes in or to the territory of another or properties or person therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. (19) Law on transboundary pollution was stimulated by, and has developed, since this seminal decision. Alexander Kiss and Dinah Shelton state that the Trail Smelter case is regarded as "having laid out the foundations of international law at least regarding transfrontier pollution". (20) Others argue that the Trail Smelter Arbitration contains substantive customary law rules regarding transboundary air pollution disputes and has gained importance as a legal precedent for diplomatic solutions to such disputes and possible future international litigation. (21) Finally, Rebecca Bratspies and Russel Miller point out that two core principles of international law were born from this decision: "first, ... States have a duty to prevent transboundary environmental harm, and second they have an obligation to pay compensation for the harm they cause". (22)

Following on from the Trail Smelter Arbitration, the obligation to cause no harm to other territories was enshrined in the Stockholm Declaration 1972 (Principle 21) and the Rio Declaration 1992 (Principle 2). The latter stated this renowned "no harm" principle as follows:

States have, in accordance with the Charter of the United Nations and the principle 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 of other States or of areas beyond the limits of national jurisdiction. (23) According to Sanford Gaines, the term "responsibility" in Principle 21 of the Stockholm Declaration implies the duty to provide reparation or compensation. (24) Yet he argues that, as the term is undefined, the duty to compensate remains a hollow concept. (25) Similarly, the Organisation for Economic Co-operation and Development (OECD) considers the word "responsibility" in Principle 21 of the Stockholm Declaration as not a clearly defined legal concept. (26) However, the OECD points out that combined political, ethical and legal preoccupations have given two meanings to the principle: first, preventing damage to the environments of other states; and second, the compensation of such damage to prevent it from occurring. (27) Thus, state responsibility and liability are important instruments of redress within the system of environment protection, especially in transboundary pollution. (28)

Yet there is still potential for conflict between the two important principles of "sovereignty" and "responsibility". The Westphalian system enshrines the traditional principle of state sovereignty, but this has evolved over time. Philippe Sands argues that Principles 21 and 2, which reflect the general rule of customary international law, signal that the right of states over their natural resources in the exercise of permanent sovereignty is not unlimited. (29) Furthermore, Allan Rosas goes so far as to suggest that, "Westphalia's heritage, that is the inter-State system of sovereign and equal nation States, should be destroyed to save the world and common heritage of mankind". (30) However, his argument may be exaggerated, as achieving these goals probably relies on balancing state sovereignty and state responsibility. The responsibility principle has also evolved since it first emerged. For example, it generally provides a more balanced approach which requires states to undertake due diligence to prevent significant harm, or to reduce or mitigate it. (31) The duty to make reparation is owed in principle only if a state fails to fulfil its obligation of due diligence. Consequently, the focus is more on pollution prevention and control and the duty to cooperate with the affected state. There has been less emphasis on creating compensation schemes to pay victims of pollution. Likewise, state sovereignty is constantly under challenge from other principles of international law, (32) such as: state responsibility, sustainable development, good neighbourliness, common heritage of mankind, the obligation not to cause environmental harm, and inter- and intragenerational equity. At most, it provides a legal basis for bringing claims under customary law by asserting liability for environmental damage. (33)

The law on "state responsibility and liability" has also developed as a result of...

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