Case concerning Land Reclamation by Singapore in and around the Straits of Johor

(REQUEST FOR PROVISIONAL MEASURES)
International Tribunal for the Law of the Sea. 8 October 2003

( Nelson, President; Vukas, Vice-President; Caminos, Marotta Rangel, Yankov, Yamamoto, Kolodkin,Park, Bamela Engo, Mensah, Chandrasekhara Rao, Akl, Anderson, Wolfrum, Treves, Marsit, Ndiaye,Jesus, Xu, Cotand Lucky, Judges; Hossainand Oxman, Judges ad hoc)

Citation

ITLOS Case No. 12

Facts

A small island city-State off the southern tip of Malay Peninsula, Singapore has been reclaiming land-a process of turning otherwise unusable land into usable-from the sea since its independence in order to make up for its putative shortage of land. Starting in 1960s, Singapore has reclaimed land for industrial, housing and infrastructure purposes. One of the most well-known projects is Changi Airport, located at the eastern part of the Mainland Singapore, Pulau Ujong.

The issue in question concerned massive land reclamation projects in Tuas and in Pulau Tekong, located at the southwestern tip of the Mainland Singapore and in a separate, northeastern island, respectively.

In January 2002, by the time the Singapore’s land reclamation projects in Tuas had progressed for more than one and half years, Malaysia began protesting the projects because of its alleged land encroachment into her territorial waters. A subsequent protest was made in April 2002 for the issue of various impacts arising from the projects.

Malaysia’s protest against the land reclamation projects in Pulau Tekong began with claims of a different nature, concerning the alleged impacts on her environment and the narrowed waterway in and around the Straits of Johor.
In a nutshell, Malaysia accused Singapore of reclaiming land in a way that impinged on her territory, narrowed and constrained navigation in the Straits of Johor, caused various damages to its marine environment including the reduced catch of the Malaysian fisherman.

In July 2003, Malaysia invoked Article 286 of 1982 UNCLOS and initiated arbitration under Annex VII of 1982 UNCLOS. Arbitration efforts afterwards had not produced any fundamental changes to the dispute and on 4 September 2003 Malaysia applied to ITLOS for provisional measures pending the arbitration outcome.

Issues

  • To what extent are the States obliged to continue exchanging views regarding the settlement by peaceful means? Does it have any bearing on the Tribunal’s exercise of jurisdiction?
  • Whether the nature or/and degree of damages incurred by Malaysia, if any, arising from land reclamation works by Singapore justify prescribing the requested provisional measures, mainly the suspension of the works
  • Whether Singapore is responsible for the alleged damages incurred by Malaysia under UNCLOS
  • Whether the reduced catch by the Malaysian fisherman is subject to compensation. If it is so, to what extent and in what form shall Singapore compensate?

Law

(See ADDENDUM [4] below for the specific articles invoked)

1982 UN Convention on the Law of the Sea

Judgement by the ITLOS

Consisted of five members, the Arbitral Tribunal delivered a unanimous judgement prescribing a set of provisional measures with regard to the establishment of a group of experts (GOEs) on assessing any adverse effects or risks of Singapore’s works. A very important point to note is that as the Court considered neither Malaysian claim to an area of territorial sea nor a situation of urgency a sufficient basis for the prescription of provisional measures with respect to the reclamation in the sector of Tuas.

Court’s Reasoning by Issue

1. To what extent are the States obliged to continue exchanging views regarding the settlement by peaceful means? Does it have any bearing on the Tribunal’s exercise of jurisdiction?

Singapore argued that Malaysia has failed to fulfill its obligations under Article 283(1) because Malaysia’s actions were deemed to be an inadequate discharge of the obligation. Therefore Singapore submitted that ITLOS may not exercise its jurisdiction over the matter. To this, the Tribunal viewed that the “obligation to proceed expeditiously to an exchange of views” (UNCLOS Article 283) applies to both sides of the dispute (38). Then the Tribunal considered the both sides: Singapore maintaining that Malaysia broke off the negotiation process (43) while Malaysia maintaining that the further exchange could not be expected when reclamation works were continuing (44). Finding that “the parties were not able to settle the dispute or on means to settle it” (46) and citing two cases (Southern Bluefin Tuna Cases, Order of 27 August 1999, paragraph 60 and The Mox Plant Case, Order of 3 December 2001, paragraph 60), the Tribunal stated that “in the circumstances of the present case Malaysia was not obliged to continue with an exchange of views when it concluded that this exchange could not yield a positive result”. Thus the requirement of the Article 283 was satisfied and with no other objections to the Tribunal’s exercise of jurisdiction by Singapore, the Tribunal finds that it would prima facie have jurisdiction over the dispute.

2. Whether the nature or/and degree of damages incurred by Malaysia, if any, arising from land reclamation works by Singapore justify prescribing the requested provisional measures, mainly the suspension of the works.

1) With regard to the Malaysia’s claim that the Singapore’s reclamation works impinged on Malaysia’s territorial sea in the sector of Tuas and in the vicinity of Point 20 justifies the ordering the suspension of the works (70), the Tribunal viewed that the existence of claim to the territorial sea alone is not, per se, a sufficient basis for the prescription of provisional measures under Article 290 of UNCLOS (71).

2) With regard to the Malaysia’s claim of urgency of the situation, the Tribunal found that “the evidence presented by Malaysia does not show the urgency…or a risk that rights it claims with respect to the territorial sea would suffer irreversible damage pending the consideration of the merits…by Annex VII arbitral tribunal”. And thus the Tribunal “does not find it appropriate in the circumstances to prescribe provisional measures with respect to” the works in the sector of Tuas (73).

Yet the Tribunal, citing the Article 290 and the Mox Plant case, emphasize the duty to cooperate in the prevention of pollution in the marine environment (92). Then it found that there was no assessment “concerning the impact of the works on waters under the jurisdiction of Malaysia” (95) and that “it cannot be excluded that in the particular circumstances, the reclamation works may have adverse impacts on the marine environment” (96). The Tribunal stated that there existed insufficient cooperation between the parties and that “it is urgent to build on the commitments made to ensure prompt and effective cooperation of the parties in the implementation of their commitments” (98), prescribed the provisional measures that primarily emphasize the cooperative efforts of the both sides on the matter through the establishment of the group of independent expects (GOEs).

3. Whether Singapore is under UNCLOS responsible for the alleged damages incurred by Malaysia

The Tribunal did not explicitly rule on this issue. All it said about the matter was that “it cannot be excluded that, in the particular circumstances of this case, the land reclamation works may have adverse effects on the marine environment” (96). Thus the matter is open to questions and further inquiry by the GOEs.

4. Whether the reduced catch by the Malaysian fisherman is subject to compensation. If it is so, to what extent and in what form shall Singapore compensate?

The Tribunal did not comment on the reduced catch by the Malaysian fisherman. The matter, nevertheless, was subsequently dealt in the Settlement Agreement signed by both parties on 26th April 2005 in which Singapore agreed to compensate RM 374,400 (Malaysian Riggit), which was RM 5,200 per fisherman. This amount (RM 5,200), according to the exchange rate as of April 2005, was roughly equivalent to  $1,379 (USD 1 = 3.77 RM, 25th April 2005).

 

ADDENDUM

[1] Malaysia’s Reasons for which the request was made

1) Singapore is engaging in land reclamation in and around the Straits of Johor in a manner that is causing and has potential to cause serious and irreversible damage to the marine environment and serious prejudice to the rights of Malaysia.

a) Serious harm to the marine environment: The Malaysian reports (included in Annex) demonstrate this. The reclamation projects are producing major changes to the flow regime, sedimentation and consequential effects in terms of coastal erosion. Navigation is also affected.

b) Prejudice to the rights of Malaysia: those rights relating to the maintenance of marine and coastal environment and the preservation of its right of access to its coastline are at stake. Such rights are guaranteed by UNCLOS Article 2, 15, 123, 192,194,198, 200, 204, 205, 206, 210 and 300. Singapore must comply with all of the relevant obligations in those articles.

2) The projects are permanent in character; the harms caused are irreversible and irreparable

3) A failure to grant provisional measures would prejudice the rights of Malaysia while the grant of provisional measures would not cause irreparable prejudice to the rights of Singapore.

4) The situation is urgent as Singapore has not responded to Malaysia’s invitation that ITLOS should have jurisdiction over the merits as of the date of filing this request.

Therefore, pursuant to Article 290(1) and (5) which state that the Tribunal “may prescribe any provisional measure which it considers appropriate under the circumstances to the respective rights of the parties to the dispute or to prevent serious harm to the marine environment”, Malaysia request that the Tribunal prescribe provisional measures as both conditions (serious harm and prejudice, as explained above) have been met.

[2] Provisional Measures requested by Malaysia were 

a) that Singapore shall, pending the decision of the Arbitral Tribunal, suspend all current land reclamation activities in the vicinity of the maritime boundary between the two States or of areas claimed as territorial waters by Malaysia (and specifically around Pulau Tekong and Tuas);

b) to the extent it has not already done so, provide Malaysia with full information as to the current and projected works, including in particular their proposed extent, their method of construction, the origin and kind of materials used, and designs for coastal protection and remediation (if any);

c) afford Malaysia a full opportunity to comment upon the works and their potential impacts having regard, inter alia, to the information provided; and

d) agree to negotiate with Malaysia concerning any remaining unresolved issues

[3] In her Response Singapore requested ITLOS to

(a) dismiss Malaysia’s Request for provisional measures; and

(b) order Malaysia to bear the costs incurred by Singapore in these proceedings; Application by the Court:

[4] Articles Invoked by Malaysia

Article 2: Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil

Article 15: Delimitation of the territorial sea between States with opposite or adjacent coasts

Article 123: Cooperation of States bordering enclosed or semi-enclosed seas

Article 192: States have the obligation to protect and preserve the marine environment.

Article 194: Measures to prevent, reduce and control pollution of the marine environment

Article 198: Notification of imminent or actual damage

Article 200: Studies, research programmes and exchange of information and data

Article 204: Monitoring of the risks or effects of pollution

Article 205: Publication of reports

Article 206: Assessment of potential effects of activities

Article 210: Pollution by dumping

Article 283: Obligation to exchange views

Article 286: Application of procedures under this section

Article 287 (1), (3): Choice of procedure

Article 288: Jurisdiction

Article 290 (1), (5): Provisional Measures

Article 300: Good faith and abuse of rights

Annex VII: ARBITRATION

OLYMPUS DIGITAL CAMERA“Courage and perseverance have a magical talisman, before which difficulties disappear and obstacles vanish into air.” – John Q. Adams

Joining in 2014, James DongA Shin is a Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent the official position of YULS.

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