Why Asean is still failing on transboundary haze

 

 Malaysia classifies Air Pollution Index (API) readings above 300 as hazardous, while a reading of 500 triggers a state of emergency.

The Prime Minister’s Office (PMO) recently warned that air quality remains at very unhealthy levels in several areas, particularly the Serian and Samarahan districts.

This recurring haze is caused primarily by smoke drifting from human-induced land clearing and open peatland burning in Indonesia.

This transboundary crisis echoes former National Aeronautics and Space Administration (Nasa) scientist James Hansen’s historic 1988 congressional testimony, where he stated with "99 percent confidence" that spikes in global temperatures are driven by human activity.

Since the pollution originates in one country but impacts Malaysia and other Asean nations, it remains a persistent challenge for international environmental law.

Consequently, the crisis falls squarely within the purview of international environmental law.

The foundational legal precedent governing such disputes is the landmark Trail Smelter arbitration between Canada and the United States.

This case crystallised the "harm principle" (sic utere tuo ut alienum non laedas) - as in “Use your own property in such a way that you do not injure another's”.

It is a customary international law doctrine stipulating that states bear a sovereign responsibility to ensure that activities within their borders do not inflict transboundary environmental damage on neighbouring nations.

Seeking to operationalise these legal norms within Southeast Asia, member nations sought a coordinated institutional response.

Asean’s treaty on haze

This culminated in the drafting of a dedicated multilateral treaty, namely the Asean Agreement on Transboundary Haze Pollution (AATHP), which was signed in Kuala Lumpur as early as 2002.

Signed in June 2002 and implemented in 2003, the AATHP was designed to shield nations from the fallout of transboundary pollution.

Unfortunately, it suffers from a common diplomatic ailment: an abundance of lofty rhetoric coupled with a shortage of action. Ultimately, a treaty is defined by its enforcement, not the sweet words drafted in its text.

Article 3 of the AATHP solidifies the fundamental international environmental law principle of "no harm”, which prohibits states from damaging the environment of other nations or areas beyond national jurisdiction.

By signing and ratifying the agreement, Malaysia has legally bound itself to the commitments outlined in Article 4. This provision explicitly mandates that all member states take necessary legislative, administrative, or other measures to implement the treaty.

The use of the word "shall" in Article 4 removes any ambiguity, making these implementation steps strictly compulsory.

Consequently, Malaysia is under a binding international obligation to the Asean community and the global stage to enact domestic legislation specifically addressing transboundary haze pollution.

Persistent problem

In 2023, the Indonesian media outlet The Jakarta Post published my article, "After 21 years, Asean transboundary haze pollution laws still not forthcoming," which was also picked up by several local media platforms.

The piece was originally adapted from an academic paper I wrote during my master's programme on international law.

In the said paper, I wrote that by signing and ratifying the AATHP, Malaysia has committed to an international obligation to legislate domestic laws controlling transboundary haze.

Under Article 4(3) of the 2002 agreement, member states are required to implement legislative and administrative measures to prevent, monitor, and mitigate land and forest fires.

However, despite being primary victims of this environmental issue, Malaysia and Indonesia have failed to enact domestic transboundary haze laws for over two decades.

To date, Singapore remains the only Asean nation to have passed such legislation, doing so with its Transboundary Haze Pollution Act in 2014.

Many environmental law experts argue that Asean leaders - including those in Malaysia - lack seriousness in tackling transboundary pollution. They attribute this failure to a complete absence of real transparency.

Furthermore, critics contend that without domestic laws implemented impartially, this issue will persist, leaving politicians to continuously play the blame game in the future.  Mkini

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HANIPA MAIDIN is a former deputy minister of law.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT