Reinterpreting the Indonesian Environmental Tortlaw in Addressing the Transboundary Haze Pollution

Abstract

Although the ASEAN Agreement on Transboundary Haze Pollution has been ratified by all members of ASEAN countries, in reality this agreement is not able to combat this transnational environmental problem and foster an environmentally suistanable community in Southeast Asia.The applicable agreement cannot be effective because it is not followed by any legal instrument that can deter the perpetrators of environmental crime.Therefore, private law instrument can be used by providing opportunities for community members to sue the haze polluter before a civil court. Unfortunately, Article 1365 of the Indonesian Civil Code (tortious liablity) has not been able to adequately address this need, so a breakthrough is needed.The author suggests using the legal doctrine of 'injuriasine damno'in order to interpret the meaning of Article 1365 more broadly, especially in relation to the element of loss.