What is it with the Land Reclamation Issue?

last SG · 2003-10-09T11:42:12+00:00

The Malaysian Cars with license plates TMJ and TMJ1 are abbreviations for the Malay words Tengku Makhota Johor, or in English it is the Crown Prince of Johor...

Atobe SG

In a separate article in the Star, the now well known Malaysian "comical duo" in the person of Mahatir and Albar were reported to be vindicated by the decision of the ILOS Tribunal:

http://thestar.com.my/news/story.asp?file=/2003/10/9/nation/6452931&sec=nation

Thursday October 9, 2003

PM: Singapore must stop work

BY JANE RITIKOS
PETALING JAYA: Singapore must stop reclamation work now pending a final decision by the Tribunal, Prime Minister Datuk Seri Dr Mahathir Mohamad said.

If they continue with their work, it will be too late. By the time we have a final decision, the reclamation might have done permanent damage. For us, what we want is for them to stop work now, and then we go for the final decision, he told reporters upon his return from Bali last night.

Dr Mahathir added that the Government would study the decision thoroughly.

Foreign Minister Datuk Seri Syed Hamid Albar, who was also present, said Malaysia had proven its case as the Tribunal had agreed for a group of experts to determine whether the reclamation work had affected the environment.

According to a Wisma Putra statement, the Tribunal announced that Malaysia had been granted provisional measures in the case.

In particular, it said, the arbitrary tribunal unanimously ordered 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.

It said the Tribunal also unanimously ordered both parties to establish a group of independent experts to conduct a jointly-funded study on the impacts of the land reclamation projects, including a rapid interim report on infilling works in Area D south of Pulau Tekong.

The joint study would include all Singapore's current land reclamation projects, it added.

However, it said the Tribunal did not consider it necessary to indicate any provisional measure relating to Malaysia's claim to Point 20 at Tuas.

In the course of making these orders, it said the Tribunal rejected all of Singapore's preliminary objections and other technical objections relating to the proceedings.

It expressed unanimously the clear view that Malaysia was justified in commencing the proceedings and that there was prima facie jurisdiction over the dispute, it added.

It noted: An assessment concerning the impact of the land reclamation works on waters under the jurisdiction of Malaysia has not been undertaken by Singapore.

Singapore's application for costs of the proceedings was also dismissed, Wisma Putra pointed out.

Parka SG

People just don't have that much generosity in them to say," I lost."

SingaporeTyrannosaur SG

I find it hard to decide which is worse... ST's limpid, opinionless, govt-serving reporting or the malaysian press' clearly biased, and badly-skewed-self-serving propangada.

Unfortunately I can see no end to this. Though the ruling is fair on the surface, one only needs to factor in Malaysia's way of handling international affairs to see how its going to play out.

We must work together to conduct studies of the reclamation effects. Get a group of experts together to judge based on terms we both agree on.

We must stop the moment anything shows that it damages the environment.

Hence, it takes no genius to see that Malaysia will only want these terms to be in its very best interest. Hence sadly, another deadlock I can see coming our way.

Gun SG

Sadly, I agree with this observation.

Malaysia claims getting the "provisional measure" they had sort to get while Singapore says there is no explicit order to stop reclaimation work..

Another typical case of lawyers laughting their way to the bank when their judgement that are both vague at best and potentially mis interpreted by both parties at worst.

Questions now are:
1) What exactly did Malaysia get out of this ?
2) Which " "provisional measure" did MY reported to hv granted ?
3) Are the Tribunal orders relating to negotation and info exchange not being acted upon by Singapore earlier this yr ?
4) Will MY return to the negotiation table after with Tribunal's order?
5) Is this a nice farewell present to Dr.M from Singapore gov ?

Atobe SG

The separate judgment opinion from Judge Chandrasekhara Rao was very detailed in his explanation of his decision, which seemed to have been the basis of consensus amongst all the other judges in arriving at an unanimous decision.

The telling part of this opinion can be found towards the end of his written opinion:

(See the list of separate judgment opinions in the earlier post on 9 October 2003 - 4:28 A.M. )
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http://www.itlos.org/case_documents/2003/document_en_234.doc

36. As regards the prescription of provisional measures, the limited question that calls for determination by the Tribunal is whether, on the evidence before the Tribunal, it can be said that there is a reasonable possibility of either irreparable damage to the rights of Malaysia or serious harm to the marine environment in the short period before a decision of the Annex VII arbitral tribunal.

37. Malaysia contends that the Tribunal should not give credence to the argument of Singapore that Malaysia has delayed its own case for too long to make its claim of urgency credible, since the case involves the protection of the ecological interests, and the suspension of certain reclamation works can still make a difference. Assuming for the sake of argument that this is a valid justification for the delay involved, it would not absolve Malaysia from supplying proof of the damage alleged. Malaysia further contends that in matters involving protection of the environment the burden of proof lies on the State against whose conduct the case is brought. Here too, even if one were to accept this argument, it has been seen that Singapore has placed materials before the Tribunal to indicate that there is no likelihood of its actions causing irreparable prejudice to the rights of Malaysia or serious harm to the marine environment before the arbitral tribunal has had occasion to deal with Malaysias claim. Singapores assertions have not been seriously challenged. Proof of the damage alleged by Malaysia has not been supplied. In its Request for provisional measures, the only argument advanced in support of the urgency of the situation is that there is little prospect that the Annex VII arbitral tribunal will be established and able to render a decision on provisional measures for some time. This argument too is untenable. In the normal course of events, the arbitral tribunal will be constituted not later than 9 October 2003. There is also no reason to believe that this body will not meet shortly thereafter.

38. It appears that urgency is indeed absent in respect of the substantial relief sought by Malaysia concerning suspension of Singapores land reclamation activities. The Tribunal observes in paragraphs 72 and 73 of its Order that Malaysia has not proven the existence of a situation of urgency in respect of its claims in relation to Singapores land reclamation in the sector of Tuas and it accordingly declares that it does not consider it appropriate under the circumstances to prescribe provisional measures with respect to that area. It may be recalled that, at the public sitting held on 27 September 2003, Malaysia stated that its concerns would be significantly reduced if Singapore were to give undertakings to the Tribunal that no effort would be made to infill Area D pending the decision of the merits tribunal. Singapore gave no such undertaking. The Tribunals Order does not prescribe any measures requiring Singapore to stop infilling Area D, for there is no evidence before the Tribunal that such infilling would lead to irreparable prejudice to the rights of Malaysia or serious harm to the marine environment pending a decision of the arbitral tribunal. Accordingly, Malaysia has failed to prove a situation of urgency in respect of the substantial relief it sought concerning reclamation works even around Pulau Tekong. The operative part of the Order prescribes certain provisional measures which are consistent with that premise; these measures underline a sense of urgency arising out of the duty to cooperate as enshrined in Part XII of the Convention and general international law. The Tribunal is not an innovator of these measures. They emanate from the assurances given by Singapore during the course of the oral proceedings, the agreement of the parties to have a joint study undertaken of the effects of Singapores land reclamation and the statement of Singapore that if there is compelling evidence that its reclamation works have adverse effects it would re-examine its works and consider taking such steps as are necessary and proper, including a suspension, to deal with them. The Tribunal considered it necessary to underline that, in view of the special concerns expressed by Malaysia, the group of independent experts entrusted with the mandate of determining the effects of Singapores land reclamation should prepare an interim report on the subject of infilling works in Area D at Pulau Tekong with a view to examining as soon as possible whether Malaysias concerns in respect of Area D are properly based. The Order further calls upon the parties to enter into consultations with a view to ensuring that the infilling operations do not prejudice Singapores ability to implement the commitments referred to in paragraphs 85 to 87 of the Order. It recognizes the basic stand of Singapore that any suspension or adjustment of land reclamation works should follow an objective study by a group of independent experts and that corrective measures would be taken only if such a study provides proof of adverse effects of the type mentioned by Malaysia.

(signed)
P. Chandrasekhara Rao

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In the other statement of Opinion from Judge Anthony A. Lucky, his opinion was the only one that is more specific to Singapore to STOP all works at Pulau Tekong Area D, and also addressed the future consideration of compensation to any Responding Parties (Singapore) for any restrictive measures awarded to Applicants (Malaysia) for reasons that are later found to be irrelevant.

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http://www.itlos.org/case_documents/2003/document_en_238.doc

19. After considering the issues and evidence I agree with the Tribunal. Might I humbly suggest that I would have added that specific measures be prescribed with respect to Area D off Pulau Tekong, i.e., that in-filling works in Area D off Pulau Tekong be suspended until a joint assessment authority is established to report within three months whether there will be serious harm to the environment and whether the rights of Malaysia with respect to navigation will be infringed.

20. Although there is no international precedent that I can find, I think the time has come to consider whether applicants for provisional measures, as in some municipal systems, should provide a guarantee in their applications that if the measures sought are granted, but discontinued if the substantive matter is determined in the respondents favour, they will pay damages incurred and costs to the respondents.

21. I have voted in favour of the Order of the Tribunal.

(signed)
Anthony A. Lucky

NeonTetra SG

jealous tt sg can reclaim and they dunno how to?

Atobe SG

Surprisingly, the same subject is headlined in the Malaysian NEW STRAITS TIMES in a more balanced and "truthful" manner, as seen from the following extract :

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New Straits Times » Frontpage

Reclamation to be monitored
Deborah Loh

HAMBURG, Oct 9: SHORT of ordering a total suspension of Singapores reclamation works, the International Tribunal for the Law of the Sea (ITLOS) yesterday directed the republic not to conduct its reclamation in ways that would cause irreparable prejudice to Malaysias rights or serious harm to the marine environment.

The tribunal also ordered Singapore to subject its reclamation works to a group of independent experts who would study its effects and propose appropriate measures to deal with any adverse impact.

The order was read by tribunal president L. Dolliver M. Nelson.

Also on the bench were all 21 permanent judges of the tribunal, and the two ad hoc judges appointed by Malaysia and Singapore.

The tribunal ordered both countries to co-operate in promptly setting up the group of experts and jointly agree on the terms of reference of the study, which should be completed within a year.

The study by the experts was a Malaysian proposal. Question

It also ordered the study to prepare as soon as possible an interim report on the infilling works in Area D at Pulau Tekong (reclamation here has not started).

Malaysia and Singapore are also to have regular exchanges of information and assessment of risks and effects of the reclamation.

The order, however, was silent on the boundary issue of reclamation works affecting the waters at Point 20 south of Tuas.

Significantly, the ITLOS order noted that Singapore had committed itself to "carefully study Malaysia's evidence" if Malaysia could "point to a specific and unlawful adverse effect that would be avoided by suspending some part of the present works".

Singapore had also said that it would "seriously re-examine its works and consider taking such steps as are necessary and proper, including a suspension, to deal with the adverse effect in question".

Singapore had also informed the tribunal that it would not take "irreversible action" to construct the stone revetment around Area D at Pulau Tekong, pending the completion of the joint study.

The order noted that these commitments by Singapore were placed on the tribunal's record. Singapore's request that Malaysia bear its costs incurred in the proceedings was dismissed.

Additionally, the tribunal wants Malaysia and Singapore to submit to it the first report on compliance with the order by Jan 9.

Present on Malaysia's side were co-agent Ambassador to Germany Datuk Kamal Ismaun and Attorney-General Tan Sri Abdul Gani Patail. Singapore was represented by its agent Prof Tommy Koh, its ambassador-atlarge, and co-agent A. Selvarajah, Singapore's Ambassador to Germany.

The ITLOS order is equivalent to a judicial order and is, therefore, legally binding on both parties. Malaysia decided to apply to ITLOS for interim provisional measures (or an injunction) on the reclamation works, after Singapore turned down repeated requests to negotiate the matter. Singapore also did not respond to Malaysia's requests for an environmental impact assessment of its works.

The reclamation dispute still has to be settled by a separate arbitral tribunal.

Malaysia instituted arbitral proceedings under the United Nations Convention on the Law of the Sea, and on Sept 5, submitted a request to the ITLOS for the provisional measures.

The hearing of the case was held for three days from Sept 25. Malaysia had been represented by its agent Foreign Ministry secretary-general Tan Sri Fuzi Abdul Razak, Gani and international law experts Sir Elihu Lauterpacht, James Crawford, both professors of Cambridge University, and Prof Nico Schrijver, a professor of international law.

Malaysia had argued that a stop to the reclamation works pending final arbitration was crucial given the irreparable damage to the marine environment at Pulau Tekong.

Studies were presented to show that continued reclamation would narrow the distance between the Johor coast and the island, causing an increase in current velocity, resulting in greater coastal erosion, siltation and higher salinity in Johor's estuaries. These effects would destroy coastal habitats.

The shipping lane between Pulau Tekong and the Pularek naval training base would also be narrowed, causing difficulties in ship manoeuvrability.

Malaysia said the stoppage of works at Tuas was also warranted because the affected area in the southern waters of Tuas (at Point 20) lay within territorial waters claimed by Malaysia since 1979.

Additionally, Singapore's actions had breached international obligations owed to Malaysia as a neighbour, which is the duty to co-operate bilaterally especially since the straits were a semi-enclosed sea common to both countries.

Singapore had been represented by Koh and Attorney-General Chan Sek Keong.

Singapore did not accept Malaysia's technical studies as proof of environmental damage. It blamed marine pollution in the straits on Malaysia's own development projects. It also argued that the claim of urgency was not credible as Malaysia knew of the reclamation but delayed action until works reached an advanced stage.

On the disputed Point 20 south of Tuas, Singapore said the waters there were within its boundary under a 1995 agreement ratified by both countries.

If completed, the reclamation would add a total of 3,306ha to Pulau Tekong, double its original size, while Tuas would be extended seven kilometres, covering 1,908ha.

http://www.nst.com.my/Current_News/NST/Thursday/Frontpage/20031009081625/Article/

Gun SG

During Mar 2002, Dr. Mahathir warned Singapore over the land reclamation by saying :

"We hope Singapore cooperates. If they act as they wish, we will also act as we wish. If Singapore wants us to cooperate with them, they have to cooperate with us," said Mahathir.
"I don't know. Their deputy prime minister (LSL?)came and said he will consider (halting) but they are still continuing, so it's a little difficult now," he told reporters here.
"We also cannot give our cooperation if they don't give their cooperation."

I guess his wish didn't come true this time, with cooperation or not.
Now the tribunal directive is telling him site down and talk to Singapore rather than crying wolf

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