IT is mind-boggling that both Perikatan Nasional and the federal administration have said “no” to the tabling of a transboundary haze act, as revealed by former energy, science, technology, environment and climate change minister Yeo Bee Yin. 

Environmentalists have long urged Asean member states to enact their own domestic transboundary haze laws to act against companies that violate environmental laws in other jurisdictions and hence reduce episodes of the almost annual event in the region during the dry season between June and September.

The haze has been attributed to fires that are often started to clear land for agriculture, usually for palm oil and pulp and paper plantations.

Except for Singapore, no other Asean member states has enacted a transboundary haze legislation. The republic’s Transboundary Haze Pollution Act 2014 makes it an offence to cause or contribute to any haze pollution in Singapore. 

The legislation also empowers individuals and organisations in Singapore to sue those who are responsible for the pollution and who cause them to suffer economic loss.

Asean already has a framework in place – the Transboundary Haze Pollution Agreement 2002 – for cooperation and sharing resources in relation to smog, but it needs to build on the framework and enact domestic transboundary haze legislation, which would be consistent with article 3.3 of the agreement: 

“The Parties should take precautionary measures to anticipate, prevent and monitor transboundary haze pollution as a result of land and/or forest fires, which should be mitigated, to minimise its adverse effects. Where there are threats of serious or irreversible damage from transboundary haze pollution, even without full scientific certainty, precautionary measures shall be taken by Parties concerned.”

The current government must be advised that a domestic transboundary haze legislation would endorse and reinforce the United Nations Framework and the Guiding Principles on Business and Human Rights (UNGPs). The UNGPs, endorsed unanimously in 2011 by the UN Human Right Council, are the world’s most authoritative, normative framework guiding responsible business conduct and addressing human rights abuses in business operations and global supply chains. (See “Guiding Principles on Business and Human Rights: Implementing the UN ‘Protect, Respect and Remedy’ Framework”, Annex to A/HRC/17/31 2011)

States and businesses have distinct but complementary responsibilities under the UNGPs. These principles apply to all states, and all businesses regardless of their size, sector, location, ownership and structure.

Comprising 31 principles, the UNGPs are organised under three pillars – protect, respect and remedy. The three pillars define the duties of states and businesses to protect human rights. Each pillar provides a set of actionable steps to ensure the protection of human rights within the context of business operations.

Pillar 1 on “State’s Duty To Protect” specifies the state’s duty to protect human rights in the context of business operations. This requires states to set clear expectations for companies by enacting effective policies, legislation, and regulations. In doing so, states will have established that appropriate steps are in place to prevent, investigate, punish and redress adverse human rights impacts.

Pillar 2 on “Corporate Responsibility to Respect” outlines how businesses can identify their negative human rights impact and demonstrate that they have adequate policies and procedures to address them. Businesses should institute a policy commitment to meet this responsibility. Businesses should also undertake ongoing human rights due diligence to identify, prevent and mitigate human rights abuses. Businesses should also enable remediation mechanisms for the negative impacts they have caused or contributed to.

Pillar 2 underlies the importance that businesses, having a separate but related responsibility to respect human rights, (a) avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; and (b) seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Pillar 3 on “Access to Remedy” stipulates that when a right is violated, victims must have access to effective remedies, which are legitimate, accessible, predictable, equitable, transparent and rights compatible. Pillar 3 sets out criteria for effectiveness of judicial and non-judicial grievance mechanisms implemented by both states and businesses. Further, pillar 3 underlines the expectation that operational-level mechanisms should be based on genuine engagement and dialogue with the stakeholder groups whose rights they seek to remedy. (See “United Nations Guiding Principles on Business and Human Rights”)

The government must appreciate that environmental pollution is one of the most significant risks to the right to health protection, which is a human right. It has been argued that transboundary smog pollution should be taken into account and viewed together with the precautionary principle, and other separate but related international law principles set out in the UN Framework and Guiding Principles. (See Hannes Veinla, “Precautionary Environmental Protection and Human Rights” (2007) XII Juridica International Law Review 91–99)

The precautionary principle is contained in many international instruments, including Asean’s Transboundary Haze Pollution Agreement 2002, despite no uniform understanding of its meaning. Principle 15 of the 1992 Rio Declaration on Environment and Development, however, is widely recognised by States and provides practical guidance in the development and application of international law of the precautionary principle.

Principle 15 states as follows:

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

There is clearly a legal basis for a domestic transboundary haze pollution legislation. It has been at least a decade that such legislation is due in Malaysia. – October 7, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.