By Datuk Deva M. Ridzam*
The International Court of Justice (ICJ) in The Hague last week delivered judgement on the competing territorial sovereignty claims by Malaysia and Singapore over Pulau Batu Puteh (PBP) and two other features of Middle Rocks (MR) and South Ledge (SL).
Both countries, winner and loser alike, are bound by the decision of the ICJ. Otherwise, why did both countries go to the World Court in the first place if they had no intention of abiding by the Court’s judgement?
Even before the date of the verdict (May 23), both countries must have contemplated the Court’s would be one of the following scenarios, that:
1. Malaysia has sovereignty over PBP, MR and SL, but Singapore is allowed to continue operating and managing the Horsburgh Lighthouse;
2. Singapore has sovereignty over PBP while Malaysia has sovereignty over MR and SL; and
3. Singapore has sovereignty over PBP, MR and SL.
Now that the Court has rendered its decision, it is clear that Malaysia was right all along. The ICJ found that sovereignty over Pulau Batu Puteh (PBP) had always rested with Johor.
Singapore’s arguments, among others, citing the doctrine of terra nullius (empty land or no man’s land) and even the construction of the Lighthouse did not mean that Singapore ever had sovereignty over PBP.
Just to illustrate the point, no international or national courts have ever upheld the notion of terra nullius.
In the case of the Australian Aborigines, they won their most significant legal battle, when the nation’s highest court rejected the claim of terra nullius and ruled that Aborigines could be entitled to reclaim some of their land.
Be that as it may, Malaysia, however, failed to impress the ICJ on two crucial points.
For over 100 years, we did nothing to positively assert our ownership over PBP in any significant way, leaving every thing to the Britain. Then, we wrote that ‘give-away letter’ in 1953 giving away this piece of real estate in our waters to Singapore.
That ‘give away1953 letter’ was actually the first step in the slippery slope, which led Malaysia to virtually ceding sovereignty to Singapore.
Things did not stop there. Subsequently, the lack of action on the part of Malaysia to show that we wanted to continue to assert sovereignty over PBP only further went to undermine our position and thus did us in yet more.
Simply put, Singapore got PBP by the flimsiest of evidence. Essentially, it built up a case out of nothing. Why should it not do so? It has nothing to loose.
And we, on the other hand, failed to assert our claim through any manifestation of effective control. That would have meant we moving ahead in areas such as aids navigation, marine conservation, tide and current surveys, hydrography, etc, which we did not.
That is what sovereignty is all about – developing the means to effectively control what is rightfully ours – and establishing the reality that others who use our territory do so on our terms.
And this is what we precisely did in regard to Pulau Pisang (PP). Singaporeans operating the Lighthouse there are well regulated and they do so on our terms.
In other words, sovereignty claims unexercised or one that a country didn’t defend will gradually and eventually disappear. That precisely is what happened to our ownership or title to PBP, since that letter of 1953.
Though Singapore deemed the maps published by Malaysia in 1962, 1965, 1975 showed that PBP belonged to Singapore, the ICJ came to the conclusion the maps were not material in it arriving at its judgement.
However, the Court inferred that our production of those maps were part of a consistent pattern of behavior that gave the impression that we were acting in accordance with the spirit of the 1953 letter.
Singapore tried to convince the ICJ that there was a total rupture in history that changed fundamentally the sovereignty of PBP as well as the two other features. But that line of reasoning did not impress the Judges and, therefore, it failed to get all that it wanted.
As Middle Rocks does not have any structure built on it by Britain or Singapore, the original sovereignty remained with Johor/Malaysia. The status of South Lodge, however, is to be determined.
We should look at things in their proper context.
Malaysians should give credit to our team led by Tan Sri Abdul Kadir Mohamad, the Special Adviser on Foreign Affairs, for having, in the first place, salvaged the country from a very bad situation.
They cannot be held responsible for the 1953 letter nor for acts of omission and commission of our leaders and officials since that date. In fact, our team tried their best in a difficult situation.
But we have, at least, now restored or reconfirmed our sovereignty over Middle Rocks, which is 0.6 nautical miles south of PBP. By doing so, we have been able to limit Singapore’s ability to act freely in the vicinity, including engage in reclamation works, which is one of its strategic goals.
In fact, we now have an equal standing in that part of the South China Sea.
We will eventually prove that South Lodge too belongs to Malaysia. This feature lies in the territorial waters of Middle Rock as it is merely 1.7 nautical miles south of it. Also the combined fishing area of MR and SL is quite considerable.
All told, the ICJ judgement went beyond a winner/loser scenario or, even, a winner-take-all verdict. It was a mid-way judgement of sorts.
In the 2003 International Tribunal for the Law of the Sea (ITLOS) case on the Malaysian objections to Singapore’s land reclamation works, a provisional ruling was made that met the interests of both countries – a kind of win-win judgement – even if the ruling was clearly in Malaysia’s favour.
Kadir Mohamad was the same senior official who led our team in the case involving Sipadan and Ligitan and at the ITLOS tribunal.
On PBP, he and his team presented a most compelling case and conducted the debate (submissions and rebuttals) with restraint, forwarding arguments that made a lot of legal, historical and political common sense.
In the light of the foregoing, to criticise the Government for taking the matter to the ICJ without a strong case is also unfair to say the least.
There are, of course, risks to be run in bringing the matter before the ICJ. But the question is was there any other practical alternative?
Refusing to let our case be heard at the World Court is to suggest Malaysia is not confident in its claim.
More importantly, it will have also meant leaving Singapore in total de facto control as the have since their illegal naval blockade in 1986 over the entire area, thinking – as the Israeli’s do – that occupation is two-thirds of the law.
Also, is it in the larger interest of Malaysia and that of ASEAN – regional peace and security – to allow the hitherto situation to remain unresolved in perpetuity?
For some 150 years Singapore – and before that Britain – has been in effective – though illegitimate – control of Batu Puteh.
Malaysia, however, chose not to ‘militarily’ confront Singapore when it blockaded the area, preventing, among others, our fishermen in these waters or seek shelter on the three features.
Here again, this was not because we doubted our sovereignty over the features. Rather it was, on our part, an act of self-restraint and wisdom – something done in the letter and spirit of ASEAN.
Foreign affairs are normally a place for extreme caution. It is also, uniquely, an arena where countries speak and act for themselves and, in that process, reveal their true nature by their actions.
While Malaysia took the moral high ground by abiding with the principles of the ASEAN Treaty of Amity and Cooperation (TAC), Singapore ignored them by taking a hostile stance with its naval blockade. Singapore certainly lost some credibility as a result.
All told, under the United Nations Conference on the Law of Sea (UNCLOS), Malaysia would negotiate with Singapore starting from the ‘base point’ that PEDRA BRANCA (BATU PUTEH) is nothing more than a rock, a geologic feature. It creates only territorial waters. It has nothing to do with the question of Exclusive Economic Zone (EEZ) or Continental Shelf.
What is even more important now is that Malaysia should from now on be extremely careful about the way we do things with Singapore.
For example, decisions on Iskandar Development must be carefully and transparently undertaken.
We should be vigilant so that we do not give semblance that it can be concluded in, say, 50 years hence that Malaysia had somewhat unwittingly and unilaterally deem that both Malaysia and Singapore had joint sovereignty over the Iskandar Development area.
This may seem far-fetched today. However, it does contain a few nuggets of possibilities. Close-door discussion and back channel deals could lead us to such a situation.
Remember, the Singapore Prime Minister during official talks last year in Langkawi wanted a ‘joint consultative body’ to be established to operate and manage Iskandar Development as though this too should be treated as a ‘Lighthouse of sorts”.
We should also resist and even reject outright any attempt to bring on broad extraneous issues about ‘this’, ‘that’ or ‘the other’ so-called “outstanding issues”: Water Agreements, the Points of Agreement (POA), the Bridge Saga, and the more recent fast train proposal.
After some 150 years, including 28 years of bilateral dispute, common sense, which often is in short supply, prevailed and both countries have brought the matter to closure.
* Datuk Deva M. Ridzam is a former ambassador and an occasional commentator on Foreign Affairs. The article appears in The Edge Malaysia (June 2, 2008), FORUM Page 54.