1. INTRODUCTION
This article explores the problem of transboundary haze pollution in Southeast Asia and the availability of remedies for transboundary victims. The article analyzes the potential liability of polluting companies within the legal system of the source-of-origin state. Haze pollution first began in the 1980sFootnote 1 and arises mainly from forest fires caused by the practice of slashing and burning by palm oil and pulpwood plantations on the islands of Sumatra and Kalimantan in Indonesia.Footnote 2 For cultivation purposes, the valuable timbers are slashed and the vegetation is burned to clear the land and prepare it for plantation.Footnote 3 Despite its adverse impact on the environment, the practice of slashing and burning continues, as it is the easiest and most cost-effective way of converting forest to crop-growing land.Footnote 4 In the past, villagers were blamed for causing intense smoke as a result of the traditional practices of clearing land by fires for relocating cultivation. However, satellite data confirms that approximately 80% of all fires are lit in the area of palm oil and pulpwood plantations.Footnote 5 Therefore, the plantation companies are suspected of playing a significant role in causing the fires.
In 1997, intensive forest fires in Indonesia resulting from planting activities caused transboundary smoke pollution in other Southeast Asian countries.Footnote 6 The smoke catastrophes have not only caused damage to human health,Footnote 7 the economy and social life in the state of origin,Footnote 8 but also to neighbouring states, such as Malaysia and Singapore, as well as affecting Brunei, Thailand, and the Philippines.Footnote 9 By October 1997, more than 200,000 people in Indonesia, Malaysia, and Singapore had been treated for haze-related illnesses. During the haze period, there was a significant increase in the number of asthmatics and outpatient cases.Footnote 10 It was also reported that the haze raised the mortality rate in Malaysia and lowered the rate of infant and foetal survival in Indonesia.Footnote 11 Moreover, thousands of schools were forced to close during the haze outbreak, thereby violating the right of children to education.Footnote 12 From an economic perspective, Malaysia suffered damage to the value of around USD 320 million (800 Malaysian ringgit (RM))Footnote 13 and Singapore lost at least 97.5 million Singapore dollars (SD) from the tourism and business sectors.Footnote 14 In response to these events, Indonesia claimed that the haze crisis was linked to drought as a result of El Niño, although the haze then returned, even in years that were not influenced by El Niño (2005, 2006 and 2013).Footnote 15
To date, there have been no significant developments in state-level diplomacy towards resolving the problem. As such, victims continue to bear the sole cost of injury. This article examines the availability of access to justice for the transboundary victims of the haze under the legal system of the source-of-origin state. It argues that bringing civil claims against the polluting companies before Indonesian courts is a more attractive solution than relying on resolution at the level of state-to-state. To support this argument, the article starts by outlining the barriers to resolving the problem at state-to-state level. Section 3 of the article then discusses whether, under international law, the source-of-origin state is obliged to provide equitable remedies for the victims of transboundary environmental damage. The article then discusses the amenability of the legal system of the source-of-origin state to supporting transboundary civil claims. Finally, the article concludes by discussing the limitations of the laws of the affected states, which make transboundary civil litigation in the source-of-origin state a more meaningful avenue.
2. STATE-TO-STATE LEVEL RESOLUTION
Under general international law, a state is responsible for carrying out due diligence in regulating and controlling activities within its jurisdiction, including private conduct, to refrain from causing significant harm to the territory of other states or areas beyond its own territory.Footnote 16 This norm is known as the ‘no harm’ principle and has been recognized as customary international law.Footnote 17 The principle has been endorsed by soft law instruments,Footnote 18 multilateral environmental agreements (MEAs)Footnote 19 and, in particular, by Article 3(1) of the 2002 Association of Southeast Asian Nations (ASEAN) Agreement on Transboundary Haze Pollution (AATHP).Footnote 20 The importance of the ‘no harm’ principle has also been consistently reiterated by the International Court of Justice (ICJ) in its judgments, such as in the Pulp Mills case,Footnote 21 the Corfu Channel case,Footnote 22 Gabčikovo-Nagymaros,Footnote 23 and the advisory opinion on Legality of the Threat or Use of Nuclear Weapons.Footnote 24
Since the Trail Smelter case in 1941Footnote 25 the only other transboundary air pollution case that has been brought before any international tribunal is the Aerial Spraying case.Footnote 26 Although this latter case was discontinued before the start of the oral argument, the pleadings illustrate the application of the due diligence obligation to an activity suspected of causing significant transboundary air pollution.Footnote 27 Ecuador sued Colombia for causing serious harm to human life, crops, livestock, and the environment of Ecuador’s frontier territory. The damage was suspected to be the result of aerial herbicide spraying carried out as part of Colombia’s plan to eradicate illegal cocaine crops.Footnote 28 Although the spraying forms part of the Colombian government’s programme, under the law of state responsibility the state is considered to have violated international law if the actions or omissions causing the harm are attributable to the stateFootnote 29 or constitute a violation of the international obligations of that state.Footnote 30 In this case, the act of the aircraft company in itself does not constitute a breach;Footnote 31 rather it is Columbia’s failure in carrying out due diligence in enforcing its rules regarding the spraying operating parameters that arguably constitutes a breach of the ‘no harm’ principle.Footnote 32
As with Colombia, Indonesia is also responsible for its failure in regulating and enforcing rules regarding the conduct of palm oil and pulpwood plantations, conduct which has caused significant transboundary damage to Malaysia and Singapore.Footnote 33 Indonesia has enacted several regulations to control the practices of open burning.Footnote 34 However, these regulations are arguably vague and inadequately enforced.Footnote 35 In addition, the laws do not entirely prohibit the practice of open burning for agricultural needs. For example, Article 69(1)(h) of Indonesia’s Environmental Protection ActFootnote 36 and Article 4(1) of the Regulation of Environmental Ministry of Indonesia No. 10 Year 2010Footnote 37 allow local farmers to clear the land with fires, up to a maximum of two hectares per family, as long as the land is used to plant local varieties. In reality, the burning practices by locals are not sufficiently monitored and the regulations are not enforced as a result of corruption.Footnote 38
Based on this precedent, there is a strong possibility that Malaysia and Singapore could sue Indonesia before the ICJ based on its negligence. Nevertheless, the absence of compulsory jurisdiction and other factors make this unlikely in practice.Footnote 39 Firstly, it would not be easy to obtain Indonesia’s consent to bring a case before the ICJ. Secondly, the fact that several of the offending companies are businesses based in Malaysia and SingaporeFootnote 40 and that some palm oil plantations in Sarawak (Malaysia) are also suspected of starting the firesFootnote 41 makes it unethical for both countries to appeal when considering the principle of ‘clean hands’. This principle is frequently used by defendants to argue that plaintiffs are not entitled to obtain remedies because of their own unethical acts or because they have acted in bad faith with regard to the subject of the claims.Footnote 42 Thirdly, recalling that the source of origin and the affected states are members of the ASEAN, they prefer to choose non-confrontational avenues, such as cooperation and diplomacy.Footnote 43 That is one of the reasons why the AATHP was adopted, although Indonesia took 10 years to adopt it. In practice, the AATHP only places emphasis on the obligation of state parties to strengthen their cooperation in preventing and monitoring the fires, with several weak provisions regarding taking precautionary measures, managing natural resources, and involving the relevant actors, such as private entities.Footnote 44 However, the AATHP has no compliance mechanismFootnote 45 and remains silent on the issues of remedies and access to justice. It is not surprising, therefore, that scholarship on the ‘ASEAN way’ and the AATHP is largely sceptical as to whether regional cooperation really will occur in the near future.Footnote 46
3. ACCESS TO JUSTICE AND THE NON-DISCRIMINATION PRINCIPLE
3.1. Access to Justice
Generally, access to justice is seen as a right to obtain remedies before judicial bodies or other authorities.Footnote 47 Under international law, access to justice is documented in several fields of law, such as in the law of state responsibility for injuries to aliens,Footnote 48 in human rights law,Footnote 49 and in environmental law.Footnote 50 Before developing into a human right, access to justice emerged from the concept of the rights of aliens.Footnote 51 Access to justice covers the right of aliens to be treated equally in a foreign land and the right of individuals to have access to a court of law for injuries suffered.Footnote 52 However, the enjoyment of the alien’s right to justice is limited to the condition where the alien suffered injuries in a foreign land. Therefore, this section discusses whether, under international human rights law and international environmental law, Indonesia has a responsibility to provide access to justice for aliens in the case of Southeast Asian haze pollution, even if the damage is suffered abroad.
Access to justice as a human right
Under human rights law, access to justice emerges as an issue when there is a violation of rights or freedoms, whether committed by state officials or private entities. As a duty bearer, the state has a positive obligation of due diligence to provide accessible remedies within its domestic legal systems.Footnote 53 In this context, access to justice can be used as a tool to ensure the protection of human rights.Footnote 54 Where remedies are not obtainable within a domestic legal system, individuals can bring a communication against the state before an international forum.Footnote 55 The decisions of international human rights bodies or courts may influence the practice of domestic law, particularly for the state parties.
Access to justice was recognized as an important right by the 1948 United Nations (UN) Universal Declaration of Human Rights (UDHR).Footnote 56 Since then, most human rights treaties have acknowledged the significance of this right, although it is expressed in different terms. The International Covenant on Civil and Political Rights (ICCPR),Footnote 57 the European Convention on Human Rights (ECHR),Footnote 58 and the Charter of Fundamental Rights of the European Union (CFREU)Footnote 59 use the words ‘right to an effective remedy’;Footnote 60 the American Convention on Human Rights (ACHR) adopts the term ‘right to judicial protection’,Footnote 61 whereas the African Charter on Human and Peoples’ Rights (ACHPR) defines access to justice as a ‘right to have his cause heard’.Footnote 62 Although employing different terms, these multilateral human rights agreements confirm the procedural character of access to justice, in particular the right to a remedy.
Access to justice is not a free-standing right; it emerges as a consequence of the breach of other substantive enforceable rights and freedoms specified by the law.Footnote 63 The term ‘enforceable’ is relevant to the distinction between civil and political rights on the one hand, and economic, social and cultural rights on the other. Civil and political rights are enforceable rights before national courts and should be implemented immediately, without delay, by enacting legislation and allocating state officials to enforce the rules. However, not all economic, social and cultural rights are enforceable, in particular, those rights the implementation of which requires funds. That is why the terms ‘progressive realization’ or ‘future-oriented’ are used to allow states discretion in determining priorities in implementing those rights.Footnote 64 Some economic, social and cultural rights that are enforceable before national tribunals, and should therefore be implemented immediately without delay, are: (a) gender equality; (b) minimum wages for workers; (c) freedom to join a trade union for labour; (d) the prohibition of child labour; (e) the right to education; and (f) freedom to conduct research and creative activity.Footnote 65
In dealing with human rights violations, states have discretion to determine the available remedies. While human rights law does not prescribe the manner in which access to justice is to be provided, it must be performed in good faith.Footnote 66 Some regimes require an independent court of law, whereas others are satisfied with legislative or executive measures. For example, the UDHR,Footnote 67 CFREU,Footnote 68 and ACHRFootnote 69 specify that an effective remedy can be obtained through competent domestic tribunals. In contrast, the ICCPRFootnote 70 and ECHRFootnote 71 provide a wide margin of appreciation for states to determine the appropriate national authorities. Instead of judicial protection, remedies may entail executive measures such as investigation of the alleged human rights violation by competent and independent authorities.Footnote 72 If the national remedy is not given by a judicial body, it should satisfy the criteria of impartiality and produce a binding decision.Footnote 73
Indonesia is a member state of the ICCPR and a signatory to the ASEAN Human Rights Declaration, both of which (with varying levels of obligation) require state parties to provide remedies for human rights violations. Nevertheless, it is questionable whether the obligation covers human rights violations outside the state’s territory. To answer this, it is important to consider Article 2(1) ICCPR, which states that the positive obligation of the state parties under the treaty applies not only to individuals within its territory but also to those within its jurisdiction. The word ‘jurisdiction’ is then explained in paragraph 10 of General Comment No. 30 of the ICCPR, which asserts that a member of the ICCPR has an obligation to ensure the rights of those living outside its territory when this is under the power or effective control of the state party.Footnote 74 In practice, however, the extraterritorial application of human rights treaties is relevant only to the extraterritorial actions of a state through its agents.Footnote 75
Nevertheless, the case of Southeast Asian haze pollution is arguably within the jurisdiction of Indonesia for several reasons. Firstly, the polluting activities of the companies are within the territory of Indonesia and by its domestic laws Indonesia has the power to effectively control the activities of the polluting companies. Secondly, under the Indonesian legal system, foreigners are not prevented from filing a civil claim before the national courts.Footnote 76 Thirdly, a civil claim is based on the principle of actor sequitur forum rei, which specifies that the choice of jurisdiction or place of the court refers to the domicile of the defendant.Footnote 77 Thus, in this case Indonesia has a positive obligation to ensure the availability of remedies for the transboundary victims of the haze. This proposition is also in line with the 2011 UN Guiding Principles on Business and Human Rights,Footnote 78 which require countries to ensure the availability of remedies for victims of human rights violations conducted by business entities.
Access to justice in environmental matters
Access to justice in environmental matters is an emerging principle of environmental law. In 1982, the UN World Charter for Nature indicated the significance of access to environmental justice, but only for those who have suffered environmental impairment or damage.Footnote 79 The later development of access to justice in environmental matters shows that it is not just a right of access to remedies. Principle 10 of the Rio Declaration acknowledges that access to justice in environmental matters consists of three pillars of rights. These are: (i) the right of access to environmental information; (ii) the right of the public to participate in environmental decision making; and (iii) the right of access to remedies or access to justice in environmental matters. The three pillars are closely linked to attaining environmental democracy, which involves the public in the process of decision making. In order to ensure meaningful participation, it is necessary to make environmental information open and accessible to the public.Footnote 80
The principle of access to justice in environmental matters is codified by Article 9 of the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention).Footnote 81 This Convention is endorsed by the Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (Bali Guidelines), adopted by the United Nations Environmental Programme (UNEP).Footnote 82 While it is true that the Aarhus Convention was initiated by the United Nations Economic Commission for Europe (UNECE) and is a regional treaty that does not apply worldwide,Footnote 83 and although the Bali Guidelines constitute a soft law instrument that is not legally binding on states, those legal instruments can be seen as the incarnation of Principle 10 of the Rio Declaration, which was adopted unanimously with the support of all UN member states.Footnote 84
Although not placing a binding obligation on states, the current international legal instruments on access to justice in environmental matters are relevant for at least three reasons. Firstly, in practice, the principle is now widely accepted by states. By 2010, there were 300 environmental judicial bodies regulated by the legislation of 41 states, including developing countries such as India and Malawi.Footnote 85 It is possible, therefore, that in the future there will be a global treaty on access to justice in environmental matters, given that MEAs often reflect existing obligations held under international environmental law, such as in the case of the UN Convention on the Law of the Sea (UNCLOS).Footnote 86 Secondly, the use of ‘shall’ in defining the nature of the obligation, as mentioned in Principle 10 of the Rio Declaration, asserts the lawmaking intention or opinio juris character of the principle. Thirdly, the Aarhus Convention can be analyzed in order to find the current international standard on access to justice in environmental matters.Footnote 87 The Convention emphasizes the opportunity for members of the public to challenge a lack of environmental information and any decision or omission that may cause an adverse impact on the environment or the impairment of the enjoyment of rights recognized by domestic regulations.
While the Aarhus Convention allows other UNECE states to become a party,Footnote 88 it is unlikely that countries in other regions – such as Southeast Asia and, in particular, Indonesia – will adopt or become a party to the Convention for cultural and political reasons.Footnote 89 Firstly, producing hard law instruments consisting of obligatory provisions that need to be enforced is not the typical ASEAN way. For example, in asserting its commitment to the protection of human rights, Indonesia and other Southeast Asian countries chose an instrument of declaration instead of establishing a regional treaty regime. Secondly, in addressing severe environmental problems such as haze pollution, the region has preferred soft law instruments,Footnote 90 although it finally adopted the AATHP in 2002. However, it should be noted that the implementation of the provisions relies solely on national cooperation. The AATHP has no compliance mechanism, and is silent on the issue of access to justice.Footnote 91
Access to justice in the context of transboundary environmental damage
According to the law of state responsibility, a state is not liable for transboundary environmental damage if it is not at fault, in particular when that state has regulated the activities, enforced the law and imposed a requirement to use the best available technology for the operation.Footnote 92 That is why, in the Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities,Footnote 93 the International Law Commission (ILC) only requires states to prevent or minimize a risk of causing foreseeable transboundary harm, including by conducting environmental impact assessments (EIAs) and through notification, consultation, and cooperation. Therefore, if a state has complied with its obligations under the Draft Articles, it has no obligation to provide adequate compensation for victims.
In response to the mandate given by the UN Conference on Human Environment in 1972 and the Rio Conference on Environment and Development in 1992 ‘to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction’,Footnote 94 in 2006 the ILC adopted the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm arising out of Hazardous Activities.Footnote 95 The Draft Principles address three important points regarding access to justice for the victims of transboundary environmental damage. The first of these is to ensure that the source-of-origin state provides remedies for transboundary victims.Footnote 96 With regard to this provision, Boyle argues that imposing an obligation on the source-of-origin state is more reasonable than shifting the obligation to the affected states. This thinking is based on the fact that the injured states do not benefit from the operation that resulted in the environmental damage and have no authority to control the harmful activities.Footnote 97 Secondly, the Draft Principles provide that the polluter is strictly liable for its activities.Footnote 98 This means that victims need only prove the occurrence of damage and causal link without having to prove negligence on the part of the polluter. This provision is fundamental in the case of transboundary damage, as commonly victims or plaintiffs have no access to the site where the harmful activities took place. Thirdly, the source-of-origin state must not treat transboundary victims any less promptly, adequately or effectively than domestic victims; an expectation informed by the non-discrimination principle.Footnote 99 This principle is intended to avoid justice being denied to transboundary victims, and has therefore become an emerging principle of human rights law.
The Draft Principles and the Draft Articles were made in the form of soft law instruments that are not binding on states. However, recalling that the task of the ILC was to codify and develop the existing laws regarding international environmental policy, these articles could potentially be used as evidence of opinio juris in finding customary international law when judges find that the provisions are supported widely by state practice, such as in the case of the acknowledgement of EIA as customary international law by the ICJ.Footnote 100
3.2. The Non-Discrimination Principle under International Law
The non-discrimination principle is a principle of human rights law that guarantees the enjoyment of freedoms and rights without any distinction on grounds such as race, sex, ethnicity, religion, political belief, nationality, or other status.Footnote 101 Some human rights agreements limit the scope of non-discrimination to the protection of rights guaranteed by the agreement.Footnote 102 Others establish non-discrimination as an autonomous right that applies in all types of case and context of discrimination conducted by public authorities or state laws.Footnote 103 The ICCPR is an example of a human rights document that acknowledges both types of non-discrimination. Article 2(1) imposes a positive obligation on states to avoid discriminating against anyone within their jurisdiction when safeguarding civil and political rights; and Article 26 mentions the protection of equality before the law.
When dealing with equality, affirmative action is needed in particular for vulnerable persons, such as women, children, the elderly and those in need. Not all differentiation constitutes discrimination. States are permitted to provide differential treatment if (i) it is reasonable and objective, and (ii) it has a legitimate purpose, as defined by the ICCPR.Footnote 104 However, if differential treatment is applied arbitrarily, without any notion of necessity or reason, such an action may constitute unlawful discrimination. In Adam v. Czech Republic Footnote 105 the Human Rights Committee (HRC) established that any legislation regulating restitution or compensation should not discriminate against victims on the basis of citizenship without reasonable grounds. In this case, the applicant was an Australian who owned a property in Czechoslovakia. The claim concerned the limitation of recovery of property confiscated by the Communist government as applied to Czech citizens and permanent residents as regulated by Czech law which, it was argued, had arbitrarily discriminated against the applicant. Similarly, in Karakurt v. Austria Footnote 106 the HRC found that the exclusion of a Turkish citizen from being a representative on a work council solely on the basis of nationality was not a reasonable distinction. Hence, it is necessary for the member states of the ICCPR to have reasonable, objective and legitimate aims when providing differential treatment, and in particular to foreign nationals.
Indonesia, as a member state of the ICCPR, has an obligation to provide access to justice or remedies to victims. The national courts of Indonesia have no reasonable, objective or legitimate reason to deny access to justice for the haze victims, including transboundary victims. If Indonesia fails to provide equal treatment to domestic and foreign victims within its courts, such an outcome could violate the non-discrimination principle under Articles 2, 14(1) and 26 ICCPR.
4. COMPANY LIABILITY AND CIVIL CLAIMS
Recalling that the actual polluters are the companies,Footnote 107 adopting the ‘polluter pays’ approach and making the companies liable under national law would be the most viable option for securing access to justice for victims of the Southeast Asian haze pollution.Footnote 108 Most notably for transboundary victims, the application of equal treatment – the non-discrimination principle – would enable their rights to be enforced. Generally, polluting companies can be sued in the place where (i) the polluting activities are carried out; (ii) the effects of the damage occurred; or (iii) the parent company is domiciled.Footnote 109 However, there is no global consensus on how and when companies can be sued for transboundary harm. A national court is likely to hear any case involving transboundary harm if its jurisdiction is the place of the defendant’s residence or the place in which the injurious activity took place.Footnote 110 In the context of Southeast Asian haze pollution, it is important to explore the possibility of conducting transboundary civil litigation against the offending companies in Indonesia as the source-of-origin country.
4.1. The Applicable Law
The Indonesian Environmental Protection ActFootnote 111 can be used as a legal basis for victims of environmental damage or nuisance to bring civil claims against polluters. Article 87 encapsulates the ‘polluter pays’ principle in the form of civil liability.Footnote 112 It specifies the polluter’s obligation to compensate, or make an effort of reinstatement to restore any damage to the environment or persons resulting from its unlawful conduct. Moreover, in order to guarantee the civil rights of each party (the injurer and the injured), the Ministry of Environment of Indonesia has published a ministerial regulation to guide the determination of the amount of compensation payable as a result of environmental damage or pollution. From the ministerial regulation it is clear that injuries caused by the haze are compensable, including injuries to human health, property, and income or economic loss.Footnote 113
The Environmental Protection Act provides for two types of forum for the resolution of environmental disputes.Footnote 114 Victims of environmental damage can bring civil claims against polluters before national courts for injuries suffered, or they can agree to have their claims settled outside court by mediation or other method. In the context of Southeast Asian haze pollution, pursuing remedies in court would be the best avenue for redress because the judge may order an amount of money to be paid as a fine (dwangsom) for any delay in complying with the ruling.Footnote 115 Alternatively, and provided the parties in dispute agree to participate, mediation may be effective and could result in a written agreement regarding remediation.Footnote 116 However, it is doubtful whether, in the case of Southeast Asian haze pollution, the wrongdoers would be willing to participate in mediation. There is always room to deny all public accusations because the burning activities are often conducted across massive areas and involve several actors who operate outside public scrutiny – for example, in the deep forest.Footnote 117 There is also a long history of companies and local farmers blaming each other for causing the fires. Because of this history and context, it is likely that a court decision would be a more effective means for seeking redress, as a court is able to make a final determination where parties cannot agree.
4.2. The Court’s Jurisdiction
There are two types of jurisdiction in Indonesia: absolute and relative. Absolute jurisdiction concerns the hierarchy and distribution of court affairs, while relative jurisdiction relates to the choice of jurisdiction or place to sue.
There are three hierarchical levels of court in Indonesia. In ascending order, the lower court is pengadilan negeri (PN); the court of appeal is pengadilan tinggi (PT); and the highest court is the supreme court, mahkamah agung (MA).Footnote 118 In the field of civil litigation, a court judgment is considered to be binding (inkracht) if (i) all means of reciprocal actions, which are appeal and cassation,Footnote 119 have been exhausted; (ii) the time limit for conducting reciprocal actions has passed; or (iii) the court itself in its judgment specifies a requirement of immediate execution, regardless of whether reciprocal actions are conducted by the counterparts.Footnote 120 Civil procedure law does not specify a time limit for reciprocal actions; in practice, judges refer to the time limit set by the law of criminal procedure, which is seven days after publication of the court’s verdict for appeal, or fourteen days after the court’s verdict for cassation.Footnote 121 Each type of court has a determinate substantive jurisdiction and deals with either general, religious, military, or administrative affairs. Civil liability or tort claims fall within the jurisdiction of the general courts.Footnote 122
With regard to relative jurisdiction, Article 118 of Herziene Inlandsch Reglement (HIR) or Article 142 of Rechtsreglement voor de Buitengewesten (RBg) provides that the choice of jurisdiction or location of the court is determined by the domicile of the defendant (actor sequitur forum rei). When there is more than one defendant, the claimant or plaintiff can choose the domicile of one of the defendants in which to sue.Footnote 123 A problem arises when the defendants’ domiciles are overseas. Article 100 of Reglement op de Rechtvordering (Rv) can be used to argue that aliens who are not Indonesian citizens and who do not live in Indonesia can be sued before an Indonesian court if such aliens have a dispute with an Indonesian.
This provision was applied in the defamation case between Soeharto v. Time Inc. Asia.Footnote 124 The case concerned news published by Time Inc. Asia – a company not domiciled in Indonesia and with no subsidiary company in Indonesia – that was perceived to be defamatory of the reputation of Soeharto, the former president of Indonesia. In this case, the court declared that the dispute was within its jurisdiction on the basis of Article 100 Rv and decided that the defendants were at fault. During the cassation phase, the Supreme Court revoked its verdict, declaring that the defendants were not at fault because they had provided the plaintiff with an opportunity to respond. However, on the question of jurisdiction, the judges’ original ruling was not overturned. On the other hand, in the case of Richard Bruce Ness v. New York Times, the District Court considered that the Indonesian court had no jurisdiction over a defamation dispute as the defendants were not living in Indonesia and were not Indonesian citizens.Footnote 125 A key point of difference between this case and Soeharto is that, in Ness, the plaintiff was not Indonesian either. The pivotal question that arises in relation to the Southeast Asian haze pollution is, therefore, does an alien plaintiff have legal standing before Indonesian courts? The following section addresses this question.
4.3. Foreigners as Plaintiffs
There is no express rule that states the rights of foreigners or aliens to bring civil lawsuits before Indonesian courts. In practice, judges will agree to hear the case when the dispute concerns issues that are regulated in accordance with Indonesian law.Footnote 126
In Richard Bruce Ness v. New York Times, the formal reason why the plaintiff was unsuccessful was not because he was a foreigner. The Central Jakarta District Court refused to examine the case because the defendants (Jane Perlez and The New York Times Company) had no domicile or registered address in Indonesia.Footnote 127 There is no advantage for Indonesian courts to hear cases between foreigners,Footnote 128 unless one party has a link with Indonesia – for example, through a relationship with citizens or entities that are established in Indonesia. After revising its claims, in part by adding to the list of defendants those who were citizens of Indonesia (Evelyn Rusli and Muktita Suhartono) and living in Indonesia, the Central Jakarta District Court agreed to hear the case.Footnote 129 Even though the plaintiff was ultimately unsuccessful, the case illustrates that a foreign plaintiff may sue in an Indonesian court if the defendants have an Indonesian domicile or place of business. Therefore, it could be said that neither the foreign status of the plaintiff nor that of the defendant is, in itself, an insurmountable obstacle, provided that there is a credible connection with Indonesia on the side of either the plaintiff or the defendant.
In the case of Southeast Asian haze pollution, Indonesian courts may have jurisdiction to hear transboundary civil claims against companies that cause severe transboundary smoke pollution because the companies are operating in Indonesia and are registered in Indonesia. The companies have also engaged in burning on Indonesian land. A foreign plaintiff could therefore sue the polluting companies before an Indonesian court.
The Indonesian Environmental Protection Act makes transboundary civil claims easier to pursue by allowing claims to be brought together as a class action.Footnote 130 Only those with the same facts or events, legal bases, and type of claim can bring a class action for environmental damage. This type of lawsuit is beneficial if the number of plaintiffs is large. It is also economically effective and efficient because it avoids repetition of the claims. For example, a class action claim was used successfully by the citizens of North Sumatra Province to obtain compensation of 50,000,000,000 rupiah (equivalent to USD 36,900) for environmental and personal harm suffered as a result of intense haze caused by the defendants.Footnote 131 Pursuing a class action would therefore be the best avenue for seeking redress for the victims of Southeast Asian haze pollution, as this would minimize the cost of litigation.
In most cases of a claim of liability for injuries or tort, a plaintiff must prove the element of fault. In order to escape liability the defendant needs only to prove that he or she has taken, at minimum, the legally required level of care. However, in a civil claim for environmental damage, Indonesian law applies strict liability, which means that a defendant will be liable for the victims’ losses, regardless of the extent of the negligence.Footnote 132
Moreover, in identifying the defendants, plaintiffs can utilize satellite imagery data, which provides 24-hour surveillance for tracking the location of fire ‘hot spots’ and observing the impact of changes in wind speed and direction. This information is often provided by non-governmental organizations (NGOs) that specialize in forest fires, such as Global Forest Watch,Footnote 133 and is also available from the government of the affected states, such as Singapore.Footnote 134 In addition to tracking the location, Global Forest Watch in some cases can identify the name of the company that occupies or has a connection with the land.
5. LAWS OF AFFECTED STATES
The affected states, in particular Malaysia and Singapore, might not have jurisdiction over a Southeast Asian transboundary haze pollution claim. Both states have common law systems that normally refuse to examine cases of transboundary damage on the ground of the doctrine of forum non conveniens.Footnote 135 However, this is no longer the case for Singapore, which in 2014 passed new legislation, the Transboundary Haze Pollution Act 2014 (THPA), which is specially designed to hold defendants liable for harmful activities conducted outside Singapore. Nevertheless, arguably the THPA cannot resolve all challenges regarding transboundary litigation in Singapore. Therefore, this section of the article tries to identify the barriers to pursuing access to justice within the laws of the affected states with respect to transboundary environmental damage.
5.1. Jurisdictional Problems in Malaysia
An examination of the law of civil jurisdiction under the Malaysian Court of Judicature Act 1964Footnote 136 indicates that Malaysian courts have no jurisdiction to hear tort claims on behalf of victims of Southeast Asian haze pollution. Malaysian plaintiffs do not have the option of suing in their home country because the defendants’ domicile or place of business and the location of the burning are overseas. Under Malaysian law, courts have jurisdiction over civil proceedings only if (i) the cause of action arose in Malaysia; (ii) the defendant resides or has a place of business in Malaysia; (iii) the incident occurred in Malaysia; or (iv) the matter involves disputed ownership of land located in Malaysia.Footnote 137 Perhaps a civil claim for transboundary pollution could be made on the ground of the defendant’s residence or place of business, as referred to in the second requirement, and/or on the ground of where the incident occurred, as mentioned in the third requirement, this being the pollution. Nevertheless, it does not mean that a Malaysian court will hear the case.
Although the polluter may have a parent company in Malaysia, with the consequential damage occurring in Malaysia, bringing a tort claim against the parent company in Malaysia would be difficult. Case law establishes that a parent company can be sued for a tort conducted outside the country if denying the victim the right to sue would amount to a denial of justice.Footnote 138 Here, however, the relatively more flexible Indonesian procedural provisions might actually hinder rather than further access to justice for Malaysian victims.Footnote 139 The recognition of civil liability for environmental damage in Indonesia means that Malaysian victims could theoretically sue the offending companies before an Indonesian court. As such, the denial of justice ground cannot be used to force Malaysian courts to consider the claim.
Moreover, the case of Salomon v. A. Salomon & Co. Ltd held that a parent company may be held liable for its subsidiaries’ actions overseas only in certain limited situations, such as when the parent company has demonstrated an intention to ignore the subsidiary’s compliance with its duty owed to the plaintiff.Footnote 140 In the case of Southeast Asian haze pollution, the ‘subjective’ involvement of the parent company in causing the harm would be hard to prove because of the plaintiffs’ limited ability to obtain evidence from overseas operations. Furthermore, the legal status of a Malaysian-based company operating in Indonesia might prove to be difficult to categorize as a subsidiary. This is because, for all practical purposes, the company has established itself as a new company, with a registered address within the territory of Indonesia. This situation stems from the law relating to foreign investment in Indonesia, which requires a foreign company to be registered before carrying on business in Indonesia.Footnote 141 Thus, the company is a legal entity (rechtspersoon) and may be held liable before an Indonesian court. For the above reasons, in the present case it can be concluded that an Indonesian court is the forum conveniens for Malaysian haze victims to pursue remedies or access to justice.
5.2. The Singapore Transboundary Haze Pollution Act 2014: The Problem of Enforcement
In contrast to Malaysian victims who have no legal recourse in their home country, this option is open to Singaporean haze victims. This arises from the enactment of the THPA on 25 September 2014. It has an ambitious extraterritorial scope and seeks to regulate agribusiness companies that conduct forest fires outside the country and thereby cause intense smoke pollution in Singapore. The enactment of the THPA was triggered by Singaporean anger at forest fires from Indonesia, which occur nearly every year and affect the quality of life of Singaporeans. The legislation was introduced just after an unprecedented level of smoke occurred in 2013, which was reported to be almost double the level of that of the 1997 haze crisis.Footnote 142
Under the THPA, any business that carries out or supports another entity or person in carrying out open burning practices outside the country can be held liable under both civil and criminal law if the burning contributes to haze pollution in Singapore, even if the company is not based in Singapore. The offenders may be fined an amount not exceeding SD 100,000 per day for causing the hazeFootnote 143 and SD 50,000 for failing to comply with a notice given by the authorities.Footnote 144 Victims in Singapore can bring civil claims against wrongdoers for injuries suffered as long as they can prove (i) there is intense smoke in Singapore; (ii) during the same period of time, a land or forest fire located outside Singapore was burning; and (iii) the availability of satellite images showing the wind velocity and direction heading towards Singapore. In addition, the amount of compensation for injuries – whether mental or physical, damage to property, loss of profits – will be decided by the court.Footnote 145 However, the defendant may challenge the claim on the basis of causation – namely, that on the balance of probabilities, the defendant’s actions did not cause the pollution – albeit that such a defence would be subject to restrictions listed in section 7 THPA.
In practice, the THPA could be used only to regulate Singapore-based companies, as they are domiciled and have assets within the territory of Singapore. Meanwhile, companies based in Malaysia and Indonesia would escape responsibility under the THPA if they have no assets or property in Singapore and the employees are forbidden to visit Singapore.Footnote 146 If haze victims in Singapore were to bring civil actions before Singaporean courts against Indonesian-based companies, it is doubtful whether the judgments of the Singaporean courts could be enforced in Indonesia. This is because Article 436 Rv does not allow the execution of foreign judgments, except under certain conditions specified by the law.Footnote 147 Judgments of Singaporean courts can be enforced in Indonesia if the Singaporean government and the Indonesian government so agree. In the absence of such agreement, the Indonesian court remains the best avenue for victims in order to obtain effective and enforceable remedies, particularly when the offending companies are based in Indonesia or Malaysia.
6. CONCLUSION
The Southeast Asian haze pollution is a problematic transboundary environmental issue. Indonesia, as a source-of-origin state, is failing to carry out its due diligence obligation under international law and could therefore be sued before the ICJ for fault-based negligence. In practice, however, this is very unlikely as a result of jurisdictional problems, the ASEAN way of non-confrontation, and the clean hands doctrine.Footnote 148 To address these barriers, victims should pursue ‘transboundary civil litigation’, which would involve using Indonesian domestic law to pursue a civil claim for environmental pollution under the Indonesian Environmental Protection Act. Suing companies within the framework of the Indonesian legal system arguably would be the most effective option for obtaining access to justice for the extraterritorial victims of haze pollution.
Indonesian courts are the most appropriate venue for victims of Southeast Asian haze pollution to bring an action. This is especially so for those from Malaysia, because suing defendant companies in Malaysia for transboundary environmental damage caused by activities conducted overseas is very difficult. Singaporean victims have a choice of suing either in their home country (Singapore) or in Indonesia because recent Singaporean legislation is specifically designed to hold defendants liable for harmful activities conducted outside Singapore. However, if the company suspected of causing the pollution is Malaysian, or the company is Indonesian with no assets in Singapore, suing in Singapore could be meaningless because the verdict of a Singaporean court cannot be enforced abroad if there is no enforcement cooperation between the countries involved. As such, if the alleged polluters are not based in Singapore, it would be better for Singaporean victims of the haze to sue in Indonesia rather than in Singapore.
Theoretically, cross-boundary victims could bring an action before Indonesian courts because, in the case of Southeast Asian haze pollution, the cause of action arises within the territory of Indonesia and the polluters have a place of business in Indonesia. This supposition is strengthened by the fact that Indonesian civil procedure adopts the principle of actor sequitur forum rei (bringing a civil action based on the domicile of the defendant) in determining whether a court has jurisdiction over the case.Footnote 149 As such, if Indonesian judges refuse to hear civil lawsuits brought by transboundary victims suffering from Southeast Asian haze pollution, it could be argued that they have unreasonably discriminated against aliens. This would violate Indonesia’s obligation under the ICCPR not to discriminate within its jurisdiction on the ground of nationality.Footnote 150
Pursuing civil claims for environmental damage before Indonesian courts is not as difficult as filing a tort claim in a common law country because polluters are strictly liable under Indonesian law.Footnote 151 This means that victims need only prove damage and a causal link between the damage and the actions or inactions of the defendant. At present, the adequacy of compensation provided by a court has not been analyzed. Further discussion on the determination of adequate compensation for transboundary victims of Southeast Asian haze pollution is needed. Moreover, it is also recognized that bringing a civil lawsuit against polluters is not a long-term solution to resolving issues relating to haze pollution. It is doubtful whether a lawsuit would directly change the behaviour of the offending companies, as the lack of law enforcement and economic issues remain common problems in Indonesia. Therefore, greater efforts should be made to ensure that Indonesian companies comply with the restrictions on burning.
