Singapore: Is the haze clearing for extra-territorial accountability?
First appeared in Asian Correspondent
Singapore’s Transboundary Haze and Pollution Bill that’s presently making the rounds for public consultation is one potentially game-changing initiative in the area of business and human rights in Southeast Asia. The bill contains two elements that up to now have been mere aspirations among those seeking greater accountability for environmental and human rights abuses by business in the region: it has extraterritorial reach, and is binding against companies. Prior to the tremendous environmental, health and economic impacts brought about by the forest fire haze that reached Singapore last year, few would probably have thought that a proposal this progressive in nature would come from this country.
There is little debate about the source of the thick haze that has again started to envelop both Singapore and Sumatra this year. It comes from the burning of palm oil and paper pulp forests to give way to new plantations; supposedly a cheaper and quicker method of forest clearing. The Jakarta Globe recently reported that while this burning method has been used by local farmers for generations, these local farmers are accepting payment to light fires on company plantations, reportedly providing the companies with “a screen of plausible deniability of lawbreaking.” Under the Singapore bill, parties that so much as authorize or condone these polluting practices that reach Singapore can be held civilly or criminally liable.
The draft bill creates criminal liability (fines ranging from $300,000 to $450,000) and civil liability for conduct that causes or contributes to haze pollution in Singapore. This includes parties that actually engage in the conduct, or that authorize, condone or participate in the management of parties engaged in the conduct. It also states that the proposed law will extend to acts or things outside of Singapore, which seems to mean that as long as Singapore is able to acquire jurisdiction over the persons (natural or corporate) involved, it does not matter where the act took place. While this kind of hard extra-territorial reach is neither novel nor unique as explained in a recent commentary, it is certainly not common for matters involving environmental and human rights impacts, and is a first of its kind in Southeast Asia.
A government flexing its legislative muscle and expanding its reach to protect its people and the environment is certainly a welcome sight. But the bill also raises certain questions: When will the same extra-territorial reach be imposed on home companies when the harm is not felt in the home countries, but instead in host countries where they operate? Also, what will it take for other countries to take Singapore’s lead by also writing laws of the same extra-territorial and binding character for the protection of its people?
On the first question – there are Singapore companies operating in Burma (Myanmar) that have been linked to various human rights and environmental concerns, particularly in the oil and gas sector. The same holds true for Thai companies operating in Laos; or Vietnamese companies operating in Cambodia. In our work tracking the human rights conduct of companies in the region (both positive impacts and negative allegations), we in Business & Human Rights Resource Centre have seen that there is no shortage of these kinds of cases. There are numerous situations in the region where stronger institutions in home countries could be used to discipline companies in host companies, thereby improving the human rights situation in the region overall.
On the second question – there are similar examples of transboundary impacts in the region, where states could be protecting their people against environmental harms that originate outside of their territory. For instance, studies have shown that dams constructed or planned on the mainstream of the Mekong River (spanning six countries) are and will have tremendous downstream impacts on fisheries, thereby affecting livelihood and food security. What will it take for a country like Thailand to hold Thai companies to account for their dam-building activities in Laos and their impacts on downstream Thai communities?
The factors leading to the drafting of the Transboundary Haze and Pollution Bill of Singapore present some unique elements that set it apart from the previous examples. Unlike the impacts of dam-building on food security which is gradually felt, the impacts of forest burning on air quality and health is almost instant and certainly very much felt by everyone, most especially the persons writing the laws. The pollution also reportedly cost the country a billion dollars in financial losses last year, not a negligible amount, and certainly not something it would like to lose again. If the bill is passed and actually implemented, there will be a story to be told about how extra-territorial corporate accountability can be achieved at least, for now, when it’s the right people who are wronged.