1) How does the “ASEAN style” tend to influence negotiations around transboundary haze?
The ‘ASEAN Way’ style is generally understood as the observance of the principles of sovereignty, non-interference or non-confrontation, and economic development above all. The haze is closely related to the region’s oil palm sector, with many scholars and NGOs tracing the haze producing fires to direct or indirect actions of commercial oil palm plantations. The oil palm sector is one of crucial economic importance to the countries involved, not only in terms of GDP, employment and development, but also in terms of the patron-client relationships between business (‘clients’) and government (‘patrons’) elites that has flourished within the sector. ASEAN states were pressured by civil society to act upon the haze, but at the same time also faced economic pressures from the region’s oil palm plantation sector to maintain the status quo. Therefore, states had to address both concerns from civil society and the economic elite by engaging at the ASEAN level over haze, but in a way that would maintain the status quo of privileging economic actors in the oil palm plantation sector that are close allies of the political elite. To do this, ASEAN states chose to largely adhere to the ASEAN Way in regards to haze cooperation at the ASEAN level. This adherence meant that the cooperative agreements that were produced can be seen as deliberately designed by member states to protect national economic interests and preserve state sovereignty, while deflecting responsibility on the haze issue. Instead of offering solutions to the haze problem, ASEAN efforts have served to protect the interests of the oil palm plantation sector and the well-connected elites that control it, while allowing the haze to persist. This has resulted in outcomes that were largely ineffective in curbing haze, but effective in protecting the interests of the business elites and further encouraging the unscrupulous practises of the region’s oil palm plantation industry.
For example, in the case of the ASEAN Transboundary Haze Agreement, states were compelled to ensure that the agreement, even when legally binding, still observed the national interests of the states, as opposed to the collective regional interest. Member states did this by closely adhering to the spirit of the ASEAN Way during the negotiation stages of the agreement. The resulting agreement was a highly watered down document that continued to protect national economic interests, preserve state sovereignty, and deflect responsibility on the haze issue. The final agreement has been described as vague and lacking in various hard-law instruments such as strong enforcement or dispute-resolution mechanisms through international courts or arbitration tribunals, and any dispute is to be settled amicably by consultation or negotiation. Important provisions, including those for developing preventive measures (both legislative and administrative), and a national emergency response, are left to member parties to interpret and apply. Furthermore the ASEAN style of non-confrontation meant that issues that were deemed too ‘sensitive’ were not discussed at all during negotiations. Specifically, even though there was an unspoken understanding that commercial plantation burning was the major source of haze, the issue of illegal burning by local and foreign plantation companies was never raised during discussions leading up to the agreement. The final agreement hence provided only weak legal enforcement as it relies on the cooperation of its parties through self-regulation and decentralized operations, despite being legally binding. For example, fire fighting and fire control assistance from member states could only be activated upon the request of the receiving state. This has the potential to add precious days or even weeks to the response time, within which time the haze can thicken and spread across great swathes of the region.
2) What is your reaction to Indonesia’s decision this month to sign the ASEAN transboundary haze agreement — does it represent a big shift in Indonesia’s approach to the haze problem (why or why not), and do you expect that the decision will have much of an impact on peat fires or haze incidents?
Honestly, I am very surprised at Indonesia’s decision to ratify the agreement, as after ten years of failed efforts, I was not expecting the bill to successfully go through parliament anytime soon, especially while the oil palm sector remains such an important element of the Indonesian economy. Surprisingly, it would seem like the new Jokowi leadership (and perhaps the influence of his advisor, former Minister of the Environment Dr. Sony Keraf, who has a personal interest in the ratification of the agreement, since he was a key figure during the negotiations for the agreement at the ASEAN level) was able to override or even dismantle the influence of (if not all, some) powerful patrons in the parliament, that over the years have been able to continuously block the ratification of the agreement – these actions, I believe, have been explicitly to protect the interests of their clients in the sector.