The South-east Asian fires and sustainable development: What should be done?

Asia Pacific Journal of Environmental Law

Volumn 3, Issue 3, 1998, Pages 205-228

  Tay, Simon S C ^a  

^a NATIONAL UNIVERSITY OF SINGAPORE   (Singapore)

Author keywords

ASEAN; Forest fires; Haze; Indonesia; Response; Transboundary pollution

Indexed keywords

EID: 73549123183     PISSN: 13852140     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (77)

1. Westphalian order recognises the supremacy of states as central and equal actors in the international arena and accepts their absolute sovereignty. See Leo Gross "The Peace of Westphalia, 1648-1948" (1948) 42 American Journal of International Law 20-41 for a review of the historical development of the principle in the international community.
2. For a contemporary discussion of the concept and exceptions to it, see Gene M. Lyons and Michael Mastanduno (eds) Beyond Westphalia: State Sovereignty and International Intervention (Johns Hopkins University Press, Baltimore: 1995).
3. Charter of the United Nations, 1 UNTS xvi, Art. 2 (7) codifies the continuance of domestic jurisdiction by providing: "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state
4. Choung Tet Sieu and Yenni Kwok "The Fires Are back: Southeast Asia Possibly Faces an Even Bigger Calamity than Last Year's" Asiaweek 13 March 1998 at 48.
5. Nigel Dudley The Year the World Caught Fire (WWF, Gland, Switzerland: 1997) puts the figure at 2 million hectares as at October 1997. Latest estimates by the Centre for Remote Imaging, Sensing and Processing (CRISP) however put the figure at 4 million hectares, based on satellite heat images.
6. See Chairman's Statement, Singapore Environment Council "International Policy Dialogue on South-east Asian Fires" (6 June 1998) reproduced in Appendix I.
7. "Forest Fires Cost $1.6 billion" The Straits Times 22 April 1998. Figures, in Singapore Dollars, were based on a report by the Indonesian Environmental Impact and Management Agency.
8. A study by the Economics and Environment Program of South East Asia (EEPSEA) and the Worldwide Fund for Nature (WFF) estimate that regional economies in total suffered over US$1.3 billion losses for health, tourism and airlines because of the fires in 1997. The main loser was Indonesia itself with some US$1 billion. This was followed by Malaysia (US$310 million) and Singapore (US$62.5 million). These estimates do not include losses from forest and plantation products. Nor are global losses such as climate change gases and biodiversity included. Longer term health effects have also not been calculated. The estimate should therefore be seen as preliminary, likely to be on the lower side.
9. Scientists suggest that emissions from forest fires have a far greater potential for long term and serious human health concerns than normal city pollution.
10. Fires in 1998 have ravaged the biodiversity rich Bukit Suharto area and Kuti National Park in Kalimantan, Indonesia. One third of Kuti has been burnt. Indonesia is estimated to have 10 per cent of all known plants in the world, one-eighth of all animals and one-sixth of all birds, reptiles and amphibians. It is considered one of the 12 "mega-biodiverse" countries in the world. The effects of the fire have yet to be fully measured, but it is already apparent that flora and fauna, and eco-systems have suffered. The fires have razed protected areas and reserves in East Kalimantan, Indonesia. Scientists already indicate that rare bird species and animals like the endangered Sumatran tiger and orang utan have been badly affected.
11. One study estimates that fires in Indonesia could add 1 billion tonnes of CO2 gases to global warming, surpassing emissions from all of Western Europe. See "Indonesian Fires Bad for the Region" The Straits Times 18 October 1997. The report quotes Dr Susan Page of the University of Leicester, who is conducting research on peat fires in Kalimantan and Sumatra. The total amount of greenhouse gases would depend on factors such as total area burnt, biomass of the forests and other vegetation and the extent of peat swamps.
12. Some have suggested that the main causes of the fires are land clearing by small-scale indigenous farmers, using traditional slash-and-burn methods of farming. Indonesian officials have also claimed that the El Nino weather phenomena is to blame. Clearly these are contributing factors, especially the latter. Indonesian reports however admitted that some 80 per cent of the forest fires in 1997 are attributable to land clearing by large plantation owners. Satellite images have pin-pointed land clearing by fire on oil palm plantations and on timber concessions, after the valuable timber has been extracted. Some 180 companies were named as being involved in 1997, of which five have only recently begun to face prosecution by Indonesian governmental agencies: "5 Firms to be sued over fires" The Straits Times 25 April 1998.
13. See 1992 Rio Declaration on Environment and Development (1992) 31 ILM 874, Principle 7
14. the principle has notably been applied in the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 26 ILM 1541.
15. (1972) 11 ILM 1416. Principle 21 provides: "States have. the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction."
16. The main source of fires and haze, especially prior to 1998, when Brunei and East Malaysia were also affected.
17. ASEAN's environmental efforts are considered in outline below. See also Ben Boer, Ross Ramsay and Donald R. Rothwell International Environmental Law in the Asia-Pacific (Kluwer Law International, London: 1998) 225-241.
18. Only in 1998 were fires located in East Malaysia and Brunei.
19. Indonesia's economic problems has come to international concern, drawing in the International Monetary Fund and the involvement of G-7 countries, such as the USA.
20. These problems have been admitted by the then Indonesian Environment Minister, Sarwono Kusumaatmadja, as well as his successor after the 1998 elections, Juwono Sudarsono. See "Crisis hampering fire-fighting" The Straits Times 21 February 1998.
21. The UN World Food Programme launched an appeal for US$88 million in emergency aid to help Indonesia meet food shortfalls. See "$138m food aid sought for Indonesia" The Straits Times 25 April 1998.
22. Approximately US$40,000.
23. Note 10.
24. For an analysis of the relationships between politics and environment in Indonesia, see Charles Barber Environmental Scarcities, State Capacity and Civil Violence: The Case of Indonesia (University College, University of Toronto and American Academy of Arts and Sciences, Toronto: 1997), and
25. Colin McAndrews "Politics of the Environment in Indonesia" (1994) Vol XXXIV No. 4 Asian Survey 369.
26. This is, for example, the underlying analysis of the UN team that surveyed the problems in Kalimantan, leading them to call for some US$10 million in assistance for fire-fighting staff and equipment.
27. The prohibition of any development to the forest and lands would, arguably, run counter to the idea of sustainable development. This is the concept of a balance between environmental conservation and economic development that was the central theme to the UN Conference on Environment and Development, and the earlier "Brundtland Report" - World Commission on Environment and Development Our Common Future (Oxford University Press, Oxford: 1987). The term lacks precision in practice. But the tenets of sustainable development point us to the idea that development of such lands is permissible, provided that its negative effects are ameliorated. Chief of these ill-effects would be the use of fires that cause the haze pollution.
28. See Chairman's Statement of the 1st International Dialogue on the SE Asian fires, organised by the Singapore Environment Council, 6 June 1998 reproduced in Appendix I.
29. See also Harold Brookfield, Lesley Potter and Yvonne Byron (eds) In Place of the Forest (United Nations University Press, Tokyo: 1995).
30. International assistance could of course be sought to compensate for the additional costs of prioritising degraded land for development. For conservation areas, such as rainforests and peat bog swamps, a range of techniques may be considered to allow the international community to bear part of the costs of conservation, such as debt for nature swaps, and bio-prospecting agreements.
31. Corfu Channel Case (UK v. Albania) [1949] ICJ Reports (International Court of Justice Reports) 3.
32. USA v. Canada (1941) 35 American Journal of International Law 698. The Trail Smelter Arbitration may be seen as a precedent for its ruling that "no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another (state)". The arbitral panel awarded monetary damages in favour of the USA. It also acted preventively, ordering the Trail Smelter "to refrain from causing any damage".
33. Principle 21 of the Stockholm Declaration, note 12, is said by many environmentalists to represent customary international law. The principle recognises the sovereignty of states but balances this with their responsibility to "ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction". Following Principle 21, leading bodies of international lawyers, such as the Institut de droit international, have adopted resolutions or other statements that assert State obligations on transboundary pollution. Principle 21 may seem to be "hard" law, reassuring to some lawyers amidst the declarations of "soft" law and emerging principles that characterise so much of the environmental arena. Moves which may dilute the legal characteristics of Principle 21 are accordingly criticised. For example, its reiteration in Principle 2 of the Rio Declaration, note 11, has been said to be "a skilfully masked step backwards": Marc Pallemaerts "International Environmental Law From Stockholm to Rio: Back to the Future 1. " in Philippe Sands (ed) Greening International Law (Earthscan, London: 1994) 1 at 5.
34. This is because Principle 2, while recognising state responsibility, also declares that "states have. the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies",ibid Marc Pallemaerts "International Environmental Law From Stockholm to Rio: Back to the Future 1. " Greening International Law at 5. 1994.
35. This would arguably be so even if the actions causing the haze may be traced to private companies in distant areas, over which the government in Jakarta may have little effective control.
36. It is true of course that the fires take place on sovereign soil. If their transboundary effect could be controlled, then Indonesia would be free to use fires. If that is however not possible, then the fires - as much as the haze they cause - are of legitimate regional and global concern. In contrast, while land use in Indonesia may contribute or indeed be the root cause of the fires and haze, Indonesia's land use policies may be considered an internal matter. This is because land use and conversion may be achieved without the use of fire or causing haze.
37. For a critical overview of the principle of State responsibility for transboundary pollution, see Oscar Schachter International Law in Theory and Practice (Martinus Nijhoff, Dordrecht: 1991) 362.
38. The same was notably the case among neighbouring states in the aftermath of the Chernoybl and Sandoz disasters in Europe in the mid 1980s.
39. Economic and Social Commission for Asia and the Pacific (ESCAP) State of the Environment in Asia and the Pacific (2nd and 3rd edn, ESCAP, Bangkok: 1992 and 1995).
40. For a compilation of ASEAN documents, see K. L. Koh (ed) Selected ASEAN Documents on the Environment (Asia Pacific Centre for Environmental Law, Singapore: 1996).
41. Singapore Resolution on Environment and Development and Common Stand on UNCED, Singapore, 18 February 1992.
42. For a description and analysis of the Austrian trade measures on tropical timber, the ASEAN reaction and the likely outcome in light of GATT rules, see Brian Chase "Tropical Forests and Trade Policy: The Legality of Unilateral Attempts to promote Sustainable Development under the GATT" (1994) 17 Hastings Internationa! and Comparative Law Review 349 at 374.
43. See United States - Import Prohibition of Certain Shrimp and Shrimp Products GATT Doc DS S58/R (15 May 1998) (1998) 37 ILM 832;
44. reviewed in Rohan Hardcastle "Environmental Trade Measures Under Seige: The WTO US Shrimp Case" (1998) 3 Asia Pacific Journal of Environmental Law 157.
45. ASEAN Strategic Plan of Action on the Environment, Jakarta, 1994.
46. Broadly, the ASEAN strategy seeks to integrate environment and developmental concerns in the decision-making process of governments through such mechanisms. Other needs recognised by the Strategy Plan are to foster government and private sector interactions; strengthen institutional and legal capacities; to establish a regional framework on biological diversity conservation and sustainable use; to promote the protection of coastal rones and marine resources; and to promote environmentally sound management of toxic chemicals and hazardous wastes and a system for promoting environmentally sound technologies.
47. The one treaty that was negotiated among ASEAN members, the 1985 ASEAN Agreement on the Conservation and Natural Resources, reprinted in Iwona Rummel-Bulska and Seth Osafo (eds) Selected Multilateral Treaties in the Field of the Environment Vol 2 (Grotius Publications, Cambridge: 1991) 343,has not been ratified by a sufficient number of members and, as such, is not in force The Agreement was signed by all six ASEAN members at that rime, in Kuala Lumpur, Malaysia, on 9 July 1985. Only three countries have however ratified the agreement, one less than required to bring it into force.
48. The introduction of the ASEAN Cooperation Plan traces its development to ASEAN resolutions, meetings and strategic plans on transboundary pollution starting from 1990. Notably, immediately prior to the adoption of the ASEAN Plan, the Informal Ministerial Meeting on the Environment held in Kuching, Malaysia on 21 October 1994 recognised the need to control transboundary pollution within the region by treating it as "one eco-system".
49. ASEAN Ministerial Meeting on Haze, 22-23 December 1997, Singapore.
50. Joint Press Statement, Third ASEAN Ministerial Meeting on Haze, 4 April 1998, Brunei, para 8.
51. Ibid, Third ASEAN Ministerial Meeting on Haze, 1998, para 5.
52. UNEP Executive Director, Klaus Topfer had earlier called for international attention to the fires but not sought the role of coordinating assistance; see note 3.
53. The World Health Organization has responded with a programme dealing with the human health risks. The UN Food Programme has begun a programme to deal with the famine to which the fire and drought have contributed.
54. UNDAC Mission Report Indonesia: Land, Bush and Forest Fires (DPR 213/3 (76) Indo 98; March-April 1998).
55. Held in Geneva on 21-22 April 1998.
56. Australia, Canada, China, Denmark, Finland, France, Germany, Japan, Malaysia, New Zealand, Norway, Russia, Singapore, South Korea, Sweden, Switzerland, Thailand, United Kingdom and the USA.
57. These included: UNDP, UNEP, UNICEF, UNESCO. WHO, CIDA, GTZ (German-Indonesia Development Cooperation), USAID, ADB, ASEAN, WWF, IUCN, OPEC, and the World Bank.
58. See "Donations of Fire-Fighting Gear for Jakarta" The Straits Times 21 February 1998.
59. ASEAN has concluded the 1995 Southeast Asia Nuclear Weapon-Free Zone Treaty (1996) 35 ILM 635 which allows for interstate reporting, monitoring and inspections;
60. see Art. 14.
61. See 1989 Basel Convention on the Transboundary Movements of Hazardous Wastes and their Disposal (1989) 28ILM 657.
62. (1974) 13 ILM 511.
63. See Graham Bennet (ed) Air Pollution Control in the European Community Implementation of the EC Directives in the Twelve Member States (Graham and Trotman, London:1992). For an overview of the harmonisation techniques within the EC,
64. see Damien Gerardin, "Lessons from the European Community" in Simon S. C. Tay and Daniel Esty (eds) Asian Dragons & Green Trade (Times Academic Press, Singapore: 1996) 79.
65. The North American Free Trade Agreement (NAFTA) between Canada, Mexico and the USA takes a similar approach, thereby avoiding the need to harmonise limits. The OECD Council Recommendations on Principles Concerning Transfrontier Pollution uses a "principle of non-discrimination" by which states control their transboundary pollution to the same standards as applicable to similar pollution within their borders, and allow private plaintiffs access to their courts for redress, no matter where the damage is suffered.
66. See Thomas W.V. Merrill "Golden Rules for Transboundary Pollution" (1997) 46 Duke Law Journal 931 at 937.
67. (1992) 31 ILM 818.
68. (1992) 31 ILM 849.
69. The concern of the states involved, of course, might legitimately be on the effectiveness of the proposed actions.
70. Merrill, note 57 at 988.
71. The literature on environmental effects on economic investment and industry migration is mixed. Many theorise that there is a race to the bottom in standards to attract foreign investment and trade. Others argue that the actual cost increase from environmental standards is small and do not determine investment decisions, which are based on a much wider consideration of competitiveness. See Richard L. Revesz "Rehabilitating Interstate Competition: Re-Thinking the 'Race to the Bottom' Rationale for Federal Environmental Regulation" (1992) 67 New York University Law Review 1210. For a review of the literature,
72. see Daniel Esty "Environmental Regulation and Competitiveness: Theory and Practice" in Simon S. C. Tay and Daniel C. Esty (eds) Asian Dragpns & Green Trade (Times Academic Press, Singapore: 1996) 33.
73. See Simon S. C. Tay "Environmental Deterioration in SE Asia: Trade, Investment and Sustainable Development" paper presented at US-ASEAN-Japan Conference, June 1998 (on file).
74. For an illustration of joint implementation, see Patrick Joyce "Agreement between Australia and Indonesia on Climate Change" (1997) 2 Asia Pacific Journal of Environmental Law 209.
75. On the other hand, a group of expatriates based in Singapore, calling themselves the "Hazebusters", has informed the press that they will focus on such fire-fighting. They have pledged to raise money to place in a trust in the Cook Islands for these purposes. As at the time of writing, however, they have not raised funds nor begun fire-fighting, beyond a few sorties in Brunei.
76. Note the ASEAN protest against compulsory eco-labels on tropical timber by Austria: see discussion in Alexander Gillespie "The Malaysian Agenda and Influence on the International Tropical Deforestation Debate" (1996) 1 Asia Pacific Journal of Environmental Law 25.
77. Prepared by Simon S. C. Tay, Chairman, Singapore Environment Council International Policy Dialogue, 6 June 1998. This statement records the Chairman's interpretation of views expressed in the Dialogue. It does not reflect a unanimous or consensus view of the participants of the organisations represented.