The Isle of Pedra Branca: Has the ICJ opened a Pandora’s Box? — Mohd Hazmi Mohd Rusli
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JULY 13 — In February 2017, Malaysia announced that it is making an application to revise the decision of the International Court of Justice (ICJ) made in 2008 on the sovereignty over Batu Puteh or Pedra Branca, as it is known in Singapore. Later in July 2017, Malaysia sought interpretation of ICJ’s Pedra Branca 2008 judgment.
This overlasting dispute leads to one solid question — has the ICJ opened a Pandora’s Box?
Pedra Branca is now part of Singaporean territory, an outlying rock located 7.7 nautical miles off the Johor coast and about 24 nautical miles off the eastern coast of Singapore towards the opening to the South China Sea.
After centuries of establishment, the Sultanate of Johor became part of the British Commonwealth in 1914 and later absorbed into the Federation of Malaya in 1948, a British protectorate. The Federation of Malaya gained full independence and became a sovereign State in 1957.
Singapore based its claim, among others, on a letter issued by M. Seth Bin Saaid, the acting Secretary of State, Johor in 1953 relinquishing Johor’s rights over Pedra Branca. This letter was one of the solid evidence that convinced the ICJ to award Pedra Branca to Singapore in 2008. Was the Sultanate of Johor, a sovereign State in 1953?
The sovereignty of the Sultanate of Johor
The Sultanate of Johor is one of Malaysia’s oldest sultanates, established by the heirs of the great Malacca Empire in 1528.Unlike the Portuguese colony of Brazil, the Portuguese did not actually colonise the whole Malay Peninsula when it sacked Malacca in 1511 but were onlyconfined to the walls of A’Famosa in their Asian colony of Portuguese-Malacca.
The Dutch and the British too, attempted to expand their cloak of influence into the Malay World. In 1610, the Dutch established Batavia on the island of Java and were successful in expanding their influence into Malacca in 1641. In 1685, the British arrived in Southeast Asia and built Fort Marlborough in their newly-founded colony of Bengkulu (Bencoolen) in Sumatra.
In early 1600s, Aceh rose as a major native power in the region and colonised most parts of northern Sumatra and the Malay Peninsula. The gradual fall of Aceh after the death of Sultan Iskandar Thani in 1641 strengthen Johor’s position as the foremost Malay power taking control over the Strait of Malacca.
By 1680, Riau became Johor’s main port and this was affirmed by the Dutch governor of Malacca, Thomas Slicher who described that Riau was a thriving port with bustling shipping activities. Meanwhile, the Dutch was not keen to develop Malacca as they put more importance on Batavia, their capital in the East. Francis Light settled on Penang in 1786 but like Bencoolen, it remained largely a colonial backwater.
The more serious competing claims began between the British and the Dutch in the Malay World when Stamford Raffles, the then Governor General of Bencoolen decided that the British needed other strategic settlement particularly on the Malay Peninsula to counter Dutch hegemony in this region. Raffles had his eyes on Singapore.
Before European intervention, Johor territories were far-flung, from Pahang to the north and the Lingga Islands to the south — a sphere of influence that included Singapore and Pedra Branca. The ICJ itself, upon delivering its judgments in 2008 recognised that the Sultanate of Johor possessed historical ownership over Pedra Branca. Pedra Branca was never a terra nullius, a no-man’s land.
The 1824 Anglo-Dutch Treaty split the Johor Empire into two parts — the Riau Empire and the Johor Empire. The former was abolished by the Dutch in 1911 while the latter remains to this day. Earlier on 6 February 1819, the Singapore Treaty was signed between Raffles and Sultan Hussein accompanied by the Temenggong officiating the advent of British presence inSingapore. On 2 August 1824, another treaty was signed marking the official cession of Singapore by the Sultan to the British — Singapore was no longer part of the Johor Sultanate since then. The cession included adjacent islands or islets within 10 geographical miles from the main island of Singapore. Pedra Branca is located beyond this 10 geographical miles limit.
While the rest of the Malay States gradually fell into colonisation and vassalage, Sultan Abu Bakar of Johor in 1885 entered into a Treaty of Friendship with the Queen Victoria of Britain that formally recognised the independence and sovereignty of the Sultanate of Johor with Sultan Abu Bakar carrying the title ‘Maharaja’. This meant that Johor was the only Malay State on the Malay Peninsula in the 19th century that was recognised as an independent sovereign State.
Johor became a British protectorate
Sultan Abu Bakar, fondly known as the Father of Modern Johor, managed to ward off British intervention during his reign between 1868 to 1895. Nevertheless, his successor, Sultan Ibrahim was unable to withstand British aggresive attempts to interfere into Johor’s domestic affairs via the appointment of a British adviser, Douglas Graham Campbell in 1914. This remarkable event transformed Johor from a sovereign entity into a mere British protectorate State.
Johor was briefly made a colony under the Empire of Japan during Japanese occupation between the years of 1942 to 1945. Subsequent to the end of World War II, Johor was again made a British protectorate State when it merged with other Malay States to form the Federation of Malaya in 1948.The Federation of Malaya gained independence in 1957.
Cession of territory
Under modern international law, a protectorate is a dependent territory with a certain degree of independence and autonomy while retaining the suzerainty of a stronger sovereign nation. In exchange of protection from the greater State, the protectorate normally accepts specified obligations, and it depends on its suzerain on matters pertaining to foreign relations and military affairs. In short, a protectorate remains an autonomous part of a sovereign state and is not an independent State in itself.
Nemo dat quod non habet, literally means ‘no one gives what he does not have’ — a legal rule indicating that the attainment of a possession from someone who has no ownership right to it denies the new owner any title to such ownership. One can only gives away what he owns.
For instance, when the French sold Louisiana to the United States of America (USA) in 1803, France was the actual sovereign of the said territory. Russia was in a position to sell off Alaska to the American government in 1867as it was the former sovereign over the land. Both Louisiana and Alaska today are now states within the USA. Similarly, the Sultan of Brunei, a sovereign that used to control the entire coastal areas of the island of Borneo before European intervention, possessed rights to cede Sarawak to the Brooke Family in 1841. Sarawak is now part of Malaysia.
When the former Secretary of State of Johor, M. Seth Bin Saaid wrote a letter to the British government in Singapore relinquishing sovereignty of Johor over Pedra Branca in 1953, Johor was already part of the Federation of Malaya. It was no longer an independent sovereign State like it used to prior to 1914. Malaya only gained independence and became a member of the United Nations in 1957.
In 1953, the sovereign ruler of Johor and the Federation of Malaya was neither the Sultan of Johor nor the Chief Minister of Malaya, but the British High Commisioner for Malaya — General Sir Gerald Walter Robert Templer to be exact. The British High Commisioner was the one with power to decide issues pertaining to the sovereignty and territorial integrity of Malaya. This position was replaced by the King or the institution of the ‘Yang DiPertuan Agong’ when Malaya gained independence in 1957 and later became Malaysia in 1963.
It is an indisputable fact that prior to its inclusion as a British protectorate, Johor was the sovereign of Pedra Branca. Nevertheless, in 1953, the sovereignty over Johor and the Federation of Malaya wereno longer with the the Sultan but vested upon the British High Commisioner of Malaya, Sir Gerald Walter Robert Templer. As such, the Acting Secretary State of Johor, M. Seth Bin Saaid was not in the position to relinquish the sovereignty over Pedra Branca to Singapore.
With the isle of Pedra Branca now with Singapore, the ICJ has opened up a pandora’s box as it has created endless claims of sovereignty (or even claims over sovereign rights) between Malaysia and Singapore in the southernmost portion of the South China Sea. The decision made by the ICJ has distorted the history of Malaya on the actual status of the Sultanate of Johor in 1953 - whether it was sovereign or just a mere protectorate State.
It is understood that the decision of the ICJ is final and could not be appealed againts. However, it is also not too simplistic to state that there might have been perplexities in determining sovereignty over Pedra Branca. Notwithstanding the decision of the ICJ, Pedra Branca should have remained as part of Malaysia.
* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.