Grief for the Loss of Pulau Batu Puteh

The two-hour judgment was something I have awaited for. I have been following its trials from day one.The first more-or less one-hour judgement by His Excellency Vice President Al-Khasawneh gave hope for a decision favouring Malaysia, if not sounded like favoring Malaysia. It however became to the contrary when the court progressed in its decision.
I managed to grasp a handful of reasonings answering to the questions put forward before and during the trials.
The court had established the Kingdom of Johore's sovereignty over the disputed maritime features as in its judgement that at least from the seventeenth century until early in the nineteenth century, 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. Specifically, this domain included the area where Pedra Branca/Pulau Batu Puteh is located.

What later caught my attention was the court's observation that that sovereignty comprises both elements, personal and territorial, when commenting on the existence of Orang Laut. The Kingdom of Johor satisfied both.
The judgement read:
79. With regard to Singapore’s assertion about the existence of a “traditional Malay concept of sovereignty” based on control over people rather than on control over territory, the Court observes that sovereignty comprises both elements, personal and territorial. In any event, it need not deal with this matter any further as the Court has already found that Johor had territorial sovereignty over Pedra Branca/Pulau Batu Puteh (see paragraph 69 above), and has found confirmation of this title in the Sultan of Johor’s exercise of authority over the Orang Laut, who inhabited or visited the islands in the Straits of Singapore, including Pedra Branca/Pulau Batu Puteh.

When Singapore brought the issues of the 1824 Anglo-Dutch Treaty which divided the Kingdom of Johor into two excluding the disputed maritime features to be in any of the divisions, of which Singapore claimed terra nullius, the court observed that against this background, it is most unlikely that the parties intentionally left these maritime features within the Straits of Singapore outside the sphere of influence of either of the two parties and open for eventual occupation by one of the parties or another power.

The court ,after deliberating on issues of letter of donation 1825, made a conclusion that Malaysia has established to the satisfaction of the Court that as of the time when the British started their preparations for the construction of the lighthouse on Pedra Branca/Pulau Batu Puteh in 1844, this island was under the sovereignty of the Sultan of Johor.

I thought that when the status quo of the island is determined, it would then create a slim chance for Singapore to claim sovereignty over the disputed maritime features. I was wrong. The court's direction was then to decide on whether the sovereignty has passed to Singapore by looking at the conducts of the parties. The court mentioned that the title of sovereignty may be passed either by written agreement or by tacit conduct. On the latter, the court moved on to include the failure of the State which has sovereignty to respond to conduct à titre de souverain of the other State - in lay terms, the failure to stop the excercise of soveregnty of another state which has no sovereignty.

At this point, I knew that that Malaysia's fate is going to another direction. It was further mentioned in the judgement that the absence of reaction may well amount to acquiescence. The concept of acquiescence “is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent.


The Court observes that there is nothing at all in the record before it to suggest that the authorities in Singapore considered it necessary or even desirable to inform the Johor authorities of the decision about the siting of the lighthouse or to seek any consent in respect of it. That conduct may be interpreted in one of two ways: it may indicate, as Malaysia contends, that what it sees as Johor’s 1844 consent to the building and operation of a lighthouse on one of its islands simply
applied to Pedra Branca/Pulau Batu Puteh as it would have to any of its islands. Or it may indicate,as Singapore contends, that the Johor authorities had no rights in respect of this project and that such was the perception in 1847 of the responsible British authorities.

To me, the assumptions made by the court are possible, of which at the material time only Singapore has the answer. As on the part of Malaysia, it would be better to hope for the first one - a good conscience -. But being of good conscience appears to be not enough.


Eventhough there was a quite a stiff argument on the existence of Horsburgh Lighthouse - which deteriorated into this dispute, Malaysia had respectfully acknowledged Singapore's operation of it all this while and is very much ready to continue its operation onwards. With due respect, Malaysia claimed that Singapore's involvement on the Island was only limited to the building and the operation of the lighthouse which does not give the right to claim sovereignty over the Island. (In this particular aspect, I wonder what would the Islamic point of view be - on Ihya' al-Mawat - cultivating the dead lands , I personally think Sngapore has a stand on this point).

The conducts of the parties examined by the court was a long test for Malaysia. It stemmed back in the year 1844 to 1852 and then 1852 to 1952 and then 1952 to present. Within the period, Singapore laid a number of enactments supporting their administrative control on the islands. These were of weight to the court. The court however excluded the Protected Places Order 1991 which prohibits entry, without permit, to that island. Malaysia contended that this 1991 order should not be construed by the court because t came after the dispute had taken place. Malaysia was correct when it says that is not “a normal continuation of prior acts” a de ja vu phrase taken from the case of Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia).

In my point of view, the part where the court accepted the Secretary of State of Johore letter 1953 was a definite drawback.Malaysia tried to strike the letter out so as not to be taken as basis of Singapore's argument on two basis: first, that the Secretary has no authority to issue the statement and second, that the letter was on 'ownership' , not 'sovereignty'. The court rejected both. The letter created an estoppel which made Singapore continue the operation of the lighthouse as its predecessor.

Malaysia pointed out that a Petroleum Agreement was entered into in 1968 with Continental Oil Company of Malaysia following the anticipated boundaries of the 1969 Indonesia-Malaysia Continental Shelf Agreement of which Singapore made no protest. Malaysia also pointed out Indonesia-Malaysia Continental Shelf Agreement 1969 and Territorial Sea Agreement 1970 and official documents and maps of Malaysia.

In just one sentence, His Excellency made his judgement:
"For the foregoing reasons, the Court concludes that sovereignty over Pedra
Branca/Pulau Batu Puteh belongs to Singapore."

That was the end of it..as if I have forgotten the remaining two -Middle Rocks and South Ledge.

Luckily, Malaysia's persistency - by the effort of Malaysian delegates/agents - on MiddleRock and Southledge to be equally important as Pulau Batu Puteh should be praised. Malaysia made it firm to the court the both the Island should be treated as independent islands. Since the court has approved the Kingdom of Johor's title over it and nothing was done by Singapore to show against as it did to Pulau Batu Puteh, the court mantained the sovereignty of Middle Rocks to Malaysia.
As for South ledge, the court said “International treaty law is silent on the question whether low-tide elevations
can be considered to be ‘territory’. Nor is the Court aware of a uniform and
widespread State practice which might have given rise to a customary rule which
unequivocally permits or excludes appropriation of low-tide elevations . . ." The court went on deciding, sovereignty over South Ledge, as a low-tide elevation, belongs to the State in the territorial waters of which it is located.


Learning to Accept the Court's Decision

It is the spirit of respect of nation, love of peace and upholding the international law that Malaysia and Singapore had decided to be abide by a third party decision. Whatever the outcome of the decision, Malaysia has tuned itself to accept it. Malaysia is matured enough to think on the best method to settle disputes, what more a sensitive dispute like Pulau Batu Puteh. It is by looking at the future bond between Malaysia and Singapore that both are professional enough to achieve to this understanding. It is not hard to understand Malaysians reaction on this.Malaysian still have the right however to feel sad and grief on the loss of Pulau Batu Puteh which had once been under its sovereignty. I personally feel the loss.