Singapore's efforts to bring a director of an Indonesian company to court under its Transboundary Haze Pollution Act of 2014 has caused tensions between the two countries. Indonesia is reportedly embarrassed on grounds of a "derogation of sovereignty" and the blow dealt to its "national dignity" and "pride".
At the heart of Indonesia's unhappiness are the principles of sovereignty and non-intervention, by which countries do not become involved in each other's business or problems. And yet, the sovereignty principle is anachronistic if applied to the hilt in the context of cooperation between states to prevent, for example, environmental degradation.
I would like to propose an alternative approach to resolving the haze problem which entails a shift in thinking. It is an approach that would put into legal effect the wise counsel of Singapore's first foreign minister S. Rajaratnam, which he articulated back in 1967 at the first meeting to mark the establishment of Asean. He had said then: "It is necessary… if we are really to be successful in giving life to Asean to marry national thinking with regional thinking... That is a new way of thinking of our problems." His was a call to place national thinking (sovereignty) within the context of regional interests.
One way to do so is to frame the haze issue as one of "disaster management". Doing so would place it under the Asean Agreement on Disaster Management and Emergency Response (Aadmer) of 2005, which entered into force on Dec 24, 2009 after ratification by all 10 member states. Indonesia and the various countries affected by the regional haze are party to this agreement.
It is significant that while Indonesia readily ratified Aadmer, it took 12 years to ratify the Asean Agreement on Transboundary Haze Pollution(AATHP) of 2002. Why? One of the reasons was the perception that AATHP was aimed at blaming Indonesia for the forest fires. Hence, the defensive stance was to apply "sovereignty" to the hilt, and any assistance from Asean member states became an affront to its national pride. Far from any derogation of its sovereignty, Indonesia should take the opportunity to demonstrate that the sovereignty of all Asean member states - now an integrated community - can emerge intact and strengthened from working together to tackle the haze.
Aadmer was born out of the 2004 Asian tsunami disaster in which Indonesia was greatly devastated. Indonesia did not raise any issue of sovereignty when assistance was rendered by other countries, including Singapore. A reading of this agreement finds that the haze fits its definition of a "disaster" as "a serious disruption of the functioning of a community or a society causing widespread human, material, economic or environmental losses".
Few would dispute that the haze has caused widespread pollution to other Asean member states - Singapore, Malaysia, Brunei, the Philippines and even Thailand - and has resulted in economic loss and ill effects on the health of their citizens.
Aadmer aims "to achieve substantial reduction of disaster losses in lives and in the social, economic and environmental assets of the Parties..."
The Asean Agreement on Disaster Management and Emergency Response was born out of the 2004 Asian tsunami disaster in which Indonesia was greatly devastated. Indonesia did not raise any issue of sovereignty when assistance was rendered by other countries, including Singapore. A reading of this agreement finds that the haze fits its definition of a "disaster" as "a serious disruption of the functioning of a community or a society causing widespread human, material, economic or environmental losses".
It sets out in Article 4(a) how countries are to work together to achieve this aim, stating that they "shall cooperate in developing the implementing measures to reduce disaster losses…" This means that when it comes to the haze, Indonesia has a duty to cooperate. Article 4 also states that when a disaster is likely to cause possible impacts on other member states, the parties shall "respond promptly to a request for relevant information sought by a Member State or States that are or may be affected by such disasters, with a view to minimising the consequences".
Singapore has suffered great economic loss and health impact from Indonesia's transboundary haze pollution. Under Aadmer, Indonesia must ensure that it provides relevant information sought by Singapore to deal with the current investigation of the Indonesian director of the company in question.
At the same time, Aadmer also obliges parties to "promptly respond to a request for assistance by an affected Party". Both Singapore and Indonesia are affected parties and the agreement thus obliges them to respond to each other's requests for help. Aadmer goes further than AATHP, whose objective is limited to haze prevention and monitoring, and depends on individual states to operationalise it. Aadmer, on the other hand, takes a holistic approach in disaster risk reduction and puts in place effective mechanisms, covering disaster management before, during and after the disaster, as well as partnerships with the United Nations and the World Bank for international cooperation.
In meeting the challenge of regional haze pollution, Asean member states should forge ahead together in the spirit of an integrated community. Indeed, they already have a plan in place to do so mapped out in the Asean Political-Security Community Blueprint 2025, one of the documents agreed to when Asean formally became an integrated community on Dec 31 last year. The political-security blueprint calls for the use of non-traditional approaches and "enhanced cooperation", including joint task forces, joint partnerships and entry into territory to deal with disaster situations. Asean thus has the political and legal frameworks in place for regional cooperation to fight the haze. What member states must do now is put these words into action.
•The writer is Emeritus Professor, Faculty of Law; and Honorary Director, Asia-Pacific Centre for Environmental Law, National University of Singapore.
A version of this article appeared in the print edition of The Straits Times on June 16, 2016, with the headline 'Clear agreement for Asean to tackle haze'. Print Edition | Subscribe
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