Last week saw the end of the first round of oral proceedings at the International Court of Justice (ICJ) between Singapore and Malaysia on the issue of sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge. (Pulau Batu Putih is the Malaysian name for Pedra Branca.)
After more than twenty years of friction over the matter, Malaysia and Singapore signed a Special Agreement on 6 February 2003 and then jointly submitted it to the ICJ on 24 July 2003 for its jurisdiction over this dispute. The Special Agreement requested the ICJ to rule on three issues –whether the sovereignty of (1) Pedra Branca/Pulau Balu Puteh; (2) Middle Rocks; and (c) South Ledge belongs toMalaysia or Singapore.
Three rounds of simultaneously-exchanged written pleadings were duly submitted by both states on 25 March 2004, 25 January 2005 and 25 November 2005. The then ICJ closed the written proceedings phase in May 2006 and scheduled the oral proceedings for November 2007. In the previous week, from 6 to 9 November, Singapore took the stand first. Last week, from 13 to 16 November, Malaysiamade its case before the ICJ. This week, the second round of oral proceedings will begin with Singapore on 19 and 20 November, with Malaysia rounding off the public hearings on 22 and 23 November. The ICJ’s verdict is expected in 2008. Its judgment, based on majority voting, is final and holds no recourse for appeal. In submitting the matter to the ICJ, Singapore and Malaysia have agreed to abide by its absolute ruling.
Outline of the case
Singapore claims sovereignty over Pedra Branca, Middle Rocks, and South Ledge. Pedra Branca is a small island (about the size of a football field) at about 24 nautical miles to the east of Singapore. It is of crucial strategic importance as “it commands the entire eastern approach to the Straits of Singapore”, and a channel through which almost 900 ships sail everyday. Middle Rocks are two clusters of rocks situated 0.6 nautical miles south of Pedra Branca; while South Ledge is a maritime feature submerged at high-tide a little farther away at 2.1 nautical miles south of Pedra Branca. Singapore claims that the title of sovereignty over Pedra Branca comes with the title over Middle Rocks and South Ledge.
Accordingly, Malaysia refutes Singapore’s claim alleging it is seeking to subvert the territorial arrangements between Johor and Great Britain over 150 years ago and maintained throughout the whole period of British rule. In its written pleadings, Malaysia attested that Singapore, like Great Britain before it, is merely operating a lighthouse on Pulau Batu Puteh with Johor’s consent. Furthermore, Singapore cannot claim Middle Rocks and South Ledge together with Pulau Batu Puteh, for these three are separate and distinct maritime features that have always belonged to Johor.
Points of dispute
(1) Who holds title to Pedra Branca?
Singapore claims title to Pedra Branca as one of succession from the British colonial government and the subsequent acts of “continuous, open and effective display of state authority” it has exerted over it and its territorial waters. It rejects Malaysia’s claim of historical succession of sovereignty –by virtue that Pedra Branca was part of the former Johor Sultanate thus belongs to Malaysia –as groundless. Singaporeattests that it holds sovereignty over the island because Malaysia has neither protested Singapore’s open actions regarding Pedra Branca nor did Malaysia ever demonstrated official acts to prove its title all these years.
Moreover, at the time of British action, the island was terra nullius –uninhabited. Since traditional Malay notions of sovereignty were based on the allegiance of subjects and not the possession of territory, and that Pedra Branca had no living inhabitants to pledge loyalty to the sultan, thus Malaysia’s reliance on the historical claim through the old Johor Empire was empty.
Malaysia conversely declares that Pulau Batu Puteh, South Ledge and Middle Rock all belong to the present State of Johor, Malaysia. The State of Johor originated in the Sultanate of Johor. Relying on theTreaty of Friendship and Alliance (Crawfurd Treaty) between Johor and Great Britain of 2 August 1824, Malaysia explained that Johor transferred sovereignty over Singapore Island to the British East India Company together with islets and rocks within 10 geographical miles of Singapore.
Singapore’s claim therefore not only ignores the Crawfurd Treaty of 1824, it also ignores Anglo-Dutch Treaty of 17 March 1824 between Britain and the Netherlands. Malaysia states that the Anglo-Dutch Treaty had earlier split the Johor Sultanate into two –the British taking the areas north of the Straits of Singapore, while the areas south of the Strait went under Dutch rule –hence Pulau Batu Puteh belongs toMalaysia. It would be unreasonable if in the Crawfurd Treaty, the Sultan and Temenggong of Johor could cede uninhabited islands up to a distance of 10 geographical miles from the island of Singapore such as Pulau Ubin and Coney Island to the British, but not be sovereign over Pulau Batu Puteh, Middle Rocks and South Ledge. As it stands, Pulau Batu Puteh is 25.5 nautical miles away from Singapore but only 7 miles from mainland Johor, thus Malaysia continues to wield sovereignty.
Additionally, Singapore’s claim that Pulau Batu Puteh was terra nullius is void. Malaysia has produced maps as early as 1595 showing Pulau Batu Puteh as belonging to the Sultanate of Johor. A 1655 Dutch diplomatic note also refers to the island as belonging to Johor. Moreover, the isle, like other Johorean islands, was frequently utilized by tribes or peoples fishing in its waters as well as for political organization.
(2) Did the British seek permission to act on Pedra Branca?
Singapore believes so. More than 160 years ago, the British colonial government in Singapore took possession of Pedra Branca, building the Horsburgh Lighthouse in 1847. In doing so, the British “did not seek and did not need to seek” anybody’s permission, not least the permission of the Sultan or Temenggong of Johor. Moreover, at the laying of the lighthouse’s foundations, the island was claimed as “a dependency of Singapore”.
However, Malaysia attests that Johor permitted the Horsburgh Lighthouse to be built on Pulau Batu Puteh by the East India Company in 1851. The permission was given by the Temenggong and Sultan of Johor on 25 November 1844, for the building and operation of a lighthouse “near Point Romania” or “any spot deemed eligible”. While Malaysia is able to furnish the 1844 letters of permission by the Temenggong and the Sultan of Johor, it is does not possess the letter of request from Governor Butterworth. Malaysia states that in 1994 Singapore ignored its request to give a copy of this letter, and if it still exists, it is probably in Singapore’s archives (which Malaysia has no access to) in the file entitled “Letters to Native Rulers”.
(3) Did Britain acquire title to Pedra Branca through its sovereign actions during 1847-1851?
Malaysia’s argument that Britain only wanted space to build a lighthouse and not claim sovereignty was deemed spurious by Singapore. Britain had built more than a lighthouse –it had constructed a jetty and rain channels, and carried out an official ceremony commissioning the lighthouse in 1851. In the eyes of international law, such public works are regarded as “state functions”, evidencing that Britain did intend to exert sovereignty over the whole of Pedra Branca.
Malaysia refutes that Britain sought to annex Pulau Batu Puteh –it never had such intent despite the many occasions it could have done so. Hence Singapore’s contention that the process “involving the selection of Pedra Branca as a site for a lighthouse, the preparation for its construction, the persistent official visits, the ceremonial laying of the foundation stone and the final commissioning of the lighthouse provides unequivocal evidence of the will of the British crown to annex Pedra Branca” is “a complete fiction”. Malaysia declares that these are just the steps necessary to the construction of the lighthouse, and would have been dealt with by a hired private contracting firm if it were possible in those days.
In addition, Singapore has not shown why the Temenggong of Johor’s visit with 30 of his followers after the laying of the foundation stone on 24 May 1850 cannot be construed as a demonstration of his title to the island. The lighthouse architect John Turnbull Thomson’s records described the Temenggong as “the most powerful native chief in these parts, allied to British” and did not evidence Britain’s intention to treat the rock (Pulau Batu Puteh) as British territory.
(4) Did Johor expressly disclaim title to Pedra Branca in 1953?
Singapore relies on certain facts. In 1952, the Singapore’s Chief Surveyor wrote that Singapore was entitled to claim the territorial sea around Pedra Branca. In 1953, Johor wrote officially to Singaporesaying that it did not claim ownership to Pedra Branca. After decolonization, Singapore succeeded to the sovereignty over the island and its surrounding waters and Malaysia published a series of official maps in 1962, 1965 and 1975 showing that Singapore owned Pedra Branca. From 1847 to 1978, Singapore displayed official acts of sovereignty over the island such as installing a water desalination plant, a helicopter pad, a shipping traffic control tower and even proposed a land reclamation project around Pedra Branca –all without any protest from Malaysia. In 1974, the Marine Department of Singapore repeated in an official letter that Singapore was entitled to claim the territorial sea around Pedra Branca.
Malaysia declares that the 1953 letter by the Johor Acting State Secretary which Singapore claims disclaimer of the title to Pulau Batu Puteh is irrelevant. First, if the British authorities in Singapore really believed in its title to the island, why would it ask Malaysia more than a hundred years whose possession it was? Second, the Johor reply saying “Johor does not claim ‘ownership’ over the rock” was couched in the private law meaning –it did not mean Johor claimed to have no sovereignty over the island. Third, Johor was not bound by the acting state secretary’s statement as he did not have competence to cede territory.
(5) Has Singapore openly and continuously displayed State authority over Pedra Branca after 1851?
Singapore states that another telling point of its rightful sovereignty over Pedra Branca is that the Singapore marine ensign has been flown there for about 130 years without protest by Malaysia. Conversely, in 1968 Malaysia requested the Singapore flag be taken down on Pulau Pisang –an isle 7 nautical miles west of Johor’s coast where Singapore manages a lighthouse based on a Johor land grant. Additionally, the Director of Marine of the Federation of Malaya wrote to the Master Attendant of Singapore in 1952 offering to assume maintenance costs of the light on Pulau Pisang but not for Pedra Branca. Given that it is an international obligation that each country should maintain the costs of lights necessary for safeguarding its coasts, the offer omitting responsibility for Pedra Branca is telling.
No protest over Singapore’s exercise of sovereignty over Pedra Branca was made by Malaysia until 1979 when it published an official map showing the island was within Malaysian territorial waters. By that time, Singapore already possessed sovereignty over Padra Branca. This sudden territorial claim was promptly refuted by Singapore in early 1980. The last and most recent episode evidencing Singapore’s sovereignty over Pedra Branca was when the Philippine Department of Foreign Affairs referred to area –where a Filipino crew member was killed during a collision of two ships off Pedra Branca –asSingapore’s territory.
Malaysia disputes that Singapore has openly and continuously displayed State authority over Pedra Branca after 1851. Instead, Malaysia has continued to exert sovereign rights. For one, Singapore did not protest Malaysia’s extension of its territorial sea from 3 to 12 nautical miles in 1969. Then later in 1969, Malaysia and Indonesia reached an Agreement on the delimitation line of the Continental Shelf.Singapore never asserted any interest, raised any objection or reserved its position. Singapore also did not delimit the area around Pulau Batu Puteh or reserve its position in that area of the Straits in the Territorial Sea Boundary agreement it concluded with Indonesia in 1973.
Malaysia also protests that Singapore did not prove its exercise of state authority over the island. Singapore’s actions –including installing military and naval vessel traffic services equipment, conducting naval patrols, and investigating navigational hazards and shipwrecks on the island –are merely done in the position of a lighthouse administrator. As to the flying of the Singapore marine ensign on Pulau Batu Puteh,Malaysia states that this is an ordinary act and not indicative of sovereignty. Malaysia says that the British Marine Ensign, Marine Ensign of the colony of Singapore and the Marine Ensign of the Republic ofSingapore were flown successively as Singapore administrations changed. Malaysia declares that insofar in its knowledge, “neither the Union Jack nor Singapore's National Flag have ever been flown from Horsburgh Lighthouse”.
Additionally, one of Singapore’s two laws enacted after independence in 1965 to assert sovereignty over the island –Singapore Light Dues Act of 1969 and Protected Places Order 1991 –cannot hold. The latter is deemed 10 years after the critical date of dispute (1980) thus has no standing. Furthermore, Malaysia declares that maps of Singapore published by Britain, Singapore or anyone else before 1995 never showed Pulau Batu Puteh within Singapore’s territory because cartographers never thought it was part of the republic. Singapore’s map showing Pulau Batu Puteh was only published in 1995, 15 years after 1980, thus again has no standing.
In conclusion, Malaysia declares Singapore’s claim to Pulau Batu Puteh not only threatens Malaysia’s territorial integrity, but that it also upsets the territorial and maritime safety of the Straits because “Singapore has an extremely active reclamation policy” and its round-the-clock naval patrol (sent in 1986) deals aggressively with those near Pulau Batu Puteh, such as chasing away Johor fishermen from their traditional fishing waters.
Conversely, Malaysia maintains its peaceful attitude towards Singapore’s aggressive tactics and is alarmed by the presence of Singapore’s military communications equipment built on Pulau Batu Puteh in May 1977. Malaysia has always respected the long-standing arrangements for Singapore’s operation of the lighthouses on Pulau Batu Puteh and Pulau Pisang and has never interfered in Singapore’s management. It states it was not previously aware of this as the “conduct does not fall within the consent given for the construction and operation of the lighthouse”.
Ultimately, Malaysia does not wish the destabilization of its maritime delimitation relationship with Indonesia. However this would be inevitable if Singapore attained title to Pulau Batu Puteh. (19 November 2007)
Transcripts of oral proceedings (1st round, Singapore) at http://www.mfa.gov.sg/pedrabranca/
Channel News Asia
New Straits Times