By Marja Azlima Omar
Senior Lecturer, International Relations Programme, Faculty of Social Sciences and Humanities, Universiti Malaysia Sabah
For Sarawakians, haze is no longer a one-off environmental disaster. It is a recurring disruption to ordinary life. On 15 August, nine locations in Sarawak recorded unhealthy Air Pollutant Index readings. Kuching reached 164, followed closely by Samarahan at 161 and Serian at 160. The Department of Environment reported five hotspots in Sarawak and two in Sabah, while the ASEAN Specialised Meteorological Centre detected 226 hotspots in Kalimantan and five in Sumatra.
The relevant government authorities have taken the familiar immediate response namely close monitoring, patrols against open-air burning, activation of national action plans, public health advice and calls for landowners to protect fire-prone areas. While these measures are necessary, they also reveal the limits of what Malaysia can do when a substantial part of the pollution originates beyond its borders. Malaysian authorities can extinguish fires within Malaysia; they cannot simply enter another state's territory, investigate a concession or prosecute a company operating there. Those actions are notably beyond Malaysia’s jurisdictional limit.
This current haze situation is precisely the kind of problem that the ASEAN Agreement on Transboundary Haze Pollution was meant to address. Signed in Kuala Lumpur in 2002 and in force since 2003, the Agreement is often described as the world's first binding regional arrangement dealing specifically with haze from land and forest fires. All ten ASEAN states are parties. However, more than two decades later, the haze is still returning and has become a perennial recurring problem.
Nevertheless, that does not mean the Agreement has achieved nothing. It created a framework for regional monitoring, early warning, information exchange, prevention, preparedness and mutual assistance. The ASEAN Specialised Meteorological Centre now provides valuable satellite data on hotspots and smoke movement. The Second ASEAN Haze-Free Roadmap for 2023-2030 and the ASEAN Peatland Management Strategy also attempt to address fires at their source. Without these arrangements, regional coordination would almost certainly be weaker.
However, the stark loophole in the Agreement is that it is much better at establishing cooperation than enforcing responsibility. Its objective is prevention and monitoring through national efforts and regional cooperation. Member states are expected to take preventive measures, exchange information and respond to fires. But the treaty does not establish an independent body empowered to investigate a particular plantation company, compel the disclosure of concession data, impose a fine or award compensation to people whose health and livelihoods are affected.
The dispute-settlement provision in the Asean Haze Pact is also equally restrained. Disputes are to be settled amicably through consultation or negotiation. There is no compulsory court, tribunal or compliance panel, and nor there is predetermined sanction for persistent failure. Assistance also depends on a request and the consent of the receiving state. Undoubtedly, these provisions reflect the ASEAN preference for sovereignty, non-interference and consensus. However, although such diplomatic culture may preserve cooperation, but it makes accountability difficult when the pollution crosses borders while enforcement powers do not.
Another weakness is the distance between a hotspot and a legally identifiable polluter. A satellite can show that land is burning and winds are carrying smoke towards Sarawak. Liability, however, requires more credible information such as who controls the land, who started or permitted the fire, whether reasonable preventive steps were taken, how much pollution came from that source, and what loss it caused abroad. Cloud cover, overlapping smoke plumes, opaque concession ownership and complex corporate structures can make that chain of proof difficult. The result is a recurring accountability gap. The public experiences the damage, but no clearly identified actor receives the bill.
This is where the Polluter Pays Principle offers a more promising direction. The Polluter Pays Principle first emerged as an economic cost-allocation rule rather than as a rule of punishment. It was formally introduced by the Organisation for Economic Co-operation and Development (OECD) in its 1972 Recommendation on the international economic aspects of environmental policies. The basic idea was that the cost of pollution prevention and control should be included in the price of the goods or activities that create pollution, instead of being transferred to taxpayers or the wider public.
The principle later gained wider international recognition through Principle 16 of the 1992 Rio Declaration on Environment and Development, which called on states to promote the internalisation of environmental costs while taking account of the public interest and avoiding distortions to international trade and investment.
In simple terms, the Polluters Pays Principle denotes that the party responsible for pollution should bear the costs of preventing, controlling and repairing it. The principle reverses the present reality in which families buy masks and air purifiers, schools adjust activities, businesses lose income, hospitals face additional pressure and governments fund emergency responses, while those who may have benefited from unsafe land clearing can externalise the cost.
If the Principle is to be applied to the current haze situation, polluter pays should mean more than imposing a fine after a fire. Major landholders and companies operating in high-risk peatland areas could be required to finance preventive measures, maintain verifiable fire-management systems, restore damaged peatlands and contribute to the cost of emergency response. Where fault and causation are proved, they should also face civil liability for transboundary harm. Environmental performance bonds, mandatory insurance and a regional haze-response fund financed by risk-based industry contributions could ensure that money is available before years of litigation end.
But the Polluter Pays Principle is not a magic phrase nor is it a panacea to these recurring problems. By itself, it does not identify polluters, create jurisdiction or produce compensation. And thus, it must be converted into enforceable domestic and regional rules. Malaysia should therefore revive consideration of a carefully designed transboundary haze pollution law. Such legislation could provide civil and regulatory consequences for corporations, including entities that are linked to Malaysia, that cause or substantially contribute to serious haze affecting Malaysia, even where the relevant conduct occurs abroad.
Any such law must be drafted realistically. Extraterritorial jurisdiction can generate diplomatic objections, and judgments may be difficult to enforce where a defendant has no assets in Malaysia. Evidence located overseas may be inaccessible. The law should therefore be coupled with ASEAN arrangements for sharing concession maps, corporate ownership information, fire-investigation findings and admissible satellite evidence, as well as cooperation in serving documents, collecting evidence and recognising judgments. Singapore's transboundary haze legislation shows that domestic law can extend accountability beyond national territory, but it also demonstrates that legislation is only as effective as the evidence and cross-border cooperation available to enforce it.
ASEAN should go further by developing a liability and compensation protocol under the existing Agreement. It could establish common evidentiary standards, a regional register linking concessions to beneficial owners, an expert fact-finding mechanism and a claims process for verified public expenditure and community losses. Companies repeatedly associated with fires could face coordinated procurement restrictions, financing conditions or market-access consequences across ASEAN. These measures would give the treaty consequences without requiring ASEAN to abandon cooperation altogether.
To ensure fairness is essential and for that reason, accountability should be placed on those liable parties. Responsibility must not be shifted indiscriminately onto small farmers or indigenous communities when large commercial actors control greater resources, land and fire-prevention capacity. Essentially, liability should be proportionate to control, contribution, fault and ability to prevent harm. Public funds should support genuinely sustainable small-scale agriculture, while commercial operators that profit from high-risk practices should bear the corresponding risk.
The present haze is therefore more than a seasonal inconvenience. It is a test of whether ASEAN environmental law can move from coordination to accountability. The 2002 Agreement remains a useful foundation, but it was not designed as a liability regime and should not be mistaken for one. Monitoring can tell us where the smoke is travelling. Meetings can keep communication open. Neither, on its own, makes the polluter pay.
The region does not need another promise to cooperate. It needs a credible system that traces responsibility, makes major polluters bear the cost, and gives affected communities a remedy. The next necessary step is not to discard the ASEAN Agreement, but to give it sharper legal enforcement attributes in the form of transparent attribution, enforceable national laws, cross-border evidence sharing, corporate accountability and a credible compensation mechanism. After all, clean air should not depend on favourable winds, and the cost of haze should no longer fall mainly on the people forced to breathe it.
