Malaysia's comments on Singapore's written response to the question put by Judge Keith to the Parties at the public sitting held on 16 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 16 November 2007

Malaysia makes the following comments:

1. Malaysia agrees that the statement of law in the Court of Appeal judgment

was not necessary to the disposai of the appeal. lt is, therefore, obiter.

2. lt is not correct, as suggested by Singapore, that the judgments of the Judicial

Committee of the Privy Council are signific?nt because they did not seek to

disturb the statement of law by the Court of Appeal. The silence of the Privy

Council in this respect is not significant one way or another on this question

but merely confirms that the mode of acquisition of title was not relevant in the

case. For the Privy Council, the status of Pitcairn Island was determined by

the unequivocal statement of the British Crown, in accordance with the

principle articulated by the Court of Appeal in The Fagernes [1927] P 311; 3

ILR 126.

3. Contrary to what Singapore alleges in the second observation of paragraph 4

of its Response, the Court of Appeal does not support Singapore's views

regarding British practiceand the status of public international law related tothe acquisition of territory. As Malaysia explained, there was a formai taking

of possession of Pitcairn on .behalf of the British Crown in 1838 (see CR

2007/27, 50-51 (para. 14)) and the Court of Appeal referred toit (CR 2007/30,

50 (para. 5)). Moreover, the second observation by Singapore faits to reflect

the crucial second sentence of the Court of Appeal's dictum, namely, that "it is

the intention of the Crown gathered from its own acts and surrounding

circumstances that determines whether a territory has been acquired for

English law purposes." As Malaysia has demonstrated, neither the "acts" nor

the "surrounding circumstances" evidence any intentionon the part of the

Crown to acquire Pulau Batu Puteh.

Respectfully submitted,

~~"-~~
/ ./.
Noor Farida ~riffin

Co-Agent of Malaysia

7 December 2007