Wednesday 7 August 2013

Book on land reclamation dispute between Singapore and Malaysia launched

Besides recalling drama, it serves as reminder of issue of conflicting legal rights
By Grace Chua, The Straits Times, 6 Aug 2013

ONE September day in 2003, Mr Lionel Yee was on a plane coming in to land at Changi when it flew over Pulau Ubin and Pulau Tekong.

Then a legal officer in the Attorney-General's Chambers, he was returning from Hamburg after presenting Singapore's case at the International Tribunal for the Law of the Sea (ITLOS). It involved a dispute with Malaysia which alleged that land reclamation at Tekong was harming the environment and causing navigation problems.

Mr Yee, now Judicial Commissioner in the Supreme Court, passed the islands in an instant. "That's what we had been fighting for, for so many weeks and months," he said.

Last night, he and his co-authors, Ambassador- at-large Tommy Koh and Ministry of National Development deputy secretary Cheong Koon Hean, launched a book on the landmark case.

All three were key members of the Singapore team at the tribunal.

Malaysia & Singapore: The Land Reclamation Case - From Dispute To Settlement, was launched at the National Museum by Minister for Law and Foreign Affairs K. Shanmugam.

It details the dispute over reclamation projects at Tuas, Pulau Ubin and Pulau Tekong when in 2003, Malaysia took Singapore before the Itlos in a bid to halt reclamation work that had started in 2000.

The dispute raised a larger issue of conflicting legal rights - Singapore's to reclaim part of its sea for national needs, and Malaysia's to protect its maritime environment from harm.

It was resolved when international experts showed the reclamation was not causing major environmental damage. Both countries agreed on minor changes to the Tekong reclamation and to monitor the area's ecology.

Mr Shanmugam said the case should be captured for posterity, and remarked on what it reflected about ties between the countries: "When we agree that we can go to third party adjudication, it doesn't hold any particular issue as so central that it holds the entire relationship hostage."

The $26.75 book is published by The Straits Times Press and the Centre for International Law and the Institute of Policy Studies at the National University of Singapore. All royalties will be donated to The Straits Times School Pocket Money Fund.

A chapter in the history of bilateral relations
By Grace Chua, The Straits Times, 6 Aug 2013

SINGAPORE has reclaimed land at its edges for decades, expanding its land area by more than a fifth since the 1960s.

The land includes spots that most people take for granted, such as Marine Parade and East Coast Park.

So it was no surprise that this reclamation activity eventually rubbed its closest neighbour the wrong way.

In 2002, Malaysia objected to reclamation works at Pulau Tekong and Tuas, two years after the work had started. It claimed the projects damaged the environment, affected fishermen's livelihoods and caused navigation difficulties.

The case was heard at the International Tribunal For The Law Of The Sea in 2003, where the two countries agreed to a full scientific study. It was resolved after a team of independent experts found that the Tekong reclamation project had no major impact on the environment.

A decade on, three key members of the Singapore team - Professor Tommy Koh, Dr Cheong Koon Hean and Mr Lionel Yee - have written a 128-page volume on the experience, giving a sense of the drama in and out of the courtroom. It details Malaysia's complaints and Singapore's legal preparations, a tense week in Hamburg before the tribunal, a joint study by international experts, arbitration at The Hague and a settlement between the countries.

The Singapore team had a keen eye for anything that would help - such as photos of a container vessel breezing through the Elbe River channel in Hamburg to show navigation channels near Tekong would be wide enough even after reclamation.

The book also documents lighter moments. For example, one of the Joint Working Group meetings in Putrajaya ended so late that a Singapore delegation, including Prof Koh, was unceremoniously dumped at a petrol kiosk in Johor on the way back as the coach driver was late for another assignment.

The easy-to-read volume is targeted at laymen interested in international law and international relations. It charts a key moment in the history of bilateral relations between Singapore and Malaysia, and serves as a reminder how vital reclamation is to Singapore and how careful it must be about reclaiming land.

High sense of unity, high morale
A new book, Malaysia & Singapore: The Land Reclamation Case - From Dispute To Settlement, by Cheong Koon Hean, Tommy Koh and Lionel Yee, will be launched by guest of honour, Law and Foreign Affairs Minister K. Shanmugam, at the National Museum of Singapore on Monday at 6pm. The book tells a memorable story of Singapore's first experience of having to defend its legal rights before an international tribunal, namely the International Tribunal for the Law of the Sea (Itlos). Malaysia in 2003 took Singapore before Itlos in order to stop its reclamation works around Pulau Tekong and Pulau Ubin that had been going on openly since November 2000. We publish here two excerpts.
The Straits Times, 3 Aug 2013

WE WOULD like to record our reflections and lessons learnt. We shall begin with our reflections.


FIRST, this case has reinforced the merit of Singapore's longstanding policy of adhering to international law. International law is important to all states. It is especially important to small states. International law levels the playing field on which big and small states interact with one another. Adhering to international law puts Singapore on a moral high ground.

Second, this case also vindicates another pillar of Singapore's foreign policy. Singapore believes in the peaceful settlement of disputes. The first priority is to settle a disagreement or dispute through negotiations.

However, if negotiations should prove to be ineffective, Singapore's consistent policy is to refer such a dispute to a third-party process.

In this case, there were three modalities of a third-party process, namely, the Annex VII Arbitral Tribunal, International Tribunal for the Law of the Sea (Itlos) and the Group of Independent Experts.

The wisdom of referring a dispute to a third-party process is to move it from the political arena to a more objective and fact-based one.

Third, this case demonstrates the importance of good interpersonal relations between negotiators. This reflection should not be surprising since negotiators are human beings. Negotiators interact with one another not only intellectually, but also emotionally.

Thus, the good interpersonal relations between the two agents, between Mr S. Tiwari and the Malaysian Attorney-General, and between the two liaison officers, Mrs Cheong (Koon Hean) and Madam Rosnani Ibarahim (director-general of the Department of Environment), created goodwill which in turn enabled the two delegations to seek win-win compromises. This would not have been possible if the relations between the principal actors were bad.

Lessons learnt

WHAT are the most important lessons which the Singapore team learnt from this case? The following are some of the most important.

First, an important, perhaps even decisive, determinant on the outcome of the case was the state of bilateral relations between the two countries. The bilateral relationship had gone through a difficult period.

The then Prime Minister of Malaysia could also have received optimistic advice from his foreign legal advisers that Malaysia had a much better case for provisional measures against Singapore than things turned out to be. Bilateral relations had, however, improved significantly by the time the Settlement Agreement was negotiated and signed.

Second, the Singapore delegation was pleased with the competence and integrity of Itlos. The decision of Itlos, to require the two governments to appoint a group of independent experts to ascertain the facts, was a wise one.

This is because the dispute revolves around questions of fact more than questions of law. Once the facts had been ascertained by an impartial third party, the two sides were able to negotiate a settlement based on those facts.

Third, as a maritime nation and state party to the United Nations Convention on Law of the Sea (Unclos), Singapore should actively cultivate a keen awareness of its rights and responsibilities under the convention. It is also important for Singapore to take an interest in and, when Singapore's core interests are at stake, participate actively in the negotiation and drafting of international agreements and treaties.

The leadership role which the Singapore delegation played in Unclos gave the Singapore team both knowledge and credibility.

Fourth, the Itlos hearing in Hamburg underlined the importance of meticulous preparation and an intimate familiarity with every point in one's case as well as that of the opposite party. Nothing can substitute the need for hard work and careful preparation before one appears before a court of law or an arbitral tribunal.

The excellent work done by the young legal officers in the team was highly commended by our international counsel.

Finally, the Singapore team of more than 30 members, coming from different ministries, agencies as well as academia, had a high sense of unity. The members of the team treated one another not only as colleagues, but as friends. The morale of the Singapore team was high, even when it was faced with difficult challenges.

We look back on the two intense years we worked together with satisfaction and pleasure.

Scramble to meet short deadline

Bringing the dispute to the International Tribunal for the Law of the Sea (ITLOS)

IT WAS late afternoon on Friday, Sept 5, 2003. At the Attorney- General's Chambers (AGC) in Singapore, the International Affairs Division had gathered for a departmental tea to mark the Chinese Mooncake Festival when information was received that Singapore's High Commissioner in Kuala Lumpur had been summoned to Malaysia's Foreign Ministry. It did not take long for the purpose of that meeting to be known.

Malaysia had at around 11am Hamburg time filed a request for provisional measures with Itlos and had, at about the same time, handed to our High Commissioner in Kuala Lumpur a diplomatic note attaching the request it had submitted.

Malaysia was seeking the prescription of the same four provisional measures which it had sought unsuccessfully from Singapore earlier, including suspension of the reclamation work. The latter meant that the stakes were very high for Singapore.

Although the legal and technical teams in the Singapore Government had anticipated this eventuality, it still came as a bit of a shock as the implications of what had happened and the many tasks which now needed to be done sank in.

We knew that things would move very quickly.

The very nature of a provisional measure meant that the tribunal had to deal with the request as soon as possible.

The tribunal would, in the next few days, be giving Singapore a short deadline to file its written response and this would be followed soon after with an oral hearing in Hamburg.

There was not much of a Mooncake Festival to celebrate as the legal team spent that weekend and every day thereafter preparing for the case.

Arrangements were made for one of our counsel, Professor Vaughan Lowe, to come to Singapore as soon as possible. Meetings were held to strategise the next steps, divide the work and set down timelines before the matter was to be litigated. Prof Lowe arrived in Singapore over the weekend to assist the legal team in preparing the written response and in preliminary work on the oral arguments to be made.

While Professor (Michael) Reisman could not come to Singapore at short notice, he was nevertheless fully involved through e-mail and teleconferencing.

Time limits was one of the early issues that had to be resolved with the Registrar of Itlos. It went without saying that Singapore wanted as much time as possible to prepare our response and our case.

Malaysia, on the other hand, wanted an earlier hearing date. After some informal contacts between the tribunal and the representatives of both Malaysia and Singapore to fix the dates of the hearing, Sept 25 to 27, 2003 was accepted as a compromise.

Subsequently the deadline for Singapore's response was fixed for Sept 20, 2003.

Singapore therefore had 15 days to prepare its written response. However, in reality, some five to six days had to be set aside for the printing of the documents and their physical transmission to Hamburg.

Attorney-General Chan Sek Keong chaired very lengthy inter-agency meetings where everyone went through the response, paragraph by paragraph. The annexes and graphics that accompanied the text of the response were also prepared concurrently. These included a short video clip on land reclamation in Singapore, so that the judges of the tribunal could visualise the reclamation process as well as understand the physical constraints Singapore faced which necessitated land reclamation.

After the drafts were finalised, there was one round of proofreading at AGC all day on Sunday, Sept 14, 2003 before it was sent to the printers.

The proofs from the printers came in very late on Tuesday night, Sept 16, 2003 and the team spent some time doing a further round of proofreading.

This was the first time that Singapore was preparing a written response to a legal case at an international level, and as we wanted the documents to look and feel professional, the team had chosen to print Singapore's response on slightly thicker paper of relatively good quality, with a slight gloss.

This was a decision we would regret, as it made for a very heavy set of documents, which we had to carry around with us for reference over the next few years. The glossy paper also made it difficult to make notes in the margins.

These lessons did not go to waste - when it came time to prepare Singapore's written submission for the Pedra Branca case at the International Court of Justice, lighter paper with a matte finish was used.

Once the documents were ready, an MFA (Ministry of Foreign Affairs) officer, Mr Shivakumar Nair, flew up to Berlin with one batch of the response documents on Wednesday night, Sept 17, 2003, arriving in Berlin on Thursday, Sept 18, 2003. We had arranged for him to arrive two days in advance of the Saturday deadline because if anything untoward happened, there would still be time to send back-up documents the next day. With support from our Berlin Embassy staff, the documents were kept under vigilant supervision over the next two days.

On the morning of Saturday, Sept 20, 2003, Singapore delivered its response to the Registrar of Itlos in Hamburg.

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