Kuala Lumpur, Malaysia – As toxic haze from Indonesia’s worst wildfires in a decade clouded skies across Malaysia and Singapore over the past two months, a growing clamour of voices has demanded legal accountability. In theory, a patchwork of domestic and international laws makes it possible for Southeast Asian governments to hold polluters responsible for cross-border haze, most of which has been blamed on land clearing by Indonesian palm oil plantation owners. In practice, sensitivities around national sovereignty, a lack of enforcement mechanisms, and the practical challenges of evidence collection make legal action difficult, if not infeasible.
On paper, Southeast Asian countries are committed to working together to prevent cross-border air pollution under the ASEAN Agreement on Transboundary Haze Pollution, signed in 2002. The legally binding treaty commits the 11 members of the Association of Southeast Asian Nations (ASEAN) to tackle haze, a recurring issue for decades, through “concerted national efforts and intensified regional and international co-operation”. However, the agreement does not contain provisions for enforcement by a judicial body such as the International Court of Justice, which requires all parties to consent to its jurisdiction, and disagreements over interpretation and application can only be settled through negotiation.
Implementation of the treaty has also moved at a snail’s pace. The treaty’s coordinating office, located in the Indonesian capital, Jakarta, only opened this April, nearly a quarter-century after it was envisioned. Malaysia and Singapore, where haze has propelled major population centres to the top of global tables for poor air quality, have refrained from criticising Indonesia, instead offering assistance to fight the fires, which are estimated to have burned more than 2 million hectares (about 5 million acres) of land in the archipelago.
Jakarta has given mixed signals on accepting outside assistance, with officials vacillating between welcoming the offers and insisting they can handle the fires themselves. Mohd Hazmi Mohd Rusli, an associate professor and legal expert at Universiti Sains Islam Malaysia, said Southeast Asia’s long-standing emphasis on consensus and noninterference has hampered action. With diplomatic efforts having little impact, attention has increasingly turned to the possibility of countries using domestic laws with extraterritorial reach, an approach pioneered by Singapore.
Under the 2014 Transboundary Haze Pollution Act, Singaporean authorities are empowered to prosecute polluters for activities taking place overseas, with violators liable for fines of 100,000 Singapore dollars ($78,300) a day up to a maximum of 2 million Singapore dollars ($1.56m). The act also enables the city-state’s National Environment Agency to issue notices directing companies to cease burning on their lands. The agency has issued such notices to 10 Indonesia-based firms during this year’s wildfire season.
But to date, no company has actually been prosecuted under the Singaporean law. While the legislation allows authorities to identify suspected polluters through meteorological data, satellite imagery, and maps, prosecutors would likely struggle to establish guilt beyond a reasonable doubt in any case without firsthand evidence from Indonesia. In 2023, the government abandoned proposals for a law against cross-border haze, citing the difficulty of obtaining evidence for prosecution.
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