By: Allison Kole, Associate

The burning season in Indonesia is only a quarter of the way through, yet a haze is already choking the neighboring country of Malaysia.[1] On June 23, Malaysia’s government declared a state of emergency in two districts. Air-pollution there reached a sixteen-year high due to smoke from illegal slash and burn forest clearing for palm oil plantations.[2] This yearly practice takes place in many parts of Indonesia, but for this particular smog, Malaysia blames the burning on Indonesia’s Sumatra Island.  On June 24, the Indonesian government apologized for the pollution plaguing the region, [3] but a month after a call for action by Malaysia and Singapore, the haze continues to threaten human health.[4]

Using fire to clear land is already illegal in Indonesia, and while the country fights to put out flames, it is blaming Malaysian and Singapore-based companies for encouraging slash and burn tactics on estates in Sumatra.[5] Meanwhile, the government of Malaysia and some environmental NGOs blame a lack of enforcement on the part of the Indonesian government for the fires and resulting smog. [6] The effects of the haze led to a prompt call for a meeting of Southeastern Asian ministers.[7]

Palm oil is used in a wide array of products from biodiesel fuel to processed foods.[8] It is derived from the kernel of an oil palm and grows best in countries with high rainfall within ten degrees of the equator, often in areas with dense biodiversity.[9] For example, in Indonesia, palm oil cultivation is a formidable threat to the survival of orangutans.[10] Modern palm oil cultivation is generally characterized by large monocultures and the heavy use of fertilizers and pesticides.[11]  The demand for palm oil has skyrocketed over the last twenty years,[12] and its global success can be attributed to an overall increase in demand for global vegetable oils, the versatility of palm oil uses, and high crop yields per acre.[13] Palm oil producers have been eager to increase the role of palm oil as a source of biodiesel, and this push has even led to special exemptions in some producing country’s forest laws.[14] Malaysia and Indonesia account for roughly ninety percent of global production and trade in palm oil.[15]

This persistent and somewhat predictable[16] air pollution problem could be adjudicated or otherwise resolved in an international forum. After a similar haze crisis in the late 1990s,[17] the Association of Southeast Asian Nations (“ASEAN”), which includes Malaysia, Singapore, and Indonesia, created a treaty about this issue. [18] Unfortunately, the agreement was not ratified by Indonesia, the source of the present smog.[19] Since the creation of the ASEAN Agreement on Transboundary Haze, ASEAN has addressed the haze issue with a variety of initiatives, but it has not been enough to prevent the emergency air pollution problem facing Malaysia this summer.[20]

Alternatively, Malaysia could take a more aggressive approach.  The Malaysian government could invoke international law to compel Indonesia to curb activities within its jurisdiction that damage the environment and harm human health in neighboring countries.[21]  Perhaps palm oil’s rise to vegetable oil primacy can explain why ASEAN countries like Malaysia, which house companies that profit off of this pollution, prefer a collaborative approach rather than invoking international environmental law to force Indonesia’s hand.

There are no signs that demand for palm oil is slowing down, and a person needs only to check the ingredients of food in their cupboard or cosmetics in their bathroom to see why. There may be a place for the application of international environmental law in this smog problem; this may depend, however, on how far the wind blows beyond countries with a financial interest in the cultivation of palm oil.