Saturday, February 23, 2008

ICJ Case: The Malaysia-Singapore Dispute over Pedra Branca and its Maritime Implications

The following is a description and analysis of one of two potentially groundbreaking cases concerning maritime delimitation and island sovereignty pending in the International Court of Justice in 2008. It was resolved in favor of Singapore on May 23, 2008 (updated 2/13/09).

For much of its existence, the International Court of Justice (ICJ), the primary judicial wing of the United Nations, has had minimal practical significance. The scope of the ICJ is decidedly narrow, limited to ruling on international disputes jointly agreed upon by both parties involved and basing its rulings solely on international laws and treaties. Moreover, the decisions of the ICJ carry little weight and are usually not readily implemented. As is the case with many of the UN’s organs, the consequences for defying ICJ rulings are implemented – or more often times repealed – by the Security Council, reinforcing the impression of the UN being merely an arbitrary organization at the whim of the five permanent, veto-able members of the Security Council: England, France, Russia, the United States, and China.

At this moment, though, the ICJ has a rare opportunity to have a profound impact. Currently, the ICJ is hearing several landmark cases that could set drastic precedents concerning international law and maritime delimitation. The results could change borders, solidify or discredit international law, and increase or decrease levels of compliance with international law on the part of nations, from the smallest country to one of the P-5. The potential is so great, in fact, that it may be better to leave it untapped.

One of these cases concerns a small, uninhabited island at the mouth of the South China Sea known as Pedra Branca (or Pulau Batu Puteh in Malay). The only manmade structures on the people-less island are the British-built Horsburgh Lighthouse and several support buildings. The dispute over Pedra Branca officially began in 1979 when Singapore contested a newly drawn Malaysian map that recognized the island as part of Malaysia. After several rounds of negotiations, Singapore and Malaysia agreed to submit the matter to the ICJ and to abide by its ruling.

Malaysia claims that there should be no question of ownership because the island is outside the range of islands that were allotted to Singapore after it became a separate entity. In the Crawfurd Treaty of 1827, the Sultanate of Johor, a predecessor of modern-day Malaysia, ceded Singapore and all islands in a 10 mile radius around it to the British East India Company. Pedra Branca, however, lies over 25 miles away from Singapore, and so, Malaysia argues, the British, and subsequently Singapore, never had any legal ownership claims to the island. The fact that the British specifically asked Johor’s permission to build the lighthouse on the island, Malaysia claims, implies that the British recognized Johor sovereignty over the island. By virtue of succession, then, Malaysia asserts that the island, along with the other Johor domains, passed on to Malaysian ownership.

Singapore contends that by constructing and maintaining the lighthouse it and its former British rulers have exerted sovereignty over the island. Since neither Malaysia nor its predecessor, the Sultanate of Johor, ever contested these acts or exerted any sovereignty of their own over the island, Singapore claims that the island effectively belongs to it. In addition, although the British sought permission from Johor to construct the lighthouse, Singapore claims that the British rejected several other locations for the lighthouse specifically because the sites were part of Johor’s territory. The British, Singapore contends, eventually chose Pedra Branca specifically because it was uninhabited and unclaimed by Johor. Therefore, Singapore argues, Malysia has no valid claim to the island, and that, since it took over maintenance of the lighthouse after the British, it remains the only state exercising sovereignty over the island, and thus is the exclusive owner of the island.

Ironically enough, the question of the island’s sovereignty should probably not be a current issue. Malaysia’s constant failure to clear up its vague claims to the island (until now) ensured that the matter would be prolonged and eventually disputed in court. If, at the onset, Malaysia had asserted some sort of authority over Pedra Branca or had at least more openly recognized it as part of its alleged domain, it probably could have determined once and for all the legitimacy of the assumptions regarding Johor’s territory that it so vigorously flaunts today. The answer to that question would have settled the ownership question of the island once and for all (in fact, if that answer were attainable today, it could probably still settle this issue). It is also worth noting that if Malaysia had not expelled Singapore 35 years ago, there would be no need for border disputes between the two parties (as they would have been part of the same country).

With the matter finally being settled in court, neither nation has taken an overly compelling stance. Singapore’s argument is centered on the rather dubious claim that building and maintaining a lighthouse is a sovereign enough act to claim ownership of an entire island while Malaysia’s rests on its unconfirmed, disputable assumptions regarding the extent of Johor’s reign. Both parties invoke British intentions and assumptions in their arguments, neither of which can be definitively proven since the letters exchanged between the British and Johor specifically regarding Pedra Branca have never been recovered.

These British assumptions and opinions can be inferred, though, from the surviving relevant documents, whose interpretation may very well determine the outcome of the case. The interpretation of the intent of the Crawfurd Treaty could solidify or discredit Malaysia’s claim to de facto possession over the island. The treaty definitively states that Singapore and all islands within a 10 mile radius of it were to be granted to the British. However, the treaty does not directly state whether this is a limit on British expansion or simply a base amount from where the British could perhaps expand later. Malaysia has contended that the treaty put a cap on British expansion, but this is an odd interpretation to make when one considers that the treaty rewarded the British with land it had not previously owned. Besides, given the overall expansionist trend of the British Empire, it seems logical to contemplate that the British may very well had every intention of expanding farther into Southeast Asia.

Although the letters specifically pertaining to Pedra Branca have been lost, letters exchanged on the issue of the construction of the lighthouse (without specifying an exact location) have survived. After examining the surviving letters exchanged between the British and Johor, it seems apparent that the British never had any expansionist motives for building the lighthouse. The lighthouse seemed to have been built to further trade and make the seas safer, not to settle and claim ownership over an obscure, uninhabited island. Indeed, the Sultan and the Temenggong in several letters granted permission for the construction of the lighthouse on the basis that it would help foster trade and not British expansion. According to these letters, Singapore is trying to distort the original intent of the British maintenance of the lighthouse.

Even after examining all the available evidence (and also in light of what evidence is unavailable), there still seems to be no clear victor. However, there is also a much more profound factor that transcends the Malaysia-Singapore dispute that the ICJ should consider with utmost sincerity in its ruling: the potential precedents involving maritime delimitation and island sovereignty. After all the debate and the deliberations in the ICJ, in the final vote Singapore may very well emerge victorious. Ruling in favor of Singapore, though, particularly on the basis of its maintenance of the lighthouse, could set a groundbreaking precedent. To do so would in effect reward Singapore for building a structure on a neglected, yet legitimately disputed island. Pedra Branca is by no means the only neglected island that is the territory of a nation; many such islands dot the Pacific, Atlantic, and, for that matter, the entire globe. Other nations may be emboldened by this ruling to start building and maintaining structures on sparsely maintained islands around the world, heightening tensions between the various nations that have claimed islands and potentially wreaking havoc on the existing maritime boundaries and exclusive economic zones. Such aggressive action would not be a good thing for the ICJ – and by extension the UN – to support, given that the very nature of the UN is to try to facilitate peace and international cooperation. A precedent such as this would likely further discredit the UN and international law itself and might call into question other UN statutes. The ICJ has a chance to make a very big impact indeed with this case for better or, more likely, for worse, if it rules in favor of Singapore.

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Rachele said...

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