Southeast Asia’s toxic haze spurs calls for legal action against polluters

Kuala Lumpur, Malaysia – As toxic haze from Indonesia's worst wildfires in a decade clouded skies throughout Malaysia and Singapore over the past two months, a growing clamour of voices has demanded legal accountability.

Key points

• On paper, Southeast Asian countries are committed to working together to prevent cross-border air pollution under the ASEAN Agreement on Transboundary Haze Pollution, signed in 2002.
• Mohd Hazmi Mohd Rusli, an associate professor and legal expert at Universiti Sains Islam Malaysia, remarked Southeast Asia's long-standing emphasis on consensus and noninterference has hampered action.
• Matthew Baird, director of the Asian Research Institute for Environmental Law, remarked that stronger political will in the region was needed above all else.
• Indonesia's then environmental minister, Siti Nurbaya Bakar, accused Singapore of not showing "mutual respect", a suggestion denied by authorities in the city-state.
• Nevertheless, the agreement does not contain provisions for enforcement by a judicial body such as the International Court of Justice.

In theory, a patchwork of domestic and international laws makes it feasible for Southeast Asian governments to hold polluters responsible for cross-border haze, most of which has been blamed on land clearing by Indonesian palm oil plantation owners.

In practice, sensitivities around national sovereignty, a lack of enforcement mechanisms, and the practical challenges of evidence collection create legal action challenging, if not infeasible.

Meanwhile, the legally binding treaty commits the 11 members of the Association of Southeast Asian Nations (ASEAN) to tackle haze, a recurring matter for decades, through "concerted national efforts and intensified regional and international co-operation".

Nevertheless, the agreement does not contain provisions for enforcement by a judicial body such as the International Court of Justice. It requires all parties to consent to its jurisdiction, and disagreements over interpretation and application can only be settled through negotiation. Implementation of the treaty has additionally moved at a snail's pace.

Meanwhile, the treaty's coordinating office, located in the Indonesian capital, Jakarta, only opened this April, almost a quarter-century after it was envisioned.

"For decades, the response to haze has largely focused on diplomatic engagement, emergency firefighting, and measures to protect public health, " Heng Kiah Chun, a regional campaign strategist for Greenpeace Southeast Asia, informed Al Jazeera.

"While these efforts are necessary, they have not sufficiently addressed the underlying causes, including forest and peatland destruction, unsustainable land-use practices and inadequate corporate accountability, " Chun remarked.

Malaysia and Singapore, where haze has propelled major population centres to the top of global tables for poor air quality, have refrained from criticising Indonesia, instead offering assistance to fight the fires. It are estimated to have burned more than 2 million hectares (regarding 5 million acres) of land in the archipelago.

Jakarta has given mixed signals on accepting outside assistance, with authorities vacillating between welcoming the offers and insisting they can handle the fires themselves.

"Economic interests and diplomatic considerations also play a role, " Rusli informed Al Jazeera.

"Malaysia and Singapore have traditionally favoured diplomatic engagement over direct confrontation in managing sensitive bilateral and regional issues, reflecting ASEAN's broader preference for consultation and consensus."

Rather than negotiate new legal frameworks, ASEAN should strengthen its existing treaty "through independent monitoring, clearer compliance procedures, greater corporate accountability and stronger domestic enforcement", Rusli continued.

With diplomatic efforts having little impact, attention has increasingly turned to the possibility of countries using domestic laws with extraterritorial reach, an approach pioneered by Singapore.

Under the 2014 Transboundary Haze Pollution Act, Singaporean authorities are empowered to prosecute polluters for activities taking place overseas, with violators liable for fines of 100, 000 Singapore dollars ($78, 300) a day up to a maximum of 2 million Singapore dollars ($1.56m).

In practice, the act additionally enables the city-state's National Environment Agency to problem notices directing firms to cease burning on their lands.

For context, the agency has issued such notices to 10 Indonesia-based firms during this year's wildfire season. But to date, no firm has actually been prosecuted under the Singaporean law.

While the legislation allows authorities to identify suspected polluters through meteorological data, satellite imagery, and maps, prosecutors would probable struggle to establish guilt beyond a reasonable doubt in any case without firsthand evidence from Indonesia.

"Such direct evidence can only be obtained if the Indonesian authorities themselves investigate and take action against these very companies and share their evidence with Singapore, " Alan Khee-Jin Tan, an expert in environmental law at the National University of Singapore (NUS) Faculty of Law, informed Al Jazeera.

"The most likely 'defence' the companies will take is that the fires started outside their concessions and spread into their holdings."

Malaysia's administration has stated it could consider legislation similar to the Singaporean law, but cautioned that implementation would be tough.

In 2023, the administration abandoned proposals for a law against cross-border haze, citing the difficulty of obtaining evidence for prosecution. Legal action additionally risks inflaming diplomatic tensions.

In 2016, Singapore and Indonesia became embroiled in a diplomatic dispute after the city-state's environmental agency attempted to summon the director of an Indonesian firm linked to the haze for questioning.

Indonesia's then environmental minister, Siti Nurbaya Bakar, accused Singapore of not showing "mutual respect", a suggestion denied by authorities in the city-state. Tensions have flickered during the latest haze season, too.

While pledging to expose foreign firms that he maintained were additionally responsible for the crisis, on Wednesday, Indonesian President Prabowo Subianto hit out at countries that "like to insult" his nation over the fires.

Prabowo remarked his administration took the matter seriously, with authorities arresting individuals identified to have began fires, but it would "step up our response".

For context, the Indonesian leader's remarks came after a Malaysian politician last week remarked that Indonesia should be treated as an "outcast" within ASEAN over the haze.

According to NUS law expert Tan, while Singaporean authorities could launch a test-case prosecution against Indonesian businesses without Jakarta's assistance, they are unlikely to do so unless Indonesian authorities act first.

"Practically, they are likely to proceed only against those companies which the Indonesian authorities have themselves clearly identified and charged as perpetrators, " he remarked, adding that a failed prosecution could additionally expose the legislation as toothless.

"Otherwise, any action that Singapore takes would appear to the Indonesians to be unilateral, and could be politically controversial."

Eugene Tan Kheng Boon, an associate professor of law at Singapore Management University, remarked Indonesia's failure to take stronger action was the ultimate stumbling block to a resolution, but countries could additionally strengthen their own laws and regulations.

"This could include requiring commodities such as palm oil sold in the region and used in other products to be certified to be sustainably sourced, " Tan informed Al Jazeera.

"Customers in the region can also boycott purchasing items from companies that are responsible for the haze, " he remarked.

"Banks that finance these polluters should also come within the enforcement crosshairs."

"Governments really have to sit together and work on really good strategic options, like the Chinese government did for air pollution in Beijing, where they were able to reduce air pollution – but it took 30 years and a lot of money, " Baird informed Al Jazeera.

"Governments in Southeast Asia have to do it, and they have to get companies to change their behaviour, and that takes time, effort, and probably a lot of litigation, " Baird.

This would involve "holding directors to account, sending directors to jail, holding companies to account, and making sure that they fulfil obligations", he continued.

In short, southeast Asia's toxic haze spurs calls for legal action against polluters is the central thread here, and readers can expect follow-up reporting as the picture becomes clearer.