|With one territorial dispute resolved, Malaysia is gearing up to face another at the International Court of Justice. CAROLYN HONG looks at the Pulau Batu Puteh dispute.|
January 2, 2003
IN hindsight, it should have been easy to foresee that the public reaction in Malaysia after the Sipadan/Ligitan victory would not have focused on Indonesia.
That would have been unseemly gloating, and besides, even the most triumphant victory quickly becomes stale news. The next challenge beckons, and it's Pulau Batu Puteh, the football-field-sized island off Johor, which is claimed by Singapore.
The only surprising thing, perhaps, was the speed with which the spotlight turned to Singapore and the intensity of it.
Singapore first laid claim to Pulau Batu Puteh around 1979, along with two adjacent rocky outcrops - Middle Rocks and South Ledge - which are so small that they are referred to as mere "marine features".
And again, in hindsight, all the fuss turned out to be a good thing. It pushed Singapore to finally commit to signing the Special Agreement to begin the process of bringing the dispute to the International Court of Justice.
The Special Agreement is necessary because neither Malaysia nor Singapore accepts the compulsory jurisdiction of the ICJ. It spells out the dispute, and provides a time frame for the various legal processes such as the submission of written pleadings.
After the Special Agreement is signed, it will have to be ratified by both Governments before being submitted to the ICJ at The Hague.
Singapore had inexplicably dragged its feet in responding with suitable dates for signing, to the bafflement of Wisma Putra which had made several requests.
Singapore's Foreign Minister Shunmugam Jayakumar has now proposed January, and it's up to Malaysia to accept.
If the Special Agreement is signed and submitted to the ICJ within the next few months, the case could be heard in three years.
The fluster over Pulau Batu Puteh is, of course, linked to Malaysia's Sipadan/Ligitan victory at the ICJ on Dec 17. That verdict was a reminder of unfinished business but more than that, it was seen as having a significant impact on this case.
The judgment is relevant but not necessarily in support of Singapore's position vis-a-vis Pulau Batu Puteh, called Pedra Branca by the Singaporeans. In fact, it does not significantly affect either party's legal position.
The ICJ decision was notable for its emphasis on "effectivites", which refers to the exercise of authority in the capacity of a sovereign on disputed territory. But this does not help Singapore's case.
In the judgment awarding Sipadan and Ligitan to Malaysia, the turning point was Malaysia's (and its predecessor's) administration of the islands for more than a century, without protest from any party.
Malaysia and its colonial ruler, Great Britain, had considered themselves sovereign over the islands, and behaved accordingly. They made laws, enforced them, and adjudicated disputes.
The authorities then never doubted that they had a legal title to the islands, dating back to the Sulu Sultanate. Indeed, it came as a bit of a shock to Malaysia when the ICJ found that the treaty evidence was too vague and unspecific to confer it a treaty-based title.
But in the case of Pulau Batu Puteh, the Sultan of Johor in 1844 allowed the British to construct and upkeep the Horsburgh lighthouse there, solely with permission.
(The island had been part of the Johor Riau-Lingga Sultanate since the early 16th century.) The lighthouse was completed in 1851, and is today maintained by Singapore's port authority, along with four other lighthouses. Another one of these four lighthouses is also on Malaysian territory - Pulau Pisang in the Straits of Malacca.
In 1824, the Sultan of Johor ceded Singapore and the surrounding 10 nautical miles to the East India Company. This did not include Pulau Batu Puteh, Middle Rocks or South Ledge.
Pulau Batu Puteh is a good 25 nautical miles from Singapore, and only 7.7 nautical miles from Johor.
Furthermore, the ICJ has clearly stated that the construction and operation of lighthouses and navigational aids are not normally considered as a manifestation of State authority, although they may be legally relevant in the case of very small islands.
After the lighthouse in 1851, the next major structures to be built were the communications tower in 1989 and helipad in 1992. These do not strengthen Singapore's case.
The ICJ, in the Sipadan/Ligitan judg-ment, made that clear when it disregarded all activity undertaken on the islands after the dispute had crystallised in 1969.
As for Pulau Batu Puteh, the critical date will be decided by the court but it is likely to be around 1979, when Malaysia published its continental shelf map showing the island as Malaysian. Singapore protested in 1980.
Furthermore, Malaysia had sent official protests each time major construction was undertaken by Singapore.
Both countries will, of course, have a large number of maps to back their case. But as in the Sipadan/Ligitan case, maps are not necessarily the strongest evidence.
Many of these maps would have been produced for specific purposes such as marine navigation and, as such, have limited legal value for territorial disputes. Besides, not all maps would have been accurately drawn.
Their legal value, says the ICJ, is that they constitute information which varies in accuracy from case to case.
They cannot constitute a territorial title, that is "a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights". Only certain maps have such legal force; for instance, those annexed to official treaties.
And both countries will, of course, also have historical records.
Pulau Batu Puteh, tiny as it is, is sig-nificant for its strategic position, impact on the delimitation of territorial sea boun-daries and, most of all, for national pride.
This case can be expected to be more complex than the Sipadan/Ligitan matter which, by comparison, was an open-andshut case.
Wisma Putra has been working on this for more than a decade. The first bilateral negotiations were held in 1993, and the second in 1994. Both talks broke down. In 1995 and 1996, negotiations were held on the referral of the case to the ICJ.
In April 1998, the text of the Special Agreement was agreed upon. However, the Sipadan/Ligitan case came up first, and Pulau Batu Puteh went on the backburner.
Its time has now arrived. It's worth remembering that once the case has gone to the ICJ, there's no turning back.