Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh,
Middle Rocks and South Ledge (Malaysia v. Singapore)
The present decision of the International Court of Justice (ICJ) deals with the sovereignty of three land features located at the mouth of the straits of Singapore, between Malaysia to the north and Indonesia to the south. Sovereignty is defined as supreme power or authority and determining which state has that power over specific locations is a topic within international law. Figure 1 illustrates the location of the three land features, which will be called Pedra Branca/Pulau Batu Putech (translates to “White Rock” from the Portuguese and Malaysian, respectively), Middle Rocks, and South Ledge within this evaluation. This case was precipitated by a claim by both Malaysia and Singapore as to sovereignty over these three land features. Ultimately, by applying three different legal analyses found within sovereignty law the ICJ awarded Pedra Branca to Singapore, Middle Rocks to Malaysia, and South Ledge to whatever state that controls the territorial waters where it is located, but the court lodged no official opinion as to which state that was.
Pedra Branca/Pulau Batu Putech is a granite island about 24 nautical miles east of Singapore and 7.7 nautical miles south of Malaysia. Horsburgh Lighthouse was built on the rock in the middle of the nineteenth century. The primary argument that Malaysia used to claim this rock was based a historical legal claim. Specifically, Malaysia stated that the Sultan of Johore had exercised sovereignty over Pedra Branca/Pulau Batu Putech since 1513. The sultanate sovereign basis of this claim was known as the Johnore-Riau-Lingga Sultantate which was founded by Sultan Mahmud after fleeing the Portuguese when Malacca, a Malaysian state in the southern region of the Malay Pennisula was overtaken in 1511. From this point forward, Malaysia argued that based on state succession, Pedra Branca/Pulau Batu Puteh had always been under control of the Federation of Malaya that ultimately became the Sultantate of Johore and that region, in turn, ultimately became an independent state in 1957. Although acknowledging the presence of the lighthouse, which Malaysia conceded was erected and is to the present day operated by Singapore, the state took the position was that this did not impact the original line of title to the rock.
In contrast, Singapore based their claim on treaty-based and successor-based authority. They cite the Anglo-Dutch treaty, which withdrew the Netherlands opposition to the occupation of the island of Singapore by the United Kingdom, as providing the right to the rock to Singapore. Furthermore, the fact that the Honorable East Indian Company (HEIC), the legal successor to Singapore, built and maintained the Horsburgh Lighthouse on Pedra Branca/Pulau Batu Puteh, also is cited as providing key support to their arguments that the rock is legally within part of the Singapore territory. Singapore also provides further justification in the form of the importance of the rock from a defensive and navigational point of view to the location of the primary island further down the Straits of Singapore. In general, it is interesting to note that critical date in this dispute, that is, the date that Malaysia and Singapore had both made affirmative claim to the same territory, was not until 1979. Furthermore, Singapore placed significant emphasis on the fact that there was no challenge to their sovereignty from 1847 when they first began building the lighthouse until the critical date of this dispute in 1979. Finally, Singapore focused the Court attention on Malaysia’s own publication of six maps from 1962 to 1979 that had attributed at least Pedra Branca/Pulau Batu Puteh to Singapore. Based on these actions and a lack of Malaysian reaction to Singapore’s development of Pedra Branca/Pulau Batu Puteh, Singapore asserts their sovereign rights to the rocky island.
As for Middle Rocks and South Ledge, Singapore provides the same basis for sovereignty as it argued for Pedra Branca/Pulau Batu Puteh. Middle Rocks are two clusters of rocks about .6 nautical miles from Pedra Branca/Pulau Batu Puteh, while South Ledge is a rock, submerged at high tide that is about 2.1 miles from Pedra Branca/Pulau Batu Puteh. Based on these close geological relationships, Singapore asserts that whatever sovereign state owns Pedra Branca/Pulau Batu Puteh would also necessarily own Middle Rocks and South Ledge as well, as they form a single group of maritime features. Specifically, they state that Middle Rocks and South Ledge are dependencies of the Pedra Branca/Pulau Batu Puteh island and thus are rightfully grouped together into one. To counter this position, Malaysia stated that there was no basis for putting the three maritime features together, but were instead separate and distinct features that had in any case always belonged to Johor, through the historical claim dating back to the sixteenth century. Because all three features had always belonged to Johor, there was the historical basis for the current the sovereignty by Malaysia under the international legal basis of state succession. It is also interesting to note that the small population on the larger islands within the Straits of Singapore, a population known as the Orang Laut, has agreed they are governed by the Sultan of Johor, which lends support to finding of sovereignty to Malaysia over any maritime feature, however small and however non-populated, within that body of water.
In following a traditional approach for determining sovereignty, the ICJ first had to rule as to who had the historic title to Pedra Blanca/Pulau Batu Puteh. In this case, the Court determined that Malaysia did hold the historic title due to the location of the rock island within the Johor sultanate. It further noted that the rock had been long known as navigational hazard within the strait and thus could not fall within a “terra nullius” classification, a categorization that was asserted by Singapore and could have successfully undermined the state succession position of Malaysia. Nevertheless, the Court went on to consider the argument of Singapore as to the “continuous sovereignty over the island while Malaysia has done nothing.” Indeed, the Court found that Malaysia’s lack of protest or assertion of any right and their publishing of Singapore’s rights within maps prior to 1979 were fatal to their case. Through the activities including the building and maintenance of the lighthouse, Singapore had obtained sovereign rights over the rock under the doctrine of à titre de souverain. Thus, it was clear that Malaysia, although having original rights to the maritime features at issue, had forfeited these rights by acquiescing to the HEIC activities or, in other words, Singapore had earned derivative title. In particular, the Court found that there was a “converging evolution of the positions of the Parties” such that by 1980, Singapore held sovereignty of Pedra Blanca/Pulau Batu Puteh.
As for Middle Rocks, the Court found that the historic determination remained the governing one for sovereignty. That is because the activities surrounding the lighthouse and the various maps did not apply to Middle Rocks but only to Pedra Blanca. Accordingly, based on the historical legal claim founded on the Johor sultanate onward, Middle Rocks still belonged to Malaysia. As for South Ledge, the Court found it highly significant that it was only present during low tide, and therefore felt the most appropriate sovereignty award would be based upon a territorial seas analysis. Ultimately, because an analysis of the ownership of the waters was not before the Court, they stated that the ownership of the South Ledge would need a determination of the as of yet undetermined maritime rights.
Therefore, in order to determine the conflicting sovereignty claims of Malaysia and Singapore over three maritime features, specifically Pedra Blanca/Pulau Batu Puteh the ICJ used three different bases. Under the activities regarding the use of the island, the Court found that Singapore by 1980 had transferred sovereignty to itself from the historic claim of Malaysia for Pedra Blanca/Pulau Batu Puteh. Because these activities had not impacted the second feature, Middle Rocks, Malaysia maintained the historic claim to sovereignty of this feature based on its inclusion in Malaysian territory since the reign of Sultan Malmud in 1511. Finally, South Ledge, because of its appearance only during low tide, was found to be too tied to maritime rights for inclusion in the historic territory of Malaysia and thus concrete determination of its sovereignty would have to await an analysis of a maritime ownership of that area.
Although admirable in its compromise, the ICJ approach did not particularly clear up position under international law for future sovereignty determinations of this nature. From a public relations standpoint, the post-verdict reaction was mixed, a relatively predictable reaction given that each party was awarded sovereignty over at least a portion of the territory at issue. A further contributor to the lack of clarity is that beyond the basic decision of the Court, there were a number of additional opinions of specific judges, which also reflects the compromising nature of the ultimate decision and muddies the ability to apply this to future situation. Although the bringing of the relatively long-held dispute to a diplomatic conclusion was lauded as an example of the maturing approach to problems of this type in Asia and the “triumph of the rule of law” it is also likely that tensions will not be reduced given the outstanding issue of South Ledge. It is observed that international courts of this type tend to result in decisions like this, which are useful under the present factual pattern to solve the exact issue at hand, but do not function particularly well as guidance for factual situations that are similar and could occur in the future. This is in part due to a tendency of the international courts to focus on resolving the issue before it rather than attempting to clear up the law such that future controversies are avoided. The resolution resulting from ICJ decisions is not always satisfactory either. For example, Malaysia and Indonesia continue to have issues over Sipadan and Ligitan despite a 2002 ICJ decision that awarded the islands to Malaysia. However, this opinion cannot be read without the realization that disputes of this type are extremely rare and will only continue to become rarer with the passage of time, so less than clear precedent in this area is not of as great of an issue and will not have as significant of a legal impact as would be if such disputes were more common.
Bibliography
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Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks And South Ledge (Malaysia v. Singapore) (Judgment) [2008] ICJ Report 12.
