A long-running squabble between Malaysia and Singapore over a flyspeck of an island called Pedra Branca at the mouth of the Johor Strait goes for verbal arguments before the International Court of Justice in The Hague next week. If by some chance Malaysia were to win, it could open a Pandora’s Box of issues relating to colonial-era treaties between European powers and Southeast Asian sultanates and kingdoms.
Those issues include the claims of the dormant Sultanate of Sulu, which was founded in 1450 and once stretched from Mindanao to Sabah. It remains the basis today of the Philippines claim to Sabah, once a lively issue a generation ago, it has never been formally dropped. A favorable decision would also give Malaysia a handy strategic position in waters hitherto controlled by Singapore.
At low tide, Pedra Branca, which was named by the Portuguese, measures just 137 meters on its longest axis and has a land area of about 2,000 square meters. Its name means the “White Rock”, as does its Malay name, Pulau Batu Puteh It has been the site of the so-called Horsburgh Lighthouse since 1850 and has been a bone of contention between the two countries since 1979, when Malaysia published an official map showing it to be in Malaysian territorial waters. Some 40 kilometers from Singapore itself, it is strategically situated at the eastern entrance to the Singapore Strait.
The dispute takes both sides back into colonial history before either existed as a modern state. Singapore’s claim dates to a treaty between the British East India Company and the Sultanate of Johor and an 1824 treaty between Britain and the Netherlands demarcating their respective colonial territories. The island and lighthouse had always been administered from Singapore by the British and this continued through Malaya’s 1957 independence and Singapore’s secession from Malaysia.
The Malaysians argue that sovereignty still rests with the Sultanate of Johor, which has endorsed the Malaysian claim. In 1992 the Malaysian opposition party PAS made a failed attempt to plant a Malaysian flag on the island.
In 1994 at a meeting between then-Prime Ministers Mahathir Mohamad and Goh Chok Tong, the two countries agreed in principle to submit the dispute to arbitration but subsequently could not agree on the terms of reference to the court in the Hague. However, in 2003 terms were finally settled and three rounds of written pleadings were submitted between March 2004 and November 2005. Now both sides, starting with Singapore on November 6, have four days to present their cases, followed by two days each to respond. The judgment by the 15-member court is unlikely to be forthcoming quickly.
The importance, and confidence, that Singapore attaches to this is reflected in the team it is sending. It is headed by Deputy Prime Minister and Law Minister S. Jayakumar, Chief Justice Chan Sek Kong and Ambassador at Large Tommy Koh – who presided over the UN Law of the Sea Conference in the 1990s. The legal team includes Ian Brownlie, an international law specialist at Oxford University, a French member of the UN International Law Commission and two international law and boundary dispute specialists from the UK law firm Eversheds. '
Malaysia has answered with a high-level team headed by Abdul Kadir Mohamad, Malaysia's ambassador-at-large, who is also the Prime Minister's adviser on foreign affairs. Attorney General Abdul Gani Patail is heading the legal team itself, accompanied by a clutch of Queen's Counsels and other international lawyers including Sir Elihu Lauterpacht and James Crawford, professors in International Law at the Cambridge University; Nicolaas Jan Schrijver, professor of public international law at Leiden University in the Netherlands, Marcelo G. Kohen, professor of International Law, the Graduate Institute of International Studies, Geneva; and Penelope Nevill, a Cambridge University lecturer.
Despite the long odds in the case, Malaysia has succeeded before at the International Court of Justice. In 2002, it won its case with Indonesia over ownership of the Ligitan and Sipadan islands off Sabah. That may have encouraged it to let the Pedra Branca issue go to the court. But its chances of success this time look poor, based on the earlier judgment which relied heavily on the fact that actual administration of those islands had long been carried out by Malaysia.
The court rejected both sides’ claims to rights established by treaty including Malaysia’s claim that it was the successor to title passed by an earlier owner, the Sultan of Sulu. (That sultanate itself is not active. The last sultan died in 1936 and several branches of the royal family continue to fight for the right of succession.)
If the court follows the precedents established in the earlier cases, the Singaporeans should handily win the Pedra Branca case.