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