Spotlight on Batu Puteh

Spotlight on Batu Puteh

Carolyn Hong
New Straits Times
Kuala Lumpur

In hindsight, it should have been easy to foresee that the
public reaction in Malaysia after the Sipadan/Ligitan victory
would not have focused on Indonesia.

That would have been gloating, and besides, even the most
triumphant victory quickly becomes stale news. The next challenge
beckons, and its Pulau Batu Puteh, the football-field-sized
island off Johor, which is claimed by Singapore.

The only surprising thing, perhaps, was the speed with which
the spotlight turned to Singapore and the intensity of it.

Singapore first laid claim to Pulau Batu Puteh around 1979,
along with two adjacent rocky outcrops -- Middle Rocks and South
Ledge -- which are so small that they are referred to as mere
"marine features".

All the fuss turned out to be a good thing. It pushed
Singapore to finally commit to signing the Special Agreement to
begin the process of bringing the dispute to the International
Court of Justice.

The Special Agreement is necessary because neither Malaysia
nor Singapore accepts the compulsory jurisdiction of the ICJ. It
spells out the dispute, and provides a time frame for the various
legal processes such as the submission of written pleadings.

After the Special Agreement is signed, it will have to be
ratified by both governments before being submitted to the ICJ at
The Hague.

Singapore had dragged its feet in responding with suitable
dates for signing, to the bafflement of Wisma Putra which had
made several requests. Singapore's Foreign Minister S. Jayakumar
has now proposed January, and it's up to Malaysia to accept.

If the Special Agreement is signed and submitted to the ICJ
within the next few months, the case could be heard in three
years.

The fluster over Pulau Batu Puteh is, of course, linked to
Malaysia's Sipadan/Ligitan victory at the ICJ on Dec. 17. That
verdict was a reminder of unfinished business but more than that,
it was seen as having a significant impact on this case.

The judgment is relevant but not necessarily in support of
Singapore's position vis-a-vis Pulau Batu Puteh, called Pedra
Branca by the Singaporeans. In fact, it does not significantly
affect either party's legal position.

The ICJ decision was notable for its emphasis on
"effectivites", meaning the exercise of authority in the capacity
of a sovereign on disputed territory. But this does not help
Singapore's case.

In the judgment awarding Sipadan and Ligitan to Malaysia, the
turning point was Malaysia's (and its predecessor's)
administration of the islands for more than a century, without
protest from any party.

Malaysia and its colonial ruler, Great Britain, had considered
themselves sovereign over the islands, and behaved accordingly.
They made laws, enforced them, and adjudicated disputes.

The authorities then never doubted that they had a legal title
to the islands, dating back to the Sulu Sultanate. Indeed, it
came as a bit of a shock to Malaysia when the ICJ found that the
treaty evidence was too vague and unspecific to confer it a
treaty-based title.

But in the case of Pulau Batu Puteh, the Sultan of Johor in
1844 allowed the British to construct and upkeep the Horsburgh
lighthouse there, solely with permission.

(The island had been part of the JohorRiau-Lingga Sultanate
since the early 16th century.) The lighthouse was completed in
1851, and is today maintained by Singapore's port authority,
along with four other lighthouses. Another one of these four
lighthouses is also on Malaysian territory -- Pulau Pisang in the
Straits of Malacca.

In 1824, the Sultan of Johor ceded Singapore and the
surrounding 10 nautical miles to the East India Company. This did
not include Pulau Batu Puteh, Middle Rocks or South Ledge.

Pulau Batu Puteh is a good 25 nautical miles from Singapore,
and only 7.7 nautical miles from Johor.

Furthermore, the ICJ has clearly stated that the construction
and operation of lighthouses and navigational aids are not
normally considered as a manifestation of State authority,
although they may be legally relevant in the case of very small
islands.

The next major structures to be built were the communications
tower in 1989 and helipad in 1992. These do not strengthen
Singapore's case, as in the Sipadan/Ligitan judgement.

As for Pulau Batu Puteh, the critical date will be decided by
the court but it is likely to be around 1979, when Malaysia
published its continental shelf map showing the island as
Malaysian. Singapore protested in 1980.

Furthermore, Malaysia had sent official protests each time
major construction was undertaken by Singapore.

As in the Sipadan/Ligitan case, maps are not necessarily the
strongest evidence. Many of these maps would have been produced
for specific purposes such as marine navigation and, as such,
have limited legal value for territorial disputes. Besides, not
all maps would have been accurately drawn.

Their legal value, says the ICJ, is that they constitute
information which varies in accuracy from case to case.

Pulau Batu Puteh, tiny as it is, is significant for its
strategic position, impact on the delimitation of territorial sea
boundaries and, most of all, for national pride.

This case can be expected to be more complex than the
Sipadan/Ligitan matter which, by comparison, was an open-and-shut
case.

Wisma Putra has been working on this for more than a decade.
The first bilateral negotiations were held in 1993, and the
second in 1994. Both talks broke down. In 1995 and 1996,
negotiations were held on the referral of the case to the ICJ.

In April 1998, the text of the Special Agreement was agreed
upon. However, the Sipadan/Ligitan case came up first, and Pulau
Batu Puteh went on the backburner.

Its time has now arrived. It's worth remembering that once the
case has gone to the ICJ, there's no turning back.