12 A Breakthrough in Solving the Indonesian Haze?


Koh Kheng-Lian1

12.1 Introduction

Established in 1967,2 ASEAN – the Association of Southeast Asian Nations – consists of 10 member States: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam.

Under the ASEAN Agreement on Transboundary Haze Pollution, 2002 (ATHP), ‘haze pollution’ is defined in Article 1 (6) as:3

smoke resulting from land and/or forest fire which causes deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment.4

In Indonesia, haze was the result of land-clearing fires for oil palm plantations; also, Indonesia farmers have practised swidden agriculture for thousands of years.5 Burning is the cheapest way to clear land. At times, the fires were exacerbated by El Niños. It should also be mentioned that in the mid-1990s, former President Suharto's Mega Rice Project to turn 1 million hectares of peat land in Central Kalimantan into rice cropland was a complete ecological disaster and the source of the haze that blanketed Singapore and Malaysia in July 1997 to May 1998.6

I might add that the term ‘haze’ was used by ASEAN as a euphemism to play down the impact of the Indonesian fires even though they had wrought disaster on health, transportation, construction, tourism, forestry, and agriculture, not to mention having an economic impact. For example, during one of the worst episodes in 1997–1998, damage to regional economies affected by the haze was US$9 billion, according to the ASEAN Secretariat.7 Also, during this episode about 2.5 million tonnes of carbon dioxide were pumped into the atmosphere.8 ‘Playing down’ the problem at the initial stages of the haze was consistent with the ASEAN Way of doing things (discussed in the next section). However, after over 12 years of almost annual recurrence,9 ASEAN's patience has worn thin.10

Much ink has flowed on the haze. This chapter will not deal with what has been written except give excerpts of the publications in relevant sections. Rather, the chapter will assess the progressive development of the role of ASEAN in dealing with the haze from the 1990s when it spilled into Indonesia's neighbouring countries – Malaysia and Singapore, the two worst hit areas. The haze had at times also affected Brunei Darussalam, Thailand, and the Philippines. The chapter will also consider the renewed vigour ASEAN in solving the haze following recurrence of the haze in 2006.

This is a timely chapter as a ‘breakthrough’ (or at least a potential breakthrough) seems to be on the horizon. Moreover, ASEAN member States, particularly those affected, are making concerted efforts with Indonesia.

12.2 Setting the stage

In understanding the approach that has so far been undertaken by ASEAN, we need to examine the ASEAN Way of doing things – or ASEAN governance. The crux of the ASEAN Way is agreement by consensus – musyawarah. It is nonconfrontational and generally typified by soft laws rather than hard laws. Of course, there are other reasons why many environmental instruments take the form of soft laws, and one might say that the ASEAN Way is no different.11 However, in the ASEAN Way, even if there is a hard law instrument, such as the ASEAN Agreement on Transboundary Haze Pollution, 2002 (ATHP), the burden of implementation, compliance, and enforcement rests with the member States, as there is no central ASEAN bureaucracy and no ASEAN judiciary to enforce the laws. There are no sanctions imposed by ASEAN should a member State fail to abide by its responsibilities under the ATHP, nor are there any monitoring mechanisms. Thus, much is left to the national level to implement the ASEAN environmental instruments.

While the ASEAN Way has served its purpose to build confidence (although at times such confidence may wane, as described later), it needs to be reviewed in light of many complicated problems that require more cohesion and legal teeth to deal with.12 The ASEAN Way is now ready to move forward to the next stage under the forthcoming ASEAN Charter. Ong Keng Yong, Secretary General of ASEAN said that ‘a certain formality based on a more legal regime will help ASEAN grow into a more effective regional organization’.13

It has been suggested by the Eminent Persons Group that for a more effective decision-making process, ASEAN would as a general rule proceed on consultation and consensus, especially in ‘sensitive areas’.14 In other areas, if consensus cannot be achieved, decisions may be based on a simple two-thirds or three-quarters majority. Would the haze be a sensitive area, as it may involve questions of corruption, current land use, and concessions given by the Indonesian government to palm oil companies that slash and burn the forest to make way for palm oil plantations? If it is a sensitive area, it would mean that ASEAN is not able go ahead with decisions on a majority vote to deal with such issues. Yet this is an area in which ASEAN should push ahead, particularly in compliance and enforcement, and also in persuading Indonesia to ratify the ATHP.

More recently, Singapore's Deputy Prime Minister, S. Jayakumar,15 envisaged that there will be sweeping reforms in the forthcoming charter. These would include recommendations that could overcome current problems of implementation and compliance. He said there could also be ‘sanctions’, although the word itself may not be used. He also said that ‘while consensus can be retained for more critical, sensitive areas like the foreign policy and security areas,’ ASEAN must be prepared to ‘take votes by majority’ in other cases. He added that the principle of non-interference ‘should not impede ASEAN's ability to respond to major transnational events which require concerted regional efforts’ and ‘may have to be adjusted where the occasion arises.’

12.3 Evaluation of ASEAN's and Indonesia's roles in dealing with the haze from the 1990s to August 2006

Transboundary pollution was one of the common concerns of ASEAN in the 1990s, and when the haze began to spread to some of the member countries, it became the focus of some ASEAN environmental instruments. This section looks at the relevant ASEAN instruments.

12.3.1 ASEAN soft law environmental instruments relating to the haze

The Kuala Lumpur Accord on Environment and Development, 199016

There were a number of fire episodes not only in Indonesia but also in other parts of Southeast Asia in the 1980s and 1990s that led to a number of ASEAN meetings and regional workshops on transboundary pollution. The issue was first brought up in the 1990 Kuala Lumpur Accord on Environment and Development at the 4th meeting of the ASEAN Ministers Meeting on the Environment (AMME). The meeting agreed to initiate efforts leading towards concrete steps pertaining to the harmonization of transboundary pollution prevention and abatement practices. The Accord was adopted by the ASEAN Ministers for the Environment on 19 June 1990.

Singapore Resolution on Environment and Development, 199217

The next significant policy harmonization on forest fires was reiterated in the Singapore Summit under the 18 February 1992 Singapore Resolution on Environment and Development, where it was mentioned that to promote regional co-operation towards sustainable development, the members agreed to harmonize policy directions and step up operational and technical co-operation on environmental matters such as transboundary air pollution and forest fires.18

ASEAN Cooperation Plan on Transboundary Pollution, 1995

The haze recurred in 2004 with worsening effects and for the first time spread to Malaysia, Singapore, and the Philippines. An AMME meeting was held on 26 April 2004 at Bandar Seri Begawan, Brunei. The Bandar Seri Begawan Resolution on Environment and Development, 1994 was adopted. Several subsequent meetings were held.

In Singapore, on 27 September 1994, the then all-time high of 153 on the Pollutant Standards Index was recorded due to the haze.19 This was the worst in Singapore, and it led to the establishment of an interministrial task force on the haze. The experience of the other ASEAN countries affected by the haze had earlier led to the ASEAN Meeting on the Management of Transboundary Pollution in Kuala Lumpur from 14 to 17 June 1995.20 Canada, one of the Dialogue partners, also presented a Country Report on Canada, as it has a history of managing transboundary air pollution issues on a bilateral and global level.21

It is in the nature of things that it takes a real or impending disaster for countries to react. So ASEAN took the first step in drafting the Cooperation Plan on Transboundary Atmospheric Pollution (ACPTP) after the September 1994 fire episode. At this meeting, a number of ASEAN member States – namely, Indonesia, Malaysia Thailand, Singapore, and the Philippines – presented their country reports on the subject, and the ACPTP was drafted. It reflected a significant milestone in ASEAN environmental cooperation and a common resolve to address the problem. The following were the objectives and strategies:

The strategies that were recommended were both short-term and long-term.

The best short-term strategy was to prevent anthropogencially induced forest fires, especially in land-clearing activities in timber and agricultural estates and transmigration projects. The following measures should be undertaken:

As a long-term strategy, zero-burning practices and technologies that would result in pollution reduction should be promoted in all economic sectors through attractive financing by lending agencies. The longer-term measures also included awareness-building efforts to eliminate the use of fire in land-clearing activities, as well as introducing improvement of land-clearing activities through economically sound and environmentally friendly methods in agriculture. Areas susceptible to spontaneous outbreaks of fire, such as coal beds and peat fields, should be developed to enable investments in appropriate activities.

The ACPTP recommended the following activities be undertaken:

Under the ACPTP, the National Focal points consisted of the various environment agencies of the then six ASEAN member countries. It also consisted of regional institutions such as the ASEAN Specialized Meteorological Centre, the ASEAN Institute of Forest Management, the ASEAN Working Group on Forestry, the ASEAN-EC Joint Consultative Committee's Sub-Committee on Forest, and the Brunei-Indonesia-Malaysia-Philippines East ASEAN Growth Areas Sub-Committee.

In September 1995, during the Sixth Meeting of the ASEAN Senior Officials on the Environment, the Haze Technical Task Force was established to operationalize and implement the measures recommended in the ACPTP. Its tasks included demarcation of critical areas of land and forest fires, identification of critical periods for occurrence of smoke haze, monitoring and reporting on the status of projects relating to the management, and control of transboundary haze pollution involving international and developed countries.22 The haze is a sub-regional issue within ASEAN, involving only some member States. It was handled, therefore, by a Task Force rather than through the ASEAN-wide working group format. The format took some time to evolve. Forest fire management and abatement of air pollution resulting from these forest fires requires co-operation from Indonesia, Malaysia, Singapore, Brunei, the Philippines, and others. Success in co-operation can only be achieved if Indonesia does not deem it as interference in its domestic affairs.

12.3.2 ASEAN Regional Haze Action Plan, 199723

In 1997, there was a severe recurrence of the haze. The ASEAN member countries decided to take more effective and concerted action to prevent and mitigate such disasters, given the significance of the social, economic and environmental impacts of transboundary atmospheric pollution in the region. The Haze Technical Task Force undertook concerted efforts to finalize a response strategy in the form of the Regional Haze Action Plan (RHAP). The RHAP was completed in December 1997 and endorsed by the ASEAN Ministerial Meeting on Haze held in Singapore from 22 to 23 December 1997.24

The main objectives of the RHAP are to:

To achieve these objectives, RHAP sets out co-operative measures at national and regional levels to combat the haze. The national plans recommended include:

Other action plans recommended by RHAP included monitoring mechanisms by relevant ASEAN meteorological service and environmental agencies to improve communications and enhance the effectiveness of existing early warning and monitoring system. Also, national and regional land and forest firefighting capability would be strengthened.

The ASEAN Ministers requested the Asian Development Bank (ADB) to finance the RHAP. The implementation of the RHAP had the support of some 26 international organizations. The ADB responded by providing an ADB Regional Technical Assistance grant for strengthening ASEAN's capacity to prevent and mitigate transboundary atmospheric pollution. ADB and ASEAN arranged co-operation and assistance with many international and regional organizations as well.25

12.3.3 ASEAN Agreement on Transboundary Haze Pollution, 2002

The next step ASEAN took was to develop a hard law instrument: on 10 June 2002, the ASEAN member States adopted the Agreement on Transboundary Haze Pollution.26 The ATHP was specifically targeted at the haze in Indonesia, even though it was for general application in all ASEAN States. It entered into force in 25 November 2003 with the ratification of seven ASEAN member States, (Brunei, Laos, Myanmar, Malaysia, Singapore, Thailand, and Vietnam). Indonesia, which has caused the forest fires, has not as yet ratified the ATHP, nor have Cambodia and the Philippines. The ATHP is a back-to-back environmental instrument with RHAP and provides a mechanism for its implementation.

Under the ATHP, each State agrees to undertake individual and joint action to assess the origin, causes, nature, and extent of land and/or forest fires and the resulting haze. They also undertake to prevent and control the sources of such land and/or forest fires and the resulting haze by applying environmentally sound policies, practices, and technologies and to strengthen national and regional capabilities and co-operation in the assessment, prevention, mitigation, and management of land and/or forest fires and the resulting haze.

Article 7 requires each Party to take appropriate measures to monitor all fire-prone areas, all land and/or forest fires, the environmental conditions conducive to such land and/or forest fires, and haze pollution arising from such land and/or forest fires.

Parties must also develop strategies and identify, manage, and control risks to human health and also national emergency response by developing legislative, administrative, and financial resources to mobilize equipment, materials, and human resources.

Article 9 requires each Party to undertake measures to prevent and control activities that may lead to transboundary haze pollution.

An ASEAN Co-ordinating Centre for Transboundary Haze Pollution Control is to be established under Article 5 to monitor, assess, prevent, and put in place national emergency plans. Each Party must designate one or more bodies to function as National Monitoring Centres to undertake monitoring and to communicate to the Co-ordinating Centre. In the event of emergency, each Party must initiate immediate action to control or put out the fires.

Like most global and regional environmental treaties, the ATHP is a framework agreement. It provides only general principles and guidelines. The Parties are under an obligation to develop their legislative, administrative, and financial resources. Parties are also to provide sanctions under Article 9, which deals with ‘prevention’. At the subregional level, however, ASEAN cannot sanction Parties if they fail to comply with its provisions. Perhaps the forthcoming ASEAN Charter27 may provide for some of the current gaps in ATHP and give it more teeth to strengthen its role in solving the haze.

12.4 An evaluation – the ASEAN and Indonesian levels

Before discussing the potential ‘breakthrough’ in solving the haze, let us note the progressive efforts ASEAN made. These include plans, programmes, strategies, resolutions, and declarations to keep up with the progress and, finally, the development of a hard law instrument, the ATHP. Was the progress too slow? For progress to be made, it is vital that Indonesia's efforts are in sync with those of ASEAN and vice versa. Indonesia has not even ratified the ATHP for which it was formulated. While ASEAN's efforts could have been more effective in terms of the scoping of the ATHP, nonetheless, the haze issues are very complex and involve a mix of political, economic, and sociocultural dimensions. While it was clear that cooperation was needed, it was not clear how this could best be done the ASEAN Way.

Criticisms of the ASEAN Way are not altogether justified. As earlier noted, it had a positive role to play in confidence building in its formative years and thus applies throughout the other ‘pillars’ of ASEAN – namely, the security community (political), the economic community, and the socio-cultural community (which includes the environment). This is vital even before ASEAN could co-operate or collaborate. Its usefulness in formulating policies, plans of action, programmes, and strategies across the region should not be overlooked.28

In the future, things will not remain the same, as ASEAN is now developing an ASEAN Charter that will give more legal teeth to implementation and compliance. Having said that, and until the next major change in ASEAN's governance, it did not help that there is no central bureaucracy to impose sanctions on a member State that fails to meet its obligations, even though the ATHP is a hard law instrument. (In any case, Indonesia has not ratified it.) Some critics pointed to the inefficacy of soft laws over the ATHP to deal with the haze. It is submitted that the dichotomy between soft and hard laws is not always critical to implementation and compliance. As pointed out by Edith Brown Weiss in her Introduction to International Compliance with Nonbinding Accords, ‘[w]hile countries have long relied on binding legal instruments or binding rules of international law, nonbinding legal instruments are an increasingly important source of international law’.29 In an earlier article, Weiss observed:30

How we make, implement, and comply with international law has been changing ...traditional model centers on states, relies on legal instruments to provide fixed solutions to clearly defined problems in a world that changes slowly,... The line between international and national law is sharply drawn, and there is a strong preference for binding agreements. But the world is moving to a dynamic, more open and complex system. ...

The new model is a network of states, intergovernmental organizations... intricately connected through binding and nonbinding or incompletely binding instruments and associated institutions. [emphasis added]

I would add that implementation of and compliance with international law or, in our case, the implementation and compliance of ASEAN (subregional) soft and hard law instruments by a member State may depend on other factors, as will be seen in the latter part of this chapter. In our case study, these have included the dynamics between Indonesia and Singapore relating to a ‘package deal’ of issues that may not be related to the haze problem; funding to carry out the implementation; and manageable schemes, such as ‘adopting a district’ by a particular member country for ground-level performance.

All in all, implementation and compliance are complex and involve a network of players such as States, international organizations, the private sectors, nongovernmental organizations (NGOs), and others. These players are dynamic and have blurred the demarcation between soft and hard laws that Weiss observed. It also requires confidence building if member States are to deal with one another – in the case of ASEAN, the fragile relationship of member States has reared its ugly head from time to time. This has taken quite a toll in finding solutions for the haze problem. To top it all off, misunderstandings, inadequate knowledge of the implications of environmental instruments such as the doctrine of sovereignty, and ‘non-interference of domestic affairs’ have added to finding a solution to the haze problem. However, after over a decade, a breakthrough seems to be on the horizon.

In the meantime, the internal problems of Indonesia that have hitherto stood in the way of a solution will be listed, as they are well documented and so will not be dealt with here. These include:31

At the bottom line is hard economics – there is a global demand for palm oil products from the world community. Unless the buying stops, the palm oil industry will continue. It is not realistic to stop the sale of palm oil products. The reality is therefore to have a sustainable palm oil industry. One way is to have eco-labelling of products. This was not addressed in the ADHP or other instruments.

12.5 Breakthrough in solving the haze: from August 2006?

The recurrence of the haze from August to November 2006 seems to have worn out the patience of ASEAN and the member States affected by its yearly recurrence over the last 15 years. There has been a renewed and vigorous attempt on the part of ASEAN and even Indonesia to take positive steps to deal with the haze. Indonesia's President Susilo Bambang Yudhoyono apologized and assured ASEAN that it would soon ratify the ATHP.36 In the meanwhile, he said that Indonesia has taken and would also be taking the following steps:37

Other measures suggested by the Environment Minister, include:

Environment Minister Witoelar stated: ‘Indonesia hopes to end haze within two years: We expect to have a decrease of 30 per cent to 40 per cent of happenings there.’41 For 2007, he said that Indonesia hoped to reduce the annual incidence of forest fire by half.42 It was also reported by Singapore's Minister of the Environment and Water Resources, Dr Yaacob Ibrahim, that Indonesia had budgeted 700 billion rupiah (S$110 million) a year for its national fire plan. He said its plan to halve the number of hotspots was commendable.43

Despite President Susilo Bambang Yudhoyono's assurance, the Indonesian Forum for the Environment (WALHI), an NGO, is of the view that the government does not have the political will to stop companies from exploiting the country's national resources.44 So much for the dynamics of politics, which can be unpredictable!

12.5.1 Cebu Resolution on Sustainable Development, 2006: Haze

At the 11th ASEAN Ministers of the Environment meeting in Cebu held from 9 to 11 November 2006, the haze was discussed extensively.45 The Preamble to the Resolution was emphatic in dealing with the haze:

At the Cebu meeting, Environment Minister Witoelar discussed an action plan for Indonesia that would include the following:

Dr Raman Letchumanan, head of ASEAN Secretariat's Environment and Disaster Management Unit, said, ‘it's very clear from the presentation and their action points that they have a very targeted immediate goal – certainly there is a greater commitment here’. But what remains to be seen is how the plan translates into action, he added. Lee Yuen Hee, chief executive officer of Singapore's National Environment Agency, described the discussions as comprehensive and noted that the plans were a good basis to solve the problem.46

12.5.2 Action plans for ‘fire-prone’ districts

Following the November Cebu meeting, which discussed adopting fire-prone districts,47 the 12th AMME on haze held at Bandar Seri Begawan from 28 February – 1 March 2007 in Brunei further developed the concept.

At this meeting, it was noted that Indonesia had made great progress and had drawn up a comprehensive Plan of Action to deal with land and forest fires, which included actions at the national level and local level. The meeting also expressed satisfaction at the highest level of support shown nationally and the significant progress made in implementing the Plan of Action, which included:48

The Ministers also noted that Indonesia had set a target to reduce the number of hotspots by 50 per cent in 2007 in forested areas. In addition, Indonesia mobilized about 700 billion Rupiah to implement its Plan of Action especially for prevention and suppression.

The Ministers demonstrated full commitment to assist Indonesia in the implementation of its Plan of Action. In particular, Singapore is working with the Ministry of Environment of Indonesia and the Provincial Government of Jambi to develop and implement a Master Plan for the Muaro Jambi Regency.49 The plan includes a series of programmes such as fire prevention and suppression; legislation and enforcement; early warning and monitoring; regional and international collaboration; and training farmers not to use slash-and-burn. It also provides farmers with water pumps and other equipment, implementing a fire danger warning system. It will reward farmers who do not practise slash-and-burn with free fertilizers and seeds. This self-help system involving farmers and other members of the community can be very effective in forest fire management.50 If the plan is successful, it will be replicated elsewhere. Malaysia indicated that it will assist Indonesia with capacity building by undertaking a number of projects, including working with plantation companies to implement zero burning practices and other preventive measures.

Singapore will work in tandem with Indonesia's national fire plan. The measures will be managed by the Jambi government together with the ‘plantation owners and the kampungs’.51 The plan was expected to be in place by the second half of 2007.

The number of meetings held over the last few months to discuss the Plan of Action bear testimony to a concerted effort to make a breakthrough. Also, dividing fire-prone areas into 35 districts for action plans and the adoption of each district by various member States or organizations make it more manageable to deal with the situation.

12.5.3 ASEAN Haze Fund

In the past, combating the haze has been much hampered by the lack of funds. One of the areas discussed at the 11th ASEAN Meeting in Cebu was the ASEAN Haze Fund. At its 12th AMME meeting, in Bandar Seri Begawan, Brunei, from 27 February to 6 March 2007, the Ministers discussed strategies to encourage contributions to the fund from other countries, organizations, and the private sector. At the 2nd ATHP COP meeting, the Ministers adopted the Financial Rules for the ASEAN Transboundary Haze Pollution Control Fund and agreed to establish the fund by providing an initial target amount of US$500,000.

Indonesia, Brunei, Singapore, Malaysia, and Thailand kick-started the establishment of the haze fund, with Indonesia and Singapore committing an initial US$50,000 each.52 These contributions are on a voluntary basis. Other ASEAN countries are also expected to make contributions. ADB estimated around US$60 million a year will be needed for fire prevention and control, including providing incentives to farmers to abandon slash-and-burn land clearing.53 But with the current US$150 million plan, it expected to halve the incidence of forest fires in 2007.54 It is significant that although Indonesia has not ratified the ATHP, the other member States have raised funds under the ATHP to deal with the haze.

12.5.4 Establishment of an ASEAN Environmental Taskforce?

During the Cebu meeting, a subregional ministerial steering committee made up of ministers from the five affected countries was created to oversee the implementation of concrete actions to address land and forest fires that resulted in transboundary haze pollution and to work together in enforcing environmental laws in the region. The Philippines introduced the idea of setting up a network among ASEAN member-countries for a more effective implementation of environmental laws at both the national and regional level. Should a Southeast Asian regional environmental task force be established? This question was mooted. Such a task force could establish a system of collaboration and capacity building, as well as exchange of technology, experts, training, information, and data.55 This will consolidate the earlier Taskforce on Haze.56

12.5.5 The ‘Heart of Borneo Forests’ transboundary collaboration: keeping the haze at bay

Three ASEAN member States – Indonesia, Malaysia, and Brunei – share the natural resources from Kinabatangan to Sebuku Sembakung, covering some 2.5 million hectares. These include palm oil plantations. These member States have initiated the Heart of Borneo (HOB) Conservation Plan, which was endorsed by ASEAN at the 11th ASEAN Summit, held in Kuala Lumpur on 12 December 2005.57 The plan is to protect biodiversity in the HOB, linking five protected areas and six forest reserves (each of the three states owns parts of the area). The WWF-Indonesia and the International Tropical Wildlife Organization are providing technical assistance at the national level to support the protection and sustainable development of the forest under this plan. The United States donated US$100,000 for the project (as that country is one of the Dialogue Partners of ASEAN).58 The plan would help to keep the Indonesia haze at bay or prevent it from worsening. It was signed by the three countries as the Heart of Borneo Declaration on 12 February 2007.59

12.5.6 A Turn of Events Affecting Solution of Haze?

On 20 October 2006, the Prime Minister of Singapore, Lee Hsien Loong, decided to raise the haze issue at the United Nations General Assembly in order to seek assistance, as resources were needed and also enforcement.60 He approached the Indonesian representatives to issue an ASEAN statement on the haze in order to get assistance from the UN family. However, Indonesia's representative, Adiyatwidi Adiwoso Asmady, stated that the haze was a domestic problem and Indonesia did not want any interference with its domestic affairs. Asmady characterized Singapore's call for international assistance as ‘badgering.’ She said:61 ‘It is tantamount to interference in the domestic affairs of Indonesians’. She even suggested that there might be ‘some malice’ behind Singapore's statement to the UN. She then mentioned that there were other ‘issues related to environmental degradation that also needed to be addressed – such as sand mining’. She went on to say that Singapore should ‘cease to give protection, safety and sanctuary for corruptors and their ill-gotten wealth’.

Many regarded these remarks as quite a ‘startling reaction’, viewed objectively. In an article entitled ‘Haze: Why Jakarta should accept international help’, Janadas Devan,62 after recounting what was said by Asmady, said, ‘All this merely for suggesting that the haze is a staggering problem, that Indonesia and ASEAN cannot cope with it themselves, and that international assistance is urgently needed?’ Devan compared the tsunami disaster, when Indonesia had no difficulty accepting assistance from the international community. He pointed out: ‘The haze is a man-made catastrophe, for which many Indonesians can be blamed. Though its ‘scale and severity’ are such that Jakarta cannot solve the problem without international help, some Indonesians find it difficult to accept that fact.’ Subsequently, on 23 January 2007 Indonesia banned the export of sand to Singapore. It will be recalled that ‘sand mining’ was mentioned at the UN by Asmady.

Subsequently, it became clear that Indonesia was using the ban to put pressure on Singapore to sign an extradition treaty to bring to justice Indonesians who were smuggling sand into Singapore and also seeking the return of some of its citizens for tax evasion and fraud.63 Indonesia again emphasized that sand mining in Indonesian islands had caused environmental degradation and also affected its maritime boundaries. Singapore's response was that the price of sand had been factored such that some proceeds of sale were ploughed back into environmental reconstruction. As to maritime boundaries, Singapore assured Indonesia that its reclamation works (using Indonesian sand) would not affect the boundaries. It also said that the extradition treaty was being worked out.

This controversy underlines the fact that solving the haze problem is not easy and may be linked with other issues that have nothing to do with the haze but that have to be dealt with as a package deal. Subsequently, it was reported in The Straits Times on 21 February 2007 that Indonesia backtracked on the claim that the ban on sand exports to Singapore was linked to the extradition treaty but maintained that the reason was to prevent future damage to the environment. However, it is not altogether clear whether this is the real reason.64 Was it Singapore's delay on the extradition treaty?65 The controversy is still continuing at the time of writing.

It should be noted that the Singapore Prime Minister's call for assistance from the UN family is not out of turn, as Article 2 of the ATHP specifically mentions that the objective is to prevent and monitor the ‘transboundary haze pollution’ through ‘concerted national efforts and intensified regional and international co-operation’.66 Below are further remarks on the incident.

According to the discussion blog Lushhome67:

Singapore is disappointed with Indonesia's decision. Singapore ministers had earlier raised this issue with their Indonesian counterparts, and expressed Singapore's preparedness to work with Indonesia to address their concerns. We regret that Indonesia did not take up our offer to address those concerns.

The Indonesian stance has come as a surprise.

This is because Singapore, which is almost entirely dependent on land sand imports from Indonesia, is one of the biggest foreign investors in Indonesia. As part of the warm bilateral ties, the Singapore government has led efforts to help set up Special Economic Zones in the Indonesian Riau region to help Indonesia woo other foreign investors.

The ban came at a time when Singapore's construction industry is booming. This has led to some thinking that the politics of envy may be behind the reason, as Singapore is forging ahead with its construction industry, including its integrated resorts. Singapore's PM Lee Hsien Loong remarked: ‘Our integrated resorts won't look as beautiful as they ought to.’68

Indonesia's displeasure was also voiced by its Industry Minister, Fahmi Idris:69

Indonesia's Industry Minister Fahmi Idris is still upset at Singapore's decision to raise the haze issue at the United Nations General Assembly last month.... To register his protest at the move, Mr Fahmi boycotted a meeting of the Indonesia-Singapore joint steering committee on the Batam, Bintan and Karimun special economic zones, ‘according to Antara news agency.’ I did not attend the meeting in protest of Singapore's step to table the haze issue at the UN General Assembly, though Singapore has previously agreed to tackle the problem at ASEAN (Association of ‘South-east Asian Nations) level,’ said Mr Fahmi, who stayed away from last Friday's meeting.

The Indonesian Minister accused Singapore of not upholding the spirit of cooperation among ASEAN member countries. He said:70

As a Cabinet minister, I also feel offended by Singapore's statement at the General Assembly that the (Indonesian) President, his ministers, the House of Representatives and the provincial administrations are not solid in tackling the spread of the haze.

If Indonesia's banning of sand to Singapore is connected with the Singapore Prime Minister's call for international assistance in solving the haze, this may have wide implications on the haze breakthrough. It puts a damper at the dawn of a breakthrough in solving the haze. In environmental law, much depends on political will, and the law is on the back burner if political sensitivities rule the day. The call for internationalizing was not intended to put the blame on Indonesia for the haze. The Second Foreign Minister of Singapore, Raymond Lim, had earlier stressed that there is ‘no reason for the haze problem to affect relations between the two countries’.71 Lim explained that Singapore had to make a statement at the UN because the haze problem had global implications. It was driving away foreign investors and contributing significantly to global greenhouse emissions. Singapore had urged ASEAN to make a joint statement, but the Indonesian representative in the UN did not want the haze issue mentioned at all, added Lim. He said:

We made a factual statement which acknowledged the commitments and efforts made by Indonesia and other countries: Our statement also aimed to present a comprehensive and balanced appraisal of the issue, including pointing out some of the more problematic issues that remain.72

However, Indonesia's Asmady point was that ‘[w]here there is already a bilateral and regional arrangement for addressing a problem, let us make full use of them instead of misusing the UN forum in a frenzy of naming and shaming’. Singapore assured Indonesia that Singapore raised the matter at the UN not to shame its neighbour but to mobilize international support that was needed. Also, the matter could not be glossed over in a debate on environmental issues at the United Nations without a serious loss of credibility to ASEAN.

Singapore felt strongly that the ASEAN countries had to identify and address this serious, long-term environmental problem in Southeast Asia. In the past, many international organizations have contributed to various initiatives on the haze,73 and Singapore's attempted call for international assistance was not out of line. Indeed, as pointed out earlier, the ATHP calls for international cooperation, which includes the UN and other international organizations.

The ongoing spats do not seem to have affected the cooperation of Singapore and Indonesia on Singapore's role in the fire-prone area of Mauro, Jambi – at least for now.

12.6 Conclusion

Given the complexity and magnitude of the problem, which straddles not only law and policy but also the changing dynamics of politics, economics, and sociocultural dimensions, little wonder that it has taken over a decade to see a glimpse of a breakthrough. This glimmer has come about because the haze had gone beyond the limits of tolerance. Now there is a determination by ASEAN, followed by an apparent political will in Indonesia.

However, the coast is not altogether clear, as there may still be some storms to overcome. This is seen in the negative response of some Indonesians when Singapore tried to issue a strong ASEAN Statement at the United Nations to garner assistance from the UN family. Such unintended consequences can occur to thwart efforts. What followed from this incident was very surprising and puzzling, as witnessed by the current ‘sandstorm’ – that is, the spat over Indonesian's sale of sand to Singapore74 and the unrelated issue of the Singapore-Indonesia extradition treaty. One could say that these issues have nothing to do with Singapore trying to get assistance from the world community. However, in today's politics (including world politics), everything can be connected – national, bilateral, regional, and international relations can come in a ‘package deal’.

Be that as it may, there is reason to believe that there is a sliver lining in solving or mitigating the haze problem, as Indonesia is a member of ASEAN. Under the ASEAN Vision 2020 of 1997, the member States envision ‘clean and green environment ASEAN... sustainable development to ensure the protection of the region's environment, the sustainability of its natural resources, and the high quality of life of its people’.75

Postscript

  1. Letter Of Intent (LOI) for the Joint Development of a Master Plan and the Implementation of Agreed Activities to deal with Land and Forest Fires in Muaro Jambi Regency, Jambi: Singapore, 7 November 2007 (http://app.mewr.gov.sg/view.asp?id=CDS5838)

  2. Charter of the Association of Southeast Asian Nations (established on 20 November 2007 at the 13th ASEAN Summit, Singapore) (www.13thaseansummit.org.sg/asean/index.php/web/documents/agreements/charter_of_the_association_of_southeast_asian_nations__1)

Chapter VII: Decision-Making (Article 20: Consultation and Consensus). It provides:

  1. As a basic principle, decision-making in ASEAN shall be based on consultation and consensus.

  2. Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made.

  3. Nothing in paragraphs 1 and 2 of this Article shall affect the modes of decision-making as contained in the relevant ASEAN legal instruments.

  4. In the case of a serious breach of the Charter or non-compliance, the matter shall be referred to the ASEAN Summit for decision.

[Note: Some of the recommendations of the Eminent Persons Group on the ASEAN Charter relating to decision making, such as when consensus cannot be achieved, recommended that the decision be based on a simple two-thirds or three-quarters majority (see section 12.2). These were not accepted.]


1 Emeritus Professor, Faculty of Law, National University of Singapore and Director, Asia- Pacific Centre for Environmental Law.

2 The ASEAN Declaration (Bangkok Declaration), Bangkok, 8 August 1967, see K.L. Koh (complier), Selected ASEAN Documents on the Environment (APCEL Document Series: 1996), pp. ii–iv; www.aseansec.org/1212.htm, accessed 1 March 2007.

3 Agreement on Transboundary Haze Pollution (ATHP), at www.fire.uni-freiburg.de/se_asia/projects/ASEAN Agreement.pdf, accessed 1 March 2007.

4 Ed., in Fire, Smoke, and Haze: The ASEAN Response Strategy (Association of Southeast Asian Nations (ASEAN) and Asian Development Bank (ADB): 2001), p. 61. Before the ATHP, the term ‘haze’ was described by S Tahir Qadri as ‘the ‘dirty cloud of haze’ that gives the fire a regional or transboundary dimension and brings in the social dimension of health and safety.’

5 Ibid at xiii–xvi.

6 John McBeth, Suharto's Mega Rice Project: A Fertile Seed Springs from a Barren Plan, The Straits Times, Review, 12 April 2007.

7 Why Jakarta Should Accept International Help, The Straits Times, 4 November 2006.

8 Ibid.

9 Third ASEAN State of the Environment Report 2006, Chapter 7: Atmosphere, p. 87.

10 See, for example, The Haze: Shut Up and Don't Speak Out, at http://kitana.wordpress.com/2006/10/15/the-haze-shut-up-and-dont-speak-out/, accessed 1 March 2007.

11 Edith Brown Weiss (ed.), International Compliance with Nonbinding Accords (Washington, DC: American Society of International Law, 1997), 1; Weiss notes that soft laws are flexible and can set standards and behaviour of states and non-state actors.

12 Koh Kheng-Lian and N.A. Robinson, Strengthening Sustainable Development in Regional Inter-Governmental Governance: Lessons from the ‘ASEAN Way’, Singapore Journal of International and Comparative Law, 2002, pp. 640–682; Koh Kheng-Lian and N.A. Robinson, Regional Environmental Governance: Examining the Association of Southeast Asian Nations (ASEAN) Model, in Daniel C. Esty and Maria H Ivanova (eds.), Global Environmental Governance – Options & Opportunities (New Haven, CT: Yale School of Forestry and Environmental Studies: 2002), pp. 101–120; Review of ASEAN's Practice of Consensus, The Straits Times, 19 April 2006.

13 The Straits Times, 13 December 2005.

14 Report of the Eminent Persons Group on the ASEAN Charter (ASEAN: 2006) –Chap 5: Decision-Making Process, para. 63; ASEAN Reforms Required Political Will: Jaya, The Straits Times, 24 March 2007.

15 ASEAN Reforms Require Political Will: Jaya, supra note 14.

16 The Kuala Lumpur Accord on Environment and Development, at www.aseansec.org/6082.htm, accessed 1 March 2007.

17 Koh, supra note 2.

18 Ibid., pp. 70–71.

19 C.Rpt. No 5, Country Report: Singapore.

20 See also country reports on Thailand (C. Rpt. No.6 – A) and the Philippines (C. Rpt. No. 4).

21 C. Rpt. N0.8 – A.

22 See Hazeonline Action, at www.haze-online.or.id, accessed 1 March 2007.

23 HazeOnline Action, at www.haze-online.or.id/help/rhap.php, accessed 1 March 2007.

24 ADB Support to ASEAN via a Regional Technical Assistance (RETA) ‘Strengthening ASEAN´s Capacity to Prevent and Mitigate Transboundary Atmospheric Pollution Resulting from Forest Fires (RETA 5778-REG)’ (IFFN No. 19 – September 1998, 13–15), at www.fire.uni-freiburg.de/iffn/country/asean/ase_1.htm; Regional Haze Action, at www.aseansec.org/9059.htm, accessed 1 March 2007; see also S Tahir Qadri, Fire, Smoke, and Haze: The ASEAN Response Strategy (ASEAN and ADB: 2001); Ebinezer R Florano, Regional Environmental Cooperation without Tears or Fear: The Case of the ASEAN Regional Haze Action Plan, International Environmental Governance, Conference, Paris, 15–16 March 2004 (unpublished); Ebinezer R Florano, Regional Environmental Governance: A Study on the ASEAN Regional Haze Action Plan (RHAP) (unpublished).

25 These include: Australian Agency for International Development, Canadian International Development Agency, European Community, Gesellschaft fuer Technische Zusammenarbeit (German Government Agency for Technical Cooperation), Hanns Seidel Foundation, Impacts Centre for South East Asia, Japan International Cooperation Agency, Singapore Environment Council, South East Asia Fire Monitoring Centre, United Nations Environment Programme, UN-FAO/ECE/ILO Team of Specialists on Forest Fire, UNDP Asia Pacific Development Information Programme, US Agency for International Development, US Centers for Disease Control and Prevention, US Environmental Protection Agency, US Forest Service, US National Oceanic and Atmospheric Administration, WALHI (an NGO umbrella organization that coordinates work with a large number of NGOs operating out of Indonesia), World Bank, World Conservation Union–IUCN, World Health Organization, World Meteorological Organization, and World Wide Fund for Nature.

26 The Agreement can be found at www.fire.uni-freiburg.de/se_asia/projects/ASEAN-Agreement.pdf, accessed 1 March 2007; see Vientiane Action Plan (VAP) - www.aseansec.org/VAP-10th%20ASEAN%20Summit.pdf, accessed 1 March 2007; VAP 3.3.2, ‘Land and Forest Fires and Transboundary Haze Pollution’; under 3.3.2.2, it calls for the operationalization of the ASEAN Coordinating Centre for Transboundary Haze Pollution Control to effectively implement the provisions of the ASEAN Agreement on Transboundary Haze Pollution, and in 3.3.2.3, calls on the ASEAN Transboundary Haze Pollution Control Fund to provide the required resources for regional and national level action.

27 Report of the Eminent Persons Group on the ASEAN Charter (ASEAN: 2006), Chapter 6: Dispute Settlement Mechanisms, para. 64.

28 Koh and Robinson, Strengthening Sustainable Development, supra note 12; Koh and Robinson, Regional Environmental Governance, supra note 12.

29 Weiss, supra note 11, p. 1.

30 New Directions in International Environmental Law, in United Nations Congress on Public International Law (New York: 1995) reproduced in D.G. Craig, N.A. Robinson, and K.-L. Koh, Capacity Building for Environmental Law in the Asian and Pacific Region: Approaches and Resources, Vol I, 2nd ed. (ADB: 2003), p. 9.

31 Kheng Lian Koh, ASEAN Air Plan: Up in Smoke, The Environmental Forum, vol. 15, no. 1 (Jan/Feb 1998), pp. 50–51; Simon S.C. Tay, The South-East Asian Fires and Sustainable Development: What Should be Done About the Haze? Indonesian Quarterly, vol. xxvi, no. 2, pp. 99–117; N.A. Robinson, ‘Forest Fires as a Common International Concern: Precedents for the Progressive Development of International Environmental Law, Pace Environmental Law Review, vol. 18 (2000); S Tahir Qadri (ed.), in Fire, Smoke, and Haze: The ASEAN Response Strategy (ASEAN & ADB: 2001); Ebinezer R. Florano, Assessment of the ‘Strengths’ of the New ASEAN Agreement on Transboundary Haze Pollution, International Review for Environmental Strategies, vo1. 4, no. 1 (2003), pp. 127–147; Florano, Regional Environmental Cooperation, supra note 24; Florano, Regional Environmental Governance, supra note 24; Alan K.J. Tan, The ASEAN Agreement on Transboundary Haze Pollution: Prospects for Compliance and Effectiveness in Post-Suharto Indonesia, New York University Environmental Law Journal, vol. 13, no. 3 (2005), p. 647; Ednardo Araral, The Fire and Haze Problem: Causes, Consequences and Long Term Solutions, October 2006 (unpublished).

32 No Bite to Jakarta's Laws on Forest Burning, The Straits Times, 4 November 2006; Indonesia Must Manage Environment Better: Don, The Straits Times, 27 October 2006.

33 Indonesia Must Manage Environment Better, supra note 32.

34 The Environmental Management Act, 1997 No. 23/1997 requires a licence for an activity that has significant impact on the environment – an EIA must be obtained. The Forestry Act 1999, No. 41, Article 49 stipulates that the licence holder in the field of forestry and plantation is responsible for the occurrence of the forest fires in his jurisdiction, and Article 50 provides that every person is prohibited from burning the forest unless he has an authorized licence for special or limited purposes. There are loopholes in these laws. See No Bite to Jakarta's Laws, supra note 32. See also Tan, supra note 31, p. 686 et seq. where he discusses in detail the relevant Indonesian laws and the inadequacies as well as poor compliance and enforcement.

35 The Straits Times, 28 October 2006.

36 Sorry for the Haze, Says Indonesian President SBY, Today, 12 October 2006; Nearly All Fires Are Out, Says Indonesia: ASEAN Ministers in Jakarta to Hammer Out Haze Action Plan, Today, 3 November 2006.

37 Light through the Haze, The Straits Times, 6 December 2006.

38 Ibid.

39 Ibid.

40 http://www.haze-online.or.id/misc/apmi/index.php?PG=APMS, accessed 1 March 2007.

41 The Straits Times, 5 December 2006.

42 Indonesia Aims to Cut Forest Fires by Half This Year, Today, 1 March 2007.

43 S'pore, Indonesia Working on Plan to Prevent Fires at Hotspot, The Straits Times, 7 March 2007.

44 Indonesia Facing Ecological Disaster, Today, 6 March 2007.

45 The Cebu Resolution on Sustainable Development called for greater collaboration to address issues of the haze; see www.aseansec.org/18915.htm, accessed 1 March 2007; Today, Nearly All Fires Are Out, supra note 36; Five ASEAN Countries Approve Anti-haze Plan, The Straits Times, 10 November 2006.

46 See SIIA Web site, at www.siiaonline.org/news_highlights?func=viewSubmission&sid=990&wid=171, accessed 1 March 2007.

47 ASEAN Ministers to Flesh Out Haze Action Plan at Meeting, The Straits Times, 9 November 2006; Five ASEAN Countries Approve Anti-Haze Plan, supra note 45; Battling the Haze, One District at a Time, The Straits Times, 22 November 2006.

48 S'pore, Indonesia Working on Plan, supra note 43.

49 Spore, Indonesia Collaborate on Master Plan to Fight Haze Problem, Channelnewsasia, at www.channelnewsasia.com/stories/singaporelocalnews/view/263051/1/.html, accessed 1 March 2007.

50 See Robinson, supra note 31.

51 S'pore, Indonesia working on plan, supra note 43.

52 S'pore among First to Give to Haze Fund, The Sunday Times, 12 November 2006.

53 Make Plantations Pay for Haze Fund: ADB, The Straits Times, 11 November 2006; see also S'pore among First, supra note 52.

54 HazeOnline Action, at www.haze-online.or.id/news.php/ID=20070305102033, accessed 1 March 2007.

55 Asean sets up anti-haze fund, at www.sunstar.com.ph/static/ceb/2006/11/12/news/asean.sets.up.anti.haze.fund.html, accessed 1 March 2007; see also SIIA Stopping the Haze: Indonesian and ASEAN Credibility, at www.siiaonline.org/asean_must_mind_the_credibility_gap, accessed 1 March 2007; SIIA, at www.siiaonline.org/home; Programme on Transboundary Haze Prevention in Southeast Asia, at www.siiaonline.org/hazewatch, accessed 1 March 2007.

56 Indonesian and Regional Initiatives in Fire and Smoke Management and Policy Development, at www.fire.uni-freiburg.de/iffn/country/id/id_11.htm, accessed 1 March 2007.

57 Heart of Borneo, at www.panda.org/about_wwf/where_we_work/asia_pacific/our_solutions/borneo_forests/borneo_rainforest_conservation/transboundary_collaboration/index.cfm>, accessed 1 March 2007.

58 ‘Heart of Borneo’ Conservation Initiative to Receive US Fund, at http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2006&m=August&x=20060802180241ASesuarK0.1152002; Transboundary collaboration, at www.panda.org/about_wwf/where_we_work/asia_pacific/our_solutions/borneo_forests/index.cfm; see also www.panda.org/news_facts/newsroom/index.cfm?uNewsID=67180, accessed 1 March 2007; Guardians of the Region's Greenery, Today, 29 November 2006.

59 Successes: A Third of Borneo to be Conserved under New Rainforest Declaration, at www.panda.org/news_facts/newsroom/index.cfm?uNewsID=93980, 1 March 2007.

60 Haze: Balls on UN Table, Indonesia Upset, at www.jeffooi.com/2006/11/haze_balls_on_un_table_ sand_ind.php, 1 March 2007.

61 The Straits Times, 4 November 2006; see also, ASEAN Needs Help to Tackle Haze: PM: International Expertise Needed to Help Nip Problem in the Bud, The Straits Times, 6 November 2006; Embassy: Jakarta Prefers to Solve Haze within ASEAN, The Straits Times, 9 November 2006.

62 Jakarta Using Sand Ban to Put Pressure on Spore, The Straits Times, 17 February 2007; Ministers Set Record Straight, Call for Calm as Neighbours Blow Hot and Cold, Today, 13 February 2007.

63 Jakarta's Anti-graft Battle: Is an Extradition Treaty with Singapore the Magic Bullet, The Straits Times, 7 March 2007.

64 Ministers Set Record Straight, supra note 62; A Need to Temper those Tantrums..., The Straits Times, 20 February 2007; Jakarta Backs Down from Tough Stand, The Straits Times, 21 February 2007; Land Sand Ban Hits Riau Mining Companies Hard, and Jakarta Minister Says Foreigners Stealing Resources, The Straits Times, 5 March 2007; Singapore ‘Baffled’ by Report on Jakarta's Granite Export Ban, The Straits Times, 10 March 2007; The Straits Times, No Plans to Ban Granite, 14 March 2007; S'pore-bound Granite Barges Still Being Held ..., The Straits Times, 14 March 2007; Jakarta Using Spore, KL as Bogeyman? The Straits Times, 17 March 2007; Land Reclamation Not Factor in Talks with Jakarta-Spore, The Straits Times, 18 March 2007; Sand Ban Hurts Both Sides: PM, The Straits Times, 18 March 2007; Granite Supply Still Not Back to Normal, The Straits Times, 21 March 2007; Jakarta Debate Continues in S'pore Reclamation, The Straits Times, 24 March 2007; Detention of Barges: Riau Granite Miners Seek Jakarta's Help, The Straits Times, 24 March 2007; Indonesia Sand Ban: S'pore Vulnerable Side Exposed, The Straits Times, 6 April 2007; Granite Quarry Blasts ‘Business’ Related: Attack Was Well-Planned, Say Police, No Suspects Identified Yet, The Straits Times, 7 April 2007.

65 Jakarta's anti-graft battle, supra note 63.

66 See also VAP, para 3.3 (ii), where it is envisaged that environmental management of the haze must be intensified though, inter alia, ‘international cooperation.’

67 Indonesia Bans Sand Export, Lushhome: Singapore Real Estate/Property Sharing & Discussion Blog, at http://lushhome.wordpress.com/2007/01/25/indonesia-bans-sand-export, accessed 1 March 2007.

68 ASEAN needs help, supra note 61.

69 Haze: Balls on UN Table, supra note 60.

70 Ibid.

71 Ministers Set Record Straight, supra note 62.

72 Spore Jakarta Ties Not Clouded by Haze, The Straits Times, 15 November 2006.

73 For example, the International Tropical Timber Organization sponsored the development of National Guidelines on Protection of Forests against fire; see IFFN No. 18, January 1998, pp. 33–36; Indonesia & Regional Initiatives in Fire and Smoke Management and Policy Development, at www.fire.uni-freiburg.de/iffn/country/id/id_11.htm, accessed 1 March 2007.

74 Indonesia Acts to Curb Smuggling of Sand to Singapore, The Sunday Times, 18 February 2007; The Shifting Sands of Statesmanship, Today, 8 March 2007.

75 See www.aseansec.org/1814.htm

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