The international law on transboundary haze pollution: What can we learn from the Southeast Asia region?

• Author: Laely Nurhidayah,Shawkat Alam
• Date: 01 November 2017
• Published date: 01 November 2017
• DOI: http://doi.org/10.1111/reel.12221

RECIEL. 2017;26:243–254.    

|

 243

wileyonlinelibrary.com/journal/reel

DOI: 10.1111/reel.12221

SPECIAL ISSUE ARTICLE

The international law on transboundary haze pollution: What

can we learn from the Southeast Asia region?

Shawkat Alam | Laely Nurhidayah

© 2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

Correspondence

Email: shawkat.alam@mq.edu.au Transboundary haze pollution from land and forest fires is considered one of the most

serious environmental problems in Southeast Asia. Almost every year, haze pollution

risks the health and lives of people living in the region, especially children, elderly

people and people who already suffer from asthma. The international law of the at-

mosphere plays an important role in reducing the air pollution problem. The current

trends in addressing transboundary environmental harm show that States prefer to

adopt and implement a prevention and cooperation regime, as shown in Southeast

Asia. This article explores how international law responds to transboundary pollution.

Particularly, it examines how the Association of Southeast Asian Nations (ASEAN)

addresses transboundary haze pollution, and the effectiveness of its regional legal

measures. This article argues that international law, particularly the State responsibil-

ity principle, plays an important role in pushing States to exercise due diligence.

Nevertheless, State responsibility and civil liability regimes appear particularly difficult

to implement in Southeast Asia due to the non- interference principle in the ASEAN

Charter. Therefore, improving cooperation is the only viable option for addressing the

haze pollution problem.

1 | INTRODUCTION

Transboundary haze pollution from land and forest fires is considered

one of the most serious environmental problems in Southeast Asia.

Almost every year, haze pollution risks the health and lives of people

living in the region. Poor air quality can have a significant impact on

human health, particularly on the health of children, elderly people and

asthma sufferers, on the environment and on the economy. Particulate

pollution can cause severe health problems when inhaled, including

asthma, bronchitis, lung cancer and cardiovascular disease.1 A recent

study by experts in public health and atmospheric modelling from both

Harvard and Columbia universities estimated that in 2015, 91,600

people in Indonesia, 6,500 in Malaysia and 2,200 in Singapore may

have died prematurely because of exposure to fine particle pollution

from burning forests, in particular on carbon- rich peatlands.2 However,

Indonesian, Malaysian and Singaporean authorities have dismissed

this research and the findings of what experts assert is well- established

science.3

The international law of the atmosphere plays an important role in

reducing the air pollution problem. The international customary rule of

State responsibility for environmental degradation, as conceived in the

decision of the Trail Smelter Arbitration,4 in the 1972 Declaration of the

United Nations Conference on the Human Environment (Stockholm

1J Cochrane, ‘Blazes in Southeast Asia May Have Led to Deaths of Over 100,000, Study Says’

(New York Times, 19 September 2016).

2S Koplitz et al, ‘Public Health Impacts of the Severe Haze in Equatorial Asia in September–

October 2015: Demonstration of a New Framework for Informing Fire Management

Strategies to Reduce Downwind Smoke Exposure’ (2016) 11(9) Environmental Research

Letters 1–10, 6.

3‘Indonesia Dismisses Study Showing Forest Fires Haze Killed More than 100,000 People’

(Associated Press, 21 September 2016).

4Trail Smelter Arbitration (United States v Canada) (1949) 3 RIAA 1903.