By Invitation

The haze, international law and global cooperation

Once again, the forests of Kalimantan, South Sumatra and parts of Riau are on fire. The fires are destroying Indonesia's forests, rich biological diversity and natural heritage. The fires are also endangering the health of Indonesians, Malaysians and Singaporeans. The people most affected by the haze are Indonesians living in Kalimantan and South Sumatra.

The haze is causing economic loss to the three countries. The fires are also causing harm to the world because of the carbon emitted into the atmosphere. The United States National Aeronautics and Space Administration (Nasa) has warned that the haze this year could be as bad as that in 1997 when the

United Nations declared the forest fires in Indonesia an ecological disaster for the world.


ST ILLUSTRATION: MIEL

The problem is not new and has been occurring almost annually for over two decades. The laws of Indonesia forbid the use of fire to clear land. Indonesia's leaders have promised annually that they will enforce their law and that they have the capacity to put out the fires. They have declined and continue to decline offers of assistance from Malaysia and Singapore.

The former president of Indonesia, Dr Susilo Bambang Yudhoyono, had publicly apologised to Malaysia and Singapore for the harm and damage caused by the haze. Other leaders of Indonesia have, however, taken the opposite stance, declaring that Indonesia owes no apology to its neighbours and making unreasonable statements that we should be grateful that Indonesia has provided us with clean air for 11 months of the year.

INTERNATIONAL LAW

In view of this, we will begin by asking whether Indonesia has any legal responsibility under international law.

The first principle of international law is that a state has the sovereign right to exploit its natural resources, including its forests. The sovereign right of a state to do so is, however, not unlimited. It is limited by a second principle.

The second principle is that a state has the responsibility to ensure that activities within its jurisdiction or control do not cause damage to the environment of other states or to areas beyond the limits of its national jurisdiction.

In other words, Indonesia is responsible for the harm and damage which activities within its jurisdiction or control have caused to its neighbours. These principles are well established. The bottom line is that Indonesia is morally and legally responsible for the haze.

ASEAN HAZE AGREEMENT

The second issue which we wish to highlight is the Asean Haze Agreement which is binding on all 10 Asean countries.

One of the guiding principles of that agreement is the obligation to cooperate and coordinate in order to prevent and to monitor transboundary haze pollution. We respectfully call on Indonesia, which is a party to that agreement, to comply with its obligation.

In the spirit of Asean solidarity and good neighbourliness, Singapore wishes to cooperate with Indonesia in dealing with the problem of forest fires. An example of a successful cooperation is with the Jambi provincial government which began in 2007. The number of hot spots in the Jambi province has been reduced by 70 per cent since 2006. Jambi and Singapore would like to extend their agreement, which expired in 2011, but Jakarta has refused to give the green light. We respectfully request President Joko Widodo to allow Jambi to renew the agreement with Singapore.

When fires occur, they should be put out quickly in order to limit their spread. We should work cooperatively to strengthen the firefighting capacity in all the Asean countries. We support Malaysia's initiative to request assistance from Canada in firefighting expertise. We should also engage the International Association of Fire Fighters in this regard.

CONSERVATION OF WETLANDS

Two-thirds of the fires in Indonesia occur on peat wetlands. It is not widely known that Indonesia has the largest tropical peat wetlands in the world. Research has shown that these wetlands are rich in biological diversity. We should therefore cooperate with Indonesia to preserve its peat wetlands.

The Convention on Wetlands of International Importance, also known as the Ramsar Convention, is an intergovernmental treaty which provides the framework for national action and international cooperation for the conservation and prudent use of wetlands and their resources. Singapore should consider joining the Ramsar Convention. By doing so, Singapore would be in a position to cooperate with other states to assist Indonesia in protecting the peat wetlands of Sumatra and Kalimantan.

Developing countries have rightly pointed out that it is within their sovereign rights to cut down their forests. They have, therefore, argued that they should be compensated if the world wishes them to conserve their forests.

In response to this argument, the World Bank, with the support of donor countries such as Norway, has launched an initiative called Reducing Emissions from Deforestation and Forest Degradation, or REDD+ in short.

Norway has offered to compensate Indonesia financially if it agrees not to destroy its forests on certain conditions. The conditions pertain to Indonesia's capacity, transparency and good governance. Progress has been very slow. Singapore should consider cooperating with Indonesia and with Norway in order to facilitate the early implementation of REDD+.

HOLDING FIRMS ACCOUNTABLE

We should be clear in our minds that the forest fires in Indonesia are not a natural phenomenon which lawyers refer to as "an act of god". The fires are man-made and those responsible are palm oil companies and pulp and paper companies.

The motive is money and profit. They must be held accountable for their unconscionable and illegal behaviour.

We therefore support the actions taken by our National Environment Agency to investigate five companies. If the investigations prove that the fires had taken place in their concessions and the smoke from those fires is causing the haze in Singapore, we hope that the Attorney-General will consider initiating criminal proceedings against them.

We also support the efforts of a group of consumers, led by Professor Ang Peng Hwa of Nanyang Technological University, to take civil proceedings against the companies, if they were convicted in the criminal proceedings.

Finally, the Singapore Government should work closely with the civil society and private sector in our collective endeavour to stop the forest fires. We applaud the work of conservation body WWF and the Roundtable on Sustainable Palm Oil (RSPO). We should encourage all the financial institutions in Singapore to join RSPO. We support the initiative of the Singapore Environment Council to ensure that we procure paper and palm oil only from certified companies and sources. We endorse the UN Global Compact and the Singapore Exchange's Guide to Sustainability Reporting for Listed Companies.

• Professor Jayakumar is the chairman of the International Advisory Panel and Professor Koh is the chairman of the Governing Board of the Centre for International Law, National University of Singapore.

A version of this article appeared in the print edition of The Straits Times on October 06, 2015, with the headline 'The haze, international law and global cooperation'. Print Edition | Subscribe