Malaysia's comments on Singapore's written response to the question put by Judge Keith to Singapore at the public sitting held on 23 November 2007

Case Concerning Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle

Rocks and South Ledge (Malaysia/Singapore)

Malaysia's Comments on Singapore's Response to

Judge Keith's Question of 23 November 2007

.'

Malaysia makes the following comments:

Introduction

1. Malaysia's reference to the Johor Agreement and the Federation

Agreement is not a completely different argument "from that presented by

Sir Elihu Lauterpacht" in his first round but a development of it. 1 lt does

not differ from what Singapore itself had said in the second round:

"Addressed [sc., the request in the Higham letter] to the British Adviser,

with a copy to the Chief Secretary, Federation of Malaya, it was to the

latter that the taskof replying feil" (CR 2007/29, 36 (para. 8)).

2. As the Malaysian Attorney-General recalled during his oral presentation on

22 November 2007, Singapore asserted that, in 1953, Johor "was a

sovereign State under international law", 2 and that the Acting State

Secretary of Johor was "the highest civil servant in charge of the State's

administrative matters". 3 Singapore thus sought to imply that bath Johor

and its State Secretary were renouncing, disclaiming or confirming part of

CR 2007/26, 52 (paras. 57, 59).
2 CR 2007/30, 14 (para 7) quoting Professor Koh, CR 2007/29, 58 (para 6).
3 CR 2007/30 14 (para 7) referring to Professor Pellet, CR 2007/29, 46 (para 14). the territories of Johor. What the Attorney-General said was responsive to

these remarks.

Lack of clarity with Singapore's argument

3. At the outset, it must be stressed that the precise character of Singapore's

reliance on the 1953 latter is quite unclear. Singapore expressly states

that the latter did not amount to a cession of territory: 4 this confirms the

statement repeated during oral argument that the 1953 latter was not a

5
"root of title". Nor does Singapore argue that the latter amounted to a

"renunciation" or "abandonment" of title by Johor; 6 nor that the latter

7
"confirmed Singapore's title to territory".

4. There is an evident confusion and self-contradiction in the Singapore

Response since, in the sentence immediately following the deniai that the

latter "confirmed Singapore's title to territory" the Response goes on to say

that "the latter had the effect of confirming Singapore's title to Pedra

8
Branca" (emphasis added). lt is unclear what Singapore is saying: is it

that the 1953 latter does not confirm or does confirm Singapore's claim to

Pulau Batu Puteh? If it does not confirm Singapore's title it is difficult to

see how that the latter assists its case. If, on the other hand, the latter is

said to confirm Singapore's claim, it is difficult to see how the words that

4 Response, para. 3, third sentence.
5 E.g.,CR 2007/29, 39 (para 16) (Pellet).
6
7 Response, para. 8, fourth sentence.
8 Ibid., fifth sentence.
Response, para. 8, sixth sentence.

2 Johor "does not claim ownership of Pedra Branca" can be converted into a

positive acknowledgement that Singapore has sovereignty over the island.

5. The repeated use by Singapore of the word "disclaimer" to describe the

Johor reply cannat give that latter a legal quality which it does not

possess. Insistance on the word "disclaimer" necessarily implies

acknowledgement that the party "disclaiming" possesses a title to disclaim.

The Higham letter

6. The language used by the Higham latter is not the language of a State that

is claiming sovereignty over an area of land territory. The Higham latter

does not claim or assert sovereignty over PBP, whether expressly or by

implication. lndeed, it makes no hint at ali of any claim to British

sovereignty over PBP. If, in 1953, Great Britain considered that it had any

claim to sovereignty over PBP, this would undoubtedly have been

reflected in the latter. But in fact the latter merely asked Johor to inform

the writer"whether there is any document showing a lease or grant of the

rock".

Constitutional position of Johor

7. Clause 16 and the Second Schedule to the Federation Agreement confirm

that the executive authority of the Federation of Malaya extended to

certain "defence and external affairs" matters, including "obligations of the

Federation in relation to the British Empire and any part thereof'. Clause

3 17 of the Federation Agreement provides that "the executive authority of

the Federation shall be exercised by the High Commissioner either directly

or through officers subordinate to him". Singapore makes no comment in

relation to these provisions in its response. Singapore similarly makes no

comment in relation to the Malaysian Attorney-General's observation that

Johor was a protected State by virtue of the Johor Agreement. The British

Protectorates, Protected States and Protected Persans Order in Council

1949 identified Johor as a British protected State. 9 Singapore fails to

address the consequences of Johor's status as a protected State for

Singapore's assertion that Johor was capable of dealing with matters of

external affairs and territorial sovereignty. lt is in this context that the

response to the Higham latter must be understood. A declaration by the

Acting State Secretary of Johor to the affect that Johor had no claim to

sovereignty over PBP (thus implying that Singapore was able to claim

sovereignty over PBP) would clearly have constituted a matter of "external

affairs", falling beyondthe authority and legal capacity of Johor.

8. There is an inherent inconsistency in paragraphs 10 and following of the

Singapore Response. Singapore argues that the requirement in the Johor

Agreement that Johor will not enter into any engagement or consult on

political matters with any foreign State could not apply to correspondance

with Britain or Singapore. The Attorney-General did not argue, as

9 In 1953 Johor was a protected State by virtue of the Johor Agreement. The British Protectorates,
Protected States and Protectedns Order in Counci11949, Schedule 2, identified Johor under the list of
"Malay States" as a British protected State and designated as its authority "the High Commissioner for the
FederationfMalaya": Statutmy Instruments, 1949 (London: HMSO, 1950), vol. 1,522, 526.

4 suggested by Singapore, 10 that Britain was a "foreign State" for the

11
purpose of Clause 3(2) of the Johor Agreement. The fact that the same

State was the protector State of the Federation of Malaya (which included

Johor) and the colonial ruler of Singapore does not mean, however, that

any colonial authority of any colonial entity being part of the British Empire

had the capacity to enter into discussions having binding results with any

entity being part of the Federation of Malaya. Moreover, it was the evident

intention of the Johor Agreement that Johor should not be able, inter a/ia,

to dispose of any part of its territory without the knowledge and consent of

the British Crown. This was a significant fetter on the sovereignty of

Johor. As explained by the Attorney-General, by virtue of the Second

12
Schedule this fetter would operate as regards a renunciation of title even

in favour of the British Empire. 13 A disclaimer of territorial sovereignty by a

protected State in favour of the protecting State is not something to be

dealt with in the manner Singapore attributes to the 1953 letters.

9. Paragraph 11 of the Response seeks to dispose of the reservation to the

Federation, in the Federation Agreement, of competence over "External

Affairs" by asserting that the concept of "External Affairs" did not apply to

what, in this case, Singapore asserts is "a disclaimer" of title to territory.

No authority is cited or examples given to support the very broad

contention that "the term 'External Affairs' appearing in constitutions of the

Commonwealth is imprecise in meaning and has been differently

10
Il Response, para. 9-10.
CR 2007/30, 15 (para 10-12).
12 Tab 163, Vol. 5f Malaysia's Judges' Folder.
13 CR 2007/30, 16 (para 16).

5 interpreted in different jurisdictions and at different periods of time".

Moreover, it runs counter to the obvious point that correspondance with

another government relating to title to territory falls within the concept of

"external affairs". Nor is the Singapore argument in any way supported by

invoking the provision of the Federation Agreement relating to

interpretation. The fact that there had not been an interpretation of

"External Affairs" by the Interpretation Tribunal provided for in that

Agreement does not mean that that expression cannat be given its

ordinary and natural meaning.

Practice of the parties

1O. At paragraph 12 of its response, Singapore asserts that "during the period

when the Federation Agreement was in force, Johor officiais continued to

correspond routinely with their counterparts in Singapore on matters under

their charge". Thisis true. lndeed, the 1953 correspondence provides an

example, since it commented upon issues of private property rights that

feil within the Acting State Secretary's authority and legal capacity.

However, Singapore has provided no evidence that, during the period

concerned, Johor officiais corresponded with counterparts in Singapore on

matters relating to "external affairs" or territorial sovereignty. Certainly,

none of Singapore's three examples at paragraph 12 support this

proposition. The first example relates to the continuation of a commercial

contract for the supply of water from Johor to Singapore dating back to

1927. The second example concerns correspondence relating to defence

matters between the Chief Police Officer of Johor and his counterpart in

6 Singapore. Consistent with the reservation in the Federation Agreement

as regards defence matters, the Chief Police Officer of Johor was an

officer of the Federation, not Johor. The third example concerns

communications by the Johor Harbour Master and the Johor Control of

Supplies. Again, these officers were officers of the Federation stationed in

Johor. They were not officers of Johor.

11. lndeed, it is notable that, between 1947 and 1949, it was the Malayan

Union, and subsequently the Federation, not Johor, that negotiated

outstanding boundary issues between Johor and Singapore under the

Straits Settlements and Johore (Territorial Waters) 1927. 14 Like the

question of sovereignty over PBP, these outstanding boundary issues

clearly did relate to "external affairs". ln principle, issues of sovereignty

over the territory of a protected State necessarily have an external aspect.

Restrictive interpretation of unilateral acts

12. Furthermore, as regards paragraphs 14 and 15, the absence of any

adverse comment by senior British officiais is just as much a "certain"

indication of their views that the letter didnot affect title to the island, as

the opposite interpretation that Singapore seeks to put upon their silence.

14 See Letters relating to the subject on the Johore-Singapore Boundary dated 25 November 1947, 3
December 1947,31 December 1947,27 May 1948, 8 December 1949: Annex hereto.

7 13. Finally, as regards paragraphs 16 and following, Malaysia recalls how the

Court dealt with the effect of unilateral acts of a State in the Nuclear Tests

case: 15

"44. ...[N]ot ali unilateral acts imply obligation: but a State may

choose to take up a certain position in relation to a particular matter

with the intention of being bound - the intention is to be ascertained by

interpretation of the act. When States make statements by which their

freedom of action is to be limited, a restrictive interpretation is ca/led

for."(emphasis added) 16

This is true a fortioriwhen the correspondence concerns the relations

between a protected State and an organ of the protecting State.

14. lt is appropriate to recall that the 1953 letter cannat have any relevance

once the Court has determined that Johor had title to Pulau Batu Puteh in

1847, that the island was not terra nu/lius at that time and that no conduct

of Britain in the years 1847-1851 deprived Johor of its title. Everything

after 1851 confirms the position, in particular since neither Great Britain

nor Singapore ever claimed title to PBP in the period prior to the critical

date - a fact not affected in any way by the 1953 letter.

15. Even assuming that the letter referred to sovereignty instead of

"ownership" (quod non), even neglecting (which is not possible) that it was

an answer to a request containing an essential error havingthe capacity of

15 ICJ Reports 1974p.253, 267.
16 See to shnilar effect the ILC's Guiding Princip/es applicable to unilateral declarations of States
capable of creating legal obligations, Principle 7 (A/61/10 (2006)).

8 inducing a wrong answer, even disregarding (which is not possible) the

fact that subsequent conduct of the parties was inconsistant with

Singapore's current claim as to the effect of the 1953 exchange of letters,

the result would still be the same as the Chamber of the Court found in the

Frontier Case (Benin/Niger) with regard to the letter by M. Reynier,

17
Governor by interim of Niger of 24 August 1954, viz., the

correspondance would be without legal incidence.

Respectfully submitted,

Z4Y
Noor FarictaAriffin
Co-Agent of Malaysia

7 December 2007

17
See Frontier Dispute (Benin/Niger), Jud2005122-125 (paras. 57-66).

9 ANNEX

to Malaysia's Comments on Singapore's Response
to Judge Keith's Question of 23 November 2007

Letters relating to the subject on the Johore-Singapore Boundary
dated 25 November 1947, 3 December 1947,cember 1947,
27 May 1948 and 8 December 1949 otth Yi. 0t tblGc;ve of ~ie~.gn~t.pnoŒre.:
e e1IS ResidentConrnissioner
aŒerdmento .ArticlI Di'thaS't;;raf:\attleoeni;a

am Job.Or(~torial u-nters~t l927-.~

.y theSl.lr'V'e~ int.a attaabodoq>yoe an

«Etraot :f'hislstter No.{5) inS.G.575/47•

'l'he Hon'bthe ColoniaSecreta:1'Singapore

St:cretorto ResidenCormnissionerJohore..' Extract trorn oopy ~ a J,etter .tan SurveyŒ.-General - No. (54-)

"' in U.U.ll324/4-7 .- No.5 in .............
... ........,......---
.. "
x x x
3. ..:t~a d.ttsltodh~wtt to, r~f eorthe Straits Settl~nts
and Johore {f6r.ritorioel lratc:traAgreetŒnt dntod l9th Oot 192:/ -
Notifiee. tien No. 1580in s.s.Ga..wtte .no56 of l7th .A.ugu.o19~ •·
Artiole I cf this Agt-eemontdeaoribos tho bounia:t"Jbeneen Jobo.re.
and.Singapore a.athe centro ot the d~Zl water channel in Johore
Strdt.

4-• This deep-wat ohalmel is liable to oha.nge ita po!dtiŒl
and elthouflh auQho~ea autaaatio:ül.Y alter the pbysiotù
position of ths.b~ 1·they are not o~ materiel signi:t'iceneo.­
That'e is hO"l'Jt:Dr.land.link betwean Johore and Singaporo e.t tbC
Oa.useway. ·/!.tsr u can -ba·iÙsŒrtuined., the Johore•Singa_pore
boutXl.ary~ never 'bec!ndef'ined at tt- ~sint although it ia
generally. B.Ol8pted.as be'!.nmerlŒd by e.oor:oretel pillnron the
Western parapet equidistant !'rtrboth ghore~.
5• I am thor~!o re.:1raot.o .attnoh i'or your conai.deti&tion,.
a auggaatad œe~t to .JI.rticIe of the A.greemŒ1 thioh will ·.
hàve ths ·ë:f'feot of preoi!seldesoribing the bc.undary in the
vioinity of the Oausne.y. Tm ef"tooto'f thiaomcu:dment, if aoŒpt­
c;td, willbe to dotetmine the bOWldary for e.distanoe of 100 ~
on both sides of the C~ewey trom the pres-ent bou.n.d.nrypillsr
anl thus preso.t'ibe tM sphŒ-eJSof responsibili ty by both adrninis•
tratioru; fer st.ruoturalmainte1lal1COeto. The boun:lary at this
point 'Will ~ una.ffeoted by ohlulgeain the d.eep-wate:r chal"'MJ..

6, I amturtoor to s'tate that this proposed emend.mcmt1•
· m.tbnitte·as e,Œ.atte:r ofteoblrl.oa·:S.n+..ar'y this DepartŒe.nt
and it lJAa not been disou.soed with the l\iiDlini~t .frohtoron
e.ndSingaporé or with toohnioal DePBl.~n tosoerned witb
ccm:n'W'lioa.tions athe Ca\.15~ struot\lt'e.

x xDep~tyChiefSecretary,
Malay an cm,
JÇualLumpur.

· ·Boundarbetv1eJohoreand· fjipgap.ore •

I âmdirect~t·;cknovtleùgreceipof
-your ·let ter(2) in J..:U. 12dateci

25/11/47and toinformyouth~ the Resident··~
....
Commi:ssionel"· with .the :proparnendment.

Iam, Sir,

1
Yot~o l, int

RESIDENT C MJl.ISSIOlffiR· JOHORE•

.~17:
J§HCft/bp~,U.~O.......-.A'i'~
4 qEC1947 1i:•.f·to,rc~ollot~'i"ll
·lrller,or'terqlk>•thî1 Clin:lin,;e'::s::~:' ffi:t:e;

\
S1'~ · - ~- · '· ~··· ~· ."1- 4·?l .!~~~cembar,

The Deputy ChierSecretar71
Ms.layaUnion,
Kuala. Lwn;.•r

Sir,
I amdireetad to rere:rtoyour latter No.-(2)'
in M.U.l2043/47datad 25th Novembar,~ and to
state tha.tthepoint made by theS<aQ "•General
is not consideredauff1ciently1mportant.to justity
B.Dl3nd1ngan ImperiaAct. The actdaals witb
territol'iawa.tel"s andir 1tever becatΠnecessary,
the ~rangements for dividing th~responsib111t1ps
for ma1nta.in1nthe oausewayoould be JU)dif1edso
aa to conformwitb the provisionsof the Act. In
,._fj\po fn act, as your correspondance(5) in M.u.
pX/' 915·/47 shows,the se arra.ngemlnhave in the pe.st
~ the. partieconcar.ned •.Thereseems no raasonoto
suppose thatfuture ~rangements will not follow
the seme pr1nc1ple.

I ~ Sir,
Your obedient servant,

/ri~-
tlool Socrtai7,~
{ Sin gapore. / ;). {' ()·1( ..·;

~~B/Ali.. • flo.14 in S.G.575/47 •

..... ...
'~... u 1...~•_\­._
27th .:; '-··l ' .

The L"::.:1.....rd.e!' .Secret~!r·,,.1
The Secret;.r1F.t,
Kual a LumDur.

StF.te B.-;undrry Johore .. - Sin~....-rorr.

Sir, ·'

]: hBve the honour t.o ref ~ tc. my

(5) in S. G,5?5/47 deted 15th November

J.8~ 7nd to m!"?kean enqui:r .;;' to the
'

po si t:lon nc7i.

I h;:-.ve the hcnour tc be,
~J:.~

Your cbedient serv~nt,

(- • .•·•lU"·~'-'jv
Stlr,reycr GenerF~ tl
· H.::~l .eya ~ ·.J~ti-?!Jt~-?
\.
CH/lii~ ,No: (18 )inS.•G. 575(4 • .~
......·. SURVEY DEPAR'TMÈ.N'·,
MÂLAYÀ:·

. MKIJALA. LUMPUif.
pO.llO• 0115.

8th tecembiH', 1949.

'l'he~put~, Chief Becretal·y,
Federal Bec~eta~iat,
KualEl L,.11!1l_nur:.

I am directed to invite you.l"'

reference to yc:.)ttfj.le r:U .12043/47
..
and t? .enquil' \.~t:ther thel.e have 'h€0n.

any a~velopwent ssnce your cinute of

3,6,48 was w~itten •

...
•!•TO.BL~)
urv~yQr.General,
·.ffiLAYA.