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.