INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org
Summary
Not an official document
Summary 2008/1
23 May 2008
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore)
Summary of the Judgment of 23 May 2008
Chronology of the procedure and submissions of the Parties (paras. 1-15)
By joint letter dated 24 July 2003, Malaysia and Singapore notified to the Registrar a Special
Agreement between the two States, signed at Putrajaya on 6 February 2003 and having entered into
force on 9May2003. In that Special Agreement they requested the Court to determine whether
sovereignty over Pedra Branca/Pulau Batu Pute h, Middle Rocks and South Ledge belongs to
Malaysia or Singapore.
Each of the Parties duly filed a Memori al, Counter-Memorial and Reply within the
time-limits fixed by the Court, having regard to the provisions of the Special Agreement
concerning written pleadings. The Special Agreement provided for the possible filing of a fourth
pleading by each of the Parties. However, by a joint letter dated 23 January 2006, the Parties
informed the Court that they had agreed that it was not necessary to exchange Rejoinders.
Since the Court included upon the Bench no judge of the nationality of either of the Parties,
each Party proceeded to exercise th e right conferred by Article31, paragraph3, of the Statute to
choose a judge ad hoc to sit in the case: Malaysia chose Mr. Christopher John Robert Dugard and
Singapore Mr. Sreenivasa Rao Pemmaraju.
Prior to her election as President of the C ourt, JudgeHiggins, referring to Article17,
paragraph 2, of the Statute, recused herself from pa rticipating in the case. It therefore fell upon the
Vice-President, JudgeAl-Khasawneh, to exercise the functions of the presidency for the purposes
of the case, in accordance with Article 13, paragraphs 1 and 2, of the Rules of Court.
Public hearings were held from 6 to 23 November 2007.
Geography, general historical background and history of the dispute (paras. 16-36)
Geography (paras. 16-19)
The Court first describes the geographical context of the dispute.
Pedra Branca/Pulau Batu Puteh is a granite island, measuring 137m long, with an average
width of 60m and covering an area of about 8,560sqm at low tide. It is situated at the eastern
entrance of the Straits of Singapore, at the point where the latter open up into the South China Sea.
Pedra Branca/Pulau Batu Puteh is located at 1° 19' 48" N and 104° 24' 27" E. It lies approximately - 2 -
24 nautical miles to the east of Singapore, 7.7 nau tical miles to the south of the Malaysian state of
Johor and 7.6nautical miles to the north of the Indonesian island of Bintan. The names Pedra
Branca and Batu Puteh mean “white rock” in Po rtuguese and Malay respectively. On the island
stands Horsburgh lighthouse, which was erected in the middle of the nineteenth century.
Middle Rocks and South Ledge are the two maritime features closest to Pedra Branca/Pulau
Batu Puteh. Middle Rocks is located 0.6 nautical m iles to the south and consists of two clusters of
small rocks about 250m apart that are permanen tly above water and stand 0.6 to 1.2mhigh.
South Ledge, at 2.2 nautical miles to the south-s outh-west of Pedra Branca/Pulau Batu Puteh, is a
rock formation only visible at low tide. [See sketch-map No. 2]
General historical background (paras. 20-29)
The Court then gives an overview of the complex historical background of the dispute
between the Parties (only parts of which are referred to below).
The Sultanate of Johor was established following the capture of Malacca by the Portuguese
in 1511. By the mid-1600s the Netherlands had wrested control over various regions in the area
from Portugal. In 1795, the British established ru le over several Dutch possessions in the Malay
archipelago, but in 1814 returned the former Dutch possessions in the Malay archipelago to the
Netherlands.
In 1819 a British “factory” (trading station) was established on Singapore island (which
belonged to Johor) by the East India Company, acting as an agent of the British Government in
various British possessions. This exacerbated th e tension between the United Kingdom and the
Netherlands arising out of their competing colonial ambitions in the region. On 17March 1824 a
treaty was signed between the two colonial Powers. As a consequence of this Treaty, one part of
the Sultanate of Johor fell within the British sphere of influence while the other fell within the
Dutch sphere of influence.
On 2August1824 a Treaty of Friendship and A lliance (hereinafter “the Crawfurd Treaty”)
was signed between the East India Company and the Sultan of Johor and the Temenggong (a Malay
high-ranking official) of Johor, providing for the full cession of Singapore to the East India
Company, along with all islands within 10 geographical miles of Singapore.
Since the death of SultanMahmudIII of J ohor in 1812, his two sons had claimed the
succession to the Johor Sultanate. The United Ki ngdom had recognized as the heir the elder son
Hussein (who was based in Singapore), whereas th e Netherlands had recognized as the heir the
younger son Abdul Rahman (who was based in Riau, present day Pulau Bintan in Indonesia). On
25 June 1825 Sultan Abdul Rahman sent a letter to his elder brother in which he “donated” to him
the part of the lands assigned to Sultan Hussein in accordance with the 1824 Anglo-Dutch Treaty.
Between March 1850 and October 1851 a lighthouse was constructed on Pedra Branca/Pulau
Batu Puteh.
In 1867 the Straits Settlements, a grouping of East India Company territories established in
1826 consisting, inter alia, of Penang, Singapore and Malacca, became a British crown colony. In
1885 the British Government and the State of Johor concluded the JohorTreaty, which gave the
United Kingdom overland trade and transit rights through the State of Johor and responsibility for
its foreign relations, as well as providing for British protection of its territorial integrity.
The Straits Settlements were dissolved in 1946; that same year the Malayan Union was
created, comprising part of the former Straits Settlements (excluding Si ngapore), the Federated
Malay States and five Unfederated Malay States (including Johor). From 1946, Singapore was l
purposes.
WGS 84
1 :500 000 e
n
le Pedra Branca/Pulau Bntu Puteh
n a
na h
Mercator Projection (0°N) h C C
el t
dd u INDONESIA (Pulau Bintan)
i o
M South LedgeS
len
The symbols showingthese maritime aeatures
Sketch-map No. 2. Location ofe onlytheir location, and Cot their physicaus.
Pedra Branca/Pulau Batu Puteh,ge hr
oN
This sketch-map has been prepared for illustrative
MALAYSIA (Johor)
R iver Straitsof Singapore
J oh or
INDONESIA (Pulau Batam)
MALAYSIA (Johor) SINGAPORE - 4 -
administered as a British Crown Colony in its ow n right. In 1948 the Malayan Union became the
Federation of Malaya, a grouping of British col onies and Malay States under the protection of the
British. The Federation of Malaya gained inde pendence from Britain in 1957, with Johor as a
constituent state of the Federation. In 1958 Sing apore became a self-governing colony. In 1963
the Federation of Malaysia was established, formed by the merger of the Federation of Malaya with
the former British colonies of Singapore, Saba h and Sarawak. In 1965 Singapore left the
Federation and became a sovereign and independent State.
History of the dispute (paras. 30-36)
The Court notes that, on 21December1979 Ma laysia published a map entitled “Territorial
Waters and Continental Shelf Boundaries of Mala ysia” (hereinafter “the 1979map”). The map
depicted the island of Pedra Branca/Pulau Batu Pute h as lying within Malaysia’s territorial waters.
By a diplomatic Note dated 14February1980 Si ngapore rejected Malaysia’s “claim” to Pedra
Branca/Pulau Batu Puteh and requested that the 1979 map be corrected. This led to an exchange of
correspondence and subsequently to a series of in tergovernmental talks in 1993-1994, which did
not bring a resolution of the matter. During the first round of talks in February 1993 the question
of the appurtenance of Middle Rocks and South Ledge was also raised. In view of the lack of
progress in the bilateral negotiations, the Parties ag reed to submit the dispute for resolution by the
International Court of Justice.
The Court recalls that in the context of a di spute related to soverei gnty over land, the date
upon which the dispute crystallized is of significance. In the view of the Court, it was on
14February1980, the time of Singapore’s protest in response to Malaysia’s publication of the
1979map, that the dispute as to sovereignty over Pedra Branca/Pulau Batu Puteh crystallized.
With regard to sovereignty over Middle Rocks and South Ledge, the Court finds that the dispute
crystallized on 6 February 1993, when Singapore refe rred to these maritime features in the context
of its claim to Pedra Branca/Pulau Batu Puteh during bilateral discussions between the Parties.
Sovereignty over Pedra Branca/Pulau Batu Puteh (paras. 37-277)
Positions of the Parties (paras. 37-42)
Malaysia states in its written pleadings that it “has an original title to Pulau Batu Puteh of
long standing. Pulau Batu Puteh is, and has always been, part of the Malaysian State of Johor.
Nothing has happened to displace Malaysia’s s overeignty over it. Singapore’s presence on the
island for the sole purpose of constructing and maintaining a lighthouse there ⎯ with the
permission of the territorial sovereign ⎯ is insufficient to vest sovereignty in it.” Malaysia further
says that the island “could not at any releva nt time be considered as terranullius and hence
susceptible to acquisition through occupation”.
Singapore claims that “the selection of Pedra Branca as the site for building of the lighthouse
with the authorization of the British Crown”, a process which started in 1847, “constituted a classic
taking of possession à titre de souverain ”. According to Singapore, title to the island was acquired
by the British Crown in accordance with the legal principles of that time and has since “been
maintained by the British Crown and its lawful su ccessor, the Republic of Singapore”. While in
Singapore’s Memorial and Counter-Memorial, no reference is made expressly to the status of Pedra
Branca/Pulau Batu Puteh as terra nullius , the Court observes that in its Reply Singapore expressly
indicated that “[i]t is obvious that the status of Pedra Branca in 1847 was that of terra n
ullius”.
In light of the foregoing, the Court notes that the issue is reduced to whether Malaysia can
establish its original title dating back to the pe riod before Singapore’s activities of 1847 to 1851,
and conversely whether Singapore can establish its claim that it took “lawful possession of Pedra - 5 -
Branca/Pulau Batu Puteh” at some stage from the middle of the nineteenth century when the
construction of the lighthouse by agents of the British Crown started.
The question of the burden of proof (paras. 43-45)
On this question, the Court reaffirms that it is a general principle of law, confirmed by its
jurisprudence, that a party which advances a point of fact in support of its claim must establish that
fact.
Legal status of Pedra Branca/Pulau Batu Puteh before the 1840s (paras. 46-117)
⎯ Original title to Pedra Branca/Pulau Batu Puteh (paras. 46-80)
The Court starts by observing that it is not disputed that the Sultanate of Johor, since it came
into existence in 1512, established itself as a sovereign State with a certain territorial domain under
its sovereignty in part of south-east Asia. Having examined the arguments of the Parties, the Court
notes that, from at least the seven teenth century until early in the nineteenth, it was acknowledged
that the territorial and maritime domain of the Kingdom of Johor comprised a considerable portion
of the Malaya Peninsula, straddled the Straits of Singapore and included islands and islets in the
area of the Straits — where Pedra Branca/Pulau Batu Puteh is located.
The Court then moves to ascertain whether the original title to Pedra Branca/Pulau Batu
Puteh claimed by Malaysia is founded in law.
Of significance is the fact that Pedra Bran ca/Pulau Batu Puteh had always been known as a
navigational hazard in the Straits of Singapore. Therefore the island evidently was not terra
incognita. The fact that there is no evidence throughout the entire history of the old Sultanate of
Johor that any competing claim had ever been advanced over the islands in the area of the Straits of
Singapore is another significant factor.
The Court recalls the pronouncement made by the Permanent Court of International
Justice (PCIJ) in the case concerning the Legal Status of Eastern Greenland , on the significance of
the absence of rival claims. The PCIJ then noted that, while “[i]n most of the cases involving
claims to territorial sovereignty... there have been two competing claims to the sovereignty”, in
the case before it “up to 1931 there was no clai m by any Power other than Denmark to the
sovereignty over Greenland”. The PCIJ therefor e concluded that, considering the “inaccessible
character of the uncolonized parts of the country, the King of Denmark and Norway displayed . . .
in 1721 to 1814 his authority to an extent sufficient to give his country a valid claim to sovereignty,
and that his rights over Greenland were not limited to the colonized area”.
The Court observes that this conclusion also applies to the present case involving a tiny
uninhabited and uninhabitable island, to which no claim of sovereignty had been made by any other
Power throughout the years from the early sixteent h century until the middle of the nineteenth
century. In that context the Court also not es that State authority should not necessarily be
displayed “in fact at every moment on every point of a territory”, as shown in the Island of Palmas
Case (Netherlands/United States of America).
The Court concludes from the foregoing that the territorial domain of the Sultanate of Johor
covered in principle all the islands and islets within the Straits of Singapore, including the island of
Pedra Branca/Pulau Batu Puteh. It finds that this possession of the islands by the Sultanate was
never challenged by any other Power in the regi on and can in all the circumstances be seen as
satisfying the condition of “continuous and peaceful display of territorial sovereignty”. The Court
thus concludes that the Sultanate of Johor had original title to Pedra Branca/Pulau Batu Puteh. - 6 -
Examining the ties of loyalty that existed betw een the Sultanate of Johor and the Orang Laut
(“the people of the sea”), who were engaged in fishing and piratical activities in the Straits of
Singapore, the Court finds that the descriptions, in contemporary official reports by British
officials, of the nature and the level of relationship between the Sultan of Johor and the Orang Laut
confirm the ancient original title of the Sultana te of Johor to those islands, including Pedra
Branca/Pulau Batu Puteh.
The Court then turns to the question whether th is title was affected by the developments in
the period 1824 to 1840.
⎯ The legal significance of the 1824 Anglo-Dutch Treaty (paras. 81-101)
First the Court notes that documentary eviden ce conclusively shows that the Sultanate of
Johor continued to exist as the same sovereign en tity throughout the period 1512 to 1824, in spite
of changes in the precise geographical scope of its territorial domain and vicissitudes of fortune in
the Sultanate through the ages, and that these ch anges and vicissitudes did not affect the legal
situation in relation to the area of the Singa pore Straits, which always remained within the
territorial domain of the Sultanate of Johor.
Second, the Court observes that it is common ground between the Parties that the
1824Anglo-Dutch Treaty divided the region into two parts— one belonging to the Dutch sphere
of influence (the Riau-Lingga Sultanate under AbdulRahman) and the other falling under the
British sphere of influence (the Sultanate of Johor under Hussein). However, Singapore appears to
claim that the Treaty left the entire Straits aside , and that Pedra Branca/Pulau Batu Puteh had
remained terra nullius or had become terra nullius as a result of the division of the “old Sultanate of
Johor”, thus leaving room for the “lawful possessi on” of Pedra Branca/Pulau Batu Puteh by the
British during the period 1847-1851.
After careful analysis of the text of the 1824 Anglo-Dutch Treaty, the Court concludes that
the Treaty was the legal reflection of a political settlement reached betw een the two colonial
Powers to divide the territorial domain of the old Sultanate of Johor into two sultanates to be placed
under their respective spheres of influence. Thus in this scheme there was no possibility for any
legal vacuum left for freedom of action to take lawful possession of an island in between these two
spheres of influence.
The general reference in Article 12 of the Treat y to “the other Islands south of the Straights
of Singapore” would suggest that all the islands a nd islets within the Straits fell within the British
sphere of influence. This naturally covered th e island of Pedra Branca/Pulau Batu Puteh, which
thus remained part of what continued to be called the “Sultanate of Johor” after the division of the
old Sultanate.
⎯ The relevance of the 1824 Crawfurd Treaty (paras. 102-107)
The Court considers the relevance to the dispute of the “Crawfurd Treaty”, by which the
Sultan and Temenggong of Johor ceded the island of Singapore to the East India Company. The
Court states that the Treaty cannot be relied on as establishing “British recognition of prior and
continuing sovereignty of the Sultanate of Johor over all other islands in and around the Strait of
Singapore”, including Pedra Branca/Pulau Batu Pute h, as Malaysia claimed. The Court however
notes that this finding does not signify a contrario that the islands in the Straits of Singapore falling
outside the scope of ArticleII of this Treaty were terraenullius and could be subject to
appropriation through “lawful occupation” either. This latter point can only be judged in the
context of what legal effect the division of the old Sultanate of Johor ha d upon the islands in the
area of the Straits of Singapore, in particular in light of the 1824 Anglo-Dutch Treaty and in light
of the legal relevance, velnon , of the so-called letter “of donation” of 1825 sent from
Sultan Abdul Rahman of Riau-Lingga to his brother Sultan Hussein of Johor. - 7 -
⎯ The legal significance of the letter “of donation” of 1825 (paras. 108-116)
The Court examines whether the letter “of donation” from Sultan Abdul Rahman to his
brother Hussein had the legal effect of transferring the title to the territory included in that letter “of
donation”. The Court notes that the so-called letter “of donation” from SultanAbdulRahman to
his brother Hussein merely confirmed the division agreed upon by the 1824 Anglo-Dutch Treaty
and therefore was without legal effect.
⎯ Conclusion (para. 117)
The Court concludes that Malaysia has established to its satisfaction that as of the time when
the British started their preparations for the c onstruction of the lighthouse on Pedra Branca/Pulau
Batu Puteh in 1844, this island was under the sovereignty of the Sultan of Johor.
Legal status of Pedra Branca/Pulau Batu Puteh after the 1840s (paras. 118-272)
The Court observes that in order to determin e whether Malaysia has retained sovereignty
over Pedra Branca/Pulau Batu Puteh following 1844 or whether sovereignty has since passed to
Singapore, it needs to assess the relevant facts ⎯ consisting mainly of the conduct of the Parties
during that period ⎯ by reference to the governing principles and rules of international law.
⎯ Applicable law (paras. 118-125)
It notes that any passing of sovereignty might be by way of agreement between the two
States in question. Such an agreement might take the form of a treaty, as with the 1824 Crawfurd
Treaty and the 1927 Agreement referred to earlier. The agreement might instead be tacit and arise
from the conduct of the Parties. In this matter international law does not impose any particular
form but places its emphasis on the parties’ intentions. Sovereignty over territory might under
certain circumstances pass as a result of the failure of the State which has sovereignty to respond to
conduct à titre de souverain of the other State or to concrete manifestations of the display of
territorial sovereignty by the other State. Such manifestations of the display of sovereignty may
call for a response if they are not to be opposable to the State in question. The absence of reaction
may well amount to acquiescence. That is to say, silence may also speak, but only if the conduct of
the other State calls for a response. Critical for the Court’s assessment of the conduct of the Parties
is the central importance in international law and relations of State sovereignty over territory and of
the stability and certainty of that sovereignty. Because of that, any passing of sovereignty over
territory on the basis of the conduct of the Parties must be manifested clearly and without any
doubt by that conduct and the relevant facts.
⎯ The process for the selection of the site for Horsburgh lighthouse (paras. 126-148)
In 1836 merchants and mariners expressed the wish to build one or more lighthouses in
memory of James Horsburgh, a hydrographer to the East Indies Company. In November1836
“Pedra Branca” was identified as a preferred location. In a letter sent to the Governor of Singapore
on 1March1842 “Pedra Branca” was the only loca lity specifically mentioned. The Court notes
that, in this first formal communication, the private commercial interests recognized that the British
Government would have to carry the proposal into effect and provide the further funds.
In the ensuing correspondence between the subscribers and the Britis h authorities several
alternative locations were envisaged. By October 1844, the island of Peak Rock was identified as
the most eligible site. In late November W. J.Butterworth, who had become Governor of the
Straits Settlements in 1843, received replies to letters which he had written to the Sultan and
Temenggong of Johor. Notwithstanding the Parti es’ extensive research, the Governor’s letters
have not been found, but the Parties did provide to the Court copies of the translations of the - 8 -
replies, both dated 25 November 1844, in which the Sultan and the Temenggong consented to the
construction of a lighthouse in the Straits of Singapore, without mentioning the exact location.
Examining whether Johor ceded sovereignty ove r the particular piece of territory which the
United Kingdom would select for the construction and operation of the lighthouse for the stated
purpose or granted permission only to that construction and operation, the Court finds that the
correspondence is not conclusive.
Given the lack of any written agreement relati ng to the modalities of the maintenance of the
lighthouse and the island on which it was to be cons tructed, the Court considers that it is not in a
position to resolve the issue about the content of any possible agreement reached in
November 1844.
⎯ The construction and commissioning of Horsburgh lighthouse, 1850-1851 (paras. 149-163)
The Court notes that the planning for the construction and the construction itself were in the
hands of the Government Surveyor of Singapore, John Thomson, who was appointed as Architect
of the project by Governor Butterworth. In December1849 the Government Surveyor began
organizing the construction. On 24 May 1850 the foundation stone was laid. The Court takes note
of the fact that no Johor authorities were present at the ceremony. There is no indication that they
were even invited by the Governor to attend. That might suggest that the British and Singapore
authorities did not consider it necessary to apprise Johor of their activities on Pedra Branca/Pulau
Batu Puteh. The Temenggong of Johor visited the ro ck only once, nine days after the laying of the
foundation stone, accompanied by 30 of his followers.
After describing the modalities of the construction and commissioning of the lighthouse, the
Court notes that it cannot draw any conclusions with regard to sovereignty. Rather it sees those
events as bearing on the issue of the evolving views of the authorities in Johor and in Singapore
about sovereignty over Pedra Branca/Pulau Batu Puteh.
⎯ The conduct of the Parties, 1852-1952 (paras. 164-191)
The Court first considers the Straits light s system and related British and Singapore
legislation. It notes that as a matter of law, a lighthouse may be built on the territory of one State
and administered by another State-- with the consent of the first State. A central element in
Malaysia’s argument is that because Horsburgh lighthouse was built on an island over which Johor
was sovereign all the actions of the British authorities and, following them, the Singaporean
authorities, are simply actions pursued in the normal course of the operation of the lighthouse.
Singapore, by contrast, says that some of the actions are not matters simply of the operation of the
lighthouse but are, in whole or part, acts à titre de souverain . Singapore refers to legislation
enacted by itself and its predecessors in title, which regulated the defraying of costs of establishing
and operating the lighthouse, vesting contro l of it under various governmental bodies, and
regulating the activities of persons residing, vi siting and working on Pedra Branca/Pulau Batu
Puteh. In the Court’s view however the provisions invoked by Singapore do not as such
demonstrate British sovereignty over the areas to which they apply, because they applied equally to
lighthouses which are undoubtedly on Johor territory as well as to that on Pedra Branca/Pulau Batu
Puteh and, moreover, say nothing expressly about sovereignty.
Turning to the various constitutional developments invoked by Malaysia, including the
1927Straits Settlement and Johor Territorial Waters Agreement, the Court considers that they do
not help resolve the question of sovereignty over Pe dra Branca/Pulau Batu Puteh. It observes that
the purpose of the Agreement was to “retrocede” to Johor certain areas that had been ceded by
Johor to the East India Company in 1824 and were all within 10miles of the main island of
Singapore. They could not have included Pedr a Branca/Pulau Batu Puteh, as the island was not
within the scope of the Agreement. - 9 -
With respect to Malaysia’s contention that the Temenggong continued to control fishing in
the neighbourhood of Pedra Branca/Pulau Batu Pute h after the construction of the lighthouse, as
shown by an exchange of correspondence between Johor and the British authorities in Singapore in
1861, the Court observes that the letters relate to events occurring within 10 miles of the island of
Singapore. Therefore nothing can be made of the fact that the Singapore authorities did not in that
context refer to jurisdiction over the waters of Pedra Branca/Pulau Batu Puteh.
⎯ The 1953 correspondence (paras. 192-230)
The Court notes that on 12June1953 the Colonial Secretary of Singapore wrote to the
British Adviser to the Sultan of Johor, that he was “directed to ask for information about the rock
some 40 miles from Singapore known as Pedra Branca” in the context of “the determination of the
boundaries of the Colony’s territorial waters”. Acknowledging that in the case of Pulau Pisang, an
island “which is also outside the Treaty limits of the colony” it was “clear that there was no
abrogation of the sovereignty of Johore”, the S ecretary asked to be info rmed of “any document
showing a lease or grant of the rock or whether it ha[d] been ceded by the Government of the State
of Johore or in any other way disposed of”. Later in that month the Secretary to the British Adviser
to the Sultan of Johor advised the Colonial Secr etary that he had passed the letter to the State
Secretary of Johor, who would “doubtless wish to consult with the Commissioner for Lands and
Mines and Chief Surveyor and any existing archives before forwarding the views of the State
Government to the Chief Secretary”. In a letter dated 21September1953, the Acting State
Secretary of Johor replied that “the Johore G overnment [did] not claim ownership of Pedra
Branca”.
The Court considers that this correspondence a nd its interpretation are of central importance
for determining the developing understanding of the two Partie s about sovereignty over Pedra
Branca/Pulau Batu Puteh.
The Court notes that the Singapore letter of 12 June 1953 seeks information about “the rock”
as a whole and not simply about the lighthouse in light of the determination of the Colony’s
territorial waters, a matter which is dependent on sovereignty over the island. The Court notes that
the letter had the effect of putting the Johor authorities on notice that in 1953 the Singapore
authorities understood that their predecessors thought that Pedra Branca/Pulau Batu Puteh had been
ceded “gratuitously” by the Sultan and the Teme nggong to the East India Company. The Court
reads the letter as showing that the Singapore authorities were not clear about events occurring over
a century earlier and that they were not sure that their records were complete.
Turning to the reply from the Acting State Secretary of Johor, the Court dismisses the
Malaysian contention that, under the provisions of the Johor Agreement between the British Crown
and the Sultan of Johor and the Federation of Malaya Agreemen t between the British Crown and
nine Malay states (including Johor), the Acting State Secretary “was definitely not authorized” and
did not have “the legal capacity to write the 1953 letter, or to renounce, disclaim, or confirm title of
any part of the territories of Johore”.
The Court considers that the Johor Agreemen t is not relevant since the correspondence was
initiated by a representative of Her Britannic Majesty’s Government which at that time was not to
be seen as a foreign State; further, it was the British Adviser to the Sultan of Johor who passed the
initial letter on to the Secretary of State of the Sultanate. The Court is also of the view that the
Federation of Malaya Agreement does not assist the Malaysian argument because the action of
responding to a request for information is not an “exercise” of “executive authority”. Moreover,
the failure of Malaysia to invoke this argumen t, both throughout the whole period of bilateral
negotiations with Singapore and in the proceedings until late in the oral phase, lends support to the
presumption of regularity invoked by Singapore. - 10 -
Examining the 1953 letter’s content, the Cour t expresses the view that the Johor reply is
clear in its meaning: Johor does not claim owne rship over Pedra Branca/Pulau Batu Puteh. That
response relates to the island as a whole and not simp ly to the lighthouse. When the Johor letter is
read in the context of the request by Singapore fo r elements of information bearing on the status of
Pedra Branca/Pulau Batu Puteh, as discussed above, it becomes evident that the letter addresses the
issue of sovereignty over the island. The Court accordingly concludes that Johor’s reply shows that
as of 1953 Johor understood that it did not have sovereignty over Pedra Branca/Pulau Batu Puteh.
In light of Johor’s reply, the authorities in Singapore had no reason to doubt that the
United Kingdom had sovereignty over the island.
The steps taken by the Singapore authorities in reaction to the final response were not known
to the Johor authorities and have limited signifi cance for the Court’s assessment of any evolving
understanding shared by the Parties. The case file shows that, on receipt of the Johor reply, the
Colonial Secretary of Singapore sent an internal memorandum to the Attorney-General saying that
he thought that “[o]n the strength of [the reply], we can claim Pedra Branca...” The
Attorney-General stated that he agreed. The Si ngapore authorities, so far as the case file shows,
took no further action. They had already recei ved related communications from London, to which
the Court now turns.
⎯ The conduct of the Parties after 1953 (paras. 231-272)
The Court first takes into consideration Si ngapore’s contention that it and its predecessors
have exercised sovereign authority over Pedr a Branca/Pulau Batu Puteh by investigating
shipwrecks within the island’s territorial waters. C oncluding that this conduct gives significant
support to the Singapore case, the Court also recalls that it was only in June 2003, after the Special
Agreement submitting the dispute to the Court had come into force, that Malaysia protested against
this category of Singapore conduct.
After examining the argument of Singapore’s exercise of exclusive control over visits to
Pedra Branca/Pulau Batu Puteh and the use of the island by officials from Singapore as well as
from other States, including Malaysia, the Court st ates that many of the visits by Singaporean
personnel related to the maintena nce and operation of the lighthouse and are not significant in the
case. However it finds that the conduct of Singapor e with respect to permissions granted or not
granted to Malaysian officials in the context of a survey of the waters surrounding the island in
1978 is to be seen as conduct à titre de souverain and does give significant support to Singapore’s
claim to sovereignty over Pedra Branca/Pulau Batu Puteh..
Both Parties contend that their naval patrols and exercises around Pedra Branca/Pulau Batu
Puteh since the formation of their respective navi es constitute displays of their sovereign rights
over the island. The Court does not see this activity as significant on one side or the other. It
observes that naval vessels operating from Singapor e harbour would as a matter of geographical
necessity often have to pass near Pedra Branca/Pulau Batu Puteh.
As for Singapore’s claim that the flying of the British and Singapore ensigns from
Horsburgh lighthouse from the time of its commissioning to this day is also a clear display of
sovereignty, the Court states that the flying of an ensign is not in the usual case a manifestation of
sovereignty. It considers that some weight may nevertheless be given to the fact that Malaysia did
not protest against the ensign flying at Horsburgh lighthouse.
The Court then looks into the installation of a relay station by the Singapore Navy , in
May1977, for a military rebroadcast station on Pedra Branca/Pulau Batu Puteh. Singapore
contends that the installation was carried out openl y. Malaysia asserts that the installation was
undertaken secretly and that it became aware of it only on receipt of Singapore’s Memorial. The - 11 -
Court is not able to assess the strength of the assertions made on the two sides about Malaysia’s
knowledge of the installation. The conduct is inconsistent with Singapore recognizing any limit on
its freedom of action.
As for the plans to reclaim areas around Pedra Branca/Pulau Batu Puteh , which had been
considered on various occasions in the 1970s by the Port of Singapore Authority, the Court
observes that while the reclamation was not proceed ed with and some of the documents were not
public, the tender advertisement was public and attract ed replies. Further the proposed action, as
advertised, did go beyond the maintenance and ope ration of the lighthouse. It is conduct which
supports Singapore’s case.
In 1968 the Government of Malaysia and the Continental Oil Company of Malaysia
concluded an agreement author izing petroleum exploration in the whole of the area of the
continental shelf off the east coast of West Malays ia. Given the territorial limits and qualifications
in the concession and the lack of publicity of the co-ordinates, the Court does not consider that
weight can be given to the concession.
By legislation of 1969 Malaysia extended its territorial waters from 3to 12nauticalmiles.
Malaysia contends that the legislation “extended Malaysian territorial waters to and beyond Pulau
Batu Puteh”. The Court notes however that the said legislation does not identify the areas to which
it is to apply except in the most general sense: it says only that it applies “throughout Malaysia”.
Malaysia invokes several territorial agreements to support its claim to sovereignty over
Pedra Branca/Pulau Batu Puteh: the Indonesia Malaysia Continental Shelf Agreement of 1969, the
Territorial Sea Agreement of 1970 and the Indonesia Singapore Territorial Sea Agreement of 1973.
The Court does not consider that those agreements can be given any weight in respect of
sovereignty over Pedra Branca/Pulau Batu Puteh, si nce they did not cover this issue. The Court
similarly does not see as significant for the purposes of the proceedings the co-operation in the
Straits of Malacca and Singapore adopted in 1971 by Indonesia, Malaysia and Singapore, which
was invoked by Singapore.
The Court also dismisses as non-authoritative and essentially descriptive certain official
publications of the Government of Singapore describing its territory, which in the view of Malaysia
are notable for their absence of any referenc e to Pedra Branca/Pulau Batu Puteh among the
approximately 60 islands that are included in those descriptions.
Finally, the Court turns to nearly a hundred official maps submitted by the Parties. Malaysia
emphasizes that of all the maps before the Cour t only one published by the Singapore Government
included Pedra Branca/Pulau Batu Puteh as within its territory and that map was not published until
1995. The Court recalls that Singapore did not, until 1995, publish an y map including Pedra
Branca/Pulau Batu Puteh within its territory. But that failure to act is in the view of the Court of
much less weight than the weight to be accorded to the maps published by Malaya and Malaysia
between 1962 and1975. The Court concludes that those maps tend to confirm that Malaysia
considered that Pedra Branca/Pulau Batu Puteh fell under the sovereignty of Singapore.
Conclusion (paras. 273-277)
The Court is of the opinion that the relevant facts, including the conduct of the Parties,
reflect a convergent evolution of the positions of the Parties regarding title to Pedra Branca/Pulau
Batu Puteh. The Court concludes, especially by reference to the conduct of Singapore and its
predecessors à titre de souverain, taken together with the conduc t of Malaysia and its predecessors
including their failure to respond to the conduc t of Singapore and its predecessors, that by 1980
sovereignty over Pedra Branca/Pulau Batu Puteh had passed to Singapore. - 12 -
For the foregoing reasons, the Court conclud es that sovereignty over Pedra Branca/Pulau
Batu Puteh belongs to Singapore.
Sovereignty over Middle Rocks and South Ledge (paras. 278-299)
Arguments of the Parties (paras. 278-287)
The Court notes that Singapore’s position is th at sovereignty in respect of Middle Rocks and
South Ledge goes together with sovereignty over Pedra Branca/Pulau Batu Puteh. Thus, according
to Singapore, whoever owns Pedra Branca/Pulau Batu Puteh owns Middle Rocks and South Ledge,
which, it claims, are dependencies of the island of Pedra Branca/Pulau Batu Puteh and form with
the latter a single group of maritime features. Ma laysia on the other hand argues that these three
features do not constitute one identifiable group of islands in historical or geomorphological terms,
and adds that they have always been considered as features falling within Johor/Malaysian
jurisdiction.
Legal status of Middle Rocks (paras. 288-290)
The Court first observes that the issue of the legal status of Middle Rocks is to be assessed in
the context of its reasoning on the principal issue in the case. It recalls that it has reached the
conclusion that sovereignty over Pedra Branca/Pu lau Batu Puteh rests with Singapore under the
particular circumstances surrounding the case. However these circumstances clearly do not apply
to other maritime features in the vicinity of Pe dra Branca/Pulau Batu Puteh, i.e., Middle Rocks and
South Ledge. None of the conduct of the Parties reviewed in the previous part of the Judgment has
any application to the case of Middle Rocks.
The Court therefore finds that original title to Middle Rocks should remain with Malaysia as
the successor to the Sultan of Johor.
Legal status of South Ledge (paras. 291-299)
With regard to South Ledge, the Court however notes that there are special problems to be
considered, inasmuch as South Ledge presents a special geographical feature as a low-tide
elevation.
The Court recalls Article13 of the United Nations Convention on the Law of the Sea and
considers its previous jurisprudence, the arguments of the Parties, as well as the evidence presented
before it.
The Court notes that South Ledge falls within the apparently overlapping territorial waters
generated by the mainland of Mala ysia, by Pedra Branca/Pulau Batu Puteh and by Middle Rocks.
It recalls that in the Special Agreement and in the final submissions it has been specifically asked
by the Parties to decide the matter of sovereignty separately for each of the three maritime features.
At the same time the Court observes that it has not been mandated by the Parties to draw the line of
delimitation with respect to the territorial waters of Malaysia and Singapore in the area in question.
In these circumstances, the Court concludes that sovereignty over South Ledge, as a low-tide
elevation, belongs to the State in the territorial waters of which it is located. - 13 -
Operative clause (para. 300)
“For these reasons,
T HE COURT ,
(1) By twelve votes to four,
Finds that sovereignty over Pedra Branca/Pulau Batu Puteh belongs to the Republic of
Singapore;
IN FAVOUR : Vice-President, Acting President, Al-Khasawneh; JudgesRanjeva, Shi, Koroma,
Buergenthal, Owada, Tomka, Keith, Sepúlveda-Amor, Bennouna, Skotnikov;
Judge ad hoc Sreenivasa Rao;
AGAINST : JudgesParra-Aranguren, Simma,Abraham; Judgead hoc Dugard;
(2) By fifteen votes to one,
Finds that sovereignty over Middle Rocks belongs to Malaysia;
IN FAVOUR : Vice-President, Acting President, Al-Khasawneh; JudgesRanjeva, Shi, Koroma,
Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor,
Bennouna, Skotnikov; Judgead hoc Dugard;
AGAINST : Judge ad hoc Sreenivasa Rao;
(3) By fifteen votes to one,
Finds that sovereignty over South Ledge belongs to the State in the territorial waters of
which it is located.
IN FAVOUR : Vice-President, Acting President, Al-Khasawneh; JudgesRanjeva, Shi, Koroma,
Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepú lveda-Amor, Bennouna,
Skotnikov; Judgesad hoc Dugard, Sreenivasa Rao;
AGAINST : JudgeParra-Aranguren.
*
Judge Ranjeva appends a declaration to the Judgment of the Court; Judge Parra-Aranguren
appends a separate opinion to th e Judgment of the Court; Judges Simma and Abraham append a
joint dissenting opinion to the Judgment of the Court; JudgeBennouna appends a declaration to
the Judgment of the Court; Judge ad hoc Dugard appends a separate opinion to the Judgment of the
Court; Judge ad hoc Sreenivasa Rao appends a separate opinion to the Judgment of the Court.
___________ Annex to Summary 2008/1
Declaration of Judge Ranjeva
Judge Ranjeva considers that no substantive objection can be raised to the present Judgment,
in so far as Malaysia’s immemorial historical title to Pedra Branca/Pulau Batu Puteh is established,
even though Singapore’s sovereignty over this feature at the date of the Court’s decision cannot
reasonably be contested. That however is not th e case for the Court’s reasoning in respect of the
transfer of Johor’s sovereignty to Singapore. J udge Ranjeva thus points out that the purpose of his
declaration is to suggest an alternative basis on which the Court could have relied.
In the present Judgment, the Court infers acquiescence on the part of Johor to the transfer of
its title of sovereignty over Pedra Branca/Pulau Ba tu Puteh. In Judge Ranjeva’s view, there are
only two events from which a transfer of sovereignt y can result: either an equivalent act occurs
(the possibility referred to in paragraph #120 of the Judgment), or a superior legal title intervenes.
In the absence of the latter situation, Judge Ranj eva wonders how Johor’s title could have been
extinguished without Johor’s consent. For lack of evidence, the Judgment relies on presumptive
consent to reach the conclusion that sovereignty was transferred; this is open to criticism as being
out of keeping with the facts.
Judge Ranjeva believes that the Judgment came to this conclusion through a failure to take
account of the historical criticism approach in interpreting the facts in their contemporary political
and legal context. While relati ons between sovereign colonial Po wers fell within the ambit of
international law, it is difficult to argue th at dealings between the United Kingdom and the
Sultanate of Johor were based on re lations between sovereign, equal subjects of international law.
Thus, the sovereignty acknowledged to indigenous authorities was inoperative vis-à-vis colonial
Powers, the authorities’ sole obligation being to submit to the will of the Powers. Under these
circumstances, the Sultan of Johor could not br oach the slightest opposition to a decision by the
British. JudgeRanjeva thus considers that the present case cannot be seen as involving an
international transfer of title by the operation of acquiescence, when, under the rules and practice of
the colonial Powers, what was involved was the ex ercise of a colonial territorial title. Johor’s
silence through the colonial period cannot therefor e be held against it. The situation changed
however with the Parties’ accession to independence: Malaysia may no longer rely on its silence in
response to conduct pointing towards Singapore’ s sovereignty over Pedra Branca/Pulau Batu
Puteh. In conclusion, Singapore has sovereignty over the island.
Separate opinion of Judge Parra-Aranguren
I
1. JudgeParra-Aranguren considers that the findings made by the Court in its Judgment
demonstrate that juridical reasons can always be found to support any conclusion.
II
2. JudgeParra-Aranguren voted against para graph300(1) of the Judgment because it is
based mainly on the interpretation of the 1953 correspondence made in sect ion5.4.5, which he
cannot accept.
3. On 12 June 1953 Singapore asked Johor for information in an attempt to clarify the status
of Pedra Branca/Pulau Batu Puteh owing to th e island’s relevance to the determination of
Singapore’s territorial waters; it asked in particular whether there was any document showing a - 2 -
lease or grant, or whether the island had been ceded by Johor or in any other way disposed of. The
Acting State Secretary of Johor replied on 21September1953, informing Singapore that “the
Johore Government does not claim ownership of Pedra Branca” (paras.192 and 196 of the
Judgment).
4. Singapore maintained that, “‘by declaring that Johor did not claim Pedra Branca, the
[Johor State Secretary’s] letter had the effect of confirming Singapore’s title to Pedra Branca and of
confirming that Johor had no title, historic or otherwise, to the island’”. Moreover, Singapore
stressed that its argument was not “that Johor abandoned or relinquished title to Pedra Branca in
1953” and that the effect of Johor’s 1953 letter was “to pronounce explicitly that Johor did not have
a claim to ownership of Pedra Branca”.
5. In this respect JudgeParra-Aranguren reca lls that in earlier sections of the Judgment the
Court concluded that prior to 1953 Pedra Branca/ Pulau Batu Puteh belonged to Malaysia and for
this reason, in his opinion, the Johor’s 1953 letter could not have had the effect of confirming either
that Singapore held title to Pedra Branca/Pulau Ba tu Puteh or that Johor had no title to Pedra
Branca/Pulau Batu Puteh, as maintained by Singapore.
6. Singapore did not maintain that the 1953 letter should be understood as Johor’s
renunciation, abandonment or relinquishment of its title to Pedra Branca/Pulau Batu Puteh and,
accordingly, Judge Parra-Aranguren believes that this argument should not have been analysed and
relied upon to conclude that Singapore holds title to Pedra Branca/Pulau Batu Puteh.
7. As paragraph196 of the Judgment states: “No further correspondence followed and the
Singapore authorities took no public action.”
8. In the opinion of Judge Parra-Aranguren, it is surprising that “[n]o further correspondence
followed”, because Johor had not furnished the in formation requested by Singapore and the basic
practice in international relations whenever a question remains unanswered is to repeat the request
in writing and to insist that the information be provided. Singapore chose not to proceed in this
way and did not explain to the Court why it abstained from acting.
9. Furthermore, the 1953 letter from Johor answered a completely different question from the
one asked by Singapore, merely stating that “the Johor Government does not claim ownership of
Pedra Branca”. Paragraph222 of the Judgment acknowledges that “ownersh ip” is in principle
distinct from “sovereignty”, but that “[i]n inte rnational litigation ‘ownership’ over territory has
sometimes been used as equivalent to ‘sovereignty’”. It is a fact that Johor used the term
“ownership”, not “sovereignty”. Therefore, in JudgeParra-Aranguren ’s view, if Singapore
understood the 1953 letter to mean in reality th at Johor did “not clai m sovereignty over Pedra
Branca”, it should at the very least, have request ed the explanation from Malaysia necessary to
“clarify the status of Pedra Branca”, which was Singapore’s main objective in sending the letter of
12 June 1953.
10. The lack of “public action” by Singapor e’s authorities is more difficult to understand
than the “lack of further correspondence”.
11. In the opinion of JudgeParra-Aranguren, if Singapore did in fact consider that its
sovereignty over Pedra Branca/Pulau Batu Pute h had been acknowledged, notwithstanding the - 3 -
ambiguous terms of Johor’s 1953 lette r, elementary principles of good faith required Singapore to
assert a formal claim of sovereignty over Pedra Bran ca/Pulau Batu Puteh, especially in the light of
the facts mentioned in paragra phs 196 and 224 of the Judgment. However, Singapore failed to do
so and, as a result of its inaction, the status of Pedra Branca/Pulau Batu Puteh, far from being
“clarified”, remained obscure.
12. Additionally, it may be observed that, wh ile information about Pedra Branca/Pulau Batu
Puteh was sought because it was “relevant to the determination of the boundaries of the Colony’s
territorial waters”, no action was taken, as acknowledged in paragraph 225 of the Judgment.
III
13. Judge Parra-Aranguren also voted against paragraph 300 (1) of the Judgment because he
does not agree with the examination of “[t]he conduct of the Parties after 1953” made in
section 5.4.6.
14. In this section the Court states that the United Kingdom and Singapore acted as operator
of Horsburgh Lighthouse, but “that was not the case in all respects”; also, “[w]ithout being
exhaustive”, the Court recalls actions to have been performed by Singapore à titre de souverain .
However “the bulk of them” took place after 1953, as stated in paragraph 274 of the Judgment, and
the Court has already determined in its Judgmen t dated 10 October 2002, that a period of some 20
years is “far too short” (Land and Mar itime Boundary between Cameroon and Nigeria
(Cameroonv. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002 , p.352,
para.65). In the present case the Court finds in paragraph34 of the Judgment that
14February1980 is the critical date for the pur poses of the dispute as to sovereignty over Pedra
Branca/Pulau Batu Puteh. Therefore, even assumi ng that the actions mentioned in section 5.4.6 of
the Judgment were performed by Singapore à titre de souverain , the period concerned is “far too
short” and for this reason, in Judge Parra-Aranguren’s opinion, they are not sufficient to undermine
Johor’s historical title to Pedra Branca/Pu lau Batu Puteh. Singapore’s effectivités do not
correspond to the law, and, as the Court has reitera ted more than once, “[w]here the act does not
correspond to the law, where the territory which is the subject of the dispute is effectively
administered by a State other than the one possessing the legal title, preference should be given to
the holder of the title” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports
1986, p. 587, para. 63).
15. Paragraph 275 of the Judgment states that “the Johor authorities and their successors took
no action at all on Pedra Branca/Pulau Batu Pute h from June 1850 for the whole of the following
century or more”. Similar stat ements are also found in a number of other paragraphs of the
Judgment and were made repeatedly by Singapore in the present proceedings. However, in the
opinion of JudgeParra-Aranguren, the Johor authorities and their successors were under no
international obligation to undertak e any action at all, because Johor had historical title to Pedra
Branca/Pulau Batu Puteh, as recognized in the Judg ment. On the contrary, clarification of the
status of the island was a matter of prime importance to Great Britain, because Great Britain had
made a substantial investment in the construc tion and maintenance of Horsburgh lighthouse.
However, Great Britain remained silent over the years and the status of Pedra Branca/Pulau Batu
Puteh was still unclear in 1953, as evidenced in Mr. J. D. Higham’s letter.
IV
16. Paragraph297 of the Judgment states that the Court “will proceed on the basis of
whether South Ledge lies within the territorial waters generated by Pedra Branca/Pulau Batu Puteh,
which belongs to Singapore, or within those generated by Middle Rocks, which belongs to - 4 -
Malaysia”; and “that South Ledge falls within the apparently overlapping territorial waters
generated by the mainland of Malaysia, Pedra Br anca/Pulau Batu Puteh and Middle Rocks”. The
Court adds in paragraph 298 that “in the Special Agreement and in the final submissions it has been
specifically asked to decide the matter of sovere ignty separately for each of the three maritime
features”, but at the same time observes that it “h as not been mandated by the Parties to draw the
line of delimitation with respect to the territorial waters of Malaysia and Singapore in the area in
question”. Consequently in para graph 300 (3) of the Judgment the Court “[f]inds that sovereignty
over South Ledge belongs to the State in the territorial waters of which it is located.”
17. As explained above, Judge Parra-Aranguren considers that Pedra Branca/Pulau Batu
Puteh belongs to Malaysia and he agrees that Middle Rocks is under the sovereignty of Malaysia,
as found in paragraph300(2) of the Judgment. Therefore, in his opinion South Ledge is located
within the territorial waters of Malaysia and for this reason it belongs to Malaysia. Consequently,
he voted against paragraph 300 (3) of the Judgment.
V
18. On 23November2007 the Court informed Malaysia and Singapore that it was retiring
for deliberation. Public hearings on the mer its in the case brought by Djibouti against France
commenced on 21January2008 and the Court retired eight days later for deliberation, which is
ongoing. Public hearings on the Preliminary Objections in the case concerning Application of the
Convention on the Prevention and Punishme nt of the Crime of Genocide (Croatia v. Serbia and
Montenegro), to be held from 26 to 30May2008, requi re careful examination beforehand of the
written arguments and of some requests made by the Parties.
19. JudgeParra-Aranguren therefore wishes to emphasize that constraints arising from the
time-limits fixed by the Court for the preparation of this separate opinion have prevented him from
setting out a thorough explanation of his disag reement with subparagraphs(1) and (3) of
paragraph 300 and that he has fo r this reason only described some of the main reasons why he has
voted against them.
Joint dissenting opinion of Judges Simma and Abraham
Judges Simma and Abraham express their disagreement with the first point of the operative
clause of the Judgment which attributes the island of Pedra Branca/Pulau Batu Puteh to Singapore.
They endorse the conclusion reached by the Court at the end of the first part of its reasoning,
whereby in 1844, on the eve of the construction of the Horsburgh lighthouse, the island was under
the sovereignty of the Sultanate of Johor.
However, they dissociate themselves from the Judgment when it indicates that, between
1844 and 1980, sovereignty passed to Singapore, as a result of conduct of the Parties reflecting a
convergent evolution of their positions as regards the status of the island.
Firstly, Judges Simma and Abraham note that the Court refrains from indicating clearly on
which legal basis it relies to justify such a change in the holder of sovereignty, in the absence of
any express agreement between the States concerned. In the abstract presentation that it gives of
the applicable law, the Judgment refers to the possibility of a “tac it agreement” or of
“acquiescence” by the original sovereign, but it makes no choice between these in the concrete
conclusion that it draws from an examination of the conduct of the Parties, nor does it indicate if
and how it might be possible for them to be combined. Further, the Judgment makes no mention of
the notion of “acquisitive prescription”, which ap pears capable of accounting for the process - 5 -
whereby a State acquires sovereignty over a territory that did not originally belong to it and without
the express consent of the original sovereign.
Judges Simma and Abraham nonetheless take the view that, in substance, the Judgment
draws on the criteria which they hold to be legally correct in order to assess the conduct of the
Parties, even if it does not refer clearly enough to the relevant legal categories, which is not the
most important point.
However, Judges Simma and Abraham disagree with the way in which the Judgment applies
those criteria to the present case, and, consequently, with the conclusions that it draws from them.
Indeed, the facts do not demonstrate a sufficiently clear, consistent and public exercise of
State sovereignty over the island by Singapore and its predecessor Great Britain, so that no
acquiescence of any kind to the transfer of sovereignty can be deduced from the lack of reaction by
Malaysia and its predecessor Johor.
According to Judges Simma and Abraham, there are thus at least two conditions lacking for
the application of acquisitive prescription— or of tacit agreement, or acquiescence, since those
legal categories are not hermetically separated from one another— namely, on the one hand, the
effective exercise of the attributes of sovereignty by the State relying on them (Singapore in this
case) combined with the intention to act as sovere ign and, on the other hand, the visibility of this
exercise of sovereignty, making it possible to estab lish the acceptance, through its lack of reaction,
of the original sovereign (Malaysia in this case).
The acts taken into consideration by the Court as manifestations of sovereignty by Singapore
are minor and sporadic, and their meaning was far from clear from the perspective of Johor and
Malaysia. The Court should therefore not have concluded that sovereignty over the island had
passed to Singapore. It should have attributed it to Malaysia, as the undisputed successor of the
Sultanate of Johor.
Declaration of Judge Bennouna
Judge Bennouna, who voted in favour of the operative clause in the Judgment, is
nevertheless not convinced by all of the reasoning adopted by the Court in justifying it. After
reviewing the doubts entertained by the Court whenever it has looked to colonial law in its past
decisions, Judge Bennouna expresses his view that the Court should have relied in the present case
essentially on the practice of the two States after Si ngapore gained independence in 1965 further to
its withdrawal from the Federation of Malaysia, which had been established in 1963. In
JudgeBennouna’s opinion, the Cour t would thus have avoided deciding on the basis of colonial
practices resulting by and large from the rivalry be tween two European Powers seeking to secure
their hegemony in the region.
Dissenting opinion of Judge ad hoc Dugard
Judge Dugard dissents on the question of sove reignty over Pedra Branca/Pulau Batu Puteh,
but concurs with the Court in respect of its find ing that Malaysia has territorial title to Middle
Rocks and that South Ledge is to be disposed of in accordance with th e law governing maritime
territorial delimitation.
Judge Dugard agrees with the Court that Mala ysia had original title to Pedra Branca/Pulau
Batu Puteh and finds that neither the conduct of Malaysia nor that of Singapore between 1850 and
1980 has disturbed this title. In particular, he finds that the 1953 co rrespondence between Johor
and Singapore did not result in, or contribute to, the passing of sovereignty from Johor to - 6 -
Singapore. Judge Dugard argues that the c onduct of both Parties between 1953 and 1980 is
equivocal and cannot be interpreted to indicat e that Malaysia had ab andoned title to Pedra
Branca/Pulau Batu Puteh or acquiesced in Singapore’s assertion of title over the island.
Judge Dugard is critical of the legal reasons advanced by the Court to support its finding that
sovereignty passed from Johor/Malaysia to Singapore. He finds that notions of tacit agreement,
arising from the conduct of the Parties, de veloping understanding between the Parties and
acquiescence are not supported by the facts and do not provide an acceptable legal foundation upon
which to base the passing of sovereignty over Pedra Branca/Pulau Batu Puteh from Johor/Malaysia
to Singapore.
Separate opinion of Judge ad hoc Sreenivasa Rao
Joacdge Sreenivasa Rao, partially dissenting, explained his reasons for finding that
sovereignty over Middle Rocks should also have b een attributed to Singapore. In his view,
Malaysia failed to meet the burden of proof incumb ent upon it to establish that Johor had original
title over Pedra Branca/Pulau Batu Puteh and the other two maritime features, Middle Rocks and
South Ledge. In his view, the general historical description of the Malay Kingdom cannot be taken
as certain and convincing evidence that Johor ever considered these maritime features as its
possessions. Any claim of immemorial possession, to succeed, must first establish effective
uninterrupted and uncontested possession. In the absence of evidence in favour of such possession,
Johor at best could be held to have had an inchoate title based on discovery which it did not,
however, perfect. For this, it required to display peaceful and continuous State authority
commensurate with the nature of th e territory involved. Activities of the Orang Laut, in so far as
they are accepted as subjects of Johor, are privat e and do not account for display of Johor’s State
authority. The Orang Laut’s piratical activities are even more inadmissi ble as evidence for the
purpose of establishing the original title of Johor.
He further noted that Singapore, in contrast, exercised various State functions with respect to
Pedra Branca/Pulau Batu Puteh and exercised control over waters around it for over 130 years,
after it took over possession of the same in 1847. Accordingly, even though at the time Britain
took possession of Pedra Branca/Pulau Batu Puteh it was not terra nulliu
s , by virtue of the
exhibition of superior effectivités for over a period of 130 years Britain/Singapore could be held to
have manifested sovereignty over it and the waters around it. Accordingly, Singapore acquired title
which it maintained without interruption and cont est. Johor’s reply to Singapore in 1953 stating
that it did not claim any ownership over the rock conf irms this. By virtue of such sovereignty over
Pedra Branca/Pulau Batu Puteh and the waters around it, Singapore also has sovereignty over
Middle Rocks and South Ledge as these maritime feat ures fall within the limits of the territorial
waters of Singapore.
___________
Summary of the Judgment of 23 May 2008