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When environmental harm crosses borders, who can be held responsible? ASEAN has had a regional agreement on transboundary haze since 2002, and signed the ASEAN Declaration on the Right to a Safe, Clean, Healthy and Sustainable Environment last year. So why are people still exposed to haze pollution they did not cause? On this episode of #ConsiderThis Melisa Idris speaks with Dr Matthew Baird, Director, Asian Research Institute for Environmental Law (ARIEL).
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00:10Hello and good evening, I'm Melissa Idris. Welcome to Consider This.
00:14This is the show where we want you to consider and where you consider what you know of the news
00:18of the day.
00:18The haze, as we know, does not respect national borders.
00:22That's why ASEAN has had a regional agreement on transboundary haze since 2002
00:28and last year it went further with the ASEAN Declaration on the right to a safe, clean, healthy and sustainable
00:34environment.
00:35So why is it that more than two decades after the regional haze agreement,
00:40there are still people who are exposed to pollution that they did not cause?
00:46So when environmental harm crosses borders, who can be held responsible?
00:50Well, joining me on the show to help us think through this question,
00:53I have Dr Matthew Beard, who is the Director of the Asian Research Institute for Environmental Law,
00:59better known as Ariel.
01:01Matthew, thank you so much for being on the show with me today.
01:03Can we start with the immediate crisis?
01:04So when haze generated in one country crosses borders and affects people's health in another country,
01:12what exactly does international environmental law actually say about that?
01:18Thanks. And look, that is the most difficult question that you could possibly ask a lawyer
01:23is how to deal with transboundary issues and certainly transboundary environmental issues.
01:28And while at the moment we are facing this catastrophe within Southeast Asia,
01:33and I think we have to recognise that this is an ongoing issue,
01:37you know, the ASEAN HAYES Declaration is now 22 years old,
01:41but it was created 22 years ago to deal with this issue.
01:46So it really is an issue that has become an intractable problem.
01:50The key issue for transboundary matters is that countries are clearly liable
01:56for damage that occurs beyond their borders.
02:00So each state within ASEAN is liable for the haze that comes and goes across other countries.
02:07The challenge we have is that under international law,
02:10states would have to take action against other states, which is not the ASEAN way.
02:15And the other alternative issue is the way Singapore has responded with their Anti-HAYES Act,
02:20and that is that it's made individual country companies, sorry,
02:24liable for transboundary haze if it should impact Singapore,
02:30irrespective of where those countries, those companies are located,
02:33but they have to have some tangible connection to Singapore.
02:37And so these are two issues.
02:38One is on the state-based obligations,
02:40and the other are the corporate obligations for that transboundary haze problem.
02:45Right.
02:46Can you then bring in the 2025 ASEAN Declaration
02:51to the right to a safe, clean and healthy, sustainable environment?
02:55So I'm just wondering whether that declaration,
02:58because that declaration is quite interesting,
02:59it pivots the context of how ASEAN looks at transboundary haze
03:05from maybe a nation-state boundary issue to a more human rights-based issue.
03:11Does that materially change the legal landscape, Matthew?
03:14I think so.
03:15I mean, I think the ASEAN Declaration in 2025,
03:19that Ariel worked very closely with the ASEAN Intergovernment Commission on Human Rights,
03:25and that restated the commitment of ASEAN to a safe, clean, healthy and sustainable environment
03:32that they first recognised in the ASEAN Human Rights Declaration in Article 28F.
03:36But this was a really exciting part where ASEAN made it quite clear
03:41under the leadership and chairmanship of Malaysia
03:44that environmental rights were issues that had to be addressed by ASEAN.
03:49And I think clean air and air pollution, we're not just dealing with haze,
03:54but also general issues of air pollution, are a significant issue,
03:59probably a crisis issue across Southeast Asia.
04:02And we know that this has a huge human rights and health impact on people in the region.
04:08So I think what has happened is that the countries of ASEAN last year
04:13reiterated their commitment, not only to that transboundary issue,
04:16but also to compliance with international law.
04:19And that, of course, means a compliance to ensure that acts within their territories
04:24do not harm neighbouring countries.
04:26And that's something I think that really people have sort of missed,
04:30that we're now in a different situation.
04:33We've also had the advisory opinion from the International Court of Justice,
04:39which, although it dealt with climate change,
04:42made it, again, quite clear that states have this obligation to act
04:46when there is elements of transboundary harm
04:48and reiterated the role of environmental impact assessment,
04:51but also the positive obligation of states to act,
04:56which I have to also say is really identified in Article 9
05:00of the Transboundary Hays Agreement, which focuses on prevention.
05:04And a lot of people say that the Transboundary Hays Agreement
05:06is just about monitoring and observation.
05:10But that actually forgets that Article 9 really imposes a clear obligation
05:16on states to prevent haze in their territories.
05:20And that is really a positive obligation
05:22that then has to be acted upon by those states.
05:25But you just said that, you know,
05:28countries acting against other countries is not the ASEAN way.
05:31So how do we think about this?
05:33Taking into consideration what you brought in with the ICJ's advisory opinion.
05:38Is there still an obligation under international law
05:42for states to hold other states or other companies liable,
05:48legally accountable for serious transboundary haze?
05:53And I think this is the question.
05:55And it's one that I think has been raised
05:57by the Prime Minister of Malaysia recently,
05:59but also the President of Indonesia,
06:01that we're now at that challenging point
06:04where ASEAN probably has to develop a clear mechanism
06:08for enforcement and compliance
06:10unless it wants states to take other states
06:14to the International Court of Justice.
06:16And that's something that most states don't want to do.
06:19But in the case of the Transboundary Hays,
06:22where there's significant catastrophic impacts,
06:24these are things that states have an obligation
06:27to their citizens to do because I think that's where
06:30we're getting this challenge.
06:31The states have an obligation to their citizens to act
06:35to prevent the haze pollution,
06:37but they also have this obligation not to cause harm
06:40to other states.
06:41And those states, those neighbouring states,
06:43also have the obligation to take action to try and protect
06:47or to seek damages and compensation for the harms
06:51that have occurred to health and other issues.
06:54And we know that these do have huge health problems
06:57and health problems that last for decades.
07:01And that's also, you know, the chronic health impacts
07:04of haze is something that we're really starting
07:06to understand.
07:07But I think this is where if ASEAN wants
07:10to keep following its ASEAN way of consensus,
07:14it can't allow that consensus or the ASEAN way
07:17to prevent action.
07:19And we're now clearly seeing that the haze has become
07:23this catastrophic incident where we really require governments
07:27to take action.
07:28Of course, governments can also take action
07:30to stop particular activities that cause harm.
07:35And that's also one of the challenges,
07:37and I think in Indonesia, that a lot of the harm
07:40that is being caused through heat burning
07:43and other things are caused because of poor land use practices.
07:47And so that's something that the states
07:49and governments have to also do.
07:51Matthew, do you think that it'll just take one country
07:55to take action first, to get the ball rolling,
07:59so to speak, before we actually see some material changes
08:04in the behaviour towards transboundary haze?
08:08I think that is something that is really going
08:11to challenge states within ASEAN.
08:14I mean, we have had, you know, the extraordinary commitment
08:17of ASEAN to consensus, and that works very,
08:20very well in many situations.
08:22But we're now starting to see the consequences
08:26of the failure to act if consensus can't be reached.
08:29So I think there are two options for ASEAN.
08:32One is that it has to develop its own mechanisms
08:35to respond to these transboundary
08:38and global environmental issues.
08:40The other is that a state, acting in the best interests
08:44of its citizens, is going to have to take action
08:46in the International Court of Justice
08:49to seek, you know, remedies and recompense,
08:53as we've seen in climate change.
08:55Do you think Malaysia or Singapore
08:58might be the first to kickstart that?
09:01Well, I think Singapore has demonstrated
09:03how it's put its citizens' health and well-being
09:07to the fore with their anti-HAZE Act,
09:09which is their national legislation.
09:11Hasn't been used, but it was implemented
09:15when there were significant impacts on Singapore.
09:19In terms of Malaysia, I mean, this is a case
09:22where, as Prime Minister Anwar has identified,
09:25you know, Malaysia is suffering significantly
09:27from these catastrophic burnings.
09:29And we know, and the scientists tell us,
09:33that catastrophic burnings, both natural
09:35and man-made, will continue to increase
09:38as climate change continues to have an impact
09:40in the region.
09:41So it's a challenge and a crisis
09:44that isn't going away.
09:45And at some point, ASEAN or ASEAN member states
09:49will have to take strong action
09:51because it's in their own best interests
09:54of their citizens.
09:56We've already seen in Indonesia, for example,
09:59where citizens have taken action
10:00against the Jakarta municipal government
10:02on air pollution, and the courts have held
10:05that it is a duty and obligation
10:06of government and various levels of government
10:10in Indonesia to take action on air pollution.
10:12So I think the same must be true
10:14to broader issues of transboundary haze,
10:16which, again, to ASEAN's credit,
10:19it's had this treaty for 22 years.
10:20However, we have to actually ask,
10:23has it achieved the objection
10:25of preventing haze and burning,
10:29or has it been used just as that monitoring
10:33and observation?
10:34And I think now we're in the case
10:37where action is now going to be required
10:40by governments, both nationally
10:42as well as regionally.
10:44What are you observing, Matthew?
10:45You've brought up the fact
10:47that we've had this for over two decades.
10:49Haze is perennial, happens perennially.
10:53Almost every year, we have to deal with haze.
10:56When you observe big changes
10:59in behaviour towards this,
11:01has there been any material progress
11:04from your perspective?
11:05Are you seeing that people are now more aware,
11:08are now taking proactive steps
11:10to prevent haze or to at least address it
11:13because it's really undeniable
11:15at this point in time?
11:17Yes, and I think the two things are
11:19that we've seen significant amount of work
11:22being done by ASEAN researchers
11:24on the consequences of the haze.
11:26So we now know that there's a massive health challenge,
11:30massive health problems because of haze,
11:32because of, you know, the catastrophic levels,
11:35you know, these purple levels
11:36where you should not go outside.
11:38I do remember, though, 16 years
11:41when I first moved to the region,
11:42my first and perhaps the only letter
11:44I wrote to the Bangkok Post was
11:46when the burning in northern Thailand
11:50had reached crisis levels
11:52and the Thai government or the Thai ministry
11:54was saying it was OK to continue as usual.
11:57Now we're at that point
11:58where everyone acknowledges
11:59this is the most significant
12:01and possibly more significant
12:04in a short term
12:05than responding to climate change
12:07because we have to actually deal with this
12:09and the pollution and harm
12:12lasts, especially from children,
12:14it lasts until old age.
12:16You know, these are the challenges that we face.
12:18So on the one hand,
12:20we now have the knowledge
12:21that this is extraordinarily harmful
12:23and can create lifelong health impacts,
12:27which, of course, are a burden
12:29to the state through the
12:30and lifelong environmental impacts.
12:32The second thing is that
12:34the international law has been restated
12:36and it's been restated
12:37by the International Court of Justice,
12:39again, in the consequences
12:40or the topic of climate change,
12:43but it makes it quite clear
12:44that states are liable.
12:46And so at some point,
12:48someone is going to turn to a state
12:50that is causing, that is burning,
12:51that is allowing the haze
12:52and say, well, now you have to start
12:54to pay for this environmental cost.
12:57This is the polluter that has to pay.
12:59States themselves
13:00are also clarified their obligations.
13:03We call it now stringent due diligence
13:05with respect to climate change,
13:06but that can also relate
13:08to the idea of dealing
13:10with the response to haze.
13:11And that may mean
13:12stopping expansion of palm oil plantations,
13:16stopping conversion of forestry,
13:18ensuring that national parks
13:21and peat reserves
13:22are managed appropriately
13:23and effectively to prevent the burning.
13:25And they are those sort of legal obligations
13:28that are quite clear.
13:29States can take action.
13:31They can prosecute.
13:32They can also prevent and prohibit.
13:35And I think that's also something
13:36that we have seen,
13:37the idea that the state could,
13:40as a matter of emergency,
13:42require industry to stop their operations
13:45for a period of six months to a year
13:46to assess.
13:48That's perfectly legal.
13:49And that, of course,
13:51has huge economic consequences.
13:53But then we're now starting
13:54to have to balance
13:55those economic consequences
13:57to the human impact
13:58and the environmental impact.
14:00And now we're realizing
14:01that the balance is very much
14:02on the need to protect
14:03and preserve human health
14:05and the environment.
14:06Yes, definitely.
14:07Matthew, thank you so much
14:08for joining me on the show
14:09and sharing some of your insights
14:10with us today.
14:11I appreciate your time.
14:12We're going to take a quick break
14:13here and consider this.
14:14We'll be back with more
14:15on the topic of transboundary haze
14:16in just a few minutes.
14:17Stay tuned.
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