뉴스레터

Question

The International Court of Justice (ICJ) accepted the argument of "possession immemorial" in rendering its decision on the case of Pedra Branka Island. What is the significance of this decision with regards to Dokdo?

Answer

In May 2008, the ICJ rendered a meaningful decision with regards to the possession immemorial and terra nullius debate.

A territorial dispute involving the Pedra Branca Island erupted between Singapore and Malaysia. Singapore asserted that it had taken possession of a terra nullius. Singapore had designated the island as a construction site for a lighthouse with the permission of the monarch of the United Kingdom. It argued this was the traditional expression of legitimate possession by an entity with sovereignty over a given territory. The King of United Kingdom had acquired legal rights to the island of Pedra Branca between 1847 and 1851. Singapore has argued that the rights to the island then transferred to Singapore, the legal successor of the rights of the British monarch in the region.

I in the official maps published by the Malaysian government between 1962 and 1975, Pedra Branca is indicated as being part of Singapore. In 1977, Singapore installed military communication facilities and raised the Singaporean flag on the island. The Malaysians did not express any problems with these actions at the time.

Malaysia countered that the island of Pedra Branca was Malaysia's possession immemorial. For instance, in the mid 17th century, King Johor had issued a complaint regarding the Dutch East Indian's seizure of a Chinese vessel passing through the Singapore Strait. The Singapore Strait was under Malaysia's jurisdiction. Second, the Singapore Free Press (May 25, 1843) recorded the island as being the possession of the Sultan. Third, according to the Crawford Report, written in 1828 by the British authorities who administered the area, the Orang Laut tribe, residents of coastal area of Pedra Branca, submitted to the authority of the Kingdom of Johor. Based on the above facts, the Malaysian side stated that Pedra Branca was the possession immemorial of the Kingdom of Johor.

In the final ruling, the ICJ reasoned that the various evidence, including the Crawford Report of 1824, King Johor's official complaint, and the reports of the Singapore Free Press (indicating Pedra Branca as the Sultan's territory) supported the Malaysian claim for possession immemorial. The ICJ emphasized that the documents written by the British Authorities, who administered the region at the time, has high value as evidence. Based on such reasons, the ICJ concluded that Malaysia continuously and peacefully exercise its dominium over all the islets in the Singapore Strait.

The outcome of the Pedra Branca case is significant in that it was the first time the ICJ accepted the argument of possession immemorial in a territorial dispute involving islets. A more important fact, however, is that the ICJ regarded the absence of complaint by the original sovereign (when another nation executes activities as a sovereign on the original sovereign's territory) as connivance, and the transfer of dominium can materialize under these conditions. With Japan increasingly on the offensive on the Dokdo issue, the latest decision by the ICJ on territorial disputes involving islands is very meaningful for Koreans. The island of Pedra Branca was clearly a "possession immemorial" of Malaysia but the fact that Malaysia had remained silent on Singapore's de facto rule and the fact that Malaysia carelessly denied its right to possession when another nation took issue with the legal status of the island led to Malaysia's loss of territorial rights over Pedra Branca. This is a very important case that sheds light our own territorial sovereignty issues regarding Dokdo.