Is regional environmentalism not fully appreciated under Asean agreement? — Roger Chan

SEPTEMBER 17 — The current haze has reached dangerous levels in some parts of the country. So I am boxed in to write about it. Unless hotspots originate in our country, section 29A of our Environmental Quality Act 1974 imposing a severe fine of up to RM500,000 or five years' jail or both for open burning is irrelevant, as haze is normally a wind blown phenomenon.

Of course following the Trail Smelter’s case (1938-41) international environmental law applies (when there is no legally agreed environmental framework between state parties) with the well enunciated principle that no state has the right to permit the use of its territory in such a manner as to cause injury by fumes to the territory of another.

It is easy to formulate a plan of action where two contending states are willing to submit to an arbitral tribunal to adjudicate the dispute and enforcement of the decision is within the means of the delinquent state to carry out.

But what if it is not? What if you need massive resources to address hundreds or perhaps thousands of hotspots.

Here is where I will discuss the Asean Transboundary Haze Pollution Agreement (THPA) and whether we may be too quick to judge its efficacy of addressing the issue.

The recent call for action to refer to the International Court of Justice (ICJ) (MM September 16, 2019) and the Ministry of Energy, Science, Technology, Environment and Climate Change looking into whether there is a need for an Asean Transboundary Haze Act. (NST September 15, 2019)

The call recently by a group of learned writers to refer the matter to the ICJ, with respect, is not a viable option in my humble view as consensus is the basis forsubmission to the jurisdiction of the ICJ.

The other reason is the Asean countries are already treaty bound by the THPA that came into force in 2012 with Indonesia being the last Asean country to join the treaty on January 20, 2015, by depositing the instrument of ratification of the THPA with the Asean secretariat.

Unless a member state pulls out of the THPA then it would be a different consideration. But so far no states have pulled out. So too unless there is something better to improve upon the THPA, I think it’s premature to say we need an Asean Transboundary Haze Act.

What will be the facets of such Act? Is it compliance or lack of penalties being spelt out? What if such Act has less impact than the THPA?

The point I am defending here is the THPA (which is the current regional environmental law applicable in Asean) has not been fully utilised by member states within the spirit of those provisions that was first enacted by the state parties.

Instead a blame game ensued as to in which country the fire started which should not have happened in the first place.

International Environmental Law Standards under the THPA

The THPA recognises that haze pollution must be tackled through concerted efforts and international cooperation of state parties. This goal is pursued in the context of sustainable development and in accordance with the provisions of the THPA (see Article 2). The cornerstone of the THPA is to pursue an Asean model of environmental regionalism.

So if hotspots occur in a receiving state what to do under the THPA?

Because Asean is treated as a regional environmental regime, a regional coordinating body known as the Asean Centre to deal with haze pollution is set up. The task of the Asean Centre is to facilitate cooperation and coordination between the state parties to deal with the transboundary haze issue.

It not only centralises data (including satellite data), standardise them and disseminate to the state parties but also acts as the trigger point to amass all the resources, materials and expertise from all state parties once an environmental emergency is triggered by a national authority in the place where the haze occurs.

This means that there are situation points where state parties cannot deal with the haze problem alone.

According to Article 5 para 2 THPA, the Asean Centre will work on the basis that the designated national authority acts to put out the fires first. If it can put out the fire unilaterally, well and good. The Asean Centre will not swing into action.

What if it cannot? The receiving state party has the option to request the assistance of a fellow state party or even the assistance of an international agency or organization to address the haze issue together. This will be the first tier action.

Alternatively or as a second tier action, the receiving state party can declare an emergency for it to trigger a request to the Asean Centre as it is only when the receiving state party declares an emergency that the Asean Centre can entertain a request for assistance under the THPA.

Otherwise the Aseran Centre has no power to orchestrate a concerted response to the haze problem. The discretion todeclare an emergence however is entirely left to the receiving state party.

Once state party triggers a request for assistance from the Asean Centre, it can become an effective tool for a concerted response to the haze pollution.

The concerted response can be found in Article 12 para 6 of the THPA whereby state parties shall “ identify and notify the AseanN Centre of experts, equipment and materials that could be made available for the the provision of assistance to other parties ...as well as the terms, especially financial, under which such assistance could be provided.”

Under Article 20 para 1 THPA there is a Control Fund donated by state parties, though at time of writing the size of such fund is anything but certain.

Conclusion

In other words there are 10 state parties which are collectively responsible once the role of the Asean Centre is triggered following the declaration of an emergency by the national authority, namely Malaysia, Singapore, Brunei, Myanmar, Vietnam, Thailand, Laos, Cambodia, Philippines and Indonesia.

The THPA can enlarge the involvement of all the state parties through the Asean Centre, if a state party cannot unilaterally handle the problem.

It is my view that it is not a question of assigned responsibility to any party under the THPA but rather

collective responsibility of all state parties warranted at the point of triggering the role of the Asean Centre in orchestrating a collective response.

The current perception of the current transboundary haze issue as though it is a matter between Malayasia and Indonesia alone may need to be corrected when applying a multilateral treaty law such as the THPA in the context of Asean.

* Roger Chan Weng Keng is vice-president of the Malaysian Bar and chairs the Bar Council Environmental and Climate Change Committee (BCECC). These are his personal views and not attributed to any third party or organisation.

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

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