Forest fires of Indonesia: State responsibility and international liability

International and Comparative Law Quarterly

Volumn 48, Issue 4, 1999, Pages 826-855

  Khee Jin Tan, Alan ^a  

^a NATIONAL UNIVERSITY OF SINGAPORE   (Singapore)

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EID: 85014588574     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300063703     Document Type: Article

References (138)

1. The Indonesian authorities conceded that more than 80% of the land and forest fires were caused by controlled burning to clear land for plantations and settlements “Jakarta Under Pressure to Solve Fire Problems”, Straits Times, 11 Sept. 1997
2. “Indonesia Admits Forest Fires Are Man-Made”, Straits Times, 10 Oct. 1997. Fires have apparently been used by large corporations in land disputes to drive out small-time farmers
3. see “Many Forests Set on Fire over Land Disputes, Says Research Centre”, Straits Times, 23 Oct. 1997.
4. See also Joko Waluyo, “Smoking Gun”, Inside Indonesia, No.53 (Jan.-Mar. 1998), Indonesian Resources and Information Programme, Australia, Internet website at www.insideindonesia.org.
5. For a critique of the way Singapore authorities handled the situation, see Dominic Nathan, “Diary of a Disaster People Kept in the Haze for Far too Long”, Sunday Review, Sunday Times, 12 Oct. 1997.
6. Of these, 50% were agriculture/plantation lands, 20% forests and 30% unproductive land; see study by WWF/EEPSEA, infra n.5.
7. The same study estimates that 70 million people were affected throughout the region. Waluyo, infra, estimates that out of the 1.7 million hectares lost up to Sept 1997 in Kalimantan alone, nearly 1.4 million hectares were burned by plantation companies and production forest operators. The estimates by both Waluyo and WWF/EEPSEA demonstrate that the fires were caused primarily by plantation and timber companies.
8. This was assessed in May 1998 by the Singapore-based Economy and Environment Programme for Southeast Asia (EEPSEA) and the World Wide Fund for Nature (WWF); see EEPSEA/WWF, The Indonesian Fires and Haze of 1997: The Economic Toll (1998). Details can be found on the Internet at www.idrc.org.g/eepsea/htm. Direct fire-related losses amounted to S3.1 billion (borne by Indonesia alone), while haze-related damage came to $1.4 billion ($1 billion losses for Indonesia and $400 million for the injured neighbouring States).
9. Thus, nearly 10% of the total damage was occasioned to neighbouring States. Whatever the uncertainties surrounding the extent of damage needed before State responsibility can be engaged, this article assumes that the damage occasioned to the injured States exceeds any minimum threshold required to establish responsibility, infra n.101.
10. For a comprehensive description of the legal, institutional and administrative capacities for environmental regulation in Indonesia, see Tan, “Land/Forest Fires: Indonesian Environmental Legislation and Its Implementation”, in Johnston and Lim (Eds), Southeast Asian Land/Forest Fires: Science and Policy (1999).
11. ILC 1998 Report, G.A.O.R., 53rd Sess., Supp.10 (A/53/10 and Corr.1).
12. See Chorzow Factory case (Merits) (1928) P.C.I.J. Ser.A, No.17, at p.47.
13. Art.1, ILC Draft Articles on State Responsibility, ILC 1996 Report, G.A.O.R., 51st Sess., Supp.10 (A/51/10), p.125. The Draft Articles on State Responsibility are widely considered to be reflective of customary international law. The Draft Articles were provisionally adopted on first reading by the ILC at its 48th session in 1996. At its 50th session in 1998, Arts.l to 15 of Part One were referred to the Drafting Committee
14. see ILC 1998 Report, G.A.O.R., 53rd Sess., Supp.10 (A/53/10), available on the Internet at www.un.org/law/ilc. No substantive change is expected in the wording of the Draft Articles, save that a few articles (Arts.2, 6 and 11–14) have been proposed to be deleted. These deletions, together with other minor changes, are meant only to streamline the text of the Draft Articles, to excise formulations phrased in the negative and to subsume unnecessary provisions within other articles.
15. ILC Draft Articles, idem, Art.3.
16. See generally Ago, Second Report on State Responsibility (1970) II Y.B.I.L.C. 177, 189, UN Doc.A/CN.4/233
17. Smith, State Responsibility and the Marine Environment: The Rules of Decision (1988), p.22.
18. Art.5, ILC Draft Articles on State Responsibility, State Responsibility and the Marine Environment: The Rules of Decision
19. See e,g, the Caire Claim (France v. Mexico) (1929) 5 R.I.A.A. 516 (acts of soldiers)
20. Yeager v. Iran (US v. Iran) (1987) 17 Iran-U.S.C.T.R. 92 (acts of revolutionaries)
21. more recently the Rainbow Warrior Case (1987) 261.L.M. 1346 (acts of secret service agents).
22. See also ILC Draft Articles, idem, Art.10 (on ultra vires acts).
23. See Yeager v. Iran, idem, where the Tribunal stated at para.42 “attributability of acts to the State is not limited to acts of organs formally recognised under internal law”. The Tribunal added that if the position were otherwise “a State could avoid responsibility under international law merely by invoking its internal law”.
24. See also the comments of the ILC in relation to the reference to “internal law” in ILC Draft Articles idem Art.5 ILC 1998 Report, idem, at paras.369 and 402.
25. ILC, Report to the General Assembly, 26th Sess. (1974) II Y.B.I.L.C 269, 282, UN Doc.A/CN.4/Ser.
26. cited in Smith, Y.B.I.L.C, at p.28.
27. See also Art.8, ILC Draft Articles on State Responsibility, Y.B.I.L.C, which attributes to the State the conduct of a person or group of persons if such person or group of persons was in fact acting on behalf of the State, or was in fact exercising elements of the governmental authority in the absence of the official authorities and in circumstances which justified the exercise of those elements of authority (emphases added).
28. Undang-undang Dasar Negara Republik Indonesia 1945 (1945 Constitution of the Republic of Indonesia), Art.33(3).
29. ILC Report, Undang-undang Dasar Negara Republik Indonesia at p.282.
30. Art.8, ILC Draft Articles on State Responsibility, Undang-undang Dasar Negara Republik Indonesia.
31. See also Yeager v. Iran, Undang-undang Dasar Negara Republik Indonesia, at paras.42–43.
32. See ILC Report, Undang-undang Dasar Negara Republik Indonesia.
33. The LLC, in it latest discussions in 1998 on the Draft Articles on State Responsibility, noted the concern of a number of governments that the basis of attribution should be broad enough to ensure that States could not escape responsibility based on formal definitions of their constitutive organs, particularly in view of recent developments concerning the increasing delegation of public functions to the private sector. It was noted that no government had so far argued that the conditions for attribution should be more restrictively defined, see ILC Draft Articles on State Responsibility, ILC 1998 Report,Undang-undang Dasar Negara Republik Indonesia, at pares.363 and 390.
34. Vattel, Le Droit des gens ou principes de la loi naturelle (trans. Fenwick, 1916), p.136
35. cited in Smith, Undang-undang Dasar Negara Republik Indonesia, at p.35.
36. See generally Art.15 bis, ILC Draft Articles on State Responsibility, Undang-undang Dasar Negara Republik Indonesia.
37. (US v. Mexico) (1926) 4 R.I.A.A. 82.
38. See also the judgment of the ICJ in US Diplomatic and Consular Staff in Tehran (US v. Iran) I.CJ. Rep. 1980
39. Jimenez de Arechaga, “International Responsibility”, in Sørensen (ed.). Manual of Public International Law (1968), p.560.
40. Smith Manual of Public International Law, at p 37.
41. These would be the nationality and territoriality bases of jurisdiction respectively. See generally “Research in International Law under the Auspices of the Harvard Law School: Jurisdiction with respect to Crime (pt II)” (1935) 29 A.J.I.L. 435.
42. Art. 3, ILC Draft Articles on State Responsibility, A.J.I.L.
43. See A.J.I.L. on.14–16 and accompanying text
44. (1941) 3 R.I.A.A. 1907. This was an arbitration between the US and Canada arising from the undisputed damage caused to US territory from sulphur dioxide fumes emanating from a private smelting operation on the Canadian side of the two countries' border.
45. Idem, p.1965.
46. Reprinted in (1992) 31 I.L.M. 874.
47. UN DoaA/Conf.62/122, reprinted in (1982) 21 I.L.M. 1261.
48. (UK v. Albania) I.C.J. Rep. 1949, 4, 22.
49. (Australia v. France) I.C.J. Rep. 1974,253 (Judgment) (Dissenting Opinion of Judge de Castro), at p-389. The majority did not address this issue.
50. I.C.J. Rep. 1996, 15.
51. (France v. Spain) (1957) 12 R.I.A.A. 281.
52. See Bernhardt (Ed.), Encyclopaedia of Public International Law, Vol II (1992) p.653
53. the Report of the Agent of the US, reprinted in (1965) 4 I.L.M. 473
54. the Agreement establishing the Tribunal, reprinted in (1965) 4 I.L.M. 468.
55. See generally Lammers, Pollution of International Watercourses (1984), pp.346–347, 374–376.
56. I.C.J. Pleadings 1978, Vol.1, p.14 (Australia v. France)
57. Vol.II, p.8 (New Zealand v. France).
58. Whiteman (1908) 6 Dig. Int. L. 256–257
59. cited in Smith, Pollution of International Watercourses n.ll, at p.75.
60. International Law Association, Report of the 58th Conference (1978) pp.398–399.
61. In the aftermath of the Chernobyl incident, several affected States, including the Federal Republic of Germany and the UK, reserved their right to claim compensation from the USSR; see Sands, Chernobyl Law and Communication (1988), pp.26–28.
62. ILC, Draft Articles on International Liability, General Commentary, in Chernobyl Law and Communication.
63. The obligation to prevent harm is also reiterated by authoritative sources like UN General Assembly Resolution 2995 (XXVII) of 15 Dec 1972 on co-operation between States in the field of the environment, G.A.O.R., 27th Sess., Supp.30 (A/27/30), p.42
64. the Experts Group on Environmental Law of the World Commission on Environment and Development – see Munro and Lammers (Eds), Environmental Protection and Sustainable Development (1987), p.7
65. the 1978 UNEP Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilisation of Natural Resources Shared by Two or More States, G.A.O.R., 33rd Sess. Supp.25 (A/33/25)
66. Annex I, reprinted in (1978) 17 I.L.M. 1098.
67. See Goldie, “A General View of International Environmental Law – A Survey of Capabilities, Trends and Limits”, in Colloque La Haye (1973) pp.66–69
68. Kirgis, “Technological Challenge of the Shared Environment: US Practice” 1974 66 AJ.I.L. 291
69. Sands, Principles of International Environmental Law, Vol.1 (1995), p.194.
70. In relation to transboundary air pollution specifically, see Arts.3(l) and 4,1982 Montreal Draft Rules on Transboundary Pollution, International Law Association 60th Report (1982)
71. Art.2, Institut de Droit International (IDI) Resolution on Transboundary Air Pollution, 62 Ann. I.D.I., II (1987)
72. the 1979 ECE Convention on Long Range Transboundary Air Pollution, reprinted in (1979) 18 I.L.M. 1442.
73. See Jenks, “Liability for Ultrahazardous Activities in International Law” (1966–1961) 117 Hag. Rec. 99
74. Smith, Hag. Rec., at pp.40–41 and 119–121
75. Handl, “International Liability of States for Marine Pollution” (1983), 21 Can. Y.B.I.L. 101.
76. See infra n.63 and accompanying text.
77. ee e.g. Alabama case (US v. UK) (1872), in J.B. Moore, History and Digest of the International Arbitrations to which the United States has been a party, VoL I, pp.572–573
78. Neer case (U.S. v. Mexico) (1926) 4 R.I.A.A. 60
79. Montijo case (US v. Colombia) (1874), in Moore, idem, Vol. II, p.1421.
80. Garcia-Amador, Draft Articles on the Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens, reprinted in Garcia-Amador, Sohn and Baxter (Eds), Recent Codification of the Law of Slate Responsibility for Injury to Aliens, Vol.1 (1974), p.130.
81. US Diplomatic and Consular Staff, Recent Codification of the Law of Slate Responsibility for Injury to Aliens, at p 33.
82. Recent Codification of the Law of Slate Responsibility for Injury to Aliens.
83. See generally Smith, Recent Codification of the Law of Slate Responsibility for Injury to Aliens, at p.40.
84. See e.g. Artl94(l), 1982 UN Convention on the Law of the Sea, Recent Codification of the Law of Slate Responsibility for Injury to Aliens
85. Arts.I, II and VII(2), 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, reprinted in (1972) 111.L.M. 1294
86. Art.2, Vienna Convention for the Protection of the Ozone Layer, reprinted in (1987) 261.L.M. 1529
87. Art.2, Convention on the Protection and Use of Transboundary Watercourses and International Lakes, reprinted in (1992) 31 I.LM. 1312.
88. See e.g. Principle 21, World Charter for Nature, General Assembly Res.37/7 of 28 Oct. 1982
89. OECD, Report by the Environment Committee, Responsibility and Liability of Stales in Relation to Transfrontier Pollution (1984), p.4.
90. See e.g. Alabama case, Responsibility and Liability of Stales in Relation to Transfrontier Pollution.
91. See generally Sands, Responsibility and Liability of Stales in Relation to Transfrontier Pollution, at p.638.
92. ILC, Draft Articles on International Liability, Art3 and commentary thereto, in Responsibility and Liability of Stales in Relation to Transfrontier Pollution.
93. See generally Sands, Responsibility and Liability of Stales in Relation to Transfrontier Pollution, at p.596.
94. See the works cited Responsibility and Liability of Stales in Relation to Transfrontier Pollution.
95. See generally Arts. 16,20,23 and 26, ILC Draft Articles on State Responsibility, Responsibility and Liability of Stales in Relation to Transfrontier Pollution.
96. “Indonesia Ignored Fire-Fighting Plans”, Straits Times, 23 Mar. 1998.
97. Straits Times.
98. Straits Times.
99. See e.g. “ ‘Connections’ Won't Protect Fire Starters, Says Jakarta”, Straits Times, 1 Oct 1997.
100. “Indonesia Admits Forest Fires Are Man-Made”, Straits Times.
101. “Jakarta Under Pressure to Solve Fire Problems”, Straits Times.
102. See also Waluyo and EEPSEA/WWF, Straits Times, 5.
103. In late Sept. 1997, the statement of the Indonesian Coordinating Minister for People's Welfare to this effect provoked controversy in the neighbouring States; see e.g. “What a Mockery of Suharto Apology, Says DAP Leader”, Straits Times, 30 Sept. 1997.
104. “Suharto Bans Land Clearing by Burning”, Straits Times, 10 Sept. 1997.
105. For an analysis of the EMA provisions, see Tan, Straits Times.
106. The “blacklist” of culprits appeared in several Indonesian newspapers on 16 Sept. 1997, and was reproduced in Singapore's Straits Times, 17 Sept. 1997.
107. What, Exactly, Has Jakarta Done to Beat the Haze?”, Straits Times, 8 Oct. 1997. It is not clear if these firms have been allowed to resume operations.
108. “Indonesia Gathering Evidence Against 29 Forestry Firms”, Straits Times.
109. The author has not been able to ascertain if these firms have been prosecuted, or whether the four firms prosecuted in 1997, infra n.86
110. or the five firms to be prosecuted in 1998, infra n.87, are among the original 29 which were blacklisted.
111. Straits Times, 12 Dec. 1997.
112. “5 Finns to be Sued over Fires”, Straus Times, 25 Apr. 1998. It appeared that these firms were to be charged and punished under the 1997 EM A.
113. Kompas (an Indonesian daily), 19 Oct. 1998, as reported by AFP, 19 Oct. 1998.
114. WALHI had initially demanded a two trillion rupiah (US$250 million) collective compensation fine from all the defendants, Kompas. The court did not accede to this.
115. Jan Michiel Otto, “Implementation of Environmental Law in Indonesia: Some Administrative and Judicial Challenges” (19%) 11(1) Indonesian Law and Administrative Rev.32.
116. See also Tan, Indonesian Law and Administrative Rev.
117. Otto, Indonesian Law and Administrative Rev. Otto also describes the problems associated with access to justice in the courts.
118. See Art.4, ILC Draft Articles on State Responsibility, Indonesian Law and Administrative Rev.
119. “Indonesian Fires Bad for Region's Ecosystem”, Straits Times, 18 Oct. 1997.
120. See the works cited Straits Times.
121. Straits Times.
122. The Report, Straits Times, was introduced by the chairman of the working group at the 2,465th and 2,471st meetings of the ILC on 19 and 25 July 1996. The decision to split the issues of prevention and liability had been made as early as the ILCs 44th session in 1992.
123. 2,560th to 2,563rd meetings, 12–13 Aug. 1998, Straits Times.
124. “Risk of causing significant transboundary harm” is denned in ArL2 of the Draft Articles on International Liability to encompass “a low probability of causing disastrous harm and a high probability of causing other significant harm”. On damage generally, see the definition of “air pollution” in Art. 1(a), 1979 ECE Convention on Long Range Transboundary Air Pollution, Straits Times
125. Sands, Straits Times, at pp.632–634.
126. Idem, ArL5.
127. Idem, Arts.7 and 8.
128. Idem, Art.9 The “public likely to be affected” includes that of the injuring State as well as of other affected States; see Commentary to Art.9.
129. Idem, Art.10.
130. Idem, Arts.ll and 12.
131. Idem, Art.14.
132. Idem, Art.16.
133. Idem, ArU7.
134. idem.
135. idem.
136. idem.
137. Art.20, idem.
138. The jurisdiction of the injured States would be established on the basis of the nationality of the perpetrator, see idem.