Topic 6 International Dispute Settlement and Singapore

SINGAPORE LEGAL SYSTEM 2009 PART 1.
INTERNATIONAL LAW
AND
SINGAPORE LAW
Topic 6. International Dispute Settlement and Singapore

.A Notes and Discussion Questions ...................................................................2 .B Tommy Koh, International Law and the Peaceful Resolution of Disputes: Asian Perspectives, Contributions and Challenges.....................................6 .C Tommy Koh, The Land Reclamation Case: Thoughts and Reflections..........10 .D The Land Reclamation Case.........................................................................15 .E The Pedra Branca Case.................................................................................24 .F Delimiting the Maritime Boundary around Pedra Branca..............................36
All Rights Reserved Robert Beckman 2009 These materials are for the sole use of students in the NUS Faculty of Law. They are not to copied or circulated without the express written permission of the author.
Topic 6. Singapore and International Dispute Settlement
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.A Notes and Discussion Questions

Two Articles by Prof Tommy Koh
1. Critically evaluate the pros and cons of States referring international disputes to third party dispute settlement. What are the pros and cons of non-binding modes such as mediation as opposed to binding modes such as arbitration and adjudication? Do you agree with Prof Kohs thesis? What kind of disputes do you think should be taken to international courts or tribunals? Should Singapore and Malaysia take the dispute over the water agreements before an international court or tribunal? It is often said that the danger of taking a dispute to a court or tribunal is that the matter is decided only according to legal rules, and one party wins and the other loses. When you study the Land Reclamation and Pedra Branca cases, consider whether the decisions were win-lose or whether the tribunals gave something to both sides. Also consider whether the Lesson Learned from the Land Reclamation Case would apply equally to the Pedra Branca Case.
Land Reclamation Case

2. The Land Reclamation Case was initiated by Malaysia by invoking the Part XV of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which provides for compulsory binding dispute settlement. Malaysia alleged in its application that Singapores reclamation works were in breach of its obligations under UNCLOS as well as principles of customary international law, and it asked the International Tribunal for the Law of the Sea (ITLOS) for provisional measures. 3. Part XV of UNCLOS is the most complex dispute settlement mechanism ever included in any convention. States parties to UNCLOS must agree to submit most disputes on the interpretation or application of the provisions of the Convention to compulsory binding dispute settlement. States parties can elect at any time between four means of dispute settlement: (1) adjudication before the International Court of Justice; (2) adjudication before the International Tribunal for the Law of the Sea; (3) arbitration before an arbitral tribunal constituted in accordance with Annex VII of UNCLOS; or (4) arbitration before a special arbitral tribunal constituted in accordance with Annex VIII of UNCLOS. If a dispute arises between two States which have accepted the same procedure, the dispute will go that court or arbitral tribunal. If a dispute arises between two States Parties that have either not elected a procedure or who have elected different procedures, the dispute will go to an arbitral tribunal constituted under Article VII, unless the parties to the dispute agree to some other form of dispute settlement. 4. Neither Singapore nor Malaysia has made a choice on dispute the dispute settlement procedure for disputes under UNCLOS. Therefore, the merits of a case brought by Malaysia would go an arbitral tribunal constituted under Annex VII. However, Article 290 of UNCLOS provides that pending the constitution of an arbitral tribunal, a state may apply to ITLOS for provisional measures preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending the final SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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decision on the merits. The Land Reclamation Case we are studying is the ITLOS decision on Malaysias request for provisional measures. As is explained in the comments by Prof Tommy Koh, after the decision of ITLOS on provisional measures, the two States settled the case. 5. It should also be noted that although a case under Part XV of UNCLOS is triggered when there is a dispute on the interpretation or application of a provision of the Convention, Article 293 provides that the applicable law that can be applied by a court or tribunal having jurisdiction is the Convention and other rules of international law not incompatible with the Convention. When reviewing the questions below, consider whether in fact the Court ruled that Singapore had violated a principle of customary international law concerning a duty to cooperate when undertaking activities which may have a significant adverse effect on the environment of a neighbouring State. 6. When studying the Land Reclamation Case, you should consider whether Singapore was found to be in breach of any the following provisions of UNCLOS by not providing information to Malaysia about the possible impact of the project on the shared marine environment and on Malaysias coastal environment:
Article 198. Notification of imminent or actual damage When a State becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, it shall immediately notify other States it deems likely to be affected by such damage, as well as the competent international organizations. Article 204. Monitoring of the risks or effects of pollution 1. States shall, consistent with the rights of other States, endeavour, as far as practicable, directly or through the competent international organizations, to observe, measure, evaluate and analyse, by recognized scientific methods, the risks or effects of pollution of the marine environment. 2. In particular, States shall keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment. Article 205. Publication of reports States shall publish reports of the results obtained pursuant to article 204 or provide such reports at appropriate intervals to the competent international organizations, which should make them available to all States. Article 206. Assessment of potential effects of activities When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.
7. When examining the decision, also consider whether in fact the Court read the UNCLOS provisions in light of evolving principles of international law with respect to planned activities which may cause damage to environment. Consider the relevance of the following principles of international environmental law that are set out in the 1992 Rio Declaration, a resolution adopted at the 1992 UN Conference on the Environment and Development, which was held in Rio de Janeiro in 1992: SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore

Principle 2
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States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Principle 15 In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Principle 17 Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. Principle 18 States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States. Every effort shall be made by the international community to help States so afflicted. Principle 19 States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith.
8. You should note that in cases before both the ICJ and ITLOS each State Party to the case has the right to appoint an ad hoc judge to the court if there is no member of the court from their State. In practice, almost all ad hoc judges decide in favour of the State which appointed them. As pointed out by Prof Tommy Koh in his comments, what was unique in this case is that the two ad hoc judges made a separate joint declaration indicating that they were in agreement on an important matter.
Pedra Branca Case

9. This case was brought to the International Court of Justice under an ad hoc agreement between the two States. The Court was asked only to consider which of the two States had the better claim to sovereignty over the 3 features. This case was decided under the principles of customary international law governing the acquisition of territory. There were no provisions of UNCLOS that were applicable. 10.What were the critical dates for examining the dispute relating to the three features, and what is the significance of the critical date? How is the critical date relevant to whether conduct of the parties is considered by the Court? 11.Why did the Court reject Singapores argument that the island were terra nullis (belonged to no one) at the time the British constructed Horsburgh lighthouse? SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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12. What were the most important facts favoring Singapore? Was the original letter in 1851 critically important? Why did the Court rule that sovereignty over Pedra Branca had been transferred to Singapore? What was the rule or principle of law on which it based its decision? What do you believe was the most important conduct by Singapores which supported its case? Was the reaction of Malaysia to Singapores conduct relevant? Was there any conduct of Malaysia which favored Singapore? 13.Why did the Court rule that Malaysia had sovereignty over Middle Rocks? Which arguments of Singapore did the Court reject? What did it rule with respect to sovereignty over South Ledge? 14.In the end, which side won the case? Can it be argued that both sides won?
Delimitation of maritime boundaries near Pedra Branca

15.In the final 15 minutes we will discuss the complexities of determining the maritime boundaries around Pedra Branca, Middle Rocks and South Ledge. We will consider in particular the relevance of the provisions of UNCLOS that might be relevant in the negotiations relating to the maritime boundaries in the area.
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Part 1. International Law and Singapore
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.B Tommy Koh, International Law and the Peaceful Resolution of Disputes: Asian Perspectives, Contributions and Challenges
Presentation by Tommy Koh Second Conference of the Asian Society of International Law Tokyo, July 2009 16.I have three objectives in writing this paper. First, I wish to promote greater interest in, respect for, and adherence to international law in Asia. Second, I wish to encourage a greater willingness on the part of Asian governments to refer their bilateral disputes, which cannot be resolved by negotiations, to third party dispute resolution. Third, I wish to make a plea for more Asian States to recognise the compulsory jurisdiction of the International Court of Justice and to accept the jurisdiction of the International Tribunal for the Law of the Sea, under the 1982 UN Convention on the Law of the Sea. Do not Let Unresolved Disputes Linger 17.Asian governments tend to be more sensitive about their sovereignty than governments in the contemporary West. Therefore, when differences occur and disputes arise, Asian governments tend to insist that they be resolved through bilateral consultations and negotiations. The reality is that, very often, the differences and disputes remain unresolved after years and even decades of negotiations. When left unresolved, some of these disputes have a tendency to contaminate the bilateral relationship as a whole. This is a great pity because the disputes may revolve around relatively minor issues compared to the many other areas in which the two countries have convergent interests. In view of this, my first point is to encourage Asian governments to take a more open and positive attitude towards various modalities, other than negotiations, for the settlement of disputes. Modalities for Peaceful Settlement of Disputes 18.What are the other modalities for the peaceful resolution of disputes? They are: (i) (ii) (iii) (v) Conciliation 19.Conciliation, as a modality for resolving disputes, is culturally comfortable to Asians. It should, therefore, be a popular means for settling disputes between Asian States. Surprisingly, I cannot find in the literature, recent examples of disputes between Asian States which have been settled by conciliation. I will, therefore, refer to a case between Iceland and Norway. SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore conciliation; mediation; fact-finding; adjudication
(iv) arbitration; and
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The facts are as follows. On 28 May 1980, the Governments of Iceland and Norway concluded an agreement concerning fishery and continental shelf questions. The agreement agreed to establish a conciliation commission to determine the dividing line for the continental shelf in the area between Iceland and Jan Mayen, an island belonging to Norway. The commission consisted of a conciliator from Iceland (Ambassador Hans Andersen), a conciliator from Norway (Jens Evensen) and a neutral chairman (Elliot Richardson of the US). The three conciliators were the leaders of their respective delegations to the Third UN Conference on the Law of the Sea. The report and recommendations of the conciliation commission are contained in Volume XXVII of the Reports of International Arbitral Awards of the United Nations (2007). I wish to bring this case to the attention of my Asian colleagues in the hope that some of the existing disputes between Asian States could be settled amicably by using the device of conciliation commissions. Mediation 20.Mediation has deep cultural roots in Asia. When differences or disputes arise in Asia, in the past, there was a widespread practice for the disputants to call upon the village head man or community leader to help solve the disputes by conciliation and mediation. Asians like conciliation and mediation because the outcome is win-win and neither party is stigmatised as having lost the dispute. In this way, no one loses face. Recognising the cultural acceptance of mediation and its merit, the Singapore government has established the Singapore Mediation Centre. The Centre trains interested citizens as mediators. Before a case goes to trial, the Mediation Centre would attempt to assist the parties to come to an amicable settlement. The case would only go to trial if the parties decline the offer of mediation or it is not successful. Mediation has thus become part of the judicial process in Singapore and many cases are successfully solved by way of mediation. Mediation of International Disputes 21.Mediation has also been used to solve international disputes. Let me briefly refer to a recent case. On 26 December 2004, Indonesia, Malaysia, Thailand, Sri Lanka, India, the Maldives and other countries around the rim of the Indian Ocean were hit by a killer wave called the tsunami. The province of Aceh, in Indonesia, was almost completely wiped out. This made it impossible for the Free Aceh Movement (GAM) to continue its armed struggle for independence against the Government of Indonesia. The two sides subsequently approached Martti Ahtisaari, the former President of Finland, to mediate the dispute. He agreed and convened the first round in Helsinki, in January 2005. Although Ahtisaari had no background on Indonesia, he had an adviser, Juha Christensen, who had lived for many years in Indonesia, spoke the local languages, and was trusted by both sides. Ahtisaari was a tough but fair mediator and personally chaired the face-to-face negotiations from the beginning to the end. Miraculously, after only five rounds, a comprehensive agreement was signed in Smolna, Finland, on 15 August 2005, putting an end to 30 years of armed conflict1. I hope that the Aceh case will inspire Asians to
See the excellent book by Katri Merikallio, Making Peace: Ahtisaari and Aceh, 2006, WS Bookwell Oy, Helsinki.
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think deeply on whether there are other disputes in Asia which could be solved in a similar way. The circumstances must, of course, be right and the two parties must have a genuine wish to seek an end to the dispute. What remains then is the choice of a skilful mediator acceptable to both sides. Who are the elder statesmen of Asia who would be willing to act as mediators and have the competence of Ahtisaari? Could the ASEAN Secretariat make up such a list? Can the Asian Society of International Law play a role? Fact-finding 22.Fact-finding as a modality of dispute settlement is not very well known. I think its importance is under-estimated. Very often, negotiations are bogged down because the two parties cannot agree on the facts. Let me cite a concrete example. In 2003, Malaysia applied to the International Tribunal for the Law of the Sea (based in Hamburg), for provisional measures to stop Singapore's land reclamation activities in the Straits of Johor. Malaysia alleged that Singapore's activities had, inter alia, caused pollution and other damage to the marine environment. Singapore denied the allegations. In its unanimous judgement, the Tribunal ordered the two parties to establish a group of independent experts to conduct a year long study on the effects of Singapore's activities and to propose appropriate measures to deal with any adverse effects 2. Malaysia and Singapore appointed two experts each and the four experts submitted a unanimous report to the two parties after a year-long study. The experts concluded in their report that Singapores land reclamation works would cause no major impact to Malaysia, while the minor and moderate impacts of the works could be mitigated. Malaysia and Singapore accepted the experts recommendations and, on that basis, reached an amicable settlement after two rounds of negotiations. The text of the settlement agreement is contained in the decision of the Arbitral Tribunal dated 1 September 2005, and reported in Volume XXVII of the Reports of International Arbitral Awards of the United Nations (2007). This is an excellent example of the use of independent experts, by the two parties to a dispute, to make an authoritative report on the facts. When the facts were accepted, the two parties were able to negotiate a settlement. Arbitration 23.Arbitration should be more acceptable to Asian governments than adjudication. The process is less formal. A State has a say in the composition of the arbitral tribunal. The outcome of arbitration, unlike adjudication, can be a win-win one. Arbitration is the default dispute settlement process under the 1982 UN Convention on the Law of the Sea. It is surprising to me that so few Asian States Parties to the Convention have nominated arbitrators. Is this a case of neglect, indifference or dislike for arbitration? Do Asian governments prefer adjudication to arbitration? I do not think so.
International Tribunal for the Law of the Sea, Case No. 12, Order of 8 October 2003.
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Topic 6. Singapore and International Dispute Settlement Adjudication
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24.I will focus next on adjudication. I wish to make the following three points on Asia and international adjudication. Compulsory Jurisdiction of ICJ 25.First, I think it is quite sad that out of the 53 states which belong to the Asian group at the UN, only five have accepted the compulsory jurisdiction of the International Court of Justice. The five are: Cambodia, India, Japan, Pakistan and the Philippines. Why are Asian States reluctant to accept the compulsory jurisdiction of ICJ? Can anything be done to allay their concerns? Would it be useful for us to encourage more Asian States to do so? How can this be best done? North-East Asias Reluctance 26.Second, according to the record of ICJ, there have been only 15 disputes involving an Asian State or States in the Courts history. The striking thing to me is that although China and Japan have nationals who are judges, neither country has brought a case to the ICJ. Nor has South Korea. In contrast, of the ten ASEAN countries, five have brought cases to the ICJ. They are: Cambodia, Indonesia, Malaysia, Singapore and Thailand. Why? What is the legal or cultural explanation for the reluctance of the countries of North-East Asia to refer their disputes to the ICJ compared to the countries of South Asia and South-East Asia? How to Encourage States to Use ITLOS? 27.Third, in the case of ITLOS, which is a potentially useful court, it is currently languishing without work. How can we promote its use by States parties to the 1982 Convention on the Law of the Sea? I know for a fact that there are disputes between some States parties concerning the interpretation and application of the Convention but, so far, the States concerned have been reluctant to refer their disputes to ITLOS for resolution. Why? Why are trade ministers willing to refer trade disputes to the WTO dispute settlement procedure for resolution whereas foreign ministers are reluctant to refer their disputes on the law of the sea to ITLOS? Conclusion 28.In conclusion, I think the Asian Society of International Law can play a useful role in promoting the greater acceptance of international law by Asian governments and peoples. We should promote the strengthening of the rule of law in Asia, both domestically and internationally. We should also encourage Asian governments to adopt a more open and positive attitude towards the various modalities for the settlement of disputes, other than negotiations. We should consider how best to encourage Asian governments to accept the jurisdiction of ICJ and ITLOS, or at least be less reluctant to refer their disputes to those courts by agreement. I will end on an optimistic note. The ASEAN Charter has come into force on the 15 th of December 2008. One of the chapters of the Charter is on the compulsory settlement of disputes. I think the fact that the ten ASEAN countries are willing to be bound by such an obligation is a SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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good omen for the future. I hope the other regions of Asia will follow the ASEAN lead.
.C Tommy Koh, The Land Reclamation Case: Thoughts and Reflections

by TOMMY KOH and JOLENE LIN (2006) 10 SYBIL 17 Note: This article is the edited version of a speech delivered by Prof Tommy Koh to NUS law students on 14 April 2005. The footnotes and Introductory Note have not been included. Land Reclamation in Singapore 1. Singapore is a small island republic in Southeast Asia situated just off the tip of the Malayan peninsula. Since the beginning of its independent existence, Singapores physical constraints have made it a challenge to balance its competing needs and to optimise the use of its scarce land area. 2. Therefore, Singapore has been reclaiming land from the sea since the beginning of colonial Singapore. Recent reclamation projects include the Kallang River in the 1960s for industrial and housing purposes, Marine Parade in the 1970s for housing purposes, Changi Airport in the 1980s for infrastructure purposes, Jurong Island (joining seven islands in southwestern part of Singapore) in the 1990s for industrial purposes, and Changi East in 1994-2002 for the expansion of Changi Airport, development of infrastructure and industrial purposes.1 The reclamation works carried out over the last thirty years have enabled Singapore to increase its land area from 580 to 680 square kilometres (58,000 ha to 68,000 ha).2 3. Land reclamation is also an important activity in several other small countries, such as Belgium, the Netherlands, Dubai and some of the other Gulf States.3 It has also become an industry and a fine art. The best practices, which Singapore adopts, enables it to embark on some quite massive land reclamation projects, in Pulau Tekong and in Tuas, without causing significant impacts on the marine environment, for example, pollution. Malaysias Response to the Land Reclamation Works in Pulau Tekong and Tuas 4. In 2002, Malaysia began to voice its displeasure at Singapores land reclamation works in Tuas and Pulau Tekong.4 As can be seen from the map below, Pulau Tekong is situated in the north-eastern part of Singapore. Tuas is in the Western part of Singapore. 5. Malaysia alleged that Singapores land reclamation works in Pulau Tekong and Tuas impinged on Malaysian territory, caused pollution and other harm to the marine environment in the Straits of Johor, damaged the jetties, reduced the catch of the fishermen who made their living in the SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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Straits of Johor, etc. Singapore repeatedly asked for details of Malaysias concerns so that proper investigations could be made. However, although Malaysia promised to do so each time, at both levels of the Prime Ministers and Foreign Ministers, no such information was provided. Referring the Dispute to International Arbitration 6. Finally, more than a year later, Malaysia provided Singapore with the details of her technical studies on 4 July 2003. However, at the same time, Malaysia invoked Article 286 of the 1982 UN Convention on the Law of the Sea (UNCLOS), and initiated arbitration under Annex VII of the UNCLOS. Article 286 of the UNCLOS states: 7. Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section. 8. Singapore reminded Malaysia that under Article 283, parties to a dispute are under an obligation to exchange views and to attempt to settle the dispute through negotiations. Article 283 (Obligation to exchange views) states: (1) When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. (2) The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement. 9. Singapore therefore invited Malaysia to come to the negotiating table. On 13 and 14 August 2003, meetings were held in Singapore. Both parties began to identify the issues at hand. Singapore gave detailed presentations on the Tuas and Pulau Tekong reclamation projects as well as oral and written responses to Malaysia. Both parties agreed that the talks were useful and both the Agents for Singapore and Malaysia agreed to continue them. Singapore then proposed that a second meeting be held and that the parties consider the formation of technical working groups to discuss the technical information. However, Malaysia imposed a pre-condition for the continuation of the talks, that is, that Singapore should stop all reclamation works in the meantime. Singapore could not accept this condition. Instead, Singapore replied that its studies and reports had demonstrated that the ongoing and planned reclamation works had not caused and would not cause any significant impact on Malaysias concerns. Further, Singapore reassured Malaysia that it had always ensured that its reclamation works would not impede navigation through the Straits of Johor. Singapore also gave an undertaking that it would notify and consult Malaysia before it proceeded to construct transport links between Pulau Tekong, Pulau Ubin and the main island of Singapore if such links would have any effect on Malaysias passage rights. Malaysia responded on 4 September 2003 by applying to the ITLOS for provisional measures under Article 290(5) of the UNCLOS.6 SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
Topic 6. Singapore and International Dispute Settlement 10.The provisional measures that Malaysia sought were:7
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(a) that Singapore shall, pending the decision of the Arbitral Tribunal, suspend all current land reclamation activities in the vicinity of the maritime boundary between the two States or of areas claimed as territorial waters by Malaysia (and specifically around Pulau Tekong and Tuas); (b) to the extent it has not already done so, provide Malaysia with full information as to the current and projected works, including in particular their proposed extent, their method of construction, the origin and kind of materials used, and designs for coastal protection and remediation (if any); (c) afford Malaysia a full opportunity to comment upon the works and their potential impacts having regard, inter alia, to the information provided; and (d) agree to negotiate with Malaysia concerning any remaining unresolved issues. 11.Malaysia appointed Dr. Kamal Hossain of Bangladesh as its ad hoc Judge. Singapore appointed Prof. Bernard Oxman of the USA as its ad hoc Judge. On 20 September 2003, Singapore submitted its response to Malaysias Request. Oral hearings were then held at five public sittings on 25-27 September 2003.8 12.While the two Agents were in Hamburg, Germany, the President of the ITLOS, Judge Dolliver Nelson, consulted with them about the composition of the Arbitral Tribunal. Article 3 of Annex VII of the UNCLOS prescribes a tribunal of five members. The two ad hoc Judges, Dr. Hossain and Prof. Oxman, were appointed by the Parties. Since the two Parties could not agree on the remaining three arbitrators, the President of the ITLOS could exercise his power under Article 3(e) of Annex VII to make the appointments and is, in fact, required to do so within thirty days of receiving a request from either party to the dispute. Singapore made such a request on 9 September 2003, which meant that the appointments of the arbitrators had to be made by 9 October 2003. Consultations in Hamburg between Judge Dolliver Nelson and the two Agents resulted in the appointment by Judge Nelson of Dr. Christopher Pinto of Sri Lanka as the President of the Tribunal. Prof. Ivan Shearer of Australia and Sir Arthur Watts of the UK were appointed as the two other members. 13.On 8 October 2003, the ITLOS delivered its unanimous judgement.9 A notable feature of the judgement is that the two ad hoc Judges filed a Joint Declaration.10 This is a rare occurrence. The court did not accede to Malaysias request for provisional measures against Singapore. In that sense, the outcome was a victory for Singapore. Instead, the court required the two Parties to establish a group of independent experts, with the mandate to conduct a study on terms of reference to be agreed between Malaysia and Singapore. The group of experts was tasked to determine, within a year, the effects of Singapores land reclamation works and to propose appropriate measures to deal with any adverse effects. 14.This was a brilliant move by the court because it compelled the two Parties to return to a co-operative mode and to resolve their differences on the basis of an objective study by independent experts. SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
Topic 6. Singapore and International Dispute Settlement Subsequent to the Delivery of the ITLOS Judgement
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15.Malaysia appointed Professor Roger Falconer and Professor Christopher Fleming of the United Kingdom as its two experts. Singapore appointed Professor Kees dAngremond of the Netherlands and Professor William Kamphuis of Canada as its experts. Professor Falconer and Professor dAngremond co-chaired the Group of Experts (GOE). Several rounds of negotiations were held before both Parties reached agreement on the GOEs terms of reference. The two governments also agreed to appoint an official each to act as its liaison with the GOE. DHI-Water and Environment, an international consulting and research organisation, was appointed by both governments to assist the GOE in its work. 16.The whole process worked out very well. The four experts were able to work in a collegial, professional and independent manner. The two liaison officers, Hajjah Rosnani and Mrs. Cheong Koon Hean, developed a good working relationship. The relationship of mutual respect between the two liaison officers also greatly eased the process. Working under tremendous pressure of time, DHI-Water and Environment succeeded in presenting a rigorous (and voluminous) study to the GOE.11 This report was carefully studied by the GOE which then submitted a unanimous report to the two governments on 5 November 2004. The fact that the report was unanimous made it difficult for either Malaysia or Singapore not to accept the report as a basis for their subsequent negotiations to resolve the dispute. Thus, the two governments agreed to the use of the recommendations of the GOE as a basis for seeking a settlement. The study found that Singapores reclamation works had not caused any serious impact. Of the fifty-seven impacts identified by the experts, they found that forty of them could be detected only in the computer model, but were not likely to be detectable in the field. Of the remaining seventeen impacts, mitigating measures to eliminate them were recommended. 17.Two rounds of negotiations were held on 22-23 December 2004 in Singapore and 7-9 January 2005 at the Malaysian Embassy in The Hague, the Netherlands. On 9 January 2005, both parties reached an ad referendum agreement to settle the dispute.12 At Malaysias request, a third round of negotiations was held in Singapore on 8-9 February 2005. 18.On 10 January 2005, the Agents for the respective governments appeared before the Arbitral Tribunal at the Peace Palace in The Hague. The agreement to meet on 8 and 9 January was useful as it put pressure on the two delegations to settle before they appeared before the tribunal. Before the tribunal, the two Agents took turns to read a joint statement informing the tribunal that the two governments had reached an ad referendum agreement to settle the dispute. They promised to inform the tribunal as soon as the agreement had been approved and signed by both governments. The tribunal will then be able to make an order terminating the case. 19.On 26 April 2005, both governments signed the Settlement Agreement, marking an amicable resolution of the dispute.
Topic 6. Singapore and International Dispute Settlement Lessons Learnt
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20.First, the national interests of Singapore are best served by its strict adherence to international law. The importance of international law to Singapore has been reinforced by this land reclamation case and the case of Pedra Branca which is before the International Court of Justice.13 21.Second, there is no basis for the fear that the ITLOS would be more easily swayed by pro-developing country or pro-environment arguments than, say, the ICJ. The ITLOS has demonstrated competence and integrity which inspires confidence.14 22.Third, an important determinant or influence on the state of SingaporeMalaysia bilateral ties is the personality and preferences of the Malaysian Prime Minister. It is not certain that the land reclamation case would have been settled amicably if Dr. Mahathir were still the Prime Minister of Malaysia.15 23.Fourth, third-party processes, whether of a legal ( e.g., submitting a dispute to the ITLOS under the provisions of the UNCLOS) or a technical (e.g., the GOE report) nature, are very useful tools to break impasses and to bring disputes to an amicable resolution. Often, the parties themselves would have politicised the dispute to the extent that it is difficult for either party to step back or compromise without third-party intervention.16 Third-party intervention also permits the application of objective criteria in the search for acceptable solutions. A good example is the employment of the technical expertise of the GOE in this case. This confidence in the effectiveness of third-party intervention explains Singapores willingness to submit the dispute with Malaysia over Pedra Branca to the ICJ and why Singapore has also suggested the use of thirdparty resolution methods to resolve other seemingly intractable disputes with Malaysia, such as the Malayan Railway and the price that Singapore pays Malaysia for water supplied. 24.Fifth, as a maritime nation and State Party to the UNCLOS, Singapore should actively cultivate a keen awareness of its rights and responsibilities under the Convention. Its provisions touch on a broad range of activities in and affecting the oceans and their resources. It is also important that Singapore takes an active interest and, when needed, an active role, in the formulation of these agreements and international legal norms because, as a small country, Singapore relies on them. 25.Sixth, the ITLOS hearing in Hamburg underlined the importance of meticulous preparation and an intimate familiarity with every point of ones case. Nothing can substitute the need for hard work and careful preparation before one appears before an arbitral tribunal or in a court of law. A lawyer will not be able to effectively present her case without thorough knowledge of the case. 26.Seventh, Singapore benefited from the fact that the various agencies involved in the land reclamation process and the settlement of the dispute arising from the reclamation activities were united by a common objective. This engendered close and smooth coordination and cooperation which allowed the Singapore delegation to respond quickly and effectively to developments. 27.Eighth, an effective negotiator is one who is able to understand the mindset of the other party. To negotiate successfully with Malaysia, a SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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Singapore negotiator should understand the content of the Malay cultural box and behave in a manner that is not offensive to a Malay. The way to approach such negotiations would be to adopt a halus manner, combining the hard power of solid facts and legal arguments with the soft power of courtesy, friendship and warmth. Therefore, a good negotiator must possess I.Q., E.Q. (emotional intelligence) and C.Q. (cultural intelligence). 28.Ninth, it is unrealistic and counter-productive for Singapore negotiators to enter discussions with their counterparts with the expectation that they will behave like Singaporeans. Singapore negotiators cannot expect others to be equally efficiency-driven and must cultivate the virtue of patience. 29.Finally, key to the resolution of disputes is good inter-personal dynamics between players at all levels. As mentioned earlier, the GOE members interacted very well amongst themselves even though each of them was appointed by one of the parties to the dispute. The good working relationship certainly contributed to the unanimity of the findings of the report, which in turn, provided an excellent basis upon which the two governments could find an amicable solution to the dispute. At the level of the liaison officials, both the Singapore and Malaysia liaison officers got on very well and this personal rapport was crucial to the successful joint administration of the consultancy contract with DHI-Water and Environment. This in turn facilitated the successful conclusion of the study. Finally, at the level of the Agents of the two governments, the very good personal relations between the two Agents developed over many years helped them to bridge the differences in arriving at the Settlement Agreement acceptable to both governments. It is clear that such good personal relations must continue to be fostered between officials of both governments at all levels. As neighbours, disagreements from time to time are inevitable. Good inter-personal dynamics, however, will help significantly in enabling both parties to have at least frank and friendly discussions of those differences, and optimally, the amicable resolution of them.The Land Reclamation Case
.D The Land Reclamation Case

Case Concerning Land Reclamation by Singapore in and around the Straits of Johor Malaysia v. Singapore, International Tribunal for the Law of the Sea (ITLOS) Provisional Measures / Order of 8 October 2003 Note: This is an edited version so that the paragraph numbers do not correspond to the numbers in the official text of the case. THE TRIBUNAL, composed as above, after deliberation, Having regard to article 290 of the United Nations Convention on the Law of the Sea (hereinafter "the Convention") and articles 21, 25 and 27 of the Statute of the Tribunal (hereinafter "the Statute"), Having regard to articles 89 and 90 of the Rules of the Tribunal (hereinafter "the Rules"), SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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Having regard to the fact that Malaysia and Singapore have not made written declarations in accordance with article 287 of the Convention and are therefore deemed to have accepted arbitration in accordance with Annex VII to the Convention, Having regard to the Notification and Statement of Claim submitted by Malaysia to Singapore on 4 July 2003 instituting arbitral proceedings as provided for in Annex VII to the Convention in a dispute concerning land reclamation by Singapore in and around the Straits of Johor, Having regard to the Request for provisional measures submitted by Malaysia to Singapore on 4 July 2003 pending the constitution of an arbitral tribunal under Annex VII to the Convention, Having regard to the Request submitted by Malaysia to the Tribunal on 5 September 2003 for the prescription of provisional measures by the Tribunal in accordance with article 290, paragraph 5, of the Convention, Makes the following Order: 1. Whereas Malaysia and Singapore are States Parties to the Convention; 2. Whereas, on 5 September 2003, Malaysia filed with the Registry of the Tribunal a Request for the prescription of provisional measures under article 290, paragraph 5, of the Convention in a dispute concerning land reclamation by Singapore in and around the Straits of Johor; 3. Whereas, pursuant to article 90, paragraph 2, of the Rules, the Tribunal, by Order dated 10 September 2003, fixed 25 September 2003 as the date for the opening of the hearing, notice of which was communicated forthwith to the parties; 4. Whereas the Tribunal does not include upon the bench a judge of the nationality of the parties and, pursuant to article 17, paragraph 3, of the Statute, Malaysia has chosen Mr. Kamal Hossain and Singapore has chosen Mr. Bernard H. Oxman to sit as judges ad hoc in this case; 5. Whereas, in the Notification and Statement of Claim of 4 July 2003, Malaysia requested the arbitral tribunal to be constituted under Annex VII (hereinafter the Annex VII arbitral tribunal): (1) to delimit the boundary between the territorial waters of the two States in the area beyond Points W25 and E47 of the 1995 Agreement; (2) to declare that Singapore has breached its obligations under the 1982 Convention and under general international law by the initiation and continuation of its land reclamation activities without due notification and full consultation with Malaysia; (3) to decide that, as a consequence of the aforesaid breaches, Singapore shall: (a) cease its current land reclamation activities in any area forming part of Malaysian waters, and restore those areas to the situation they were in before the works were commenced; (b) suspend its current land reclamation activities until it has conducted and published an adequate assessment of their potential effects on the environment and on the affected coastal areas, taking into account representations made by affected parties; (c) as an aspect of this assessment process: (i) provide Malaysia with full information as to the current and projected works, including in particular their proposed extent, their method of construction, the origin and kind of materials used, and designs for coastal protection and remediation (if any);
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(ii) afford Malaysia a full opportunity to comment upon the works and their potential impacts having regard, inter alia, to the information provided, and (iii) negotiate with Malaysia concerning any remaining unresolved issues; (d) in the light of the assessment and of the required processes of consultation and negotiation with Malaysia, revise its reclamation plans so as to minimise or avoid the risks or effects of pollution or of other significant effects of those works on the marine environment (including excessive sedimentation, bed level changes and coastal erosion); (e) provide adequate and timely information to Malaysia of projected bridges or other works tending to restrict maritime access to coastal areas and port facilities in the Straits of Johor, and take into account any representations of Malaysia so as to ensure that rights of maritime transit and access under international law are not impeded; (f) to the extent that notwithstanding the above measures Malaysia, or persons or entities in Malaysia, are injuriously affected by the reclamation activities, provide full compensation for such injury, the amount of such compensation (if not previously agreed between the parties) to be determined by the Tribunal in the course of the proceedings; 6. Whereas the provisional measures requested by Malaysia in the Request to the Tribunal filed on 5 September 2003, and maintained in the final submissions read by the Agent of Malaysia at the public sitting held on 27 September 2003, are as follows: (a) that Singapore shall, pending the decision of the Arbitral Tribunal, suspend all current land reclamation activities in the vicinity of the maritime boundary between the two States or of areas claimed as territorial waters by Malaysia (and specifically around Pulau Tekong and Tuas); (b) to the extent it has not already done so, provide Malaysia with full information as to the current and projected works, including in particular their proposed extent, their method of construction, the origin and kind of materials used, and designs for coastal protection and remediation (if any); (c) afford Malaysia a full opportunity to comment upon the works and their potential impacts having regard, inter alia, to the information provided; and (d) agree to negotiate with Malaysia concerning any remaining unresolved issues; 7. Whereas the submissions presented by Singapore in its Response, and maintained in the final submissions read by the Agent of Singapore at the public sitting held on 27 September 2003, are as follows: Singapore requests the International Tribunal for the Law of the Sea to: (a) dismiss Malaysias Request for provisional measures; and (b) order Malaysia to bear the costs incurred by Singapore in these proceedings; 8. Considering that, in accordance with article 287 of the Convention, Malaysia has, on 4 July 2003, instituted proceedings under Annex VII to the Convention against Singapore in the dispute concerning land reclamation by Singapore in and around the Straits of Johor; 9. Considering that Malaysia sent the notification instituting proceedings under Annex VII to the Convention to Singapore on 4 July 2003, together with a Request for provisional measures; 10. Considering that, on 5 September 2003, after the expiry of the time-limit of two weeks provided for in article 290, paragraph 5, of the Convention, and pending the constitution of
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the Annex VII arbitral tribunal, Malaysia submitted to the Tribunal a Request for the prescription of provisional measures; 11. Considering that neither Malaysia nor Singapore has made a written declaration in accordance with article 298 of the Convention that it does not accept any of the procedures provided for in Part XV, section 2, of the Convention with respect to the disputes specified in that article; 12. Considering that article 290, paragraph 5, of the Convention provides in the relevant part that: Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea ... may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires; 13. Considering that, before prescribing provisional measures under article 290, paragraph 5, of the Convention, the Tribunal must satisfy itself that prima facie the Annex VII arbitral tribunal would have jurisdiction; 14. Considering that Malaysia maintains that the dispute with Singapore concerns the interpretation and application of certain provisions of the Convention, including, in particular, articles 2, 15, 123, 192, 194, 198, 200, 204, 205, 206, 210 and, in relation thereto, article 300 of the Convention; 15. Considering that Malaysia has invoked as the basis of jurisdiction of the Annex VII arbitral tribunal article 288, paragraph 1, of the Convention, which reads as follows: A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part; 16. Considering that Singapore contends that the requirements of article 283 of the Convention have not been satisfied since, in its view, there has been no exchange of views regarding the settlement of the dispute by negotiation or other peaceful means; 17. Considering that, for the above reasons, the Tribunal finds that the Annex VII arbitral tribunal would prima facie have jurisdiction over the dispute; 18. Considering that, in accordance with article 290, paragraph 1, of the Convention, the Tribunal may prescribe measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment; 19. Considering that, according to article 290, paragraph 5, of the Convention, provisional measures may be prescribed pending the constitution of the Annex VII arbitral tribunal if the Tribunal considers that the urgency of the situation so requires; 20. Considering that Singapore contends that, as the Annex VII arbitral tribunal is to be constituted not later than 9 October 2003, there is no need to prescribe provisional measures given the short period of time remaining before that date; 21. Considering that, under article 290, paragraph 5, of the Convention, the Tribunal is competent to prescribe provisional measures prior to the constitution of the Annex VII arbitral tribunal, and that there is nothing in article 290 of the Convention to suggest that the measures prescribed by the Tribunal must be confined to that period; 22. Considering that the said period is not necessarily determinative for the assessment of the urgency of the situation or the period during which the prescribed measures are applicable and that the urgency of the situation must be assessed taking into account the period during
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which the Annex VII arbitral tribunal is not yet in a position to modify, revoke or affirm those provisional measures"; 23. Considering further that the provisional measures prescribed by the Tribunal may remain applicable beyond that period; 24. Considering that Malaysia alleges that, contrary to articles 2 and 15 of the Convention, Singapore has impinged on areas of Malaysias territorial sea by its land reclamation works in the sector of Tuas, in the vicinity of Point 20, and that, for that reason, the Tribunal should prescribe the suspension of the said land reclamation works in that sector; 25. Considering that the existence of a claim to an area of territorial sea is not, per se, a sufficient basis for the prescription of provisional measures under article 290, paragraph 5, of the Convention; 26. Considering that, in the view of the Tribunal, the evidence presented by Malaysia does not show that there is a situation of urgency or that there is a risk that the rights it claims with respect to an area of territorial sea would suffer irreversible damage pending consideration of the merits of the case by the Annex VII arbitral tribunal; 27. Considering that the Tribunal, therefore, does not consider it appropriate in the circumstances to prescribe provisional measures with respect to the land reclamation by Singapore in the sector of Tuas; 28. Considering that Malaysia has further argued that Singapore has placed itself in breach of its obligations under international law, specifically under articles 123, 192, 194, 198, 200, 204, 205, 206 and 210 of the Convention, and in relation thereto, article 300 of the Convention and the precautionary principle, which under international law must direct any party in the application and implementation of those obligations; 29. Considering that Singapore submits that in the present situation there is no room for applying the precautionary principle for the prescription of provisional measures; 30. Considering that, at a public sitting held on 26 September 2003, Singapore, in response to Malaysias second requested measure, cited in paragraph 23(b) above, stated that it had already given an explicit offer to share the information that Malaysia requested in reliance on its rights under the Convention and that this offer had been made in Singapores Note dated 17 July 2003 and its letter of 21 August 2003; 31. Considering that at the same sitting, in response to Malaysias third requested measure, cited in paragraph 23(c) above, Singapore expressly stated that it would give Malaysia a full opportunity to comment on the reclamation works and their potential impacts, and that it would notify and consult Malaysia before it proceeded to construct any transport links between Pulau Tekong, Pulau Ubin and the main island of Singapore if such links could affect Malaysias rights of passage; 32. Considering that, at the same sitting, in response to Malaysias fourth requested measure, cited in paragraph 23(d) above, Singapore declared that it had expressly stated its readiness and willingness to enter into negotiations and that it remained ready and willing to do so; 33. Considering that, at the public sitting held on 27 September 2003, Malaysia stated that during the hearing, Singapore had provided some further clarifications on the three requested measures, cited in paragraph 23(b), (c) and (d) above, and that, in the light of this new information, Malaysia would be prepared to accept these assurances if the Tribunal made them a matter of formal judicial record; 34. Considering that Malaysia stated that there had been an acceleration of work around Pulau Tekong and that Singapore had solemnly assured the Tribunal that it had not been and was not accelerating its works; 35. Considering that the Tribunal places on record the assurances given by Singapore as specified in paragraphs 76 to 80; SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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36. Considering that Malaysia, in the first measure cited in paragraph 23(a) above, requests that Singapore shall, pending the decision of the Annex VII arbitral tribunal, suspend all current land reclamation activities in the vicinity of the maritime boundary between the two States or of areas claimed as territorial sea by Malaysia (and specifically around Pulau Tekong and Tuas); 37. Considering that, at the public sitting held on 27 September 2003, Malaysia stated that it accepts the importance of land reclamation and does not claim a veto over Singapores activities; 38. Considering that, at the same public sitting, Malaysia stressed, however, that infilling works in Area D at Pulau Tekong was of primary concern and that if Singapore were to give clear undertakings to the Tribunal that no effort would be made to infill Area D pending the decision of the Annex VII arbitral tribunal, and if these undertakings were likewise made a matter of formal judicial record, Malaysias concerns would be significantly reduced; 39. Considering that, in response to Malaysias first requested measure, as cited in paragraph 23(a) above, the Agent of Singapore, at the public sitting on 27 September 2003, read out a commitment that the Government of Singapore had already made in its Note of 2 September 2003, as follows: If, after having considered the material [that is to say the material we have provided Malaysia with] Malaysia believes that Singapore had missed some point or misinterpreted some data and can point to a specific and unlawful adverse effect that would be avoided by suspending some part of the present works, Singapore would carefully study Malaysias evidence. If the evidence were to prove compelling, Singapore would seriously re-examine its works and consider taking such steps as are necessary and proper, including a suspension, [and I emphasize that] to deal with the adverse effect in question; 40. Considering that Singapore accepted the proposal that Malaysia and Singapore jointly sponsor and fund a scientific study by independent experts on terms of reference to be agreed by the two sides; 41. Considering that, when presenting its final submissions during the public sitting held on 27 September 2003, the Agent of Singapore stated: Concerning Malaysias first [requested measure] for Singapore to stop its reclamation works immediately, which was modified by the Malaysian Agent this morning, ... Singapore is pleased to inform the Tribunal that regarding Area D, no irreversible action will be taken by Singapore to construct the stone revetment around Area D pending the completion of the joint study, which should be completed within a year; 42. Considering that the Tribunal places on record the commitments referred to in paragraphs 85 to 87; 43. Considering that the Agent of Singapore stated that: none of the above agreements affect[s] the rights of both Malaysia and Singapore to continue our reclamation works, which, however, must be conducted in accordance with international best practice and the rights and obligations of both parties under international law; 44. Considering that, having regard to the obligation of the parties not to aggravate the dispute pending its settlement, the parties have the obligation not to create an irremediable situation and in particular not to frustrate the purpose of the study to be undertaken by a group of independent experts; 45. Considering that Malaysia and Singapore share the same marine environment in and around the Straits of Johor; 46. Considering that, as this Tribunal has stated: SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law and that rights arise therefrom which the Tribunal may consider appropriate to preserve under article 290 of the Convention ( The MOX Plant Case, Order of 3 December 2001, paragraph 82); 47. Considering that Malaysia claims that Singapore, by initiating and carrying on major reclamation works in the areas concerned, has affected Malaysias rights to the natural resources within its territorial sea and violated its rights to the integrity of the marine environment in those areas; 48. Considering that Singapore maintains that the land reclamation works have not caused any significant impact on Malaysia and that the necessary steps were taken to examine possible adverse impacts on the surrounding waters; 49. Considering that an assessment concerning the impact of the land reclamation works on waters under the jurisdiction of Malaysia has not been undertaken by Singapore; 50. Considering that it cannot be excluded that, in the particular circumstances of this case, the land reclamation works may have adverse effects on the marine environment; 51. Considering that, in the view of the Tribunal, the record of this case shows that there was insufficient cooperation between the parties up to the submission of the Statement of Claim on 4 July 2003; 52. Considering that the last public sitting of the hearing showed a change in the attitude of the parties resulting in the commitments which the Tribunal has put on record, and that it is urgent to build on the commitments made to ensure prompt and effective cooperation of the parties in the implementation of their commitments; 53. Considering that, given the possible implications of land reclamation on the marine environment, prudence and caution require that Malaysia and Singapore establish mechanisms for exchanging information and assessing the risks or effects of land reclamation works and devising ways to deal with them in the areas concerned; 54. Considering that Malaysia and Singapore shall ensure that no action is taken which might prejudice the carrying out of any decision on the merits which the Annex VII arbitral tribunal may render; 55. Considering that, in accordance with article 89, paragraph 5, of the Rules, the Tribunal may prescribe measures different in whole or in part from those requested; 56. Considering that Malaysia and Singapore should each ensure that no action is taken which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal; 57. Considering that, pursuant to article 95, paragraph 1, of the Rules, each party is requested to submit to the Tribunal a report and information on compliance with any provisional measures prescribed; 58. Considering that, in the view of the Tribunal, it is consistent with the purpose of proceedings under article 290, paragraph 5, of the Convention that parties submit reports to the Annex VII arbitral tribunal, unless the arbitral tribunal decides otherwise; 59. Considering that, in the present case, the Tribunal sees no reason to depart from the general rule, as set out in article 34 of its Statute, that each party shall bear its own costs; 60. For these reasons, THE TRIBUNAL, 1. Unanimously, Prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional measures under article 290, paragraph 5, of the Convention: SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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Malaysia and Singapore shall cooperate and shall, for this purpose, enter into consultations forthwith in order to: (a) establish promptly a group of independent experts with the mandate (i) to conduct a study, on terms of reference to be agreed by Malaysia and Singapore, to determine, within a period not exceeding one year from the date of this Order, the effects of Singapores land reclamation and to propose, as appropriate, measures to deal with any adverse effects of such land reclamation;
(ii) to prepare, as soon as possible, an interim report on the subject of infilling works in Area D at Pulau Tekong; (b) exchange, on a regular basis, information on, and assess risks or effects of, Singapores land reclamation works; (c) implement the commitments noted in this Order and avoid any action incompatible with their effective implementation, and, without prejudice to their positions on any issue before the Annex VII arbitral tribunal, consult with a view to reaching a prompt agreement on such temporary measures with respect to Area D at Pulau Tekong, including suspension or adjustment, as may be found necessary to ensure that the infilling operations pending completion of the study referred to in subparagraph (a)(i) with respect to that area do not prejudice Singapores ability to implement the commitments referred to in paragraphs 85 to 87. 2. Unanimously, Directs Singapore not to conduct its land reclamation in ways that might cause irreparable prejudice to the rights of Malaysia or serious harm to the marine environment, taking especially into account the reports of the group of independent experts. 3. Unanimously, Decides that Malaysia and Singapore shall each submit the initial report referred to in article 95, paragraph 1, of the Rules, not later than 9 January 2004 to this Tribunal and to the Annex VII arbitral tribunal, unless the arbitral tribunal decides otherwise. 4. Unanimously, Decides that each party shall bear its own costs. JOINT DECLARATION OF JUDGES AD HOC HOSSAIN AND OXMAN 30.Our decisions to join in supporting the unanimous Order of the Tribunal are informed by a fundamental principle on which the Convention is built. The right of a State to use marine areas and natural resources subject to its sovereignty or jurisdiction is broad but not unlimited. It is qualified by the duty to have due regard to the rights of other States and to the protection and preservation of the marine environment. 31.Nowhere is the importance of this principle more evident than in and around a narrow strait bordered by each party throughout its length. We discern in the final statements of both parties, in particular that Malaysia accepts the importance of land reclamation and does not claim a veto over Singapores activities and that Singapore is prepared to make the specific commitments noted in the Order to accommodate Malaysias concerns, a sincere effort by each party to apply this principle in the circumstances of this case.
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32.What is most urgently required to protect the respective rights of the parties pending a decision by the Annex VII arbitral tribunal is the establishment of a joint process for addressing their most immediate concerns in this regard that builds on their respective statements and implements their duty to cooperate. Two elements are particularly important. The first is the establishment of a common base of information and evaluation regarding the effects of the land reclamation projects that can command the confidence of both parties. The second is the fact that the parties are expected to consult with a view to reaching a prompt agreement on such temporary measures with respect to Area D at Pulau Tekong, including suspension or adjustment, as may be found necessary to ensure that the infilling operations pending completion of the joint study with respect to that area do not prejudice Singapores ability to implement its commitments. 33.In view of our appointment to the Annex VII arbitral tribunal, we note that our respective decisions to vote in favor of the Order in no way prejudge our respective conclusions on any question that may come before that tribunal, including the question of the jurisdiction of the Annex VII arbitral tribunal to deal with the merits of the case, or any question relating to the admissibility of the claim or relating to the merits themselves.
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.E The Pedra Branca Case

Sovereignty over Pedra Branca / Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore, ICJ, 2008) International Court of Justice, Summary of the Judgment of 23 May 2008 (from http://www.icj-cij.org) Ed. Note: For a chart showing the location of the features, see page 35 below . Chronology of the procedure and submissions of the Parties (paras. 1-15) 1. By joint letter dated 24 July 2003, Malaysia and Singapore notified to the Registrar a Special Agreement between the two States, signed at Putrajaya on 6 February 2003 and having entered into force on 9 May 2003. In that Special Agreement they requested the Court to determine whether sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge belongs to Malaysia or Singapore. 2. Each of the Parties duly filed a Memorial, Counter-Memorial and Reply within the timelimits fixed by the Court, having regard to the provisions of the Special Agreement concerning written pleadings. The Special Agreement provided for the possible filing of a fourth pleading by each of the Parties. However, by a joint letter dated 23 January 2006, the Parties informed the Court that they had agreed that it was not necessary to exchange Rejoinders. 3. Since the Court included upon the Bench no judge of the nationality of either of the Parties, each Party proceeded to exercise the right conferred by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case: Malaysia chose Mr. Christopher John Robert Dugard and Singapore Mr. Sreenivasa Rao Pemmaraju. 4. Prior to her election as President of the Court, Judge Higgins, referring to Article 17, paragraph 2, of the Statute, recused herself from participating in the case. It therefore fell upon the Vice-President, Judge Al-Khasawneh, to exercise the functions of the presidency for the purposes of the case, in accordance with Article 13, paragraphs 1 and 2, of the Rules of Court. 5. Public hearings were held from 6 to 23 November 2007. Geography, general historical background and history of the dispute (paras. 16-36) Geography (paras. 16-19) 6. The Court first describes the geographical context of the dispute. 7. Pedra Branca/Pulau Batu Puteh is a granite island, measuring 137 m long, with an average width of 60 m and covering an area of about 8,560 sq m at low tide. It is situated at the eastern entrance of the Straits of Singapore, at the point where the latter open up into the South China Sea. 8. Pedra Branca/Pulau Batu Puteh is located at 1 19' 48" N and 104 24' 27" E. It lies approximately 24 nautical miles to the east of Singapore, 7.7 nautical miles to the south of the Malaysian state of Johor and 7.6 nautical miles to the north of the Indonesian island of Bintan. The names Pedra Branca and Batu Puteh mean white rock in Portuguese and Malay respectively. On the island stands Horsburgh lighthouse, which was erected in the middle of the nineteenth century.
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9. Middle Rocks and South Ledge are the two maritime features closest to Pedra Branca/Pulau Batu Puteh. Middle Rocks is located 0.6 nautical miles to the south and consists of two clusters of small rocks about 250 m apart that are permanently above water and stand 0.6 to 1.2 m high. South Ledge, at 2.2 nautical miles to the south-south-west of Pedra Branca/Pulau Batu Puteh, is a rock formation only visible at low tide. [See sketch-map No. 2] General historical background (paras. 20-29) 10. The Court then gives an overview of the complex historical background of the dispute between the Parties (only parts of which are referred to below). 11. The Sultanate of Johor was established following the capture of Malacca by the Portuguese in 1511. By the mid-1600s the Netherlands had wrested control over various regions in the area from Portugal. In 1795, the British established rule over several Dutch possessions in the Malay archipelago, but in 1814 returned the former Dutch possessions in the Malay archipelago to the Netherlands. 12. In 1819 a British factory (trading station) was established on Singapore Island (which belonged to Johor) by the East India Company, acting as an agent of the British Government in various British possessions. This exacerbated the tension between the United Kingdom and the Netherlands arising out of their competing colonial ambitions in the region. On 17 March 1824 a treaty was signed between the two colonial Powers. As a consequence of this Treaty, one part of the Sultanate of Johor fell within the British sphere of influence while the other fell within the Dutch sphere of influence. 13. On 2 August 1824 a Treaty of Friendship and Alliance (hereinafter the Crawfurd Treaty) was signed between the East India Company and the Sultan of Johor and the Temenggong (a Malay high-ranking official) of Johor, providing for the full cession of Singapore to the East India Company, along with all islands within 10 geographical miles of Singapore. 14. Since the death of Sultan Mahmud III of Johor in 1812, his two sons had claimed the succession to the Johor Sultanate. The United Kingdom had recognized as the heir the elder son Hussein (who was based in Singapore), whereas the Netherlands had recognized as the heir the younger son Abdul Rahman (who was based in Riau, present day Pulau Bintan in Indonesia). On 25 June 1825 Sultan Abdul Rahman sent a letter to his elder brother in which he donated to him the part of the lands assigned to Sultan Hussein in accordance with the 1824 Anglo-Dutch Treaty. 15. Between March 1850 and October 1851 a lighthouse was constructed on Pedra Branca/Pulau Batu Puteh. 16. In 1867 the Straits Settlements, a grouping of East India Company territories established in 1826 consisting, inter alia, of Penang, Singapore and Malacca, became a British crown colony. In 1885 the British Government and the State of Johor concluded the Johor Treaty, which gave the United Kingdom overland trade and transit rights through the State of Johor and responsibility for its foreign relations, as well as providing for British protection of its territorial integrity. 17. The Straits Settlements were dissolved in 1946; that same year the Malayan Union was created, comprising part of the former Straits Settlements (excluding Singapore), the Federated Malay States and five Unfederated Malay States (including Johor). From 1946, Singapore was administered as a British Crown Colony in its own right. In 1948 the Malayan Union became the Federation of Malaya, a grouping of British colonies and Malay States under the protection of the British. The Federation of Malaya gained independence from Britain in 1957, with Johor as a constituent state of the Federation. In 1958 Singapore became a self-governing colony. In 1963 the Federation of Malaysia was established, formed by the merger of the Federation of Malaya with the former British colonies of Singapore, Sabah and Sarawak. In 1965 Singapore left the Federation and became a sovereign and independent State. SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
Topic 6. Singapore and International Dispute Settlement History of the dispute (paras. 30-36)
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18. The Court notes that, on 21 December 1979 Malaysia published a map entitled Territorial Waters and Continental Shelf Boundaries of Malaysia (hereinafter the 1979 map). The map depicted the island of Pedra Branca/Pulau Batu Puteh as lying within Malaysias territorial waters. By a diplomatic Note dated 14 February 1980 Singapore rejected Malaysias claim to Pedra Branca/Pulau Batu Puteh and requested that the 1979 map be corrected. This led to an exchange of correspondence and subsequently to a series of intergovernmental talks in 1993-1994, which did not bring a resolution of the matter. During the first round of talks in February 1993 the question of the appurtenance of Middle Rocks and South Ledge was also raised. In view of the lack of progress in the bilateral negotiations, the Parties agreed to submit the dispute for resolution by the International Court of Justice. 19. The Court recalls that in the context of a dispute related to sovereignty over land , the date upon which the dispute crystallized is of significance. In the view of the Court, it was on 14 February 1980, the time of Singapores protest in response to Malaysias publication of the 1979 map, that the dispute as to sovereignty over Pedra Branca/Pulau Batu Puteh crystallized. 20. With regard to sovereignty over Middle Rocks and South Ledge, the Court finds that the dispute crystallized on 6 February 1993, when Singapore referred to these maritime features in the context of its claim to Pedra Branca/Pulau Batu Puteh during bilateral discussions between the Parties. Sovereignty over Pedra Branca/Pulau Batu Puteh (paras. 37-277) Positions of the Parties (paras. 37-42) 21. Malaysia states in its written pleadings that it has an original title to Pulau Batu Puteh of long standing. Pulau Batu Puteh is, and has always been, part of the Malaysian State of Johor. Nothing has happened to displace Malaysias sovereignty over it. Singapores presence on the island for the sole purpose of constructing and maintaining a lighthouse there with the permission of the territorial sovereign is insufficient to vest sovereignty in it. Malaysia further says that the island could not at any relevant time be considered as terra nullius and hence susceptible to acquisition through occupation. 22. Singapore claims that the selection of Pedra Branca as the site for building of the lighthouse with the authorization of the British Crown, a process which started in 1847, constituted a classic taking of possession titre de souverain. According to Singapore, title to the island was acquired by the British Crown in accordance with the legal principles of that time and has since been maintained by the British Crown and its lawful successor, the Republic of Singapore. While in Singapores Memorial and Counter-Memorial, no reference is made expressly to the status of Pedra Branca/Pulau Batu Puteh as terra nullius, the Court observes that in its Reply Singapore expressly indicated that [i]t is obvious that the status of Pedra Branca in 1847 was that of terra nullius. 23. In light of the foregoing, the Court notes that the issue is reduced to whether Malaysia can establish its original title dating back to the period before Singapores activities of 1847 to 1851, and conversely whether Singapore can establish its claim that it took lawful possession of Pedra Branca/Pulau Batu Puteh at some stage from the middle of the nineteenth century when the construction of the lighthouse by agents of the British Crown started.
Topic 6. Singapore and International Dispute Settlement The question of the burden of proof (paras. 43-45)
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24. On this question, the Court reaffirms that it is a general principle of law, confirmed by its jurisprudence, that a party which advances a point of fact in support of its claim must establish that fact. Legal status of Pedra Branca/Pulau Batu Puteh before the 1840s (paras. 46-117) Original title to Pedra Branca/Pulau Batu Puteh (paras. 46-80) 25. The Court starts by observing that it is not disputed that the Sultanate of Johor, since it came into existence in 1512, established itself as a sovereign State with a certain territorial domain under its sovereignty in part of south-east Asia. Having examined the arguments of the Parties, the Court notes that, from at least the seventeenth century until early in the nineteenth, it was acknowledged that the territorial and maritime domain of the Kingdom of Johor comprised a considerable portion of the Malaya Peninsula, straddled the Straits of Singapore and included islands and islets in the area of the Straits where Pedra Branca/Pulau Batu Puteh is located. 26. The Court then moves to ascertain whether the original title to Pedra Branca/Pulau Batu Puteh claimed by Malaysia is founded in law. 27. Of significance is the fact that Pedra Branca/Pulau Batu Puteh had always been known as a navigational hazard in the Straits of Singapore. Therefore the island evidently was not terra incognita. The fact that there is no evidence throughout the entire history of the old Sultanate of Johor that any competing claim had ever been advanced over the islands in the area of the Straits of Singapore is another significant factor. 28. The Court recalls the pronouncement made by the Permanent Court of International Justice (PCIJ) in the case concerning the Legal Status of Eastern Greenland, on the significance of the absence of rival claims. The PCIJ then noted that, while [i]n most of the cases involving claims to territorial sovereignty . . . there have been two competing claims to the sovereignty, in the case before it up to 1931 there was no claim by any Power other than Denmark to the sovereignty over Greenland. The PCIJ therefore concluded that, considering the inaccessible character of the uncolonized parts of the country, the King of Denmark and Norway displayed . . . in 1721 to 1814 his authority to an extent sufficient to give his country a valid claim to sovereignty, and that his rights over Greenland were not limited to the colonized area. 29. The Court observes that this conclusion also applies to the present case involving a tiny uninhabited and uninhabitable island, to which no claim of sovereignty had been made by any other Power throughout the years from the early sixteenth century until the middle of the nineteenth century. In that context the Court also notes that State authority should not necessarily be displayed in fact at every moment on every point of a territory, as shown in the Island of Palmas Case (Netherlands/United States of America). 30. The Court concludes from the foregoing that the territorial domain of the Sultanate of Johor covered in principle all the islands and islets within the Straits of Singapore, including the island of Pedra Branca/Pulau Batu Puteh. It finds that this possession of the islands by the Sultanate was never challenged by any other Power in the region and can in all the circumstances be seen as satisfying the condition of continuous and peaceful display of territorial sovereignty. The Court thus concludes that the Sultanate of Johor had original title to Pedra Branca/Pulau Batu Puteh. 31. Examining the ties of loyalty that existed between the Sultanate of Johor and the Orang Laut (the people of the sea), who were engaged in fishing and piratical activities in the Straits of Singapore, the Court finds that the descriptions, in contemporary official reports by British officials, of the nature and the level of relationship between the Sultan of Johor and the SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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Orang Laut confirm the ancient original title of the Sultanate of Johor to those islands, including Pedra Branca/Pulau Batu Puteh. 32. The Court then turns to the question whether this title was affected by the developments in the period 1824 to 1840. The legal significance of the 1824 Anglo-Dutch Treaty (paras. 81-101) 33. First the Court notes that documentary evidence conclusively shows that the Sultanate of Johor continued to exist as the same sovereign entity throughout the period 1512 to 1824, in spite of changes in the precise geographical scope of its territorial domain and vicissitudes of fortune in the Sultanate through the ages, and that these changes and vicissitudes did not affect the legal situation in relation to the area of the Singapore Straits, which always remained within the territorial domain of the Sultanate of Johor. 34. Second, the Court observes that it is common ground between the Parties that the 1824 Anglo-Dutch Treaty divided the region into two parts one belonging to the Dutch sphere of influence (the Riau-Lingga Sultanate under Abdul Rahman) and the other falling under the British sphere of influence (the Sultanate of Johor under Hussein). However, Singapore appears to claim that the Treaty left the entire Straits aside, and that Pedra Branca/Pulau Batu Puteh had remained terra nullius or had become terra nullius as a result of the division of the old Sultanate of Johor, thus leaving room for the lawful possession of Pedra Branca/Pulau Batu Puteh by the British during the period 1847-1851. 35. After careful analysis of the text of the 1824 Anglo-Dutch Treaty, the Court concludes that the Treaty was the legal reflection of a political settlement reached between the two colonial Powers to divide the territorial domain of the old Sultanate of Johor into two sultanates to be placed under their respective spheres of influence. Thus in this scheme there was no possibility for any legal vacuum left for freedom of action to take lawful possession of an island in between these two spheres of influence. 36. The general reference in Article 12 of the Treaty to the other Islands south of the Straights of Singapore would suggest that all the islands and islets within the Straits fell within the British sphere of influence. This naturally covered the island of Pedra Branca/Pulau Batu Puteh, which thus remained part of what continued to be called the Sultanate of Johor after the division of the old Sultanate. The relevance of the 1824 Crawfurd Treaty (paras. 102-107) 37. The Court considers the relevance to the dispute of the Crawfurd Treaty, by which the Sultan and Temenggong of Johor ceded the island of Singapore to the East India Company. The Court states that the Treaty cannot be relied on as establishing British recognition of prior and continuing sovereignty of the Sultanate of Johor over all other islands in and around the Strait of Singapore, including Pedra Branca/Pulau Batu Puteh, as Malaysia claimed. The Court however notes that this finding does not signify a contrario that the islands in the Straits of Singapore falling outside the scope of Article II of this Treaty were terrae nullius and could be subject to appropriation through lawful occupation either. This latter point can only be judged in the context of what legal effect the division of the old Sultanate of Johor had upon the islands in the area of the Straits of Singapore, in particular in light of the 1824 Anglo-Dutch Treaty and in light of the legal relevance, vel non, of the socalled letter of donation of 1825 sent from Sultan Abdul Rahman of Riau-Lingga to his brother Sultan Hussein of Johor. The legal significance of the letter of donation of 1825 (paras. 108-116) 38. The Court examines whether the letter of donation from Sultan Abdul Rahman to his brother Hussein had the legal effect of transferring the title to the territory included in that SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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letter of donation. The Court notes that the so-called letter of donation from Sultan Abdul Rahman to his brother Hussein merely confirmed the division agreed upon by the 1824 Anglo-Dutch Treaty and therefore was without legal effect. Conclusion (para. 117) 39. The Court concludes that Malaysia has established to its satisfaction that as of the time when the British started their preparations for the construction of the lighthouse on Pedra Branca/Pulau Batu Puteh in 1844, this island was under the sovereignty of the Sultan of Johor. Legal status of Pedra Branca/Pulau Batu Puteh after the 1840s (paras. 118-272) 40. The Court observes that in order to determine whether Malaysia has retained sovereignty over Pedra Branca/Pulau Batu Puteh following 1844 or whether sovereignty has since passed to Singapore, it needs to assess the relevant facts consisting mainly of the conduct of the Parties during that period by reference to the governing principles and rules of international law. Applicable law (paras. 118-125) 41. It notes that any passing of sovereignty might be by way of agreement between the two States in question. Such an agreement might take the form of a treaty, as with the 1824 Crawfurd Treaty and the 1927 Agreement referred to earlier. The agreement might instead be tacit and arise from the conduct of the Parties. In this matter international law does not impose any particular form but places its emphasis on the parties intentions. Sovereignty over territory might under certain circumstances pass as a result of the failure of the State which has sovereignty to respond to conduct titre de souverain of the other State or to concrete manifestations of the display of territorial sovereignty by the other State. Such manifestations of the display of sovereignty may call for a response if they are not to be opposable to the State in question. The absence of reaction may well amount to acquiescence. That is to say, silence may also speak, but only if the conduct of the other State calls for a response. Critical for the Courts assessment of the conduct of the Parties is the central importance in international law and relations of State sovereignty over territory and of the stability and certainty of that sovereignty. Because of that, any passing of sovereignty over territory on the basis of the conduct of the Parties must be manifested clearly and without any doubt by that conduct and the relevant facts. The process for the selection of the site for Horsburgh lighthouse (paras. 126-148) 42. In 1836 merchants and mariners expressed the wish to build one or more lighthouses in memory of James Horsburgh, a hydrographer to the East Indies Company. In November 1836 Pedra Branca was identified as a preferred location. In a letter sent to the Governor of Singapore on 1 March 1842 Pedra Branca was the only locality specifically mentioned. The Court notes that, in this first formal communication, the private commercial interests recognized that the British Government would have to carry the proposal into effect and provide the further funds. 43. In the ensuing correspondence between the subscribers and the British authorities several alternative locations were envisaged. By October 1844, the island of Peak Rock was identified as the most eligible site. In late November W. J. Butterworth, who had become Governor of the Straits Settlements in 1843, received replies to letters which he had written to the Sultan and Temenggong of Johor. Notwithstanding the Parties extensive research, the Governors letters have not been found, but the Parties did provide to the Court copies of the translations of the replies, both dated 25 November 1844, in which the Sultan and the
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Temenggong consented to the construction of a lighthouse in the Straits of Singapore, without mentioning the exact location. 44. Examining whether Johor ceded sovereignty over the particular piece of territory which the United Kingdom would select for the construction and operation of the lighthouse for the stated purpose or granted permission only to that construction and operation, the Court finds that the correspondence is not conclusive. 45. Given the lack of any written agreement relating to the modalities of the maintenance of the lighthouse and the island on which it was to be constructed, the Court considers that it is not in a position to resolve the issue about the content of any possible agreement reached in November 1844. The construction and commissioning of Horsburgh lighthouse, 1850-1851 (paras. 149-163) 46. The Court notes that the planning for the construction and the construction itself were in the hands of the Government Surveyor of Singapore, John Thomson, who was appointed as Architect of the project by Governor Butterworth. In December 1849 the Government Surveyor began organizing the construction. On 24 May 1850 the foundation stone was laid. 47. The Court takes note of the fact that no Johor authorities were present at the ceremony. There is no indication that they were even invited by the Governor to attend. That might suggest that the British and Singapore authorities did not consider it necessary to apprise Johor of their activities on Pedra Branca/Pulau Batu Puteh. The Temenggong of Johor visited the rock only once, nine days after the laying of the foundation stone, accompanied by 30 of his followers. 48. After describing the modalities of the construction and commissioning of the lighthouse, the Court notes that it cannot draw any conclusions with regard to sovereignty. Rather it sees those events as bearing on the issue of the evolving views of the authorities in Johor and in Singapore about sovereignty over Pedra Branca/Pulau Batu Puteh. The conduct of the Parties, 1852-1952 (paras. 164-191) 49. The Court first considers the Straits lights system and related British and Singapore legislation. It notes that as a matter of law, a lighthouse may be built on the territory of one State and administered by another State -- with the consent of the first State . A central element in Malaysias argument is that because Horsburgh lighthouse was built on an island over which Johor was sovereign all the actions of the British authorities and, following them, the Singaporean authorities, are simply actions pursued in the normal course of the operation of the lighthouse. 50. Singapore, by contrast, says that some of the actions are not matters simply of the operation of the lighthouse but are, in whole or part, acts titre de souverain. Singapore refers to legislation enacted by itself and its predecessors in title, which regulated the defraying of costs of establishing and operating the lighthouse, vesting control of it under various governmental bodies, and regulating the activities of persons residing, visiting and working on Pedra Branca/Pulau Batu Puteh. In the Courts view however the provisions invoked by Singapore do not as such demonstrate British sovereignty over the areas to which they apply, because they applied equally to lighthouses which are undoubtedly on Johor territory as well as to that on Pedra Branca/Pulau Batu Puteh and, moreover, say nothing expressly about sovereignty. 51. Turning to the various constitutional developments invoked by Malaysia, including the 1927 Straits Settlement and Johor Territorial Waters Agreement, the Court considers that they do not help resolve the question of sovereignty over Pedra Branca/Pulau Batu Puteh. It observes that the purpose of the Agreement was to retrocede to Johor certain areas that had been ceded by Johor to the East India Company in 1824 and were all within 10 miles of the main SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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island of Singapore. They could not have included Pedra Branca/Pulau Batu Puteh, as the island was not within the scope of the Agreement. 52. With respect to Malaysias contention that the Temenggong continued to control fishing in the neighbourhood of Pedra Branca/Pulau Batu Puteh after the construction of the lighthouse, as shown by an exchange of correspondence between Johor and the British authorities in Singapore in 1861, the Court observes that the letters relate to events occurring within 10 miles of the island of Singapore. Therefore nothing can be made of the fact that the Singapore authorities did not in that context refer to jurisdiction over the waters of Pedra Branca/Pulau Batu Puteh. The 1953 correspondence (paras. 192-230) 53. The Court notes that on 12 June 1953 the Colonial Secretary of Singapore wrote to the British Adviser to the Sultan of Johor, that he was directed to ask for information about the rock some 40 miles from Singapore known as Pedra Branca in the context of the determination of the boundaries of the Colonys territorial waters. Acknowledging that in the case of Pulau Pisang, an island which is also outside the Treaty limits of the colony it was clear that there was no abrogation of the sovereignty of Johore, the Secretary asked to be informed of any document showing a lease or grant of the rock or whether it ha[d] been ceded by the Government of the State of Johore or in any other way disposed of. Later in that month the Secretary to the British Adviser to the Sultan of Johor advised the Colonial Secretary that he had passed the letter to the State Secretary of Johor, who would doubtless wish to consult with the Commissioner for Lands and Mines and Chief Surveyor and any existing archives before forwarding the views of the State Government to the Chief Secretary. In a letter dated 21 September 1953, the Acting State Secretary of Johor replied that the Johore Government [did] not claim ownership of Pedra Branca. 54. The Court considers that this correspondence and its interpretation are of central importance for determining the developing understanding of the two Parties about sovereignty over Pedra Branca/Pulau Batu Puteh. 55. The Court notes that the Singapore letter of 12 June 1953 seeks information about the rock as a whole and not simply about the lighthouse in light of the determination of the Colonys territorial waters, a matter which is dependent on sovereignty over the island. The Court notes that the letter had the effect of putting the Johor authorities on notice that in 1953 the Singapore authorities understood that their predecessors thought that Pedra Branca/Pulau Batu Puteh had been ceded gratuitously by the Sultan and the Temenggong to the East India Company. The Court reads the letter as showing that the Singapore authorities were not clear about events occurring over a century earlier and that they were not sure that their records were complete. 56. Turning to the reply from the Acting State Secretary of Johor, the Court dismisses the Malaysian contention that, under the provisions of the Johor Agreement between the British Crown and the Sultan of Johor and the Federation of Malaya Agreement between the British Crown and nine Malay states (including Johor), the Acting State Secretary was definitely not authorized and did not have the legal capacity to write the 1953 letter, or to renounce, disclaim, or confirm title of any part of the territories of Johore. 57. The Court considers that the Johor Agreement is not relevant since the correspondence was initiated by a representative of Her Britannic Majestys Government which at that time was not to be seen as a foreign State; further, it was the British Adviser to the Sultan of Johor who passed the initial letter on to the Secretary of State of the Sultanate. The Court is also of the view that the Federation of Malaya Agreement does not assist the Malaysian argument because the action of responding to a request for information is not an exercise of executive authority. Moreover, the failure of Malaysia to invoke this argument, both throughout the whole period of bilateral negotiations with Singapore and in the proceedings SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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until late in the oral phase, lends support to the presumption of regularity invoked by Singapore. 58. Examining the 1953 letters content, the Court expresses the view that the Johor reply is clear in its meaning: Johor does not claim ownership over Pedra Branca/Pulau Batu Puteh. That response relates to the island as a whole and not simply to the lighthouse. When the Johor letter is read in the context of the request by Singapore for elements of information bearing on the status of Pedra Branca/Pulau Batu Puteh, as discussed above, it becomes evident that the letter addresses the issue of sovereignty over the island. The Court accordingly concludes that Johors reply shows that as of 1953 Johor understood that it did not have sovereignty over Pedra Branca/Pulau Batu Puteh. In light of Johors reply, the authorities in Singapore had no reason to doubt that the United Kingdom had sovereignty over the island. 59. The steps taken by the Singapore authorities in reaction to the final response were not known to the Johor authorities and have limited significance for the Courts assessment of any evolving understanding shared by the Parties. The case file shows that, on receipt of the Johor reply, the Colonial Secretary of Singapore sent an internal memorandum to the Attorney-General saying that he thought that [o]n the strength of [the reply], we can claim Pedra Branca . . . The Attorney-General stated that he agreed. The Singapore authorities, so far as the case file shows, took no further action. They had already received related communications from London, to which the Court now turns. The conduct of the Parties after 1953 (paras. 231-272) 60. The Court first takes into consideration Singapores contention that it and its predecessors have exercised sovereign authority over Pedra Branca/Pulau Batu Puteh by investigating shipwrecks within the islands territorial waters. Concluding that this conduct gives significant support to the Singapore case, the Court also recalls that it was only in June 2003, after the Special Agreement submitting the dispute to the Court had come into force, that Malaysia protested against this category of Singapore conduct. 61. After examining the argument of Singapores exercise of exclusive control over visits to Pedra Branca/Pulau Batu Puteh and the use of the island by officials from Singapore as well as from other States, including Malaysia, the Court states that many of the visits by Singaporean personnel related to the maintenance and operation of the lighthouse and are not significant in the case. However it finds that the conduct of Singapore with respect to permissions granted or not granted to Malaysian officials in the context of a survey of the waters surrounding the island in 1978 is to be seen as conduct titre de souverain and does give significant support to Singapores claim to sovereignty over Pedra Branca/Pulau Batu Puteh.. 62. Both Parties contend that their naval patrols and exercises around Pedra Branca/Pulau Batu Puteh since the formation of their respective navies constitute displays of their sovereign rights over the island. The Court does not see this activity as significant on one side or the other. It observes that naval vessels operating from Singapore harbour would as a matter of geographical necessity often have to pass near Pedra Branca/Pulau Batu Puteh. 63. As for Singapores claim that the flying of the British and Singapore ensigns from Horsburgh lighthouse from the time of its commissioning to this day is also a clear display of sovereignty, the Court states that the flying of an ensign is not in the usual case a manifestation of sovereignty. It considers that some weight may nevertheless be given to the fact that Malaysia did not protest against the ensign flying at Horsburgh lighthouse. 64. The Court then looks into the installation of a relay station by the Singapore Navy, in May 1977, for a military rebroadcast station on Pedra Branca/Pulau Batu Puteh. Singapore contends that the installation was carried out openly. Malaysia asserts that the installation was undertaken secretly and that it became aware of it only on receipt of Singapores SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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Memorial. The Court is not able to assess the strength of the assertions made on the two sides about Malaysias knowledge of the installation. The conduct is inconsistent with Singapore recognizing any limit on its freedom of action. 65. As for the plans to reclaim areas around Pedra Branca/Pulau Batu Puteh, which had been considered on various occasions in the 1970s by the Port of Singapore Authority, the Court observes that while the reclamation was not proceeded with and some of the documents were not public, the tender advertisement was public and attracted replies. Further the proposed action, as advertised, did go beyond the maintenance and operation of the lighthouse. It is conduct which supports Singapores case. 66. In 1968 the Government of Malaysia and the Continental Oil Company of Malaysia concluded an agreement authorizing petroleum exploration in the whole of the area of the continental shelf off the east coast of West Malaysia. Given the territorial limits and qualifications in the concession and the lack of publicity of the co-ordinates, the Court does not consider that weight can be given to the concession. 67. By legislation of 1969 Malaysia extended its territorial waters from 3 to 12 nautical miles. Malaysia contends that the legislation extended Malaysian territorial waters to and beyond Pulau Batu Puteh. The Court notes however that the said legislation does not identify the areas to which it is to apply except in the most general sense: it says only that it applies throughout Malaysia. 68. Malaysia invokes several territorial agreements to support its claim to sovereignty over Pedra Branca/Pulau Batu Puteh: the Indonesia Malaysia Continental Shelf Agreement of 1969, the Territorial Sea Agreement of 1970 and the Indonesia Singapore Territorial Sea Agreement of 1973. 69. The Court does not consider that those agreements can be given any weight in respect of sovereignty over Pedra Branca/Pulau Batu Puteh, since they did not cover this issue. The Court similarly does not see as significant for the purposes of the proceedings the cooperation in the Straits of Malacca and Singapore adopted in 1971 by Indonesia, Malaysia and Singapore, which was invoked by Singapore. 70. The Court also dismisses as non-authoritative and essentially descriptive certain official publications of the Government of Singapore describing its territory, which in the view of Malaysia are notable for their absence of any reference to Pedra Branca/Pulau Batu Puteh among the approximately 60 islands that are included in those descriptions. 71. Finally, the Court turns to nearly a hundred official maps submitted by the Parties. Malaysia emphasizes that of all the maps before the Court only one published by the Singapore Government included Pedra Branca/Pulau Batu Puteh as within its territory and that map was not published until 1995. The Court recalls that Singapore did not, until 1995, publish any map including Pedra Branca/Pulau Batu Puteh within its territory. But that failure to act is in the view of the Court of much less weight than the weight to be accorded to the maps published by Malaya and Malaysia between 1962 and 1975. The Court concludes that those maps tend to confirm that Malaysia considered that Pedra Branca/Pulau Batu Puteh fell under the sovereignty of Singapore. Conclusion (paras. 273-277) 72. The Court is of the opinion that the relevant facts, including the conduct of the Parties, reflect a convergent evolution of the positions of the Parties regarding title to Pedra Branca/Pulau Batu Puteh. The Court concludes, especially by reference to the conduct of Singapore and its predecessors titre de souverain, taken together with the conduct of Malaysia and its predecessors including their failure to respond to the conduct of Singapore and its predecessors, that by 1980 sovereignty over Pedra Branca/Pulau Batu Puteh had passed to Singapore. SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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73. For the foregoing reasons, the Court concludes that sovereignty over Pedra Branca/Pulau Batu Puteh belongs to Singapore. Sovereignty over Middle Rocks and South Ledge (paras. 278-299) Arguments of the Parties (paras. 278-287) 74. The Court notes that Singapores position is that sovereignty in respect of Middle Rocks and South Ledge goes together with sovereignty over Pedra Branca/Pulau Batu Puteh. Thus, according to Singapore, whoever owns Pedra Branca/Pulau Batu Puteh owns Middle Rocks and South Ledge, which, it claims, are dependencies of the island of Pedra Branca/Pulau Batu Puteh and form with the latter a single group of maritime features. Malaysia on the other hand argues that these three features do not constitute one identifiable group of islands in historical or geomorphological terms, and adds that they have always been considered as features falling within Johor/Malaysian jurisdiction. Legal status of Middle Rocks (paras. 288-290) 75. The Court first observes that the issue of the legal status of Middle Rocks is to be assessed in the context of its reasoning on the principal issue in the case. It recalls that it has reached the conclusion that sovereignty over Pedra Branca/Pulau Batu Puteh rests with Singapore under the particular circumstances surrounding the case. However these circumstances clearly do not apply to other maritime features in the vicinity of Pedra Branca/Pulau Batu Puteh, i.e., Middle Rocks and South Ledge. None of the conduct of the Parties reviewed in the previous part of the Judgment has any application to the case of Middle Rocks. 76. The Court therefore finds that original title to Middle Rocks should remain with Malaysia as the successor to the Sultan of Johor. Legal status of South Ledge (paras. 291-299) 77. With regard to South Ledge, the Court however notes that there are special problems to be considered, inasmuch as South Ledge presents a special geographical feature as a low-tide elevation. 78. The Court recalls Article 13 of the United Nations Convention on the Law of the Sea and considers its previous jurisprudence, the arguments of the Parties, as well as the evidence presented before it. 79. The Court notes that South Ledge falls within the apparently overlapping territorial waters generated by the mainland of Malaysia, by Pedra Branca/Pulau Batu Puteh and by Middle Rocks. It recalls that in the Special Agreement and in the final submissions it has been specifically asked by the Parties to decide the matter of sovereignty separately for each of the three maritime features. At the same time the Court observes that it has not been mandated by the Parties to draw the line of delimitation with respect to the territorial waters of Malaysia and Singapore in the area in question. 80. In these circumstances, the Court concludes that sovereignty over South Ledge, as a low-tide elevation, belongs to the State in the territorial waters of which it is located. Operative clause (para. 300) For these reasons, THE COURT, (1) By twelve votes to four, SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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Finds that sovereignty over Pedra Branca/Pulau Batu Puteh belongs to the Republic of Singapore; IN FAVOUR: Vice-President, Acting President, Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Tomka, Keith, Seplveda-Amor, Bennouna, Skotnikov; Judge ad hoc Sreenivasa Rao; AGAINST: Judges Parra-Aranguren, Simma, Abraham; Judge ad hoc Dugard; (2) By fifteen votes to one, Finds that sovereignty over Middle Rocks belongs to Malaysia; IN FAVOUR: Vice-President, Acting President, Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Seplveda-Amor, Bennouna, Skotnikov; Judge ad hoc Dugard; AGAINST: Judge ad hoc Sreenivasa Rao; (3) By fifteen votes to one, Finds that sovereignty over South Ledge belongs to the State in the territorial waters of which it is located. IN FAVOUR: Vice-President, Acting President, Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Seplveda-Amor, Bennouna, Skotnikov; Judges ad hoc Dugard, Sreenivasa Rao; AGAINST: Judge Parra-Aranguren. Judge Ranjeva appends a declaration to the Judgment of the Court; Judge Parra-Aranguren appends a separate opinion to the Judgment of the Court; Judges Simma and Abraham append a joint dissenting opinion to the Judgment of the Court; Judge Bennouna appends a declaration to the Judgment of the Court; Judge ad hoc Dugard appends a separate opinion to the Judgment of the Court; Judge ad hoc Sreenivasa Rao appends a separate opinion to the Judgment of the Court.
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.F Delimiting the Maritime Boundary around Pedra Branca

1. The ICJ was only requested to decide who had sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge. It was not asked to delimit the maritime boundary around the three features. The three features are located between the State of Johor and the Indonesian island of Bintan. Therefore, a three party agreement will be necessary to demarcate the boundary. 2. The delimitation of maritime boundaries is governed by the 1982 UN Convention on the Law of the Sea (1982 UNCLOS). All three States are parties to the Convention and are bound by its provisions. Furthermore, any dispute with respect to the interpretation or application of the provisions of the Convention is subject to the compulsory binding dispute settlement provisions in Part XV of the 1982 UNCLOS. 3. The main provision governing the delimitation of the boundary will be Article 15 on the delimitation of the territorial sea, which is referred to as the equidistance special circumstances rule. It reads as follows: Article 15. Delimitation of the territorial sea between States with opposite or adjacent coasts Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith. 4. With respect to article 15, one of the issues that will have to be considered is whether the location of the three small features between Johor and Bintan are special circumstances which justify their not being given full effect. Several decisions of the International Court of Justice on the delimitation of maritime boundaries suggest that small islands or lowtide elevations should be not be given full effect if they would have a disproportionate effect on the boundary between two larger features. Therefore, the boundary line is demarcated by adjusting the equidistance line to give only partial effect to the small islands or low tide elevations. In some circumstances, only a small enclave is permitted around the small islands. 5. A second issue that may have to be resolved is which of the three States has sovereignty over South Ledge, a low tide elevation. A low-tide elevation is a natural feature that is below water at high tide but is above water at low tide. The Court ruled that sovereignty over South Ledge belongs to the State in the territorial waters of which it is located. Once sovereignty is determined it will also have to be decided whether South Ledge can be used as a base point for determining the equidistance line. 6. A third issue which may have to be considered is whether Pedra Branca and/or Middle Rocks are rocks within the meaning of Article 121(3) so SINGAPORE LEGAL SYSTEM 2009 Law Part 1. International Law and Singapore
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that they will be unable to generate an exclusive economic zone or continental shelf of their own. Article 121 reads as follows: Article 121. Regime of islands 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. 7. A fourth issue that could arise relates to the determination of base points from which to measure the territorial sea and from which to determine the baseline. A dispute could arise if Malaysia declares straight baseline along the coast of Johor. Singapore or Indonesia could challenge the legality of the Malaysian baselines if they believe they are not in conformity with 1982 UNCLOS. The provisions on normal baselines and straight baselines are set out below. Article 5. Normal baseline Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the lowwater line along the coast as marked on large-scale charts officially recognized by the coastal State. Article 7. Straight baselines 1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. . . 3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. 4. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition. 5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.
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Topic 6 International Dispute Settlement and Singapore

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SINGAPORE LEGAL SYSTEM 2009 PART 1.

Topic 6. International Dispute Settlement and Singapore

Topic 6. Singapore and International Dispute Settlement

.A Notes and Discussion Questions

Land Reclamation Case

Topic 6. Singapore and International Dispute Settlement

Topic 6. Singapore and International Dispute Settlement

Pedra Branca Case

Topic 6. Singapore and International Dispute Settlement

Delimitation of maritime boundaries near Pedra Branca

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement

(iv) arbitration; and

Topic 6. Singapore and International Dispute Settlement

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement Adjudication

Topic 6. Singapore and International Dispute Settlement

.C Tommy Koh, The Land Reclamation Case: Thoughts and Reflections

Topic 6. Singapore and International Dispute Settlement

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement Lessons Learnt

Topic 6. Singapore and International Dispute Settlement

.D The Land Reclamation Case

Topic 6. Singapore and International Dispute Settlement

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement

Topic 6. Singapore and International Dispute Settlement

Topic 6. Singapore and International Dispute Settlement

Topic 6. Singapore and International Dispute Settlement

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement

.E The Pedra Branca Case

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement

Topic 6. Singapore and International Dispute Settlement

SINGAPORE LEGAL SYSTEM 2009 Law

Part 1. International Law and Singapore

Topic 6. Singapore and International Dispute Settlement

Topic 6. Singapore and International Dispute Settlement

Topic 6. Singapore and International Dispute Settlement

Topic 6. Singapore and International Dispute Settlement

Topic 6. Singapore and International Dispute Settlement

Topic 6. Singapore and International Dispute Settlement