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Clearing the Air: Singapore’s Haze Pollution Law (Part 2)
- Anuja Dhoot, Kevin Chew, and Tan Ding Rui
- 3 days ago
- 6 min read
In this Explainer, find out...
What makes the Transboundary Haze Pollution Act 2014 (THPA) effective against foreign actors?
What are the legal and political implications of the THPA?
Has the THPA been effective in managing transboundary haze?
Introduction
In the first part of this Policy Explainer, we explored the mechanisms of Singapore’s Transboundary Haze Pollution Act 2014 (THPA) and the context from which it arose. In this piece, we probe further. How is it that a piece of Singapore’s domestic legislation can claim to punish haze polluters overseas? Is enforcement effective in reality, and what does this spell for Singapore’s relations with neighbouring states? Crucially, has the THPA been successful in addressing transboundary haze pollution affecting Singapore?
Enforcement Against Foreign Actors
One may expect that foreign haze polluters operating abroad could simply ignore any notices, charges or penalties meted out under the THPA. After all, if Singapore were to unilaterally enforce its laws in another country’s territory, the move would likely be seen as violating the latter’s sovereignty.
That said, some firms operating overseas could have been incorporated locally (i.e., registered as a Singapore legal entity). Such a firm would have a legal presence and some of its assets in Singapore. If the firm violates the THPA, the authorities could seize these assets, restrict its market access or issue notices to its executives residing in Singapore. Faced with the threat of these penalties, Singapore-incorporated firms have an incentive to comply with the THPA.
Companies without assets in Singapore may be less deterred. Still, executives of such companies can be charged and convicted when they enter Singapore. Investigations also publicly single out businesses, raising the cost of reputational risk. Taken together, the THPA could create a strong deterrence effect, even for foreign entities without a presence in Singapore.
Implications Of The THPA
Beyond its intended impact on transboundary haze mitigation, the THPA entails significant legal and political implications.
Legal Implications
Establishment of Extraterritorial Liability
Perhaps the most striking feature of the THPA is its extraterritorial reach. Parliament explicitly provided for this, stating that the Act extends to “any conduct or thing outside Singapore which causes or contributes to” local haze pollution. In effect, this imposes liability on errant foreign entities, Singapore-linked or not. These would include Malaysian or Indonesian companies operating in Indonesia. In environmental law, such an assertion of extraterritorial jurisdiction (i.e., a state’s legal authority to hold those beyond its borders liable) is both unusual and ambitious.
Most commonly, a country exercises jurisdiction over conduct within its own borders. This is based on the well-established “territorial principle”, which is seen as a manifestation of state sovereignty. Where the THPA targets Singapore-linked entities operating abroad, there would be little controversy. Here, Singapore can claim jurisdiction over the conduct of its nationals overseas (this is the “nationality principle” that is based on customary international law).
More contentious is the basis for the THPA’s claim of jurisdiction over the overseas conduct of foreign entities. The Government has found this basis in the “objective territoriality principle”, which can be invoked by a state when an essential element of the conduct occurs within its borders. This logic suggests that since the harm of transboundary haze is felt locally, Singapore has the right to punish those who cause such haze, regardless of the location of the haze source. Although this principle has its roots in the century-old legal reasoning of the Permanent Court of International Justice (PCIJ), it remains controversial till this day.
Critics posit that an expansive interpretation of the objective territoriality principle may undermine national autonomy. Under customary international law, more contested justifications for extraterritorial jurisdiction are typically reserved for exceptional cases. For example, the “passive personality principle” is largely limited to cases of terrorism (this principle permits a state to exercise jurisdiction over conduct where the victim is its national). Some academics say that extending extraterritorial jurisdiction to a broader range of conduct – as the THPA does to haze pollution – could unduly interfere with the sovereignty of other states.
Enforcement and Deterrence
There have also been voices arguing that even if the THPA is prescriptively valid under international law, actually enforcing it overseas would be more objectionable. A landmark judgement by the PCIJ established that extraterritorial enforcement is generally prohibited unless specifically permitted by the affected state. Without express permission, Singapore’s investigations into offending firms on Indonesian soil could infringe upon its sovereignty.
Likely due to these enforcement difficulties, there have been no convictions under the THPA to date. Even so, it is likely that there could be significant reputational harm to companies that are singled out for investigations (as discussed above). This can, in turn, still allow the THPA to incentivise compliance.
Use of Legal Presumptions
Further, the THPA includes a regime of evidentiary presumptions which has raised eyebrows among legal scholars. For instance, the Act presumes the identity of a land owner through certain maps and records. Yet, Indonesian agencies have issued maps with overlapping land use rights. This potentially makes the presumption problematic, as it obscures who should be held responsible for land deemed to be the source of haze in Singapore. As with other presumptions in the Act, the accused company may deny this but it will bear the heavy burden of proving the contrary.
Though legally thorny, some have recognised that the THPA’s presumptions are likely contextually necessary. This argument has it that it would be geopolitically infeasible for Singaporean officials to gather evidence in Indonesia. Hence, prosecutorial evidence would probably be circumstantial at best, consisting mainly of maps, satellite images and meteorological information from independent agencies. Presumptions are arguably needed to infer certain facts from existing evidence and hold errant companies accountable.
Political Implications
Reduced Dependence on Diplomatic Frameworks
Politically, the THPA allows Singapore to overcome the difficulties inherent in achieving solutions through ASEAN. Regional haze mitigation efforts have not been very successful in preventing the annual return of smoke across Southeast Asian skies. This was not unexpected, given that enforcement of the ASEAN Agreement on Transboundary Haze Pollution was sure to be tricky. ASEAN enshrines the key principles of non-interference in the internal affairs of member states and decision-making by consensus. Without Indonesia’s initiative (given Jakarta’s non-ratification up until 2014), Singapore had to look elsewhere.
Numerous international tribunals and environmental agreements have affirmed that states have a responsibility to ensure that activities within their territory do not cause damage to the environment of other states. This would mean that Indonesia owes an obligation to neighbouring countries to prevent transboundary harm arising from the burning of land and forests within its territory. Yet, it was unlikely that Singapore would risk its ties with ASEAN’s largest state to pursue action against it before international courts. So Singapore instead turned to domestic legislation to unilaterally pursue accountability from companies abroad. In this way, the THPA represents a bold move by the Government to reduce its reliance on diplomatic frameworks to achieve foreign policy goals.
Impact on Relations with Indonesia
Nonetheless, the THPA was not without its political consequences. Singapore’s investigations into several allegedly errant Indonesian companies in 2016 caused diplomatic friction between the two states. Indonesia questioned the extraterritorial reach of the THPA, threatening to review and terminate its cooperation with Singapore on environmental matters. In response, Singapore maintained that the THPA was intended to complement the efforts of other countries in holding offending companies to account.
More recently, tensions have eased. Indonesia has indicated willingness to cooperate with Singapore on controlling transboundary haze, though sovereignty remains a touchy subject.
Environmental Implications
So far, it appears that the THPA has been successful in mitigating haze pollution in Singapore. Average PSI levels have fallen since 2015 (see Figure 1 below), and haze episodes have become less severe and frequent.
Though the 2015 haze crisis followed shortly after the passing of the THPA, that did not necessarily undermine its effectiveness. The Act alone may not have changed entrenched land-clearing practices overnight. But enforcement actions taken against alleged offenders in 2015 likely reinforced the THPA’s credibility, strengthening its deterrent effect.
It could also be that the THPA pressured Indonesian authorities to renew commitments to control fires and deforestation. In 2019, Indonesian President Joko Widodo made permanent a moratorium on forest clearance. Efforts like these seem to have paid off. Large-scale deforestation on the archipelago nation has shrunk in recent years.
That said, other factors still strongly influence haze pollution. Wetter-than-usual climate conditions in the 2020-2023 period suppressed land fires and brought clearer skies to Singapore. The pandemic-era economic slowdown also disincentivised companies from burning forests to make way for plantations. The drop in haze pollution levels may not thus be solely attributable to the THPA. Nonetheless, the law is likely to have played a part in deterring errant actors and bolstering haze mitigation efforts.
Conclusion
Would it be blue-sky thinking to believe that the THPA has settled the Southeast Asian haze issue for good? Probably. A unilateral law can only do so much when national sovereignty remains a sturdy shield against external interference, real or perceived.
Lasting respite from the haze would likely depend on earnest and effective cooperation among ASEAN neighbours. Yet, efforts so far appear patchy, hampered by tensions over sovereignty and conflicting approaches to enforcement. The region’s journey to clearing the air, then, is an unsettled one which countries continue to venture on.
This Policy Explainer was written by members of MAJU. MAJU is a ground-up, fully youth-led organisation dedicated to empowering Singaporean youths in policy discourse and co-creation.
By promoting constructive dialogue and serving as a bridge between youths and the Government, we hope to drive the keMAJUan (progress!) of Singapore.
The citations to our Policy Explainers can be found in the PDF appended to this webpage.