In Weblog (Jan 1) Onn Yeoh commented that although the Singapore Straits Times ran a commentary (Get on with it) which essentially tells Malaysia "let's go to court" to settle the current dispute between Singapore and Malaysia over a rocky island atoll called Pulau Batu Putih by Malaysia and Pedra Branca, by Singapore. Yet, according to Foreign Minister Syed Hamid Albar, he has not received any communication from Singapore about signing an agreement to take the matter to the International Court of Justice (ICJ).

Why has the Singapore government not acted on Straits Times' suggestion, agreed to by us, with alacrity?

It is likely that Singapore is diffident that it will definitely win the case if it were brought before the ICJ.

From reports so far, it appears that Malaysia is staking a claim on historical basis based on:-

  • treaties, with particular reference to the Anglo-Dutch Treaty signed in 1824 by which a line was drawn dividing the respective spheres of influence on either side of the Straits of Malacca and south of Singapore, and the line places the island within the British sphere of influence within the territory of the Johor Sultanate which had exercised complete jurisdiction and sovereignty over it since 1513. There is no evidence to the contrary that British had ever ceded their rights over the island to Singapore both before or after 1965, when Singapore separated from Malaysia; and

  • maps, including (according to Johor Menteri Besar Abdul Ghani Othman) one that was produced by the United States army.

    Since when however may the United States — which has been criticised of late by our politicians as being imperialistic in its interference of Middle East geopolitical affairs — be relied upon as an arbiter of international territorial disputes based on the maps it produced?

    If the drift of ICJ's deliberations — that awarded the Sipadan and Ligitan islands to Malaysia over Indonesia's claims — were grasped, it will soon be realised that historical arguments, records and maps will weigh less to ICJ than actual and ostensible acts evincing exercise of sovereignty.

    So the question will immediately arise: did Singapore evince any acts of asserting sovereignty over Pulau Batu Puteh?

    According to media excerpts so far, Singapore appears to contend that it has exercised sovereignty over Pedra Branca since the 1840s, when the British colonial government built the Horsburgh Lighthouse. This however would be less than plausible because Singapore was not even a sovereign state until 1965, and hence could not possibly rely on its management of that lighthouse as an act in exercise of sovereignty.

    The question then becomes refined to whether after Singapore had become independent in 1965, it has asserted any sovereignty over the disputed island.

    That depends on whether the management of a lighthouse per se could be interpreted as an assertion of sovereignty.

    It would be strange if the mere fact of administering a lighthouse by itself without more could establish the assertion of sovereignty because it would have meant that Pulau Pisang located off Pontian whose light house is also managed by Singapore's Maritime and Port Authority could be up for grabs as well.

    The difference however in the case of Pulau Pisang from that of Pulau Batu Puteh is that all Singapore personnel working at the lighthouse in the former are required to report to the Malaysian immigration authorities at the nearby sea-town of Kukup, before they could go on to the island, and hence with that procedure, Malaysia's assertion of sovereignty over the lighthouse and island is beyond reproach.

    There is however another angle to evaluate the implication of the act of administering a lighthouse.

    As an entrepot, Singapore has always had a commercial interest in ensuring that lighthouses are operated efficiently to safeguard maritime shipping to its sea-lanes that arguably has nothing to do with its sovereignty exercise.

    Much more in the instance of Pulau Batu Putih/Pedra Branca that, as a matter of historical antecedent rather than surrender of sovereignty, Singapore, when it was part of the Straits Settlements, had always been manning the lighthouse for the administration in the peninsular since the last century to ensure safe passage of shipping.

    So much so that its continuation after 1965 proves more a fact of continuity of historical legacy for expedience of maritime commercial interests of both countries rather than that of an active assertion of sovereignty by it.

    When Singapore was allowed to secede from Malaysia in 1965, the lighthouse was as a matter of historical continuity manned by Singapore Maritime Authority but the question still remains whether both sides contemplated that the island was considered ceded to Singapore at the time of separation in 1965. Was there any provision in the separation agreement to suggest it? Probably none.

    Singapore must have realised the tenuousness of relying solely on the administration of lighthouse to establish its claim based on sovereignty assertion.

    That explains why it has since embarked on various activities to step up naval patrols, erect a building and helipad in Pulau Batu Putih.

    Had these been carried out before the crystallisation of dispute in 1979, when Malaysia first officially contested Singapore's claim to the island, these activities would surely prove a measuring cast in support of Singapore's sovereignty claims but they were not — these activities are carried out not too long ago after the contested claim in 1979.

    The only ostensible act of sovereignty asserted was in 1989 when Singapore authorities prevented Malaysian fishermen from entering its waters in 1989 but then again this was 10 years after Malaysia's official assertion of competing claim in 1979.

    Prime Minister Dr Mahathir Mohamad would be absolutely right to criticise Singapore (in an interview with Berita Harian and New Straits Times) in saying that "by right, when the ownership of the island was in dispute, there should not be further development or construction activities there". (It is claimed by same token that Malaysia stopped all projects on the disputed Sipadan and Ligitan islands off Sabah until its dispute over them with Indonesia was resolved by ICJ).

    This is to ensure that the question of assertion of sovereignty is adjudged based on the status quo of claimants' conduct and events prior to and not those manufactured subsequent to the crystallisation of dispute to buttress unfairly one's competing claim.

    If Singapore were guilty of this kiasu attitude, it may however be recollected in her favour that she is merely following Mahathir's admonishment to "Look East" to Japan.

    In the dispute with China over Diayou/Senkaku islands, one point in favour of Japan's exercise of sovereignty was the patrolling of the waters of the disputed islands by Japanese Self Defense Forces and the erection by Japanese authorities of a light house in 1978 and a heliport in 1979.

    However, Japan had more going for her on the issue of sovereignty than Singapore since besides erection of lighthouse and heliport, Japan had also both before and during World War II incorporated the islands into Japan's local government surveys of land by government agencies, conducted police investigation of a plane crash on the islands, and the building of weather stations. Singapore had none of this.

    The dispute may be over an outcrop of atoll rock that has no minerals or oil but to both countries (probably more for Singapore) it has strategic importance in terms of defence and future economic zone claims in relation to surrounding seas. In view of this, it will not augur well if Singapore, fearing that it might not have a strong case before ICJ, refuses to ink the agreement to settle the territorial dispute through that forum.