Pedra Branca – ‘Bridge’ over troubled waters

RECENTLY the National Development Ministry of Singapore announced a move to start land reclamation work around Pedra Branca, just 600m away from Malaysia’s Batuan Tengah, by the end of this year. The reason for the project  around the rocky outcrop is to improve maritime security and search and rescue capabilities involving the upgrade of berthing, logistics, administrative support and communications facilities. 

Under Singapore’s Housing and Development Board, the  project will reclaim about 10 football fields of land. Apart from confirming that it is within the Singapore’s territorial waters, Singapore claimed that the International Court of Justic in its judgment in 2008 has expressly noted Singapore intention to reclaim land at Pedra Branca. 

While it may be true that the work on reclamation land and upgrading works around Pedra Branca is within Singapore’s sovereign right, Singapore being the closest neighbour has an obligation to consult Malaysia on their intention to pursue the project. Neighbourliness basically obligates states to try to reconcile their interests with the interests of neighbouring States and is now a legal mantra for those seeking remedial action especially against country that has caused harmful environmental destruction.

Although Singapore claimed that an environmental study has been carried out to assess the potential impact of the works on the surrounding marine environment and ecology, as well as on the safety of navigation in the relevant waters, Singapore, should extent the courtesy to share the report with Malaysia particularly where the study determined that environmental impact to the area involving Batuan Tengah.

Dispute to reclaim land by Singapore is not the first encountered by Malaysia. The first land reclamation case involving Malaysia and Singapore was a case concerning land reclamation in and around the Straits of Johor submitted before the International Tribunal on the Law of the Sea (Itlos). The dispute started in 2002 when Singapore’s land reclamation works in Pulau Tekong and Tuas View Extension had attracted complaints from Malaysia. 

Malaysia claimed that the reclamation works, inter alia, impinged on Malaysia’s territorial waters, caused pollution and other adverse harm to the marine environment in the Straits of Johor. Following the claim Malaysia invoked the provisions of the 1982 UN Convention on the Law of the Sea and referring the dispute to arbitration. Subsequently, Malaysia applied to the Itlos for provisional measures to stop Singapore’s land reclamation works pending the outcome of the arbitration.

As for the legal duty, following the Itlos decision on the first land reclamation dispute between Malaysia and Singapore in 2003, the tribunal ordered that both Malaysia and Singapore must cooperate and consult each other and establish a group of independent experts with the mandate to conduct a study in term of reference to be agreed by both and the effects of Singapore land reclamation and to propose as appropriate measures to deal with any adverse effects of such land reclamation. 

The Tribunal unanimously direct Singapore not to conduct its land reclamation in ways that might cause irreparable prejudice to the right of Malaysia or serious harms to the marine environment. Proper system of consultation, notification and exchange of information with respect to the reclamation. Exchange of information on a regular basis and assess risks or effects of Singapore land reclamation works. 

In furtherance of finalising the decision of the arbitration, in 2005, Malaysia and Singapore jointly requested the Permanent Court of Arbitration (PCA) both agreed to expand the terms of reference of the Malaysia Singapore Joint Committee on Environment to include among others; exchange information on and discuss matters affecting their respective environments in the Straits of Johor, undertake monitoring activities in relation to their respective environments in the Straits of Johor and address any adverse impacts, if necessary. These monitoring activities includes: monitoring water quality to protect the marine and estuarine environment; and, monitoring ecology and morphology.

Since Batuan Tengah is very close to Pedra Branca, it is obvious that reclamation work at the latter will have an effect on the former and applying the Itlos’s decision, the same formula should be applied to the two States. To ensure environmental preservation around the rocky outcrop, it is feasible and beneficial for both States to conduct the environmental impacts of Singapore’s land reclamation and any construction activities. 

The following suggestions should be pursued by both Malaysia and Singapore to ensure better management of the rocky crop around the area.

First, it is crystal clear from the judicial pronouncement of Itlos, the way forward for Malaysia and Singapore is to jointly cooperate for better coordination and management of the region. Pursuing land reclamation around Pedra Branca requires Singapore to consult neighbouring Malaysia so as not to cause another potential dispute that will put both states in a legal and diplomatic predicament. 

Secondly, there is need to consult each other continuously in cases involving land reclamation involving Malaysia. 

Thirdly, reference to reports of experts to determine the environmental impacts of Singapore’s construction activities will be very useful as indicated in the PCA between Philippines v China where the extensive reference to the reports of experts appointed by the tribunal to determine the environmental impacts of China’s construction activities. Appointing independent experts was one of the steps taken by the Tribunal to ensure the Philippines claims were well-founded, given China’s non-participation.

It is imperative for Malaysia and Singapore to continue working together and cooperate in area of common interest and prosperity. The proximity of Pedra Branca and Batuan Tengah to rach another warrant better management and joint collaboration for scientific and environmental protection in the area and as a gesture of good neighbourliness. 

Bridging these troubled waters is the way forward for Malaysia and Singapore. – August 27, 2021.

* Rahmat Mohamad is international law professor at Universiti Teknologi Mara’s Law Faculty and  Mohd Hazmi Mohd Rusli is associate professor at Universiti Sains Islam Malaysia’s Syariah and Law Faculty.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.

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