Saturday, July 6, 2013

Indonesia Finally Moves to Ratify Haze Agreement: Should ASEAN Care?

This week, after weeks of Indonesian-origin haze having shrouded Malaysia and Singapore, and Indonesian President Bambang Yudhoyono having to apologize to the ASEAN neighbors for the haze, the Indonesian government announced that it had moved on ratifying the 2002 ASEAN Agreement on Transboundary Haze Pollution.  Indonesian Environment Minister Balthasar Kambuaya said that the documents necessary for ratification had been cleared by the law ministry and were now at ministerial level review, after which the agreement would be sent to the Indonesian Parliament.  Dr. Balthasar noted that his government “hoped” to have ratification completed by the end of 2013.

Good news on the haze front, right? Well, it’s all in the details.

First, the Haze Agreement itself will not empower ASEAN members or the ASEAN institutions with authority to take action on the ground in Indonesia and elsewhere to deal with the haze.  Article 4 of the Agreement sets forth the following general obligations for ASEAN members:

1.     Co-operate in developing and implementing measures to prevent and monitor transboundary haze pollution as a result of land and/or forest fires which should be mitigated, and to control sources of fires, including by the identification of fires, development of monitoring, assessment and early warning systems, exchange of information and technology, and the provision of mutual assistance.
2.     When the transboundary haze pollution originates from within their territories, respond promptly to a request for relevant information or consultations sought by a State or States that are or may be affected by such transboundary haze pollution, with a view to minimising the consequences of the transboundary haze pollution.
3.     Take legislative, administrative and/or other measures to implement their obligations under this Agreement.

In other words, the Haze Agreement more or less formalizes the cooperative efforts that take place already in ASEAN.  For example, assistance can only be given (or more accurately, assistance can be received) with the consent of the recipient state, and is subject to the direction and control of the recipient state.   Moreover, dispute resolution under the Haze Agreement is limited to consultation or negotiation.  Arbitration is not an option.  Hence retaliatory action on Indonesian-origin goods or direct intervention in Indonesia would not be allowed by the Haze Agreement.

Second, the timing of ratification matters.  The Indonesian parliamentary elections will be held in April 2014, with the presidential election to be held soon afterwards.  The country is already in pre-election mode, making ratification before the end of 2013 both difficult (due to the short timing and politicization) yet necessary (as otherwise nothing will happen until after the elections next year).

Given the difficulty of obtaining ratification and the lack of strong authority and enforcement powers in the Haze Agreement, why should ASEAN members care strongly about its ratification?  Because at this point, more than 10 years after its signing, ratification by Indonesia would send a strong political message to the rest of ASEAN that it takes the issue seriously.  After ratification, continued haze problems will become that much more embarrassing for the Indonesian government.  In other words, at this point the act of ratifying the Haze Agreement has more meaning than the Haze Agreement itself.   

This, again, is the ASEAN Way.  Without strong legal mechanisms or empowered regional institutions, ASEAN must resort to peer pressure and diplomacy to resolve many of its problems.  Yet there is value in such processes; when the haze first hit in 1997-98, there was general official denial about the source of the haze.  This time, there was general acknowledgement of where the haze originated. The first step in dealing with a problem is to accept that one exists. 

So the ASEAN Way does work, albeit more slowly and less consistently than what would happen in the West.   Hopefully this time the Indonesians will act quickly with ratification to put some political and diplomatic investment behind President Yudhoyono’s apology.

Wednesday, July 3, 2013

Another Inning of ASEAN Around the Horn

This week I am in Washington, DC, so I have been watching a lot of baseball with my sons.  That has inspired another edition of “ASEAN Around the Horn,” a wrapup of recent events in ASEAN.

First, this past weekend saw the ASEAN foreign ministers hold their annual formal meeting in Brunei.  Again, the best thing that happened in Brunei is that nothing much happened in another “no- drama” meeting run by ASEAN Chair Brunei.  That is to be much appreciated after the controversial ASEAN meetings last year under then-ASEAN Chair Cambodia, especially given the usual tinder for controversy (the South China Sea) and the controversy of the season (the haze) for this year’s meeting.  For more on my own take on the ASEAN foreign ministers’ meeting and its interaction with the ASEAN Economic Community (AEC), please see this posting at which quotes me.

Second, Singapore hosted the annual ASEAN Competition Conference, with the host nation urging the grouping to harmonize their competition laws.  Effective cooperation and administration of competition laws will be necessary once ASEAN establishes a single market for goods and services in the AEC.  However, since the single production base is much more important for the AEC than the single market (and is developing much faster), and since competition laws in ASEAN range from the robust to non-existent, it will be some time before ASEAN develops an effective regional competition policy for the AEC.  Furthermore, although competition law and politics/policy are always intertwined, ASEAN members need to make the application of their competition laws more objective.  Otherwise, trading partners and the business community may view such laws as serving protectionist goals; Indonesia’s use of the competition laws against Singaporean-owned companies in banking and telecoms are but one example.

Third, National University of Singapore Law School held the first of its plenary sessions on ASEAN Integration Through Law (I am participating in the third session in August in Hanoi).  Singaporean Foreign Minister K. Shanmugam focused on harmonization of legal standards and improving legal frameworks.  These are of course important but regular readers of this blog will know that I am supporter of even deeper institutional improvements in ASEAN. 

Fourth, former ASEAN Secretary Surin Pitsuwan spoke about exactly this need to improve the ASEAN institutions, particularly the ASEAN Secretariat.  He also spoke of increasing funding for the Initiative for ASEAN Integration, which could serve as a structural fund for development (if properly funded).  Unfortunately, not much has been happening on either front, particularly with regard to Dr. Surin’s confidential report on institutional reforms in ASEAN, which he had submitted before his term as ASEAN Secretary General ended.