Pedra Branca Dispute - The Evidence Of Words

Source : The Straits Times, Nov 28, 2007

THE Pedra Branca case before the International Court of Justice will be decided by June next year. What factors will the court focus on?

The record suggests that the most persuasive arguments for the court are to be found in treaties and other formal documents that demonstrate a prior agreement on, or contemporaneous official understanding of, the borders between disputing nations.

Where these are not available, then what their predecessors - often the colonial authorities - did administratively would be most important in deciding where the lines fall.

Next, the court attaches much importance to whether one party has shown open, effective and unchallenged control of the disputed territory for a substantive period.

Finally, it prefers to divide equally any disputed territory whose ownership still remains undecided after considering these factors.
Conversely, the court seems to weigh quite lightly evidence that is mainly geographical (topographical and cartographical), cultural, ethnic, ideological or economic.

In the case of Pedra Branca, most people feel Singapore will win, given its open, continuous and effective administration of the island since 1847. Though this is a very strong point, the relevant treaties must still be dealt with in their fine print.

But first, the broad outlines. The Anglo-Dutch Treaty of 1824 divided the Malay world into two spheres of influence, splitting up the Riau- Lingga-Johor sultanate into the Johor sultanate under the (British) in the north and the Riau sultanate under the (Dutch) in the south.

However, Johor remained sovereign over its people and territories as it was never a colony of Britain, Malaysia argues. Thus, if it had title to Pedra Branca before the treaty, it was not taken away by it.

No party disputes that Johor has remained sovereign to this day, but the fine point is this: Johor retained sovereignty over land and sea north of what? What did the British and Dutch use as the border?

The text of the treaty says the Dutch agreed 'not to open any office on the Malay peninsula or make any treaty with its rulers' while the British agreed 'not to establish any office on...islands south of the Strait of Singapore, or to make any treaties with the rulers of these places'.

Malaysia argues that anything north of the Strait of Singapore includes the strait itself and thus Pedra Branca, which stands at the eastern entrance of the strait, dividing it into the Middle and Southern Channels. The border, it says, is thus the line along the southern border of the strait.

But a more natural reading - which international law requires - would be that north means 'north of the Strait of Singapore' since south is defined as 'south of the Strait of Singapore'. The logic must have been to keep the strait free for maritime traffic of all nations. After all, the strait was then already one of the world's busiest waterways, linking, as it did, the South China Sea to the Strait of Malacca and the Indian Ocean, which was precisely that which had justified the founding of Singapore itself.

Now, if the parties meant the strait to be kept as an international waterway free from each other's control, then Pedra Branca was not a possession of Johor. Instead, it was terra nullius (no man's land), and anyone could own it if they established a substantive and substantial presence there. This, in fact, British Singapore did and a lighthouse was put up on the island and carefully managed to this very day.

So how can this dispute be settled? Contemporaneous documents from individuals involved would shed much- needed light. Thus, Malaysia points to a letter from the government of India to John Crawfurd (then the second British Resident in Singapore, from 1823 to 1826).

Dated March 4, 1825, the letter stated that 'our acquisition of these Islets is not at variance with the...Treaty...as they are all situated North of the Southern limits of the Straights (sic) of Singapore'.

Whatever these islets may have been, the point is that, Malaysia argues, the authorities of the time understood the Anglo-Dutch border to be an imaginary line drawn along the 'Southern limits' of the Strait.

So that settles it then?

Not quite. Singapore points to someone far more important and closer to the

real action. A letter from the Sultan of Johor to the Principal Secretary of State to the Colonies, dated March 20, 1886, asked that a register of the 'islands in the open Seas and Straits belonging to the State of Johore' be established. The Dutch had occupied Natunas, which the sultan felt was within his domain, so he wanted the British to recover it for him - which they didn't.

In his letter (written under legal advice), entitled The Natunas, the Anambas and Tambilan Islands, Sultan Abu Bakar declared: 'By the English-Dutch Treaty of 1824, the Dutch are excluded from...islands to the North of the Straits of Singapore.

'The groups in question are situated to the north of that line (though one island) is below the line of the Straits of Singapore.'

Thus, in the mind of the Johor sultan, the dividing 'line' was the whole of the Strait of Singapore. That is, he clearly understood the strait - and thus any islands within it, including, logically, Pedra Branca - to be outside his domain. In fact, so there would be no confusion, the word 'North' was even underlined in the original document.

Malaysia also points to the Crawfurd Treaty of 1824, by which Johor ceded Singapore as well as the waters and islands within 16km of the main island to Britain. Pedra Branca, Malaysia notes, stands 39.5km away.

But if the Crawfurd Treaty is interpreted literally in a wooden manner, Singapore argues, the British should have received parts of Batam too. Clearly, it must be read commonsensically. Read that way, the Crawfurd Treaty was concerned with only islands within 16km of the main island, not those beyond. That is, it did not set out to also address the question of sovereignty over islands beyond the 16km, including Pedra Branca.

Overall, Singapore has the stronger case, given its continuous state activity on Pedra Branca since 1847 that was unchallenged until 1979. But as to the two treaties, which interpretation will the court find more persuasive? We should know by next June.

--------------------------------------------------------------------------------

IN THE AIR

Overall, Singapore has the stronger case, given its continuous state activity on Pedra Branca since 1847 that was unchallenged until 1979. But as to the two treaties, which interpretation will the court find more persuasive?