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Issues 13

Image Consultancy by
Jaklin Juanis
Place: Cubic World

Almost every year we talk of air pollution known as HAZE emitting from Indonesia engulfing its neighbouring countries especially Malaysia, Singapore and Brunei. In recent weeks we are faced with similar predicament choking our children forcing schools to close. How long do we have to endure? Is there anything that could be done?

Mind you, forest fire in Indonesia that badly affected ASEAN in 1996 and 1997 brought about the ASEAN Agreement on Trans-boundary Haze Pollution which came into effect in 2003. However, the Treaty does not offer any cogent action to force Indonesia in any way to curtail the problem. In a nutshell, it is a toothless Treaty!

The Treaty does not provide any real action on member state in case of haze polluting other countries. It only encourages state members to improve their domestic governance with regards to forest fire. However, it does not specify any minimum international standard. Each state has absolute discretion to set its own preventive measures. The ASEAN way of non-interference and non-confrontation makes it impossible to take Indonesia to task. It makes it awkward for ASEAN members to force its hands in drafting legislation which is absolutely within the jurisdiction of the Indonesian legislature.

International decisions and documents such as the Trail Smelter Arbitration, the Rio Declaration and the Stockholm Declaration to name a few established a country’s responsibility to ensure that activities within its own territory do not transgress their neighbours.

Even if any state members are inclined to take action against Indonesia, which forum  

would that be? Unlike the European model of regional court, ASEAN does not have anyavenue except the International Court of Justice (ICJ). However, the voluntary nature of the ICJ would make it difficult for any aggrieved state members to bring action against Indonesia.

What then is left for us? To suffer quietly without any redress? Perhaps Malaysians should really take a closer look at any possible way to bring action against wrongdoings in countries that damaging our health and livelihood.  In America for example, the “Alien Tort” where individuals outside of America were partly successful in bringing actions against wrongdoings committed in America could be used as a precedent on international custom basis. In fact there is strong discussions on whether this principle can be extended to human rights violations and environmental damage. However, for a claimant to base on this principle he has to prove that there is some sort of damage to have occurred. There may be set back in bringing action based on this principle especially in establishing causation.  It may be argued that damage to a person’s health could have been caused by other pollutants within his own territory and not that of the neighbouring countries.

Another possible way of making wrongdoers from neighbouring countries is based on the principle of equal access and non-discrimination. This principle gives trans-boundary claimants the same rights as the citizens of country within which they are litigating. Legal action can be taken regardless of political boundaries and same standards of legality are applied to both domestic and trans-boundary harm. NGOs should look at this strongly for a test action on the basis of public interest litigation.