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CHAPTER I

INTRODUCTION

1.1 Background

Territory is one of the most important elements of a state, because it is a

space where the state runs its power. Through the history international relations,

conflicts were arising because of the desire to expand the territory or perhaps

because of the unclear boundary between two or more countries. Conflicts also

occur in the region of Southeast Asia, the dispute between the countries of this

region are more about territorial boundaries and the status of the islands.

Therefore, to resolve territorial disputes, a legal mediator such as the

International Court of Justice (ICJ) is needed. ICJ is the principal judicial organ of

the United Nations (UN) and it was established in June 1945 by the Charter of the

United Nations. The court is based at Peace Palace in The Hague, Netherlands and

it’s the only one that is located not in New York compare to the other five

principal organs of the UN. The main functions of the court are to settle legal

disputes submitted to it by states in accordance with international law as well as

providing advisory opinions on legal questions submitted to it by authorized

United Nations organs and specialized agencies. The Court is composed of 15

judges, these judges are elected for terms of office for nine years by the United

Nations General Assembly and the Security Council. It is assisted by a Registry

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which is the administrative organ of the Court. Moreover, its official languages

are English and French.1

If countries are unable to resolve the disputes bilaterally, ICJ can act as a

mediator to resolve it. ICJ solves two types of cases which are contentious cases

and advisory proceedings. In contentious cases, only states (States Members of

the United Nations and other States which have become parties to the Statute of

the Court or which have accepted its jurisdiction under certain conditions) may be

parties to contentious cases. 2 In advisory proceedings, requests for advisory

opinions on legal questions referred to it by United Nations organs and specialized

agencies. In this thesis, the case between Singapore and Malaysia is a contentious

case.

In contentious cases, ICJ can solve a dispute only if the concerning states

accepted its jurisdiction by entering into a special agreement to submit the dispute

to the Court. According to Article 40 paragraph 1, cases are brought before the

Court either by notification of Special Agreement or written application to the

Registry and the subject of the dispute and the parties must be indicated. 3

Furthermore, ICJ can also solve a dispute if the states concerned accepted its

jurisdiction by virtue of a jurisdictional clause or through the reciprocal effect of

declarations made by them under the Statute in which each has accepted the

jurisdiction of the Court as compulsory in the event of a dispute with another State

having made a similar declaration. The basis of the Court’s jurisdiction is

1 International Court of Justice, “The Court,” International Court of Justice, http://www.icj-

cij.org/court/index.php?p1=1 (accessed August 30, 2015). 2 Ibid. 3 Huala Adolf, Hukum Penyelesaian Sengketa Internasional (Jakarta: Sinar Grafika, 2004), 71.

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according to Article 36 paragraph 1 of the Statute which is the jurisdiction of the

Court comprises all cases which the parties refer to it.4 Therefore, the Court can

only deal with a dispute when the concerning states have accepted its jurisdiction,

if a state does not accept the Court’s jurisdiction, the state cannot sue or be sued in

the ICJ unless the state is party to a treaty that has a provision requiring that

disputes arising under the treaty are to be settled by the ICJ. Regarding to the

proceedings in contentious cases, only states may apply to and appear before the

Court, international organizations, other collectivities and private persons are not

entitled.

A State Member of the United Nations undertakes to comply with any

decision of the Court in a case to which it is a party by signing the UN Charter.

Since a case can only be submitted to the Court and decided by it if the parties

have accepted its jurisdiction, it is rare for a decision not to be implemented.5

However, the enforcement of the Court is a problem because the Court has no

realistic way to make states abide by its rulings, so it relies on voluntary

compliance. A state which contends that the other side has failed to perform the

obligations incumbent upon it under a judgment by the Court may bring the

matter before the United Nations Security Council. The Security Council is

empowered to recommend or decide upon the measures to be taken to give effect

to the judgment. Therefore, the Court could call on the Security Council to

authorize military enforcement action, but this would probably do more harm than

good. The Court has never taken such an action. When a state did not agree and

4 International Court of Justice, “The Court,” International Court of Justice, http://www.icj-

cij.org/court/index.php?p1=1 (accessed August 30, 2015). 5 Ibid.

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abide by the judgment of the Court, the Security Council can vote diplomatic and

economic sanctions against it rather than military enforcement. Therefore, ICJ is

unique since its nature is peaceful. It will avoid any violence or forceful conflict

resolution in settling a dispute. In addition, its jurisdiction is carefully defined in

order to preserve the sovereignty of the states who are involved in the disputes.6

As a result, states are more likely to refer the case to ICJ because ICJ can only

have jurisdiction over them when they accept it as well as because it is an

alternative solution when bilateral negotiations have come to a dead end.

One of the disputes that had been decided by the ICJ was the dispute over

the sovereignty of islands called Pedra Branca or Pulau Batu Puteh as well as

Middle Rocks and South Ledge, where the parties of the dispute are Singapore

and Malaysia. Singapore called the island “Pedra Branca” while Malaysia called it

“Pulau Batu Puteh”. 7 It is a contentious case in which bilateral negotiations

between Singapore and Malaysia did not succeed and they both agree to refer the

case to ICJ.

Regarding the parties of this dispute, Malaysia is a federal State which has

13 constituent states. In 1963, Malaysia was formed through the merger of the

Federation of Malaya with the State of Singapore which was a British colony as

well as the British territories of Sabah and Sarawak in Borneo. Among the 13

constituent states of Malaysia, State of Johor is the one that is relevant to this

6Ian Hurd, International Organization: Politics, Law, Practice (Cambridge: Cambridge University

Press, 2010), 186. 7 Ministry of Foreign Affairs Singapore, “International Court of Justice – Case concerning

sovereignty over Pedra Branca, Middle Rocks and South Ledge,” Government of Singapore,

http://www.mfa.gov.sg/content/mfa/media_centre/special_events/pedrabranca.html (accessed

August 31, 2015).

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dispute as it is geographically the closest one to Singapore. In the context of this

dispute, Malaysia is the successor State to the State of Johor regarding to her

claim of sovereignty over Pedra Branca/Pulau Batu Puteh.8

In relation to the other party, the state of Singapore consists of the main

island of Singapore and 50 or so smaller islands and islets. Singapore becomes

independent and becomes republic since 1965. Prior to its independence in the

beginning of the 19th century, the island of Singapore and parts of the Malay

Peninsula surrounding the Johor River basin (hereafter “peninsular Johor”) were

under the control of a native chief named Abdul Rahman who held the title of

“Temenggong”. Since peninsular Johor was mostly covered by primary forest,

Singapore became where the Temenggong settled.

In the Malay political context at that time, the Temenggong was a vassal of

the Sultan of the Johor-Riau-Lingga Sultanate. However after that, in February

1819, the English East India Company (EIC) established a trading station at

Singapore. Then, in 1824, the EIC on behalf of the British Government obtained

full sovereignty over the island of Singapore through a cession treaty with the

local Malay chiefs. From then on, Singapore remained under British rule until

1963. On 9 July 1963, the United Kingdom, the Federation of Malaya (of which

Johor was a member State) and the States of North Borneo (Sabah), Sarawak and

Singapore signed the Malaysia Agreement 1963 in order to form a new

independent federation to be called the “Federation of Malaysia”. In regard of this

agreement, the United Kingdom Parliament was enacting legislation to hand over

8 Marcelo Kohen. “Original Title in the Light of the ICJ Judgement on Sovereignty over Pedra

Branca / Pulau Batu Puteh, Middle Rocks and South Ledge.” Journal of the History of

International Law 15, no. 2 (2013): 152

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sovereignty and jurisdiction to the State of Singapore and the States of Sabah and

Sarawak. Soon after, the Parliament of the Federation of Malaya enacted the

Malaysia Act to establish Malaysia on the following month. On 7 August 1965,

the Government of Malaysia and the Government of Singapore signed an

agreement which is the Separation Agreement. This agreement enabled Singapore

to separate from Malaysia and Singapore became an independent and sovereign

State on 9 August 1965.9 In the context of this dispute, Singapore is the successor

in title to the United Kingdom which was the former owner of the island by

colony.

The Republic of Singapore is populated with about 5 million people and

has a total area of about 680 square kilometres (or 260 square miles). In

comparison with Malaysia, it is populated with 29 million people and has a land

area of 329,747 square kilometres including more than 2,000 off-shore islands.

Singapore is located at the south of the Malay Peninsula which is at the eastern

entrance of the Straits of Malacca. To the north, Singapore is divided from

Malaysia by the Straits of Johor. However, Singapore and Malaysia are connected

by a causeway and a bridge. To the south, Singapore is divided from Indonesia by

the Straits of Singapore.10

Pedra Branca/Pulau Batu Puteh is an island that is located at the eastern

entrance of the Straits of Singapore and lies about 24 nautical miles from the east

9 Coalter G. Lathrop. “Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South

Ledge.” American Journal of International Law 102, no. 4 (2008): 830 10 Ministry of Foreign Affairs Singapore, “International Court of Justice – Case concerning

sovereignty over Pedra Branca, Middle Rocks and South Ledge,” Government of Singapore,

http://www.mfa.gov.sg/content/mfa/media_centre/special_events/pedrabranca.html (accessed

August 31, 2015).

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of Singapore. It is located at 1º19.8’N, 104º24.4’E and lies about 7.7 nautical

miles from the southern coast of Johor, Malaysia to the north and 7.6 nautical

miles from the northern coast of Bintan, Indonesia to the south. It is an island that

is made entirely of granite measuring 137 metres long, with an average width of

60 metres and covering an area of about 8,560 square metres at low tide.11 There

is no vegetation grows in that island. Also, there is no evidence that it was ever

inhabited before the construction of the Horsburgh Lighthouse by the British.

Ever since the construction of the Lighthouse, the only people that lived on Pedra

Branca/Pulau Batu Puteh were the personnel who were manning the lighthouse as

well as other equipments on the island. In addition, Pedra Branca has been known

to mariners for centuries. The name “Pedra Branca” came from Portuguese

language which means “white rock”. It was named white rock because of its

whitish appearance caused by the accumulation of bird droppings over hundreds

of years. 12 The location of Pedra Branca/Pulau Batu Puteh along with nearby

islets Middle Rocks and South Ledge can be seen on the map below:

11 Sophia Kopela. “Current Legal Developments International Court of Justice.” International

Journal of Marine & Coastal Law 25, no. 1 (2010): 94 12 Ministry of Foreign Affairs Singapore, “International Court of Justice – Case concerning

sovereignty over Pedra Branca, Middle Rocks and South Ledge,” Government of Singapore,

http://www.mfa.gov.sg/content/mfa/media_centre/special_events/pedrabranca.html (accessed

August 31, 2015).

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Figure 1.1 Map of Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge

Source: S. Jayakumar and Tommy Koh 2009, 163

One of the most important features of Pedra Branca/Pulau Batu Puteh is

that it has a strategic position for international trade route. Its position is right in

the middle of the Straits of Singapore as it opens into the South China Sea.

Therefore, the position made the island a serious navigational hazard on an

important international trade route. From 1824 to 1851, 16 ships were wrecked

and another nine stranded after running aground in the vicinity of Pedra

Branca/Pulau Batu Puteh.13 In 1847, the British colonial government in Singapore

occupied the island and construct a lighthouse on it named “Horsburgh

Lighthouse” in memory of the famous British hydrographer James Horsburgh.

13 International Court of Justice, “Memorial of Singapore,” International Court of Justice,

http://www.icj-cij.org/docket/files/130/14133.pdf (accesed August 31, 2015).

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The construction began in 1851 and Horsburgh Lighthouse was the first

lighthouse to be built by the British in South East Asia. Furthermore, Pedra

Branca/Pulau Batu Puteh’s position is very strategic for shipping from India to

China and vice versa.14

Today, more than 150 years later, Pedra Branca/Pulau Batu Puteh’s

position remains significant. The Straits of Singapore is a very important strait as

it is one of the busiest international straits in the world. It connects the Straits of

Malacca (and the Indian Ocean to the West) with the South China Sea (and the

Pacific Ocean to the East). This means that most ships which are going to the Far

East from Europe, the Middle East and India, and vice versa, will pass through the

Straits of Singapore. On average, there are more than 900 ships which make use

of and passes by the Straits of Singapore every day (i.e., one ship every 1.6

minutes), with more than 80% of these ships arriving and departing from the port

of Singapore.15

Singapore is one of the busiest ports in the world and it is consequently

become a great importance to the international shipping community. It plays a

very crucial role for Singapore’s economy as the economy is heavily depends on

the port. As Pedra Branca/Pulau Batu Puteh commands the entire eastern

approach to the Straits, Singapore will do whatever it takes to exercise its

sovereign territorial rights over Pedra Branca/Pulau Batu Puteh and its

14 Ibid. 15 Ministry of Foreign Affairs Singapore, “International Court of Justice – Case concerning

sovereignty over Pedra Branca, Middle Rocks and South Ledge,” Government of Singapore,

http://www.mfa.gov.sg/content/mfa/media_centre/special_events/pedrabranca.html (accessed

August 31, 2015).

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surrounding waters for the sake of its economy. Similarly, Pedra Branca/Pulau

Batu Puteh is also significant for Malaysia. Malaysia’s interest for the island is

that the island belongs to the Johoreans before the British occupied it from them.

More importantly, Pedra Branca/Pulau Batu Puteh is important for the Johor’s

fishermen who have been fishing in the surrounding waters of it.16 The waters of

Pedra Branca/Pulau Batu Puteh are very rich in fish and accessible for the

fishermen to fish compared to fishing in other areas.

Other than that, there are two maritime features known as “South Ledge”

and “Middle Rocks” which are located slightly to the south of Pedra Branca/Pulau

Batu Puteh. South Ledge and Middle Rocks were also disputed along with Pedra

Branca/Pulau Batu Puteh as all the three islands are close by. They lay

approximately 0.6 nm and 2.1 nm from Pedra Branca/Pulau Batu Puteh. South

Ledge is a low-tide elevation 2.1 nautical miles south of Pedra Branca/Pulau Batu

Puteh, and Middle Rocks is located about 0.6 nautical miles south of Pedra

Branca/Pulau Batu Puteh. Middle Rocks are located 7 nautical miles from the

Indonesian coast and 8 nautical miles from the Malaysian coast, and South Ledge

is located 7.8 nautical miles from the Malaysian coast. Middle Rocks consists of

two clusters of small rocks about 250 metres apart. While the largest of these

rocks measures about 55 metres by 15 metres, most of the rocks in these two

clusters are much smaller, averaging 5 metres in size.17

16 International Court of Justice. “Memorial of Malaysia.” International Court of Justice.

http://www.icj-cij.org/docket/files/130/14139.pdf (accessed August 31, 2015). 17 Sophia Kopela. “Current Legal Developments International Court of Justice.” International

Journal of Marine & Coastal Law 25, no. 1 (2010): 94

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Pedra Branca/Pulau Batu Puteh was known to be within the administration

of the Malaysian since 1512 and it was under the British sphere of influence after

the Anglo-Dutch Treaty of 1824. Nevertheless, according to Singapore, between

1850 and 1851, the British constructed the Horsburge lighthouse on the islands

which made Pedra Branca became to be under the administration of the United

Kingdom and its successor, Singapore.

In a decisive moment, on September 21 1953, the State Secretary of

Johore, in response to a Singapore query stated that "the Johore Government does

not claim ownership of Pedra Branca". Pedra Branca/Pulau Batu Puteh was then

thought to be under Singapore’s administration after that until the dispute began

with the claiming of the island from Malaysia when Malaysia published its map in

1979. On 21 December 1979, Malaysia published a map entitled “Territorial

Waters and Continental Shelf Boundaries of Malaysia”. By this map, Malaysia

claimed to include Pedra Branca/Pulau Batu Puteh within Malaysia’s territorial

waters. However, Singapore lodged a formal protest regarding this Malaysian map

in the early 1980. Since the dispute has a long term of negotiation and cannot be

resolved bilaterally, Singapore proposed submitting the dispute to the ICJ in 1989.

In 1993, Singapore also claimed the nearby islets Middle Rocks and South Ledge.

After that, Malaysia finally agreed to Singapore’s idea of submitting the dispute to

ICJ in 1994. Then, the two countries signed a Special Agreement in February

2003 and it was formally notified by ICJ in July 2003.18 By a Special Agreement,

Malaysia and Singapore agreed to submit the foregoing dispute to the Court. By

18 S. Jayakumar and Tommy Koh, Pedra Branca: The Road to the World Court (Singapore: NUS

Press, 2009), 1.

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Article 2 of the Special Agreement, the Court is requested to determine whether

sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South

Ledge, belongs to Malaysia or the Republic of Singapore. 19 The Special

Agreement does not request the Court to enter into an exercise of delimitation or

to make declarations concerning fishing or other economic rights. However,

principles of the Law of the Sea are relevant and important in determining

whether the sovereignty over Middle Rocks and South Ledge belongs to

Singapore or Malaysia.

Singapore claimed that selecting Pedra Branca/Pulau Batu Puteh as the

construction of the lighthouse was under the authorization of the British empire.

According to Singapore, the original ownership of the island was the British

empire which took possession of the island over 160 years ago. to build

Horsburgh Lighthouse and other structures on it. Therefore, the ownership

continues to the rightful successor which is the Republic of Singapore. At the

memorial and counter-memorial, Singapore argued that the status of the island

was terra nullius. Terra nullius means a land which belongs to no one. Then, the

Court observes that the statements of Singapore clearly indicated that in 1847 the

real status of Pedra Branca was terra nullius. 20 Since then, Singapore has

continuously and openly conducted acts of a sovereign nature over the entire

island and its surroundings. However Malaysia did not lodge any protest against

Singapore’s actions at that time. In 1953, Johor stated in official

19 International Court of Justice, “Memorial of Singapore,” International Court of Justice,

http://www.icj-cij.org/docket/files/130/14133.pdf (accesed August 31, 2015). 20 S. Jayakumar and Tommy Koh, Pedra Branca: The Road to the World Court (Singapore: NUS

Press, 2009), 66.

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correspondence with Singapore that it did not claim ownership over Pedra Branca.

Furthermore, Singapore claimed that Malaysia also published a series of official

maps from 1962 to 1975 showing Pedra Branca/Pulau Batu Puteh as belonging to

Singapore. In regard of the Middle Rocks and South Ledge islands, Singapore

claimed that sovereignty over Middle Rocks and South Ledge belongs to the

country that has sovereignty over Pedra Branca/Pulau Batu Puteh.21

On the other hand, Malaysia stated in the written pleadings that they have

the original title of ownership of Pedra Branca/Pulau Batu Puteh.22 According to

Malaysia, it was always be the part of the Malaysian state of Johor. There was

nothing which caused the displacement of sovereignty over Pedra Branca/Pulau

Batu Puteh. Singapore's presence on the island was only for the purpose of

constructing and maintaining a lighthouse with the permission of the owner.

However, Singapore will not be able to annex the sovereignty of the island on the

basis of that permit. Furthermore, Malaysia has stated that the dispute has no

relevance with the status of terra nullius of the island.

Based on these arguments made by Malaysia and Singapore, the Court

noted several points that should be given to both parties. First, could Malaysia

prove its original ownership before Singapore conducted any activity on the island

between 1847 and 1851? Second, could Singapore prove the claim that the legal

title of Pedra Branca/Pulau Batu Puteh was the British Empire when the

construction of the lighthouse began in the mid-19th century? This requirement of

21 International Court of Justice. “Memorial of Malaysia.” International Court of Justice.

http://www.icj-cij.org/docket/files/130/14139.pdf (accessed August 31, 2015). 22 S. Jayakumar and Tommy Koh, Pedra Branca: The Road to the World Court (Singapore: NUS

Press, 2009), 67.

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evidences by ICJ is a general legal principle which is established by

jurisprudence. This principle means that the parties who propose facts to support

their claims must prove the truth of the facts.

1.2 Research Questions

Based on the background above, the research questions are:

1. How is the nature of dispute between Singapore and Malaysia in claiming

for Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge?

2. How does ICJ’s decision resolve the conflict between Singapore and

Malaysia over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South

Ledge?

1.3 Research Objectives

Based on the research question above, the purpose of this research are:

1. To explain and analyze the dispute between Singapore and Malaysia in

claiming Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge.

2. To analyze and explain the judgment of ICJ as well as explaining the role

of ICJ in resolving the conflict between Singapore and Malaysia over

Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge.

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1.4 Research Benefits

1.4.1 Academic Benefits

Academically, this thesis will give benefits for academic students

especially for Pelita Harapan University students majoring in International

Relations. It will broaden their knowledge about how an International

Organization can resolve international territorial disputes. Furthermore, it will

give knowledge of how international law should be applied in international

disputes especially in the region of Southeast Asia.

1.4.2 Practical Benefits

The practical benefit of this research is that it can be used for future

references for those who need information about the influence of an international

organization toward territorial international disputes between states. The writer

hopes that this thesis will also help those who are fond in international

cooperation through international organization which is the example of diplomacy

practice, since diplomacy is one of the ways to solve international conflicts.

1.4.3 Social Benefits

Socially, this thesis will give knowledge to the reader about a settled

international dispute between Singapore and Malaysia by International Court of

Justice (ICJ). This thesis is expected to enhance knowledge for the reader about

how ICJ can resolve international disputes between states according to

international law.

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1.5 Structure of Writing

This scientific report and thesis which is titled “The Role of International

Court of Justice (ICJ) in Settling Territorial Dispute of Pedra Branca/Pulau Batu

Puteh, Middle Rocks, and South Ledge between Singapore and Malaysia: The

Period of 1994-2008” will be organized in a systematic of writing. The systematic

of writing will be described as following:

CHAPTER I INTRODUCTION

Chapter I will consist of introduction and background of the problems

from the topic. Afterward, it will be elaborated to research questions, purposes,

research benefits, and systematic of writing.

CHAPTER II ANALYTICAL FRAMEWORK

Chapter II will consist of literature review, theory, and concept. Literature

review will be the opening of this cahpter. Then will be followed by relevant

theories and concepts. Neoliberalism will be used as the basic theory in this

research. International organization, national interest, and democratic peace will

be the concepts of this research.

CHAPTER III RESEARCH METHODS

Chapter III will consist of the methods that are used for the research.

Moreover, it will explain about the technique to collect the data and the approach

that will be used in acquiring data for this thesis.

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CHAPTER IV DATA AND ANALYSIS

Chapter IV will consist of the result of the data that have been collected as

well as its analysis. The data will cover the events before and after ICJ’s judgment

including how the dispute began, bilateral negotiations before refering the case to

ICJ, arguments and counter-arguments in the process of negotiation with ICJ, and

implementations and implications of the judgment. The analysis will explain

about the role and the jugment of ICJ as well as how ICJ resolve the dispute.

CHAPTER V CLOSING

Chapter V will consist of conclusion from the result of analysis as well as

a summary of the whole research.