TRANSCRIPT OF OPENING REMARKS BY SINGAPORE FOREIGN MINISTER PROF S JAYAKUMAR TO THE SINGAPORE MEDIA FOLLOWING JUDGEMENT BY THE INTERNATIONAL TRIBUNAL FOR LAW OF THE SEA, SINGAPORE, 9 OCT 2003
First I'd like to say that the judgement of the ITLOS is a welcome decision and it is a good outcome for Singapore, and the reason we say that is because it did not accept Malaysia's request for Singapore to suspend, stop, its reclamation activities. In fact, what ITLOS has done is is to emphasise the need for both parties to co-operate and consult with regard to reclamation activities, including has emphasised to both parties importance of their obligation to co-operate with each other, including the establishment of an independent group of experts to do a joint study within a period of a year.
This is something we accept and welcome. In fact, it is in line with what we had proposed to the Malaysians and to the International Tribunal of the Law of the Sea.
As far as Singapore is concerned, we will honour the commitments and assurances we have given to ITLOS. In fact, we were prepared to engage with Malaysia in preparing the joint study even before the hearings at ITLOS.
We look forward to working with Malaysia to establish the independent panel of experts as well as cooperating with Malaysia on other aspects of consultation referred to in the judgement of ITLOS.
As to the question whether Singapore will stop its reclamation works. There is, as you can see, no need for us to stop the the reclamation works.
In fact, we have to remember that the whole point of Malaysia's going to the Tribunal for provisional measures, was to secure an order to suspend Singapore's reclamation works. Of course if the Tribunal had ordered Singapore to suspend its reclamation works, we would naturally have complied with that decision. But now ITLOS has handed its decision and it has not required us to stop work. That's clear from the order.
Instead, it has asked both sides to consult and cooperate on various matters, including the setting up of an independent panel of experts to do a joint study. We have no problems with that. In fact, we have no problems with other aspects of the Order, such the requirement to consult, to exchange information, to implement the commitments we have given. These are all commitments and assurances that Singapore has freely given in the hearings at ITLOS.
Now, a few words about the ITLOS's direction to Singapore "not to conduct its land reclamation activities in ways that might cause irreparable prejudice to the rights of Malaysia or serious harm to the marine environment". We also agree with this. We agree with it because it is a principle concerning reclamation activities. It is a standard, as one of the judges said. We agree with this principle and in fact, we have assured Malaysia as well as the Tribunal that we have always borne this principle in mind in carrying out our reclamation activities, and we will continue to do so in any future reclamation activities.
I would also like to say a few words about the performance of our team. I want to thank and commend our team, which is an inter-agency team led Ambassador Tommy Koh, It comprised the Attorney-General himself and his other officials, officials from Ministry of National Development, Ministry of Foreign Affairs, a few other agencies like MPA (Maritime Port Authority), and also our foreign counsel and technical advisers. I think they did an excellent job, pooling their respective expertise together, to put up a strong case for Singapore. In fact, their performance was excellent. If I may say so, this was a very good example of teamwork by "Singapore Inc" as it were. I was there in Hamburg and Minister Mah and I worked with them for many months in the run-up in this case, and it was a very pleasant experience to see how so many officials, sometimes working into the wee hours of the morning, to get an excellent presentation put up, to persuade the judges of the merits of our case.
But as you know, we have just crossed one hurdle, that is, provisional measures phase, and the team has got much more work ahead of it to prepare our arguments, equally cogently and persuasively, for the merits phase, which will be argued before the arbitral tribunal, which will be constituted today. I am confident our team will do an equally good job and we are glad that this team has shown from its expereince in Hamburg it is up to the task before it.
Finally, I should also say that it is fortunate for us in Singapore that we have a very able, distinguished diplomat, negotiator and jurist in the person of Ambassador Tommy Koh who willingly agreed to take on the task of leading this team in addition to his many other hats.
And talking about his many other hats, I should inform you that he is also our Agent and leader of our team for our case with Malaysia on Pedra Branca. But that will come up for hearing in about 2 years' time. He agreed to take on the position several months back, before the reclamation issue came up.
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TRANSCRIPT OF OPENING REMARKS BY SINGAPORE MINISTER FOR NATIONAL DEVELOPMENT MAH BOW TAN TO THE SINGAPORE MEDIA FOLLOWING JUDGEMENT BY THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, SINGAPORE, 9 OCT 2003
First of all, let me spend a few minutes to reiterate what I feel are the key outcomes of the ITLOS hearing. To me, there are two key points that I would like to make. The first key point is that after listening to all the arguments and after considering all the facts that are presented to the Tribunal and both Singapore's and Malaysia's arguments, the ITLOS judges unanimously decided that they would not grant Malaysia's application for Singapore to stop our reclamation works. In other words, Singapore can continue with our reclamation works. To me, this is a very good outcome, a very important outcome for Singapore.
The second key point is that as far as the other decisions and orders made by ITLOS are concerned, they are all in line with what we have been prepared to do all along - the assurances and commitments that we have made. So whether you are talking about joint study, exchange of information and consultation or our works not causing irreparable harm to the marine environment. In all these areas, these are things that we said that we are doing or prepared to do in any case. Let me elaborate on each of these three points. I would like to talk about the implications on our reclamation works.
First of all on the joint study. As you know ITLOS has decided that Singapore and Malaysia would have to work together to set up an independent panel of experts and these experts will conduct a study to determine the effects of Singapore's land reclamation. We welcome this decision. In fact, we look forward to working with Malaysia on this joint study. If you would recall, the idea of joint study is not a new one. It was something that we had indicated that we were prepared to carry out together with Malaysia after the August bilateral meeting.
As part of the scope of this study by independent experts, they have to prepare an interim report. So we are talking about the study which is to be completed within a year but also, the interim report on a specific area that is Area D. So they are required to put up this interim report on the in-filling works at Area D at Pulau Tekong. I should explain a little bit more about Area D. What is the importance of Area D (because a lot of mention has been made about Area D at the ITLOS hearing).
[Referring to the map that was given out to the media.] Area D is this area just south of Pulau Tekong. It is demarcated by this red line and I will explain what this red line is all about. What do we do in this area? Currently, we are using this area as an "Offshore Containment Site". We use this area to deposit the soft soil and marine clay which is being dug up during the course of our reclamation works as well as in the course of other construction works that are taking place in Singapore. By that, I mean the MRT works as well as the Deep Tunnel Sewerage works that are being carried out. When we carry out these excavations or reclamations, a lot of the soft soil and marine clay need to be deposited somewhere and they are deposited in this area, called Area D. Demarcating Area D is this red line. What the red line shows is a sheetpile barrier. We put in steel sheetpiles to demarcate this area and also, to keep the materials we are dumping in this area within the site and in this way, we minimise the pollution of the surrounding waters. So it serves two purposes - one, to demarcate the site and two, it minimises pollution from the dumped materials. Eventually, this area will be filled with sand and the steel sheetpiles will be replaced by a stone wall --what engineers called a revetment wall which is basically a stone retaining wall. It is a sloping wall and it will mark the final profile of the reclamation. This stone revetment wall is scheduled for completion only around 2008. That is our current plan.
What is the significance of Area D? If you would also recall, Malaysia had originally expressed general concerns about all of Singapore's reclamation works at Tuas as well as Pulau Tekong. So they were talking about their concerns regarding not just here but also Tuas. But on the last day of the hearing on the 27th Sept, Malaysia narrowed down its concerns to only Area D and they said " .... if Singapore were to give clear undertakings to the Court that no effort will be made to infill Area D pending the decision of the merits tribunal (that is the next phase) ...... Malaysia's concerns would be significantly reduced".
However, Singapore was not willing to give such an undertaking because one, it would have an impact on our reclamation works and two, it would also have an impact on other construction activities on the mainland as well. As I had explained, we would have to use this place for dumping.
Instead, to address Malaysia's concerns, we said "....Singapore is pleased to inform the Tribunal that regarding Area D, no irreversible action will be taken by Singapore to construct the stone revetment around Area D pending the completion of the joint study, which should be completed within a year."
The Tribunal has asked that the study of these infilling works at Area D should be carried out by the independent experts as soon as possible. What we will do is to explain to the experts what Area D is about, and also all the measures we have put in place to ensure that the impact on the surrounding is minimized. This is what Area D and the study of Area D is all about.
Let me now move on to the next order which is to exchange information as well as to consult. ITLOS also specified that Malaysia and Singapore should consult with each other on the need for temporary measures around Area D. This is to ensure that works at Area D before the joint study is completed will be in line with Singapore's commitments that were noted by ITLOS Minister Jayakumar mentioned just now. What are these two commitments? The first commitment - we will take necessary steps to address adverse effects if there is compelling evidence which shows such effects. The second commitment was that we will not take any irreversible action to construct the stone revetment around Area D pending completion of the joint study. This is what our agent Professor Tommy Koh committed to, on the last day of the hearing. We have given these assurances to Malaysia and ITLOS, and we have every intention to stand by these commitments.
Finally, ITLOS has also directed Singapore "not to conduct its land reclamation in ways that might cause irreparable prejudice to the rights of Malaysia or serious harm to the marine environment, and to take into account the findings of the group of independent experts." You may notice that the Malaysian media has decided to make a big play about this particular order of ITLOS. Let me reiterate. We are in full agreement on this point. We have always tried our best to carry out our reclamation works in such a way as to minimize adverse impacts on the environment. We are confident that the joint study that we are going to conduct by the independent experts will show that our reclamation works have not and will not cause significant harm to the environment. In the meantime, Singapore will continue with our reclamation works and we will continue to exercise the utmost care to ensure minimal impact on the environment.
So to conclude, we are pleased with the ITLOS ruling. It has allowed us to continue with its reclamation works and we intend to do so with care and due diligence, in accordance with our assurances and commitments that we have given to ITLOS.
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TRANSCRIPT OF QUESTION AND ANSWER BY FOREIGN MINISTER PROF S JAYAKUMAR AND NATIONAL DEVELOPMENT MINISTER MAH BOW TAN FOLLOWING THE ITLOS JUDGEMENT, SINGAPORE, 9 OCT 2003.
Q: (question on different interpretation by Malaysian side)
Minister Jayakumar: The two sides may have their different interpretation of the finer points of the judgements. But if you have read today's reports, Minister Syed Hamid as well as Deputy Prime Minister Abdullah Badawi have in their comments acknowledged that ITLOS (International Tribunal for the Law of the Sea) did not direct a suspension of the works. I think that is the most important point.
As regards their point that ITLOS having order a joint study, both parties must cooperate and consult - as far as Singapore is concerned, these were not a problem, never a contentious issue with Singapore. We had in fact been prepared. Our position was - these methods of consultations, procedures, negotiations could have been sorted out without the matter having gone to ITLOS. But the matter having gone to ITLOS, we reiterated these reassurances; the Court noted these reassurances and the Order does no more than reflect the assurances given by Singapore.
As one of the judges- Justice Rao- noted, the order boils down to reflect the stand of the Singapore Government. And I would agree to that characterisation.
Q: (question on whether there would be a problem in the arbitral process since there will be no suspension of reclamation works)
Minister Jayakumar: This is not mentioned in today's newspapers. If you look at what Deputy Prime Minister Badawi said, he said they would have been happier if there had been a decision by the Tribunal for outright suspension. His main point was, he hoped both sides would agree that an independent body of experts would be constituted as soon as possible. We have no problems with that. As I've said, we look forward to working with Malaysia. Many of these calls by the Tribunal for consultation and cooperation was a position we had taken at the tribunal.
Q: (question on impact of this order on arbitral process)
Minister Jayakumar: Had Malaysia not gone to ITLOS for provisional measures, what would have happened in the natural course of events once Malaysia started arbitration proceedings, would have been for the arbitral tribunal to meet, and hear arguments on the substance of Malaysia's claim, contained in their statement of claim, which is their allegation that Singapore has been in breach of various international obligations in carrying out our reclamation activities. So, in short hand, we refer to it as the "merits phase".
What happened at ITLOS was, pending the arbitral tribunal hearing and decision on the merits of Malaysia's claim, Malaysia argued that the situation was so urgent that the tribunal must order provisional measures including the suspension of works until such time that the tribunal has adjudged the matter.
So, when you ask me what is the difference? The difference is that now, no such suspension of works has been ordered - there's only a requirement of consultations, cooperation and observance of principles in our reclamation works. And now we get down to the hearings before the arbitral tribunal. That arbitral tribunal will hear all the arguments, not about provisional measures - unless Malaysia argues again about provisional measures - they will hear the substance of the case. So the legal arguments will be fully argued - the rightness or wrongness of Singapore's reclamation works.
Q: (question on bearing of ITLOS verdict on arbitration arguments)
Minister Jayakumar: There may be some duplication but not entirely of some of the arguments which have been covered in the tribunal, but you must bear in mind that all arguments before the tribunal was as to the need for the tribunal to hand down a suspension of work order.
But the arbitral tribunal goes beyond that. They'll have to discuss the entire range of arguments and objections which Malaysia has made. So that's why we say we have just crossed the first phase, and much work has to be done and our team is fully geared for arguing the case before the arbitral tribunal.
Q: (question on whether there is any clause in the Order which prevents any party from taking unnecessary steps or measures to delay agreement)
Minister Jayakumar: There's no specific provision. I think that as far as the Tribunal is concerned, it expects both parties that appear before it, in good faith, will implement the provisions of the Order. I think the Tribunal also expects there will be no delay or dragging of feet by both parties - that's the only way that international tribunals can operate, expect both parties, in good faith, to comply with the terms of the Order.
Minister Mah: Can I just add also that if you read the Tribunal's orders, there are specific deadlines made to put up certain reports, for example, the report on the in-filling of Area D, it uses "as soon as possible". Although it does not set a specific time, but I think the words "as soon as possible" will have to be taken seriously by both Singapore and Malaysia. And we are ready to exchange information and to consult, to discuss with Malaysia how to set up this independent panel of experts, what are the terms of reference, we are ready to do so anytime.
Q: (question on how much weight the judges give to this decision on Malaysia's demand for provisional measures in the arbitral process)
Minister Jayakumar: It is difficult to say. It must depend on the arguments both sides bring to bear. Of course, if Malaysia goes to the arbitral tribunal and argues again that the arbitral tribunal should award provisional measures, then many of the arguments raised at this ITLOS phase will become relevant.
But then, remember, we really have not got into the details of Malaysia's arguments concerning the merits phase. So, there's a lot to be argued anew, in the arbitral tribunal.
I'd like to make a general point, if I may, about the significance of this case because I believe that the broader significance of this case is that it signifies that both Malaysia and Singapore, when we cannot resolve an issue through negotiations and talks, we are prepared to have the issue resolved through arbitration and international adjudication, in other words, by such amicable means, and that we also agree to abide by the decision of such tribunal or international adjudication. So, I would say that this is a mature approach which signals a commitment to observance of international law. Whether it's on reclamation, Pedra Branca, or water, or other issues which cannot be resolved through negotiations and talks, I think both parties are demonstrating willingness to resolve these outstanding issues without resolving to conflict or tensions, and in a way that does not mar the overall bilateral relations between the two countries. I think I want to make that point.
Q: ( question on unsubstantiated reports about Singapore running out of sand)
Minister Mah: I just want to make the point that as far as the reclamation works are concerned, they are proceeding as scheduled. Malaysia did make the allegation in the hearing that we were accelerating our works. We made it very clear that this was not so. We are not accelerating it. Neither are we "de-celerating" it. We are just carrying on as per normal.
Minister Jayakumar: I think that point is important. Because, in Hamburg, we had to counter the allegation that Singapore was for some reason, suddenly ratcheting up in a mad rush, and we informed the court, as well as gave our assurances, that this was not true. And the court has noted that.
Q: (question on how Singapore can address the Malaysian fear that Singapore's continued reclamation will be a fait accompli before it can prove its case in the arbitral tribunal)
Minister Jayakumar: Well, we have given assurances to ITLOS, which have been taken note of, and we mean our assurances. We have given these assurances on the understanding that we keep these assurances. So if you read the Order of ITLOS, they have taken note of those assurances, and they expect that Singapore will honour those commitments, which is something we have been prepared to do so. And also, the study, which the independent group of experts will do, is to be completed within a year, and the interim study before that. If that study shows that any part of our reclamation works requires any mitigation work, or remediation, we have given the assurance that we will do so.
The whole point is, that, it has to be based on some information or cogent evidence that there is such adverse effect and we have told the Malaysians before ITLOS, and we have told ITLOS, that if there was such evidence presented of such unlawful, adverse effect, then certainly, we will take such remedial action, including, we said, suspension of works.
Minister Mah: I have a few comments to add to what Minister Jaya has said. When people talk about fait accompli, I think it is important to understand - and this is also something that Malaysia has accepted - that they are not against Singapore's reclamation per se i.e. the right of Singapore to reclaim land within our territorial waters. Neither do they say they have a right to veto our reclamation. In fact, in the judgement, this point was made.
What they are saying is, our reclamation should not cause irreparable harm, along the lines that we will not do anything irreparable. So, for example, the stone revetment wall I mentioned just now. Once you put the stone revetment wall, it signifies that the reclamation is complete. But prior to that, all the other works that we are doing, in our opinion, would not cause any significant harm, irreversible to any extent. There is on-going study. When the study (of the experts panel) is conducted, and if it is shown that there is any harm, we will take mitigating measures. None of the things that we have done so far cannot be altered in any way, reshaped or reformed in any way. That is entirely possible. It is an on-going process. You reclaim, and you measure the impacts. You make adjustments as you go along.
A classic example is Chek Jawa. We made plans to reclaim Chek Jawa. We were told, informed of the impact of reclamation on Chek Jawa, and we made the change. So, it is not as if that once you decide to reclaim - from day one - you reclaim it, irrespective of the outcome. That's not the case. It has never been our position.
So when you talk about fait accompli, the reclamation will proceed and it will one day be a fait accompli. What final form that reclamation will take may change as we go ahead.
Q: (question on the composition of the independent panel of experts)
Minister Jayakumar: I guess the Agents of both sides will get in touch with each other pretty soon, to work out the procedures. They got to sit down and work out the terms of reference and work out the way in which both sides can agree on names - both sides have to come up with names - so there's a process by which this can be done. That will give Tommy some time to recover.
Q: ( question on how much depends on environmental impact in merits phase)
Minister Mah: I think it is presumptuous at this stage to try and to answer that question. It really depends on the study.
Minister Jayakumar: Malaysia's statement of claim is a public record. So, if you look at the statement of claim, it is based on a variety of arguments, some related to effects on marine environment, some based on territorial claim that we have intruded into their territory, some based on possibility of impeding navigation and passage. So, it's not just one aspect of marine environment. It's a combination of many arguments. So these have not really been gone into in the ITLOS. These will be argued in the arbitral tribunal.
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