Physical attributes
Pedra Branca has an area of 2,000 m², and during the low water spring tide it measures, at its longest, a mere 137 m. It does not include Middle Rocks, which are two clusters of rocks situated 0.6 nautical miles (1.1 km) south of the island that is owned by Malaysia, and South Ledge, a rock formation visible only at low-tide, 2.1 nmi (3.9 km) to the south.[3]
Singapore refers to the island as Pedra Branca ("white rock" in Portuguese), and Malaysia as Pulau Batu Puteh ("island of the white rock" in Malay); the island is so named for whitish bird droppings that were seen on the rock in the past.
History
The island first appeared in navigational records as early as 1583. Dutch voyager Johann van Linschoten then recorded that Pedra Branca is "where ships that come and go to and from China pass in great danger and some are left upon it". The rocks get their name from years of accumulated bird droppings which hardened upon the rock.[4]
In 1851, the Horsburgh Lighthouse was built on the island and named after Captain James Horsburgh,[5] a Scottish hydrographer to the British East India Company who mapped the waters of the area.
The rocks have long been a navigational hazard. For example, between 1824 and 1851, at least twenty-five sizeable vessels met with disaster on those rocks. Between 2000 and 2004 there were two reports of ship collisions.
RSS Courageous collision
On 4 January 2003, RSS Courageous of the Republic of Singapore Navy collided with a 293.5 m long Dutch merchant ship, ANL Indonesia, near to the disputed island.[6] While no one sustained injuries on the merchant ship, which was relatively undamaged, the 57.84-m 44-crew anti-submarine patrol vessel had a rear section sheared off.[7] In addition, three of its crew died, eight suffered injuries, and one person's body was never found. Subsequently, the navy ship's crew was found to be largely responsible for the accident.[8][9]
Territorial dispute
Ownership of Pedra Branca/Pulau Batu Puteh is disputed by Singapore and Malaysia and is the only formal dispute over the maritime Malaysia-Singapore Border.
The dispute dates back to early 1980, when Singapore lodged a formal protest with Malaysia in response to a map published by Malaysia in 1979 claiming the island. In 1989 Singapore proposed submitting the dispute to the International Court of Justice (ICJ). Malaysia agreed to this in 1994. In 1998 the two countries agreed on a Special Agreement that was needed to submit the dispute to the ICJ. The Special Agreement was signed in February 2003, and the ICJ formally notified in July that year.[3]
Claims
Singapore has been administering Pedra Branca and managing Horsburgh Lighthouse as early as 1851.
Singapore had been under British rule following the Anglo-Dutch Treaty of 1824 and most of Malaya were colonised by the British by the end of the 19th century. Singapore, was ruled as a Straits Settlement from 1826 and later as a British crown colony from 1867. Singapore gained self-rule in 1959 and later became part of independent Malaysia in 1963. On 7 August 1965, the Parliament of Malaysia voted to expel Singapore from Malaysia; the secession was effected two days later and Singapore became a sovereign, independent nation. The Separation Agreement in 1965[10] did not address the issue of sovereignty over Pedra Branca. Singapore continues to administer the island and manage the lighthouse. Singapore states that it has exercised full sovereignty over the island since the 1840s without any protest from Malaysia.[11]
Malaysia first claimed the island officially in 1979 when the country published new official maps, which included the island of Pedra Branca in its territory. The Malaysian state of Johor asserts that when Johor Sultanate ceded Singapore to the British in 1824, the island was not part of the secession and that the Sultan of Johor only allowed the British to construct a lighthouse on the island in 1844.[12] This follows a letter dated November 25 1844 from the Sultan and the Temenggung of Johor to the British which gave the British a permission to build a lighthouse on an island.[13]
In 1824, Sultan of Johor ceded Singapore and the surrounding 10 nmi (18.5 km) to the British East India Company.[14] Pedra Branca is located 25 nmi (46.3 km) away from Singapore; the island is 7.7 nmi (14.3 km) away from Johor.[15]
ICJ dispute resolution proceedings
In 2004, both sides agreed to bring the matter to the ICJ in The Hague, following an agreement by the two countries on 6 February 2003.[11]
Written pleadings were submitted by both parties to the ICJ from March 2004 to November 2005,[16] with public hearings scheduled to commence on 6 November 2007.[17] Singapore will present its case from 6 November to 9 November 2007, followed by Malaysia which will present from 13 November to 16 November 2007. Each country will then be given two days to respond, with 19 November to 20 November 2007 assigned for Singapore and 22 November to 23 November 2007 assigned for Malaysia.[18]
The case will be presided by ICJ vice-president Judge Awn Shawkat Al-Khasawneh, alongside 13 other judges and two ad-hoc judges appointed by the two countries. The judges are Raymond Ranjeva from Madagascar, Shi Jiuyong from the People's Republic of China, Abdul G. Koroma from Sierra Leone, Gonzalo Parra Aranguren from Venezuela, Thomas Buergenthal from the United States, Hisashi Owada from Japan, Bruno Simma from Germany, Peter Tomka from Slovakia, Ronny Abraham from France, Kenneth Keith from New Zealand, Bernardo Sepúlveda Amor from Mexico, Mohamed Bennouna from Morocco and Leonid Skotnikov from Russia. Pemmaraju Sreenivasa Rao from India and Christopher S.R. Dugard from South Africa were appointed by Singapore and Malaysia as ad-hoc judges respectively.[19]
Singapore's case
Singapore commenced the hearing on 7 November 2007 by disputing Malaysia's claims over the island and demonstrating Singapore's consistent exercise of authority through various acts since 1847.[20][21][22] The Singapore delegation is led by Deputy Prime Minister and Minister for Law Shunmugam Jayakumar, with Chief Justice Chan Sek Keong, Attorney-General Chao Hick Tin and Ambassador at Large Tommy Koh forming up the rest of the delegation. They are accompanied by a legal counsel team formed by international experts, namely Queen's Counsel Ian Brownlie from the University of Oxford, Professor Alain Pellet of the University of Paris X: Nanterre, and two law specialists from English firm Eversheds, Mr Rodman Bundy and Ms Loretta Malintoppi.[23]
[edit] Malaysia's claims prior to 1847
Chief Justice Chan Sek Keong produced evidence disputing Malaysia's portrayal of a stable Johor Sultanate from the 16th to the 19th century with an established territorial border spanning the same period, including that of the disputed islands. Works by Carl Trocki and Richard Winstedt wrote that the Sultanate has been "in a precarious state since its foundation". The Annual Report of the State of Johor Government published in 1949 stated that the Sultanate was in a "state of dissolution" by the start of the 19th century.
Singapore argued that traditional Malay sovereignty was exercised through the allegiance of the people to the ruler, rather than the demarcation of physical territory. That the islands were uninhabited thus gave little certainty over the Sultanate's exercise of control over them. Malaysia's use of the Anglo-Dutch Treaty of 1824 to back up its claims was also dismissed as a misinterpretation of the treaty.
Singapore's demonstration of ownership since 1847
Singapore's territorial claims over the islands formally began in 1847, when the British government, through the Straits Settlements government, decided to build a lighthouse on Pedra Branca. When the foundation stone was laid in 1851, the island was referred to as a "dependency of Singapore". Singapore had on two occasions stated its entitlement to claim the sea around the islands as its territorial waters: in 1952 prior to independence in 1965 by the Chief Surveyor, and after independence in 1974 by the Marine Department of Singapore. Reclaimation works were considered to expand the islands in the early 1970s, with public tenders called by 1978.
For over 130 years since 1847, Malaysia had been silent over Singapore's activities and exercise of sovereignty over Pedra Branca. No other state had challenged Singapore's claims, and she had done so without having to seek approval from any other state. Ambassador at Large Tommy Koh highlighted this, saying
| “ | A key feature of this case is the constant stream of Singapore's acts of administration in relation to Pedra Branca, contrasted with the complete absence of Malaysian activities on Pedra Branca or within its territorial waters, and with Malaysia's silence in the face of all these state activities of Singapore... Such silence on Malaysia's part is significant and must be taken to mean that Malaysia never regarded Pedra Branca as her territory.[22] | ” |
Malaysia's disclaimer of ownership since 1953
Even prior to Singapore's attainment of full independence, the Johor State Government had stated in an official letter that Johor "does not claim ownership of Pedra Branca" in response to an inquiry from Singapore in 1953. Two official maps published by the Federation of Malaya showed the islands as belonging to Singapore in 1962, as was also the case in official maps published in 1965 and 1975.
A May 1980 audio recording of Malaysia's former Prime Minister Tun Hussein Onn had him admitting that the question of sovereignty over Pedra Branca was "not very clear" to Malaysia during a news conference with Singapore's then Prime Minister Lee Kuan Yew.[24]
Malaysia's case
The Malaysian delegation is headed by Abdul Kadir Mohamad, the Prime Minister's adviser on foreign affairs with the Malaysian ambassador to the Netherlands, Noor Farida Ariffin as co-agent. The Attorney-General Abdul Gani Patail leads the legal team.[25] The Malaysian team is aided by Elihu Lauterpacht, James Crawford and Penelope Nevill of Cambridge University, Nicolaas Jan Schrijver of Leiden University and Marcelo Kohen of Graduate Institute of International Studies at Geneva.[19] Attorney-General Tan Sri Abdul Gani Patail expressed optimism in winning the case for Malaysia, saying
| “ | We are well prepared and our team has all the documents and evidence to win the dispute... InsyaAllah [God willing]... Everyone is in high spirit... especially myself. This is one of the most anticipated disputes after Malaysia won the tussle over the Ligitan and Sipadan Islands in 2002.[19] | ” |
No Formal Claims by British
Malaysia's lead counsel states that there was no formal claim by the British prior to 1851 that shows that the islands are British. This is despite repeated claims by Singapore to the contrary. Furthermore, he said that there is no evidence to support the notion that the British conducted activities to claim the island under their rule. He added that building the light house is not a testament of sovereignty over the island[26].
Britain, while governing Singapore, did not make any attempts to proclaim sovereignty over the island. This is due to the fact that during that period, Britain was known to conduct a formal actions proclaiming the sovereignty of a land. Such action was demonstrated when the British landed on Pulau Ubin where they read out a formal declaration and fired a 21-gun salute. Such action did not occur in Pulau Batu Puteh.[27]
The counsel further added that correspondence between the British governor and the Sultan did not indicate any intention that Britain was going to annex the island for the construction of the light house or proclaim sovereignty over the islands between 1844 to 1851. Although not denying that Britain build the light house, the counsel emphasized that Britain did not claim the island as her own, but merely operated on the island for maritime purpose only. All Singaporean activities, including the building of the heliport, military installation and additional naval navigation equipment, are merely following Britain's act.[27]
Singaporean Case
Singaporean claim over the islands is based on the fact that the island belonged to nobody while the rocks have always been part of Johor .[28]
The issue of sovereignty over the islands was only raised by Singapore on April 13 1978. In a meeting on December 21 1979, Singapore did not officially object to the 1979 Malaysian map. Instead of making its objection clear, Singapore in its pleadings only downplayed the publication of the Malaysian map and only officially claimed the island on February 14 1980. As for Middle Rocks and South Ledge, Singapore only claimed sovereignty in 1993.[28]
The Attorney General of Malaysia informed the court that in a press conference in Singapore, former Malaysian Prime Minister Hussein Onn was merely being friendly and respectful as a guest when he responded to an inquiry regarding the sovereignty of the island made by Lee Kuan Yew. The inquiry by the latter is based on a document which Singapore has yet to produce to the court.[28]
Operation of Lighthouse
The Lead counsel said that the purpose for the construction and operation of the light house was for naval navigation and safety instead of evidence of sovereignty. He further added that when the British built the light house, they had no intention of claiming the island but to form the Straits Light system at that time. The Malaysian team asserted that Great Britain operated the light house with the consent of Johor.[29] On top of that, Singaporean activities on the islands are only relevant to the operation and well being of the light house. Singapore is said to be the sole administrator of the light house.[26]
The Lead counsel added that British activities on the light house were carried out as the operator of the light house, although Singapore claims that Britain was exercising state function of the islands. He further added that construction and operation of light houses worldwide by Britain were never considered as acts of establishing sovereignty by Britain. Britain asked permission from the Sultan and Temenggong of Johor for the construction of the light house, strenghthening the notion that Britain's interest in the light house concerned maritime safety, not the establishment of sovereignty.[30]
Johor Sultanate's sovereignty over Pulau Batu Puteh
The lead counsel claimed that the islands were a part of the Johor Sultanate prior to 1824.
In the Crawfurd Treaty of 1824, Johor transferred sovereignty over Singapore Island to the East India Company together with the islets and rocks within 10 geographical miles of Singapore. Pulau Batu Puteh is 25.5 miles (41.0 km) away from Singapore. (Opening speech by the agent of Malaysia, Tan Sri Abdul Kadir Mohamad at the ICJ on 13 Nov 2007)
The chief reason that the island belonged to Johor was laid in the Treaty of Cession of Singapore, between the British East India Company and the Sultan and the Temenggong of Johor. It implied that Johor had sovereignty over islets beyond 10 miles (16 km) of its coast. The island is located 25.5 nautical miles (47.2 km) from Singapore.[31] This is further strengthened by the fact that the British government had requested approval from the Sultanate of Johor to build a lighthouse on the island, which Johor agreed to provide in 1844.[29] Apart from that, the Singaporean claim on the island violates the Anglo-Dutch Treaty of 1824.[29]
Singapore's rebuttal
Chief Justice Chan Sek Keong rebutted Malaysia's claim that she had original title over Pedra Branca. He pointed out that Malaysia had provided "no evidence that Pedra Branca belonged to the Johor Sultanate at any point in its history". He also pointed out that Malaysia had glossed over historical facts which undermined Malaysia's case and had also misinterpreted the Anglo-Dutch Treaty of 1824.
Professor Alain Pellet spoke next on the irrelevance of the few pieces of historical evidence that Malaysia had relied upon to support her claim. Professor Pellet also showed that the British did not seek, and did not need to seek, the permission of the Sultan or the Temenggong of Johor in taking possession of Pedra Branca to build Horsburgh Lighthouse.
On the second day of the proceedings on 7 November 2007, Mr Ian Brownlie, Q.C., showed in detail how the British authorities in Singapore took possession of Pedra Branca and exercised acts of sovereignty over the island. At this time, Pedra Branca belonged to no one. The British acts were of an official nature. They were public and were not protested by any other powers during the entire period from 1847 to 1851. He also highlighted to the Court that in 1850, official Dutch correspondence had described Pedra Branca as British territory. In the same year, Pedra Branca was described as a dependency of Singapore at the ceremony for the laying of the foundation stone of Horsburgh Lighthouse.
Malaysia's rebuttal
The Attorney General said that Singapore failed to produce concrete legal evidence that the islands is no man's land. He further added Singaporean activities after December 1979 was not normal act of administrating the light house but to further strengthen Singapore's claim on the islands.[32]
Johor has no power to disown territories
Singapore has claimed that in 1953, Johor acting state secretary, M. Seth Saaid, wrote a letter to the Singapore government claiming that the island is no man's land. The Attorney General countered this claim by declaring that Johor is not a sovereign state in 1953 due to Johor Agreement and Federation of Malaya Agreement enforce in 1948 by the British government. Due to this agreement, Johor has no power to disown ownership of any territory in general and the islands in particular as these kind of powers has been transferred to the British. He further added that the state secretary is acting out on his own because he only wrote it to the Singaporean authorities, without submitting a copy to the chief secretary.[32]
Johor Sultanate still exists today
One of Singapore arguments is the Johor Sultanate that controls the island disappeared after it was attacked by the Dutch. Malaysia's counsel, Professor Nico Schrijver, countered that argument by stating that Johor's name, dynasty, allegiance of her people and control of territory still exists to this date. As the result of the Dutch attack, the Sultan did flee from Johor to Riau and Lingga but was in control of new subjects named Orang Laut. The Johor sultanate at all times was in the vicinity of the islands. The Johor empire was split into two which one which is headed by Sultan Hussein who signed the Crawfurd Treaty which Johor agree to cede Singapore and her surrounding areas to the extent of 10 nautical miles (19 km) from the main island. The 1844 permission to build the light house did not include transfer of sovereignty.[33]
Controversies
Photograph controversy
In the course of the court hearing, Malaysia produced a picture of Pedra Branca. However, Singapore raised questions regarding the reliability of the source, which was taken from an allegedly independent blog.[34] In the picture produced by Malaysia, the background depicting a Johor mountain was seven times larger than a picture taken by a camera that simulates the human eye. Furthermore, a portion of the blog's text was plagiarized from the Wikipedia page Lighthouse, with the only modification being the replacing of "Cape May Lighthouse" with "Pulau Batu Puteh Lighthouse", with the Wikipedia link still intact.[34]
Missing letters controversy
One key thrust of the Malaysian legal team's case is aimed to show that the British did receive explicit permission to use Pedra Branca from the Johor sultanate thereby proving that the British had recognised Johor's sovereignty over Pedra Branca all along.
The Malaysian legal team submitted that there existed an important letter which had requested for explicit permission. This letter was said to have been sent from the British governor of Singapore to the Johor sultanate. However, the legal team said that Malaysia does not have possession of the letter and alleged that it is in the possession of Singapore's National Archives which had not replied to their requests for the letter. As Malaysia could not produce the evidence (the letter), this allegation actually counts for very little weight in the overall consideration of sovereignty over Pedra Branca.
The claim insinuated that Singapore's National Archives had been dishonest. However, if such a letter did exist, it should be in the possession of Johor's archives as the Johor sultanate was the recipient. The Singapore legal team expressed disappointment with this insinuation.[35]
Decision of the ICJ on 23 May 2008
The outcome of the dispute resolution, as mentioned by the ICJ, is that the "Sovereignty of Pedra Branca shall be passed to Singapore" on 23 May 2008. The pivotal matter which the ICJ dwelt on was the 1953 letter by the Acting State Secretary of Johor which stated that Johor "does not claim ownership of Pedra Branca". However, the Singaporean contention that Pedra Brance was terra nullius was rejected by the ICJ.
Singapore received sovereignty over Pedra Branca while the Middle Rocks was ruled to belong to Malaysia. Middle Rocks was given to Malaysia simply because it was shown that Johor and Malaysia as its successor state continued to retain sovereignty there, while Pedra Branca was maintained in Singaporean control because Johor had essentially disclaimed sovereignty over it. The South Ledge has been ruled to belong to the state that owns the waters around it, essentially an open decision which will depend on the outcome of discussions between Malaysia and Singapore on the implementation of the ICJ ruling.
The 16 judges tribunal in the Hague by 12-4 votes, ruled that the former British colony of Singapore has been acting as the sovereign power on the island since the British built the Horseburgh lighthouse in 1851. In the 29-year dispute, ICJ Vice-President Shawkat Al-Khasawneh, Acting President in the case, also found 2 smaller disputed islands Middle Rocks, and South Ledge belong to Malaysia, in whose territorial waters it is located: "The court concludes ... that by 1980 sovereignty over Pedra Banca/Pulau Batu Puteh had passed to Singapore."[36][37]
Implication of the ICJ Decision
The decision by the ICJ to award Pedra Branca to Singapore but to decide that Middle Rocks belongs to Malaysia is seen as a Pyrrhic victory. This is because the issue now turns to ownership of the surrounding territorial waters which would be hotly contested due to the close locations of both geographical feature. Nevertheless, it is estimated that Malaysia has lost 13km² of territory due to the ICJ decision.
The Malaysian Foreign Minister, Dato Sri Rais Yatim, on 23 May 2008 in a live interview after the ICJ's announcement, described the ICJ decision as a "win-win" situation. Further, he announced that a technical committee would be set up between Malaysia and Singapore to decide whether South Ledge falls withing the the territorial waters of either Malaysia or Singapore. It may be argued that the ICJ ruling construes a partial victory for Singapore given that while it affirmed its sovereignty over Pedra Branca, the ICJ decided to give Middle Rocks to Malaysia while the ownership of South Ledge is in dispute. The decision is not yet final and subject to appeal.[38] The judgment never totally resolved the dispute for it only determined the ownership of the main islet but not where the maritime boundary is. But the two countries set up a joint technical committee to enforce the judgment
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