KUALA LUMPUR: A proposal for Malaysia to sue Indonesia at the International Court of Justice (ICJ) over the annual trans-boundary haze is likely going to amount to nothing.
International affairs, legal and geopolitical experts feared that such legal action would also end up undermining bilateral relations between the two Asean neighbours, which were established in 1957.
Dr Oh Ei Sun, senior fellow at the Singapore Institute of International Affairs, said the ICJ operated differently from the normal court system.
“It does not work like a civil court, where you can sue somebody and the other party, whether he or she likes it or otherwise, will have to respond.
“In the ICJ, the suit can only be initiated when affected countries are member nations of the United Nations and both parties have agreed to submit to the ICJ’s jurisdiction.
“If a state party refuses to submit itself, then there is no case. Having said that, I think it is very difficult (for Malaysia) to institute a case (against Indonesia) at the ICJ,” Oh told the New Straits Times.
He was responding to a proposal by a group of medical and legal experts, as well members of a citizen’s group, who called on the Malaysian government to initiate a suit against Indonesia at the ICJ for a symbolic value of RM1, and commit to a legally-binding perpetual commitment to prevent forest fires.
Malaysia and Indonesia, Oh said, had sparred legally before the ICJ over territorial disputes involving Pulau Ligitan and Pulau Sipadan in 2002.
The ICJ, in its judgment in 2002, ruled that the islands belonged to Malaysia.
“In this case (problems related to the ongoing haze), Indonesia has vehemently denied liability and I do not see the republic submitting itself before the ICJ jurisdiction.
“Even if Indonesia submits itself to the ICJ, it does not quite work out because unlike territorial dispute, transboundary pollution is a very new area in public international law.
“It is very uncertain. It could rule one way or the other. Malaysia and Indonesia have different legal systems. Ours is common law while Indonesia adopts a system similar to European continental legacy law.
Legal expert Datuk Dr Gurdial Singh Nijar echoed Oh’s view in that there was no case if only one party to the suit consented to the ICJ’s jurisdiction.
Geopolitical expert Azmi Hassan said it would be unbecoming of Malaysia to sue a neighbouring country albeit for a symbolic RM1, since such action would result in bad blood between neighbours.
“It is a little different from the approach adopted by the Singaporean government, where the country sued individual companies and not Indonesia per se (under the Transboundary Haze Pollution Act 2014).”
Azmi said the main reason behind the prolonged haze was that the Indonesian government did not have what it takes to stop or minimise the forest fires.
“It is something that cannot be governed by law and by virtue of what has been going on for a long time. And (slash-and-burn) is the easiest, fastest and cheapest way to clear a forest for agricultural purposes. The Indonesian government does not have the resources to stop this practice.”
Azmi and Oh, however, had contradicting views on Malaysia’s move to submit a letter to the Jakarta-based Asean Secretariat to formulate a uniform trans-boundary haze pollution act as a long-term solution to the problem.
“The current agreement on trans-boundary haze is not binding. Malaysia’s intention in sending the letter is to start the process of an act that would force any Asean member to take action on haze pollution, which affects neighbouring countries.”
Oh, however, said: “Letters will be written and calls made, but we will still breathe in the haze.”