Non-Corrigé
Uncorrected
CR 2007/24
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2007
Public sitting
held on Tuesday 13 November 2007, at 10 a.m., at the Peace Palace,
Vice-President Al-Khasawneh, Acting President, presiding
in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh,
Middle Rocks and South Ledge
(Malaysia/Singapore)
________________
VERBATIM RECORD
________________
ANNÉE 2007
Audience publique
tenue le mardi 13 novembre 2007, à 10 heures, au Palais de la Paix,
sous la présidence de M. Al-Khasawneh, vice-président,
faisant fonction de président
en l’affaire relative à la Souveraineté sur Pedra Branca/Pulau Batu Puteh,
Middle Rocks et South Ledge
(Malaisie/Singapour)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Vice-President Al-Khasawneh, Acting President
Judges Ranjeva
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judges ad hoc Dugard
Sreenivasa Rao
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : M. Al-Khasawneh, vice-président, faisant fonction de président en l’affaire
RaMjev.
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Sjoteiskov,
Dugard.
Sreenivasa Rao, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Malaysia is represented by:
H.E.Tan Sri Abdul Kadir Mohamad, Ambassado r-at-Large, Ministry of Foreign Affairs of
Malaysia, Adviser for Foreign Affairs to the Prime Minister,
as Agent;
H.E. Dato’ Noor Farida Ariffin, Ambassador of Malaysia to the Kingdom of the Netherlands,
as Co-Agent;
H.E. Dato’ Seri Syed Hamid Albar, Minister for Foreign Affairs of Malaysia,
Tan Sri Abdul Gani Patail, Attorney-General of Malaysia,
Sir Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International Law, University of
Cambridge, member of the Institut de droit inte rnational, member of the Permanent Court of
Arbitration,
Mr.James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, member of the Institut de droit international,
Mr.Nicolaas Jan Schrijver, Professor of Public In ternational Law, Leiden University, associate
member of the Institut de droit international,
Mr. Marcelo G. Kohen, Professor of International La w, Graduate Institute of International Studies,
Geneva, associate member of the Institut de droit international,
Ms Penelope Nevill, college lecturer, Downing College, University of Cambridge,
as Counsel and Advocates;
Datuk Azailiza Mohd Ahad, Head of Interna tional Affairs Division, Chambers of the
Attorney-General of Malaysia,
Datin Almalena Sharmila Johan Thambu, Deputy Head 1, International Affairs Division, Chambers
of the Attorney-General of Malaysia,
MsSuraya Harun, Senior Federal Counsel, Inte rnational Affairs Division, Chambers of the
Attorney-General of Malaysia,
Mr. Mohd Normusni Mustapa Albakri, Federal Coun sel, International Affairs Division, Chambers
of the Attorney-General of Malaysia,
Mr. Faezul Adzra Tan Sri Gani Patail, Federal C ounsel, International Affairs Division, Chambers
of the Attorney-General of Malaysia,
MsMichelle Bradfield, Research Fellow, Lauterpach t Centre for International Law, University of
Cambridge, Solicitor (Australia),
Coausnsel; - 5 -
Le Gouvernement de la Malaisie est représenté par :
S. Exc.M. Tan Sri Abdul Kadir Mohamad, ambass adeur en mission extrao rdinaire, ministère des
affaires étrangères de la Malaisie, conseille r auprès du premier ministre pour les affaires
étrangères,
comme agent ;
S. Exc.Mme Dato’ Noor Farida Ariffin, ambassadeur de la Malaisie auprès du Royaume des
Pays-Bas,
comme coagent ;
S. Exc. M. Dato’ Seri Syed Hamid Albar, ministre des affaires étrangères de la Malaisie,
M. Tan Sri Abdul Gani Patail, Attorney-General de la Malaisie,
Sir Elihu Lauterpacht, C.B.E., Q.C., professeur honorai re de droit international à l’Université de
Cambridge, membre de l’Institut de droit inte rnational, membre de la Cour permanente
d’arbitrage,
M. James Crawford, S.C., F.B.A., professeur de dr oit international à l’Université de Cambridge,
titulaire de la chaire Whewell, membre de l’Institut de droit international,
M. Nicolaas Jan Schrijver, professeur de droit international public à l’Université de Leyde, membre
associé de l’Institut de droit international, membre de la Cour permanente d’arbitrage,
M. Marcelo G. Kohen, professeur de droit interna tional à l’Institut universitaire de hautes études
internationales de Genève, membre associé de l’Institut de droit international,
Mme Penelope Nevill, chargée de cours au Downing College de l’Université de Cambridge,
comme conseils et avocats ;
Datuk Azailiza Mohd Ahad, chef du département des affaires internationales, cabinet de
l’Attorney-General de la Malaisie,
Mme Datin Almalena Sharmila Johan Thambu, pr emière adjointe au chef du département des
affaires internationales, cabinet de l’Attorney-General de la Malaisie,
Mme Suraya Harun, conseiller fédéral principal au département des affaires internationales, cabinet
de l’Attorney-General de la Malaisie,
M. Mohd Normusni Mustapa Albakri, conse iller fédéral au départ ement des affaires
internationales, cabinet de l’Attorney-General de la Malaisie,
M. Faezul Adzra Tan Sri Gani Patail, conseiller fédéral au département des affaires internationales,
cabinet de l’Attorney-General de la Malaisie,
Mme Michelle Bradfield, Research Fellow au Lauterpacht Research Center for International Law
de l’Université de Cambridge, Solicitor (Australie),
comme conseils ; - 6 -
Dato’ Haji Abd. Ghaffar bin Abdullah, Deputy State Secretary of Johor (Administration),
Mr.Abd. Rahim Hussin, Under-Secretary, Maritime Security Policy Division, National Security
Council, Department of the Prime Minister of Malaysia,
Mr.Raja Aznam Nazrin, Under-Secretary, Adjudi cation and Arbitration, Ministry of Foreign
Affairs of Malaysia,
Capt. Sahak Omar, Director General, Department of Hydrography, Royal Malaysian Navy,
Mr. Tuan Haji Obet bin Tawil, Deputy Director 1, Land and Mines Office of Johor,
Dr.Hajah Samsiah Muhamad, Director of Acqui sition, Documentation and Audiovisual Centre,
National Archives,
Cdr. Samsuddin Yusoff, State Officer 1, Department of Hydrography, Royal Malaysian Navy,
Mr.Roslee Mat Yusof, Director of Marine, Nort hern Region, Marine Department Peninsular
Malaysia,
Mr.Azmi Zainuddin, Minister-Counsellor, Embassy of Malaysia in the Kingdom of the
Netherlands,
Ms Sarah Albakri Devadason, Principal Assistant Secretary, Adjudication and Arbitration Division,
Ministry of Foreign Affairs of Malaysia,
Mr. Mohamad Razdan Jamil, Special Officer to the Minister for Foreign Affairs of Malaysia,
MsHaznah Md. Hashim, Principal Assistant Secr etary, Adjudication and Arbitration Division,
Ministry of Foreign Affairs of Malaysia,
as Advisers;
Professor Dato’ DrS. haharil Talib, Head of Special Research Unit, Chambers of the
Attorney-General of Malaysia,
as Consultant;
Mr.Tan Ah Bah, Director of Survey (Boundary Affairs Section), Department of Survey and
Mapping,
Professor Dr.Sharifah Mastura Syed Abdullah, Dean of the Faculty of Social Sciences and
Humanities, National University of Malaysia,
Professor Dr. Nik Anuar Nik Mahmud, Director of the Institute for Malaysian and International
Studies, National University of Malaysia,
Mr. Ahmad Aznan bin Zakaria, Principal Assistant Director of Survey (Boundary Affairs Section),
Department of Survey and Mapping, - 7 -
M. Dato’Haji Abd. Ghaffar bin Abdullah, secrétaire d’Etat adjoint du Johor (administration),
M. Abd. Rahim Hussin, sous-secrétaire au département de la politique de sécurité maritime, conseil
de la sécurité nationale, services du premier ministre de la Malaisie,
M. Raja Aznam Nazrin, sous-secrétaire au département de la justice et de l’arbitrage, ministère des
affaires étrangères de la Malaisie,
Le capitaine Sahak Omar, directeur général du service hydrographique de la marine royale
malaisienne,
M. Tuan Haji Obet bin Tawil, premier directeu r adjoint du bureau du territoire et des mines du
Johor,
M. Hajah Samsiah Muhamad, directeur des acquisitions, centre de documen tation audiovisuel des
archives nationales,
Le commandant Samsuddin Yusoff, premier officier d’état-major du service hydrographique de la
marine royale malaisienne,
M. Roslee Mat Yusof, directeur de la marine pour la région septentriona le, département de la
marine de la Malaisie péninsulaire,
M. Azmi Zainuddin, ministre conseiller à l’ambassade de la Malaisie au Royaume des Pays-Bas,
Mme Sarah Albakri Devadason, secrétaire adjointe pr incipale au département de la justice et de
l’arbitrage, ministère des affaires étrangères de la Malaisie,
M. Mohamad Razdan Jamil, assistant spécial du ministre des affaires étrangères de la Malaisie,
Mme Haznah Md. Hashim, secrétaire adjointe prin cipale au département de la justice et de
l’arbitrage, ministère des affaires étrangères de la Malaisie,
comme conseillers ;
M. Dato’ Shaharil Talib, professeur, directeur du service des études spéciales du cabinet de
l’Attorney-General de la Malaisie,
comme consultant ;
M. Tan Ah Bah, directeur de la topographie, ser vice des frontières, département de la topographie
et de la cartographie,
Mme Sharifah Mastura Syed Abdullah, professeur, doyenne de la faculté des sciences sociales et
humaines de l’Université nationale de la Malaisie,
M. Nik Anuar Nik Mahmud, professeur, directeur de l’Institut d’études malaisiennes et
internationales de l’Université nationale de la Malaisie,
M. Ahmad Aznan bin Zakaria, directeur adjoint pr incipal de la topographie, service des frontières,
département de la topographie et de la cartographie, - 8 -
Mr.Hasnan bin Hussin, Senior Technical Assist ant (Boundary Affairs Section), Department of
Survey and Mapping,
as Technical Advisers.
The Government of the Republic of Singapore is represented by:
H.E. Mr. Tommy Koh, Ambassador-at-Large, Mini stry of Foreign Affairs of the Republic of
Singapore, Professor of Law at the National University of Singapore,
as Agent;
H.E. Mr. Anil Kumar s/o N T Nayar, Ambassador of the Republic of Singapore to the Kingdom of
the Netherlands,
as Co-Agent;
H.E. Mr. S. Jayakumar, Deputy Prime Minister, Co -ordinating Minister for National Security and
Minister for Law, Professor of Law at the National University of Singapore,
Mr. Chan Sek Keong, Chief Justice of the Republic of Singapore,
Mr. Chao Hick Tin, Attorney-General of the Republic of Singapore,
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, Chairman of the United
Nations International Law Commission, Emeritus Chichele Professor of Public International
Law, University of Oxford, member of the Institu t de droit international, Distinguished Fellow,
All Souls College, Oxford,
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of
the United Nations International Law Commission, associate member of the Institut de droit
international,
Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris, member of the New York Bar,
Frere Cholmeley/Eversheds, Paris,
Ms Loretta Malintoppi, avocat à la Cour d’ap pel de Paris, member of the Rome Bar,
Frere Cholmeley/Eversheds, Paris,
as Counsel and Advocates;
Mr. S. Tiwari, Principal Senior State Counsel, Ch ambers of the Attorney-General of the Republic
of Singapore,
Mr. Lionel Yee, Senior State Counsel, Chambers of the Attorney-General of the Republic of
Singapore,
Mr. Tan Ken Hwee, Senior Assistant Registrar, Supreme Court of Singapore
,
Mr. Pang Khang Chau, Deputy Senior State Counsel, Chambers of the Attorney-General of the
Republic of Singapore,
Mr. Daren Tang, State Counsel, Chambers of the Attorney-General of the Republic of Singapore, - 9 -
M.Hasnanbin Hussin, assistant technique principal du service des frontières, département de la
topographie et de la cartographie,
comme conseillers techniques.
Le Gouvernement de la République de Singapour est représenté par :
S. Exc. M. Tommy Koh, ambassadeur en mission ex traordinaire (ministère des affaires étrangères
de la République de Singapour), professeur de droit à l’Université nationale de Singapour,
comme agent ;
S. Exc. M. Anil Kumar s/o N T Nayar, ambas sadeur de la République de Singapour auprès du
Royaume des Pays-Bas,
comme coagent ;
S. Exc. M. S. Jayakumar, vice-premier ministre, mini stre coordinateur pour la sécurité nationale et
ministre de la justice, professeur de droit à l’Université nationale de Singapour,
M. Chan Sek Keong, Chief Justice de la République de Singapour,
M. Chao Hick Tin, Attorney-General de la République de Singapour,
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre du barreau d’Angleterre, président de la
Commission du droit international des Nations Un ies, professeur émérite de droit international
public (chaire Chichele) à l’Univer sité d’Oxford, membre de l’In stitut de droit international,
Distinguished Fellow au All Souls College d’Oxford,
M. Alain Pellet, professeur à l’Université de ParisX-Nanterre, membre et ancien président de la
Commission du droit international des Nations Unies, membre associé de l'Institut de droit
international,
M. Rodman R. Bundy, avocat à la Cour d’appel de Paris, membre du barreau de New York, cabinet
Frere Cholmeley/Eversheds, Paris,
Mme Loretta Malintoppi, avocat à la Cour d’appel de Paris, membre du barreau de Rome, cabinet
Frere Cholmeley/Eversheds, Paris,
comme conseils et avocats ;
M. S. Tiwari, Principal Senior State Counsel au cabinet de l’Attorney-General de la République de
Singapour,
M. Lionel Yee, Senior State Counsel au cabinet de l’ Attorney-General de la République de
Singapour,
M. Tan Ken Hwee, premier greffier adjoint de la Cour suprême de Singapour,
M. Pang Khang Chau, Deputy Senior State Counsel au cabinet de l’ Attorney-General de la
République de Singapour,
M. Daren Tang, State Counsel au cabinet de l’Attorney-General de la République de Singapour, - 10 -
Mr. Ong Chin Heng, State Counsel, Chambers of the Attorney-General of the Republic of
Singapore,
Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University
of Paris X-Nanterre,
as Counsel;
Mr. Parry Oei, Chief Hydrographer, Maritime and Port Authority of Singapore,
Ms Foo Chi Hsia, Deputy Director, Ministry of Foreign Affairs, Republic of Singapore,
Mr. Philip Ong, Assistant Director, Ministry of Foreign Affairs, Republic of Singapore,
Ms Yvonne Elizabeth Chee, Second Secretary (Political), Embassy of the Republic of Singapore in
the Netherlands,
Ms Wu Ye-Min, Country Officer, Ministry of Foreign Affairs, Republic of Singapore,
as Advisers. - 11 -
M. Ong Chin Heng, State Counsel au cabinet de l’ Attorney-General de la République de
Singapour,
M. Daniel Müller, chercheur au centre de droit in ternational de Nanterre (CEDIN), Université de
Paris X-Nanterre
comme conseils ;
M. Parry Oei, hydrographe en chef de l’autorité maritime et portuaire de Singapour,
Mme Foo Chi Hsia, directeur adjoint au ministère des affaires étrangères de la République de
Singapour,
M. Philip Ong, sous-directeur au ministère des affaires étrangères de la République de Singapour,
Mme Yvonne Elizabeth Chee, deuxième secrétaire (affaires politiques) à l’ambassade de la
République de Singapour aux Pays-Bas,
Mme Wu Ye-Min, chargée de mission au ministère des affaires étrangères de la République de
Singapour,
cocomnseillers. - 12 -
The VICE-PRESIDENT, Acting President: Please be seated. The sitting is open. The Court
meets today to hear the first round of oral argument of Malaysia. Let me recall that Malaysia will
conclude its first round of oral argument on Friday 16November, from 10a.m. to 1p.m. I shall
now give the floor to His Excellency Tan Sri Abdul Kadir Mohamad. You have the floor, Sir.
KMAr. IR:
1. Mr.President, distinguished Members of the Court, it is a great honour to appear before
you, and to take this opportunity to explain why sovereignty over Pulau Batu Puteh, Middle Rocks
and South Ledge belongs to Malaysia.
2. Mr.President, please allow me to thank the Agent of Singapore for his kind greetings to
my colleagues on the Malaysian team and to me personally on the opening day of these
proceedings. These greetings are fully reciprocated. Indeed, both of us have known each other for
a long time, as members of the diplomatic service of our respective countries.
3. Mr. President, Malaysia and Singapore are two neighbouring countries in south-east Asia,
which have mutually agreed to appear before this honourable Court to settle a dispute over the
three features, located at the eastern entrance of th e Singapore Straits, off the Malaysian peninsula,
as illustrated on the map that is now being displayed on the screen before the Court. You may also
see it in tab 1 of your folder.
4. Pulau Batu Puteh and the two other features form part of the State of Johor, now part of
Malaysia. The State of Johor has its origins in the ancient Sultanate of Johor. The current Sultan
of Johor, Sultan Iskandar Ibni Al-Marhum Sultan Ismail, is a direct descendant of one of the
signatories to the Treaty of Friendship and Alliance between Johor and Great Britain of
2 August 1824, also known as the Crawfurd Treaty, in which part of the territory of the Sultanate
was ceded to create Singapore. Singapore Island is nestled in the bottom of peninsular Malaysia.
At its closest point Singapore is only 600m from the Johor mainland. It is now shown on the
screen and can be found in tab 2 in the judges’ folder.
5. Singapore and Malaysia, together with Indon esia, today share the waters and management
of the Malacca and Singapore Straits, which link the Indian Ocean to the South China Sea.
Because of this geography, their genealogy and Br itish colonial history, Singapore and Malaysia - 13 -
share much in common. The graphic now on the screen shows the Malacca and Singapore Straits.
This will also be found in tab 3 of the judges’ folder . This is a current navigational chart, which is
readily available in the public domain.
6. The details of how this dispute arose and the efforts of the Parties to settle it will be
described to you by the Attorney-General of Malaysia later this morning.
7. But before looking at how, the Court may wonder why: why would two responsible
States be in such an acute and extended disagre ement about sovereignty over such small maritime
features?
8. Last week, the Court heard many arguments advanced in many ways by Singapore to
support its claim of sovereignty over Pulau Batu Puteh, Middle Rocks and South Ledge. But, all
these cannot hide the fact that Singapore is seek ing to subvert the arra ngements reached between
Johor and Great Britain over 150 years ago and ma intained throughout the whole period of British
rule. In its written pleadings, Malaysia has provi ded evidence that Johor had given permission that
Great Britain could build and operate a lighthouse on one of Johor’s islands. Pulau Batu Puteh was
selected as the site. Great Britain and then Si ngapore have operated the lighthouse ever since.
Singapore is now present on the island, as was Great Britain before it, with Johor’s consent.
Therefore, it matters a great deal to Malaysia wh en Singapore claims sovereignty over Pulau Batu
Puteh simply because it has been running a lighthouse on it with our consent.
9. Singapore’s claim also ignores the territorial agreements in the area reached in1824,
namely, the Anglo-Dutch Treaty between Britain and the Netherlands of 17March1824, and the
treaty which created the colony of Singapore, the Crawfurd Treaty of 2 August 1824.
10. Despite their extremely small size, the issu e of sovereignty of Pulau Batu Puteh and the
other two maritime features is important. Not only does it have implications for the territorial and
maritime stability of the Straits but the long-estab lished arrangement is important to the continued
co-operative management of navigational aids, marine environmental protection and safety matters
in the Straits.
11. Mr.President, distinguishe d Members of the Court, Malaysia’s case is clear and finds
full support in the evidence. - 14 -
12. As Malaysia has shown in her wr itten submissions, Pulau Batu Puteh was not
terra nullius in 1847. It was not terra nullius in 1851, when the East India Company completed the
construction of Horsburgh lighthouse on the island. Pulau Batu Puteh was part of the ancient
Sultanate of Johor, and when the Sultanate divided in two, after the Anglo-Dutch Treaty of 1824, it
remained part of the Sultanate of Johor rather than that of Riau-Lingga.
13. The Anglo-Dutch Treaty established that the division between the British and Dutch
spheres of influence would run to the south of th e Straits of Singapore. This placed Pulau Batu
Puteh in the British sphere of influence and in that part of Johor which continued to be known as
the Sultanate of Johor. The division between th e British and Dutch spheres is now illustrated on
the screen, as well as in tab 4 in the judges’ fold er. Last week, Singapore sought to present a new
interpretation of the dividing line. Tomorrow, ProfessorSchrijver will explain why the new
Singapore interpretation is wrong.
14. In the Crawfurd Treaty of 1824, Johor tr ansferred sovereignty over Singapore Island to
the East India Company together with islets and rocks within 10 geographical miles of Singapore.
Pulau Batu Puteh is 25.5 nautical miles away from Singapore.
15. In 1851, with the permission of Johor, the Horsburgh lighthouse was built on Pulau Batu
Puteh by the East India Company. Permissi on was given by the Temenggong and Sultan of Johor
on 25 November 1844 for the building and operation of a lighthouse “near Point Romania” or “any
spot deemed eligible”. As you can see on the gra phic that is now displayed on the screen, and in
tab 5 of your folder, Pulau Batu Puteh is near Point Romania.
16. Pulau Batu Puteh was certainly an “eligible spot” because of the difficulties of navigating
the waters at the eastern entrance to the Straits. In fact, Pulau Batu Puteh was the location of
choice of the merchant subscribers when they began collecting funds for a lighthouse in 1836.
17. It is on the basis of the consent of the Temenggong and Sultan of Johor that Great Britain
built and then operated the Horsburgh lighthouse on Pulau Batu Puteh.
18. Tomorrow, ProfessorKohen will analyse the letters of permission written by the
Temenggong and the Sultan of Johor on 25November1844. Malaysia has not been able to trace
the letter of request from Governor Butterworth which was referred to in the letters of permission.
In 1994, Malaysia requested Singapore to furnish a copy of the Governor’s letter if Singapore had - 15 -
such a copy in their possession. Singapore did not respond to Malaysia’s request. If this letter
exists today it is likely that it is in Singapore’ s archives in the file entitled “Letters to Native
Rulers”. Unfortunately, Malaysia does not have access to these archives.
19. Between 1850 and 1946, the Straits Lights system was developed by Britain to aid
navigation through the length of the Malacca and Singapore Straits. The graphic now on the
screen, and located at tab6 in the judges’ folder s, shows the lights in the Straits Lights system,
including the names of the various lighthouses. This was the list which appeared in the
1912 Ordinance of the Colony of Singapore which abolished light dues.
20. The Straits Lights system, including Horsburgh lighthouse, was administered by the
Straits Settlements. Each lighthouse was operated from one of the three stations in Singapore,
Penang and Malacca. From 1912, the Federated Malay States contributed to the running costs of
the Straits Lights when they stopped being funded by the collection of lights dues. But the Straits
Settlements kept maintaining the lights because they had the necessary expertise.
21. In 1946, when the Straits Settlements was dissolved and the colony of Singapore and the
Malayan Union created, the Straits Lights system ceased to be run as a single system. However,
the lighthouses continued to be operated from thei r original stations in the former Straits
Settlements. Pulau Pisang and Horsburgh lighthou ses continued to be run from Singapore, and the
others, such as Pulau Undan, Cape Rachado, Mu ka Head and Pulau Rimau were run from their
stations in Malacca and Penang both of which in 1946 formed part of the Malayan Union, and are
now part of Malaysia.
22. Today, Horsburgh lighthouse and Pulau Pisang lighthouse continue to be run from
Singapore, the others from Malaysia. Nothing has changed.
23. The authorities in Singapore simply picked up where the British left off, as did the
authorities in Penang and Malacca. The arrangement has worked for over 150 years.
24. The co-operation between the States which later became Malaysia and Singapore was not
limited to co-operation in the building of lighthouses and navigational aids.
25. Let me take the example of the Royal Malaysian Navy, previously referred to as the
Malayan Naval Force. It had responsibilities fo r Singapore until 1975 when Singapore established - 16 -
its own navy. The Royal Malaysian Navy continued to operate primarily from the Woodlands base
in Singapore until the early 1980s, and only handed over the Woodlands base to Singapore in 1997.
26. Before and after the creation of the Si ngapore navy, British and then Malaysian naval
forces patrolled the waters of the Straits, including the area of Pulau Batu Puteh.
27. Such co-operative arrangements ⎯ and there are many others, for example in the field of
communications and water supply ⎯ reflect not only our close historical ties but our ongoing
rights and obligations as the littoral States of the Malacca and Singapore Straits.
28. Malaysia and Singapore, together with I ndonesia, have co-operated for over 30 years in
the management of the Straits. On 16November 1971, all three countries joined forces to form a
common position on matters relating to the Straits of Malacca and Singapore, and created the
Tripartite Technical Experts Group on Safety of Navigation in the Straits of Malacca and
Singapore. This forum meets annually to discu ss technical issues relating to the safety of
navigation in the Straits.
29. Horsburgh lighthouse and its facilities form part of the multilateral régime for the safety
of navigation in the Straits, just as it was a key light in the Straits Lights system in the 1850s until
1946.
30. With traffic in the Straits expected to increase from 94,000 vessels in 2004 to 141,000 in
2020, the safety of navigation, maritime security and protection of the marine environment are key.
Ongoing co-operation in the Straits between the three littoral States is crucial.
31. Mr.President, Members of the Court, Singapore now seeks to disrupt the long
established arrangements in the Straits.
32. Singapore wants to radically change th e basis on which it acquired the lighthouse on
Pulau Batu Puteh and the character of its presence on the island.
33. Singapore is endeavouring to create for itself a maritime domain which is a far cry from
the basis of its presence on Pulau Batu Puteh as lighthouse administrator.
34. Singapore’s presence on Pulau Batu Pu teh as lighthouse operator never extended to
issues concerning the territorial waters or the con tinental shelf around Pulau Batu Puteh. In 1969,
Malaysia enacted legislation which extended its territorial sea from 3to 12nautical miles.
Singapore did not protest. Later in 1969, an agreement was reached between Malaysia and - 17 -
Indonesia in relation to the continental shelf. The delimitation line agreed between Malaysia and
Indonesia in 1969 is shown in the map now on the screen. The same graphic is provided as tab 7 in
the judges’ folder.
35. As you can see, the delimitation line approached the vicinity of Pulau Batu Puteh closely
and point11 is just 6.4nautical miles from Pu lau Batu Puteh. Singapore at no time asserted any
interest, raised any objection or reserved its position. Neither did Singapore delimit the area
around Pulau Batu Puteh or reserve its position in th at area of the Straits in the Territorial Sea
Boundary Agreement it concluded with Indonesia in 1973.
36. Singapore’s claim not only upsets the exis ting arrangements in this way but raises the
question of what it wants to do with the island. In its pleadings Singapore has relied on a
reclamation proposal around Pulau Batu Puteh. An internal document, a 1978tender evaluation
report, shows a prospective artificial island of 5,000 m 2 towards Middle Rock . This is not fanciful
conjecture. Singapore has an extremely active reclamation policy, which was the subject of the
Reclamation case instituted by Malaysia against Singapore in the International Tribunal on the Law
of the Sea (ITLOS) in September 2003. The provisional measures Order given by that Tribunal in
October2003 will be known to the Court, as well as the subsequent amicable settlement of that
case.
37. But Singapore does not need a bigger island for a better lighthouse. What does it need a
bigger island for? Quite apart from the possibl e effects on environment and navigation in the
Straits, this could lead to potentially serious ch anges to the security arrangements in the eastern
entrance to the Straits. In fact, the aggressive methods Singapore has used to assert its claim to
Pulau Batu Puteh have al ready led to regrettable ⎯ although not irreversible ⎯ changes to the
stable conditions in the area.
38. In 1986, well after the critical date, Singa pore sent its naval vessels to Pulau Batu Puteh
and has since then maintained a permanent, 24- hour guard around Pulau Ba tu Puteh. This has
created tension and danger. Johor fishermen have been chased away by Singapore forces from
their traditional fishing waters and sheltering spot s around Pulau Batu Puteh. Malaysian officials
1
MS, Vol. 6, Ann. 135. - 18 -
and naval vessels cannot go anywhere near Pulau Batu Puteh without being physically challenged
by Singapore naval vessels. In response to Singa pore’s actions, Malaysia has chosen to adopt a
policy of non-confrontation and to act in a peaceful manner while this dispute is in the process of
being settled. We have now learned through its pleadings that Singapore placed military
communications equipment on Pulau Batu Puteh inMay1977, which we were not previously
aware of and which causes us grav e concern. This conduct does not fall within the consent given
for the construction and operation of the lighthouse.
39. Great Britain’s and Singapore’s conduct in respect of Pulau Batu Puteh before the critical
date, at least that which was known to Malaysia, wa s entirely consistent with being the operator of
the lighthouses on Pulau Batu Puteh and Pulau Pisang with the consent of the sovereign, Johor.
40. Malaysia, by contrast, has always r espected the long-standing arrangements for
Singapore’s operation of the lighthouses on Pulau Ba tu Puteh and Pulau Pisang. We have not
interfered with Singapore’s operation of the lighthouses.
41. But Malaysia does not wish the stability of its relationship with Indonesia altered. Yet
this would inevitably follow if Si ngapore were to be treated as sovereign over Pulau Batu Puteh
with attendant implications for established maritime delimitation in the area.
42. Malaysia respectfully requests the Court to bear in mind these important considerations
and, accordingly, to reaffirm Malaysia’s title to Pulau Batu Puteh, Middle Rocks and South Ledge.
43. Mr.President, distinguished Members of the Court, before ending my submission, I
would like to clarify one point. Our problem is with Singapore as a military presence on one of
Johor’s islands in the eastern entrance of the Singapore Straits. We have no problem with
Singapore as the operator of Horsburgh lighthouse. Malaysia wishes to maintain the peaceful and
stable conditions at the entrance to the South China Sea. It is Singapore which is seeking to change
the situation. The Sultan and Temenggong of Johor, in 1844, gladly consented to the establishment
of the lighthouse on Pulau Batu Puteh, and Mala ysia has never suggested that its continued
operation by Singapore presented any problem. I repeat, Malaysia has always respected the
position of Singapore as the operator of Horsburgh lighthouse and I would like to place formally on
record that Malaysia will continue to do so. Malaysia’s concern is quite different, as I have
indicated. - 19 -
44. Mr.President, I wish to conclude here. After this, my colleague the Co-Agent will
describe to you the Sultanate of Johor’s geographi cal make-up, the political events which shaped
its territory, and Pulau Batu Puteh’s social and economic place in Johor and Malaysia.
45. Mr. President, distinguished Members of the Court, I thank you and would ask you now
to call on the Co-Agent of Malaysia, Her Excellency Noor Farida Ariffin.
The VICE-PRESIDENT, Acting President: I thank the Agent of Malaysia, His Excellency
Tan Sri Abdul Kadir Mohamad, and now call on th e Co-Agent, Her Excellency Dato’ Noor Farida
Arrifin. You have the floor.
Ms FARIDA:
G EOGRAPHICAL ELEMENTS AND EVOLUTION OF THE TWO S TATES
Introduction
1. Mr. President, Members of the Court, it is indeed a great honour for me to appear before
you again and to represent Malaysia as its Co-Agent in this case.
2. I wish to present to the Court a brief overview of the geographical composition of the
Sultanate of Johor relative to Pulau Batu Puteh, and the events which shaped its territory. You will
see that Pulau Batu Puteh fell within Johor’s territory and was frequently used by subjects of the
Sultanate of Johor.
Geographical overview
3. The extensive reach of the old Sultanate of Johor’s territory is recorded in the Malay
annals and confirmed in all eighteenth and early ni neteenth century descriptions of the Sultanate,
which ProfessorCrawford will take you through in more detail tomorrow. It was at one time a
2
large maritime empire, as you can see on the graphic shown .
4. The Sultanate of Johor’s territories extended to the north over Pahang and Johor in the
Malay Peninsula. From here they extended north -east out into the South China Sea, and included
all the islands in the sea out to the two Natuna Island groups which lie to the north-west of the
island of Borneo. The Sultanate included, to th e south, the Tambelan Island groups and to the
2
Judges’ folder, tab 8. - 20 -
south-west, the islands of the Riau-Lingga archipela go. It extended to the west, covering part of
the island of Sumatra and including two key rivers . The Sultanate covered all the islands within
this large area, including all those in the Singapore Straits, such as Pulau Batu Puteh and the islands
to the north and south of the Straits, taking in Singapore Island and the adjacent islands.
5. A large number of the islands within the te rritory of the Johor Sultanate are located in the
3
South China Sea well beyond Pulau Batu Puteh . The Anambas Islands lie 109 nautical miles from
the nearest Johor mainland; the Natuna Islands are further still, at 254 nautical miles from the
nearest Johor mainland; the Tambelan Islands are located 186 nauti cal miles from the mainland of
Johor.
6. Pulau Batu Puteh, sitting at the eastern entr ance of the Singapore Straits, lies right in the
middle of the old Sultanate of Johor, a mere 7.7 na utical miles from the Johor mainland. You get a
much better idea of how close Pulau Batu Pu teh is to the Johor mainland from this photo 4. It is
taken from the east-south-east of the island from the channel between Pulau Bintan in Indonesia
and Pulau Batu Puteh, and shows the Johor main land in the background behind the lighthouse.
This is Tanjung Penyusoh, also known as Point Romania, which is the name regularly used to refer
to it in the old documents. This is Mount Be rbukit, which appears in older records as “Mount
Barbucet”. It sits near the middle of this part of the peninsula, and has traditionally been a key
landmark for mariners who took their mark between Pulau Batu Puteh and Mount Berbukit or other
landmarks in the area to negotiate the entrances to the Singapore Straits.
7. Pulau Batu Puteh means white rock in Malay and was so named because of the bird
droppings which covered it. Its Portuguese name, Pedra Branca, also means white rock. The
Chinese also called it white rock, “Pia Chiao” in Chinese, as recorded on the Chinese WubeiZhi
5
sailing chart and instructions of 1621 . The French called it Pierre Blanche, in translation from the
Vietnamese envoy’s description of it in Vietnamese on his 1833 trip to Batavia 6, and on the
7
Bellin’s chart of 1755 . Everyone called it white rock in their own language, for the obvious
3Judges’ folder, tab 9.
4
Judges’ folder, tab 10.
5
RM, Vol. 2, Ann. 1.
6CMM, Vol. 3, Ann. 9, Bach Thach Cang, p. 46 (in original numbering).
7Carte réduite des détroits de Malaca, Sincapour, et du Gouverneur, MM, Map Atlas, map 3. - 21 -
reason that it was one. It is quite preposterous to say, as Singapore has, that the name
Pulau Batu Puteh has, and I quote from my Singapor e friends, “only recently appeared in maps of
the region and is the name by which [Malaysians] refer to it today”, as if we had never called the
8
island white rock in Malay as others did in Portuguese, Chinese, French and Vietnamese.
J.T.Thomson in his account of the Horsburgh lighthouse notes that the island is called “Batu
9
Putih” by the Malays . He even recalls Malays working on the construction of the lighthouse
10
singing songs about “Batu Putih de tingah laut” . I won’t attempt to sing it myself, Mr. President,
but in English it means “Batu Puteh in the middle of the sea”. It is referred to by its Malay name in
the Singapore Free Press. The article of 1843 on piracy refers to “Batu Puteh” as being within the
territories of the Sultan of Johor 11. A 1928 map of Johor labels the island “Batu Puteh” . 12
The social and economic role of Pulau Batu Puteh in Johor
8. I will now turn to the role of Pulau Batu Puteh in Johor. The Sultanate of Johor was a
maritime empire, and so its islands were an integr al feature of its territory, and the rivers and seas
served as the primary highways linking the communiti es that owed allegiance to the Sultanate of
Johor. The area around Pulau Batu Puteh and the Singa pore Straits was frequented in particular by
a Malay group known as the Orang Laut, which means “sea people”, who served the Temenggong
of Johor, and were subjects of the Sultanate. The Orang Laut lived in small communities along the
lower reaches of rivers, the coasts and the many islands off south-east Sumatra and the Malay
Peninsula. They were fishermen and foragers, a nd also patrolled the seas to conduct trade ships to
the ruler’s port, and provided protection for traders involved with Johor.
9. Singapore denies the reality of ties between the Orang Laut and the Sultanate of Johor.
Despite Monsieur Pellet 13, there is no doubt that these ties existed. Carl Trocki writes that the
Temenggong’s dominions were made up of sea peopl es, including the Orang Laut, and that his
8CR 2007/21, p. 17, para. 7.
9
MS, Vol. 4, Ann. 61, p. 479 (p. 378, original).
10
Ibid., p. 519 (p. 416 original).
11MM, Vol. 3, Ann . 40.
12CMS, Map Atlas, map 14.
13CR 2007/21 (Pellet). - 22 -
following included between 6,000 to 10,000 people and he controlled all the traffic moving
between the Straits of Malacca and the South China Sea 14. The relationship of the Orang Laut and
the Temenggong and the Sultan of Johor is accepted by historians of this area and period.
Professor Houben’s report, at Appendix 2 to Malaysia’s Reply, which says “the Temenggong and a
band of Malays controlled the orang laut ... of Singapore and the neighbouring islands”, cites
15
several sources, including recent research on the subject .
10. Contemporary European documents are also helpful. John Crawfurd records meeting
Orang Laut or “men of the sea” in his Journal of an Embassy to the Courts of Siam and Cochin
16
China of 1822 . He explains (and this quotation is at tab 11 of your folders),
“They are subjects of the King of Johore, and the same people who have been
called Orang Sellat, or, ‘men of the straits’, ⎯ the straits here alluded to being, not the
Great Straits of Malacca . . . but the narrow guts running along the little islets that are
so abundantly strewed over its eastern entrance. Under this appellation they have been
notorious for their piracies, from the earliest knowledge of Europeans respecting these
countries.”
11. Edward Presgrave, the Registrar of Imports and Exports, in a report of January 1829 on
piracy to the Resident Councillor in Singapore, say s that the subjects of Johor include the Orang
Rayat, another term for Orang Laut 17. The Sultan of Johor can, he says, command their services in
times of emergency such as war, and, I quote, “O n such an occasion it is said he can assemble
from the several islands and places under his authority from three hundreds to four hundreds prows
or boats” 18. I note from Thomson’s account that ten or so boats accompanied the Temenggong
19
when he left the island after his stay there in June 1850 during the construction of the lighthouse .
12. That these subjects of Johor frequented the area of Pulau Batu Puteh is evident from
John Crawfurd’s journal, and also from the letter from J. T. Thomson to the Resident Councillor of
Singapore, Mr. T. Church of 2 November 1850 concerning the lighthouse on Pulau Batu Puteh. He
says that (and you can find this at tab 12),
14C. Trocki, Prince of Pirates: The Temenggongs and Development of Johor and Singapore (1979), pp. 43-44.
15
RM, Vol. 1, App. II, pp. 227-228, paras. 25-28.
16
RM, Vol. 2, Ann. 7.
17RM, Ann. 27, para. 5.
18Ibid., para. 13.
19MM, Vol. 3, Ann. 60 (p. 430 in the original). - 23 -
“strict rules should be carried out against those half fishing half piratical sect the
orangRyot or Laut, being allowed to obtain admittance into the building ⎯ they
frequently visit the rock so their visits should never be encouraged nor any trust put in
them . . . In the straits and islets of the neighbouring shores and islands many lives are
taken by these people.” 20
This warning against letting the Orang Laut into th e lighthouse was later formalized in rule 17 of
the lighthouse keepers’ rules, which J.T.Th omson records in his account of Horsburgh
21
lighthouse .
13. No one lived on Pulau Batu Puteh, which is hardly surprising given that it is a tiny,
uninhabitable, exposed and barren rock. There were, however, camps or settlements on the islands
adjacent to Pulau Batu Puteh. This is evid ent from J.T.Thomson’s discussions of lighthouse
22
mechanisms, it being necessary to distinguish them from the fires on the coast . Two points
emerge from these records. First, the Orang Laut were subjects of Johor, and second Pulau Batu
Puteh and its waters were used by the Orang Laut in the course of their activities.
14. Fishermen from Johor continued to use the waters of Pulau Batu Puteh for fishing and
shelter right up until the mid 1980s when Singapore established a permanent naval presence there,
and prevented them from fishing close to Pulau Ba tu Puteh. A fisherman from the village Sungai
Rengit near Tanjung Penyusoh in Johor, Idris Bin Yusof, says in his affidavit annexed to
Malaysia’s Counter-Memorial that:
“Pulau Batu Puteh has been an important fishing area for fishermen from
Sungai Rengit for generations because it is clo se to the village and the waters are very
rich in fish. It was not necessary to have a boat with an engine to get to Pulau Batu
Puteh. In 1 day of fishing in the waters around Pulau Batu Puteh, a fisherman could
usually catch the equivalent of about 3 or 4 days of fish compared to fishing in other
areas. The reason for this is that the wa ters around Pulau Batu Puteh are sheltered,
23
with a slower current, and this attracts many fish.”
Saban Bin Ahmad, another fisherman from Sungai Re ngit, says the same thing in his affidavit:
“Pulau Batu Puteh was my first choice and favour ite place to go fishing because the catch was
always so good.” 24
20MM, Vol. 3, Ann. 58.
21MM, Vol. 3, Ann. 61, “Account of the Horsburgh Light-House” by J. T. Thomson.
22
MM, Vol. 3, Ann. 43 and MR, Vol. 2, Ann. 13 (pp. 22-23 in the original).
23CMM, Vol. 2, Ann. 5 (English translation), p. 3, para 10.
24CMM, Vol. 2, Ann. 6 (English translation), p. 2, para 6. - 24 -
15. Saban Bin Ahmad also talks about his and, before him, his father’s and grandfather’s
positive relations with the lighthouse keepers. In bad weather the lighthouse keepers used to
provide the fishermen with shelter in the lightho use in return for fish and other provisions.
Idris Bin Yusof also speaks about the arrangements the lighthouse keepers had with the fishermen
to provide them with supplies between the deliveries they received from Singapore.
Rear-Admiral Thanabalasingam also affirms, based on his experience of patrols in the Pulau Batu
Puteh area, that it is a traditional Malaysian fishing ground 25.
16. As well as being a key fishing and sheltering spot used by the people from nearby
mainland Johor, Pulau Batu Puteh has always been an important navigational marker for mariners,
Malay, Chinese and European. Because of its strategic position at the entrance of the Singapore
Straits it was used and recorded in sailing instructions as a reference to guide mariners in and out of
the narrow and dangerous eastern entrance to the Singapore Straits. Pulau Batu Puteh is marked
and named on nearly every early map and chart of the area, including the earliest map produced to
the Court, a map of 1595 by Jan Huygen van Linschoten 26, and the first sailing chart produced, the
27
Chinese WubeiZhi’s sailing instructions dating from 1621 . This was no remote mysterious
feature: it was not terra incognita and it was not terra nullius.
Political and territorial evolution of Johor
17. Over the 500years since SultanMahmud moved his court to the mouth of the Johor
River, the Sultanate of Johor has undergone many changes. What political system has not done so?
But throughout this period Pulau Batu Puteh, Middle Rocks and South Ledge always remained part
of Johor.
18. When Sir Thomas Stamford Raffles of the English East India Company wanted to
establish a firmer foothold for GreatBritain and decided to establish a trading post on Singapore
Island in the Singapore Straits, he achieved this not by occupation, not by conquest, but by
agreement with the local rulers . Raffles entered into a series of agreements in 1819 with
SultanHussain, whose succession to the Sultanate was being disputed by the Dutch through the
2CMM, Vol. 2, pp. 26-27, paras. 76-80.
26
CMS, Map Atlas, map 1.
2RM, Vol. 2, Ann. 1. - 25 -
medium of his younger brother Abdul Rahman. A co-signatory of all these agreements was the
Temenggong of Johor. Both Raffles and the Temenggong recognized Hussain as the lawful Sultan.
The agreements established a British factory on Singapore Island.
19. The Dutch recognized Abdul Rahman as the lawful Sultan and challenged the British
factory agreements with Hussain and the Temenggong. Britain refused to recognize
AbdulRahman. After some negotiations GreatBritain and the Netherlands agreed in the
1824Anglo-Dutch Treaty on their respective spher es of influence in the area covered by the
28
Sultanate of Johor . As you can see from this graphic, the Dutch sphere fell to the south of the
Straits of Singapore. The British sphere covered all the rest of the Sultanate including the islands
in and around the Straits. The 1824 Anglo-Dutch Tr eaty thus led to the split of the Sultanate of
Johor into two parts, one headed by SultanHussai n, which continued universally to be known as
the Sultanate of Johor, and the other by SultanAbdulRahman, which became known as the
Sultanate of Riau-Lingga. You can see where it fell on this graphic.
20. The Anglo-Dutch Treaty enabled GreatBritain to strengthen its position in the Straits,
and in 1824 SultanHussain and the Temenggong agreed to cede Singapore Island together with
“adjacent seas, straits and islets, to the extent of 10 geographical miles from the coast of the main
Island of Singapore” to Great Britain. You can see the effect of the CrawfurdTreaty on the
Sultanate of Johor in this graphic 29.
21. Pulau Batu Puteh, Middle Rocks and South Ledge remained within the territory of the
Sultanate of Johor after the two 1824 treaties. Nothing happened subsequently which altered this.
22. In 1855 internal frictions between the Sultan and the Temenggong of Johor were
resolved by an agreement which transferred full authority over the territory of the Sultanate to the
Temenggong of Johor and he became the sovereign rule r of Johor, with the exception of the small
Kassang territory which remained reserved for the former Sultan. The current Sultan of Johor is
the direct descendant of the Temenggong who beca me the sovereign ruler of Johor under the
1855Agreement. He is the direct descendant , the great, great, great grandson of Temenggong
Abdul Rahman who signed the Crawfurd Treaty of 1824.
28
Judges’ folder, tab 13.
2Judges’ folder, tab 14. - 26 -
23. Pahang separated from the old Sultanate of Johor during the nineteenth century. In 1862
Johor and Pahang concluded a treaty which set out to resolve boundary issues between them 30.
However, despite the 1862 agreement, a dispute soon arose over the land and maritime boundary.
It was finally settled in 1868 by an arbitration aw ard given by SirHarry Ord, British Governor of
the Straits Settlements. The OrdAward settled the land boundary along the RiverEndau which
was also to be taken as the starting point and la titude for the maritime boundary out into the South
31
China Sea . The islands south of the line, both inside and outside the 3 nautical mile territorial sea
fell within the territory of Johor 32. The line now appearing on this graphic represents the boundary
confirmed and drawn on the chart attached to the Ord Award. The Ord Award was reconfirmed by
an 1898 Boundary Commission.
24. In 1885 the British Government and the State of Johor concluded the Johor Treaty which
provided Britain with overland trade and transit ri ghts through the State of Johor but only allowed
limited British interference in the internal affairs of Johor. It also provided for British protection of
the territorial integrity of the Sultanate. The Su ltan invoked this provision the following year, in
1886, when he raised Johor’s sovereignty over its many islands, both offshore and in the immediate
vicinity of the Johor coast, with the Colonial Office. He wanted Britain to create a register of
Johor’s many islands to prevent other Powers from assuming they could incorporate them into their
protectorates 3. A memorandum drawn up by his Secretary of the same date of “Charts of the
Islands belonging to Johore”, included Chart 2041 of the Malay Peninsula Eastern Coast,
34
Singapore to Timoan, which he called “East ern Coast of Johore (immediate vicinity)” . This
chart, now on screen, includes among many, Pulau Ba tu Puteh, Pulau Tinggi and Pulau Aur. It is
the same chart as was attached to the 1868 Ord Awa rd. The Sultan took this precaution because of
Dutch activities on the Natunas, Anambas and Tambelans. In 1883 the Dutch had published a map
30
MM, Vol. 2, Ann. 8.
31
MM, Vol. 3, Ann. 86.
32Judges’ folder, tab 15.
33MM, Vol. 3, Ann. 63.
34Judges’ folder, tab 16. - 27 -
including these three groups of islands in its Rhio residency 3. Britain declined to intervene on the
Sultan’s behalf because it had earlier acknowledged Dutch presence in this area.
25. In 1914, British influence in Johor was formalized and increased through the
appointment of a British Adviser. But none of these changes in the nineteenth and early twentieth
century had any effect on the continued status of Johor as a separate entity, nor on its territorial
extent in the area of the Singapore Straits as settled by the Anglo-Dutch Treaty and the Crawfurd
Treaty, and extending north to the land and maritime boundary with Pahang set by the Ord Award.
26. In 1946, Johor joined the Malayan Union, which became the Federation of Malaya in
1948, consisting of the four Fede rated Malay States, five Unfede rated Malay States, and Penang
and Malacca. Penang and Malacca had been, with Singapore, part of the colony of the Straits
Settlements until it was dismantled in 1946.
27. The Federation of Malaya gained indepe ndence from Britain in 1957. In 1963, the
remaining British colonies of North Borneo ⎯ now known as Sabah ⎯ and Sarawak, together with
the colony of Singapore, joined the Federation of Malaya, which was renamed Malaysia. Until this
time, Singapore had always been a British colony, either as part of the Straits Settlements until
1946 and thereafter as a separate colony.
28. As Singapore has said, these changes did not have any effect on the territory belonging to
Johor and Malaysia or Singapore, nor did Singapore’s separation from Malaysia in 1965.
Conclusion
29. Mr.President, Members of the Court, in conclusion, Pulau Batu Puteh, Middle Rocks
and South Ledge are among the many maritime feat ures that have always formed part of Johor.
You have also seen that Pulau Batu Puteh and its surrounding waters, far from being unknown and
unused, have always been used by local Malay peop les, as subjects of the Sultanate of Johor and
residents of the State of Johor. None of the political or territorial developments after 1824 altered
this.
MrP.resident, may I ask you to call on the Attorney-General of Malaysia,
Mr. Abdul Gani Patail, to continue Malaysia’s presentation.
35
MM, Map Atlas, map 11. - 28 -
Thank you, Mr. President, Members of the Court.
The VICE-PRESIDENT, Acting President: Thank you, Madam, for your argument. I now
call on the Attorney-General of Malaysia, His Excellency Tan Sri Gani Patail. You have the floor.
Mr. GANI PATAIL:
T HE ORIGINS OF THE DISPUTE
1. Mr. President, distinguished Members of th e Court, as the Attorney-General of Malaysia,
it is a great honour and privilege for me to appear before this honourable Court. My task for today
is to present before the Court the origins of the pr esent dispute, to identify the critical date and to
highlight its importance in these proceedings.
The origins of the dispute over Pulau Batu Puteh
2. The sovereignty over Pulau Batu Puteh had ne ver been a subject of dispute prior to 1978.
Singapore raised the issue of sovereignty over Pula u Batu Puteh for the very first time during a
36
meeting held on 13April1978 between the two officials of the two countries . In that meeting,
Singapore claimed that it had “incontrovertible legal evidence” 37of its sovereignty over Pulau Batu
Puteh.
3. In the period after the issue of sovereignty was raised by Singapore in 1978 and
Malaysia’s publication of the 1979 map, the Parties engaged in a se ries of bilateral negotiations to
resolve the dispute amicably. The Parties subsequen tly agreed in principle to refer the dispute to
the International Court of Justice. The text of the Special Agreement was finalized in 1998. Both
Parties agreed to defer the submission of the dis pute to the International Court of Justice until the
conclusion of the case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia). Following the Judgment in that case, delivered on 17 December 2002, both
countries signed the Special Agreement.
36
CMM, para. 397.
3RS, Ann. 51. - 29 -
4. Notwithstanding Singapore’s claim, Malays ia had consistently remained clear as to its
38
sovereignty over Pulau Batu Puteh, which is illustrated in the 1979 map . The map shows the
territorial waters and continental shelf boundaries of Malaysia.
5. Mr.President, distinguished Members of the Court, prior to its publication, on
20December1979, the Ministry of Foreign A ffairs of Malaysia had notified all its ASEAN
Missions by telegram concerning the decision to publish the 1979 map 39. As shown in the
graphics, the telegram stated that “the pr oduction of [the] New Map does not constitute new
claim[s] by Malaysia but merely [an] indication on [a] specific map of our [Malaysia’s] right to the
continental shelf” 40. A copy of the telegram is contained in the judges’ folder, under tab 17.
6. On 21December1979, the Ministry of Fo reign Affairs of Malaysia called for a meeting
between the Deputy Secretary-General, Ministry of Foreign Affairs of Malaysia, and the Singapore
High Commissioner. Another meeting was held on 8 January 1980 between the officials of the two
countries where Singapore raised its concerns regarding the publication of the 1979 map and other
related issues 41.
7. Mr. President, distinguished Members of the Court, Singapore did not officially object to
42
the publication of the 1979map during the first meeting on 21December1979 . Instead of
making clear its claim over Pulau Batu Puteh, Singapore in its pleading seeks to downplay
Malaysia’s conduct in publishing the 1979 map by alleging, among others, that “Malaysia made her
claim to Pedra Bran ca in a hesitant and unusual manner” and that “the manner in which Malaysia
made the claim shows that Malaysia was uncertain and embarrassed about it” 43. Such assertions
are without any basis at all.
44
8. Singapore had never been able to pr oduce the “incontrovertible legal evidence” in the
form of documents to support its sovereignty over Pula u Batu Puteh. It did not do so in its Note of
38The 1979 map is entitled “Map Showing the Territorial Waters and the Continental Shelf Boundaries of
Malaysia 1979”.
39
RM, para. 38; RM, Ann. 20.
40
RM, para. 38; RM, Ann. 20, para. 3.
41
RM, para. 42; RM, Ann. 23.
42RM, para. 42.
43MS, paras. 6.114-6.115; RM, para. 37.
44
RS, Ann. 51. - 30 -
14February1980. It has not done so since. Even today, Singapore is unable to produce any
document proving its claim of sove reignty. Rather it rests, as the learned Professor Brownlie said
45
of the terra nullius claim last week, simply on “inference” .
The press conference dated 13 May 1980
9. In the same manner, as shown in the graphi cs, the statement of the then Prime Minister of
Malaysia at the press conference introduced by Singapore last week 46was also premised on
documents which the Honourable Mr. Lee Kuan Yew said were in Singapore’s possession proving
its sovereignty over Pulau Batu Puteh 47.
Mr.President, Members of the Court, until today Malaysia has yet to see any definitive
documents from Singapore to prove this fact. The statement of the then Prime Minister of
Malaysia is therefore merely a friendly and respectful statement of a visiting Prime Minister at a
press conference convened by his host. Such a statement has no probative value in this Court. But
in any case all he said was that the matter needed to be discussed between the two States: that was
Malaysia’s position. What has remained entirely unclear was the very existence of the documents
purportedly in the possession of Singapore.
The critical date for Pulau Batu Puteh
10. Mr. President, distinguished Members of the Court, although it had been becoming clear
that there might be a disagreement, it was only on 14February1980 that Singapore through its
Protest Note officially claimed Pulau Batu Puteh as part of Singapore’s territory. The Protest Note
of 14February1980 crystallized the dispute. On this basis the critical date for the dispute over
Pulau Batu Puteh is 14 February 1980 48.
11. The determination of the critical date is important in the present dispute as the conduct
now relied on by Singapore occurring after that date was not a normal continuation of its prior acts
45
CR 2007/21, p. 35, para. 5, CR 2007/21, p. 53, para. 90.
46
CR 2007/20, p. 34, para. 44; CR 2007/23, p. 61, para. 27.
47Judges’ folder, tab 18.
48MM, para. 15. - 31 -
of administration of the lighthouse. In that re gard, such conduct after the critical date must be
disregarded.
12. This Court in the Indonesia/Malaysia case said that acts undertaken after the critical date
will not be taken into consideration “unless such acts are a normal continuation of prior acts and
are not undertaken for the purpose of improving th e legal position of the Party which relies on
them” (Sovereignty over Pulau Ligitan and Pulau Sipada n (Indonesia/Malaysia), Judgment, I.C.J.
Reports 2002, p. 682, para. 135).
13. Singapore however seeks to ignore the im portance of the critical date in the present
dispute by a loose reference to a “so-called critical date” 4. In fact, throughout the entire first
round of Singapore’s oral presentation, not once did we hear counsel asserting or explaining the
principle of the critical date and its relevance or irrelevance to Singapore’s case. But the critical
date is highly significant for the reason you stated at paragraph117 of your recent Judgment in
Nicaragua/Honduras:
“In the context of a maritime delimitati on dispute or of a dispute related to
sovereignty over land, the significance of a critical date lies in distinguishing between
those acts performed à titre de souverain which are in principle relevant for the
purpose of assessing and validating effectivités , and those acts occurring after such
critical date, which are in general meaningless for that purpose, having been carried
out by a State which, already having claims to assert in a legal dispute, could have
taken those actions strictly with the aim of buttressing those claims. Thus a critical
date will be the dividing line after which th e Parties’ acts become irrelevant for the
purposes of assessing the value of effectivités.” (Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
Judgment of 8 October 2007, para. 117.)
Applying this passage, the critical date is vital in assessing and validating the evidence. Since the
1980s, Singapore engaged in what has every appearance of being a campaign to strengthen its legal
position in the present dispute. Such conduct, esp ecially in the 1990s, carried out well after the
dispute had crystallized on 14February1980, is as you have held, “irrelevant for the purposes of
assessing the value of effectivités”.
The critical date for Middle Rocks and South Ledge
14. Mr.President, distinguished Members of the Court, I now turn to the critical date for
Middle Rocks and South Ledge . The dispute concerning these two features only crystallized on
49
CR 2007/22, p. 23, para. 48. - 32 -
6 February 1993 50when, for the first time during the firs t round of bilateral discussions between
the Parties, Singapore included Middle Rocks and South Ledge in addition to its claim to Pulau
Batu Puteh. No such claim was ever made known to Malaysia prior to 6 February 1993, officially
or otherwise.
15. Singapore claims to have included Middle Rocks and South Ledge in its Protest Note of
14February1980 by the phrase “Pedra Branca and the waters around it”. Singapore’s
interpretation cannot be correct. Middle Rocks and South Ledge are not claimed as waters but as
distinct features. They had well-known names. If Singapore intended to claim them in 1980 it
should have said so. It did not.
16. Mr.President, distinguished Members of th e Court, this brings me to the end of my
submission. I thank you for your attention. If I may ask you now to give the floor to
Sir Elihu Lauterpacht to continue with Malaysia’s presentation.
The VICE-PRESIDENT, Acting President: Tha nk you, Tan Sri Abdul Gani Patail. I now
give the floor now to Sir Elihu Lauterpacht.
Sir Elihu LAUTERPACHT:
P ULAU BATU P UTEH : M ALAYSIA ’S CASE
1. Mr.President, Members of the Court, once again it is my privilege to appear before you
and I am particularly pleased that this opportunity has fallen my way in your present composition.
I am honoured also to appear once again on behalf of Malaysia.
2. You have heard elaborate expositions of their positions from the distinguished colleagues
who represent Singapore. However, in my submission, what they have said has not in any way
contributed to a clear understanding of the real ssue in this case. Indeed, as I listened to their
speeches I sometimes wondered whether my learned friends might have had it in mind to entangle
Malaysia in a mass of detail which would obscure the essential simplicity of the case. Malaysia
will try not to be led into that trap.
50
MM, para. 15. - 33 -
3. You have heard the opening contributions from the Agent and Co-Agent of Malaysia and
from the Attorney-General. They have presented to you the historical, geographical and diplomatic
background of this case. It now falls to me to provide an overview of Malaysia’s responses on the
principal substantive issues now in contention. This will be our case in a nutshell. It will be
developed more fully in the speeches of my colleagues and myself to be delivered tomorrow and
the following days. The case is not a complex one as will, I hope, be shown by the summary on
which I will now embark.
I. Sir Hugh Clifford’s description of Johor
4. But before entering on these matters, ther e is one important item to be added to the
geographical exposition just presented by Ambassador Noor Farida. If there is any doubt as to the
geographical extent of Johor and, in particular, whether it includes Pulau Batu Puteh, I would refer
you to a description of Johor that appears in the 13thedition of the Encyclopaedia
Britannica (1926) which might perhaps be dismissed as a merely academic contribution were it not
for the unique authority of its author. The rele vant pages of the encyclopaedia are included at
tab 19 in the judges’ folder.
5. I will first read the relevant lines:
“JOHOR (Johore is the local official, but incorrect spelling), an independent
Malayan state at the southern end of the pe ninsula, stretching from 2º40'S. to Cape
Romania (Ramunya), the most southerly point on the mainland of Asia, and including
all the small islands adjacent to the coast whic h lie to the south of parallel 2º 40' S. It
is bounded N. by the protected native state of Pahang, N.W. by the Negri Sembilan
and the territory of Malacca, S. by the st rait which divides Singapore island from the
mainland, E. by the China Sea, and W. by the Straits of Malacca.”
6. I draw attention, in particular, to the wo rds “including all the small islands adjacent to the
coast which lie to the south of parallel 2º 40' S”. The reference to “S” or south is clearly a misprint
for “N”. The phrase “all the islands” leaves no room for the exclusion of Pulau Batu Puteh.
7. Now, why is this description so im portant? It is because it was written by
Sir Hugh Charles Clifford. He was an eminent me mber of the British Colonial Service who spent
much of his career in Malaysia and eventually became Governor of the Straits Settlements. Even
more to the point, as can be seen from the signature page of the 1927Territorial Waters
Agreement, now on the screen, as Governor of the Straits Settlements it was he who signed the - 34 -
Agreement with Johor on behalf of Britain. It is doubtful whether anyone could have been more
familiar than he was with the territorial extent of the Malay States and especially with the status of
the islands that were covered, or not covered as the case might be, by the terms of the Agreement 51.
8. Any suggestion that Pulau Batu Puteh w as a solitary exception to the general statement
about Johor sovereignty over “all the islands south of 2º 40'” defies common sense. And would it
not have been a remarkable coincidence that after all the discussion that took place between 1844
and 1847 the place, the one place that was eventually chosen should have been the one place that
was terra nullius and yet that consideration is not once mentioned in the correspondence?
Evidently, of no concern to Britain at that time.
II. Only one real issue
9. And so we come back to the only real issue that must dominate the Court’s consideration.
All the rest is dependent and subsidiary.
10. This issue is that of the status of Pulau Batu Puteh in 1847. Was it, as Singapore
contends, terra nullius and thus open to acquisition by Britain? If, as Malaysia maintains, Pulau
Batu Puteh was not terra nullius in 1847 but belonged to Johor, then the whole of Singapore’s case
as pleaded collapses. This is because Singapore places its claim firmly and exclusively on events
between 1847 and 1851 on the basis that Pulau Batu Puteh was then open to acquisition. In
particular, Singapore expressly states that it does not claim the island on the basis of prescription.
A. In 1847 Pulau Batu Puteh belonged to Johor and was not terra nullius
11. Permit me to begin by referring to a stud y of the question of s overeignty in south-east
Asia that is contained in a most pertinent bo ok by the late Professor CharlesAlexandrowicz,
entitled an Introduction to the History of the Law of Nations in the East Indies , which was
published in 1967. In Chapter III headed “The Gro tius-Freitas Controversy over the East Indies”,
Alexandrowicz referred to the problem of sovereignty. (I note in passing that
Professor Alexandrowicz was an academic who was quite independent of both Parties. His views
were not expressed at the solicitation of either side. He wrote well before this dispute arose.)
51
See judges’ folder, tab 20. - 35 -
Alexandrowicz asks the question: how does Grotiu s approach the problem of opening the doors of
the East Indies to European penetration? He eliminates the possibility of conceiving the East
Indies as a legal vacuum as far as the law of nations is concerned. What he stresses most
emphatically is the existence of organized political entities in the East Indies which he considers
independent and sovereign.
12. Alexandrowicz then quotes Grotius as saying: “These islands of which we speak always
52
have had their own Kings, their own Governments, their own laws and their own legal systems.”
13. Alexandrowicz himself then continues:
“The immediate consequence to be drawn from this statement was that
European powers coming to this part of the world could not acquire territorial or other
rights by discovery, occupation of terra nullius , by papal donation or any other
unilateral act carried out in disregard of the sovereign authorities governing the
countries of the East Indies.” 53
14. I may also refer to an earlier article by Alexandrowicz in the British Year Book of
International Law (1959), Volume 35 (p. 167) where he says:
“Assuming that a number of Asian co mmunities were endowed with statehood
and sovereignty and capable of entering into transactions with the Portuguese and
other European powers which produced right s and duties in the law of nations, we
have to exclude the possibility of acquisition of their territories by occupation or
discovery.”
He quotes Grotius as saying that: “The property and the sovereignty of the East Indies ought not to
be considered as if they had been previously res nullius and as they belong to the East Indians they
54
could not have been legally acquired by other persons.” These passages appear at tab 22.
15. The “East Indians” who were thus acknowledged to possess sover
eignty over these
territories and islands included the Sultanate of Johor, which was established in 1512 and of which
the relevant part has continued up to the presen t day as the State of Johor, which is part of
Malaysia. As has already been recalled by the Co-Agent, there is no doubt that the Sultanate of
Johor before 1824 encompassed an area which covered north and south of the Singapore Strait,
including Pulau Batu Puteh, and that Malay notions of sovereignty at that time included notions of
territoriality.
52
Alexandrowicz, Introduction to the History of the Law of Nations in the East Indies, 1967.
53
Ibid., p. 45. See judges’ folder, tab 21.
54See judges’ folder, tab 22. - 36 -
16. Singapore, however, has sought to bolster its position by invoking what it calls “Sultan
Abdul Rahman’s donation of 1825” ⎯ Rahman was the ruler of the southern part of Johor after its
division. In this document Abdul Rahman claimed that whatever may be in the sea is his territory
and whatever is situated on the mainland belongs to his brother Sultan Hussain, who ruled
mainland Johor. From this Singapore concludes that “Malaysia’s theory that Pedra Branca was
allocated to Sultan Hussain as a result of the Anglo-Dutch Treaty” is plainly wrong 55. That does
not matter. What does matter is that if it did not belong to Sultan Hussain, it must have belonged to
Sultan Abdul Rahman. There were no gaps in the area: it could not have been terra nullius. For
this reason among others, Singapore’s recourse to this so-called “donation” can accordingly be
completely set aside.
Mr. President, when would you like me to break?
The VICE-PRESIDENT, Acting President: Maybe this is a good time for a break.
Sir Elihu LAUTERPACHT: If that is convenient for you I will be glad to break there.
The VICE-PRESIDENT, Acting President: Very well. We will break now for 10 minutes.
The Court adjourned from 11.20 to 11.30 a.m.
The VICE-PRESIDENT, Acting President: Please be seated. Please continue Sir Elihu.
Sir Elihu LAUTERPACHT:
B. Documentary confirmation that Pulau Batu Puteh was not terra nullius in 1847
17. Mr. President, distinguished Members of the Court, it is unnecessary at this stage for me
to go further into the early history of Johor. The fact that Pulau Batu Puteh was not regarded as
terra nullius in 1847 but belonged to Johor is conclu sively confirmed by reference to eight
significant items of the period from 1824 to 1851. As against them, there are no documents of that
time, or indeed of any time, that re fer to or treat Pulau Batu Puteh as terra nullius. It is significant
that Singapore has sought to gloss over them. Th e fact that I mention these items specifically
55
CR 2007/20, p. 50. - 37 -
however does not diminish the value or importance of the other indications to the same effect to
which Professor Crawford will presently refer.
18. Mr. Pellet, whose sharpness of comment in these matters is, I hope, less abrasive in the
French original than it appears in its English translation, has taken it upon himself to criticize to the
point of seeming extinction the documents adduced by Malaysia in support of the view that
Pulau Batu Puteh was not terra nullius in 1847. He chooses first those that he sees, perhaps, as the
least probative 56. Though I do not accept his criticizm I will not take time now to cross swords
with him over them. There are more important fish to fry. Rather, let us look at the later items
which tell a rather different story than the one that Mr. Pellet has presented.
19. The first item that should engage our atten tion is the Crawfurd letter of 10 January 1824.
This is afforded a somewhat superficial treatment by Mr. Pellet, and understandably so. It does not
suit his book at all.
1. The first item: Crawfurd letter, 10 January 1824 57
20. Crawfurd was the British Resident in Singapore and in a report to the Government of
India he stated that the principality of Johor:
“extends on the Continent from Malacca to the extremity of the Peninsula on both
Coasts. It had several Settlements on the island of Sumatra, and embraced all the
islands in the Mouth of the Straits of Malacca with all those in the China Seas as far
as the Natunas in the latitude of 4°North and longitude 109°East .” (Emphasis
added.)
It is particularly relevant to note the next sentence in that report. It bears on the Singapore
contention that uninhabited places in the region were terra nullius:
“These Countries are all sterile being inhabited here and there on the Coast
only, and Commonly by a race of Pirates or Fishermen whose condition in society,
ignorant of agriculture and without attachment to the soil, rises very little beyond the
savage state. Neither is there any good 58 idence of there ever having existed a better
or more improved order of society.”
But Mr.Crawfurd did not suggest that because these areas were “sterile” or virtually uninhabited
they were, therefore, terra nullius and open to occupation by Britain.
56CR 2007/21, p. 13.
57
CMS, Vol. 2, Ann. 2, para. 20. See judges’ folder, tab 23.
58See judges’ folder, tab 23. - 38 -
21. As just mentioned, Crawfurd described the territories of Johor as embracing all the
islands in the China Sea “as far as the Natunas”. You will see the graphic also at tab 24. As you
can see from the map, the Natunas are a considerable distance off the coast of mainland Johor,
254 nautical miles. It is hardly likely that these islands would be considered part of Johor but that
Pulau Batu Puteh, which is much closer to the mainland, would not be.
22. Singapore rejects what Crawfurd says becau se, so Singapore argues, it relates to several
thousand square miles of sea. The comment hardly seems to be to the point. What matters are the
islands not the area of the seas in which they are located. But Mr. Pellet takes the criticizm of this
document no further, preferring to turn his atten tion in similar terms to the Presgrave report of
1828. I will come to that in a moment.
23. But before that there are three intervening items over which Mr. Pellet chooses to pass.
24. The first is the second item in my list of eight.
59
2. The second item: Treaty of Cession of Singapore, 1824
25. And this is the Treaty of Cession of 182 4 itself which we usually call the Crawfurd
Treaty, which was concluded between the East India Company and the Sultan and Temenggong of
Johor. In Article II the Sultan and Temenggong “her eby cede in full sovereignty and property” to
the East India Company “the island of Singapore, situated in the Straits of Malacca, together with
the adjacent seas, straits and islets, to the extent of 10 geographical miles from the coast of the said
60
main island of Singapore” . Now this clearly constitutes British acknowledgment of the
sovereignty of Johor over the isla nds that were ceded by Johor; it implies also that Johor was
sovereign over islets beyond ten miles from the co ast of Singapore that were adjacent to and of the
same character as the islands that were ceded ⎯ the limit of 10miles was chosen for defence
reasons. If those islands and islets were subject to the sovereignty of Johor, it would not be logical
to treat Pulau Batu Puteh differently.
26. And just before I go to the third item of that period, I should jump forward for a moment
to the Territorial Waters Agreement of 1927 61. I have just mentioned this as having been signed by
59
MM, Vol. 2, Ann. 6.
60
See judges’ folder, tab 25.
61MM, Vol. 2, Ann. 12. - 39 -
Sir Hugh Clifford. The Preamble of that Treaty of 1927 refers to the 1824 Treaty as containing the
cession by Johor of “the island of Singa pore, together with certain adjacent seas, straits and islets”.
A little further on the Preamble states that His Britannic Majesty “is desirous that certain of the
said... islets shall be retroceded and shall again form part of the State and Territory of Johor”
(emphasis added). Thus we have here confirmation of the implication that I mentioned a few
moments ago that the cession of isla nds and islets in the 1824 Treat y shows that they must have
been part of Johor territory then. The confirmation takes the form of a retrocession ⎯ not a
cession ⎯ a retrocession. What had once belonged to Johor was being given back to it in 1927 ⎯
thus acknowledging that the islets involved had originally belonged to Johor. They had not been
terra nullius in 1824. And if they were not terra nullius then, why would Pulau Batu Puteh,
situated in the same strait, have been different? Singapore claims that this was because Pulau Batu
Puteh was uninhabited, but this cannot be so, because even some of the islands ceded in 1824 and
retroceded in 1927 were also uninhabited. This appears from Crawfurd’s account in the Singapore
62
Chronicle entitled “Journey of a voyage around the island of Singapore” . The simple and
compelling explanation is that Pulau Batu Puteh was no different from the ot her islands and islets
in the Singapore Straits which were all considered as belonging to Johor.
27. So I pass now to the third and fourth items on my list. They find no place in Singapore’s
analysis.
3. The third item: Crawfurd letter, 3 August 1824 63
28. The third item is Crawfurd’s letter of 3 August 1824. It is the explanatory report, written
by Crawfurd on the day following the conclusion of the Treaty of Cession in 1824. That’s in
graphic7. In it, Crawfurd made the impor tant point that the Sultan and Temenggong not only
exercised the powers of government in the area
“but being like othe r Asiatic Sovereigns, de facto the real proprietor of the soil ⎯ a
principle the more satisfactorily establishe d in the present instance, since the whole
ceded territory when it came into our occupation was unreclaimed ⎯ in a state of
nature and strictly destitute of permanent inhabitants”.
62
See Crawfurd, “Journal of a Voyage round the island of SingaporSingapore Chronicle , November 1825,
reprinted in J. H. Moor, Notices of the Indian Archipelago. See judge’s folder, tab 26.
6CMS, Vol. 2, Ann. 3. See judges’ folder, tab 27. - 40 -
This meant that the presence of population and reclamation were not the factors controlling title to
territory. This entirely contradicts the Singapore thesis that Johor was sovereign only over territory
actually inhabited by Johor people.
29. The letter also contains the following impor tant sentence: “[T]he cession made is not
confined to the main island of Singapore alone, but extends to the Seas, Straits and Islets (the latter
probably not less than 50 in number) within 10 geographical miles of its coasts.” 64 Thisshows
clearly that Crawfurd regarded even islets, some of them evidently very small, as part of the
territory of Johor, and capable of being acquired by cession.
65
4. The fourth item: Crawfurd letter, 1 October 1824
30. So we come now to my fourth item, the Crawfurd letter of 1October 1824, at tab28.
The fourth document is the lette r from Crawfurd to the Secretary of the Government of India on
1 October 1824 in which he observes that the exclusion of the British Government from
“entering into political relations with the chiefs of all the islands lying south of the
Straits of Singapore and between the Peni nsula and Sumatra may prove a matter of
some inconvenience to us, as it in fact vi rtually amounts to a dismemberment of the
principality of Johor and must thus be productive of some embarrassment and
confusion” (emphasis added).
This observation implies two things. The firs t, arising from the mention of the virtual
dismemberment of the principality of Johor, is th at prior to 1824 that principality extended south
and north of the Straits of Singapore. The second im plication is that Crawfurd considered that all
66
the islands not lying south of the Singapore Strait belonged to the Sultan of Johor .
67
5. The fifth item: Presgrave report, 5 December 1828
31. So we go now to the fifth item, the Presgrave report of December 1928. A report from
Edward Presgrave, Registrar of Imports and Expor ts, to Mr.Murchison, the Resident Councillor,
on the extent of Johor territory. This was summa rily and unjustifiably dismissed by Mr.Pellet.
64CMS, Ann. 2, p. 28.
65
MM, Vol. 3, Ann. 24. See judges’ folder, tab 28.
66MM, Vol. 3, Ann. 24.
67MM, Vol. 3, Ann. 27. See judges’ folder, tab 29. - 41 -
But nonetheless let us look at it. The letter was later submitted to the courts in India in a piracy
case where the extent of Johor was in issue. In it he gave a description of
“the limits of what is usually termed th e Johor Empire. It appears to embrace the
Southern part of the Malayan Peninsul a till joined by the Malacca territory, and
principality of Pahang, a small portion of the eastern coast of Sumatra, laying between
the Jambi and Siak Countries, all the Islands lying between the Karimons to the South,
Pulau Aor to the East, at the entrance of the China Sea and Linggin and the numerous
Islands adjacent thereto, extending nearly to the Islands of Banka and Billiton.” 68
(Emphasis added.)
Here they are on the map 69. Pulau Batu Puteh is clearly am ongst the islands referred to because
you will see that Pulau Aor is quite a way up the east side of the Johor coast. So, really he is
saying that everything from there downwards and round is Johor territory. PulauBatuPuteh is
clearly amongst these islands.
6. The sixth item: Dutch map, 1842 70
32. And now we go to the sixth item, the Dutch map of 1842, a map of the Dutch East Indies
prepared in 1842 by order of the King of the Netherlands 71. This showed the Dutch view of the
division of the spheres of influence in the regi on. The line there clearly shows the island of
Pedra Branca as falling north of the Dutch sphere of influence and thus as being within the British
sphere of influence. Professor Schrijver will illu strate this during his sp eech. This does not mean
that it was subject to British sovereignty, but it did indicate that it was not regarded as terra nullius.
72
7. The seventh item: Singapore Free Press article, 25 May 1843
33. And so to the seventh item, the Singapore Free Press article of May 1843. This article
refers to the activity of pirates in the area. The newspaper said:
“The places and islands near which these piracies are most frequently
committed and where the pirates go for shelter and concealment, such as Pulo Tinghie,
Batu Puteh, Point Romania etc., are all wi73in the territories of our well-beloved ally
and pensionary, the Sultan of Johor.”
68See judges’ folder, tab 29.
69
MM, Vol. 3, Ann. 27, para. 3.
70
Malaysia’s Map Atlas, map 7.
71CMM, Vol. I, Ann. 1, p. 277.
72MM, Vol. 3, Ann. 40 . See judges’ folder, tab 31.
73See judges’ folder, tab 31. - 42 -
8. The eighth item: Butterworth correspondence, 1844
34. And now to the eighth item, the Butterworth correspondence of 1844. This is
correspondence that passed between Governor Butt erworth, who was the Governor of Prince of
Wales Island, Singapore and Malacca, inN ovember1844. We have two letters, dated
25 November 1844, from the Sultan of Johor and from the Temenggong to Governor Butterworth,
both relating to a proposal to build a lighthouse at the entrance to the Singapore Strait somewhere
near the southern tip of Johor. The letter from the Sultan does not provide much guidance, since it
74
merely says that he is pleased that a lighthouse is to be constructed . The letter from the
Temenggong refers specifically to the desire of the Company to erect a lighthouse near Point
75
Romania . The Temenggong stated that he had no objection to such a measure and that ⎯ this is
the important quote ⎯ “the company are at full liberty to put up a Light House there, or any spot
76
deemed eligible” (emphasis added). The question is whet her the permission so granted included
Pulau Batu Puteh as being “near Point Romania or any spot deemed eligible”.
35. There can be very little doubt that it did. Unfortunately, we do not have the letters of
request from Governor Butterworth to the Temenggong and the Sultan. Like many other
documents in this case, these must originally have been in the Singapore archive. Malaysia has
requested their production by Singapore, but Singapore has given no reply. In the circumstances
we are obliged to consider two possible infe rences that may be drawn from the available
correspondence read as a whole. And I leave entir ely aside any suggestion of a third inference,
namely that Singapore has deliberately concealed these letters. The first inference is that the
Governor’s request referred specifically to Pulau Batu Puteh and/or its surroundings. If it did then,
of course, it would be a very clear acknowledgment by the Governor that he regarded Pulau Batu
Puteh as an island belonging to Johor. The other po ssibility is that it did not refer expressly to
Pulau Batu Puteh but simply used such word s as “near Point Romania or any spot deemed
eligible”. If these words alone were used, it seems, having regard to the prominent place that Pulau
Batu Puteh occupied in earlier correspondence, that in all probability Pulau Batu Puteh was
included within the Governor’s request and was so understood by the Temenggong. That Britain
74
MM, Vol. 3, Ann. 44. See judges’ folder, tab 32.
75
MM, Vol. 3, Ann. 45 . See judges’ folder, tab 33.
7Ibid. - 43 -
considered that the letters of permission extended to Pulau Batu Puteh is shown by its subsequent
conduct. The letters were annexed to all relevant corresponde nce between Singapore, Bengal,
India and London concerning the proposed lighthouse. Governor Butterworth attached the letters
of consent to a letter to London of 26 August 1846 saying that “the whole of the details for the case
of Light Houses as set forth in my earlier le tter under the date of 28 November 1844, with
reference to its being erected on Peak Rock will be equally applicable to the new position” of Pedra
Branca 77. In other words, the letters of permission were taken as equally app licable to Pulau Batu
Puteh. And no suggestion was made ⎯ bear this in mind, please, all the time ⎯ no suggestion
made anywhere here that Pulau Batu Puteh was being approached on the basis that it was terra
nullius and could be occupied by anybody.
36. The question of whether the manuscript word used in the copy of the Governor’s letter
was “case” or “care” will be addressed presently by Professor Kohen. Malaysia reads the word as
being “case”. But whichever is the correct reading, what matters is the Governor’s statement of the
78
applicability of the details set forth in his earlier letter of 28 November 1844 .
37. It is unnecessary to pursue further the qu estion of Johor’s title to Pulau Batu Puteh prior
to 1847. The answer is clear. There can be no reasonable doubt that in 1847 Britain interpreted
Johor’s consent as extending to Pulau Batu Pute h and took it for granted that Pulau Batu Puteh
belonged to Johor. Britain could not then have acquired it as terra nullius.
I do venture to emphasize that the Court in its consideration of this matter cannot leave aside
these documents that I have just mentioned, they are absolutely integral to the validity of any
reasoning on this subject. But let me proceed.
III. Supposing (quod non) that Pulau Batu Puteh was terra nullius in 1847;
did Britain thereafter acquire title to it?
38. Let me just suppose for a few minutes what is absolutely not the case, that Pulau Batu
Puteh actually was terra nullius in 1847, when Singapore says that Britain began to build a
lighthouse there. What did Britain then do that would have been effective to establish its title
there?
77
MM, Vol. 3, Ann. 51.
7MM, Vol. 3, Ann. 46. - 44 -
39. Singapore contends that Britain took “l awful possession” of the island in 1847 and that
between 1847 and 1851 Britain perfected title to the island. Is this really a sustainable proposition?
40. Singapore itself refers to the literature th at requires that in order to establish a title to
Pulau Batu Puteh between 1847 and 1851 by so-c alled “lawful possession”, it must show that
Britain had an intention thus to acquire sovereignty by occupation 79.
A. Singapore has not shown an intention on the part of Britain to acquire t
itle to Pulau Batu
Puteh
41. In truth, Britain’s conduct in the years following 1847 did not reveal the intention
necessary to convert the fact of physical presence into a perfected title. As hardly needs saying, the
acquisition of title to terra nullius requires not only the fact of phys ical presence but also evidence
that the occupier intended to vest title in itself. Mere presence, unless accompanied by evidence of
the appropriate intention, does not establish title.
42. There was no official or formal declaration by the British authorities of the
Government’s intention to vest in itself title to or sovereignty over the island.
B. British practice when asserting title to territory
43. It is instructive to look for a moment at the practice of the British authorities when
acquiring title to terra nullius, or annexing territory ceded to Britain. They invariably did so by
some formal act. This practice has been set out in detail in the Malaysian Counter-Memorial,
paragraphs 73 to 92, to which it is only necessary to add a reference to a work by Keller, Lissitzyn
and Mann on Creation of Rights of Sovereignty through Symbolic Acts [1400-1800] (1967). The
relevant chapter in that book is “English Practice” (Chap. V, p. 98):
“English practice in taking formal possession, therefore, was in general
characterised by a considerable degree of formality. The usual procedure, it will have
been noted, consisted in the erection of some sign of possession, usually in the form of
a cross adorned with the royal arms and a plaque inscribed with some appropriate
legend, and in the recitation with great sole mnity of a verbal formula proclaiming the
80
English sovereign’s title to the area concerned.”
44. This is clearly illustrated in the practic e of the time by the action taken by Britain
following the acquisition of Singapore itself. On 16August1825, Crawfurd reported that, in
79
MS, para. 5.109.
80See judges’ folder, tab 34. - 45 -
response to instructions, he had sailed roun d Singapore and had taken possession “with the
81
necessary formalities of all the islands within 10 miles of the main island of Singapore” . At each
of these islands, Pulau Ubin, Rabbit and Coney Isla nds, he read a formal declaration and fired a
21-gun salute. Coney and Rabbit differed little in size from Pulau Batu Puteh. They were
uninhabited, and at about the same distance from th e northern shore of the Strait. One is bound to
expect from Singapore some convincing explanation of why this formal practice should have been
followed in relation to these small islands, but not, when it became necessary, in relation to Pulau
Batu Puteh. And remember, they were actually building something on Pulau Batu Puteh, and if
they had wanted to acquire title to it they w ould certainly have taken the steps necessary to
establish that. No explanation has been forthcoming. One may suggest that this is because it never
occurred to the British authorities to claim title to Pulau Batu Puteh. They did not need to do so
because the construction of the light did not require sovereignty. So they simply did not do so. I
shall revert to this matter in a later speech.
C. What did Britain do in the years 1847-1851?
45. So, what did Britain do in the years 1847 to 1851 when, according to Singapore, they
were establishing their title there? I turn briefly to examine this. One looks in vain for evidence of
any official, formal, direct, or even indirect, assertion of title. Bearing in mind that nothing
happened in 1847, 1848 or 1849 that could be so regarded, the most obvious occasion on which
some formal act could have occurred was the ceremonial laying of the foundation stone on
24 May 1850 8. The Governor of Singapore was there, but the opportunity was not taken to
declare Britain’s title. Examination of accounts of the ceremonies on that date, even as set out in
the Singapore Memorial 83, does not reveal any trace of a sp ecific and formal claim to title by
Britain. In particular, the copper plaque, then set into stone, merely records that the foundation
stone was laid by the Master of the Masonic “Lodge Zetland in the East” ⎯ not by the
Governor ⎯ without any mention of adhesion to Singapore; and the reference to the Governor of
the Straits Settlements says no more than that he was present at the ceremony. The episode is more
8RM, Vol. 2, Ann. 5.
82
See judges’ folder, tab 35.
8MS, paras. 5.56-5.59. - 46 -
consistent with the constructi on of a lighthouse that was to be administered by the British
authorities than with any claim to sovereignty over the underlying rock.
46. Measured by the standards th en applicable, it is clear that the ceremony of 24 May 1850
did not amount to the performance of a symbolic act of taking possession and was not seen as such
84
by the participants. Singapore’s Reply asserts that there can be no doubt that the process of
acquisition began ⎯ their words ⎯ at least, whatever at least may mean, in 1847. What does at
least mean as opposed to at most or at latest? Anyway, the process of acquisition began at least in
1847, when “Thomson began operations which i nvolved the assumption that the island was a terra
nullius”. There is no evidence that he made such an assumption or that his conduct so assumed. In
truth, however, as may be gathered from Thomson’ s own narrative, he did no more in 1847 than
erect brick pillars on 1 November “in order to test the force of the waves” 85. Not until April 1850
86
did work actually begin on the rock ⎯ unaccompanied by any formality. I mention those years
because of course Singapore is saying that title was acquired by a series of steps in 1847, 1848,
1849, 1850 and 1851. Not till April 1850 did work actually begin on the rock, unaccompanied by
any formality. There was nothing in that work th at indicated an intention to acquire sovereignty
over the rock. Singapore cannot point to any moment at which the British authorities took
possession. Instead, it adopts a shotgun ⎯ or scattergun ⎯ approach, presenting in its pleadings at
least three different dates at which possession was assumed. These are: first, before 1847, when
Pulau Batu Puteh was chosen as the site of the lighthouse; secondly, 1847 itself, when preparations
for construction began; thirdly, the period between 1847 and 1851 , culminating in the inspection
87
of the lighthouse on 21September1851 once it was constructed . Thismustbearareifnot
unique occasion in the history of territorial litiga tion that a taking of possession of an uninhabited
rock is presented as a complex act lasting at least four years and without a single manifestation
during that period of the intention to acquire sovereignty. Even the Clipperton Island case, also
referred to by Mr. Brownlie in speaking of a series of acts, could not have contemplated vagueness
84RS, para. 3.114.
85
See Thomson’s account in MS, Vol. 4, Ann. 4, p. 491.
86Ibid., p. 509-510.
87CMM, paras. 57-58. - 47 -
of this degree. In any case, the mention of “a series of acts” in the Clipperton case was
unsupported by any explanation and should be regarded at most as merely obiter dictum.
47. The fact is that the only activity of Br itain on Pulau Batu Puteh was related to the
lighthouse and it was followed on the grant of pe rmission from the sovereign of Johor. The only
intention that can be shown was to assume ownership of the lighthouse and that was expressed
88
subsequent to 1851. The Indian Act of 1852 declared that the Horsburgh lighthouse ⎯ and I
quote from the Act ⎯ “shall become the property of and absolutely vest in the East India
Company”, not that Britain had, or would, become sovereign over it, as might have been expected
in the Preamble to such an act. There is no contemporary documentation of any kind which
89
implicitly or explicitly specifies that Pulau Batu Puteh was or had become British territory .
IV. Britain’s conduct subsequent to 1851 is irrelevant
48. In a later speech I will go in detail throug h those years, 1847 to 1851 again, but for the
moment I can leave that aspect of the matter there. I come to Britain’s conduct subsequent to 1851
and declare that it is irrelevant. If Britain did not acquire title in the period 1847 to 1851 because
Pulau Batu Puteh was then part of Johor, Britain’s subsequent conduct is not to the point at all.
The reason is that the mere operation of the light would not by itself have established Britain’s title.
Strictly speaking, it is unnecessary for Malaysia to respond at all to the presentation by Singapore
of evidence allegedly supporting its contention that it has maintained continuous, peaceful and
effective exercise of State authority over Pulau Batu Puteh in the period since 1851. It is not really
necessary for us to deal with all this. Again, it is important to note that Singapore does not rest its
case on prescription, for this approach would necessarily have involved an admission on the part of
Singapore of prior Malaysian sovereignty over the rock. Prescription is not an element in this case.
49. Singapore repeatedly states that its conduct after 1851 merely confirms and maintains ⎯
that is their chosen phase ⎯ a title already acquired by it in the period 1847 to 1851. So it hardly
needs saying that unless by 1851 there really existe d British title over Pulau Batu Puteh, there was
nothing that could be maintained or confirmed. I well remember, Mr. President, that what I was
88
MM, Vol. 3, Ann. 84.
8CMM, para. 68. - 48 -
taught as a schoolboy ⎯ my arithmetic teacher said “Lauterpacht”, no, he did not actually say
“Lauterpacht”, he said “lobster pot”, that being my nickname! “Lobster pot” he said “can you not
understand that when zero is multiplied by any numbe r whatsoever the result is always zero”: so
that a title that is zero, that does not exist, ca nnot be confirmed or maintained by any amount of
subsequent multiplication of State action. And that goes beyond what he said!
50. Nonetheless, Singapore lists repeatedly the items of conduct which it says were
performed à titre de souverain in and on Pulau Batu Puteh. Bu t overwhelmingly this is practice
concerning the operation of the lighthouse, what you would expect. It has nothing whatsoever to
do with sovereignty over the island. The cases and doctrinal writings clearly support the view that
constructing and operating a light house and other navigational aids are not acts in themselves
performed à titre de souverain. A fortiori this is true when the lighthouse is built and operated with
the consent of the territorial sovereign 90. Singapore itself says that “the basis of the title advanced
91
by Singapore is not premised on the role of lighthouses as evidence of State activity” . But for the
most part ⎯ and entirely so in the period prior to 1980 ⎯ the conduct it relies on as evidence
à titre de souverain is conduct undertaken by the operator of Horsburgh lighthouse. Such conduct
undertaken in the running of a lighthouse cannot simply be raised to the level of conduct à titre de
souverain ⎯ even if such conduct were relevant, which, as I have submitted, it cannot be.
51. Singapore invokes a number of authorities. But in none of the cases cited are the facts
similar to what happened here, where the lighthouse was built by Britain with the permission of the
local ruler. Nineteenth century writers, such as Heffter and Westlake, make a clear distinction
between sovereignty, imperium, and ownership, dominium. This is reflected in the distinction
between sovereignty and property made in Article 2 of the 1824 Crawfurd Treaty. Johor agreed to
cede Singapore Island and the adjacent seas, straits, and islets to the extent of 10geographical
miles “in full sovereignty and property” to the East India Company. I particularly invite the
Court’s attention to the report sent by Crawfurd to the Government of India on 3August1824,
92
presented in the Singapore pleadings themselves .
90
MM, para. 10.
91MS, para. 5.101; CMS, para. 6.105, 7.21 (“Singapore’s title is not based on the role of the lighthouse as an
effectivité per se”).
92CMS, Vol. 2, Ann. 3, p. 27. - 49 -
“The 2nd, 3rd and 4th Articles of the Treaty convey to the Hon’ble East India
Company as complete a cession of the Sovereignty and property of the island of
Singapore and Places adjacent to it, as I could find words to express it in. In framing
these conditions, I have viewed the Sultan as possessing the right of paramount
dominion, and the Tumungung, as not only virtually exercising the powers of
Government, but being like other Asiatic Sovereigns de facto the real proprietor of the
soil ⎯ a principle the more satisfactorily est ablished in the present instance instance,
since the whole ceded territory when it came into our occupation was un93claimed ⎯
in a state of nature and strictly destitute of permanent inhabitants.”
By contrast the 1852 Indian Act No. VI, the firs t piece of legislation to deal with Horsburgh
lighthouse and which Singapore claims was an effectivité confirming the title acquired by 1851,
provided that the lighthouse “shall become the property of, and absolutely vest” in the East India
Company ⎯ become the property of. Note the distinction: the 1824 Treaty ceded sovereignty and
property in Singapore to the Company; the 1852 Indian Act vested property in a lighthouse in the
East India Company. They are quite different things.
52. But having just spoken of the 1852 Indian Act, there is something even more important
to be said about it. Singapore has invoked it as evidence that Britain exercised sovereignty over
Pulau Batu Puteh in 1852. Otherwise, so Si ngapore argues, on what basis could Britain have
thought that it was entitled to enact legislation appl ying to a lighthouse on the island? To legislate,
so Singapore suggests, one must be sovereign over th e area. But the answer turns out to be quite
simple.
A. The 1852 Indian Act and the Foreign Jurisdiction Act
53. The 1852 Act cannot be read in isolation. As early as 1843 the British Parliament had
enacted the first of a series of Foreign Jurisdiction Acts 94. This was ⎯ and I am quoting from the
preamble ⎯ “to remove doubts as to the exercise of Po wer and Jurisdiction by Her Majesty within
diverse Countries and Places out of Her Majest y’s Dominions, and to render the same more
effectual”. The 1843 Act provided that it
“shall be lawful for Her Majesty to hold, exercise, and enjoy any Power or Jurisdiction
which Her Majesty now hath or may at any Time hereafter have within any Country or
Place out of Her Majesty’s Dominions, in the same and as ample a manner as if Her
Majesty had acquired such Power or Jurisdiction by the Cession or Conquest of
Territory”.
93
See judges’ folder, tab 36.
9See judges’ folder, tab 37. - 50 -
In effect, the Act empowered Her Majesty to legislate for places that were not British territory
without such conduct reflecting or amounting to a cl aim to sovereignty over those places. It does
not mean that such places became British territo ry. Britain exercised jurisdiction for decades
throughout many regions, principally now known as the Gulf, without such conduct being invoked
or regarded as a basis of a claim for soverei gn title. Thus, the correct way to view the 1852 Act
now invoked by Singapore as evidence of British sovereign conduct in relation to Pulau Batu Puteh
is to see it as no more than an exercise of foreign jurisdiction and not as a reflection of a claim to
sovereignty. It is only necessary to glance at W.E.Hall’s magisterial work on the Foreign
Jurisdiction of the British Crown to see how widespread was British conduct in foreign States,
without such conduct involving any claim to sovereignty.
B. The operation of lighthouses is not a basis for a claim to sovereignty
54. Nor is it surprising that Britain should have felt able to legislate for the Pulau Batu Puteh
lighthouse without this action constituting evidence of a claim to sovereignty over the island. As
noted by this Court in the Minquiers and Ecrehos case, lighting and buoying since 1861 could not
be considered sufficient evidence of an intention to act as sovereign. They were not seen as acts of
such a character that they could be considered as involving a manifestation of State authority.
Similarly, the Eritrea/Yemen Arbitral Award held that “t he operation and maintenance of
lighthouses and navigational aids is normally conn ected to the preservation of safe navigation, and
95
not normally taken as a test of sovereignty” .
55. Singapore relies on the Court’s statement in Qatar v. Bahrain where it said that “[t]he
construction of navigational aids ... can be legally relevant in the case of very small islands”
(Maritime Delimitation and Territorial Qu estions between Qatar and Bahrain (Qatar v. Bahrain),
Judgment, I.C.J. Reports 2001, p. 100, para. 19). When read in context, this statement underscores
the point that the construction of aids to navigati on may be relevant in ques tions of sovereignty in
cases where there is no other basis of title and th e construction and administration of the aids
evidence the intention of the State concerned to act à titre de souverain. But there is no indication
of any intention on the part of this Court to set aside the earlier jurisprudence, as confirmed in the
95
Eritrea/Yemen, Arbitral Award, para. 328; MM, para. 173. - 51 -
2002 Indonesia/Malaysia Judgment ( Sovereignty over Pulau Ligitan and Pulau Sipadan
96
(Indonesia/Malaysia), Judgment, I.C.J. Reports 2002 , p. 685, para. 147) . The key proposition of
the case law ⎯ that the operation and maintenance of lighthouses and navigational aids is normally
connected to the preservation of safe navigation, and not normally taken as a test of sovereignty ⎯
is amply illustrated by State practice, to which we shall revert later. Now I need only mention the
Straits Lights System and the Middle East Navigatio n System, to both of which I shall refer more
fully in a later speech.
56. The accumulation of case law and practice is completely at odds with Singapore’s
proposition that the construction and maintenance of the Horsbur gh lighthouse somehow in and of
itself constituted a “taking of lawful possession” of Pulau Batu Puteh for the purpose of acquiring
sovereignty. The jurisprudence is clear. Conduct in the administration of a lighthouse does not,
without more, evidence sovereignty. Such conduct will only be relevant if it discloses an animus
occupandi, not simply in respect of the lighthouse a nd its associated facilities but specifically in
respect of the territory on which the lighthouse is located. Even an animus occupandi will not by
itself be sufficient in circumstances in which title to the territory is already vested in another State
and there is no evidence of an intent on the part of Johor to abandon its title. This is especially so
when the only animus is a belated one on Singapore’s part. As already stated, Britain, when
building and operating the Horsburgh lighthouse, showed no intention at all of acquiring
sovereignty over Pulau Batu Puteh. In light of this, plus the strong British practice in the
nineteenth and twentieth centuries of building and administering lighthouses on its key trade routes
on the territories of other States, the continued administration today by Singapore of a lighthouse
which formed part of the Straits Lights System ca nnot be regarded as evidence of its sovereignty
97
over the territory where it is located . Malaysia’s position here is entirely in line with the Court’s
case law and that of arbitral tribunals.
57. Singapore also claims that it has carried out non-lighthouse effectivités in respect of the
island. These activities can either be attributed to Singapore’s role as the lighthouse administrator
or are otherwise unconnected with sovereignty ove r the island. Singapore also argues that it can
96
MM, para. 175.
9CMM, para. 176. - 52 -
rely on effectivités after the critical date especially those going beyond the operation of the
lighthouse. It almost goes without saying that it cannot 98. Malaysia has shown that there was no
performance before 1980 of acts à titre de souverain. Nor can post-1980 evidence be taken into
consideration, as the learned Attorney-General has just emphasized.
C. The irrelevance of Johor’s so-called “competing activity”
58. Here is a point. Singapore has repeatedly invoked the fact that Malaysia “never carried
out any competing activities on the island of its own” 99. What did Singapore expect Malaysia to do
in the way of “competing activities” on the island? The fact needs to be borne in mind that Pulau
Batu Puteh is a very small place. There is now shown on the screen a map of Pulau Batu Puteh
100
taken from Thomson’s Account . You will observe that it has been surrounded by a rectangle.
That rectangle, I must tell you, has the dimensions of a standard soccer pitch drawn to the same
scale. The island of Pulau Batu Puteh can thus be seen as filling less than half the area of a football
field. And all of that area ⎯ all of that island ⎯ was increasingly taken up by the lighthouse and
its appurtenances. Where was Johor to engage in “competing activities on the island”? And what
“competing activities” could there have been on the island? Was it to build a “competing”
lighthouse? The truth is, the point about the absence of competing activities by Johor is, if I may
respectfully say so, meaningless verbiage. Johor had licensed Britain to construct and operate a
lighthouse. After that there was nothing for Johor to do except let Britain get on with the operation
of the lighthouse and any related activities as a prudent and careful lighthouse operator would
adopt. There was no scope for any competitive Johor activity.
59. The immense amount of time and effort that Singapore has put into its recital of the acts
that it has performed on Pulau Batu Puteh since 1851 really amounts to a subtle attempt to change
the whole balance of the case. Singapore has asserted that it had gained title by the end of 1851. It
has advanced its subsequent activity as no more than a “confirmation and maintenance” of the title
thus acquired. Moreover, it has acknowledged that it does not claim title on the basis of
prescription. This is important, and understandabl e. Prescription can only form a basis for title if
98
CMM, paras. 9-10.
99
E.g., CR 2007/22, p. 12, para. 2 (Bundy).
10See judges’ folder, tab 39. - 53 -
someone else had a previous title. Here that would have had to be Johor, and Singapore cannot
accept that. So, prescription is excluded. Yet, one is left with the feeling that Singapore may be
trying to induce the Court to accept a kind of prescriptive title without actual recourse to that
concept ⎯ some kind of “pseudo” prescriptive conduct. If that is the case, then Malaysia submits
that the Court must firmly resist it. Either Britain acquired title by 1851 or it did not. If it did,
Singapore is right. If it did not, Singapore loses, and loses without more. It is as simple as that.
60. I am reminded at this point, Mr.President, of the very pertinent observation made by
you, yourself, in the Nigeria v. Cameroon case, when you introduced into your separate opinion an
indication that the Court had not needed to dispose at such length of this issue of sovereignty. You
said, “this was all the Court needed to do, and all it should have done, to dispose satisfactorily of
the issue of territorial sovereignty” (Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 200
2 , p.493,
para. 1.) It was not necessary to revert to the other questions examined at length by the Court.
61. I venture to suggest that this is anothe r case for the adoption of the same approach of
isolating the controlling issue and limiting the judg ment accordingly. All that is necessary to
decide the issue of sovereignty is to assess the validity of the Singapore claim that Pulau Batu
Puteh was terra nullius in 1847. Nothing after that date is relevant.
D. The September 1953 letter is irrelevant
62. There is, however, one point in the Singapore case which calls for brief notice. This is
the Singapore argument based on the letter ofSeptember1953 from the Acting State Secretary of
Johor to the Colonial Secretary of Singapore 10. In it, Johor replied to a Singapore question
regarding the status of Pulau Batu Puteh. It said that Johor “does not claim ownership” of the
island. Singapore argues that Malaysia ca nnot now claim Pulau Batu Puteh “given her
102
predecessor’s formal disclaimer” . Singapore has made much of this.
63. It hardly needs saying that for the British colonial authorities in Singapore to ask “for
information” about the rock and to ask Johor “to clarify” its status is hardly conduct to be expected
101
MM, Vol. 3, Ann. 69.
10RS, para. 7.19. - 54 -
of a State whose successor now asserts with such confidence a sovereignty over the subject of the
enquiry going back 100 years previously. Nor is the Johor reply couched in terms which indicate
that it does not claim sovereignty over the rock. All it says is that Johor does not claim
“ownership” over the rock. I have already emph asized the distinction between “ownership” and
“sovereignty”. “Ownership” is primarily a privat e law concept; “sovereignty” is, of course, a
concept of international law. When the Acting Secretary of State of Johor wrote that Johor “did not
claim ownership” of the island, he was using “owner ship” in its private law sense. In any case, he
could not have meant “sovereignty” since he, in his position, lacked the capacity to dispose of
Johor’s territory.
64. Whatever the Acting State Secretary may have meant, the fact remains that Johor did not
become bound by his statement in the manner asserted by Singapore. There is a very pertinent
passage in the leading American treatise on international law by the distinguished
Professor Charles Cheney Hyde. Under the headi ng “Official and other Geographical Statements”
he has this to say ⎯ I omit his detailed references, but they appear in the photocopied statement
which appears at tab 38 of your folder:
“Official geographical statements issued in behalf of a State may, like maps
published under its auspices, establish authoritatively what it deems to be the limits of
its domain . . . [That will fall sweetly upon Si ngapore’s ears.] Still again, officials in
high office may through governmental channe ls or otherwise, announce what they
understand to be the territorial limits of their country. The announcements may be
registered in reports or instructions, or hi storical or geographical writings proclaiming
to the world [ to the world ] the understandings of the authors. [Then comes this
important sentence.] Such utterances do not prevent the State 103whose behalf they
are made from contradicting them by sufficient evidence.)” (Emphasis added.)
65. That is exactly the case here. If, by “o wnership” of the rock, the Acting State Secretary
meant “sovereignty” ⎯ which there is no evidence that he did ⎯ then that statement is certainly
contradicted by sufficient evidence. As has already been mentioned by the Co-Agent of Malaysia,
Ambassador Ariffin, and is supported by much else in this case, there is sufficient ⎯ indeed, more
than sufficient ⎯ evidence supporting Johor’s title to Pulau Batu Puteh.
66. As for the Singapore contention that it “re lied” on the Johor statement, developed in the
Reply of Singapore, paragraph7.17, this cannot be seriously supported. Reliance is, of course,
103
Hyde, International Law, Vol. I, 2nd rev. ed. (1945), pp. 497-498. See judges’ folder, tab 38. - 55 -
necessary if an estoppel is to be maintained. As Singapore itself admits, the items of “reliance”
listed there do not actually reflect a change of position by Singapore, induced by the Johor
response. They were, with minor exceptions, all items related to the operation of the lighthouse.
67. In short, the 1953 Johor letter is not an item which can be considered as a factor
supportive of Singapore’s argument that it had comp leted the acquisition of title to Pulau Batu
Puteh by 1851. Rather the reverse. One is bound to ask why 100 years later, Singapore is raising,
in terms of seemingly genuine doubt, the question of title to Pulau Batu Puteh.
V. Middle Rocks and South Ledge
68. I come now to the final point. A word still remains to be said about Singapore’s
expansion of its claim to cover Middle Rocks and South Ledge. This matter will be dealt with in
due course by ProfessorSchrijver. These features are manifestly distinct from Pulau Batu Puteh.
They are not geologically connected to the island. Middle Rocks are separated from the island by a
channel six-tenths of a mile wide, and South Ledge is 2.1 miles from Pulau Batu Puteh. Singapore
has not identified any conduct on its part that can amount to a claim to these features prior to the
negotiations between the two sides which took place in 1993.
69. That is not to say that these features are terra nullius. Far from it. They are subject to
the sovereignty of Johor, not as dependencies of Pulau Batu Puteh, but because they have always
been amongst the islands, islets and features in the northern part of the Strait over which Johor has
possessed sovereignty.
VI. Summary
70. Mr. President, I now approach the end of this opening review of Malaysia’s case. Permit
me to close with a brief summary of the position.
71. Every stage, phase or element in Singapore’s claim to Pulau Batu Puteh is ill founded:
⎯ First, Malaysia has shown that prior to 1847 Pulau Batu Puteh was part of the territories of the
Sultan of Johor. Singapore has been unable to show that Pulau Batu Puteh was terra nullius.
⎯ Second, Britain’s conduct in the period 1847-1851, on which Singapore relies to found the
establishment of title during that period, cannot be regarded as effective. Singapore concedes
that it must show an intention for Britain to ha ve acquired title in that period. But there is no - 56 -
evidence of British conduct that can be interpre ted as a manifestation of intention to acquire
sovereignty in those four years.
⎯ Third, events after 1851 are not relevant to the question of title in this case. Singapore’s
contention that it was maintaining and confirming its pre-established title is unsustainable.
One cannot confirm and maintain a title that does not exist. One might call that the “lobster pot
syndrome”. Nor is the operation of a lighthouse with the permission of the local sovereign a
basis on which the operator can found its own claim to sovereignty.
⎯ Fourthly, it is absurd to invoke an absence of comp eting activity on the part of Johor. There
was no room for any competing activity.
⎯ Fifthly, Singapore’s reliance upon the letter of September1953 is ineffectual. How
extraordinary it is that a State now claiming title to an island should, more than a century after
it asserts that the claimed title had been perfected, evince such doubt about its position that it is
obliged to ask the other State concerned what the legal position is!
⎯ Finally, there is no substance in Singapore’s clai m to Middle Rocks and South Ledge. Like
Pulau Batu Puteh itself, they are amongst the features in the northern part of the Singapore
Straits that have always belonged to Johor. Moreover, Singapore can invoke no conduct on its
part in relation to these islands.
72. At this point I would otherwise have ended. But there is one aspect of the Singapore
arguments in relation particularly to the 1824 Treaty that cannot be passed over in silence and with
which I would wish to conclude. The fact that I leave it to the end does not mean that it is an
afterthought but simply that it is one that I wish to leave with you as one of significant importance.
If all that Mr.Pellet says about the lack of evidence of Johor title to the islands south of the
mainland is correct, then what title did the Sultan of Johor have to the island of Singapore itself?
What title did he have to cede it to Britain? Could he point to any title deed vesting it in himself?
Was it not an island virtually uninhabited by people of Johor? The learned counsel for Singapore
has not merely shot Singapore in the foot, he h as amputated both its legs! If the Sultan had no title
to Pulau Batu Puteh in 1824, for the same reasons he could not have had a title to the island of
Singapore. And if he had no title to give, there w as no title for Britain to accept. As counsel for
Singapore have so often reminded the Court, nemo dat quod non habet . The ramifications of this - 57 -
possibility are too shocking almost to contemplate. Is the State that now appears opposite Malaysia
in this Court one whose territory was acquiredby a cession of land that did not belong to the
granter? The Court will no doubt wish to hear how Singapore gets round this question, without at
the same time having to acknowledge that, by the same token, the territories of Johor must also
have included Pulau Batu Puteh.
73. With this question, Mr. President, and distinguished Members of the Court, lingering in
our minds, I reach now the end of this opening summ ary of Malaysia’s case in reply to Singapore.
I thank you, Mr.President, and the Court for your patient attention and respectfully invite you to
call on ProfessorCrawford to embark on the first of the more detailed speeches in Malaysia’s
reply. Thank you.
The VICE-PRESIDENT, Acting President: Thank you, Sir Elihu, for your statement. I now
call on Professor Crawford to take the floor.
Mr. CRAWFORD: Mr.President, Members of th e Court, it is an honour to appear before
you again.
THE SULTANATE OF JOHOR AND ITS ORIGINAL TITLE TO (PULAU BATU PUTEH (PBP)
(PART 1)
Introduction
1. In this presentation I will show that the Sultanate of Johor had original title to PBP, as I
will call it, in the period prior to the constructi on of the lighthouse. In doing so I will respond to
the presentations last week by Mr. Chan and Mr. Pellet. Mr. President, this speech, like Gaul under
the Romans and the Sultanate of Johor after the 1824 Treaty, is in two parts. I will try to break it at
an appropriate moment.
2. The Court will have observed a consider able difference between the approaches of
Mr. Chan and Mr. Pellet. Mr. Chan presented the theory of the disappearing Sultanate. Old Johor
vanished as an entity towards the end of the eighteenth century and new Johor did not come to legal
life for more than 60years, if not even longer. During that period there may have been ties of
personal allegiance but the subjects of the Sultan and Temenggong were in a sort of legal diaspora,
a no-man’s-land writ large ⎯ all hole and no cheese, you might say. Mr.Pellet was less - 58 -
ambitious ⎯ uncharacteristically. He sought not to disqualify the whole of Johor as terra nullius
but just the bits of it that Singapore now wants ⎯ cheese maybe, but at least one significant hole,
conveniently located at the eastern end of the Stra its. Mr. Pellet relied on the burden of proof and
attacked particular documents adduced by Malays ia in support of its claim that PBP was not terra
nullius but formed part of Johor. He was, in his customary manner, fiercely forensic. So much so
that I doubt Singapore’s own claim ⎯ because in these proceedings both Parties have to prove the
propositions on which their case rests ⎯ would survive his examination. After all, Mr.Brownlie
admitted that it is a matter of “inference” that the British Crown treated PBP as terra nullius in
1847 104, and further that the Singapore case of “l awful taking of possession” depends on PBP
105
having been terra nullius in 1846 . He accepted that. Thus the whole of Singapore’s case, as it
has been pleaded, depends on an inference. Fo r Mr. Pellet, no Malaysian inference passes through
the eye of his forensic needle ⎯ but Singapore’s inferences are apparently OK.
3. What is the relationship between the Chan and the Pellet theories of Singapore’s case?
The Chan theory is the more fundamental ⎯ existential, indeed, for Johor and, as Sir Elihu has just
implied, for Singapore as well. But you can only evaluate the evidence di scussed by Mr.Pellet
when you understand what happened to Johor in th e first half of the nineteenth century, and
whatever its demerits as history ⎯ let alone law ⎯ Mr.Chan’s approach has the great merit of
addressing our argument on this point. If Mr.Chan is right, then Malaysia is wrong, since the
Sultanate of Johor did not exist at relevant times and thus had no territory, or if it did somehow
exist on the mainland at least it had no islands. Bu t if Mr. Chan is wrong, then Mr. Pellet is wrong
too. Today, I will show that Mr.Chan is wrong and that the Sultanate did not disappear.
Tomorrow, I will demonstrate the corollary proposition, with your permission, Mr.President ⎯
that Mr. Pellet is wrong too and that the three features were part of Johor.
The Chan theory: radical discontinuity comes to Johor
4. Mr. President, Members of the Court, expr essed through the words of Mr. Chan last week
the discontinuity thesis has the following three elements:
104
CR 2007/21, p. 35, para. 5 (Brownlie).
10CR 2007/21, p. 43, para. 44 (Brownlie). (“The terawful possession’ is synonymous with the effective
occupation of terra nullius . . .”). - 59 -
First, the Sultanate of Johor ⎯ the entity that is now the Malaysian State of Johor ⎯ “dates
from the mid-nineteenth century” 106, specifically from 1855 when Temenggong Daing Ibrahim was
recognized as Sultan 107, in replacement to the Sultan who went off to Kassang, I should say. Malay
108
sovereignty was “based on the allegiance of subjects and not on the control of land” . Thus it
was virtually non-territorial: that is the second proposition. And the third proposition, it was “only
in the late nineteenth century” that the concept of territorial sovereignty became apposite for the
109
Malay States, including Johor .
5. These three propositions can be contradicted on three counts: first, by the expert opinions
given by Professor Houben and Professor Andaya; secondly, by the documentary and historical
evidence, and thirdly by the conduct of the parties, notably the Netherlands and Great Britain.
Mr. Chan’s account flies in the face of all three.
(a) The expert evidence
6. Let me take first the expert evidence. There can be no doubting the expertise of
ProfessorsHouben and Andaya as historians of th e region. Singapore presented no equivalent
evidence of its own. Instead, and remarkably, Mr .Pellet complained that Malaysia did not ask
them to express their opinion on the ultimate legal issue for the Court ⎯ who had legal title to
these three features in 1847 110? Where, it may be asked, are the experts testifying on that question
on behalf of Singapore? For its part Malaysia did not ask these historians, Professors Houben and
Andaya, to second-guess your legal decision. Rath er it asked them to give you guidance on the
historical basis for assessing claims to radical discontinuity ⎯ as made by Singapore in its written
pleadings and as made by Mr. Chan last week.
7. For his part, Professor Andaya states that “shifting political fortunes and divisions within
111
the royal household did not undermine Malay conceptions of continuity of such kingdoms” . The
crucial factor was the ability of the ruler or his descendants to survive and re-establish a new royal
106CR 2007/20, p. 37, para. 3 (Chan).
107
CR 2007/20, p. 51, para. 45 (Chan).
108
CR 2007/20, p. 39, para. 9 (Chan); see also CR 2007/20, p. 42, para 20.
109CR 2007/20, p. 44, para. 23 (Chan).
110CR 2007/21, p. 21, para. 37 (Chan).
111RM, App. I, para. B2. - 60 -
112
centre anywhere in the area of lands and seas they claimed . He notes that such changes in the
centre of the Sultanate were not a sign of wea kness but in the circumstances of resilience and
adaptability 113.
8. Professor Houben explains that “the existence of multiple centres of authority within the
state and shifts in the location of the centres cannot be portrayed in terms of structural weakness or
114
repeated and prolonged decline” .
9. Singapore draws unsustainable inferences fro m traditional concepts of Malay authority in
an attempt to support its theory that PBP was terra nullius. It argues that Malay authority was
based on allegiance rather than territory and because PBP was uninhabited, it was never part of the
Sultanate of Johor.
10. Mr.President, Members of the Court, on analysis all sovereign authority depends on
some combination of territory ⎯ people after all have to be somewhere ⎯ and allegiance ⎯
people need systems of authority and social struct ures. The personal allegi ance of the inhabitants
to the rulers of Johor did not preclude a sense of territory, which also included islands whose
surrounding waters were used by them. Professor Ar iffin has provided details of the Orang Laut’s
activities and allegiance to Johor in what was as much a maritime as a land-based kingdom. This is
supported by a number of statements by British representatives.
⎯ Crawfurd as Envoy of the Governor General of India to Siam and Cochin-China, who said of
the Orang Laut “[t]hey are subjects of the King of Johore . . .” 115.
⎯ Thomson who referred to them in a somewhat am using phrase as a “half fishing half piratical
sect” ⎯ at least they were versatile ⎯ and said “they frequently visit the rock . . .” 116: he was
referring to PBP, not to Peak Rock. They “frequently visit the rock”: they used it, as far as we
can tell, all the time; they were good boatmen.
112
RM, App. I, para. B2.
113RM, App. I, para. B5.
114RM, App. II, para. 15.
115John Crawfurd, Journal of an Embassy from the Governor-General of India to the Courts of Siam and Cochin
China; Exhibiting a View of th e Actual State of Those Kingdoms (London: Colburn, 1828; Historical Reprints,
Kuala Lumpur: Oxford University Press, 1967), 42-43; RM, Vol. 2, Ann. 7 (emphasis added).
116MM, Ann. 58. - 61 -
⎯ The Rules for Light-Keepers, very wisely I might say, provided that the Orang Laut should be
117
kept out of the house . There was no suggestion they should be kept away from their normal
avocation of fishing with occasional rests on the rock, as one can gather.
11. I will mention tomorrow some of the statem ents which indicate that for the nineteenth
century the islands to which Johor’s reach extended included islands far out in the China Sea. It is
sufficient for the moment to say that none of the islands proximate to the coastline of Johor ⎯
whether within or beyond 3 miles, inhabited or uni nhabited, ceased to be part of Johor in 1824, or
ceased to be part of the domains of the people owing allegiance to the Sultan and Temenggong of
Johor.
(b) The documentary evidence
12. I turn to the documentary evidence. I would stress that the Court does not need ⎯ and
perhaps there will be a sense of relief in this ⎯ to decide about events in the seventeenth or
eighteenth century as such. You do not even need to decide as a matter of Malay law the merits of
the dynastic dispute that divided the two sons of the last as they were exclusively pan-Malay Sultan
of Johor. I will not follow in detail Mr.Chan on his roller-coaster ride through the last several
118
centuries ⎯ though unusually for a roller-coaster, Mr. Chan’s ride had many more goings down
than it had comings up. In fact for a roller coaster ride it seemed to be all the way down with minor
hiccups. However, a few words are in order.
The ancient Kingdom of Johor
13. After the fall of Malacca to the Portuguese in 1511, the ruler re-established the centre of
his kingdom at the mouth of the Johor River, that is why it is called the Sultanate of Johor. The
Sultanate developed as a maritime State, and as a regionally significant maritime force in and
around the Straits of Singapore. Johor entered into numerous treaties with the Dutch through the
VOC, starting in 1606, but it was never a mere vassal.
14. In 1655 the Dutch Governor in Malacca, having been informed of Chinese junks trading
with Johor, proposed that the VOC send two boats to cruise to “the south of Singapore Strait under
117
MM, para. 144.
11CR 2007/20, pp. 39-41, paras. 10-15 (Chan). - 62 -
the Hook of Barbukit [AmbassadorFarida showed you Barbukit Hill earlier, and at the Hook of
Barbukit] and in the vicinity of Pedra Branca” in order to prevent Chinese traders from entering the
119
Johor River but to divert them to Malacca or Batavia . The Governor was clearly reluctant to act
without express instructions, stating: “As we ha ve seen often, unless the Johor ruler is greatly
120
attracted to this idea, without express command we dare not put this into effect.” I emphasize
the words “as we have seen often”: this was not an isolated incident.
15. Singapore produces its own translation to counter ProfessorAndaya’s translation of the
Dutch document of 1655 ⎯ the Court does not have to decide that either. Even if Singapore’s
translation is accurate in indicating that the cruisers should await the command of Batavia rather
than the Sultan, what is explicit here is the opera tive displeasure of the Johor ruler, directed to
interference in his waters and in his trade. In fact the Dutch were careful not to antagonize the
Johor ruler because of his control over the Orang Laut who could wreak havoc on the shipping
when they were not fishing.
16. In 1662, a message from the Governor-General and Council of the VOC in Batavia
suggests that the idea was pursued and that two junks were taken from the Strait and diverted to
Malacca. The Governor-General described Johor’s reactions:
“The king of Johor has sent an envoy to the governor of Melaka to indicate his
great displeasure regarding the seizure of the above-mentioned two junks, not without
using offensive and threatening terms in the event that the same thing occurs in the
future . . .”21
Johor’s “great displeasure” was at the infringement of its territorial rights. The waters and the
islands concerned are the very waters and islands concerned in this case. Even in the seventeenth
century the coast around Point Romania was linked to PBP.
17. After 1699 the principal centre of Johor shifted from its original peninsular location to
the island of Riau, south of the Straits. It was anot her shift of capital, it did not affect the extent of
the Sultanate as such. The extent of the Sultanate of Johor’s position in the region is demonstrated
by the Andayas’ description that “by the late seventeenth century, Johor had become the
119
MM, Ann. 22.
120
MM, Ann. 22.
12MM, Ann. 21. - 63 -
122
pre-eminent power in the Straits” . It is indisputable that its territory extended to the north and
south of the Straits and to the east and the west.
The period from 1784
18. During the years after 1784, culminating in 1824, the Sultanate of Johor was
reconfigured as a result of Dutch and British interfe rence. Singapore claims that in 1784 Johor’s
123
independence was lost to the Dutch: old Johor “disintegrated in the eighteenth century” .
Professor Houben criticizes Singapore’s account as not reflecting the historical situation 124. After
1784, when the Dutch destroyed the Sultan’s capital at Riau, the Sultan went to Pahang, then to
Trengganu and finally to Lingga. He died in 181 2 leaving two sons, who disputed the succession
to the throne. The Dutch supported the younger son, AbdulRahman, while the older son,
Husain ⎯ who had been chosen by his father as his successor in accordance with Malay custom ⎯
was recognized by the British and the Temenggong. There was a not uncharacteristic disagreement
between two States in the region as to which of two successors to recognize. Anyone who knows
anything about European history will recognize the scenario.
19. Briefly, the trajectory of Johor in this period was as follows 125:
(1) First, the Temenggong was the third officer of St ate in the Empire; his title went back to its
foundation in the early sixteenth century. By 1 818 he was based in Singapore, which was part
of his domains. They included but were not lim ited to islands in and around the Straits; they
extended to mainland Johor and south of the Straits, for example, to the Carimons.
(2) The Temenggong alone signed the first Agreemen t of 30 January 1819 with Raffles, providing
for the establishment of a factory at what was described as “Singapore-Johor” 126.
122B. W. Andaya & L. Y. Andaya, A History of Malaysia (Houndsmill, Basingstoke: Palgrave, rev.ed, 2001);
76, 82.
123CR 2007/20, p. 37, para. 3 (Chan).
124RM, App. II, para. 15.
125See the reports by Professors Andaya and Houben, RM, Vol.1, Apps.1 & 2 respectively and works there
cited.
126
MM, Ann. 2. - 64 -
(3) Both the Temenggong and Sultain Husein signed the Treaty of Friendship and Alliance of
127
6 February 1819 . At this time the dynastic conflict between Husein and his brother
Abdul Rahman remained unresolved, the Dutch taking one side, the British another.
(4) Several supplementary agreements concerning Singapore were signed with the British in these
128
years .
(5)In 1825 the Temenggong died and was succeed ed by DaingIbrahim who, with his son
AbuBakar, transformed the fortunes of the Su ltanate. Between them they held power for
70 years.
(6) At first there was considerable tension between the British and the Johor authorities. But the
British found that they needed the Temenggong in their efforts against what they termed
“piracy”; this collaboration, which began in the 1830s, eventually led to the British
presentation of a ceremonial sword to the Temenggong on 5 September 1846 12.
(7) In the 1840s the Temenggong, whose domain had been largely maritime, began to settle the
interior of peninsula Johor, licensing gutta-per cha collectors and later gambier plantations ⎯
given the time, I will not explain what gutta -percha and gambier are; no doubt the Court
already knows.
(8) The Agreement between the Sultan and Temenggong of 1855 130, which Mr.Chan sees as the
start of Johor, was nothing of the kind. It was merely the beginning of the end for the Sultan,
who was confined to a small territory of Kassang on the west coast. In 1885 Temenggong
Abu Bakar became officially the Sultan.
131
(9) Treaties continued to be made during this period with the British, e.g., in 1862 and with
132
other Malay States, e.g., with Pahang in 1862 ). Johor did not become a Protected State until
1885 133 and did not accept a British Resident until 1914 134.
12MM, Ann. 52.
12See, e.g., MM, Ann. 4.
129
MM, Ann. 53.
130
MM, Ann. 7.
131
MM, Ann. 9.
13MM, Ann. 8.
13MM, Ann. 10.
134
MM, Ann. 11. - 65 -
(10)The present Sultan of Johor is the si xth generation from AbdulRahman who became
135
Temenggong in 1806 . During the same period ⎯ 1806 to the present ⎯ the Dutch have had
six sovereigns, the British have had nine.
(c) State practice affecting the Sultanate
20. Likewise, British and Dutch practice contradicts Singapore’s theory, as expressed by
Mr.Chan. Singapore’s theory implies that every island or other parcel of land that was not
permanently inhabited was terra nullius . But Great Britain acquired sovereignty over many
uninhabited islands within 10miles from the Isla nd of Singapore. The Crawfurd Treaty entailed
British recognition of the prior authority of the Sultan and Temenggong over these islands many of
which were uninhabited 136.
21. The practice of the two States in respect of their spheres will be dealt with by my
colleague Nico Schrijver. It is sufficient to refe r to three treaties which cover the whole history of
Johor since the Anglo-Dutch Treaty of 1824 split the two Sultanates. I am not so concerned with
the terms of these treaties, which will be discussed by my colleagues, as with the parties to them.
⎯ The first is the 1824 Crawfurd Treaty: a “Tre aty of Friendship between the Honourable the
English East India Company on the one side, and their Highnesses the Sultan and Tumongong
of Johore on the other”. It may be noted that one of the named parties to this bilateral treaty
did cease to exist 30years later ⎯ the Honourable the English East India Company ⎯
although, of course, it represented the British Cr own, which continued. I suppose that, to
paraphrase Hamlet, it is more honourable to continue to exist than not 137. But of the two
named allies signatory to the 1824 Crawfurd Tr eaty only Johor achieved the distinction of
continuation.
⎯ The second treaty is the 192J 7ohore Territorial Waters Agreement, between
Sir Hugh Charles Clifford, Governor of the Straits Settlements on behalf of the Crown, and
SultanIbrahim, son of AbuBakar, son of Da ingIbrahim, son of AbdulRahman. He is
described in the Agreement as Sultan of the State and Territory of Johor. You have heard from
13For the genealogy see RM, 50.
136
Judges’ folder, tab 40.
13W. Shakespeare, Hamlet, Act 3, Scene 1, ll 62-5. - 66 -
Sir Eli about Governor Clifford who, in his spare time, wrote for the Encyclopedia Brittannica.
The Straits Settlements were wound up in 1946. Johor continued. And the 1927 Agreement
was an agreement of retrocession. The parties acknowledged that the Treaty of 1824 had been
concluded between them. No sign of any vacuum or discontinuity.
⎯ The third treaty is the 1995Malaysia-Singapor e Delimitation Agreement, expressly made to
delimit more precisely, and to fix, the territorial waters boundary ⎯ I stress, the territorial
waters boundary ⎯ between the two States “in accordance with the Straits Settlement and
Johor Waters Agreement 1927”. The preamble states ⎯ you can see it on the screen:
“And whereas the State and Territory of Johor has been succeeded to by
Malaysia and is [sic.] a State within Malaysia and the Settlement of Singapore has
138
been succeeded to by the Republic of Singapore; . . .”
Thus the Parties to the present case, before this Court, recognized that their predecessors in title had
concluded an agreement in 1927, which itself re cognized that their boundaries had been fixed in
principle by them in 1824. No sign of discontinuity here!
22. Mr.President, Members of the Court, there is no basis for Singapore’s image of the
“disappearing Sultanate”. In particular, the Chan thesis is contradicted by the very transactions on
which the territorial extent of modern Singapore rests.
Mr. President, that would be a convenient moment to break.
Mr. President, Members of the Court, thank you for your patient attention.
The VICE-PRESIDENT, Acting President: And, I thank you, Professor Crawford, for your
statement. This brings to a close this morni ng’s sitting. We shall now rise and meet tomorrow
morning at 10 o’clock.
The Court rose at 1.05 p.m.
___________
138
Judges’ folder, tab. 41.
Public sitting held on Tuesday 13 November 2007, at 10 a.m., at the Peace Palace, Vice-President Al-Khasawneh, Acting President, presiding in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)