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Pedra Branca: Behind the scenes
SINGAPORE, Dec 20 — Pedra Branca was in the spotlight last year when the International Court of Justice in The Hague heard Singapore and Malaysia make their case for the island. A new book by Deputy Prime Minister S. Jayakumar and Ambassador-at-Large Tommy Koh, who played key roles in the case, sheds light on previously undisclosed facets of the case.
The first inkling that something was afoot came in 1977, when Singapore's Foreign Affairs Ministry (MFA) learnt that a Malaysian navy lieutenant commander had made inquiries about the status of Pedra Branca. Then in April the following year, the then Counsellor at the Singapore High Commission in Kuala Lumpur, Kishore Mahbubani, reported back on a conversation he had with a Malaysian Foreign Ministry official. The Malaysians claimed to have completed a study showing that Horsburgh Lighthouse belonged to them.
The official said they would be writing to Singapore to claim sovereignty over Pedra Branca, where the lighthouse had stood since 1851, although no such communication was received.
In May 1978, Jayakumar, then dean of the National University of Singapore's Law Faculty, was in Geneva assisting the ministry for the third United Nations Conference on the Law of the Sea (Unclos). He received a telex from then MFA deputy secretary Tan Boon Seng asking him to head to London right away to search for colonial documents on Pedra Branca that could not be located in Singapore.
After consulting Koh, then Singapore's permanent representative to the United Nations, Jayakumar spent a few days looking up documents at the India Office in London and the Public Record Office in Kew. He returned with a microfilm of documents. But he could not unearth an 1844 letter that Straits Settlements Governor W.J. Butterworth wrote to the Johor Rulers, apparently about the island. He did, however, find copies of Johor's replies referring to Peak Rock, another island.
While at both offices, Jayakumar was asked if he was the person who had come two days earlier for similar documents. He concluded that the Malaysians must be searching for the same material.
Not long after, in December 1979, Malaysia published a map that, for the first time, included Pedra Branca as Malaysian territory. The move drew a formal protest from the Singapore Government.
Attempts to settle
Prime ministers on both sides raised the matter when they met for bilateral talks or at international events.
In a foreword to the book, Minister Mentor Lee Kuan Yew, who was prime minister at the time, said that while Singapore was surprised by Malaysia's claim in 1979, “I saw no need for this claim to trouble our bilateral relationship”.
“I went out of my way to persuade Malaysian PM Hussein Onn, under whose watch this claim was made, to settle the issue in an open and straightforward manner,” Lee wrote. “I found Hussein fair-minded when we discussed the Pedra Branca issue during his visit to Singapore in May 1980. He said both sides should search for documents to prove ownership of Pedra Branca.”
After Tun Dr Mahathir Mohamad took over in 1981 and visited Singapore in December that year, he and Lee agreed that both sides should exchange documents to establish the legitimacy of their respective claims.
Then in the late 1980s, in what was an unprecedented unilateral move, Lee instructed then Attorney-General Tan Boon Teik to go to Kuala Lumpur and show Singapore's documentary evidence to his Malaysian counterpart.
“I was prepared to take that step to get the Malaysians to know that we had a powerful legal case,” he wrote.
“But I also understood that it was difficult for any leader to give up sovereignty claims unilaterally.” This was why he proposed to Dr Mahathir in 1989 that if the matter was not settled after a document exchange, the dispute should be referred to the International Court of Justice.
The need to find a political solution to the dispute became more urgent as throughout the 1980s, Malaysian Marine Police boats began to make regular incursions into waters around Pedra Branca.
The Singapore navy was under strict instructions to avoid escalating matters, and both sides acted with restraint.
Dr Mahathir was aware of the need not to let the situation get out of control, the authors note in the book. In 1989, he made an unannounced boat trip to the vicinity of Pedra Branca to personally size up the situation.
Recounting his visit at a function in Kuala Lumpur last year, Dr Mahathir said his boat was immediately intercepted by two Singapore naval vessels. As he did not want to cause an international incident, he asked his own boat to leave.
In 1994, Malaysia agreed to refer the matter to the ICJ.
Jayakumar and Koh noted that after studying Singapore's documents, Malaysian officials indicated privately that Singapore had a strong case, and that their claim was weak.
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Pedra Branca: Behind the scenes
SINGAPORE, Dec 20 — Pedra Branca was in the spotlight last year when the International Court of Justice in The Hague heard Singapore and Malaysia make their case for the island. A new book by Deputy Prime Minister S. Jayakumar and Ambassador-at-Large Tommy Koh, who played key roles in the case, sheds light on previously undisclosed facets of the case.
The first inkling that something was afoot came in 1977, when Singapore's Foreign Affairs Ministry (MFA) learnt that a Malaysian navy lieutenant commander had made inquiries about the status of Pedra Branca. Then in April the following year, the then Counsellor at the Singapore High Commission in Kuala Lumpur, Kishore Mahbubani, reported back on a conversation he had with a Malaysian Foreign Ministry official. The Malaysians claimed to have completed a study showing that Horsburgh Lighthouse belonged to them.
The official said they would be writing to Singapore to claim sovereignty over Pedra Branca, where the lighthouse had stood since 1851, although no such communication was received.
In May 1978, Jayakumar, then dean of the National University of Singapore's Law Faculty, was in Geneva assisting the ministry for the third United Nations Conference on the Law of the Sea (Unclos). He received a telex from then MFA deputy secretary Tan Boon Seng asking him to head to London right away to search for colonial documents on Pedra Branca that could not be located in Singapore.
After consulting Koh, then Singapore's permanent representative to the United Nations, Jayakumar spent a few days looking up documents at the India Office in London and the Public Record Office in Kew. He returned with a microfilm of documents. But he could not unearth an 1844 letter that Straits Settlements Governor W.J. Butterworth wrote to the Johor Rulers, apparently about the island. He did, however, find copies of Johor's replies referring to Peak Rock, another island.
While at both offices, Jayakumar was asked if he was the person who had come two days earlier for similar documents. He concluded that the Malaysians must be searching for the same material.
Not long after, in December 1979, Malaysia published a map that, for the first time, included Pedra Branca as Malaysian territory. The move drew a formal protest from the Singapore Government.
Attempts to settle
Prime ministers on both sides raised the matter when they met for bilateral talks or at international events.
In a foreword to the book, Minister Mentor Lee Kuan Yew, who was prime minister at the time, said that while Singapore was surprised by Malaysia's claim in 1979, “I saw no need for this claim to trouble our bilateral relationship”.
“I went out of my way to persuade Malaysian PM Hussein Onn, under whose watch this claim was made, to settle the issue in an open and straightforward manner,” Lee wrote. “I found Hussein fair-minded when we discussed the Pedra Branca issue during his visit to Singapore in May 1980. He said both sides should search for documents to prove ownership of Pedra Branca.”
After Tun Dr Mahathir Mohamad took over in 1981 and visited Singapore in December that year, he and Lee agreed that both sides should exchange documents to establish the legitimacy of their respective claims.
Then in the late 1980s, in what was an unprecedented unilateral move, Lee instructed then Attorney-General Tan Boon Teik to go to Kuala Lumpur and show Singapore's documentary evidence to his Malaysian counterpart.
“I was prepared to take that step to get the Malaysians to know that we had a powerful legal case,” he wrote.
“But I also understood that it was difficult for any leader to give up sovereignty claims unilaterally.” This was why he proposed to Dr Mahathir in 1989 that if the matter was not settled after a document exchange, the dispute should be referred to the International Court of Justice.The need to find a political solution to the dispute became more urgent as throughout the 1980s, Malaysian Marine Police boats began to make regular incursions into waters around Pedra Branca.
The Singapore navy was under strict instructions to avoid escalating matters, and both sides acted with restraint.
Dr Mahathir was aware of the need not to let the situation get out of control, the authors note in the book. In 1989, he made an unannounced boat trip to the vicinity of Pedra Branca to personally size up the situation.
Recounting his visit at a function in Kuala Lumpur last year, Dr Mahathir said his boat was immediately intercepted by two Singapore naval vessels. As he did not want to cause an international incident, he asked his own boat to leave.
In 1994, Malaysia agreed to refer the matter to the ICJ.
Jayakumar and Koh noted that after studying Singapore's documents, Malaysian officials indicated privately that Singapore had a strong case, and that their claim was weak.
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Why did they persist in their claim? The authors say the issue had become politicised, and it would probably have been untenable for a Malaysian leader to be seen making a territorial concession.
Difficulties
Before the ICJ could decide the case, both sides had to sign a Special Agreement consenting to the court hearing the case and specifying the precise question on which the court was to decide.
This took three rounds of talks over four years, and eventually both sides agreed that the court would be asked to determine whether sovereignty over each of three close maritime features — Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge — belonged to Malaysia or to Singapore.
From early on, Singapore set up an inter-ministry committee on the case, bringing together officials from the Attorney-General's Chambers (AGC), MFA, the Defence and Law ministries and other relevant agencies.
A significant document they found was a 1953 letter from Johor's acting state secretary expressly disclaiming title over Pedra Branca — which the then Communications Ministry located in its archives in 1977.
Key members of the Singapore team, including the international counsel who would argue the case at the ICJ, visited Pedra Branca for a first-hand feel.
The book also reveals that Jayakumar made his own boat trip to the island as early as 1988 with then Communications and Information Minister Yeo Ning Hong — and faced a storm so huge that the ropes securing their lifeboat snapped and the crockery on board was smashed.
Two men on a fishing boat they passed by earlier that day died in that storm.
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Difficulties
Before the ICJ could decide the case, both sides had to sign a Special Agreement consenting to the court hearing the case and specifying the precise question on which the court was to decide.
This took three rounds of talks over four years, and eventually both sides agreed that the court would be asked to determine whether sovereignty over each of three close maritime features — Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge — belonged to Malaysia or to Singapore.
From early on, Singapore set up an inter-ministry committee on the case, bringing together officials from the Attorney-General's Chambers (AGC), MFA, the Defence and Law ministries and other relevant agencies.
A significant document they found was a 1953 letter from Johor's acting state secretary expressly disclaiming title over Pedra Branca — which the then Communications Ministry located in its archives in 1977.
Key members of the Singapore team, including the international counsel who would argue the case at the ICJ, visited Pedra Branca for a first-hand feel.
The book also reveals that Jayakumar made his own boat trip to the island as early as 1988 with then Communications and Information Minister Yeo Ning Hong — and faced a storm so huge that the ropes securing their lifeboat snapped and the crockery on board was smashed.
Two men on a fishing boat they passed by earlier that day died in that storm.
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Dilemmas
Once Malaysia agreed to a third party settlement before the ICJ in 1994, Jayakumar asked Sivakant Tiwari — then head of the civil division at the AGC — to list international lawyers who could help argue Singapore's case.
The team also decided to put forward Koh as Singapore's judge ad hoc on the ICJ as he had wide international diplomatic experience. A state can appoint such a judge when it appears before the ICJ and does not have its national on the bench.
But one of Singapore's counsel, Prof Alain Pellet, had reservations about Koh being Singapore's judge ad hoc as this could attract objections because he was involved in preparing Singapore's case. Koh could have withdrawn from the team, but after weighing all the considerations, the Government decided to rule out Koh as judge ad hoc as it was not worth running the risk of having Malaysia object to his appointment.
Singapore then decided on Judge P.S. Rao from India, who had been closely involved during negotiations on Unclos. But another dilemma emerged when then Attorney-General Chan Sek Keong was appointed chief justice in 2006. While he had been closely involved in steering Singapore's preparations, some in the team were concerned that his inclusion in the team could raise eyebrows. This was because it was unusual for the chief justice of any country to plead before the ICJ.
“Would it blur the distinctions between the executive and the judiciary? Would foreign critics who attack the independence of our judiciary use this as an additional argument?” the authors write.
After discussions, the team felt it was important that Singapore had the best talent to win the case. And so it was in Singapore's interest to have Chan continue his work on the case. The matter was discussed with Prime Minister Lee Hsien Loong and Cabinet colleagues, who had no doubts that Chan would be an asset, and that there was nothing improper about him leading Singapore's team to The Hague.
It helped that Chan, Koh and Jayakumar had known one another for a long time and were law school contemporaries. Then Attorney-General Chao Hick Tin was also a close friend. Each of Singapore's three prime ministers also took a deep interest in the management of the dispute and preparations for the case. “They showed full confidence in the team and did not attempt to micro-manage,” the authors said of Lee Kuan Yew, Goh Chok Tong and Lee Hsien Loong.
Scouring the archives
As preparations for the case picked up pace, the team consulted local and foreign experts on international law and Malay history. Tiwari chaired a committee to coordinate the effort systematically with MFA, the Ministry of Defence, the Maritime and Port Authority and National Archives.
From 2003 to 2006, the Archives deployed five full-time staff and 10 part-timers to locate archival records relating to Pedra Branca, piracy, the Malay concept of sovereignty and the status of the Sultan of Johor, among others.
They spent over 20,000 research hours, identified more than 2,000 records, transcribed 650 historical manuscripts and acquired copies of records from Britain, India, Indonesia, the Netherlands, Australia and New Zealand.
During the oral hearing at The Hague last year, Archives staff were on standby here to assist the Singapore team.
Without their help, the AGC and international counsel would not have the materials with which to write their pleadings, the authors note.
Among the gems they uncovered was a letter written by the Dutch colonial authority in Indonesia acknowledging Pedra Branca as “British territory”, which Singapore used as evidence to back its case.
Koh, Jayakumar, Chan and Chao were to argue Singapore's case along with four international counsel — Queen's Counsel Ian Brownlie from England, Rodman Bundy from the United States, Frenchman Alain Pellet and Italian Loretta Malintoppi. The team and counsel met several times to prepare written pleadings, counter-arguments and replies. Jayakumar even approached Senior Counsel Davinder Singh for an independent and neutral view on the pleadings of both sides.
The team was encouraged by his response — that Singapore had the better argument.
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Once Malaysia agreed to a third party settlement before the ICJ in 1994, Jayakumar asked Sivakant Tiwari — then head of the civil division at the AGC — to list international lawyers who could help argue Singapore's case.
The team also decided to put forward Koh as Singapore's judge ad hoc on the ICJ as he had wide international diplomatic experience. A state can appoint such a judge when it appears before the ICJ and does not have its national on the bench.
But one of Singapore's counsel, Prof Alain Pellet, had reservations about Koh being Singapore's judge ad hoc as this could attract objections because he was involved in preparing Singapore's case. Koh could have withdrawn from the team, but after weighing all the considerations, the Government decided to rule out Koh as judge ad hoc as it was not worth running the risk of having Malaysia object to his appointment.
Singapore then decided on Judge P.S. Rao from India, who had been closely involved during negotiations on Unclos. But another dilemma emerged when then Attorney-General Chan Sek Keong was appointed chief justice in 2006. While he had been closely involved in steering Singapore's preparations, some in the team were concerned that his inclusion in the team could raise eyebrows. This was because it was unusual for the chief justice of any country to plead before the ICJ.
“Would it blur the distinctions between the executive and the judiciary? Would foreign critics who attack the independence of our judiciary use this as an additional argument?” the authors write.
After discussions, the team felt it was important that Singapore had the best talent to win the case. And so it was in Singapore's interest to have Chan continue his work on the case. The matter was discussed with Prime Minister Lee Hsien Loong and Cabinet colleagues, who had no doubts that Chan would be an asset, and that there was nothing improper about him leading Singapore's team to The Hague.
It helped that Chan, Koh and Jayakumar had known one another for a long time and were law school contemporaries. Then Attorney-General Chao Hick Tin was also a close friend. Each of Singapore's three prime ministers also took a deep interest in the management of the dispute and preparations for the case. “They showed full confidence in the team and did not attempt to micro-manage,” the authors said of Lee Kuan Yew, Goh Chok Tong and Lee Hsien Loong.
Scouring the archives
As preparations for the case picked up pace, the team consulted local and foreign experts on international law and Malay history. Tiwari chaired a committee to coordinate the effort systematically with MFA, the Ministry of Defence, the Maritime and Port Authority and National Archives.From 2003 to 2006, the Archives deployed five full-time staff and 10 part-timers to locate archival records relating to Pedra Branca, piracy, the Malay concept of sovereignty and the status of the Sultan of Johor, among others.
They spent over 20,000 research hours, identified more than 2,000 records, transcribed 650 historical manuscripts and acquired copies of records from Britain, India, Indonesia, the Netherlands, Australia and New Zealand.
During the oral hearing at The Hague last year, Archives staff were on standby here to assist the Singapore team.
Without their help, the AGC and international counsel would not have the materials with which to write their pleadings, the authors note.
Among the gems they uncovered was a letter written by the Dutch colonial authority in Indonesia acknowledging Pedra Branca as “British territory”, which Singapore used as evidence to back its case.
Koh, Jayakumar, Chan and Chao were to argue Singapore's case along with four international counsel — Queen's Counsel Ian Brownlie from England, Rodman Bundy from the United States, Frenchman Alain Pellet and Italian Loretta Malintoppi. The team and counsel met several times to prepare written pleadings, counter-arguments and replies. Jayakumar even approached Senior Counsel Davinder Singh for an independent and neutral view on the pleadings of both sides.
The team was encouraged by his response — that Singapore had the better argument.
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At the hearings
Countries traditionally appear before the court in alphabetical order. But Malaysia's counsel Elihu Lauterpacht disagreed — presumably because he wanted Malaysia to have the last word. He suggested tossing a coin. But Singapore rejected this as being flippant, and both sides agreed to let the court decide. In September 2006, the registrar said the court drew lots: Singapore would go first.
While disappointed, Singapore took the development in its stride, going ahead on the basis that “in starting first, we would be able to make a strong and lasting impression on the judges while their minds were still fresh”.
To prepare for the oral hearing, Jayakumar, Koh, Chan and Chao had a filmed rehearsal of their speeches at the MFA in October last year. A second rehearsal was held two weeks later, and a third at the Supreme Court, where Chan and Jayakumar made their case before Appeal Judges V.K. Rajah and Andrew Phang.
The mood of the team before it departed for The Hague was “calm, confident and upbeat”.
“Although confident, we reminded ourselves not to be smug or underestimate the strength of the Malaysian legal team, which included several international legal luminaries. We knew they were going to give us a good fight.”
Both Jayakumar and Koh wrote that the Singapore and Malaysian media reported on the hearing in a balanced manner. They said that “when Malaysia was presenting its case, The Straits Times did such a good job reporting on Malaysia's arguments that we were told that some Singaporeans were betting 60:40 that Malaysia would win the case!”
“We did not know whether the punters had changed the odds after reading Singapore's presentations in the second round, but we were confident that we had answered all of Malaysia's points and left them with nothing substantial to say in their final speeches, except to spring a new argument on us,” they said.
Key factor for success
The authors note that while the legal arguments, well-written pleadings, persuasive oral arguments of team members and very good international counsel were all important to the successful outcome, the most important factor was that all agencies here worked closely together over three decades.
“The Pedra Branca story is an excellent illustration of the 'whole of government approach'.”
Although Singapore was awarded sovereignty over only Pedra Branca, MM Lee said in his foreword in the book that Singapore accepted the judgment without any qualification: “Whichever way the judgment went, it is better for bilateral relations that a conclusive judgment has been made. This allows us to put aside this issue and move on to other areas of cooperation.”
Summing up, he said that Singapore must remain committed to upholding the rule of law in the relations between states.
If negotiations cannot resolve disputes, it is better to go to a third party than to allow the dispute to fester and sour ties. This was his approach, which his successors have also subscribed to. — Straits Times Singapore
International Court of Justice case
The Peace Palace in The Hague, Netherlands, the seat of the International Court of Justice.
On 21 December 1979, the Director of National Mapping of Malaysia published a map entitled Territorial Waters and Continental Shelf Boundaries of Malaysia showing Pedra Branca to be within its territorial waters. Singapore rejected this "claim" in a diplomatic note of 14 February 1980 and asked for the map to be corrected. The dispute was not resolved by an exchange of correspondence and intergovernmental talks in 1993 and 1994. In the first round of talks in February 1993 the issue of sovereignty over Middle Rocks and South Ledge was also raised. Malaysia and Singapore therefore agreed to submit the dispute to the International Court of Justice (ICJ), signing a Special Agreement for this purpose in February 2003 and notifying the Court of it in July 2003. The case was heard at the Peace Palace in The Hague between 6 and 23 November 2007.
The ICJ delivered its judgment on 23 May 2008. It held that although Pedra Branca had originally been under the sovereignty of Johor, the conduct of Singapore and its predecessors à titre de souverain (with the title of a sovereign) and the failure of Malaysia and its predecessors to respond to such conduct showed that by 1980, when the dispute between the parties arose, sovereignty over the island had passed to Singapore. The relevant conduct on the part of Singapore and its predecessors included investigating marine accidents in the vicinity of the island, planning land reclamation works, installing naval communications equipment, and requiring Malaysian officials wishing to visit the island to obtain permits. In contrast, Johor and its successors had taken no action with respect to the island from June 1850 for a century or more. In 1953 the Acting Secretary of the State of Johor had stated that Johor did not claim ownership of Pedra Branca. All visits made to the island had been with Singapore's express permission, and maps published by Malaysia in the 1960s and 1970s indicated that it recognized Singapore's sovereignty over Pedra Branca.
Like Pedra Branca, the Sultan of Johor held the original ancient title to Middle Rocks. As Singapore had not exercised any rights as a sovereign over Middle Rocks, the ICJ determined that Malaysia retained sovereignty over this maritime feature. As for South Ledge, the ICJ noted that it fell within the apparently overlapping territorial waters of mainland Malaysia, Pedra Branca and Middle Rocks. As the Court had not been mandated to draw the line of delimitation with respect to the territorial waters of Malaysia and Singapore in the area in question, it simply held that sovereignty over South Ledge belonged to the state which owned the territorial waters in which it is located.
Reactions to ICJ decision
Although both Malaysia and Singapore had agreed to respect and accept the ICJ's decision, Malaysian Foreign Minister Rais Yatim later said his country had renewed its search for the letters written by Governor Butterworth to the Sultan and Temenggung of Johor seeking permission to build Horsburgh Lighthouse on Pedra Branca. He noted that the rules of the ICJ allowed a case to be reviewed within ten years if new evidence was adduced. In response, Singapore's Law Minister K. Shanmugam said that the city-state would wait to see what new evidence the Malaysian government could come up with.
A week after the delivery of the ICJ's judgment, the Foreign Ministry of Malaysia asked the Malaysian media to cease using the Malay word Pulau ("Island") for Pedra Branca and to refer to it as "Batu Puteh" or "Pedra Branca". On 21 July 2008, in response to questions from Singapore Members of Parliament about Pedra Branca, the Senior Minister of State for Foreign Affairs Balaji Sadasivan stated that the maritime territory around the island included a territorial sea of up to 12 nautical miles (22 km/14 mi) and an Exclusive Economic Zone. This was condemned by Malaysia's Foreign Minister Rais Yatim as "against the spirit of Asean and the legal structure" as the claim was "unacceptable and unreasonable and contradicts the principles of international law". In response, a Singapore Ministry of Foreign Affairs spokesman said that Singapore first stated its claim to a territorial sea and Exclusive Economic Zone on 15 September 1980, and reiterated this claim on 23 May 2008 following the ICJ's judgment. Both statements had made clear that if the limits of Singapore's territorial sea or Exclusive Economic Zone overlapped with the claims of neighbouring countries, Singapore would negotiate with those countries to arrive at agreed delimitations in accordance with international law.
In August 2008, Rais said Malaysia took the view that Singapore was not entitled to claim an Exclusive Economic Zone around Pedra Branca as it considered that the maritime feature did not meet internationally recognised criteria for an island, that is, land inhabited by humans that had economic activity.
Countries traditionally appear before the court in alphabetical order. But Malaysia's counsel Elihu Lauterpacht disagreed — presumably because he wanted Malaysia to have the last word. He suggested tossing a coin. But Singapore rejected this as being flippant, and both sides agreed to let the court decide. In September 2006, the registrar said the court drew lots: Singapore would go first.
While disappointed, Singapore took the development in its stride, going ahead on the basis that “in starting first, we would be able to make a strong and lasting impression on the judges while their minds were still fresh”.
To prepare for the oral hearing, Jayakumar, Koh, Chan and Chao had a filmed rehearsal of their speeches at the MFA in October last year. A second rehearsal was held two weeks later, and a third at the Supreme Court, where Chan and Jayakumar made their case before Appeal Judges V.K. Rajah and Andrew Phang.
The mood of the team before it departed for The Hague was “calm, confident and upbeat”.
“Although confident, we reminded ourselves not to be smug or underestimate the strength of the Malaysian legal team, which included several international legal luminaries. We knew they were going to give us a good fight.”
Both Jayakumar and Koh wrote that the Singapore and Malaysian media reported on the hearing in a balanced manner. They said that “when Malaysia was presenting its case, The Straits Times did such a good job reporting on Malaysia's arguments that we were told that some Singaporeans were betting 60:40 that Malaysia would win the case!”
“We did not know whether the punters had changed the odds after reading Singapore's presentations in the second round, but we were confident that we had answered all of Malaysia's points and left them with nothing substantial to say in their final speeches, except to spring a new argument on us,” they said.
Key factor for success
The authors note that while the legal arguments, well-written pleadings, persuasive oral arguments of team members and very good international counsel were all important to the successful outcome, the most important factor was that all agencies here worked closely together over three decades.
“The Pedra Branca story is an excellent illustration of the 'whole of government approach'.”
Although Singapore was awarded sovereignty over only Pedra Branca, MM Lee said in his foreword in the book that Singapore accepted the judgment without any qualification: “Whichever way the judgment went, it is better for bilateral relations that a conclusive judgment has been made. This allows us to put aside this issue and move on to other areas of cooperation.”
Summing up, he said that Singapore must remain committed to upholding the rule of law in the relations between states.
If negotiations cannot resolve disputes, it is better to go to a third party than to allow the dispute to fester and sour ties. This was his approach, which his successors have also subscribed to. — Straits Times Singapore
International Court of Justice case
The Peace Palace in The Hague, Netherlands, the seat of the International Court of Justice.
On 21 December 1979, the Director of National Mapping of Malaysia published a map entitled Territorial Waters and Continental Shelf Boundaries of Malaysia showing Pedra Branca to be within its territorial waters. Singapore rejected this "claim" in a diplomatic note of 14 February 1980 and asked for the map to be corrected. The dispute was not resolved by an exchange of correspondence and intergovernmental talks in 1993 and 1994. In the first round of talks in February 1993 the issue of sovereignty over Middle Rocks and South Ledge was also raised. Malaysia and Singapore therefore agreed to submit the dispute to the International Court of Justice (ICJ), signing a Special Agreement for this purpose in February 2003 and notifying the Court of it in July 2003. The case was heard at the Peace Palace in The Hague between 6 and 23 November 2007.
The ICJ delivered its judgment on 23 May 2008. It held that although Pedra Branca had originally been under the sovereignty of Johor, the conduct of Singapore and its predecessors à titre de souverain (with the title of a sovereign) and the failure of Malaysia and its predecessors to respond to such conduct showed that by 1980, when the dispute between the parties arose, sovereignty over the island had passed to Singapore. The relevant conduct on the part of Singapore and its predecessors included investigating marine accidents in the vicinity of the island, planning land reclamation works, installing naval communications equipment, and requiring Malaysian officials wishing to visit the island to obtain permits. In contrast, Johor and its successors had taken no action with respect to the island from June 1850 for a century or more. In 1953 the Acting Secretary of the State of Johor had stated that Johor did not claim ownership of Pedra Branca. All visits made to the island had been with Singapore's express permission, and maps published by Malaysia in the 1960s and 1970s indicated that it recognized Singapore's sovereignty over Pedra Branca.
Like Pedra Branca, the Sultan of Johor held the original ancient title to Middle Rocks. As Singapore had not exercised any rights as a sovereign over Middle Rocks, the ICJ determined that Malaysia retained sovereignty over this maritime feature. As for South Ledge, the ICJ noted that it fell within the apparently overlapping territorial waters of mainland Malaysia, Pedra Branca and Middle Rocks. As the Court had not been mandated to draw the line of delimitation with respect to the territorial waters of Malaysia and Singapore in the area in question, it simply held that sovereignty over South Ledge belonged to the state which owned the territorial waters in which it is located.
Reactions to ICJ decision
Although both Malaysia and Singapore had agreed to respect and accept the ICJ's decision, Malaysian Foreign Minister Rais Yatim later said his country had renewed its search for the letters written by Governor Butterworth to the Sultan and Temenggung of Johor seeking permission to build Horsburgh Lighthouse on Pedra Branca. He noted that the rules of the ICJ allowed a case to be reviewed within ten years if new evidence was adduced. In response, Singapore's Law Minister K. Shanmugam said that the city-state would wait to see what new evidence the Malaysian government could come up with.
A week after the delivery of the ICJ's judgment, the Foreign Ministry of Malaysia asked the Malaysian media to cease using the Malay word Pulau ("Island") for Pedra Branca and to refer to it as "Batu Puteh" or "Pedra Branca". On 21 July 2008, in response to questions from Singapore Members of Parliament about Pedra Branca, the Senior Minister of State for Foreign Affairs Balaji Sadasivan stated that the maritime territory around the island included a territorial sea of up to 12 nautical miles (22 km/14 mi) and an Exclusive Economic Zone. This was condemned by Malaysia's Foreign Minister Rais Yatim as "against the spirit of Asean and the legal structure" as the claim was "unacceptable and unreasonable and contradicts the principles of international law". In response, a Singapore Ministry of Foreign Affairs spokesman said that Singapore first stated its claim to a territorial sea and Exclusive Economic Zone on 15 September 1980, and reiterated this claim on 23 May 2008 following the ICJ's judgment. Both statements had made clear that if the limits of Singapore's territorial sea or Exclusive Economic Zone overlapped with the claims of neighbouring countries, Singapore would negotiate with those countries to arrive at agreed delimitations in accordance with international law.
In August 2008, Rais said Malaysia took the view that Singapore was not entitled to claim an Exclusive Economic Zone around Pedra Branca as it considered that the maritime feature did not meet internationally recognised criteria for an island, that is, land inhabited by humans that had economic activity.
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What were they trying to do?
.IN THE HAGUE - AT A glance, the two pictures look alike. Both have Horsburgh Lighthouse and Pedra Branca in the foreground.But look again - at the background which shows the Johor mainland, with Point Romania and a hill named Mount Berbukit. In one picture the hill is highly visible; in the other, it is hardly visible.Therein lies the photographic illusion that Malaysia had created to exaggerate the closeness of Pedra Branca to Johor, Singapore said yesterday at the International Court of Justice (ICJ) in The Hague.
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The first photograph, which Malaysia had shown the court last week, was taken by a camera using a telephoto lens.The second photograph was taken by Singapore, using a camera lens that approximates what the human eye sees. As a result, the Malaysian photograph exaggerated the height of Mount Berbukit by about seven times, Singapore's Attorney-General Chao Hick Tin said when he presented the two photos before the court.He described it as 'an attempt to convey a subliminal message of proximity between Pedra Branca and the coast of Johor'.
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But it was not an accurate reflection of what visitors to Pedra Branca would see if they were looking towardsthe Johor mainland, he said. Mr Chao was speaking before the ICJ as the hearing over the Pedra Branca dispute enters the third week. Yesterday was the first day of Singapore's rebuttals against Malaysia's oral arguments made last week.
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Both countries are appearing at the ICJ to resolve their dispute over the sovereignty of the island 40km east of Singapore and which stands at the eastern entrance of the Singapore Strait. Last week, Malaysia had also claimed the photo in question was taken from an online blog or weblog. The implication was the photo came from an independent source.
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But yesterday, Mr Chao raised questions about the blog: www.leuchtturm3.blogspot.com .'This blog site is a most unusual one. It was created only last month. There is no information on the identity of the blogger and the photograph used by Malaysia was only put on the website on Nov 2 2007, four days before the start of these oral proceedings,' he said.
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Mr Chao also sought to debunk Malaysia's claim that Pedra Branca was near Point Romania in Johor. The phrase 'near Point Romania' was used in an 1844 letter from the Temenggong of Johor to Governor Butterworth in Singapore.
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In that letter, the Temenggong gave permission for the British to build a lighthouse on any island near Point Romania. Malaysia claimed the phrase included Pedra Branca, and that the letter showed Britain acknowledged Johor's sovereignty over the island.
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Mr Chao said the letter did not refer to Pedra Branca but to Peak Rock which, in 1844, was where the British planned to build a lighthouse. He pointed out the distance between Pedra Branca and Point Romania was six times that between the latter and Peak Rock. In an 1846 letter, Governor Butterworth explained his original preference for Peak Rock as the site of a lighthouse because Pedra Branca was 'at so great a distance from the main land'.
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Singapore's rebuttals yesterday were launched by Deputy Prime Minister S. Jayakumar. He highlighted five 'baseless allegations and insinuations' that Malaysia had lobbed against Singapore and rebutted each in turn. Among them was Malaysia's charge that Singapore wished to 'subvert' long-established arrangements in the Singapore Strait.On the contrary, he said, it was Kuala Lumpur that tried to alter the status quo through the publication of a map in 1979 that altered its maritime boundaries with seven of its neighbours. That was also the map that sparked the current dispute.
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Prof Jayakumar said he was disappointed that Malaysia had resorted to such allegations in its bid to win the case. 'We should seek to win by stating objective facts and submitting persuasive legal arguments, and not by resorting to unfounded political statements and making insinuations damaging to the integrity of the opposite party,' he said.
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