To make up for a long absence, I will post in quick succession on a number of issues: Pedra Branca, racist bloggers, the Yaw Shin Leong mini-scandal, and (just in) the disciplinary fallout from Mas Selamat’s escape. Let me start with a short comment on Pedra Branca.
The Straits Times
May 26, 2008
SM: Accepting outcome shows maturing of ties
By Zakir Hussain
THE world court’s decision on Pedra Branca has untied a ‘tricky knot’ in bilateral ties between Singapore and Malaysia, Senior Minister Goh Chok Tong said yesterday.
Both sides can now ‘look forward instead of being bogged down by this issue’, he told reporters ahead of a charity golf tournament to raise funds for the needy in Yuhua constituency.
… … …
‘Personally, I’m disappointed that we did not get the award for Middle Rocks,’ he added.
‘I thought it would either be all or nothing, a binary solution, because the three rocky outcrops were quite close to one another.’
‘But nevertheless, there is a hint of Solomon in the decision,’ he said, referring to the Biblical king known for his wisdom.
‘And I think perhaps it’s the fair and best outcome for both sides.’
Perhaps the most famed example of King Solomon’s wisdom is chronicled in 1 Kings 3:16-28 of the Bible. Two female prostitutes come before Solomon with an infant boy, each claiming that the child is hers. Aside from the rather unflattering comparison which SM Goh draws between Singapore and Malaysia, and prostitutes, there is yet another difference between the story of Solomon and the Pedra Branca dispute.
In the former, Solomon merely threatened to cut up the child with a sword as a means of determining its true mother. With its ruling on Friday, however, the International Court of Justice (“ICJ”) actually severs in two the group of islands comprising Pedra Branca, Middle Rocks and South Ledge. (The judgment is available here.)
At first glance, this decision seems almost result-oriented. Professor Simon Chesterman of New York University, for instance, speculates that “it might be a face-saving way of resolving the question of Pedra Branca [for Malaysia]“. Neither party has scored a resounding victory, which would have left the other side smarting from a wounded pride. While Singapore gets to keep Pedra Branca, along with whatever military facilities it has on the islet, it cannot act with impunity, either on Pedra Branca itself, or in the nearby waters, since Malaysia has sovereignty over Middle Rocks just 0.6 nautical miles away.
Moreover, the fate of South Ledge hangs in balance, pending a delineation by both sides as to territorial waters. Such delineation won’t necessarily be straightforward either; the ICJ in its judgment noted that “South Ledge falls within the apparently overlapping territorial waters generated by the mainland of Malaysia, Pedra Branca/Pulau Batu Puteh and Midde Rocks” (at para. 297).
So this decision far from ’settles’ the ongoing dispute. Probably, it is a sub-optimal outcome for both sides. In the aftermath, Singapore and Malaysia are still compelled to work towards a cooperative solution, first as to the ownership of South Ledge, and second as to any long-term arrangements over the entire Pedra Branca group of islands.
Evolving Understanding
One further point of note from the ICJ’s judgment. The Court stressed throughout its judgment on the “developing or evolving understanding” which Singapore and Malaysia had about sovereignty over Pedra Branca (at paras. 162, 203, 224, 276).
This approach merits praise. The Court avoided a legalistic appeal to any single document or incident as ‘constituting’ the question of sovereignty. In particular, while emphasizing that the 1953 letter by the Acting State Secretary of Johor was of “major significance”, the Court pointed out that the words, “the Johore Government does not claim ownership of Pedra Branca” did not have a conclusive or binding legal effect, but merely demonstrated the parties’ developing understanding of their position over Pedra Branca (at paras. 203, 227, 229).
Second, by highlighting what it perceived to be “a convergent evolution of the positions of the Parties regarding title to Pedra Branca/Pulau Batu Puteh”, the Court seemed to advance a notion of sovereignty based on multilateralism. This was even as it identified, on Singapore’s part, various acts à titre de souverain, which consist of concrete displays of sovereignty by one State, and a unilateral failure to respond or oppose by the other State (interpreted as consent).
By implying that state sovereignty is predicated on mutual recognition by other states, the Court affirmed that each state actor operates within an international society built on not just self-interested power, but also respect, understanding and reciprocity.
Epilogue
The lesson for Singapore and Malaysia to learn here is that a legal answer may not be fully satisfactory. Before Friday, both sides fell over each other insisting that they would abide by the ICJ’s decision, no matter what. Both implicitly assumed, though, that the decision would be a cure-all, if not for cross-straits relations as a whole, then for the “irritant” of an issue that was Pedra Branca.
Singapore, in particular, has a fixation for “legal arguments” and “objective facts”, as was evident in DPM S Jayakumar’s opening submissions before the ICJ during Singapore’s second round of oral pleadings. We have used that same legalistic approach in various other situations. For instance, over the 1961 and 1962 Water Agreements, Singapore insisted that revising the prices of water (which even we acknowledged was low at 3 sen per 1,000 gallons) was out of question. The issue was, and is, about the sanctity of agreements, MFA maintains. There has even been talk about resorting to international arbitration (put on ice for now).
Apparently, though, this strategy of “throwing the law book in his face” may not work. Obviously, it alienates the other side — and, as the Pedra Branca saga shows, it may not produce a conclusive result. Sometimes, one has to look beyond what SM Goh calls a “binary solution”, and be willing to give and take a little.
Many bilateral ‘issues’ remain to be resolved between Singapore and Malaysia: water, the Causeway, Singaporean involvement in the Iskandar Development Region, etc. One hopes that both sides will take on these issues with greater empathy and imagination.
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