The Press Release by the Tribunal in straight forward English
and no legalistic jargon of the judgment will read as
follows:
http://www.itlos.org/news/press_release/2003/press_release_84_en.doc
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA
TRIBUNAL INTERNATIONAL DU DROIT DE LA MER
Press Release
ORDER IN THE CASE CONCERNING LAND RECLAMATION BY SINGAPORE IN AND
AROUND THE STRAITS OF JOHOR (MALAYSIA V. SINGAPORE)
Judge Dolliver Nelson, President of the Tribunal, today read the
Order of the International Tribunal for the Law of the Sea in the
Case concerning Land Reclamation by Singapore in and around the
Straits of Johor (Malaysia v. Singapore), Provisional
Measures.
THE DISPUTE
On 5 September 2003, Malaysia submitted a request for the
prescription of provisional measures under article 290, paragraph
5, of the Convention.
The dispute concerns land reclamation activities carried out by
Singapore which allegedly impinge upon Malaysias rights in and
around the Straits of Johor, which separate the island of Singapore
from Malaysia.
Pursuant to article 290 of the Convention, the Tribunal, pending
the constitution of the arbitral tribunal, may prescribe
provisional measures if it considers provisional measures
appropriate to "preserve the respective rights of the parties to
the dispute or to prevent serious harm to the marine environment"
and if it considers that prima facie the arbitral tribunal which is
to be constituted would have jurisdiction and that the urgency of
the situation so requires.
THE ORDER OF 8 OCTOBER 2003
In its Order, the Tribunal first addresses the issue of whether the
Annex VII arbitral tribunal would prima facie have jurisdiction
over the dispute. With respect to the obligation to exchange views
set out in article 283 of the Convention, the Tribunal considers
that Malaysia was not obliged to continue with an exchange of views
when it concluded that this exchange could not yield a positive
result. Turning to Singapores contention that the parties by
agreeing to meet on 13 and 14 August had embarked on a negotiation
process, the Tribunal noted that the meeting took place after the
institution of arbitral proceedings and that Malaysia had expressly
stated that such meetings would be without prejudice to its right
to proceed with the arbitration pursuant to Annex VII to the
Convention or to request this Tribunal to prescribe provisional
measures. Therefore, the Tribunal finds that the Annex VII arbitral
tribunal would prima facie have jurisdiction over the dispute. The
Tribunal also finds that the case is admissible.
The Tribunal then proceeds to analyse the contention of Singapore
that, as the Annex VII arbitral tribunal is to be constituted not
later than 9 October 2003, there is no need to prescribe
provisional measures given the short period of time remaining
before that date.
The Tribunal notes that, under article 290, paragraph 5, of the
Convention, the Tribunal is competent to prescribe provisional
measures prior to the constitution of the Annex VII arbitral
tribunal, and that there is nothing in article 290 of the
Convention to suggest that the measures prescribed by the Tribunal
must be confined to that period.
With respect to the land reclamation works in the sector of Tuas,
the Tribunal finds that Malaysia has not shown that there is a
situation of urgency or that there is a risk that its rights with
respect to an area of its territorial sea would suffer irreversible
damage pending consideration of the merits of the case by the
arbitral tribunal. Therefore, the Tribunal does not consider it
appropriate to prescribe provisional measures with respect to the
land reclamation by Singapore in the sector of Tuas.
The Tribunal notes that during the oral proceedings Singapore, in
response to the measures requested by Malaysia, reiterated its
offer to share the information requested by Malaysia with respect
to the reclamation works, stated that it would provide Malaysia
with a full opportunity to comment on the reclamation works and
their potential impacts, and declared that it was ready and willing
to enter into negotiations. The Tribunal places on record these
assurances given by Singapore.
With respect to the infilling work in Area D at Pulau Tekong, which
is of primary concern to Malaysia, the Tribunal notes the
commitment made by Singapore at the hearing not to undertake any
irreversible action to construct the stone revetment around Area D
pending the completion of a study, jointly sponsored and funded by
both States, to be undertaken by independent experts.
The Tribunal considers that, in the particular circumstances of
this case, the land reclamation works may have adverse effects on
the marine environment in and around the Straits of Johor. For that
reason, the Tribunal considers that prudence and caution require
Malaysia and Singapore to establish mechanisms for exchanging
information on and assessing the effects of the land reclamation
work.
For these reasons, the Tribunal, unanimously, prescribes the
following provisional measures, pending a decision by the Annex VII
arbitral tribunal:
"Malaysia and Singapore shall cooperate and shall, for this
purpose, enter into consultations forthwith in order to:
(a) establish promptly a group of independent experts with the
mandate
(i) to conduct a study, on terms of reference to be agreed by
Malaysia and Singapore, to determine, within a period not exceeding
one year from the date of this Order, the effects of Singapores
land reclamation and to propose, as appropriate, measures to deal
with any adverse effects of such land reclamation;
(ii) to prepare, as soon as possible, an interim report on the
subject of infilling works in Area D at Pulau Tekong;
(b) exchange, on a regular basis, information on, and assess risks
or effects of, Singapores land reclamation works;
(c) implement the commitments noted in this Order and avoid any
action incompatible with their effective implementation, and,
without prejudice to their positions on any issue before the Annex
VII arbitral tribunal, consult with a view to reaching a prompt
agreement on such temporary measures with respect to Area D at
Pulau Tekong, including suspension or adjustment, as may be found
necessary to ensure that the infilling operations pending
completion of the study referred to in subparagraph (a)(i) with
respect to that area do not prejudice Singapores ability to
implement the commitments referred to in paragraphs 85 to 87.
2. Unanimously,
Directs Singapore not to conduct its land reclamation in ways that
might cause irreparable prejudice to the rights of Malaysia or
serious harm to the marine environment, taking especially into
account the reports of the group of independent experts.
3. Unanimously,
Decides that Malaysia and Singapore shall each submit the initial
report referred to in article 95, paragraph 1, of the Rules, not
later than 9 January 2004 to this Tribunal and to the Annex VII
arbitral tribunal, unless the arbitral tribunal decides
otherwise.
4. Unanimously,
Decides that each party shall bear its own costs."
President Nelson and Judge Anderson appended a declaration to the
Order.
Judges ad hoc Hossain and Oxman appended a joint declaration to the
Order.
Judges Chandrasekhara Rao, Ndiaye, Jesus, Cot and Lucky appended
separate opinions to the Order.
The text of the Order and the opinions appended thereto is
available on the website of the Tribunal at www.itlos.org and
www.tidm.org.
The Press Releases of the Tribunal, documents and other information
are available on the Tribunals websites: http://www.itlos.org and
http://www.tidm.org and from the Registry of the Tribunal. Please
contact Ms. Julia Pope at Am Internationalen Seegerichtshof 1,
22609 Hamburg, Germany, Tel.: +49 (40) 35607-227, Fax: +49 (40)
35607-245;
E-mail: [email protected]
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