The Responsibility Of Indonesia Towards Transboundary Haze Pollution After The AATHP Ratification

State Responsibility

Literally responsible can be interpreted as a state of obligation to bear everything if anything happens to be prosecuted, blamed, charged or also means the right to function accepting the burden as a result of an individual’s attitude by another party (Boer Mauna, 2005). In the study of international law, state responsibility arises when a State has violated or disturbed the boundaries of the State's territory either directly or indirectly and the act has harmed another State (Brownlie, 1979). In practice, state responsibility is limited to responsibility for actions that violate international law only. So that the bias can be said, if an act of the state is detrimental to another country but the act is not categorized as violating international law, then the act does not cause responsibility (Zemanek, 2000). One of the concrete examples is the act of the state rejecting a foreign national who enters the country.

State responsibilities or responsibility of the state contains an obligation of a country to repair damage resulting from an attack carried out within its jurisdiction and against other members of the international community. So that it can be said that, the concept of state responsibility is a form of legal protection in the international context and a conscious effort to prevent a condition that has the potential to cause conflict. One of the principles recognized and protected by international law is the principle of state sovereignty, in which each country has the right to do things deemed necessary in its jurisdiction (Friederich, 2013). However, in the context of international relations, every country must respect and recognize state sovereignty. But this sovereignty is not without limit, where every country in enjoying its sovereign rights is obliged not to abuse the sovereignty.

The principle of state responsibility is born of primary rules of obligation, namely the principle of balance between the rights and obligations of a country. Every country that holds certain rights is also a subject that supports certain obligations. This obligation is the other side of the coin of the rights granted by law.

The basic function of the principle of state responsibility in the study of international law is to provide protection to each country (Harris, 1935), among other things by requiring each offending country to pay compensation to the state that suffers the loss caused. State responsibility is usually carried out in the form of repairs, rehabilitation or compensation, and the form of responsibility is ultimately dependent on the events that occur.

In the context of environmental damage, the implementation of activities within a country's territory towards its environment is a manifestation of the sovereignty of a country. If these activities cause losses to other countries (the act injures another states) then the responsibility of the state arises. The principle of responsibility is also associated with legal strategy, namely efforts to prevent an activity by setting permissible injury standards or the threshold of environmental damage. Environmental injuries can also be considered as external costs arising from economic activities. The violation of the above principles will have an impact on the application of the following principles, namely the 21st principle of the Stockholm Declaration that demands polluting countries to make efforts to improve their actions (Baylis & Smith, 2005). This same approach can also be seen in Article 2 (1) of the ECE (Economic Convention for Europe) Convention on Environmental Impact Control which states that every country must participate in prevention efforts and reduce the impact of transboundary pollution (Vadrevu, Lasko, Giglio, & Justice, 2013). In general, the obligation of each country is to realize administrative and legislative steps to protect the environment so that it can be said to be a good government (Birnie & Boyle, 2002).

Another principle that is also widely known is cooperation between countries to mitigate the risk of damage to the transboundary environment. This principle is also included in the principle 24 of the Stockholm Declaration: "International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing". Then there is also the polluter pays principle which emphasizes the economic principle in which polluting countries are required to finance the programs needed to return the environment to its original condition (Ved & Pring, 2013). Next is the principle of 'balance of interest' referring to the balance of the interests of those who have been harmed. This principle is contained in Article 9 of the Draft on State Responsibility. Then there is also the principle of ‘non-discrimination’ which requires the state to cope with the consequences suffered by other countries in the same way without differentiating from what has been done in its country (Van den Bossche, 2008).

Based on the principle of polluter pays and the principle of strict liability, procedures for proofing have been developed called shifting or alleviating the burden of proof. The application of the strict liability principle can be done with several possibilities:

1. The strict liability with contributory negligence defense, namely the strict liability is applied to the defendant as long as the victim does not have an error in the occurrence of a loss, the fault of the defendant does not need to be proven;

2. Negligence with contributory negligence defense, namely the defendant is responsible if the loss arises because of his mistake, the burden of proof is in the hands of the plaintiff;

3. Comparative negligence, that is, compensation will be adjusted to the proportion of the magnitude of the contribution to the occurrence of losses.

Transboundary Haze Pollution Due to Forest and Land Fire

Transboundary haze pollution has actually violated the rights of citizens who have been guaranteed certain rights by the constitution as well as international law, such as the right to a good and healthy environment as stated in the principle of 21 Stockholm declaration, the right to file a claim, the right to equal treatment and equally important is the right of posterity for a good environment in the future. The magnitude of the negative impacts generated by haze pollution on the environment has driven countries in ASEAN to ratify an environmental agreement aimed at controlling pollution in Southeast Asia, namely the ASEAN Agreement on Transboundary Haze Pollution (AATHP). The ASEAN Agreement on Transboundary Haze Pollution was signed on June 10, 2002 in Kuala Lumpur, Malaysia. At that time the signatory countries were Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam.

Causes and Impact of Transboundary Haze Pollution in Southeast Asia

Deforestation in Indonesia is largely a result of utilization of natural resources, especially forests that are used for political, social and economic interests without regard to sustainable management and paying attention to the rights and local indigenous wisdom. Furthermore, deforestation directly contributes to forest fires that contribute to Indonesia being widely claimed to be the largest contributor to smog pollution in Southeast Asia (Anon, 2015). Fires in Indonesia are largely the result of the plantation industry, this is because Indonesia has ideal conditions to be used as oil palm and various valuable tropical plants. In recent years, a lot of peatland has been intentionally left dry to be used as oil palm plantations and other land (Varkkey, 2013). The dry peatland is very vulnerable and very easy to burn, and the burning fires do not only stop on the surface but also reaches the roots of the plants.

In fact, the Indonesian government itself has banned the use of fire to clear land in 1995, but this ban has not been effectively enforced due to many factors, one of which is the fact that land clearing with the slash-and-burn method is believed to make the soil more fertile (Louka, 2006). Broadly speaking, forest fires in Indonesia occur by human and natural factors. In the context of forest fires that occur because of human factors, the sources of forest fires in Indonesia can actually be immediately determined, but there is serious debate about how far each group is responsible for the forest fires. The factors or sources of forest fires can be divided into three groups: communities that are traditional cultivators, small-scale investors, and large-scale investors. One of the biggest sources of forest fires that occur in Indonesia is those who are involved in plantations. Some planters settle and burn their small land after harvesting to rejuvenate the soil and kill pests and weeds. On the other hand, there are mobile farmers, who practice slash and burn methods to clean the forest as their land is cultivated by a rotation system.

Transboundary Haze Pollution and ASEAN Agreement on Transboundary Haze Pollution

The AATHP is a form of initiative and effort by ASEAN to increase coordinated regional and sub-regional cooperation in the form of ASEAN member countries' agreement to resolve transboundary haze pollution problems. This transboundary haze pollution agreement was signed in 2002 and entered into force since 2003 after six countries Brunei Darussalam, Cambodia, Laos, Malaysia, Myanmar and Singapore ratified it. Transboundary environmental pollution caused by haze has a serious impact on the safety and security of citizens and the interests of each contaminated country. Therefore, ASEAN member countries are aware of strengthening national policies and strategies as an effort and the need to prevent and reduce the occurrence of forest and land fires which will certainly have an impact on the creation of haze.

The issue of transboundary environmental pollution caused by haze to several member countries is the focus of several ASEAN environmental instruments. Thus, the ASEAN Cooperation Plan on Transboundary Pollution (ACPTP) in 1995, considered and made pollution or pollution caused by Transboundary haze as one of ASEAN's general concerns that must be dealt with jointly. Forest fires in Indonesia have been widely recorded since the nineteenth century. Forest fires which then cause haze pollution are one of the perennial issues for discussion, both nationally, regionally and internationally. This is because forest fires have occurred for a long time and the frequency of forest fires continues to increase in Indonesia every year. This is worsened during the dry season.

Forest burning that produces haze pollution has a dangerous impact, which have been widely documented by both international environmental and health organizations. The danger caused by forest burning does not only affect the areas affected by the fire, but also other areas that are affected by the haze. The impacts generated by forest fires are not only limited to environmental damage, but also the subsequent impacts indirectly affect the economy, tourism and so on. Broadly speaking, the impact of haze pollution can be divided into several parts:

ASEAN and Indonesian Government Policies on Transboundary Haze Pollution in Southeast Asia

ASEAN States' Responsibility for AATHP Post-Ratification Transboundary Haze Pollution

Today, it is widely recognized that planet earth is facing various environmental challenges that can only be overcome through international cooperation. Acid rain, ozone depletion, climate change, loss of biodiversity, river pollution, reduced water resources and haze pollution are some of the problems associated with international environmental law.

On the other hand, the development of international relations and international law over the past several decades has evolved from the law that co-existed between countries into mutually cooperative and complementary laws. This is seen from the existence of countries that now depend on each other in the context of the issue of ecological, social and economic globalization, increasing the number of problems of each issue requires international rules and good international cooperation (Litta, 2012).

The fact that environmental problems, one of which is air pollution does not stop at national borders, may seem obvious, but initially air pollution is categorized as a local problem to be overcome by national law. But over time, after transboundary environmental pollution problems have received worldwide attention, haze pollution has begun to be considered as an international problem.

In detail, state responsibility according to A Dictionary of Law 2001 (Responsibility of States for Internationally Wrongful Acts) is "The obligation of a state to make reparations from a failure to comply with a legal obligation under international law". Based on this definition (Martin & Law, 2002), it can be interpreted that the responsibility of the state to make reparations arises when a country fails to comply with legal obligations under international law. Along with the development of the perspective of the international community which considers the environment an international entity (wholeness) without any administrative boundaries, the existence of the principle of state responsibility begins to be shifted to the Common. However, the differentiated Responsibility principle emphasizes joint responsibility based on a legal responsibility by certain countries. This is the antithesis of the principle of state responsibility which is within the realm of international law in general which denies the existence of a legal responsibility of a particular country.

Mechanism for Settling Transboundary Haze Pollution Disputes in International and ASEAN Legal Perspectives