ASEAN — Singapore is moving toward uncharted territory by mulling a draft bill on transboundary haze pollution. The bill is a response to the haze problem allegedly caused by Indonesias forest fires.
The bill consists of three key features: extraterritoriality, criminal liability and civil liability. It will impose sanctions on any entity, regardless of nationality, whose activities outside of Singapore contribute to pollution in the country. Penalty for offenders can be up to S$450,000 and avenues to recover damages are made available.
Currently, the bill is still in public consultation until mid-March this year.
Coming from a country like Singapore, this bill is both unprecedented and inspiring. However, extraterritoriality, including criminal extraterritoriality, is nothing new in international law.
Indeed, its not a new invention, it has been done, and ironically, Singapore is at the forefront of the fight against extraterritoriality.
Back in 2008, the European Union passed a regulation on the Emission Trading Scheme for the aviation sector (ETS). In this scheme, airplanes flying to Europe, regardless of from where they departed, Johannesburg or Singapore, have to pay levy.
The problem that many believed, including Singapore, was that aircraft flying from one point, for example Changi Airport, would fly many hours above non-EU territory before entering the EU space for only around 2 hours. Thus, they see this as unfair levy imposed extraterritorially.
Singapore, along with other countries, rejected the extraterritoriality of the ETS at the 194th Session of International Civil Aviation Organization (ICAO) Council and urged the EU to refrain from including flights by non-EU carriers to and from an airport in the territory of an EU member state as it is inconsistent with applicable international law.
In 2012, through the Joint Declaration of the Moscow Meeting, Singapore demanded the EU and its member states cease application of the ETS to airlines/aircraft operators registered in non-EU states, or else there will be countermeasures.
Singapores bill on transboundary haze pollution exactly emulates the EU ETS in the aviation sector. Some will argue otherwise, the two are just the same wolf in different color of sheep jackets: foreign polluters must be punished.
This is the logic behind the EU ETS in the aviation sector and Singapores transboundary haze bill.
Transboundary pollution is a regional issue, but criminal extraterritoriality in the transboundary pollution bill is not the remedy. It needs mutual trust and regional collaboration. The ASEAN Agreement on Transboundary Haze Pollution is one way to achieve progress.
However, even within the context of the ASEAN Agreement, the issue of extraterritoriality, including criminal extraterritoriality, is not stipulated. All ASEAN countries are aware of the fact that criminal punishment of foreign-based pollution is not doable, and politically and legally impossible. Even in Europe, where transboundary pollution is well regulated, the EU member countries of any particular treaties do not stipulate criminal extraterritoriality.
The Indonesian government is, of course, in favor of adopting the ASEAN Agreement on Transboundary Haze Pollution. The agreement provides a regional framework of cooperation on this issue and it is in line with the spirit of the ASEAN community and solidarity.
However, Indonesia is a democracy in which the House of Representatives could say something different, as provided by the Constitution.
We have seen, for instance, the most powerful country in the world today, the United States, whereby its government has agreed on the ratification of the United Nations Convention on the Law of the Sea (UNCLOS), but the Congress refused; well, we have to live with the fact.
Now, while we are in the process of ratifying the ASEAN Transboundary Haze Pollution Agreement, what we can do is adopt another form of cooperation that is technically feasible like what we have signed with Norway.
Indonesia has creatively created a partnership with Norway which involves US$1 billion in forest management under a reducing emissions from deforestation and forest degradation (REDD) project.
Transboundary pollution is a complicated issue. It concerns not only cross border pollutions but also pollutions that involve a legal activity, an activity that is purely legal, purely acceptable, but has side effects, such as flights of foreign airlines in Indonesian air space and foreign vessels passing Indonesian territory.
These activities create pollution in Indonesia, and this is something that we, Indonesia, need to deal with.
Nevertheless, the Singaporean Bill on Transboundary Haze Pollution that has criminal extraterritoriality element should actually inspire Indonesian policymakers to think out of the box.