Last Friday saw Malaysia wrapping up the second oral proceedings of the sovereignty dispute over Pedra Branca (Pulau Batu Puteh), Middle Rocks and South Ledge at the International Court of Justice (ICJ).
The world court now has six months to ponder over the written and oral pleadings before giving its verdict sometime by September 2008.
Both Singapore and Malaysia are confident of the case each side argued before the court. Tan Sri Abdul Kadir Mohamad, the Malaysian Ambassador-at-Large and the Prime Minister's Special Adviser on Foreign Affairs, lauded the Malaysian team’s efforts, saying, “We pray Malaysia will win this case. Of course, the outcome is left to the court to decide. I can confidently say what needed to be done has been done.” Similarly, Singapore's Deputy Prime Minister and Law Minister S. Jayakumar acknowledged his team's achievements. He praised the team’s efforts and was convinced of the Singapore’s case, saying, “Although we should not be presumptuous, I do believe that we have presented a stronger case.”
However, these displays of confidence do not conceal the very contentious issues surrounding sovereignty over the three maritime features. As of last week’s second (and final) oral proceedings, the two countries argued even more intensely before the court. In particular, Singapore was “surprised and disappointed” when Malaysia shot a volley of insinuations aimed at diminishing the Republic’s integrity during the first oral proceedings in the prior week, thus it rebutted the Malaysian allegations most strenuously to defend its international reputation.
1. Concealment of Governor Butterworth’s 1844 letters of request to Sultan and Temenggong of Johor
Malaysia insinuated that Singapore had deliberately concealed these letters and ignored the Malaysian 1994 request. Singapore refuted this saying that firstly, there is no way that such a concealment could occur given that microfilm copies of the Singapore archives are available at various institutions globally. Moreover, it is well-known that the Singapore archives are incomplete, especially after the Second World War, thus Singapore issued the 1953 letter to the Johor Government on the documents of Pedra Branca. Third, Singapore did not ignore the Malaysian request in 1994; rather it replied Malaysia orally through the High Commission in Kuala Lumpur. Lastly, it was “more logical” that Johor would have the record of the letters anyway as Singapore sent them out to the Sultan and Temenggong. Singaporerepeated that while it did not hold the letters, it also accepted in good faith when Malaysia said it did not have them either.
Till now, Malaysia continues to maintain that the letters are likely to be in Singapore and not Johor as it was in Singapore that the Sultan and Temenggong were residing at the time the letters were sent. It also argued that Singapore’s silence on the missing letters cannot be ignored.
2. Subversion of long-established arrangements and activities in the exercise of sovereignty
Malaysia then accused Singapore of wanting to disrupt the territorial and maritime arrangements of more than 150 years. Singapore argued that Malaysia was trying to take on a “victim’s” role and thatSingapore was a bully. Singapore said that it was in fact Malaysia, and not Singapore, that was trying to subvert the status quo by “claiming title to Pedra Branca after 130 years of inaction in the face ofSingapore’s exercise of sovereignty”. Furthermore, there was no basis for saying that Malaysia-Indonesia bilateral relations would be affected if the ICJ found in favour of Singapore. Malaysia’s 1979 map was vociferously protested by all the seven countries it informed –Thailand, Vietnam, Singapore, Indonesia, Brunei, the Philippines and China –proof enough that Malaysia’s actions and not Singapore’s were the real cause of regional upset.
Most crucially, Singapore went on to conclude that it had satisfied the two requisite criteria to prove sovereignty –intention and activities. It argued that when the British built the Horsburg Lighthouse, Pedra Branca was terra nullius and all its acts from 1847 to 1979 –a period of 130 years –were sovereign, open and unchallenged anyone. Singapore stated that conversely, Malaysia had failed to show proof of historic title of the Johor Sultanate to Pedra Branca, and that this title had been transmitted to the Johor State. Moreover, Malaysia had never conducted any competing activities to justify its claim over Pedra Branca.
Additionally, Malaysia had never demanded Singapore to lower its marine ensign on Pedra Branca when it requested Singapore do so with respect to Pulau Pisang. The different policies regarding the lighthouses on the two islands showed that Malaysia’s conduct recognized Singapore’s sovereignty over Pedra Branca. This was reaffirmed when Malaysia published six maps between 1962 and 1975 which attributed the isle to Singapore. Conversely, Singapore had never published a map showing that Pedra Branca belonged to Malaysia. Ultimately, the 1953 letter disclaiming Malaysia’s ownership of Pedra Branca was binding under international law. Singapore contended that Malaysia tried to undermine the importance of this letter because it was embarrassed by it.
Malaysia, however, continued to maintain that it had historical title and that this transmitted to the present Johor state. It also said that Pedra Branca was not terra nullius and that Singapore had come up with this argument at a very late stage, thereby displaying its lack of certainty over the claim to the isle. Moreover, Malaysia declared the 1953 letter to be inconsequential as the then-Johor Acting State Secretary had no authority to disclaim ownership of any of Malaysian territory. Malaysia added that Singapore’s issuing of the 1953 letter, showed its uncertain claim to Pedra Branca, hence Singapore “cannot decide on any determinate view as to its status”.
3. Singapore’s sinister reclamation plans?
Singapore poured scorn on Malaysia’s attempt at “scaremongering” –depicting Singapore as a rapacious land reclaimer without consideration for the environment, navigation and security. Singapore said that as its economic livelihood depended largely on trade; it would never “undertake any action which would endanger the marine environment, the safety of navigation and the security situation in the Singapore Straits”. Singapore dismissed as “ridiculous” the Malaysian claim that Singapore wanted to create a “maritime domain” with Pedra Branca, Middle Rocks and South Ledge given the tiny size of these features.Singapore also maintained that given the proximity (less than three nautical miles) to one another, and that Middle Rocks and South Ledge lie in Pedra Branca’s territorial sea, all three features should be considered as a single entity. This would be in line with geology, history and law.
Malaysia maintained that Singapore has a reputation for land reclamation works and it never consulted Malaysia as to the major reclamation works in the Straits of Johor –disrespecting Malaysian boundaries and the marine environment.
4. The aggression of the Singapore Navy around Pedra Branca
Singapore reiterated that its naval presence in the waters of Pedra Branca was not established in 1986, after the critical date of 1980. It stated that there was a seamless follow-up by the Singapore Navy to the withdrawal of the British navy in 1975. Additionally, the Singapore Navy has always maintained a “peaceful and non-confrontational approach” in all its territorial waters. Unlike what Malaysia alleged,Singapore has never arrested Malaysian fishermen. The Singapore Navy either allows them to continue fishing, or for reasons of security, requests that they leave. Singapore then stated that it was in factMalaysia that had been “aggressively arresting Singapore’s fishing vessels and raising tensions” in the waters of Pedra Branca. Singapore added that it was always ready to invite Malaysian officials to visit Pedra Branca –as stated in the 1989 exchange.
Malaysia argued that the point was not whether Malaysian fishermen were arrested but about “Johor fishermen being completely prevented” from fishing in their traditional fishing areas –the waters of Pedra Branca.
5. Malaysian magnanimity for Singapore, the lighthouse operator?
Singapore dismissed the Malaysian offer of continuing to respect its position as the operator of the Horsburg Lighthouse on Pedra Branca. Singapore said that while this looked generous on Malaysia’s part, it had no bearing on the case whatsoever. Instead, it was Malaysia’s attempt to influence the court with “extraneous considerations” and to change a legal order that has stood for 160 years. First, Singapore has sovereign rights to Pedra Branca, thus Malaysia has no standing to “offer” it privileges to operate the lighthouse. Second, the issue before the court is on sovereign title, not which country has the right to operate the lighthouse.
Malaysia also argued that the British had never wanted to add puny Pedra Branca to the vast British Empire. What the British wanted was merely a light and that was what they did on Pedra Branca.
With territorial sovereignty at stake, both countries are now keeping their fingers crossed as to the outcome. Which country the ICJ will ultimately decide in favour of is anybody’s guess; nothing more can be done except to wait patiently for the verdict next year.