Illustrative of Asean cooperation on the principle of sovereignty over natural resources is the Asean response to the recurring Indonesian haze, which has been affecting the neighboring countries specifically Singapore, Malaysia and southern Thailand since 1982.
It is the result of land-clearing fires for palm plantations and the practice of swidden (kaingin) agriculture particularly on peat lands in Indonesia.
Only in 2002 did Asean formulate a hard law instrument on the issue: the ASEAN Agreement on Transboundary Haze Pollution (ATHP). Although generally applicable to all Asean states, it was formulated in response to the Indonesian haze. It took effect in November 2003 with the ratification by nine member states. Indonesia has yet to ratify, which rendered the Agreement essentially ineffective.
In October 2006, Singapore decided to raise the issue at the UN General Assembly, a permissible move under Article 2 of ATHP, which specifically states that the Agreement’s objective is to prevent and monitor transboundary haze pollution through concerted national efforts and intensified regional and international cooperation. Indonesia, however, invoked the principle of sovereignty and non-interference in domestic affairs. (A word must be said about the Asean way of doing things. Cooperation is done through consensus. There is no Asean Parliament to issue laws, regulations and directives to its members and no enforcement agencies. Non-interference in the domestic affairs of a member State is the rule of conduct.)
This controversy illustrates the complex political and economic dimensions of the haze problem as well as the conflict between national and regional interests confronting the Asean. The successful adoption and ratification of ATHP attests to Asean’s growing stature as a transnational environmental lawmaker. But, at the same time, the controversy demonstrates the obstacles in Asean’s path towards environmental regulatory effectiveness.
Perhaps it is time for Asean to take a strong stand, that the principle of sovereignty be modified in the context of environmental law. Far from undermining state sovereignty, enhanced cooperation in the area of environment will strengthen states’ sustainable development. By adopting a flexible engagement approach to transboundary environmental issues, Asean member states could discuss complex problems such as the Indonesian Haze without being accused of interfering with the internal affairs of the country.
Flexible engagement is not yet an accepted principle in the Asean, but its application to transboundary environmental issues is relevant. Flexible engagement is an attempt to delimit the range of situations in which individual member states would be justified in appealing to non-interference to ward off outside involvement in their internal affairs. As serious threats to sustainable development and human security more broadly, transboundary environmental issues would be classified as beyond the scope of “internal affairs” and would be subject to regional governance despite sovereignty.
It is interesting to compare Asean’s response to the Haze issue with the threat posed by zoonotic diseases, e.g. SARS, avian flu, swine flu (H1N1) during the last 7 years which raised not only issues of human security but also challenged animal protection, the protection of biodiversity and ecosystems and the pursuit of sustainable development, i.e. sustainability of the chain of animal food production.
The threat of a pandemic drove Asean to act with prompt response with no less than 25 Asean soft law instruments. Possibly, Asean’s response to zoonotic diseases was more successful as a result of the threat of pandemic not only in the region but also in many parts of the world. In the words of eminent Asean law expert, Koh Kheng Lian, “Asean should use its rich history of cooperation among States to build . . .
environmental cooperation . . . This would enhance respect for sovereignty, not undermine it; it can be argued that the inability to avert an environmental disaster is a greater loss of sovereign authority than cooperation in agreed programs to control the harm. Asean’s deferential approach to other’s domestic affairs can inadvertently lead to violations of Principle 21 of the UN Declaration on the Human Environment in which all States acknowledge that each must act so as not to harm the environment of each other.”
*A consultant on environmental law, Ambassador Tolentino lectures at the San Beda Alabang School of Law.