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Chapter I Introduction CHAPTER I INTRODUCTION 1.1 Background Territory is one of the most important elements of a state, because it is a space where the state runs its power. Through the history international relations, conflicts were arising because of the desire to expand the territory or perhaps because of the unclear boundary between two or more countries. Conflicts also occur in the region of Southeast Asia, the dispute between the countries of this region are more about territorial boundaries and the status of the islands. Therefore, to resolve territorial disputes, a legal mediator such as the International Court of Justice (ICJ) is needed. ICJ is the principal judicial organ of the United Nations (UN) and it was established in June 1945 by the Charter of the United Nations. The court is based at Peace Palace in The Hague, Netherlands and it’s the only one that is located not in New York compare to the other five principal organs of the UN. The main functions of the court are to settle legal disputes submitted to it by states in accordance with international law as well as providing advisory opinions on legal questions submitted to it by authorized United Nations organs and specialized agencies. The Court is composed of 15 judges, these judges are elected for terms of office for nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry 1 2 which is the administrative organ of the Court. Moreover, its official languages are English and French.1 If countries are unable to resolve the disputes bilaterally, ICJ can act as a mediator to resolve it. ICJ solves two types of cases which are contentious cases and advisory proceedings. In contentious cases, only states (States Members of the United Nations and other States which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions) may be parties to contentious cases. 2 In advisory proceedings, requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies. In this thesis, the case between Singapore and Malaysia is a contentious case. In contentious cases, ICJ can solve a dispute only if the concerning states accepted its jurisdiction by entering into a special agreement to submit the dispute to the Court. According to Article 40 paragraph 1, cases are brought before the Court either by notification of Special Agreement or written application to the Registry and the subject of the dispute and the parties must be indicated. 3 Furthermore, ICJ can also solve a dispute if the states concerned accepted its jurisdiction by virtue of a jurisdictional clause or through the reciprocal effect of declarations made by them under the Statute in which each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. The basis of the Court’s jurisdiction is 1 International Court of Justice, “The Court,” International Court of Justice, http://www.icj- cij.org/court/index.php?p1=1 (accessed August 30, 2015). 2 Ibid. 3 Huala Adolf, Hukum Penyelesaian Sengketa Internasional (Jakarta: Sinar Grafika, 2004), 71. 3 according to Article 36 paragraph 1 of the Statute which is the jurisdiction of the Court comprises all cases which the parties refer to it.4 Therefore, the Court can only deal with a dispute when the concerning states have accepted its jurisdiction, if a state does not accept the Court’s jurisdiction, the state cannot sue or be sued in the ICJ unless the state is party to a treaty that has a provision requiring that disputes arising under the treaty are to be settled by the ICJ. Regarding to the proceedings in contentious cases, only states may apply to and appear before the Court, international organizations, other collectivities and private persons are not entitled. A State Member of the United Nations undertakes to comply with any decision of the Court in a case to which it is a party by signing the UN Charter. Since a case can only be submitted to the Court and decided by it if the parties have accepted its jurisdiction, it is rare for a decision not to be implemented.5 However, the enforcement of the Court is a problem because the Court has no realistic way to make states abide by its rulings, so it relies on voluntary compliance. A state which contends that the other side has failed to perform the obligations incumbent upon it under a judgment by the Court may bring the matter before the United Nations Security Council. The Security Council is empowered to recommend or decide upon the measures to be taken to give effect to the judgment. Therefore, the Court could call on the Security Council to authorize military enforcement action, but this would probably do more harm than good. The Court has never taken such an action. When a state did not agree and 4 International Court of Justice, “The Court,” International Court of Justice, http://www.icj- cij.org/court/index.php?p1=1 (accessed August 30, 2015). 5 Ibid. 4 abide by the judgment of the Court, the Security Council can vote diplomatic and economic sanctions against it rather than military enforcement. Therefore, ICJ is unique since its nature is peaceful. It will avoid any violence or forceful conflict resolution in settling a dispute. In addition, its jurisdiction is carefully defined in order to preserve the sovereignty of the states who are involved in the disputes.6 As a result, states are more likely to refer the case to ICJ because ICJ can only have jurisdiction over them when they accept it as well as because it is an alternative solution when bilateral negotiations have come to a dead end. One of the disputes that had been decided by the ICJ was the dispute over the sovereignty of islands called Pedra Branca or Pulau Batu Puteh as well as Middle Rocks and South Ledge, where the parties of the dispute are Singapore and Malaysia. Singapore called the island “Pedra Branca” while Malaysia called it “Pulau Batu Puteh”. 7 It is a contentious case in which bilateral negotiations between Singapore and Malaysia did not succeed and they both agree to refer the case to ICJ. Regarding the parties of this dispute, Malaysia is a federal State which has 13 constituent states. In 1963, Malaysia was formed through the merger of the Federation of Malaya with the State of Singapore which was a British colony as well as the British territories of Sabah and Sarawak in Borneo. Among the 13 constituent states of Malaysia, State of Johor is the one that is relevant to this 6Ian Hurd, International Organization: Politics, Law, Practice (Cambridge: Cambridge University Press, 2010), 186. 7 Ministry of Foreign Affairs Singapore, “International Court of Justice – Case concerning sovereignty over Pedra Branca, Middle Rocks and South Ledge,” Government of Singapore, http://www.mfa.gov.sg/content/mfa/media_centre/special_events/pedrabranca.html (accessed August 31, 2015). 5 dispute as it is geographically the closest one to Singapore. In the context of this dispute, Malaysia is the successor State to the State of Johor regarding to her claim of sovereignty over Pedra Branca/Pulau Batu Puteh.8 In relation to the other party, the state of Singapore consists of the main island of Singapore and 50 or so smaller islands and islets. Singapore becomes independent and becomes republic since 1965. Prior to its independence in the beginning of the 19th century, the island of Singapore and parts of the Malay Peninsula surrounding the Johor River basin (hereafter “peninsular Johor”) were under the control of a native chief named Abdul Rahman who held the title of “Temenggong”. Since peninsular Johor was mostly covered by primary forest, Singapore became where the Temenggong settled. In the Malay political context at that time, the Temenggong was a vassal of the Sultan of the Johor-Riau-Lingga Sultanate. However after that, in February 1819, the English East India Company (EIC) established a trading station at Singapore. Then, in 1824, the EIC on behalf of the British Government obtained full sovereignty over the island of Singapore through a cession treaty with the local Malay chiefs. From then on, Singapore remained under British rule until 1963. On 9 July 1963, the United Kingdom, the Federation of Malaya (of which Johor was a member State) and the States of North Borneo (Sabah), Sarawak and Singapore signed the Malaysia Agreement 1963 in order to form a new independent federation to be called the “Federation of Malaysia”. In regard of this agreement, the United Kingdom Parliament was enacting legislation to hand over 8 Marcelo Kohen. “Original Title in the Light of the ICJ Judgement on Sovereignty over Pedra Branca / Pulau Batu Puteh, Middle Rocks and South Ledge.” Journal of the History of International Law 15, no. 2 (2013): 152 6 sovereignty and jurisdiction to the State of Singapore and the States of Sabah and Sarawak. Soon after, the Parliament of the Federation of Malaya enacted the Malaysia Act to establish Malaysia on the following month. On 7 August 1965, the Government of Malaysia and the Government of Singapore signed an agreement which is the Separation Agreement. This agreement enabled Singapore to separate from Malaysia and Singapore became an independent and sovereign State on 9 August 1965.9 In the context of this dispute, Singapore is the successor in title to the United Kingdom which was the former owner of the island by colony. The Republic of Singapore is populated with about 5 million people and has a total area of about 680 square kilometres (or 260 square miles).
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