Lecture to the Ministry of Foreign AffairsLecture to the Ministry of Foreign AffairsKingdom of ThailandKingdom of Thailand

Monday, 8 June 2009Monday, 8 June 2009

“The Dispute Settlement Processin the Pedra Branca Case

between Singapore and Malaysia”

Professor Tommy KohAmbassador-At-Large

Ministry of Foreign Affairs, Singapore

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OutlineOutline

• Where are Pedra Branca, Middle Where are Pedra Branca, Middle Rocks and South Ledge located?Rocks and South Ledge located?

• Why did the British build a Why did the British build a lighthouse on Pedra Branca lighthouse on Pedra Branca between 1847 to 1851?between 1847 to 1851?

• What is the significance of Pedra What is the significance of Pedra Branca to Singapore and Malaysia?Branca to Singapore and Malaysia?

• What is the history of the dispute?What is the history of the dispute?

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OutlineOutline

• What are the arguments of What are the arguments of Singapore and Malaysia?Singapore and Malaysia?

• What did the Court decide?What did the Court decide?

• How will the Court’s judgement How will the Court’s judgement be implemented?be implemented?

• Reflections on Singapore’s first Reflections on Singapore’s first case in the International Court case in the International Court of Justice.of Justice.

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Question 1Question 1

• Where are Pedra Branca,Where are Pedra Branca,

Middle Rocks and South Ledge Middle Rocks and South Ledge located?located?

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Pedra Branca (PB)Pedra Branca (PB)

• Located at 24 nautical milesLocated at 24 nautical miles

from Singaporefrom Singapore

• Located at 7.7 nautical milesLocated at 7.7 nautical miles

from Johor Coastfrom Johor Coast

• Located at 7.6 nautical milesLocated at 7.6 nautical miles

from Bintanfrom Bintan

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Middle Rocks (MR)Middle Rocks (MR)

• Located at 0.6 nautical miles Located at 0.6 nautical miles from PBfrom PB

• Consists of 2 clusters of small Consists of 2 clusters of small rocks, 250 metres apart, rocks, 250 metres apart, permanently above seapermanently above sea

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South Ledge (SL)South Ledge (SL)

• Located at 2.2 nautical milesLocated at 2.2 nautical miles

south-south-west of PBsouth-south-west of PB

• A rock formation only visible atA rock formation only visible at

low tidelow tide

• Called a low-tide elevation in Called a low-tide elevation in international lawinternational law

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Question 2Question 2

• Why did the British buildWhy did the British build

the lighthouse on PBthe lighthouse on PB

between 1847 to 1851?between 1847 to 1851?

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Why was the Lighthouse Why was the Lighthouse built?built?• PB was a hazard to international PB was a hazard to international

shipping because it is located in the shipping because it is located in the middle of the Straits of Singapore,middle of the Straits of Singapore,

an important shipping lane inan important shipping lane in East-West tradeEast-West trade• Portuguese, in the 16th Century, Portuguese, in the 16th Century,

named the island Pedra Branca, named the island Pedra Branca, which means “white rock”, because which means “white rock”, because the island was covered by bird the island was covered by bird droppingsdroppings

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Why was the Lighthouse Why was the Lighthouse built?built?

• Between 1824 to 1851, 16 ships Between 1824 to 1851, 16 ships were wrecked and another 9 were wrecked and another 9 stranded after running aground stranded after running aground in the vicinity of PBin the vicinity of PB

• The lighthouse was dedicated to The lighthouse was dedicated to the memory of James Horsburgh, the memory of James Horsburgh, a distinguished hydrographer of a distinguished hydrographer of the British East India Companythe British East India Company

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Question 3Question 3

• What is the significance of PBWhat is the significance of PB

to Singapore and Malaysia?to Singapore and Malaysia?

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Significance of Pedra BrancaSignificance of Pedra Branca

• Singapore has the busiest portSingapore has the busiest port

in the worldin the world

• Every day, 900 ships transit the Every day, 900 ships transit the Straits of SingaporeStraits of Singapore

• 80% of the ships stop at the 80% of the ships stop at the Singapore portSingapore port

• PB commands the eastern PB commands the eastern approach to Singaporeapproach to Singapore

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Significance of Pedra BrancaSignificance of Pedra Branca

• Therefore, Singapore’s ability to Therefore, Singapore’s ability to continue to exercise sovereignty over continue to exercise sovereignty over PB and its surrounding waters is of PB and its surrounding waters is of strategic importance to Singaporestrategic importance to Singapore

• PB is not as important to Malaysia, PB is not as important to Malaysia, except to the Johoreans who probably except to the Johoreans who probably feel that the island belonged to them feel that the island belonged to them before the British “stole” it from thembefore the British “stole” it from them

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Significance of Pedra BrancaSignificance of Pedra Branca

• PB is of some importance toPB is of some importance to

Johor’s fishermen who have Johor’s fishermen who have been fishing in the waters been fishing in the waters surroundingsurrounding

PB, MR and SLPB, MR and SL

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Question 4Question 4

• What is the history of the What is the history of the dispute?dispute?

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History of the DisputeHistory of the Dispute

• 21 December 1979: Malaysia published a 21 December 1979: Malaysia published a map which claimed PB as Malaysian map which claimed PB as Malaysian territory and its waters as Malaysia’s territory and its waters as Malaysia’s territorial seaterritorial sea

• 14 February 1980: Singapore sent 14 February 1980: Singapore sent Malaysia a formal protestMalaysia a formal protest

• The ICJ held that the “critical date” in this The ICJ held that the “critical date” in this case is 14 February 1980, ie anything case is 14 February 1980, ie anything done by the 2 parties after the critical done by the 2 parties after the critical date is of no legal significancedate is of no legal significance

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History of the DisputeHistory of the Dispute

• 1980 to 1994: Period of negotiations, 1980 to 1994: Period of negotiations, including bilateral negotiations, including bilateral negotiations, exchange of documents, “4‑eyes” exchange of documents, “4‑eyes” meetings between PM Lee Kuan Yew meetings between PM Lee Kuan Yew and PM Hussein Onn and PM Mahathir and PM Hussein Onn and PM Mahathir and between PM Goh Chok Tong and and between PM Goh Chok Tong and PM MahathirPM Mahathir

• 17 September 1994: Malaysia accepted 17 September 1994: Malaysia accepted Singapore’s proposal to refer the Singapore’s proposal to refer the dispute to ICJdispute to ICJ

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History of the DisputeHistory of the Dispute• 1995 to 1998: Negotiation on the text1995 to 1998: Negotiation on the text

of the Special Agreement to refer dispute to of the Special Agreement to refer dispute to ICJICJ

• 1998 to 2003: To sign agreement1998 to 2003: To sign agreement

(6 February 2003) and to ratify the (6 February 2003) and to ratify the agreement (15 February 2003 andagreement (15 February 2003 and

17 May 2003)17 May 2003)

• 24 July 2003: Malaysia and Singapore jointly 24 July 2003: Malaysia and Singapore jointly submitted the Special Agreementsubmitted the Special Agreement

to ICJto ICJ

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History of the DisputeHistory of the Dispute

• 2003 to 2005: Exchange of 3 2003 to 2005: Exchange of 3 rounds of written pleadingsrounds of written pleadings– Memorial on 25 March 2004Memorial on 25 March 2004– Counter-Memorial on 25 January 2005Counter-Memorial on 25 January 2005– Reply on 25 November 2005Reply on 25 November 2005

• 6 November to 23 November 2007: 6 November to 23 November 2007: Oral proceedings at ICJ Oral proceedings at ICJ

• 23 May 2008: Judgement Day23 May 2008: Judgement Day

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Question 5Question 5

• What are the principal What are the principal argumentsarguments

of Singapore and Malaysia?of Singapore and Malaysia?

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Principal Arguments - Principal Arguments - SingaporeSingapore

• Singapore’s main arguments were:Singapore’s main arguments were:• PB was terra nullius or no man’s PB was terra nullius or no man’s

land in 1847land in 1847• In 1847-1851, the British took In 1847-1851, the British took

possession of PB to build possession of PB to build Horsburgh LighthouseHorsburgh Lighthouse

• The British took possession of PB The British took possession of PB without seeking the permission of without seeking the permission of Johor or any other sovereignJohor or any other sovereign

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Principal Arguments - Principal Arguments - SingaporeSingapore

• The British and its successor acquired The British and its successor acquired sovereignty and has maintained it for sovereignty and has maintained it for more than 150 years through continuous more than 150 years through continuous administration of PB and its surrounding administration of PB and its surrounding waterswaters

• Malaysia had :Malaysia had : acquiesced in British and, later, Singapore’s acquiesced in British and, later, Singapore’s

sovereigntysovereignty expressly recognised Singapore’s sovereigntyexpressly recognised Singapore’s sovereignty unconditionally disclaimed title to the islandunconditionally disclaimed title to the island

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Principal Arguments - Principal Arguments - MalaysiaMalaysia• Malaysia’s arguments were:Malaysia’s arguments were:

PB was not terra nullius but partPB was not terra nullius but part of the territorial possession of the of the territorial possession of the

Johor SultanateJohor Sultanate Malaysia had original title, datingMalaysia had original title, dating from the Johor-Riau-Lingga from the Johor-Riau-Lingga

Sultanate in the 16th CenturySultanate in the 16th Century The British had sought and obtained The British had sought and obtained

permission from Johor to build permission from Johor to build lighthouse on PBlighthouse on PB

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Principal Arguments - Principal Arguments - MalaysiaMalaysia

• British had never sought to British had never sought to establish sovereignty over PB but establish sovereignty over PB but only to operate the lighthouseonly to operate the lighthouse

• Singapore had never publicly Singapore had never publicly asserted sovereignty over MR and asserted sovereignty over MR and SL until 1993SL until 1993

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Question 6Question 6

• What did the Court decide?What did the Court decide?

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ICJ’s DecisionICJ’s Decision

Court decided that Malaysia hadCourt decided that Malaysia had

original title to PB,original title to PB,

accepting Malaysia’s argumentsaccepting Malaysia’s arguments

and rejecting Singapore’s and rejecting Singapore’s argumentsarguments

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ICJ’s DecisionICJ’s Decision

• Court decided, however, that Malaysia Court decided, however, that Malaysia lost its title to Singapore because of:lost its title to Singapore because of:– Johor’s letter in 1953 to Singapore stating Johor’s letter in 1953 to Singapore stating

that it did not claim ownership that it did not claim ownership

of PBof PB– Malaysia has published 6 maps attributing Malaysia has published 6 maps attributing

PB to SingaporePB to Singapore– Malaysia had asked Singapore for Malaysia had asked Singapore for

permission to lay submarine cables and for permission to lay submarine cables and for its officials to visit PBits officials to visit PB

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ICJ’s DecisionICJ’s Decision

– Singapore had investigated Singapore had investigated shipwrecksshipwrecks

– Singapore had published public Singapore had published public tenders to reclaim land around PBtenders to reclaim land around PB

– Singapore had flown its marine Singapore had flown its marine ensign over PBensign over PB

– Singapore Navy had installed a Singapore Navy had installed a relay station at PBrelay station at PB

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ICJ’s DecisionICJ’s Decision

• Court held that Malaysia had Court held that Malaysia had retained its original title to MRretained its original title to MR

• Court held that SL is a low-tide Court held that SL is a low-tide elevation and belonged to either elevation and belonged to either Malaysia or Singapore, Malaysia or Singapore, depending on in which country’s depending on in which country’s territorial waters it is located interritorial waters it is located in

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Question 7Question 7

• How will the Court’s judgement How will the Court’s judgement bebe

implemented?implemented?

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ImplementationImplementation

• It will have to be implemented by It will have to be implemented by the two Parties because they will the two Parties because they will have to agree on how to delimit have to agree on how to delimit the maritime boundaries between the maritime boundaries between PB and MR and on who owns SLPB and MR and on who owns SL

• The 2 governments have accepted The 2 governments have accepted the judgement and have pledged the judgement and have pledged to abide by itto abide by it

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ImplementationImplementation

The 2 governments have establishedThe 2 governments have established

a joint technical committee,a joint technical committee,

co-chaired by PS Peter Ho andco-chaired by PS Peter Ho and

Wisma Putra’s SG, Rastam.Wisma Putra’s SG, Rastam.

The committee has met thrice,The committee has met thrice,

in Putrajaya on 16 May 2008,in Putrajaya on 16 May 2008,

in Singapore on 3 June 2008, andin Singapore on 3 June 2008, and

in Putrajaya on 20 August 2008in Putrajaya on 20 August 2008

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ImplementationImplementation In a press statement issued by 2 FMs onIn a press statement issued by 2 FMs on 3 June 2008, the 2 sides reiterated their3 June 2008, the 2 sides reiterated their commitment to honour and abide by thecommitment to honour and abide by the ICJ’s judgement and to fully implement it.ICJ’s judgement and to fully implement it. They agreed to set up a sub‑committee toThey agreed to set up a sub‑committee to oversee conduct of joint surveys tooversee conduct of joint surveys to prepare for talks on maritime issues in andprepare for talks on maritime issues in and around PB, MR and SL. The jointaround PB, MR and SL. The joint committee agreed that fishermen on bothcommittee agreed that fishermen on both sides would be allowed to continue withsides would be allowed to continue with their current traditional fishing activities intheir current traditional fishing activities in the waters around PB, MR and SLthe waters around PB, MR and SL

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Question 8Question 8

• What are Singapore’s reflectionsWhat are Singapore’s reflections

on its first case in the ICJ?on its first case in the ICJ?

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Singapore’s ReflectionsSingapore’s Reflections

• It has been a positive experience It has been a positive experience and we have learnt many lessons and we have learnt many lessons from it.from it.

• We are gratified that the ICJ has We are gratified that the ICJ has awarded sovereignty over PB to awarded sovereignty over PB to SingaporeSingapore

• We are naturally disappointed that We are naturally disappointed that the ICJ did not award sovereignty the ICJ did not award sovereignty over MR and SL to Singaporeover MR and SL to Singapore

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Singapore’s ReflectionsSingapore’s Reflections

• We accept the Court’s judgement We accept the Court’s judgement without qualificationwithout qualification

• Singapore remains committed to Singapore remains committed to our policy to refer disputes our policy to refer disputes which cannot be resolved by which cannot be resolved by negotiations to third party negotiations to third party dispute settlementdispute settlement

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Thank youThank you