A big decision has been made. The International Court of Justice (ICJ) decided to award contested Pedra Branca (PB) island to Singapore on May 23, 2008. This was not a complete defeat for Malaysia since it gained Middle Rocks. Meanwhile, the sovereignty of South Ledge remains undecided.
The 28-year ownership dispute over these three islands in the eastern entrance of Singapore Strait was brought to the ICJ in 2003 by Malaysia and Singapore. Public hearings were held in The Hague, the Netherlands, on Nov. 6-23, 2007, where the two claimants presented their arguments. The ICJ decision was made by majority vote six months later. The future of Pedra Branca was central to the dispute, so the decision may be viewed as a victory for Singapore.
This case reminds us of the earlier dispute over the islands of Sipadan and Ligitan, decided in 2002 between Indonesia and Malaysia. Then Malaysia won. Now Malaysia has lost. However, no matter what the result is, there is significant progress whenever territorial disputes are resolved between nations. It is interesting to know how the ICJ finally determined the sovereignty of these disputed islands.
The court initially concluded that the sovereignty of PB was historically with the Johor Sultanate, which is now part of Malaysia. After studying the history of Johor Sultanate and the Dutch and British positions on control of Southeast Asia, and also the role of the East India Company, the court concluded "the Sultanate of Johor had original title to Pedra Branca" (para. 69 of the judgment). This conclusion was implicitly an objection to Singapore's previous argument that PB was terra nullius (ownerless), so that it was eligible for "lawful occupation".
However, this initial conclusion did not lead to a decision to award PB to Malaysia. One of the reasons is the letter dated on Sept. 21, 1953, sent by the acting state secretary stating that "the Johore Government does not claim ownership of Pedra Branca" (para. 196 of the Judgment). This letter was a reply to a letter sent previously by the colonial secretary of Singapore to the British adviser to the sultan of Johor concerning the status of the island.
This letter of Sept. 21, 1953, became the key to the Court reaching its conclusion that the sultan of Johor had disclaimed sovereignty over PB hence that sovreignty reverted to the United Kingdom and "the authorities in Singapore had no reason to doubt that the UK had sovereignty over the island." (para. 233 of the Judgment).
The reasoning of the court in making their determination may be debatable, but the decision is final and binding. Like it or not, both parties should accept it. This principle, of binding acceptance of the final judgement was, of course, agreed prior to bringing the case before the court. If the decision is irrevocable, so what is next? The interesting next step to watch for is the delineation of maritime boundaries in the Singapore Strait in the aftermath of the ICJ decision.
It has been widely understood that the strait where the three islands are located is a busy shipping route. Therefore the certainty of sovereignty and sovereign rights over maritime area around the features is undoubtedly important. Hence, the delimitation of maritime boundaries among three relevant parties: Indonesia, Singapore and Malaysia is important. This will, hopefully, generate a definitive line dividing maritime areas under each country's jurisdiction.
It is worth recalling that Indonesia and Malaysia agreed seabed boundaries in the area in 1969, generating a line starting from point 11 (around 12 km to the east of PB) heading northeast in the South China Sea. In 1973, Indonesia also concluded a maritime boundary with Singapore. Put simply, there are now some outstanding pending boundary segments that these three neighboring states need to settle.
In a technical perspective, a line delimiting maritime space in the area can be constructed by the equidistance principle (or median line) considering that it also deals with territorial sea (up to 12 nautical miles from baseline/coastline of each state) as indicated in article 15 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
The equitable solution for delineating the maritime area beyond 12 nautical miles, notably the exclusive economic zone and continental shelf, is suggested on the basis of articles 74 and 83 of UNCLOS (and equidistance is not always necessarily equitable). For this purpose, Indonesia, Malaysia and Singapore will need to sit together multilaterally or bilaterally for negotiation purposes.
Some relevant considerations may include:
First, the fact that these three features are small and in an "inconvenient" position that may complicate the delimitation.
Second, the possibility that these three features may generate further maritime claims (upon territorial sea, exclusive economic zone and continental shelf).
Third, the existing maritime boundaries among the three neighboring states. No matter how difficult it is for the three states to delimit their maritime boundaries, an immedediate delineation process will, undoubtedly, be better for all. Certainty in maritime boundaries will provide each state with clarity in utilizing and managing maritime resources. The good will and good faith of the neighboring states will be the key for future delimitation.
The writer is a lecturer in the Department of Geodesy and Geomatics, Gadjah Mada University, Yogyakarta. He is currently an Australian Leadership Award Scholar (PhD candidate) at the University of Wollongong. This is his personal opinion.