GEOGRAPHY IS PERMANENT

Although historical research obviously played a huge part in constructing the legal case the significance of geography should not be forgotten. Nearly a decade ago I wrote the following (now published by SymbiosisOnline) in relation to the geopolitical and geoeconomic turbulence being faced by Southeast Asia in the face of the uncertainties of rapid globalisation:

Scholars in the Asiatic archipelago should recognise that geography is permanent and it is destiny. They should return to the drawing boards and examine resources and manpower, capital and technology, communication and routes and commodities and markets. Except for resources that are permanent, the rest are permanently in a dynamic state of movement in space and time.

What this attempts to capture is the dynamic interplay between those elements of geography that more or less constrain political and economic relations because they are fixed and the fluidity of human interaction that constantly makes and remakes history. In this regard, then, geographical space is always fixed. However, it seems that the Judgment of the Court in effect alters the historical space in the Straits of Singapore. This is a story that needs to be researched, investigated and told.

In the case of the Malay archipelago and the surrounding seas, early cartographers represented that space through maps and charts. From fairly rudimentary beginning, knowledge about this geographical space improved with science and technology over the centuries.

It may seem obvious but it is worth repeating here. The Straits of Singapore are a permanent geographical feature - they link the Straits of Malacca to the South China Sea. Pulau Batu Puteh (Pedra Branca) sits at the mouth of the Straits of Singapore. It is 7.7 nautical miles from the nearest coastline of Johore; it is 7.6 nautical miles from the nearest coastline of Bintang Island. Save for a major incidence of soil erosion or the movement of tectonic plates there is nothing that can change these realities. Even the photographs produced by Malaysia before the Court during the oral pleadings which foregrounded the island do not change the facts on the ground in terms of geographical distance. There was no compelling reason for the Singaporean team to indulge in amateur dramatics over the provenance of the photographs. Let it be stated clearly once and for all: the fact remain unchanged.

The central issues that concerned Singapore in the presentation of its case were that the Johor sultanate in the late eighteenth and nineteenth centuries was in a state of terminal decline. In their words, the sultanate was "falling apart and breaking up". As a result, Singapore asserted that by the mid-nineteenth century of Temenggong of Johor has "no authority on and in the vicinity of Pedra Branca". Further, Singapore claimed that the nature of Johor's sovereignty was never territorial in nature - rather it asserted whatever authority it had by control over people. Finally, Singapore reckoned that during this period of terminal decline the whole of the Straits of Singapore were, in any case, infested with piracy which the sultanate could not control.

All of this flies in the face of the historical and geographical evidence. Here I want to make use of three maps that, together with the historical texts of which they are a part, demonstrate the undeniable fact that geography is permanent.

First, and perhaps the single most convincing source in this regard comes from the famous account of Captain Alexander Hamilton, an officer in the service of the East India Company (see his A New Account of the East Indies, 1727) who travelled extensively in the region during the period from 1688 to 1723. In addition to his description of the "palace upheavals" besetting the sultanate during his visits, Hamilton mapped out - in words and charts - the extent of the authority of the Johor sultanate in relation to other polities in the archipelago (the "liquid world"). Most significantly, Hamilton drew "A Map of the Dominions of Johore and of the Island of Sumatra with the Adjacent Islands". Here is Hamilton's verbatim description of the political geography of the area of the Straits of Singapore:

Upon the East Side of the great Carimon, is the Entrance of the Streights of Drions; and between the small Carimon and Tanjong-bellong on the Continent, is the Entrance of the Streights of Sincapure before mentioned, and also into the Streights of Governadore, the largest and easiest Passage in the China Seas. There are many Islands lying thick hereabout, all under the Dominions of Johore" (pp. 123-24, emphasis added).

On Hamilton's map, the only one of the "islands lying thick hereabout" that he names in the Straits of Governadore (he actually means the present-day Straits of Singapore) is Pedra Branca, an uninhabited island rock, north of the main straits. He clearly states that the island is "under the Dominions of Johore". In the Straits there are also other known rocks which were uninhabited: Tree Island, Coney Island and Buffalo Rock. These were, by Hamilton’s account, also part of the Johor sultanate’s dominions.

Second, we turn to the famous Anglo-Dutch Treaty of 17 March 1824. As is well know, the rationale for the treaty was to solve many of the issues that had arisen due to the British occupation of Dutch properties during the Napoleonic Wars, as well as issues regarding the rights to trade in the Malay archipelago between the two nations.

The famous Article XII of the treaty effectively divided this part of the archipelago into spheres of British and Dutch influence:

His Netherland Majesty withdraws the objections which have been made to the occupation of the Island of Singapore, by the Subjects of His Britannick Majesty.

His Britannick Majesty, however, engages, that no British Establishment shall be made on the Carimon Isles , or on the Island of Bantam, Bintang, Lingin, or on any of the other Islands South of the Straits of Singapore, nor any Treaty concluded by British Authority with the Chiefs of those Islands

In the British sphere of influence the Sultan and Temenggong of Johor had authority and control over its existing territories while the Dutch recognised the authority of Sultan of Riau-Lingga in their sphere. The delimiting line was known and understood by all parties though there was no map attached to the treaty.

Shortly after, the new Resident of the Settlement of Singapore, John Crawfurd, was instructed to rectify all existing constitutional deficiencies by securing the cession of the island of Singapore. The subsequent Treaty of Friendship and Alliance between the East India Company and the Sultan and Tumungong (sic) of Johor (known as the “Crawfurd treaty”) was signed on 2 August 1824. Under its terms in Article II, Johor agreed to:

cede in full sovereignty and property to the Honourable the English East India Company, their heirs and successors for ever, the Island of Singapore, situated in the Straits of Malacca, together with the adjacent seas, straits, and islets, to the extent of ten geographical miles, from the coast of the said main Island of Singapore.

In order to clarify any outstanding issues, the Government of India issued a request to Crawfurd, as the Resident, on 13 October 1825 stating that “His Lordship in Council being desirous to possess a Map or Chart of Singapore with the above possessions annexed to it, you are requested to cause a document of that description to be constructed and transmitted to this Presidency". This was duly undertaken by Assistant Engineer Lieutenant Jackson.

The final map is entitled “Sketch of the British Settlement of Singapore According to the treaty of the 2nd August 1824” (located in the National Archives of India, New Delhi). The map contains an annotation which states: “… the red dotted line denotes the limits of the treaty”. The line drawn on the map is entirely consistent with the wording of the Crawfurd Treaty.

Singapore remains in denial about the significance of this set of evidence. In their account in The Road to the World Court, Koh and Jayakumar curtly dismiss the evidence with the words the “so-called 1824 map” (p.105). The Treaty is real; the instruction from the Government of India is real; and the map is real. It is Singapore that is dealing with an imagined history that requires denials and misleading verbal tics.

In 1825 Crawfurd went to take possession of the islands within the treaty’s limits to the north and south of the Straits. The furthest island south of the main island of Singapore and north of the Straits was Coney island. Crawfurd reported that its location did not violate the provisions of either the Anglo-Dutch Treaty or the Crawfurd Treaty. Significantly, Buffalo Rock was not included as part of the arrangements even though it was within the 10-mile limit since it was south of the Straits and therefore came under the authority of Riau-Lingga.

We can turn now to the third map. In 1842 the King of the Netherlands ordered a map series of the Dutch East Indies (Algemeene Kaart van Nederlandsche Oostindie, 8 sheets, 35 miles to an inch) that was produced by G.F. von Derfelden van Hinderstein. The map collection is located as part of the official Foreign Office Library map collection held at the National Archive at Kew, UK (FO925/2669). The collection was presented officially by the Netherlands government to the British government.

On Map No. 1 of the series, the Dutch drew the boundaries of the Riau residency in the Straits of Singapore in which Buffalo Rock and Tree Island are shown to be located as part of Riau residency while Coney Island clearly belongs to the Settlement of Singapore. Significantly, Pedra Branca is named and shown to be north of the main channel, beyond the limits of Crawfurd Treaty and thus remained with Johor.

While the official cartographical evidence is clear, it remains for a researcher in the future to investigate the accompanying instructions and correspondence in the Dutch and British archives to establish beyond all reasonable doubt the consistency with which the various parties respected their treaty obligations.

In addition to the evidence so obviously contained in the treaties, the maps and supporting correspondence, there is an additional public document which lends further weight to the importance of geographical boundaries. On 25 May 1843 the editor of the Singapore Free Press, William Napier – who was also Singapore’s first law agent – wrote an article examining the issue of piracy. In it he writes:

The places and Islands near which these piracies are most frequently committed and where the pirates go for shelter and concealment, such as Pulo Tinghie, Batu Puteh, Point Romania &c, are all within the territories of our well beloved ally and pensionary, the Sultan of Johore, or rather of the Tomungong of Johore, for he is the real Sovereign.

One would think that this is a very clear statement of how leading public figures in Singapore understood the territorial delimitations deriving from the earlier treaties. However, Singapore dismissed this evidence in the pleadings as having no probative value and on the basis that it could not be corroborated.

Fortunately, we now know that the Court took the evidence seriously. The writer of the article, Napier, was someone with a high public profile as chief editor and law agent. More significantly, the substance of his piece was actually summarising incidents of piracy that had taken place in the previous months and published in the Singapore Free Press. In one particular instance, Batu Puteh is identified as being part of “Johore Territories”. The events described in the Singapore Free Press are directly corroborated by Singapore’s own court and police records (these are contained in the East India Company’s Board of Directors records in the British Library, F/4/2106/98601 series).

Something important therefore emerges from this examination of cartographical and other supporting documents that demonstrate the central importance of geography in defining facts on the ground. Both in its pleadings at the Court and in Koh and Jayakumar’s subsequent account, Singapore has been quick to attack weaknesses in Malaysia’s case. This is not unexpected. It is part of the cut-and-thrust of the adversarial style of advocacy. However, Singapore’s own deliberate dismissal of compelling evidence is not very edifying.

In the event, most of the historical and geographical evidence advanced by Malaysia for the period of the nineteenth century was accepted by the Court. This evidence was, on the whole, both coherent and consistent. The Straits of Singapore - and the islands within it - were not terra nullius. They came under the sovereignty of two identifiable polities: north of the Straits it was the Sultanate of Johor and south of the Straits it was the Sultanate of Riau-Lingga. The understanding of the Court in relation to the cession of Singapore by the Johor Sultanate and its surrounding waters to the British is contained in Para. 116 of the Judgment:

116 ....Were the Court to accept Singapore's argument (see paragraph 109 above) there would have been no legal basis on which Sultan Hussein and the Temenggong of Johor could have ceded the island of Singapore to the East India Company in 1824.

117 In the light of the foregoing, the Court concludes that Malaysia has established to the satisfaction of the Court that as of the time when the British started their preparations for the construction of the lighthouse on Pedra Branca/Pulau Batu Puteh in 1844, this island was under the sovereignty of the Sultan of Johor.

Unfortunately, judging by the account in Koh and Jayakumar's book, Singapore still remains in a state of self-denial.