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    07:13 PM Rachel Tan Xi’en, LLB (Hons), Centre for International Law, National University of Singapore and Bethel Chan Ruiyi, Juris Doctor (SMU), Rajah & Tann Singapore LLP

    Examining Principle and Legality: Singapore’s Experience at International Courts and Tribunals

        

    Introduction

    Singapore has always affirmed that the international legal order should be stable and predictable, as international law levels the playing field in international relations.  Singapore’s specific experience in its international disputes with other states shows that its practice of international law is consistent with its publicly expressed sentiment.  This article will examine Singapore’s experience at international courts and tribunals, and offer comments on how Singapore’s history of engagement with international dispute resolution comports with a principled approach to the rule of law. 

    Singapore’s Cases at International Courts and Tribunals

    Singapore has dealt with only five cases at an international court or tribunal in its 54-year history.  All five cases involved the Republic of Malaysia.  An adversarial method of dispute settlement was not the first port of call in any of the disputes.  Rather, an examination of the cases shows that Singapore has employed an array of methods in attempting to reach settlement, consistent with Article 33(1) of the United Nations Charter, which reads (emphasis added):

    “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

    Singapore-Malaysia Land Reclamation Dispute

    The Singapore-Malaysia Land Reclamation Dispute was settled on the basis of enquiry (fact-finding). Malaysia contended that the effect of Singapore’s land reclamation works in Pulau Tekong and Tuas, among other things, impinged on its territory, caused pollution and harm to the marine environment in the Straits of Johor, damaged jetties, and reduced fishermen’s catches. Singapore and Malaysia first engaged in negotiations, but this proved to be unsuccessful.

    Malaysia then applied to the International Tribunal on the Law of the Sea (“ITLOS”) for provisional measures pursuant to Article 290 (5) of the United Nations Convention on the Law of the Sea (“UNCLOS”).  It sought a ruling that Singapore should suspend all land reclamation activities in the vicinity of the maritime boundary, provide Malaysia with information as to current and projected works, afford Malaysia the opportunity to comment on the works and the potential impact, and agree to negotiate with Malaysia on any remaining issues.

    The ITLOS court did not agree to Malaysia’s request for provisional measures.  Instead of making a binding determination, it asked both states to establish a group of independent experts to conduct a study (i.e. fact-finding) premised upon terms of reference agreed between them.  The recourse to fact-finding was also alluded to by Singapore in its oral submissions.  The experts’ specific task was to determine the effect of the land reclamation works and to propose appropriate measures to deal with any adverse effects within a year.  Subsequently, the experts submitted a unanimous report to the two governments, which agreed to use the recommendations to negotiate settlement.  In the end, Singapore and Malaysia reached an ad referendum agreement to settle the dispute after negotiations.  This resulted in an amicable settlement of the dispute and a decision that was reached by consensus instead of a unilateral decision issued by third party adjudicators.

    Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge – Initial Judgment, Application for Revision, and Application for Interpretation

    The dispute arose when Malaysia published a map in 1979 claiming the island of Pedra Branca, located at the eastern entrance of the Straits of Singapore.  Singapore formally objected to this map. After the ensuing negotiations with Malaysia proved unsuccessful, both countries, by special agreement, referred the dispute to the International Court of Justice (“ICJ”). 

    On 23 May 2008, the ICJ ruled that sovereignty over Pedra Branca belonged to Singapore, Middle Rocks belonged to Malaysia, and South Ledge belonged to the State in whose territorial waters it is located. Its principal finding in relation to Pedra Branca was that, while Malaysia had original title to the island, such title had passed to Singapore. In coming to this conclusion, the Court gave weight to a letter from the Acting State Secretary of Johor stating that the Johor Government did not claim ownership of the island in 1953.  The Court also examined the conduct of the states after 1953, and found that sovereignty over Pedra Branca had passed to Singapore by 1980.

    Malaysia filed separate applications to revise and interpret the ICJ’s 2008 judgment in 2017.  First, Malaysia asked for a revision of the judgment on the basis of new facts discovered, pursuant to Article 61 of the ICJ Statute. In gist, Malaysia asserted that new evidence had emerged in the form of documents showing that officials at the highest levels in the British colonial and Singaporean administration appreciated that Pedra Branca did not form part of Singapore’s sovereign territory at the relevant time. 

    Second, Malaysia filed an application to interpret the ICJ’s 2008 judgment pursuant to Article 60 of the ICJ Statute.  It argued that the uncertainty over interpretation of the judgment affected orderly and peaceful relations, and asked the court to adjudge and declare that the waters surrounding Pedra Branca remained within the territorial waters of Malaysia, and that South Ledge was located in the territorial waters of Malaysia. 

    Malaysia eventually withdrew the revision and interpretation applications when the Pakatan Harapan came into power following elections in 2018.

    Singapore-Malaysia Railway Land Arbitration

    The railway land dispute was resolved by ad hoc arbitration under the Permanent Court of Arbitration’s Optional Rules in 2014. The dispute concerned the interpretation of a treaty concluded between Malaysia and Singapore in 1990.  In that treaty, Malaysia agreed to return to Singapore land it had held in Singapore since the 20th century.  In return, the treaty accorded Malaysia the choice to vest three parcels of railway land, which it surrendered, for development in a joint company with Singapore called M-S Pte Ltd (“M-S”).  The treaty was subsequently amended such that M-S would receive a total of six parcels of land.  Singapore argued that Malaysia had to pay development charges on the increase in value of the Keppel, Kranji, and Woodlands parcels that would follow planning permission.  Malaysia took the opposite position.

    To settle the dispute, both governments submitted the issue to arbitration by consent.  Notably, the arbitration award noted that the parties agreed to arbitration in “a very cordial and friendly manner, which was “not in any way acrimonious”([3] of Award). 

    The three-member arbitral tribunal found in favour of Malaysia and ruled that M-S was not liable for development charges for the Keppel, Kranji and Woodlands parcels.  While Singapore did not prevail in the arbitration, Singapore publicly stated that it accepted the tribunal’s decision and was pleased that Singapore and Malaysia was able to resolve the dispute in “an impartial and amicable way”. 

    Observations

    Singapore’s experience in international courts and tribunals affirms what, perhaps, goes without saying: Litigation and arbitration are powerful tools.  Third-party adjudication may conclusively resolve a matter that could not be negotiated.  A court or tribunal must apply legal principles in determining a dispute, and this neutral and objective determination is in some circumstances the only avenue to an acceptable solution. 

    However, not every dispute need go all the way to binding third-party adjudication such as litigation (in court) or arbitration. In the Land Reclamation case, for example, the dispute was resolved by fact-finding (enquiry) because it centered around disputed facts. Quite apart from the cases discussed in this article, numerous other disagreements have been able to be settled through diplomatic exchanges.

    Both these methods of resolution – adjudication and negotiation - present themselves as possibilities in international disputes. As the past 12 months have seen Singapore facing calls to renegotiate the terms of its 1962 Water Agreement, the deferral of the High Speed Rail Project, incursions of ships into Singapore’s waters, and tensions over port limits and airspace, Singapore has, while underscoring its preference for negotiations, bilateral talks and neighbourliness, also affirmed its commitment to legality and the rule of law, declaring that bilateral issues are to be resolved in strict accordance with bilateral agreements and international law.  Equally, there are those who perceive this commitment to legality and principle as “rigidity” and who question the wisdom of this course.

    It is beyond the remit of this article to evaluate the merits and limitations of a firmly rights-based approach to international disputes. The authors confine themselves to addressing the apparent tension between, on the one hand, Singapore’s espoused support for the rule of law, and on the other hand, Singapore’s preference for negotiations and bilateral discussions over resorting to international courts and tribunals. As noted by Chief Justice Sundaresh Menon in a 2017 speech on “Mediation and the Rule of Law”, formal legality has come to be the dominant understanding of the Rule of Law, and the adjudicative process, which exemplifies the values of formal legality, has come to be closely associated with legal legitimacy. On the international plane, does a reluctance to resort to the adjudicative process run contrary to a state’s stated commitment to the rules of the international legal order? The issue assumes particular relevance in light of recent suggestions that Singapore’s reluctance to submit certain issues to international adjudication stems from a lack of confidence in the merits of its position.

    In the authors’ view, there is nothing inherently inconsistent about a state having a commitment to legality while also being reluctant to resort to litigation as a means of vindicating legal rights.  Here, Singapore’s declaration under Article 298(1)(a) of UNCLOS in December 2018 is a case in point.  The declaration ensures that no signatory of UNCLOS may unilaterally start third-party arbitration or adjudication on maritime boundary disputes against Singapore.  It has the effect of emphasizing the value of negotiations at first instance, but does not mean that the dispute resolution process concludes if negotiations are unsuccessful.  In fact, Singapore has affirmed that it is prepared to engage in an appropriate international third party dispute settlement procedure on terms agreed by both parties on choice of forum and the specific issues to be decided if negotiations fail.

    Three further points are worth noting. 

    First, pursuant to Article 33(1) of the United Nations Charter, cited earlier in this article, States are to “first of all seek a solution” to their dispute through a range of options, from methods involving only the parties to the dispute (negotiation) to methods involving third parties with varying levels of decision-making power (mediation, conciliation, arbitration, judicial settlement). This list, though not one of prescriptive hierarchy which ranks negotiation and settlement over adjudication, suggests at least that states are encouraged to consider a full suite of options as means of fulfilling their obligation to settle disputes peacefully. To explore alternatives to litigation is therefore no derogation from the rule of law.

    Second, it is trite that negotiations usually do not take place in a vacuum, divorced from consideration of legal rights and entitlements. In this regard, the negotiations resorted to as a first port of call involve a consideration of the same facts and legal principles which would eventually come to be examined by a court or tribunal. For instance, in the dispute concerning sovereignty over Pedra Branca, Singapore arranged for Malaysia to see its key documents (through a meeting of both States’ Attorneys-General in 1989) in the hope of resolving the issue by persuading Malaysia of the strength of its legal case (before Singapore had sight of Malaysia’s own key documents, and long before the dispute was submitted to the International Court of Justice.) Negotiation and settlement, therefore, does not necessarily involve an abandonment of legal principle in favour of power-based positioning. On the contrary, legal rights and entitlements may sometimes form the bedrock of attempts at bilateral settlement.

    Third, states may favour alternatives to binding adjudication for multiple reasons which have nothing to do with their own assessment of the strength of their legal position. To begin with, adjudication involves risk for the parties to almost any dispute, since a state that agrees to submit its dispute to adjudication relinquishes, in some sense, a part of its sovereignty. At the first Wang Tieya Lecture in Public International Law on the peaceful settlement of international disputes, Sir Ian Brownlie QC said that:

    “The special attraction of adjudication is that it is definitive and removes a source of political antagonism and tension between the parties.  The alternative is either negotiation, which involves the responsible officials in making compromises or inaction.  At the same time, adjudication involves a loss of political control over a situation.” ([54] – [55])

    In contrast, voluntary non-binding methods of dispute settlement often provide numerous advantages which apply to all parties, regardless of the strength of their legal cases. These include the flexibility to agree on procedural rules, as well as the possibility of taking into account considerations based on equity and other factors, resulting in a more holistic outcome than could be reached by pure application of the law.  Most crucially, non-binding methods of dispute resolution preserve the possibility of settlement by consensus, a key consideration in the context of disputes between states bound by ties of interdependence and geographical proximity.

    Conclusion

    In his book, “The Function of Law in the International Community”, Sir Hersch Lauterpacht wrote:

    “All international disputes are, irrespective of their gravity, disputes of a legal character in the sense that, so long as the rule of law is recognized, they are capable of an answer by the application of legal rules.”

    It is true that the law provides answers to difficult questions and is the back-stop that states may turn to in the absence of solutions. Yet even as international entitlements and obligations may underlie a dispute, not every dispute is best resolved through the adjudicative process which has come to be so closely associated with the rule of law. To recognize the costs and risks of that adjudicative process, and to explore the alternatives fully and sincerely, is fully reconcilable with a commitment to legality. Indeed, arguably, it is the course which is principled and consistent with the rule of law.

    *The opinions contained in this article reflect the authors’ own views and are not to be understood as reflecting the views of the authors’ employers or colleagues.  The authors are grateful to Professor Lucy Reed (Director, Centre for International Law) for her review of the initial draft.

    * This blog entry may be cited as Rachel Tan Xi’en and Bethel Chan Ruiyi, “Examining Principle and Legality: Singapore’s Experience at International Courts and Tribunals”(11 April 2019) (http://www.singaporelawblog.sg/blog/article/232)

    * A PDF version of this entry may be downloaded here

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