Legal routes against Indonesia's fire haze stall on consent at the ICJ and on proof elsewhere

"The main issue is jurisdiction, as the ICJ generally requires the consent of both states," said Mohd Hazmi Mohd Rusli, a professor at Universiti Sains Islam Malaysia ^[3]. The court in The Hague can hear a dispute only when the states involved have accepted its jurisdiction. That can happen through a special agreement, through matching declarations recognising its compulsory jurisdiction, or through a treaty clause that refers disputes to it ^[4]. The regional treaty does not get around this. "It is legally binding, but it does not provide a mechanism for one member state to simply sue another," Hazmi said of the ASEAN agreement ^[8]. The agreement relies instead on "national action and regional cooperation" ^[9].

Once states are out of the courtroom, the remaining routes depend on showing cause and effect. Malaysians or Singaporeans could try suing companies linked to the fires in an Indonesian court, said Azam Hawari, a legal expert at the environmental law charity ClientEarth ^[11]. Azam said "claimants would need to show a link between the company's activities, the haze that reached them, and their losses," and added that he was not aware of such a case having been brought successfully ^[12].

Hazmi holds states to the same standard. "Transboundary haze does not automatically mean Indonesia is internationally responsible," he said ^[13]. "There must still be sufficient evidence to establish the link between activities in Indonesia and the harm suffered in Malaysia or Singapore" ^[14].

Smoke over Singapore shows that fires burned upwind. On its own it does not tie a given plume to a given concession, or that concession to a given person's losses. Each of the three links Azam lists needs its own evidence ^[12].

Singapore has already found out how hard that chain is to build. It passed its Transboundary Haze Pollution Act in 2014, after pollution reached hazardous levels the year before, and another episode followed in 2015 ^[15]. The law aimed to punish companies whose activities outside Singapore caused or contributed to unhealthy haze inside it ^[16]. Enforcement relied heavily on cooperation from foreign authorities ^[17]. Assigning responsibility required authorities to share maps pinpointing fire hotspots, and conflicting or overlapping land rights complicated matters further ^[18]. Fines and damages were hard to collect from companies with no presence in Singapore ^[19]. The 2015 haze behind the still-open cases was 11 years ago ^[1].

Alan Tan, an environmental law professor at the National University of Singapore, said Singapore will now most likely "wait for Indonesia to finger certain companies first before we take action against these same companies under the act" ^[21]. "Otherwise, any action that Singapore takes would appear to the Indonesians to be unilateral, and could be politically controversial," he said ^[22].

I think the first link is where both the civil and the statutory routes stall. Naming the responsible companies depends on hotspot maps that someone has to share and, on Tan's account, on Jakarta moving first ^[18][21]. Tan does not see the fires' causes being dealt with at source. "Regrettably, not much has changed by way of how the root causes of fires remain unaddressed in Indonesia," he said ^[23].