CONTEMPORARY EURASIA VOLUME VIII (1) ContemporaryEurasia81 | Page 87

YULONG DAI
There are two advantages for Singapore not adopting the principle of
prescription to support its claim. Firstly, during the beginning stage when the
Court was deciding the original title to Pedra Branca, Singapore was able to
claim it, or at least claim this island was terra nullius, rather than passively
admitting that it originally belonged to Johor. As a matter of fact, the indirect
evidence which benefits Malaysia’s claim of Johor’s original title to Pedra
Branca was not strong enough. There would be a chance that the Court
might consider this island terra nullius for both claimants and lacked
sufficient evidence of sovereignty. If this result took place, it would
contradict the situation that Singapore adopted the principle of prescription
to support its claim at the beginning. This is because the claim in this way
requires a precondition that the opponent claimant, in reality, initially owned
the disputed territory. On the other hand, if the Court confirmed this island
was terra nullius, it then might be easier for Singapore to win the title to
Pedra Branca, because the amount of evidence that it acquired would help
prove that it gained the title through its effective control. Meanwhile, since
the Middle Rocks shared the same legal status as Pedra Branca, according to
the Court, it should also be terra nullius in this case.
Secondly, Singapore’s claim of effective control implied part of the
features of the principle of prescription. If Johor had the original title to
Pedra Branca, then Singapore’s conducts accords to acts à titre de souverain
and would shift this title to itself. On the contrary, it can be deduced that
Singapore gained the original title to this island due to its conduct even
though it did not claim this during the early stages of the arbitration. Some of
the judges of this case have noticed Singapore’s skillful claim. Two of them
admitted that Singapore might fail by adopting the principle of prescription,
according to the four preconditions of this principle. 22 Therefore, Singapore
had to reject the principle of prescription in its claim and keep emphasizing
its long-term peaceful control over Pedra Branca.
The second principle Singapore used to support its claim is
acquiescence. In written statements, Singapore cited several past cases of
territorial disputes to explain that the concept of “tacit agreement” is equal to
the principle of acquiescence in the Pedra Branca case. As can be seen from
the evidence provided by both claimants, there were insufficient treaties that
helped precisely define the legal status of these three disputed islets
throughout their entire history, especially regarding the complicated title
shift of Pedra Branca. The original legal status of these disputed islets is de
facto assessed by two indirect pieces of evidence. As a consequence, the
existing cases in international law are critical supplementary explanations to
the conduct of the parties.
From Singapore’s point of view, there are two factors that contributed
to the shift of the title to Pedra Branca, one is Singapore’s long-term
22
Judges Simma and Abraham, Joint dissenting opinion of Judges Simma and Abraham,
International Court of Justice, 2008, 122.
87