Hazy Rights and Responsibilities: States and Transboundary Pollution

Transboundary pollution, or damage resulting from the use of natural resources, has in the past caused—and will continue to cause—disputes or diplomatic strains. From mid- to late-20th century, Norway and Sweden suffered disproportionately from acid rain formed from airborne sulfur and nitrogen, which were the byproducts of industrial activity in the rest of Europe. As other European countries lacked incentives to curtail emissions, international cooperation to reduce emissions only emerged after decades of Scandinavian diplomacy. More recently, along the Nile, a dam-building project in Ethiopia has instigated anger in downstream Egypt. Egyptian president Mohamed Morsi has declared that “all options are open” to deal with the threat to his country’s water supply.

In the past week, haze from forest fires in Indonesia has led to record-high air pollution levels in Singapore. The fires are mainly due to land clearing for oil palm plantations. The immediate reactions from both countries have been tense. Singapore’s environmental minister stated that “no country or corporation has the right to pollute the air at the expense of Singaporeans’ health and well-being” and “Singaporeans have lost patience, and are understandably angry, distressed and concerned.” In return, Indonesia criticized the “child-like” behavior of the Singaporean government.

Indonesia’s transboundary haze can be considered to infringe on Singapore’s sovereignty and its people’s right to clean air. On the other hand, Indonesia’s own sovereignty allows it to conduct such land clearings within its own territory. To what extent should sovereign rights to economic development be restrained? Despite being the fifteenth-largest economy in the world, Indonesia’s per capita GDP falls short of the world’s top 100. It is reasonable that Indonesia should use its abundant natural resources to catch up with Singapore and Brunei, its wealthy neighbors. It is easy for Singapore to pinpoint Indonesia as the culprit in creating the haze—perhaps rightly so—but there may be few other livelihood options for many Indonesians to escape poverty, particularly if the rainforest is kept intact. The city-state of Singapore, lacking natural resources, developed from a poor country into one of the richest in the world within fifty years mainly by creating a business-friendly and stable environment for foreign investors (through a highly centralized government), combined with an advantageous location and experience in trade from colonial times. Its success has depended on various factors that other countries would find difficult to replicate. Countries take different paths in development; on Indonesia’s path of resource exploitation, forest fires are some of the unintended (and sometimes unavoidable) side effects.

This is not to suggest that Indonesia should avoid any responsibility. International law holds states fundamentally responsible for transboundary pollution. Nonetheless, some liability from companies also reflects the so-called polluter pays principle. That many allegedly responsible companies have their headquarters in Singapore further complicates the situation. As the companies conduct their operations in Indonesia, and thus are subject to Indonesian laws, should Indonesia assume responsibility for initiating legal proceedings? As the host state of corporate headquarters, to what extent does Singapore have legal or moral responsibility for companies’ foreign operations? Particularly in dealing with multilayered transnational corporations, the answers to these questions may require considerable investigation.

The transboundary haze example illustrates that natural-resource conflicts do not only occur from competing uses, but also if one party suffers the consequences of resource uses by another—even if the former does not intend to use the same resources. Every natural-resource conflict is different, but the debate over blame versus responsibility, as well as the lack of incentive to act, seem to be common themes.

Every country has a right to develop, including Indonesia. However, excessive land clearing is unnecessary and the pristine rainforest should remain untouched while existing cleared land could be better utilized. More livelihood options should be made available to diversify economic development, possibly with the help of close trade partners, such as Singapore. When forest fires do happen, more economically developed and more affected countries need to offer systematic assistance. But such benefits can only be harnessed if Indonesia becomes more receptive to foreign assistance. A first step could be the ratification of the ASEAN Agreement on Transboundary Haze Pollution (ATHP)*, a legally binding treaty that all the other Association of Southeast Asian Nations (ASEAN) member states have already signed.

*Background: The ATHP came into force in 2003. It emphasizes cooperation and coordination, the precautionary principle, and inclusiveness. Although the ATHP is legally binding, there is no mechanism for monitoring, dispute resolution, or sanction. This is in line with the general trend of transboundary treaties being largely devoted to encouraging information sharing and consultation, rather than establishing liability regimes or punitive instruments. It also accords with ASEAN’s consensus-based and noninterference approach to tackle common issues. However, the only member state yet to ratify the ATHP is also the one where most of the pollution originates from—Indonesia—which limits the treaty’s effectiveness.

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