Challenges of a Changing Earth
Conference on Global Change, 10-13 July 2001, Amsterdam RAI
Out of Breath? Air Quality in the 21st Century
1200-1300
Fires, Haze and Acid Rain: The Social and Political
Framework of Air Pollution in ASEAN and Asia*
Simon SC Tay**
Singapore Institute of International Affairs
Abstract
Among the largest environmental challenges facing Asia are the recurring
Indonesian fires and resulting smoke haze pollution, and the acid rain
phenomenon in North East Asia.
In 1997-98, the fires affected an estimated 20 to 70 million people in five
countries in the region. Major sectors of the economy and the safety of air
and sea travel were also impacted, with over US$20 billion in losses. The
fires are influenced by climatic conditions and the El Nino phenomenon.
However, the primary causes are illegal acts, human activity for short-term
economic gain, and development policies that are unsustainable. The laws
and administration of the country at the centre of the fires, Indonesia, are
unable to effectively address the issues. The regional institution, ASEAN,
has made efforts to bring governments together and develop specific action
plans on the fires. These however have not proven to date to be effective.
*
Paper presented in The Global Climate Change conference, Amsterdam, 9-13 June 2001.
The paper draws upon previous work by the author, especially his paper published in the
Georgetown University International Environmental Law Review, 2000, and on a project
he has directed on The Environment and Regional Cooperation in Asia (pending
publication in 2001).
**
LLB Hons (National University of Singapore) LLM (Harvard) teaches international law
at the National University of Singapore, with a focus on the environment and governance.
He is concurrently chairman of the Singapore Institute of International Affairs, a policy
think-tank that is part of the network of ASEAN Institutes of Strategic and International
Studies. He also serves as an independent Member of the Singapore Parliament, nominated
by the public and confirmed by the President of the Republic.
1
Issues that underscore the difficulties in addressing this environmental
challenge are, especially, inter-state cooperation, legal recourse for
transboundary harms and the participation of civil society groups and nongovernmental organizations, The member states of ASEAN, for example,
have held too strictly to the norm of non intervention in the domestic affairs
of each state.
Cooperation among the states in North East Asia too is fractured and
tentative. There are many historical and on-going conflicts that have had no
resolution, and the countries of North East Asia have not developed
sufficient institutions for cooperation.
In both South and North East Asia, inter governmental; relations have
predominated. They have also not allowed space for civil society and nongovernmental actors to express their concern over environmental issues. As
such, key weaknesses in ASEAN and Asia relate as such to the social and
political frameworks, rather than only the making of laws or formal
institutions. The Indonesian fires and Southeast Asian haze are, in these
respects, similar to the acid rain phenomenon in Northeast Asia.
Asia as a whole have yet to evolve frameworks to deal with issues of
transboundary air pollution in Asia. In contrast, the frameworks in Europe
and North America are more robust in meeting in dealing with similar
issues. Social and political frameworks must be strengthened and greater
room allowed for non-governmental participation and attention to crossborder and global concerns.
Introduction: Air Pollution and Asia in Context
Air pollution has many different sources, dimensions and driving factors. In
Europe, North America and North East Asia, industrial pollution and the
phenomenon of acid rain are common concerns. In China, deforestation,
soil erosion and desertification are elements behind the unhappy
phenomenon of “yellow dust” that travels though the country and reaches
across borders to South Korea and Japan. In the ASEAN region, the
discussion of transboundary air pollution necessarily comes against the
background of the "haze" pollution experienced in the region in 1994, 1997
and 1998 that have resulted from fires in Indonesia.
Each of these examples of air pollution is different and perhaps unique in
some respects. There are however common points of reference in their
social and political frameworks. These issues also share common points in
2
their interconnection between national, regional and global environmental
challenges. It is these common points of reference that this paper hopes to
elaborate by focusing on the particular examples of (1) Indonesian fires and
the haze; and (2) acid rain in North East Asia.
One of the largest environmental challenges facing Asia is the recurring
Indonesian fires and resulting smoke haze pollution. In 1997-98, this
affected an estimated 20 to 70 million people in five countries in the region.
Major sectors of the economy and the safety of air and sea travel were also
impacted, with over US$20 billion in losses.
The tropical climatic conditions and the El Nino phenomenon have an
influence on the fires. The primary causes of the fires are all human related,
they can be attributed to illegal acts, human activity for short-term gain and
on unsustainable development policies. For the country at the center for the
fire, Indonesia’s ability to address these issues is hampered by their laws
and administration. The regional institution, ASEAN, has made efforts to
bring governments together and develop specific action plans on the fires.
These however have not proven to date to be effective.
Issues that underscore the difficulties in addressing these environmental
challenge are, especially, inter-state cooperation, legal recourse for
transboundary harms and the participation of civil society groups and nongovernmental organizations, The member states of ASEAN, for example,
have held too strictly to the norm of non intervention in the domestic affairs
of each state. They have also not allowed space for civil society and nongovernmental actors to express their concern over environmental issues. As
such, key weaknesses in ASEAN and Asia relate as such to the social and
political frameworks, rather than only the making of laws or formal
institutions.
The Indonesian fires and Southeast Asian haze, and the North East Asian
acid rain are, in these respects, similar to other issues of transboundary air
pollution in Asia, including the yellow dust, Europe and North America.
Where they differ is that the political, social and legal frameworks in
Europe and North America are more robust in dealing with similar issues of
transboundary air pollution. Social and political frameworks in Asia must
be strengthened and greater room allowed for non-governmental
participation and attention to cross-border and global concerns if these
challenges are going to be addressed.
3
In the first part of this paper, specific information on the Indonesian fires
and haze, and on the North East Asian acid rain, will be summarized. In its
second part, the paper considers international law and principles governing
transboundary pollution and, briefly, examples of how other regions deal
with the issue. In doing so, it notes the difference between the legal
certainty and strict liability of international law principles on paper and the
more vague and accommodating agreements reached between states in
practice. In many treaties, liability is not the issue. Instead, specific limits
to pollution are set or, more vaguely, cooperation between states is
promised.
The paper then describes the plans made by ASEAN as the regional
institution more directly involved in facing this environmental challenge. It
briefly traces ASEAN’s history and usual methods for regional
organization. Sometimes called the ASEAN way, these norms have
sustained the organization in dealings on a broad range of issues, both
among ASEAN members as well as in their relation to other countries or
groupings. Similarly, the paper also provides a brief analysis of the
institutional questions concerning acid rain in North East Asia.
Beyond describing the present plans, this paper concludes by discussing
possible ways in which the existing efforts at regional cooperation may be
improved. In respect of ASEAN, these suggestions try to give due
deference to the inclinations of the ASEAN way but do not however take
the modes of cooperation as being a fixed and immutable constant. This is
because ASEAN approaches to the issue are relatively recent and still
evolving, in search of an efficacious solution. As regards North East Asia,
the paper considers the possibility of cooperation among the affected
countries to be constrained by political differences and points to the needs
for both specific regimes on environmental issues, and more general
institutions for cooperation.
Part I
1) The Haze: Summary of A Recurring Disaster
A. Effects
The 1997 and 1998 fires ravaged the Indonesian islands of Sumatra and
Kalimantan, their epicentre. Conservative estimates are that between
800,000 and 1.7 million hectares of forests and bush were burnt. A study by
4
the World Wide Fund for Nature (WWF) 1 puts the figure at two million
hectares. Other estimates, based on satellite imagery, suggest that the area
burnt may be 3.5 million hectares or as large as 7.5 million hectares.2
The haze smoke and particulate pollution3 from the fires did not only affect
Indonesia, where the fires in 1997 originated, but hit many other countries
in the region, especially Malaysia and Singapore, but also parts of Brunei,
the Philippines and Thailand.4 During the 1997 fires, the Pollution
Standard Index (PSI) in the worst-hit areas often exceeded the 300 PSI
mark (graded as hazardous for health) and reached a high of 839 PSI in
Kuching, in the East Malaysian state of Sarawak.5 The estimated number of
people in the region exposed to the harms of the haze ranges between
twenty and seventy million.6 In the Indonesian island of Irian Jaya, an
estimated 500 people died from famine associated with the fires and from
drought caused by the El Nino weather phenomena. 7 The fires also
delayed rice planting in East Java, resulting in shortfall of ten to twelve
million metric tons and leading to severe food shortages.8 In the long
term, although scientists are uncertain about its ultimate effects, the haze
1
Nigel Dudley, THE YEAR THE WORLD CAUGHT FIRE, WWF International
Discussion Paper (Gland, Switzerland, WWF, Dec 1997).
2
See Dominic Nathan, Haze is back in Singapore, STRAITS TIMES, Nov 28, 1998, at 3.
For the larger estimate, see James Schweithelm, The Fire This Time, WWF discussion
paper. On methods of satellite analysis, see Douglas O. Fuller and Michele Fulk, Satellite
Remote Sensing of the 1997-98 Fires in Indonesia: Data, Methods and Future
Perspectives.
Both
available
from
the
WWF-Indonesia
site,
http://www.wwf.or.id/forest.html (assessed on Feb 3, 1999).
3
Haze consists of smoke, condensation and particulate matter created by burning organic
matter and fossil fuels that, among other effects, reduce visibility. Haze from forest fires
has a huge concentration of particulates. Larger particulates fall rapidly from the
atmosphere but small particulates can be spread by winds and exacerbate other pollutants,
and are, therefore, of primary concern to health. Once they penetrate the respiratory
system, particulates remain for a long period of time.
4
See Fazed by the Haze, STRAITS TIMES, Nov. 10, 1997, at pp.18-19.
5
See Todd Crowell & Peter Morgan, Twelve Months of Turning Points, ASIAWEEK, Dec.
26, 1997.
6
See Dudley, supra note 1, citing the more conservative figure of 20 million; see Crowell
& Morgan, supra note 5, (estimating exposure to 70 million people).
7
The El Niño has caused unusually dry weather. The Northwest monsoon began in
December and alleviated the 1997 fires. Although the monsoon normally lasts until April,
the El Niño reduced rainfall. As a result, the wet season ended in East Kalimantan by
January 1998, allowing the fires to resurge soon after. See Bush Fires Spread in RainScarce Indonesia, STRAITS TIMES, Feb. 13, 1998, at 29.
8
Nicola Bullard, et. al, Taming the Tigers: The IMF and the Asian Crisis, in TIGERS IN
TROUBLE (K.S. Jomo, ed., 1998).
5
and smoke may have serious effects on human life and health, especially if
the fires recur annually.9
The haze pollution has also exacted a high economic cost on the region. A
preliminary study estimates that regional economies in total suffered over
US$ 4.5 billion losses in health care, tourism and airlines because of the
1997 fires and haze.10 The main loser was Indonesia itself with some US
$3.8 billion. These estimates are preliminary estimates as they do not
include global losses, such as the release of climate change gases or losses
to biodiversity, nor do they include possible long-term health effects, which
are likely on the low side. A later study of the economic impact on
Singapore estimated damages to be as much as Sin$ 425 million. 11 The
WWF estimates that losses from the 1997 fires and haze for Indonesia and
the region exceed US$ 20 billion after lost productivity, timber, health
effects, and other costs are tallied. 12
It is not only Indonesia and her neighbors who have suffered. The fires
have global consequences. There is much at stake in terms of biodiversity.
Indonesia holds the second largest tracts of tropical forests in the world,
with some ninety-two to 109 million hectares.13 It is estimated to have ten
percent of all known plants in the world, one-eighth of all animals, and onesixth of all birds, reptiles and amphibians.14 It is considered one of the
9
The World Health Organization and Singaporean doctors are studying the long term
impact of the haze. See S’pore and WHO to Study Impact of Haze, S TRAITS TIMES, Mar
17, 1998.
10
Initially, a lower figure of US$1.3 Billion was cited. See ECONOMICS AND
ENVIRONMENT PROGRAM OF S OUTH EAST ASIA (EEPSEA) & T HE WORLDWIDE FUND FOR
NATURE (WWF), dated Feb 20, 1998, cited in ASIAWEEK, Mar 13, 1998, at 47. The higher
figure is cited in an updated study by the same institutions, THE INDONESIAN FIRES AND
HAZE OF 1997: T HE ECONOMIC TOLL, available at http://www.idrc,org,sg/eepsea/economy
or http://www.wwf.or.id. (assessed Feb 11, 1999)
11
See Dominic Nathan, Damages Now Put at $425m, STRAITS TIMES, Mar. 24, 1998, at p.
30.This report cites Dr. Euston Quah, The 1997 Haze and The Damage Costs to
Singapore: Preliminary Findings (presented at The South East Asian Land/ Forest Fires:
Science and Policy Workshop, Apr 30- May 2, 1998, Singapore) (on file with author).
12
See Lewa Pardomuan, Officials: Indonesian Forest Fires Spreading, REUTERS, Oct 13,
1997; for cost estimates, see DUDLEY, supra note 1, at pp. 11-12.
13
See Charles Barber, THE C ASE STUDY OF INDONESIA: ENVIRONMENTAL SCARCITIES,
STATE CAPACITY , CIVIL VIOLENCE p. 47 (1997) (citing Government of Indonesia, R ECANA
PEMBANGUNAN LIMA TAHUN KEENAM 327 for the lower figure; citing the higher estimate
from Government of Indonesia, I INDONESIA FORESTRY ACTION PLAN 9 (1991)
14
THE F IRST ASEAN STATE OF THE ENVIRONMENT REPORT, Jakarta: ASEAN Secretariat
(1997) recognizes, at p.10, that: “Indonesia, like no other country in the world, is endowed
with enormous biodiversity. It occupies only 1.3% of the world’s land surface, and yet
6
twelve "mega-biodiversity” countries in the world. The effects of the fire
have yet to be fully measured, but it is apparent that flora, fauna and ecosystems have suffered, with fires razing protected areas and reserves in East
Kalimantan. In 1998, fires ravaged the biodiversity rich Bukit Suharto area
and Kutai National Park in Kalimantan. One-third of Kutai has burned.15
Scientists already indicate that rare bird species and animals like the
endangered Sumatran tiger and orangutan have been badly affected.16
The fires’ impact on global warming may also be considerable. One study
estimates that in just over six months, fires in Indonesia could have added
as much as one billion tons of CO 2 gases to the atmosphere, surpassing
emissions from all of Western Europe for the same time period. 17 The fact
that the 1997 and 1998 fires sandwiched the Kyoto meeting of the Climate
Change Convention is ironic;18 the effect of this single disaster contrasts
with the difficulty of negotiating even small reductions between developed
countries and the refusal of developing countries to take on any binding
obligations to reduce their output of greenhouse gases. The irony is
compounded by the fact that the Kyoto participants did not address the
contains an estimated 10% of all plant species, 12% of mammals, 16% of reptiles and
amphibians, and 17% of birds.”
15
For a detailed study of the impact on Kutai, see Andrew P. Vayda, F INDING CAUSES OF
THE 1997-98 INDONESIAN FOREST F IRES: PROBLEMS AND POSSIBILITIES, available at
WWF-Indonesia site, http://www.wwf.or.id/forest.html (assessed on 3 Feb 1999).
16
The World Wide Fund for Nature (WWF) estimates that 1,000 orangutans have been
affected by the fire, with several hundred deaths. The entire world population of wild
orangutans is estimated at about 30,000 orangutans, all of them in Sumatra or Borneo: see
“What is the future for these apes?”, STRAITS TIMES, Nov. 1, 1997, p. 41. Higher
estimates are that some 30% of the orangutan population in Borneo were affected by the
fires, reducing their numbers from about 21,000 to some 15,000. See Carey Yeager and
Anne Russon, Trial by Fire – Biological Impacts, INTERNATIONAL
PRIMATOLOGICAL NEWSLETTER, Vol. 25, pp.8-9, available at WWF-Indonesia site,
http://www.wwf.or.id/forest.html (assessed on 3 Feb 1999).
17
One study estimates that fires in Indonesia could add one billion tons of CO2 gases to
global warming, surpassing emissions from all of Western Europe. See Indonesian Fires
Bad for the Region’s Ecosystem, STRAITS TIMES, Oct. 18, 1997. The report quotes Dr.
Susan Page of the University of Leceister, who is conducting research on peat fires in
Kalimantan and Sumatra. The total amount of greenhouse gases would depend on factors
such as total area burnt, biomass of the forests and other vegetation and the extent of peat
swamps.
18
The Kyoto Conference was held in December, 1997. The Climate Change Convention
was concluded at Rio de Janerio, 29 May 1992, and entered into force on 21 March 1994.
31 I.L.M 849 (1992). Text of the Kyoto Protocol available at
http://www.un.org/Depts/Treaty.
7
fires.19 To the author’s knowledge, there have been attempts to
conceptually or administratively link the Indonesian fires and haze to the
climate change regime.
B. Causes
Widespread forest fires on the islands of South East Asia have been an ongoing problem for many years.20 The island of Borneo, in particular, has
been severely affected. 21 These fires have, however, escalated greatly in
recent years. The fires and haze in 1997 and 1998 may rank among the
worst ever, but severe and widespread fires also occurred in 1982-83, 1991
and 1994. Further back, there is evidence of fires at least in parts of East,
South and West Kalimantan.
Some Indonesian officials have suggested that the El Nino weather
phenomenon was the main cause of the 1997 and 1998 fires.22 The El
Nino, or El Nino Seasonal Oscillation (ENSO), often causes long periods of
drought and changes in the usual cycle of monsoon rains arising from
changes in water temperatures of the Pacific Ocean.23 These droughts dry
the forests in Asia and leave them vulnerable to fire.24 Studies suggest that
El Ninos have affected parts of Borneo as long ago as 1877 and 1878,
19
For a discussion of the Kyoto Protocol, see generally Farhana Yamin, The Kyoto
Protocol: Origins, Assessment and Future Challenges, 7 R. EUR. C OMMUNITY
INTERNATIONAL ENVIRONMENTAL. L., No. 2, 113 (1998). Since Kyoto, Argentina has
broken ranks with the developing countries to voluntarily adopt limits on greenhouse gas
outputs
20
Mainland South East Asia also experiences land fires, though usually due to different
reasons. In Indo-China the fires are usually bush and grass fires. On the dangers of land
and forest fires in South East Asia, see NENGAH WIRAWAN, THE HAZARD OF FIRE, IN
SOUTH EAST ASIA’S ENVIRONMENTAL FUTURE 242 (Harold Brookfield & Yvonne Byron,
eds., 1993)
21
The island of Borneo is divided into four political entities: Sabah and Sarawak, which
are states in the Malaysian federation, and the states of West Malaysia; the independent
sultanate of Brunei; and the Indonesian province of Kalimantan.
22
See Derwin Pereira, Indonesia Blames Forest Fires on El Nino, STRAITS TIMES, Sept.
28, 1997, at p. 27 (quoting then-Coordinating Minister for People’s Welfare Azwar Anas:
“The freak weather phenomenon is partly to blame. We are not late in anticipating the
problem. It’s a natural disaster which no one could have prevented.”). See also Derwin
Pereira, Minister Insists it’s El Nino’s Fault, STRAITS TIMES, Oct. 2, 1997, at p. 36.
23
See Neville Nicholls, ENSO, Drought and Flooding Rain, in SOUTH EAST ASIA’S
ENVIRONMENTAL FUTURE 154 (Harold Brookfield & Yvonne Byron, eds., 1993)
24
Forests in the Americas, one the other side of the Pacific, face similar changes and
threats.
8
continuing through to the present.25 But while drought may create the
conditions, the South East Asian fires – like all fires -- need ignition.
In this regard, blame has been cast on small-scale indigenous farmers. The
practice of clearing land by fire has been a tradition among such indigenous
farmers since before colonial rule. These farmers traditionally employ a
system of “shifting cultivation,” moving through multiple plots of land in
cycles, leaving each to lie fallow and to regenerate before again clearing
that plot by slash-and-burn methods for another season's harvest. These
traditional systems include swidden agriculture for the farming of rice on
dryland, in contrast to irrigated lands.26
Equally long-standing are the criticisms of such practices. Many regard
shifting cultivation as the major cause of forest destruction.27 Such
criticism has increased since the advent of a large-scale timber industry in
the region.28 The Indonesian Forestry Action Programme identifies
shifting cultivation as the source of nearly one-fourth of all deforestation in
the country, but, by contrast, does not even count logging as a cause.29
Others, however, take the contrary view -- that traditional shifting
cultivation has little environmental impact and does not lead to forest
fires.30 Studies suggest that shifting cultivation uses relatively small areas
25
Harold Brookfield ET AL., IN P LACE OF THE F OREST: ENVIRONMENTAL AND S OCIOECONOMIC TRANSFORMATION IN BORNEO AND THE EASTERN MALAY PENINSULA 165-177
(1995).
26
See id. at 120-136; see also Evelyne Hong, N ATIVES OF S ARAWAK: SURVIVAL IN
BORNEO 'S VANISHING FOREST, Pulau Pinang (1987)
27
See, e.g., BROOKFIELD ET AL., supra note 25, at 113 (citing J. Laird, South-East Asia's
Trembling Rainforests, OUR PLANET, pp. 4-11 (1991)). See also Victor King,
Environmental Change in Malaysian Borneo: Fire, Drought and Rain, in
ENVIRONMENTAL CHANGE IN SOUTHEAST ASIA: P EOPLE, POLITICS AND S USTAINABLE
DEVELOPMENT (Michael J.G. Parnwell & Raymond L. Bryant, eds., 1996) (citing T. Hatch
& C.P. Lim, SHIFTING C ULTIVATION IN SARAWAK 28 (1978) ("[S]hifting cultivation
represents probably the greatest single threat to the integrity of Sarawak's natural resources
and results in totally unacceptable degrees of human suffering")).
28
B.T. Lau, The Effect of Shifting Cultivation on Sustained Yield Management for
Sarawak National Forests, 42 MALAYSIAN FORESTER 418-429 (1979) (cited in
BROOKFIELD, supra note 25, at 133).
29
Government of Indonesia, II Indonesia Forestry Action Programme 22 (1991) (cited in
BARBER , supra note 13, at 39).
30
For a review of the historical context of the view, see R.A. Cramb, Shifting Cultivation
and Resource Degradation in Sarawak: Perceptions and Policies, 21 B ORNEO R ES. BULL.
2, 24 (1989). Cramb concludes that the view is a result of Euro-centric bias against
"traditional" indigenous forms of agriculture, and believes the charge that shifting
cultivation in Sarawak is inherently destructive of natural resources is not supported by
much, if any, empirical evidence. Id
9
and that the land used consists largely of secondary forest, which has been
previously cleared, not virgin primary rainforest.31
Clearly, traditional practices and climate have contributed to the South East
Asian fires. They do not, however, provide a complete picture. To single
out climate and traditional agriculture would suggest that the fires are
almost inevitable and excusable natural disasters. A closer look at the
causes of the fires of 1997 and 1998, however, reveals causes rooted in
human agency.
Indonesian officials reported that in 1997 and 1998 only some twenty
percent of the fires resulted from small-scale farmers using shifting
cultivation methods. Officials attributed the remaining eighty percent to
land clearing by large plantation owners.32 This large-scale land clearing
occurs primarily in two business: timber (especially plywood) and oil
palm production. Satellite images have pinpointed land clearing by fire on
oil palm plantations and on timber concessions after the valuable timber has
been extracted. 33 These large businesses have continued to use fires for
land clearing, not because of tradition, but because it is a cheap alternative
to other, less pollutive methods. These facts point to a new and perhaps
critical cause, beyond tradition and climatic events: intensified agriculture
and logging, together with attendant increases in populations, have greatly
increased the vulnerability of the forests to burning. 34
Ecological effects of logging in Borneo, Indonesia and, more generally,
arch pelagic South East Asia, are well documented. Even the conservative
International Tropical Timber Organization (ITTO) has criticized logging
practices in the Malaysian state of Sarawak in Borneo for their high and
unsustainable levels of timber extraction. Estimates suggest that forests of
Sarawak and Sabah, Malaysian states in Borneo, will likely be logged out
by 2000 if rates do not decrease. 35 Similar concerns apply to Indonesian
logging. Some thirty-three million hectares -- nearly the size of Germany
31
See HONG, supra note 26. See also Brookfield ET AL., supra note 25, at 133.
See The Forests are Burning Again, STRAITS TIMES, Mar 29, 1998, at p. 40.
33
Additionally, the large plywood industry in Indonesia is facing a rapid decline in their
source of virgin logs and is exploiting previously logged lands for raw material. See
Robert Fenton, No Smoke Without Fire, STRAITS TIMES, Dec 13, 1997.
34
Brookfield ET AL., supra note 25, at 164.
35
King, supra note 27, at 166.
32
10
or Japan -- have been logged or converted to agriculture in Indonesia since
the 1950s.36
A full discussion of logging and deforestation is beyond the scope of this
paper.37 It is clear, however, that the region’s logging and developmental
policies might contribute to the outbreak of fires. It is no small coincidence
that the highest rates of deforestation among major forest regimes in
Indonesia are in Kalimantan and Sumatra, the epicentres of the fires.
Kalimantan lost 12.6% of its forests between 1982 and 1990 and Sumatra
lost 12.3% during the same period. In contrast, other major areas of
Indonesian forest, such as Irian Jaya, lost only 3.7%. 38
The possible links between deforestation and fires operate in a number of
ways, both on their own and in combination with drought from the cyclical
phenomena of the El Nino. First, forest destruction might exacerbate the
intensity of El Nino in the increased turbidity in the seas surrounding
heavily logged islands. Eroded soil, silt and debris from cleared land affect
water movements and, therefore, water temperatures. Second, and perhaps
most directly, logged forests do not retain moisture as well as primary
forests. They dry out more quickly and become prone to larger and more
extensive fires. Third, shifting cultivators and others routinely move into
recently logged areas to exploit land because these more accessible areas
present less difficulty in clearing and farming. Once logged, it is easier and
36
Government of Indonesia/ IIED, III FOREST POLICIES IN INDONESIA 82, (as cited in
Barber, supra note 13, at 46). See also Charles Barber ET AL., B REAKING THE LOGJAM:
OBSTACLES TO F OREST POLICY REFORM IN INDONESIA AND THE UNITED STATES (1994)
37
There is a considerable literature written on the subject. For a recent overview of world
trends, see Janet N. Abramovitz, T AKING A STAND: C ULTIVATING A NEW RELATIONSHIP
TO THE WORLD’S F ORESTS (1998); Nigel Dudley ET AL., B AD HARVEST?: THE TIMBER
TRADE AND THE DEGRADATION OF THE WORLD'S FORESTS (1995). For critical studies of
deforestation in Asia, see, e.g. James Rush, THE LAST TREE: RECLAIMING THE
ENVIRONMENT IN TROPICAL ASIA (1991); David Lee, THE SINKING ARK: ENVIRONMENTAL
PROBLEMS IN MALAYSIA AND SOUTHEAST ASIA (1980); Philip Hurst, R AINFOREST
POLITICS : ECOLOGICAL DESTRUCTION IN SOUTH-EAST ASIA (1990); BORNEO IN
TRANSITION : PEOPLE, F ORESTS, CONSERVATION , AND DEVELOPMENT (Christine Padoch &
Nancy Lee Peluso eds., 1996); THE B ATTLE FOR SARAWAK' S FORESTS (1989); THE
ENDANGERED RAINFORESTS AND THE FIGHT FOR SURVIVAL (1992); Nancy Lee Peluso,
RICH FORESTS , P OOR P EOPLE: RESOURCE CONTROL AND RESISTANCE IN JAVA (1992);
MALAYSIA: S USTAINABILITY AND THE TRADE IN TROPICAL TIMBERS (1991); William W.
Bevis, BORNEO LOG : THE S TRUGGLE FOR S ARAWAK'S FORESTS (1995); Peter Dauvergne,
SHADOWS IN THE F OREST: JAPAN AND THE P OLITICS OF TIMBER IN SOUTHEAST ASIA
(1997); Noeleen Heyzer, GENDER , P OPULATION, AND ENVIRONMENT IN THE CONTEXT OF
DEFORESTATION: A MALAYSIAN C ASE STUDY (1996).
38
See Barber, supra note 13, at 55
11
more profitable to convert these forest areas to use as oil palm and other
agro-business plantations, than to replant and sustain them for future
logging.39
Government policies favoring logging and development projects in forest
areas in Borneo have been heavily criticized for their socio-economic
effects.40 The criticism has political dimensions; many trace the policies
not only to the blindness of top-down development planning, but also to
cronyism and corrupt patron-client relations in the allocation of natural
resources.41 Production for export and industry is often held in partnership
with foreign investors. In this way, international trade and investment play
a role in the environmental disaster of the fires.42
The fires in South East Asia, therefore, are not so much a part of natural
history and tradition as a new phenomenon. As logging, road building,
agri-business and other developments has increased, forest fires, once rare
in wet, tropical forests, have become increasingly common. Although fires
have always been part of the natural equation of forest ecology, human
intervention has tipped the balance dangerously in favor of fires. 43 The
fires in South East Asia in 1997 and 1998 were a disaster resulting from
deliberate policy, man-made activities, large corporations in pursuit of
larger profits, and the failure of authorities to regulate sufficiently and
effectively.44
39
See King, supra note 27, at 167-168.
See Hong, supra note 26, at 21. See also M. Colchester, P IRATES, SQUATTERS AND
POACHERS: THE POLITICAL ECOLOGY OF DISPOSSESSION OF THE NATIVE PEOPLES OF
SARAWAK (1989).
41
See Hong, supra note 26, at 21; see generally Colchester, supra note 40. On Indonesia,
see Barber, supra note 13. On the region as a whole, see generally Hurst, supra note 37.
42
Investments in and international trade involving Indonesia’s agri-business and forestry
sectors involve enterprises from a wide range of countries including Japan and the United
States, as well as ASEAN neighbours Malaysia and Singapore. As a result of the fires, 31
Malaysian companies were investigated, but all claimed innocence. See Brendan Pereira,
Malaysian Companies Say: We’re Not at Fault, STRAITS TIMES, Sept. 27, 1997, at p. 45.
The SEC International Policy Dialogue called for Indonesia “to enforce its current laws
against the use of fire against corporate offenders, effectively, efficiently and equally,
without favour or prejudice to any Indonesian or foreign business or investors.” (emphasis
added) See Chairman’s Statement, Annex.
43
Dudley, supra note 1, at pp. 13-14. See also Ambramovitz, supra note 37, at 35
44
For this reason, the SEC International Policy Dialogue concluded that the fires “related
to the use and clearance of forest and other land, mainly by big business, engaged in
logging and palm oil, and could have been foreseen, given climatic forecasts and patterns
of forest use.” See Chairman’s Statement, Annex.
40
12
The haze comes from fires that have raged across the Indonesian provinces
of Kalimantan and Sumatra in 1997 and, in 1998, many parts of Borneo,
moving beyond Kalimantan into East Malaysia and Brunei. For the fires of
1997, conservative estimates are that between 800,000 and 1.7 million
hectares of forests and bush in the Indonesian islands of Sumatra and
Kalimantan were burnt. A study by the World Wide Fund for Nature
(WWF)45 puts the figure at 2 million hectares. For the 1998 fires, as at end
April, official Indonesian estimates were that 395,000 hectares of forest and
ground cover were destroyed46. The economic damage for 1998 in log and
timber damage alone, without environmental and health costs, were set at
$912 Million.
The damage is not only local and regional, but also global. The impact on
global warming may also be considerable. One study estimates that over
the next six months, fires in Indonesia could add one billion tonnes of CO2
gases to global warming, surpassing emissions from all of Western Europe.
The Executive Director of the United Nations Environment Programme, Dr
Klaus Topfer, has called the South East Asian fires an environmental
disaster and sought to bring international attention to the issue.
2) North East Asian Acid Rain: The Smog of Growth47
A. Effects
Rapid industrialization and urbanization of Northeast Asia has brought a
number of air pollution problems. The impacts of pollution on natural and
agricultural ecosystems, human health in major industrial centres and cities
have been recognised for some time. Now there is a growing awareness of
the impacts of long-range transport and deposition of pollutants across
national boundaries. High levels of acidic compounds are being deposited
in southern China, South Korea, Taiwan and southern Japan.
Evidence of the effect on forests in China and Japan is beginning to
accumulate. Acidification will also impact agriculture, especially if liming
45
See Dudley, supra note 1.
See Forest Fires Cost $1.6B, THE S TRAITS TIMES, 22 April 1998. The figures, in
Singapore Dollars, were based on a report from the Indonesian Environmental Impact and
Management Agency.
47
This section draws from a paper by Dr Louis Lebel of Changmai University on the
subject, written for a project coordinated and directed by the present author on regional
cooperation on environmental issues. The findings and papers from the project are pending
publication in 2001.
46
13
to neutralise acids is not practiced. Health impacts are another concern.
Current levels of sulphur dioxide in Jiangsu and Shanghai, for example,
exceed WMO long-term exposure guidelines and in certain areas are in
excess of short-term exposure guidelines.48
In Northeast Asia, apart from addressing serious problems in a few areas
today, there is growing concern about the future as the various energy use
and development scenarios imply much higher-levels of acid deposition
over a much wider area.
There is concern that critical loads or thresholds may be passed, above
which the ecological systems in different regions can no longer withstand
acid deposition.49 Economic scenarios indicate that deposition rates are
likely to increase substantially in the future, and reach levels that will
overwhelm the soil’s capabilities to cope by 2020 in large regions of
eastern China, Korean Peninsula and Japan. If this is correct, it would mean
the region will face ecological disaster from acid rain and its impact on
agriculture, water, forests and other resources, if there were no major
changes in emission control policies.50
B. Causes
Modelling studies demonstrate that a significant proportion of the acid
deposition in southern Japan and Korea arises from emissions in China.
They also show that source – receptor relations vary over time of year. The
must important source of anthropogenic emissions of sulfur dioxide in
North East Asia is from fossil fuel burning by energy, industry and
transportation sectors. In 1990, coal supplied 48%, and oil fuels 35% of
the regions primary energy needs.51 Power plants are the largest
contributors to long-range transport. Residential and industrial emissions
48
See Chang ET AL, Air Quality Impacts as a Result of Changes in Energy and Land Use
in Chinais Jiangsu Province, Atmos Environment, 1996
49
In fertile relatively basic soils where there is low rainfall it is expected that the system
can tolerate moderately large additions of acidity or have a high critical load. Conversely
in acid soils or where coniferous forests dominate or grazing land is common, critical
loads are low.
50
Carmichael GR, Arndt R., Baseline assessment of acid deposition in Northeast Asia,
Energy, Security and Environment in Northeast Asia Project, THE NAUTILUS INSTITUTE
(1997)
51
Streets D.G., Energy and Acid Rain Projections for Northeast Asia, Energy, Security
and Environment in Northeast Asia Project, The Nautilus Institute (1997)
14
primarily affect local urban acid precipitation.52 The heavy reliance on
coal, is one of the main reasons for the high level of emissions of sulfur
dioxide. Energy use is increasing rapidly and this is being accompanied by
growth in emissions. Thus, over the past two decades China's SO2
emissions more than tripled. Scenarios for future emissions are highly
dependent on assumptions about rates of energy use and the adoption of
cleaner technologies. Without major changes emissions could rise as much
as 3-fold between 1990 and 2020.
Inefficient energy production and use is another important reason for high
emissions. Industrial energy intensity, or the amount of primary energy it
takes to produce one dollar of economic output, varies widely within the
region.53 In 1990, the industrial energy intensity was in Japan 4.8 GJ/$103
US, in South Korea,12 GJ/$103 US, in North Korea 86 GJ/$103 US and
China 110 GJ/$103 US. This means that, in 1990, it took China 20 times as
much primary energy to produce a dollar of economic product as compared
to Japan. This reflects both differences in efficiency of equipment as well
as the different structure of their industries. In the past decades, efforts have
been made to address the issue and promote energy conservation.
Consequently, energy needs and intensities have fallen rapidly in China.
Yet the rapid growth and industrialization of that largest country has meant
that absolute figures still continue to rise.
Experts inform us of the atmospheric consequences of this energy use.
Sulfur dioxide is converted in the presence of sunlight and water vapor or
other oxidizing agent, in the atmosphere into sulfuric acid. Sulfur dioxide
may be transported hundreds of kilometres before it reacts and is deposited
as acid rain.54
Not all of North East Asia is equally affected and the effects differ due to
seasonal factors.55 The more accepted models however show dense
52
Sinton J.E., China's View of Acid Rain in Northeast Asia and Regional Cooperation
Strategies for Mitigation, ESENA. (1997)
53
See Streets, above.
54
Some is also deposited directly as sulfur dioxide gas. Together with nitrogen oxides,
they form nitric acid. Together these acidic compounds cause acidification of rain.
55
Some areas in southeast China regularly experience average precipitation with pH below
3.5 and many areas below 4.0. Long-term measurements in Ryouri, Japan show a decrease
in pH levels from 5.2 in the late 1970's to below 4.7 at the present, a five-fold increase in
acidity. Prevailing northwesterly winds from high-pressure system over the mainland Asia
carry air dry mass over the sea which as it absorbs moisture becomes unstable and
precipitate as it reaches Japan or Taiwan. Sulfur compounds emitted on the continent are
15
emissions in eastern and southern China, and deposition levels from 0.5 to
6 g S/m2/ yr in Japan and Korea. The analysis illustrates the large role that
emissions from China play in regional acid deposition. It is calculated that
China accounts for approximately 65% of the total emissions in Asia. Much
of this is believed to fall in China itself or in the seas. However, even the
small fraction that does cross borders and reaches the land of other
countries in North East Asia makes a large contribution to total deposition
of acid rain in these countries.
Part 2
International Principles and Practice
1. International Law and Practice in Other Regions
The international laws on transboundary pollution are clear in principle: A
state is legally responsible for all transboundary pollution emanating from
areas under its jurisdiction or control, where significant harm results to the
other state.
Many emphasize that, arising from the norm of state liability, states also
have the obligation to take preventive actions, to give notice and consult,
and to take measures to abate the harm. There remains some academic
contention over a number of issues. Some believe that international law
provides for monetary compensation between states or for an order for the
cessation of the wrongful act56. There are also some who argue that states
incorporated in this process. Source-receptor relationships vary by season. A country (or
region) can change from being downwind of another countries sulfur emissions, to being
the upwind source of acid deposition. Modelling studies are necessary to understand how
the various processes during transport affect deposition and to untangle source – receptor
relationships. International cooperation among research networks has been crucial to the
development of long-range transport models. One very influential model was developed as
part of the World Bank sponsored Regional Air Pollution Information and Simulation
(RAINS) -Asia project (Arndt et al., Long-Range Transport and Deposition of Sulfur in
Asia, WATER, A IR AND SOIL P OLLUTION Vol 85, 1995, pp.2283-2288; Foell et al., Energy
Use, Emissions, and Air Pollution Reduction Strategies in Asia, W ATER, AIR AND SOIL
POLLUTION Vol 85, 1995, pp.2277-2282) This allows analysis of source-receptor
relationships at various scales. There are some differences in the calculated results from
different models. Overall inter-model comparisons and comparison with observed data
indicate that RAINS model provides reasonable representation of sulfur deposition
patterns.
56
See Patricia Birnie and Alan Boyle, INTERNATIONAL LAW
1994, at pp. 152-53, suggests that money can be ordered..
16
AND THE
ENVIRONMENT,
bear strict liability for harm, while others suggest that a state need only take
reasonable steps within its abilities to address the problem57.
Despite these differences of opinion, there is largely a consensus on the
issue of liability and state responsibility for transboundary pollution. It is
said to be part of customary international law, binding on all states. The
consensus arises from two sources. First, the venerable Trail Smelter
Arbitration, between Canada and the USA, which held that "no state has the
right to use or permit the use of its territory in such a manner as to cause
injury by fumes in or to the territory of another or the properties or persons
therein, when the case is of serious consequence and the injury is
established by clear and convincing evidence58. Second, the soft law
instruments of the Stockholm and Rio Declarations, in respectively,
Principle 21 and Principle 2, which embody similar wordings as Trail
Smelter59.
The preventive and procedural obligations are also encapsulated in the Rio
Declaration. Principle 18 requires states to “immediately notify other States
of any natural disasters or other emergencies that are likely to produce
sudden harmful effects on the environment of those States”. Principle 19 of
the Rio Declaration sets out that, “States shall provide prior and timely
notification and relevant information to potentially affected States on
activities that may have a significant adverse transboundary environmental
effect and shall consult with those States at an early stage and in good
faith”.
The international norm on transboundary pollution, often referred to as
Principle 21, has been embodied in some national laws60 and is often cited
as a cornerstone of international environmental law. There are reasons,
however, to doubt however whether Principle 21, and the procedural duties
57
Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, do not
use the term strict liability. They also recognize the state's sovereignty and their right to
set their own environmental and developmental policies. See Declaration on Environment
and Development, U.N. Conference on Environment and Development, UN Doc.
A/CONF.151/5/REV.1 (1992)
58
Trail Smelter (US v Canada) , 3 R.I.A.A, at p. 1965.
59
Principle 21 of the 1972 Stockholm Declaration and Principle 2 of the 1992 Rio
Declaration. The Declarations, although declared by the majority of states at the
conferences are not , by their nature, binding international treaties; they are "soft" law in
that they set out stated general norms.
60
See US Clean Air Act.
17
in Principles 18 and 19 are fully and faithfully applied in the practice of
nations.
There is a dearth of adjudication, other than the Trail Smelter case. This is
despite the many incidents of transboundary pollution. Most notably, no
state brought suits in the wake of the Russian Chernobyl nuclear reactor
incident in 1985 or the Sandoz Spill in the Rhine in 198661. Some
commentators also point out that there are gaps and a lack of detail in
Principle 21. The principle acknowledges that states are liable only for
significant harm; yet the level or type of pollution that is "significant" may
be open to debate between different states. This is especially so when the
cause arises from natural incidents or low-level and widespread activity,
such as open burning, rather than a single, man-made incident, such as seen
in the Chernoybl and Sandoz accidents62.
When we examine regional and bilateral treaties on transboundary
pollution, moreover, very few seem to set out strict liability regimes in
similar terms to the international law principles or provide for institutional
means to enforce those legal principles of responsibility63. One exception
to this general position are treaties that deal with "ultra hazardous"
activities like oil spills and nuclear accidents64. Another is the 1974 Nordic
Convention between Denmark, Finland, Norway and Sweden that gives
61
On Chernobyl , see Philippe Sands, Chernobyl: Law and Communication (1988), pp. 147 and Ellen B. Moynagh, The Legacy of Chernobyl: Its Significance for the Ukraine and
the World, 21 B.C. Environmental Affairs Law Review 709 (1994). On Sandoz, see
Aaron Schwabach, The Sandoz Spill: The Failure of International Law to Protect the
Rhine from Pollution, ECOLOGY, Vol 16 (1989) p. 443. For a review of both, see
Devereaux F. McClatchey, Chernobyl and Sandoz One Decade Later 1986-1996, GA. J.
INT'L & COMP. L, Vol. 25, (1996) p. 659.
62
See Oscar Schachter, The Emergence of International Environmental Law, J.
INTERNATIONAL AFFAIRS, Vol. 44 (1991), pp. 457, 463-68.
63
See Jan Scnieider, World Public Order of the Environment: Towards an International
Ecological Law and Organization (1997), pp.168-71 for a review of treaties that provide
for strict liability. For a review of international law on transboundary pollution generally,
see Thomas Merrill, Golden Rules for Transboundary Pollution, Duke Law Journal, Vol.
46, No. 5, March 1997, p. 931.
64
See the Convention on the Liability of Operators of Nuclear Ships, 1962, 57 A.J.I.L. 268.
Also, the Vienna Conference on Civil Liability for Nuclear Damage and Optional
Protocol, May 21, 1963, 2 ILM 727 and Convention on Third Party Liability in the Field
of Nuclear Energy, July 29, 1960, 55 A.J.I.L. 1082.
18
citizens in each of these countries the right to bring suit in the court of
another country for compensation for transboundary pollution65.
Rather than agreements that focus on liability, regional and bilateral treaties
may be said to prefer on efforts to establish specific pollution limitations or
to foster cooperative action between different states. A great number of
treaties that set specific pollution limits to a specific type of transboundary
pollution relate to acid rain. In the beginning, there was little effective
regulation of the problem66. More recently, however, efforts have been
more successful, with revisions to the European Long Range
Transboundary Air Pollution Convention67 and, in the USA, the enactment
of the Clean Air Act. These have resulted in specific (if seemingly
arbitrary) reductions in sulfur dioxide emissions. Problems persist,
however, with many other instances of transboundary pollution in North
America and elsewhere.
The vast majority of bilateral and multilateral treaties on transboundary
pollution are not premised on liability in accordance with Principle 21, nor
on specific limits that are set. Rather, these treaties promise cooperative
action between states such as:
a) advance notification and consultation68;
b) exchanges of information and research; or
c) a general undertaking to take "appropriate measures".
On balance, it has been suggested that these treaties which emphasize
cooperative action, without liability or setting specific limits, have been
ineffective69.
65
See Bengt Broms, The Nordic Convention on the Protection of the Environment, in
TRANSBOUNDARY AIR POLLUTION ( C. Flinterman et al, eds) 1986.
66
See Jutta Brunee, ACID RAIN AND OZONE LAYER DEPLETION: I NTERNATIONAL LAW AND
REGULATION (1988), pp.81 –141, on efforts to regulate acid rain.
67
See Marc Levy, European Acid Rain: The Power of Tote Board Diplomacy in
INSTITUTIONS FOR THE EARTH: S OURCES OF EFFECTIVE INTERNATIONAL ENVIRONMENTAL
PROTECTION (Peter Haas et al, eds) 1993, and Gregory Wetstone and Armin Rosencranz,
Transboundary Air Pollution: The Search for an International Response, HARVARD
ENVIRONMENTAL LAW REVIEW, Vol 8 (1984), p. 89.
68
For example, Agreement for Co-operation in Dealing with Pollution of the North Sea by
Oil, June 9, 1969, 704 U.N.T.S. 3.
69
Thomas Merrill, Golden Rules for Transboundary Pollution, Duke Law Journal, Vol 46
(1997), p. 967.
19
Given this range of treaties between the few that provide for liability of
states; some that set specific limits on pollution; and the many that promise
cooperation between states, what have Asians done? We shall examine, in
turn, efforts at cooperation in ASEAN to deal with the fire and haze, and
then in North East Asia, to address the issue of acid rain.
2. The ASEAN Way and Environmental Cooperation70
A. Why ASEAN?
At the national level, Indonesia’s continued political and economic crisis
coupled with widespread corruption and ineffective legal and
administrative frameworks have rendered it unable to resolve the fires that
occur almost wholly within their borders. On the other hand, given the
global dimensions of the fires and haze to global climate change and
biodiversity, the international community might be thought to be required
to respond. As briefly stated, however, no effective connections have been
drawn between the situation in Indonesia and the global regimes for these
concerns. The assistance given by developed countries and international
institutions has, additionally, been mainly piecemeal and uncoordinated
efforts that aimed at fire fighting, rather than dealing with the systemic
problems.
In the gap of both national and international inaction, hopes have come to
be pinned to the regional institution, ASEAN. This conforms to the
expectation of some that regional frameworks provide a useful middle
ground between the national and international levels. ASEAN has indeed
responded to the Indonesian fires and haze by undertaking a number of
plans for cooperation and action. These plans have yet to prove effective, as
they have depended heavily on the usual methods that are used in different
areas of ASEAN cooperation, known as the ASEAN way.
B. The ASEAN Way
Before its present problems, ASEAN enjoyed a reputation as one of the
most credible regional or sub-regional organizations, outside of the
European Community. This reputation rose on both political and economic
factors, leading up to the organization's enlargement and increasing
70
Parts of this section are adapted from the author's essay, South East Asian Fires: A Haze
over ASEAN and International Environmental Law, Review of European Community and
International Law, UK (publication forthcoming).
20
international profile71. Through this period, however, ASEAN's record on
the environment has been mixed. ASEAN countries have often come under
criticism from environmentalists and NGOs. This is especially in respect of
tropical deforestation and the lack of conservation efforts. To date many
countries in the region have been impacted by industrialization on one
hand, and the continuing problems of poverty and the lack of infrastructure
on the other hand72.
As a grouping, ASEAN took its first step forward on the environment in
1978. Its first Ministerial level declaration on cooperation on environmental
issues followed in 1981. It has however been better known taking a prodeveloping country stand at the 1992 Earth Summit73. ASEAN countries
also rallied to lobby successfully against Austrian eco-labels on tropical
timber74. ASEAN countries have also been central to the challenge in the
World Trade Organization against US laws against shrimp imports, where
production methods do not safeguard against the killing of sea turtles75.
More positively, ASEAN members have undertaken some steps towards
improving environmental cooperation amongst themselves, and with other
states. These have taken the form of environmental programmes, evolving
71
In the 1980s, ASEAN sustained international attention to the Cambodian situation
through a series of resolutions in the UN General Assembly. This led to the intervention of
larger powers and the conclusion of the Paris Peace Accords. Into the 1990s, the
economies of ASEAN member states grew at rates that led to many citing them as
evidence of the East Asian "miracle". Singapore led the region as one of the newly
industrialized economies, and the ASEAN-4 of Malaysia, Thailand, Indonesia and the
Philippines followed in emphasizing export-led industrialization. During this period,
ASEAN expanded to include oil-rich Brunei, Vietnam and, during its 30th anniversary in
1996, Myanmar and Laos 71. Building on economic and political achievements, ASEAN
as a grouping had considerable success in engaging with major powers through such
groupings as the Asia Pacific Economic Cooperation area (APEC), the ASEAN Regional
Forum (ARF) and the Asia-Europe Meeting (ASEM). In this, Indonesia has played a
pivotal role as the largest country in ASEAN and its de facto leader and elder statesman.
72
Asian Development Bank, ESCAP.
73
Singapore Resolution on Environment and Development and Common Stand on
UNCED, Singapore 18 Feb 1992.
74
For description and analysis of the Austrian trade measures on tropical timber, the
ASEAN reaction, and the likely outcome of in light of GATT rules, see Brian Chase,
Tropical Forests and Trade Policy: The Legality of Unilateral Attempts to promote
Sustainable Development under GATT, HASTINGS INT’L AND COMP.LAW REVIEW, Vol 17,
(1994), pp. 349, 374-79. On attitudes of ASEAN and Asia Pacific countries on Trade and
environment issues, see Simon SC Tay, Trade and Environment: Perspectives From the
Asia Pacific, World Bulletin, Vol 13.(1997)
75
GATT panel interim decision.
21
through three phases to an ASEAN Strategic Plan of Action (1994-98) 76.
The strategies cover a broad range of environmental concerns and adopt
many of the approaches recommended in Agenda 21 and seek to integrate
environment and developmental concerns in the decision making process of
governments through such mechanisms 77. Other needs recognized by the
Plan are to foster government and private sector interactions78; strengthen
institutional and legal capacities79; to establish a regional framework on
biological diversity conservation and sustainable use80; to promote the
protection of coastal zones and marine resources81; and to promote
environmentally sound management of toxic chemicals and hazardous
wastes82 and a system for promoting environmentally sound technologies83.
The effectiveness of such measures however suffers from ASEAN's
preference for non-interference in the domestic affairs of member states84,
and for non-binding plans, instead of treaties. The one treaty that was
negotiated among ASEAN members, the Agreement on the Conservation
and Natural Resources, has not been ratified by a sufficient number of
members and, as such, is not in force. 85
The ASEAN environmental undertakings, moreover, may be characterized
as plans for cooperation between national institutions, rather than the
creation or strengthening of any regional institutions as a central hub for
policy-making or implementation. This betrays another characteristic of the
ASEAN way. There is a strong preference for relying on national
institutions and actions, rather than a stronger central bureaucracy with
powers of initiative and more resources. These characteristics of the
ASEAN way -- the norm against interference and the caution against
76
ASEAN Strategic Plan of Action on the Environment, Jakarta 1994. For a compilation of
ASEAN documents, see Selected ASEAN Documents on the Environment (compiled by
KL Koh), APCEL Document Series, 1996.
77
Id.
78
Id. at 184
79
Id. at 185
80
Id.
81
Id. at 186
82
Id. at 187
83
Id. at 188
84
Anatolik, The ASEAN Way (De Sharpe).
85
The Agreement was signed by all six ASEAN members at that time, in Kuala Lumpur,
Malaysia, on 9 July 1985. Only three countries have however ratified the agreement, one
less than required to bring it into force.
22
stronger, central institutions -- find expression too in the specific
agreements on the fires and resulting haze.
C. ASEAN Plans on Atmospheric Transboundary Pollution86
ASEAN environment ministers agreed on a Co-operation Plan on
Transboundary Pollution in June 1995. The Cooperation Plan set out the
broad policies and strategies to deal with atmospheric and other forms of
transboundary pollution. This followed the haze in 1994. The Cooperation
Plan outlines efforts to be made at both national and regional levels to deal
with the haze. At the national level, each country undertook to establish
focal points and enhance national capabilities to deal with forest fires.
Countries also agreed to share knowledge and technology on the prevention
and mitigation of forest fires, and establish a mechanism for cooperation in
combating forest fires.
A common air quality index and a regional fire danger rating system was to
be developed for the region. ASEAN institutions like the Specialized
Meteorological Centre were tasked to develop ways of predicting the tracts
and spread of smoke haze.
The Cooperation Plan also envisaged seeking support from countries
outside the region, from countries with knowledge in fire management
systems, like New Zealand and the USA, as well as institutions such as the
International Tropical Timber Organization, based in Japan.
The Cooperation Plan is not as formal as comparable treaties in other
regions, like Europe, which deal with long distance transboundary harm. Its
principles and approach, however, might seem workable and indeed
commendable. First and foremost, perhaps, the Cooperation Plan
recognized that the region was a single eco-system. Additionally, it
emphasized the need to build on both national and regional efforts so that
one complements the other, and incorporated principles of prevention and
of mutual assistance and cooperation. It also recognized that while all states
have a common interest in reducing or avoiding a recurrence of the haze,
they have different abilities and responsibilities in working towards a
solution. In this respect, the Cooperation Plan gives expression to the
principle of common and differentiated responsibility, recognized in the
86
Parts of this section are adapted from the author's essay, South East Asian Fires: A Haze
over ASEAN and International Environmental Law, Review of European Community and
International Law, UK (publication forthcoming).
23
Rio Declaration, at a regional level. The Plan could be improved if it
would give explicit recognition to international principles, such as those
earlier discussed from the Rio Declaration.
But the failure of the Cooperation Plan has not been so much in its
principles but in its implementation. Very few steps envisaged were
actually taken. Although Malaysia sent firemen to affected area of
Indonesia, their deployment was not fully accepted and their intervention
was not effective, nor repeated. On its part, Singapore has continued to
assist Indonesia by providing satellite imaging of fires and "hot spots".
Assistance to build the capacity of Indonesian officials to interpret and use
the images has also been rendered. The images and information is sent
directly to the Indonesian government departments, and is also made
publicly available on the Internet.
These small efforts however are more exceptions than the rule. The 1997
fires showed up the lack of follow up to the Cooperation Plan in almost all
other areas. Instead, countries were left to bilateral arrangements and
discussions -- especially between Indonesia and Malaysia, and Indonesia
and Singapore. The international assistance that was given in 1997, mainly
for fire fighting, was largely piecemeal and uncoordinated.
Following the 1997 fires, the ASEAN environment ministers agreed in
December 1997 to a further Regional Haze Action Plan to provide further
commitments and detail87. Again, the objectives of the Action Plan are
commendable: to prevent land and forest fires; to establish operational
mechanisms to monitor fires; and to strengthen regional fire-fighting
capabilities. The Action Plan reiterates the need for regional monitoring
and to identify sources of technical assistance within and outside ASEAN,
from other countries and from international organizations such as the Asian
Development Bank and United Nations Environment Programme. The
primary emphasis of the Action Plan continues to be on national plans and
capabilities. However, the Action Plan agreed to establish a procedure by
which fire-fighting resources could be pooled for regional fire-fighting
operations.
Clearly, the Action Plan is a welcome reiteration of the stalled strategies of
the Cooperation Plan. Doubt however remains on the ability of ASEAN as
an organization to supply the omissions of the Indonesian national system.
87
ASEAN Ministerial Meeting on Haze, 22-23 Dec 1997, Singapore.
24
This is primarily because of the ASEAN norm for non-intervention in the
domestic affairs of member states and the dominant role that Indonesia
plays in the grouping, as its largest member. The implementation of the
Action Plan has also been sidelined by the political uncertainties in
Indonesia, which experienced riots against the ruling regime in May
199888.
In comparison to other treaties, discussed earlier, the ASEAN Cooperation
and Action Plans do not create liability regimes, to hold one states
responsible to another. Nor do the Plans set out specific pollution limits.
Rather, they must be characterized as efforts to foster cooperative action.
This may be expected, given the norms of the ASEAN way and the reality
of relations of other members with Indonesia. As earlier noted, however,
cooperative treaties have often been ineffective. Given the inaction and
ineffectiveness seen in the years after the 1994 Cooperation Plan, and the
recurrence of fires and haze in 1997 and 1998, there may be considerable
skepticism.
D. Follow Up Since 1998
Upon review in April 1998, the Action Plan agreed to establish two Subregional Firefighting Arrangements for Kalimantan and for the Sumatra/
Riau provinces in Indonesia89. Indonesia also announced that it would lay
down the framework for an ASEAN Research and Training Centre for
Land and Forest Fire Management in Central Kalimantan 90. Further details
and arrangements under the Action Plan may be expected between ASEAN
member states. Notably, the ASEAN Environment Ministers have met
monthly to review progress on the Action Plan, and environment officials
have meet as often as once a week, during the flare up of fires in early
1998.
However, in subsequent years, when there has been no prolonged
recurrence of the haze, the intensity of attention given to the issue has again
waned. While some think-tanks and NGOs in the region have continued to
88
In May 1998, riots broke out in Jakarta seeking the resignation of President Suharto. At
the time of writing, the President has promised reform and to step down in a constitutional
handing over of power. Doubt lingers however on the timetable for change or, indeed, if
these statements will be fulfilled. In this context, the ASEAN Environment Ministers
meeting for May was postponed.
89
Joint Press Statement, Third ASEAN Ministerial Meeting on Haze, 4 April 1998, Brunei,
para. 8.
90
Ibid, para. 5.
25
give attention to the issue of the fires and haze, their efforts have not also
been well received by the political leadership.
In 2001, meetings have however started again, albeit with less regularity
than in 1997-98. This is largely because experts suggest that an early return
of the El Nino phenomenon and therefore the fires and haze might be
expected in 2001-2002.
2. Cooperation in North East Asia
Regional cooperation in North East Asia on environmental issues as a
whole has not been able to settle on a single or main institutional setting, to
play a similar role to ASEAN. Perhaps the only example of a wide
programme that has had relatively concrete and consistent follow through
has been the NE Asian Sub-regional Programme on Environmental
Cooperation (NEASPEC). 91 Yet even though it began in 1993, it has
witnessed only a modest expansion in scope and activities, without many
programmes or much funding.
Efforts to address the acid deposition problem are no different. Cooperation
has taken various forms, and involved a wide range of state and non-state
actors. For example, some expert or epistemic networks, have been
concerned with the standardizing monitoring techniques, cooperating on
modeling atmospheric transport and improving overall understanding of
acid deposition and its impacts. International banks and development
agencies have begun exploring ways to finance or otherwise facilitate the
transfer of cleaner technologies. Businesses with environmental
technologies are seeking partnerships and markets for their products in
other countries. Governments have begun considering how to incorporate
regional environmental concerns in their domestic and international
policies. The purpose of this section is to review some of the more
important of these initiatives and efforts already underway.
There are a number of on-going cooperative programs on transboundary air
pollution. Prominent among these are the Northeast Asian Conference on
Environmental Cooperation (NEAC), the Meeting of Senior Officials on
Environmental Cooperation in Northeast Asia (SOM), the Acid Deposition
Network in East Asia (EANET), the China-Japan-Korea Tripartite
91
This is also true of environmental cooperation in NE Asia more generally. See Wakana
Takahashi, Environmetal cooperation in Northeast Asia, IGES, REGIONAL /SUBREGIONAL
ENVIRONMENTAL COOPERATION IN ASIA, Feb 2001.
26
Environment Ministers Meeting, and the Expert Meeting for Long-Range
Transboundary Air Pollutants in Northeast Asia. Some of the more
developed programs will now be discussed in turn.
A. Acid Deposition Monitoring Network in East Asia
The Environment Agency of Japan has advocated the establishment of acid
deposition monitoring network in East Asia since 1993 to standardize
monitoring techniques, share data and information and understanding about
acid deposition, and to contribute to decision making at local, national and
regional levels. After a number of expert planning and design meetings
agreement was finally reached to formally proceed with preparatory
activities at the First Inter-Governmental Meeting of the Acid Deposition
Monitoring Network in East Asia was held in March 1998. China agreed to
join the activity following a meeting in November 1998 on environmental
cooperation between then Prime Minister Obuchi and President Jiang
Zemin. The network was to be formally established at the second intergovernmental meeting and includes 10 countries, namely, Republic of
Korea, Japan, China, Mongolia, Russian Federation, Vietnam, Thailand,
India and the Philippines. A number of international organisations played
important roles in establishing and designing the network, including,
UNEP, World Bank, United States National Oceanic and Atmospheric
Administration and CSIRO of Australia, Norwegian Institute for Air
Research made important contributions to the design of the network.
Progress in establishing the network has been slow, but once it is
functioning it should provide a mechanism for providing credible data on
the extent and magnitude of the acid deposition problem and a forum for
gauging progress or lack of progress in addressing it. Whether it will also
lead to more open discussion of transboundary transport remains to be seen.
B.
China-Korea-Japan Ministerial Meetings
The Joint Declaration on the New ROK-Japan Partnership for the 21st
Century which was announced by President Kim Dae-jung and Japanese
Prime Minister Keizo Obuchi at the end of their summit in Tokyo, 8
October 1998. In it, the two governments agreed to cooperation on various
global issues and opened a Korea-Japan dialogue on environmental policies
for tackling global environmental issues, including greenhouse gases and
acid rain. Inter-governmental regional cooperation on transboundary air
pollution issues was given a boost by an official visit to China by the
Korean president. In late 1998, President Kim Dae-jung met with senior
27
Chinese leaders and encouraged the two countries to protect the
environment through a joint investigation into yellow sand and acid rain
(Chang-sup 1998).
This meeting was soon followed up in early 1999 by the first tripartite talks
of environmental ministers between South Korea, China and Japan in
Seoul. This was an important first step as China had previously been
reticent in talking with neighbouring countries on transboundary
environmental matters. The ministers expressed general concerns about
environmental degradation in Northeast Asia and agreed that environmental
cooperation among them was indispensable for sustainable development.
They placed priority on raising awareness about their shared environment
and promoting cooperation and exchange of information and research in
industrial and environmental technology and measures to prevent air
pollution. The ministers also agreed to hold a similar meeting every year.
Environmental ministers met again in February 2000 in Beijing, and all
agreed to join research efforts on a number of environmental issues,
including acid rain and dust storms. Importantly, the three countries agreed
on the urgent need to secure scientific and reliable data on transboundary
air pollutants and their environmental effects. Transboundary dust storms
are in many ways a parallel problem to that of acid deposition. Dry weather
and land degradation in the deserts and arid lands of China and Mongolia
regularly result in yellow dust storms that reach South Korea and other
countries. Follow-up talks are scheduled for October to create the
monitoring network described earlier.
C. Regional Air Pollution Information and Simulation (RAINS)
The Acid Rain and Emission Reductions in Asia project which developed
the modeling policy tool RAINS-ASIA has played an important role in
raising awareness of current and potential future problems from emissions
for acid deposition in Asia. In 1991, a group of researchers from Asia,
Europe and the USA started the collaborative effort to study the problem of
sulfur deposition in Asia with funding support from the Asian Development
Bank and the World Bank. The investigation confirmed the seriousness of
the problem and developed a model-based policy tool (RAINS-Asia) for
analyzing acid rain implications of energy use and alternative mitigation
strategies for different parts of the Asian region. The model had originally
been developed by Institute for Applied Systems Analysis in Austria for the
study of similar problems in Europe. The RAINS model is now available to
28
anyone on the Internet and it is possible to generate tables and maps using
own scenarios.
In 1997 the UNEP Environment Assessment Program for Asia and the
Pacific has joined the Asian Development Bank in a follow-up technical
assistance program to the RAINS-ASIA project. The primary participating
countries are Thailand, Indonesia, China, and India. Through a series of
national seminars and workshops the program has been able to dissipate
model results and start the process of considering energy and abatement
strategies.
D. Bilateral and extra-regional programs
In 1994, Japan and China signed an accord to cooperate on environmental
protection issues, including acid precipitation. The accord provides for
exchange of information, expert personnel and collaborative research on
technical, policy and regulatory issues. China also signed a similar
agreement with the Russian Federation in the same year.
China and Japan are also tackling the problem through cooperation and
financial aid for specific cities. In 1997 the then Prime Minister Ryutaro
Hashimoto and the then Chinese Premier Li Peng agreed on "The JapanChina Environmental Development Model City Plan" which aims to tackle
environment problems in three Chinese cities, namely, Chongqing, Dalian,
and Qiyong through environmental protection measures against air
pollution and acid deposition. For its part China will strengthen
environmental regulation and promote investments in environmental
protection.
Japan will provide funds and technologies as official
development assistance. The process includes industries and social systems
to use the by-products of desulphurization for example gypsum as fertiliser
as well improving energy efficiency. Up to 40.5 billion yen was to be lent
to China for this plan over two years through the Overseas Economic
Cooperation Fund and Japan International Cooperation Agency.
City-twinning, whereby special cooperative agreements between local city
authorities in different countries has also been promoted by Japan in North
East Asia. The cooperation often includes, apart from the central and local
governments, academic and research institutions and public and private
29
sector enterprises and NGOs92 Some examples between Japan and China
include the Kitakyushu-Dalian, Tokyo-Beijing and the HiroshimaChongqing environmental cooperation projects.
China also has important bilateral relationships with countries in Europe
and the US on energy efficiency and relevant to acid-causing emissions.
In April 1999, for example, the 2nd meeting of the US/China Policy Forum
on Environment and Development, which promotes cooperation and
dialogue on environmental protection issues and the transfer of US
environmental technology, agreed on a feasibility study of sulfur dioxide
emissions trading.93 Some of these arrangements, especially those
involving cooperation with environmental technology companies, may
ultimately have as large effects as cooperation efforts within the North East
Asia region.
Part 3
Assessing and Improving Regional Cooperation on the Environment
1. Assessment and Prospects for Improvement
From Part 2 of this paper, it should be clear that efforts at regional
cooperation in Asia on these environmental issues are quite limited in their
reach and implementation. Institutions remain weak, especially in NE Asia,
and modes of discussion and behaviour between governments remain more
formal than effective.
In ASEAN, while Indonesia – the source country for the fires and haze -has not strongly resisted the plans for cooperation, its attention has been
distracted by the on going economic and political changes. Effective
implementation is also blocked by resistance and corruption among some
sectors and at local levels. With reform and recovery, it may however be
possible that ASEAN can cooperate with Indonesia in addressing the issue
of the fires and haze.
In North East Asia, China – the source country for the acid rain – continues
to resist a real and effective dialogue. China has been highly sensitive about
statements attributing blame or responsibility for transboundary pollutants
making further discussion about targets or emission control strategies very
92
Ryokichi H., The role of Japan, the Republic of Korea, China and Russia in the
promotion of environmental cooperation in the Northeast Asian region, UN ESCAP,
(1997).
93
Environmental News Service, 9 April 1999
30
difficult. To date the Chinese government has only conceded that the
problem of transboundary acid precipitation is a subject for scientific
research rather than for a binding international agreement.94 Prospects for a
regional environmental or atmosphere management regime are still remote.
Suggestions as to how the ASEAN and North East Asian plans could be
improved depend on these and other difficulties in cooperation. There are a
number of difficulties, both with transboundary pollution generally, and
specifically in regard to these two issues of transboundary air pollution.
What is important is that suggestions for improvement must neither neglect
the previous description of ASEAN and NE Asian ways in favor of ideal
solutions nor presume their modes of cooperation to be immutable and
permanent. The “ASEAN way” is in flux and is capable of responding to
new challenges and functions. 95 At the regional level, ASEAN may have
to reconsider and adapt the “ASEAN way” in order to be relevant and
effective in situations of transboundary harm. 96 Similar prospects for
cooperation can be developed in NE Asia. Non-interference cannot be
maintained in the face of ecological disaster that respects no borders. A
regional treaty setting thresholds for transboundary harm and creating
sufficiently strong institutions to monitor and ensure compliance with them
would be a step towards guarding themselves against future fires.
There are a number of different general approaches to improving
cooperation in both regions. What follows is however more a “tool box” of
possible options than a single solution and contains alternative suggestions,
which might, to a degree, be mutually exclusive or inconsistent. 97
2. How to Improve ASEAN?
94
Some in China may not even see the need for such an agreement, since domestic
incentives to control sulfur emissions-both to reduce acid precipitation and human health
impacts-are already very strong.
95
The “ASEAN way” is also under pressure to change in reaction to the enlargement of
ASEAN, its role in dealing with Cambodia, and the challenges of the Asian economic
crisis.
96
For instance, ASEAN has concluded the South East Asian Nuclear Weapons Free Zone
Treaty, which allows for interstate reporting, monitoring and inspections. See Article 14
of the Treaty. The SEC Policy Dialogue called on ASEAN “to recognize that the norm
against intervention in the internal affairs of a state should not prevent effective response
to transboundary pollution insofar as the damage is suffered by another state or the global
common.” See Chairman’s Statement, Annex.
97
Additionally, there are possible solutions that lie beyond the purview of ASEAN.
Alternatives may arise from international institutions, individual companies, or consumers.
These however lie beyond the scope of the present paper.
31
A. Treaty Making
Treaty-making in ASEAN can be strengthened. The ASEAN plans are
cooperative approaches, rather than attempts to create liability regimes or
set specific environmental limits. Since stricter treaties have more
successfully dealt with transboundary pollution, taking steps to evolve the
ASEAN Plans toward either a liability regime or strict pollution limits
might prove worthwhile. However, as reviewed earlier in Part 2, examples
of environmental liability regimes are relatively few and far between. In
the ASEAN context, this concept seems unlikely to be politically
acceptable. 98
Another direction would move the ASEAN Plans toward specific targets
for atmospheric pollution fires and haze. This might prove difficult, given
differing environmental priorities, stages of industrial development and
administrative and technical capacities among countries. ASEAN members
even use different systems for measuring airborne pollutants. Harmonizing
limits, as has been done in the European Community, 99 might not be
feasible in ASEAN. If ASEAN cannot achieve a common system, an
alternative would be to require states to set their own national laws and
limits and then use an inter-governmental panel to enforce compliance. A
number of agreements on transboundary pollution use this approach.100 It
98
If, however, ASEAN were to pursue a liability regime, a number of proposals might
make it more acceptable. First, a liability regime should cover many types of
transboundary pollution, not just atmospheric pollution and, even more specifically, not
just the haze from the fires. Focusing on the haze alone would give Indonesia very few
reasons to agree with or comply with any such regime. Any liability regime should
emphasize not only airborne pollution, but seaborne pollution as well, especially in the
Straits of Malacca and the shipment of hazardous waste.
99
See generally, AIR POLLUTION CONTROL IN THE EUROPEAN COMMUNITY:
IMPLEMENTATION OF THE EC DIRECTIVES IN THE TWELVE MEMBER STATES (Graham
Bennet ed., 1991). For an overview of the harmonization techniques used within the E.C.,
see Damien Gerardin, Lessons from the European Community, in ASIAN DRAGONS &
GREEN TRADE, (Simon S.C. Tay & Daniel Esty, eds., 1996).
100
The North American Free Trade Agreement (NAFTA) between Canada, Mexico and
the United States takes a similar approach, thereby avoiding the need to harmonize limits.
For example, NAFTA Art 1114 makes it clear that each country remains free to adopt and
enforce any environmental measure it deems necessary to ensure that new investments
within its territory do not degrade the environment, so long as measures apply equally to
domestic and foreign investors: see Daniel C. Esty, “Making Trade and Environmental
Policies Work Together: Lessons from NAFTA”, in TRADE & THE ENVIRONMENT:
THE SEARCH FOR BALANCE Vol I (James Cameron, Paul Demaret & Damien
Gerardin, eds.), London, 1995, Chpt. 3. See also Steve Charnovitz, “The NAFTA
Environmental Side Agreement: Implications for Environmental Cooperation, Trade
Policy, and American Treatymaking”, 8 TEMPLE INT’L & COMP. L.J. (1994), p. 257.
32
is less difficult than reaching common limits that all must agree to. It also
avoids the imposition by any one country of its own unilateral standards.
Instead, like the Golden Rule, each country is held to do to others what it
would do domestically for itself.101
Even if ASEAN Plans remain agreements for cooperative, national
behavior, they could still be strengthened. One way of doing so is to have
regular and more open review of national plans and implementation. The
ASEAN Action Plan, as implemented in early 1998, improves on the 1994
Cooperation Plan by having a regular review by Ministers and by officials.
Such reviews are the most common mechanism for encouraging state
compliance in environmental and other international treaties. Differences
persist between alternative modes of review. For example, who should
participate in the review? On one hand, review could be internalized and
limited to officials, as is presently practiced under the ASEAN Action Plan.
At the other end of the range of possibilities, a more open review is
possible, with the involvement of recognized NGOs with expertise and
interest.102 At an intermediate position, review could be open to relevant
Inter-Governmental Organizations, such as the secretariats for the U.N.
Convention on Biological Diversity and for the Climate Change
Convention. Both deal with global issues that are connected to the South
East Asian fires and haze. Similarly, review of government actions might
be open to scientists or technical experts for comment.103 Alternatively, the
ASEAN Secretariat itself might comment at reviews, providing a more
impartial point of view. Such a role for the ASEAN Secretariat would,
however, require strengthening the organization in terms of its knowledge
and capacity in order to legitimize it in the role of providing such review.
The OECD uses a "principle of non-discrimination" by which states control their
transboundary pollution at the same standards as applicable to similar pollution within
their borders and allow private plaintiffs access to their courts for redress, no matter where
the damage is suffered. See OECD Recommendation of the Council on Principles
Concerning Transfrontier Pollution, C(74)224, Nov. 14, 1974.
101
See Merrill, supra note 69, at 997.
102
The NGOs were allowed their first participation in an ASEAN meeting when they
presented their concerns to the environment ministers in July of 1998. See Boycott of haze
fire firms next?, STRAITS TIMES, July 25, 1998. The SEC Policy dialogue had earlier
recommended that ASEAN “institutionalize review of actions taken on the fires by all
concerned government officials and, further, to invite expert and concerned international
organizations, scientists and academics and non-government organizations for dialogue
and review.” See Annex.
103
The Climate Change Convention sets an example of this in its panel of scientific
experts.
33
B. Reconciling Norms
Some of the problems facing ASEAN’s efforts to take effective action arise
from the ASEAN norm of non-intervention and the “ASEAN way.” This
norm may accord with international law relating to the use of force or other
coercive measures. Humanitarian and other intervention by the
international community involving the use of force must be legitimated by
consensus and principle.104 In the case of ASEAN, however, the principle
of non-intervention may have taken on a precise and much wider meaning.
In the view of some ASEAN officials and scholars, the principle
delegitimates not only the use of force, but even public criticism of one
government by another. This stance was recently questioned within
ASEAN, but has since received reaffirmation.105
In the context of the fires, the norm of non-intervention might seem a
primary reason for ASEAN inaction and neighborly silence. If the fires are
to be addressed effectively, ASEAN’s members must recognize the
situation as one that falls outside the norm. In practice, ASEAN has already
taken steps in this direction by recognizing the issue’s importance and
promising cooperative actions. Whatever their limitations, Action Plans
were made and officials from other countries query Indonesian officials on
their action or inaction. These events point to the conclusion that the fires
are seen as an exception to the norm of non-intervention. More can be
done, however. ASEAN members should consciously and publicly
recognize that the ASEAN norm against non-interference does not preclude
lawful actions regarding transboundary pollution. By its very nature,
transboundary pollution is not a purely domestic affair.
104
Tom Farer, A Paradigm of Legitimate Intervention, in ENFORCING RESTRAINT :
COLLECTIVE INTERVENTION IN INTERNAL CONFLICTS (Lori Fisler Damrosch, ed.) Council
on Foreign Relations Press : c1993, pp. 316-547
105
The principle has been subject recently to question by the governments of Thailand and
the Philippines. They proposed that ASEAN adopt a principle of “flexible engagement.”
After discussion at the ASEAN Ministerial Meeting in mid 1998, however, the principle of
non-intervention was reasserted, with the watered down promise of “enhanced
interaction.”: see speech by Minister for Law & Minister for Foreign Affairs, Prof S
Jayakumar, ASEAN in the 21st Century: Challenges of Globalisation, SPEECHES ’98
(July-August 1998), Ministry of Information and the Arts: 1998, pp. 21-24.. A watershed
event in this regard of ASEAN practices was the reaction to the beating inflicted on
Malaysia’s former deputy prime minister, Anwar Ibrahim, while in police custody after
being ousted from government. The presidents of Indonesia and the Philippines publicly
voiced their concern at such mistreatment. This was the perhaps the first and certainly the
most publicized break from the ASEAN practice and principle of “non-intervention.”
34
Practical cooperation is one way of moving ahead, below the level of high
interstate politics. ASEAN members can move to pool and jointly mobilize
resources, such as fire-fighting units. Pooled resources and joint firefighting have clear precedents in arrangements among federal systems like
the United States. ASEAN and bilateral agreements promise such
measures. It appears, however, that considerable implementation problems
and obstacles on the ground continue, arising from political discomfort with
having large numbers of government personnel from other states working
on Indonesian territory. Such sensitivities, while understandable, make
cooperation difficult.
Perhaps no immediate solution exists. The
participation or even leadership of neutral agencies, such as UNEP and
ASEAN, is needed to help defuse sensitivities between the governments
involved.
C. Strengthening Institutions
To move ahead, ASEAN members must also arrive at a mutual recognition
of the human, economic and other costs of the fires and haze. Conversely,
the relative insignificance of a problem decreases those prospects. At
present, many of the cost estimates relating to the South East Asian fires
have come from NGOs and think-tanks. ASEAN governments need to take
these estimates into their official consideration to generate figures for their
accounting. This step could assist the Indonesian political system with
recognizing the real costs to its people and economic system and would
also provide a basis for affected states to make the economic commitment
to fund the necessary steps for the prevention and control of future fires.
This has not been done to date. Perhaps for this reason, despite NGO
estimates of losses running into hundreds of millions, neither Malaysia nor
Singapore has been responsive to either the suggestion for a multilateral
revolving fund or UNEP's request for $10 million for interim fire-fighting
measures.106 It is common sense that cooperation will only succeed if, for
all parties, the benefits exceed the costs. 107 Recognizing the true economic
costs of the fires will help justify expenditures to prevent or mitigate fires.
ASEAN's general capacity for environmental policy-making and assisting
compliance needs to be strengthened. As noted, ASEAN's institutional
capacity has suffered because the “ASEAN way” doubts the effectiveness
106
The concern of the states involved, of course, might legitimately be over the
effectiveness of the proposed actions.
107
See Merrill, supra note 69, at 988.
35
of supranational institutions. Within ASEAN, too, the environment has not
been emphasized. As much as national capacities, such shortcomings in
ASEAN may have to be addressed in order to deal effectively with
transboundary pollution.108 ASEAN should have sufficient resources and
knowledgeable personnel to add value to national efforts to deal with the
transboundary pollution. These assets might assist and help smooth matters
if and when bilateral discussions between involved states become strained.
Strengthening ASEAN’s role might also allow it to transcend
environmental issues and cover other transboundary and regional concerns,
either within ASEAN or in a broader framework, such as the ASEAN
Regional Forum.109 Only then can ASEAN play a sufficient role in
monitoring and ensuring the compliance of states with the Plans and any
other agreements that concern efforts to prevent or control the fires.
D. Linking Environment and Economic Policy
Finally, the possibility of linking environmental and economic concerns
within ASEAN should be considered. It is clear that initiatives such as the
SIJORI Growth Triangle (including Singapore, southern Malaysian states,
the Riau Islands and Sumatran provinces of Indonesia) thicken economic
interdependence, as do ASEAN-wide programs,110 the ASEAN Free Trade
Agreement, and the ASEAN Investment Agreement.111 Additionally,
environmental standards have a discernible economic impact on traders
and, especially, investors. Higher standards might exact higher costs for
108
The SEC Policy Dialogue called on ASEAN “to strengthen the capacity of the ASEAN
Secretariat, especially in matters concerning the environment and sustainable
development.” See Chairman’s Statement, Annex.
109
The ARF and the ASEAN Secretary-General have not, to date, exercised much
initiative in preventive diplomacy or the use of good offices. On possible developments in
this regard, see generally Simon SC Tay and Obood Talib, The ASEAN Regional
Forum:Preparing for Preventive Diplomacy, CONTEMPORARY SOUTHEAST ASIA, Vol 19
(1997), p. 252. On preventive diplomacy generally, see Michael Lund, Preventing Violent
Conflict, US INSTITUTE OF PEACE, 1996. On the good offices function of the U.N.
Secretary-General, see Thomas M. Franck and George Nolte, The Good Offices Function
of the UN Secretary-General, from UNITED NATIONS, DIVIDED WORLD (Roberts
and Kingsbury, eds.), Clarendon (1993), pp. 143-182.
110
See generally ASIA'S BORDERLESS ECONOMY: THE EMERGENCE OF SUBREGIONAL
ECONOMIC ZONES (Edward K. Y. Chen & C. H. Kwan eds., 1997); REGIONAL
COOPERATION AND GROWTH TRIANGLES IN ASEAN (Toh Mun Heng & Linda Low eds.,
1993); Linda Low and Simon S.C. Tay, Growth Triangles and Labor in Southeast Asia, in
LIBERALIZATION AND LABOR 86-145 (Rajah Rasiah & Norbert von Hofmann eds., 1996).
111
See generally AFTA: T HE WAY AHEAD (Pearl Imada & Seiji Naya eds., 1992).
36
businesses; therefore, to attract investment, countries might lower or be
loathe to increase environmental protections.112 There is, therefore,
economic sense in connecting ASEAN's economic agenda to its
environmental concerns.113 Conversely, a link to economics would help
prioritize the environment.
On the whole, such connections would help ASEAN countries take steps
towards sustainable development, reconciling environment and economics.
ASEAN has rejected the idea of sanctions and environmental conditionality
for trade and aid. However, the links between environment and economics
among ASEAN members could be positive and cooperative; “carrots”
rather than “sticks.” Assistance and incentives for Indonesia would help in
this regard. This might come from fellow ASEAN members, especially the
richer states, such as Brunei and Singapore, or from outside the region.
Such assistance would not be charity but rather a due recognition of the
economic costs and ill effects caused by the fires and haze.
For too long the countries of the region have emphasized trade and other
economic activity without sufficiently recognizing its full environmental
costs. Linking the environment to economic development would not, of
course, require a cessation of economic activity; the links should be made
in the context of sustainable development.
E. Involving People and the Private Sector
NGOs have played a considerable role in protecting the environment.114
This should not be different in the case of the South East Asian fires. The
acceptability of NGOs in Indonesia and in ASEAN has increased from the
pressure of inaction in the Action and Cooperation Plans. This was signaled
by the endorsement of the Fourth ASEAN Ministerial Meeting on the haze,
held on 19 June 1998, which, “welcomed the increasing role of NonGovernment Organisations and the private sector in regional, national and
112
The literature on environmental effects on economic investment and industry migration
is mixed. Many theorize that there is a race to the bottom in standards to attract foreign
investment and trade. Others argue that the actual cost increase from environmental
standards is small and does not determine investment decisions, which are based on a
much wider consideration of competitiveness. See, e.g., Richard Revesz, Rehabilitating
Interstate Competition: Re-Thinking the Race to the Bottom Rationale for Federal
Environmental Regulation, New York University Law Review, Vol 67, (1992), p. 1210.
113
Both the E.C. and NAFTA have taken environmental factors into consideration in
different ways in undertaking greater economic integration.
114
See Paul Wapner, Environmental Activism and World Civic Politics, STATE
UNIVERSITY OF NEW YORK PRESS, 1996.
37
local efforts to combat, prevent and mitigate fires. To this end, the
Ministers welcomed regular dialogue between NGOs and the ASOEN
Senior Officials on the forest fires and haze matters”. 115
One example of this at the regional and international level was the
International Policy Dialogue on the South East Asian fires, held in
Singapore on 4-5 June 1998. 116 Representations from the dialogue were
made to the ASEAN senior officials at their fourth meeting later that same
month; the first time ASEAN officials allowed a dialogue with NGOs on
this issue. This would seem a step in the right direction, towards having
NGOs and other private, civil society groups assist in efforts to deal with
the fires. It remains to be seen however if ASEAN will continue and
enlarge this fledgling engagement with NGOs.
The concept of privatizing environmental conflicts devolves them from the
inter-state level to legal proceedings at the level of municipal laws. Such
proceedings could be instituted against the polluter as a private claim, as
under tort law, or as a public interest suit. Allowing such suits would have
certain advantages over actions taken by government level agencies. Such
an approach might lessen the possibility of political embarrassment and
inter-governmental confrontation, risks which are antithetical to the
ASEAN way. One government would not sue another government.
Rather, they would create the framework for private suits.
The normal recourse would be to bring the suit where the damage was
done; that is, in the case of the fires, in Indonesia. However, given the
difficulties of effective prosecution or civil suits in Indonesia against
polluting companies, there is some temptation to bring suit before the
courts of another jurisdiction. Indonesian officials have considered
bringing suits outside Indonesia in attempting to reach foreign investors
possibly responsible for helping cause the fires. Suits against Indonesian
corporations have also been publicly suggested in Singapore.117
This could be accomplished either through a special framework created by
the countries involved or without such a framework, depending on each
115
Joint Press Statement, Fourth ASEAN Ministerial Meeting on Haze,
http://www.ASEANsec.org/function/prhaze4.htm (accessed July 20, 1998).
116
The Chairman’s statement from the dialogue is annexed, infra.
117
See Boycott of Haze Fire Firms Next?, S TRAITS TIMES, July 25, 1998 (reporting on a
talk by Tommy Koh, Singapore’s ambassador-at-large, which suggested that companies
involved should be exposed and boycotted by consumers).
38
country's jurisdictional rules. For example, the countries could provide a
treaty framework to allow access to their national courts. The 1974 Nordic
Convention between Denmark, Finland, Norway and Sweden provides
citizens in each of these countries the right to bring suit in the court of
another country seeking compensation for transboundary pollution.118 In
South East Asia, such a treaty could, for example, provide Singaporeans
automatic access to the courts of Indonesia. A framework could also be
used to allow Singaporeans to sue Indonesians in Singapore courts,
notwithstanding forum conveniens rules.
If the countries fail to create a special framework for cross-jurisdictional
suits, private individuals could still attempt to bring suit based on the
general jurisdictional bases of the national courts. Other cases involving
environmental damage caused in developing countries resulted in attempts
to take action in other jurisdictions, perhaps most notably against the Union
Carbide company in the United States119 after the Bhopal disaster, but also
in more recent litigation involving environmental and other damage
resulting from oil exploration in the Ecuadorian Amazon.120 Some have
also considered using the U.S. courts to sue Mexican companies for air
pollution that crosses the border between the two countries, affecting the
southern United States.121
Taking a similar approach, individuals could bring suit outside Indonesia
for the fires caused inside Indonesia by Indonesian companies. This,
however, would be adventurous litigation. Such cases would face
118
See Bengt Broms, The Nordic Convention on the Protection of the Environment, in
TRANSBOUNDARY AIR P OLLUTION: INTERNATIONAL LEGAL ASPECTS OF THE COOPERATION OF S TATES (C. Flinterman et al. eds., 1986).
119
The case has generated much discussion. For more recent articles and writings, see
Sudhir K. Chopra, Multinational Corporations in the Aftermath of Bhopal: The Need for a
New Comprehensive Global Regime for Transnational Corporate Activity, 29 V AL. U. L.
REV . 235, 247-52 (1994); Jamie Cassels, THE UNCERTAIN PROMISE OF LAW: LESSONS
FROM BHOPAL (1993); Hosein Hanson, Unsettling:
Bhopal and the Resolution of
International Disputes Involving an Environmental Disaster, 16 B.C. INT' L & COMP. L.
REV . 285 (1993).
120
See generally Judith Kimerling, Disregarding Environmental Law: Petroleum
Development in Protected Natural Areas and Indigenous Homelands in the Ecuadorian
Amazon, 14 HASTINGS INT' L & C OMP. L. REV. 849 (1991); Judith Kimerling, The
Environmental Audit of Texaco's Amazon Oil Fields: Environmental Justice or Business
as Usual ?, 7 H ARV. HUM. RTS. J. 199 (1994)
121
See Cameron Grant, Transboundary Pollution: Can NAFTA and NAAEC Succeed
Where International Law Has Failed?, 5 COLO. J. INT’L ENVTL. L. & POL’Y 439, 441-47
(1994).
39
considerable problems in terms of the jurisdiction of the courts over the
defendants,122 the laws invoked, and the proof of facts and causation. Even
if successful, enforcing the judgment would likely prove difficult.
For example, all the above problems would exist in bringing an Indonesian
litigant to suit in Singapore. The courts might refuse to hear the case on the
basis of forum non conveniens, deciding that Indonesian courts should have
jurisdiction.123 Even if that hurdle is cleared, an Indonesian-based
defendant might not be easy to serve or might not appear to defend the
case. The defendant might have no assets in Singapore, moreover, against
which to execute any judgment obtained. The prospects of enforcing a
Singaporean court judgment in Indonesia are not good either, especially in
the case of a default judgment.124 There is, as such, little prospect of a
successful suit in the courts of Singapore against an Indonesian defendant.
Given that such a suit would seek redress against an Indonesian corporation
for acts carried out in Indonesia, many will feel that the law cannot be
expected to do more. At best, bringing suit in Singapore would focus
negative public attention on the defendants’ actions.125
Given the scale of the fires and their global consequences, it may seem that
the private sector and individuals can do little. Some efforts, such as fire
fighting and water bombing, are best left to governments and inter122
For a brief examination of the American application of the forum non conveniens
principle in environmental matters, see Winton Woods, Transnational Litigation of
Comprehensive General Liability Coverage in Environmental Impairment Cases and the
NAFTA, 15 ARIZ. J. INT' L & C OMP. L. 345 (1998). See also Donald Carney, Forum Non
Conveniens in the United States and Canada, 3 B UFF. J. INT’L L. 117 (1996); Michael
Sang Cho, Private Enforcement of NAFTA Environmental Standards Through
Transnational Mass Tort Litigation: The Role of United States Courts in the Age of Free
Trade, 27 S T . MARY'S L. J. 817 (1996).
123
The Supreme Court of Judicature Act (Cap.322) sets out the basis of court jurisdiction
in Singapore.
124
The registration of foreign judgments in Indonesia has proven difficult in practice,
especially if the defendant has not appeared in the foreign court to defend the case or to
recognize that court’s jurisdiction. In general principle, public policy may also provide an
excuse not to allow registration of the foreign judgment. For a review of ASEAN
countries and foreign judgments, see E NFORCEMENT OF FOREIGN JUDGMENTS WORLDWIDE
(C. Platto & W. Horton eds., 1993); Pearlie Koh, Foreign Judgments in ASEAN: A
Proposal, 45 INT’L C OMP. L.Q. 844 (1996); Arthur Von Mehren, Recognition and
Enforcement of Foreign Judgments: A New Approach for the Hague Conference?, 57
LAW & CONTEMP. PROBS. 271 (1994).
125
This is a strategy that some non-governmental organizations have used successfully in
the West. There are no precedents for such court action in Singapore, however, and it may
be that the Indonesian corporations involved have less concern for their public image than
some American companies.
40
governmental agencies.126 There are, however, other areas in which private
actors may prove useful.
Private individuals and organizations can help foster and enforce
compliance within the relevant industries in Indonesia. Compliance can be
increased both through internal economic measures and through externally
created incentives, such as voluntary eco-labels.127 Eco-labels would help
interested consumers discriminate in favor of those companies and products
that do not use fires to clear land, thereby lessening consumer demand for
those that do.128 Another externally created method of increasing
compliance could be debt-for-nature swaps, whether between governments
or with private investors and NGOs. By such a tool, the Indonesian
government might guarantee the conservation or controlled access to
certain lands in exchange for the forgiveness of debt. In this regard, the
economic crisis in Indonesia creates a similar opportunity for this form of
environmental investment to the debt crisis of the 1980s, when this tool was
pioneered.129
Similar economic incentives from the private sector include what has been
called “ethical” funds: investment funds that pursue profit and require a
good environmental record from the companies in which they invest.
Private lending and insurance coverage might also make a difference. It
would make economic sense for both banks and insurers to take steps to
ensure that their clients have no environmental liabilities, which the use of
fire to clear land might create. Such investment and business practices
might also appeal to Indonesia if they would help tap into new and
126
On the other hand, a group of expatriates based in Singapore, calling themselves the
Hazebusters, has informed the press that they will focus on such fire-fighting. They have
pledged to raise money to place in a trust in the Cook Islands for these purposes. As of
publication, however, they had not raised funds nor begun fire-fighting apart from a few
sorties in Brunei.
127
See, e.g., Elliot B. Staffin, Trade Barrier or Trade Boon? A Critical Evaluation of
Environmental Labeling and Its Role in the “Greening” of World Trade, 21 COLUM . J.
ENVTL. L. 205 (1996).
128
The SEC Policy Dialogue called for NGOs to “advocate and implement the increased
use of credible environmental certification for timber and forest products, and for oil palm,
to highlight companies which are good examples of best practice and expose the logging
and plantation companies which are guilty of using fire to clear land. See Annex.
129
On Debt for Nature swaps, see Debt for Nature Swaps: A New Conservation Tool,
WWF Letter 1988, No.1, and PAUL WAPNER, Environmental Activism and World Civic
Politics, S TATE UNIVERSITY OF NEW YORK P RESS, 1996, at p. 93-96.
41
additional funds and economic opportunities that will help the Indonesian
economy recover more quickly. 130
2. North East Asian Cooperation
Many suggestions can be made to strengthen cooperation among North
East Asian states on environmental issues. Many suggestions however
founder and fail on the issue of political will. At present, tensions still exist
among the three major countries of the region that effectively prevent
cooperation in many areas, including the environment.131
Some experts suggest that, for the immediate and medium term, the
prospects of cooperation on acid rain are best where they coincide with the
national interests of China. In particular, these concern efforts to promote
cleaner production in the nations of North East Asia. Yet technology is not
a panacea. There is also need to develop stronger national environmental
regulatory agencies, and these must have the authority to set environmental
goals and enforce laws. They also need supporting policies and institutions
that emphasize pollution prevention and continuous improvement, public
disclosure of pollution performance, improved cooperation among
polluters, regulators and scientists, promote market-based instruments.
A. Transfer of efficient and clean technologies
Not all countries of North East Asia have had the same technical capacity,
or financial resources to develop or purchase cleaner production
technologies. For this reason, factors that facilitate the transfer of efficient
and clean technologies could have a very large impact on the acid
deposition and other atmospheric pollution problems. Technologies are
available now that can largely decouple energy consumption increases from
emissions of sulphur and nitrogen oxides. Technologies may remove these
compounds prior, during or post-combustion. Emission reductions for
different technologies for coal-based power generation are impressive.
Unfortunately, costs are high, and despite heavy investment by Japan and
130
See generally ASIAN DEVELOPMENT BANK, FINANCING ENVIRONMENTALLY SOUND
DEVELOPMENT (1994); Hilary French, Investing in the Future: Harnessing Private Capital
Flows for Environmentally Sustainable Development, 139 WORLDWATCH PAPER,
(Worldwatch Institute, Washington, D.C.) 1998.
131
See IGES, Regional/ Sub Regional Environmental Cooperation in Asia, Feb 2001,
(Kazuo Kato and WakanaTakahasi), p.74-76 for a summary of suggestions.
42
US on developing these various technologies, few are yet in operation on a
commercial scale.132
Technology and increases in efficiency are not however a panacea. Given
China’s rapid growth, even with advanced technology, total S02 and other
pollutants are likely to rise. Some studies, for example, imply an increase of
40 per cent in SO2 emissions between 1990 and 2020. There are
alternatives to cleaner coal-power technology for reducing acid-causing
emissions. Switching energy sources, for example, to natural gas may be
economically feasible now, or in the longer-term, to renewables like wind
and solar power. Improving energy efficiency is the cheapest and most
important strategy for North East Asia today. Japan and the US have a lot
of valuable technical, institutional and policy experience to offer the region.
Some of these cooperative transfers could be facilitated under the Joint
Implementation program of the Framework Convention on Climate
Change. Each country also has some capacity for developing its own
programs.
Transferring clean and efficient technologies to China is one-way that
Japan, Korea, the US and other countries can cooperate to help reduce acid
deposition. The multilateral financial organizations, The Asian
Development Bank, World Bank and the Global Environmental Facility
have already provided financial assistance for such technology transfers for
several years. Japan’s through its Green Aid Plan to China has also
provided substantial amounts of foreign aid, some of it aimed directly at
reducing SO2 emissions. For example, one of the first bilateral agreements
in Northeast Asia to deal explicitly with the acid rain problem, signed in
March 1994, called increased Japanese environmental technology transfers
to Beijing. Most aid has been directed at purchasing and transfer costs, and
some for training. One way to reduce costs and accelerate coverage is to
encourage local manufacturing.
Government cooperation can help
facilitate these transfers by providing protection for intellectual property
rights and reducing trade barriers. Cooperation among governments and
lending agencies, can demonstrate, facilitate and promote transfers that
eventually, however, will be primarily handled by exchanges within the
private sector.
132
NAUTILUS INSTITUTE 1999. Financing Clean Coal Technologies in China. Background
paper for ESENA Workshop: Innovative Financing for Clean Coal in China: A GEF
Technology Risk Guarantee? Berkeley, California 27-28 February 1999.
43
The large differences in cost effectiveness of emission controls between
China and Japan, for instance, suggests mutual benefits for both.
Thus, although cleaner technologies are available, it appears that it will still
take some time and a lot more financial assistance, before they can be
adopted on a large scale in China or North Korea. Improving energy
efficiency is, therefore a key strategy, and one that has and should continue
to be supported through international cooperation, both at the
professional/technical level and through bilateral and multilateral aid.
B. Laws and Harmonization
China has already made some progress domestically in refining its national
institutions to handle the acid deposition problem. An important step was
taken in 1995 when China's National People's Congress amended the
Atmospheric Pollution Control Law of 1987 to create “acid rain control
regions” and “sulfur dioxide control regions”. In total these regions cover
11% of the country but discharge about 60% of the sulfur dioxide. Various
controls are planned, and will be more stringent for the first type of
region.133
Setting and implementing China's policies to control acid precipitation
involves a wide array of actors with divergent interests.134 The National
Environmental Protection Agency 135 and various environmental
committees under the State Council are directly concerned with the issue.
The Agency makes use of expert committees drawn from the country’s
academic and research communities to help draft legislation. Intra-agency
coordination, however, is often poor. As elsewhere in the world those actor
related to finance, trade, and for these specific issues, the Ministries of
Electric Power and Coal wield much more power than the National
Environmental Protection Agency, and therefore have considerable
influence on the content and strength of environmental regulations as they
133
Xie Zhenhua, director of the National Environmental Protection Agency (NEPA),
announced in 1988 that new policies, for example, will not allow coal-fired power plants
to be set up close to major cities in the zones, not allow digging of new mines where suflur
content exceeds 3%, desulfurization equipment to be installed in plants using coal with
more than 1% sulphur, CHINA DAILY, B USINESS WEEKLY, Vol. 18, No. 5459, March 8-14,
1998, Page 1.
134
Sinton J.E., China's View of Acid Rain in Northeast Asia and Regional Cooperation
Strategies for Mitigation, ESENA (1997).
135
The name of this agency is translated by some authors as the “State Environment
Protection Administration”
44
are written and implemented. As might be expected, those responsible for
energy and industrial sectors often resist new and more stringent emission
controls.
Apart from the central government, provincial and municipal
administrations have an important role, especially, in how monitoring and
regulatory activities are carried out. Local environmental protection
bureaus sit within these administrations and so have some difficulties in
pursuing their functions and there is substantial variation among local
areas.136
Overall, however, implementation of these and other measures in China
will require substantial efforts to improve enforcement.137 Another
important area for future cooperation should be harmonization of standards
and goals of regulations in regards to emissions and air pollution.
Environmental management is extremely information- and knowledgeintensive. Regional cooperation can reduce the costs of capacity building
for each nation. Although the most appropriate policy instruments must
vary among countries to fit the different socio-economic and ecological
contexts, there is also scope for improved exchange of experiences with
different policies, in particular, experiments with less familiar forms of
supporting policies, such as those based on market-based instruments.
C. The People and Private Sector
Participation of non-state actor has been and must continue to be a critical
part of the process. Civil society groups concerned with environment or
health will remain important in bringing about internal pressures for change
that place greater value on environmental protection. The private sector will
also have a large role in implementing and reaping the benefits of
efficiency programmes and the transfer of cleaner technologies. Consumer
136
On the other hand their efforts are crucial to success of regulatory actions. The Mayor
of Zhangjiagang, for example, has achieved a remarkably clean city using Singapore as
their model (Forney 1996). In 1998 the Beijing Municipal Environmental Protection
Bureau released a report outlining how local governments should take responsibility for
the reduction of sulfur dioxide with a combination of assessments, monitoring, promoting
energy conservation and by requiring boilers to obtain air discharge certificates before
starting operations. China Daily, 20 February 1998.
137
A polluter pays could be adopted. This should ensure that fees and fines for emissions
exceeding legal limits are higher than abatement costs. Other incentives might include
preferential tax treatment and loans or subsidies to enterprises operating pollution
treatment facilities.
45
behaviour changes will make green marketing more and more important to
business.
As important as working towards regional frameworks for an
environmental management regime is for common pool resources in the
Northeast Asia region, it should be emphasised that most significant actions
will be taken for domestic rather than international reasons. Thus, local
communities and governments will first and foremost be concerned with
local environmental health impacts. An understanding of these will have
the benefit of sensitising the public and policy communities to the
importance of transboundary impacts of acid deposition.
Conclusion: Strengthening the Social and Political Frameworks
A number of different efforts may be possible in addressing the challenge
of the Indonesian fires and haze in South East Asia and the acid rain in
North East Asia. The suggestions offered by this paper are more of a
toolbox or menu of possibilities, and not all are necessary to improve our
response to the issue.
The paper has focused on the regional level and what the countries and
institutions of each region might do. It remains possible, however, that the
most effective action is to be taken at the national levels -- within Indonesia
for the issues of the fires, if and when Indonesia recovers from its present
crisis, and by China on the issue of acid rain. Efforts in Indonesia might, for
example, be seen in the context of better governance and autonomy. Or it
might be linked to efforts by a new government to root out corruption and,
irrational and unsustainable development that benefits only a small elite.
Additionally, action at the international level might also be potentially a
vital force. This must however go beyond the efforts made by UNEP in
responding to the fires in 1998. Efforts may well have to progress beyond
fire-fighting to deal with the root causes of the fires: the economic
imperatives of the prevailing models of development and of the timber and
oil palm industries and the failure of the national system to enforce its own
environmental laws. At this stage, efforts must be made to establish more
firmly environmental legal principles and tools throughout the international
community and economic institutions, such as the ADB, World Bank and
IMF. Further efforts can also be made to link the issue to the global
concerns of climate change and of biological diversity. The interest and
assistance of neighboring states can also be a vital factor. This is
46
particularly important in North East Asia. There remain political
sensitivities and yet there are mutual advantages in cooperating on issues
such as energy efficiency.
One common factor in all of these possibilities is that what some see as a
problem of air pollution is in fact intertwined with much deeper social,
political and economic factors. The connections to industrial, agricultural
and development policy are indeed complex.
In this context, the approach to problems of transboundary pollution can
range from the litigious -- seeking to hold countries strictly liable -- to the
technical -- setting and enforcing pollution limits -- to the cooperative.
ASEAN to date has tended to the last of these in responding to the South
East Asian fires. This is legacy of the ASEAN way, and a recognition of
Indonesia’s special position in the grouping. So too have the countries of
North East Asia; the sensitivity of China to criticism and faultfinding
requires such an approach.
The track record of purely cooperative approaches to transboundary
pollution is however poor. Improving on the present plans and approaches
in ASEAN and in North East Asia is necessary. Some suggestions have
been outlined in this paper. Some may seem beyond what can be achieved
presently. What is achievable is always a question for government decisionmakers to answer. The important proviso is that their answer should result
in an approach that is not only acceptable but also one that helps solve the
problems at hand.
But the tools of persuasion in the current situation may extend beyond
cooperative stances or agreements limited to fire fighting or other technical
subjects. To get attention and priority to the issue, the issue of liability may
need to be raised. In this way, legal norms will help support the correctness
of countries suffering from the transboundary pollution. It may also be
necessary to act more widely: to link environmental concerns to economics
and business, to strengthen the ASEAN secretariat’s ability to deal with
environmental issues, and to internationalize the issue.
The policy response to transboundary pollution is often to look at the issue
in isolation. There are sometimes are benefits to dealing with the issue in
technical way, removed from political or economic considerations. This is
particularly if all countries have the impetus to achieve results. Perhaps this
approach might work in ASEAN if Indonesia, as the primary source
47
country, can persuaded to recognize not just the transboundary effects to
other countries, but the human, economic and environmental damage it
causes to its own people, economy and environment. Similarly in China,
the recognition among the Chinese themselves of the environmental toll
suffered by their own country and people may indeed be the strongest
driver towards more effective action.
In this, I would join others in arguing that the role of civil society and
NGOs is key. The non-state sector must be recognized as a strong factor
that might be able to make the plans more effective. This would include the
positive role that private sector can play. For in looking at how institutions
and regional cooperation works, the driving factors are not simply legal,
institutional or technical.
They relate in the end to social and political frameworks by which people
understand and express their concerns over the impacts they experience as
human beings. It is this common point of reference that the ASEAN plans
share with similar plans from other regions and it is on this point that the
ASEAN way shows perhaps the most considerable difference. The nonstate sector of people and private sector companies can also make a
significant difference in North East Asia.
To include civil society, NGOs and the private sector in a meaningful way
will potentially change the traditional ASEAN or Asian ways of handling
issues. These modes of cooperation, however, should not be sacred and
immutable. If it is to remain functional and relevant, the Asian and ASEAN
ways must evolve to meet the present challenges.
Issues that underscore the difficulties in addressing this environmental
challenge are, especially, inter-state cooperation, legal recourse for
transboundary harms and the participation of civil society groups and nongovernmental organizations, The member states of ASEAN, for example,
have held too strictly to the norm of non intervention in the domestic affairs
of each state. They have also not allowed space for civil society and nongovernmental actors to express their concern over environmental issues. As
such, key weaknesses in ASEAN and Asia relate as such to the social and
political frameworks, rather than only the making of laws or formal
institutions.
The Indonesian fires and Southeast Asian haze are, in these respects,
similar to other issues of transboundary air pollution in Asia, including the
48
yellow dust and acid rain in Northeast Asia. In contrast, the frameworks in
Europe and North America are more robust in meeting in dealing with
similar issues of transboundary air pollution. Social and political
frameworks in Asia must be strengthened and greater room allowed for
non-governmental participation and attention to cross-border and global
concerns.
Main References:
Simon SC Tay, South East Asian Fires: The Challenge to International
Environmental Law and Sustainable Development, Georgetown
International Environmental Law Review, Winter 1999.
Simon SC Tay (editor), The Environment and Regional Cooperation in
Asia, Asia Pacific Agenda Project and Japan Centre for International
Exchange, especially Louis Lebel’s Case Study on Acid rain in Northeast
Asia (Chp. 3), publication pending in 2001.
IGES, Regional/ Sub Regional Environmental Cooperation in Asia, Feb
2001, (Kazuo Kato and WakanaTakahasi).
49