Smoke Without Borders: Malaysia's Haze Crisis, Indonesia's Responsibility, and the Failure of International Law

Environment & Sustainability Calculating...

🇲🇾 Malay

🇨🇳 Mandarin

🇮🇳 Tamil

↩️ Show Original

JoeGetz
10 Oct 2026
128
SubCategory | Climate Change

Smoke Without Borders: Malaysia's Haze Crisis, Indonesia's Responsibility, and the Failure of International Law

by JoeGetz, 10 Oct 2026

Executive Summary

Malaysia is once again choking on transboundary haze originating from Indonesia's forest and peatland fires. In 2026, this crisis has reached catastrophic proportions, with record pollution levels across the region. This analysis examines the root causes, the legal frameworks—or lack thereof—for holding Indonesia accountable, the economic and health consequences for Malaysia and its neighbours, and the potential solutions that must move beyond diplomatic platitudes. The central question is stark: should Indonesia be reprimanded under international law, and if so, how?

Part 1: The 2026 Haze Crisis — Scale and Severity

The 2026 haze season is among the worst in over a decade. Indonesia's long dry season, coupled with an El Niño event, has created conditions for fires to burn out of control across Sumatra, Borneo, and Papua. These fires—primarily caused by illegal slash-and-burn practices used by farmers and plantation companies to clear land cheaply—have sent toxic smoke across Indonesia, Malaysia, Singapore, and the Philippines.

The health toll is staggering. Between July and September, Indonesia's Health Ministry recorded nearly 175,000 cases of respiratory infections linked to the fires, including over 40,000 involving young children. In Malaysia, schools have been ordered to shut in several states as air pollution reached unhealthy levels. As of early October 2026, 38 areas in Malaysia recorded unhealthy Air Pollutant Index (API) readings, with Segamat recording as high as 189. This, has since, become much worst with certain areas exceeding 300.

The scale of the 2026 event echoes the catastrophic 2015 fires, which burned approximately 2.6 million hectares and cost Indonesia an estimated USD16 billion in economic losses. More than two decades after ASEAN first pledged to combat transboundary haze, the region is still trapped in a cycle of smoke without accountability.

Part 2: Country of Origin — Indonesia's Responsibility Under International Law

Indonesia's Legal Obligations

Indonesia is a party to the ASEAN Agreement on Transboundary Haze Pollution (AATHP), ratified through Law No. 26 of 2014. Article 3 of the AATHP requires countries to ensure that activities within their jurisdiction do not harm the environment or public health of neighbouring states, and to take precautionary measures against such risks.

However, the AATHP suffers from a fundamental structural weakness: it lacks any binding enforcement mechanism. Article 27 provides only for consultation and negotiation, with no adjudicatory body to determine whether a state has violated its obligations or what consequences should follow. As Prof. Dr. Eman Suparman of Padjadjaran University has noted, "the AATHP does not yet provide a regional judicial mechanism that affected countries can use to directly sue Indonesia".

The ICJ Route: A Dead End?

Suggestions that Malaysia or Singapore take Indonesia to the International Court of Justice (ICJ) face a fundamental obstacle: jurisdiction. The ICJ generally requires the consent of both states to hear a dispute. The AATHP contains no clause on litigation before the ICJ. Indonesia, Malaysia, and Singapore are also not parties to the 1979 Convention on Long-range Transboundary Air Pollution, the European-centred treaty framework.

Experts agree that Indonesia would be unlikely to willingly accept ICJ jurisdiction on the haze issue. Without consent, the ICJ route is effectively closed.

Customary International Law: The "No Harm" Principle

Under customary international law, states have a responsibility not to allow activities within their territory to cause significant harm to other states. This principle was affirmed in the Trail Smelter Arbitration (1938/1941) and the Pulp Mills case (2010). The 2010 Pulp Mills and 2018 Costa Rica v Nicaragua cases have been cited to argue that transboundary environmental harm should be treated as a matter of legal accountability rather than diplomacy alone.

However, applying customary international law to the haze issue is fraught with difficulty. As Prof. Mohd Hazmi Mohd Rusli of Universiti Sains Islam Malaysia has stated, "Transboundary haze does not automatically mean Indonesia is internationally responsible. There must still be sufficient evidence to establish the link between activities in Indonesia and the harm suffered in Malaysia or Singapore".

The Sovereignty Barrier

ASEAN's foundational principle of non-interference in member states' domestic affairs has consistently constrained regional responses to the haze crisis. Legal analysts note that ASEAN's emphasis on consensus and sovereignty "puts the brakes on how much diplomatic pressure can be applied to member states over domestic land management and fire enforcement". Indonesia has historically resisted external pressure, viewing haze as a domestic law enforcement issue rather than a matter of international legal obligation.

Verdict: Should Indonesia Be Reprimanded?

The short answer is yes, in principle, but not effectively in practice. Indonesia bears legal responsibility under the AATHP for failing to prevent activities within its jurisdiction from causing transboundary harm. However, the existing legal architecture provides no mechanism to enforce that responsibility. As one analysis concludes, "the most open path at present remains consultation and negotiation between countries".

This is not justice. It is diplomacy masquerading as accountability.

Part 3: Legal Ramifications — The Corporate Dimension

The Complicity of Malaysian and Singaporean Companies

A critical and often overlooked dimension of the haze crisis is the role of Malaysian and Singaporean corporations in causing the fires. Greenpeace data has revealed that a number of Indonesian plantations producing the most smog are linked to business entities based in Malaysia and Singapore.

Two specific cases stand out:

PT Damai Agro Sejahtera, affiliated with Bumitama Agri Ltd, an oil palm company headquartered in Singapore, recorded 29 haze sources in its land concession between August 21 and September 11, 2026.
PT Menteng Jaya Sawit Perdana, part of the Kuala Lumpur Kepong Group, recorded 19 haze source points over six days.

Greenpeace has urged that "regional corporate links need to be examined... to ensure ownership transparency and proper tracing of responsibility". This is not about generalising that foreign companies are the sole cause, but about ensuring that Malaysian and Singaporean companies operating in Indonesia are held accountable for their practices.

Singapore's Transboundary Haze Pollution Act: A Model with Limits

Singapore enacted its Transboundary Haze Pollution Act in 2014, allowing it to punish companies whose activities outside Singapore cause or contribute to unhealthy haze levels in Singapore. However, enforcement has proven difficult. It relies heavily on cooperation from foreign authorities, and establishing responsibility requires access to maps pinpointing fire hotspots, which can be complicated by conflicting land rights. Singapore's investigations into four Indonesian companies over the 2015 haze remain open and have been a source of diplomatic tensions.

Malaysia's Legislative Gap

Malaysia currently has no dedicated law to address transboundary haze. The Natural Resources and Environmental Sustainability Ministry is exploring legislation modelled on Singapore's approach, but no bill has been tabled. The Human Rights Commission of Malaysia (Suhakam) has recommended a comprehensive Clean Air Act covering transboundary pollution, which could hold Malaysian citizens and businesses accountable when their overseas operations contribute to haze.

Without such legislation, Malaysian companies operating in Indonesia can continue contributing to the haze with impunity.

Part 4: Economic and Health Effects on Neighbouring Countries

Malaysia: A Billion-Ringgit Burden

The economic cost of haze to Malaysia is staggering. A 2026 study estimated that toxic air imposes approximately RM298.6 billion annually in healthcare expenses and lost output—equivalent to nearly 15 per cent of the nation's per capita GDP.

The Federation of Malaysian Manufacturers (FMM) has warned that the haze could disrupt manufacturing operations, affect worker attendance, and drive up business costs. Factories are forced to purchase protective equipment and industrial air filtration systems, while open-air logistics and factory schedules are disrupted. FMM president Jacob Lee Chor Kok has stated that "clean air is not a luxury. It is a fundamental requirement for public health, economic productivity and sustainable development".

The productivity impact is quantifiable. Economist Mohd Sedek Jantan has noted that one microgramme-per-cubic-metre increase in PM2.5 concentration is associated with a 0.6% to 1.9% decline in productivity. With PM2.5 levels reaching hazardous levels across large parts of Malaysia, the aggregate productivity loss is substantial.

Health Impacts: A Public Health Emergency

The health consequences are severe and immediate. In Malaysia, the Health Ministry reported that asthma cases surged by 259 per cent and upper respiratory tract infections rose by 124 per cent between epidemiological weeks 32 and 33. Asthma cases increased from 61 to 219, while URTI cases climbed from 1,637 to 3,674.

Long-term exposure is even more devastating. A 2022 study estimated that PM2.5 from peat fires in Sumatra and Kalimantan is linked to approximately 33,100 premature adult deaths and 2,900 infant deaths annually.

Singapore: Record Pollution Levels

Singapore has also been severely affected, with the haze coinciding with the F1 Grand Prix and forcing iconic landmarks to be shrouded in toxic smoke. Singapore recorded five haze days between August and October 1, 2026.

Regional Spread

The haze has affected not only Malaysia and Singapore but also Brunei and the Philippines. Between August and October 1, haze affected Sarawak for 55 days, Sabah for 16 days, and Johor and Kuala Lumpur for 13 days each. This is a regional crisis, not a bilateral one.

Part 5: Potential Solutions — Beyond Diplomacy

Short-Term Measures: Firefighting and Cloud Seeding

Malaysia has intensified cloud-seeding operations using the Royal Malaysian Air Force and other agencies, conducting operations almost daily. Malaysia has also offered firefighting assets, including aerial water bombing, amphibious aircraft support, and cloud seeding operations to Indonesia. However (as of this writing), Indonesia has yet to formally respond to this offer, with the Department of Environment noting that assets remain on standby pending a written response from Jakarta.

Medium-Term: Strengthening Regional Cooperation

Malaysia is pushing for stronger regional coordination through ASEAN. Prime Minister Anwar Ibrahim has instructed the Foreign Minister to engage the ASEAN Secretariat to facilitate another meeting of ASEAN environment ministers focused specifically on the haze situation. Johor Chief Minister Onn Hafiz has proposed an emergency ASEAN session to jointly tackle cross-border haze.

Malaysia has also presented two proposals to Indonesia: Science Diplomacy and a Sustainable Haze Fund. These initiatives aim to move beyond reactive firefighting towards preventive and sustainable solutions.

Long-Term: Legal and Institutional Reform

1. A Dedicated Malaysian Clean Air Act

Malaysia must enact a Clean Air Act that includes provisions for transboundary pollution. This would allow Malaysia to hold its own citizens and companies accountable for overseas operations linked to fires, as recommended by Suhakam and endorsed by Greenpeace. Such legislation would reinforce public confidence that responsibility does not stop at national borders when pollution does not.

2. Reform of the AATHP

The AATHP must be reformed to include binding enforcement mechanisms. ASEAN leaders have been urged to conduct an urgent high-level review of the agreement and adopt a stronger, time-bound, and enforceable regional action plan. This should include:

Regional fact-finding mechanisms to attribute responsibility for fires
Stronger transboundary environmental impact assessments
Greater access to information and justice for affected communities
A compensation mechanism based on the "polluter pays" principle, which Malaysia recognises but which currently has no regional mechanism for implementation

3. Corporate Accountability and Supply Chain Transparency

Companies operating in Indonesia—whether Indonesian, Malaysian, or Singaporean—must be held accountable for their land-clearing practices. This requires:

Ownership transparency in plantation concessions
Mandatory sustainability certification for palm oil and pulpwood
Consumer awareness of whether products are produced using burning practices

4. Peatland Restoration and Alternative Land-Clearing Methods

Indonesia has established the Peatland Restoration Agency and strengthened fire monitoring and enforcement since 2015. However, these efforts must be scaled up significantly. Farmers and companies need alternative methods of land clearing and incentives to adopt them, while land and forest rehabilitation must be implemented.

5. A Sustainable Haze Fund

Malaysia's proposed Sustainable Haze Fund would provide financial resources for fire prevention, peatland restoration, and community-based fire management. This fund should be contributed to by all ASEAN member states, with contributions tied to historical emissions and current fire hotspot activity.

Part 6: Holding Perpetrators Accountable — A Multi-Pronged Approach

For Indonesia

Indonesia must demonstrate that it is fulfilling its AATHP obligations by:

Enforcing its own environmental laws against plantation companies and smallholders engaged in illegal burning
Sharing hotspot data and concession maps with neighbouring countries
Accepting international assistance for firefighting and peatland restoration
Publishing investigation findings on Malaysian and Singaporean companies accused of involvement in open burning, as urged by Stulang assemblyman Andrew Chen Kah Eng

For Malaysia

Malaysia must:

Enact a Clean Air Act with transboundary provisions
Investigate Malaysian companies operating in Indonesia that are linked to fire hotspots
Strengthen domestic enforcement against open burning, including by Malaysian plantation companies
Support regional fact-finding mechanisms and push for AATHP reform

For ASEAN

ASEAN must:

Review and strengthen the AATHP to include binding dispute resolution
Establish a regional compensation mechanism for victims of transboundary haze
Create a regional haze monitoring and early warning system with real-time data sharing
Hold member states accountable for non-compliance, even if it means challenging the principle of non-interference

For Corporations

Companies operating in Indonesia must:

Adopt zero-burning land-clearing policies
Disclose concession ownership and supply chain information
Compensate affected communities for health and economic damages
Invest in sustainable practices rather than externalising costs onto the public

Conclusion: The Smoke Must Clear

The 2026 haze crisis is not a natural disaster. It is a man-made catastrophe caused by illegal land-clearing, weak enforcement, corporate greed, and a regional legal framework that prioritises sovereignty over accountability.

Indonesia bears legal responsibility under the AATHP for failing to prevent transboundary harm. However, the agreement provides no enforcement mechanism, and the ICJ route is blocked by jurisdictional barriers. The result is a system where the polluter pays nothing, while the victims—millions of Malaysians, Singaporeans, and Indonesians—bear the health and economic costs.

The path forward requires legal reform at the national, regional, and international levels. Malaysia must enact a Clean Air Act. ASEAN must reform the AATHP to include binding enforcement. Corporations must be held accountable for their supply chains. And Indonesia must demonstrate that it is serious about enforcing its own laws.

Without these measures, the haze will return. The smoke will clear, but the underlying causes—the fires, the impunity, the injustice—will remain. The region cannot afford another decade of empty promises. The time for accountability is now.

Disclaimer

The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the official stance of Kritik.com.my. As an open platform, we welcome diverse perspectives, but the accuracy and integrity of contributed content remain the responsibility of the individual writer. Readers are encouraged to critically evaluate the information presented.