Indonesia's Role in Realizing the Goals of ASEAN's Agreement in Transboundary Haze Pollution

Author:David B. Jerger, Jr.
Position:Executive Managing Editor, Emory International Law Review; J.D. Candidate Emory University School of Law (2014)
Pages:35-45
 
CONTENT
34 SUSTAINABLE DEVELOPMENT LAW & POLICY
GENETICALLY MODIFIED FOOD:
A GOLDEN OPPORTUNITY?
By Susan Johnson*
Genetically modified organisms (“GMOs”) entered the
commercial marketplace in the early 1990s with the
introduction of the infamous yet ill-fated Flavr Savr
tomato.1 Since then, scientists, scholars, journalists, and con-
sumers have debated GMO safety and sustainability. On one
side of the argument are those who maintain that extensive sci-
entific research and regulatory endorsement from entities such
as the National Academy of Sciences and the U.S. Food and
Drug Administration has established the safety and integrity of
GMOs.2 On the other side are those who cite lingering scientific
uncertainty, environmental burdens, and mistrust of the biotech
industry generally.3 These opponents to GMOs point to the mul-
titude of concepts and products once thought safe and scientifi-
cally sound that ultimately proved anything but, such as tobacco
and DDT.4 Still, despite this persistent debate over the virtue of
genetically engineered food sources, their prevalence in the U.S.
food system continues to increase.5 It is therefore crucial that
thorough analysis of GMO safety and sustainability continues
until more questions are answered.
Genetic modification (“GM”) is the alteration of an organ-
ism’s DNA through the synthetic introduction of new traits that
allow manufacturers increased control over genetic structures,
purportedly strengthening the final product’s viability and
appeal.6 In turn, GMO seeds appeal to farmers for their promise
of economically beneficial higher crop yields.7 Consumers may
similarly benefit, as engineered fruits and vegetables are created
to have longer shelf lives and smaller price tags than their unal-
tered counterparts.8 Given the fact that U.S. biotech companies
produce approximately half of the world’s GMO crop seeds,9
generating billions of dollars in annual revenue,10 the biotech
industry has much to gain from scientific confirmation and pub-
lic acceptance of these purported “benefits.”
Despite persistent skepticism, GMOs dominate the domes-
tic market, largely due to powerful initiatives that insulate the
industry.11 Independent scientists who publish studies showing
negative or abnormal phenomena implicating GM products have
frequently endured criticism and backlash from scientific peers
working to preserve GMO-friendly public policies.12 In this cli-
mate of debate, members of the biotech field aggressively defend
industry practices and relentlessly contest any perceived opposi-
tion or legal violation. Industry giant Monsanto, for example,
has sued more than 410 farmers in twenty-seven states,13 in some
instances destroying multi-generational farms in the process.14
By contrast, anti-GMO activists have comparatively fewer and
less powerful legal mechanisms at their disposal, limiting the
ubiquity of their critical message.15
Recently, the decades-old GMO debate has flared again with
the introduction of “Golden Rice,” a genetically modified strain
of rice intended to combat worldwide hunger and disease.16
Articles in The New York Times, Forbes, and Slate (among oth-
ers) have featured the controversial product, prompting support-
ers and opponents to reassert their positions on GMOs in a new
context.17 Golden Rice is fortified with the Vitamin A precursor
beta-carotene, and its creators assert that it will save countless
lives and combat malnutrition and disease on an unprecedented
global scale.18 Beta-carotene is a powerful nutrient found in fruits
and vegetables such as carrots, sweet potatoes, and spinach that
strengthens the immune system, protects and improves vision
and dental health, and delivers cancer-fighting antioxidants.19
Vitamin A deficiency significantly compromises the immune
system and causes blindness in up to half a million children
each year.20 Alarmingly, millions of people in Africa and Asia
who lack this nutrient die annually from diseases to which they
would not otherwise be susceptible.21 Golden Rice skeptics view
it as a wolf in sheep’s clothing—a way for biotech companies
to further infiltrate the global agricultural marketplace under an
altruistic guise with little regard for broader human health and
environmental impacts.22 Activists urge that the real purpose
of Golden Rice is to gain widespread public support for GMO
crops, ultimately producing a windfall for biotech corporations
to the detriment of farmers and consumers.23 They bolster this
assertion by questioning Golden Rice’s viability,24 emphasizing
that target African consumers do not traditionally eat rice25 and
that many of the countries that purportedly stand to benefit have
stringent anti-GMO policies.26
Further criticism is aimed at the unsustainability of GMO
crops.27 For farmers to maintain optimal production they must
apply powerful pesticides, which are genetically modified to
resist the chemicals.28 This unnatural cycle has the potential to
create “super pests” and “super weeds” that may threaten tradi-
tional crop varieties and alter the soil’s chemical composition.29
Though it is difficult to ascertain how extensive or lasting the
damage from these cycles will be, many argue that this uncer-
tainty alone is reason enough to proceed with caution (if at all).30
With the spread of GMO-sourced crops into the human food
chain, a growing number of consumers and activists who oppose
GMO proliferation are using every legal, regulatory, and grass-
roots tool at their disposal to slow the trend.31 In August 2013,
farmers and environmental activists destroyed an experimental
plot of Golden Rice in the Philippines in protest.32 Domestically,
* J.D. Candidate 2014, American University Washington College of Law
continued on page 69
35WINTER 2014
*Executive Managing Editor, Emory International Law Review; J.D. Candi-
date Emory University School of Law (2014). The author can be reached at
DJerger@emory.edu.
INDONESIAS ROLE IN REALIZING THE GOALS OF
ASEAN’S AGREEMENT ON TRANSBOUNDARY HAZE
POLLUTION
By David B. Jerger, Jr.*
I. INTRODUCTION
During monsoon season, from May to September, the
Southeast Asian mainland and Borneo face the pros-
pect of haze arriving from the Indonesian archipelago.1
This haze primarily consists of the dissipated smoke from fires
on the Indonesian island of Sumatra.2 Human activity creates the
haze when individuals and companies cut down trees and burn
peatlands3 to clear the land for small-scale agricultural purposes
or for industrial purposes, such as palm oil plantations and log-
ging.4 Because of monsoon wind patterns and Sumatra’s geo-
graphical proximity to peninsular Malaysia and Singapore, these
two countries are especially susceptible to haze.
Haze can hang over Malaysia and Singapore for weeks
and even months.5 The inhabitants and governments normally
have no recourse but to wait for storms that may shift the haze
elsewhere.6 It is difficult to predict where and when the haze
will arrive, how long it will remain, and how thick it will be.7
These variables depend on the number of “hotspots”––burning
activities resulting in haze––each year. 8 Moreover, air pollution
is complex and therefore hard to regulate effectively. Even when
pollution originates from domestic sources providing govern-
ments with jurisdiction over regulation, creating a regulatory
regime is still problematic.9 Regulation becomes even more
problematic when the pollution source lies beyond the affected
country’s borders. The main reasons transboundary pollution10
is so difficult to regulate are threefold: (1) there is generally no
political will to impose costs domestically when the effects of
pollution are felt abroad; (2) the polluted country faces jurisdic-
tional hurdles when bringing a suit against the polluter country;
and (3) judgments can often be difficult to enforce.11
The Association of Southeast Asian Nations’ (“ASEAN”)
Agreement on Transboundary Haze Pollution (“Ag reement”),
which entered into force in 2003, attempts to create a framework
that will allow parties to reduce transboundary pollution and
the associated harm.12 However, Indonesia, the region’s g reatest
source of transboundary air pollution, has not ratified the treaty.13
Indonesia has repeatedly promised to ratify the Agreement, but
its legislature has refused to act without guarantees from other
ASEAN states that they will not buy timber illegally imported
from Indonesia.14
This article argues that Indonesia should ratify the
Agreement because it creates an effective framework for reduc-
ing transboundary haze pollution without placing new bur-
dens on Indonesia. As a framework treaty, the purpose of the
Agreement is to gather information on the causes of transbound-
ary haze pollution and the actions member-states are taking to
mitigate it. This information will lead to a more complete under-
standing of what actions parties should take to reduce pollution
and how those actions affect pollution. As a result, parties will
adjust their behavior over time, leading to greater mitigation. The
Agreement makes this information compiling and sharing pos-
sible by omitting sanctions or binding adversarial proceedings
from its provisions, which incentivizes a collaborative approach
toward addressing the pollution and gives member-states less of
a reason to report false or inaccurate data.
This article begins by discussing the origin of transbound-
ary haze pollution in Southeast Asia, moves to the background
to and structure of the ASEAN Agreement on Transboundar y
Haze Pollution, and finally argues that Indonesia should ratify
the Agreement.
II. CAUSES OF TRANSBOUNDARY AIR POLLUTION
IN SOUTHEAST ASIA
Haze describes the amount of particulate matter in the air
and its effect on visibility.15 Particulate matter usually enters the
air as a result of smoke from fires and gathers when humidity is
lo w.16 Air is considered “hazy” when ground level visibility is
between 1000 and 2000 meters.17 In windless conditions haze
tends to remain in one location, creating adverse health effects
including reduced lung capacity in the young, cardiovascular
problems, and reduced life expectancy.18 People living in areas
affected by haze may deal with it for weeks or months at a time,
breathing in smoke particulates until a storm system powerful
enough to move or dissipate the dense, “hazy” air passes through
the affected area.
Because storms and wind patterns affect the haze’s location,
haze from one source can travel great distances, even across
national borders, when strong wind patterns prevail.19 Haze
pollution becomes transboundary pollution when it travels from
the state in which it originated (“source state”) across national
borders to the “affected state.”20 Transboundary pollution is an
especially challenging issue in international environmental law
because it is difficult to figure out how transboundary pollu-
tion works and because the benefit of the activity causing the
36 SUSTAINABLE DEVELOPMENT LAW & POLICY
pollution in the source state outweighs the cost of the pollution
there. 21
Transboundary pollution is complicated because it is often
difficult to understand what factors are causing the problem
and how these factors affect each other.22 Scientists and poli-
cymakers must determine where pollutants originate and how
the pollutants interact with large systems such as global air-flow
patterns, which is a highly technical endeavor.23 The science that
deals with these problems is also often being examined for the
first time.24 This introduces a degree of uncertainty to explana-
tions of how the pollution occurs and predictions about where it
will occur next.25
Although transboundary pollution primarily harms affected
states, source states often experience some harm as well.26 But
source states also enjoy the benefits of the activities that cause
the transboundary pollution. The existence of such pollution
suggests that the source state has determined the benefits of the
polluting activity outweigh the cost of regulating the pollution.27
This imbalance makes it unlikely a source state would agree to
a treaty that penalizes the creation of transboundary pollution.
However, the categories of source state and affected state are not
mutually exclusive; in fact, it is common that a state is both a
source state and an affected state.28 In the case of air pollution, a
state can change from a source state to an affected state as easily
as the wind changes direction.29
A. Indonesian Fires
Fires in Indonesia are widely considered the largest contrib-
uting factor to Southeast Asia’s regional haze.30 The haze that
originates in Indonesia is so massive that it has reached beyond
peninsular Malaysia to Thailand, Cambodia, and Laos on the
Asian mainland, and Brunei and the Malaysian states on the
island of Borneo.31 This haze results from fires in Indonesia and
the Indonesian government’s inabil-
ity to prevent or control them.32
Indonesia’s fires are largely a
result of its agricultural industry.
Indonesia has ideal growing condi-
tions for palm trees which produce
palm oil, a major cash crop,33 and
is also home to valuable tropical
timber.34 About sixty percent of
Indonesia’s territory is forest land35
and twenty-two million hect-
ares—half the size of Sweden—are
peatlands.36 In recent years, many
peatlands have been drained to make
palm oil and forest plantations.37
Drained peatlands are more likely
to catch fire, and these fires can
continue burning underground even
after they have been extinguished on
the surface.38 Although some fires occur as a result of “light-
ning strikes on parched, peat-rich lands, 39 there is widespread
agreement that the bulk of Indonesia’s fires are the result of the
slash-and-burn agriculture employed by the palm oil plantations
and logging industries.40
Slash-and-burn agriculture, which relies on fire to clear oth-
erwise seemingly indestructible vegetation, is a traditional prac-
tice for clearing land in Southeast Asia, especially in Indonesia.41
Plantation owners and farmers alike prefer the slash-and-burn
technique because it is cheap, easy, and effective—just light
a match and control the burn.42 The indiscriminate use of this
method, however, destroys the vegetation that covers peatlands,
leaving them exposed and vulnerable to fire.43
Although small-scale farmers do cause fires, their impact
is minimal compared to the impact of logging companies and
plantations.44 Plantation owners use slash-and-burn to convert
logged areas into plantations for palm oil and other cash crops
and for timber and pulp production areas.45 The large-scale
nature of plantations and logging means that these two activities
contribute the most to creating the conditions that lead to wide-
spread and uncontrollable fires.46 The plantations and timber
industry have been able to perform slash-and-burn agriculture
on such a large scale in part because they have been effective in
influencing Indonesian land-use and forest policies to maximize
their own short-term gains.47
The Indonesian government did ban using fire to clear land
in 1995, but this ban has not been effectively enforced due to
Indonesia’s relative poverty and the fact that slash-and-burn
agriculture is a traditional land-clearing technique believed to
create more fertile land.48 The end result is that haze from fires
in Indonesia travels across national borders to Malaysia and
Singapore, creating an international issue.
B. Indonesia’s Failure to Control Fires
In addition to political influence, Indonesia’s size and geog-
raphy make it difficult for the government to adequately prevent
these fires.49 Indonesia is the largest
archipelagic state in the world, con-
sisting of 17,508 islands, 6,000 of
which are inhabited.50 Roughly three
times as large as Texas, its territor y
straddles the Equator and stretches
from the Indian to the Pacific
Ocean.51 Indonesia’s geography as
a sprawling archipelago coupled
with its lack of infrastructure leads
to delays in governmental response
time to fires.52
Peninsular Malaysia and
Singapore are most affected by
Indonesian haze because of their
geographical proximity to the larger
islands of the Indonesian archipelago
and prevailing wind patterns.53 In the
summer of 2012, Malaysia measured
“unhealthy” air quality throughout the country from Kuala
Lumpur, the capital and largest city, to Port Klang, Malaysia’s
largest port.54 During this time, the Malaysian Meteorological
“Drained peatlands
are more likely to
catch fire, and these
fires can continue
burning underground
even after they have
been extinguished on
the surface.
37WINTER 2014
Department also released reports on air quality and sources of
haze, including satellite-identified sources across the Indonesian
archipelago where “uncontrolled daily burning in Sabah,
Sarawak, and Kalimantan” was taking place.55
III. REGULATING TRANSBOUNDARY AIR POLLUTION
Given the interstate nature of transboundary air pollution,
it is regulated, if at all, by international environmental law.
International environmental law is a field that has developed
in the twentieth century through adjudications, soft law dec-
larations, and multilateral agreements. General principles of
international law that have emerged include state sovereignty
over natural resources,56 good neighborliness and international
cooperation,57 sustainable development,58 the precautionary
principle,59 the polluter pays principle,60 and common but dif-
ferentiated responsibility.61 The advantage of these principles
is their clear explanation of a state’s rights and responsibilities
with respect to another state’s environment. Their disadvantage
is that they place a large burden on source states because they
require the source state to act against its self-interest by modify-
ing activities from which it largely benefits simply because they
harm another state. This burden makes it unlikely that source
states would agree to treaties that rigidly adhere to these prin-
ciples or to recognize the jurisdiction of an international court or
arbitration panel that would apply these principles.62
Recognizing these problems, an effective treaty for regulat-
ing transboundary pollution should not pit parties against one
another, but rather create a framework that allows them to work
toward a common goal.63 Such a treaty acknowledges that: (1)
states can work collaboratively to regulate transboundary pollu-
tion, even in the absence of coercive measures such as sanctions
or arbitration; (2) international agreements evolve over time, as
do the national implementing measures, so state cooperation
in refining the treaty outweighs state compliance at any single
time;64 and (3) while states are the primary actors, other actors
including intergovernmental, nongovernmental, and private
industrial and commercial organizations, also play an important
role. 65
A. Problems of Regulating Transboundary Pollution
Transboundary pollution has proven especially difficult
to regulate by way of international treaty for several reasons.66
First, it is difficult to gain consent from source states over an
issue with asymmetrical costs and benefits.67 This is true
whether that consent takes the form of agreeing to adjudicative
measures or ratifying a treaty. Second, even when source states
have consented, affected states rarely invoke litigation under
those principles.68 Consequently, affected states settle for mul-
tilateral environmental agreements (“MEAs”) that only weakly
bind parties.69
Source states may be reluctant to agree to an arrangement
that will upset the status quo because the source state receives
most or all of the economic benefits of the economic activity
that creates the pollution.70 The state has presumably decided
that the cost associated with the pollution that stays within its
borders is an acceptable tradeoff.71 Moreover, if the pollution
results from a disaster, rather than economic activity, the source
state would rather spend resources on disaster response than pay
damages to another party. At the same time, the affected state
obtains no benefit from the economic activities occurring in the
source state.72 Rather, the affected state is forced to bear the cost
of mitigating the transboundary pollution.73
Logically, the source state should bear the cost of its pollu-
tion, as is consistent with the polluter pays principle. The source
state, however, is unlikely to consent to an arrangement that
would evaluate its behavior based on these principles74 precisely
because its behavior directly conflicts with them.75 Although the
affected state will argue that it is fair to make the source state
bear the costs of its pollution, it is difficult in practice to compel
a source state to agree because of this imbalance of interests.76
Some scholars have suggested that measures such as litiga-
tion, arbitration, or sanctions are the most effective way to stop
transboundary pollution.77 This argument is appealing because it
relies on procedures that result in binding judgments for deter-
ring certain activities and enforcing domestic environmental
regulation.78 But despite clear legal principles governing respon-
sibility for transboundary pollution and existing forums to pur-
sue such claims, affected states rarely invoke coercive measures
in international disputes.79 For instance, the Trail Smelter case,80
an arbitration that established the polluter pays principle in the
international context, is arguably as famous for that legal prin-
ciple81 as it is for being an exception to the rule that adjudicatory
measures are not invoked to resolve international environmental
issues.82 Even the Chernobyl disaster did not result in litigation,
despite radiation travelling to over twenty downwind states and
millions of dollars of monetary losses.83
In order for coercive measures––the threat of sanctions or
a binding judgment––to affect behavior, parties must closely
monitor one another’s behavior and be willing to report and
punish noncompliance. This is especially problematic in the
environmental context because environmental problems involve
complex systems, verifying compliance would require develop-
ing expensive monitoring methods and systems, and scientific
uncertainty makes parties reluctant to agree on concrete targets
for emissions or technology standards.84
Moreover, sanctions would not likely stop transboundary
pollution and its causes.85 First, if it is important to the source
state to continue activities that create the transboundary pollu-
tion, it will likely be willing to accept economic sanctions.86 The
source state can divert resources to work around sanctions that
it could have used to reduce transboundary pollution, as the pol-
luting activity continues unabated. Second, if the sanctions do
change the source state’s behavior, it may also require a long
period of time before the effects are significant enough to benefit
the affected states.87
Further, sanctions impose costs on affected states: the
affected states must expend resources to administer the sanc-
tions regime and must assemble and maintain a broad consensus
among parties with respect to the necessity and legitimacy of
those sanctions.88 Because of these costs, states do not enforce
sanctions regularly or effectively.89 The irregular enforcement
38 SUSTAINABLE DEVELOPMENT LAW & POLICY
that does occur may be more for domestic political reasons than
an interest in reliable enforcement.90 Such enforcement then
erodes the legitimacy of the sanctioning body because of the
inconsistent enforcement outcomes.91
In the absence of litigation that results in coercive mea-
sures, international environmental law has turned to multilateral
environmental agreements (“MEAs”) to regulate international
environmental issues. Despite the ineffectiveness of existing
coercive measures, MEAs have been criticized for both lacking
such coercive measures and for consequently having low com-
pliance and weak targets.92 Some have even argued that MEAs
are not meaningful law because they have no mechanism that
will change a party’s behavior.93 Instead, these MEAs require a
meeting of the parties for the purpose of “developing procedures
for implementation and noncompliance within the framework of
the agreement.”94
B. Using a Managerial Model to Regulate
Transboundary Haze Pollution
Despite their seeming ineffectiveness, due at least in part to
the lack of coercive measures,95 MEAs are not failures. Rather,
they are aspirational96 and use a “managerial model” framework
that allows compliance to increase over time.97 While they
are not contracts that commit parties to take action to solve a
problem,98 the managerial model allows the MEA to respond to
changes in technology, scientific understanding, and politics.99
These treaties no longer memorialize political settlements and
arrangements; rather they provide a framework for countries to
use to address complex and ongoing problems, like transbound-
ary pollution.100 In fact, MEAs that only weakly bind parties to
meet loosely defined obligations and have weak or nonexistent
penalties for failing to meet these obligations are an effective
way to mitigate transboundary air pollution.101
1. COERCIVE MEASURES DO NOT
LEAD TO GREATER COMPLIANCE
It is impractical and undesir-
able for an MEA to rely primarily
on a coercive system to regulate
transboundary pollution. Coercive
systems alienate source states, which
adversely impacts affected states
because they have a compelling
interest in keeping the source state at
the table. If the transboundary pollu-
tion is problematic when the source
state is party to the MEA, how much
worse might it be if the source state
was not?102 The answer to this ques-
tion reveals the paradox of regulating
transboundary pollution: in some
ways, the source state has greater
bargaining power. Absent its participation, the MEA would
almost certainly be ineffective in regulating the transbound-
ary pollution.103 In most cases, the source state is best able to
monitor the pollution at its creation and early stages, and to take
action to prevent it from becoming transboundary pollution. The
source state is also the only state with authority to regulate the
activities taking place within its borders and to sit in judgment
when actors violate its laws.104
This is not to say that coercive measures have no place in
MEAs. Coercive measures can set targets that have an action-
forcing effect even if parties never invoke them.105 However,
coercive measures will have no effect if the source state is not
already a party to the MEA. In fact, such provisions may per-
suade some source states to remain outside of the MEA.
2. THE MANAGERIAL MODEL ALLOWS COMPLIANCE TO
INCREASE OVER TIME
When MEAs are thought of as frameworks, there is less
emphasis on satisfying specific terms in the MEA at any single
point in time.106 The emphasis shifts to the parties periodically
reevaluating “the interpretation, elaboration, application, and,
ultimately, enforcement of international rules” as new infor-
mation about the nature of transboundary pollution and state
behavior becomes available.107 The managerial model uses
certain techniques to make this more discursive approach work:
increased transparency, coordination among the parties, data
collection, and reliance on non-state actors.108 This approach
especially makes sense for transboundary pollution where par-
ties view the issue as “a problem to be solved, rather than a claim
to be settled or a wrong to be adjudicated.”109
Unlike the traditional model with its coercive measures, the
managerial model fosters cooperation between parties.110 This
cooperation allows parties to periodically review actions taken
by parties to the agreement and non-parties.111 The managerial
model relies on transparency, coordination, reporting, verifica-
tion, and monitoring to ensure that cooperation between the par-
ties leads to more effective solutions.112
To create transparency, an MEA
must ensure parties have access to
information on the activities each
party is undertaking and that policies
governing their activities exists.113
After parties have evaluated the
information, they can better deter-
mine what objectives to focus on.
They can then decide what actions
each party should take to meet
those objectives, while taking into
account what actions each party
can take. This information lets par-
ties know whether other parties are
following the MEA’s norms, rules,
and procedures, and thus making a
good faith effort to comply with the
MEA, which can also lead to greater
effectiveness.114
Transparency may also serve as a deterrent for parties that
are considering noncompliance.115 If all parties are complying
with their obligations under the MEA, it may motivate a wavering
“[Parties] can then
decide what actions
each party should
take to meet those
objectives, while
taking into account
what actions each
party can take.
39WINTER 2014
party to make an effort to comply in order to avoid being an out-
lier. In addition, this information can be used to mold the MEAs
norms, rules, and procedures if parties are unable to comply, or
compliance has not lead to greater effectiveness in mitigating
transboundary pollution.116 In the managerial model, rather than
blaming parties for noncompliance or ineffective action, the par-
ties modify the MEA to more effectively address the problem.
The managerial model also relies on parties coordinating
with one another to mitigate transboundary pollution and oth-
erwise meet the MEA’s goals.117 These coordination efforts can
take the form of notifying a party about pollution, setting up
information exchanges, or simply requiring parties to take “all
appropriate measures” in preventing and mitigating transbound-
ary pollution.118 In some cases, these measures are all that is
needed to mitigate transboundary pollution.119 Coordination is
especially important for addressing problems too complex for
one party to solve on its own,120 and for reducing higher costs of
coordinating on an ad hoc basis.121
One example of an MEA successfully addressing trans-
boundary air pollution through coordination is the Convention
on Long Range Transboundary Air Pollution (“LRTAP”).122
LRTAP entered into force in 1983123 and now binds forty-three
states in Europe, Asia, and North America.124 LRTAP was
initially conceived to combat air transport of sulphur dioxide
(“SO2”),125 which leads to acid rain, although the treaty’s provi-
sions were written broadly enough to encompass other pollut-
ants that can be conveyed through the air.126 In fact, it has been
amended several times since entering into force to include other
pollutants and has led to substantial reductions in the level of
covered pollutants present in the atmosphere.127
LRTAP came about because Scandinavian states believed
increased SO2 emissions were acidifying lakes in the region.128
Under LRTAP’s first incarnation, parties were required only
to report their SO2 emissions.129 Scientists at the European
Monitoring and Evaluation Program (“EMEP”) then analyzed
these reports, which resulted in the standardization of data col-
lection and reporting procedures across countries.130 After doing
so, they were able to compare the emissions data to the rate of
acidification of lakes and forests while taking into account wind
patterns and concluded that acid rain was damaging forests
and lakes, as the Scandinavians had suspected.131 The national
reporting that LRTAP mandated and the EMEP data standardiza-
tion led to the coordination of national scientific efforts, which
in turn led to the overall success of LRTAP.132
As the LRTAP example shows, cooperation can reduce
transaction costs by creating standard reporting formats and
uncertainties by generating information.133 LRTAP requires par-
ties to report, but the reports are not reviewed by any formal
body; they are simply published with gaps and showings of
noncompliance.134 Importantly, LRTAP did set targets on emis-
sions,135 but the reports are not used to single out violators.136
They are instead used to “generate pressure for cooperative
action to improve overall regime effectiveness.137 As the suc-
cess of LRTAP shows, the importance of coordination cannot
be exaggerated when trying to mitigate a problem as complex as
transboundary air pollution.
Reporting and data collection often begin by member states
self-reporting.138 This avoids the problems of infringing on state
sovereignty and coercion.139 However, “the level of reporting
[depends] on a variety of factors, most prominently the impor-
tance of the subject matter, the effectiveness of the secretariat or
other central [MEA] institutions, and the capacity and resources
of the reporting state.”140
Most MEAs rely on parties self-reporting.141 Secretariats
often are required to verify the information, but many do not
expend the resources or have the capacity to do so systemati-
cally.142 Verification of monitoring results is used to determine
how effectively the problem is being dealt with, rather than to
search for violators to punish.143 Once the center that records
the data standardizes it, the data becomes easier to verify.144
For example, the EMEP serves this function for LRTAP.145
Assessment allows parties to learn how to improve performance
by individual parties and the regime as a whole.146
It is very important that MEAs achieve high-quality reports
because these reports provide information on a party’s compli-
ance and the effectiveness of the MEA. The nature and scope
of the reporting requirements directly impact the quality of
response.147 Reporting provisions can require that parties report
on a number of topics, for example: measures taken to implement
the MEA,148 success in meeting MEA obligations,149 proposed
future policies and programs relevant to the MEA’s objectives,150
and advance notification of activities that may cause transbound-
ary haze pollution.151 In this way, reporting can detect compli-
ance problems or the potential for compliance problems early
on.152 Because environmental agreements often require highly
scientific or technical reports, reporting can be particularly dif-
ficult for developing countries, which have greater constraints
on their resources.153 One way to reduce the burden of reporting
on developing countries is to provide a fund to help them buy
monitoring equipment and train people to use it.154
Also embodied in the managerial model is the notion that
effective regulation can result from cooperation not only between
parties, but between an array of institutions, including private
businesses and nongovernmental organizations (“NGOs”).155
This concept recognizes that legal systems do not operate as
machines, but rather as “a kind of regulatory commons, where
effective action is dependent upon alliances of groups overcom-
ing collective action barriers and pressuring administrators
to respond.”156 Because NGOs have the ability to affect state
behavior, they play a role in addressing the enforceability con-
cerns some have about MEAs.157
NGOs can assist in creating effective MEAs158 by collabo-
rating with governments to improve implementation of MEA
obligations159 and raising awareness of activity that impacts the
environment.160 They can provide independent information and
data or verify data reported by the parties.161 NGOs can also
bring pressure on noncompliant states in ways that a party to
the MEA, which may have broader concerns about maintaining
international relations, could not.162
40 SUSTAINABLE DEVELOPMENT LAW & POLICY
The managerial model enhances cooperation between par-
ties by focusing their attention on common goals to be achieved.
This is in contrast to the traditional approach, with its focus on
setting targets and then punishing parties when they do not reach
those targets. This model in turn provides states with an effective
framework for mitigating international environmental problems
such as transboundary air pollution.
IV. ASEAN AGREEMENT ON TRANSBOUNDARY
HAZE POLLUTION
The ASEAN Agreement on Transboundary Haze Pollution
follows the managerial model and thus illustrates how MEAs
that follow the managerial model can: (1) bring together par-
ties that are skeptical of binding agreements; and (2) enhance
cooperation among parties in mitigating transboundary pollu-
tion. ASEAN adopted the Agreement on Transboundary Haze
Pollution (“Agreement”) in June 2002.163 The Agreement
entered into force on November 25, 2003, after ratification by
six countries164 and places binding obligations on the parties to
take steps to “prevent and monitor transboundary haze pollution,
which should be mitigated” in a way consistent with sustain-
able development.165 The current parties to the Agreement are
Singapore, Malaysia, Myanmar, Brunei, Vietnam, Thailand,
the Philippines, and the Lao People’s Democratic Republic.166
Indonesia has signed but not ratified the Agreement.167
The origins of the Agreement trace back to the regional
haze crisis of 1997.168 In that year, Southeast Asia faced an
environmental catastrophe that led to “unprecedented health and
financial damages” throughout the region.169 Fires in Indonesia
from logging and palm plantations, especially on Sumatra and
Kalimantan, raged, in part because of severe drought caused by
El Niño conditions.170 When wind patterns shifted, the haze from
the fires traveled from Indonesia to Malaysia, Brunei, Singapore,
Thailand, and the Philippines.171
Throughout the crisis, the U.S. National Oceanic and
Atmospheric Administration monitored the affected areas.172
Schools and offices shut down, planes crashed, and people died
from acute respiratory failure.173 By the time the fires were
brought under control, the region had suffered widespread
forest destruction, losing nearly ten million hectares.174 The
fires destroyed portions of seventeen protected forest areas in
Indonesia and land that could have otherwise been used for
agriculture.175
The effects were not limited to the natural environment:
millions of people in the region were exposed to the haze for
weeks.176 The haze and its attendant harm were concentrated
most heavily among Indonesians living on Sumatra and
Kalimantan, the islands where the fires began.177 While the ulti-
mate cost of the fires and their haze is incalculable, estimates
run into the billions, from US$ 4.5 billion to US$ 9.3 billion.178
These figures include the destruction of farmland, both small-
scale and industrial timberland and the haze’s impact on “tour-
ism, foreign investment and additional health care costs.”179 In
addition, the haze impacted long-term human health, biological
diversity, farmland productivity, and atmospheric levels of
greenhouse gases.180
A. ASEAN Norms
ASEAN has reinforced the principles of non-interference
and national sovereignty in the region, a concept referred to as
the “ASEAN way.181 Because ASEAN member-states prefer to
address issues in a “non-legal, consensual” manner,182 it is nota-
ble that every ASEAN member-state has signed the Ag reement
and, with the exception of Indonesia, ratified it.183
ASEAN was founded in 1967 by Indonesia, Malaysia,
Thailand, the Philippines, and Singapore through the Bangkok
Declaration.184 Created to counteract the destabilizing effects
of the Vietnam War on the region and restive separatist popu-
lations around border areas,185 ASEAN established goals to
“promote active collaboration and mutual assistance on matters
of common interest,” provide “training and research assistance,
“collaborate more effectively . . . , raise the living standard of
their peoples,” and “maintain close and beneficial cooperation
with existing regional and international organizations” in light
of the recognition that the world is becoming “increasingly
interdependent.”186
While the Bangkok Declaration’s emphasis on cooperation
and working together might suggest member-states would cede
authority to a central governing body, this has not been the case.187
The region has seen relative stability during ASEAN’s forty-six
year existence, and ASEAN member-states have successfully
worked together to overcome external threats, while adher-
ing to the ASEAN norms. In keeping with the “ASEAN way,”
ASEAN’s first response to the 1997 fire crisis was to develop
the nonbinding Regional Haze Action Plan.188 The ASEAN
Ministerial Meeting on Haze endorsed the Plan in 1997,189 and in
2002 the Plan was superseded by the Agreement.190
Building on ASEAN’s past environmental treaties,191 the
Agreement places binding obligations on the parties to take
steps to “prevent and monitor transboundary haze pollution,
which should be mitigated” in a way consistent with sustainable
development.192 However, despite being referred to as “bind-
ing,” the provisions are written in a way that gives parties broad
discretion over the extent and types of activities they will engage
in to mitigate the transboundary pollution, consistent with the
managerial model’s de-emphasis on specific, binding targets
that parties must meet.193 Also in keeping with the managerial
model,194 the Agreement expects parties to settle disputes about
compliance through consultation or negotiation.195
In these respects, the Agreement is similar to LRTAP:
they both impose few concrete obligations on the parties and
are drafted to allow for interpretation. For instance, parties to
the LRTAP were bound to “endeavor to limit and, as far as
possible, gradually reduce and prevent air pollution including
long-range transboundary air pollution.”196 Nearly every word
in this provision gives parties power to interpret the obligations
they are taking on—“endeavor,” “as far as possible,” and “gradu-
ally reduce” are all qualifiers typical of the managerial model’s
focus on collaboration rather than coercion. These provisions
41WINTER 2014
seem to impose few substantive requirements on parties, but
that LRTAP has still managed to achieve substantial reductions
in transboundary air pollution, suggests that the Agreement can
also be successful and lead to the mitigation of transboundary
haze pollution in Southeast Asia.197
The Agreement does place some
binding obligations on parties, but
most obligations are defined in gen-
eral, conditional terms. In all cases,
parties must take “legislative, admin-
istrative and/or other measures to
implement their obligations.”198 But
rather than meet quantitative targets,
parties must “undertake measures”
to prevent and control activities that
may lead to transboundary pollu-
tion.199 This conditional language
does not concern itself with whether
parties are complying with the Agreement at any point in time.
Rather, it uses the managerial model, which recognizes that
an MEA’s goals and paths to those goals will change as new
information about the causes of transboundary pollution and the
effects of parties’ mitigating actions come to light.200
According to the agreement, parties must: (1) “promote [a]
zero burning policy . . . [e]nsuring that legislative, administrative
and/or other relevant measures are taken to control open burning
and to prevent land clearing using fire;” 201 (2) “[p]romot[e] and
utiliz[e] indigenous knowledge and practices in fire prevention
and management;” 202 (3) “strengthen local fire management
and firefighting capability and co-ordination;”203 (4) “promot[e]
public education and awareness-building campaigns and
strengthen community participation in fire management;” 204
(5) take appropriate measures to monitor all fire prone areas,
all land and/or forest fires, environmental conditions conducive
to such land and/or forest fires, and haze pollution arising from
such land and/or forest fires;205 and (6) “promote and support
scientific and technical research programmes related to the root
causes and consequences of transboundary haze pollution.”206
The parties’ more concrete obligations include: (1) “[i]dentify-
ing and monitoring areas prone to the occurrence of land and/or
forest fires;”207 (2) designating a National Monitoring Centre;208
(3) initiating immediate action to control or put out fires;209
(4) designating Competent Authorities and a Focal Point,
which will oversee the administration of the provisions of the
Agreement;210 (5) preparing standard operating procedures for
national action;211 and (6) being able to mobilize the resources
needed to respond to and mitigate haze pollution.212
As is apparent from the Agreement’s language, many of
the specific activities parties are required to undertake are con-
ditional. This choice reflects the fact that parties have limited
resources to devote to the activities, and that because there are
still gaps in information, it is not clear exactly what steps need
to be taken. These gaps allow parties to experiment with differ-
ent approaches to the obligations and report their successes and
failures.
B. Managerial Model Components of the Agreement
The Agreement relies on several structures to facilitate
coordination and information reporting and sharing among par-
ties, each of which is consistent with the managerial model of
MEAs.213 These structures are: (1) the ASEAN Coordinating
Centre for Transboundary Haze
Pollution Control, (2) the Secretariat,
and (3) the Transboundary Haze
Pollution Control Fund.214
The ASEAN Coordinating
Centre for Transboundary Haze
Pollution Control (“Centre”) pro-
motes transparency and coordina-
tion by gathering data, and then
standardizing and releasing that data
to parties much like the EMEP.215
The Centre’s functions are an
extension of ASEAN’s Specialised
Meteorological Centre (“ASMC”), which was established in
1993 to enhance collaboration between member-states’ national
meteorological services.216 Since 2003, ASMC has worked in
conjunction with the Centre by monitoring the ASEAN region
for land and forest fires and transboundary haze.217 By perform-
ing these functions, the Centre and the ASMC are both collecting
and generating information that will give parties more advance
notice of conditions in which transboundary haze pollution may
affect them.
The Centre also receives data compiled by parties’ national
monitoring centres.218 Like the EMEP, the Centre “consolidate[s]
and analyze[s] the data” so that it can assess environmental and
human health risks each party faces from fires and consequential
transboundary haze pollution.219 Having a centralized database
allows for more efficient communication and thus decreases the
time parties need to spend searching for this data. Rather than
soliciting the other parties one by one when a party believes they
have data suggesting transboundary haze is imminent, parties
can obtain that data from the Centre.220 In addition to quicker
access to the data, parties are able to understand the data better
because the Centre standardizes reporting formats. This means
parties will not have to spend time and resources trying to make
sense of data that is reported. As the Centre becomes more
sophisticated, it could even play a more proactive role by analyz-
ing the data and reporting it to parties.
Parties must also inform the Centre and other parties of the
measures they have in place to implement the Agreement.221 By
reporting on these steps, all parties are reassured that each is
making a good faith effort to comply with the Agreement, which
will reinforce the parties’ confidence in one another and lead to
greater coordination.222 Moreover, reporting allows the Centre
to analyze the relative effectiveness of each party’s measures and
determine why some succeed and some do not. This role is par-
ticularly important in the case of “zero burning” policies because
Agreement parties currently have little experience enforcing and
explaining the benefits of these policies to communities where
they remain the primary method of clearing land.223
“These provisions
seem to impose
few substantive
requirements on
parties . . .
42 SUSTAINABLE DEVELOPMENT LAW & POLICY
The ASEAN Secretariat plays an important role in imple-
menting the Agreement by facilitating coordination among the
parties.224 To facilitate coordination, the Secretariat arranges
meetings and disseminates information to parties.225 Above all,
the Secretariat must arrange the Conference of the Parties to
provide the parties an instance to evaluate the progress toward
the Agreement’s goal of mitigating transboundary haze and the
effectiveness of the methods used to reach that goal.226 Based on
this evaluation, parties can decide to revise parties’ obligations
or impose more concrete obligations in light of evolving scien-
tific understanding and the relative effectiveness of implementa-
tion measures.227
To assist parties in implementing the Agreement, the
Agreement established the Transboundary Haze Pollution
Control Fund (“Fund”).228 The Secretariat administers the Fund,
which parties and other sources contribute to on a voluntary
basis.229 For developing countries, a fund is essential for the suc-
cess of an environmental agreement, as some countries will not
have the resources to set up monitoring stations and train per-
sonnel.230 Unfortunately, the parties have only contributed US$
240,329 to the Fund to date, 231 while the annual cost of dealing
with transboundary haze may be as high as US$ 60 million.232
However, the Agreement is silent on how to allocate the money
in the Fund giving the Secretariat discretion to redirect spending
to more effectively implement the Agreement in response to new
information. 233
C. Other Coordination Provisions
The Agreement also contains two unique coordination pro-
visions. Parties must: (1) “[p]romote the development of mar-
kets for the utilization of biomass and appropriate methods for
disposal of agricultural wastes;”234 and (2) “[f]acilitate mobilisa-
tion of appropriate resources within and outside the parties.”235
The “biomass” provision recognizes that peatlands, as
biomass, are a large cause of the fires that create transbound-
ary haze.236 By developing markets for biomass, the Agreement
incentivizes the harvest and controlled burning of peat by turn-
ing it into a product rather than a byproduct.237 The market also
creates an incentive to manage peatlands more effectively so
that the peat is not wasted. This provision, with its emphasis on
reducing the chances of peatlands catching fire, is akin to the
“zero burning” policies in that both protect peatlands vulnerable
to fire.238
The “mobilisation of appropriate resources” provision is
a feature of the Agreement that at first seems to conflict with
ASEAN’s emphasis on sovereignty and noninterference. Under
this provision, parties can request assistance from other states,
including non-parties, and international organizations to help
mitigate haze pollution within their territory.239 However, parties
have almost total control over the requested assistance when it
is in their territory. When a party declares an emergency, it can
request that the Centre solicit assistance from other parties.240
Parties then decide whether they will provide assistance and if
so, what kind of assistance they will provide.241 If parties do
provide assistance, the receiving party will facilitate entry to,
departure from, and transit within its territory, and exempt the
assisting party from taxes, and any other charges that would nor-
mally be assessed.242 In addition, the party receiving assistance
will control all aspects of the assistance when it is in their ter-
ritory.243 Thus, states still retain their sovereignty and enjoy the
benefit of greater resources.
With its conditional language, its establishment of struc-
tures that facilitate information gathering, and overarching
goal of coordination between the parties, the Agreement is con-
sistent with the managerial model. Despite these features, the
Agreement’s ultimate success depends on Indonesian ratification.
V. INDONESIAN RATIFICATION: A STEP TOWARD
MITIGATING TRANSBOUNDARY HAZE POLLUTION
Although the Agreement provides an effective framework
for mitigating transboundary haze pollution, Indonesia has not
ratified it.244 The ASEAN community and Indonesia’s president
favor ratification, but Indonesia’s domestic politics have created
a barrier to ratification.245 Even so, Indonesia has effectively
been complying with the Agreement through its actions.246
These actions have generated information and contributed to
implementing the Agreement’s provisions, but they have taken
place on an ad hoc basis that is inadequate to mitigate the trans-
boundary haze.247 Both the ASEAN community and Indonesia
would benefit by Indonesia’s ratification of the Agreement.
A. Barriers to Ratification
Domestic politics can be a barrier to ratification, especially
when a state is concerned that ratification will create expensive
obligations.248 Once ratified, the state will likely be the primary
enforcer of the MEA and the primary decision-maker on how
to implement it to achieve compliance.249 However, because
the Agreement follows the managerial model, Indonesia would
have latitude in deciding what its terms mean and how to comply
with the standards created.250 Despite international consensus
that Indonesia should ratify the Agreement, its failure to do so
reflects the difficulty of “navigat[ing] between what is achiev-
able internationally while constantly negotiating and using what
is acceptable domestically.”251 At a recent meeting in Bangkok,
the other ASEAN environmental members “urged Indonesia to
ratify the [Agreement] as soon as possible.”252 While Indonesia
has publicly stated it is prioritizing ratifying the Agreement,253
ratification has been stalled by the legislature since 2008 when
the legislature voted against ratification because it felt ASEAN
was not doing enough to reduce the trade in timber illegally
logged and exported from Indonesia.254
B. Advantages of Indonesian Ratification
Indonesian ratification would allow ASEAN to more effec-
tively deal with transboundary pollution. Indonesia is already
taking action to mitigate transboundary haze, but Indonesia’s
current ad hoc approach is not sufficient to address such a
complex problem. The Agreement creates a framework that will
allow Indonesia to perform the activities it is already engaged in
more systematically. These activities bring Indonesia effectively
43WINTER 2014
into compliance with the Agreement, and would form the basis
for future efforts within the Agreement.
1. INDONESIAS CURRENT ACTIONS
Indonesia is also already taking action to mitigate trans-
boundary haze. Although not a party to it, Indonesia is effec-
tively complying with the Agreement. For instance, Indonesia
recognizes the damage that fires from plantations and logging
operations cause domestically and has taken steps to prevent
this damage by passing a zero-burning policy and creating a
fire brigade, each of which is an action required to comply with
the Agreement.255 Further, Indonesia has committed to inter-
national efforts through the Sub-Regional Ministerial Steering
Committee on Transboundary Haze Pollution (“MSC”) and
Indonesia’s Plan of Action, as well as efforts by an NGO, the
Roundtable for Sustainable Palm Oil.
Indonesia is a member of the Sub-Regional Ministerial
Steering Committee on Transboundary Haze Pollution formed
in November 2006.256 Many of the MSC’s activities are similar
or identical to the activities parties are required to take under the
Agreement. For instance, the MSC has discussed sharing con-
cession maps that show where burning is taking place and hold-
ing those who are doing the burning responsible.257 Recently, the
MSC agreed to share concession maps between governments.258
The MSC has also agreed to establish a Technical Task Force
whose role would be to monitor fires for MSC members.259
The MSC also discussed implementing the Strategic
Review of MSC Programmes and Activities in 2012.260 The
Strategic Review includes bringing on early warning systems,
refining the Fire Danger Rating System, introducing training
courses offered by the Regional Haze Training Network, and
organizing an MSC Forum.261 Moreover, because the actions
required under the MSC are similar to actions the parties to the
Agreement take, the MSC is creating inefficiency by requiring
parties to the Agreement to perform duplicate work. Indonesia,
on the other hand, is already sharing information, monitoring
fires, and evaluating programs it has in place, but none of this
information is submitted to the Centre.262 Having this data in
separate locations delays the standardization of the information,
and by extension, coordination.
Indonesia also has a Plan of Action in Dealing with
Transboundary Haze Pollution that creates obligations similar to
the Agreement’s.263 This Plan involves educating people about
zero burning techniques and developing and maintaining a
firefighting force.264 The Plan is designed to educate local com-
munities about methods to prevent and mitigate forest and land
fires.265 As part of the Plan, Indonesia has identified “[thirty-
five] fire-prone districts in [eight] provinces” that need special
attention.266 The Plan has also invited ASEAN member states,
all of whom are parties to the Agreement, to cooperate with one
area in particular to build its capacity to deal with land and forest
fires.267
As a part of the Plan, Indonesia has also cooperated bilater-
ally with Singapore to mitigate transboundary haze pollution268
by reducing fires in the Jambi Province.269 The Jambi province is
located on Southern Sumatra 270 and has 92 thousand hectares of
palm oil plantations and 59 thousand hectares of rubber planta-
tions.271 Part of the region has peatland areas between fifty and
eight hundred centimeters deep which are prone to catching fire
due to the plantations’ use of slash-and-burn agriculture.272 As
part of this coordination effort, Singapore set up air monitoring
systems, trained Indonesians how to use them, and donated them
to the Jambi province.273 While this coordination is a positive
development and may improve conditions there, it could be more
effective at mitigating transboundary haze overall if it took place
within the Agreement because this effort could be more easily
duplicated and improved upon if all parties were exposed to its
development.
Some ASEAN members believe that sustainable palm
oil production is one avenue to reducing regional haze as
well as a way to increase palm oil farmers’ salaries.274
Marketing a sustainably farmed product has become possible
because consumers are becoming aware of the environmen-
tal effects of industrial agricultural practices taking place
in Indonesia.275 The Roundtable for Sustainable Palm Oil
(“Roundtable”), established by the World Wildlife Fund in 2001,
has created a designation for palm oil products produced sus-
tainably.276 The Roundtable’s work thus creates an incentive for
Indonesia to ratify the Agreement so that the country can take
advantage of this label.
Taken together, these actions show that Indonesia is
effectively complying with the conditional language of the
Agreement. But because these actions are occurring through
various unconnected arrangements, the lessons learned are not
being exploited to their full potential.
2. RATIFICATION WOULD BRING THE BENEFITS OF THE
MANAGERIAL MODEL TO THE AGREEMENT
Indonesia’s efforts to mitigate transboundary haze are
important in their own right. But if it were to take these actions
as a party to the Agreement, both Indonesia and other par-
ties would benefit from the consolidation of information and
enhanced coordination. Indonesia itself would benefit from rati-
fying the Agreement through: (1) more systematic and sustained
coordination, (2) access to the Fund, and (3) the ability to shape
the content of the Agreement.
By ratifying the Agreement, Indonesia would benefit from
greater coordination from the greater aggregation of informa-
tion, the standardization of that information, and greater assis-
tance from parties who are reassured by Indonesian ratification.
Indonesia’s coordination with Singapore in addressing haze in
Jambi province has provided information on how to mitigate
transboundary haze pollution. The value of this information
is limited if it is not shared with other parties. Moreover, if
Indonesia’s coordination efforts are restricted to ad hoc arrange-
ments, it is more likely that the improvements in mitigating
transboundary haze and the lessons learned from efforts such as
the Jambi province effort will remain limited only to the goals of
those arrangements. By reporting this information to the Centre
as a party, however, the information is no longer standing alone;
44 SUSTAINABLE DEVELOPMENT LAW & POLICY
it is now one piece used to solve the larger puzzle. Indonesia
would also get the benefit of learning from other parties’ experi-
ences in implementing “zero burning” policies.
In addition, Indonesia would benefit from the Centre’s work
on standardizing data. For each ad hoc arrangement to which
Indonesia is a party, the resultant data could be communicated
in a different format. Working within the Agreement, the Centre
would standardize this information so that it is more meaningful
for the country. Indonesian ratification would also lead to greater
coordination because it will reassure parties that Indonesia takes
the transboundary haze pollution seriously.277 As a result of this
act, which is largely symbolic given Indonesia’s ongoing efforts,
parties may be more willing to devote resources to the Fund.
Further, because the Secretariat’s only guidelines are to
use the Fund to “implement” the Agreement, the entire Fund
could very well be spent on implementation measures within
Indonesia.278 Because the transboundary pollution is almost
totally unidirectional,279 it would make sense for resources in the
Fund to be spent on problems relating to the monitoring and pre-
vention of fires, problems which are largely in Indonesia.280 In
this way the Fund could reduce the asymmetry of the costs and
benefits that often accompany transboundary pollution, making
ratification more attractive to Indonesia.281
Using the Fund to prevent and monitor fires (as opposed
to haze) also has the advantage of
reducing the amount of pollution that
becomes transboundary pollution
most effectively by addressing the
pollution at its source.282 Admittedly,
given the disparity between the Fund
and the estimated cost of mitigating
transboundary haze, a promise to
allocate the Fund in this way may not
create large benefits for Indonesia,
at least initially. However, the Fund
may grow if Indonesia ratifies the
Agreement. Indonesian ratification
would allow the Fund to be spent
more efficiently. As the biggest
source state, and thus the biggest
contributor of transboundary haze
pollution, it is most efficient to spend
Fund resources in Indonesia.
Indonesia should also ratify the
Agreement to be able to take a more
active role in shaping the goals and
implementation measures of the
Agreement. If a state has an inter-
est in a framework MEA’s goals and
the MEA is based on the managerial
model, it may be in the state’s inter-
est to ratify the treaty. As a party to
the MEA, that state has a role in reevaluating the MEA as new
information on compliance, effectiveness, and the understand-
ing of the causes and effects of transboundary haze emerge.283
Ultimately, discussions between the parties shape the MEA’s
framework.284 Moreover, because of the importance of keeping
source states in the MEA, affected states may be more willing to
compromise, which gives Indonesia an advantage if it is at the
table.285
If the Indonesian legislature is still concerned with the ille-
gal timber trade and its role in contributing to fires in Indonesia,
it makes more sense to ratify the Agreement and then push for
changes to protect Indonesian forests rather than to make pro-
tection a precondition for ratification. By becoming a member
party, Indonesia would not only have more opportunities to share
information and coordinate with other parties, it would also
have a framework within which it could advocate for changes
it thinks best mitigate transboundary haze pollution. The
Agreement obligates parties to study the “root causes” of the
haze, so Indonesia could begin compiling data on the effects that
deforestation from illegal logging has on haze creation.286 This
information could lead to an expansion of parties’ obligations
under the Agreement’s “biomass” provision, which focuses on
protecting degraded peatlands from catching fire but is silent
on preventing the peatland degradation that leaves the peatlands
vulnerable to fire in the first place.287 If Indonesia can persuade
the other parties that the illegal timber trade results in a greater
likelihood of peat fires, it may also be able to persuade other
parties that an emphasis on legally
sourced timber is one measure that
can prevent peat fires. This could be
accomplished through a variety of
ways (e.g. strengthening domestic
laws or devising a way to identify
legally or sustainably sourced tim-
ber). But as the parties better under-
stand the issue and experiment with
implementation measures to address
it, they will become more effective at
achieving this goal.
3. BENEFITS FOR ASEAN
ASEAN will also benefit from
Indonesian ratification. Greater infor-
mation sharing by Indonesia will
correct the data imbalance between
source states and affected states,
and Indonesia’s efforts to manage
peatlands may prove useful to other
countries as they industrialize.
Absent systematic sharing by
Indonesia, the major source state,
only affected states are submitting
information to the Centre. This
means the Centre is compiling and
analyzing information about moni-
toring and preventing haze, which affects the source states, but
not about fires, which occur in Indonesia, the major source
state. One important exchange of information is the sharing of
“While the
Agreement may
not eliminate the
transboundary
haze pollution
immediately, it
can bring all the
stakeholders together
to facilitate a more
lasting solution than
they would otherwise
be able to reach on
their own.
45WINTER 2014
concession maps,288 and data Indonesia has that cross-references
hotspot289 locations to identify companies burning in those
areas.290 By sharing these maps with the precise locations of
plantations, affected states can perform more targeted monitor-
ing because they will better understand where the fires originate.
This monitoring can then lead to a more complete understanding
of how the haze pollution travels, allowing the Centre to develop
information about preventing and managing fires.
While Indonesia may be the only source state at present,
other states may become source states. ASEAN member-states
are industrializing, and the region has thirty-five million hect-
ares of peatland.291 As pressure on the natural resources of other
states increases, the likelihood of transboundary haze originating
in these states also increases. Just as other states may become
source states, Indonesia may become an affected state. Parties
will be able to deal more effectively with these shifts in roles if
there is information about monitoring and preventing haze and
fires for them to draw on.
VI. CONCLUSION
The benefits of ratification to Indonesia and ASEAN should
be enough to overcome the domestic hurdles to ratification.
These benefits include greater coordination among the parties
in addressing the transboundary haze originating in Indonesia by
facilitating the spread of information and by allowing Indonesia
to shape the Agreement based on its experiences as the only
major source state in the region. These benefits are not limited
to the current problem; they will also apply in the future when
other states become source states.
Indonesia should ratify the Agreement because it creates an
effective framework for mitigating transboundary haze pollution.
By following the managerial model, the Agreement recognizes
that complex problems like transboundary haze pollution are
best addressed through systematic and sustained coordination
between parties. While the Agreement may not eliminate the
transboundary haze pollution immediately, it can bring all the
stakeholders together to facilitate a more lasting solution than
they would otherwise be able to reach on their own.
Endnotes: Indonesia’s Role in Realizing the Goals of ASEAN’s Agreement on
Transboundary Haze Pollution
1 See Indonesia Blamed as Haze Returns to Malaysia, JAKARTA GLOBE, June
16, 2012, http://www.thejakartaglobe.com/home/indonesia-blamed-as-haze-
returns-to-malaysia/524654/ (noting that haze has become an annual problem
causing air quality to deteriorate in the summer months).
2 See id. (explaining that while the practice of using fire to clear land has
been banned by Indonesia’s government, weak enforcement of the law has
maintained the haze issue).
3 Peatlands are formed by dead plant material decomposing into a thick
layer of soil under conditions with permanent water saturation. See IWAN TRI
CAHYO WIBISONO ET AL., PEATLANDS IN INDONESIAS NATIONAL REDD+STRATEGY
1, 8 (2011), available at http://www.wetlands.org/LinkClick.aspx?fileticket=9
Nesl6BCI1U%3D&tabid=56 (discussing the state of Indonesia’s peat swamp
forests). For a map of peatlands in Southeast Asia, see Peatlands in Southeast
Asia, ASEAN PEATLAND FORESTS PROJECT, http://www.aseanpeat.net/aeimages/
File/Publications/peatmap_FA_OL.pdf (last visited Nov. 12, 2013) (showing
estimated peatland area per ASEAN country).
4 See Liz Gooch, Malaysia Haze Points to a Regional Problem, N.Y. TIMES,
June 23, 2012, available at http://www.nytimes.com/2012/06/24/world/asia/
smoky-haze-over-malaysia-signals-a-regional-problem.html (noting fires set on
palm oil and rubber plantations to remove old trees and clear land are a major
source of haze pollution).
5 Dennis Wong, Residents Blame Plantations for Haze, NEW STRAITS TIMES,
Oct. 11, 2012, http://www.nst.com.my/nation/general/residents-blame-planta-
tions-for-haze-1.155458 (explaining that citizens of the affected countries cope
with haze by ignoring it, despite its continuing presence).
6 See id. (referencing a thunderstorm that was the first downpour in more
than two months.)
7 See infra Part II.A.
8 See infra Part II.A.
9 Air pollution is not a new problem for governments either. As far back as
1285, Londoners complained of poor air quality caused by coal fumes. See JEAN
GIMPEL, THE MEDIEVAL MACHINE: THE INDUSTRIAL REVOLUTION OF THE MIDDLE
AGES 8284 (1976). This led to King Edward issuing a proclamation in 1306
banning coal in open furnaces in London and punishing third-time offenders
with death. See CEES FLINTERMAN ET AL., TRANSBOUNDARY AIR POLLUTION:
INTERNATIONAL LEGAL ASPECTS OF THE CO-OPERATION OF THE STATES, at vii (Cees
Flinterman et al. eds., 1986).
10 Thomas Merrill defines transboundary pollution as “a physical externality
or spillover that crosses state lines. More precisely, transboundary pollution
occurs when a potentially harmful environmental agent is released in one
political jurisdiction (the source state) and physically migrates through a natural
medium such as air, water, or soil to another political jurisdiction (the affected
state).” Thomas W. Merrill, Golden Rules for Transboundary Pollution , 46 DUKE
L.J. 931, 968-69 (1997) (noting and comparing the differences between pollu-
tion of the commons and transboundary air pollution).
11 See id. at 932 (crediting the transboundary pollution phenomenon with the
centralization of environmental law).
12 ASEAN Agreement on Transboundary Haze Pollution, art. 12, June 10,
2002, available at http://haze.asean.org/?wpfb_dl=32 [hereinafter Agreement]
(affirming the parties’ “willingness to further strengthen international coopera-
tion to develop national policies for preventing and monitoring transboundary
haze pollution”).
13 See Gooch, supra note 4. During publication of this article, Indonesia
announced at a meeting of the regional environmental ministers that it pledges
to ratify the Agreement in early 2014. Abhrajit Gangopadhyay & Ben Otto,
Indonesia Plans to Ratify Haze Pact, July 17, 2013 12:53PM, http://online.wsj.
com/news/articles/SB10001424127887324448104578611241859487394.
14 See Ahmad Pathoni, Indonesia Lawmakers Set to Reject ASEAN Haze Pact,
REUTERS, Mar. 14, 2008, http://www.enn.com/top_stories/article/32966/print
(citing Indonesian lawmakers’ concerns that neighboring countries are turning a
blind eye to the link between illegal timber received in their countries and haze
pollution); Adianto P. Simamora, Govt Wants Haze Agreement Ratified, THE
JAKARTA POST, Jan. 22, 2011, http://www.thejakartapost.com/news/2011/01/22/
govt-wants-haze-agreement-ratified.html (noting Indonesian lawmakers’ desire
to include an effort to reduce the export of illicit wood from illegal logging
practices into the agreement); Adianto P. Simamora, ASEAN haze deal still
faces complications, THE JAKARTA POST, Feb. 16, 2011, http://www.thejakar-
tapost.com/news/2011/02/16/asean-haze-deal-still-faces-complications.html
(explaining that ratification would create burdens for Indonesia because of the
difficulty involved in controlling traditional land clearing practices by local
citizens).
15 See Asmala Ahmad et al., The Use of Remote Sensing and GIS to Estimate
Air Quality Index (AQI) over Peninsular Malaysia, GISDEVELOPMENT.NET,
http://www.gisdevelopment.net/application/environment/air/mm038pf.htm,
continued on page 70