State’s Responsibility over Forest and Land Fires Causing Transboundary Haze Pollution in the Frame of ASEAN Agreement

This article aims to analyze the state’s responsibility over forest and land fires causing transboundary haze pollution according to the Asean Agreement on Transboundary Haze Pollution. A normative legal method is applied to help answer the problems of transboundary pollution which has been an international concern. The impact of haze pollution resulted from forest and land fires has triggered protests against Indonesian government and urged the sate’s liability as long as the impact of the haze pollution is concerned. Forest and land fires which caused transboundary haze pollution has infilcted losses and damage not only in Indonesia but also in other Jambe Law Journal ISSN 2598-795X (online); 2598-7925 (print) Vol. 3 No. 1 (2020): 65-81, DOI: 10.22437/jlj.3.1.65-81


A. Introduction
The problem of forest and land fires in Indonesia has become an international concern due to its transboundary pollution. Somes countries protested against Indonesia for the occurrance of this problem and urge the Indonesian state to be responsible for the impacts caused by forest and land fires. Air pollution caused by forest and land fires is contrary to the principles of international environmental law. Therefore, Indonesian state has to bear responsibility over forest and land fires that have resulted in transboundary haze accross the neigbouring coutries. 1 The transboundary air pollution caused by forest and land fires in Indonesia has also taken the international attention which must be followed up immediately. Forest and land fires have caused losses not only to the country of origin of the fire but also in other countries in the form of transboundary haze pollution, sucah as Malaysia and Singapore. The haze has also lead to disruption to the environment of other countries. As it is against the principles of international law, the Indonesian state has to bear responsibility over land and forest State's Responsibility over Forest and Land Fires Jambe Law Journal, Vol. 3, No. 1 (2020) fire happen in this country.
As long as the above principles of international law are concerned, there is the principle of state responsibility. State responsibility is a fundamental principle in international law. State responsibility arises when there is a violation of an international obligation, eithor on international treaties or on international customs.
State responsibility is also fundamental for it is one of the important guidelines and gives characteristics to the existence of international law. In international law, state liability arises when a country has violated or disturbed the country's territorial boundaries directly or indirectly, while the act which harms other countries is called state responsibility. 2 International environmental law generally refers to the principles of international law including the principle of state responsibility, which requires each state to be responsible for any consequences of actions that are detrimental to other countries. The orientation of the application of these principles is not the protection of environment, but is the protection and restoration of the rights of the disadvantaged state. The existence of international environmental law means that there is a law established to maintain, control and regulate matters relating to the environment in the international realm regarding to cooperation between countries, transboundary pollution and so on. This international environmental law regulation arises when there is a necessity to regulate. 3 State activities in carrying out international relations are sometimes not free from wrongdoing. Thus, violating other countries whose actions can cause harm may result in state accountability. Therefore, discussing on the impact of transboundary air pollution, one will be related to state's responsibilities. State responsibility is a concept in international law which includes state liability. 4 In accordance with the international environmental law there is state responsibility for transboundary air pollution resulted from forest and land fires in Indonesia, which is known as responsibility and liability. Responsibility refers to the responsibilities governed by law and the concept of international law. While liability is the responsibility more pointed to in terms of compensation for losses from other parties or damage repair. 5 The responsibility of the state as one of the main principles in international law basically contains the obligation of the state which gives impact to other countries to make reparations to the injured country and recover the condition to normal.
Forest and land fires in Indonesia are a form of environmental pollution that is transnational in nature, which has caused the effects of thick haze to disrupt survival. The magnitude of the impact caused by the haze caused by forest and land fires in Indonesia, threatens ASEAN's regional stability. This makes ASEAN member countries agree to strengthen national policies and strategies to prevent and reduce forest and land fires that have an impact on the emergence of transboundary haze pollution. 6 ASEAN has taken steps and initiatives to enhance regional, subregional and national cooperation in an organized manner in an effort to make policies on transboundary environmental issues, which are focused on the problem of haze pollution. With the mutual agreement of Southeast Asian countries, ASEAN formed an AATHP (ASEAN Agreement on Transboundary Haze Pollution) with the aim of further strengthening international cooperation in developing national policies in the prevention and monitoring of transboundary haze pollution. 7 This AATHP is an agreement focusing on regulating the prevention of transboundary haze pollution as a result of forest and land fire disasters in the ASEAN region. Countermeasures are carried out with the cooperation between ASEAN member countries that have participated in ratifying the AATHP agreement. The contents of the AATHP agreement as a whole consist of 32 articles, namely regarding the provisions, description of cooperation and actions in tackling transboundary forest fires and haze disasters and also made in an appendix containing the validity and authenticity of the agreement signed by each government from ASEAN member countries. 8 Some of the contents of the agreement that form the core of the AATHP agreement include; 9 Article 3: Principles in carrying out the agreement.
(1) The principle of responsibility, to ensure that the activities carried out do not cause environmental damage and endanger human health nationally or in other countries in accordance with the UN Charter and principles in international law.
(2) The principle of cooperation and the spirit of solidarity to prevent and monitor and reduce Transboundary Haze Pollution.
(3) Prevention principle, to minimize the impact of haze.
The 3 principles contained in the AATHP as a guide for the parties to the agreement in implementing the contents of the AATHP agreement stated in Article 3, namely: 10 First, the sovereign right to exploit resources in accordance with environmental and development policies and the responsibility to ensure that activities in jurisdiction do not cause damage to the environment and endanger the health of humans from other countries or regions outside national jurisdiction.
Second, the spirit of solidarity and partnership and in accordance with the needs, abilities and situation of each of them strengthens cooperation and coordination to prevent and monitor transboundary smoke pollution as a result of forest and land fires that must be addressed.
Third, take precautionary measures to anticipate, prevent and monitor transboundary smoke pollution as a result of forest and land fires that must be addressed to minimize the adverse effects.
Another problem in state accountability, Indonesia has ratified the AATHP (ASEAN Agreement on Transboundary Haze Pollution), but Indonesia still does not use the regulation to cope with the smoke disaster as in the regulations on smoke pollution due to forest and land fires that have been regulated in the ASEAN region namely AATHP (Asean Agreement on Transboundary Haze Pollution) in 2002 what was the importance of the agreement and why Indonesia signed it. Where there is a joint responsibility undertaken by ASEAN members to prevent and monitor transboundary smoke pollution originating from forest and land fires.
Based on the description above, the importance of a problem identification is first, how is the concept of state responsibility for forest and land fires that cause transboundary air pollution in international law and second how is the state accountability for forest and land fires that causes the impact of haze that exceeds state borders in relation within the framework of the ASEAN agreement.
In connection with the identification of the problems above, this study aims to analyze and express the concept of state liability for forest and land fires that cause transboundary air pollution in international law and state liability for forest and land fires that cause haze impacts that go beyond national borders in relation to ASEAN agreement framework.

The Concept of State Responsibility over Forest and Land Fires Causing Transboundary Air Pollution
The principle of state sovereignty in international relations is very dominant. One sovereign state is not subject to another sovereign state. The state has full sovereignty over the people, goods and deeds in its territory. However, this does not mean that the state can use sovereignty at will. International law has stipulated that in a related sovereignty there is an obligation not to abuse that sovereignty. Therefore, a country can be held responsible for its actions or negligence which are against the law. 11 In their interactions with one another, it is highly likely that the state will make mistakes or violations that are detrimental to other countries, this is where the country's responsibility appears. 12 State responsibility in international law is basically motivated by the idea that no country can enjoy its rights without respecting the rights of other countries. Every violation of another country's right causes the country to fix it or in other words take responsibility for it. 13 This is actually a common thing in the legal system where violations of legally binding obligations will result in state responsibility for offenders. 14 In international law there are two kinds of rules, primary rules and secondary rules. Primary rules are a set of rules that define the rights and obligations of the state in the form of treaties, customary law or other instruments. The secondary rules are a set of rules that define how and what the legal consequences are if the primary rules 11  are violated by the state. These secondary rules are called the law of state responsibility. 15 Each country basically has the same rights and obligations in terms of state responsibilities, especially in the principles of international law, that is, all countries have the same rights and obligations to protect and protect the environment in utilizing the natural resources of their respective countries, in the principles of international law, explain that each country has sovereign rights over all available resources and is responsible for all actions taken and ensures that actions taken in managing existing resources do not cause environmental damage and endanger the health of humans from other countries or outside the jurisdiction.
Responsibility means the obligation to provide an answer which is a calculation of something that happened and the obligation to provide recovery for losses that may be caused. According to international law a state's liability arises in the event that it harms other countries. State responsibility is limited to liability for acts that violate international law. 16 For example in the case of forest and land fires that occurred in Indonesia, the impact of which is air pollution across borders and detrimental to other countries. This is based on international law Indonesia has violated the principles of international law and led to state responsibility as in Principles 21 and 22 of the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment. Principle 21: "States, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources in accordance with their own environmental policies, and responsibility to ensure that activities in their jurisdiction or control do not cause damage to the environment of other countries or regions outside the boundaries of national jurisdiction ". Principle 22: "Countries will work together to further develop international law regarding responsibility and compensation for victims of pollution and other environmental damage caused by activities within the jurisdiction or supervision of these States for regions outside their jurisdiction. The state responsibility according to international law in the event of forest fires includes: 17 a. The country's actions constitute violations of international law. b. An act / omission that violates the obligations of international law that gives birth to state responsibility and can be delegated to the state. International environmental law generally refers to the principles of international law including the principle of state responsibility, which requires each state to be responsible for any consequences of actions that are detrimental to other countries. The orientation of the application of these principles is not environmental protection, but the protection and restoration of the rights of the disadvantaged state. The existence of international environmental law means that there is a law established to maintain, control and regulate matters relating to the environment in the international realm both regarding cooperation between countries, pollution across borders and so on. This international environmental law regulation arises because there is a necessity to regulate. 18 In accordance with international environmental law there is state responsibility for transboundary air pollution caused by forest and land fires in Indonesia, which is known as responsibility and liability. Responsibility refers to the responsibilities governed by law and the concept of international law. While liability is the responsibility more pointed to in terms of compensation for losses from other parties or damage repair. 19 According to Goldie, the term responsibility indicates a stan-dard of behavior and failure to meet that standard. Whilts the term liability refers more to damage or losses arising as a result of failure to meet the standards referred to, including in this case for the fulfillment of compensation and/or recovery of the damage that occurred. According to Pinto, the term responsibility refers to the existence of a decisive indicator of the birth of a responsibility, namely a standard that has been determined in advance in an obligation that must be obeyed, as well as the birth of that responsibility, while the term liability refers more to the consequences arising from due to failure to meet these standards. 20 The responsibility of the state as one of the main principles in international law basically contains the obligation of the state which gives impact to other countries to make reparations to the injured country and restore the condition of the country concerned as before.
According to international law, state responsibility arises in the event that the country concerned harms other countries, and is limited only to acts that violate international law, if later these violations are proven, recovery efforts can take the form of satisfaction, for example an official apology, or tangible pecuniary reparation, for example by providing material compensation. 21

State Responsibility over Forest and Land Fires Causing Transboundary Haze Pollution
Indonesia has become one of the countries in a collaboration between countries in Southeast Asia which is named ASEAN (Association of South East Asian Nations). ASEAN, which is a geo-political and economic organization of the countries of Southeast Asia, was established in Bangkok on August 8, 1967 based on the Bangkok Declaration by 5 countries namely Indonesia, Malaysia, the Philip- pines, Singapore and Thailand. This organization aims to promote economic growth, social progress, and cultural development of its member countries, promote peace and stability at its regional level and increase opportunities to discuss differences among its members peacefully. 22 As fellow countries in the Southeast Asia region, Indonesia and all ASEAN member countries must obey and respect the rights and obligations among fellow ASEAN members. This is inseparable in relation to overcoming various disasters occurring in the Southeast Asian region and participating in helping to resolve disasters that occur. For example the haze disaster as a result of forest and land fires that occurred in Indonesia.
Related to the problem of transboundary smoke pollution caused by forest and land fires in Indonesia, international cooperation is urgently needed in order to increase resources to support developing countries in Southeast Asia in carrying out responsibility for forest and land fires that cause transboundary haze impacts country.
In this case the Indonesian government has ratified the AATHP (ASEAN Agreement on Transboundary Haze Pollution), namely the ASEAN Agreement on Transboundary Smoke Pollution on September 16, 2014. Major fires in 1997 resulted in transboundary smoke pollution in several ASEAN countries, so that in 2002 all ASEAN members agreed to sign the AATHP in Malaysia Kuala Lumpur, which entered into force (entry intro force) in 2003. 23 This agreement binds its member countries to cooperate with each other in preventing smoke pollution by controlling fires, establishing an early warning system, exchanging information and technology and providing assistance when needed.
This agreement is the first in the world that specifically discusses transboundary haze pollution due to forest fires. In this case as a form of responsibility of each country in maintaining the global en-vironment. The factor underlying this agreement is a shared interest in dealing with the problem of smoke pollution that occurs in Southeast Asia. 24 The ASEAN Agreement on transboundary haze pollution is ratified by Law Number 26 of 2014 which regulates the actions that must be taken by all ASEAN member countries in the prevention and handling of forest and land fires.
The AATHP (Asean Agreement on Transboundary Haze Pollution) consists of 32 (thirty two) Articles and 1 (one) appendix. The subject matter of the AATHP Agreement includes, among others, the following matters: monitoring, evaluation, prevention, preparedness, national emergency response, technical cooperation and scientific research related to land and/or forest fire control including fire fighting. 25 The purpose of forming this AATHP agreement is to prevent and monitor transboundary smoke pollution as a result of land and/ or forest fires that must be addressed, through joint national efforts and intensifying regional and international cooperation. 26 To prevent and monitor transboundary haze pollution pollution and to conduct cooperation both regionally and internationally in order to work together well and more intensively in dealing with fire smoke pollution problems.
In the AATHP state responsibility is stated in Article 3 which states that each country has sovereign rights over all available resources and is responsible for all actions taken and ensures that actions taken in managing existing resources do not cause environmental damage and endanger human health from other countries or outside its jurisdiction.
Each country basically has the same rights and obligations in terms of responsibilities, especially in the principles of international law, this can also be seen in Article 3 of the AATHP regarding the principle as previously explained that all countries have the same rights and obligations towards protecting and protecting the environment in utilizing the natural resources of their respective countries, in the AATHP the state's responsibility is stated in Article 3. As said that each country has sovereign rights over all available resources and is responsible for all actions taken as well as ensuring that actions taken in managing the resources the power does not cause environmental damage and endanger the health of humans from other countries or beyond the jurisdiction. 27 All countries have the same rights and obligations towards protecting and protecting the environment in utilizing the natural resources of their respective countries, in AATHP article 4, the general obligation of each treaty member country, obliging to cooperate in developing and implementing actions to prevent and monitor smoke pollution transboundary as a result of land fires. However, further state accountability mechanisms are not spelled out in this agreement. 28 Based on Article 4, the issue of forest fires should be the responsibility of the countries in Southeast Asia together in preventing and combating forest and land fires that cause transboundary pollution.
Article 7 of the AATHP provides that each party must take appropriate action to monitor: a. All areas are prone to fire; b. All forest and / or land fires; c. Environmental conditions conducive to forest and / or land fires; and d. Pollution smoke from forest and / or land fires.
Arrangements regarding dispute resolution under this AATHP are regulated in Article 27 regarding dispute resolution. Article 27 stipulates that any disputes between parties related to the interpretation or application of this agreement or all the protocols therein, will be resolved peacefully through consultation or negotiation in this matter related to forest and land fires that cause the impact of haze that crosses national borders.

C. Conclusion
State responsibility arises when there is a violation of an international obligation, either on international treaties or on international customs. It is an important guideline and gives characteristics to the existence of international law. In international law, state liability arises when a country has violated or disturbed the country's territorial boundaries directly or indirectly resulting in state responsibility. As long as the forest and land fires in Indonesia, the country is responsible and obliged to compensate and restore the environment based on international law based on the AATHP (ASEAN Agreement on Transboundary Haze Pollution) which regulates the distribution of responsibility and handling smoke haze pollution in the Southeast Asian region. In the AATHP, the responsibility of the state is stated in Article 3 that all countries have the same rights and obligations to protect and protect the environment in utilizing the natural resources of their respective countries.
Based on Article 4, the problem of forest fires should be the responsibility of ASEAN countries and together in preventing and tackling transboundary air pollution. Indonesia can no longer be sued because it has become the responsibility of the ASEAN countries, even though the emergence of smoke pollution originates from Indonesia. While in Article 27, AATHP resolves problems through peaceful means (non-litigation) through consultation and negotiation. Based on the case of forest fires, Indonesia received a warning and appeal. Reprimand is the same as negotiation. This effort is one of peaceful dispute resolution. International law has always considered its funda-