Abstract

This paper explores how effective the non-interference principle used in ASEAN block in dealing transboundary environmental issues over the years by giving specific case studies to help measure it. It also dives into the benefits and possible challenges in adopting stricter enforcement in addressing these issues by using penalties, subsidies, and trade restrictions based on the Polluter-Pays-Principle (PPP). Additionally, non-binding clauses in ASEAN agreements will be used as proof of the necessity of binding agreement to strengthen regional environmental cooperation. The findings suggest the possibility of disputes when countries use taxation while generating revenue for the government in deadlings with these issues. To mitigate this risk, the paper suggests a balanced policy approach, through integration in regulatory mechanisms and economic incentive to reach sustainable regional collaboration.

The Never-Ending Cycle of ASEAN Haze Crisis

Imagine, you wake up, stretch, and look out the window. Instead of a cheerful and bright morning, you are greeted with a thick haze. All of a sudden, your smile fades away as you step outside, the air feels heavy, and itches your throat. The streets are empty making it a ghost town again. The next thing you acknowledged is another 100,300 lives were taken away due to this annually transboundary haze in ASEAN (Koplitz et al., 2016).

The ASEAN Way: A Need for Changes

It is just another year of blaming games among the citizens and governments. At what point will this all stop? Scrolling through comments on online news, and seeing it again,“this is normal”, but is it? Maybe, it is time for ASEAN to take a bolder and more decisive approach to tackle the ongoing transboundary environmental issue.

ASEAN is not lacking frameworks, agreements, or policy. In fact, mark of last year, there are bunch of them including;

1. “Second ASEAN Haze-Free Roadmap (2023-2030)”
2. “ASEAN Investment Framework for Haze-Free Sustainable Land Management (AIF)”
3.  “ASEAN Coordinating Centre for Transboundary Haze Pollution Control”

These initiatives prove that ASEAN cares about transboundary environmental issues, just not strong enough. Good thing at least this implies the willingness for countries to make changes or fix their part to contribute in restoring the environment back to its best condition. However, these all share a fundamental weakness which is the lack of enforcement. This is because ASEAN seriously upholds, like an army protecting its border, to its sacred principle of “non-interference”, also known as the “ASEAN Way” .  Therefore, the next step should involve stronger initiative to see better results.

The Upstreams Countries

While transboundary haze is causing loss of lives and creating health problems, another silent crisis unfolds which is the water pollution flowing downstream due to  industrial giants, worsening ASEAN’s environmental issues. China plays a huge role in transboundary water pollution that causes downstreams countries in the ASEAN bloc such as Vietnam, Cambodia, and Thailand to suffer the consequences.

The polluted Mekong and Red Delta rivers in Vietnam are caused partially by the heavy dam construction and industrial activities in China. Another way to look at it, the upstream countries leave the downstream countries to handle alone their bad decision in polluting the environment. These rivers are crucial for the agriculture and fisheries sector in Vietnam. However, the ongoing hydroelectric among other projects has altered water flow, increasing the levels of pollution which affect the quality of the water and biodiversity.

The Mekong river is known as the rice bowl as it holds a major area for cultivating rice which is essential for the country and citizens. However, up until today, there has been no action taken to tackle this transboundary issue effectively due to lack of stricter binding-agreement among the countries. The situation mirrors what happens between Indonesia and other neighbouring countries such as Malaysia and Singapore impacted by the annual haze transboundary issue.

Ultimately, the lack of a strict binding agreement is what primarily causes transboundary environmental issues. Without a stronger, dedicated cooperation and enforcement, these issues will be harder to address when it gets worse in the future.

The Non-Interference Principle: A Challenge to Transboundary Solutions

This principle is the “modus operandi” to any diplomatic affairs between ASEAN countries. It strongly gives the privileged and recognition for the countries independently managing its internal affairs without any interference of others on the ground of maintaining its sovereignty (Molthof, 2012). With that being said, there are challenges when it comes to tackling transboundary environmental issues using it.

This can be seen when the former Singaporean prime minister Lee Hsien Loong, representing the country at his best, suggested implementation of their model of “Anti-Haze Act” across ASEAN, but could not force or make them do so. From weak government, corruption, and putting economic gains over environment protection, these are internal affairs (East Asia Forum, 2024). Other countries might have a say about this, but, what they can not do is to interfere as agreed in the “Treaty of Amity and Cooperation in Southeast Asia (TAC)” . This principle may set the boundaries between ASEAN countries, however, it also drifts apart the gap in accountability to those polluters.

The question remains - at what point can ASEAN break free from this cycle?

The Polluter-Pays Principle

In order to put an end to this cycle, ASEAN needs to make an exception to the principle when it comes to repetitive transboundary environmental issues through adopting the Polluter Pays Principle (PPP). In this principle, polluters must pay the costs of controlling and preventing the pollution they make. The main point is to ensure they are the first to pay or are responsible so they will realize and consider the costs of their actions on the environment (Organisation for Economic Co-operation and Development [OECD], 1975).

By enforcing this principle, ASEAN can create more than just empty policies and make real action to ensure those responsible for pollution take the hit rather than allowing others to suffer the consequences. However, is ASEAN ready to move forwards ?

Strengthening Enforcement: A Two-Tiered Penalty System

If they do, here is what can be done. First, ASEAN will need to refine their previous transboundary framework or agreement or create a new one. Either way, in respect of the “Polluters-Pays-Principle”, there must be elements of strong enforcement in tackling these issues. For instance, direct penalties, trade restriction, and subsidies. It will be hard to bait in countries entering into this agreement when previously they have been used to do work in voluntary faith.

Due to that, a two-tiered penalties system should be implemented based on consensus of all parties once they signed the agreement. This system allows countries to have time adjusting their local laws and policies to align with the agreement. The first layer of this system will set a stricter standardized amount of penalty to be imposed on countries with a level of GDP per Capita annually above $10,000. As for the second layer, the amount will be lower and more flexible for those with GDP per Capita below than $10,000.

Despite the World Bank Income Groups (2024) setting the benchmark of $14,000 to classify countries into either a high-income or low-income, it is more rational to set it to $10,000 in this agreement as it is regionally appropriate. Evidently, Singapore and Brunei are the only countries that achieved more than $14,000 GDP per capita in ASEAN. Consequently, there will be an imbalance in the number of countries responsible in the first tier category.

Therefore, with the lower threshold, there will be more participation among ASEAN in the first tier. Frankly, ASEAN can hold responsible those countries that actually contribute most to the transboundary environmental issues, such as Indonesia in terms of Haze. This will prevent unnecessary delays in environmental reformation by countries. Also, fairness will be ensured to those countries that are actually struggling more financially to take action. A gradual transition will be prioritised to them to keep the momentum in effect of this agreement.

This system supports several international agreements principle, “Common but Differentiated Responsibilities” such as in the “United Nations Framework Convention on Climate Change (UNFCCC) (1992)”, “Kyoto Protocol (1997)”, “Paris Agreement (2015)”, and “Rio Declaration on Environment and Development (1992)”. By taking the ability of ASEAN countries to comply such as due to financial constraint, there should be deadlines set for each layer to ensure effectiveness.

Corporate Responsibility: Extended Producer Responsibility (EPR)

During this period, the government will do what is necessary to comply with this agreement. For instance, companies and businesses registered in the country must be given notice to fix their production system that affects the environment which brings to another principle, which is the “Extended Producer Responsibility”. This principle explains that the whole life cycle of products should be held accountable completely by the producer themselves instead of putting a burden on the government to settle it (Organisation for Economic Co-operation and Development [OECD], 2024).

Lessons from Global Cases

ASEAN can adopt the Environmental Liability Directive (ELD) as a model to deal with their internal affairs when it comes to businesses or companies. There are two liabilities categories, strict (high-risk industries) and fault-based (non high-risk industries). The strict liability will automatically account for those industries even if they do not intend to pollute the environment (European Parliament, 2016).

For instance, in the AZF Chemical Factory Explosion (2001), the industry emitted toxic substances that contaminated the environment alongside causing the death of 31 people during the explosion. As a result, the company has to pay €225,000, compensate victims and do environmental cleanup (Renaud et al., 2025). The reason for this strict responsibility is to set as an example to other companies across this bloc to be more cautious to their operation.

As for the second category, it only applies when the industries  act intentionally or negligent. For example, in the case of “Italian Leather Tanneries Pollution” where small businesses were caught illegally dumping toxic chemicals into the Arno River (Italian Insider, 2021). As a result, they were fined millions of euros. With this model, ASEAN can effectively control the quality of the environment by tackling the root cause (European Parliament, 2016).

However, in pursuing fairness, the penalties should be imposed by taking the size of the companies or business and the amount of pollution they created. These penalties should be collected and saved into special ASEAN funds which can be used to help fix the problems alongside making the environment around this bloc better.

Establishing an ASEAN Environmental Court

Other than that, this agreement should be considered in establishing a centre of environmental transboundary legal dispute through adapting the “EU Court of Justice (ECJ)” where countries in ASEAN can bring up cases to this court to sue polluters mainly from other countries. There should be international lawyers specialised in this area to help the burden of proof and cooperation with other think tanks or NGOs to gather information on top of the governments involved.

Binding Agreements vs. Voluntary Frameworks

With this revised agreement, cases like the Transboundary Haze Pollution, the Singapore Oil Spill Affects Malaysia,Mekong River Pollution & Water Crisis, Marine Plastic Pollution, and Illegal Wildlife Trade Across Borders can be catered more effectively through stricter enforcement. Tracking back the behavioural pattern of full compliance by countries in ASEAN agreements and frameworks proves the ineffectiveness of non-binding clauses to tackle transboundary environmental problems.

For instance, the “ASEAN Agreement on Transboundary Haze Pollution (2002)” was created to cater to the Haze pollution issues in ASEAN (Albay, 2023). It is evident that all ASEAN countries had signed and ratified it. However, over the years, some of the countries still took this lightly in terms of enforcement. This can be seen when Indonesia among other ASEAN countries still have a weak environmental law due to less political pressure on this matter. There are also many loopholes in their laws due to ambiguity of certain terms and detailness which causes many polluters to escape from being held accountable.

However, when we look into binding agreements that involve penalties, trade restriction, and subsidies or incentives such as “EU Emission Trading System”, the compliance is more fruitful as they managed to reduce emissions by Industry plants and European powers to 47% compared from 2005 levels, as polluters companies are fined with €100 per ton of CO2 if found exceeding the limits of emission.

The two-tiered system in the agreement will not completely violate the “ASEAN Way” as the given period to adjust the countries law and policies will be completely based on the governments’ decision as long as it meets the standard range of penalties and subsidy for both of the categories.

However, frankly, penalties alone are not enough, in the EU bloc alongside with the penalties, they offer incentives and subsidies to encourage green business and compliance. For instance, According to RTÉ News (2021), the “Common Agriculture Policy (CAP)”,  with the budget €387 billion allocated for farmers’ subsidies for those who use sustainable methods such as minimal chemical methods and no deforestation. As a result, Europe is leading towards sustainable farming and emission reduction.

Moreover, denial is a new practice in ASEAN. This can be seen when Indonesia responds to the international and public outrage regarding environmental issues. For instance, in 2015, Indonesian ex vice president Jusuf Kalla said, “For 11 months, they enjoyed nice air from Indonesia, and they never thank us. They should not be complaining when it’s been hazy for one month” (The Straits Times, 2016).

This statement was given after Malaysia and Singapore complained regarding the transboundary haze issue caused mainly by Indonesia. It claimed that the haze is under control, when in reality, it is not. Additionally, Indonesia rejected Singapore’s offer to help put out fires under the Transboundary Haze Agreement (The Straits Times, 2015).

Enough for cycles of blame. It's time to call for action. There are two choices. Either we stay, or we evolve and choose to change for the betterment of our environment. Before it is too late, those in charge such as the government, Non-Governmental Organization (NGO), ASEAN have to take a braver approach where it comes with more discipline and stricter enforcement. However, their result will be worth it. The future is in our generation’s hands. Will we seize it, or trap in our hesitation.

Qarmila Qiasatina, a student of International Affairs Management at Universiti Utara Malaysia,  is an environmental enthusiast focused on sustainability and policy reformation.

References

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