Malaysia must pursue legal action against Indonesia over transboundary haze — Shahrul Mizan Ismail

In the aftermath of transboundary haze pollution affecting Malaysia, the nation must take legal action against Indonesia, according to Dr. Shahrul Mizan Ismail. The obligation to prevent dangerous pollution does not begin with a neighboring government's warning; instead, Malaysia should pursue an international claim when evidence proves Indonesia's failure to meet its obligations.

On August 26, 2026, the Asean Specialised Meteorological Centre had already activated its highest regional haze alert, detecting smoke drifting from Kalimantan towards Sarawak. However, the mere presence of smoke does not automatically establish Indonesia's legal responsibility for Malaysia's losses.

Malaysia and Indonesia are already parties to the Asean Agreement on Transboundary Haze Pollution, which addresses monitoring, prevention, preparedness, and emergency response. Article 4(2) demands prompt responses to requests for relevant information or consultations when transboundary haze originates within a party's territory, while Article 12(4) requires a prompt decision and notification on an offer of assistance. These obligations are not contingent upon a formal protest but are rather inherent to the agreement.

To substantiate its claim, Malaysia should investigate specific failures in Indonesia's due diligence, such as whether known fire risks were addressed before the dry season, if recurring violations were investigated, if enforcement orders were implemented, and if warnings led to reasonable preventive measures. Dr. Ismail suggests that Malaysia issue a substantiated notice of claim, identify the obligations allegedly breached, request records and consultations, and retain the right to reparation.

He further recommends involving independent experts to connect fires, pollutant transport, and Malaysian exposure, utilizing satellite observations, ground measurements, and atmospheric modelling.

Quantifying the losses caused by the alleged breach is another essential step, supported by records of additional treatment, monitoring, and emergency expenditure. Malaysia must provide a compelling explanation of what injury adequate diligence would have prevented or reduced. The haze treaty offers consultation or negotiation, not compulsory adjudication, so Malaysia should propose a special agreement, arbitration, or bilateral claims commission with independent experts and binding awards.

Finally, Malaysia should initiate an evidence dossier, provisional loss account, and reasoned proposal for settlement or adjudication within a ninety-day timeframe.