Setyawati Fitrianggraeni, Eva Fatimah Fauziah, Sri Purnama*

Research Group Arbitration and Alternative Dispute Resolutions

Working Committee Disputes and Transnational Litigation

Legal Lab Team, Anggraeni and Partners

INTRODUCTION

Environmental issues in Indonesia are not only causing a chain of damages at the local level but also have repercussions that spread transnationally to regional and global scales, transmuting into urgent international concerns. Among these environmental issues, forest fires loom large, qualifying as disasters.[1] Unfortunately, these forest fires draw substantial attention only when they culminate in transboundary haze pollution.[2] The resultant cross-border implications necessitate avenues for seeking justice, extending to those residing beyond Indonesia’s borders. One such avenue is transnational litigation, a field that has seen limited exploration by legal experts thus far, leading to an inadequate comprehension of its intricacies.[3]

This article comprehensively examines transboundary haze pollution in Indonesia and its resolution through transnational litigation. It begins with exploring the concept of transnational litigation, followed by an analysis of the legal frameworks governing cross-border haze pollution. Specific instances of such pollution in Indonesia are highlighted, and a deep dive into the complexities of transnational litigation in this context is provided. Additionally, it outlines the available forums for adjudicating these cases and underscores the valuable lessons for future transnational litigation efforts. In summary, this article underscores the need for a coordinated approach to address the multifaceted challenges of transboundary haze pollution.

OVERVIEW OF TRANSNATIONAL LITIGATION

Transnational litigation, often referred to as international litigation, pertains to legal disputes involving individuals, events, or transactions spanning multiple countries.[4] This legal arena comes into play when the parties engaged in the dispute possess differing nationalities. It is essential to note that transnational litigation aligns more closely with the domain of private international law than with public international law. This distinction arises due to the fundamental role of private international law in regulating cross-border civil relationships. In essence, private international law is the guiding framework governing interactions among legal entities subject to diverse national civil laws.[5]

The complexities within transnational litigation, primarily intertwined with international civil procedural law, encompass several key challenges:[6]

1. Forum Determination: A central challenge revolves around selecting the appropriate forum to adjudicate matters that involve foreign elements. This choice may overlap with the jurisdiction of another country’s legal system.
2. Choice of Court and Applicable Law: Decisions regarding the forum (choice of court) and the applicable legislative regulations (choice of law) represent critical facets. Selecting the correct jurisdiction and legal framework is pivotal in effectively resolving transnational disputes.
3. Recognition and Enforcement: A pivotal concern in international civil litigation is the efficacy of legal judgments rendered in jurisdictions other than where they are intended for enforcement. This issue revolves around the intricate process of recognizing and enforcing foreign judgments.
4. Alternative Dispute Resolution: Persistent issues within private international law pertain to dispute resolution beyond formal legal channels. This aspect holds particular relevance in international arbitration forums, especially within the commercial realm.

Transnational litigation presents a multifaceted array of challenges, necessitating a nuanced understanding of private international law principles and mechanisms to navigate this complex terrain effectively.

LEGAL FRAMEWORKS GOVERNING TRANSBOUNDARY POLLUTION

National Frameworks

Indonesia has enacted legal framework to address the critical issue of forest and land fires. Notably, Law No. 41 of 1999 on Forestry in conjunction with Law No. 18 of 2013 on the Prevention and Eradication of Forest Destruction, plays a pivotal role. Explicitly, Law No. 41 of 1999 on Forestry categorically prohibits the act of forest burning.[7] Violations of this prohibition entail severe penalties, including a maximum prison sentence of 15 years and a maximum fine of 5 billion rupiah. Additionally, setting land and forests ablaze is rigorously prohibited by Law No. 32 of 2009 on Environmental Protection and Management (PPLH Law).[8] Under the PPLH Law, violations of this prohibition incur a minimum prison sentence of 3 years, a maximum of 10 years, and a fine ranging from a minimum of 3 billion rupiah to a maximum of 10 billion rupiah. Furthermore, Law No. 39 of 2014 on Plantations prohibits plantation business actors from utilising burning techniques for land clearing and .[9] This year, Indonesia’s Supreme Court issued an Indonesia Supreme Court Regulation No. 1 of 2023 concerning Guidelines for Judging on Environmental Cases. This Supreme Court Regulation is a guideline for judge to settlement environmental case including air pollution cases.[10]

International Frameworks

At the international level, member countries of the Association of Southeast Asian Nations (ASEAN) have established the ASEAN Agreement on Transboundary Haze Pollution (AATHP). This agreement, signed by the 10 ASEAN member states on June 10, 2002, is significant in addressing transboundary haze pollution resulting from land and forest fires. The objectives enshrined in AATHP revolve around the prevention, monitoring, and mitigation of transboundary haze pollution through collaborative national efforts and heightened regional and international cooperation. These objectives align with the broader sustainable development context, as outlined in the agreement.[11]

In tandem with AATHP, international customary law recognises the ‘no harm’ principle, asserting a state’s responsibility to regulate activities within its jurisdiction to prevent substantial harm to other states or areas beyond its jurisdiction. regulate that countries must prevent activities within their borders from causing environmental harm to their neighbours,[12] these provisions are in line with the ‘no harm’ principle. Furthermore, the ‘no harm’ principle has been consistently upheld by the International Court of Justice (ICJ), notably in cases such as Pulp Mills, the Corfu Channel, Gabčikovo-Nagymaros, and the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons. This principle harmonises with the overarching legal maxim of sic utere tuo ut alienum non laedus, which enjoins individuals not to employ their property in ways that harm others.[13]

Additionally, Principle 21 of the Stockholm Declaration (UN Resolution No. 2992 (XXVII) of December 15, 1972) underscores the sovereign right of each nation to exploit its natural wealth while bearing the responsibility to ensure that such activities, conducted within its territory or under its control, do not inflict damage or harm upon other countries. A parallel provision exists within Article 194 of the 1982 Law of the Sea Convention, affirming that states must take requisite actions to prevent the pollution of the territories of other states resulting from activities under their jurisdiction or control.

These comprehensive legal frameworks, at both national and international levels, provide the necessary tools to address the multifaceted challenges posed by transboundary pollution, forming a bedrock for resolving complex environmental disputes.

THE INDONESIAN HAZE CASE

Haze pollution, a recurring phenomenon since the 1970s during the dry season in Indonesia,[14] garnered regional attention in the 1990s as countries in Southeast Asia grappled with the menace of transboundary haze pollution. The watershed moment arrived when the region experienced unprecedented and severe land and forest fires, resulting in a distressing transboundary haze pollution crisis. The harrowing events of 1997 etched one of the most severe instances of transboundary haze pollution in the annals of the ASEAN. Significantly, this crisis laid the groundwork for establishing the AATHP.[15]

The spectre of forest fires, akin to the calamitous events of 1997, reared its head again in 2015 that happened in Riau. That forest fire incidents emerged of thousands, including vulnerable groups such as children and pregnant women, being compelled to evacuate from the provincial capital, Pekanbaru.[16] This crisis also prompted Singapore to take legal action and initiate investigations within Indonesian territory in response to the gravity of the fire incidents.[17] The devastating forest fire in Indonesia happened again in 2019 located at Jambi, the hazy skies caused by peatland fires this year is the worst because skies over an Indonesian province turned red over the weekend. Every year, fires in Indonesia create a smoky haze that can end up blanketing the entire Southeast Asian region.[18]

TRANSNATIONAL LITIGATION ASPECTS IN CROSS-BORDER POLLUTION CASES IN SOUTHEAST ASIA

The decision by Singapore to initiate legal proceedings in response to the 2015 fire incidents raises pertinent questions that warrant careful consideration within the context of cross-border pollution cases in Southeast Asia. One of the foremost queries revolves around determining jurisdiction in such cases – specifically, which country’s court possesses the authority to adjudicate matters involving transboundary pollution incidents in the region. In addressing this issue, we can draw upon the principle of actor sequitur forum rei, embraced by Indonesia, whereby a lawsuit is filed in the court situated in the defendant’s jurisdiction.[19]

However, complexities arise when the defendant resides outside the boundaries of the plaintiff’s nation. Article 100 of the Reglement op de Rechtvordering (Rv) provides a foundation for asserting that foreigners who are not Indonesian citizens and do not reside within Indonesia’s borders can be subject to lawsuits in Indonesian courts when embroiled in disputes with Indonesian citizens. Generally, companies held responsible for causing pollution may be subject to jurisdiction in courts situated in the locales where (i) the polluting activities were conducted, (ii) the damage was incurred, or (iii) the parent company is domiciled. Unfortunately, a global consensus remains elusive concerning the circumstances under which companies can be sued for transboundary damages. Domestic courts are more likely to consider cases involving transboundary damages if their jurisdiction aligns with the defendant’s residence or the locale where the harmful activities transpired.[20]

The subsequent critical consideration revolves around the execution of judgments in transnational pollution cases. As detailed in her book, Ms Sut. Girsang’s comprehensive analysis underscores that a court decision asserts a nation’s sovereignty.[21] Consequently, a judgment issued by one country holds executory force exclusively within that country’s borders and lacks enforceability in another jurisdiction. This legal principle is explicitly articulated in Article 436 of the RV, which stipulates that foreign court decisions lack the requisite executory force for enforcement within Indonesia.[22] Therefore, if parties originating from two or more distinct countries enter into an agreement specifying that disputes arising therefrom will be resolved through foreign courts and subsequently enforced by the involved parties, the foreign judgment stemming from the agreement remains a matter of recognition and is treated as a factual record in the form of a judgment. Regrettably, this foreign judgment does not inherit enforceability within the Indonesian judicial system. Consequently, for execution within Indonesia, the judgment must be subjected to a comprehensive re-examination, culminating in a bona fide verdict under the auspices of Indonesian courts.[23]

FORUMS FOR SETTLING DISPUTES

Domestic Courts

Domestic courts serve as a primary venue for addressing cases of smoke pollution resulting from forest fires. An illustrative example is the lawsuit brought forward by WALHI concerning the Karhutla disaster in 2015. In this instance, the affected community, engaged in the Central Kalimantan Anti-Smoke Movement (GAAs), initiated a class action lawsuit that ultimately secured a verdict in their favour.[24]

ICJ (International Court of Justice)

The International Court of Justice (ICJ) stands as a pivotal institution for settling disputes between nations, with the overarching objective of fostering global peace by acting as an intermediary in international conflicts.[25] In the context of transboundary haze pollution, countries most severely impacted by such pollution, such as Malaysia and Singapore, can bring Indonesia before the ICJ, citing negligence as the basis for their grievances. Addressing transboundary haze pollution at the ICJ, there are some requires specific criteria to be met. Firstly, only countries can file a case, not individual people or companies. Both nations in the dispute must agree to let the ICJ make a decision, typically through a prior agreement.[26] It is essential for the countries to have tried to solve the dispute between themselves first. Also, there should be undeniable evidence that the pollution is crossing borders.

ASEAN

An alternative avenue for resolving transboundary haze pollution issues hinges on adhering to ASEAN principles. The ASEAN Agreement 2002 underscores the importance of dispute resolution rooted in a preventive framework. This approach prioritizes cooperative prevention, mitigation, and monitoring efforts, reflecting the spirit of resolving disputes through collaboration.[27]

Arbitration

Arbitration also emerges as a viable mechanism for dispute resolution, as exemplified in the Trail Smelter case (United States v Canada). In this landmark case, the use of sulfur dioxide in the iron ore smelting process by the Canadian company Trail Smelter posed significant health risks to residents of Washington in 1925 and 1937. The United States raised the issue and pursued legal recourse, seeking an injunction against further air pollution by Trail Smelter. Subsequently, both nations consented to the arbitration route, leading to the Canadian company’s obligation to provide compensation.[28]

These diverse forums for settling disputes underscore the complexity and multiplicity of options available for addressing transboundary pollution cases, necessitating careful consideration of the unique circumstances and preferences of the parties involved in each instance.

LESSONS LEARNT AND IMPLICATIONS FOR FUTURE TRANSNATIONAL LITIGATION

The transboundary nature of haze pollution in Southeast Asia has illuminated critical lessons and future implications for transnational litigation in the region. Notably, countries affected by such pollution, with Malaysia and Singapore at the forefront, often find their jurisdictional options limited within their standard law legal systems. These nations tend to decline the examination of cross-border damage cases, citing the doctrine of forum non conveniens.[29]

Consequently, Indonesia is the most pragmatic jurisdiction for addressing transboundary haze pollution cases. As elaborated earlier, victims from neighbouring countries possess the capacity to initiate legal proceedings in Indonesian courts, provided that the source of the fire lies within Indonesian territory and the responsible party maintains a presence in Indonesia. This assertion supports Indonesia’s adherence to the actor sequitur forum rei principle, wherein lawsuits are grounded in the defendant’s domicile. When Indonesian judges refuse to entertain civil lawsuits brought forward by foreign plaintiffs, it raises concerns of unwarranted discrimination against non-nationals. Such a stance contravenes Indonesia’s obligations under the International Covenant on Civil and Political Rights (ICCPR), which mandates non-discrimination within its jurisdiction.[30]

However, it is imperative to acknowledge that resorting to litigation while offering a legal remedy may not offer a comprehensive solution to the persistent issues associated with transboundary haze pollution. Doubts linger regarding the efficacy of legal claims in directly altering the behaviour of culpable companies.[31] The complex interplay of economic interests, environmental concerns, and cross-border dynamics underscores the multifaceted nature of transnational litigation in this context.

CONCLUSION

The persistent occurrences of forest fires in Indonesia, leading to repeated transboundary smoke pollution affecting neighbouring countries, underscore the pressing need for enhanced environmental enforcement measures within the nation. At its core, the imperative to refrain from causing environmental harm emanates from a fundamental principle of international law that has crystallized into customary international practice: sic utere tuo ut alienum non laedas (do not use your property to harm others). This foundational principle finds validation in the jurisprudence of the International Court of Justice (ICJ), notably in the Corfu Channel case.

Nevertheless, addressing cross-border smoke pollution through ICJ adjudication encounters substantial hurdles. A fundamental requirement for ICJ intervention is the mutual consent of both the victim state and the alleged polluting state to submit the matter to the International Court. Should either party withhold consent, the prospect of ICJ involvement becomes tenuous, bearing witness to the enduring significance of state sovereignty as a guiding principle of international relations.

Beyond ICJ adjudication, alternative avenues for resolving such environmental challenges persist. The “ASEAN way,” emphasising cooperation and collective engagement, offers a diplomatic path wherein all concerned parties collaboratively monitor pollution, institute precautionary measures, and work collectively to mitigate and minimize risks. However, in cases where these cooperative measures falter or prove inadequate, transnational litigation emerges as a viable recourse. In pursuing this avenue, careful consideration of jurisdictional nuances and the potential enforcement of court decisions outside the territorial confines of the initiating country becomes pivotal.

In conclusion, the predicament of transboundary haze pollution in Southeast Asia is a potent reminder of the intricacies and complexities of addressing cross-border environmental issues. While international legal mechanisms exist, their efficacy hinges on the delicate balance between state sovereignty and collective responsibility. The road ahead necessitates a concerted effort by nations, within and beyond the ASEAN region, to forge a sustainable path towards environmental preservation, underpinned by a commitment to uphold the principles of justice and responsibility in an ever-interconnected world.

 

*Setyawati Fitrianggraeni holds the position of Managing Partner at Anggraeni and Partners in Indonesia. She also serves as an Assistant Professor at the Faculty of Law, University of Indonesia, and is currently pursuing a PhD at the World Maritime University in Malmo, Sweden. Additionally, Eva Fatimah Fauziah is  former Senior Associate in the International Arbitration and Litigation Group and also Head of Legal Lab at Anggraeni and Partners, and Sri Purnama is Head of Legal Lab.

 

Footnotes :

[1]      See, Elucidation of Law Number 24 of 2007 concerning Disaster Management.

[2]      Dinarjati Eka Puspitasari and others. ‘Pertanggungjawaban Indonesia Dalam Penyelesaian Kasus Transboundary Haze Pollution Akibat Kebakaran Hutan Berdasarkan Konsep State Responsibility’ [2007], MH UGM 471, 471.

[3]      Christopher A. Whytock, ‘Transnational Litigation in U.S. Courts: A Theoretical and Empirical Reassessment’ [2022] JOELS 4, 6.

[4]      Linda Silberman, ‘Transnational Litigation: Is There A “Field”? A Tribute to Hal Maier’ [2006], VJTL 1427, 1429.

[5]      Mochtar Kusumaatmadja and Etty R. Agoes, Pengantar Hukum Internasional, (PT Alumni, Bandung, 2003), 1-2 dalam Setyawati Fitrianggraeni , Sri Purnama, ‘Brief Introduction On Transnational Litigation: An Indonesia Perspective’ < https://www.ap-lawsolution.com/actio/brief-introduction-on-transnational-litigation-an-indonesia-perspective> accessed 17 September 2023.

[6]      Bayu Seto Hardjowahono, Dasar-Dasar Hukum Perdata Internasional, (1st ed, Citra Aditya Bakti, Bandung, 2013) 170.

[7]      Article 50 paragraph (3) d Law Number 41 of 1999 concerning Forestry.

[8]      Article 69 paragraph (1) h Law Number 32 of 2009 concerning Environmental Protection and Management.

[9]      Article 256 paragraph (1) Law Number 39 of 2014 concerning Plantations.

[10]    Article 4 paragraph (1) Indonesia Supreme Court Regulation No.1 of 2023 concerning Guidelines for Judging on Environmental Cases.

[11]    Article 2 ASEAN Agreement on Transboundary Haze Pollution

[12]    Article 3 ASEAN Agreement on Transboundary Haze Pollution

[13]    J.G Starke, Pengantar Hukum Internasional (10^th edition, Sinar Grafika, Jakarta 2006), 546

[14]    A. Heil dan J.G Goldammer, ‘Smoke-haze Pollution: A Review of the 1997 Episode in Southeast Asia’, [2001] RECJ,  24, 24

[15]    See, Elucidation of Law Number 26 of 2014 concerning Ratification of the Asean Agreement on Transboundary Haze Pollution (Asean Agreement on Transboundary Haze Pollution)

[16]    Wahyudi Soeriaatmadja and others, ‘Riau declares emergency as haze worsens’, <https://www.straitstimes.com/asia/se-asia/riau-declares-emergency-as-haze-worsens> accessed 17 September 2023

[17]    Singapore moves against Indonesian firms over haze, https://www.thejakartapost.com/news/2015/09/26/singa’pore-moves-against-indonesian-firms-over-haze.html accessed 17 September 2023

[18]    Eka Wulandarai, ‘Indonesia Haze Causes Sky to Turn Blood Red’, BBC, https://www.bbc.com/news/world-asia-49793047 accessed 07 November 2023.

[19]    Article 118 paragraph (1) Herzien Inlandsch Reglement (HIR)

[20]    Prischa Listiningrum, ‘Transboundary civil litigation for victims of Southeast Asian Haze pollution: access to justice and the non-discrimination principle’ [2019] TEL 119, 134

[21]    Ny. Sut. Girsang, Arbitrase Jilid I. (Jakarta, Mahkamah Agung-RI, 1992), 40

[22]    Ibid.

[23]    Bosni Gondo Wibowo, ‘Eksekusi Putusan Pengadilan Asing di Indonesia, Ini Aturannya’ https://www.hukumonline.com/klinik/a/eksekusi-putusan-pengadilan-asing-di-indonesia–ini-aturannya-lt4d48c7e08e001/#! Accessed 17 September 2023

[24]    MA Tolak Kasasi Presiden: Kemenangan Rakyat atas Gugatan CLS Karhutla 2015, https://walhikalteng.org/2019/07/23/ma-tolak-kasasi-presiden-kemenangan-rakyat-atas-gugatan-cls-karhutla-2015/ accessed 15 September 2023

[25]    Sri Setyaningsih Suwardi, “Penyelesaian Sengketa Internasional”, (1^st edition, UI Press, Jakarta, 2006), 23.

[26]    International Court of Justice, “How the Court Works”, <https://www.icj-cij.org/how-the-court-works> accessed on 6 November 2023.

[27]    Mieke Komar, Komariah Emong S, and others,  ‘Laporan Hasil Penelitian Kajian Hukum Terhadap Pencemaran Asap Lintas Batas di Indonesia: Rekomendasi Untuk Pemerintah Republik Indonesia’, [2016] i, vi.

[28]    MYS, ‘Hati-Hati! Indonesia Bisa dIgugat Negara Lain Gara-Gara Asap’ < https://www.hukumonline.com/berita/a/hati-hati-indonesia-bisa-digugat-negara-lain-gara-gara-asap-lt55f232171dc3e/> accessed 15 September 2023.

[29]    This principle is generally used in the common law legal system, which states that a court has the right to refuse to hear a case within its jurisdiction if there is another court that is more appropriate in trying it. For example, see the case of Aguinda v Texaco Inc.

[30]    Article 14 and 26 ICCPR.

[31]    Prischa Listiningrum, loc cit.

 

 

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