The many faces of strict liability in Indonesia's wildfire litigation

Published date01 July 2019
Date01 July 2019
RECIEL. 2019;28:185–196.    
The Indonesia n government has bee n criticized for it s inability to
prevent and contro l forest and peatland fire s. Scholars have argued
that annual fir es in Indonesia are indic ative of a lack of effective law
enforcement and poor government responses to peatland degrad-
ation. Tan, for exampl e, argues that in t he context of inter national
law, the haze caused by In donesia's fires c onstitutes a vio lation of
the principle of State responsibility, specifically, the responsibility to
prevent transb oundary pol lution from fore st fires. He ar gues that
this principl e imposes obligations on Indo nesia, not only to have le-
gislation and leg al instruments i n place to prevent forest f ires, but also
to take appropri ate measures and c arry out due d iligence to ensure
that forest fir es do not affect other St ates. This responsibili ty also re-
quires Indone sia to ensure effective l aw enforcement, for exam ple by
imposing appropriate sanctions on those who are responsible for
fires.1 Following large fore st fires in 1997, Tan concluded that
Indonesia had v iolated the principle of St ate responsibility, stat ing:
Indonesia is internationally responsible for the occur-
rence of large-scale f ires and consequent transb oundary
injury to neighb ouring States by failing to control the a c-
tions of its citizens with in its territory. It fir st failed to
prevent transbound ary harm by not usin g its legislative
and administra tive powers to the fullest extent possib le
to prevent the fires fro m being started by the comm ercial
enterprises. On ce these fires ha d been detected and
transboundar y harm occasion ed to the injured States,
Indonesia further failed to control the actions of the com-
mercial enterpris es and to compel them to ce ase their
1AKJ Tan, ‘Fore st Fires of Ind onesia: Stat e Responsibi lity and Int ernationa l Liability ’ (1999)
48 Internat ional and Compa rative Law Qua rterly 826, 83 8–839.
DOI: 10 .1111/reel .12284
The many faces of strict liability in Indonesia's wildfire litigation
Andri G. Wibisana
Email: Since 2013, the Indonesia n Ministry for th e Environment and Forest ry has sued
several timber and oi l palm plantations for f ires that have occurred within conces-
sion areas. These gover nment lawsuits are imp ortant, not jus t for reducing the
number of fires in Ind onesia, but also for ga lvanizing a signific ant development of
the nation's law of civil liabilit y for environmental damage. In these c ases, the gov-
ernment has attemp ted to ground its suits in two t ypes of liability, namely the liabil-
ity for an unlawf ul act and stric t liability. The arti cle observes som e inaccurate
interpretations of s trict liability in wildfire litigat ion, where the liability rule is con-
sidered as part of th e liability rule for an unlawfu l act, and as a liability rule r esulting
from the applicat ion of the precautio nary principl e in a fault- based liability r ule.
The application of s trict liability start s with the identification of whet her a defend-
ant's activity can be considered an abnormally dangerous activity. The article finds
that activitie s related to the clearing and drainage of pe atlands are abnormally dan-
gerous because th ey significantly in crease the risk of fires a nd constitute an un-
natural use of land. It con cludes that the application of stric t liability to wildfires is
defendable in so far i t can be proven that the defendant has previousl y conducted
the clearing and drainage of peatlands.
© 2019 John Wiley & Son s Ltd, 9600 Garsing ton Road, Oxford OX4 2D Q, UK and 350 Main Stre et, Malden, MA 02148, U SA.

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