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Monday, November 10, 2008

Consequencies of the ICJ Pedra Branca award to Singapore

Tuesday November 11 2008 (Malaysia)
After a 30-year tussle, the world court last week awarded the island of Pedra Branca to Singapore and nearby Middle Rocks to Malaysia. How has the judgment changed the state of play in the Singapore Strait, and ties between the two neighbours? Straits Times senior political correspondent Lydia Lim writes.

SINGAPORE, May 31 — A week after the world court's judgment that Pedra Branca belongs to Singapore, the strategising over competing maritime claims in the area has shifted gear.
With the issue of ownership settled, the issue that now seems in contention is the meaning of the terms island and rock.

Malaysia's Foreign Ministry apparently wants a subtle name change.

It has asked the media on its side of the Causeway to drop the word “Pulau” and stick to “Batu Puteh” or “Pedra Branca” — white rock in Malay and Portuguese respectively.

Alternative news website The Malaysian Insider reported on Monday that checks with two national dailies confirmed such a request.

Singapore, on its part, maintains that Pedra Branca is an island.

Why make a mountain out of what seems a molehill?

One possible reason: the United Nations Convention on the Law of the Sea (Unclos) says that islands generate exclusive economic zones but rocks do not.

And right now, both sides are gearing up for talks to delimit their maritime boundary in the Singapore Strait.

So, did last Friday's judgment by the International Court of Justice (ICJ) bring closure to the issue of sovereignty over Pedra Branca, only to set the stage for a fresh tussle over maritime boundaries?

Did the judgment clarify matters or complicate them?

And what lessons can be drawn from this episode about turning to international courts to settle bilateral disputes?

Sorting out the basics

Set high on a cliff on the border between Cambodia and northeastern Thailand is the ancient Khmer temple of Preah Vihear, which both countries once claimed.

In 1962, the ICJ ruled that Preah Vihear belongs to Cambodia.

The Thais, whose ancestors had worshipped for centuries at the temple they call Khao Phra Viharn, accepted the decision with a heavy heart.

Yet, today, the two governments continue to squabble over the land around the temple, most recently over a 4.6km area that Cambodia had included in its proposal to Unesco to list Preah Vihear as a World Heritage Site.

That issue is not likely to be resolved until the Joint Boundary Commission finishes demarcating the entire 640km-long border between the two countries, a task that is expected to take another decade.

The ICJ judgment on Preah Vihear dates back to before Singapore became an independent nation.

That gives a sense of how long it can take to sort out boundary issues even after an international court rules on what's most contentious.

Closer to home are the islands of Sipadan and Ligitan — the subject of a former territorial dispute between Malaysia and Indonesia.

In December 2002, the ICJ awarded the islands to Malaysia.

Six years have passed but Kuala Lumpur and Jakarta have yet to settle their maritime boundary in that part of the Sulawesi Sea, east of Borneo island.

The stakes are high because oil and gas reserves have been found in the Ambalat area, just south of Sipadan and Ligitan.

There were some tense moments last year when Indonesia accused Malaysian planes and warships of encroaching into its territory in the disputed zone.

Following last week's ICJ judgment on Pedra Branca, are Singapore and Malaysia's discussions on their maritime boundary likely to be as long-drawn-out and convoluted?

It is hard to say.
The key point to note, says Dr Robert Beckman, associate professor of law at the National University of Singapore (NUS), is that “it was impossible to negotiate the maritime boundary in this area until it was decided which state had sovereignty over the three features”.

The three are Pedra Branca and the two maritime features closest to it, Middle Rocks and South Ledge.

Under Unclos, the extent of a state's territorial seas depends on where its land and island holdings end.

A state can claim a territorial sea of up to 12 nautical miles (one nautical mile = 1.852km) and an exclusive economic zone of up to 200 nautical miles from the edge of its lands and islands.

Within the first, a state has the right to set laws and regulate the use of the seas.

Within the second, it has the right to explore and exploit any resource in the waters and seabed, including the use of the currents and winds to generate energy.

The tricky part of the ICJ judgment is that it awards Pedra Branca to Singapore, and two clusters of granite just 0.6 nautical miles to its south — known as Middle Rocks — to Malaysia.

The court also ruled that South Ledge, which is visible only at low tide and does not generate its own territorial waters, belongs to the state in whose territorial seas it lies.

The court was asked to decide only on sovereignty and not on the maritime boundary.

Singapore has made it clear that it would have preferred to have been awarded all three features but that it accepts the court's judgment.

The outcome seems to complicate the delimitation of a maritime boundary in an area where the territorial-sea claims of Singapore, Malaysia and Indonesia overlap.

After all, Pedra Branca is only 7.6 nautical miles away from the Indonesian island of Bintan and 7.7 nautical miles from the Johor coast.

Institute of Southeast Asian Studies director K. Kesavapany says that as far as implementation details are concerned, “the water is still somewhat murky”.

The former Singapore high commissioner to Malaysia adds that “much would depend on how the officials from both sides sort out the basics for co-existence within the waters surrounding Pedra Branca, Middle Rocks and South Ledge”.

The Joint Technical Committee tasked with ensuring a smooth implementation of the court's judgment is due to meet soon.

Its members will need to iron out issues such as naval patrols and fishing rights in the waters around Pedra Branca and Middle Rocks.

It is unclear whether this same committee will be in charge of delimiting the maritime boundary, or whether another group will be set up to do so since that negotiation will also need to involve Indonesia.

Associate Professor Simon Chesterman of the NUS law faculty says people should not expect an international court to resolve disputes with the same finality as domestic courts.

“In Singapore, if you have a dispute with your neighbour, a court can resolve that dispute — if necessary, enforced by the police.

“At the international level, the ICJ can answer only the specific questions that parties agree to put to it,” he says.

“So what that means is that in a case like this, the court gets to answer only fairly limited questions. In particular, it was beyond the power of the court to resolve the maritime boundary question.”

What the ICJ judgment has achieved is to settle the issue of sovereignty in a way that both governments can accept and justify to their political constituencies back home.

By contrast, if the current outcome had been the result of bilateral negotiations, there would, no doubt, have been outrage on both sides of the Causeway.

As Beckman puts it: “The international dispute settlement process legitimises the result because it is accepted by both sides in advance as a fair and reasonable method of resolving the dispute.”
The political fallout

It is early days yet but the Malaysian government has thus far managed to keep a firm lid on any public unhappiness over last week's judgment.

Significantly, the Speaker of the Malaysian Parliament — who hails from the ruling Barisan Nasional coalition — prevented opposition MPs and government critics from capitalising on the outcome by disallowing this week a motion to debate the Pedra Branca judgment.

Unlike previous bilateral disputes, the target of attacks this round is not Singapore but the administration of Prime Minister Abdullah Ahmad Badawi, already weakened by its loss in March of its two-thirds majority of seats in the House.

Associate Professor Joseph Liow of the Rajaratnam School of International Studies says while he would not be surprised by the occasional potshot at Singapore, “most of the sabre-rattling will be directed at the Abdullah administration”.

“I would expect his detractors and opponents to seize upon this opportunity to draw further attention to the weakness of his administration, and to portray his government as the one that 'lost' Pedra Branca,” he says.

Kesavapany is optimistic that while there will be voices of dissatisfaction at lower levels, “at the government-to-government level, the relationship will be stable”.

“On the whole,” he adds, “Singapore can put the issue of Pedra Branca behind it and concentrate on managing its relations with Malaysia in the context of the new situation that has been created by the ICJ decision.”

But the outcome of the case may have a bearing on the options available to resolve other outstanding disputes, especially those that Singapore had proposed be settled by reference to a neutral panel of legal experts.

It had suggested that the dispute over the price of water supplied by Malaysia to Singapore be settled through arbitration, while that over the 1990 Points of Agreement on the development of Malayan Railway land in Singapore be referred to either the ICJ or international arbitration.
Whether Malaysia will agree hinges on its calculations of the likely political costs of possible outcomes.

For once the two parties submit a dispute to either adjudication or arbitration, they have little control over the outcome, which is final and binding.

Associate Professor Simon Tay, chairman of the Singapore Institute of International Affairs, agrees that several outstanding issues have dragged on for a long time and would gain from third-party mediation and settlement.

The price of water is one of them. But for that to happen, “there has to be political will, and a willingness to abide by the decision even if you lose'', he adds.

The political situation in Malaysia today is a lot more in flux now compared to early 2003, when both sides signed a Special Agreement to refer the Pedra Branca dispute to the ICJ.

It may be a while yet before the government in Kuala Lumpur feels ready to do the same for either water or land, and risk a political storm should the judgment not be in Malaysia's favour.

Tay says one drawback in the current bilateral relationship is the absence of a standing body, with a mutually accepted process, to discuss problems and seek expertise for possible solutions.
Instead, bilateral disputes are too often left to “high politics”, he says, and escalated to the highest levels of the political leadership.

“A regular method of consultation, with options for independent expert help and even mediation, can potentially lower the political tension,” he says.

In the absence of such a mechanism, resort to third-party settlement remains the most objective way to resolve intractable disputes.

But whether such judgments end up helping or hindering bilateral ties ultimately depends on how they are received. After all, it rests with the states themselves to decide how they will enforce the court's ruling.
The Joint Technical Committee has its work cut out for it trying to find answers acceptable to both sides.
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