Session 7: Cooperation Mechanisms to Combat Transboundary Haze Pollution

ASSESSING REMEDIES UNDER INTERNATIONAL ENVIRONMENTAL LAW: FOUNDATIONS FOR REGIONAL SUSTAINABILITY

ByNicholas A. Robinson

University Professor for the Environment, Pace University

Draft Only – Not for circulation or citation without express permission of the author

International ConferenceTRANSBOUNDARY POLLUTION: EVOLVING ISSUES OF

INTERNATIONAL LAW AND POLICY 27-28 February 2014, Singapore

Draft as of 26 February 2014

ASSESSING REMEDIES UNDER INTERNATIONAL ENVIRONMENTAL LAW:

FOUNDATIONS FOR REGIONAL SUSTAINABILITY

Prof. Nicholas A. Robinson1

I. Perceiving Environmental Law in Context – Grounding Remedies......................................................3

II. Inter-State Cooperation for Sustainability...........................................................................................7

III. Drivers of Transboundary Air Pollution in Southeast Asia.............................................................11

IV. Biological Diversity – Cooperation for a Common Concern...........................................................15

V. FAO – Cooperating toward food and water security.........................................................................21

VI. WHO and the Urban ”Airpocolpse” – Cooperation for Human Habitats.......................................21

VII. Environmental Impact Assessment (EIA).......................................................................................22

VIII. UNDP and Sustainable Development.............................................................................................23

IX. Marine Pollution............................................................................................................................24

X. Trade and Other Public International Law Avenues..........................................................................24

XI. Concluding Thoughts.....................................................................................................................26

1 University Professor for the Environment, at Pace University; Professor Adjunct at the Yale University School of Forestry & Environmental Studies; Kerlin Professor of Environmental Law Emeritus, at Pace Law School; former Chair of the Commission on Environmental Law, and Legal Advisor, of the International Union for the Conservation of Nature and Natural Resources (IUCN).

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Transboundary pollution can only be abated by examining its causes. It cannot be disaggregated from either locally dreadful environmental conditions or from its contributions to global degradation. Observing norms for stewardship of nature should prevent pollution, and adhering to such norms is necessary at local, regional or global scales of human activity.2 The task of international environmental law has been to apply those norms in congruent and coherent ways across the scales of governance. As René Dubos observed, before the 1972 UN Stockholm Conference on the Human Environment, when environmental law first emerged within an among nations, societies and individuals should “think globally, act locally.” Today efforts to adhere to this admonition are still timely, and problematic.

This paper examines cross-border pollution as a symptom that is caused by a mix of environmental and socio-economic activities. Economists envision these symptoms as “externalities.” Laws are agreed to identify the drivers of such harmful activities, in order to reform them. Environmental law works to abate harmful activities. Nearly every dimension of environmental law entails remedies that could be deployed to abate the same harmful conduct. Environmental law provides nations seeking to resolve transboundary pollution, such as the “haze” between Indonesia and Malaysia and Singapore, with a range of opportunities to cooperate together to undertake remedial actions. This paper explores such remedies.

Whenever states apply international environmental law effectively, they enhance their socio-economic and cultural well-being. This is the sustainable development priority of Chapter 8 of Agenda 21, as recommended by the United Nations’ Bruntlund Commission report.3 The Charter of the Association of Southeast Asia Nations (ASEAN, 2008) for example, provides that one of its founding purposes is “to promote sustainable development so as to ensure the protection of the region’s environment, the sustainability of its natural resources, the preservation of its cultural heritage and the high quality of life of its peoples.” There are ample legal tools available to realize this ASEAN objective.

I. PERCEIVING ENVIRONMENTAL LAW IN CONTEXT – GROUNDING REMEDIES

Environmental law is still a young field, dating only from the 1970s. In too many quarters, its norms are regarded only as an amenity, to be welcomed when economic times are robust, and shunned when the economy is weak. The peril of such an approach is that it weakens the laws needed to ensure sustainable socio-economic development. Substantial national efforts, and 2 See, e.g. the United Nations World Charter For Nature, UNGA Res. 37/7 (1982).3 UN World Commission on Environment and Development, Our Common Future (1987) at p. 330: “Human laws must be reformulated to keep human activities in harmony with the unchanging and universal laws of nature.”

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Draft as of 26 February 2014transnational cooperation, are required to make environmental law work effectively. Environmental stewardship is not like engineering; remedies cannot be turned on or off quickly, with a new design or the “turn” of the spigot. Effective “Environmental Management Systems.”4 Require sustained and inter-generational efforts. Implementing environmental laws require capacity building and education and reiterative learning about how best to apply methodologies such as ecosystem management or environmental impact assessment. Adopting environmental laws, or adhering to treaties, is only the beginning of a sustained marathon of achieving and then sustaining environmental quality.

Before examining some remedies available under public international environmental law that may be utilized as cooperative mechanisms to combat transboundary haze pollution, it is useful to reflect on why nations have created this new field of law. What is the context within which environmental laws operate? A reader who seeks the remedies can pass over this reflective, introductory discourse and turn to the section discussing the activities that cause the haze in Section III and then to the remedies proposed in Sections IV and thereafter.

A high environmental quality of life is part of the wealth of nations. Advanced development emerges and is sustained through myriad factors. Historian Niall Ferguson identified six factors that produced the European legacy of development: (i) fostering economic production and trade, (ii) providing an educated populace with scientific competences, (iii) ensuring the rule of law and means for peaceful settlement of disputes about rights, (iv) ensuring good health and nutrition for all, (v) providing material goods for individuals, and (vi) sustaining a work ethic for honest productivity.5 The European Union exists to perpetuate such development and to secure on-going peaceful relations and socio-economic well-being for its peoples. Other regions pursue similar collaborations, whether within the federations of Canada or the USA in North America or within the provinces of China, or across South East Asia in the Association of Southeast Asian Nations (ASEAN). Common to all these endeavors is dependence on Earth’s global environmental systems. When any one of these six factors for development of national wealth disregard its environmental foundations, development erodes and wealth declines.

Internally, all nations have enacted environmental legislation to guide development into sustainable pathways. Internationally, nations have negotiated and adhered to environmental agreements to harmonize and strengthen their environmental stewardship. Compliance and enforcement of these environmental laws increasingly is recognized as being important for

4 For the United Kingdom, see http://www.environment-agency.gov.uk/business/144678.aspx . For the USA, see www.epa.gov.ems/ . For generic models see the International Standards Organization, www.iso.org/iso/iso140000 . 5 Niall Ferguson, Civilization (2011, Penguin Books), at p. 13.

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Draft as of 26 February 2014peaceful domestic relations, and as a dimension of peace, of national security. As environmental degradation accelerates,6 economies loose resilience7 and development falters. 8

Earth’s natural systems are dynamic, globally intertwined in ways that the science of Earth’s systems is still discovering. Since the 1972 United Nations Conference on the Human Environment, governments have been endeavoring to realign national laws to be harmonious with the “laws of nature.” As the 1987 Brundtlund Commission put it: “The Earth is one but the world is not.”9 States have made great strides in establishing today’s latticework of multilateral environmental agreements and other treaties aimed at achieving the vision of the 1992 “Earth Summit” of sustainable development while protecting the environment.10

This global framework of law, however, does not yet fully correlate socio-economic activity with what is required to sustain ecological integrity or pubic health. General principles of international law, such as the duties of cooperation or of equity, and in particular environmental principles of law, such as those contained in the Declaration of Rio de Janeiro on Environment and Development (1992),11 offer guidance toward strengthening regimes for environmental stewardship. Governments are to apply these principles wherever environmental problems persist. Transnational environmental problems offer nations a positive challenge: how can societies deploy laws and legal agreements to resolve their specific problems, and at the same time strengthen environmental law to benefit humans and nature at Earth’s local, national, regional, international and global scales?

From the perspective of the environmental sciences, when states to try to resolve environmental disputes narrowly they invariably fail. Some symptoms can be abated for a time, but the root causes reappear or collateral impacts undermine the solutions tried. Ecosystems are interrelated, and a holistic understanding is required before addressing a specific problem. Environmental laws guide socio-economic aspects of environmental inter-governmental relations toward such holistic, scientifically grounded understandings.

6 See Will Steffen, Paul J, Crutzen, John R. McNeill, “The Anthropocene: Are Humans Now Overwhelming the Great Forces of nature?” 36:8 Ambio (December 2007). 7 See the studies of the Stockholm University Resilience Center. www.stockholmresilience.org .8 See the United Nations Environment Programme’s “Global Environmental Outlook 5” (June 2012), GEO-5. www.unep.org/geo. 9 The World Commission on Environment and Development, Our Common Future (Oxford Univ. Press, 1987) at p. 27.10 Contemporary International Environmental Law is presented in Lal Kurukulasuriya and Nicholas A. Robinson (eds), Training Manual on International Environmental Law (UN Environment Programme, 2006), available on line through either the UNEP database, at http://www.unep.org/environmentalgovernance/Portals/8/document or at Prof. Robinson’s library reference at http://digitalcommons.pace.edu/lawfaculty/791/ . 11 UN Doc. A/Conf. 151/26 (vol. I), August 12, 2992.

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Draft as of 26 February 2014Thus, festering phenomena of transboundary pollution exist not as an isolated event,

but is the outgrowth of industrialization, or urbanization following population growth, or commercial developments fueled by incentives that of international trade. As secular phenomena, such trends are often encouraged without any reference to their environmental sustainability. Societies have benefited from the inventiveness of industry, the economic and cultural richness of cities, and the ordered efficiencies of trade. Most nations encourage these trends energetically, but pay much less attention to the frameworks - both natural and social – necessary for the economic realm to be sustainable. The history of development is replete with examples of states that tolerate economic enterprises dumping waste “for free.” Especially when waste is dispersed and diluted, there is little financial or political incentive to address this “externality.” Meanwhile, incremental harm to ecosystems accumulates, violating basic norms of international environmental law. “The Earth is one,” but different states often treat their roles in “the worlds” as if the Earth’s natural systems mattered little.

When economic development proceeds ahead of the frameworks needed to sustain them, social and ecological disruption occurs. Self-aggrandizement exacerbates economic externalities. Those who discard “waste” often ignore the impacts on other people or nature. In the end, the wider community finds itself besieged by the consequences of such profligate behavior. As the environmental harm becomes apparent, humans respond and begin to cooperate to study the evident problems, craft solutions, and establish laws and implementation systems to resolve the problems. The history of environmental law is often a process of governments enacting laws to cope with the specific externalities of development.

Before cooperation to resolve any given environmental problems begins, much less becomes effective, there is inevitably a period when the problem is ignored. Parties pretend that it is someone else’s responsibility, sometimes trading accusations about accountability, making demands for compensation where injury has occurred, and experiencing growing distrust.12 This pattern was evident in Europe when in 1972 Sweden taught the world of nations about transboundary “acid rain.” However, citing international rules of state responsibility as in the Trail Smelter Arbitration (US v. Canada),13 or under Principle 21 in the 1972 Stockholm Declaration,14 did not stop emissions of sulfur dioxide from the industrialized Ruhr and British isles. The emissions continued as long as the factories operated, and the precursors of acid rain 12 These social patterns are discussed by Lord Eric Ashby in Reconciling Man With The Environment (1977), discussed in Nicholas A. Robinson, “Legal Systems, Decision-making, and the Science of Earth’s Systems: Procedural Missing Links,” 27 Ecology Law Quarterly 1077 (2001), at pp. 1097 et seq.13 Arbitral Tribunal, 3 UN Rep. Int’l Arb. Awards (1941).14 Principle 21 of the Stockholm Declaration is deemed binding as customary international law: “States have…the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” 1972 Stockholm Declaration on the Human Environment.

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Draft as of 26 February 2014continued as transboundary air pollution. These acids, carried north with the hydrologic cycle, poisoned the lakes of Sweden and impaired forest ecosystems. In response, states negotiated The 1979 Convention on Long-Range Transboundary Air Pollution15 setting the stage for a 50% reduction in the emissions that cause “acid rain” in Europe. Canada and USA agreed to a 1991 bilateral Air Quality Agreement,16 which has been implemented to reduce emissions by 50% in North America. However, States today are acting slowly to abate the other 50% in the northern hemisphere, and have not acted yet at all with regard to the wholly unabated sources of “acid rain” from China and Southeast Asia that now causes Asian Brown Cloud (ABC) to spread over the Indian Ocean, polluting all of South Asia with “acid rain” in the monsoons. Even when they have good intentions, states are unable, or can “forget,” to sustain their efforts to effectively resolve an environmental problem. The world-wide phenomena of transboundary acid rain festers on.

Notwithstanding the inconsistent response of nations toward building environmental sustainability through law, today’s matrix of multilateral environmental agreements, while not yet complete,17 nonetheless provides models and methods by which states can sustain their duties of environmental stewardship. Until such time as states elaborate a more effective world-wide regime for addressing environmental problems, it is up to each state to marshal the tools appropriate to resolve problem that are acute enough to require priority attention. This essay explores select legal measures available to abate transboundary pollution.

II. INTER-STATE COOPERATION FOR SUSTAINABILITY

In order to undertake and sustain cooperation among States to resolve environmental problems, laws provide for a proactive system of “action plans” and shared collaborative capacity-building. ASEAN has adopted many such action plans, across a wide range of environmental stewardship topics.18 To be effective, such co-operation should take into account the full spectrum of environmental agreements and deploy the tools that they offer.19 Because all Earth’s ecological systems are interrelated, every environmental MEA or other treaty offers tools that can be applied to resolve environmental problems indirectly, beyond the explicit scope of the treaty itself. Where cooperation lapses, is “forgotten,” or is ineffective under one legal framework, there will be other agreements through which cooperation continues in ways

15 18 I.L.M. 1442 (1979).16 30 I.L.M. 676 (1991).17 For example the reactive nitrogen cascade continues and dead zone exist in estuaries around the world, resulting from excessive use of nitrogen fertilizers. Proposals for a new multilateral environmental agreement are pending. 18 See Koh Kheng-Lian, Editor, ASEAN Environmental Law, Policy and Governance, Sectioned Documents, Volumes I & II (World Scientific, 1996 and 2013).19 A good example of this successfully at work is the implementation of the Vienna Convention to Protect the Stratospheric Ozone Layer and the Montreal Protocol. See James Gustave Speth and Peter M. Haas, Global Environmental Governance (Island Press, 2006).

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Draft as of 26 February 2014helpful to resolving an environmental problem. There are synergies among the MEAs, which states can employ to resolve complex environmental problems.

State ministries, NGOs and even intergovernmental organizations focus are accustomed to focusing narrowly on their assigned or chosen sectors of responsibility. Environmental programs often do not receive sustained support over long periods of time.20 There are few leaders who can perceive or cultivate the synergies among the MEAs. It is often difficult to perceive how to deploy the legal tools in one decision-making forum to benefit objectives that are stymied in another forum. For example, those concerned with energy rarely devote attention to biodiversity, and vice versa. One basic norm of environmental law is that one form of waste shall not abated by converting it to another form of waste; so air emissions cannot be scrubbed from exhausts and converted to liquid waste. Too often, however, different ministries are assigned to manage each of these waste systems, and they are content to pass the problem on to the other. Too often, a non-environmental agency feels the environmental issues are irrelevant to its mission.

Narrow sectorialism exacerbates environmental problems, States, or their ministries, reflect often a preference for excluding holistic approaches. For example, the failure to recognize environmental norms as a foundation for international trade has complicated the current Trans-Pacific Partnership (TPP) negotiations.21 For international trade to be environmentally sustainable, trade agreements should not seek exemption from state obligations to protect the environment.22 TPP is in trouble for seeking to do so. In contrast, the success of the U.N. Tribunal for the Law of the Sea reflects the fact that the UN Convention on the Law of the Sea established the basic norm in Article 192 of States to protect and preserve

20 The ASEAN Strategic Plan of Action 1994-1998, and subsequent action plans, did not provide sustained attention to abating the regional driving forces of environmental degradation, and so those drivers continued to produce damage. The resources needed to maximize environmental education – to be able to enlist the citizenry in supporting abatement of problems, has also been less that what would be needed. However, excellent as they are, the ASEAN Environmental Education Action Plan 2000-2005, and Action Plan II ( 2008-2012), need greater support from States to realize their potential. Similar short-falls appear in other regions.21 Coral Davenport, “Administration Is See As Retreating On Environment in Talks on Pacific Trade,” N.Y. Times, p. A17, col. 1 (January 15, 2014); Shawn Donnan, ”Greens Fear US U-turn on Trade Deal Vows,” Financial Times, p. 3, col., 7 (Jan, 16, 2014). Malaysia, Singapore, Brunei Darussalam and Viet Nam are negotiators with Japan and Australia, New Zealand and Chile, Mexico, Canada and USA. The draft treaty would allow private trade deals to trump environmental laws, and investor-state trade dispute panels could over-ride environmental laws (even those required under a multilateral environmental agreement). This sort of trade sectoralism was renounced by the World Trade Organization, and its recurrence in the TPP negotiations is an indicator that trade negotiators are so narrowly focused that they ignore the environmental laws of nations. If the TPP is willing to sacrifice environmental laws in favor of trade, then there is little logic to suggesting that investment in palm oil plantations, for example, in Indonesia, should be governed by environmental laws that might restrict the growing conversion of forests to plantations to produce and trade transnationally in palm oil products. 22 The most recent MEA, the Minamata Convention on Mercury” provides that “this Convention and other international agreements in the field of environment and trade are mutually supportive.” Preamble para. 10 (UNEP, 2013).

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Draft as of 26 February 2014the marine environment. Protection of the oceans is a component of state responsibility throughout. While Agenda 21 undertook the extraordinary task in 1992 to create a holistic, inter-sectoral action plan for sustainable development,23 states today are still struggling to adjust national laws and decision-making to function sustainably. Agenda 21’s substantive recommendations have advanced remarkably well, but its institutional recommendations have met with the opposition of vested interests and entrenched sectoral traditions favoring “business as usual.”

Socio-economic or legal lenses of sectorialism do not create 20/20 vision. They obscure the available pathways to build confidence among States who exacerbate or suffer environmental problems. Sectorialism persists because expertise is built up in each sector, and ministries defend their “turf” and authority over their sectors. It is rare to find a council or officer with oversight of all associated sectors. Most sectors may acknowledge others have some relationship to them, but it takes years to build up mutual understanding and cooperation (for example by inter-agency memoranda of understanding) even within the agencies of a single State, much less across sovereign States. Even when a Head of State learns to work holistically, such as by forming collaborative teams in one administration, as a matter of politics an incoming new administration often “drops” them. The social networks accommodate the specialization and division of labor among sectors, and no one is responsible for the overview of how these sectors inter-relate to one another.

When parliaments enact laws to require inter-agency collaborative decision-making, such as in the realm of environmental impact assessment (EIA), most States learn it is rather difficult to educate their civil servants about how to use EIA efficiently and effectively. EIA is required of States in their national decision-making under Rio Principle 17, and virtually all States have enacted legislation for EIA. The International Court of Justice now deems EIA to be required as a binding obligation of customary international law. 24 It is a logical consequence of Stockholm Principle 21.25 How can one know if conduct that a State allows on its territory is having an impact abroad if the State fails to study the environmental impacts of the actions? EIA is a “system” suited to demonstrating that a State has complied with Principle 21 and

23 The traveaux préparatoires of the 1992 UN Conference on Environment and Development are published in Nicholas A. Robinson, Agenda 21 and the UNCED Proceedings (Oceans, Dobbs Ferry, 1993), six volumes. 24 Pulp Mills on the River Uruguay (Argentina v. Uruguay), http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=135 (2010).25 See UNGA Res. 2851 (XXIV), Jan 8, 1970), discussed in Louis Sohn, The Stockholm Declaration on the Human Environment,” Harvard J. Inter’l L., 423 (1973).

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Draft as of 26 February 2014applied the Precautionary Principle,26 or other general principles of international environmental law as set forth in the 1992 Rio Declaration on Environment and Development.

Applying EIA has become a useful tool for resolving transboundary disputes, as evidence by the Espoo Convention on Transboundary EIA27 in the European context, or the reciprocal, bilateral EIA agreements between States such as Canada and the USA. Where states set aside EIA, as the USA improvidently has done for trade negotiations,28 it runs the risk of sectoral blindness, and engenders political opposition. 29 The use of EIA nationally tends to cultivate an understanding of how diverse sectors relate to one another. Notwithstanding its legal authority in statutes and treaties, EIA is still weakly deployed worldwide. EIA requires carefully scoping of the environmental problem under study to learn all externalities, and a holistic approach to examining alternative options for actions to avoid or abate environmental problems. It is a legal system that reflects the maxim, “look before your leap.”

Having environmental legal tools, however, is not sufficient without a culture of respect for the law. Environmental law only works when the States involved, in any transboundary or other environmental dispute, have both the capacity to implement their laws and the integrity to observe the required norms. Where the “rule of law” is weak, employing available environmental tools may be ineffective, or too formalistic. The United Nations General Assembly has called on all States to bolster their rule of law, at national and international levels.30 States acknowledge that without the rule of law, sustainable development cannot be. 31 It will soon be the 800th anniversary of Magna Carta (1215), the charter through which the rule of law emerged as a foundation of government; governments are still learning how to govern through laws, to ensure that a well ordered society, not through the arbitrary will of rulers who ignore environmental norms or hold deem themselves above the law, or worse, act as outlaws who avoid the law.

A holistic approach to observing norms of environmental law entails support for measures that build the capacity of all States to understand and apply environmental law, and do so with transparency and honesty. Many States are taking steps in this direction at the

26 Rio Principle 15: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there is are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” 27 http://www.unece.org/env/eia/eia.html .28 See US Executive Order 1327729 See Public Citizen, www.citizen.org.30 UNGA Resolution 64/116 (2010), http://www.unrol.org/doc.aspx?d=2958 .31 UNGA Resolution A/RES/66/102 (24 September 2012), http://www.un.org/en/ga/president/66/Issues/Rule%20of%20Law/ruleoflawindex.shtml .

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Draft as of 26 February 2014national level: there are now more than 500 environmental courts and tribunals existing in some 50 nations.32

What, then, are the tools available to build confidence between neighboring States and advance cooperation to address and abate transboundary pollution? Tools exist under a wide range of international environmental agreements. At the outset, however, it is useful to recall that the exercise of these legal tools should be plainly justified on their own merits, ex aequo et bono. Where there is legal right under law, the existence of a remedy is implied (ubi ius ibi remedium). Maxims of Equity apply to disputes arising under international law, and States should reflect on how they act with equity as they seek equity from others.33 Due regard for Equity suggests that remedies sought will stand a better chance of being implemented if all state are equal partners in the frameworks being used. For example, because Singapore, Indonesia, and other ASEAN States have demonstrated a keen interest in celebrating their natural heritage in protected areas and parks,34 a biological approach is examined among the remedial opportunities that international environmental law offers to abate transboundary air pollution while preserving nature. Conversely, until all states are ready to use EIA, ASEAN will remain far behind the European Union in this use of this valuable remedial legal tool.

Before examining legal remedies, a holistic survey of the causes of the haze as transboundary air pollution is important. Legal norms and remedies must be considered in their specific context of the facts involved.

III. DRIVERS OF TRANSBOUNDARY AIR POLLUTION IN SOUTHEAST ASIA

Legal tools are available to build the confidence and cooperation needed to implement environmental laws that can abate transfrontier air pollution. These tools need to be considered in light of the underlying actions that are causing the environmental problem. The immediate transfrontier problems between Indonesia and the Malay Peninsula are air contaminants, smoke, or “haze,” coming from forest fires. International cooperation to control forest fires has been the subject of bilateral environmental agreements among states for many years.35 States have learned to share their capacities to extinguish forest fires, and share their national or provincial fire-fighting resources. In Southeast Asia, however, the issue is not simply

32 See the symposium on “Environmental Courts and Tribunals: Improving Access to Justice and Protection of the Environment Around the World,” 29 Pace Environmental Law Review 363, et seq. (2012), available on line at the Pace Digital Commons. 33 Equity seeks to apply what is fair and good (ex aequo et bono) for parties involved. Maxims of Equity include also “Equity delights in equity” and “He who comes to equity must come with clean hands.” 34 See the ASEAN Declaration on Heritage Parks and Reserves (Nov. 29, 1984), in Koh, op cit., p. 31.35 Nicholas A. Robinson, “Forest Fires as a Common International Concern: Precedents for the Progressive Development of International Environmental Law,” 18 Pace Environmental Law Review 459 (2001).

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Draft as of 26 February 2014one about wild forest fires, perceived as a “common enemy.” The haze comes from agricultural practices, burning forest to clear them in order to plant palm oil or pulp wood plantations.

The 2002 UNEP Regional Haze Agreement,36 and earlier 1995 ASEAN Cooperation Plan on Transboundary Pollution,37 are undertakings well conceived to provide a legal framework to cooperate together to abate air pollution. States have designated focal points in each nation to work on air pollution in general, but not all these experts are targeted on the same issues, including the often unlawful land clearing by fires. The latter expertise is found in agricultural, forest, or other ministries. The Forest Law Enforcement and Governance (FLEG) cooperation is an effort to build capacity and rules through a detailed action plan for “Strengthening FLEG in ASEAN 2008-2015”.38 Despite cooperation from the EU, FOIA and others, and coordination from the ASEAN Secretariat, FLEG has not as yet had the remedial impact hoped for. Many years after having been agreed, the UNEP Haze Agreement and the ASEAN Action Plans, are unfulfilled. The UNEP Agreement has not yet the ratifications needed to enter into force. Experience suggests that until national laws and practices are congruent, the confidence to win sufficient ratifications to bring the agreement into force will be lacking. There is a further need for both capacity building and confidence building and a holistic understanding of the challenges. More extensive use of the biological agreements in international environmental law, or other agreements, can build the congruent national practices, and confidence, needed to progressively resolve environmental disputes like the “haze.”

The UNEP Haze Agreement and ASEAN Action Plans, with FLEG, are typical of the international cooperation for abating environmental transboundary pollution. They should and could work to resolve the pollution. Why are they not yet implemented?

To evaluate the prospects for the UNEP Haze Agreement, and to assess all other remedial environmental laws, it is necessary to look at the driving forces to both deter action and stimulate the burning. What are the drivers that perpetuate the burning in Indonesia that in turn pollutes Malaysia and Singapore and Brunei, while also contributing to global biodiversity loss and the release of greenhouse gases that exacerbate climate change?

The Indonesian Ministry of Forests has granted many permits for converting forests to agricultural uses (2 million hectares worth in 2011 alone).39 While Indonesia’s President Susilo

36 www.haze-online.or.id/ . See L. Kurukulasuriya and N.A. Robinson, UNEP Manual on International Environmental Law, op cit., at pp. 93.37 See Koh, op cit., at 321.38 Koh, op cit.,, at 459. 39 Research on the many contesting domestic forces that serve to perpetuate forest first was provided by Sarah Guzicki (Yale College Environmental Studies Major, 2013)in her research paper prepared under my mentoring entitled “The Implementation Limitations of and Alternative Solutions for Indonesia’s REDD+ Programme Concerning Peatland Restoration” (May 6, 2013).

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Draft as of 26 February 2014Bambang Yudhoyono issued a two-year moratorium on forest conversions, many problems prevent its effective implementation.40 In May of 2011, 103 clearings occurred in forest protected by the moratorium. The President’s commendable efforts, and the fate of his REDD+ Presidential Working Group, now face political risks as elections will be held; the next president may or may not share the same concerns about forest fires, or rooting out corruption and asserting the rule of law. Palm and paper pulp plantation owners are major contributors to political campaigns.

The acute deforestation, often by burning, and draining of peatlands and other forested areas in parts of Indonesia and Malaysia (and elsewhere), while a domestic phenomenon, is driven by external forces. Global, transnational and transfrontier forces cause the acts that result in the burning and transboundary pollution. Indonesia leads the world today in palm oil production. The demand for palm oil is driven by growing markets seeking to buy palm oil in the EU, China and India (together accounting for 49% of total palm oil imports).41 The European Union’s Renewable Energy Directive, to use renewable fuels to reduce greenhouse gas emissions; this sectoral Directive does not address the sustainability of the production systems for the renewable biofuels, and fails to distinguish between lawful and sustainable production and illegal unsustainable practices. EU law is at variance with other laws. The US Environmental Protection Agency in 2012 has declined to list palm oil as a renewable biofuel, but the US Congress in 2013 reset a tax credit for alternative fuel imports, which makes palm oil more attractive to import than soybean oil for biodiesel, and Indonesia enjoyed increasing palm oil imports to the USA.42 The non-governmental Roundtable for Sustainable Palm Oil (RSPO) has produced guidance for sustainable production, but only 14% of Indonesian sites are certified by RSPO as sustainable, and meanwhile Indonesian palm oil production increased by 8.11% and exports grew by 9.50%, with EU palm oil imports increasing by 12.09%. 43 Imports to China are expected to grow by 16% in 2013. 80% of India’s large consumption of palm oil, largely for cooking, comes from Indonesia, and the same applies to Pakistan’s large imports and uses.44 Singapore and other ASEAN nations import palm oil for domestic uses also. Trading relations in palm oil disregard the adverse environmental impact of palm oil production. The “haze” is tolerated by each trader and consumer.

40 Nani Afrida, “President Calls for better Synergy to Meet Climate Change Targets,” The Jakarta Post (Oct. 2, 1022), at www.thejakartapost.com/news/2011/10/01/president-calls-better-synergy-meet-climate-change-targets.html 41 “Top Ten Palm Oil Importers 2012,” Agricultural Corner (November 22, 2012) at http://www.agricorner.com/top-ten-palm-oil-importers-2-12 .42 “US Blending Credit for Alternative Fuels Encourages Palm Oil Imports,” Trade and Environment Newsletter (March 2013) at http://worldgrowth.org/2013/03/trade-and-environment-newsletter-issue-18-march-2013/ . 43 “Indonesian Palm Oil Production by Year (1000 MT),” IndexMundi, at http://www.indexmundi.com/agriculture/?country=id&commodity=palm-oil&graph=production .44 Sarah Guzick, “ op. cit., “The Implementation Limitations of and Alternative Policy Solutions for Indonesia’s REDD+ Programme Concerning Peatland Restoration.”

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Draft as of 26 February 2014As a result of these trade demands, agricultural conversion of forestlands for producing

palm oil is growing rapidly in Indonesia. It is estimated that 100,000 hectares of peatlands are converted to plantations for pulpwood, palm oil, and rice production each year in Indonesia, and 40% of Indonesian forests have been lost in the past 50 years.45 Rice production is important for Indonesian food security, but the acidity of peat waters has made conversion to rice paddies problematic.46 Indonesia hopes to increase rice production from 37 million metric tons to 47 million metric tons annually as its national population grows; some 13% currently lacks adequate nutrition. 47

The loss of biodiversity from conversions of forest to plantations in Indonesia is significant. 80-90% of flora and fauna is lost in these agricultural conversions. Since sustaining biodiversity is a “common concern of mankind,” the loss of Indonesia habitat is of concern. Moreover, much of the plantation lands are situated on peatlands. Indonesia holds 50% of the world’s tropical peat, accumulated over the entire era of the Holocene (10,000 years or more). The peat wetlands sequester ancient carbon (196 tons of carbon per hectare, or 30 times than of ground forests). Indonesia releases some 2.5 billion metric tons of carbon dioxide from peat soils each year. Fires are used to clear forestlands, some burning out of control as in the fires of 1997-98 following the El Niño of 1997. Indonesian air pollution blankets Singapore and Kuala Lumpur with unhealthy pollution periodically, again as recently as 2013.

Indonesia’s peat gas releases place it with the EU, China and the USA as one of the world’s major emitter of green house gases. Only by shifting new palm oil lands to non-peatlands and re-wetting the drained peatlands, can these GHG emissions be curbed and stabilized. President Susilo Bambang Yudhoyono in 2009 announced plans to cut Indonesian GHG emission by 26% by 2020, and by 41% if international aid was provided.48 In addition to GHG emissions, water pollution has grown locally. Environmental impacts include releases of the waste from palm oil production. For every metric tone of palm oil, some 2.5 metric tons of

45 Ibid. 46 Conversions have had some problems. In 1996, the “Mega Rice Project” in Kalimantan Province began to convert one million hectares of peatlands into rice paddies. Excessive drainage was caused, with acid water drained off and the peat drying out, and spikes in local air emissions of carbon and sulfur pollutants. “Indonesia: Environmental Profile,” MongaBay.com at http://rainforest.mongabay.com/20indonesia.htm . 47 Rudy Ruitenberg, “Indonesia Wants to Boost Rice Production by 10 Million Tons, Suswono Says,” Bloomberg (January 21, 2012), at http://www.bloomberg.com/news/2012-01-21/indonesia-seeks-10-million-ton-rice-crop-increase-suswono-saus.html . 48 Indonesia hosted the Conference of the parties of the UN Framework Convention on Climate Change, and set up in 2008 a National Council on Climate Change, and adopted a National Action Plan. Jessica Brown and Leo Peskett, Climate Finance in Indonesia: Lesson for the Future of Public Finance for Climate Change Mitigation (Working Paper, Overseas Development Institute, February 2011).

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Draft as of 26 February 2014waste result, most discharged untreated into open waters.49 Labor conditions for workers are also problematic.

This summary review of many of the principal drivers of the forest fire phenomena demonstrates that several fields of law are implicated by the transboundary air pollution from Indonesia to Singapore, Malaysia and elsewhere: Regional Cooperation laws under the Association of Southeast Asian Nations (ASEAN), International Trade Law, International laws on finance and direct private investment, International Environmental Law, Biodiversity Law, Climate Change Law, Public Health Law, International Laws on food security, Laws on food Law, Sustainable development laws and standards, Laws for cooperation in criminal law enforcement, among other legal sectors. Cooperation to strengthen the rule of law and combat corruption is a high priority for all sectors, but often neglected as each defers to someone else to solve that festering problem. Nonetheless, some suggestive areas for collaborative ways to employ legal remedies to address the transboundary air pollution exist in each of these related sectors.

IV. BIOLOGICAL DIVERSITY – COOPERATION FOR A COMMON CONCERN

One way to curb the burning of forests is invoke the laws that conserve peatlands and forests as habitats for many species of plants and animals. Biological preservation of such lands would prevent new conversions to agricultural uses, and any attendant fires. Given the trends favoring destruction of forests in Indonesia, proactive efforts to preserve forestlands require vigorous action. If Indonesia could take remaining forest peatlands out of exploitation, it could forestall future forest fires. The government could be compensated for setting aside these areas, and in turn buy out any private parties with economic interests. This would shift the demand for land conversion from these forests to other places, and those collateral and consequential issues would need to be addressed. But, in the short term, the forest fires could be ended.

Such a preservation remedy would require a major international effort, supplementing the generous commitment Norway has made to provide financing to avert future peatland losses. Down-wind states like Singapore or Malaysia need to make the case to the United Nations and other international organizations to undertake such an effort. The states involved are in principle agreeable, as shown in the Declaration on the Heart of Borneo between Brunei, Indonesia, Malaysia and The Philippines (2007),50 or the Regional Action Plan for ASEAN Heritage Parks and Protected Areas (2007).51

49 “Palm Oil & Soil and Water Pollution,” World Wildlife Fund (2004) at http://wwf.panda.org/what_we_do/footprint/agriculture/palm_oil/environmental_impactys/soil_water_pollution/ . 50 Koh, op cit, p. 105. 51 Koh, op cit., p. 43.

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Draft as of 26 February 2014A review of the international environmental law authorities relevant to a biological

strategy includes the following. Measures to conserve these forest peatlands could be initiated under (a) the UNESCO World Heritage Convention, and regionally through the ASEAN Heritage Program for Protected Area Management (ASEAN Heritage); (b) the Ramsar Convention on Wetlands of International Importance; (c) the Convention on International Trade in Endangered Species (CITES); (d) the Convention on Biological Diversity; (e) the REDD+ (Reducing Emissions from Deforestation and Degradation, plus conservation, under the UN Framework Convention on Climate Change, CBD and also voluntary REDD+ initiatives; and (f) through the World Parks Congress, which IUCN will host in Sydney Australia in November of 2014. Each of these potential avenues will be noted in turn; the full exploration of each is beyond the scope of this paper. The topics are referenced to illustrate pathways of cooperation that might be studied further to pursued under public international environmental law.

All biodiversity and habitat preservation approaches would be advantaged by an analysis of Landsat and other remote sensing photographs to identify large blocks of undeveloped forest and wetlands areas for protection. Brazil’s environment ministry has completed this sort of survey to produce a national land cadaster, and Brazil’s methodologies and software could be sought for a comparable project in Indonesia. The undeveloped forest areas could then be classified as appropriate for one or more of the protection regimes provided by international environmental law.

(a) World Heritage areas are designated under the terms of the 1972 Convention on the Protection of the World Cultural and Natural Heritage. Indonesia, Singapore and other Members of ASEAN have participated in designating ASEAN Heritage natural protected areas, and indeed this heritage system is a hallmark of ASEAN cooperation. Indonesia and other states actively participate in the UNESCO World Heritage Convention. It is timely to survey all potential heritage sites and encourage states to nominate more sites for the World Heritage List; The Convention in Article 2 defines natural heritage as “physical and biological formations or groups of such formations, which are of outstanding universal value, from the aesthetic or scientific point of view… (or) which constitute the habitat of threatened species of animals and plants of outstanding universal value…(or) natural sites of outstanding universal value from the point of view of science, conservation or natural beauty.” Anthropogenic impacts increasingly threaten both natural and cultural resources of outstanding universal value. In the ASEAN region, these resources have huge potential for tourism as well as for scholarship. World Heritage is being lost faster than it can be recorded and conserved. It would behoove ASEAN States to nominate sites and work with the World Heritage Committee to establish a proactive program to prevent the sites from being named to the “List of World Heritage in Danger.” Support via contributions to the UNESCO World Heritage Find, or via a special new voluntary fund could be established to protect natural peat forests as biomes in need of protection, and

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Draft as of 26 February 2014funding provided to ensure that in the future peat forests are protected. Where ecosystems are related, restoration of adjacent, former peat forests could be sought.

An overlay of all areas of outstanding universal value could be prepared to identify sites where loss to agricultural conversion is possible, and these sites might be given priority attention. Saving such sites, and building a stewardship program to conserve them, would have the collateral benefit of averting future forest fires.

(b) Wetlands of International Importance offer another avenue for international cooperation. UNESCO has a memorandum of understanding for designating wetlands that can be designated under both the World Heritage Convention and the Ramsar Convention on Wetlands of International Importance. The 1971 Ramsar Convention expressly includes areas of peatland and water in Article 1. Climate change, and coastal wetland impacts associated with sea level rise, threaten wetlands. A special program to give priority to identifying and protecting the coastal mangroves of Indonesia, and the inland peatland wetlands, would find support in the Ramsar Convention. Man-made wetlands are also respected, so former peat wetlands could be restored and a swap of peatlands for non-peat lands could be explored. Some accommodation is needed to provide for palm oil production on palm oil on non-wetlands areas. Some collaboration between Ramsar and the UN Food & Agricultural Organization might be enlisted to help identify protocols for managing the agricultural domain in ways that save the wetland forests. This could have the result of averting future forest fires.

(c) The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) offers avenues for cooperation. ASEAN is a bio-rich region, with many rare species of animals and plants. The remnant habitat of Orangutan and other species are the object of many inter-governmental and non-governmental efforts at conservation. If these habitats and species are to be saved, much more must be undertaken. ASEAN has a regional action plan, 2005-20010 and launched an ASEAN Wildlife Law Enforcement Network (2005).52 The scale of activity is insufficient. Under CITES, proactive measures can be taken to restrict the trade in endangered species. Parties to CITES can submit to the COP scientific surveys of species endangered by the forest fires and the conversion of peat forest lands to agriculture, and where warranted species can be listed in the CITES appendix, regulating trade. National legislation to protect the habitats of these species can be advanced also.

The sites of endangered species and their habitats might well coincide with Ramsar or UNECO World Heritage listings. These over-lays of protection enhance the likelihood of protection, with the collateral benefit of conserving lands subject go forest fires.

52 Koh, op. cit., at 89 and 99.

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Draft as of 26 February 2014 (d) The Convention on Biological Diversity (CBD) in Article 3 restates the State’s duty to

ensure that activities do not harm other states territory or the commons. Indonesia has pledged to set aside 200,000 sq. km. of coastal and marine habitats under CBD.53 If financing was available, it could set aside vastly more lands; Brazil has done so at such a scale already under its domestic legal frameworks, so there is precedent and experience to draw upon in planning to do so.

The CBD is the first holistic, ecosystem-based regime for the sustainable use of biological resources. The Conference of the Parties has encouraged cooperation among all the MEAs that address components of biological diversity, such as the UNESCO, Ramsar and CITES regimes. Attention should be devoted to how the National Biodiversity Strategies and Action Plans (NBSAPS) can address the conservation of peatland forests and shift agricultural land uses elsewhere.

The Conference of the Parties of the CBD adopted the Aichi Biodiversity Targets. 54 Rather than introduce new topics to do deal with the deforestation and forest fires in Indonesia, there is ample scope among these targets to do much to avert the forest fires. Moreover, there is a 2020 deadline, so there is agreement to act in a short period of time. Target 5, for example, calls for reducing the rate of habitat loss, including forests, by 50% by 2020. Target 15 calls for restoration of at least 15% of degraded habitats also by 2020. UNESCO,55 Ramsar,56 CITES,57 the Parties to the International Treaty on Plant Genetic Resources for FAO,58 and the United Nations59 have endorsed these measures. This constitutes and opportunity to organize collaborative action and funding to strengthen the protection of habitats before they are lost to deforestation for palm oil production, and to restore peatland forests, in particular those areas taken unlawfully under Indonesian law.

The in situ protection provisions can also be aligned with the UNECO and Ramsar sites. One important aspect of the CBD is the access to genetic resources and benefit sharing (ABS), It might be worth exploring how the advanced scientific laboratory capacity of Singapore might be cooperatively linked to the efforts to establish the biotechnology potential of species found in the peat wet forest areas. These may prove to be valuable for biotechnological applications,

53 Jatna Supriatna, “International Year of Biodiversity and Indonesia,” The Jakarta Post (Jan 23, 2010), www.thejakartapost.com/news/23010.10.23/int0391-year-biodiversity-and-indonesia.html .54 Decision X/2: The Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets,” www.cbd.int .55 Decision 37 COM SA of the World Heritage Convention, www.unesco.org .56 Resolution XI.6 of the Ramsar Convention COP, at www.ramsar.org .57 Resolution 16.4 of CITES, www.cites.org .58 Resolution 8/2011 of the ITPGR at www.planttreaty.org . 59 UNGA Res. 65/161 (March 11, 2011), at www.un.org/depts/dhl/resguide/r65.shtml, and also at www.cbd.int/undb/goals/undb-unresolution.pdf .

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Draft as of 26 February 2014and steps to conserve the species and avert loss through conversion for palm oil farming. This might have the collateral effect of averting the land con versions by forest fires.

(e) Reducing Emissions from Deforestation and Degradation, plus conservation (REDD+) offers a productive avenue for cooperation. ASEAN States acknowledge the importance of peatlands taking into account both climate change and transboundary pollution issues, and have an agreed strategy and action plan for peatlands.60 ASEAN also has a Common Position Paper on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries” (2008),61 which emphasizes the need for capacity building and flexible approaches to defining REDD in light if different socio-economic development levels of states. The plans need to be advanced. REDD+ is one way to do so. The loss of forestlands to palm oil plantations represents a serious form of deforestation and degradation. By establishing a fund to make payments to preserve the ecosystem services of undeveloped peat forest wetlands, the lands can be valued in excess of their value as agricultural palm oil plantations. To ensure that REDD+ is established, wild forests need to be purchased and set aside, with some annual payments to employ local peoples in maintaining the ecosystem services intact. Previously burned and drained peatlands would need to be purchased, re-wetted, and restored as wet forest areas. Discussions through the various REDD+ channels, both NGO and intergovernmental, could focus on the government of Indonesia using the sovereign power of eminent domain to acquire title to these areas, and apply the international funds, provided by Norway and others, and perhaps also through the Global Environmental Facility (GEF), to pay for the taking of the lands and setting them aside for REDD+ stewardship. This would have the benefit of ending the land conversions and use of fires.

Since palm oil production is very profitable, it may be that Indonesia should be encouraged to tax the exiting palm oil plantations to subsidize the preservation of undeveloped peatland forests. This tax would also reduce the extreme profitability of plantations, and slow the conversions. Tax revenues could pay for a domestic RDEDD+ program, under the Indonesian government. Currently palm oil plantations taxes produce $495,000/year in revenues, and plantations underpay their taxes significantly, due to corruption. Indonesian export of palm oil amounted to $14.5 billion/yr in 2008. 62 There is ample room to assess a more realistic tax on palm oil plantations. There is also an urgency to buy up all peatland forest and prevent further conversions, since once converted the economic pressure to resist restoring the peatlands is significant.

60 Koh, op. cit., pp. 361-347. 61 Koh, op. cit., p. 869.62 Palm Oil Green Development Campaign, The Economic Benefits of Palm Oil; to Indonesia (WorldGrowth, February 2011).

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Draft as of 26 February 2014The United Kingdom has decided to re-wet its peat lands and conserve them, so there is

precedent in national practice for this approach, in order to prevent the release of greenhouse gasses in the peat. As host to the Bali COP of the UNFCCC, Indonesia has promised to take action to mitigate green house gas releases. Indonesia ahs indicated that it needs financial assistance to advance its REDD+ objectives. International funding toward this objective would further implementation of duties under the UNFCCC, and have biodiversity benefits. One of the immediate ways to abate the forest fire pollution is to finance REDD+ and cooperate to accelerate its implementation in Indonesia. Until REDD+ is implemented robustly in a bio-rich nation such as Indonesia, or Brazil, its use elsewhere will be unlikely anywhere. This can be a priority for regional and global cooperation among states.

(f) The decennial IUCN World Parks Congress is a forum to broach and explore such ecosystem approaches to international cooperation. In November of 2014 the World Parks Congress convenes in Sydney, Australia. The Congress’ program is being prepared now. It would be both appropriate and opportune to frame a set of issue on biodiversity conservation through protected areas, as sketched above, and present them to the Congress. Such presentations could explore the viability of these recommendations, and secure peer review by scientists, protected area managers and environmental lawyers, and secure wider international understanding of how protected area conservation and serve many ends.

The recent experience in Scotland of preserving the peat and ending peat mining offers lessons for Indonesia. The IUCN Committee for the United Kingdom, and leading members such as the Royal Society for the Protection of Birds, led the peatlands restoration and preservation program. The Heritage Lottery Fund allocated funds to purchase peatlands, as did the Scottish government. The plan is well advanced to restore 12 million hectares of peatlands by 2020. If peatlands need to be restored and preserved both for biodiversity and for mitigation of Green House Gases; a 5% reduction in the carbon stored in Scotland’s peat would equal the UK’s total GHG emissions. Based on this approach, a program to buy up, either buy eminent domain or voluntarily, and then restore and preserve peatlands in Indonesia could be launched. Since 91% of all palm oil plantations are in Sumatra or Kalimantan, this buy-out for restoration and preservation of forests could focus on these areas. To win support for such a focus elsewhere, it would be important to develop forest preservation programs and REDD+ payments for other Indonesian regions. Since these other regions do not benefit from the existing rush to convert forest palm oil, they would be more likely to support a decision to buy-out the plantations now on peat lands and buy up still intact peatland forests to preserve them.

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Draft as of 26 February 2014V. FAO – COOPERATING TOWARD FOOD AND WATER SECURITY

Indonesia faces food shortages as its population grows. ASEAN has an Agreement on Food Security Reserve and cooperative plans with UN Food & Agricultural Organization (FAO) on food security in the region.63 The UN World Food Programme meets acute shortages, but is not equipped to help with the trends of national food production. The FAO can help, but an infusion of international aid is needed to adjust how Indonesia meets its food production needs. Conversion of palm oil do nothing to help Indonesia with this basic obligation to build its capacity to feeds its growing population. “Free market” forces, and direct overseas investment in palm oil plantations, undermine the priority for food production, while causing water pollution of Indonesia’s fresh water resources.

Declaring a priority for conversions for farming and rice and banning new palm oil until domestic food production is at levels adequate for the needs of the Indonesian people, could be considered. It might be a raised in the context of condition of UN Food Programme Aid, or other multinational or bilateral cooperation. International cooperation to build the capacity to met food production could also address the market dysfunctionality of privileging commercial production of a non-food over basic food needs. To ensure that agricultural policy is also respectful of biodiversity and peat wet forestlands, a holistic and integrated policy needs to be designed and implemented. International cooperation could help ensure that fundamental human needs for food and water are realized. This could have the collateral benefit of curtailing or ending the unlawful use of forest fires to clear lands for palm oil plantations.

VI. WHO AND THE URBAN ”AIRPOCOLPSE” – COOPERATION FOR HUMAN HABITATS

The acute air pollution in cities in China and India and elsewhere has conjured up images of “airpocalypse” and enlisted public health officials in measuring the impact on the human lungs. The World Health Organization and of national health officials are sensitive to the dangers of air pollution I urban areas. The UN Habitat programme has celebrated the importance of cities and their civilizations, values that air pollution undermines. These themes suggest that approaches might be made approach the UN Habitat Programme in Nairobi, and the WHO in Geneva, and invite them to address the need to abate all sources of urban air pollution, including transboundary sources of pollution. UN Habitat is a weak UN programme, but the WHO is robust and effective. Cities are not often deemed objects of international law, but by encouraging inter-agency collaboration about cities, the urgency of protecting the urban environment and pubic health as a matter of common international concern can be enhanced. The health of the lungs of urban dwellers world-wide make this topic of priority interest to many nations, China and India among them.

63 See Koh, op. cit., pp. 477-540.

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Draft as of 26 February 2014By opening a wide discussion in WHO, states would come to recognize the urgency of

abating sources of urban air pollution. This avenue also entails human rights and environmental rights. Enhancing the deliberations of WHO illustrates how multiple “pressure points” can be aligned to help promote cooperate to abate transboundary air pollution.

VII.ENVIRONMENTAL IMPACT ASSESSMENT (EIA)

Environmental Impact Assessment (EIA) is routinely used in North American and in Western Europe to abate transboundary air and water pollution and mitigation other environmental impacts. There is ample reason to believer it would be used to engage up-wind and down-wind states in jointly assessing the environmental impacts of the “haze.” Moreover, all states involved have a legal obligation to do so under international law. Assuming both states access the jurisdiction of the International Court of Justice, its precedent are such that it would likely hold that EIA is required before granting permits that would result in forest fires that cause transboundary air pollution.64

ASEAN, like many regions, has a weak capacity to implement duties to undertake EIA. The Asian Development Bank has robust EIA procedures, as does the World Bank. ASEAN states are familiar with EIA. Despite Article 206 in the UN Convention on the law of Sea, mandating the use of EIA, virtually none of the states in ASEAN protect their shared and common marine resources through the use of EIA. ADB could assist the region in concerning capacity-building programs about how to use EIA assess the causes of transboundary pollution and abate them. ASEAN States all have a common interest in averting their violations of UNCLOS; violations could result in a proceeding before the Hamburg Law of the Sea Tribunal. It behooves all ASEAN member states to come into compliance with customary international law and the UNCLOS and other environmental agreements, and develop effective EIA procedures in their national decision-making. By studying EIA and the marine environment, lessons could be learned for the atmospheric medium also.

Rio Declaration Principle 17, requiring EIA in each state’s environmental decision-making, has been effective worldwide, and the calls for Singapore to adopt EIA by leaders in the Singapore Nature Society and elsewhere, are over due in being heeded. Once the International Court of Justice found EIA to be a customary public international law, states observing the rule of law are under an obligation to enact EIA. They have frankly a lot to gain from doing so. If all the ASEAN member States observed EIA, environmental conditions and sustainable development across the regional would be enhanced. Peaceful relations would be enhanced also, as EIA allows for the airing and peaceful resolution of disputes. It was not long ago that,

64 Pulp Mills on the River Uruguay (Argentina v. Uruguay), http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=135 (2010).

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Draft as of 26 February 2014for example, Malaysia challenged Singapore for failure to use EIA in Singapore’s developments impacting on the Straits of Johor.

Indonesia should have a far more robust observance of EIA. A proper EIA process would identify alternatives to forest conversions and use of fires, in every Forest conversion permit and all other governmental actions. EIA requires examination of alternatives to proposed actions, as well as way to mitigate adverse impacts. Moreover, ASEAN could consider how to ensure transboundary EIA is always undertaken, either through bilateral MOUs or via an agreement like the Espoo Convention. Singapore and Malaysia could invite Indonesia to consider agreeing to an “Espoo” process for all issues, including the “haze.” There is no reason to wait for the ratification of the UNEP Haze Agreement if bilateral EIA can be established to move the haze abatement process forward faster. Singapore need not act alone. It can call upon the EN Economic Commission for Asia and the Pacific (ESCAP) to have ESCAP invite the UN Economic Commission for Europe (ECE), which led in the creation of the Espoo Convention) to come to Asia and brief the ESCAP Members about transboundary EIA.65 EIA is an important tool that has as yet been unused in the concerns over transboundary air pollution.

VIII. UNDP AND SUSTAINABLE DEVELOPMENT

The on-going negotiations of the Sustainability Development Goals in the UN General Assembly provides opportunities to emphasize the importance of the environmental MEAs and international environmental law. The ecosystem management approach needs to be encouraged. Principle 21 needs to be encouraged. Both, if applied, would make abating transboundary pollution a priority. However, states have tended to ignore the recommendations of Agenda 21 and have failed to acknowledge that sustainable development depends very substantially on maintaining ecosystem services for potable water, fertile soils and food, protection against extreme weather conditions, etc. The focus remains on alleviation of poverty, without recognizing that environmental degradation is a growing cause of poverty.

The United Nations Development Programme (UNDP) understands that environment and development are one. UNDP is a major player in building the capacity to observe the rule of law. It is important to build on UNDP’s leadership and apply these positions to the issues of transboundary air pollution. Sustainability Goals need to do more than simply embracing the Rio 1992 Principles on Environment and Development. The new UN Goals need to make environmental protection the foundation for sustainability, and apply that rigorously to

65 Espoo negotiations began during the Cold War, with an “academic” seminar in Warsaw under the auspices of the UN ECE, at which I and my Soviet colleagues each presented papers favoring the development of an EUA tool. The USSR already has “ecological expertize” as a technique, and the USA had the National Environmental Policy Act (NEPA). If the USA and USSR and European states can agree on an Espoo trans-border legal system for EIA, certainly ASEAN with its robust cooperation systems and ESCAP can do the same.

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Draft as of 26 February 2014pollution to harms the public health, or impairs the recharge of aquifers and other sources of fresh, potable water, and ground water. Such an emphasis would make it more likely that the sources of transboundary air pollution from forest fires would be abated.

IX. MARINE POLLUTION

One of the indirect impacts of deforestation is erosion and land-based marine pollution. The UN Convention on the law of the Sea mandates protection of the marine environment. In addition, sea level rise threatens coastal resources. The need to encourage states to abate agricultural land based sources of pollution would open another avenue to addressing the negative impacts of deforestation and unlawful use of forest fires in land – clearing. This issue could be introduced in the annual UN General Assembly debates on marine law and policy. In addition, the need to help mangroves and coastal wetlands migrate and adapt to sea level rise offers ways to combine marine law discussions with the objectives of the Ramsar Convention. Cooperation measures could also address the obligations of UNCLOS Article 195(5), and its duties toward protecting and conserving rare or fragile ecosystems and endangered marine life.

Under the CBD, marine protection has been emphasized by the Thematic Programme on the Conservation and Sustainable Use of Marine and Coastal Biological Diversity (“Jakarta Mandate”) of 1995.66 Integrated management, and the ecosystem approach, will mean that land-based sources of marine pollution should be addressed as the Jakarta Mandate is implemented. So far, this has not been a priority focus. Raising such issues opens another window on examining how pollution comes to be and may be abated. The collateral effect could be to curb forest fires as land clearing mechanisms.

X. TRADE AND OTHER PUBLIC INTERNATIONAL LAW AVENUES

Given the driving force of palm oil trade, the role of commercial trade law should become a high priority. Palm oil demand is growing and will continue to grow as the human population in Asia and world-wide grows. Short-term, traders should agree to support and adhere the certification rules of the Roundtable on Sustainable Palm Oil (RSPO). Only 14% of Indonesian palm oil is certified. Longer-term, agreements are needed to bar new overseas investment in converting wet peatland forest into palm oil or pulp plantations. Singapore and others should invite the EU must to examine the perverse impact of its EU Renewable Energy Directive, which has been a driver since the end of 2010. On-going and future trade negotiations, such as the TPP, should agree to mandate compliance with environmental laws as a condition precedent to trade agreements, and as an obligation of trade dispute resolution adjudications. To do otherwise is to legitimize the externalities, such as air pollution in Singapore, for the sake of

66 Decision II/10 at COP-2 (1995), adopted at COP-4 (1998), and elaborate at COP-7 (2004).

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Draft as of 26 February 2014artificially liberal commercial trading. It would be useful also to raise issues of the environment and trade practices which give rise to transboundary air pollution in context of the Doha Round of trade negotiations, where the general issue of harmonizing trade and the environment has been pending for years. The elimination of such externalities would help level the playing field for fair trade.

The status of biofuels, including the full environmental costs of biofuels such as palm oil, can be raised in the deliberations of the still new International Renewable Energy Agency (IRENA). EU states participate in IRENA’s work, and should be invited to examine their Renewable Energy Directive in this forum also. Standards for biofuels should require all externalities be abated or compensated for, before certifying a biofuel as a renewable agency under IRENA. This could help the European Union and countries, such as the USA, to re-examine use of palm oil. One of the drivers of the forest fire practice could be reduced. The same approach cold be used in the 1994 Energy Charter Treaty and its Protocol on Energy Efficiency and Related Environmental Aspects.

Beyond trade, there are other aspects to be considered. Forest livelihoods are significant. Some 40 million Indonesians are dependent on forest resources. Their food and jobs and homes and culture are forest related. This fact should provide ample holistic reasoning to draw on the extant, diverse legal frameworks to support maintaining forest “as us.” Given the global GHG stakes, all international agencies and organization, such as UNICEF need to be brought into this effort. The plight of workers in the area affected by the fires could be raised in the International Labour Organization (ILO). The palm oil industry has some 3.7 million workers currently, and the salaries are relatively low compared to plantation income; workers’ salaries and living conditions are at poverty levels.67 Half of rural residents who lost their lands to plantations report a decline in the standard of living.68 There is ample evidence to suggest the need for a United Nations inquiry into labor or human rights abuses in the palm oil plantations. Each international agency has some dimension of relevance to this environmental problem.

Do not all other possible avenues for abating, directly or indirectly, transboundary air pollution merit being studied? The ministerial working groups of the Association of South East Asian Nations (ASEAN) could discuss with ASEAN Dialogue Partners, such as the European Union, could be approached to select the preservation of Indonesian peatlands are a #1 global priority. The preservation of the peatlands would, de facto, address transboundary air pollution issues. Overtime, comparable techniques for cooperation could be adapted for use in other the ASEAN priorities. For instance, either with the ASEAN or more widely, a proposal for an acid 67 Manginar Situmorang, “Strengthening the Peasant and Plantation Worker’s Movement in North Sumatra,” Asia Monitor Resource Centre (Nov,. 16, 2010), at www.amrc.org.hk/node/1005 .68 Krystof Obidzinski, et al., “Environmental and Social Impacts of Oil Palm Plantations and Their Implications for Biofuel Production in Indonesia,” Ecology and Sociology 17, no. 1 (2012) ay 10.

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Draft as of 26 February 2014rain convention could be raised in ESCAP or UNEP or in the UNGA. It is past time to highlight the need to abate Asian Brown Cloud (ABC). This could stimulate the preparation of an Asian equivalent of the Long Range Transboundary Air Pollution treaty. Discussion of such an agreement would require focusing on various sources of pollution, including transboundary forest fire air pollution.

XI. CONCLUDING THOUGHTS

Transboundary air pollution, especially in the context of the Indonesian forest fires, is a symptom of deeper environmental problems. To treat the symptom, one must know the cause and preferably solve the problem at the cause. Without addressing root causes, symptoms recur. Too often, down-wind states rely on “dilution as the solution to pollution” and do not sustain their dedication to environmental cooperation to abate or eliminate the causes of pollution. When the pollution recurs, the options for collaboration are constrained,

The thesis of this paper is that, under existing international law, states have the capacity and authority – and duty - to cooperate more holistically, to make common cause to sustain the environment. In doing so, they build among their civil servants and peoples an epistemic community, who know how to cooperate together and willingly do so. This is the basic reason for the success of the Vienna Convention and its Montreal Protocol to protect the Stratospheric Ozone Layer. It is the reason for the success of the World Commission on Protected Areas of the International Union for the Conservation of nature (IUCN).

What are the common concerns of international environmental law that are at risk in the destruction of Indonesia’s peatlands and wetlands and forests? These concerns are evident, but need to be presented in positive and proactive contexts. A community of scientists, environmentalists, civil servants, and ecosystem managers already exists and is at work endeavoring to save Indonesia’s biodiversity for present and future generations. The conversion to palm oil plantations sacrifices Indonesia’s long-term biological wealth for short-term profits, in the “business as usual” approach. The forest fires are one manifestation of how unsustainable this approach is.

It avails little to make claims of state responsibility, when the problems are continuous and grow out of a lack of capacity to address the underlying economic and environmental causes. It similarly is unproductive to worry about the lost opportunities associated with the stalled approaches that UNEP has advanced in the past, through the UNEP Haze Agreement. The duty to cooperate under international law is not sectoral, and other avenues of collaboration do exist. The Rio Principles on Environment and Development (1992) provide ample guides about how, and why, to do so. States and international organizations should

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Draft as of 26 February 2014endeavor to build national knowledge, capacity and law. Until all affected nations have the same perception of their common interests, efforts at cooperation on transboundary air pollution will fall short. Some combination of the collaborations sketched out here offers remedies.

To shift the paradigm toward sustainability, some basic priorities must be addressed. One is to enhance Indonesia’s capacity to ensure food security. Another is to collaborate to enhance Indonesia’s understanding of the value of its biological diversity for biotechnology. Yet another is to make clear that resilience in an era of rapid and accelerating climate change requires keeping ecosystems and freshwater resources intact. Since public health is at risk, it will be more productive to invest more fulsomely in raising international funds for cooperation than to keep incurring costs for medical treatment and endure economic losses, while asserting that it is solely Indonesia’s duty alone to abate the pollution. Furthering an international campaign to safeguard Indonesia’s extraordinary biodiversity, for Indonesians and for the world, may be the more effective strategy. International cooperation wins.

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