Authored By: Dzikratul Husna
Andalas University
Introduction
In August 2026, a large scale forest and land fire in Kalimantan, Indonesia, sent thick haze cross the region and beyond national borders. In Sarawak, Malaysia, the Air Pollution Indeks reading at the Serian station (API) reached 227, classified as very unhealthy level of air quality, while several school were forced to close due to the worsening haze.[1] Forest and land fires are a recurring problem in Indonesia, often intensified by climate phenomena such as El Nino.[2] During severe episodes, including those in 1997, 2013, 2015, and 2019, the resulting haze has spread to neighboring countries such as Malaysia and Singapore, turning a domestic environmental issue into transboundary concern.
These fires are frequently associated with corporate activities, particularly in the palm oil and pulp and paper industries, where land clearing through burning may be used to prepare area for cultivation.[3] When poorly controlled, such practices can cause extensive environmental damage and generate air pollution that crosses national bordres. Indonesia has addressed this issue through national legislation, including Law Number 32 of 2009 on Evinronmental Protection and Management, while ASEAN has adopted the ASEAN Agreement on Transboundary Haze Pollution (AATHP) as a regional framework.
Despite these regulatory frameworks, significant challanges remain in holding corporations legally accountable, particularly when the resulting haze crosses national boundaries.[4] This article examines the extent to which corporations can be held legally responsible for forest and land fires causing transboundary haze pollution and determines which national or regional legal framework may legitimately apply when the consequences of such fires extend beyond the territorial boundaries of the state in which they occur.
Legal Framework
Indonesian Legal Frameworks for Corporate Liability
Coporations may be held legally liable for environmental pollution and damage in Indonesia under Law Number 32 of 2009 on Evinronmental Protection and Management. Article 88 establishes the principle of strict liability for activities that pose a serious threat to the environment. In its original formulation, Article 88 imposed liability for resulting harm without requiring proof of fault on persons whose activities involved hazardous and toxic substances (B3), generated or managed B3 waste, or posed a serious threat to the environment.[5] This principle is particularly relevant to forest and land fire cases, where establishing corporate intent or negligence may be difficult, particularly when fires occur over extensive areas and involve third parties in the management or use of the land.
However, the enactment of Law No. 11 of 2020 on Job Creation amended Article 88 by removing the phrase “without the need to prove fault.”[6] This amendment has created uncertainty regarding the scope and application of strict liability under Indonesia’s environmental law, as the provision no longer expressly establishes that proof of fault is unnecessary. This uncertainty may complicate efforts to hold corporations liable, particularly where the environmental effects of forest and land fires extend beyond Indonesian territory and affect neighboring states.[7] The removal of the phrase may weaken the distinctive character of strict liability and create greater room for fault-based considerations, similar to the general principle of unlawful acts under Article 1365 of the Indonesian Civil Code. Consequently, claimants may face greater difficulties in establishing corporate liability without demonstrating elements of negligence or intent, including in cases involving transboundary environmental harm.
Normatively, Indonesia has established several legal instruments to prevent forest and land fires and impose liability for environmental harm. In addition to the Environmental Protection Law, Law No. 41 of 1999 on Forestry and Law No. 39 of 2014 on Plantations provide relevant prohibitions and obligations concerning land management and activities that may cause fires.[8] The principal challenge, therefore, lies not merely in the absence of legal norms, but in their enforcement. Identifying the corporation responsible for a particular concession may be complicated by overlapping land ownership records, the involvement of contractors or smallholder farmers, and limited access to concession maps and related information for external parties, including states affected by transboundary haze pollution.
International and Regional Regulation
In international environmental law, the no-harm principle, derived from sic utere tuo ut alienum non laedas, requires states to ensure that activities within their jurisdiction do not cause environmental harm to other states. The principle was affirmed in the Trail Smelter arbitration and reflected in Principle 21 of the 1972 Stockholm Declaration and Principle 2 of the 1992 Rio Declaration.[9] In the context of transboundary haze pollution, this principle provides a basis for holding the state of origin responsible where it fails to prevent activities within its jurisdiction, including corporate activities, from causing environmental harm beyond its borders.
At the regional level, the ASEAN Agreement on Transboundary Haze Pollution (AATHP) was adopted in 2002 and ratified by Indonesia through Law No. 26 of 2014.[10]The AATHP requires ASEAN Member States to cooperate in preventing, monitoring, and mitigating transboundary haze pollution.[11] However, it primarily establishes a framework for inter-state cooperation and does not provide a direct mechanism for an affected state to bring proceedings against a foreign corporation.
Singapore adopts a different approach through the Transboundary Haze Pollution Act 2014 (THPA), which provides a basis for imposing liability on entities whose activities outside Singapore cause or contribute to haze pollution within Singapore.[12] The Act therefore represents an extraterritorial approach to corporate accountability.[13] Nevertheless, its practical enforcement remains dependent on access to evidence and cooperation from the state where the underlying activities occur, particularly when the alleged source of pollution is located in Indonesia.
Corporate Liability in Practice (2015 and 2026 Haze Cases)
The 2015 haze crisis provides a clear illustration of the complexities involved in establishing corporate liability for transboundary environmental pollution. Asia Pulp & Paper (APP), part of the Sinar Mas Group, was among the companies associated with the forest and land fires during the period. APP and several of its suppliers were allegedly linked to specific fire hotspots, making the potential basis for corporate liability relevant to Articles 98 and 108 in conjunction with Article 116 of Law No. 32 of 2009 on Environmental Protection and Management (Environmental Protection Law).[14] These provisions respectively address criminal liability for environmental pollution and damage, the prohibition of land clearing by burning, and the extension of criminal liability to business entities and their management. The case is also relevant to the principle of strict liability under Indonesian environmental law, which, in principle, allows liability for environmental harm without requiring fault to be established as a primary condition.
At the transboundary level, Singapore’s National Environment Agency (NEA) issued legal notices under the Transboundary Haze Pollution Act 2014 (THPA) to several companies and their directors allegedly connected to the fires, including APP and some of its suppliers. The notices required the companies to provide information concerning the fire-prevention measures implemented on their respective concession areas. However, the proceedings did not ultimately result in a fine being imposed on APP.[15] A significant obstacle was the limited access to concession data and maps in Indonesia, which were necessary to establish a sufficiently clear connection between particular fire hotspots and specific corporate entities. This demonstrates that, even where a state has a legal basis for pursuing corporations whose activities produce transboundary effects, effective enforcement remains dependent on access to evidence and cooperation from the state in which the underlying activities occur.
In response to the crisis, APP stated that, during the three years following the implementation of its Zero Deforestation policy, it had invested nearly USD 200 million in fire prevention and suppression programmes. These measures reportedly included firefighting helicopters, satellite monitoring, surveillance drones, and nearly 2,900 trained firefighting personnel.[16] However, this figure represented the company’s own reported investment and did not constitute a fine, compensation, or other sanction imposed under the THPA or through Indonesian legal proceedings. The APP case therefore demonstrates the gap between the existence of legal mechanisms for corporate accountability and their effective enforcement in cases of environmental harm extending beyond national borders.
Eleven years later, a similar pattern emerged during the August 2026 forest and land fires in Kalimantan. Hotspot data indicated a high concentration of fires in peatland areas of West Kalimantan, with smoke moving towards Sarawak in accordance with prevailing dry-season wind patterns. Singapore’s NEA again issued early warnings, but its response thus far has remained focused on monitoring and public health advisories rather than legal action against specific corporations, as occurred in 2015.[17] At the domestic level, Indonesia has continued its efforts to address the fires through firefighting operations, patrols, weather modification, and legal measures.
A comparison of the two events reveals three recurring structural issues of legal significance. First, the fires were concentrated in peatland areas, many of which are located within plantation and forestry concessions. Second, identifying and establishing a sufficiently direct connection between particular fire hotspots and the responsible corporate entities remains a major obstacle to enforcement, both domestically and across borders. Third, the AATHP still lacks a binding mechanism requiring the disclosure of concession data to states affected by transboundary haze pollution. These recurring limitations demonstrate that the principal challenge lies not only in the availability of legal rules, but also in the mechanisms required to translate corporate liability into effective cross-border enforcement.
Critical Evaluation of Corporate Accountability
The legal framework and cases discussed above reveal three interconnected weaknesses that limit the effectiveness of corporate accountability for transboundary haze pollution.
Uncertainty in the Strict Liability Regime
The removal of the phrase “without the need to prove fault” from Article 88 following the enactment of the Job Creation Law has created uncertainty regarding the application of strict liability in forest and land fire cases. The amendment no longer expressly confirms that liability may be imposed without proof of fault, potentially increasing the evidentiary burden on claimants seeking to establish corporate liability. This is particularly problematic in forest and land fire cases, where establishing a direct link between a corporation’s conduct and the occurrence of a fire may be difficult due to the scale and complexity of the affected areas.
Limitations of the Regional Framework
The AATHP provides an important framework for regional cooperation in preventing and addressing transboundary haze pollution. However, its cooperative approach does not establish a direct enforcement mechanism against corporations responsible for fires or provide an affected state with a clear legal avenue to pursue a foreign corporation operating outside its jurisdiction. Consequently, although the Agreement facilitates cooperation, including information-sharing and joint responses, its ability to ensure corporate accountability remains limited.
The Enforcement Gap in Practice
The gap between legal provisions and their practical enforcement is also evident from the cases discussed above. Despite the availability of legal mechanisms, including Article 88 of the Environmental Protection Law, establishing corporate responsibility for specific fires remains challenging. The 2015 APP case demonstrates the difficulties in obtaining sufficient evidence to link particular fire hotspots to specific corporations, while the recurrence of fires in Kalimantan in 2026 indicates that similar challenges persist.
Comparative Prespective
Different Regulatory Approaches and Their Common Limitations
The preceding discussion demonstrates three different legal approaches to transboundary haze pollution. Indonesia relies primarily on its domestic environmental regime, particularly the strict liability provision under Article 88 of the Environmental Protection Law. However, the removal of the no-fault element through the Job Creation Law has created uncertainty regarding its application. At the regional level, the AATHP adopts a cooperative approach based on inter-state coordination, information-sharing, and joint efforts to address haze pollution, but does not provide a direct enforcement mechanism against corporations or binding sanctions against non-compliant states. Singapore, by contrast, adopts a more unilateral approach through the THPA, which provides a basis for exercising extraterritorial jurisdiction over foreign entities whose activities contribute to haze pollution in Singapore.
Despite these differences, the three approaches face a similar practical limitation. The 2015 APP case and the 2026 Kalimantan fires demonstrate the difficulty of obtaining reliable information linking specific fire hotspots to particular corporations.[18] This indicates that the central challenge to effective corporate accountability lies not only in the design of the applicable legal framework, but also in the availability of evidence and access to concession-related data across jurisdictions.
Parent Company Liability as a Comparative Approach
Another potential approach can be found in the development of parent-company liability in English case law. In Vedanta Resources plc v Lungowe, the UK Supreme Court recognised that a parent company may potentially owe a duty of care for environmental harm caused by its foreign subsidiary where the parent has exercised a sufficient degree of intervention or control over the relevant activities.[19] This approach was subsequently considered in Okpabi v Royal Dutch Shell plc, concerning environmental damage allegedly caused by a subsidiary in Nigeria.[20]
This doctrine may provide an alternative avenue for addressing transboundary corporate liability where an Indonesian concession-holder is controlled by a parent company domiciled in Malaysia or Singapore. If sufficient operational control, management involvement, or oversight can be established, affected parties may potentially pursue claims against the parent company in its home jurisdiction. Such an approach could complement the limitations of the AATHP and THPA by focusing on the corporate relationship and the parent company’s own conduct, rather than relying exclusively on enforcement against the Indonesian subsidiary.
Conclussion and Recomendations
The recurring forest and land fires and resulting transboundary haze in Indonesia, including the major events of 1997, 2013, 2015, 2019, and the ongoing fires in Kalimantan in 2026, indicate that Indonesia’s existing legal framework has yet to ensure effective and consistent corporate accountability. Three principal weaknesses contribute to this situation. First, the removal of the explicit no-fault element from Article 88 of the Environmental Protection Law has created uncertainty in the application of strict liability and may increase the evidentiary burden on claimants. Second, although the AATHP provides a framework for regional cooperation, it does not establish a binding mechanism through which affected states can compel neighbouring states or foreign corporations to provide relevant information or assume liability. Third, the 2015 APP case and the 2026 Kalimantan fires demonstrate a persistent evidentiary challenge: without reliable and authoritative concession data, it remains difficult to establish a direct connection between specific fire hotspots and the corporations responsible.
Several measures are therefore necessary to strengthen corporate accountability. First, the application of strict liability under Article 88 should be clarified, either through legislative amendment or implementing regulations, to provide greater certainty regarding the absence of a fault requirement. Second, the AATHP should be strengthened by establishing clearer obligations concerning the sharing of concession and fire related data with affected states. Third, parent-company liability should be considered as a complementary mechanism where a parent company exercises substantial control or involvement over the activities of an Indonesian subsidiary. Drawing on approaches reflected in Vedanta and Okpabi, cross-border civil claims may provide an additional avenue for accountability where domestic enforcement proves insufficient. Without stronger domestic enforcement, regional cooperation, and cross border accountability mechanisms, the recurrence of transboundary haze is likely to remain a persistent legal and environmental challenge.
Reference(S):
Cases
Okpabi v Royal Dutch Shell plc [2021] UKSC 3
Trail Smelter Arbitration (United States v Canada) (1941) 3 RIAA 1905
Vedanta Resources plc v Lungowe [2019] UKSC 20
Legislation
ASEAN Agreement on Transboundary Haze Pollution (signed 10 June 2002, entered into force 25 November 2003)
Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) (adopted 16 June 1972) UN Doc A/CONF.48/14/Rev.1
Rio Declaration on Environment and Development (adopted 14 June 1992) UN Doc A/CONF.151/26 (Vol I)
Transboundary Haze Pollution Act 2014 (Singapore)
Undang-Undang Nomor 11 Tahun 2020 tentang Cipta Kerja
Undang-Undang Nomor 26 Tahun 2014 tentang Pengesahan ASEAN Agreement on Transboundary Haze Pollution
Undang-Undang Nomor 32 Tahun 2009 tentang Perlindungan dan Pengelolaan Lingkungan Hidup
Undang-Undang Nomor 41 Tahun 1999 tentang Kehutanan
Undang-Undang Nomor 39 Tahun 2014 tentang Perkebunan
Secondary Sources
Asia Pulp & Paper, ‘Fire & Haze FAQ’ (APP, 22 October 2015) <https://asiapulppaper.com/-/fire-haze-faq\> accessed 22 Aug 2026
Bernama, ‘Sarawak haze worsens as Serian API hits 227 very unhealthy level’ (Daily Express, 2026) <https://www.dailyexpress.com.my/news/286902/sarawak-haze-worsens-as-serian-api-hits-227-very-unhealthy-level\> accessed 22 Aug 2026
DHP Law Firm, ‘Perubahan Pasal 88 UU Lingkungan Hidup terkait Prinsip Strict Liability’ [Amendment of Article 88 of the Environmental Law concerning the Strict Liability Principle] (DHP Law Firm, 30 March 2021) <https://www.dhp-lawfirm.com/perubahan-pasal-88-uu-lingkungan-hidup-terkait-prinsip-strict-liability/\> accessed 22 Aug 2026
Fogarty D and Yong L, ‘El Nino’s wrath: Brace yourself for impact’ The Straits Times (2026) <https://www.straitstimes.com/asia/el-ninos-wrath-brace-yourself-for-impact?ref=top-stories\> accessed 22 Aug 2026
Greenpeace International, ‘Palm Oil and Pulp Companies with Most Burned Land Go Unpunished as Indonesian Forest Fires Rage’ (Press Release, 2019) <https://www.greenpeace.org/international/press-release/24444/palm-oil-and-pulp-companies-with-most-burned-land-go-unpunished-as-indonesian-forest-fires-rage/\> accessed 22 Aug 2026
Ritongga., J and others ‘Kedudukan Pasal 88 UU No 32 Tahun (Locus: Jurnal Konsep Ilmu Hukum, 2023) <https://jurnal.locusmedia.id/index.php/jkih/article/download/32/29/415\> accessed 22 Aug 2026
Library of Congress, ‘ASEAN; Indonesia: Regional Haze Agreement Ratified’ Global Legal Monitor (September 2014) <https://www.loc.gov/item/global-legal-monitor/2014-09-22/asean-indonesia-regional-haze-agreement-ratified/\> accessed 22 Aug 2026
Malay Mail, ‘Singapore aims to prosecute Indonesian polluters under haze law’ (10 June 2016) <https://www.malaymail.com/news/world/2016/06/10/singapore-aims-to-prosecute-indonesian-polluters-under-haze-law/1138303\> accessed 22 Aug 2026
Marlier ME and others, ‘Fire Emissions and Regional Air Quality Impacts from Fires in Oil Palm, Timber, and Logging Concessions in Indonesia’ (2015) 10 (8) Environmental Research Letters 085005
Tan AK-J, ‘The Haze Crisis in Southeast Asia: Assessing Singapore’s Transboundary Haze Pollution Act 2014’ (NUS Law Working Paper No 2015/002, February 2015) https://law.nus.edu.sg/wp-content/uploads/2020/04/002_2015_Alan-Khee-Jin-Tan.pdf accessed 22 Aug 2026
[1] Bernama, ‘Sarawak haze worsens as Serian API hits 227 very unhealthy level’ (Daily Express, 2026) https://www.dailyexpress.com.my/news/286902/sarawak-haze-worsens-as-serian-api-hits-227-very-unhealthy-level accessed 22 Aug 2026
[2] David Fogarty and Lim Yong, ‘El Nino’s wrath: Brace yourself for impact’ (The Straits Times 2026) https://www.straitstimes.com/asia/el-ninos-wrath-brace-yourself-for-impact?ref=top-stories accessed 22 Aug 2026
[3] Miriam E Marlier and others, ‘Fire Emissions and Regional Air Quality Impacts from Fires in Oil Palm, Timber, and Logging Concessions in Indonesia’ (2015) 10 (8) Environmental Research Letters 085005, 1
[4] Greenpeace International, ‘Palm Oil and Pulp Companies with Most Burned Land Go Unpunished as Indonesian Forest Fires Rage’ (Press Release, 2019) https://www.greenpeace.org/international/press-release/24444/palm-oil-and-pulp-companies-with-most-burned-land-go-unpunished-as-indonesian-forest-fires-rage/ accessed 22 Aug 2026
[5] Joni Sandi Ritongga and others ‘’Kedudukan Pasal 88 UU No 32 Tahun 2009′ [The Position of Article 88 of Law No 32 of 2009] (Locus: Jurnal Konsep Ilmu Hukum, 2023) https://jurnal.locusmedia.id/index.php/jkih/article/download/32/29/415 accessed 22 Aug 2026
[6] Undang-Undang Nomor 11 Tahun 2020 tentang Cipta Kerja [Law No 11 of 2020 on Job Creation]
[7] DHP Law Firm, ‘Perubahan Pasal 88 UU Lingkungan Hidup terkait Prinsip Strict Liability’ [Amendment of Article 88 of the Environmental Law concerning the Strict Liability Principle] (DHP Law Firm, 30 March 2021) <https://www.dhp-lawfirm.com/perubahan-pasal-88-uu-lingkungan-hidup-terkait-prinsip-strict-liability/\> accessed 22 Aug 2026
[8] Undang-Undang Nomor 39 Tahun 2014 tentang Perkebunan [Law No 39 of 2014 on Plantations]; Undang-Undang Nomor 39 Tahun 2014 tentang Perkebunan [Law No 39 of 2014 on Plantations]
[9] Trail Smelter Arbitration (United States v Canada) (1941) 3 RIAA 1905; Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) (adopted 16 June 1972) UN Doc A/CONF.48/14/Rev.1, Principle 21; Rio Declaration on Environment and Development (adopted 14 June 1992) UN Doc A/CONF.151/26 (Vol I), Principle 2
[10] Library of Congress, ‘ASEAN; Indonesia: Regional Haze Agreement Ratified’ Global Legal Monitor (22 September 2014) <https://www.loc.gov/item/global-legal-monitor/2014-09-22/asean-indonesia-regional-haze-agreement-ratified/\> accessed 22 Aug 2026
[11] ASEAN Agreement on Transboundary Haze Pollution (signed 10 June 2002, entered into force 25 November 2003); Undang-Undang Nomor 26 Tahun 2014 tentang Pengesahan ASEAN Agreement on Transboundary Haze Pollution, LN 2014 No 258, TLN No 5592; Library of Congress, ‘ASEAN; Indonesia: Regional Haze Agreement Ratified’ Global Legal Monitor (22 September 2014) https://www.loc.gov/item/global-legal-monitor/2014-09-22/asean-indonesia-regional-haze-agreement-ratified/ accessed 22 Aug 2026
[12] Transboundary Haze Pollution Act 2014 (Singapore)
[13] Alan Khee Jin Tan, ‘The Haze Crisis in Southeast Asia: Assessing Singapore’s Transboundary Haze Pollution Act 2014’ (NUS Law Working Paper No 2015/002, February 2015)
[14] Undang-Undang Nomor 32 Tahun 2009 tentang Perlindungan dan Pengelolaan Lingkungan Hidup, arts 98, 108, 116
[15] Malay Mail, ‘Singapore aims to prosecute Indonesian polluters under haze law’ (Malay Mail, 2016) https://www.malaymail.com/news/world/2016/06/10/singapore-aims-to-prosecute-indonesian-polluters-under-haze-law/1138303\ > accessed 22 Aug 2026
[16] Asia Pulp & Paper, ‘Fire & Haze FAQ’ (APP, 2015) https://asiapulppaper.com/-/fire-haze-faq accessed 22 Aug 2026
[17] David Fogarty and Lim Yong (n 2)
[18] Malay Mail (n 15)
[19] Vedanta Resources plc v Lungowe [2019] UKSC 20
[20] Okpabi v Royal Dutch Shell plc [2021] UKSC 3
