Earlier this week, Singapore announced that it will conduct land reclamation works within 0.5 nautical miles of the small island of Pedra Branca. The seven hectare of land reclamation, equivalent in size to about 10 soccer fields, will be undertaken by the Housing and Development Board, an agency under the Ministry of National Development. The aim of the reclamation is to provide berthing for vessels, increase administrative support, and to improve communications facilities on the island.
With the announcement of these land reclamation works, which are expected to start by the end of this year, it is important to see how Singapore might benefit under international maritime law, as well as the possible maritime consequences for Malaysia.
Sovereignty over Pedra Branca island, which lies approximately 24 nautical miles to the east of Singapore and 7.7 nautical miles to the south of the Malaysian State of Johor, became a subject of dispute since 1979, when Malaysia published a map indicating the island to be part of its territory. The island dispute went to the International Court of Justice (ICJ) in 2003, together with two other maritime features near Pedra Branca, namely Middle Rocks and South Ledge.
In 2008, the ICJ ruled that Singapore had sovereignty over Pedra Branca. While the Sultanate of Johor had original title to Pedra Branca, sovereignty over the island had passed to Singapore by 1980, when the dispute crystallized. The ICJ’s ruling was made on the basis of the fact that Singapore and its predecessor polities had exercised several acts of sovereignty over the island, to which Malaysia and its predecessors had failed to respond. In the same ruling, ICJ also awarded Middle Rocks to Malaysia and ruled that South Ledge belonged to the state in whose territorial waters it is located, a question that is to be determined through a process of negotiation between Singapore and Malaysia.
In 2017, Malaysia filed a request for the revision and interpretation of the ICJ’s 2008 Judgment. A revision application seeks to revise or alter judgment based on purported newly-discovered facts, while an interpretation application seeks to clarify a judgment. On May 28, 2018, however, Malaysia informed the ICJ that it would discontinue the proceedings for both the revision and interpretation cases. Subsequently, ICJ informed Malaysia and Singapore that the Court had placed on record the discontinuance, by agreement of both Parties.
Now that it is legally settled that Pedra Branca belongs to Singapore, there is no dispute that Singapore has the right to reclaim land adjacent to its island in accordance with domestic and international law. If the seven hectares of reclaimed land eventually form an artificial island, this would be in alignment with Article 60 of the United Nations Convention of the Law of the Sea (UNCLOS), which grants nations the right to build and construct new artificial islands in their Exclusive Economic Zones.
With that in mind, one question that might be raised is whether Singapore can claim new territorial waters within 12 nautical miles from its new baseline, if it constructs a new artificial island off the coast of Pedra Branca.
The principle of land reclamation and artificial islands was settled by the Arbitral Tribunal in the famous Spratly Islands case involving the Philippines and China. In its 2016 award, the tribunal confirmed that it considers land reclamations around the Spratly Islands, which consists of low-tide, rocks, and reefs, as “man-made” and not naturally formed. Article 121(1) of UNCLOS states that an “island” is the only maritime feature that is subject to a claim of sovereignty and to 12 nautical miles of territorial sea.
An island must be a naturally formed area and not man-made or artificially made. Furthermore, the Arbitral Tribunal referred to Article 60(8) of UNCLOS to negate the status of sovereignty over artificial islands. It stated that artificial islands, installations, and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone, or the continental shelf.
In the case of Singapore’s land reclamation works near Pedra Branca, assuming that these efforts eventually constitute an artificial island, they will not be considered a naturally-made feature. There were many considerations taken by the tribunal when writing its judgment, but for the purpose of this article and due to lack of available information, Singapore may therefore not claim new maritime entitlements, and extend its territorial waters from the baseline of its new artificial island.
How could Singapore’s land reclamation efforts impact Malaysia? As of 2021, the Malaysia-Singapore Joint Technical Committee (MSJTC) has yet to conclude the Maritime Boundary Delimitation of Pedra Branca, Middle Rocks, and South Ledge. South Ledge remains a disputed maritime feature between Malaysia and Singapore, given that sovereignty over it depends on which nation enjoys sovereignty over the territorial waters of Pedra Branca or Middle Rocks, as per the ICJ’s 2008 ruling.
It is settled that the land reclamation on Pedra Branca will not raise new maritime entitlements, and that therefore Singapore cannot extend its maritime entitlement to encompass South Ledge. However, this act of reclamation could still assist Singapore in its negotiation with MSJTC to claim larger territorial waters for Pedra Branca. This is because the standard maritime entitlements do not apply to either Pedra Branca or Middle Rocks as long as negotiations are underway. If Singapore could claim an island that is 24 nautical miles to the east of Singapore compared to 7.7 nautical miles from Johor, Malaysia, it is not hard to imagine it doing the same with South Ledge, which is only 2.2 nautical miles to the south-south-west of Pedra Branca.
Although South Ledge is a rock formation that is only visible at low tide, the claim over South Ledge would extend the territorial waters of either Malaysia or Singapore as stated under Article 121(3) of UNCLOS. The extension of territorial waters would grant Malaysia exclusive rights and sovereignty over the waters, including for underwater exploration and scientific research. Malaysia needs to learn from its history and the recent news of Singapore’s impending land reclamation should wake up Kuala Lumpur to the need to initiate negotiations with Singapore aimed at safeguarding its rightful maritime interests.