This piece examines the Pedra Branca case in the context of Malaysia’s engagement with the international community in the Wawasan years of the 1990’s and 2000’s. It argues that the Pedra Branca case offers important lessons for those considering Wawasan 2020, a vision which centred the postcolonial state as the vehicle for progressive change and a ‘psychologically liberated’ Malaysia. ^[7] As with the international law which constitutes it, the postcolonial state is simultaneously an instrument of liberation, and of repression. Reliance on a unitary idea of ‘Malaysia’ to effect change, as the postcolonial state demands, will therefore always be an affair rife with contradiction.

Eurocentrism, Sovereignty and Swiss Cheese

Key to the ICJ’s decision in the Pedra Branca case was the conduct of states, and their displays of sovereign authority. In the absence of a formal agreement between states on their territorial boundaries, territorial disputes are decided by reference to evidence of informal agreement. Actions which display that a state regards a given territory as its own are important indicators of such informal agreement. If one state has continuously displayed sovereign authority over an island, and a second state failed to object before later making a claim to it, this will suggest that the second state informally agreed that the island was the first state's territory.

Sovereignty over Pedra Branca was awarded to Singapore on this type of reasoning, with the ICJ finding Malaysia had failed to object to Singaporean displays of sovereign authority. As a preliminary point, lawyers for both states contested whether Pedra Branca historically fell within the territory of the Sultanate of Johor, or if it was terra nullius;(no man’s land). ^[8] This was important because Malaysia’s position would have been strengthened by a finding that the island was part of Johor.

If Pedra Branca was terra nullius, Singapore would simply have had to show that on balance, its displays of sovereign authority over the island trumped Malaysia’s. If Pedra Branca had been part of Johor, Singapore would face the additional hurdle of showing some act of formal “acquiescence” on behalf of the relevant Johor authorities, giving up title to the island. ^[9]

In support of its contention that Pedra Branca had been terra nullius, Singapore raised what it termed ‘the traditional Malay concept of sovereignty’.^[10] Singapore argued that ‘unlike modern European States, the concept of “sovereignty” in traditional Malay polities was based, not on the control of territory, but on the allegiance of inhabitants’.^[11] It was therefore said that Pedra Branca, as an uninhabited island, could not have constituted Johor territory, despite its geographical proximity to Johor. Pedra Branca had no population which could pledge allegiance to the Johor Sultanate.^[12]

The contrast which Singapore sought to draw between territory-oriented models of sovereignty on the one hand, and historical Malay modes of political organisation on the other, was not without basis. For instance, Malaysian international legal scholars Haniff Ahamat and Nizamuddin Alias have argued that prior to their conversion into British protectorates, governmental authority in the Malay states ‘was not delineated by fixed territorial boundaries or centralised bureaucracy’.^[13] They attribute this to the adoption of originally Hindu-Buddhist characterisations of the monarch’s authority as radiating outward from a central point, in combination with topographical restrictions on settlement in the Malay Peninsula.^[14] 

What was less clear were the legal implications of these traditional arrangements. Malaysia argued in response that the ICJ should subsume any traditional Malay concept of sovereignty into the state-centric frame of international law. The argument put forward on Malaysia’s behalf by Australian international lawyer James Crawford was that international law could easily accommodate the way the Johor Sultanate organised itself in relation to Pedra Branca. There was no sharp divide between the territory-oriented model and an allegiance-oriented model, since ‘all sovereign authority depends on some combination of territory… and allegiance’.^[15]

The ICJ was persuaded by Malaysia on this point. It had not been disputed between the parties that the Johor Sultanate was by 1512 a state for the purposes of international law.^[16] The ICJ found that there was sufficient evidence that other sovereign states historically recognised that Pedra Branca fell under the Sultanate’s sovereignty.^[17]  This conclusion was confirmed by the documented travels of the local Orang Laut to the island, a ‘nomadic people of the sea’ over whom the Johor Sultanate ‘exercised sovereign authority’.^[18]  

Although this point was not determinative of the overall outcome of the Pedra Branca case, taking a step back reveals that it would be a mistake to underestimate its significance. Closer examination shows that this aspect of the Pedra Branca case encapsulates some of the key contradictions in the idea of the postcolonial state, and by extension its promotion by Wawasan 2020 as the vehicle for Malaysian psychological liberation.

‘Our opponents are guilty of an unfortunate failure to distinguish between Swiss gruyère ⎯ which has no holes ⎯ and French emmental, which does’^[19]

Postcolonial states would hence be well advised to equip themselves to deal with the niceties of European cheese. Pellet went on to make the ‘even more serious’ point that Malaysia’s substantive arguments demonstrated a ‘Eurocentrism which is out of place’.^[20]  In Pellet’s view,^[21] it was Eurocentric for Malaysia to suppose that the Johor Sultanate had asserted sovereignty over Pedra Branca in the manner of a European state, the latter being far more concerned with its precise territorial boundaries than the former. On behalf of Malaysia, Crawford responded that international law treated the Johor Sultanate and European states equally — international law was ‘neither west nor east’, ‘not white or black’.^[22] While the Johor Sultanate may have operated differently to European states, its conduct in relation to Pedra Branca was still an assertion of sovereignty all the same.

In Singapore’s case, consider its invocation of the terra nullius concept. The problematic nature of the concept has been much discussed elsewhere. It suffices to note that the idea of a ‘no man’s land’ was often applied to land which had long been inhabited, only with populations who did not meet the racialised standard of ‘civilisation’ applied by colonising powers.^[23] The choice to deem indigenous populations as insufficiently organised to obtain legal status was a central justification behind colonialism.^[24] A contradiction is thus apparent when the concept is used by a postcolonial state in an effort to shore up its sovereignty.

As for Malaysia’s arguments, they relied heavily on the ICJ’s previous decision in the Western Sahara case. There, the ICJ famously declared that during the formal colonial period, ‘territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius’.^[25] In doing so, the ICJ attempted to draw a line under debates over whether indigenous populations strictly speaking had title to territory, answering this question in the affirmative. This formed the basis for Malaysia’s arguments that the Johor Sultanate’s conduct in relation to Pedra Branca could found title to territory and sovereignty over the island.

In one sense, the Western Sahara pronouncement was a ‘heroic’ move by the ICJ,^[26] which ‘aimed at enhancing, even retrospectively, the role and importance of indigenous peoples’.^[27] In another however, the pronouncement whitewashed international law’s past and present complicity in colonialism.^[28] As explained by Antony Anghie, a leading figure in the Third World Approaches to International Law movement, colonialism has ‘profoundly shaped the very foundations of international law, including the ostensibly neutral doctrine of sovereignty’ itself.^[29] By relying on the Western Sahara case, Malaysia was therefore placed in a contradictory position, levying a charge of Eurocentrism at Singapore, while simultaneously engaging in it.

None of this is to suggest that it would have been straightforward for the international lawyers on either side in the Pedra Branca case to have made their arguments differently.^[30] After all, what might be appropriate in a critical analysis might not be appropriate for a courtroom setting — the ‘final arbiter of what works is nothing other than the context… in which one argues’.^[31] Nor does this piece contend that Malaysia should not have submitted the Pedra Branca dispute to the ICJ. The case remains an illustration of international adjudication’s contribution to the peaceful settlement of inter-state disputes.

Wawasan 2020: The Individual Postcolonial State at Centre Stage

One cannot say for certain that Malaysia’s decision to take the Pedra Branca dispute to the ICJ was directly influenced by the introduction of Wawasan 2020 three years prior. Nevertheless, what is true is that the Pedra Branca case was the culmination of a period of engagement with international law and its institutions by Malaysia during the Wawasan years. The Wawasan years also saw Malaysia accede to the Convention on the Rights of the Child, and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).^[32] Furthermore, by the time the Pedra Branca case had been decided, Malaysia had already been directly involved twice in proceedings before the ICJ.^[33]

The connection between this international legal engagement and Wawasan 2020 is more than just temporal. The ideas behind Wawasan 2020 are bound up with global politics, and by extension the international law which undergirds it. Although Wawasan 2020’s vision of Malaysia attaining ‘developed’ nation status by 2020 seemingly had a domestic focus, this domestic economic goal also served a foreign policy purpose. The pursuit of developed nation status was partly a riposte to what Mahathir saw as Western attempts to confine states like Malaysia to the category of ‘Newly Industrialised Countries’.^[34]

The connections between Wawasan 2020 and international law are even clearer when considered against Malaysia’s evolving positioning as a Third World state. Like other Third World leaders of the time, Mahathir had been a proponent of the New International Economic Order (NIEO). The NIEO was ‘launched in the early 1970s with the hope of restructuring the world economy through legal means’.^[35] Through the NIEO and other allied initiatives, Third World states actively contested the prevailing economic and legal status quo. This was a ‘battle for international law’, which spanned fields ranging from the rules protecting investments from First World capital-exporting states, to the law of armed conflict.^[36]

It became evident however in the years leading up to Wawasan 2020’s inception that the NIEO would not succeed. Indeed, international legal scholar and historian Umut Özsu regards the NIEO as having been ‘effectively defunct with the consolidation of neoliberalism in the early 1980s’.^[37] The NIEO was unable to resist ‘an increasingly assertive mode of neoliberal capitalism that prioritized private property, freedom of contract, anti-union “fiscal discipline,” state retreat from social services, and across-the-board liberalization of trade in goods and services’.^[38]

‘[The problem is we] are not negotiating with the North from a position of strength, not even as equals… The question is whether we are able to consolidate ourselves, and draw some strength from each other… I believe that every country, however small, is able to do something like this.’^[39]

Wawasan 2020 seemed then to consolidate in Malaysia a shift in strategy which was also visible across the Third World. In broad terms, this was a shift from the pursuit of transformative change to one more concerned with navigating the international order as it stood. Economically, Wawasan 2020 cannot be separated from the neoliberalism which defeated the NIEO — it is no coincidence that Wawasan 2020 coincided with the introduction of a Privatisation Master Plan by the Mahathir government in 1991.^[40] 

As for international relations, this strategic shift placed Malaysia as an individual postcolonial state at centre stage. The postcolonial state had of course also played a foundational role in the Third World’s pursuit of an NIEO, with statehood used as a means to secure economic sovereignty. But this was balanced with a focus on international solidarity, framed as ‘collective self-reliance’.^[41] The strategic shift marked by Wawasan 2020 meant that while multilateral cooperation remained important, it would be for each postcolonial state to carve a niche for itself and its people in the final analysis.

This background helps explain Malaysia’s active engagement with international law during the Wawasan years. Malaysia acquired and demonstrated fluency in international law, not to seek radical change on a global scale as the NIEO had, but in order to equip itself with a ‘sword and shield’^[42] to defend a certain conception of the national interest. The aforementioned dynamics at work in the Pedra Branca case were mirrored in the Malaysian engagement with international law which preceded it. The Malaysian state's conduct, given effect by international law, was again characteristic of the contradictions of postcolonial statehood.

No doubt, Wawasan 2020 did usher in the pursuit of some genuinely progressive initiatives. Through an energised Malaysian state, Mahathir acted as a ‘strident voice for the Third World’, challenging the inequities of the global trading system and the international economic law which underpinned it.^[43] Malaysia’s accession to CEDAW in 1995 provided a basis for regular monitoring of women’s rights in the country through the UN. It also gave Malaysian civil society an additional legal language through which to frame claims for much needed reform. And regionally, Malaysia made a significant contribution in the Wawasan years to the development of a more robust legal framework for the Association of South East Asian Nations (ASEAN), leading up to the adoption of the ASEAN Charter in 2008.^[44]

The seeds for these initiatives were planted in the text of Wawasan 2020’s vision of a ‘fully moral and ethical society’, and a Malaysia ‘respected by the peoples of other nations’.^[45] But as the Pedra Branca case showed, contradiction is never far away when considering the lives of postcolonial states. For all of its genuine potential, Malaysia’s use of international law for these progressive aims came in tandem with deeply problematic consequences. 

The same sovereignty which enabled Mahathir’s economic ripostes against the West was also exercised in Malaysia’s continuing decision not to ratify the International Covenant on Economic, Social and Cultural Rights, a treaty which could contribute to a more just distribution of wealth within Malaysian society.^[46] Malaysia’s accession to CEDAW came with the state’s extensive use of reservations, a mechanism permitting states to opt out of certain treaty obligations. One such reservation still deprives Malaysian women of equivalent rights to Malaysian men to pass their citizenship to their children should they marry foreign spouses, forcing affected women to pursue justice before the domestic courts.^[47] class="c0"> Finally in relation to ASEAN, while the ASEAN Charter has admirably protected ASEAN states’ sovereign prerogatives, this has come at the grave expense those in Myanmar now resisting a new period of military rule.^[48]

Conclusion

This piece has sought to examine Wawasan 2020 through the lens of international law. It has attempted a cursory re-appraisal of the Pedra Branca case to argue that the life of the postcolonial state is rife with contradiction. International law and its doctrine of sovereignty allowed Malaysia in the Wawasan years to assert itself against hegemony, and to pursue genuinely progressive aims. International law also meant however that Malaysia could not escape the colonial dynamics which shape the international order. These dynamics had, and still have, a real influence on the cards postcolonial states like Malaysia may play — often at the expense of the people of these postcolonial states.

While the vehicle of the postcolonial state remains essential in navigating the status quo, it is hoped then that this piece’s discussion of contradiction encourages thinking beyond the state. Strategic compromise and all its contradictions may be necessary, but this should not stop the people of the Third World imagining ‘alternative futures’.^[49] As lofty as they seemed, Wawasan 2020’s aims must not be the limit of our horizons.