Topic 6 International Dispute Settlement and Singapore

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SINGAPORE LEGAL SYSTEM 2009

PART 1. INTERNATIONAL LAWAND 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 NUSFaculty of Law.

They are not to copied or circulated without the express written

permission of the author.


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Topic 6. Singapore and International Dispute Settlement Page 2

.A Notes and Discussion Questions

Two Articles by Prof Tommy Koh

1. Critically evaluate the pros and cons of States referring internationaldisputes to third party dispute settlement. What are the pros and cons ofnon-binding modes such as mediation as opposed to binding modes suchas arbitration and adjudication? Do you agree with Prof Kohs thesis?What kind of disputes do you think should be taken to international courtsor tribunals? Should Singapore and Malaysia take the dispute over thewater agreements before an international court or tribunal? It is oftensaid that the danger of taking a dispute to a court or tribunal is that thematter is decided only according to legal rules, and one party wins andthe other loses. When you study the Land Reclamation and Pedra Brancacases, consider whether the decisions were win-lose or whether the

tribunals gave something to both sides. Also consider whether the LessonLearned from the Land Reclamation Case would apply equally to thePedra Branca Case.

Land Reclamation Case

2. The Land Reclamation Case was initiated by Malaysia by invoking the PartXV 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 workswere in breach of its obligations under UNCLOS as well as principles ofcustomary 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 tosubmit most disputes on the interpretation or application of the provisionsof the Convention to compulsory binding dispute settlement. Statesparties can elect at any time between four means of dispute settlement:(1) adjudication before the International Court of Justice; (2) adjudicationbefore the International Tribunal for the Law of the Sea; (3) arbitrationbefore an arbitral tribunal constituted in accordance with Annex VII ofUNCLOS; or (4) arbitration before a special arbitral tribunal constituted inaccordance with Annex VIII of UNCLOS. If a dispute arises between two

States which have accepted the same procedure, the dispute will go thatcourt or arbitral tribunal. If a dispute arises between two States Partiesthat have either not elected a procedure or who have elected differentprocedures, the dispute will go to an arbitral tribunal constituted underArticle VII, unless the parties to the dispute agree to some other form ofdispute settlement.

4. Neither Singapore nor Malaysia has made a choice on dispute the disputesettlement procedure for disputes under UNCLOS. Therefore, the meritsof a case brought by Malaysia would go an arbitral tribunal constitutedunder Annex VII. However, Article 290 of UNCLOS provides that pendingthe constitution of an arbitral tribunal, a state may apply to ITLOS for

provisional measures preserve the respective rights of the parties to thedispute or to prevent serious harm to the environment, pending the final

SINGAPORE LEGAL SYSTEM 2009 Part 1. International Law and SingaporeLaw


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decision on the merits. The Land Reclamation Case we are studying is theITLOS decision on Malaysias request for provisional measures. As isexplained in the comments by Prof Tommy Koh, after the decision ofITLOS 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 aprovision of the Convention, Article 293 provides that the applicable lawthat can be applied by a court or tribunal having jurisdiction is theConvention and other rules of international law not incompatible with theConvention. When reviewing the questions below, consider whether infact the Court ruled that Singapore had violated a principle of customaryinternational law concerning a duty to cooperate when undertakingactivities which may have a significant adverse effect on the environmentof a neighbouring State.

6. When studying the Land Reclamation Case, you should consider whetherSingapore was found to be in breach of any the following provisions of

UNCLOS by not providing information to Malaysia about the possibleimpact of the project on the shared marine environment and onMalaysias coastal environment:

Article 198. Notification of imminent or actual damage

When a State becomes aware of cases in which the marine environment isin imminent danger of being damaged or has been damaged by pollution, itshall immediately notify other States it deems likely to be affected by suchdamage, 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 faras practicable, directly or through the competent internationalorganizations, to observe, measure, evaluate and analyse, by recognizedscientific methods, the risks or effects of pollution of the marineenvironment.

2. In particular, States shall keep under surveillance the effects of anyactivities which they permit or in which they engage in order to determinewhether 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 orprovide such reports at appropriate intervals to the competent internationalorganizations, which should make them available to all States.

Article 206. Assessment of potential effects of activitiesWhen States have reasonable grounds for believing that planned activitiesunder their jurisdiction or control may cause substantial pollution of orsignificant and harmful changes to the marine environment, they shall, asfar as practicable, assess the potential effects of such activities on themarine environment and shall communicate reports of the results of suchassessments in the manner provided in article 205.

7. When examining the decision, also consider whether in fact the Courtread the UNCLOS provisions in light of evolving principles of internationallaw with respect to planned activities which may cause damage toenvironment. Consider the relevance of the following principles ofinternational environmental law that are set out in the 1992 RioDeclaration, a resolution adopted at the 1992 UN Conference on theEnvironment and Development, which was held in Rio de Janeiro in 1992:



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Principle 2

States have, in accordance with the Charter of the United Nations and theprinciples of international law, the sovereign right to exploit their ownresources pursuant to their own environmental and developmental policies,and the responsibility to ensure that activities within their jurisdiction orcontrol do not cause damage to the environment of other States or of areasbeyond the limits of national jurisdiction.

Principle 15

In order to protect the environment, the precautionary approach shall bewidely applied by States according to their capabilities. Where there arethreats of serious or irreversible damage, lack of full scientific certainty shallnot be used as a reason for postponing cost-effective measures to preventenvironmental degradation.

Principle 17

Environmental impact assessment, as a national instrument, shall beundertaken for proposed activities that are likely to have a significant

adverse impact on the environment and are subject to a decision of acompetent national authority.

Principle 18

States shall immediately notify other States of any natural disasters or otheremergencies that are likely to produce sudden harmful effects on theenvironment of those States. Every effort shall be made by the internationalcommunity to help States so afflicted.

Principle 19

States shall provide prior and timely notification and relevant information topotentially affected States on activities that may have a significant adversetransboundary 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 StateParty to the case has the right to appoint an ad hoc judge to the court ifthere is no member of the court from their State. In practice, almost allad hoc judges decide in favour of the State which appointed them. Aspointed out by Prof Tommy Koh in his comments, what was unique in thiscase is that the two ad hoc judges made a separate joint declarationindicating 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 adhoc agreement between the two States. The Court was asked only toconsider which of the two States had the better claim to sovereignty overthe 3 features. This case was decided under the principles of customaryinternational law governing the acquisition of territory. There were noprovisions of UNCLOS that were applicable.

10.What were the critical dates for examining the dispute relating to thethree features, and what is the significance of the critical date? How is thecritical date relevant to whether conduct of the parties is considered bythe 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 Horsburghlighthouse?



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12. What were the most important facts favoring Singapore? Was the originalletter in 1851 critically important? Why did the Court rule that sovereigntyover Pedra Branca had been transferred to Singapore? What was the ruleor principle of law on which it based its decision? What do you believewas the most important conduct by Singapores which supported its case?Was the reaction of Malaysia to Singapores conduct relevant? Was thereany 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 withrespect to sovereignty over South Ledge?

14.In the end, which side won the case? Can it be argued that both sideswon?

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 SouthLedge. We will consider in particular the relevance of the provisions ofUNCLOS that might be relevant in the negotiations relating to themaritime boundaries in the area.



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.B Tommy Koh, International Law and the PeacefulResolution 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 promotegreater interest in, respect for, and adherence to international law in Asia.Second, I wish to encourage a greater willingness on the part of Asiangovernments to refer their bilateral disputes, which cannot be resolved bynegotiations, to third party dispute resolution. Third, I wish to make aplea for more Asian States to recognise the compulsory jurisdiction of theInternational Court of Justice and to accept the jurisdiction of theInternational 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 sovereigntythan governments in the contemporary West. Therefore, whendifferences occur and disputes arise, Asian governments tend to insistthat they be resolved through bilateral consultations and negotiations.

The reality is that, very often, the differences and disputes remainunresolved after years and even decades of negotiations. When leftunresolved, some of these disputes have a tendency to contaminate thebilateral relationship as a whole. This is a great pity because the disputes

may revolve around relatively minor issues compared to the many otherareas in which the two countries have convergent interests. In view ofthis, my first point is to encourage Asian governments to take a moreopen and positive attitude towards various modalities, other thannegotiations, 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) conciliation;

(ii) mediation;

(iii) fact-finding;

(iv) arbitration; and

(v) adjudication

Conciliation

19.Conciliation, as a modality for resolving disputes, is culturally comfortableto Asians. It should, therefore, be a popular means for settling disputesbetween Asian States. Surprisingly, I cannot find in the literature, recent

examples of disputes between Asian States which have been settled byconciliation. I will, therefore, refer to a case between Iceland and Norway.



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The facts are as follows. On 28 May 1980, the Governments of Icelandand Norway concluded an agreement concerning fishery and continentalshelf questions. The agreement agreed to establish a conciliationcommission to determine the dividing line for the continental shelf in thearea between Iceland and Jan Mayen, an island belonging to Norway. Thecommission consisted of a conciliator from Iceland (Ambassador HansAndersen), a conciliator from Norway (Jens Evensen) and a neutralchairman (Elliot Richardson of the US). The three conciliators were theleaders of their respective delegations to the Third UN Conference on theLaw of the Sea. The report and recommendations of the conciliationcommission are contained in Volume XXVII of the Reports of InternationalArbitral Awards of the United Nations (2007). I wish to bring this case tothe attention of my Asian colleagues in the hope that some of the existingdisputes between Asian States could be settled amicably by using thedevice of conciliation commissions.

Mediation

20.Mediation has deep cultural roots in Asia. When differences or disputesarise in Asia, in the past, there was a widespread practice for thedisputants to call upon the village head man or community leader to helpsolve the disputes by conciliation and mediation. Asians like conciliationand mediation because the outcome is win-win and neither party isstigmatised as having lost the dispute. In this way, no one loses face.Recognising the cultural acceptance of mediation and its merit, theSingapore government has established the Singapore Mediation Centre.

The Centre trains interested citizens as mediators. Before a case goes totrial, the Mediation Centre would attempt to assist the parties to come toan amicable settlement. The case would only go to trial if the parties

decline the offer of mediation or it is not successful. Mediation has thusbecome part of the judicial process in Singapore and many cases aresuccessfully solved by way of mediation.

Mediation of International Disputes

21.Mediation has also been used to solve international disputes. Let mebriefly refer to a recent case. On 26 December 2004, Indonesia, Malaysia,

Thailand, Sri Lanka, India, the Maldives and other countries around therim of the Indian Ocean were hit by a killer wave called the tsunami. Theprovince of Aceh, in Indonesia, was almost completely wiped out. Thismade 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 formerPresident of Finland, to mediate the dispute. He agreed and convenedthe first round in Helsinki, in January 2005. Although Ahtisaari had nobackground on Indonesia, he had an adviser, Juha Christensen, who hadlived for many years in Indonesia, spoke the local languages, and wastrusted by both sides. Ahtisaari was a tough but fair mediator andpersonally chaired the face-to-face negotiations from the beginning to theend. Miraculously, after only five rounds, a comprehensive agreementwas signed in Smolna, Finland, on 15 August 2005, putting an end to 30years of armed conflict1. I hope that the Aceh case will inspire Asians to

1 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 besolved in a similar way. The circumstances must, of course, be right andthe 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 bothsides. Who are the elder statesmen of Asia who would be willing to act asmediators and have the competence of Ahtisaari? Could the ASEANSecretariat make up such a list? Can the Asian Society of InternationalLaw 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 arebogged down because the two parties cannot agree on the facts. Let mecite a concrete example. In 2003, Malaysia applied to the International

Tribunal for the Law of the Sea (based in Hamburg), for provisionalmeasures to stop Singapore's land reclamation activities in the Straits of

Johor. Malaysia alleged that Singapore's activities had, inter alia, causedpollution and other damage to the marine environment. Singaporedenied the allegations. In its unanimous judgement, the Tribunal orderedthe two parties to establish a group of independent experts to conduct ayear long study on the effects of Singapore's activities and to proposeappropriate measures to deal with any adverse effects2. Malaysia andSingapore appointed two experts each and the four experts submitted aunanimous report to the two parties after a year-long study. The expertsconcluded in their report that Singapores land reclamation works wouldcause no major impact to Malaysia, while the minor and moderateimpacts of the works could be mitigated. Malaysia and Singaporeaccepted the experts recommendations and, on that basis, reached an

amicable settlement after two rounds of negotiations. The text of thesettlement agreement is contained in the decision of the Arbitral Tribunaldated 1 September 2005, and reported in Volume XXVII of the Reports ofInternational Arbitral Awards of the United Nations (2007). This is anexcellent example of the use of independent experts, by the two partiesto a dispute, to make an authoritative report on the facts. When the factswere accepted, the two parties were able to negotiate a settlement.

Arbitration

23.Arbitration should be more acceptable to Asian governments thanadjudication. The process is less formal. A State has a say in the

composition of the arbitral tribunal. The outcome of arbitration, unlikeadjudication, can be a win-win one. Arbitration is the default disputesettlement 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 Conventionhave nominated arbitrators. Is this a case of neglect, indifference ordislike for arbitration? Do Asian governments prefer adjudication toarbitration? I do not think so.

2 International Tribunal for the Law of the Sea, Case No. 12, Order of 8 October2003.



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Adjudication

24.I will focus next on adjudication. I wish to make the following three pointson 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 theAsian 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 reluctantto accept the compulsory jurisdiction of ICJ? Can anything be done toallay their concerns? Would it be useful for us to encourage more AsianStates 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 disputesinvolving an Asian State or States in the Courts history. The strikingthing to me is that although China and Japan have nationals who are

judges, neither country has brought a case to the ICJ. Nor has SouthKorea. In contrast, of the ten ASEAN countries, five have brought cases tothe ICJ. They are: Cambodia, Indonesia, Malaysia, Singapore and

Thailand. Why? What is the legal or cultural explanation for thereluctance of the countries of North-East Asia to refer their disputes to theICJ 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 iscurrently languishing without work. How can we promote its use byStates parties to the 1982 Convention on the Law of the Sea? I know for afact that there are disputes between some States parties concerning theinterpretation and application of the Convention but, so far, the Statesconcerned have been reluctant to refer their disputes to ITLOS forresolution. Why? Why are trade ministers willing to refer trade disputesto the WTO dispute settlement procedure for resolution whereas foreignministers are reluctant to refer their disputes on the law of the sea toITLOS?

Conclusion

28.In conclusion, I think the Asian Society of International Law can play auseful role in promoting the greater acceptance of international law byAsian governments and peoples. We should promote the strengtheningof the rule of law in Asia, both domestically and internationally. Weshould also encourage Asian governments to adopt a more open andpositive attitude towards the various modalities for the settlement ofdisputes, other than negotiations. We should consider how best toencourage Asian governments to accept the jurisdiction of ICJ and ITLOS,or at least be less reluctant to refer their disputes to those courts byagreement. I will end on an optimistic note. The ASEAN Charter hascome 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 thatthe ten ASEAN countries are willing to be bound by such an obligation is a



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good omen for the future. I hope the other regions of Asia will follow theASEAN lead.

.C Tommy Koh, The Land Reclamation Case: Thoughtsand 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 thetip of the Malayan peninsula. Since the beginning of its independentexistence, Singapores physical constraints have made it a challenge tobalance its competing needs and to optimise the use of its scarce landarea.

2. Therefore, Singapore has been reclaiming land from the sea since thebeginning of colonial Singapore. Recent reclamation projects include theKallang River in the 1960s for industrial and housing purposes, MarineParade in the 1970s for housing purposes, Changi Airport in the 1980s forinfrastructure purposes, Jurong Island (joining seven islands in south-western 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 reclamationworks carried out over the last thirty years have enabled Singapore toincrease its land area from 580 to 680 square kilometres (58,000 ha to68,000 ha).2

3. Land reclamation is also an important activity in several other smallcountries, such as Belgium, the Netherlands, Dubai and some of the otherGulf States.3 It has also become an industry and a fine art. The bestpractices, which Singapore adopts, enables it to embark on some quitemassive land reclamation projects, in Pulau Tekong and in Tuas, withoutcausing 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 landreclamation works in Tuas and Pulau Tekong.4 As can be seen from themap below, Pulau Tekong is situated in the north-eastern part ofSingapore. Tuas is in the Western part of Singapore.

5. Malaysia alleged that Singapores land reclamation works in Pulau Tekongand Tuas impinged on Malaysian territory, caused pollution and other

harm to the marine environment in the Straits of Johor, damaged thejetties, reduced the catch of the fishermen who made their living in the



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Straits of Johor, etc. Singapore repeatedly asked for details of Malaysiasconcerns so that proper investigations could be made. However, althoughMalaysia promised to do so each time, at both levels of the PrimeMinisters 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 thedetails of her technical studies on 4 July 2003. However, at the sametime, Malaysia invoked Article 286 of the 1982 UN Convention on the Lawof the Sea (UNCLOS), and initiated arbitration under Annex VII of theUNCLOS. Article 286 of the UNCLOS states:

7. Subject to section 3, any dispute concerning the interpretation orapplication of this Convention shall, where no settlement has beenreached by recourse to section 1, be submitted at the request of anyparty to the dispute to the court or tribunal having jurisdiction under thissection.

8. Singapore reminded Malaysia that under Article 283, parties to a disputeare under an obligation to exchange views and to attempt to settle thedispute through negotiations. Article 283 (Obligation to exchange views)states:

(1) When a dispute arises between States Parties concerning theinterpretation or application of this Convention, the parties to thedispute shall proceed expeditiously to an exchange of views regardingits settlement by negotiation or other peaceful means.

(2) The parties shall also proceed expeditiously to an exchange ofviews where a procedure for the settlement of such a dispute has

been terminated without a settlement or where a settlement has beenreached and the circumstances require consultation regarding themanner of implementing the settlement.

9. Singapore therefore invited Malaysia to come to the negotiating table. On13 and 14 August 2003, meetings were held in Singapore. Both partiesbegan to identify the issues at hand. Singapore gave detailedpresentations on the Tuas and Pulau Tekong reclamation projects as wellas oral and written responses to Malaysia. Both parties agreed that thetalks were useful and both the Agents for Singapore and Malaysia agreedto continue them. Singapore then proposed that a second meeting beheld and that the parties consider the formation of technical working

groups to discuss the technical information. However, Malaysia imposed apre-condition for the continuation of the talks, that is, that Singaporeshould stop all reclamation works in the meantime. Singapore could notaccept this condition. Instead, Singapore replied that its studies andreports had demonstrated that the ongoing and planned reclamationworks had not caused and would not cause any significant impact onMalaysias concerns. Further, Singapore reassured Malaysia that it hadalways ensured that its reclamation works would not impede navigationthrough the Straits of Johor. Singapore also gave an undertaking that itwould notify and consult Malaysia before it proceeded to constructtransport links between Pulau Tekong, Pulau Ubin and the main island ofSingapore if such links would have any effect on Malaysias passage

rights. Malaysia responded on 4 September 2003 by applying to the ITLOSfor provisional measures under Article 290(5) of the UNCLOS.6



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10.The provisional measures that Malaysia sought were:7

(a) that Singapore shall, pending the decision of the Arbitral Tribunal,suspend all current land reclamation activities in the vicinity of themaritime boundary between the two States or of areas claimed asterritorial waters by Malaysia (and specifically around Pulau Tekong

and Tuas);

(b) to the extent it has not already done so, provide Malaysia with fullinformation as to the current and projected works, including inparticular their proposed extent, their method of construction, theorigin and kind of materials used, and designs for coastal protectionand remediation (if any);

(c) afford Malaysia a full opportunity to comment upon the works andtheir potential impacts having regard, inter alia, to the informationprovided; 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 MalaysiasRequest. Oral hearings were then held at five public sittings on 25-27September 2003.8

12.While the two Agents were in Hamburg, Germany, the President of theITLOS, Judge Dolliver Nelson, consulted with them about the compositionof the Arbitral Tribunal. Article 3 of Annex VII of the UNCLOS prescribes atribunal 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 couldexercise his power under Article 3(e) of Annex VII to make theappointments and is, in fact, required to do so within thirty days ofreceiving a request from either party to the dispute. Singapore made sucha request on 9 September 2003, which meant that the appointments ofthe arbitrators had to be made by 9 October 2003. Consultations inHamburg between Judge Dolliver Nelson and the two Agents resulted inthe appointment by Judge Nelson of Dr. Christopher Pinto of Sri Lanka asthe President of the Tribunal. Prof. Ivan Shearer of Australia and Sir ArthurWatts 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 aJoint Declaration.10 This is a rare occurrence. The court did not accede toMalaysias request for provisional measures against Singapore. In thatsense, the outcome was a victory for Singapore. Instead, the courtrequired the two Parties to establish a group of independent experts, withthe mandate to conduct a study on terms of reference to be agreedbetween Malaysia and Singapore. The group of experts was tasked todetermine, within a year, the effects of Singapores land reclamationworks and to propose appropriate measures to deal with any adverseeffects.

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 differenceson the basis of an objective study by independent experts.



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Subsequent to the Delivery of the ITLOS Judgement

15.Malaysia appointed Professor Roger Falconer and Professor ChristopherFleming of the United Kingdom as its two experts. Singapore appointedProfessor Kees dAngremond of the Netherlands and Professor WilliamKamphuis of Canada as its experts. Professor Falconer and ProfessordAngremond co-chaired the Group of Experts (GOE). Several rounds ofnegotiations were held before both Parties reached agreement on theGOEs terms of reference. The two governments also agreed to appointan official each to act as its liaison with the GOE. DHI-Water andEnvironment, an international consulting and research organisation, wasappointed by both governments to assist the GOE in its work.

16.The whole process worked out very well. The four experts were able towork in a collegial, professional and independent manner. The two liaisonofficers, Hajjah Rosnani and Mrs. Cheong Koon Hean, developed a goodworking relationship. The relationship of mutual respect between the twoliaison officers also greatly eased the process. Working under tremendouspressure of time, DHI-Water and Environment succeeded in presenting arigorous (and voluminous) study to the GOE.11 This report was carefullystudied by the GOE which then submitted a unanimous report to the twogovernments on 5 November 2004. The fact that the report wasunanimous made it difficult for either Malaysia or Singapore not to acceptthe report as a basis for their subsequent negotiations to resolve thedispute. Thus, the two governments agreed to the use of therecommendations of the GOE as a basis for seeking a settlement. Thestudy found that Singapores reclamation works had not caused anyserious impact. Of the fifty-seven impacts identified by the experts, theyfound that forty of them could be detected only in the computer model,

but were not likely to be detectable in the field. Of the remainingseventeen impacts, mitigating measures to eliminate them wererecommended.

17.Two rounds of negotiations were held on 22-23 December 2004 inSingapore and 7-9 January 2005 at the Malaysian Embassy in The Hague,the Netherlands. On 9 January 2005, both parties reached an adreferendum agreement to settle the dispute.12 At Malaysias request, athird round of negotiations was held in Singapore on 8-9 February 2005.

18.On 10 January 2005, the Agents for the respective governments appearedbefore the Arbitral Tribunal at the Peace Palace in The Hague. Theagreement 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 statementinforming the tribunal that the two governments had reached an adreferendum agreement to settle the dispute. They promised to inform thetribunal as soon as the agreement had been approved and signed by bothgovernments. The tribunal will then be able to make an order terminatingthe case.

19.On 26 April 2005, both governments signed the Settlement Agreement,marking an amicable resolution of the dispute.



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Lessons Learnt

20.First, the national interests of Singapore are best served by its strictadherence to international law. The importance of international law toSingapore has been reinforced by this land reclamation case and the caseof 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 easilyswayed by pro-developing country or pro-environment arguments than,say, the ICJ. The ITLOS has demonstrated competence and integrity whichinspires confidence.14

22.Third, an important determinant or influence on the state of Singapore-Malaysia bilateral ties is the personality and preferences of the MalaysianPrime Minister. It is not certain that the land reclamation case would havebeen settled amicably if Dr. Mahathir were still the Prime Minister ofMalaysia.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 andto bring disputes to an amicable resolution. Often, the parties themselveswould have politicised the dispute to the extent that it is difficult foreither party to step back or compromise without third-partyintervention.16 Third-party intervention also permits the application ofobjective criteria in the search for acceptable solutions. A good exampleis the employment of the technical expertise of the GOE in this case. Thisconfidence in the effectiveness of third-party intervention explainsSingapores willingness to submit the dispute with Malaysia over PedraBranca to the ICJ and why Singapore has also suggested the use of third-

party resolution methods to resolve other seemingly intractable disputeswith Malaysia, such as the Malayan Railway and the price that Singaporepays Malaysia for water supplied.

24.Fifth, as a maritime nation and State Party to the UNCLOS, Singaporeshould actively cultivate a keen awareness of its rights andresponsibilities under the Convention. Its provisions touch on a broadrange of activities in and affecting the oceans and their resources. It isalso important that Singapore takes an active interest and, when needed,an active role, in the formulation of these agreements and internationallegal 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 ofones case. Nothing can substitute the need for hard work and carefulpreparation before one appears before an arbitral tribunal or in a court oflaw. A lawyer will not be able to effectively present her case withoutthorough knowledge of the case.

26.Seventh, Singapore benefited from the fact that the various agenciesinvolved in the land reclamation process and the settlement of thedispute arising from the reclamation activities were united by a commonobjective. This engendered close and smooth coordination andcooperation which allowed the Singapore delegation to respond quicklyand effectively to developments.

27.Eighth, an effective negotiator is one who is able to understand themindset of the other party. To negotiate successfully with Malaysia, a



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Singapore negotiator should understand the content of the Malaycultural box and behave in a manner that is not offensive to a Malay.

The way to approach such negotiations would be to adopt a halusmanner, combining the hard power of solid facts and legal argumentswith the soft power of courtesy, friendship and warmth. Therefore, agood 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 toenter discussions with their counterparts with the expectation that theywill behave like Singaporeans. Singapore negotiators cannot expectothers to be equally efficiency-driven and must cultivate the virtue ofpatience.

29.Finally, key to the resolution of disputes is good inter-personal dynamicsbetween players at all levels. As mentioned earlier, the GOE membersinteracted very well amongst themselves even though each of them wasappointed by one of the parties to the dispute. The good working

relationship certainly contributed to the unanimity of the findings of thereport, which in turn, provided an excellent basis upon which the twogovernments could find an amicable solution to the dispute. At the levelof the liaison officials, both the Singapore and Malaysia liaison officers goton very well and this personal rapport was crucial to the successful jointadministration of the consultancy contract with DHI-Water andEnvironment. This in turn facilitated the successful conclusion of thestudy. Finally, at the level of the Agents of the two governments, the verygood personal relations between the two Agents developed over manyyears helped them to bridge the differences in arriving at the SettlementAgreement acceptable to both governments. It is clear that such goodpersonal relations must continue to be fostered between officials of both

governments at all levels. As neighbours, disagreements from time totime are inevitable. Good inter-personal dynamics, however, will helpsignificantly in enabling both parties to have at least frank and friendlydiscussions of those differences, and optimally, the amicable resolution ofthem.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 donot

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"),



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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 theStraits 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 thearbitral 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 notpreviously 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 methodof 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. Consideringthat, 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.Consideringthat 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 arbitraltribunal 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.ConsideringthatMalaysia 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.Consideringthat, for the above reasons, the Tribunal finds that the Annex VII arbitral tribunal

wouldprima facie have jurisdiction over the dispute;

18.Consideringthat, 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.Consideringthat, 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.Consideringthat 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.Consideringthat the Tribunal, therefore, does not consider it appropriate in the circumstancesto prescribe provisional measures with respect to the land reclamation by Singapore in the

sector of Tuas;

28.Consideringthat 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.Consideringthat 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 toMalaysias 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.Consideringthat 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.Consideringthat, 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.Consideringthat the Tribunal places on record the assurances given by Singapore as specified

in paragraphs 76 to 80;



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36.Consideringthat 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 itaccepts the importance of land reclamation and does not claim a veto over Singapores

activities;

38.Consideringthat, 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.Consideringthat the Tribunal places on record the commitments referred to in paragraphs 85

to 87;

43.Consideringthat 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.Consideringthat Malaysia and Singapore share the same marine environment in and around

the Straits of Johor;

46.Consideringthat, as this Tribunal has stated:



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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 majorreclamation 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.Consideringthat 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.Consideringthat, 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.Consideringthat, 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.Consideringthat, 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 tribunaldecides otherwise;

59.Consideringthat, 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:



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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 PulauTekong, 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 DECLARATIONOF JUDGESADHOCHOSSAINAND OXMAN

30.Our decisions to join in supporting the unanimous Order of the Tribunalare informed by a fundamental principle on which the Convention is built.

The right of a State to use marine areas and natural resources subject toits sovereignty or jurisdiction is broad but not unlimited. It is qualified bythe duty to have due regard to the rights of other States and to theprotection and preservation of the marine environment.

31.Nowhere is the importance of this principle more evident than in andaround a narrow strait bordered by each party throughout its length. Wediscern in the final statements of both parties, in particular that Malaysiaaccepts the importance of land reclamation and does not claim a vetoover Singapores activities and that Singapore is prepared to make thespecific commitments noted in the Order to accommodate Malaysiasconcerns, 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 theparties pending a decision by the Annex VII arbitral tribunal is theestablishment of a joint process for addressing their most immediateconcerns in this regard that builds on their respective statements andimplements their duty to cooperate. Two elements are particularlyimportant. The first is the establishment of a common base of informationand evaluation regarding the effects of the land reclamation projects thatcan command the confidence of both parties. The second is the fact thatthe parties are expected to consult with a view to reaching a promptagreement on such temporary measures with respect to Area D at Pulau

Tekong, including suspension or adjustment, as may be found necessaryto ensure that the infilling operations pending completion of the jointstudy with respect to that area do not prejudice Singapores ability toimplement its commitments.

33.In view of our appointment to the Annex VII arbitral tribunal, we note thatour respective decisions to vote in favor of the Order in no way prejudgeour respective conclusions on any question that may come before thattribunal, including the question of the jurisdiction of the Annex VII arbitraltribunal to deal with the merits of the case, or any question relating to theadmissibility 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 time-

limits 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.

http://www.icj-cij.org/http://www.icj-cij.org/


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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 elderson 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 Johorand 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.



26/38


History of the dispute (paras. 30-36)

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. Singaporespresence 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.



27/38


The question of the burden of proof (paras. 43-45)

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 thesovereignty, 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

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Topic 6 International Dispute Settlement and Singapore

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