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The Murky Waters of Treaty Law: the 1962 Malaysia-Singapore Water Agreement Joel Sherard Chow, King’s College London Introduction Treaties are agreements between States governed by international law.1 These are typically concluded and negotiated by organs of the State. However, it has become increasingly common for entities such as statutory boards or municipal governments to conclude international agreements, or “arrangements administratifs”. One such agreement is the 1962 Johor River Water Agreement (“1962 Agreement”). It was concluded between the State of Johor in southern Malaysia and the City Council of the State of Singapore concluded an agreement to allow Singapore to draw 250 million gallons of raw water per day,2 providing half of Singapore’s national water supply.3 However, the price of water sold under the agreements has been a thorn in bilateral relations between both states.4 The status of the 1962 Agreement is an important preliminary question that affects its interpretation. This article will, thus, explore the legal implications of the 1962 Water Agreement on the long-standing dispute between Singapore and Malaysia. Arrangements Administrafs Arrangements administratifs are inter-State interdepartmental agreements, typically relating
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1 Art 2(1)(a), Vienna Convention on the Law of Treaties (“VCLT”) (1969) 1155 UNTS 331 2 Johor River Water Agreement (1962) 3 Singapore-Malaysia Water Agreemnts (National Library Board, Singapore 2011) http://eresources.nlb.gov.sg/ infopedia/articles/SIP_1533_2009-06-23.html (last accessed 23 Jun 2019) 4 T. Sukumaran, “Singapore-Malaysia relations threaten to boil over as Mahathir makes splash about water prices” (4 Mar 2019, SCMP Online) https://www.scmp.com/week-asia/ geopolitics/article/2188586/singapore-malaysia-relationsthreaten-boil-over-mahathir-makes (last accessed 23 Jun 2019), R. Sim, “Singapore ‘clear, consistent’ in position that Malaysia has lost right to review water price under 1962 agreement” (13 Mar 2019, Straits Times).
to technical matters falling within the sphere of the department concerned.5 These may include financial agreements, water agreements or postal agreements to be negotiated and discussed by the department officials.6 They are becoming increasingly common given the bureaucratic red tape and lengthy negotiating periods often associated with treaties. However, as these agreements fall beyond the scope of official diplomatic channels, the question of whether international law applies is important. Under English law, the position is that not all inter-department arrangements will result in a binding treaty obligation. The Judicial Committee of the Privy Council in The Blonde and other Ships observed that:7 “although no doubt consensus ad idem is fundamentally necessary to an international agreement as it would be to a private offer and acceptance under municipal law it does not follow that in the intercourse of sovereign States every interchange of messages, some formal and some informal, should be deemed to have resulted in a new and binding agreement as soon as the parties have reached the stage of affirming identical propositions.” The key test is thus whether the department (objectively) has the administrative competence to bind the State and whether the agreement satisfies the requirements of a treaty under international law.8 On the present facts, 5 JM Jones, Full Power and Ratification (CUP, 1946), p.54. 6 See for instance, Anglo-French Postal Treaty (1856), Relatif à l’importation de grains dee vers à soie en Bulgarie (1906); B. Sen, A Diplomat’s Handbook of International Law and Practice (Springer, 2012), pp. 463-464. 7 The Blonde and other Ships [1922] 1 AC 313 at 322 8 JM Jones, Full Power and Ratification (CUP, 1946), p.61.