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Zuraidah Ibrahim
Sun, May 25, 2008
The Straits Times
Pedra Branca ruling a good start but...

It was not exactly a court hearing from the TV series Law And Order. But the two hours of live television from the International Court of Justice (ICJ) in The Hague on Friday had the suspense of a gripping whodunnit. Or, in this case, a who-owned-it.

After some twists and turns in its script, the ICJ announced that Pedra Branca belonged to Singapore. The judges were persuaded by the 'major significance' of a 1953 letter by the then acting Johor state secretary that said, 'Johor does not claim ownership of Pedra Branca'. The ICJ decided that that statement amounted to Malaysia effectively abandoning the island and allowing the passing of sovereignty to Singapore.

The court's starting point, however, deviated from Singapore's position. Singapore had argued strenuously that the island was terra nullius or 'empty land' when it took possession in 1847. The ICJ rejected this, deciding that Pedra Branca had been part of the Johor Sultanate. At this point, nearly half way into the proceedings, things looked as if they were going Malaysia's way.

 

The suspense

With Professor S. Jayakumar, Professor Tommy Koh and Chief Justice Chan Sek Keong leading its legal team, Singapore had not lacked the political will nor legal prowess to keep its flag flying from Pedra Branca. The three men were at The Hague, waiting to hear if they had done enough to convince the panel of 16 judges of Singapore's case.

Also kept in suspense were the Prime Minister and his ministers, who were watching the live telecast in the wood-panelled Cabinet room.

Things finally turned Singapore's way. The ICJ noted that Malaysia, of which Johor became a part, had not protested against Singapore's various acts of ownership; acts that were in keeping with having sovereignty over it, or a titre de soveraine. On this basis, the court declared Pedra Branca to be Singapore's territory.

However, Singapore had not established signs of ownership or sovereignty over the nearby Middle Rocks. Nor had the 1953 Johor letter mentioned it. The court decided, therefore, that the original title stood and Middle Rocks belongs to Malaysia.

The ownership of South Ledge, a low-tide outcrop that disappears at high tide, is less clear-cut. The court ruled that it belongs to the state in whose territorial waters it is sited.

What this means is that beyond just determining the territorial waters of both Pedra Branca and Middle Rocks, discussions will have to also feature the status of South Ledge. The fate of fishermen in the area will also have to be worked out.

 

The worry

The outcome in The Hague falls short of what either country ideally wanted. For Singapore though, it is a significant enough accomplishment, as the heart of the issue was always sovereignty over Pedra Branca. In Malaysia, history may judge harshly the then acting Johor state secretary for that letter negating ownership.

More worryingly for Singapore, detractors in Malaysia could whip up feelings against Singapore's gaining another inch of what they regard as Malaysian territory. They may be less willing to deal with Singapore, for fear that its small neighbour will once again gain the upper hand. The insecurities over bilateral cooperation in the Iskandar Development Region, for example, could grow once again.

 

The key pointers

At a time when bilateral relations have moved on to show a certain maturity, it would be a pity if backsliding occurs.

What ought the ruling mean for either side, then? To my mind, it means three things.

First, it has established a formula for the resolution of intractable disputes. Some issues may be difficult to resolve through protracted bilateral negotiations, which can, at times, be held hostage by domestic politics, especially in Malaysia's rather volatile setting today.

But does this then mean that every dispute should head that way? Of course not. But what this precedent sets is this: good ties on other fronts can, with discipline exercised by the leadership of

both sides, be decoupled from difficult-to-solve problems.

Senior Minister Goh Chok Tong once spoke of harvesting low-hanging fruits first in solving problems between the two countries. This approach can occur concurrently with passing on intractable problems to a third party to arbitrate after talks do not provide resolution.

Second, the run-up to the court's decision on Friday suggests that the Malaysian mainstream media and MPs can, when they choose to, act calmly in their dealings with Singapore. The Straits Times learnt that MPs were briefed on the case, as the government sought to calm the ground in advance of the ruling.

Johor Umno Youth chief Razali Ibrahim told our bureau chief Carolyn Hong on Friday: 'I think we should be pleased that the decision was made by reference to the ICJ. We can all accept its decision.' Foreign Minister Rais Yatim and Prime Minister Abdullah Badawi have also spoken, repeatedly, in the same vein.

Then again, Mr Razali was quoted yesterday by Star newspaper as saying Malaysia should consider taking over from Singapore the management of the lighthouse on Pulau Pisang, an island owned by Malaysia. Why? The Pedra Branca issue 'has taught us a lesson on territorial claims'.

Which brings me to my third point.

The ruling brings closure to a difficult problem, but it does not mean what has been touted as a win-win outcome will continue to be viewed that way in the coming weeks. The historical baggage between the two countries will require more than brief spurts of discipline to unload, if ever. But what the ICJ process and the reactions so far have shown is that with enough political will, things can move on and a rational environment can prevail.

Will this current mood continue? No one can say with confidence but it has been a good start.

zuraidah@sph.com.sg


 

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