Sovereign over Pedra Branca and Sovereignty over Middle Rocks and South Ledge - Report Example

Student’s name Instructor Course Date Introduction The 2008 Malaysia/Singapore case in the ICJ is a landmark case regarding territorial disputes. The dispute was concerning territorial sovereignty of South Ledge, Middle Rocks and Pedra Branca/Palau Puteh. Palau Batu Puteh/Pedra Branca is a 137 by 60 m island located in the Straits of Singapore a busy maritime corridor. Lying approximately 7.6 nautical miles north of the Indonesian island of Bintan and 7.7 nautical miles south of Indonesia’s Johor Island it has two clusters of rocks which are permanently above water. Territorial Waters and Continental Shelf Boundaries of Malaysia a map published by Malaysia showed Pedra Branca as being within its territorial waters. Singapore rejected the claim by Malaysia and wrote a diplomatic note on 14th February 1980 requesting a review of the map. Bilateral negotiations from 1993-1994 failed to resolve the deadlock resulting in the signing of a special agreement on 6th February 2003 to submit the dispute to the International Court of Justice. Both parties had ad hoc judges serving in the case since the court would not allow judges of the nationality of wither party to serve in the making of judgments. Critical Date It was important for the court to establish a critical date in the context of the territorial dispute.1 The 2002 Malaysia/Indonesia judgment stated that the court ought not to take into account acts which happened after the critical date. Singapore had written the letter of protest to Malaysia on 14th February 1980 and this was deemed to be the critical date with regard to the dispute. 6th February 1993 was taken to be the date when the dispute over the sovereignty over South Ledge and Middle Rocks crystallized. Sovereign over Pedra Branca Pedra Branca is the main issue in the dispute between Malaysia and Singapore. Malaysia asserted that it had original title to Pedra Branca of long standing while Singapore asserted that it had title to the island of terra nullius. As such the question in this context is whether Malaysia claim to the island had legal standing. The issue at hand is whether Malaysia’s predecessor the Sultanate of Johor had legal sovereign authority over Pedra Branca. The ICJ analyzed two documents dating from the Johor Sultanate; three letters from 1824 written by the British consulate in Singapore and an article dated 25 May published in the Singapore Free Press.2 These documents showed that since the 17th to the 19th century the Johor Sultanate comprised a significant portion of the Malaya Peninsula straddling the Singapore Straits and islands in the straits in the areas in which Palau Batu Puteh and Pedra Branca were located.3 It was also noted that over the course of history there had been no evidence of disputing claim regarding the Sultanate of Johor’s claim over the islands and straits in the Singapore straits in which Pedra Branca was located. As such it may be concluded that the Sultanate of Johor had original title over the islands in the straits. It was also deemed that the control that the Sultanate of Johor had over the sea faring peoples of the island straits of Singapore was proof of sovereignty. The 1824 Anglo Dutch treaty further complicated issues since it divided the Sultanate of Johor into two; the Sultanate of Johor and the Sultanate of Riau-Lingga. This brings up the issue of whether the original title held by the Sultanate of Johor over the islands in the straits of Singapore was affected. Did the Sultanate of Johor continue to hold title or whether the new Sultanate of Johor had Pedra Branca within its territorial waters. It was held that the Sultanate of Johor was in existence as a sovereign entity from the 16th to the 19th century according to the document presented by Malaysia Singapore argued that the 1824 Anglo Dutch treaty meant that there was free access to the straits meaning Pedra Branca became terra nullius due to the Johor Sultanate becoming a different entity through division.4 The court asserted that the Article 12 of the Anglo Dutch Treaty made all islets and islands part of the British realm and therefore Pedra Branca was within the Johor Sultanate since it was in the British side. As such it was held that Pedra Branca continued to be in the Sultanate of Johor up to 1844 when it was annexed by the British. Singapore asserted that the commissioning and operating of a light house on the island meant that the land had been acquired by the British. However it was held that the commissioning of the lighthouse and its operation was not important rather it was the behavior of the parties after this that was important. On June 12th 1953 the Singapore’s colonial secretary in a correspondence to the British Adviser to the Sultan of Johor sought to clarify the status of Pedra Branca. It sought to establish documentation of grants or leases of the island by the Jo0hor Sultanate. The secretary of State of Johor asserted that the Johor Sultanate laid no claim to Pedra Branca in any way. The significance and interpretation of the correspondence sharply divided opinion of the two parties over the authority of the secretary of state to write the letter or the implication of the word ownership. It was held that the Acting Secretary of State had authority to write the letter and that ownership may be used in international litigation to mean sovereignty.5 The conduct of Singapore such as investigation of shipwrecks, proposed reclamation and installation of military communications equipment on the island showed a titre de souverain. The court asserted that the conduct of the parties post 1950 showed that the UK and Singapore conduct was a titre de souverain while that of Malaysia did not show such. The Sultana of Johor and Malaysia did not in any way act since 1950 to claim sovereignty over the island until 1979. Therefore, sovereignty of the island passed from the Sultanate of Johor to Singapore in 1850. Sovereignty over Middle Rocks and South Ledge Singapore’s argument was that sovereignty over Pedra Branca was inclusive of sovereignty over other related marine features. Therefore ownership of Pedra Branca implied ownership of the dependencies of South Ledge and Middle Rocks. Malysia argued that these features had always been part of Malay or Johor jurisdiction. It was argued that Singapore had not shown any conduct of sovereignty over these features. While the court had aasserted conduct of sovereignty over Pedra Branca by Singapore it could not be proven over Middle Rocks and South Ledge. It was thus held that original title of the features remained with the Sultanate of Johor. Analysis of the Decision A territory is deemed as one of the core elements that make a state what it is and hence territorial sovereignty in international law is of critical importance.6 The Singapore/Malaysia judgment is remarkable in that it is concerned with the transfer of legal title from the holder of original title to another through conduct of the parties. In this regard it is important o distinguish between the existence of the right and the creation of the right as portrayed in the Island of Palmas case.7 The Singapore/Malaysia case offers an interesting precedent in that it places more weight to the existence of the right. A lot of weight is also placed on continuous conduct that shows territorial sovereignty. Since there is a need to preserve certainty and stability of state sovereignty the transfer of title from the original holder to another needs careful study. Therefore the relationship between effectivites and legal title is very important.8 One of the most important cases is the Burkina Faso/Republic of Mali Frontier Dispute Judgment. It was asserted that in instances in which; “Where the act corresponds exactly to law, where effective administration is additional to the uti possidetis juris, the only role of effectivité is to confirm the exercise of the right derived from a legal title. Where the act does not correspond to the law, where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title. In the event that the effectivité does not coexist with any legal title, it must invariably be taken into consideration. Finally, there are cases where the legal title is not capable of showing exactly the territorial expanse to which it relates. The effectivité can then play an essential role in showing how the title is interpreted in practice. It may be argued that title cannot be passed from the holder of original content without express consent from the holder of the original title.9 However in the Malaysia/Singapore case it was asserted that the passing of sovereignty of a territory may be based on the conduct of the parties if that conduct is manifested clearly and is relevant to the context and facts of the case. In this regard the clear manifestation was deemed to be the correspondence between the parties involved. However the interpretation calls for discussion on interpretation and some questions. For instance does the the correspondence mean that Johor was renouncing or abandoning it’s sovereignty. On the other hand Singapore never laid claim on Pedra Branca on the basis of the correspondence. Since the correspondence was only asking for information its legal effect on ownership is up for debate. Bibliography Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. 1 (Cambridge, Cambridge University Press 1995) 261. Thirlway H, “The Law and Procedure of the International Court of Justice 1960-1989, Part Seven,” (1996) 66 British Yearbook of International Law, 33. MG Kohen, Possession contestée et souveraineté territorial (Paris, PUF, 1997) 169-183; Pedra Branca/Palau Buteh (Malaysia v Singapore) (judgment), [2001] ICJ Rep 59. TD Gill and WP Heere (eds.), Reflections on Principles and Practice of International Law, 2000 75 The Hague et al, Kluwer, 147-173. Pedra Branca/Palau Buteh (Malaysia v Singapore) (judgement) [2001] ICJ Rep 68. Read More