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How ICJ arrived at its decision
Wed, May 28, 2008
The Straits Times

PEDRA BRANCA JUDGEMENT

While the court recognised that Johor had the original title to Pedra Branca, it ruled that by 1980, when the dispute over the island crystallised, sovereignty over Pedra Branca had passed to Singapore.

Reasoning of the court

Malaysia contended that it had original title to the island, dating back to the time of its predecessor, the Sultanate of Johor, and that it continued to hold this title.

Singapore contended that the island was no man's land in the 1840s when the United Kingdom, its predecessor for legal purposes, took lawful possession of the island to build a lighthouse.

The International Court of Justice (ICJ) observed that it was not in dispute that the Sultanate of Johor had, from the time it came into existence in 1512, established itself as a sovereign state with a territorial domain in part of South-east Asia.

It noted that from at least the 17th century until early in the 19th century, it was acknowledged by historians that the territorial and maritime domain of the kingdom of Johor comprised a considerable portion of the Malay peninsula, straddled the Strait of Singapore and included islands and islets in the area of the strait - where Pedra Branca/Pulau Batu Puteh is located.

It highlighted as significant that Pedra Branca had always been known as a navigational hazard in the Strait of Singapore.

It was, therefore, evidently not terra incognita, that is, an unknown island.

Yet throughout this time, the Johor Sultanate's sovereignty over Pedra Branca was never challenged by any power in the region.

The court thus concluded that Johor had original title to Pedra Branca.

The court also found that developments between 1824 and the 1840s, including the Anglo-Dutch Treaty and Crawfurd Treaty, both of 1824, did not change the status of Pedra Branca.

The island remained in the sovereignty of Johor when the British made preparations in 1844 to build Horsburgh Lighthouse there.

The court then went on to determine whether Malaysia had retained its sovereignty over Pedra Branca or whether sovereignty had passed on to Singapore.

It noted that any passing of sovereignty might be by way of an agreement between two states, whether in the form of a treaty or in the form of a tacit agreement arising from the conduct of the parties.

It said that sovereignty over territory might, under certain circumstances, pass as a result of the failure of the state which has sovereignty to respond to conduct a titre de souverain of the other state, or to concrete manifestations of the display of territorial sovereignty by the other state.

The court then highlighted as significant an exchange of letters in 1953 between the Colonial Secretary in Singapore and the Johor authorities.

On June 12, 1953, the Colonial Secretary of Singapore wrote to the British Adviser to the Sultan of Johor asking for information about the status of Pedra Branca/Pulau Batu Puteh, in the context of determining the boundaries of the "Colony's territorial waters".

In a letter dated September 21, 1953, the Acting State Secretary of Johor replied that the "Johore Government [did] not claim ownership" of the island.

The court said this correspondence was of central importance "for determining the developing understanding of the two parties about sovereignty over Pedra Branca/Pulau Batu Puteh".

It found that Johor's reply showed that as of 1953, Johor understood that it did not have sovereignty over Pedra Branca/Pulau Batu Puteh.

Finally, the court examined the conduct of the parties after 1953 with respect to the island.

It found four types of activities by Singapore as conduct a titre de souverain, that is, conduct that confers title on the party responsible.

These were:

  • The investigation of shipwrecks that took place in Pedra Branca's territorial waters.
  • The granting of permission by Singapore to Malaysian officials to visit the island and survey the waters surrounding it.
  • The installation of military communications equipment on the island in 1977.
  • The proposed reclamation plans to extend the island.

The court also noted the failure of Malaysia and its predecessors to respond to the conduct of Singapore and its predecessors.

It thus ruled that by 1980, when the dispute over the island crystallised, sovereignty over Pedra Branca had passed to Singapore.

It thus concluded that sovereignty over Pedra Branca belongs to Singapore.

Middle Rocks and South Ledge

The court observed that the particular circumstances which led it to find that sovereignty over Pedra Branca rests with Singapore did not apply to Middle Rocks.

It, therefore, found that the original title to Middle Rocks should remain with Malaysia as the successor to the Sultanate of Johor.

As for South Ledge, the court noted that this low-tide elevation falls within the apparently overlapping territorial waters generated by Pedra Branca and Middle Rocks.

It recalled that it had not been mandated by the parties to draw the line of delimitation with respect to their territorial waters in the area.

It concluded that sovereignty over South Ledge belongs to the state in whose territorial waters it is located.

This article was first published in The Straits Times on 24 May 2008.

 

 
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