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the case with many of the UN’s organs, the consequences for defying ICJ rulings are implemented – or more often times repealed – by the Security Council, reinforcing the impression of the UN being merely an arbitrary organization at the whim of the five permanent, veto-able members of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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Monday, February 4, 2008

What about Iraq?

Just a few months ago, and during the three preceding years, Iraq was the hot-button issue in America, cutting a swath between Americans of all ages and backgrounds. It seemed that each day Iraq updates made the top stories of nearly every major news corporation. Not since Vietnam did a war influence an election as much as Iraq did the 2006 elections. The war infiltrated the halls of Congress, causing much debate and setting off a showdown between the Democratic majority in Congress and the embattled President and his supporters. Politicians from every corner of the land did their best to avoid scrutiny from their positions on Iraq.

Then, the surge was instituted and soon started boasting a stark reduction of violence in Iraq and a growing sense of security in the minds of Iraqis. As a result, Iraq has rather suddenly disappeared from the limelight. Recent attacks and their body counts no longer litter the front pages of the news. As the 2008 elections loom, the economy has displaced Iraq as the most important issue for voters. Congress now predominantly buzzes with other topics, and people whose support of the war had just a few months earlier made them tread lightly are now trumpeting the success of the surge. The surge’s acclaim has particularly helped the revival of Senator John McCain’s Presidential chances.

Doubtlessly, conditions in Iraq have improved somewhat over the last few months, but don’t be fooled by the so-called “success” of the surge. The improvements that the surge has supposedly brought have been dramatically exaggerated.

Supporters of the surge claim that the influx of troops has sizably decreased the violence in Iraq. While it is true that combat deaths have gone down since the surge, conditions in Iraq remain anything but peaceful. Soldiers continue to die at a troubling rate: over 30 U.S. troops died this past month, back to the same level they were during the height of summer 2006. Despite the recent “stemming” of violence, Iraqi security forces and citizens are still dying in the hundreds and thousands every month. These are hardly the characteristics of a peaceful nation. Those Iraqis lucky enough to survive continue to suffer greatly in Iraq: many are still without basic utilities, services, good nutrition, or good sanitation.

Worse yet, the regional, ethnic, and religious divisions that are the source of the violence tearing apart Iraq have not been reconciled during this slight dip in bloodshed. The fervent inter-Muslim Sunni-Shiite rivalry persists and continues to be a source of division and instability in Iraq. Indeed, this religious rift has increasingly come to define the nature of the insurgent in-fighting in Iraq, with Sunni and Shiite factions battling each other, the Iraqi government, and the U.S. military to try to gain the upper hand. The differences between the Arabs and the Kurds constitute a slightly different animosity. The Kurds, who have lived in Northern Iraq for centuries more than the Arabs have in the South, have a different ethnicity and culture from their Arab counterparts. Rarely have ethnic differences been a unifying factor, and Iraq is no exception.

These tensions, formidable enough by their very nature, have been magnified even more by the historical winner-take-all nature of the Iraqi political system. From Saddam Hussein and his predecessors to the current Iraqi parliament, the Iraq government has favored the faction in power at the expense of the others. Hussein in particular benefited his Sunni kinsman even as he ruthlessly repressed and murdered many Shiites and the Kurds, even forcibly resettling Kurdish villages with Arabs. Unfortunately, this trend was not reversed after Hussein’s regime was toppled by the U.S. led coalition forces in 2003: the current Constitution does little to thwart majority rule or protect the rights of the minority. As a result, the Shiite majority in parliament has been able to favor the Shiites over their rivals. In fact, an interim Congressional report on Iraq in July 2007 admitted that there was sectarian Shiite bias in the appointment of military commanders and with regards to military and police intelligence. While not as skewed or as ruthless as Hussein, these measures have nevertheless been enough to convince the Iraqi factions that any government, whether democratic or authoritarian, that is not headed by them will make life hard for them. The accumulative effect of these high political stakes and the existing religious and ethnic tensions has caused the Iraqi factions to plunge the country into civil war as they fight for supremacy – for control of the country after the inevitable day that the U.S. military withdraws.

The best possible chance for the U.S. military to avert this impending civil war is to somehow change the nature of Iraqi politics. For U.S. forces, this recent dip in violence is as good a chance as they will ever get to initiate some sort of political reconciliation to lower the high political stakes. But no adequate political reconciliation has taken place during the surge. The closest thing to reconciliation has been a law allowing former Baath party members to apply for their former minor government posts. With Iraq in chaos, the potential practical significance of such a measure has been greatly reduced: getting a boost to the administration of Iraq would have been useful after the overthrow of Hussein’s regime, but at this point it is too little too late. No other Congressional benchmark has been met, nor any other form of political reconciliation been reached. If the Iraqi parliament manages to agree on some checks on government power and some minority rights, perhaps the Iraqi factions would be willing to give this government a chance. But, as of now, the different Iraqi groups have not been willing to risk compromising their interests by adequately supporting any of these measures. In doing so, they doom themselves to a constant struggle for total power where in the long run, nobody truly wins.

Even as the surge fruitlessly tries to unify the country and bring about stability, some of its methods do exactly the opposite. In an attempt to bring about greater security in the wide-open areas of Iraq, particularly Anbar province, the U.S. military armed and supported several local militias to fight Al Qaeda militants and keep order. While this strategy has reduced Al Qaeda activity and has brought about more peace in some regions, it has also had some unintended consequences. By arming and supporting local militias, the U.S. military has increased the power of such militias and warlords and has actively encouraged the formation of new militias. In doing so, the U.S. military has effectively undermined the Iraqi security forces that it has placed such an emphasis on training and bolstering. Moreover, by increasing the power of local militias and warlords, the U.S. military has deepened the regional divides in Iraq that may soon cause it to erupt in full-fledged civil war.

It is true that conditions in Iraq have improved, if ever so slightly, since the surge. Unfortunately for Iraq, none of the critical elements plaguing Iraq were dealt with during the slight window of opportunity afforded by the surge. As troop levels start dropping to pre-surge levels, the tensions that were to some degree held in suspended animation will be in full violent swing once again. What little improvement the surge has brought will be undone by these forces consuming Iraq. Such is the destiny of any benefits that U.S. military might could bring to Iraq. As long as the Iraqis are unable to reconcile their differences, the divisions will remain strong, leading to violence or dictatorship. As violence reemerges, Iraq will reemerge on the front pages of the news, and it will be a long time before Iraq is absent from them again.

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