Pedra Branca dispute
Encyclopedia
The Pedra Branca dispute was a territorial dispute
between Singapore
and Malaysia over several islets at the eastern entrance to the Singapore Strait
, namely Pedra Branca (previously called Pulau Batu Puteh and now Batu Puteh by Malaysia), Middle Rocks and South Ledge. The dispute began in 1979 and was largely resolved by the International Court of Justice
(ICJ) in 2008, which opined that Pedra Branca belonged to Singapore and Middle Rocks belonged to Malaysia.
In early 1980, Singapore lodged a formal protest with Malaysia in response to a map published by Malaysia in 1979 claiming Pedra Branca. In 1989 Singapore proposed submitting the dispute to the ICJ. Malaysia agreed to this in 1994. In 1993, Singapore also claimed the nearby islets Middle Rocks and South Ledge. In 1998 the two countries agreed on the text of 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 of the Agreement in July that year. The hearing before the ICJ was held over three weeks in November 2007 under the name Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore).
Singapore argued that Pedra Branca was terra nullius
, and that there was no evidence the island had ever been under the sovereignty of the Johor Sultanate
. In the event the Court did not accept this argument, Singapore contended that sovereignty over the island had passed to Singapore due to the consistent exercise of authority over the island by Singapore and its predecessor, the United Kingdom. The actions taken included selecting Pedra Branca as the site for Horsburgh Lighthouse and constructing the lighthouse, requiring Malaysian officials wishing to visit the island to obtain permits, installing a military rebroadcast station on the island, and studying the feasibility of reclaiming land around the island. Malaysia had remained silent in the face of these activities. In addition, it had confirmed in a 1953 letter that Johor did not claim ownership of the island, and had published official reports and maps indicating that it regarded Pedra Branca as Singapore territory. Middle Rocks and South Ledge should be regarded as dependencies of Pedra Branca.
Malaysia's case was that Johor had original title to Pedra Branca, Middle Rocks and South Ledge. Johor had not ceded Pedra Branca to the United Kingdom, but had merely granted permission for the lighthouse to be built and maintained on it. The actions of the United Kingdom and Singapore in respect of the Horsburgh Lighthouse and the waters surrounding the island were not actions of the island's sovereign. Further, the 1953 letter had been unauthorized and the official reports and maps it had issued were either irrelevant or inconclusive.
On 23 May 2008, the Court ruled that Pedra Branca is under Singapore's sovereignty, while Middle Rocks belongs to Malaysia. As regards South Ledge, the Court noted that it falls within the apparently overlapping territorial waters
generated by mainland Malaysia, Pedra Branca and Middle Rocks. As it is a maritime feature visible only at low tide, it belongs to the state in the territorial waters of which it is located. Malaysia and Singapore have established what they have named the Joint Technical Committee to delimit the maritime boundary
in the area around Pedra Branca and Middle Rocks, and to determine the ownership of South Ledge.
outcrop
located 25 nmi (46.3 km; 28.8 mi) east of Singapore
and 7.7 nmi (14.3 km; 8.9 mi) south of Johor
, Malaysia, where the Singapore Strait
meets the South China Sea
. There are two maritime features near the island: Middle Rocks, 0.6 nmi (1.1 km; 0.690469384965265 mi) south of Pedra Branca, which consists of two clusters of small rocks about 250 metres (820.2 ft) apart; and South Ledge, 2.2 nmi (4.1 km; 2.5 mi) south-south-west
of Pedra Branca, which is visible only at low tide.
Singapore has been administering Pedra Branca since Horsburgh Lighthouse
was built on the island by its predecessor, the United Kingdom
, between 1850 and 1851. Singapore was ceded by Sultan
Hussein Shah
and Temenggung
Abdul Rahman Sri Maharajah of Johor to the British East India Company under a Treaty of Friendship and Alliance of 2 August 1824 (the Crawfurd
Treaty), and became part of the Straits Settlements
in 1826. At the time when the lighthouse on the island was constructed, the Straits Settlements were under British rule through the Government of India
.
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. In the late 1980s, Attorney-General of Singapore
Tan Boon Teik was despatched by the Prime Minister of Singapore
Lee Kuan Yew
to disclose the documentary evidence which Singapore had to the Malaysian Attorney-General, to demonstrate the strength of Singapore's case. However, 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).
Singapore first suggested submitting the territorial dispute to the ICJ in 1989. The suggestion was accepted by Malaysia in 1994. In 1998, the text of a Special Agreement to bring the matter before the ICJ was agreed, and the Agreement was signed by the two countries at Putrajaya
, Malaysia, on 6 February 2003. It was notified to the Court in July 2003. The case was assigned the name Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore).
Following directions issued by the Court, the parties exchanged memorials on 25 March 2004, counter-memorials on 25 January 2005, and replies on 25 November 2005. As the parties informed the Court by a letter dated 23 January 2006 that rejoinders were unnecessary, the written proceedings were closed. The Court determined by drawing lots that Singapore would present its case first. Public hearings were held between 6 and 23 November 2007, with Singapore presenting its case from 6 to 9 November, and Malaysia doing the same from 13 to 16 November 2007. Each country was then given two days to respond, with 19 and 20 November allocated to Singapore, and 22 and 23 November allocated to Malaysia. The persons who spoke for the parties were:
The case was presided over 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 were 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
. As the Bench of the Court did not include any judges of the nationality of either party, the parties exercised their right to choose judges ad hoc to sit in the case. Singapore appointed Sreenivasa Rao Pemmaraju from India
, and Malaysia Christopher John Robert Dugard from South Africa
.
(Latin
for "land belonging to no one") as it had never been the subject of a prior claim or manifestation of sovereignty by any sovereign entity. It denied Malaysia's claim that the island had been under Johor's sovereignty. It contended there was no evidence that the Johor Sultanate
had claimed or exercised authority over Pedra Branca between 1512 and 1641. This period began with the fall of the Malacca Sultanate
to the Portuguese
in 1512, who continued to harass the Johor Sultanate during this time, as did the Aceh Sultanate
. Similarly, there was no evidence of Johor's sovereignty over Pedra Branca between 1641 and 1699, when Johor's power and influence were at their height; between 1699 and 1784 when the death of Sultan Mahmud Shah II
in 1699 without a clear heir led to instability, during which many vassal
s broke away from the Sultanate; and between 1784 and 1824 when, according to a 1949 annual report of the Johor government, the Sultanate was in a "state of dissolution" by the beginning of the 19th century.
To support its assertion that the Sultan of Johor
did not have sovereignty over Pedra Branca, Singapore contended that the traditional Malay concept of sovereignty was based mainly on control over people and not over territory. Thus, the only reliable way to determine whether a particular territory belonged to a ruler was to find out whether the inhabitants pledged allegiance to that ruler. This was difficult to do with respect to Pedra Branca since it was isolated and uninhabited, and Malaysia had not provided clear evidence of a direct claim to or actual exercise of sovereign authority over the island.
In addition, Singapore claimed that the old Johor Sultanate, which controlled a maritime Malay empire from a capital on the Johor River
, was not the same as the new Johor Sultanate occupying only the southern tip of the Malay Peninsula
that came into existence after the signing of the Anglo–Dutch Treaty of 1824
between the United Kingdom
and the Netherlands
. In its view, the Anglo–Dutch Treaty did not divide up the Singapore Strait
, in which Pedra Branca is situated, between the new Johor Sultanate under the British sphere of influence
and the Riau
–Lingga
Sultanate under Dutch influence. Instead, both Britain and the Netherlands could access the Strait freely. Therefore, there was a legal vacuum with regard to sovereignty over the island, enabling the British to lawfully take possession of it between 1847 and 1851.
Following the death of Sultan Mahmud Shah III of Johor in 1812, his two sons Hussein and Abdul Rahman vied for the throne of the Johor Sultanate. The United Kingdom recognized the elder son Hussein, who was based in Singapore, as the rightful heir, while the Netherlands recognized the younger son Abdul Rahman who was based in Riau (now Bintan
, Indonesia
). A year after the Anglo–Dutch Treaty, Abdul Rahman sent a letter dated 25 June 1825 to Hussein. In it he stated that, "in complete agreement with the spirit and the content of the treaty concluded between their Majesties, the Kings of the Netherlands and Great Britain", he donated to his older brother "[t]he part of the lands assigned to [Great Britain]":
On the basis of this letter, Singapore argued that Abdul Rahman had only donated the mainland territories to Hussein and had retained sovereignty over all the islands in the sea. Pedra Branca therefore never became a part of Johor.
obtained title over the island in accordance with legal principles governing the acquisition of territory at that time. This title was maintained by the United Kingdom and its lawful successor, the Republic of Singapore.
Singapore claimed that it and its predecessor the United Kingdom had demonstrated a consistent exercise of authority over the island through various acts since 1847. For instance, during the ceremony for the laying of the foundation stone
of the lighthouse on 24 May 1850, Pedra Branca was described as a "dependency of Singapore" in the presence of the Governor of the Straits Settlements
– the most senior British official in Singapore – and other British and foreign officials. The attribution of sovereignty was widely reported in local newspapers, but drew no response from the Johor authorities. Other significant acts included the following:
In addition, Singapore had on two occasions claimed the sea around Pedra Branca as its territorial waters
. The first occasion was in July 1952 when the Chief Surveyor expressed the opinion that Singapore should claim a 3 miles (4.8 km) limit around the island. Subsequently in 1967, the Singapore Government's Marine Department also stated in an official memorandum to the Ministry of Foreign Affairs (Singapore)
that the waters within three miles of Pedra Branca might be considered Singapore territorial waters.
On 12 June 1953, when Singapore was a Crown Colony
, its Colonial Secretary
J. D. Higham wrote to the British Adviser to the Sultan of Johor to clarify the status of Pedra Branca. He noted that the rock was outside the limits ceded by Sultan Hussein Shah and the Temenggung
with the island of Singapore under the 1824 Crawfurd Treaty they had entered into with the East India Company. However, the Colonial Government had been maintaining the lighthouse built on it, and "[t]his by international usage no doubt confers some rights and obligations on the Colony". He therefore asked if "there is any document showing a lease or grant of the rock or whether it has been ceded by the Government of the State of Johore or in any other way disposed of". The Acting State Secretary of Johor, M. Seth bin Saaid, replied on 21 September that "the Johore Government does not claim ownership of Pedra Branca". Singapore contended that this reply confirmed Singapore's sovereignty over the island and that Johor had no title, historic or otherwise, to it.
The Colony of Singapore became a self-governing state in 1959, and left the British Empire
to join the Federation of Malaysia in 1963. Two years later, in 1965, Singapore became a fully independent republic. In 1959, in an official publication regarding meteorological
information collected on Pedra Branca, Malaya listed Horsburgh Lighthouse as a "Singapore" station together with the Sultan Shoal
and Raffles Lighthouse
s. The lighthouse on Pedra Branca was described in the same way in a joint Malaysian and Singaporean publication in 1966, the year after Singapore left the Federation. In 1967, when the two countries began reporting meteorological information separately, Malaysia ceased referring to Horsburgh Lighthouse. In maps published by the Malayan and Malaysian Surveyor General and Director of General Mapping in 1962, 1965, 1970, 1974 and 1975, the island was indicated with the word "(SINGAPORE)" or "(SINGAPURA)" under it. The same designation was used for an island that was unquestionably under Singapore's sovereignty. On the other hand, the designation was not used for Pulau Pisang
, an island under Malaysian sovereignty on which Singapore operated a lighthouse.
At a news conference in May 1980 attended by Malaysia's former Prime Minister
Tun Hussein Onn
and Singapore's then Prime Minister
Lee Kuan Yew
, the Malaysian leader admitted that the question of sovereignty over Pedra Branca was "not very clear" to Malaysia.
On 19 November 2007, Singapore Deputy Prime Minister S. Jayakumar refuted Malaysia's claim that Singapore was attempting to subvert the status quo by claiming sovereignty of Pedra Branca. He said Singapore was "an honest, law-abiding state that has never and will never do anything to endanger navigational safety, security arrangements or the Singapore Strait's environment". Rather, it was Malaysia that had sought to alter the status quo by publishing a map in 1979 that altered maritime boundaries with seven neighbouring countries. This was evidenced by a telegram that the Malaysian Government had sent to its overseas missions in December 1979, notifying them that the map would "affect" Brunei, China, Indonesia, the Philippines, Thailand, Singapore and Vietnam.
(1932): "As regards a group of islands, it is possible that a group may under certain circumstances be regarded as in law a unit, and that the fate of the principal part may involve the rest." It argued that the three maritime features were geomorphologically
the same, as rock samples showed that they were all composed of a light, coarse-grained biotite
granite. Additionally, Malaysia had not shown any exercise of sovereignty over the uninhabited reefs of Middle Rocks and South Ledge while Singapore had consistently exercised sovereign authority in the surrounding waters. Since sovereignty over Pedra Branca belonged to Singapore, so did sovereignty over Middle Rocks and South Ledge as they were within Pedra Branca's territorial waters.
Malaysia's case was that it had original title to Pedra Branca "from time immemorial
". The island could not at any relevant time have been terra nullius as it is and had always been part of Johor, which is now a state of Malaysia. Nothing that the United Kingdom or Singapore had done had displaced its sovereignty over it. Contrary to what Singapore had claimed, there had been no break between the old Sultanate of Johor and the new Johor Sultanate ruled by Sultan Hussein that came into existence after the signing of the 1824 Anglo–Dutch Treaty. The Treaty had the effect of leaving the islands south of the Singapore Strait within the Dutch sphere of influence (the Riau–Lingga Sultanate), while the territory and islands in the Strait and to its north were within the British sphere of influence (the new Johor Sultanate). A few months after the conclusion of the Anglo–Dutch Treaty, the Sultan and the Temenggung of Johor entered into the Crawfurd Treaty with the East India Company on 2 August 1824. Article II of the Crawfurd Treaty stated:
Since Johor could not have ceded
Singapore island and the islets in its vicinity to the British if it lacked title to them, this was evidence that the United Kingdom recognized the prior and continuing sovereignty of the Johor Sultanate over all islands in and around the Singapore Strait.
Malaysia challenged Singapore's contention that Pedra Branca never became part of the new Johor Sultanate because the 25 June 1825 letter from Sultan Abdul Rahman of Riau–Lingga to Sultan Hussain showed that Abdul Rahman had only donated territories on the mainland of the Malay Peninsula to Hussein and had retained sovereignty over all the islands in the sea. Malaysia submitted Abdul Rahman's statement that his territory "extends out over the islands of Lingga, Bintan, Galang, Bulan, Karimon and all other islands" had to be read in the context of Article XII of the 1824 Anglo–Dutch Treaty, which guaranteed that no "British Establishment" would be made "on the Carimon Isles, or on the Island of Bantam, Bintang, Lingin, or on any of the other Islands South of the Straits of Singapore". Three of the islands mentioned by Abdul Rahman – Bintan, Karimun and Lingga – were islands that the British had agreed were not within their sphere of influence, while the other two – Bulan and Galang – lay south of the Singapore Strait. Therefore, the phrase "all other islands" in Abdul Rahman's letter referred only to islands lying within the Dutch sphere of influence. The letter was simply formal recognition that Abdul Rahman did not claim sovereignty over Johor.
The Johor Sultanate's title to the island was also confirmed by ties of loyalty that existed between the Sultanate and the Orang Laut, a nomad
ic sea people who in the past had inhabited the maritime areas of the Singapore Strait, carrying out fishing and piracy, and had visited Pedra Branca quite frequently. This was evidenced by three 19th-century letters written by British officials, including one dated November 1850 by John Turnbull Thomson
, the Government Surveyor of Singapore, which had reported on the need to exclude the Orang Laut from Pedra Branca where Horsburgh Lighthouse was being built. Thomson noted that they "frequently visit the rock so their visits should never be encouraged nor any trust put in them ... In the straits and islets of the neighbouring shores and islands many lives are taken by these people."
Malaysia rejected Singapore's argument that the traditional Malay concept of sovereignty was based mainly on control over people and not over territory. It stated that authority in states throughout the world is based on a combination of control over people and territory, and that this applies to the Malay States as it does to any other state. Since the Johor Sultanate was established in the 16th century, it always had rulers who were recognized as such and who thus commanded people's allegiance and therefore controlled the territory where those people lived.
Captain James Horsburgh
, a Scottish hydrographer to the British East India Company who had prepared many charts and sailing instructions for the East Indies
, China, New Holland
, the Cape of Good Hope
and other intermediate ports, died in May 1836. Merchants and mariners felt that the building of one or more lighthouses would be a fitting tribute to him, and in as early as November 1836 Pedra Branca was proposed as one of the preferred sites. By 1844, preference had been expressed for Romania Outer Island, or Peak Rock. Some time in November 1844, the Governor of the Straits Settlements
, William John Butterworth, wrote to the Sultan and the Temenggung of Johor regarding the matter. His letters have not been found, but English translations of the replies, dated 25 November 1844, exist. The Sultan said:
The Temenggung responded thus:
Three days later, on 28 November 1844, the Governor wrote to the Secretary of the Government in India to recommend that the lighthouse be sited on Peak Rock. Among other things, he said that "[t]his Rock is part of the Territories of the Rajah of Johore, who with the Tamongong ... have willingly consented to cede it gratuitously to the East India Company", and enclosed the replies received from the Sultan and Temenggung. Nonetheless, Malaysia argued that the Sultan and Temenggung's letters amounted to no more than permission to the United Kingdom to build and operate a lighthouse on Peak Rock or some other suitable location.
On 13 November, Malaysia's Agent, Ambassador-at-Large Abdul Kadir Mohamad, alleged that Singapore was trying to "subvert" a 150-year-old arrangement under which Singapore operated Horsburgh Lighthouse on Pedra Branca, which was Malaysia's territory. He also suggested that if permitted to do so, Singapore would upset the peace and stability of the area where the island is located. He said that if Singapore reclaimed land around Pedra Branca, "[q]uite apart from the possible effects on the environment and navigation in the Strait, this could lead to potentially serious changes to the security arrangements in the eastern entrance of the Strait". According to Malaysian Attorney-General Abdul Gani Patail, Singapore had first raised the issue of sovereignty over Pedra Branca on 13 April 1978 during a meeting between officials, saying it had "incontrovertible legal evidence" of its sovereignty over the island though it had never produced any documents in support. Prior to that, the sovereignty of the island had never been disputed. The 1980 statement by the then Malaysian Prime Minister Tun Hussein Onn concerning the "unclear" position of the island had also been premised on these documents which former Singapore Prime Minister Lee Kuan Yew had claimed were in Singapore's possession. The statement was therefore merely a friendly and respectful statement of a visiting prime minister at a press conference which had no probative
value in court. All Hussein Onn had meant was that the matter required further discussion between the two countries.
Further, the Acting State Secretary "was definitely not authorized" and did not have "the legal capacity to write the 1953 letter, or to renounce, disclaim, or confirm title of any part of the territories of Johor". Under two treaties of 21 January 1948, the Johor Agreement between the British Crown and the Sultan of Johor and the Federation of Malaya Agreement between the British Crown and nine Malay States including Johor, Johor transferred all its rights, power and jurisdiction on matters relating to defence and external affairs to the United Kingdom. These powers were exercisable by the Federal High Commissioner appointed by the United Kingdom and not by the Johor State Secretary. The Acting State Secretary had improperly taken it upon himself to reply to the Colonial Secretary's letter and had not submitted a copy of it to the Chief Secretary of Johor. There was no evidence that the Chief Secretary or the High Commissioner was aware of its contents.
s stating they could not be considered an authority on the delimitation of international or other boundaries, and maps do not create title and cannot amount to admissions unless incorporated into treaties or used in inter-state negotiations.
used and granted petroleum
concessions
which extended to the area of Middle Rocks and South Ledge. Also, an internal confidential document dated 16 July 1968 entitled "Letter of Promulgation" by the Chief of the Royal Malaysian Navy
included charts showing that Pedra Branca, Middle Rocks and South Ledge were within Malaysia's territorial waters, and the features were included within Malaysian fisheries waters in the Fisheries Act 1985
. Singapore had neither protested against these manifestations of sovereignty, nor advanced any claims over Middle Rocks and South Ledge in 1980 when it began claiming that Pedra Branca belonged to it.
, which had exaggerated the height of Mount Berbukit by about seven times. Singapore's then Attorney-General Chao Hick Tin said that the photograph had been "an attempt to convey a subliminal message of proximity between Pedra Branca and the coast of Johor", but it was not an accurate reflection of what visitors to Pedra Branca would see if they were looking towards Johor.
Malaysia had claimed its photograph was obtained from an online blog, implying that it was from an independent source. Singapore called the blog "most unusual", noting that it had been created only a month earlier; that the photograph had only been uploaded on 2 November, four days before the oral proceedings in the case had commenced; and that there was no information on the blogger's identity.
In its rebuttal on 24 November, Malaysia said that the difference between the photographs was "all a question of perspective" and that the matter was not worth discussing.
Singapore's response was that it did not have copies of the letters. Its archives were incomplete, and searches for them in other archives had been in vain. Furthermore, the letters were more likely to be in Malaysia's possession as the Governor had sent them to the Johor rulers. In his rebuttal of Malaysia's case on 19 November 2007, Singapore's Deputy Prime Minister and Minister for Law S. Jayakumar expressed disappointment with Malaysia's insinuation that Singapore had concealed the letters from the Court, which he termed "most disturbing", "baseless" and "distracting".
Malaysia did not mention the matter further in its rebuttal on 24 November.
and the South China Sea, it was inconceivable that the island had remained undiscovered by the local community. It was therefore reasonable to infer that Pedra Branca lay within the general geographical scope of the Johor Sultanate. Further, during the existence of the old Johor Sultanate, there was no evidence of any competing claims over the islands in the Singapore Strait. It also agreed with Malaysia's submission that descriptions of the relationship between the Sultan of Johor and the Orang Laut in 19th-century official British reports proved that the Sultan exercised sovereign authority over the Orang Laut. Since the Orang Laut made the islands in the Singapore Strait their habitat, this confirmed the "ancient original title" of the Johor Sultanate to those islands, including Pedra Branca. As regards Singapore's argument that the traditional concept of Malay sovereignty was based on control over people rather than territory, the Court observed that sovereignty comprises control over both persons and territory. However, it was not necessary to deal with the point further as it had already found that Johor had territorial sovereignty over Pedra Branca.
The purpose of the 1824 Anglo–Dutch Treaty was to finally settle the disputes that had arisen between the United Kingdom and the Netherlands relating to their territorial possessions and commercial interests in the East Indies. It was thus most unlikely that the parties had left the maritime features in the Singapore Straits outside their spheres of influence, as Singapore had contended. Under Article XII of the Treaty, Britain had agreed that "no British Establishment shall be made on the Carimon Isles
, or on the Island of Bantam
, Bintan
g, Lingin
, or on any of the other Islands South of the Straits of Singapore ..." The islands and islet
s within the Straits therefore fell within the British sphere of influence. This included Pedra Branca, which remained part of the territorial domain of the new Johor Sultanate. That this was the British understanding of the Treaty was confirmed by a letter dated 4 March 1825 from the Government of India to John Crawfurd
, the British Resident
in Singapore, which read: "[O]ur acquisition of these Islets [under the Crawfurd Treaty] is not at variance with the obligations of the Treaty concluded at London in March last [the 1824 Anglo–Dutch Treaty] as they are all situated North of the Southern limits of the Straights of Singapore ..." [Emphasis added.] Therefore, Britain's position was that every island north of the southern limits of the Singapore Strait fell within its sphere of influence. The Court's reading of the Anglo–Dutch Treaty was reinforced by the 25 June 1825 letter from Sultan Abdul Rahman to his brother Sultan Hussain, which did not have the effect Singapore attributed to it.
Contrary to Malaysia's submission, the Court found that the Crawfurd Treaty did not show that Britain recognized Johor's sovereignty over all the islands in and around the Singapore Strait. Article II only referred to the cession by the Sultan and Temenggung of Johor of "the Island of Singapore ... together with the adjacent seas, straits, and islets to the extent of ten geographical miles" to the British, and could not be read as an acknowledgement by the United Kingdom that Johor sovereignty over any other territory.
Because there was no written agreement relating to Horsburgh Lighthouse and Pedra Branca, the Court was unable to determine whether the November 1844 replies by the Sultan and Temenggung of Johor to Governor Butterworth's query amounted to a cession of the place that would be chosen for the site of the lighthouse or was merely a permission to build, maintain and operate a lighthouse there. Although the Governor had indicated in his 28 November 1844 letter to the Secretary of the Government in India to recommend that the replies amounted to a gratuitous cession to the East India Company, this understanding was not communicated to the Sultan and Temenggung. Similarly, the fact that Britain had not informed Johor about its decision to site the lighthouse on Pedra Branca might be seen either as recognition that Britain only had consent to build and operate it, or that Johor no longer had rights over the island. On the evidence adduced, the Court was unable to reach a conclusion on the issue. It also did not draw any conclusions about the construction and commissioning of the lighthouse, stating only that it saw the events as "bearing on the issue of the evolving views of the authorities in Johor and Singapore about sovereignty over Pedra Branca/Pulau Batu Puteh". It noted, though, that apart from a two-day visit by the Temenggung and his followers to the island in early June 1850, Johor had no involvement in the project.
The Court declined to accept Malaysia's argument that the Singapore Colonial Secretary's query about the status of Pedra Branca in 1953 indicated that the United Kingdom had no conviction that the island was part of its territory. It felt the letter of inquiry showed the Singapore authorities were not clear about events that had occurred over a century earlier and that they were unsure their records were complete, which was understandable in the circumstances. It also disagreed that the Acting State Secretary of Johor, who had stated in his letter of reply that Johor did not claim ownership of the island, had acted without authority. The Johor Agreement was irrelevant – as the Colonial Secretary was a representative of the United Kingdom government which was not a foreign state in relation to Johor at the time, there was no question of the United Kingdom having to consent to Johor issuing the reply. The Federation of Malaya Agreement also did not assist Malaysia because the action of responding to a request for information was not an "exercise" of "executive authority". Further, since Malaysia had not invoked this argument in its negotiations with Singapore and in the ICJ proceedings until late in the oral phase, Singapore was entitled to presume that the Acting State Secretary had acted within his authority. The meaning of the reply was clear – as of 1953, Johor understood it did not have sovereignty over Pedra Branca, and thus the Singapore authorities had no reason to doubt that the island belonged to the United Kingdom.
The Court regarded as conduct à titre de souverain Singapore's investigation of six shipwrecks in the vicinity of Pedra Branca between 1920 and 1993, its exclusive control over visits to the island, the installation of the military rebroadcast station on the island in 1977, and the proposed reclamation of land around it. Malaysia was correct in asserting that the flying of an ensign was not normally a manifestation of sovereignty, and that the difference in size between Pulau Pisang and Pedra Branca had to be recognized. Nonetheless, some weight could be given to the fact that Malaysia had not requested for the Singapore ensign flying at Horsburgh Lighthouse to be taken down. The fact that Malaysia had referred to the lighthouse as a Singapore station in the 1959 and 1966 meteorological reports and had omitted it from the 1967 Malaysian report favoured Singapore's case.
The maps published by Malaysia between 1962 and 1975 tended to confirm that it considered Pedra Branca to fall under Singapore sovereignty. The "(SINGAPORE)" or "(SINGAPURA)" annotations on the maps in respect of the island were clear and supported Singapore's case. The maps gave a good indication of Malaysia's official position on the matter, and could amount to an admission. Finally, Malaysia could not rely on the disclaimers on the maps as the present matter did not concern a boundary but a distinct island. In any case, the maps were statements of geographical fact, particularly since Malaysia had itself produced and disseminated it against its own interest.
In view of the above, the Court held that by 1980 sovereignty over Pedra Branca had passed from Malaysia to Singapore.
South Ledge falls within the apparently overlapping territorial waters generated by the mainland of Malaysia, Pedra Branca and Middle Rocks. Although in the Special Agreement and in their final submissions Malaysia and Singapore had asked the Court to decide which state had sovereignty over Pedra Branca, Middle Rocks and South Ledge, the Court had not been mandated to delimit the extent of the territorial waters of the two states in the area in question. Therefore, it simply held that South Ledge, as a low-tide elevation, belongs to the state in the territorial waters of which it is located.
described the ICJ decision as creating a "win-win" situation and that both countries would "forge ahead" in their bilateral relationship. Deputy Prime Minister
Najib Tun Razak
called the judgment a "balanced decision" as Malaysia had been "partly successful" in its territorial claims. Interviewed by journalists at The Hague
, Singapore Deputy Prime Minister S. Jayakumar said: "We are pleased with the judgment because the court has awarded sovereignty over Pedra Branca, which is the main feature in dispute, to Singapore." Prime Minister of Singapore
Lee Hsien Loong
said he was pleased with the result, and commented that bringing the dispute to the ICJ was "a good way for [Malaysia and Singapore] to resolve disagreements or problems while maintaining good relations with each other".
The ICJ's decision is final and not subject to appeal. Nevertheless, in June 2008 Rais Yatim stated that Malaysia had renewed its search for the letter 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.
Several Malaysian Members of Parliament have urged the Federal Government to assert sovereignty over Pulau Pisang
which also has a lighthouse on it that is operated by Singapore, or to take over administration of the lighthouse. Concerns were also expressed for Pulau Merambong
near the western boundary of Malaysia and Singapore. The Menteri Besar
of Johor, Abdul Ghani Othman
, assured the public that Pulau Pisang belongs to Johor under a 1900 agreement between Sultan Ibrahim of Johor and British administrators in colonial Singapore. Nonetheless, Malaysian agencies have taken up efforts to stake claims over a hundred islands, reefs, rocks and other features in the South China Sea, Malacca Straits, and off Sabah
an waters that Malaysia could lose to China, Indonesia and Vietnam. Two of these islands are Pulau Unarang off eastern Sabah near the Indonesian border, and Pulau Perak to the west of Penang
.
At the opening of Johor's 12th State Assembly in June 2008, Sultan Iskandar of Johor pledged to reclaim the island "whatever it takes". Speaking impromptu at the end of a prepared speech, the Sultan said in Malay: "Let us be reminded that I do not forget Pulau Batu Puteh. Pulau Batu Puteh is not Singapore's, but it belongs to Johor. It does not matter how long it may take, I will find the way to get back the island, which belongs to Johor." The Menteri Besar of Johor said the state government had "clearly heard" what the Sultan said, but did not elaborate.
On 3 September 2008, Tengku Razaleigh Hamzah
, a Kelantan
prince and MP from the state, sent a letter to Rais Yatim claiming that Johor's interests had not been raised before the ICJ. He alleged that the seas surrounding Pedra Branca had always been in Johor's hands and had never been surrendered to the British or to Singapore, and by accepting the ICJ decision and participating in technical discussions with Singapore the Malaysian government had infringed Johor's constitutional rights. Responding, Rais said the letter seemed designed for "political mileage" and that Johor had been fully involved in the proceedings. He told the Straits Times
, "Everybody has his opinion on such matters but I, as Foreign Minister, have to abide by the dictate of the law. I have to see the letter first but it's rather late in the day to express disappointment."
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 nmi (22.2 km; 13.8 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.
At the launch of S. Jayakumar and Tommy Koh's book Pedra Branca: The Road to the World Court on 19 December 2008, Chief Justice Chan Sek Keong commented: "The Pedra Branca case is likely to be a unique event in the history of Singapore as it is unlikely that Singapore will ever again need to seek confirmation of her title to territory under international law."
that would provide data for future delimitation discussions. A Sub-Committee on Maritime and Airspace Management and Fisheries had also been formed, and after a meeting on 20 August 2008 it decided that traditional fishing activities by both countries should continue in waters beyond 0.5 nmi (0.926 km; 0.575391154137721 mi) off Pedra Branca, Middle Rocks and South Ledge.
Territorial dispute
A territorial dispute is a disagreement over the possession/control of land between two or more states or over the possession or control of land by a new state and occupying power after it has conquered the land from a former state no longer currently recognized by the new state.-Context and...
between Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
and Malaysia over several islets at the eastern entrance to the Singapore Strait
Singapore Strait
The Singapore Strait is a 105-kilometer long, 16-kilometer wide strait between the Strait of Malacca in the west and the South China Sea in the east. Singapore is on the north of the channel and the Riau Islands are on the south...
, namely Pedra Branca (previously called Pulau Batu Puteh and now Batu Puteh by Malaysia), Middle Rocks and South Ledge. The dispute began in 1979 and was largely resolved by the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
(ICJ) in 2008, which opined that Pedra Branca belonged to Singapore and Middle Rocks belonged to Malaysia.
In early 1980, Singapore lodged a formal protest with Malaysia in response to a map published by Malaysia in 1979 claiming Pedra Branca. In 1989 Singapore proposed submitting the dispute to the ICJ. Malaysia agreed to this in 1994. In 1993, Singapore also claimed the nearby islets Middle Rocks and South Ledge. In 1998 the two countries agreed on the text of 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 of the Agreement in July that year. The hearing before the ICJ was held over three weeks in November 2007 under the name Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore).
Singapore argued that Pedra Branca was terra nullius
Terra nullius
Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
, and that there was no evidence the island had ever been under the sovereignty of the Johor Sultanate
Johor Sultanate
The Sultanate of Johor was founded by Malaccan Sultan Mahmud Shah's son, Sultan Alauddin Riayat Shah II in 1528. Johor was part of the Malaccan Sultanate before the Portuguese conquered Malacca's capital in 1511...
. In the event the Court did not accept this argument, Singapore contended that sovereignty over the island had passed to Singapore due to the consistent exercise of authority over the island by Singapore and its predecessor, the United Kingdom. The actions taken included selecting Pedra Branca as the site for Horsburgh Lighthouse and constructing the lighthouse, requiring Malaysian officials wishing to visit the island to obtain permits, installing a military rebroadcast station on the island, and studying the feasibility of reclaiming land around the island. Malaysia had remained silent in the face of these activities. In addition, it had confirmed in a 1953 letter that Johor did not claim ownership of the island, and had published official reports and maps indicating that it regarded Pedra Branca as Singapore territory. Middle Rocks and South Ledge should be regarded as dependencies of Pedra Branca.
Malaysia's case was that Johor had original title to Pedra Branca, Middle Rocks and South Ledge. Johor had not ceded Pedra Branca to the United Kingdom, but had merely granted permission for the lighthouse to be built and maintained on it. The actions of the United Kingdom and Singapore in respect of the Horsburgh Lighthouse and the waters surrounding the island were not actions of the island's sovereign. Further, the 1953 letter had been unauthorized and the official reports and maps it had issued were either irrelevant or inconclusive.
On 23 May 2008, the Court ruled that Pedra Branca is under Singapore's sovereignty, while Middle Rocks belongs to Malaysia. As regards South Ledge, the Court noted that it falls within the apparently overlapping territorial waters
Territorial waters
Territorial waters, or a territorial sea, as defined by the 1982 United Nations Convention on the Law of the Sea, is a belt of coastal waters extending at most from the baseline of a coastal state...
generated by mainland Malaysia, Pedra Branca and Middle Rocks. As it is a maritime feature visible only at low tide, it belongs to the state in the territorial waters of which it is located. Malaysia and Singapore have established what they have named the Joint Technical Committee to delimit the maritime boundary
Maritime boundary
Maritime boundary is a conceptual means of division of the water surface of the planet into maritime areas that are defined through surrounding physical geography or by human geography. As such it usually includes areas of exclusive national rights over the mineral and biological resources,...
in the area around Pedra Branca and Middle Rocks, and to determine the ownership of South Ledge.
Dispute
Pedra Branca is a small graniteGranite
Granite is a common and widely occurring type of intrusive, felsic, igneous rock. Granite usually has a medium- to coarse-grained texture. Occasionally some individual crystals are larger than the groundmass, in which case the texture is known as porphyritic. A granitic rock with a porphyritic...
outcrop
Outcrop
An outcrop is a visible exposure of bedrock or ancient superficial deposits on the surface of the Earth. -Features:Outcrops do not cover the majority of the Earth's land surface because in most places the bedrock or superficial deposits are covered by a mantle of soil and vegetation and cannot be...
located 25 nmi (46.3 km; 28.8 mi) east of Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
and 7.7 nmi (14.3 km; 8.9 mi) south of Johor
Johor
Johor is a Malaysian state, located in the southern portion of Peninsular Malaysia. It is one of the most developed states in Malaysia. The state capital city and royal city of Johor is Johor Bahru, formerly known as Tanjung Puteri...
, Malaysia, where the Singapore Strait
Singapore Strait
The Singapore Strait is a 105-kilometer long, 16-kilometer wide strait between the Strait of Malacca in the west and the South China Sea in the east. Singapore is on the north of the channel and the Riau Islands are on the south...
meets the South China Sea
South China Sea
The South China Sea is a marginal sea that is part of the Pacific Ocean, encompassing an area from the Singapore and Malacca Straits to the Strait of Taiwan of around...
. There are two maritime features near the island: Middle Rocks, 0.6 nmi (1.1 km; 0.690469384965265 mi) south of Pedra Branca, which consists of two clusters of small rocks about 250 metres (820.2 ft) apart; and South Ledge, 2.2 nmi (4.1 km; 2.5 mi) south-south-west
Boxing the compass
Boxing the compass is the action of naming all thirty-two points of the compass in clockwise order. Such names are formed by the initials of the cardinal directions and their intermediate ordinal directions, and are very handy to refer to a heading in a general or colloquial fashion, without...
of Pedra Branca, which is visible only at low tide.
Singapore has been administering Pedra Branca since Horsburgh Lighthouse
Horsburgh lighthouse
The Horsburgh Lighthouse is a lighthouse which marks the eastern entrance to the Straits of Singapore. It is situated on Pedra Branca island...
was built on the island by its predecessor, the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, between 1850 and 1851. Singapore was ceded by Sultan
Sultan
Sultan is a title with several historical meanings. Originally, it was an Arabic language abstract noun meaning "strength", "authority", "rulership", and "dictatorship", derived from the masdar سلطة , meaning "authority" or "power". Later, it came to be used as the title of certain rulers who...
Hussein Shah
Hussein Shah of Johor
Sultan Hussein Mua'zzam Shah ibni Mahmud Shah Alam was the 18th ruler of Johor. He was best remembered for his role as a signatory for two treaties with the British which culminated in the founding of modern Singapore; during which he was given recognition as the Sultan of Johor and Singapore in...
and Temenggung
Temenggung
Temenggung is an ancient Malay title of nobility, usually given to the chief of public security. The Temenggung is usually responsible for the safety of the monarch as well as the state police and army...
Abdul Rahman Sri Maharajah of Johor to the British East India Company under a Treaty of Friendship and Alliance of 2 August 1824 (the Crawfurd
John Crawfurd
John Crawfurd , Scottish physician, and colonial administrator and author, was born in the island of Islay, Scotland...
Treaty), and became part of the Straits Settlements
Straits Settlements
The Straits Settlements were a group of British territories located in Southeast Asia.Originally established in 1826 as part of the territories controlled by the British East India Company, the Straits Settlements came under direct British control as a crown colony on 1 April 1867...
in 1826. At the time when the lighthouse on the island was constructed, the Straits Settlements were under British rule through the Government of India
British Raj
British Raj was the British rule in the Indian subcontinent between 1858 and 1947; The term can also refer to the period of dominion...
.
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
Territorial waters
Territorial waters, or a territorial sea, as defined by the 1982 United Nations Convention on the Law of the Sea, is a belt of coastal waters extending at most from the baseline of a coastal state...
. Singapore rejected this "claim" in a diplomatic note of 14 February 1980 and asked for the map to be corrected. In the late 1980s, Attorney-General of Singapore
Attorney-General of Singapore
The Attorney-General of Singapore is the legal adviser to the government of the Republic of Singapore and its public prosecutor.The office was founded in 1867 as the chief legal officer of the British crown colony of the Straits Settlements. The current requirements for appointment as...
Tan Boon Teik was despatched by the Prime Minister of Singapore
Prime Minister of Singapore
The Prime Minister of the Republic of Singapore is the head of the government of the Republic of Singapore. The President of Singapore appoints as Prime Minister a Member of Parliament who, in his opinion, is most likely to command the confidence of a majority of MPs.The office of Prime Minister...
Lee Kuan Yew
Lee Kuan Yew
Lee Kuan Yew, GCMG, CH is a Singaporean statesman. He was the first Prime Minister of the Republic of Singapore, governing for three decades...
to disclose the documentary evidence which Singapore had to the Malaysian Attorney-General, to demonstrate the strength of Singapore's case. However, 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
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
(ICJ).
Procedural matters
Putrajaya
Putrajaya is a planned city, located 25km south of Kuala Lumpur, that serves as the federal administrative centre of Malaysia. The seat of government was shifted in 1999 from Kuala Lumpur to Putrajaya, due to the overcrowding and congestion in the Kuala Lumpur areas...
, Malaysia, on 6 February 2003. It was notified to the Court in July 2003. The case was assigned the name Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore).
Following directions issued by the Court, the parties exchanged memorials on 25 March 2004, counter-memorials on 25 January 2005, and replies on 25 November 2005. As the parties informed the Court by a letter dated 23 January 2006 that rejoinders were unnecessary, the written proceedings were closed. The Court determined by drawing lots that Singapore would present its case first. Public hearings were held between 6 and 23 November 2007, with Singapore presenting its case from 6 to 9 November, and Malaysia doing the same from 13 to 16 November 2007. Each country was then given two days to respond, with 19 and 20 November allocated to Singapore, and 22 and 23 November allocated to Malaysia. The persons who spoke for the parties were:
- For Singapore:
- Tommy KohTommy KohTommy Koh was born in Singapore on 12 November 1937. He is an international lawyer, professor and Ambassador-At-Large for the Government of Singapore...
, Ambassador-at-Large, Ministry of Foreign Affairs (Singapore)Ministry of Foreign Affairs (Singapore)The Ministry of Foreign Affairs is a ministry of the Government of Singapore responsible for conducting and managing diplomatic relations between Singapore and other countries. It is headed by the Minister for Foreign Affairs, the office currently held by K...
; Professor of Law at the National University of SingaporeNational University of Singapore Faculty of LawThe National University of Singapore, Faculty of Law is the older of Singapore's two law schools. The Faculty was initially established as the Department of Law in the then University of Malaya in 1956, with the first batch of students matriculating in the following year...
(acting as Singapore's Agent); - Chao Hick TinChao Hick TinChao Hick Tin is an appellate judge and former Attorney-General of Singapore. He was born in Singapore and studied at Catholic High School. He received his legal education at University College London, where he obtained his Bachelor and Masters of Law degrees in 1965 and 1966 respectively. He was...
, Attorney-General of Singapore (Counsel and Advocate); - Chan Sek KeongChan Sek KeongChan Sek Keong is the current Chief Justice of Singapore, having taken over from the former Chief Justice Yong Pung How on 11 April 2006. Chan was formerly the Attorney-General of Singapore, before being succeeded by Chao Hick Tin on 11 April 2006....
, Chief Justice of SingaporeChief Justice of SingaporeThe Chief Justice of Singapore is the highest post in the judicial system of Singapore. The Chief Justice is appointed by the President, chosen from candidates recommended by the Prime Minister. The present Chief Justice is Chan Sek Keong....
(Counsel and Advocate); - Alain Pellet, Professor at the Paris X University Nanterre; member and former Chairman of the United Nations International Law Commission; associate member of the Institut de Droit InternationalInstitut de droit internationalThe Institut de droit international is an organization devoted to the study and development of international law, whose membership comprises the world's leading public international lawyers...
(Counsel and Advocate); - Ian BrownlieIan BrownlieSir Ian Brownlie, CBE, QC, FBA was a British practising barrister, specialising in international law. After an education at Hertford College, Oxford, he was called to the Bar by Gray's Inn in 1958 and was a tenant at Blackstone Chambers from 1983 until his death on 3 January 2010.During his...
, C.B.E.Order of the British EmpireThe Most Excellent Order of the British Empire is an order of chivalry established on 4 June 1917 by George V of the United Kingdom. The Order comprises five classes in civil and military divisions...
, Q.C.Queen's CounselQueen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
, F.B.A.British AcademyThe British Academy is the United Kingdom's national body for the humanities and the social sciences. Its purpose is to inspire, recognise and support excellence in the humanities and social sciences, throughout the UK and internationally, and to champion their role and value.It receives an annual...
; member of the English BarBarristers in England and WalesBarristers in England and Wales are one of the two main categories of lawyer in England and Wales, the other being solicitors. -Origin of the profession:The work of senior legal professionals in England and Wales...
; Chairman of the UN International Law Commission; Emeritus Chichele Professor of Public International Law, University of OxfordUniversity of OxfordThe University of Oxford is a university located in Oxford, United Kingdom. It is the second-oldest surviving university in the world and the oldest in the English-speaking world. Although its exact date of foundation is unclear, there is evidence of teaching as far back as 1096...
; member of the Institut de Droit International; Distinguished Fellow, All Souls College, OxfordAll Souls College, OxfordThe Warden and the College of the Souls of all Faithful People deceased in the University of Oxford or All Souls College is one of the constituent colleges of the University of Oxford in England....
(Counsel and Advocate); - Rodman R. Bundy, avocat à la Cour d'Appel de Paris; member of the New York State Bar AssociationNew York State Bar AssociationThe New York State Bar Association , with 77,000 members, is the largest voluntary bar association in the United States.-History:The State Bar was founded with a constitution that dates to 1877...
; Frere Cholmeley/EvershedsEvershedsEversheds LLP is an international law firm headquartered in London, United Kingdom. It is one of the 50 largest law firms in the world measured by revenues. In 2009/10 it achieved total revenues of £355.2 million, making it the ninth-largest UK-based law firm by this measurement, and profits per...
, Paris (Counsel and Advocate); - Loretta Malintoppi, avocat à la Cour d'Appel de Paris; member of the Rome Bar; Frere Cholmeley/Eversheds, Paris (Counsel and Advocate); and
- S. Jayakumar, Deputy Prime MinisterPrime Minister of SingaporeThe Prime Minister of the Republic of Singapore is the head of the government of the Republic of Singapore. The President of Singapore appoints as Prime Minister a Member of Parliament who, in his opinion, is most likely to command the confidence of a majority of MPs.The office of Prime Minister...
; Co-ordinating Minister for National Security and Minister for LawMinistry of Law (Singapore)The Ministry of Law is a ministry of the Government of Singapore responsible for ensuring that Singapore's legal infrastructure is clear, efficacious and transparent...
; Professor of Law at the National University of Singapore (Counsel and Advocate).
- Tommy Koh
- For Malaysia:
- Abdul Kadir Mohamad, Ambassador-at-Large, Ministry of Foreign Affairs, Malaysia; Adviser for Foreign Affairs to the Prime MinisterPrime Minister of MalaysiaThe Prime Minister of Malaysia is the indirectly elected head of government of Malaysia. He is officially appointed by the Yang di-Pertuan Agong, the head of state, who in HM's judgment is likely to command the confidence of the majority of the members of that House of Representatives , the...
(Malaysia's Agent); - Farida Ariffin, Ambassador of Malaysia to the Netherlands (Co-Agent);
- Abdul Gani Patail, Attorney-General of Malaysia (Counsel);
- Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International Law, University of CambridgeUniversity of CambridgeThe University of Cambridge is a public research university located in Cambridge, United Kingdom. It is the second-oldest university in both the United Kingdom and the English-speaking world , and the seventh-oldest globally...
; member of the Institut de Droit International; member of the Permanent Court of ArbitrationPermanent Court of ArbitrationThe Permanent Court of Arbitration , is an international organization based in The Hague in the Netherlands.-History:The court was established in 1899 as one of the acts of the first Hague Peace Conference, which makes it the oldest institution for international dispute resolution.The creation of...
(Counsel); - James Crawford, S.C.Senior CounselThe title of Senior Counsel or State Counsel is given to a senior barrister or advocate in some countries, typically equivalent to the title "Queen's Counsel" used in Commonwealth Realms...
, F.B.A., Whewell Professor of International Law, University of Cambridge; member of the Institut de Droit International (Counsel); - Nicolaas Jan Schrijver, Professor of Public International Law, Leiden UniversityLeiden UniversityLeiden University , located in the city of Leiden, is the oldest university in the Netherlands. The university was founded in 1575 by William, Prince of Orange, leader of the Dutch Revolt in the Eighty Years' War. The royal Dutch House of Orange-Nassau and Leiden University still have a close...
; associate member of the Institut de Droit International (Counsel); - Marcelo G. Kohen, Professor of International Law, Graduate Institute of International StudiesGraduate Institute of International StudiesThe Graduate Institute of International Studies, best known as HEI , was founded in 1927 as one of the first institutions in the world dedicated to the study of international relations...
, Geneva; associate member of the Institut de Droit International (Counsel); and - Penelope Nevill, college lecturer, Downing College, CambridgeDowning College, CambridgeDowning College is a constituent college of the University of Cambridge. The college was founded in 1800 and currently has around 650 students.- History :...
.
- Abdul Kadir Mohamad, Ambassador-at-Large, Ministry of Foreign Affairs, Malaysia; Adviser for Foreign Affairs to the Prime Minister
The case was presided over by ICJ Vice-President Judge Awn Shawkat Al-Khasawneh
Awn Shawkat Al-Khasawneh
Awn Shawkat Al-Khasawneh is the Prime Minister of Jordan. He was a judge at International Court of Justice beginning in 2000, and re-elected to serve another nine-year term on November 6, 2008.-Career:...
, alongside 13 other judges and two ad hoc judges appointed by the two countries. The judges were Raymond Ranjeva
Raymond Ranjeva
Raymond Ranjeva , served as a judge on the International Court of Justice from 1991 until February 2009....
from Madagascar
Madagascar
The Republic of Madagascar is an island country located in the Indian Ocean off the southeastern coast of Africa...
, Shi Jiuyong
Shi Jiuyong
Shi Jiuyong was a judge at the International Court of Justice ....
from the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
, Abdul G. Koroma
Abdul G. Koroma
Abdul Gadire Koroma is a judge at the International Court of Justice, having been a member of the court since 6 February 1994....
from Sierra Leone
Sierra Leone
Sierra Leone , officially the Republic of Sierra Leone, is a country in West Africa. It is bordered by Guinea to the north and east, Liberia to the southeast, and the Atlantic Ocean to the west and southwest. Sierra Leone covers a total area of and has an estimated population between 5.4 and 6.4...
, Gonzalo Parra Aranguren
Gonzalo Parra Aranguren
Gonzalo Parra Aranguren, born in Caracas, Venezuela, on 5 December 1928, is a judge at the International Court of Justice of the United Nations in The Hague, Netherlands. He was born in Venezuela and is married to María Trinidad Pulido Santana. He served as a Professor at the Hague Academy of...
from Venezuela
Venezuela
Venezuela , officially called the Bolivarian Republic of Venezuela , is a tropical country on the northern coast of South America. It borders Colombia to the west, Guyana to the east, and Brazil to the south...
, Thomas Buergenthal
Thomas Buergenthal
Thomas Buergenthal is a former judge of the International Court of Justice. He resigned his post as of 6 September 2010. Buergenthal is returning to his position as Lobingier Professor of Comparative Law and Jurisprudence at The George Washington University Law School...
from the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, Hisashi Owada
Hisashi Owada
is a former Japanese diplomat and a judge on the International Court of Justice, and currently serves as its President, having been elected to this post in 2009.-Early life:Hisashi Owada was born in Shibata, Niigata Prefecture, Japan. After earning a B.A...
from Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, Bruno Simma
Bruno Simma
Bruno Simma , is a German jurist who has served as a judge on the International Court of Justice since 2003....
from Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, Peter Tomka
Peter Tomka
Peter Tomka , is a Slovak diplomat and has served as a Judge on the International Court of Justice since 2003.-Early life and education:...
from Slovakia
Slovakia
The Slovak Republic is a landlocked state in Central Europe. It has a population of over five million and an area of about . Slovakia is bordered by the Czech Republic and Austria to the west, Poland to the north, Ukraine to the east and Hungary to the south...
, Ronny Abraham
Ronny Abraham
Ronny Abraham was elected to the International Court of Justice, to fill the vacancy created by the resignation of judge and former President Gilbert Guillaume. He served the remainder of Guillaume's which ended on 5 February 2009, and was reelected for a term extending to 2018. He was born on 5...
from France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Kenneth Keith
Kenneth Keith
Sir Kenneth James Keith, ONZ, KBE, QC is a New Zealand judge appointed to the International Court of Justice in November 2005....
from New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, Bernardo Sepúlveda Amor
Bernardo Sepúlveda Amor
Bernardo Sepúlveda Amor is a Mexican jurist, politician, and diplomat.-Biography:He was born in Mexico City, where he studied law at the National Autonomous University...
from Mexico
Mexico
The United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...
, Mohamed Bennouna from Morocco
Morocco
Morocco , officially the Kingdom of Morocco , is a country located in North Africa. It has a population of more than 32 million and an area of 710,850 km², and also primarily administers the disputed region of the Western Sahara...
and Leonid Skotnikov
Leonid Skotnikov
Leonid Skotnikov is a Russian judge currently serving on the United Nations International Court of Justice in the The Hague, Netherlands.- Education :...
from Russia
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
. As the Bench of the Court did not include any judges of the nationality of either party, the parties exercised their right to choose judges ad hoc to sit in the case. Singapore appointed Sreenivasa Rao Pemmaraju from India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, and Malaysia Christopher John Robert Dugard from South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
.
Singapore's case
Pedra Branca terra nullius
Singapore argued that in 1847 Pedra Branca was terra nulliusTerra nullius
Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
(Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "land belonging to no one") as it had never been the subject of a prior claim or manifestation of sovereignty by any sovereign entity. It denied Malaysia's claim that the island had been under Johor's sovereignty. It contended there was no evidence that the Johor Sultanate
Johor Sultanate
The Sultanate of Johor was founded by Malaccan Sultan Mahmud Shah's son, Sultan Alauddin Riayat Shah II in 1528. Johor was part of the Malaccan Sultanate before the Portuguese conquered Malacca's capital in 1511...
had claimed or exercised authority over Pedra Branca between 1512 and 1641. This period began with the fall of the Malacca Sultanate
Malacca Sultanate
Established by the Malay ruler Parameswara, the Sultanate of Malacca was first a Hindu kingdom in 1402 and later became Muslim following the marriage of the princess of Pasai in 1409. Centered in the modern town of Malacca, the sultanate bordered the Ayutthaya Kingdom of Siam in the north to...
to the Portuguese
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
in 1512, who continued to harass the Johor Sultanate during this time, as did the Aceh Sultanate
Aceh Sultanate
The Sultanate of Aceh, officially the Kingdom of Aceh Darussalam was a sultanate centered in the modern area of Aceh Province, Sumatra, Indonesia, which was a major regional power in the 16th and 17th centuries, before experiencing a long period of decline...
. Similarly, there was no evidence of Johor's sovereignty over Pedra Branca between 1641 and 1699, when Johor's power and influence were at their height; between 1699 and 1784 when the death of Sultan Mahmud Shah II
Sultan Mahmud Shah II of Johor
H.H. Paduka Sri Sultan Mahmud Shah II ibni al-Marhum Sultan Ibrahim Shah was the 10th Sultan of Johor, Pahang and Lingga ....
in 1699 without a clear heir led to instability, during which many vassal
Vassal
A vassal or feudatory is a person who has entered into a mutual obligation to a lord or monarch in the context of the feudal system in medieval Europe. The obligations often included military support and mutual protection, in exchange for certain privileges, usually including the grant of land held...
s broke away from the Sultanate; and between 1784 and 1824 when, according to a 1949 annual report of the Johor government, the Sultanate was in a "state of dissolution" by the beginning of the 19th century.
To support its assertion that the Sultan of Johor
Sultan of Johor
Sultan of Johor is a hereditary seat and the nominal ruler of the Malaysian state of Johor. In the past, the sultan held absolute power over the state and was advised by a bendahara...
did not have sovereignty over Pedra Branca, Singapore contended that the traditional Malay concept of sovereignty was based mainly on control over people and not over territory. Thus, the only reliable way to determine whether a particular territory belonged to a ruler was to find out whether the inhabitants pledged allegiance to that ruler. This was difficult to do with respect to Pedra Branca since it was isolated and uninhabited, and Malaysia had not provided clear evidence of a direct claim to or actual exercise of sovereign authority over the island.
In addition, Singapore claimed that the old Johor Sultanate, which controlled a maritime Malay empire from a capital on the Johor River
Johor River
Johor River is the main river in the Malaysian state of Johor. The river is 122.7km long and flows in a roughly north-south direction, originating from Mount Gemuruh and then empties into the Strait of Johor. Its major tributaries are Sayong, Linggui, Tiram and Lebam Rivers. Its banks are also...
, was not the same as the new Johor Sultanate occupying only the southern tip of the Malay Peninsula
Malay Peninsula
The Malay Peninsula or Thai-Malay Peninsula is a peninsula in Southeast Asia. The land mass runs approximately north-south and, at its terminus, is the southern-most point of the Asian mainland...
that came into existence after the signing of the Anglo–Dutch Treaty of 1824
Anglo-Dutch Treaty of 1824
The Anglo-Dutch Treaty of 1824, also known as the Treaty of London, was a treaty signed between the United Kingdom and the Netherlands in London on 17 March 1824. The treaty was to resolve disputes arising from the execution of the Anglo-Dutch Treaty of 1814...
between the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and the Netherlands
United Kingdom of the Netherlands
United Kingdom of the Netherlands is the unofficial name used to refer to Kingdom of the Netherlands during the period after it was first created from part of the First French Empire and before the new kingdom of Belgium split out in 1830...
. In its view, the Anglo–Dutch Treaty did not divide up the Singapore Strait
Singapore Strait
The Singapore Strait is a 105-kilometer long, 16-kilometer wide strait between the Strait of Malacca in the west and the South China Sea in the east. Singapore is on the north of the channel and the Riau Islands are on the south...
, in which Pedra Branca is situated, between the new Johor Sultanate under the British sphere of influence
Sphere of influence
In the field of international relations, a sphere of influence is a spatial region or conceptual division over which a state or organization has significant cultural, economic, military or political influence....
and the Riau
Riau Archipelago
Not to be confused with Riau Islands Province, a province of Indonesia.The Riau Archipelago is the core group of islands within the Riau Islands Province in Indonesia, and located south of Singapore...
–Lingga
Lingga Islands
Not to be confused with "Linga", a common Scottish island name, see Linga The Lingga Islands or Lingga Archipelago are a group of islands in Indonesia, located south of Singapore, along both sides of the equator, off the eastern coast of Riau Islands province on Sumatra island...
Sultanate under Dutch influence. Instead, both Britain and the Netherlands could access the Strait freely. Therefore, there was a legal vacuum with regard to sovereignty over the island, enabling the British to lawfully take possession of it between 1847 and 1851.
Following the death of Sultan Mahmud Shah III of Johor in 1812, his two sons Hussein and Abdul Rahman vied for the throne of the Johor Sultanate. The United Kingdom recognized the elder son Hussein, who was based in Singapore, as the rightful heir, while the Netherlands recognized the younger son Abdul Rahman who was based in Riau (now Bintan
Bintan
Bintan Island or Negeri Segantang Lada is an island in the Riau archipelago of Indonesia. It is part of the Riau Islands province, the capital of which, Tanjung Pinang, lies in the island's south and is the island's main community....
, Indonesia
Indonesia
Indonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
). A year after the Anglo–Dutch Treaty, Abdul Rahman sent a letter dated 25 June 1825 to Hussein. In it he stated that, "in complete agreement with the spirit and the content of the treaty concluded between their Majesties, the Kings of the Netherlands and Great Britain", he donated to his older brother "[t]he part of the lands assigned to [Great Britain]":
On the basis of this letter, Singapore argued that Abdul Rahman had only donated the mainland territories to Hussein and had retained sovereignty over all the islands in the sea. Pedra Branca therefore never became a part of Johor.
Lawful taking of ownership
In the event that the Court rejected the argument that Pedra Branca was terra nullius in 1847, Singapore contended that the selection of Pedra Branca as the site for Horsburgh Lighthouse and the construction of the lighthouse between 1847 and 1851 constituted a taking of possession of the island à titre de souverain (with the title of a sovereign). The British CrownThe Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
obtained title over the island in accordance with legal principles governing the acquisition of territory at that time. This title was maintained by the United Kingdom and its lawful successor, the Republic of Singapore.
Singapore claimed that it and its predecessor the United Kingdom had demonstrated a consistent exercise of authority over the island through various acts since 1847. For instance, during the ceremony for the laying of the foundation stone
Cornerstone
The cornerstone concept is derived from the first stone set in the construction of a masonry foundation, important since all other stones will be set in reference to this stone, thus determining the position of the entire structure.Over time a cornerstone became a ceremonial masonry stone, or...
of the lighthouse on 24 May 1850, Pedra Branca was described as a "dependency of Singapore" in the presence of the Governor of the Straits Settlements
Straits Settlements
The Straits Settlements were a group of British territories located in Southeast Asia.Originally established in 1826 as part of the territories controlled by the British East India Company, the Straits Settlements came under direct British control as a crown colony on 1 April 1867...
– the most senior British official in Singapore – and other British and foreign officials. The attribution of sovereignty was widely reported in local newspapers, but drew no response from the Johor authorities. Other significant acts included the following:
- Singapore had investigated shipwrecks in the waters around the island between 1920 and 1979.
- It had exercised exclusive control over the use of the island and visits to the island, including requiring Malaysian officials wishing to visit the island for scientific surveys to obtain permits.
- It had displayed British and Singapore ensignEnsignAn ensign is a national flag when used at sea, in vexillology, or a distinguishing token, emblem, or badge, such as a symbol of office in heraldry...
s from Horsburgh Lighthouse. Furthermore, it had acceded to a request by Malaysia in 1968 to remove the Singapore flagFlag of SingaporeThe national flag of Singapore was first adopted in 1959, the year Singapore became self-governing within the British Empire. It was reconfirmed as the national flag when the Republic gained independence on 9 August 1965...
from another island, Pulau PisangPulau PisangPulau Pisang is a small island situated off the western coast of the Malaysian state of Johor.The island, which is about 12 kilometres from the town of Pontian Kechil and 5 kilometres from Benut town, is the site of the Pulau Pisang Light, a lighthouse guiding ships into the western entrance of...
, which is under Malaysian sovereignty. Malaysia had made no such request in respect of Pedra Branca. - On 30 May 1977, the Port of Singapore AuthorityPSA InternationalPSA International Pte Ltd, formerly Port of Singapore Authority is the second largest port operator in the world. The company's flagship operations are PSA Singapore Terminals, PSA HNN and PSA Marine...
(PSA) allowed the Republic of Singapore NavyRepublic of Singapore NavyThe Republic of Singapore Navy is the naval component of the Singapore Armed Forces , responsible for the defence of Singapore against sea-borne threats and protection of its sea lines of communications. Operating within the crowded littoral waters of the Singapore Strait, the RSN is regarded as...
to install a military rebroadcast station on the island. - On the direction of the Government of SingaporeGovernment of SingaporeThe Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
, in 1972, 1973, 1974 and 1978 the PSA studied the feasibility of reclaiming 5000 square metres (53,819.6 sq ft) of land around the island. Tenders for the project were sought through newspaper advertisements, though eventually the project was not proceeded with.
In addition, Singapore had on two occasions claimed the sea around Pedra Branca as its territorial waters
Territorial waters
Territorial waters, or a territorial sea, as defined by the 1982 United Nations Convention on the Law of the Sea, is a belt of coastal waters extending at most from the baseline of a coastal state...
. The first occasion was in July 1952 when the Chief Surveyor expressed the opinion that Singapore should claim a 3 miles (4.8 km) limit around the island. Subsequently in 1967, the Singapore Government's Marine Department also stated in an official memorandum to the Ministry of Foreign Affairs (Singapore)
Ministry of Foreign Affairs (Singapore)
The Ministry of Foreign Affairs is a ministry of the Government of Singapore responsible for conducting and managing diplomatic relations between Singapore and other countries. It is headed by the Minister for Foreign Affairs, the office currently held by K...
that the waters within three miles of Pedra Branca might be considered Singapore territorial waters.
Malaysia's inaction and acceptance of Singapore's sovereignty
It was also Singapore's case that 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. During the hearing, Ambassador-at-Large Tommy Koh highlighted this by saying:On 12 June 1953, when Singapore was a Crown Colony
British overseas territories
The British Overseas Territories are fourteen territories of the United Kingdom which, although they do not form part of the United Kingdom itself, fall under its jurisdiction. They are remnants of the British Empire that have not acquired independence or have voted to remain British territories...
, its Colonial Secretary
Chief Secretary
The Chief Secretary is the title of a senior civil servant in members of the Commonwealth of Nations, and, historically, in the British Empire. Prior to the dissolution of the colonies, the Chief Secretary was the second most important official in a colony of the British Empire after the...
J. D. Higham wrote to the British Adviser to the Sultan of Johor to clarify the status of Pedra Branca. He noted that the rock was outside the limits ceded by Sultan Hussein Shah and the Temenggung
Temenggung
Temenggung is an ancient Malay title of nobility, usually given to the chief of public security. The Temenggung is usually responsible for the safety of the monarch as well as the state police and army...
with the island of Singapore under the 1824 Crawfurd Treaty they had entered into with the East India Company. However, the Colonial Government had been maintaining the lighthouse built on it, and "[t]his by international usage no doubt confers some rights and obligations on the Colony". He therefore asked if "there is any document showing a lease or grant of the rock or whether it has been ceded by the Government of the State of Johore or in any other way disposed of". The Acting State Secretary of Johor, M. Seth bin Saaid, replied on 21 September that "the Johore Government does not claim ownership of Pedra Branca". Singapore contended that this reply confirmed Singapore's sovereignty over the island and that Johor had no title, historic or otherwise, to it.
The Colony of Singapore became a self-governing state in 1959, and left the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
to join the Federation of Malaysia in 1963. Two years later, in 1965, Singapore became a fully independent republic. In 1959, in an official publication regarding meteorological
Meteorology
Meteorology is the interdisciplinary scientific study of the atmosphere. Studies in the field stretch back millennia, though significant progress in meteorology did not occur until the 18th century. The 19th century saw breakthroughs occur after observing networks developed across several countries...
information collected on Pedra Branca, Malaya listed Horsburgh Lighthouse as a "Singapore" station together with the Sultan Shoal
Sultan Shoal Lighthouse
The Sultan Shoal Lighthouse was built in 1895 during the time when the late Commander Charles Quentin Gregan Craufurd was the Master Attendant of Singapore. It was built to replace the beacon previously established there.Three single-wick lamps fitted with parabolic reflectors were used...
and Raffles Lighthouse
Raffles Lighthouse
Raffles Lighthouse is a lighthouse located in the Straits of Singapore, about 14 kilometres south of the main island of Singapore....
s. The lighthouse on Pedra Branca was described in the same way in a joint Malaysian and Singaporean publication in 1966, the year after Singapore left the Federation. In 1967, when the two countries began reporting meteorological information separately, Malaysia ceased referring to Horsburgh Lighthouse. In maps published by the Malayan and Malaysian Surveyor General and Director of General Mapping in 1962, 1965, 1970, 1974 and 1975, the island was indicated with the word "(SINGAPORE)" or "(SINGAPURA)" under it. The same designation was used for an island that was unquestionably under Singapore's sovereignty. On the other hand, the designation was not used for Pulau Pisang
Pulau Pisang
Pulau Pisang is a small island situated off the western coast of the Malaysian state of Johor.The island, which is about 12 kilometres from the town of Pontian Kechil and 5 kilometres from Benut town, is the site of the Pulau Pisang Light, a lighthouse guiding ships into the western entrance of...
, an island under Malaysian sovereignty on which Singapore operated a lighthouse.
At a news conference in May 1980 attended by Malaysia's former Prime Minister
Prime Minister of Malaysia
The Prime Minister of Malaysia is the indirectly elected head of government of Malaysia. He is officially appointed by the Yang di-Pertuan Agong, the head of state, who in HM's judgment is likely to command the confidence of the majority of the members of that House of Representatives , the...
Tun Hussein Onn
Hussein Onn
Tun Hussein bin Dato' Onn who is of 3/4 Malay and 1/4 Circassian ancestry was the third Prime Minister of Malaysia, ruling from 1976 to 1981. He was granted the soubriquet Bapa Perpaduan...
and Singapore's then Prime Minister
Prime Minister of Singapore
The Prime Minister of the Republic of Singapore is the head of the government of the Republic of Singapore. The President of Singapore appoints as Prime Minister a Member of Parliament who, in his opinion, is most likely to command the confidence of a majority of MPs.The office of Prime Minister...
Lee Kuan Yew
Lee Kuan Yew
Lee Kuan Yew, GCMG, CH is a Singaporean statesman. He was the first Prime Minister of the Republic of Singapore, governing for three decades...
, the Malaysian leader admitted that the question of sovereignty over Pedra Branca was "not very clear" to Malaysia.
On 19 November 2007, Singapore Deputy Prime Minister S. Jayakumar refuted Malaysia's claim that Singapore was attempting to subvert the status quo by claiming sovereignty of Pedra Branca. He said Singapore was "an honest, law-abiding state that has never and will never do anything to endanger navigational safety, security arrangements or the Singapore Strait's environment". Rather, it was Malaysia that had sought to alter the status quo by publishing a map in 1979 that altered maritime boundaries with seven neighbouring countries. This was evidenced by a telegram that the Malaysian Government had sent to its overseas missions in December 1979, notifying them that the map would "affect" Brunei, China, Indonesia, the Philippines, Thailand, Singapore and Vietnam.
Pedra Branca, Middle Rocks and South Ledge one entity
Singapore took the position that Pedra Branca, Middle Rocks and South Ledge should be considered a single group of maritime features as Middle Rocks and South Ledge were dependencies of Pedra Branca. It relied, among others, on the Island of Palmas CaseIsland of Palmas Case
Island of Palmas Case, , was a case involving a territorial dispute over the Island of Palmas between the Netherlands and the United States which was heard by the Permanent Court of Arbitration...
(1932): "As regards a group of islands, it is possible that a group may under certain circumstances be regarded as in law a unit, and that the fate of the principal part may involve the rest." It argued that the three maritime features were geomorphologically
Geomorphology
Geomorphology is the scientific study of landforms and the processes that shape them...
the same, as rock samples showed that they were all composed of a light, coarse-grained biotite
Biotite
Biotite is a common phyllosilicate mineral within the mica group, with the approximate chemical formula . More generally, it refers to the dark mica series, primarily a solid-solution series between the iron-endmember annite, and the magnesium-endmember phlogopite; more aluminous endmembers...
granite. Additionally, Malaysia had not shown any exercise of sovereignty over the uninhabited reefs of Middle Rocks and South Ledge while Singapore had consistently exercised sovereign authority in the surrounding waters. Since sovereignty over Pedra Branca belonged to Singapore, so did sovereignty over Middle Rocks and South Ledge as they were within Pedra Branca's territorial waters.
Pedra Branca not terra nullius
Time immemorial
Time immemorial is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record"...
". The island could not at any relevant time have been terra nullius as it is and had always been part of Johor, which is now a state of Malaysia. Nothing that the United Kingdom or Singapore had done had displaced its sovereignty over it. Contrary to what Singapore had claimed, there had been no break between the old Sultanate of Johor and the new Johor Sultanate ruled by Sultan Hussein that came into existence after the signing of the 1824 Anglo–Dutch Treaty. The Treaty had the effect of leaving the islands south of the Singapore Strait within the Dutch sphere of influence (the Riau–Lingga Sultanate), while the territory and islands in the Strait and to its north were within the British sphere of influence (the new Johor Sultanate). A few months after the conclusion of the Anglo–Dutch Treaty, the Sultan and the Temenggung of Johor entered into the Crawfurd Treaty with the East India Company on 2 August 1824. Article II of the Crawfurd Treaty stated:
Since Johor could not have ceded
Cession
The act of Cession, or to cede, is the assignment of property to another entity. In international law it commonly refers to land transferred by treaty...
Singapore island and the islets in its vicinity to the British if it lacked title to them, this was evidence that the United Kingdom recognized the prior and continuing sovereignty of the Johor Sultanate over all islands in and around the Singapore Strait.
Malaysia challenged Singapore's contention that Pedra Branca never became part of the new Johor Sultanate because the 25 June 1825 letter from Sultan Abdul Rahman of Riau–Lingga to Sultan Hussain showed that Abdul Rahman had only donated territories on the mainland of the Malay Peninsula to Hussein and had retained sovereignty over all the islands in the sea. Malaysia submitted Abdul Rahman's statement that his territory "extends out over the islands of Lingga, Bintan, Galang, Bulan, Karimon and all other islands" had to be read in the context of Article XII of the 1824 Anglo–Dutch Treaty, which guaranteed that no "British Establishment" would be made "on the Carimon Isles, or on the Island of Bantam, Bintang, Lingin, or on any of the other Islands South of the Straits of Singapore". Three of the islands mentioned by Abdul Rahman – Bintan, Karimun and Lingga – were islands that the British had agreed were not within their sphere of influence, while the other two – Bulan and Galang – lay south of the Singapore Strait. Therefore, the phrase "all other islands" in Abdul Rahman's letter referred only to islands lying within the Dutch sphere of influence. The letter was simply formal recognition that Abdul Rahman did not claim sovereignty over Johor.
The Johor Sultanate's title to the island was also confirmed by ties of loyalty that existed between the Sultanate and the Orang Laut, a nomad
Nomad
Nomadic people , commonly known as itinerants in modern-day contexts, are communities of people who move from one place to another, rather than settling permanently in one location. There are an estimated 30-40 million nomads in the world. Many cultures have traditionally been nomadic, but...
ic sea people who in the past had inhabited the maritime areas of the Singapore Strait, carrying out fishing and piracy, and had visited Pedra Branca quite frequently. This was evidenced by three 19th-century letters written by British officials, including one dated November 1850 by John Turnbull Thomson
John Turnbull Thomson
John Turnbull Thomson was a British civil engineer and artist who played an instrumental role in the development of the early infrastructure of nineteenth century Singapore and New Zealand. -Biography:...
, the Government Surveyor of Singapore, which had reported on the need to exclude the Orang Laut from Pedra Branca where Horsburgh Lighthouse was being built. Thomson noted that they "frequently visit the rock so their visits should never be encouraged nor any trust put in them ... In the straits and islets of the neighbouring shores and islands many lives are taken by these people."
Malaysia rejected Singapore's argument that the traditional Malay concept of sovereignty was based mainly on control over people and not over territory. It stated that authority in states throughout the world is based on a combination of control over people and territory, and that this applies to the Malay States as it does to any other state. Since the Johor Sultanate was established in the 16th century, it always had rulers who were recognized as such and who thus commanded people's allegiance and therefore controlled the territory where those people lived.
Actions of United Kingdom and Singapore those of lighthouse operator
Malaysia averred that the actions of the United Kingdom and its successor Singapore in constructing and maintaining Horsburgh Lighthouse on Pedra Branca were actions of the operator of the lighthouse and not the sovereign of the island. Johor had at no time ceded the island to the United Kingdom, but instead had merely granted permission for the lighthouse to be built and maintained on it.Captain James Horsburgh
James Horsburgh
James Horsburgh was a Scottish hydrographer. He worked for East India Company, who mapped many seaways around Singapore in the late 18th century and early 19th century....
, a Scottish hydrographer to the British East India Company who had prepared many charts and sailing instructions for the East Indies
Indies
The Indies is a term that has been used to describe the lands of South and Southeast Asia, occupying all of the present India, Pakistan, Bangladesh, Myanmar, Nepal, Sri Lanka, the Maldives, and also Thailand, Cambodia, Laos, Vietnam, Brunei, Singapore, the Philippines, East Timor, Malaysia and...
, China, New Holland
Dutch West India Company
Dutch West India Company was a chartered company of Dutch merchants. Among its founding fathers was Willem Usselincx...
, the Cape of Good Hope
Cape of Good Hope
The Cape of Good Hope is a rocky headland on the Atlantic coast of the Cape Peninsula, South Africa.There is a misconception that the Cape of Good Hope is the southern tip of Africa, because it was once believed to be the dividing point between the Atlantic and Indian Oceans. In fact, the...
and other intermediate ports, died in May 1836. Merchants and mariners felt that the building of one or more lighthouses would be a fitting tribute to him, and in as early as November 1836 Pedra Branca was proposed as one of the preferred sites. By 1844, preference had been expressed for Romania Outer Island, or Peak Rock. Some time in November 1844, the Governor of the Straits Settlements
Straits Settlements
The Straits Settlements were a group of British territories located in Southeast Asia.Originally established in 1826 as part of the territories controlled by the British East India Company, the Straits Settlements came under direct British control as a crown colony on 1 April 1867...
, William John Butterworth, wrote to the Sultan and the Temenggung of Johor regarding the matter. His letters have not been found, but English translations of the replies, dated 25 November 1844, exist. The Sultan said:
The Temenggung responded thus:
Three days later, on 28 November 1844, the Governor wrote to the Secretary of the Government in India to recommend that the lighthouse be sited on Peak Rock. Among other things, he said that "[t]his Rock is part of the Territories of the Rajah of Johore, who with the Tamongong ... have willingly consented to cede it gratuitously to the East India Company", and enclosed the replies received from the Sultan and Temenggung. Nonetheless, Malaysia argued that the Sultan and Temenggung's letters amounted to no more than permission to the United Kingdom to build and operate a lighthouse on Peak Rock or some other suitable location.
On 13 November, Malaysia's Agent, Ambassador-at-Large Abdul Kadir Mohamad, alleged that Singapore was trying to "subvert" a 150-year-old arrangement under which Singapore operated Horsburgh Lighthouse on Pedra Branca, which was Malaysia's territory. He also suggested that if permitted to do so, Singapore would upset the peace and stability of the area where the island is located. He said that if Singapore reclaimed land around Pedra Branca, "[q]uite apart from the possible effects on the environment and navigation in the Strait, this could lead to potentially serious changes to the security arrangements in the eastern entrance of the Strait". According to Malaysian Attorney-General Abdul Gani Patail, Singapore had first raised the issue of sovereignty over Pedra Branca on 13 April 1978 during a meeting between officials, saying it had "incontrovertible legal evidence" of its sovereignty over the island though it had never produced any documents in support. Prior to that, the sovereignty of the island had never been disputed. The 1980 statement by the then Malaysian Prime Minister Tun Hussein Onn concerning the "unclear" position of the island had also been premised on these documents which former Singapore Prime Minister Lee Kuan Yew had claimed were in Singapore's possession. The statement was therefore merely a friendly and respectful statement of a visiting prime minister at a press conference which had no probative
Probative
Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a term used in law to signify "tending to prove."...
value in court. All Hussein Onn had meant was that the matter required further discussion between the two countries.
1953 letter by Acting State Secretary of Johor unauthorized
Concerning the letter of 21 September 1953 in which the Acting State Secretary of Johor informed the Colonial Secretary of Singapore that "the Johore Government does not claim ownership of Pedra Branca", Malaysia submitted that the Colonial Secretary's enquiry of 12 June 1953 about the status of Pedra Branca showed that the Singapore authorities had no conviction that the island was part of its territory.Further, the Acting State Secretary "was definitely not authorized" and did not have "the legal capacity to write the 1953 letter, or to renounce, disclaim, or confirm title of any part of the territories of Johor". Under two treaties of 21 January 1948, the Johor Agreement between the British Crown and the Sultan of Johor and the Federation of Malaya Agreement between the British Crown and nine Malay States including Johor, Johor transferred all its rights, power and jurisdiction on matters relating to defence and external affairs to the United Kingdom. These powers were exercisable by the Federal High Commissioner appointed by the United Kingdom and not by the Johor State Secretary. The Acting State Secretary had improperly taken it upon himself to reply to the Colonial Secretary's letter and had not submitted a copy of it to the Chief Secretary of Johor. There was no evidence that the Chief Secretary or the High Commissioner was aware of its contents.
Singapore's actions in respect of Pedra Branca not as sovereign
Regarding Singapore's contentions that it had exercised sovereign authority over Pedra Branca in various ways, Malaysia responded as indicated below:- Investigation of shipwrecks in vicinity of Pedra Branca. Singapore had duties to investigate hazards to navigational safety and to publish information about such hazards in its capacity as a lighthouse operator, and under the United Nations Convention on the Law of the SeaUnited Nations Convention on the Law of the SeaThe United Nations Convention on the Law of the Sea , also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea , which took place from 1973 through 1982...
and the Convention on the Safety of Life at Sea. Therefore, by investigating and reporting on shipwrecks and maritime hazards within Pedra Branca's territorial waters Singapore had acted in accordance with best practice and not à titre de souverain. The circumstances of the particular investigations also meant that Singapore's ability to carry them out was not based on its sovereignty over the island.
- Display of British and Singapore ensigns on island. Ensigns, associated with maritime matters, are marks of nationality and not sovereignty. Singapore had also not demonstrated any sovereign intent in the flying of the British and Singapore ensigns from Horsburgh Lighthouse. The Pulau Pisang incident was not an acknowledgement by Malaysia of Singapore's sovereignty over Pedra Branca; it had been a matter of domestic political sensibility – Pulau Pisang is much larger than Pedra Branca and has a small local population.
- Installation of military communications equipment and plans to reclaim land. Malaysia alleged that Singapore's installation of military communications equipment on Pedra Branca was done secretly, and that it had only learned about this when it received Singapore's memorial in the case. As regards Singapore's plans to reclaim land around the island, Malaysia said it could not have reacted to some of the documents as they had been secret.
Meterological reports irrelevant; maps inconclusive
In response to Singapore's contention in respect of meteorological reports published by Malaysia that had indicated Pedra Branca as a Singapore station, Malaysia said the fact that it recognized Horsburgh Lighthouse as a Singapore rainfall station did not amount an acknowledgement of sovereignty. The six maps that it had published between 1962 and 1975 which had printed the word "(SINGAPORE)" or "(SINGAPURA)" beneath the island were inconclusive. This was because the annotating could be assessed differently, the maps contained disclaimerDisclaimer
A disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally recognized relationship...
s stating they could not be considered an authority on the delimitation of international or other boundaries, and maps do not create title and cannot amount to admissions unless incorporated into treaties or used in inter-state negotiations.
Middle Rocks and South Ledge belong to Malaysia
Malaysia contended that Pedra Branca, Middle Rocks and South Ledge were not a single identifiable entity. The historical record showed that the three maritime features were never formally described as a single island with appurtenant islands, or as a group of islands. Middle Rocks and South Ledge were therefore under Johor sovereignty at the time of the 1824 Anglo–Dutch Treaty and fell within the British sphere of influence under the Treaty. Malaysia had exercised consistent acts of sovereignty over them within the limits of their character. For instance, in 1968 the Malaysian GovernmentPolitics of Malaysia
The politics of Malaysia takes place in the framework of a federal constitutional monarchy, in which the Yang di-Pertuan Agong is head of state and the Prime Minister of Malaysia is the head of government. Executive power is exercised by the federal government and the 13 state governments. ...
used and granted petroleum
Petroleum
Petroleum or crude oil is a naturally occurring, flammable liquid consisting of a complex mixture of hydrocarbons of various molecular weights and other liquid organic compounds, that are found in geologic formations beneath the Earth's surface. Petroleum is recovered mostly through oil drilling...
concessions
Concession (contract)
A concession is a business operated under a contract or license associated with a degree of exclusivity in business within a certain geographical area. For example, sports arenas or public parks may have concession stands. Many department stores contain numerous concessions operated by other...
which extended to the area of Middle Rocks and South Ledge. Also, an internal confidential document dated 16 July 1968 entitled "Letter of Promulgation" by the Chief of the Royal Malaysian Navy
Royal Malaysian Navy
The Royal Malaysian Navy is the naval arm of Malaysian Armed Forces. All commissioned ships of the RMN have the prefix KD , which means Royal Ship.-Straits Settlement Naval Volunteer Reserve:...
included charts showing that Pedra Branca, Middle Rocks and South Ledge were within Malaysia's territorial waters, and the features were included within Malaysian fisheries waters in the Fisheries Act 1985
Fisheries Act 1985 (Act 317) Malaysia
The Fisheries Act 1985 is a Malaysian federal act relating to the administration and management of fisheries, including the conservation and development of maritime and estuarine fishing and fisheries in Malaysia waters, protection to aquatic mammals and turtles and riverine fishing in Malaysia...
. Singapore had neither protested against these manifestations of sovereignty, nor advanced any claims over Middle Rocks and South Ledge in 1980 when it began claiming that Pedra Branca belonged to it.
Reliability of Malaysia's photograph of Pedra Branca
In the course of the hearing, to demonstrate Pedra Branca's proximity to the Johor mainland, Malaysia produced a photograph taken of Pedra Branca with Point Romania and a hill named Mount Berbukit, both in Johor, in the background. However, on 19 November 2007 Singapore produced another photograph taken using a camera that approximated what the human eye sees, and pointed out that in it Mount Berbukit appeared much smaller. It alleged that Malaysia's photograph had been taken using a telephoto lensTelephoto lens
In photography and cinematography, a telephoto lens is a specific type of a long-focus lens in which the physical length of the lens is shorter than the focal length. This is achieved by incorporating a special lens group known as a telephoto group that extends the light path to create a long-focus...
, which had exaggerated the height of Mount Berbukit by about seven times. Singapore's then Attorney-General Chao Hick Tin said that the photograph had been "an attempt to convey a subliminal message of proximity between Pedra Branca and the coast of Johor", but it was not an accurate reflection of what visitors to Pedra Branca would see if they were looking towards Johor.
Malaysia had claimed its photograph was obtained from an online blog, implying that it was from an independent source. Singapore called the blog "most unusual", noting that it had been created only a month earlier; that the photograph had only been uploaded on 2 November, four days before the oral proceedings in the case had commenced; and that there was no information on the blogger's identity.
In its rebuttal on 24 November, Malaysia said that the difference between the photographs was "all a question of perspective" and that the matter was not worth discussing.
Missing 1844 letters
A key thrust of Malaysia's case was that the British had received explicit permission from Johor to build a lighthouse on Pedra Branca, which proved that the British had recognized Johor's sovereignty over the island. It submitted that this was evidenced by the November 1844 letters that Governor Butterworth had written to the Sultan and Temenggung of Johor regarding the construction of the lighthouse. Malaysia said it had written to Singapore asking for copies of the letters, because if the letters still existed they were probably in Singapore's archives in a file entitled "Letters to Native Rulers". However, Singapore had never replied.Singapore's response was that it did not have copies of the letters. Its archives were incomplete, and searches for them in other archives had been in vain. Furthermore, the letters were more likely to be in Malaysia's possession as the Governor had sent them to the Johor rulers. In his rebuttal of Malaysia's case on 19 November 2007, Singapore's Deputy Prime Minister and Minister for Law S. Jayakumar expressed disappointment with Malaysia's insinuation that Singapore had concealed the letters from the Court, which he termed "most disturbing", "baseless" and "distracting".
Malaysia did not mention the matter further in its rebuttal on 24 November.
ICJ decision
The ICJ rendered its decision on 23 May 2008. It held by 12 votes to four that sovereignty over Pedra Branca belongs to Singapore; and by 15 votes to one that sovereignty over Middle Rocks belongs to Malaysia, and sovereignty over South Ledge belongs to the state in the territorial waters of which it is located.Pedra Branca originally under sovereignty of Johor Sultanate
The Court agreed with Malaysia that the Johor Sultanate had original title to Pedra Branca, rejecting Singapore's argument that the island was terra nullius. It found it was not disputed that Johor had established itself as a sovereign state with a certain territorial domain in Southeast Asia since it came into existence in 1512. As Pedra Branca had always been known as a navigational hazard in the Singapore Strait, which was a vital channel for international navigation in east-west trade between the Indian OceanIndian Ocean
The Indian Ocean is the third largest of the world's oceanic divisions, covering approximately 20% of the water on the Earth's surface. It is bounded on the north by the Indian Subcontinent and Arabian Peninsula ; on the west by eastern Africa; on the east by Indochina, the Sunda Islands, and...
and the South China Sea, it was inconceivable that the island had remained undiscovered by the local community. It was therefore reasonable to infer that Pedra Branca lay within the general geographical scope of the Johor Sultanate. Further, during the existence of the old Johor Sultanate, there was no evidence of any competing claims over the islands in the Singapore Strait. It also agreed with Malaysia's submission that descriptions of the relationship between the Sultan of Johor and the Orang Laut in 19th-century official British reports proved that the Sultan exercised sovereign authority over the Orang Laut. Since the Orang Laut made the islands in the Singapore Strait their habitat, this confirmed the "ancient original title" of the Johor Sultanate to those islands, including Pedra Branca. As regards Singapore's argument that the traditional concept of Malay sovereignty was based on control over people rather than territory, the Court observed that sovereignty comprises control over both persons and territory. However, it was not necessary to deal with the point further as it had already found that Johor had territorial sovereignty over Pedra Branca.
The purpose of the 1824 Anglo–Dutch Treaty was to finally settle the disputes that had arisen between the United Kingdom and the Netherlands relating to their territorial possessions and commercial interests in the East Indies. It was thus most unlikely that the parties had left the maritime features in the Singapore Straits outside their spheres of influence, as Singapore had contended. Under Article XII of the Treaty, Britain had agreed that "no British Establishment shall be made on the Carimon Isles
Karimun jawa
Karimunjawa is an archipelago of 27 islands in the Java Sea, Indonesia, approximately 80 kilometres northwest of Jepara. The islands' name means 'a stone's throw from Java' in Javanese. They have a total land area of 78 km2. The main island is known as Karimun , while the second largest...
, or on the Island of Bantam
Batam
Batam is an island and city in Riau Islands Province of Indonesia, known for its free trade zone area as part of the Sijori Growth Triangle, is located off Singapore's south coast...
, Bintan
Bintan
Bintan Island or Negeri Segantang Lada is an island in the Riau archipelago of Indonesia. It is part of the Riau Islands province, the capital of which, Tanjung Pinang, lies in the island's south and is the island's main community....
g, Lingin
Lingga Island
Lingga Island is the largest and most populated of the Lingga Islands, Indonesia. It has an area of . It is located south of the Riau Islands off the east coast of Sumatra. The other major island of the archipelago is Singkep....
, or on any of the other Islands South of the Straits of Singapore ..." The islands and islet
Islet
An islet is a very small island.- Types :As suggested by its origin as islette, an Old French diminutive of "isle", use of the term implies small size, but little attention is given to drawing an upper limit on its applicability....
s within the Straits therefore fell within the British sphere of influence. This included Pedra Branca, which remained part of the territorial domain of the new Johor Sultanate. That this was the British understanding of the Treaty was confirmed by a letter dated 4 March 1825 from the Government of India to John Crawfurd
John Crawfurd
John Crawfurd , Scottish physician, and colonial administrator and author, was born in the island of Islay, Scotland...
, the British Resident
Resident (title)
A Resident, or in full Resident Minister, is a government official required to take up permanent residence in another country. A representative of his government, he officially has diplomatic functions which are often seen as a form of indirect rule....
in Singapore, which read: "[O]ur acquisition of these Islets [under the Crawfurd Treaty] is not at variance with the obligations of the Treaty concluded at London in March last [the 1824 Anglo–Dutch Treaty] as they are all situated North of the Southern limits of the Straights of Singapore ..." [Emphasis added.] Therefore, Britain's position was that every island north of the southern limits of the Singapore Strait fell within its sphere of influence. The Court's reading of the Anglo–Dutch Treaty was reinforced by the 25 June 1825 letter from Sultan Abdul Rahman to his brother Sultan Hussain, which did not have the effect Singapore attributed to it.
Contrary to Malaysia's submission, the Court found that the Crawfurd Treaty did not show that Britain recognized Johor's sovereignty over all the islands in and around the Singapore Strait. Article II only referred to the cession by the Sultan and Temenggung of Johor of "the Island of Singapore ... together with the adjacent seas, straits, and islets to the extent of ten geographical miles" to the British, and could not be read as an acknowledgement by the United Kingdom that Johor sovereignty over any other territory.
Sovereignty over Pedra Branca passed to Singapore
The ICJ noted that under certain circumstances, sovereignty over territory may pass due to the failure of the state which has sovereignty to respond to the other state's conduct à titre de souverain, that is, concrete manifestations of the display of territorial sovereignty by the other state.Because there was no written agreement relating to Horsburgh Lighthouse and Pedra Branca, the Court was unable to determine whether the November 1844 replies by the Sultan and Temenggung of Johor to Governor Butterworth's query amounted to a cession of the place that would be chosen for the site of the lighthouse or was merely a permission to build, maintain and operate a lighthouse there. Although the Governor had indicated in his 28 November 1844 letter to the Secretary of the Government in India to recommend that the replies amounted to a gratuitous cession to the East India Company, this understanding was not communicated to the Sultan and Temenggung. Similarly, the fact that Britain had not informed Johor about its decision to site the lighthouse on Pedra Branca might be seen either as recognition that Britain only had consent to build and operate it, or that Johor no longer had rights over the island. On the evidence adduced, the Court was unable to reach a conclusion on the issue. It also did not draw any conclusions about the construction and commissioning of the lighthouse, stating only that it saw the events as "bearing on the issue of the evolving views of the authorities in Johor and Singapore about sovereignty over Pedra Branca/Pulau Batu Puteh". It noted, though, that apart from a two-day visit by the Temenggung and his followers to the island in early June 1850, Johor had no involvement in the project.
The Court declined to accept Malaysia's argument that the Singapore Colonial Secretary's query about the status of Pedra Branca in 1953 indicated that the United Kingdom had no conviction that the island was part of its territory. It felt the letter of inquiry showed the Singapore authorities were not clear about events that had occurred over a century earlier and that they were unsure their records were complete, which was understandable in the circumstances. It also disagreed that the Acting State Secretary of Johor, who had stated in his letter of reply that Johor did not claim ownership of the island, had acted without authority. The Johor Agreement was irrelevant – as the Colonial Secretary was a representative of the United Kingdom government which was not a foreign state in relation to Johor at the time, there was no question of the United Kingdom having to consent to Johor issuing the reply. The Federation of Malaya Agreement also did not assist Malaysia because the action of responding to a request for information was not an "exercise" of "executive authority". Further, since Malaysia had not invoked this argument in its negotiations with Singapore and in the ICJ proceedings until late in the oral phase, Singapore was entitled to presume that the Acting State Secretary had acted within his authority. The meaning of the reply was clear – as of 1953, Johor understood it did not have sovereignty over Pedra Branca, and thus the Singapore authorities had no reason to doubt that the island belonged to the United Kingdom.
The Court regarded as conduct à titre de souverain Singapore's investigation of six shipwrecks in the vicinity of Pedra Branca between 1920 and 1993, its exclusive control over visits to the island, the installation of the military rebroadcast station on the island in 1977, and the proposed reclamation of land around it. Malaysia was correct in asserting that the flying of an ensign was not normally a manifestation of sovereignty, and that the difference in size between Pulau Pisang and Pedra Branca had to be recognized. Nonetheless, some weight could be given to the fact that Malaysia had not requested for the Singapore ensign flying at Horsburgh Lighthouse to be taken down. The fact that Malaysia had referred to the lighthouse as a Singapore station in the 1959 and 1966 meteorological reports and had omitted it from the 1967 Malaysian report favoured Singapore's case.
The maps published by Malaysia between 1962 and 1975 tended to confirm that it considered Pedra Branca to fall under Singapore sovereignty. The "(SINGAPORE)" or "(SINGAPURA)" annotations on the maps in respect of the island were clear and supported Singapore's case. The maps gave a good indication of Malaysia's official position on the matter, and could amount to an admission. Finally, Malaysia could not rely on the disclaimers on the maps as the present matter did not concern a boundary but a distinct island. In any case, the maps were statements of geographical fact, particularly since Malaysia had itself produced and disseminated it against its own interest.
In view of the above, the Court held that by 1980 sovereignty over Pedra Branca had passed from Malaysia to Singapore.
Sovereignty over Middle Rocks and South Ledge
None of the conduct by the United Kingdom and Singapore that led to the ICJ to conclude that Singapore had gained sovereignty over Pedra Branca applied to Middle Rocks. Since Johor held the ancient original title to Middle Rocks, the Court held that this title remains with Malaysia as the successor to the Johor Sultanate.South Ledge falls within the apparently overlapping territorial waters generated by the mainland of Malaysia, Pedra Branca and Middle Rocks. Although in the Special Agreement and in their final submissions Malaysia and Singapore had asked the Court to decide which state had sovereignty over Pedra Branca, Middle Rocks and South Ledge, the Court had not been mandated to delimit the extent of the territorial waters of the two states in the area in question. Therefore, it simply held that South Ledge, as a low-tide elevation, belongs to the state in the territorial waters of which it is located.
Reactions
On 23 May 2008, Malaysian Foreign Minister Rais YatimRais Yatim
Dato' Seri Utama Dr. Rais Yatim is the current Malaysian Information, Communications, and Culture Minister. His ministry is considered a new ministry formed from the merger of three separate ministries in Prime Minister Datuk Seri Najib Tun Razak's smaller cabinet...
described the ICJ decision as creating a "win-win" situation and that both countries would "forge ahead" in their bilateral relationship. Deputy Prime Minister
Deputy Prime Minister of Malaysia
Deputy Prime Minister of Malaysia is the second highest political office in Malaysia. There has been ten deputy prime ministers since the office was created in 1957. Although there has always been a Deputy Prime Minister since independence, there is nothing preventing a Prime Minister from not...
Najib Tun Razak
Najib Tun Razak
Dato' Sri Haji Mohd Najib bin Tun Haji Abdul Razak is the sixth, and since 2009, Prime Minister of Malaysia. He previously held the post of Deputy Prime Minister from 7 January 2004 until he succeeded Tun Abdullah Ahmad Badawi as Prime Minister on 3 April 2009. Najib is President of the United...
called the judgment a "balanced decision" as Malaysia had been "partly successful" in its territorial claims. Interviewed by journalists at The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
, Singapore Deputy Prime Minister S. Jayakumar said: "We are pleased with the judgment because the court has awarded sovereignty over Pedra Branca, which is the main feature in dispute, to Singapore." Prime Minister of Singapore
Prime Minister of Singapore
The Prime Minister of the Republic of Singapore is the head of the government of the Republic of Singapore. The President of Singapore appoints as Prime Minister a Member of Parliament who, in his opinion, is most likely to command the confidence of a majority of MPs.The office of Prime Minister...
Lee Hsien Loong
Lee Hsien Loong
Lee Hsien Loong is the third and current Prime Minister of Singapore. He is married to Ho Ching, who is the Executive Director and Chief Executive Officer of Temasek Holdings. He is the eldest son of Singapore's first Prime Minister Lee Kuan Yew....
said he was pleased with the result, and commented that bringing the dispute to the ICJ was "a good way for [Malaysia and Singapore] to resolve disagreements or problems while maintaining good relations with each other".
Malaysia
On the day the ICJ released its judgment, Rais Yatim asserted that since South Ledge was within the territorial waters of Middle Rocks, "Malaysia appears to be the sovereign holder". A week later, 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".The ICJ's decision is final and not subject to appeal. Nevertheless, in June 2008 Rais Yatim stated that Malaysia had renewed its search for the letter 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.
Several Malaysian Members of Parliament have urged the Federal Government to assert sovereignty over Pulau Pisang
Pulau Pisang
Pulau Pisang is a small island situated off the western coast of the Malaysian state of Johor.The island, which is about 12 kilometres from the town of Pontian Kechil and 5 kilometres from Benut town, is the site of the Pulau Pisang Light, a lighthouse guiding ships into the western entrance of...
which also has a lighthouse on it that is operated by Singapore, or to take over administration of the lighthouse. Concerns were also expressed for Pulau Merambong
Pulau Merambong
Pulau Merambong is an uninhabited island located in Johor, Malaysia, just off the western side of the Malaysia-Singapore Border. The island is dominated by mangrove swamp.-Conservation:...
near the western boundary of Malaysia and Singapore. The Menteri Besar
Menteri Besar
The Menteri Besar is the chief executive of the state government for states in Malaysia with hereditary rulers. For states without a monarch, the title Chief Minister is used...
of Johor, Abdul Ghani Othman
Abdul Ghani Othman
Dato' Hajji Abdul Ghani Bin Othman . is the current Menteri Besar of the state of Johor in Malaysia. He has been in office since 1995. Born in Sungai Mati, Ledang, Muar, Johor, Malaysia. He is a member of the United Malays National Organisation...
, assured the public that Pulau Pisang belongs to Johor under a 1900 agreement between Sultan Ibrahim of Johor and British administrators in colonial Singapore. Nonetheless, Malaysian agencies have taken up efforts to stake claims over a hundred islands, reefs, rocks and other features in the South China Sea, Malacca Straits, and off Sabah
Sabah
Sabah is one of 13 member states of Malaysia. It is located on the northern portion of the island of Borneo. It is the second largest state in the country after Sarawak, which it borders on its southwest. It also shares a border with the province of East Kalimantan of Indonesia in the south...
an waters that Malaysia could lose to China, Indonesia and Vietnam. Two of these islands are Pulau Unarang off eastern Sabah near the Indonesian border, and Pulau Perak to the west of Penang
Penang
Penang is a state in Malaysia and the name of its constituent island, located on the northwest coast of Peninsular Malaysia by the Strait of Malacca. It is bordered by Kedah in the north and east, and Perak in the south. Penang is the second smallest Malaysian state in area after Perlis, and the...
.
At the opening of Johor's 12th State Assembly in June 2008, Sultan Iskandar of Johor pledged to reclaim the island "whatever it takes". Speaking impromptu at the end of a prepared speech, the Sultan said in Malay: "Let us be reminded that I do not forget Pulau Batu Puteh. Pulau Batu Puteh is not Singapore's, but it belongs to Johor. It does not matter how long it may take, I will find the way to get back the island, which belongs to Johor." The Menteri Besar of Johor said the state government had "clearly heard" what the Sultan said, but did not elaborate.
On 3 September 2008, Tengku Razaleigh Hamzah
Tengku Razaleigh Hamzah
Tan Sri Tengku Razaleigh bin Tengku Mohd Hamzah is a major Malaysian political figure from the state of Kelantan, and a former Finance Minister. He is an uncle of the current Raja Perempuan of Kelantan. Tengku is a Malay hereditary title usually translated as prince...
, a Kelantan
Kelantan
Kelantan is a state of Malaysia. The capital and royal seat is Kota Bharu. The Arabic honorific of the state is Darul Naim, ....
prince and MP from the state, sent a letter to Rais Yatim claiming that Johor's interests had not been raised before the ICJ. He alleged that the seas surrounding Pedra Branca had always been in Johor's hands and had never been surrendered to the British or to Singapore, and by accepting the ICJ decision and participating in technical discussions with Singapore the Malaysian government had infringed Johor's constitutional rights. Responding, Rais said the letter seemed designed for "political mileage" and that Johor had been fully involved in the proceedings. He told the Straits Times
The Straits Times
The Straits Times is an English language daily broadsheet newspaper based in Singapore currently owned by Singapore Press Holdings . It is the country's highest-selling paper, with a current daily circulation of nearly 400,000...
, "Everybody has his opinion on such matters but I, as Foreign Minister, have to abide by the dictate of the law. I have to see the letter first but it's rather late in the day to express disappointment."
Singapore
On 21 July 2008, in response to questions from Singapore Members of ParliamentMember of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
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 nmi (22.2 km; 13.8 mi) and an Exclusive Economic Zone
Exclusive Economic Zone
Under the law of the sea, an exclusive economic zone is a seazone over which a state has special rights over the exploration and use of marine resources, including production of energy from water and wind. It stretches from the seaward edge of the state's territorial sea out to 200 nautical...
. This was condemned by Malaysia's Foreign Minister Rais Yatim as "against the spirit of Asean
Association of Southeast Asian Nations
The Association of Southeast Asian Nations, commonly abbreviated ASEAN rarely ), is a geo-political and economic organization of ten countries located in Southeast Asia, which was formed on 8 August 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand. Since then, membership has...
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.
At the launch of S. Jayakumar and Tommy Koh's book Pedra Branca: The Road to the World Court on 19 December 2008, Chief Justice Chan Sek Keong commented: "The Pedra Branca case is likely to be a unique event in the history of Singapore as it is unlikely that Singapore will ever again need to seek confirmation of her title to territory under international law."
Resolution of outstanding issues
Malaysia and Singapore have established what they have named the Joint Technical Committee to delimit the maritime boundary in the area around Pedra Branca and Middle Rocks, and to determine the ownership of South Ledge. Following a meeting on 3 June 2008, the Committee agreed that a technical sub-committee would be established to oversee the conduct of joint survey works to prepare the way for talks on maritime issues in and around the area. If any incident occurred in and around the waters of Pedra Branca, Middle Rocks and South Ledge, either side would provide humanitarian assistance to the vessels involved. Finally, both Malaysian and Singaporean fishermen could continue traditional fishing activities in those waters. In September 2008, the Joint Technical Committee reported that its Sub-Committee on Joint Survey Works was finalizing technical preparations for a hydrographic surveyHydrographic survey
Hydrographic survey is the science of measurement and description of features which affect maritime navigation, marine construction, dredging, offshore oil exploration/drilling and related disciplines. Strong emphasis is placed on soundings, shorelines, tides, currents, sea floor and submerged...
that would provide data for future delimitation discussions. A Sub-Committee on Maritime and Airspace Management and Fisheries had also been formed, and after a meeting on 20 August 2008 it decided that traditional fishing activities by both countries should continue in waters beyond 0.5 nmi (0.926 km; 0.575391154137721 mi) off Pedra Branca, Middle Rocks and South Ledge.
See also
- Foreign relations of MalaysiaForeign relations of MalaysiaThis article concerns the Foreign relations of Malaysia.Malaysia is an active member of various international organisations, including the Commonwealth of Nations, the United Nations, the Organisation of Islamic Cooperation, and the Non-Aligned Movement...
- Foreign relations of SingaporeForeign relations of SingaporeSingapore maintains diplomatic relations with 175 countries although it does not maintain a high commission or embassy in many of those countries. It is a member of the United Nations, the Commonwealth, ASEAN and the Non-Aligned Movement....
- Malaysia-Singapore borderMalaysia-Singapore BorderThe Malaysia–Singapore border is an international maritime border between the Southeast Asian countries of Malaysia, which lies to the north of the border, and Singapore to the south...