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Oral argument by Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, Chairman of the United Nations International Law Commission, Emeritus Chichele Professor of Public International Law, 19 November 2007

19 Nov 2007

Mr. BROWNLIE: Thank you, Mr. President.

THE ACQUISITION OF TITLE TO PEDRA BRANCA IN 1847-1851

The general approach of Malaysia

1. Mr. President, Members of the Court, this Great Hall of Justice is a pleasant environment for an advocate in several respects. And, in particular, it provides the pleasure of listening to the practised eloquence of old friends on the other side of the Bar. But, Mr. President, the pleading of my friends on the other side has, I have to say, been disappointing, because the eloquence has not been matched by the substance of the arguments.

2. The general approach of Malaysia has been characterized by a series of flaws.

3. In the first place, there was a marked tendency to produce discontinuities in the sequence of the pleadings. These discontinuities appeared in two forms. The first was the settled habit of Sir Elihu Lauterpacht to refer to the Memorial of Singapore, but not, in his response to my first round speech, to either the Counter-Memorial or the Reply.

4. And it will be obvious, given the simultaneous exchange of written pleadings, that it is a serious matter if the relevant part of the Reply is ignored. The fact is that many of the matters raised by counsel for Malaysia are examined in detail in Singapore's Reply at pages 35 to 94.

5. The tendency to ignore the content of the Reply is matched by the tendency of Malaysia to avoid a response to the first round presentation on behalf of Singapore. In relation to our presentation on acquisition of title, Sir Elihu maintained silence on the following topics: first, the question of the applicable law; second, the misleading use by Malaysia of the fifth edition of Oppenheim's International Law; third, Malaysia's patent disregard for the sources of applicable inter-temporal law; and last, the nature of acts à titre de souverain.

6. A second major flaw is the sudden reassessment of key matters of fact. Thus, in his presentation on Thursday, Sir Elihu was prepared to recognize the significant status of Thomson as the author of what Sir Elihu describes as "the fullest narrative of what happened in these critical years" (CR 2007/26, p. 17, para. 27). This is in contrast to the treatment of Thomson in the written pleadings of Malaysia, in which he is described as though he were some kind of private interloper. I refer here to the Counter-Memorial of Malaysia, paragraphs 105 to 106.

7. A third major flaw is the repetition of the distortions of legal logic to be found in the written pleadings of Malaysia.

8. The first such distortion concerns the nature of activity à titre de souverain. Counsel for Malaysia insist that the building of a lighthouse, even if the project is organized and funded by a government, does not constitute evidence of an intention to acquire title to the territory. I refer here to the argument of Sir Elihu Lauterpacht on Thursday (CR 2007/26, p. 21, paras. 42-44.)

9. Sir Elihu refers to the public works involved in building the lighthouse and then he says:
"43. These are, of course, and obviously so, the steps that needed to be taken to proceed with the construction of the light. With the possible exception of the first two, they describe exactly what would have had to be done if it had been possible in those days to hire a private contracting firm to plan and undertake the whole work. However, the fact that they were done by the Government does not mean that individually or in total they manifested an intention to claim the underlying territory."

And Sir Elihu continues:

"44. What Singapore does is to turn these items into a single process of evolution seemingly evincing a government intent to acquire title to the territory. But the conclusion thus drawn is an extensive ⎯ indeed, imaginative ⎯ extrapolation from a series of facts that taken at face value amount to a description of exactly what had to be done to build the lighthouse. Malaysia does not deny that Britain built the light. But Malaysia cannot find anything in this process which reflects a co-existing intention ⎯ a silent intention ⎯ on the part of Britain to assert title to the territory." (CR 2007/26, p. 21, paras.43-44.)

10. Mr. President, this provides a very appropriate example of the legal logic by which Malaysia seeks to distract the Court from the overall picture of law and fact. And it is a logic which lacks any legal foundation. If I can elaborate.

11. In the first place, of course it would not make any difference if the work was done by a private contracting firm. In fact, the work was carried out by a private contractor. The point is that the private or public character of the contractor is irrelevant providing the construction was undertaken on the instructions of the British Crown. As Sir Elihu says: "Malaysia does not deny that Britain built the light."

12. In the second place, there is no evidence that the British interest consisted of an intention to create an asset which only represented private property. To the contrary, there is documentary evidence to the effect that the British authorities were very conscious of the significance of the attribution of sovereignty as between the Powers in the region. And I refer to my speech in the first round (CR 2007/21, pp. 35-36, paras. 7-11).

13. The general context was that of co-existing political entities. There was a natural relation between the exclusive use of territory and the existence of sovereignty over that territory. It is thus appropriate that the General Secretary, Dutch East Indies, should refer, in 1850, to "the construction of a lighthouse on British territory". Moreover, no private law instrument, such as an indenture, was involved.

14. In the third place, the analysis of counsel for Malaysia without legal justification divorces the question of intention from the process of taking possession. This is a part of the tendency of our distinguished opponents to fragment the evidence of title. The construction of the lighthouse involved the implementation of the intention of the British Crown as expressed in numerous official documents.

15. The issue of proof is approached by Malaysia on the basis that the applicable law requires the making of a formal act of annexation. This is an assertion and no more. It is not the case that proof of sovereignty cannot be based upon other forms of evidence.

The taking of lawful possession

16. Mr. President, Members of the Court, I would invite the Court to put itself in the place of the British authorities. The decision is made to build a lighthouse upon an island, which does not form part of Johor, and the necessary operations involve the use of the island as a whole and the exclusive use of the island. Any government completing such an enterprise would seek one of two forms of political and legal security. The choice would be between making an arrangement with the relevant territorial sovereign, if such existed, or assuming sovereignty on the basis of a peaceful process of taking of possession.

17. There is clear evidence to the effect that the British Government made the second choice. On the facts, the first choice was simply not applicable. Once the decision had been made not to build on Peak Rock, the choice of Pedra Branca did not involve the territories of the Sultan of Johor. And it is absolutely clear that Pedra Branca was not to be confused with Peak Rock: I refer to the letter from Governor Butterworth to Currie, dated 28 November 1844, Singapore Memorial, Annex 13.

18. In addition, the position of Malaysia on the issue of acquisition of title avoids the basic elements of causation in this case. The fact is that, without a decision of the British Crown to fund the construction of a lighthouse on Pedra Branca, no lighthouse would have come into existence. Thus, first, it was the Government which decided on the final site of the lighthouse; second, it was the Government which provided the funding; third, it was the Government which decided the modalities of the funding; and last, it was the Government which took the final decision to build.

19. When the Court of Directors of the East India Company decided on Pedra Branca as the site of the project in February 1847, the issue of public funding assumed prominence. When the Court of Directors approved the scheme in September 1849, the decision was on the basis that a levy would be made on shipping as soon as the lighthouse was completed. As the Court will readily appreciate, such a method of funding would be the result of government action.

20. The key documents are as follows. First, the letter from the Court of Directors of the East India Company to the Governor General of India in Council dated 5 September 1849, which is at tab 22 of the judges' folder. This letter reads as follows:

"Our Governor General of India in Council.

Para: 1. Your letter No. 3 dated 3rd March last on the subject of the proposed Horsburgh Light House, informs us that the cost of that Building which originally was not expected to exceed 7,000 Dollars, or rupees. 15,750 is now estimated at rupees. 29,417 exclusive of the cost of a lantern, which together with other expenses, will raise the total amount to rupees 50,917 and this does not include the conveyance of the workmen and materials for which it is proposed that the Government shall be responsible. It is evident that even this increased estimate which is subject to several contingencies is very likely to be considerably exceeded in a work of such difficult construction.

[And the letter continues]

2. The increased charge has been occasioned by the selection (made after communication with the Lords of the Admiralty) of the Island of Pedra Branca instead of Peak Rock, as the site of the Light House, the former being not only much more distant from Singapore and much less accessible, but being also so much more exposed to the influence of the waves during the North East Monsoon, as to render it absolutely necessary that the Structure should be 'entirely faced with granite set in Cement', with a back work of Masonry instead of being composed of brick and Chunam Materials which would have sufficed on Peak Rock which is situated on the Northern Shore of the Straits.

3. The subscriptions hitherto received for the Light House amount to rupees 22,194 leaving a deficit of rupees 28,723, which you propose should be advanced by Government, and to ensure repayment of this loan, you further propose that the duty authorized by us to be levied on Vessels touching at Singapore or clearing out from Indian Ports to China or the Eastward of Singapore should be raised from one rupee to two dollars or 4½ rupees per 100 tons.

[And the letter is completed with the paragraph]

4. As the smaller rate would be quite inadequate to meet the expenses of a Light House on Pedra Branca and as there seems no more unobjectionable mode of providing for its construction and maintenance than the imposition of a suitable tonnage duty on Shipping, we authorize you to levy a duty as soon as a light is exhibited on that Station: but as we have no doubt that the expense will exceed the amount you have estimated we direct that a Tonnage duty of 2½ Dollars per 100 Tons be levied on the Shipping above described." (MM, Vol. 3, Ann. 31)

21. And the second key document is the letter from the Under-Secretary to the Government of India to Seton Karr, Under-Secretary to the Government of Bengal dated 27 October 1849. This is at tab 23 of the judges' folder, and I quote:

"With reference to the correspondence noted in the margin, I am directed by the President in Council to transmit the accompanying copy of a Despatch from the Hon'ble the Court of Directors, No 3, dated 5th September 1849, relative to the construction of a Light House on Pedra Branca, and to request that authority may be given to the Governor of Singapore for the immediate commencement of the building.

2. It will be observed that a duty of 2½ dollars per 100 tons is to be levied on the shipping as soon as the Light House is completed. A Law will be necessary for the purpose and Colonel Butterworth should be directed to take an early opportunity of submitting the draft of an Act containing such provisions as may be deemed requisite." (MS, Vol. 3, Ann. 32.)

22. Thus the question of funding by the Government formed the critical stage of the decision-making process which led to the decision to build the lighthouse. Moreover, in the correspondence in the period 1842 to 1845 it had always been assumed that the lighthouse envisaged would be financed by the Government of India.

23. These documents, and the documentary record as a whole, provide the necessary corrections to the misleading picture presented by Professor Kohen in his presentation on Wednesday (CR 2007/25, paras. 3-11).

24. In his evaluation the planting of the brick pillars on Pedra Branca was of little importance. But, Mr. President, it was a significant development which demonstrated the intention of the Government to build a lighthouse on Pedra Branca. Because, at this stage, the only issue still to be determined was the nature of the materials to be used for the construction of the lighthouse on Pedra Branca. The decision to use granite, as opposed to brick, had major financial implications. It was only when the nature of the materials had been determined that the funding could be assessed. The decision to build was then possible. And so, Mr. President, Members of the Court, the placing of the brick pillars, in order to determine which materials would resist the force of the monsoon, was central to the process of decision making by the Government of India.

25. Moreover, the entire process had the necessary implication that the Government of India envisaged the use of the island as a whole, and that such use would be exclusive. Moreover, it was clear that no other political authority was involved in the process of decision making.

26. Mr. President, in the circumstances, the suggestion that a formal annexation was required, or that possession was not obtained, is the product of wishful thinking.

27. During the lengthy process of decision making relating to Pedra Branca, there is no single reference to the need for the agreement of the Sultan of Johor or of his co-operation in any form. No third State expressed any protest or reservation in face of the public activity of the British authorities on the island. The only reaction of the other powers in the region was in fact acquiescence. The Dutch authorities expressed no opposition because, as the relevant Dutch document expressly indicated, the lighthouse was being constructed on British territory.

I now move to the Malaysian propositions denying the title of Singapore.

Malaysian propositions denying title

First proposition: that aids to navigation do not constitute evidence of sovereignty

28. The first proposition is that aids to navigation do not constitute evidence of sovereignty. Counsel for Malaysia strenuously maintain that aids to navigation do not constitute evidence of the acquisition of sovereignty. On Tuesday, Sir Elihu Lauterpacht insisted that:

"The accumulation of case law and practice is completely at odds with Singapore's proposition that the construction and maintenance of the Horsburgh lighthouse somehow in and of itself constituted a 'taking of lawful possession' of Pulau Batu Puteh for the purpose of acquiring sovereignty. The jurisprudence is clear [he says]. Conduct in the administration of a lighthouse does not, without more, evidence sovereignty."

29. Mr. President, Members of the Court, this is not Singapore's case. It is, with respect, entirely misleading to propose that Singapore has offered the lighthouse as a form of effectivité in respect of the taking of possession in the period 1847 to 1851. The position of Singapore is that the process of decision making and operations in relation to the construction constitute incontrovertible evidence of the taking of lawful possession. It is unacceptable to seek to divide this network of evidence into artificial fragments.

30. Moreover, Sir Elihu himself is careful to qualify his assertions by stating that the operation of lighthouses and navigational aids is "not normally taken as a test of sovereignty" (CR 2007/24, para. 55).

31. The correct legal position is surely that the standard of proof of title is that of the intention to acquire sovereignty and, in his presentation on Thursday, Sir Elihu actually adopted that position (CR 2007/26, pp. 15-20, paras. 16-37.)

32. And, in conclusion, the jurisprudence is not uniformly negative, as Sir Elihu asserts. And the Court is respectfully referred to the examination of the case law in Singapore's Counter-Memorial at paragraphs 5.121 to 5.128.

The second proposition of Malaysia is that British practice required a formal act of acquisition of sovereignty

33. In his presentations both on Tuesday and Thursday, Sir Elihu Lauterpacht repeated the assertion of the written pleadings that the British practice in acquiring sovereignty over territory required a formal act (see CR 2007/24, pp. 44-45, paras. 43-44; and CR 2007/26, pp. 12-14, paras. 1-13).

34. Malaysia in this context avoids the authoritative work, which is that of Roberts-Wray. In the first round I explained why Roberts-Wray is authoritative (CR 2007/21, p. 47, para. 62). Singapore relies upon the following materials for the proposition that resort to a formal act is sufficient but it is not a legal requirement. The first authority is Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law, 1966, pages 107-108; and the second is Sir Humphrey Waldock, in the British Year Book of International Law, Volume 25 (1948) at page 334.

Waldock puts the matter in this way, and we see this is at tab 24 of the judges' folder:

"Effective occupation is a term of art denoting not physical settlement but the actual, continuous, and peaceful display of the functions of a state. The Permanent Court in the Eastern Greenland case did not in fact use the phrase effective occupation but referred to a title derived from 'continued display of authority' involving two elements each of which must be shown to exist. These elements are (1) the intention and will to act as sovereign (i.e., animus occupandi) and (2) some actual exercise of display of such authority (i.e., corpus occupandi). The first element seems to mean no more than that there must be positive evidence of the pretensions of the particular state to be the sovereign of the territory. This evidence may consist either of published assertions of title or of acts of sovereignty."

35. Counsel for Malaysia has chosen to leave these authorities aside in spite of the professional status of the writers. But Sir Elihu will surely remember Sir Humphrey Waldock, who was a colleague of his in the counsel appearing in the Beagle Channel case, and, of course, Waldock became President of this Court.

36. In response, Sir Elihu has quoted the monograph by Keller, Lissitzyn and Mann (CR 2007/24, p. 44, para. 43). But the formulation from this work is far from dogmatic in tone. Moreover, the passages which follow the passage quoted by Sir Elihu make it very clear that the practice was not at all consistent. This is at tab 25 of the judges' folder and is highlighted accordingly. Thus, the authors observe:

"On occasion, however, English practice did display a definite tendency toward simplicity in form; thus, all that was done, in some instances, was the erection of a plain wooden cross bearing the royal arms. It is doubted, however, if this comparative informality had any adverse effect whatsoever upon the validity in law of the title so acquired. Such an occurrence was, at the most, an inessential modification of the customary procedure. In the final analysis it was clearly the simple fact of the performance of a symbolic act alone, whatever its form, which was of significance and never the degree of formality observed in the course of such an act." (Creation of Rights of Sovereignty through Symbolic Acts 1400-1800, pp. 98-99.)

37. If these passages are compared with the more authoritative writers cited by Singapore, it will be seen that there is little or no discrepancy in any event.

38. Counsel for Malaysia suggests the relevance of certain episodes of British practice involving certain types of formality (see CR 2007/26, pp. 13-14, paras. 9-13). Mr. President, the citation of selected episodes of British practice, such as Rockall or Labuan, can be of little assistance to the Court at this stage. The Parties are agreed that a formal annexation of territory is a sufficient basis of title. But the practice offered by Malaysia fails to address the real question whether a formal annexation is legally necessary. In any case, the practice has been examined in the written pleadings at some length: and I refer now to the Singapore Reply, pages 76 to 85, and 301 to 308.

The third proposition of Malaysia is that sovereign acts may be performed on the territory of another State without this necessarily involving an intention to acquire sovereignty over the area concerned

39. This proposition was advanced by Sir Elihu on Wednesday and was linked, somewhat precipitately, to the concepts of international leases and servitudes (CR 2007/25, pp. 65-66). The subject was also referred to briefly by Professor Kohen and by Professor Crawford in his final presentation.

40. Mr. President, with a certain regret, I shall leave these interesting topics on one side. No case has been made for the existence of this type of legal interest in favour of Singapore or Malaysia in relation to Pedra Branca. And it is perfectly obvious that, when Malaysia began to make claims to Pedra Branca late in the last century, no claim of the type envisaged by Sir Elihu was produced.

The fourth proposition of Malaysia: that the official ceremony of laying the foundation stone did not constitute evidence of an intention to acquire sovereignty

41. I come now to the fourth proposition of Malaysia, which involves the denial that the laying of the foundation stone of the lighthouse on 24 May 1850 constituted evidence of an intention to acquire sovereignty. My distinguished opponents have sought to disparage the evidential significance of this ceremony on at least four occasions in the first round of these hearings. Mr. President, Malaysia has some difficulties in deciding which target to aim for. They are anxious to assert that the episode did not amount to a formal annexation. But, of course, Singapore has not contended that the ceremony had that character. In any event, the ceremony was undeniably official. It was a government occasion, and it was a Singapore occasion.

42. The role of the Master of the Masonic Lodge was subordinate ⎯ clearly subordinate ⎯ to that of the Governor, who was the organizer and host of the occasion. The reference by the Master of the Masonic Lodge to Pedra Branca as a dependency of Singapore was made in the presence of the Governor and all the other invited officials and guests.

43. The entire enterprise had an official character and the laying of the foundation stone formed part of the long expected construction of the lighthouse on the exclusive basis of government planning and government funding (see the Singapore Memorial, pp. 50-58; and my presentation in the first round, CR 2007/21, pp. 54-59, paras. 97-119.)

Conclusion

44. In coming to my conclusion, Mr. President, I would return to the question of the evidence of an intention to acquire sovereignty. The approach adopted by counsel for Malaysia, especially Sir Elihu Lauterpacht and Professor Kohen, faces insurmountable obstacles. In the first place, the approach involves a repudiation of the long-established legal principles governing acquisition of territory.

45. The intention to acquire sovereignty can be, and very commonly is, based upon acts of sovereignty, that is, the exercise or display of sovereignty. Sir Humphrey Waldock explains these principles very clearly in his well-known British Year Book article. The placing of the brick pillars by Thomson was directly related, directly linked, to the assessment of the cost of the construction and, as I have shown, provided the basis of the final decision to build.

46. There is, secondly, the significance of the purpose of the enterprise. This necessarily involved the control of the island as a whole and, of course, the element of exclusive use.

47. In the third place there was a natural relation between the exclusive use of territory and the existence of sovereignty over the territory. And, in this context, the attitude of the Dutch authorities in the region is legally significant. The Dutch Resident in Riau sent gunboats to Pedra Branca which arrived on 6 May 1850 and which, with British approval, were maintained during the term of the building operation. I refer here to Thomson, Account, pages 424 and 475 in Singapore's Memorial, Annex 61, in Volume 4, with the pagination, pages 527 and 576. This Dutch official assistance, furnished with British approval, provides the practical context of the letter of November 1850 in which the General Secretary, Dutch East Indies, refers to "the construction of a lighthouse at Pedra Branca on British territory" (RS, Ann. 8 (English translation)). This Dutch attitude clearly relates to sovereignty in respect of territory, and not to the acquisition of private property.

48. And, then, there is the element of legal and political security. There could have been no need to effect a formal annexation of Pedra Branca. There were no sources of political opposition to the title and control of the British Crown. Thus, there was no political need, or legal requirement, for a formal annexation. The display of sovereignty was palpable and continuous. There was no controversy with Johor or with the Dutch. And during the lengthy process of decision making relating to Pedra Branca, there is no reference to the need for the co-operation of the Sultan of Johor in any form.

49. Finally, there was no consideration of law, of politics, or of common sense, which required the British Crown to do anything further to establish title. All that was necessary was for title to be maintained.

50. As I reach the end of my speech, I would like to reaffirm the views of Singapore on the relevance of the decision of the Pitcairn Island Court of Appeal (CR 2007/21, p.47, paras. 60-61). The Agent of Singapore has asked me to assure the Court that the question put by Judge Keith last Friday will be answered in writing.

I would thank the Court for its customary patience and consideration and would ask you to call on my colleague, Mr. Bundy.