Transcript of Press Conference by Foreign Minister Prof S Jayakumar and National Development Minister Mah Bow Tan following the ITLOS judgement
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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