Wajarkan kesan terhadap keseluruhan operasi Pelabuhan Johor akibat ‘Kawasan Kelabu’ selepas Malaysia: Transport and Distribution Management Case Study, UniKL, Malaysia

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Universiti Kuala Lumpur (UniKL)

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Transport and Distribution Management

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Date

17/01/2022
  • Case study 1

The Pedra Branca dispute was a territorial dispute between Singapore and Malaysia over several islets at the eastern entrance to the Singapore Strait, namely Pedra Branca (previously called Pulau Batu Puteh and now Batu Puteh by Malaysia), Middle Rocks and South Ledge. The dispute began in 1979 and was largely resolved by the International Court of Justice (ICJ) in 2008, which opined that Pedra Branca belonged to Singapore and Middle Rocks belonged to Malaysia. Sovereignty over South Ledge belongs to the state in the territorial waters in which it is located.

In early 1980, Singapore lodged a formal protest with Malaysia in response to a map published by Malaysia in 1979 claiming Pedra Branca. In 1989 Singapore proposed submitting the dispute to the ICJ. Malaysia agreed to this in 1994. In 1993, Singapore also claimed the nearby islets Middle Rocks and South Ledge. In 1998 the two countries agreed on the text of a Special Agreement that was needed to submit the dispute to the ICJ. The Special Agreement was signed in February 2003, and the ICJ formally notified of the Agreement in July that year. The hearing before the ICJ was held over three weeks in November 2007 under the name Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore).

Singapore argued that Pedra Branca was terra nullius and that there was no evidence the island had ever been under the sovereignty of the Johor Sultanate. In the event the Court did not accept this argument, Singapore contended that sovereignty over the island had passed to Singapore due to the consistent exercise of authority over the island by Singapore and its predecessor, the United Kingdom. The actions taken included selecting Pedra Branca as the site for Horsburgh Lighthouse and constructing the lighthouse, requiring Malaysian officials wishing to visit the island to obtain permits, installing a military rebroadcast station on the island, and studying the feasibility of reclaiming land around the island. Malaysia had remained silent in the face of these activities. In addition, it had confirmed in a 1953 letter that Johor did not claim ownership of the island, and had published official reports and maps indicating that it regarded Pedra Branca as Singapore territory. Middle Rocks and South Ledge should be regarded as dependencies of Pedra Branca.

Malaysia’s case was that Johor had the original title to Pedra Branca, Middle Rocks and South Ledge. Johor had not ceded Pedra Branca to the United Kingdom but had merely granted permission for the lighthouse to be built and maintained on it. The actions of the United Kingdom and Singapore in respect of the Horsburgh Lighthouse and the waters surrounding the island were not actions of the island’s sovereign. Further, the 1953 letter had been unauthorised and the official reports and maps it had issued were either irrelevant or inconclusive.

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On 23 May 2008, the Court ruled that Pedra Branca is under Singapore’s sovereignty, while Middle Rocks belongs to Malaysia. As regards South Ledge, the Court noted that it falls within the overlapping territorial waters generated by mainland Malaysia, Pedra Branca and Middle Rocks. As it is a maritime feature visible only at low tide, it belongs to the state in the territorial waters in which it is located. Malaysia and Singapore have established what they have named the Joint Technical Committee to delimit the maritime boundary in the area around Pedra Branca and Middle Rocks, and to determine the ownership of South Ledge.

Pedra Branca is a small granite outcrop located 25 nautical miles (46 km; 29 mi) east of Singapore and 7.7 nautical miles   (14.3 km;   8.9 mi)   south of Johor,   Malaysia, where the Singapore Strait meets the South China Sea. There are two maritime features near the island: Middle Rocks, 0.6 nautical miles (1.1 km; 0.69 mi) south of Pedra Branca, which consists of two clusters of small rocks about 250 metres (820 ft) apart; and South Ledge, 2.2 nautical miles (4.1 km; 2.5 mi) south-south-west of Pedra Branca, which is visible only at low tide.

Singapore has been administering Pedra Branca since Horsburgh Lighthouse was built on the island by its predecessor, the United Kingdom, between 1850 and 1851. Singapore was ceded by Sultan Hussein Shah and Temenggung Abdul Rahman Sri Maharajah of Johor to the British East India Company under a Treaty of   Friendship and   Alliance of   2   August   1824 (the Crawfurd Treaty), and became part of the Straits Settlements in 1826. At the time when the lighthouse on the island was constructed, the Straits Settlements were under British rule through the Government of India.

On 21 December 1979, the Director of National Mapping of Malaysia published a map entitled Territorial Waters and Continental Shelf Boundaries of Malaysia showing Pedra Branca to be within its territorial waters. Singapore rejected this “claim” in a diplomatic note of 14 February 1980 and asked for the map to be corrected. In the late 1980s, Attorney-General of Singapore Tan Boon Teik was despatched by the Prime Minister of Singapore Lee Kuan Yew to disclose the documentary evidence that Singapore had to the Malaysian Attorney-General, to demonstrate the strength of Singapore’s case. However, the dispute was not resolved by an exchange of correspondence and intergovernmental talks in 1993 and 1994. In the first round of talks in February 1993 the issue of sovereignty over Middle Rocks and South Ledge was also raised. Malaysia and Singapore, therefore, agreed to submit the dispute to the International Court of Justice (ICJ).

The ICJ noted that under certain circumstances, sovereignty over territory may pass due to the failure of the state which has sovereignty to respond to the other state’s conduct à titre de souverain, that is, concrete manifestations of the display of territorial sovereignty by the other state. Because there was no written agreement relating to Horsburgh Lighthouse and Pedra Branca, the Court was unable to determine whether the November 1844 replies by the Sultan and Temenggung of Johor to Governor Butterworth’s query amounted to a cession of the place that would be chosen for the site of the lighthouse or was merely a permission to build, maintain and operate a lighthouse there. Although the Governor had indicated in his 28 November 1844 letter to the Secretary of the Government in India to recommend that the replies amounted to a gratuitous cession to the East India Company, this understanding was not communicated to the Sultan and Temenggung. Similarly, the fact that Britain had not informed Johor about its decision to site the lighthouse on Pedra Branca might be seen either as recognition that Britain only had consent to build and operate it, or that Johor no longer had rights over the island. On the evidence adduced, the Court was unable to conclude the issue. It also did not draw any conclusions about the construction and commissioning of the lighthouse, stating only that it saw the events as “bearing on the issue of the evolving views of the authorities in Johor and Singapore about sovereignty over Pedra Branca/Pulau Batu Puteh”. It noted, though, that apart from a two-day visit by the Temenggung and his followers to the island in early June 1850, Johor had no involvement in the project.

The Court declined to accept Malaysia’s argument that the Singapore Colonial Secretary’s query about the status of Pedra Branca in 1953 indicated that the United Kingdom had no conviction that the island was part of its territory. It felt the letter of inquiry showed the Singapore authorities were not clear about events that had occurred over a century earlier and that they were unsure their records were complete, which was understandable in the circumstances. It also disagreed that the Acting State Secretary of Johor, who had stated in his letter of reply that Johor did not claim ownership of the island, had acted without authority. The Johor Agreement was irrelevant – as the Colonial Secretary was a representative of the United Kingdom government, which was not a foreign state about Johor at the time, there was no question of the United Kingdom having to consent to Johor issuing the reply. The Federation of Malaya Agreement also did not assist Malaysia because the action of responding to a request for information was not an “exercise” of “executive authority”. Further, since Malaysia had not invoked this argument in its negotiations with Singapore and the ICJ proceedings until late in the oral phase, Singapore was entitled to presume that the Acting State Secretary had acted within his authority. The meaning of the reply was clear – as of 1953, Johor understood it did not have sovereignty over Pedra Branca, and thus the Singapore authorities had no reason to doubt that the island belonged to the United Kingdom.

The Court regarded as conduct à titre de souverain Singapore’s investigation of six shipwrecks in the vicinity of Pedra Branca between 1920 and 1993, its exclusive control over visits to the island, the installation of the military rebroadcast station on the island in 1977, and the proposed reclamation of land around it. Malaysia was correct in asserting that the flying of an ensign was not normally a manifestation of sovereignty and that the difference in size between Pulau Pisang and Pedra Branca had to be recognised. Nonetheless, some weight could be given to the fact that Malaysia had not requested for the Singapore ensign flying at Horsburgh Lighthouse to be taken down. The fact that Malaysia had referred to the lighthouse as a Singapore station in the 1959 and 1966 meteorological reports and had omitted it from the 1967 Malaysian report favoured Singapore’s case.

The maps published by Malaysia between 1962 and 1975 tended to confirm that it considered Pedra Branca to fall under Singapore’s sovereignty. The “(SINGAPORE)” or “(SINGAPURA)” annotations on the maps in respect of the island were clear and supported Singapore’s case.

The maps gave a good indication of Malaysia’s official position on the matter and could amount to an admission. Finally, Malaysia could not rely on the disclaimers on the maps as the present matter did not concern a boundary but a distinct island. In any case, the maps were statements of geographical fact, particularly since Malaysia had produced and disseminated them against its interest. Given the above, the Court held that by 1980 sovereignty over Pedra Branca had passed from Malaysia to Singapore.

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  • Questions 
  1. Wajarkan kesan terhadap keseluruhan operasi Pelabuhan Johor akibat ‘Kawasan Kelabu’ selepas Malaysia kehilangan pemilikan Batu Putih kepada Singapura.
  2. Tentukan yang mungkin akan berlaku pada masa hadapan berdasarkan kenyataan ini ‘Sumber industri yang mengetahui perkara itu berkata perubahan Malaysia terhadap had Pelabuhan Johor adalah dalam wilayah maritim yang dituntutnya, tetapi yang tidak diiktiraf oleh kerajaan Singapura’

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