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Oral argument by Prof S. Jayakumar, Deputy Prime Minister, Co-ordinating Minister for National Security and Minister for Law of the Republic of Singapore

09 Nov 2007

The VICE-PRESIDENT, Acting President: Je vous remercie, Monsieur le professeur pour votre plaidoirie. I shall now give the floor to Professor Jayakumar. You have the floor, Sir.

Mr. JAYAKUMAR:
Conclusion

1. Mr. President and Members of the Court, over these past four days, you have heard my colleagues on the Singapore team explain Singapore's case in detail. I now have the honour to make some concluding remarks to sum up the main elements of Singapore's case, and to emphasize the key points made by my colleagues on the Singapore team.

Johor had no original title to Pedra Branca

2. The first issue which we have dealt with is Malaysia's claim that Johor had an "original title" to Pedra Branca since time immemorial. Malaysia asserts that Pedra Branca was not terra nullius. Malaysia is wrong. Singapore has shown that Johor never had title to Pedra Branca. Pedra Branca, being an uninhabited island which had never been the subject of any prior claim or acts of ownership by any sovereign entity, was terra nullius.

3. Malaysia's claim for an original title amounts to no more than saying that Pedra Branca must belong to Johor because Johor was at one time an important Power in the region and Pedra Branca is located near Johor. The non sequitur is clear.

4. Malaysia has not produced even one iota of evidence which attributed Pedra Branca to Johor or which showed any sovereign activities by Johor on the island. It is for this reason that Malaysia has been forced to rely mainly on an anonymous newspaper item, which Professor Pellet has shown to be unreliable and of no probative value at all.

5. As Singapore's pleadings have documented, Johor had been engaged in diplomatic correspondence with European Powers since the seventeenth century. In addition, the Temenggong's system of administration and record keeping in the nineteenth century was so impressive that historian Carl Trocki, who was given access to the Johor Royal Archives, was able to write a comprehensive history of nineteenth century Johor using those documents. Yet, not a single document could be found and adduced before this Court which attributed Pedra Branca to Johor.

6. Malaysia's claim is also contradicted by her own subsequent conduct. If Johor indeed had original title, one might ask: why is it that Johor did not seek to issue a formal grant for the lighthouse on Pedra Branca when it consciously made a point of doing so for Pulau Pisang in 1900? If Johor had original title, why are there no Malaysian records attributing Pedra Branca to Johor? And why is it that the relevant Malaysian records attribute Pedra Branca instead to Singapore?

7. Faced with these insurmountable difficulties, Malaysia has resorted to supplementing its arguments with reports from two historians, but neither of whom was willing to state, even tentatively, that Pedra Branca belonged to Johor. When all is said and done, it is clear that no one had ever regarded Pedra Branca as belonging to Johor ⎯ not the British officials of the nineteenth century, and certainly not the Johor rulers and the Johor officials. The original title is but a mirage conjured up by Malaysia, and it continues to be a mirage.

No permission was granted by Johor

8. I now turn to the questions of permission and Malaysia's inexplicable silence in the face of Singapore's conduct on Pedra Branca. As Professor Pellet has explained, the British did not seek permission from Johor or any other Power for their activities on Pedra Branca. Malaysia, on the other hand, claims that permission was given by Johor to the British in relation to Pedra Branca. Malaysia uses this alleged permission as a panacea for explaining away all of Malaysia's embarrassing silence and inaction since 1847, when the British first landed on Pedra Branca. Whenever Singapore highlights Malaysia's acquiescence in Singapore's exercise of sovereign authority on Pedra Branca, Malaysia can only reply by saying that there was no need to protest because Johor had already given permission for the use of this island.

9. But, where is there even a shred of evidence of this all-encompassing permission entitling Malaysia to remain silent for 130 years in the face of the vast range and number of administrative acts undertaken by Singapore on Pedra Branca? The only document which Malaysia has produced is a letter which makes no reference at all to Pedra Branca. This letter, written on 25 November 1844 by the Johor ruler, only refers to a location "near Point Romania . . . or any spot deemed eligible". As Professor Pellet has explained, this letter is a reply to a request from the British Governor of the Straits Settlements. Although no copy of the Governor's request can be found, it is obvious from the surrounding context that the request and the permission relate to Peak Rock, not Pedra Branca. Malaysia has not produced a single document from British or other sources which states or implies that Johor's permission was needed in relation to Pedra Branca.

10. Malaysia then tries to argue that the 1844 letter is also applicable to Pedra Branca because it was enclosed with voluminous documents sent along in subsequent correspondence relating to Pedra Branca. However, in none of the subsequent correspondence did any British official make even a passing reference to the 1844 letter.

11. Without a doubt, the British officials of the day did not think that Britain required Johor's permission for its activities on Pedra Branca.

Johor expressly disclaimed title to Pedra Branca in 1953

12. Mr. President, Members of the Court, in 1953, Johor made an express disclaimer of title. Singapore expressly informed Johor that the purpose of the enquiry was to determine the boundaries of Singapore's territorial waters, determine the boundaries of Singapore's territorial waters. It was a very serious matter. Johor took time to consider the matter. They did not come to the conclusion which Malaysia now urges upon the Court. Instead, they replied to Singapore that "the Johore Government does not claim ownership of Pedra Branca". Such a reply is totally inconsistent with Malaysia's theory that Johor officials believed that Pedra Branca belonged to Johor. Instead, it is completely consistent with Singapore's position, that Johor never regarded Pedra Branca as belonging to it.

13. In her Reply, Malaysia claims: "Neither Malaysia nor Johor had occasion to question or seek confirmation of the original position." But surely, surely the request from Singapore that elicited the 1953 disclaimer provided an excellent occasion, indeed an irresistible occasion, for Johor to confirm her alleged original title, if indeed she had one. Instead, the State of Johor confirmed the exact opposite of what Malaysia now maintains. Singapore, in her written pleadings, also referred to many other occasions where Malaysia could have taken the opportunity, to use her own words, "to question or seek confirmation of the original position". Malaysia did not act on those occasions because it did not regard Pedra Branca as belonging to it. Malaysia's conspicuous silence in the face of Singapore's activities must show that everything done by Singapore did not come within the scope of Johor's permission. Malaysia's silence in the face of Singapore's activities is clear and unequivocal evidence that Malaysia has never regarded itself as having title over Pedra Branca.

14. Mr. President, understandably, Malaysia is clearly embarrassed by the 1953 disclaimer of title by Johor. Malaysia tries hard to discredit the disclaimer by arguing that "it is not a model of clarity". Not "a model of clarity"? What can be clearer than these ten words: "the Johore Government does not claim ownership of Pedra Branca"?

15. At the very minimum, this letter constitutes clear, incontrovertible evidence that Johor never had title to Pedra Branca and that Johor officials never regarded Pedra Branca as belonging to Johor. But this letter is more than evidence of a fact or evidence of a state of mind. It is a disclaimer of title given by the Johor Government. It is also a declaration that Johor would not, in future, assert any claim on Pedra Branca. It is binding on Malaysia.

Britain acquired title to Pedra Branca in 1847-1851

16. On the second day, you heard Mr. Brownlie explain how the British Crown acquired sovereignty over Pedra Branca. Malaysia's written pleadings seek to discredit Singapore's case on three fronts.

17. First, Malaysia argues that "the mere construction and operation of a lighthouse does not establish the sovereignty of the lighthouse operator". As a proposition of law, this statement is unexceptional. However, Singapore would also note that this Court has repeatedly stated that the "construction of navigational aids, on the other hand, can be legally relevant in the case of very small islands". The acquisition of sovereignty requires the confluence of an intention to act as sovereign and actual display of State authority. Thus, the proposition put forth by Malaysia does not assist her. The truth of the matter is, Singapore's activities on Pedra Branca satisfy both criteria and, in any event, involve much more than the "mere construction and operation of a lighthouse".

18. Malaysia's second line of attack is to argue that Britain did not have the intention to acquire sovereignty. Malaysia says that there could be no intention to acquire sovereignty because there was no flag-raising ceremony or proclamation of sovereignty. Malaysia seeks to support this by pointing to some examples of acquisition of sovereignty which involved such acts. But, as Mr. Brownlie has explained, these formalities are not a prerequisite, according to the authorities which he cited.

19. Malaysia's third line of attack is to criticize Singapore for relying on a series of acts spanning from 1847 to 1851. Malaysia's Counter-Memorial has this exclamation:
"This is the first time in the history of territorial litigation that a taking of possession of an island is presented as a complex act lasting at least four years and without a single manifestation during that period of the intention to acquire sovereignty."

However, it is well established that both under international law and that as a matter of British practice that title may be acquired through a series of acts spanning several years. For the position at international law, Mr. Brownlie has referred to the Clipperton Island case. For the relevant British practice, Singapore's written pleadings referred to a number of authoritative works on the subject and Mr. Brownlie drew the Court's attention to a recent judgment of a British court ⎯ the Pitcairn Island Court of Appeal ⎯ which stated unequivocally that it is not necessary to define with accuracy the time at which the island became a British possession, nor is a formal act of acquisition required67. It is the intention of the Crown, gathered from its own acts and surrounding circumstances, that determines whether a territory has been acquired.

20. Reduced to its essence, Malaysia argues that all acquisitions must comply with a Malaysian-conceived format or procedure, and that because the acquisition of Pedra Branca does not neatly fall within her preconceived format, Singapore's acquisition of title must necessarily be flawed. But this argument itself is flawed. Facts differ from case to case, but whatever the factual permutations, the task before this Court is the same. It is the application of legal principles to the facts.

21. In the case of Pedra Branca, the relevant British officials exercised exclusive control of the island from the outset. The East India Company, as the official organ of the British Crown, made the decision to build the lighthouse. The entire process of planning, construction, naming and commissioning the lighthouse was in the exclusive control of representatives of the British Crown. Not only that, the British maintained public order and cut rain channels, made official visits, and displayed the British marine ensign. Their acts of sovereignty, appropriate and sufficient to acquire title, were deliberate, manifesting their intention to do so.

Singapore has openly and continuously displayed State authority over Pedra Branca after 1851

22. Let me turn to Singapore's administration of Pedra Branca after the acquisition of sovereignty, 1847-1851. Malaysia's position at the close of the written pleadings that "the only thing that Britain or Singapore ever did in relation to the island was operate the lighthouse"68 is wholly erroneous. Mr. Bundy has explained that Singapore undertook a full range of State activities on Pedra Branca and within its territorial waters. They included both lighthouse and non-lighthouse activities. And they included: controlling access to the island, and regular visits to the island by civil and military officials, regular naval patrols around the island, and naval enforcement action in Pedra Branca waters, enacting legislation for the island, investigating accidental deaths and shipping incidents in Pedra Branca waters, flying the British and later the Singapore marine ensign. Throughout this period, Singapore vetted applications for visits by Malaysian officials in the same manner as for officials of other States, and granted permission for Malaysian officials to undertake scientific surveys. All these activities, undertaken by Singapore officials, represented more than 150 years of continuous, open and effective display of State authority.

23. Malaysia's bold claim that the only thing which Singapore ever did was to operate the lighthouse therefore does not bear scrutiny. In contrast, Ms Malintoppi has shown, Malaysia performed no sovereign acts and made no claim on title, repeatedly recognized Singapore's title over Pedra Branca, and consistently attributed Pedra Branca to Singapore in maps and meteorological studies.

24. Malaysia's written pleadings repeatedly attempt to minimize the significance of Singapore's activities after 1851, claiming at various places, that they were merely peripheral. Far from being peripheral, the post-1851 State activities form an important and integral part of this case. They demonstrate the extent and intensity of Singapore's activities in confirmation and maintenance of its title. They provide overwhelming confirmatory evidence of Singapore's title to Pedra Branca.

Singapore was already in possession of Sovereignty over Pedra Branca by the time Malaysia published its 1979 map

25. Mr. President, Members of the Court, the central question in this case is: who was in possession of sovereignty over Pedra Branca when the dispute arose? Both Singapore and Malaysia agree that the dispute was triggered by Malaysia's controversial map of 1979. Did Malaysia have title to Pedra Branca at the time when the 1979 map was issued? Or did Singapore already have title to Pedra Branca when the 1979 map was published?

26. Up to that point, Malaysia's actions ⎯ and inaction ⎯ were consistent with those of a party which believed it had no claim to Pedra Branca, and of a party which had not the slightest intention to claim it. In fact, as late as 1975 ⎯ that is well after both Malaysia and Singapore had become separate countries ⎯ Malaysia published a map attributing Pedra Branca to Singapore. Then, all of a sudden, there is sprung this Malaysian map for the first time in the form of the 1979 map. This came after: 130 years of silence; after 130 years of failure to assert Malaysian sovereignty; after 130 years of conduct and admissions against its own interest, including an express and unequivocal acknowledgment of Singapore's title.
27. Let us also recall that Singapore's Attorney-General drew our attention to the joint press conference of May 1980 chaired by the Prime Ministers of Singapore and Malaysia. This was just three months after Singapore sent a formal Note protesting Malaysia's claim to Pedra Branca. A journalist from the Asian Wall Street Journal asked whether the claims in Malaysia's recently published map had been discussed by the Prime Ministers. Here is a press conference where we have journalists from the international media and media from Malaysia and Singapore. We would expect the head of government of a country, which has just published a map claiming for the first time an island as belonging to it, to give a clear and robust statement in support of his country's claim. Instead, he hedged and ambivalently said: "We are also looking into the question because this is not very clear to us with regard to this island . . ." Not very clear to us!

28. Certainly, it is very clear. Both before and after the publication of the 1979 map, Malaysia had no title to Pedra Branca. Indeed, there is no doubt that Singapore was in possession of sovereignty over Pedra Branca. As for Middle Rocks and South Ledge, as you have just heard from Professor Pellet, sovereignty over Middle Rocks and South Ledge must necessarily go together with sovereignty over Pedra Branca.

29. Mr. President and Members of the Court, this is a straightforward case. Pedra Branca was terra nullius. The British did not need permission to acquire it, nor did they ask for it at any time. From 1847, they simply took possession and control of the island and displayed continuous State authority, with clear intent to exercise sovereignty. In 1850, Pedra Branca was described as a dependency of Singapore at the official ceremony for the laying of the lighthouse foundation stone. Ownership was so notorious that in November that year ⎯ that is 1850 ⎯ even the Dutch official correspondence described Pedra Branca as British territory. By 1851, there was no doubt that Pedra Branca had become British territory. After 1851, State authority was openly and continuously displayed. In stark contrast, Malaysia performed no sovereign acts. Indeed, Malaysia recognized Singapore's jurisdiction in seeking permission for access to Pedra Branca. Malaysia attributed Pedra Branca to Singapore in maps and meteorological reports. In 1953, Johor made an express disclaimer of title. In the light of all these facts that I have recalled, Malaysia's sudden publication of the map in 1979 in an attempt to claim Pedra Branca, was, to say the least, extraordinary. This map could not alter the fact that Singapore has sovereignty over Pedra Branca, Middle Rocks and South Ledge.

30. With that, Mr. President and Members of the Court, I have the honour to close Singapore's first round of presentations. My colleagues and I thank you for your patient attention.

The Court rose at 12.50 p.m.