Kalimantan Haze Reaches Malaysia, Indonesia Faces a Transboundary Legal Test

In August 2026, haze resulting from forest and land fires (karhutla) in West Kalimantan and Central Kalimantan was again reported to have crossed national borders and moved toward Sarawak, Malaysia, where air quality deteriorated to unhealthy levels. The scale of the disaster is clearly reflected in data from the Ministry of Forestry: from January to June 2026, the indicative area affected by forest and land fires reached 107,465.47 hectares, representing an increase of 120 percent compared with the same period in 2019. On the ground, Greenpeace monitoring in mid-August identified 592 hotspots, the majority of which were located on peatlands.

The impact of the haze did not stop within Indonesian territory. Based on NASA FIRMS satellite data, on 20 August 2026, fire activity in Kalimantan was observed to have expanded to areas near the border with Sarawak, Malaysia. These conditions also disrupted community activities in the neighbouring country. A total of 591 schools across 10 districts in Sarawak were temporarily closed, affecting approximately 197,323 students.

The direct consequences of this ecological crisis have come at a high cost to public health. Cases of Acute Respiratory Infection (ARI) increased drastically, with up to 600 additional cases per day, forcing a number of patients to undergo hospitalisation. Although the Central Government, through the Ministry of Environment (KLH), has issued Circular Letter No. 16 of 2026 concerning the prohibition of land clearing by burning, conditions on the ground indicate a systemic failure in prevention.

Critical Conditions Raising Fundamental Questions

In response to this series of events and the existing law-enforcement measures, the discourse raises a number of crucial questions extending beyond mere administrative issues:

1. What is the legal validity of Regional Regulations (Peraturan Daerah or Perda) that permit land burning when considered in light of provisions concerning corporate criminal and civil liability under sector-specific legislation?

2. Can Strict Liability be applied to hold corporations accountable?

3. What are the provisions governing the prevention of transboundary haze under the no-harm principle of customary international law and ASEAN instruments?

Normative Conflict and the Illusion of Legal Certainty at the Regional Level

One of the issues in addressing the 2026 forest and land fires is the existence of regional regulations that still permit land clearing by burning. As reported by Liputan6 on 23 August 2026, Minister of State Secretary Prasetyo Hadi stated that there are regional regulations in West Kalimantan and Central Kalimantan that permit land clearing by burning. At a limited meeting on forest and land fire management chaired by President Prabowo Subianto on 22 August 2026, the Government agreed that the provisions contained in those regional regulations should be prohibited or amended accordingly.

From the perspective of constitutional law, this regulatory loophole at the regional level constitutes a clear violation of the principle of lex superior derogat legi inferiori. Article 69 paragraph (1) letter h of Law No. 32 of 2009 concerning Environmental Protection and Management (the Environmental Protection and Management Law), as well as the Forestry Law and the Plantation Law, absolutely prohibit the practice of land burning without exception.

Pursuant to Article 250 of Law No. 23 of 2014 concerning Regional Government, Regional Regulations are prohibited from conflicting with higher-ranking laws and regulations. The existence of Regional Regulations permitting burning should therefore be null and void ab initio and must be promptly revoked by the Central Government. The failure to effect such revocation long ago has created an illusory legal shield protecting perpetrators of burning at the regional level.

Corporate Strict Liability: Between the Text and Reality

In addition to imposing a strict prohibition, the Environmental Protection and Management Law provides a powerful legal mechanism for holding corporations accountable, namely the principle of strict liability under Article 88. This doctrine affirms that corporate concession holders whose land catches fire may be held directly liable for civil damages without the need to first establish either intent (dolus) or negligence (culpa).

However, the substantive requirements of this legal mechanism conflict with the uneven reality of law enforcement. Amid burned areas reaching hundreds of thousands of hectares and hundreds of hotspots, investigations have extended to only six corporations. The President’s statement emphasising that anyone who orders burning, whether an individual or a corporation, must be dealt with firmly, must be translated by law-enforcement authorities into investigations targeting corporations as entities, rather than merely those carrying out the acts on the ground, such as farmers or workers.

Discourse on Escalation to the Realm of International Law

The extensive impact of these forest and land fires has the potential to trigger diplomatic and geopolitical disputes in connection with possible violations of the ASEAN Agreement on Transboundary Haze Pollution (AATHP), which Indonesia ratified through Law No. 26 of 2014.

Under the AATHP, Indonesia is bound by the no-harm principle, which essentially requires every State to ensure that activities within its jurisdiction do not cause environmental harm to other States. This principle is rooted in customary international law and is frequently referred to through the principle of sic utere tuo ut alienum non laedas—use your own territory in such a manner as not to harm the territory of another State—as reflected in the 1972 Stockholm Declaration and the 1992 Rio Declaration.

When the threat of forest and land fires and the increase in hotspots had already been detected since early 2026, the legal question then shifts: were the preventive measures undertaken by Indonesia sufficient to satisfy that standard?

If it is established that the Government was aware of a significant risk but failed to take adequate measures to prevent or minimise its effects, the matter may develop from a mere environmental issue into one of State responsibility. In other words, what is at stake is not only Indonesia’s ability to extinguish fires within its own territory, but also its ability to ensure that activities within its jurisdiction do not cause harm to other States.

In the latest developments, Malaysia and Brunei agreed to use the ASEAN mechanism as the primary avenue for addressing the issue of transboundary haze allegedly originating from forest and land fires in Indonesia. The agreement was announced by Malaysian Prime Minister Anwar Ibrahim following the 27th Annual Leaders’ Consultation Meeting (ALC-27) with Sultan Hassanal Bolkiah of Brunei on 22 August 2026. As reported by Bernama, Malaysia will use ASEAN diplomatic channels and submit an official letter to the ASEAN Secretariat, while the Malaysian Minister of Foreign Affairs has been tasked with coordinating follow-up measures concerning the matter. As a matter of law, the ASEAN forum is relevant because Indonesia, Malaysia, and Brunei are parties to the ASEAN Agreement on Transboundary Haze Pollution (AATHP). The AATHP provides for cooperation in monitoring, prevention, preparedness, and response to transboundary haze pollution, including through the ASEAN Coordinating Centre and relevant technical bodies. Should a dispute arise concerning the interpretation, application, or compliance with the AATHP, Article 27 of the AATHP requires peaceful settlement through consultation or negotiation. This provision is also consistent with Article 24 of the ASEAN Charter, which places settlement mechanisms under ASEAN instruments as the primary avenue; if the dispute remains unresolved, Article 26 of the ASEAN Charter provides for the possibility of referring the matter to the ASEAN Summit.

Apart from the ASEAN avenue, this matter could, in theory, also develop into proceedings before an international forum under the United Nations system, particularly if regional mechanisms fail to produce a resolution. One possibility is the International Court of Justice (ICJ), which could examine State responsibility for an alleged breach of international obligations relating to transboundary pollution. The legal basis may be associated with Article 36 of the Statute of the ICJ, which confers jurisdiction over cases submitted by States in dispute, including disputes concerning the interpretation of treaties or questions of international law; however, such jurisdiction remains, in principle, dependent upon the consent of the States concerned.

Legal Implications of the Kalimantan Forest and Land Fires within the Domestic and Regional Framework

The 2026 Kalimantan forest and land fires reveal a gap between legal norms and the State’s capacity to ensure their effective implementation. At the domestic level, the State is required to ensure that no Regional Regulations confer legitimacy upon practices that conflict with national legal norms, while at the same time effectively enforcing corporate liability, including through the mechanism of strict liability. At the regional level, Indonesia must demonstrate that its obligations under the AATHP and the no-harm principle do not end as normative commitments, but are implemented through effective prevention and response measures.

The decision by Malaysia and Brunei to prioritise the ASEAN mechanism creates room for resolution through consultation and cooperation, while simultaneously placing Indonesia’s actions under regional scrutiny. If that mechanism proves unable to resolve the matter and an adequate jurisdictional basis exists, international fora such as the ICJ could, in theory, become a further option.