Lecture to the Ministry of Foreign Affairs Kingdom of Thailand Monday, 8 June 2009 “The Dispute Settlement Process in the Pedra Branca Case between Singapore and Malaysia” Professor Tommy Koh Ambassador-At-Large Ministry of Foreign Affairs, Singapore

2 Outline Where are Pedra Branca, Middle Rocks and South Ledge located? Where are Pedra Branca, Middle Rocks and South Ledge located? Why did the British build a lighthouse on Pedra Branca between 1847 to 1851? Why did the British build a lighthouse on Pedra Branca between 1847 to 1851? What is the significance of Pedra Branca to Singapore and Malaysia? What is the significance of Pedra Branca to Singapore and Malaysia? What is the history of the dispute? What is the history of the dispute?

3 Outline What are the arguments of Singapore and Malaysia? What are the arguments of Singapore and Malaysia? What did the Court decide? What did the Court decide? How will the Court’s judgement be implemented? How will the Court’s judgement be implemented? Reflections on Singapore’s first case in the International Court of Justice. Reflections on Singapore’s first case in the International Court of Justice.

4 Question 1 Where are Pedra Branca, Where are Pedra Branca, Middle Rocks and South Ledge located? Middle Rocks and South Ledge located?

6 Pedra Branca (PB) Located at 24 nautical miles Located at 24 nautical miles from Singapore from Singapore Located at 7.7 nautical miles Located at 7.7 nautical miles from Johor Coast from Johor Coast Located at 7.6 nautical miles Located at 7.6 nautical miles from Bintan from Bintan

7

8 Middle Rocks (MR) Located at 0.6 nautical miles from PB Located at 0.6 nautical miles from PB Consists of 2 clusters of small rocks, 250 metres apart, permanently above sea Consists of 2 clusters of small rocks, 250 metres apart, permanently above sea

9

10 South Ledge (SL) Located at 2.2 nautical miles Located at 2.2 nautical miles south-south-west of PB south-south-west of PB A rock formation only visible at A rock formation only visible at low tide low tide Called a low-tide elevation in international law Called a low-tide elevation in international law

11

12 Question 2 Why did the British build Why did the British build the lighthouse on PB the lighthouse on PB between 1847 to 1851? between 1847 to 1851?

13 Why was the Lighthouse built? PB was a hazard to international shipping because it is located in the middle of the Straits of Singapore, PB was a hazard to international shipping because it is located in the middle of the Straits of Singapore, an important shipping lane in an important shipping lane in East-West trade East-West trade Portuguese, in the 16th Century, named the island Pedra Branca, which means “white rock”, because the island was covered by bird droppings Portuguese, in the 16th Century, named the island Pedra Branca, which means “white rock”, because the island was covered by bird droppings

14 Why was the Lighthouse built? Between 1824 to 1851, 16 ships were wrecked and another 9 stranded after running aground in the vicinity of PB Between 1824 to 1851, 16 ships were wrecked and another 9 stranded after running aground in the vicinity of PB The lighthouse was dedicated to the memory of James Horsburgh, a distinguished hydrographer of the British East India Company The lighthouse was dedicated to the memory of James Horsburgh, a distinguished hydrographer of the British East India Company

15 Question 3 What is the significance of PB What is the significance of PB to Singapore and Malaysia? to Singapore and Malaysia?

16 Significance of Pedra Branca Singapore has the busiest port Singapore has the busiest port in the world in the world Every day, 900 ships transit the Straits of Singapore Every day, 900 ships transit the Straits of Singapore 80% of the ships stop at the Singapore port 80% of the ships stop at the Singapore port PB commands the eastern approach to Singapore PB commands the eastern approach to Singapore

17 Significance of Pedra Branca Therefore, Singapore’s ability to continue to exercise sovereignty over PB and its surrounding waters is of strategic importance to Singapore Therefore, Singapore’s ability to continue to exercise sovereignty over PB and its surrounding waters is of strategic importance to Singapore PB is not as important to Malaysia, except to the Johoreans who probably feel that the island belonged to them before the British “stole” it from them PB is not as important to Malaysia, except to the Johoreans who probably feel that the island belonged to them before the British “stole” it from them

18 Significance of Pedra Branca PB is of some importance to PB is of some importance to Johor’s fishermen who have been fishing in the waters surrounding Johor’s fishermen who have been fishing in the waters surrounding PB, MR and SL PB, MR and SL

19 Question 4 What is the history of the dispute? What is the history of the dispute?

20 History of the Dispute 21 December 1979: Malaysia published a map which claimed PB as Malaysian territory and its waters as Malaysia’s territorial sea 21 December 1979: Malaysia published a map which claimed PB as Malaysian territory and its waters as Malaysia’s territorial sea 14 February 1980: Singapore sent Malaysia a formal protest 14 February 1980: Singapore sent Malaysia a formal protest The ICJ held that the “critical date” in this case is 14 February 1980, ie anything done by the 2 parties after the critical date is of no legal significance The ICJ held that the “critical date” in this case is 14 February 1980, ie anything done by the 2 parties after the critical date is of no legal significance

21 History of the Dispute 1980 to 1994: Period of negotiations, including bilateral negotiations, exchange of documents, “4 ‑ eyes” meetings between PM Lee Kuan Yew and PM Hussein Onn and PM Mahathir and between PM Goh Chok Tong and PM Mahathir 1980 to 1994: Period of negotiations, including bilateral negotiations, exchange of documents, “4 ‑ eyes” meetings between PM Lee Kuan Yew and PM Hussein Onn and PM Mahathir and between PM Goh Chok Tong and PM Mahathir 17 September 1994: Malaysia accepted Singapore’s proposal to refer the dispute to ICJ 17 September 1994: Malaysia accepted Singapore’s proposal to refer the dispute to ICJ

22 History of the Dispute 1995 to 1998: Negotiation on the text 1995 to 1998: Negotiation on the text of the Special Agreement to refer dispute to ICJ of the Special Agreement to refer dispute to ICJ 1998 to 2003: To sign agreement 1998 to 2003: To sign agreement (6 February 2003) and to ratify the agreement (15 February 2003 and (6 February 2003) and to ratify the agreement (15 February 2003 and 17 May 2003) 17 May 2003) 24 July 2003: Malaysia and Singapore jointly submitted the Special Agreement 24 July 2003: Malaysia and Singapore jointly submitted the Special Agreement to ICJ to ICJ

23 History of the Dispute 2003 to 2005: Exchange of 3 rounds of written pleadings 2003 to 2005: Exchange of 3 rounds of written pleadings –Memorial on 25 March 2004 –Counter-Memorial on 25 January 2005 –Reply on 25 November November to 23 November 2007: Oral proceedings at ICJ 6 November to 23 November 2007: Oral proceedings at ICJ 23 May 2008: Judgement Day 23 May 2008: Judgement Day

24 Question 5 What are the principal arguments What are the principal arguments of Singapore and Malaysia? of Singapore and Malaysia?

25 Principal Arguments - Singapore Singapore’s main arguments were: Singapore’s main arguments were: PB was terra nullius or no man’s land in 1847 PB was terra nullius or no man’s land in 1847 In , the British took possession of PB to build Horsburgh Lighthouse In , the British took possession of PB to build Horsburgh Lighthouse The British took possession of PB without seeking the permission of Johor or any other sovereign The British took possession of PB without seeking the permission of Johor or any other sovereign

26 Principal Arguments - Singapore The British and its successor acquired sovereignty and has maintained it for more than 150 years through continuous administration of PB and its surrounding waters The British and its successor acquired sovereignty and has maintained it for more than 150 years through continuous administration of PB and its surrounding waters Malaysia had : Malaysia had :  acquiesced in British and, later, Singapore’s sovereignty  expressly recognised Singapore’s sovereignty  unconditionally disclaimed title to the island

27 Principal Arguments - Malaysia Malaysia’s arguments were: Malaysia’s arguments were:  PB was not terra nullius but part of the territorial possession of the Johor Sultanate of the territorial possession of the Johor Sultanate  Malaysia had original title, dating from the Johor-Riau-Lingga Sultanate in the 16th Century from the Johor-Riau-Lingga Sultanate in the 16th Century  The British had sought and obtained permission from Johor to build lighthouse on PB

28 Principal Arguments - Malaysia British had never sought to establish sovereignty over PB but only to operate the lighthouseBritish had never sought to establish sovereignty over PB but only to operate the lighthouse Singapore had never publicly asserted sovereignty over MR and SL until 1993Singapore had never publicly asserted sovereignty over MR and SL until 1993

29 Question 6 What did the Court decide? What did the Court decide?

30 ICJ’s Decision  Court decided that Malaysia had original title to PB, original title to PB, accepting Malaysia’s arguments accepting Malaysia’s arguments and rejecting Singapore’s arguments and rejecting Singapore’s arguments

31 ICJ’s Decision Court decided, however, that Malaysia lost its title to Singapore because of: Court decided, however, that Malaysia lost its title to Singapore because of: –Johor’s letter in 1953 to Singapore stating that it did not claim ownership of PB of PB –Malaysia has published 6 maps attributing PB to Singapore –Malaysia had asked Singapore for permission to lay submarine cables and for its officials to visit PB

32 ICJ’s Decision –Singapore had investigated shipwrecks –Singapore had published public tenders to reclaim land around PB –Singapore had flown its marine ensign over PB –Singapore Navy had installed a relay station at PB

33 ICJ’s Decision Court held that Malaysia had retained its original title to MR Court held that Malaysia had retained its original title to MR Court held that SL is a low-tide elevation and belonged to either Malaysia or Singapore, depending on in which country’s territorial waters it is located in Court held that SL is a low-tide elevation and belonged to either Malaysia or Singapore, depending on in which country’s territorial waters it is located in

34 Question 7 How will the Court’s judgement be How will the Court’s judgement be implemented? implemented?

35 Implementation It will have to be implemented by the two Parties because they will have to agree on how to delimit the maritime boundaries between PB and MR and on who owns SL It will have to be implemented by the two Parties because they will have to agree on how to delimit the maritime boundaries between PB and MR and on who owns SL The 2 governments have accepted the judgement and have pledged to abide by it The 2 governments have accepted the judgement and have pledged to abide by it

36 Implementation  The 2 governments have established a joint technical committee, a joint technical committee, co-chaired by PS Peter Ho and co-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, and in Singapore on 3 June 2008, and in Putrajaya on 20 August 2008 in Putrajaya on 20 August 2008

37Implementation  In a press statement issued by 2 FMs on 3 June 2008, the 2 sides reiterated their 3 June 2008, the 2 sides reiterated their commitment to honour and abide by the commitment 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 to They agreed to set up a sub ‑ committee to oversee conduct of joint surveys to oversee conduct of joint surveys to prepare for talks on maritime issues in and prepare for talks on maritime issues in and around PB, MR and SL. The joint around PB, MR and SL. The joint committee agreed that fishermen on both committee agreed that fishermen on both sides would be allowed to continue with sides would be allowed to continue with their current traditional fishing activities in their current traditional fishing activities in the waters around PB, MR and SL the waters around PB, MR and SL

38 Question 8 What are Singapore’s reflections What are Singapore’s reflections on its first case in the ICJ? on its first case in the ICJ?

39 Singapore’s Reflections It has been a positive experience and we have learnt many lessons from it. It has been a positive experience and we have learnt many lessons from it. We are gratified that the ICJ has awarded sovereignty over PB to Singapore We are gratified that the ICJ has awarded sovereignty over PB to Singapore We are naturally disappointed that the ICJ did not award sovereignty over MR and SL to Singapore We are naturally disappointed that the ICJ did not award sovereignty over MR and SL to Singapore

40 Singapore’s Reflections We accept the Court’s judgement without qualification We accept the Court’s judgement without qualification Singapore remains committed to our policy to refer disputes which cannot be resolved by negotiations to third party dispute settlement Singapore remains committed to our policy to refer disputes which cannot be resolved by negotiations to third party dispute settlement

41

42

43

44

45

46

47

48 Thank you