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(Translated) Oral argument by Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of the United Nations International Law Commission, 6 November 2007

06 Nov 2007

Mr. PELLET: Thank you very much, Mr. President.

JOHOR HAD NO TITLE TO PEDRA BRANCA AND DID NOT GIVE PERMISSION TO BUILD THE LIGHTHOUSE

Mr. President, Members of the Court,
1. It is customarily said that the proof of a negative fact, of a "non-event", is so difficult that it is "diabolical" ⎯ probatio diabolica. It is a double negative proof which I must provide this morning since it is my task to show

  • that when Great Britain took possession of Pedra Branca, Johor had no title to that island;
  • and consequently, that the Temenggong of Johor in no way authorized that taking of possession.

2. It is no boast, Mr. President, when I say that this task seems to me less impossible than one might think. As regards the first of these elements, Malaysia appears to forget that "the burden of proof [in respect of the facts and contentions on which the respective claims of the Parties are based] will of course lie on the Party asserting or putting them forward" (Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 16.); it is thus for Malaysia to show that Johor could demonstrate some title to Pedra Branca, yet it has done no such thing. As for the "permission" (and I place this word in quotation marks), the Malaysian interpretation is so artificial as to be almost ridiculous. Mr. President, I shall of course not deliver the whole of this long oral argument today. As we will have fairly ample time tomorrow, I could reasonably stop quite promptly at about 1 o'clock.

I. LACK OF TITLE OF JOHOR TO PEDRA BRANCA

3. Mr. President, our Malaysian friends have a rather strange conception of the burden of proof in general international law, and before your distinguished Court in particular . . . It is no caricature to say that, according to them, it is for Singapore alone to show that Johor had no title to Pedra Branca when Great Britain took possession of the island. For their part ⎯ and Mr. Chan Sek Keong stressed this a moment ago ⎯ they simply assert "possession immemorial"91 of which they provide no proof, not a shred of proof, not a scintilla of proof. They rely on no text, no act, no conduct which would establish such a title or would refer to it; and they seem to posit a kind of presumption of title confirmed by neither the applicable rules of general international law nor the conception of territorial sovereignty obtaining in the region at the time. And I would emphasize this at the outset, paraphrasing the Court in the Minquiers and Ecrehos case, "[w]hat is of decisive importance . . . is not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession" of Pedra Branca (Minquiers and Ecrehos (France/United Kingdom), Judgment, I.C.J. Reports 1953, p. 57.)

4. I shall revert to this point after reviewing the few documents from which Malaysia believes it can deduce recognition of its alleged original title.

A. Lack of any probative document establishing the existence of an original title of Johor to Pedra Branca

5. Mr. President, apart from the documents relating to the "permission" allegedly given by the Sultan and the Temenggong of Johor to build the lighthouse ⎯ to which I shall also revert ⎯ Malaysia mentions in its written pleadings a number of assorted documents allegedly establishing the existence of the original title to Pedra Branca on which it relies. Three (and three only) of them, which I shall examine first, mention it expressly and only one (just one), which has very little probative value, mentions Johor's sovereignty, whereas Malaysia makes all the others (of which, actually, there are not many) say things they do absolutely not say. The same applies to the alleged "subsequent confirmations" also relied on by Malaysia.

6. I shall briefly come back to each of these few documents, less in order to show their lack of probative value when considered individually ⎯ in its written pleadings, Singapore has already amply established that such value is extremely limited ⎯ than to confirm that, overall, they patently do not give even the illusion of a shred of evidence of any historical title whatever.

1. Documents said to expressly mention Pedra Branca

7. After years of research, which one can well imagine was painstaking and dogged, Malaysia exhumed ONE document ⎯ only one Mr. President ⎯ which appears to accept the sovereignty of Johor ⎯ of "modern" Johor ⎯ over Pedra Branca as established. This is an article from the Singapore Free Press, dated 25 May 184392. This untitled article (pompously termed "report" by Malaysia93 ⎯ a term I shall return to in a moment) concerns acts of piracy in the immediate neighbourhood of Singapore. In the article, it is stated that pirates find refuge in places such as "Pulo Tinghie, Batu Puteh, Point Romania etc." which "are all within the territories of our beloved ally and pensionary, the Sultan of Johore, or rather the Tomungong of Johore, for he is the real Sovereign".

8. Malaysia asserts that the Singapore Free Press is a serious and reliable newspaper94. This is no doubt the case when it is a matter of factual information; but, in this case, we are not dealing with such factual information, but with a simple commentary not reporting a fact, but the subjective opinion of its author. Moreover, it is more than doubtful whether the anonymous author of an article, on a completely different subject moreover, was a very reliable authority on the attribution of sovereignty. This is all the more unlikely since the error made over Pedra Branca is repeated as regards "Pulo Tinghie" which, at the time, certainly did not fall within the jurisdiction of the Temenggong of Johor, as Singapore has shown in detail in its Counter-Memorial95.

9. In any event, as the Court noted in the Nicaragua case, it must treat such articles
"with great caution: even if they seem to meet high standards of objectivity, the Court regards them not as evidence capable of proving facts [or titles], but as material which can nevertheless contribute, in some circumstances, to corroborating the existence of a fact, i.e., as illustrative material additional to other sources of evidence" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 40, para. 62).

Information taken from the press cannot therefore be considered unless ⎯ and this is crucially important for assessing its probative value ⎯ it proves "wholly consistent and concordant as to the main facts and circumstances of the case" (United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, p. 10, para. 13; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, para. 68). The document relied on by Malaysia patently meets none of these
requirements and does not carry much weight when compared with all the material making it possible to state with certainty that Pedra Branca was not under the sovereignty of Johor when the British took possession of it:

  • for one thing, its probative value is highly suspect considering it does not indicate the source of the information or even the name of its author (ibid.; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 40, para. 62);
  • secondly and above all, this is the only document in all categories (treaties, official documents, court rulings, scholarly works, press articles), the only document which might provide a semblance of support for Malaysia's argument of all those on which it seeks to rely.

10. True, Malaysia has also relied on two other documents which mention Pedra Branca and from which it deduces, contrary to all reason, that they confirm the existence of this "immemorial" title.

[Slide 1: English translation provided by Malaysia and English translation with corrections of the letter of 1 April 1655 from Governor Thijssen of Melaka to Governor-General and Council of the Dutch East India Company in Batavia, 1 April 1655, VOC 1209 (MM, Ann. 22) (judges' folder, tab 15)]

11. This is the case of a letter from the Dutch Governor of Melaka to Council of the Dutch East India Company in Batavia, dated 1 April 1655. According to the English translation of this letter provided by Malaysia, it reads as follows:

"in the future, at least two yachts must cruise to the south of Singapore Straits under the Hook of Barbukit and in the vicinity of Pedra Branca (in order that they [the Chinese junks] do not enter [the Johor River]) and therefore make certain that they are brought here [Melaka] or to Batavia. As we have seen often, unless the Johor ruler is greatly attracted to this idea, without his command we dare not put this into effect. We therefore faithfully await your order and command as to how far we should pursue this . . ."

Allow me, if you will, Members of the Court, to draw your attention particularly to the expression "without his command", which Malaysia has seen fit to introduce into the English translation it has had made. The pronoun "his" gives the impression that the Dutch would not have dared take the measure considered without an order to do so from the sovereign of old Johor. But this makes no sense! Why on earth would the sovereign of Johor give the Dutch the order to remove merchant ships from his country?

12. To try and solve this enigma, we decided to look more closely at the original Dutch text to clear up the mystery. I do not speak Dutch, Mr. President, but the Dutch-speaking persons we consulted are categorical: the original text says in Dutch "buyten expres bevel"; it should be translated as "without express command", or "without an express command", but in any event not by "without his express command". The pronoun "his", most opportunely added by Malaysia, does not appear in the original text. This possessive pronoun, were it to relate to the sovereign of old Johor, would, moreover, be totally incongruous in this extract in view of the context. And, in particular, of the following phrase, in which the Governor adds: "we therefore faithfully await your order and command as to how far we should pursue this . . ." ⎯ "your order and command", Mr. President; in other words the order of the Council of the Dutch East India Company, not that of the sovereign of old Johor!

[End of slide 1]

13. According to the expert consulted by Malaysia, Professor Andaya, a historian of that country, this incident (and another dating from 1662)97 supposedly prove "that VOC [i.e. the Netherlands East India Company] recognized the waters in the Singapore Straits as belonging to Johor"98. Malaysia, meanwhile, interprets these phrases as showing that "Johor's concern was . . . the maintenance of its sovereign rights in its own maritime territories, which included the waters and islands mentioned in the Governor's letter, i.e. 'the Hook of Barbukit and in the vicinity of Pedra Branca' . . ."99. This is going a little too fast for comfort. That old Johor was, at the time a maritime power with which the Dutch wished to or had to come to terms is one thing; but to deduce from this that the Strait of Singapore "belonged" to it or that it had "sovereign rights" over these waters and islands is quite another.

14. To begin with, the texts concerned say nothing of the kind: they reflect the commercial rivalry between Johor and the Dutch, but in no way do they concern the territorial extent of Johor. Secondly, it is rather extraordinary to interpret this internal correspondence of the Dutch East India Company as recognizing the sovereignty of old Johor over the southern seas. Above all when we know that, at exactly this time, this very Dutch East India Company was vehemently disputing, through Grotius as intermediary100, the mare clausum which Selden had championed on behalf of England101. In fact, the most that can be deduced from these episodes is that the Dutch Governor of Malacca was aware of Batavia's desire to entertain friendly relations with Johor and to humour it as an ally. He therefore showed himself anxious not to act to the detriment of Johor's interests without the express approval of his superiors in Batavia. But it cannot be concluded from this that the uninhabited islands in the region all belonged to Johor; any more than it could be concluded from the mastery of the European seas ⎯ previously ⎯ that all the maritime areas and uninhabited islands in them came under that power. And I cannot help but think, Mr. President, in this connection, of the passage in your recent Judgment in the Nicaragua v. Honduras case, in which you stated that:

"Unlike the land territory where the administrative boundary between [the] different provinces [of the Spanish colonial empire] was more or less clearly demarcated, it is apparent that there was no clear-cut demarcation with regard to islands in general. This seems all the more so with regard to the islands in question, since they must have been scarcely inhabited, if at all, and possessed no natural resources to speak of for exploitation, except for fishing in the surrounding maritime area." (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, para. 162.)

[Slide 2: Paintings showing Pedra Branca (1. Painting of Pedra Branca, in J. T. Thomson, Account of the Horsburgh Lighthouse (MS, Vol. 4, Ann. 61, p. 503) (judges' folder, tab 16); 2. 4th cover, J. Hall-Jones, The Horsburgh Lighthouse, 1995; 3. Painting by J.T. Thomson showing Pedra Branca (1850) (MS, Image 13)]

15. The third and last document relied on by Malaysia in support of its alleged original title, and which, it is claimed, mentions Pedra Branca by name is the improbable account of 1833 by a mysterious Vietnamese envoy to Batavia, whose colourful (alleged) description of our island deserves to be quoted. Under the title "The Port of Pedra Branca", he writes:
"The port of Pedra Branca", or of the "White Stone" (Bach Thach Cang), is surrounded by mountains. A large white rock emerges from the waves. From a distance, it seems to be shining, whence the name given to the port. On either side, the slopes are covered in forests and there is a succession of dwellings as far as the Strait of Singapore. The huts made of reeds, of nipa (duyên) and bamboo can be seen on the dark cliffs, in the verdure of the trees. It is a peaceful scene."102

16. As you can see from the photographs being shown behind me, Members of the Court, the description by Phan Huy Le ⎯ the author's name ⎯ has strictly nothing to do with "our" "white stone", a very common name in the region, as Singapore has shown in its Rejoinder103: no port, no slopes, no forests, no bamboo and, in fact, not a single tree; and I find it difficult to see in this small island buffeted by the waves and the sea a "peaceful scene" . . . In fact, the Vietnamese text does not use the name "Pedra Branca" at all. It uses the Vietnamese name "Bach Thach Cang", which literally means "port of the white stone". It is the author of the French translation of 1994 who translated this by "Pedra Branca". Further ⎯ and Singapore has also explained this104 ⎯ Malaysia has, opportunely, translated the word "east" which appears in the French translation and the Sino-Vietnamese original105 by "south" which, no doubt suits its argument better . . .

[End of slide 2]

17. It is understandable, Mr. President, that Malaysia should have been careful not to revert to this "evidence" of its title in its Reply. But the mere fact that it made such an issue of it in its Counter-Memorial shows at what pains it is to find the merest trace of the title on which it relies. In the absence of documents mentioning Pedra Branca by name, it has no option but to fall back on others which concern the region as a whole and to construct a theory of territorial sovereignty which does not square either with the Malay inhabitants' idea of it before the advent of the Europeans or with the elementary principles of general international law.

Mr. President, I originally wished to present these other documents relied on by Malaysia now but I would need a good quarter of an hour to do so. I think you will prefer a well-earned lunch rather than being subjected to me for all that time. I therefore think it would be wise to stop there. Thank you and bon appétit.