INTERNATIONAL COURTOF JUSTICE
CASE CONCERNING SOVEREIGNTYOVER
PEDRA BRANCAI PULAU BATU PUTEH,
MIDDLE ROCKSAND SOUTH LEDGE
(MALAYSIA/ SINGAPORE)
MEMORIALOF
SINGAPORE
VOLUME1
25MARCH2004 MEMORIAL OF SINGAPORE
CHAPTER I — INTRODUCTION...........................................................................1
Section I. The Dispute.....................................................................................1
Section II. The Parties.......................................................................................2
Section III. Structure of this Memorial..............................................................4
CHAPTER II — THE PHYSICAL AND GEOGRAPHICAL
SETTING.............................................................................................................. 7
Section I. Pedra Branca...................................................................................7
Section II. Middle Rocks and South Ledge....................................................11
Section III. Pedra Branca, Middle Rocks and South Ledge form a
Distinct Group of Features............................................................ 13
CHAPTER III — HISTORICAL BACKGROUND.............................................. 15
CHAPTER IV — THE DISPUTE...........................................................................21
Section I. The Origins of the Dispute............................................................21
Section II. The Special Agreement.................................................................25
CHAPTER V — THE ACQUISITION OF TITLE TO PEDRA
BRANCA IN 1847-1851.....................................................................................29
Section I. Introduction...................................................................................29
Section II. The Basis of Claim........................................................................30
Section III. The Decision to Build the Lighthouse was Taken by
the British Crown..........................................................................30
Section IV. The Constitutional Relationships: The Government of
India, the Court of Directors of the East India
Company and the Board of Control..............................................32
Section V. The Entire Process of Planning, Choice of Site and
Construction was Subject to the Control and
Approval of the British Government and its
Representatives .............................................................................33
A. I NTRODUCTION .........................................................................33
B. T HE C HOICE OF P EDRA BRANCA AS THE SITE OF
THE LIGHTHOUSE .....................................................................42
Page i MEMORIAL OF SINGAPORE
CHAPTER V (continued)
Section V. The Entire Process of Planning, Choice of Site and
Construction was Subject to the Control and
Approval of the British Government and its
Representatives (continued)
C. T HECHOICE OF THENAME OF HORSBURGH
L IGHTHOUSE............................................................................46
D. T HEPLANNING OF THECONSTRUCTION W ORK ........................47
1. Developments in 1847 and 1848........................................47
2. Developments in 1849 .......................................................49
3. Developments in 1850 .......................................................50
E. T HEFUNDING OF THECONSTRUCTION W ORK ..........................54
F. V ISITS TPEDRA BRANCA PRIOR TO THE
C OMPLETION OFCONSTRUCTION .............................................58
G. L OGISTICAS UPPORTPROVIDED BY GOVERNMENT
V ESSELS...................................................................................61
H. T HEPROVISION OFPROTECTION BYG UNBOATS ......................62
I. T HEG OVERNMENT OF NDIA WAS THEEXCLUSIVE
SOURCE OF LIGHTHOUSE EQUIPMENT AND TOOLS...................64
J. T HECONSTRUCTION C ONTRACT..............................................65
K. T HESPECIFICATIONS ANE STIMATES FOR THE
C ONSTRUCTION........................................................................66
L. T HEM AINTENANCE OFPUBLIC ORDER DURING
THE PROCESS OFPREPARATION AND
C ONSTRUCTION........................................................................68
M. T HECUTTING OFR AINCHANNELS ON PEDRA
B RANCA ...................................................................................69
Section VI.Official Visits to Pedra Branca after the Completion
of the Construction: the Commissioning of the
Lighthouse..................................................................................... 70
Section VII. Further Evidence of Lawful Possession........................................71
A. T HEPANEL IN THEVISITORSROOM .........................................71
B. THE BRITISHNOTICE TOM ARINERS DATE24
SEPTEMBER 1851.....................................................................72
C. THE M ARINEENSIGN WAS FLOWN............................................73
Section VIII. The Manifestation of the Will of the British Crown as
a Sufficient Mode of Lawful Possession.......................................74
Section IX.The Taking of Possession Elicited No Opposition
from Other Powers........................................................................77
Page ii MEMORIAL OF SINGAPORE
CHAPTER V (continued)
Section X. The Legal Significance of the Lighthouse in these
Proceedings...................................................................................78
Section XI.Title to Pedra Branca was Acquired by the United
Kingdom in Accordance with the Legal Principles
Governing Acquisition of Territory in the Period
1847-1851 .....................................................................................79
A. T HEB ASIS OSINGAPORE’ST ITL...........................................79
B. T HED OCTRINE OFNTER TEMPORAL LAW ...............................79
C. T HEPRINCIPLESGOVERNING A CQUISITION OF
TERRITORY IN THM IDDLE ANDLATE 19TH
CENTURY..................................................................................81
Section XII. Conclusions...................................................................................86
CHAPTER VI — THE CONTINUOUS, PEACEFUL AND
EFFECTIVE EXERCISE OF STATE AUTHORITY OVER
PEDRA BRANCA BY SINGAPORE AND HER
PREDECESSORS IN TITLE SINCE 1851..................................................... 89
Section I. Introduction...................................................................................89
Section II.Since 1851, Singapore has Continuously Exercised
State Authority over Pedra Branca................................................93
A. S INGAPORE AND HERPREDECESSORS INTITLE
ENACTED LEGISLATIONSPECIFICALLYRELATING
TOPEDRA BRANCA ..................................................................93
B. T HEB RITISC ROWN AND,S UBSEQUENTLY,
SINGAPOREM AINTAINED, MPROVED AND
STAFFED THELIGHTHOUSE AND OTHER FACILITIES
ONPEDRA B RANCA ..................................................................99
C. SINGAPORE S EXERCISE OFREGULATORY
AUTHORITY AND URISDICTION OVERPERSONNEL
STATIONED ONPEDRA BRANCA .............................................103
D. T HESTATE ACTIVITIES OF THUNITED KINGDOM
ANDS INGAPORE ONPEDRA BRANCA R ELATED TO
THEISLAND AS AW HOLE,NOT SIMPLY THE
LIGHTHOUSE..........................................................................105
1. The Authorities in Singapore Used Pedra Branca
as a Meteorological Data Collection Station...................105
2. The Display of a British Marine Ensign and, after
Independence, a Singapore Ensign over Pedra
Branca ............................................................................. 107
Page iii MEMORIAL OF SINGAPORE
CHAPTER VI (continued)
Section II. Since 1851, Singapore has Continuously Exercised
State Authority over Pedra Branca (continued)
D. THE STATE ACTIVITIES OF THUNITED KINGDOM
AND SINGAPORE ON PEDRA BRANCA R ELATED TO
THE SLAND AS AW HOLE ,NOT SIMPLY THE
LIGHTHOUSE (CONTINUED)
3. Singapore’s Exclusive Control over Visits to Pedra
Branca and her Use of the Island for other Official
Purposes.......................................................................... 109
4. Permission Given to Foreign Parties to Operate in
the Territorial Waters of Pedra Branca...........................113
5. The Conduct of Naval Patrols and Exercises
around Pedra Branca by Singapore and the
Installation of Military Communications
Equipment on Pedra Branca............................................114
6. The Investigation by Singapore of Navigational
Hazards and Shipwrecks in the Territorial Waters
of Pedra Branca...............................................................118
7. Investigation by the Singapore Coroner’s Court
into Accidental Deaths off Pedra Branca........................ 122
8. Proposals by the Port of Singapore Authority to
Reclaim Areas Around Pedra Branca .............................123
Section III.The Legal Consequences of Singapore’s Long and
Peaceful Possession of Pedra Branca in the
Maintenance of her Title.............................................................124
A. THE CONSTRUCTION AND C ONTINUED
M AINTENANCE OF THELIGHTHOUSE ON PEDRA
BRANCA ISE VIDENCEC ONFIRMING SINGAPORE’S
SOVEREIGNTY O VER THEISLAND ..........................................125
B. BY EXERCISINGSTATE A UTHORITY OVER PEDRA
BRANCA , INGAPORE AND H ERPREDECESSORS IN
TITLED EMONSTRATED T HEIRCONTINUED INTENT
TO ACT ASSOVEREIGN ...........................................................127
1. The Exercise of Legislative Authority over Pedra
Branca .............................................................................128
2. Singapore Carried Out Numerous Sovereign Acts
Over Pedra Branca and Within its Territorial
Waters .............................................................................129
Section IV. In Contrast to Singapore, Malaysia has Never Carried
Out any Sovereign Acts on Pedra Branca...................................132
Section V. Conclusions.................................................................................136
Page iv MEMORIAL OF SINGAPORE
CHAPTER VII — MALAYSIA’S RECOGNITION OF
SINGAPORE’S SOVEREIGNTY OVER PEDRA BRANCA.................... 139
Section I. Malaysia’s Implicit and Express Recognition of
Singapore’s Sovereignty Over Pedra Branca..............................140
A. MALAYSIA S ELOQUENT SILENCE IN THFACE OF
SINGAPORE’SA CTS OFSOVEREIGNTY....................................140
1. Malaysia’s Persistent Silence..........................................141
2. Legal Effects of Malaysia’s Silence.................................146
B. MALAYSIA S FORMAL A CKNOWLEDGEMENT OF
SINGAPORE’SSOVEREIGNTY OVER PEDRA B RANCA ..............151
C. MALAYSIA S REQUESTS TOSINGAPORE FOR
AUTHORISATION TO HAVEA CCESS TOPEDRA
BRANCA AND ITSW ATERS .....................................................151
Section II. Official Malaysian Maps Recognising Singapore’s
Sovereignty Over Pedra Branca..................................................155
Section III.Conclusions................................................................................. 160
CHAPTER VIII — JOHOR’S EXPRESS DISCLAIMER OF
TITLE TO PEDRA BRANCA........................................................................ 161
Section I. The Letter dated 21 September 1953..........................................162
A. THE COLONIAL GOVERNMENT ’SE NQUIRY,1953...................162
B. THER EACTION OF THEOHOR G OVERNMENT ........................164
Section II. The Legal Nature of the Letter from the Acting State
Secretary of Johor of 21 September 1953...................................166
A. A NU NCONDITIONAL DISCLAIMER........................................166
B. AB INDINGU NILATERALU NDERTAKING ................................168
Section III.Conclusions.................................................................................178
CHAPTER IX — MIDDLE ROCKS AND SOUTH LEDGE ............................ 179
Section I. Middle Rocks and South Ledge Form a Single Group
of Maritime Features Together with Pedra Branca..................... 180
A. AS INGLEG ROUP OFM ARITIMEFEATURES ............................181
B. MIDDLE ROCKS AND SOUTH LEDGE FALL W ITHIN
PEDRA BRANCA ’STERRITORIALW ATERS ..............................184
Section II. Middle Rocks and South Ledge are Not Capable of
Independent Appropriation.........................................................190
A. SOUTH LEDGE ........................................................................190
B. MIDDLE ROCKS ......................................................................194
SUBMISSIONS ....................................................................................................... 199
LIST OF ANNEXES............................................................................................... 201
Page vMEMORIAL OF SINGAPORE
Page vi MEMORIAL OF SINGAPORE
LIST OF MAPS
Number Title of Map Location
Map 1 General Setting after page 3
Map 2 Location of Singapore, Pedra Branca and Johor after page 8
Map 3 Sketch Map of the Vicinity of Pedra Branca after page 12
Map 4 Extract from British Admiralty Chart 3831 entitled after page 13
“Indonesia, Malaysia and Singapore, Singapore
Strait, Eastern Part” (1979)
Map 5 Map entitled “The Straits of Sincapore”, published by after page 13
Laurie and Whittle (1799)
Map 6 Inset entitled “A Plan of the Strait of Singapore fromafter page 13
the latest Surveys”, extracted from map entitled “A
New Chart of the Straits of Malacca and Singapore
drawn from the latest Surveys, with Additions and
Improvements”, published by Norie (1831)
Map 7 Map entitled “Territorial Waters and Continental after page 21
Shelf Boundaries of Malaysia”, published by the
Director of National Mapping, Malaysia (1979)
Map 8 Extract from map entitled “Territorial Waters and page 22
Continental Shelf Boundaries of Malaysia”,
published by the Director of National Mapping,
Malaysia (1979), focussing on the Area Around
Pedra Branca
Map 9 Chart of the Vicinity of the Horsburgh Lighthouse after page 36
and Adjacent Malayan Coast by J.T. Thomson,
Government Surveyor (1851)
Map 10 Extract from British Admiralty Chart 3831 (1979), after page 116
annotated to Show Patrol Sector F5 of thRepublic
ofSingapore Navy
Map 11 Map attached to Malaysian Request to Conduct, in after page 153
Singapore Territorial Waters, a Master Plan Study of
Hydro-Electric Potentials of Sarawak and Feasibility
Study of Pelagus Rapids Hydro-Electric with HVDC
Transmission to Peninsular Malaysia
Map 12 Map entitled “Pengerang”, published by the Surveyor after page 158
General, Federation of Malaya (Series L7010,
Edition 1-SDFM) (1962)
Page vii MEMORIAL OF SINGAPORE
Number Title of Map Location
Map 13 Map entitled “Pengerang”, published by the Surveyor after page 159
General, Federation of Malaya (Series L7010,
Edition 2-SDFM) (1962)
Map 14 Map entitled “Pengerang”, published by the Director after page 159
of National Mapping, Malaysia (Series L7010,
Edition 2-DNMM) (1965)
Map 15 Map entitled “Pengerang”, published by the Director after page 159
of National Mapping, Malaysia (Series L7010,
Edition 3-PPNM) (1974)
Map 16 Sketch Map showing 3-nautical mile Radius Around after page 188
Pedra Branca
Map 17 Extract from Malaysian Maritime Chart 515 entitled after page 191
“Silat Singapura” published under the
superintendence of the Hydrographer, Royal
Malaysian Navy (1998)
LIST OF ILLUSTRATIONS
Number Description of Illustration Location
Image 1 Etching of Pedra Branca, drawn and engraved by after Page 9
Thomas and William Daniell, Showing Pedra Branca
before Horsburgh Lighthouse was Built (circa 1820)
Image 2 Etching of Pedra Branca Showing Completed after Page 10
Horsburgh Lighthouse with Marine Ensign (1851)
Image 3 Photograph Showing Pedra Branca as it Appears after Page 10
Today with Middle Rocks in the Background
Image 4 Aerial Photograph of Pedra Branca after Page 10
Image 5 Photograph Showing South Ledge Completely after Page 11
Submerged at High Tide, with the Wreck of MV
Gichoon Showing
Image 6 Photograph Showing South Ledge at Low Tide after Page 11
Image 7 Photograph Showing South Ledge at Low Tide, with after Page 11
Two Persons on the Largest Rock
Page viii MEMORIAL OF SINGAPORE
Number Description of Illustration Location
Image 8 Photograph Showing Middle Rocks with the Western after Page 12
Cluster in Foreground and the Eastern Cluster in
Background
Image 9 Photograph Showing the Eastern Cluster of Middle after Page 12
Rocks
Image 10 Close-up Photograph Showing Persons Landing on after Page 12
the Western Cluster of Middle Rocks
Images 11 Paintings by J.T. Thomson of Pedra Branca, Showing after Page 61
and 12 Thomson Supervising Construction Activities on the
Island (1850)
Image 13 Painting by J.T. Thomson of Pedra Branca, Showing after Page 61
Quarters for Workers Constructing Horsburgh
Lighthouse (1850)
Image 14 Photograph of Plaque Installed in the Visitors’ Room after Page 72
of Horsburgh Lighthouse
Image 15 Painting by J.T. Thomson of Pedra Branca, Showing after Page 74
Marine Ensign Flying from Pedra Branca During
Construction of Horsburgh Lighthouse (1850-1851)
Image 16 Photograph of Pedra Branca, Showing the Various after Page 102
Structures and Facilities on the Island
Image 17 Photograph of Pedra Branca Taken Sometime Prior after Page 107
to 1970, Showing Marine Ensign Flying from
Horsburgh Lighthouse
Image 18 Photograph of Pedra Branca Taken on 26 Apr 1974, after Page 107
with Marine Ensign Highlighted
Images 19 Recent Photographs of Pedra Branca Showing after Page 107
and 20 Marine Ensign Flying from Horsburgh Lighthouse
Image 21 Photograph of South Ledge at Low Tide with the after Page 191
Wreck of MV Gichoon in the Background
Image 22 Time-series Photographs of South Ledge at Various after Page 191
Tide Levels (at High Tide, only the wreck of MV
Gichoon is Showing)
Image 23 Three-Dimensional Diagrams of the Sea-Bed Around after Page 195
Pedra Branca, Middle Rocks and South Ledge
Page ix MEMORIAL OF SINGAPORE
A NOTE ABOUT SPELLING
A variety of spellings for Malay term s and names of places and persons
appears in the historical documents referred to in this Memorial.
For consistency, the standardised spelling appearing in the left-hand
column below is used in the text of the Memorial, except when quoting from
historical documents (where the actual spelling used in the historical document
is retained).
Standard Spelling used in this Variant Spellings used in Historical
Memorial Documents
Abdul Rahman Abdu’r-Rahman
Ali Allie
Hooghly Hoogly
Hussein Hussain
Johor Johore
Lingga Linga, Lingan, Lingen, Lingin,
Linging
Pulau Pulo
Puteh Putih
Riau Rhio, Rio, Riouw
Romania Rumania, Rumenia, Remunia,
Ramunia
Siincaorur Sincapore,
TemenggTongonTgongongong,
Page x MEMORIAL OF
THE REPUBLIC OF SINGAPORE
CHAPTER I
INTRODUCTION
1.1 This Memorial is filed pursuant to the Court’s Order dated 1 September
2003 fixing 25 March 2004 as the time-limit for the filing of the Memorial of the
Republic of Singapore (“Singapore”).
Section I. The Dispute
1.2 The main subject matter of the dispute is a small island called Pedra
Branca situated in the middle of the Straits of Singapor e at the entrance to the
South China Sea. Pedra Branca has been part of Singapore’s territory since the
1840s. On 21 December 1979, Malaysia published a map entitled “Territorial
Waters and Continental Shelf Boundaries of Malaysia”. By this map, Malaysia
purported to include Pedr a Branca within Malaysia’s territorial waters.
Singapore duly lodged a protest with Mala ysia against this paper claim on 14
February 1980.
1.3 By a Special Agreement dated 6 Febr uary 2003 and notified to the Court
on 24 July 2003, Malaysia and Singapore agreed to submit the foregoing dispute
1
to the Court. By Article 2 of the Special Agreement:
“The Court is requested to determine whether sovereignty over:-
(a) Pedra Branca/Pulau Batu Puteh;
1 The Special Agreement is attached to this Memorial as Annex 1.
– Page 1 – (b) Middle Rocks;
(c) South Ledge,
belongs to Malaysia or the Republic of Singapore.”
(Middle Rocks and South Le dge are two maritime featur es lying approximately
0.6 nautical miles and 2.1 nautical miles from Pedra Branca.)
1.4 The Special Agreement does not request the Co urt to enter into an
exercise of delimitation or to make decl arations concerning fishing or other
economic rights. However, as is demonstrated in Chapter IX, principles of the
Law of the Sea are relevant in dete rmining whether sovereignty over Middle
Rocks and South Ledge belongs to Singapore or Malaysia.
Section II. The Parties
1.5 Malaysia is a federal State made up of 13 constituent states.She was
formed in 1963 through the merger of the Federation of Malaya with the State of
Singapore (then a British colony) and the British territories of Sabah and
Sarawak in Borneo. Among the 13 constituent states of Malaysia, the one that is
relevant to this dispute is the State of Johor.t is the state which is
geographically closest to Singapore.
1.6 In the context of this dispute, Mala ysia is the successor State to the State
of Johor in relation to her claim of sovereignty over Pedra Branca.
1.7 Geographically, the Republic of Si ngapore consists of the main island of
Singapore and 50 or so sm aller islands and islets.The English East India
Company (“EIC”) established a trading station at Singapore in February
1819. In 1824, the EIC obtained, on behalf of the British Government, full
sovereignty over the island of Singapore through a cession treaty with the local
Malay chiefs.Singapore remained und er British rule until 1963, when she
– Page 2 –became part of the newly fo rmed Federation of Malays ia. Singapore separated
from Malaysia in 1965 to become an independent and sovereign republic.
1.8 The Republic of Singapore has a total area of about 680 square kilometres
(or 260 square miles) and a population of about 4 million. Her land area is
2
slightly smaller th an New York City or roughly one-third the size of Greater
London. In comparison, Malaysia has a land area of 329,747 square kilometres
(slightly larger than Italy but slightly smaller than Germany) including more
than 2,000 off-shore islands . Malaysia has a population of 24.5 million.
1.9 Singapore is situated south of the Malay Peninsula, at the eastern entrance
of the Straits of Malacca. To the north, Singapore is separated from Malaysia by
the Straits of Johor, but the two States are connected by a causeway and a
bridge. To the south, Singapore is se parated from Indonesia by the Straits of
Singapore. The position of Singapore rela tive to neighbouring States is shown
in Map 1 (General Setting), overleaf.
1.10 In the context of this dispute, Si ngapore is the succe ssor in title to the
United Kingdom 4.
2
Encyclopaedia Britannica (15th ed., 1988) states that the area of New York City is about 787
square kilometres or 304 square miles.
3
Encyclopaedia Britannica (15th ed., 1988) states that the area of Malaysia is about 329,747
square kilometres or 127,356 square miles.
4
Throughout this Memorial, the terms “United Kingdom”, “Great Britain” and “Britain” will be
used interchangeably as is appropriate to the context.
– Page 3 – Section III. Structure of this Memorial
1.11 In this Memorial, Singapore will sh ow that since 1847, Pedra Branca has
been administered as part of Singapore ’s territory contin uously, without any
protest or challenge from Malaysia (or any of her predecessors) until the present
dispute arose in 1979. Over the span of more than 150 years, Singapore (and her
predecessors in title) has exercised her un interrupted sovereign authority over
Pedra Branca and its surrounding waters.
1.12 This Memorial is divided into nine Chapters, including this Chapter.
1.13 Chapter II provides a description of Pedra Branca, Middle Rocks and
South Ledge.
1.14 Chapter III provides a summary of the relevant historical background
beginning from the founding of Singapore in 1819 to the present day.
1.15 Chapter IV explains in greater detail the origin and context of the dispute,
and explains how the dispute came to be submitted to the Court.
1.16 Chapter V explains how the United Kingdom (as predecessor of
Singapore) came to acquire sovereignty over Pedra Branca. The Chapter
discusses the applicable principles of international law, and demonstrates how
Singapore effectively appropriated the is land in accordance with principles
governing the acquisition of territory in the middle and late 19th century.
1.17 Chapter VI demonstrates how Singa pore has effectively and peacefully
exercised State authority over Pedra Br anca after taking possession of it, and
discusses the legal consequences that flow from this exercise of State authority.
– Page 4 –1.18 Chapter VII discusses Malaysia’s recognition of Singapore’s sovereignty
over Pedra Branca, both expressly by Mala ysia’s official acts and implicitly by
Malaysia’s persistent silence in the face of Singapore’s acts of sovereignty. The
Chapter also highlights a number of offi cial maps published by the Malaysian
government which expressly recognised Pedra Branca as part of Singapore.
1.19 Chapter VIII discusses the express disclaimer of title made through
official correspondence in 1953 by the State of Johor (Malaysia’s
predecessor). This disclaimer is legally binding on Malaysia, and must be given
effect.
1.20 Chapter IX addresses the question of sovereignty over Middle Rocks and
South Ledge. The Chapter shows that these minor geographical features, found
very near to Pedra Branca, must belo ng to the State adjudicated to have
sovereignty over Pedra Branca.
– Page 5 – CHAPTER II
THE PHYSICAL AND GEOGRAPHICAL SETTING
2.1 This Chapter describes the physic al and geographical setting of Pedra
Branca, Middle Rocks and South Ledge.
Section I. Pedra Branca
2.2 Pedra Branca is an island measuri ng 137 metres long, with an average
width of 60 metres and covering an ar ea of about 8,560 squa re metres at low
tide. It is described in the Malacca Strait Pilot in the following manner :
“PEDRA BRANCA, lying in the middle of the eastern entrance of
Singapore strait, nearly 8 miles fr om either shore, is 24 feet (73)
high. It is mn the wemtern edge of a ban1/4ith depths of 6 to 10
fathoms (11 0 to 18 3), which extends 1 miles eastward of it. It
will be known by the lighthouse, which was erected on it in 1851,
and named after Horsburgh, the celebrated hydrographer, whose
labours have in a high degree bene fited the inte5ests of navigation
and commerce in every part of the eastern seas.”
2.3 Pedra Branca is made entirely of granite. No vegetation grows
there.There is no eviden ce that Pedra Branca was ever inhabited before the
British began constructing the Horsburgh Lighthouse there.Ever since the
construction of the Lighthouse, the only people resident on Pedra Branca have
been the personnel manning the lighthouse and other equipment on the island.
5 Malacca Strait Pilot (1st ed., 1924), at p. 206. See also, Malacca Strait Pilot (2nd ed., 1934), at
p. 213; Malacca Strait Pilot (3rd ed., 1946), at p. 217; Malacca Strait Pilot (4th ed., 1958), at p.
242. Relevant extracts from the first to the fifth editions of the Malacca Strait Pilot are attached
to this Memorial as Annex 79.
– Page 7 –2.4 Locate at19.8’N, 104º24.4’E, Pedra Branca lies 24 nautical miles to
the east of Singapore, at th e eastern entrance to the Straits of Singapore, sitting
almost exactly in the middle of the straits (7.7 nautic al miles from the southern
coast of Johor (Malaysia) to the north and 7.6 nautical miles from the northern
coast of Bintan (Indonesia) to the south ). Thus, J.T. Thomson, the Government
Surveyor who designed and constructed Horsburgh Lighthouse on Pedra Branca,
described it as:
“…situated at the eastern extremity oftheStraitsofSingapore,
nearly in mid-channel…” 6
The navigational guides of that period also described it in similar fashion. For
example, the 1817 edition of the famous India Directory, which was authored by
the British Hydrographer Captain James Horsburgh, describes Pedra Branca as:
7
“...situated in the middle of the entrance of Sincapour strait …”
Map 2 (Location of Singapore, Pedra Branca and Johor ) overleaf shows the
location of Pedra Branca relative to Singapore, Malaysia and Indonesia.
2.5 Pedra Branca has been known to mariners for centuries.The name
“Pedra Branca” is Portuguese for “white rock”, a reference to its original whitish
appearance caused by the accumulation of bird droppings over hundreds of
years. Pedra Branca has been known by that name and other European language
variations thereof in European maps and sailing directi ons since the 16th
6 Thomson J.T., Account of the Horsburgh Light-house , 6 Journal of the Indian Archipelago and
Eastern Asia 376 (1852), at p. 378. The Journal of the Indian Archipelago and Eastern Asia is
also known as Logan’s Journal as it was edited by J.R. Logan.Thomson’s account of the
construction of Horsburgh Lighthouse on Pedra Br anca is attached to this Memorial as Annex
61. His account is hereafter referred to as “Thomson’s Account”.
7
Horsburgh J., India Directory (2nd ed., 1817), at pp. 19attached to this Memorial as
Annex 3.
– Page 8 – 8
century . It was similarly referred to as “B ai Jiao” (meaning “white reef”) in
9
Chinese maps and sailing directions dating back to the 15th century .
2.6 Pedra Branca’s position right in the middle of the Straits of Singapore as
it opens into the South China Sea has made it a serious navigational hazard on an
important international trade route.Fr om 1824 to 1851 al one, 16 ships were
wrecked and another nine stranded after running aground in the vicinity of Pedra
Branca 10. In 1847, the British colonial gov ernment in Singapor e occupied the
island and proceeded to build a lighthouse on it named “Horsburgh Lighthouse”
in memory of the famous British hydr ographer James Horsburgh. Commencing
operations in 1851, Horsburgh Lighthouse was the first lighthouse to be built by
the British in South East Asia. Shown on the following pages are:
(a) an etching of Pedra Branca, dr awn and engraved by Thomas and
William Daniell, showing Pedra Branca before Horsburgh
Lighthouse was built (circa 1820) (Image 1);
8
See Warnsinck J.C.M. (ed.), Jan Huygen van Linschoten’s Itinerario Voyage ofte Schipvaert
naer Oost Ofte Portugaels Indien, 1579-1592 (1939), at pp. 94, 101-102 (Dutch original, with
English translation), attached to this Memorial as Annex 83:
Dutch Original English Translation
Kap. 20: Die Navigatie ende rechte Coursen Chapter 20: The navigation and correct
van Malacca af nae Macau in China... courses from Malacca to Macao in China…
Van dese Eylandekens 2 mylen z.z.o aen, is From these small islands approximately 2 sea
gelegen die Pedra Branqua, (dat is, witte steenmiles in South-Southeasterly direction is
geseyt) welke is een Eylandeken van witte situated Pedra Branca (that is to say, the white
steen-rootsen ofte Clippen, hebbende daer rock) which is a small island comprising
dicht by noch etlicke andere Rudtsen ende white protruding rocks and boulders, and
Clippen, ghelegen aende zuydtzyde daer van nearby located on its Southern side there are
af, van welcke zyde inghelijcks ghelegen ‘t also other sharp rocks and boulders which is
Eylandt van Binton… the side where is also situated the island of
Bintan…
Men heeft rontsom de Pedra branqua, en daer Around Pedra Branca and close by one has
dicht by 6 vadem diepten, suyver gront; sult u water measuring 6 Dutch fathoms [in] depth,
altoos wachten vande Clippen ende Rudtsen on clean ground; one also has to watch the
daer by gelegen… boulders and sharp rocks which are situated
close by…
9
See Mills J.B., Malaya in the Wu-pei-chih charts , 15 Journal of the Malayan Branch of the
Royal Asiatic Society 1 (1937), at pp. 1-10, 21-22, attached to this Memorial as Annex 81.
10
ThomAsoccsunt, supra note 6, at pp. 385-389.
– Page 9 – (b) a painting by J.T. Thomson, showing Pedra Branca just after the
completion of Horsburgh Lighthouse (1851) (Image 2);
(c) a photograph showing Pedra Branca as it appears today with
Middle Rocks in the background (Image 3); and
(d) an aerial photograph of Pedra Branca (Image 4).
2.7 Pedra Branca’s position has long been of strategic significance to
shipping from India to China and vice ve rsa.As stated by Thomson in his
Account of the Horsburgh Lighthouse:
“The tower and light now pla ced on Pedra Branca rock and
bearing the name of the eminent Hydrographer, James Horsburgh,
F.R.S., has not unappropriately been erected in the half-way
distance, on the route pursued by shipping carrying the commerce
11
of India and China…”
Thomson’s Account was written in 1 852 on the instructions of Colonel
Butterworth, the Governor of the Stra its Settlements (of which Singapore was a
part).His account is the definitive acco unt of the building of the Horsburgh
Lighthouse.
2.8 Today, more than 150 years later, the significance of Pedra Branca has
not diminished.The Straits of Singapor e is one of the busiest international
straits in the world. It links the Straits of Malacca (and the Indian Ocean to the
West) with the South China Sea (and the Pacific Ocean to the East). This means
that most ships going to the Far East from Europe, the Middle East and India,
and vice versa, pass through the Straits of Singapore.On average, there are
more than 900 ships using the Straits of Singapore every day (i.e., one ship every
1.6 minutes), with more than 80% of these ships arriving and departing from the
port of Singapore, making Singapore the bu siest port in the world. More than
1,000 ships are within Singapore port limits at any one time.
11 Thomson’s Account, supra note 6, at p. 376.
– Page 10 –2.9 The Straits of Singapore is cons equently of great importance to the
international shipping co mmunityI .t plays a crucial part in Singapore’s
economy as her economic well-being and historical role as an entrepôt is heavily
dependent on the flow of maritime traffic through th e Straits. As Pedra Branca
commands the entire eastern approach to the Straits, the continued ability of
Singapore to exercise her sovereign terr itorial rights over Pedra Branca and its
surrounding waters is of the utmost importance to Singapore.
Section II. Middle Rocks and South Ledge
2.10 Slightly to the south of Pedra Br anca are two minor maritime features
known as “South Ledge” and “Middle Rocks”.
2.11 South Ledge is a low-tide elevati on 2.1 nautical miles south of Pedra
Branca. It is described in the Malacca Strait Pilot in the following manner:
“South Ledge, consists of three ro cks, the northern of which dries
8 feet (2m 4) and lies about about 2 miles south-south-westward of
Horsburgh lighthouse; the others do not uncover. They are steep-
to and are 12arly always mark ed by heavy tide-rips or by
breakers.”
Three photographs showing South Ledge appear overleaf:
(a) a photograph showing South Le dge completely submerged at high
tide, with only the wreck of MV Gichoon showing (Image5);
(b) a photograph showing South Ledge at low tide (Image 6); and
(c) a photograph showing South Ledge at low tide, with two persons
on the largest rock (Image 7).
12 Malacca Strait Pilot (2nd ed., 1934), at p. 213, supra note 5.
– Page 11 –2.12 Between South Ledge and Pedra Branca is a group of small rocky
outcrops called “Middle Rock s”, lying about 0.6 nautic al miles south of Pedra
Branca. Middle Rocks consists of two cl usters of small rocks about 250 metres
apart. While the largest of these rocks measures a bout 55 metres by 15 metres,
most of the rocks in these two clusters are much smaller, averaging 5 metres in
size. Middle Rocks and Pedra Branca ar e joined to each ot her by a submerged
bank. The Malacca Straits Pilot describes Middle Rocks as:
“Middle rocks, from 2 to 4 feet (0 m6 to 1 2) high, and of a whitish
colour, lie about half a mile sout hward of the lighthouse, and on
13
the south-western edge of the bank on which Pedra Branca lies.”
Included overleaf are close-up photographs of Middle Rocks:
(a) showing the western cluster of Middle Rocks with the eastern
cluster in the background (Image 8);
(b) showing the eastern cluster of Middle Rocks (Image 9); and
(c) showing a close-up of persons on the western cluster of Middle
Rocks (Image 10).
2.13 The position of Middle Rocks and South Ledge relative to Pedra Branca
is shown on Map 3 (Sketch Map of the vicinity of Pedra Branca) overleaf. A
more detailed physical description of Middle Rocks and South Ledge is given in
Chapter IX. It is sufficient for the purposes of this Chapter to reiterate that
Middle Rocks and South Ledge are extremely insignificant maritime features, as
can be seen in Images 5 to 10.
13 Malacca Strait Pilot (2nd ed., 1934), at p. 213, supra note 5. See also Malacca Strait Pilot (3rd
ed., 1946), at p. 217, supra note 5.
– Page 12 – Section III. Pedra Branca, Middle Rocks and South Ledge form a
Distinct Group of Features
2.14 In this Memorial, a group of feat ures known as Romania Islands (also
called “Lima Islands” in more recent ch arts and sailing directions) will be
referred to from time to time. Within this group lies an island called “Peak
Rock”. It is convenient to state clear ly that Pedra Branca, Middle Rocks and
South Ledge stand by themse lves as a group and are distinct from the Romania
group of islands. The latter group of isla nds all lie within close proximity (i.e.,
well within 3 nautical miles) of the Malay Peninsula and is separated from Pedra
Branca, Middle Rocks and South Ledge by the main shipping channel, known as
Middle Channel, which is also the deep wa ter channel in this part of the Straits
of Singapore. This can be seen from Map 3 (shown above, after page 12) and
from the British Admiralty Chart 3831, an extract of which is presented overleaf,
as Map 4 ( Extract from British Admiralty Char t 3831 (1979) entitled
“Indonesia, Malaysia and Singapore, Singapore Strait, Eastern Part”).
2.15 Older maps and sea-charts have al so shown and depicted Pedra Branca,
Middle Rocks and South Ledge as a dist inct group which is clearly separated
from the Romania group of island s. See, in this regard, Map 5 (Map entitled
“The Straits of Sincapore”, published by Laurie and Whittle, 1799) and Map 6
(Inset entitled “A Plan of the Strait of Singapore from the latest Surveys” ,
extracted from “A New Chart of the Straits of Malacca and Singapore drawn
from the latest Surveys, with Additions and Improvements”, published by Norie,
1831), shown overleaf.
– Page 13 –2.16 An examination of the various pilots and sailing di rections of the region
confirms that Pedra Branca, Middle Ro cks and South Ledge as a group has
always been regarded as distinct fro m the Romania group of islands.For
example, an 18th century Pilot states that:
“Pedro Branco bears from the outermost rocks, or islands, off
Point Romania, EbS½S. 2½ leagues. Between these is the
channel, or entrance into the Straits of Sincapour… ” 14
This geological fact is also repeated in more recent Pilots:
“Middle Channel, between Pedra Branca and Remunia shoals, is 4
miles wide…
m
Pedra Branca, 24 feet (7 3) high, lies… 7¾ miles east-south-
eastward of Tanjong Datok [i.e. Point Romania]…
Lima islands, together with many dangers around them, extend
about 3 miles in a north-north-ea sterly and south-south-westerl15
direction, and 2¼ miles south-eastward of Tanjong Datok.”
2.17 Thus Pedra Branca, Middle Rocks and South Ledge do not form part of
the Romania Islands, but are a distinct group of features by themselves.
14
Dunn S. et al, A New Directory for the East Indies (5th ed., 1780), at p. 509, attached to this
Memorial as Annex 2.
15
Malacca Strait Pilot (3rd ed., 1946), at p. 217, supra note 5. See also Malacca Strait Pilot (4th
ed., 1958), at p. 242, supra note 5.
– Page 14 – CHAPTER III
HISTORICAL BACKGROUND
3.1 This Chapter provides a summary of the relevant historical background
beginning from the founding of Singapore in 1819 up to the present day.
3.2 At the beginning of the 19th centur y, the island of Singapore and parts of
the Malay Peninsula surroun ding the Johor River basi n (hereafter “peninsular
Johor”) were under the control of a native chief named Abdul Rahman who held
the title of “Temenggong”. As peninsular Johor was then la rgely covered by
primary forest, the Temenggong lived in a small settlement in Singapore.
3.3 In the Malay political context of th at time, the Temenggong was a vassal
of the Sultan of the Johor-Riau-Lingga Sult anate.The state of affairs in this
Sultanate in 1819, when Sir Stamford Raffles landed in Singapore to establish a
trading station there on behalf of the English East India Company (“EIC”), was
described by C.M. Turnbull in A History of Singapore, 1819-1975 in the
following words :
“By that time little remained of the once powerful Malay
empire.From his capital in th e Riau-Lingga archipelago, the
Sultan claimed suzerainty over Johor, Pahang and some of the East
Sumatran states. In practice the authority of the throne was
undermined by disputes and intrigues between Bugis and Malay
factions at court. The two most senior vassals, the Bendahara who
lived in Pahang, and the Teme nggong, whose fief was Johor,
Singapore and neighbouring is lands, enjoyed an increasing
measure of independence.
The succession to the throne had b een in dispute since 1812 when
the previous Sultan had died, leaving no heirs by his royal
marriages but two sons by commoner wives. Hussein, the elder,
seemed to be marked for succession by his father. Marriages were
arranged for him with relatives of the Bendahara and Temenggong,
and he was attending his wedding in Pahang when his father
died. In his absence, the Bugis faction acclaimed the younger son
Abdu’r-Rahman as Sultan. Abdu’r-R ahman held court at Lingga
– Page 15 – while Hussein returned to live in obscurity in Riau, but no formal
coronation ceremony could take pl ace because the late Sultan’s
royal widow, who favoured Hussein, refused to give up the
regalia. Abdu’r-Rahman’s succession was acknowledged neither
by the Temenggong nor the Bendaha ra, but the Dutch recognized
him, and Farquhar [ one of Raffles’ lieutenants ], who was familiar
with the background to the disputed succession, and by the
Temenggong, who was Hussein’s fa ther-in-law, decided that, in
order to establish legality for th e British station at Singapore, it
would probably be necessary to recognize the elder claimant.” 16
3.4 Accordingly, Raffles had Hussein brought to Singapore from where he
was living (in a small island near Singapor e) to proclaim him as the Sultan of
Johor in order for the new Sultan to lend his authority to the establishment of the
British station in Singapore.For this purpose, a Treaty of Friendship and
Alliance was made on 6 February 1819 between Raffles (for and on behalf of the
EIC) on the one hand and Sultan Hussein (d escribed in the Treaty as “Sultan of
Johore”) and Temenggong Abdul Rahman (described in the Treaty as “Chief of
Singapore”) on the other hand . 17
3.5 On 2 August 1824, the EIC entered into a treaty of cession with Sultan
Hussein (who was descri bed in the treaty as “Sultan of Johore”) and
Temenggong Abdul Rahman (who was desc ribed in the treaty as “Tumongong
of Johore”) whereby, in consideration of certain payments to them, they ceded:
“… full sovereignty and property to the… English East India
Company, their heirs and successors for ever, the Island of
Singapore, situated in the Straits of Malacca, together with the
adjacent seas, straits, and islets, to the extent of ten geographical
miles, from the coast of the main Island of Singapore.” 18
16 Turnbull C.M., A History of Singapore, 1819-1975(1977), at p. 9.
17 With the proclamation of Hussein as the Sultan of Johor, there were two Sultans of Johor, one
under Dutch protection and the other under British protection.
18 A Treaty of Friendship and Alliance between the Honourable the English East India Company
on the one side and their Highnesses the Sultan and Tumungong of Johore on the other,
concluded on the Second day of August, One Thousand Eight Hundred and Twenty-Four
– Page 16 –3.6 In 1826, Singapore an d the other two British settlements in the Malay
Peninsula, viz ., Malacca and Penang (also know n as the “Prince of Wales
Island”), were amalgamated into a single administrative unit called the “Straits
Settlements”.The Straits Settlements we re governed direc tly by and as a
dependency of the Bengal Government in In dia. It was during this period, as
will be explained in Chapter V, that the British colonial authorities in Singapore
took lawful possession of Pedra Branca in 1847 and acquired sovereignty over
the island.
3.7 In 1867, the Government in India ceas ed to be responsible for the Straits
Settlements which then became a Crow n Colony reporting directly to the
Colonial Office in London. This took place on 1 April 1867 and was effected by
the Straits Settlements Act of 1866. Th is Act described the Straits Settlements
as:
“Prince of Wales’ Island , the Island of Singapore, and the Town
and Fort of Malacca, and their Dependencies .”19[emphasis in
underline added]
3.8 ThSetratettlements continued as a Crown Colony until they, together
with the Malay States in the Malay pe ninsula, were inva ded and occupied by
Japan between 1942 and 1945I .n Se ptember 1945, the Japanese forces
surrendered to the South East Asia Allied Forces and immediately thereafter the
(1824), reprinted in Allen, Stockwell & Wright (eA Collection of Treaties and other
Documents Affecting the States of Malaysia, 1761-1(1981), at p. 37, attached to this
Memorial as Annex 4.
19 An Act to provide for the Government of the “Straits Settlements”, 29 & 30 Vic. Cap. 115
(United Kingdom), attached to this Memorial as Annex 67.
– Page 17 – 20
British established a British Milit ary Administration for “Malaya” , which was
21
defined to include Singapore and Johor .
3.9 In 1946, with the ending of the British Military Administration, the Straits
Settlements were dissolved. Singapore was then constituted as a separate colony
on 1 April 1946 by the Singapore Co lony Order in Council of 27 March
22
1946 . Section 3 of the Order in Council provided that:
“The Island of Singapore and its dependencies , the Cocos or
Keeling Islands and Christmas Island shall be governed and
administered as a separate Colony and shall be called the Colony
of Singapore.” [emphasis added]
3.10 In 1959, the Colony of Singapore was granted internal self-government
by the United Kingdom and renamed the St ate of Singapore. This was effected
by the State of Singapore Act, 1958, sec tion 1(1) of which es tablished the State
of Singapore, comprising:
“… the territories included immediately before the passing of this
23
Act in the Colony of Singapore [viz. 1 August 1958].”
24
The State of Singapore was officially established on 3 June 1959 .
20 See section 1 of the Military Administration Proclamation (15 Aug 1945), made by Supreme
Allied Commander South East Asia, attached to this Memorial as Annex 84.
21 Ibid, at first preambular paragrapSee also section 2 of the Interpretation Proclamation (22
Sep 1945), made by General Officer Commanding Military Forces, Malaya, attached to this
Memorial as Annex 85.
22
Singapore Colony Order in Council, 1946 (United Kingdom), attached to this Memorial as
Annex 86.
23 See State of Singapore Act, 1958 (United Kingdom), attached to this Memorial as Annex 101.
24 Government Notification No. 1414 of 1959 (Colony of Singapore), attached to this Memorial as
Annex 102.
– Page 18 –3.11 On 9 July 1963, the United Kingdom, the Federation of Malaya 25(of
which Johor was a member State) and th e States of North Borneo (Sabah),
Sarawak and Singapore signed the Malaysia Agreement 1963 in order to form a
new independent federation to be called the “Federa tion of Malaysia”.The
United Kingdom Parliament gave effect to this agreement by enacting legislation
to relinquish sovereignty and jurisdicti on over the State of Singapore and the
26
States of Sabah and Sarawak .The following month, the Parliament of the
27
Federation of Malaya enacted the Malaysia Act to establish Malaysia .
3.12 Section 4(3) of the Malaysia Act defined the states comprised in Malaysia
as including, inter alia, the State of Johor and the State of Singapore, and further
provided that:
“The territories of each of the States mentioned… are the
territories comprised therein im mediately before Malaysia Day
[viz. 16 September 1963].” 28
3.13 On 7 August 1965, the Government of Malaysia and the Government of
Singapore signed an agreement (“the Separation Agreement”) to enable
Singapore to separate from Malaysia and to become an independent and
sovereign State on 9 August 1965.Th e Separation Agreement began with a
preambular paragraph which recited the formation of Malaysia in these terms:
“WHEREAS Malaysia was esta blished on the 16th day of
September, 1963, by a federation of the existing states of the
Federation of Malaya and the St ates of Sabah, Sarawak and
Singapore into one independent and sovereign nation.”
25
The then Federation of Malaya was granted independence by the United Kingdom under the
Federation of Malaya Independence Act 1957.
26
Malaysia Act, 1963 (United Kingdom), attached to this Memorial as Annex 107, at section 1(1).
27
Malaysia Act (Act No. 26 of 1963) (Federation of Malaya), attached to this Memorial as
Annex 108.
28
Ibid, at s. 4(3).
– Page 19 – Article II of the Separation Agreement provided that :
“Singapore shall cease to be a St ate of Malaysia on the 9th day of
August, 1965, (hereinafter referr ed to as ‘Singapore Day’) and
shall become an independent and sovereign state separate from and
independent of Malaysia and recognised as such by the
Government of Malaysia; and the Government of Malaysia will
proclaim and enact the constitutiona l instruments annexed to this
29
Agreement in the manner hereinafter appearing.”
3.14 On 22 December 19 65, the Singapore Parliament enacted the
Interpretation Act 1965 which defined “Singapore” as follows:
“‘Singapore’ means the Republic of Singapore and shall be
deemed to include the Island of Singapore and all islands and
places which on 2nd June 1959 30 were administered as part of
31
Singapore and all territorial waters adjacent thereto.”
29 Separation Agreement between Malaysia and Si ngapore dated 7 Aug 1965, attached to this
Memorial as Annex 111, at preamble and Art. 2.
30 2 June 1959 was the day immediately before Singapore attained internal self-government. See
para. 3.10 above.
31 Interpretation Act, 1965 (Republic of Singapore), attached to this Memorial as Annex 112.
– Page 20 – CHAPTER IV
THE DISPUTE
4.1 As will be shown in greater detail in Chapter V, the British Crown took
lawful possession of Pedra Branca in 1847 for the purpose of building
Horsburgh Lighthouse. Since then, as Chapter VI will show, Pedra Branca has
been occupied and administered as part of Singapore’s territory continuously for
more than 130 years without any protes t or challenge from Malaysia (or her
32
predecessor, the State of Johor) until 1979 .
Section I. The Origins of the Dispute
4.2 On 21 December 1979, Malaysia published a map (“the 1979 Map”)
which showed the outer limits and turning point coordinates of her territorial sea
and continental shelfT . hese limits were not, as between Singapore and
Malaysia, derived from any negotiated delimitation exercise 33.
4.3 The 1979 Map covered all of Malaysia’s maritime boundaries. A reduced
version of the 1979 Map is shown overleaf as Map 7 (Map entitled “Territorial
Waters and Continental Shelf Boundaries of Malaysia ”, published by the
Director of National Mapping, Malaysia, 1979).
32
130 years refers to the period from Singapore’s occupation of Pedra Branca (1847) to the date
when Malaysia first made a paper claim (1979).
33
The 1979 Map was published pursuant to legislation passed ten years earlier in August 1969 –
the Emergency (Essential Powers) Ordinance No(Malaysia), attached to this Memorial as
Annex 114. Through this piece of legislation, Malaysia claimed a territorial sea of 12 nautical
miles and announced its intention to effect the publication of a “large scale map indicating the
low water marks, the baselines and the territorial waters of Malaysia.” The 1969 Ordinance did
not mention or describe the intended limits of Malaysia’s 12 nautical mile territorial sea.
– Page 21 –4.4 The 1979 Map, published by the Director of National Mapping, Malaysia,
purported, for the very first time, to un ilaterally define some of Malaysia’s
boundaries with Singapore.The ma p shows Pedra Branca as lying within
Malaysia’s territorial waters. See Map 8 below.
Map 8 (Extract from map entitled “Territorial Waters and Continental Shelf
Boundaries of Malaysia”, published by the Director of National Mapping,
Malaysia, 1979), focussing on the area around Pedra Branca (indicated by the
added red arrow above) – Pedra Branca has been placed within Malaysian
territorial waters (dark blue)
4.5 A few days before the publicati on of the 1979 Map, the Malaysian
Ministry of Foreign Affairs contacted Singapore’s High Commissioner to
Malaysia and asked him to attend a me eting at the Malaysian Ministry of
Foreign Affairs on Friday 21 December 1979. The Malaysian Ministry of
Foreign Affairs did not explain what the purpose of the meeting was. This was
how the Singapore High Commissioner described the meeting in his report to the
Singapore Government dated 24 December 1979:
“3 Wisma Putra [ i.e. the Malaysian Mi nistry of Foreign
Affairs] telephoned my PA [ i.e. Personal Assistant ] four days
before to fix an appointment (11.45 am on Friday, 22 [ sic]
December) for me to call on De puty Secretary Ge neral, Hamid
Pawanchee. His PA indicated sh e hoped I would not change the
time for the appointment. When my PA asked what the subject
– Page 22 –would be the PA said she did not know, but it was ‘bilateral’. It
later turned out thatthe timing was to co incide with a press
conference scheduled to be held by [ Malaysia’s] Minister of Land
and Regional Development, Tan Sri Kadir Yusof. In other words,
while Pawanchee was informing me verbally in this office Tan Sri
Kadir would be telling the press about the new map being gazetted.
This plan was, however, changed at the last moment. I will
explain later.
…
5 After Hamid Pawanchee had verbally read the official
statement from a prepared text I asked him where I could get
copies of the map and the gazette notification. He said they would
be available at the Map Sales Offi ce. I then said Tan Sri Kadir
would obviously be giving copies of the gazette to the press at a
news conference. Pawanchee replied : ‘No, that has been changed.
There will be no press conference .’ He did not as k me how I got
the information. I did not disclose my source either.
6 The method of informing us wa s definitely a strategy that
was carefully laid out. Pawanche e read it out from a typewritten
text and after reading it put it aside. He did not offer me a copy. It
was clear the Malaysian Governme nt wanted the notice to be
verbal.
7 Pawanchee behaved unnaturally at this meeting. At other
times he used to behave in a personal and friendly manner. This
time he became silent after reading the statement. I asked if that
was all he wanted me to convey to my Government. He merely
said : ‘If there are any clarifica tions or points your government
likes to have, they can be discussed in a friendly manner.’
8 I asked Pawanchee if the ne w continental shelf was drawn
only on the provisions of the Geneva Convention 1958 and the
Johore-Singapore Maritime Trea ty 1927 or were there other
considerations. He mumbled ‘Yes, on those two, but if there are
clarifications we could meet and discuss.’
…
11 He repeated twice to me th at there were no problems with
Thailand and Indonesia. Malays ia had discussed with these two
neighbours and entered into bilate ral agreements with them. He
did not say anything about the Phili ppines. He then point out that
in our case Horsburg [sic] lighthouse was affected. I looked at the
map and saw ‘Pulau Batu Puteh’. …
– Page 23 – 12 As an aside, probably to soften the blow on us, Pawanchee
pointed out that Hanoi and Jakarta have a dispute on some islands
near the Natunas. He was trying to tell me that this sort of thing is
to be expected among neighbours.
13 Overall, my reading is that Malaysia is taking the line of
gazetting their claim of Pulau Batu Puteh, then wait for Singapore
to dispute it. The ball, therefore, is now in our court.” 34
4.6 Despite the fact that Malaysia ma de her claim to Pedra Branca in a
hesitant and unusual manner, a response was clearly warranted. After obtaining
a copy of the map and considering it in detail, Singapore sent Malaysia a
diplomatic note on 14 February 1980. This note, in rejecting Malaysia’s
purported claim and requesting that the 1979 Map be amended, stated
Singapore’s legal position in the following terms:
“The Government of the Repub lic of Singapore is gravely
concerned at what is set out in th e said map. This map purports to
claim the island of Pedra Branca as belonging to Malaysia. The
Government of the Republic of Singapore rejects this claim. There
is no premise in international law on which to found such a
claim. The Government of the Republic of Singapore has since the
1840s, by virtue of both its ac ts and those of its predecessor
governments, occupied and exer cised sovereignty over Pedra
Branca and the waters around it. Since that time, no other country
has exercised or claimed jurisd iction or contested Singapore’s
sovereignty over Pedra Branca. The Government of the Republic
of Singapore therefore requests that the said map be suitably
amended to35eflect the sovere ignty of Singapore over Pedra
Branca.”
34 See Letter from Singapore’s High Commissioner (Kuala Lumpur) to the Singapore Ministry of
Foreign Affairs dated 24 Dec 1979, attached to this Memorial as AnnSee also Telex
from the Singapore High Commission (Kuala Lumpur) to the Singapore Ministry of Foreign
Affairs dated 21 Dec 1979, attached to this Memorial as Annex 140.
35 See Singapore’s Note MFA 30/80 dated 14 Feb 1980, attached to this Memorial as Annex 144.
– Page 24 –4.7 Malaysia responded to this diplomatic note two months later, on 14 April
1980, by stating:
“... the Government of Malaysia ha s included the island of Pedra
Branca or Pulau Batu Puteh as part of Malaysian territory in the
map because, from time immemorial this island has been part of
the territor36of the State of Joho re which is a component State of
Malaysia.”
Section II. The Special Agreement
4.8 In 1981, Singapore’s Prime Minist er agreed with Malaysia’s Prime
Minister that the matter should be resolved bilaterally through a formal exchange
37 38
of documents . Despite many reminders, the exchange did not take place . In
1989, Singapore recommended to Malaysia that the dispute should be referred to
39
the International Court of Justice for final adjudication . Eventually, after the
Prime Ministers met on 25 January 1992, Malaysia’s Prime Minister agreed with
Singapore’s Prime Minister that the form al exchange of documents should be
40
effected T.he two Attorneys-General were to “effect the exchange of
documents and determine the ownershi p of Pedra Branca based on legal
36 See Malaysia’s Note EC 87/80 dated 14 Apr 1980, attached to this Memorial as Annex 146.
37 See Singapore’s Note SHC 109/89 dated 1 July 1989, attached to this Memorial as Annex 163.
38 See Singapore’s Note SHC 109/89 dated 1 July 1989 attached to this Memorial as Annex 163;
Singapore’s Note SHC 139/89 dated 11 Sep 1989 attached to this Memorial as Annex 166;
Singapore’s Note SHC 143/89 dated 13 Sep 1989 attached to this Memorial as Annex 168;
Singapore’s Note SHC 64/90 dated 8 June 1990 attached to this Memorial as Annex 169;
Singapore’s Note SHC 161/90 dated 22 Dec 1990 attached to this Memorial as Annex 170;
Singapore’s Note SHC 104/91 dated 16 Sep 1991 attached to this Memorial as Annex 171;
Singapore’s Note SHC 134/91 dated 15 Nov 1991 attached to this Memorial as Annex 176;
Singapore’s Note SHC 135/91 dated 15 Nov 1991 attached to this Memorial as Annex 177;
Singapore’s Note MFA/D1/858/91 dated 15 Nov 1991 attached to this Memorial as Annex 174;
and Singapore’s Note MFA/D1/859/91 dated 15 Nov 1991 attached to this Memorial as Annex
175.
39 See note 37 above.
40 See Singapore’s Note SHC 18/92 dated 13 Mar 1992, attached to this Memorial as Annex 179.
– Page 25 – 41
principles.” Singapore took the first step , and submitted her arguments and
documentary evidence of Singapore’s ownership of Pedra Branca to Malaysia on
15 February 1992.
4.9 Malaysia responded in a Memorandum dated 20 June 1992. Face-to-face
consultations between senior officials were held on 4-6 February 1993 and 12-14
January 1994. After two rounds of consultations, further rebuttals and a
Supplementary Memorandum, it became cl ear that the dispute could not be
resolved by the parties through bilateral consultations. Singapore then reiterated
her suggestion that the dispute should be submitted to the International Court of
Justice 42. Malaysia agreed , and senior officials were asked to negotiate a
Special Agreement to submit the dispute to this Court, pursuant to Article 36 of
the Statute of this Court.Senior officials met in 19 95, 1996 and 1998 to
negotiate the text of the Special Agreemen t. They agreed on a draft, which was
44
then submitted to the respective governments .
4.10 The Special Agreement was signed by the Foreign Ministers of both
States on 6 February 2003.The exchange of instruments of ratification took
place on 9 May 2003 and the Special Agre ement was jointly notified to the
Registrar of the Court on 24 July 2003 45. It was registered with the Secretariat
41
See Singapore’s Note MFA/D1/169/92 dated 13 Mar 1992, attached to this Memorial as Annex
180.
42
See “Malaysia and Singapore to go by law to resolve sensitive issureported by Bernama
News Agency (9 Sep 1994), attached to this Memorial as Annex 190.
43 See Malaysia’s Note EC135/94 dated 17 Sep 1994, attached to this Memorial as Annex 192.
44 See Reports of the 9th Parliament of Singapore, Volume 69, Column 213, Negotiations on
Outstanding Bilateral Issues with Malaysia (29 June 1998), attached to this Memorial as Annex
199.
45 The Special Agreement is attached to this Memorial at Annex 1.
– Page 26 –of the United Nations pursu ant to Article 10 2 of the Charter of the United
Nations on 13 June 2003 . 46
4.11 Article 2 of the Special Agreement provides:
“The Court is requested to determine whether sovereignty over:-
(a) Pedra Branca/Pulau Batu Puteh;
(b) Middle Rocks;
(c) South Ledge,
belongs to Malaysia or the Republic of Singapore.”
46 The Special Agreement has been assigned Registration Number 39388 by the United Nations
Secretariat. See United Nations, Statement of Treaties and International Agreements Registered
or filed and recorded with the Secretariat during the month of June 2003(ST/LEG/SER.A/676),
at p. 8.
– Page 27 – CHAPTER V
THE ACQUISITION OF TITLE TO PEDRA BRANCA IN 1847-1851
Section I. Introduction
5.1 The purpose of the present Chapter is to give an account of the process by
which the British Crown deci ded to take possession of Pedra Branca for the
purpose of constructing a lighthouse on it, together with related fixtures and
appurtenances, the achievement of this purpose, and the legal consequences.
5.2 As will become clear, the decision to build a lighthouse on Pedra Branca
was taken by the (British Co lonial) Government of I ndia and it was the British
Crown, acting through the Government of India, which planned and substantially
paid for the construction. It was, again, the Government of India which, in the
person of the appropriate officials in th e Straits Settlements, participated in
ceremonies which accompanied both the in ception of the construction and the
inspection of the completed works by an official party on 27 September 1851.
5.3 As a further preliminary, it is pertin ent to give emphasis to the fact that
the Government of India selected an is land on which an appropriate lighthouse
would be built. The physical description provided in Chapter II above indicates
the character and dimensions of Pedra Branca as a physical feature.
5.4 In these circumstances it must be clea r that the feature is not an artificial
island created by the construction of the lighthouse or other works, but an island,
in the sense of international law, on which a lighthouse has been built.
– Page 29 – Section II. The Basis of Claim
5.5 It will be helpful to the Court if the basis of Singapore’s claim to Pedra
Branca is indicated as a preface to the present chapter. Singapore’s claim is not
based on the Treaty of Cession of 1824. 47 That treaty dealt only with the main
island of Singapore and its immediate vici nity. It did not extend to the area
around Pedra Branca. Instead, Singapore’s case is that the events of 1847 to
1851 (to be elaborated in due course) constituted a taking of lawful possession of
Pedra Branca by agents of the British Crow n. In the years that followed, the
British Crown, and subsequently, Singapore, continually exercised acts of State
authority in respect of Pedra Branca. This effective and peaceful exercise of
State authority confirmed and maintained the title gained in th e period 1847 to
1851 by the taking of lawful possession on behalf of the Crown.
Section III. The Decision to Build the Lighthouse was Taken by the
British Crown
5.6 It is necessary to introduce the so urces of British authority in the Straits
Settlements. These comprised Singapore, Malacca and Penang (also known as
the Prince of Wales Island). The Straits Settlements were created in 1826 and
were administered by the East India Company.
5.7 The East India Company acted as an organ of the Br itish Crown and its
activities were supervised by the Boar d of Control in London headed by a
48
British Government Minister .
47 This treaty is discussed above, at para. 3.5.
48 See Letter from the Court of Directors of the East India Company to the Governor General of
India in Council dated 15 Oct 1845, attached to this Memorial as Annex 15; and Letter from the
Court of Directors of the East India Company to the Governor General of India in Council dated
24 Feb 1847, attached to this Memorial as Annex 18. See also Article XXV of the 1833 Charter
of the East India Company, attached to this Memorial as Annex 5.
– Page 30 –5.8 It is universally recognised th at the East India Company was the
representative of the British Crown in the sphere of international relations. In a
Law Officers’ Report of 28 December 1897, Webster and Finlay observe that:
“The Royal Niger Company is no t a mere trading Company, but
has also power to acquire, retain and govern territory. It resembles
the East India Company, the pos ition of which was explained by
Chief Justice Tindal in the case of Gibson v East India Company, 5
Bingham, New Cases (Common Pleas Reports), p.273.” 49
5.9 In Gibson v. East India Company, Chief Justice Tindal had explained the
position in detail. In his words:
“The stat. 9 & 10 W., c.44, a nd the charter of incorporation
granted by the King under the po wers of that act, form the
foundation of the privileges of the present united East India
Company.And from the provisions made by the statute it is
evident, that the comp any was established, originally and in the
first instance, for the purpose of trade only; namely of exclusively
trafficking and using the trade of merchandise to and from the East
Indies, and in all places between the Cape of Good Hope, and the
Straights of Magellan, and with no other object or design.But,
without adverting to various enlargements by the legislature in
subsequent reigns, of the term for which the charter was originally
granted, it will be sufficient for the present purpose to observe, that
about the commencemen t of the reign of George III., a question
arose between the government and th e East India Company, as to
the claim set up by the latter, to the possession of the territorial
acquisitions in India, which ha d been made by them; a claim
inconsistent with the general prin ciple prevailing in the law, both
of this and other states, namely, that all conquests made by
subjects must necessarily belong to the CrowA n.nd in
consequence of this contention an agreement was entered into
between the company and the public, ‘that the territorial
acquisitions and revenues lately acquired in the East Indies, should
remain in possession of the comp any, and their successors during
the term therein mentioned; an Agreement which was carried into
effect by the stat. 7G. 3, c.57. The term therein mentioned was
afterwards enlarged, and the possession and government of the
49 See McNair, International Law Opinions, Vol. 1 (1956), at p. 296.
– Page 31 – territorial acquisitions continued in the said united company by
subsequent acts of the legislatur e, down to the present time;
without prejudice, however, as decl ared by the preamble to the
statute of the 53 G.3, c.155, s.61, to the undoubted sovereignty of
the Crown of the United Kingdom of Great Britain and Ireland, in
and over the same, or to any clai m of the said united company to
any rights, franchises, or immunities.’” 50
5.10 The opinion of Chief Justice Tindal was expressed in 1839T . he
assessment is shared by later commentator s.Thus Schwarzenberger refers to
companies like the East Indi a Company as “organs of the States by which their
51
charters had been granted.” Similar opinions were expressed by T.J. Lawrence
52
and H.A. Smith in their publications as well .
Section IV. The Constitutional Relationships: The Government of
India, the Court of Directors of the East India Company and the
Board of Control
5.11 It will be helpful if the nomenclature is explained. In general, reference
to the Government of India involves the Governor-General of India and his
Council sitting in Calcutta – all of wh om were officers of the East India
Company 53. The Governor-General of India wa s subject to the authority of the
Court of Directors of the East India Co mpany.This, in turn, was under the
direction of the Board of Control, which was headed by the Secretary of State, a
British Government Minister. Consequently, all decisions of the Government of
India were made under the control of the British Crown, that is to say, the British
50
(1839), at pp. 271-272, attachedto this Memorial as Annex 7.mmon Pleas Reports)
51
See Schwarzenberger G., International Law as Applied by International Courts and Tribunals ,
Vol. 1 (3rd ed., 1957), at p. 80.
52
See Lawrence T.J., The Principles of International Law (1895), at pp. 79-82, and Smith H.A.,
Great Britain and the Law of Nations, Vol. 2 (1935), at p. 77.
53
Except for one member of the Council called the “legal member” who was in attendance only
during legislative proceedings.
– Page 32 –Government in London. Below the Governor-General of India, the
administration was divided into four Presidencies (Bengal, Bombay, Madras and
Agra). The Straits Settlements, including Singapore, were administered as part
of the Bengal Presidency at the time when the lighthouse was being planned and
constructed.
5.12 As will be demonstrated in du e course, the ultimate approval for
construction of the lighthouse was obtaine d from the Court of Directors of the
East India Company (sited in London) and this was the appropriate procedure.
Section V. The Entire Process of Planning, Choice of Site and
Construction was Subject to the Control and Approval of the British
Government and its Representatives
A. I NTRODUCTION
5.13 It will be helpful at this stage to present a brief history of the events
leading to the construction of the light house and the taking of possession of
Pedra Branca. As a preliminary, it is ne cessary to describe the general character
of the evidence. This consists, to a very great extent, of correspondence between
three linked pairs of officials of the Government of India, who were instrumental
in the planning of the enterprise and, in due course, in the execution of the
instructions of the Court of Directors of the East India Company when these
were issued in 1847.
5.14 The three pairs of officials functioned in this way:
(a) The Government of India, th rough the Bengal Presidency, had
authority over, and corresponded with, Colonel W.J. Butterworth,
Governor of the Straits Settlements (hereinafter referred to as
“Governor Butterworth”);
(b) Governor Butterworth had auth ority over, and corresponded with,
Thomas Church, Resident Councillor at Singapore; and
– Page 33 – (c) Thomas Church had authority ov er, and correspond ed with, J.T.
Thomson, the Government Surve yor at Singapore, who was the
architect and engineer responsible for planning and constructing
the lighthouse on Pedra Branca (hereinafter referred to as
“Thomson”).
5.15 Governor Butterworth was direc tly involved from early on, and it is
recorded that he visi ted Pedra Branca in 1847 54. Governor Butterworth was
present at the formal laying of the Foundation Stone on 24 May 1850; his name
appears on the panel in the Visitors Room of the lighthouse ; and he it was who
signed the British Notice to Mariners dated 24 September 1851.It was also
Governor Butterworth who was in char ge of the final commissioning ceremony
on 27 September 1851.
5.16 But the authoritative witness is clearly Thomson. Apart from the
correspondence involv ing Thomson, a major resource is the Account of the
Horsburgh Light-house , written by Thomson and pub lished, in 1852, in the
Journal of the Indian Archipelago and Eastern Asia 56. This is in fact the text of
the official report prepared by Thomson, in his role as Government Surveyor at
Singapore, after completion of the project. It is dated 14 August 1852. As the
preface explains, the account had been prepared at the wish of Governor
Butterworth. On the panel in the Visito rs Room, Thomson is described as the
54
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Beadon C. (Under Secretary to the Government of Bengal) dated 22 July 1847, attached to
this Memorial as Annex 22; and Letter from Butterworth W.J. (Governor of Prince of Wales
Island, Singapore and Malacca) to Beadon C. (Under Secretary to the Government of Bengal)
dated 1 Oct 1847, attached to this Memorial as Annex 24.
55
The panel is mentioned in Thomson’s Account, supra note 6, at p. 474, and is described further
below, at para. 5.86 of this Memorial. A picture of the panel appears as Image 14, shown after
p. 72 below.
56
See generally Thomson’s Account, supra note 6.
– Page 34 –“Architect” and it was Gove rnor Butterworth who sele cted Thomson for that
position .7
5.17 Thomson was in charge of the en tire construction project, and it was
under his direct control. Not only did he make regular visits to Pedra Branca,
but he spent long periods living on the island in a house. The correspondence
between the key officials, together with Thomson’s Account, produces a detailed
and reliable volume of evidence.
5.18 The brief history of the events leading to the construction of the
lighthouse begins in 1836 when Ca ptain James Horsburgh, an eminent
hydrographer of the East India Company, passed away.Merchants in Canton
resolved to raise a lighthouse on Pedra Branca to his memory 58. Funds were also
raised to this end by the merchant communities in Bombay and Penang . 59
5.19 After a lapse of six years, Jardine Matheson & Co. wrote to the Governor
of the Straits Settlements in 1842, to inform him that they had collected 5,513.50
Spanish Dollars for the building of a lighthouse on Pedra Branca. The Governor
at the time – S.G. Bonham – reported th is to the Government in India and
60
recommended that a lighthous e be built on Barn Island . However, Bonham’s
suggestion was declined because the British Crown, through the Court of
57 See Thomson’s Account, supra note 6, at p. 377.
58 See Letter from Jardine Matheson & Co. to Bonham S.G. (Governor of Prince of Wales Island,
Singapore and Malacca) dated 1 Mar 1842, attached to this Memorial as Annex 8.
59 See Thomson’s Account, supra note 6, at p. 498.
60 See Letter from Bonham S.G. (Governor of Prince of Wales Island, Singapore and Malacca) to
Bushby G.A. (Secretary to the Government of Bengal) dated 23 July 1842, attached to this
Memorial as Annex 9.
– Page 35 –Directors, was reluctant to impose any port duties on vessels calling at Singapore
for the maintenance of the lighthouse . 61
5.20 The issue of the lighthouse was revived in 1844, when Bonham’s
successor, Governor Butterworth, rais ed the issue of building Horsburgh
Lighthouse with the Government of I ndia. However, Governor Butterworth
suggested that the Lighthouse be built on Peak Rock of f Point Romania instead.
See overleaf for Map 9 (Chart of the Vicinity of the Horsburgh Lighthouse and
Adjacent Malayan Coast by J.T. Thom son, Government Surveyor, 1851),
showing the various locations involved. Governor Butterworth also reported
that Peak Rock had belonged to the Rajah and the Temenggong of Johor but that
he had obtained their consent to cede Peak Rock to the East India Company
62
gratuitously .
5.21 There then ensued some argument between Governor Butterworth and the
Government of India over where Horsburgh Lighthouse should be located. In a
letter to the Government of India dated 22 August 1845, Governor Butterworth
took great pains to explain that while Pedra Branca was the best possible
61 See Letter from Bushby G.A. (Secretary to the Government of Bengal) to Bonham S.G.
(Governor of Prince of Wales Island, Singapore and Malacca) dated 31 Aug 1842, attached to
this Memorial as Annex 10.
62 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Currie F. (Secretarto the Government of India) dated 28 Nov 1844, attached to this
Memorial as Annex 13. The reference in the letter to the “Rajah of Johore” is a reference to
Tengku (Prince) Ali, son of Sultan Hussein of Johore, who died in 1835 leaving Tengku Ali as
his successor. The British did not immediatel y recognise Tengku Ali’s rights tcalled
“Sultan of Johore” and this was why Butterworth did not refer to him as “Sultan of Johore” in
the letter. It was only in 1855 that the Britis h recognised Tengku Ali’s claim to the title of
“Sultan of Johore”.The Temenggong of Johore was traditionally the third highest official
within the Johor Sultanate, and he possessed a hereditary fiefdom whose extent was described
thus: “[t]he immediate sway of the Temenggong of Johore ran from Pontian around Cape
Rumenia to Sedili Besar.” (See Winstedt R.O., A History of Johore (1992 reprint), at p. 102,
attached to this Memorial as Annex 185.) If Peak Rock is said to belong to the Temenggong, it
could also be said to belong to the Rajah of Johore as he was the overlord of the Temenggong.
– Page 36 –position, it was too far from any mainland and inaccessible at certain times of
63
the year .
5.22 It was not until 1846 that Governor Butterworth changed his mind and
agreed that Horsburgh Lighthouse should be built on Pedra Branca 64.
5.23 Following this, both the Government of India and the Court of Directors
in London approved of the construction of the Horsburgh Li ghthouse on Pedra
Branca.The Court of Directors also agreed that a levy be imposed for the
purposes of funding the construction an d maintenance of the lighthouse and
directed that the lighthouse should be built of stone 65.
5.24 Thereafter, the full attention of the Government of the Straits Settlements
was brought to bear on the issue of constructing the lighthouse on Pedra
Branca. On 21 June 1847, Thomas Chur ch, Resident Councillor at Singapore,
instructed Thomson, the Government Su rveyor, to submit plans and estimates
for the construction of Horsburgh Lighthouse 66.Thomson replied on 9 July
1847 with a description of Pedra Br anca and some preliminary plans and
estimates .67
63 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Beadon C. (Under Secretary to the Government of Bengal) dated 22 Aug 1845, attached to
this Memorial as Annex 14.
64 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Bushby G.A. (Secretary to the Government of Bengal) dated 26 Aug 1846, attached to this
Memorial as Annex 16. See also paragraph 5.44 below.
65
Compare Letter from Bushby G.A. (Secretary to the Government of Bengal) to Butterworth
W.J. (Governor of Prince of Wales Island, Singa pore and Malacca) dated 3 Oct 1846, attached
to this Memorial as Annex 17, and Letter from the Court of Directors of the East India
Company to the Governor General of India in Council dated 24 Feb 1847 attached to this
Memorial as Annex 18.
66 See Thomson’s Account, supra note 6, at p. 390.
67 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 9 July 1847, attached to this Memorial as Annex 21.
– Page 37 –5.25 It was in this context that T homson made his first visit to Pedra
Branca.The facts are described by Thom son, in his official Account.The
Admiralty had advised against using Peak Rock, and Th omson now had to
decide on the modalities fo r building a suitable lighthouse in the conditions
prevailing at Pedra Branca. In his words:
“Peak rock being 33 feet above the level of spring tides, is
somewhat higher than Pedra Bran ca, and being close inshore, the
effects of the sea during the nort h-east monsoon are not so heavy
upon it.I had, consequently, after observing the action of the
waves at the worst season, deemed it sufficient for the former, to
have merely the lower part of th e Light-house tower to the height
of sixteen feet of granite ashlar, and the rest of brick work, but on
being called upon for plans and es timates of a building on Pedra
Branca, it was necessary to pause before deciding, as it might be
fairly anticipated that the action of the waves would be heavier on
its lower surface and more exposed position I.therefore
recommended to the authorities, that before the coming on of the
ensuing N.E. monsoon, brick pillar s should be erected on various
parts of Pedra Branca, in order to test the force of the waves, and
this was accordingly done on the 1st November, 1847. ”68
The erection of the brick pillars was carried out und er the instructions and
supervision of Thomson, and with the knowledge and approval of Governor
69
Butterworth .
5.26 Concurrently, the Government of India obtained the approval of the Court
of Directors of the East India Compa ny for the imposition of a levy to fund the
construction of and to maintain the lighthouse. On 5 September 1849, the Court
of Directors wrote to Governor Butterworth giving their approval for the levying
of a duty as soon as the lighthouse was illuminated.
68 See Thomson’s Account, supra note 6, at pp. 390-391.
69 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Beadon C. (Under Secretary to the Government of Bengal) dated 1 Oct 1847, attached to this
Memorial as Annex 24.
– Page 38 –5.27 The letter dated 5 September 1849 fo rms part of a sequence of letters
which confirm that the bulk of the expens e of construction wa s to be borne by
the Government. This letter explains the interacting considerations very clearly:
“2.The increased charge has b een occasioned by the selection
(made after communication with the Lords of the Admiralty) of the
Island of Pedra Branca instead of Peak Rock, as the site of the
Light House, the former being no t only much more distant from
Singapore and much less accessible, but being also so much more
exposed to the influence of th e waves during the North East
Monsoon, as to render it absolute ly necessary that the structure
should be ‘entirely faced with gr anite set in cement’, with a back
work of Masonry instead of bein g composed of brick and Chunan
Materials which would have suffi ced on Peak Rock which is
situated on the Northern Shore of the Straits.
3. The subscriptions hitherto received for the Light House amount
to R s.22,194 leaving a deficit of R s.28,723, which you propose
should be advanced by Governme nt, and to ensure repayment of
this loan, you further pr opose that the duty authorized by us to be
levied on Vessels touching at Singapore or clearing out from
Indian ports to China or the East ward of Singapore, should be
raised from one rupee to two dollars or 4½ rupees per 100 tons.
4.As the smaller rate would be quite inadequate to meet the
expenses of a Light House on Pedr a Branca and as there seems no
more unobjectionable mode of pr oviding for its construction and
maintenance than the imposition of a suitable tonnage duty on
shipping, we authorize you to levy a duty as soon as a light is
exhibited on that Station: but as we have no doubt that the
expenses will exceed the amount you have estimated we direct that
a Tonnage duty of 2½ Dollars 70 r 100 Tons be levied on the
Shipping above described.”
5.28 The consequence was that the Unde r Secretary to the Government of
India transmitted a copy of the despatch of 5 September 18 49 to the Under
Secretary of the Government of Bengal in a letter dated 27 October 1849. This
letter (and its enclosure from the Court of Directors) was accordingly forwarded
70 See Letter from the Court of Directors of the East India Company to the Governor General of
India in Council dated 5 Sep 1849, attached to this Memorial as Annex 31.
– Page 39 –by the Government of Bengal to Governor Butterworth under cover of a letter
71
dated 12 November 1849 .
5.29 These documents make it abundan tly clear that the decision for the
funding, construction, and location of the lighthouse on Pedra Branca was taken
by the Government of India and the British Crown.
5.30 Behind the series of events summar ised above lies the consideration of
the public interest in safe navigati on from the South China Sea through the
Straits of Singapore and vice versa and of ships using Singapore as a port of call
before proceeding onwards through the South China Sea to China and through
the Malacca Straits. The original public meeting of merchants and mariners in
Canton, at which the propo sal to raise a lighthouse on Pedra Branca was first
made, was concerned to commemorate Horsburgh precisely because of his
valued work in improving the naviga tion of the seas between India and
China. The construction of the lighthouse in the most helpful place was a logical
extension of the work of the famous hydrographer.
5.31 Pedra Branca had long presented se rious dangers to shipping. Thomson
provides a list of casualties in the peri od June 1824 to September 1851. The
total was 25 and sh ips of seven different nationalities were involved. Thomson
introduces his account of the dangers with the following passage:
“The proximity of Pedra Branca has long been noted for its danger
to shipping, and as the commerce of the Eastern settlements has
increased, so have the losses become more numerousT . he
following list of casualties, extr acted from the Singapore journals,
71 See Letter from the Court of Directors of the East India Company to the Governor General of
India in Council dated 5 Sep 1849 attached to this Memorial as Annex 31; Letter from Grey W.
(Under Secretary to the Government of Indito Seton Karr W. (Under Secretary to the
Government of Bengal) dated 27 Oct 1849 attached to this Memorial as Annex 32, and Letter
from Seton Karr W. (Under Secretary to thGovernment of Bengal) to Butterworth W.J.
(Governor of Prince of Wales Island, Singapore and Malacca) dated 12 Nov 1849, attached to
this Memorial as Annex 33.
– Page 40 – will serve to show the extent of th ese losses. It is not offered as
being at all complete in its notice of minor accidents, for in many
of these cases there was probably no report made to the editors. In
the cases of stranding or total loss, I believe none have escaped my
attention, as I carefully exam ined all the Singapore journals
published since 1824 with referen ce to this subject. Between the
years 1824 and 1839 inclusive, 5 total wrecks occurred; one vessel
was stranded and 3 minor accidents took place; while between the
years 1841 and 1851 incl usive, 11 total wrecks occurred, if we
include the Metropolis, which was water-logged and abandoned by
the crew, thus averaging one vessel per annum; during this period
1 vessel was stranded and 4 minor ac cidents also took place.It
would be impossible at this time to estimate the amount of
property lost in these vessels. In the Dourado al one there were
500,000 Spanish dollars sunk to the bottom; while there was on
board the Sylph, when she was stranded, opium to the value of
557,200 Spanish dollars, and a lthough most was saved, the
accident to her must have created large loss to the owners of the
cargo in paying for salvage, and by the loss of time, market, &c.;
most of the other vessels in the list will be seen to have been large,
and to have contained valuable cargoes.” 72
5.32 Whilst the strong public intere st lying behind the proposals for a
lighthouse in the region was evident from the outset, it is clear that all sides
assumed the necessity of government f unding (see paragrap hs 5.60 to 5.65
below). However, there were certain mo dalities which had to be decided upon
by the Government of India. The first of these was the choice of the site for the
lighthouse, and the second was the decision on the method of public funding.
72 See Thomson’s Account, supra note 6, at p. 385.
– Page 41 – B. T HE C HOICE OF PEDRA B RANCA AS THE S ITE OF THE LIGHTHOUSE
5.33 The ultimate choice of the Govern ment of India, and the Court of
Directors of the East India Company, was to build the lighthouse on Pedra
Branca, but this decision was preceded by a substantial discussion of other sites
and, in particular, of Peak Rock. The process of selection was pursued by the
representatives of the British Government exclusively.
5.34 The first item consists of the lett er from Sir Edward Belcher to Governor
Butterworth, dated 1 October 1844. In response to the Governor’s request for
advice as to a suitable site for a lighthouse, Sir Edward Belcher writes:
“In reply to your communication No . 109 and bearing date April
20th 1844, requesting an opinion upon the most eligible position
for a Light House in th e Straits of Singapore.I have after very
mature consideration and also from a recent special survey, come
to the conclusion: That in pursuance of the intent of the vote to
erect a Testimonial to the hydro grapher James Horsburgh Esq., I
am firmly of opinion that it wo uld lend more to the general
interests of navigation if such Testimonial stood upon a position
where its benefit would be generallyuseful to navigation of the
China Seas as well as these Straits.
For the latter object, nature speci ally presents the Romania outer
island as the most eligible site by affording the means of distinctly
avoiding night dangers, and thus enabling vessels to sail to and
from Singapore with confidence as well as security.
From a slight inspection of the chart of the Straits, you will
perceive that a line drawn from the centre of the outer Romania
Island to the tail of Johore Bank wo uld nearly eclipse the light by
the intervention of the nearer Land. Vessels have no business near
this line as is frequently practised in our British Light Houses, it is
very easy to screen the light to the safe line so as to warn vessels in
– Page 42 – time to shape a safe course. Th e law being either on entering or
quitting the Straits to ‘keep the Light in sight’.” 73
5.35 The “Romania outer island” can only be Peak Rock as the contemporary
survey map by Thomson himself demonstrates. See Map 9, after page 36 above.
5.36 As shown in Chapter II (see, in particular, paragraphs 2.14 to 2.17), Pedra
Branca is not part of the Romania Group of islands. This is also confirmed by
Thomson, who states that:
“I received official intimation fro m the Hon’ble T. Church… in a
letter dated 21st June, 1847, that the Government had determined
on erecting the Horsburgh Light-house on Pedra Branca, instead of
on Peak rock, which belongs to the Romania group; for which
position I had furnished plans and estimates in November, 1844.” 74
5.37 In light of Belcher’s advice, Governor Butterworth instructed Thomson to
examine Peak Rock and provide an estimate of costs of building a
lighthouse. The report, prepared by Thomson and dated 20 November 1844, is
unequivocal on the point that it is Peak Rock in the Romania group which is in
issue.
5.38 The following passages from the report are of particular relevance:
“In accordance with your instruc tions that I sh ould proceed and
examine Peak Rock Ro mania in order to as certain the probable
cost of building a Light House ther eon, of a construction fitted for
the situation and whose price shou ld not exceed the limited funds,
that have been subscribed for its erection – also to estimate the cost
of laying a substantial base suited to bear a superstructure of sheet
iron and further to make the plans (as far as practicable with the
limited sum allowed) in conform ity with the recommendation of
Sir Edward Belcher viz ‘that the Li ght house should be based as a
73 See Letter from Belcher E. (Captain of H.M.S. Samarang) to Butterworth W.J. (Governor of
Prince of Wales Island, Singapore and Malacca) dated 1 Oct 1844, attached to this Memorial as
Annex 11.
74 See Thomson’s Account, supra note 6, at p. 390.
– Page 43 – Martella Tower, and any chance of surprise from Pirates be
obviated by clean scarping to low water mark’ and lastly to
ascertain the position of the Rock with reference to the Romania
Islands, the coast of Johore and the Island of Singapore.
I therefore now have the honor of informing you that having
proceeded to Peak rock and surveyed the Islands and shores in its
vicinity, I found it to be situated, as will be seen on reference to the
accompanying charts, about ¾ of a mile to th e Eastward of Large
Romania Island, 1½ miles from Po int Romania, and 32 miles East
by north from Singapore Town.Th e Rock is barren, in height
about 30 feet above high water, spring Tides – with a length of 160
feet measured due East and we st, and a breadth of 130 feet
measured north and sout h – as will be seen on reference to the
sections drawn on the chart of Ro mania Island accompanying this,
but it extends to the length of 240 f eet, if measured north East and
75
South West.”
5.39 The next stage involved Governor Butterworth writing to the Secretary to
the Government of India, reporting the ci rcumstances in which Peak Rock came
to be selected as the most appropriate si te for the lighthouse to be built with the
funds collected to commemorate James Horsburgh.
5.40 This letter, dated 28 November 1844 , was accompanied by a copy of Sir
Edward Belcher’s letter to Governor Butterworth dated 1 October 1844, together
with a copy of the plan and section of “the Rock therein alluded to”, prepared by
Thomson, the Surveyor:
“… together with an outline ch art, showing its position with
reference to Pedra Branca , the mainland of Johore, and Island of
Romania… This Rock is part of the Territories of the Rajah of
Johore, who with the Tamongong have willingly consented to cede
76
it gratuitously to the East India Company.”
75 See Letter from Thomson J.T. (Government Surveyor of Singapore) to Butterworth W.J.
(Governor of Prince of Wales Island, Singapore and Malacca) dated 20 Nov 1844, attached to
this Memorial as Annex 12.
76 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Currie F. (Secretarto the Government of India) dated 28 Nov 1844, attached to this
Memorial as Annex 13.
– Page 44 –5.41 The “Rock therein alluded to” or “t his Rock” to which reference is made
in this extract cannot be construed otherw ise than as a reference to Peak Rock:
otherwise the phrase “showing its positio n with reference to Pedra Branca”
would make no sense. Consequently, the request for permission addressed to the
Temenggong to build a lighthouse on a partic ular rock must have indicated that
the chosen site was Peak Rock. In his report to Gove rnor Butterworth, dated 20
November 1844, Thomson refers to the factthatPeakRockwasnotBritish
territory. In paragraph 6 of the letter Thomson observes that Peak Rock:
“… on reference to the chart will be seen intervening the shores of
a country under the rule of independent Malay chiefs.” 77
5.42 In the subsequent period, and unt il August 1846, the project to build on
Peak Rock was maintained in principle. In a lette r dated 15 October 1845, the
Court of Directors of the East India Company adopted the proposal to build a
lighthouse on Peak Rock and authorised the levying of light dues at Singapore
and in India in order to provide the necessary funds. 78
5.43 In April 1845, the Superintendent of Marine in Bengal raised the question
of preferring Pedra Branca as a site fo r a lighthouse.In response Governor
Butterworth reported on 22 August 1845 that:
“The number of vessels that have been wrecked in the vicinity of
Pedra Branca and Point Romania at the opening of the China Sea
imperatively call for a Light H ouse in that neighbourhood and
there can be little doubt that the fo rmer would be the best possible
position for one as far as the light is concerned, but it is so remote
from Singapore, at so great a di stance from the Main Land and so
inaccessible at certain seasons of the year that under all
circumstances I should give the pr eference to the position selected
77 See Letter from Thomson J.T. (Government Surveyor of Singapore) to Butterworth W.J.
(Governor of Prince of Wales Island, Singapore and Malacca) dated 20 Nov 1844, attached to
this Memorial as Annex 12.
78 See Letter from the Court of Directors of the East India Company to the Governor General of
India in Council dated 15 Oct 1845, attached to this Memorial as Annex 15.
– Page 45 – by Captain Sir Ed . Belcher C.B. as reported in my letter under
th 79
date the 28 November 1844 No 150.”
5.44 In due course, the results of a fu rther survey of the Straits by Thomson
and Captain Congalton, which disclosed many prev iously unknown rocks and
shoals, came to Governor Butterworth’s attention. He instituted further
enquiries regarding both Pedra Bran ca and Peak Rock as sites for the
lighthouse. On 26 August 1846, he wrote to the Government of India urging that
the lighthouse be built on Pedra Branca.In doing so, he reversed his long-
standing position that the lighthouse shou ld be built on Peak Rock. In October
1846, the Government of India agreed, and recommended the Pedra Branca site
to the Court of Directors of the East India Company. In February 1847, the East
India Company agreed to the change of site; and in May 1847, Governor
Butterworth was instructed to begin work on the Horsburgh Lighthouse on Pedra
Branca.
C. T HE C HOICE OF THE N AME OF H ORSBURGH LIGHTHOUSE
5.45 It was the Court of Directors of the East India Company which decided
on the name of the lighthouse. In a letter dated 12 Nove mber 1849 from the
Government of Bengal to Governor Butte rworth, there was enclosed a despatch
from the Court of Directors, dated 5 Se ptember 1849, authorising the immediate
80
construction of a lighthouse on Pedra Branca .
79
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Beadon C. (Under Secretary to the Government of Bengal) dated 22 Aug 1845, attached to
this Memorial as Annex 14.
80
See Letter from Seton Karr W. (Under Secretary to the Government of Bengal) to Butterworth
W.J. (Governor of Prince of Wales Island, Singapore and Malacca) dated 12 Nov 1849, attached
to this Memorial as Annex 33; Letter from the Co urt of Directors of the East India Company to
the Governor General of India in Council dated 5 Sep 1849, attached to this Memorial as Annex
31. See also Acknowledgement letter from Butterworth W.J. (Governor of Prince of Wales
Island, Singapore and Malacca) to SetonW. (Under Secretary to the Government of
Bengal) dated 13 Feb 1850, attached to this Memorial as Annex 39.
– Page 46 –5.46 From the official correspondence, it is evident that the lighthouse was “to
be called after the celebrated Hydrographer James Horsburgh Esquire.” 81
D. T HE P LANNING OF THE C ONSTRUCTION W ORK
5.47 The construction work was planne d and financed by the Court of
Directors of the East India Company and the Government of India.The
planning process will be desc ribed first of all. As i ndicated above, the decision
to build on Pedra Branca, in stead of Peak Rock, had been taken in February
82
1847, when the East India Company agreed to the change of site .
1. Developments in 1847 and 1848
5.48 The next letters, dated 24 April and 10 May 1847, respectively, related to
the question of funding and are examined below. The first practical step took
the form of instructions from Thomas Church, Resident Councillor at Singapore,
to Thomson, the Government Surveyor, to submit plans and estimates for the
construction of the lighthouse 83.Thomson responded in a letter dated 9 July
1847 with a description of Pedra Br anca and some preliminary plans and
81 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Seton Karr W. (Under Secretary to the Government of Bengal) dated 13 Feb 1850, attached
to this Memorial as Annex 39. See also Letter from Butterworth W.J. (Governor of Prince of
Wales Island, Singapore and Malacca) to Church T. (Resident Councillor at Singapore) dated 22
Feb 1850, attached to this Memorial as Annex 40; Letter from Bayley H.V. (Under Secretary to
the Government of Bengal) to Butterworth W.J. (Governor of Prince of Wales Island, Singapore
and Malacca) dated 19 Mar 1850, attachethis Memorial as Annex 41; and Letter from
Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca) to The Resident
Councillor at Malacca dated 4 Apr 1850, attached to this Memorial as Annex 43.
82 See Letter from the Court of Directors of the East India Company to the Governor General of
India in Council dated 24 Feb 1847, attached to this Memorial as Annex 18.
83 See Thomson’s Account, supra note 6, at p. 390.
– Page 47 –estimatesT . he instructions issued by Church clearly or iginated from the
84
Government of India .
5.49 The studies by Thomson involved a visit to Pedra Branca and the placing
of seven brick pillars on different parts of its surface to test the strength of the
waves reaching the rock. The accomplis hment of this miss ion took place on 1
November 1847 85. On 1 March 1848, Thomson returned to Pedra Branca to find
that all the brick pillars erected on th e north side had be en “entirely swept
away.” 86 The significance of these operations will be examined further below.
5.50 In the course of 1 847, various documents em erged pointing to the
approval by the Government of the pr eparations for the building of the
lighthouse. The following items are significant in this respect:
(a) Letter from the Under Secretary to the Government of Bengal to
Butterworth W.J. (Governor of Pr ince of Wales Island, Singapore
and Malacca) dated 10 May 1847, which referred to the letter from
the Secretary to the Government of India to the Secretary to the
87
Government of Bengal dated 24 April 1847 ; and
(b) Letter from the Government of Bengal to the Court of Directors of
the East India Company, dated 29 September 1847 88.
84 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Seton Karr W. (Under Secretary to the Government of Bengal) dated 12 June 1848, attached
to this Memorial as Annex 27. This letter reports on the preparatory studies by Thomson.
85
See Thomson’s Account, supra note 6, at p. 390. See also Letter from Thomson J.T.
(Government Surveyor at Singapore) to Church T. (Resident Councillor at Singapore) dated 5
Nov 1847, attached to this Memorial as Annex 25.
86
See Thomson’s Account, supra note 6, at pp. 390-1.
87 See Letter from Beadon C. (Under Secretary to the Government of Bengal) to Butterworth W.J.
(Governor of Prince of Wales Island, Singapore and Malacca) da ted 10 May 1847, attached to
this Memorial as Annex 20; and Letter from Bushby G.A. (Secretary to the Government of
India) to Halliday F.J. (Secretary to the Govern ment of Bengal) dated 24 Apr 1847, attached to
this Memorial as Annex 19.
88 See also Letter Extract from a General Letter from the Government of Bengal to the Court of
Directors of the East India Company dated 29 Sep 1847, attached to this Memorial as Annex 23.
– Page 48 – 2. Developments in 1849
5.51 The critical level of decision-ma king was reached in 1849O . n 5
September 1849, the Court of Directors gave authority for the construction to the
Government of India. The despatch re lating to this event accompanied a letter
from the Government of India to the G overnment of Bengal dated 27 October
1849. The relevant paragraphs of this letter read as follows:
“With reference to the corresponde nce noted in the margin, I am
directed by the President in Coun cil to transmit the accompanying
copy of athispatch from the Hon’ ble the Court of Directors No.3
dated 5 September 1849, relative to the construction of a Light
House on Pedra Branca, and to request that authority may be given
to the Governor of Singapore for the immediate commencement of
the building.
nd
2 It will be observed that duty of 2½ dollars per 100 tons is to
be levied on the shipping as soon as the Light House is
completed. A law will be nece ssary for the pur pose and Colonel
Butterworth should be directed to take an early opportunity of
submitting the draft of 89 Act cont aining such provisions as may
be deemed requisite.”
5.52 This document was transmitted by the Government of Bengal to the
Governor of the Straits Settlements unde r cover of a letter dated 12 November
1849I.t was on 14 December 1849 th at Thomson, the official directly
responsible for the construction works, l earned from Church that the Court of
Directors had approved of his plans for the construction of the lighthouse 9.
5.53 Thomson acknowledged the receipt of Church’s key letter and its annexed
copies of other letters recording the de cision by the Court of Directors on 5
89 See Letter from Grey W. (Under Secretary toe Government of India) to Seton Karr W.
(Under Secretary to the Government of Bengal) dated 27 Oct 1849, attached to this Memorial as
Annex 32.
90 See Thomson’s Account, supra note 6, at p. 402.
– Page 49 –September 1849 .In a letter dated 26 Dece mber 1849, Thomson addressed
Church on the appointment of an Engineer who would supervise the
procurement and emplacement of the la ntern, machinery, and other items
necessary to constitute the appropriate lighting apparatus 92.
3. Developments in 1850
5.54 The process of construction got unde r way in 1850, on the basis of the
instructions Thomson had received from Church on 14 December 1849.The
three months of the north-east monsoon we re used to make preparations for the
lighthouse operations when they beca me possible after the monsoon had
ended.These preparations included ac quisition of the lantern and machinery,
the contract for stone and brickwork, preparation of plant and tools, procurement
of stone from Pulau Ubin, an island belong ing to Singapore, and preparation of
stone courses at the Pulau Ubin quarries . 93
5.55 On 6 March 1850, Thom son visited Pedra Branca to inspect the island
94
prior to commencing operations . Preparations for work to begin on the island
were completed by the end of March. In a letter dated 13 February 1850,
Governor Butterworth reported to the Government of Bengal on the
arrangements which had been put in pl ace in response to the instructions
received on 14 November 1849T .h is letter was acknowledged by the
Government of Bengal in a letter date d 19 March 1850.In a letter dated 30
91 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 20 Dec 1849, attached to this Memorial as Annex 34.
92
See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 26 Dec 1849, attached to this Memorial as Annex 36.
93
See Thomson’s Account, supra note 6, at pp. 402-404.
94
Ibid, at pp. 404-405.
– Page 50 –March 1850 from the Marine Branch of the Bengal Government to the the Court
of Directors of the East India Company, it was reported that formal approval had
been given to the preliminary a rrangements reported by Governor
95
Butterworth . In the course of April, a pa rty of workmen was established on
96
Pedra Branca and houses were built for their use . Work was also done on a
derrick crane and a pier. The cutting of the foundations fo r the platform and
outside vault began on 22 April 1850 9.
5.56 On 24 May 1850, the Governor of the Straits Settlements and a party
landed on the island and there was a ceremonial laying of the foundation stone of
the lighthouse. A detailed account of the ceremony appears in the Straits Times
and Singapore Journal of Commerce . It is particularly helpful in providing a
description of the composition of the official party, as follows:
“The Hon’ble the Governor of th e Straits Settlement, Lieutenant
Colonel W. J. Butterworth C, B, having requested the Brethren of
Lodge ‘Zetland in the East No. 748’ to lay the Foundation Stone of
the Horsburgh Testimonial, or Lighthouse for all Nations, with the
honours of their craft, on the 24 thinst. – the anniversary of Her
Majesty’s Birth-day – the Worshipf ul Master and Brethren of the
above Lodge, in number about th irty, accompanied by several
visiting Brethren, started for Pedr o Branca on the morning of the
24th in the H.C’s. steamer Hooghly, and the barque Ayrshire in
tow of Her Majesty’s steamer Fury. Several distinguished visitors,
including His Excellency the Rear Admiral Sir F. Austin, C.B.
Naval Commander-in-chief and suite, the Hon’ble Thomas Church
Esqr. Liet, Colonel Messiter, seve ral of the foreign Consuls, and
Merchants of Singapore availed of His Honor the Governor’s
95 See Letter from Lettler J.H. of the Marine Department at Bengal to the Court of Directors of the
East India Company dated 30 Mar 1850, attached to this Memorial as Annex 42.
96
See Thomson’s Account, supra note 6, at pp. 405-423.
97
Ibid, at pp. 416-423.
– Page 51 – invitation to witness the ceremony and accompanied him in the
Hooghly.” 98
5.57 The definitive official account is provided by ThomsonT . he key
passages are as follows:
“The 24th day of May being the birthday of Her Most Gracious
Majesty, Queen Victoria, was fixe d upon as the day on which the
foundation stone was to be laid .Her Majesty’s Steam frigate
‘Fury’ arrived off the rock at 11½AM . on that day, having in tow
the H.C. Steamer ‘Hooghly’ and the merchant vessel ‘Ayrshire’
carrying the Hon’ble Colonel W.J. Butterworth C.B., the Governor
of the Straits Settlements, who had invited his Excellency Admiral
Austin the Naval Commander-in-Chie f of the East India Station,
and the Hon’ble T. Church, Es quire, Resident Councillor at
Singapore, to accompany him; also M.F. Davidson, Esq. Master of
the Lodge Zetland in the East, No . 748, who with the office-
bearers of the Lodge and other me mbers of that Lodge, had been
requested to perform the ceremony of laying the foundation stone
with Masonic honors. Various other civil and military members of
the Singapore community, together with the foreign Consuls had
come by invitation to witness the ceremony. The foundation stone
was laid at 1P.M . and the following articles were deposited under
it in an aperture cut in to the solid rock; first, a copper plate with
this inscription upon it:
In the Year of our Lord 1850
and
In the 13th Year of the Reign of
V ICTORIA,
Q UEEN of Great Britain and Ireland,
The Most Noble
JAMES A NDREW M ARQUIS of DALHOUSIE , K.T.
being Governor-General of British India,
The Foundation Stone,
of the Light-house to be erected on Pedra Branca
and dedicated to the Memory of the Celebrated
Hydrographer J AMES HORSBURGH , F.R.S.
was laid on the 24th day of May, the anniversary
98 See “The Horsburgh Lighthouse” in Straits Times and Singapore Journal of Commerce (28 May
1850), attached to this Memorial as45. A similar account also appeared in the
Singapore Free Press and Mercantile Advertiser(31 May 1850).
– Page 52 – of the Birth-day of Her Most Gracious Majesty,
by the
Worshipful Master M.F. D AVIDSON , Esq.,
and the
Brethren of the Lodge Zetland in the East
No. 748.
In the presence of the Governor of the Straits
Settlements and many of the British and Foreign
Residents of Singapore
J.T. Thomson,
Architect.
There were also deposited some silver money, consisting of a
crown, half crown, shilling, six- pence, penny, halfpenny, farthing,
a rupee, half and quarter rupe e, besides copper coins which
consisted of a penny, halfpenny, fa rthing, eight and sixteenth of a
penny; an anna, half and a quarter; a cent, half and a quarter cent;
Statements of the Trad e of the Straits Settlements, together with
Statements of the Revenue and Char ges; and further a copy of the
original edition of Horsburgh’s Di rectory, copies of the ‘Free
Press’, and ‘Straits Times’ Newspa pers and of the ‘Journal of the
Indian Archipelago and Eastern Asia ’, also a plan of the Town of
Singapore. ”99
5.58 This account of the ceremony provides further evidence, if this were
needed, of the official character of th e entire enterprise. During the ceremony
the Worshipful Master made the following statement in the presence of
Governor Butterworth and all of the other invited officials and guests:
“May the All Bounteous Author of Nature bless our Island, of
which this Rock is a dependency…” 100
99 See Thomson’s Account, supra note 6, at pp. 427-428.
100 See “The Horsburgh Lighthouse” in Straits Times and Singapore Journal of Commerce (28 May
1850), attached to this Memorial as Annex 45.
– Page 53 –This reference to “our Island” can only be a reference to the main island of
Singapore, from whence the attendant party came, and it confirmed that Pedra
Branca is a dependency of Singapore.
5.59 Butterworth, who as Governor had attended the ceremony, reported as
follows in a letter to W. Seton Karr, the Under Secretar y to the Government of
Bengal, dated 9 November 1850:
“I have the honor to transmit th e accompanying copy of a Letter
from the Resident Councillor at Singapore, giving cover to a
Report from Mr. Thomson the G overnment Surveyor on this
Season’s operations at the Ligh t House, under construction at
Pedra Branca, the first stone of which was laid, with masonic
honours, on the 24 thMay last, being the anniversary of the Birth
day of our Most Gracious Majesty Queen Victoria.” 101
E. T HE FUNDING OF THE C ONSTRUCTION W ORK
5.60 The genesis of the li ghthouse project will be de scribed in summary form
102
in this section . At the outset, it is important for the Court to appreciate the
scale of the enterprise. The total cost of constructing the lighthouse, which took
place over 18 months from March 1850 to September 18 51, was 23,665.87
Spanish Dollars or 53,134 Rupees 10.This was a very substantial amount of
money, having regard to the fact th at Singapore’s revenues for 1850–1851 and
101
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Seton Karr W. (Under Secretary to the Government of Bengal) dated 9 Nov 1850, attached to
this Memorial as Annex 49.
102
See also Tarling N., The First Pharos of the Seas: The Construction of the Horsburgh
Lighthouse on Pedra Branca, 67 Journal of the Malayan Branch of the Royal Asiatic Society 1
(1994), attached to this Memorial as Annex 193. The article has a detailed account of the issue
of funding of Horsburgh Lighthouse.
103
The conversion rate from Spanish Dollars to Rupees is taken from a letter from Butterworth
W.J. (Governor of Prince of Wales Island, Singa pore and Malacca) to Ha lliday F.J. (Secretary
to the Government of Bengal) dated 1 Nov 1851, attached to this Memorial as Annex 58, where
Butterworth converted 24,141 Spanish Dollars to 54,206 Rupees.
– Page 54 – 104
1851–1852 was only 435, 511 Rupees and 400,91 1 Rupees respectively . The
following table sets out the key develo pments relating to the funding of the
construction of the lighthouse:
22November 1836 There is a meeti ng at Marwick’s Hotel in Canton
in which merchants and mariners resolve to raise
a lighthouse on Pedra Branca to the memory of
Horsburgh, who had done much to assist in the
navigation of the seas between India and
China. To this end, funds are also collected from
the Chambers of Commerce in Bombay and
Penang.
29 December 1836 Merchants write to the Governor-General in India
suggesting the construction of two lighthouses:
one at Coney Rock for the western channel, and
the other at Pedra Branca 105. The Marine Board
of the East India Company (EIC) points out to the
Governor-General, Lord Auckland, that duties
would have to be levied in Singapore to maintain
the lighthouses. However, Lord Auckland
decides that the matter should not be further
considered as the Court of Directors of the EIC
(the Court) had banned the imposition of duties at
Singapore in order to maintain Singapore’s status
as a free port.
1837 Lord Auckland sends W. R. Young to the Straits
Settlements to ascertain how the EIC can raise
funds after the closing of its China trade. Young
recommends that modest customs duties be
levied for Penang and Singapore.Governor of
the Straits Settlements Bonham agrees with
104 See “Statement of the Proper Receipts and Disbur sements at Singapore for the Official Year
1850-51, exclusive of Military and Convi” in Singapore Free Press and Mercantile
Advertiser (31 May 1851), attached to this Memorial as Annex 53; and “Statement of the Proper
Receipts and Disbursements at Singapore for the Official Year 1851-52, exclusive of Military
and Convicts” in Singapore Free Press and Mercantile Advertiser (18 June 1852), attached to
this Memorial as Annex 60.
105 See Memorial from Merchants, Mariners and other interested parties in the trade and navigation
of the Straits of Singapore (Calcutta) to Auckland G. (Governor General of India in Council)
dated 29 Dec 1836, attached to this Memorial as Annex 6.
– Page 55 – this. Both Lord Auckland and the Court balk at
this proposal.
March 1842 Jardine Matheson & Co. write to Straits
Settlements Governor Bonh am to inform him of
the monies (5,513.50 Spanish Dollars) that have
been collected for the building of a lighthouse on
Pedra Branca.
28April1842 “The Singapore Free Press” reports that Jardine
Matheson has told the Government of the Straits
Settlements that they are willing to hand over the
monies collected for the construction of a
lighthouse on Pedra Branca.
23 July 1842 Bonham writes to Bushby, Secretary to the
Governor-General in India, to report that a sum of
5,513 Dollars has been ‘placed at the disposal’ of
the Government for the construction of a
lighthouse in honour of the memory of Mr James
Horsburgh. Bonham’s letter reports that the
lighthouse is to be built on Barn Island. Bonham
suggests that the 5,513 do llars be used to build
the lighthouse and procure a lantern, and that
maintenance of the lighthouse be funded by a
charge imposed on vessels calling at Singapore.
31 August 1842 Bushby replies to Bonham to decline the
suggestion to impose port duties in Singapore.
15October1845 The Court of Dire ctors decides that moderate
light house duties could be levied at Singapore.
5.61 In this chronology, the propos al by Jardine Matheson to Governor
Bonham constitutes a defining moment , and the letter, dated 1 March 1842,
should be read in full:
“We beg to acquaint you that we hold in our hands a Sum
amounting with interest 50 Spanish Dol50rs Five thousand five
hundred and thirteen /100($5,513 / )100ising from a Public
Subscription collected in China with some small additions from
India, in the years 1836-37 for the purpose of erecting a
testimonial to the memory of the late celebrated Mr. James
Horsburgh.
– Page 56 – At a General Meeting of the Subscribers a wish was expressed that
the contributions should if possible be devoted to the building of a
Light House, bearing the name of Horsburgh on Pedra Branca , at
the entrance of the China Sea, bu t nothing definitive was resolved
on.
As this is a design which can on ly be carried into effect and
maintained under the immediate au spices of the British Govt, we
beg to express our readiness to hand over the above amount to you
in the hope that you will have the goodness to cause a Light House
(called after Horsburgh) to be erected either on Pedra Branca or on
such other locality as the Govt of the Hon’ble East India Company
may seem preferable.
The amount is far from adequa te, but we trust the well known
munificence of the Hon’ble Compan y will supply what additional
funds may be wanting for an object of such eminent public utility
intended at the same time, to do H onour to the memory of one of
106
the most meritorious of their Servants.”
5.62 As this letter makes clear, the proj ect could only “be carried into effect
and maintained under the immediate ausp ices of the British Government”, and,
as the final paragraph confirms, it was expected that the Government would
provide the additional funding which would be necessary.
5.63 Thus, from the outset, and in the co rrespondence in the period 1842 to
1845, it had been assumed on all sides that the lighthouse envisaged would be
financed ultimately by the Government of India. However, the issue of funding
was somewhat deflected by the question of selectin g a site and a certain
reluctance on the part of the Government of India to levy duties which might
increase competition from Dutch ports in the region.
5.64 When the Court of Directors decided on Pedra Branca as the site of the
project in February 1847, the questi on of public funding came to the
106 See Letter from Jardine Matheson to Bonham S.G. (Governor of Prince of Wales Island,
Singapore and Malacca) dated 1 Mar 1842, attached to this Memorial as Annex 8.
– Page 57 – 107
fore .When the Court of Directors approved the scheme in September
108
1849 , the decision was on the basis that a levy would be made on shipping as
109
soon as the lighthouse was completed .
5.65 In due course the levy was provi ded for in legislation in 1852 as
described below at Chapter VI, paragraph 6.11 below.
F. V ISITS TO P EDRA B RANCA P RIOR TO THE C OMPLETION OF CONSTRUCTION
5.66 In the period before construction began together with the period of actual
construction (from the cutting of the founda tions on 22 April 1850 until various
final operations on 9 April 1851), there were at least 19 visits by officials of the
Government to Pedra Branca 11.
5.67 These visits are recorded in the evidence, as follows:
(a) The Governor of the Straits Sett lements visited Pedra Branca in
1847 and reported this in a lette r to the Government of Bengal
dated 1 October 1847.
107 See Letter from Bushby G.A. (Secretary to the Government of India) to Halliday F.J. (Secretary
to the Government of Bengal) dated 24 Apr 1847, attached to this Memorial as Annex 19; Letter
from Beadon C. (Under Secretary to the Government of Bengal) to Butterworth W.J. (Governor
of Prince of Wales Island, Singapore andlacca) dated 10 May 1847 , attached to this
Memorial as Annex 20; Letter Extract from a General Letter from the Government of Bengal to
the Court of Directors of the East India Company dated 29 Sep 1847, attached to this Memorial
as Annex 23; Letter from Seton Karr W. (Under Secretary to the Government of Bengal) to
Grey W. (Under Secretary to th e Government of India) dated 6 Oct 1848, attached to this
Memorial as Annex 28.
108
See Letter from the Court of Directors of the East India Company to the Governor General of
India in Council dated 5 Sep 1849, attached to this Memorial as Annex 31.
109
See Letter from Grey W. (Under Secretary te Government of India) to Seton Karr W.
(Under Secretary to the Government of Bengal) dated 27 Oct 1849, attached to this Memorial as
Annex 32.
110 See Thomson’s Account, supra note 6, at pp. 413-444.
– Page 58 – (b) 1 November 1847: Thomson vis ited Pedra Branca to make his
preparations and built seven brick p illars on the rock in order to
111
test the action of the waves at the worst season .
(c) 1 March 1848: Thomson revis ited Pedra Branca (after the
monsoon) to examine the state of the pillars.
(d) 6 March 1850: Thomso112isited Pe dra Branca in the Government
Steamer Hooghly .
(e) 28 March – 1 April 1850: Bennett, the foreman (acting under
Thomson’s orders) visited Pedra Branca with the gunboat
113
Charlotte .
(f) 1 – 2 April 1850: Thomson visited the rock in the Hooghly, with
two lighters in tow 114. Materials were landed.
(g) 11 – 12 April 1850: The steamer Hooghly, the lighters and the
gunboat arrived off the rock earl y in the morning and materials
were landed for the temporary dw ellings, together with water
supplies.On the morning of 12 April, all the workmen were
115
landed .
(h) 24 May 1850: On this day, an official Party, led by the Governor
of the Straits Settlements, lande d for the purpose of laying the
foundation stone: see above at paragraph 5.56 et seq.
(i) October 1850: In a letter to the Governor of the Straits Settlements
dated 7 November 1850, Church , the Resident Councillor at
Singapore, reports:
“A short time prior to the withdrawal of the
workmen, I visited Pedro [ sic] Branca, and was
equally surprised and gratified at the vast rapidity
with which the operations had been carried forward
111
See Thomson’s Account, supra note 6, at pp. 390-391.See also Letter from Thomson J.T.
(Government Surveyor at Singapore) to Church T. (Resident Councillor at Singapore) dated 5
Nov 1847, attached to this Memorial as Annex 25.
112
See Thomson’s Account, supra note 6, at pp. 404-405.
113
Ibid, at pp. 406-409.
114
Ibid, at pp. 406-411.
115
Ibid, at p. 413.
– Page 59 – and the substantial and imposing aspect of the
Edifice, it was distinctly seen at a distance of 12
miles.” 116
117
(j) The workmen were withdrawn on 21 October 1850 .
118
(k) 27 October 1850: A landing was made by the Gunboat Nancy .
(l) 2 November 1850: An attempt to land was made by the
118
Charlotte .
(m) 5 November 1850: The Charlotte succeeded in landing . 118
(n) 11 November 1850: Thomson visited Pedra Branca on the
118
Charlotte, and effected a landing .
(o) 24 November 1850: Thomso n visited Pedra Branca on the
118
Charlotte, and effected a landing .
(p) 9 January 1851: Thomson vi sited Pedra Branca on the Charlotte,
but failed to land 119.
119
(q) 28 January 1851: Thomson made another failed attempt to land .
(r) 27 March 1851: Thomson made a landing and the Charlotte lay at
anchor off the rock for two days . A shed was completed for the
workmen for the coming season and the state of the rock was
ascertained 119.
(s) 7 April 1851: Mr Bennett, the fo reman, visited Pedra Branca on
120
the Gunboat Nancy in order to land workmen and materials .
(t) 9 April 1851: Thomso n went on board the Charlotte and landed
121
convict labour, water, and materials on Pedra Branca .
116
See Letter from Church T. (Resident Councillor at Singapore) to Butterworth W.J. (Governor of
Prince of Wales Island, Singapore and Malacca) dated 7 Nov 1850, attached to this Memorial as
Annex 48.
117 See Thomson’s Account, supra note 6, at p. 440.
118 Ibid, at p. 441.
119 Ibid, at p. 442.
120 Ibid, at p. 443.
121 Ibid, at p. 444.
– Page 60 –5.68 In all, the senior Government representatives, Governor Butterworth,
Councillor Church and Thomson, made landings on Pedra Branca on at least
thirteen occasion.n six other occasions, Government vessels landed
workmen and building materials, acting under the instructions and supervision of
Thomson. See overleaf, for the following: ( a) Paintings by Thomson showing
his supervision of the construction activities ( Image 11 and Image 12 ); ( b)
Painting showing Pedra Bran ca with living quarters for construction workers
(Image 13).
G. L OGISTICAL S UPPORT P ROVIDED BY G OVERNMENT V ESSELS
5.69 During the preparation for the c onstruction and the construction itself,
continuous logistical support was provided by Government vessels, namely:
(a) hteamer Hooghly;
(b) heunboat Charlotte;
(c) hunboat Nancy; and
(d) tlghters.
5.70 The Governor of the Straits Settlements sent various letters to the
Resident Councillors of Si ngapore and Malacca ensuring the availability of the
gunboats for conveying supplies to Pedra Branca.Such letters included three
dated 24 December 1849 12, 4 April 1850123and 19 April 1850 124respectively.
References to the services provided, especially by the steamer and gunboats,
122
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Church T. (Resident Councillor at Singapore) dated 24 Dec 1849, attached to this Memorial
as Annex 35.
123
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Resident Councillor at Malacca dated 4 Apr 1850, attached to this Memorial as Annex 43.
– Page 61 – 125
appear frequently in Thomson’s Account . Thomson reports in relation to the
preparatory stage:
“For the purpose of carrying out ma terials, I proposed that decked
lighters … should be attached to the works, also two gun-boats for
the conveyance of my self, workmen and light materials: the
occasional assistance of a stea mer for towing was also asked
126
for.”
H. T HE P ROVISION OF P ROTECTION BY G UNBOATS
5.71 The Government had undertaken th at two gunboats should always be in
127
attendance at the works . As Thomson makes clear in the pertinent passage of
128
his report , the prevalence of piracy “in th e immediate neighbourhood” made
the protection of the gunboats a necessity 129. The gunboat Charlotte was a
vessel of 23 tons, carried two 6-pounder guns, and had a crew of 27 men 13. The
other gunboat, the Nancy, was a vessel of the same size . 131
5.72 The provision of a government st eamer and gunboats to assist in the
movement of building materials and to provide protection against pirates formed
124 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Resident Councillor at Malacca dated 19 Apr 1850, attached to this Memorial as Annex 44.
125
See Thomson’s Account, supra note 6, at pp. 401-449, 472-473. See also letter from Thomson
J.T. (Government Surveyor at Singapore) to Church T. (Resident Councillor at Singapore) dated
20 Dec 1849, attached to this Memorial as Annex 34.
126
See Thomson’s Account, supra note 6, at p. 401.
127 Ibid, at pp. 401, 403.
128 Ibid, at p. 401.
129
Ibid, at Appendix II pp. 479-487.
130
Ibid, at p. 406.
131
Ibid, at p. 423.
– Page 62 –a regular feature of the consecutive plan s and financial estimates relating to the
construction of the lighthouse. The relevant documents are as follows:
(a) 20 November 1844 letter from Thomson to Governor
132
Butterworth ;
(b) 9 July 1847 letter from Thomson to Church (three references to the
133
gunboats) ;
(c) 20 May 1848 letter from Thomson to Church ; 134
(d) 12 Jun135848 letter from Gove rnor Butterworth to W. Seton
Karr ;
136
(e) 3 March 1849 letter from the Government of India ;
(f) 20 December 1849 letter from Th omson to Church (a detailed
account of the arrangements) 137;
138
(g) 24 December 1849 letter from Governor Butterworth to Church ;
139
(h) 29 December 1849 letter from Governor Butterworth to Church ;
132
See Letter from Thomson J.T. (Government Surv eyor at Singapore) to Butterworth W.J.
(Governor of Prince of Wales Island, Singapore and Malacca) dated 20 Nov 1844, attached to
this Memorial as Annex 12.
133 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 9 July 1847, attached to this Memorial as Annex 21.
134 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 20 May 1848, attached to this Memorial as Annex 26.
135
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Seton Karr W. (Under Secretary to the Government of Bengal) dated 12 June 1848, attached
to this Memorial as Annex 27. See, in particular, para. 6.
136 See Letter from the Governor General of India in Council to the Court of Directors of the East
India Company dated 3 Mar 1849, attached to this Memorial as Annex 30. See, in particular,
para. 2 of the letter.
137 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 20 Dec 1849, attached to this Memorial as Annex 34.
138
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Church T. (Resident Councillor at Singapore) dated 24 Dec 1849, attached to this Memorial
as Annex 35.
– Page 63 – 140
(i) 22 February 1850 letter from Governor Butterworth to Church ;
(j) 4 April 1850 letter from Governor Butterworth to the Resident
141
Councillor at Malacca ;
(k) 19 April 1850 letter from Gover nor Butterworth to the Resident
142
Councillor at Malacca ; and
143
(l) 2 November 1850 letter from Thomson to Church .
I. THE G OVERNMENT OF INDIA WAS THE E XCLUSIVE
S OURCE OF LIGHTHOUSE E QUIPMENT AND TOOLS
5.73 In his letter to Church date d 20 December 1849, Thomson, as
Government Surveyor, stated that the Government would be responsible for the
provision of materials and their moveme nt from Singapore to the site.The
Government was also responsible for the provision of lighthouse equipment and
144
tools .
139 See) Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and
Malacca) to Church T. (Resident Councillor at Singapore) dated 29 Dec 1849, attached to this
Memorial as Annex 38.
140
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Church T. (Resident Councillor at Singapore) dated 22 Feb 1850, attached to this Memorial
as Annex 40.
141
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to the Resident Councillor at Malacca dated 4 Apr 1850, attached to this Memorial as Annex 43.
142 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to the Resident Councillor at Malacca dated 19 Ap r 1850, attached to this Memorial as Annex
44.
143 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 2 Nov 1850, attached to this Memorial as Annex 47.
144
See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 20 Dec 1849, attached to this Memorial as See also.
Thomson’s Account, supra note 10, at p. 403; Letters from Thomson J.T. (Government
Surveyor at Singapore) to Stevenson A. (Engineer to the Northern Ligh t Board at Edinburgh)
dated 20 Jan 1851, 6 Feb 1851, 1 Apr 1851, attached to this Memorial as Annex 50, Annex 51,
and Annex 52 respectively.
– Page 64 – J. THE CONSTRUCTION CONTRACT
5.74 The overall control of the Govern ment in the project was assumed from
the early days. Thus, in his detailed letter to Governor Butterworth, dated 20
November 1844, Thomson referred to an Agreement signed by a Chinese
contractor for the construction of a li ghthouse (which, at this period, was
envisaged at Peak Rock). In the letter, Thomson stated:
“This agreement of course is on ly preparatory to a formal one
being drawn out when the orders of Government shall be made
known.” 145
The agreement was to be signed by the Governor and by the Under Secretary to
the Government of Bengal. Thomson reve rted to the subject of the construction
contract in the important letter to Church dated 20 December 1849. In this letter,
Thomson was responding at the most practical level to the information provided
to him by Church that the Court of Di rectors had authorised the “immediate
construction” of a lighthouse on Pedra Branca.
5.75 The construction contract was also described by Thomson in his official
report, in the context of his immediate re sponse to the receipt of the instructions
from Church:
“The contractor for the stone a nd brick part of the building was
next communicated with, and an ag reement entered into for their
completion. The contractor’s name was Choa-ah-Lam, a Chinese
of the Kheh tribe. In the written contract entered into, he and his
security engaged to do their por tion of the work for the sum of
10,600 Spanish dollars. In the perf ormance of the work they were
bound to observe certain conditions as to workmen and materials,
which it is scarcely worthwhile here to set forth. On the part of
Government it was engaged that two gun-boats should always be
145 See Letter from Thomson J.T. (Governmenteyor at Singapore) to Butterworth W.J.
(Governor of Prince of Wales Island, Singapore and Malacca) dated 20 Nov 1844, attached to
this Memorial as Annex 12.
– Page 65 – in attendance at the works and that a steamer when necessary
146
should be furnished for the purpose of towing materials.”
K. T HE SPECIFICATIONS AND E STIMATES FOR THE C ONSTRUCTION
5.76 As part of the process of the original decision-making and the planning of
the project, Thomson furnished a series of estimates as required by the
Government of India at different junctu res.The relevant documents are as
follows:
(a) The estimate by Thomson dated 19 November 1844, submitted to
Governor Butterworth, under cover of a letter dated 20 November
1844 147;
(b) Church’s instructions to Thom son to submit plans and estimates
148
for the construction in a letter dated 21 June 1847 ;
(c) Thomson’s reply in a letter dated 9 July 1847 containing
149
preliminary plans and estimates ;
(d) The plan, specification and estim ate prepared by Thomson (on the
instructions of the Governor of the Straits Settlements), reported
by th150atter to the Government of Bengal in a letter dated 12 June
1848 ;
146
See Thomson’s Account, supra note 6, at p. 403.
147 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Butterworth W.J.
(Governor of Prince of Wales Island, Singapore and Malacca) dated 20 Nov 1844, attached to
this Memorial as Annex 12.
148 See Thomson’s Account, supra note 6, at p. 390.
149 Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 9 July 1847, attached to this Memorial as Annex 21.
150 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Seton Karr W. (Under Secretary to the Government of Bengal) dated 12 June 1848, attached
to this Memorial as Annex 27.
– Page 66 – (e) The Governor’s report, in a le tter dated 1 March 1849, of revised
estimates prepared by Thomson to the Chamber of Commerce at
151
Singapore ; and
(f) Detailed questions raised by the Government of India, in a letter
dated 3 March 1849, as to the co sts and estimates as proposed by
152
Thomson .
5.77 The issue of costs wa s eventually finalised, as appears from Thomson’s
letter to Church dated 20 December 1 849.The opening paragraph reads as
follows:
“I have the honor of acknowledgi ng the receipt of your letter No.
1217 of 1849 with annexed copies of letters from his honor the
t
Governor No. 510, from the Under Secretary of the Gov . of
Bengal No. 7840, and from W. Gray Esq r,Under Secretary to the
Gov . of India No. 607 containing a copy of a despatch from the
Honorable the Court of Directors No. 3 of Sept 1849, relative to a
Light house on Pedra Branca, and sanctioning its immediate
construction, under the design ation of the “Horsburgh Light
house”, according to plans, speci fications and estimate forwarded
with my letters No. 19 & 20 of 1848 and fu153er doing me the
honor of entrusting its erection to my care.”
5.78 In the final period of planning and preparation, it was accepted that the
Government of India would provide the necessary advances to the appointed
engineer with respect to th e preparation of the cupola and light. The subject is
referred to in the following documents:
151
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to the Chairman (Chamber of Commerce at Singapore) dated 1 Mar 1849, attached to this
Memorial as Annex 29.
152
See Letter from Governor General the Government of India in Council to the Court of Directors
of the East India Company dated 3 Mar 1849, attached to this Memorial as Annex 30.
153
See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 20 Dec 1849, attached to this Memorial as Annex 34.
– Page 67 – (a) Proposal on the subject of employment of the engineer in the letter
154
from Thomson to Church, dated 26 December 1849 ;
(b) Letter dated 27 December 1849 fro m Governor Butterworth to the
Court of Directors of the East India Company 15;
(c) Letter dated 19 March 1850 to Governor Butterworth from the
Government of Bengal 156; and
(d) Letter dated 18 September 1850 from the Court of Directors of the
East India Company to the Marine Department of the Government
of Bengal157.
L. T HE M AINTENANCE OF P UBLIC O RDER D URING THE PROCESS OF
P REPARATION AND C ONSTRUCTION
5.79 Thomson, the Government Surveyor who was in charge of the operations
on Pedra Branca, had general authority to maintain public order in the vicinity.
Thus, on 1 May 1850, when the commander and crew of the gunboat Nancy, in
attendance at Pedra Branca to assist in the operations, refused to obey orders,
Thomson placed the gunboat and its crew in the custody of the commander of
the steamer Hooghly, who was ordered to tow the Nancy back to
158
Singapore .A few days before this, on 28 April, Thomson had directly
intervened in order to pacify and discipline Chinese workmen who were
154 Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 26 Dec 1849, attached to this Memorial as Annex 36.
155 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Church T. (Resident Councillor at Singapore) dated 27 Dec 1849, attached to this Memorial
as Annex 37.
156 See Letter from Bayley H.V. (Under Secretary to the Government of Bengal) to Butterworth
W.J. (Governor of Prince of Wales Island, Singapore and Malacca) dated 19 Mar 1850, attached
to this Memorial as Annex 41.
157 See Letter from the Court of Directors of the East India Company to the Marine Department of
the Government of Bengal dated 18 Sep 1850, attached to this Memorial as Annex 46.
158 See Thomson’s Account, supra note 6, at p. 424.
– Page 68 –attempting to seize a departing boat, with the intention of l eaving Pedra Branca
159
in breach of their contractual obligations .
M. T HE C UTTING OF R AIN C HANNELS ON P EDRA B RANCA
5.80 By April 1851, the final works were being put in place after the monsoon
had finished. These works included an ou tside platform and a second pier. At
this time there were 42 workmen on the rock 16. Early in May, rain channels
were cut “around all the high er rocks, which were to guide the rain water into
barrels placed to receive it”. Thomson obs erves, “[t]here were altogether 1,069
square feet of surface thus enclosed and whose rainfall is guided into barrels.”61
This operation clearly assumed a lawf ul and permanent use and possession of
Pedra Branca as a whole. The proposal to make the rain channel is documented
162
in Thomson’s letter to Church, dated 2 November 1850 , and this proposal was
approved by Governor Butterworth in hi s report of 9 November 1850 to the
Government of Bengal, where he said:
“4… but I would call particular attention to the thoughtfulness
which has dictated the suggestion of channels, for the collection of
163
Rain Water…”
159 See Thomson’s Account, supra note 6, at pp. 421-422.
160
Ibid, at pp. 445-446.
161
Ibid, at p. 447.
162
See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 2 Nov 1850, attached to this Memorial as Annex 47.
163 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Seton Karr W. (Under Secretary to the Government of Bengal) dated 9 Nov 1850, attached to
this Memorial as Annex 49.
– Page 69 – Section VI. Official Visits to Pedra Branca after the Completion of
the Construction: the Commissioning of the Lighthouse
5.81 The Government authority pervadin g the taking of possession of Pedra
Branca and the planning and constructi on of the lighthouse was given further
confirmation by the events which followed on completion.
5.82 On 8 July 1851, Thom as Church, the Resident Councillor at Singapore,
arrived at Pedra Branca on boa rd the Government Steamer Hooghly. Church
and the official party landed and insp ected all the works.Thomson, the
164
Government Surveyor, was in attendance .
5.83 The completion of the process of construction was marked by a further
official visit by the Governor of th e Straits Settlement s on 27 September
1851. Thomson describes the final commissioning of the lighthouse thus:
“Having got the dome, machinery and light apparatus all ready,
nothing remained for us to do bu t complete the arrangements for
permanently lighting the building, which were the housing of
provisions, water, oil &c., also procuring Light-keepers and
rendering them comp etent for their duties .he Light was
advertised to be shown permanen tly from the 15th of October, so
that in the interval the me n who were to compose the
establishment were exercised in th eir several duties. On the 27th
September, the Honourable Colonel Butterworth C B ., Governor of
the Straits Settlements, with a Party consisting of Sir William
Jeffcott, Recorder of the Straits Settlements, Colonel Messitter,
commanding the troops, Captain Barker, H.M.S. ‘Amazon,’ Mr
Purvis, and the principal merchant s of Singapore, together with
several military officers, arrived off the rock at 1pm when they
landed and minutely inspected the Pharos.
164 See Thomson’s Account, supra note 6, at p. 448.
– Page 70 – His Honor the Governor and party embarked again at 4 P.M. after
expressing themselves in highly fa vorable terms regarding all the
works and the arrangements connec ted therewith. The ‘Hooghly’
started at 7.M . and the Light-house was illuminated temporarily
for the occasion until 10 o’clock.M . by which time the steamer
was out of sight.”5
5.84 These official visits constituted th e final acts in the process of taking
lawful possession of the rock and the in stallation, at Government expense and
for Government purposes, of the lighthouse.
Section VII. Further Evidence of Lawful Possession
5.85 The character of the British possession of Pedra Branca is confirmed by a
number of other elements which are complementary to the pattern of activities
from 1847 to 1851 exhibiting the exclusiveness of the possession.
A. T HE PANEL IN THE V ISITORS R OOM
5.86 The official character of the lighthouse and its purpose in serving the
public interest is clearly indicated by the inscription on the panel in the visitors’
room within the structure. The English text of the inscription reads:
“A.D. 1851
THE HORSBURGH LIGHT-HOUSE
is raised by the enterprise of British Merchants,
and by the liberal aid of the East India Company,
to lessen the dangers of Navigation,
and likewise to hand down,
so long as it shall last,
in the scene of his useful labours,
The memory of the great Hydrographer,
165 See Thomson’s Account, supra note 6, at pp. 453-454.
– Page 71 – whose name it bears.
—————
Col. W.J. BTTERWORTH ,C B.
Governor in the Straits of Malacca
—————
J.T. Thomson
Architect”66
A photograph of the panel is shown overleaf, as Image 14.
B. THE B RITISHN OTICE TO M ARINERS DATED 24 SEPTEMBER 1851
5.87 Upon completion of th e lighthouse, an official Notice to Mariners was
issued. The text of the Notice to Mariners is as follows:
“ HORSBURGH LIGHT-HOUSE
NOTICE IS HEREBY GIVEN , that a Light-house bearing the above
designation in commemoration of the celebrated Hydrographer,
has been erected on Pedra Branca, a rock which lies off the eastern
entrance of the Straits of Singapore. The Light will be exhibited
on the night of the 15th of October, 1851, and every night
thereafter from sunset to sunrise.
The following is a specification of the position of the Light-house;
the dangers which come within th e influence of its Light, and the
appearance of the Light – by Mr J.T. Thomson, Government
Surveyor:
The Light-house is situated acco rding to the Admiralty Chart in
Lat. 1° 20’20” N. and Long. 104 ° 25’ East of Greenwich and by
Compass bears from Barbucet Poin t – East distant 12½ Nautical
miles, and from the N. E. point of BintangN.W. by W. ¾ W.
distant 12 miles.
The following rocks and shoals lying in the way of vessels – and
coming within the influence of the Light, bear from the Light-
house –
166 See Thomson’s Account, supra note 6, at p. 474.
– Page 72 – …
The Light will be known to marine rs as a revolving bright Light
which gradually attains its brightest period once every minute and
as gradually declines until it totally disappears to the distant
observer, – whilst, when viewed fro m a short distance, it is never
entirely invisible.
The lantern, which is open all roun d, elevated 95 feet above the
level of the sea at High Water Sp ring Tides, will be seen from the
deck of a vessel at a distance of 15 Nautical miles.
As a beacon during the day the li ght-house will be known by the
following description. It stands on a rock which measures 150 feet
long and 100 broad and is 24 feet high at its highest point above
the level of H.W. Sp. Tides. The Light House is a Pillar of dressed
granite and the Lantern covered by a Spherical dome which is
painted white.
W.J. BUTTERWORTH.
Govr of P.W. Island, Singapore
and Malacca.
Singapore, 24th Sept, 1851.”67
5.88 This document was based on a da tum: that the island on which the
lighthouse stands is British and forms pa rt of Singapore.It was issued by
Colonel Butterworth, the most senior British official based in Singapore.
C. T HE M ARINE E NSIGN WAS FLOWN
5.89 The practice since the lighthouse first began to function was for the
marine ensign to be flown: see further, Chapter VI, below. This was adverted to
in Thomson’s letter to Church dated 20 July 1851, in which he wrote: “The
167 “Notice to Mariners dated 24 Sep 1851” in Straits Times and Singapore Journal of Commerce
(30 Sep 1851 and 3 Oct 1851), and also in Singapore Free Press and Mercantile Advertiser (6
Oct 1851), all attached to this Memorial within Annex 56.
– Page 73 – 168
Lighthouse flag I presume is different from the national one” . The use of the
marine ensign was in accordance with contemporary British practice.See
overleaf, for a painting showing the flying of the ensign at Pedra Branca (Image
15). See also, the images after page 10 (Image 2), and after page 61 (Image 13).
Section VIII. The Manifestation of the Will of the British Crown as a
Sufficient Mode of Lawful Possession
5.90 In the circumstances, no particular formalities were called for, and there
was no British constitutional requirement of a formal instrument of
annexation. As Sir Kenneth Roberts-Wray points out:
“An instrument of annexation may accompany the acquisition of
territory by settlement , conquest or cession, but the unilateral
manifestation of the will of the Crown may also be the only means
by which a territory has been brought within Her Majesty’s
Dominions; for example, in the case of remote unoccupied areas,
such as those in the Antarctic 169here there is no question of
settlement, cession or conquest.”
5.91 In the case of territory which doe s not have a population in the normal
way, the formality of anne xation is superfluous. The criterion of acquisition of
title is the unequivocal ev idence of the intention to take possession and to
establish sovereignty on a permanent ba sis. The entire episode involving the
selection of Pedra Branca as a site for a lighthouse, the preparation for its
construction, the persistent official vis its, the ceremonial laying of a foundation
stone and the final commissioning of the lighthouse, provides unequivocal
evidence of the will of the British Crown to annex Pedra Branca.
168 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 20 July 1851, attached to this Memorial as Annex 54.
169 See Roberts-Wray K., Commonwealth and Colonial Law (1966) at pp. 107-108.
– Page 74 –5.92 The process of taking lawful posse ssion of Pedra Branca for the purpose
of constructing and maintaining a lighthouse began in 1847. It was in the period
1846 and 1847 that the Government of India decided that Pedra Branca was to
be the site of the project rather than P eak Rock. In a letter dated 21 June 1847,
Church , the Resident Councillo r in Singapore, instruct ed Thomson to submit
preliminary plans and estimates.Thom son responded in a letter dated 9 July
1847 in which he reviewed a long series of practic al matters, including the
engagement of a contractor, labour re quirements, the housing of workmen on
171
Pedra Branca, and the need to build pillars to assess the force of the monsoon .
5.93 As a consequence of the instructi ons received from Church, Thomson, in
his role as Government Surveyor, made his first landing on Pedra Branca. The
purpose was to build brick pillars on the rock in order to assess the action of the
waves at the worst season 172. This assessment was directed to the making of an
informed decision on the building materials to be used. The decision to build on
Pedra Branca had already been take n and it was the modalities of the
construction which were in issue at this stage.
5.94 On 1 March 1848, Thomson revisite d Pedra Branca to examine the state
of the pillars173. In the event he decided that it would be necessary to use granite
for the edifice rather than brickwork. These findings are also recorded in the
letter dated 12 June 1848 from Governor Butterworth to W. Seton Karr, the
Under Secretary to the Government of Bengal.
170 See Thomson’s Account, supra note 6, at p. 390.
171 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 9 July 1847, attached to this Memorial as Annex 21.
172 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 5 Nov 1847, attached to this Memorial as Annex 25, where
Thomson makes a brief reference to “placing br ick pillars on Pedra Branca”. In Thomson’s
Account, it is stated that the brick pillars were erected on 1 NovembeSee Thomson’s
Account, supra note 6, at pp. 390-391.
– Page 75 –5.95 The buildingof the brick pillars constituted th e first episode of physical
activity on Pedra Branca. However, Governor Butterworth had visited the island
earlier in 1847, and reported this to the Government of Bengal in a letter dated 1
October 1847.
5.96 On 6 March 1850, Thomson agai n inspected the island prior to
commencing operations 17. Further public activity t ook place in the course of
April 1850, when houses for the workmen were built on Pedra Branca 17.
5.97 The entire process of preparation for the construction and the construction
itself was public, and this particularly so in the relatively narrow seas of the
region.The key stages in the construc tion were the subject of contemporary
reports in the local newspapers.Thus the laying of the foundation stone was
reported in the Straits Times and Singapore Journal of Commerce on 28 May
1850 176 and in the Singapore Free Press an d Mercantile Advertiser on 31 May
1850.
5.98 The completion of the lighthouse and the visit of Governor of the Straits
Settlements on 27 September 1851 were reported in the Straits Times and
Singapore Journal of Commerce on 23 September 1851 and 30 September 1851,
respectively. The Singapore Free Press an d Mercantile Advertiser carried a
report on 3 October 1851. The relevant Notice to Mariners was published in the
Straits Times and Singapore Journal of Commerce on 30 September 1851 and 7
173
See Thomson’s Account, supra note 6, at p. 391.
174
Ibid, at pp. 404-405.
175
Ibid, at pp. 405-423.
176
See “The Horsburgh Lighthouse” in Straits Times and Singapore Journal of Comme(28
May 1850), attached to this Memorial as Annex 45.
– Page 76 –October 1851; and in the Singapore Free Press and Mercantile Advertiser on 6
October 1851 . 177
Section IX. The Taking of Possession Elicited No Opposition from
Other Powers
5.99 There is no record of any opposition to the British taking of possession of
Pedra Branca. No other State in the regi on made any protest or reservation of
rights. This absence of opposition is par ticularly striking in light of the public
character of the British activities and the references to the construction of the
178
lighthouse in the Singapore newspapers . In this context, it is significant that
Church rejected a proposal from Thomson for the building of an outstation near
Point Romania, precisely on the ground that that “belongs to the Sultan of
Johore, where the British possess no legal jurisdiction.” 179 No such question was
raised in relation to Pedra Branca.
5.100 It is worth noting that the opera tions begun in 1847 did not involve the
Government of India in seeking permi ssion from other powers in respect of
shipping movements, including patrolling by British gunboats for the purpose of
protecting the shipping moving building materials.
177 See Straits Times and Singapore Journal of Commerce (23 Sep 1851, 30 Sep 1851 and 7 Oct
1851); Singapore Free Press and Mercantile Advertiser (3 Oct 1851 and 6 Oct 1851). Relevant
extracts from these newspapers are all attached to this Memorial as Annex 56.
178 See above, at paragraphs 5.97 to 5.98.
179 See Letter from Church T. (Resident Councillor at Singapore) to Butterworth W.J. (Governor of
Prince of Wales Island, Singapore and Malacca) dated 7 Nov 1850, attached to this Memorial as
Annex 48.
– Page 77 – Section X. The Legal Significance of the Lighthouse in these
Proceedings
5.101 It may be helpful to the Court if it is clearly indicated that the basis of the
title advanced by Singa pore is not premised on th e role of lighthouses as
evidence of State activity. There can be no question that the emplacement of
navigational aids may, depending upon all the ci rcumstances, constitute
evidence of this character 18. However, in the present case, the taking of lawful
possession of Pedra Branca for the purpos e of constructing a lighthouse and its
appurtenances, and maintaining the installation on a permanent basis, constitutes
an independent and self-sufficient basis of title.
5.102 The essence of the matter is the intention of the Government of India, and
the Court of Directors, to acquire lawf ul possession and the exclusive use of the
rock for the purposes of the Government . The intention of the British Crown
and the taking of possession constitute the basis of title. Having acquired lawful
possession and enjoyed the benefits ther eof in the period 1 847 to 1851, the
construction of the lighthouse provides fu rther confirmation of the intention of
the British Crown and the element of permanent appropriation.
180 See e.g., Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment 17
Dec 2002, at paras. 146-148.
– Page 78 – Section XI. Title to Pedra Branca was Acquired by the United
Kingdom in Accordance with the Legal Principles Governing
Acquisition of Territory in the Period 1847-1851
A. T HE B ASIS OF S INGAPORE ’ST ITLE
5.103 The basis of Singapore’s title to Pedra Branca can be analysed as follows:
(a) The selection of Pedra Branca as the site for building of the
lighthouse with the authorization of the British Crown constituted
a classic taking of possession à titre de souverain.
(b) Title was acquired by the British Crown in accord ance with the
legal principles governing acquisition of territory in 1847–1851.
(c) The title acquired in 1847–1851 has been maintained by the British
Crown and its lawful successor, the Republic of Singapore.
5.104 The various elements in this analysis will be elaborated in due course.
B. T HE D OCTRINE OF INTER -TEMPORAL LAW
5.105 The governing principle has been described clearly and authoritatively by
Max Huber as follows:
“As regards the question which of different legal systems
prevailing at successive periods is to be applied in a particular case
(the so-called intertemporal law ), a distinction must be made
between the creation of rights and the existence of rights.The
same principle which subjects the act creative of a right to the law
in force at the time the right aris es, demands that the existence of
the right, in other words its continued manifestation, shall follow
the conditions required by the evol ution of law, international law
in the 19hcentury, having regard to the fact that most parts of the
globe were under the sovereignt y of States members of the
community of nations, and the territories without a master had
become relatively few, took account of a tendency thready existing
had especially developed since the middle of the 18 century, and
– Page 79 – laid down the principle that occ upation, to constitute a claim to
territorial sovereignty, must be effective, that is, offer certain
guarantees to other States and their nationals.” 181
5.106 Sir Gerald Fitzmaurice expounded the doctrine in 1953 in these terms:
“THE DOCTRINE OF INTER-TEMPORAL LAW
(a) Its character and purpose .In a considerable number of
cases, the rights of States (and more particularly of parties to an
international dispute) depend or derive from rights, or a legal
situation, existing at some tim e in the past, or on a treaty
concluded at some comparatively remote dateT . his is more
especially the case with claims to territory or territorial waters,
bays, &c., or rights in the nature of ‘servitudes’ over territory; but
a similar point might arise in re spect of, for example, commercial
matters under old but still subsisting treaties, such as the treaties of
commerce and navigation which ma ny countries concluded in the
seventeenth and eighteenth centuries and which are still in
force.It can now be regarded as an established principle of
international law that in such cas es the situation in question must
be appraised, and the treaty interpre ted, in the light of the rules of
international law as they existed at the time, and not as they exist
today. In other words, it is not pe rmissible to import into the legal
evaluation of a previously existing situation, or of an old treaty,
doctrines of modern laws that did not exist or were not accepted at
the time, and only resulted from th 182ubsequent development or
evolution of international law…”
5.107 Judge Elias, writing in 1980 in re lation to inter-temporal law, observed
that:
“There are therefore two elements, the first of which is that acts
should be judged in the light of the law temporary with their
creation, and the second of which is that rights acquired in a valid
manner according to the law contem poraneous with that creation
181 See Island of Palmas Arbitration (Netherlands v. U.S.) (1928) 2 RIAA 829.
182 See Fitzmaurice G., The Law and Procedure of the International Court of Justice , 30 Brit. Yr.
Bk. Int’l L. 5 (1953).
– Page 80 – may be lost if not maintained in accordance w ith the changes
brought about by the development of international law.”3
C. T HE PRINCIPLES GOVERNING ACQUISITION OF TERRITORY IN THE M IDDLE
AND LATE 19 TH CENTURY
5.108 In order to provide a reasonable sa mple of authoritative opinion from the
second half of the 19th century, a number of textbooks have been examined with
publication dates ranging from 1864 to 1906. The various authorities, it may be
assumed, reflect the doctrine or the opinio n of governments, in the decade or so
preceding publication. The authorities will now be adduced in chronological
order.
(a) G.-F. de Martens, Précis du Droit des Gens Moderne de l’Europe,
Vol. 1 (2nd ed., 1864)
This work includes a substantial chapter on acquisition of property
by the State.In applying the principle of occupation to the
acquisition of territory, the writer emphasises the importance of the
intention to take possession permanently and the need for evidence
of such intention4.
(b) HenrWyheaton, Elements of International Law (8th ed., 1866,
Dana R.H., editor)
The most relevant passages are as follows:
“161. The exclusive right of every
independent State to its te rritory and other property,
is founded upon the title originally acquired by
occupancy, conquest, or cession, and subsequently
183 Elias T.O., The Doctrine of Intertemporal Law, 74 Am. J. Int’l L. 285, at p. 286 (1980).
184 G.-F. de Martens, Précis du droit des gens moderne de l’Europe Vol. 1 (2nd ed., 1864), at pp.
124 et seq., 130-132.
– Page 81 – confirmed by the presump tion arising from lapse of
time, or by treaties and other compacts with foreign
States.
…
§164.The writers on natu ral law have questioned
how far that peculiar species of presumption, arising
from the lapse of time, which is called prescription,
is justly applicable, as between nation and nation; but
the constant and approved practice of nations shows
that, by whatever name it be called, the uninterrupted
possession of territory, or other property, for a
certain length of time, by one State, excludes the
claim of every other; in the same manner as, by the
law of nature and the municipal code of every
civilized nation, a similar possession by an
individual excludes the claim of every other person
to the article of property in question. This rule is
founded upon the supposition, confirmed by constant
experience, that every pers on will naturally seek to
enjoy that which belongs to him; and the inference
fairly to be drawn from his silence and neglect, of the
original defect of his title, or his intention to
relinquish it.”185
(c) A.-GH.effter, Le Droit International de l’Europe (translated by
Jules Bergson, 3rd French ed., 1873)
This well-known work, which appeared in various editions both in
German and in French, recognis es “l’occupation des biens sans
maître” as a mode of acquisition of territory 18. The writer insists
that the intention to appropriate must be followed by an effective
187
taking of possession .
185 Wheaton H., Elements of International Law(8th ed., 1866) Dana R.H., (ed.)
186 Heffter A-G, Le Droit International de l’Europe (3rd French ed., transl ated by Jules Bergson,
1873), at pp. 142-144, para. 70.
187 Ibid, at p. 143.
– Page 82 – (d) J.-L. Klüber, Droit des gens moderne de l’Europe (2nd ed., 1874)
This work provides a very similar account of the “droit d’acquérir
au moyen de l’occupation” 188. Like Heffter, there is considerable
emphasis on the requirement that the taking of possession should
be effective.
(e) B.luntschli, Le droit international codifié (translated by M.C.
Lardy, 2nd ed., 1874)
This work appeared in various editions, both in German and in
French. Once again, the emphasis is upon the need for an effective
taking of possession 189.
(f) Sir Robert Phillimore, Commentaries upon International Law (3rd
ed., 1879)
Phillimore gives an account of o ccupation as one of the three
modes of acquisition reco gnised by the law of
nations 190. ccupation, in his opinion, requires an intent to
occupy, which “must be manifested by some overt or external
acts… These acts, then, by the common consent of nations, must
191
be use of and settlement in the discovered territories.”
188 Klüber J-L, Droit des gens moderne de l’Europe (2nd ed., 1874), at pp. 175-177, paras. 125-
126.
189
Bluntschli M., Le droit international codifié (translated by M.C. Lardy, 2nd ed., 1874), at pp.
170-171, paras. 278-279.
190
Phillimore R., Commentaries upon International Law(3rd ed., 1879), at pp. 327 et seq.
191
Ibid, at pp. 331-332.
– Page 83 – (g) F. de Martens, Traité de droit international (translated by Alfred
Léo, 1883)
The famous Russian publicist sets out the conditions for a valid
taking of possession as follows:
“Pour qu’une occupation soit valable, comme moyen
d’acquérir une propriété internationale, les
conditions suivantes doivent être remplies.
1.Au point de vue subjec tif, il est nécessaire que
l’occupation ait lieu au no m et avec l’assentiment
d’un gouvernement.Si elle est effectuée par des
fonctionnaires, représentant un Etat, it n’y a aucun
doute quant à la nation qu i doit être considérée
comme propriétaire de la terre occupée.
L’occupation entreprise par des particuliers doit être
sanctionée par le gouvernement au profit duquel elle
a été accomplie.
L.’occupation est effective si l’Etat qui l’a
enterprise est résolu de soumettre â sa puissance le
territoire qu’il a découvert, occupé et annexé. Cette
résolution ( animus possidendi ) se manifeste
extérieurement par le drapeau national, par les armes
et par d’autres symboles, mais avant tout, par
l’occupation matérielle de la terre nouvellement
découverte, par l’introductio n d’une administration,
par l’envoi de troupes, par la construction de
fortifications, etc.
3. On ne peut occuper que des terres n’appartenant à
personne et habituées par des tribus barbares…
5. Les limites de l’occupation sont déterminées par
la possibilité matérielle de faire respecter l’autorité
du gouvernement dans l’éntendue du pays occupé.
Là où le pouvoir de l’Etat ne se fait pas sentir, il n’y
a pas d’occupation…” 192
192 de Martens F., Traité de droit international(translated by Alfred Léo, 1883), at pp. 463-4.
– Page 84 – (h) Sir Travers Twiss, The Law of Nations Considered as Independent
Political Communities (1884)
Twiss gives an orthodox account of the “right of occupation” 193,
which is closely related to the “right of discovery” 194. The writer
emphasizes that discovery can only give an inchoate title unless
some act of possession is carried out 195.
(i) John Bassett Moore, A Digest of International Law (1906)
Moore gives an account of occupa tion, which he defines as “the
discovery, use, and settlement of territory not occupied by a
civilised power”, and he observes that “[d]iscovery gives only an
196
inchoate title, which must be confirmed by use or settlement” .
5.109 In looking at the legal doctrine of the second half of the 19th century
there can be no doubt that the appropriation of Pedra Branca to the exclusive use
of the British Crown in 1847-1851 constituted title by occupation, that is, by the
taking of possession. The literature requires an intention to acquire sovereignty,
a permanent intention to do so, and overt action to im plement the intention and
to make the intention to acquire manifest to other States.It is difficult to
conceive of a manifestation of s overeignty and exclusive possession as
unmistakeable in meaning as the taki ng of possession of Pedra Branca by
persons acting with the auth ority of the British Crown, more particularly in the
light of the purpose of taking possession and the construction which followed.
193 Twiss T., The Law of Nations Considered as Independent Political Communities: on the rights
and duties of nations in time of peace (1884), at pp. 196-197, para. 118.
194
Ibid, at pp. 197-204, paras. 119-123.
195
Ibid, at pp. 197-198, para. 119.
196
MJo.Br,e A Digest of International Law, Vol. 1 (1906), at p. 258.
– Page 85 –5.110 The doctrine quoted in this Chapter is compatib le with the practice of
States at the material time. On this aspect of the matter reference can be made to
McNair’s International Law Opinions, which cites Reports of the Law Officers
dated 1842 and 1868 197. The Reports stress the need to establish title by means
of effective occupation, as McNair points out in his commentary . 198
5.111 The sources confirm that an uni nhabited island (such as Pedra Branca)
was perfectly capable of appropriation by the taking of lawful possession.
Section XII. Conclusions
5.112 Singapore will now present her conc lusions on the basis of the facts and
legal considerations set forth above.
(a) The basis of the claim to sovereignty in respect of Pedra Branca is
the lawful possession of Pedra Branca effected by a series of
official actions in the period 1847 to 1851, beginning with the first
landing on Pedra Branca by Thom son some time between 21 June
and 9 July 1847, and ending with the ceremonial official
commissioning of the lighthouse on 27 September 1851.
(b) The decision to build the lighthouse on Pedra Branca was taken by
the Court of Directors of the East India Company as an official
organ of the British Crown.
(c) The entire process of planning, c hoice of site, and construction,
was subject to the exclusive control and approval of the British
Crown and its representatives.
(d) The pattern of activities and offici al visits in th e period 1847 to
1851 constitutes an unequivocal ma nifestation of the will of the
British Crown to claim sovereignty in respect of Pedra Branca for
the purpose of building the Horsburgh Lighthouse and its
appurtenances, and maintaining them on a permanent basis.
197McNair, supra note 49, at pp. 255-258.
198 Ibid, at p. 285.
– Page 86 – (e) The acts of taking possession were peaceful and public and elicited
no opposition from other powers.
(f) Title to Pedra Branca was acquired by the British Crown in
accordance with the le gal principles gove rning acquisition of
territory in the period 1847 to 1851.
5.113 The evidence and relevant legal cons iderations establish that the British
Crown acquired sovereignt y in the period 1847 to 1851, an entitlement
subsequently inherited by the Republic of Singapore. The maintenance of this
title, on the basis of the effective and peac eful exercise of State authority since
1851, is described in Chapter VI.
5.114 The question of sovereignty in relation to Middle Rocks and South Ledge
will be examined in Chapter IX below.
– Page 87 – CHAPTER VI
THE CONTINUOUS, PEACEFUL AND EFFECTIVE EXERCISE OF
STATE AUTHORITY OVER PEDRA BRANCA BY SINGAPORE
AND HER PREDECESSORS IN TITLE SINCE 1851
Section I. Introduction
6.1 As demonstrated in the previous Chapter, the British Crown acquired title
to Pedra Branca during the period 1847 to 1851 when it took lawful possession
of the island and completed the erection of the Horsburgh Lighthouse. Prior to
that time, no other State had ever oc cupied the island or exercised any
sovereignty over it.
6.2 HorsburgLighthousea s built to ensure the safe ty of navigation in the
Straits of Singapore through which shippi ng from Europe and India had to pass
to reach China and other parts of East Asia and vice versa. This factor was of
crucial importance to the authorities of Singapore. The building of Horsburgh
Lighthouse, and the British occupation of Pedra Branca for this purpose,
furthered the very objective for which Singapore was founded – to secure the
important trade route passing through the Straits of Malacca and the Straits of
Singapore – and played an important role in the continued success of Singapore
as a major commercial entrepôt.
6.3 On 24 September 1851, the Govern or of the Straits Settlements, W.J.
Butterworth, issued an official Notice to Mariners which announced the
completion of the lighthouse on Pedra Branca, indicated its geographic co-
ordinates and stated that, commencing on 15October1851, the light would be
– Page 89 – 199
exhibited every night thereaft er from sunset to sunrise . The Notice to
Mariners, which is quoted at paragraph 5.87 a bove, also noted that the height of
the lighthouse was elevated 95 feet above sea-level and could be seen in clear
weather by vessels at a distance of 15 na utical miles. There was no protest or
reaction of any kind by Johor to this notice.
6.4 Th1e851 Notice to Mariners was in effect the beginning of the
continuous, open and peaceful display of State authority exercised by Singapore
and her predecessors over Pedra Branca following its lawful possession by the
United Kingdom. Since its construction, and for more than 150 years up to the
present, the British colonial government in Singapore and later the Government
of Singapore have operated and mainta ined Horsburgh Lighthouse, and have
exercised authority over Pedra Branca and its territorial waters, without any
challenge or objection from Malaysia or any other State until Malaysia published
a map in December 1979 pur porting to include Pedra Branca within her
territorial waters200.
6.5 The exercise of State activities over Pedra Branca was authorized by, and
carried out under the jurisdiction of, first the Government of India, and
subsequently, after the Straits Settlements ceased to be part of the Government
of India, the British Crown Colony of the Straits Settlements of which Singapore
formed a part, and then the Singapore Government.
199 See note 177 above.
200 Malaysia’s 1979 map is discussed below at paras. 6.114 et seq.
– Page 90 –6.6 Apart from taking possession of Pedra Branca and building and operating
the lighthouse, the Singapore author ities and their predecessors have
administered and controlled Pedra Branca in a wide-ranging number of
ways. These include:
(a) enacting legislation relating to Pedra Branca and the Horsburgh
Lighthouse;
(b) assuming responsibility for the maintenance and improvement of
the lighthouse and other facilities on the island;
(c) exercising regulatory authority and jurisdiction over personnel
residing on the island and main taining peace and good order
thereon;
(d) collectingeteorologicinl formation from Pedra Branca;
(e) building and upgrading a jetty on Pedra Branca;
(f) flying the British and, subsequen tly, the Singapore Marine Ensign
on the island;
(g) vetting applications for persons (i ncluding Malaysian nationals) to
visit Pedra Branca and otherwise controlling access to the island;
(h) regular visits by civ il and military officials from Singapore to the
island without seeking any permission from Malaysia;
(i) granting permission for Malaysian authorities to undertake
scientific and technical surveys on Pedra Branca and within Pedra
Branca’s territorial waters;
(j) carrying out naval patrols and co nducting naval exercises within
Pedra Branca’s territorial waters;
(k) investigating and reporting on hazards to navigation and
shipwrecks in the waters around the island;
(l) investigating incidents of accident al death in the waters of Pedra
Branca; and
(m) considering sea reclamation plans to extend the island.
– Page 91 –6.7 In Section II below, Singapore w ill review the facts evidencing her
continuous exercise of sovereign author ity over Pedra Branca.In Section III,
Singapore will discuss the legal cons equences which fo llow from her
administration and control of the island. As will be seen, the activities discussed
below were all undertaken à titre de souverain . The open, peaceful and
continuous exercise of State authority by Singapore and her predecessors on
Pedra Branca after 1851 thus maintained, and was the natural result of, the title
acquired by the British Crown during th e period 1847 to 1851. Finally, in
Section IV, Singapore will demonstrate that Malaysia can point to no competing
activities of a sovereign nature that she undertook with regard to Pedra Branca
during the relevant period.
6.8 As the following sections will de monstrate, the United Kingdom’s and,
subsequently, Singapore’s administration of Pedra Branca has been far-reaching
and continuous since 1851. Malaysia, in contrast, only advanced a claim to the
island in 1980 in response to Singapore’ s objection to her publication of a map
in 1979 purporting to show Pedra Branca as falling within Malaysia’s territorial
201
waters .Moreover, Malaysia’s first pr otest over Singapore’s activities on
Pedra Branca only occurred in 1989 202.By that time, Singapore and her
predecessors had already been enga ged in a long-standing pattern of
administration and control over Pedra Branca and its waters for over 130
years. That administration has continued, uninterrupted, to the present.
6.9 To the extent that the dispute ov er Pedra Branca may be said to have
emerged in 1979-1980, Singapore’s activities with respect to Pedra Branca after
that date represent no mo re than a continuation of Singapore’s previous display
201 See Malaysia’s claim to Pedra Branca, quoted in para.4.7 above, and the diplomatic note cited at
note 36 above.
202 See paragraph 6.113 below, and note 301 below.
– Page 92 –of sovereign authority over the isla nA.s the Court noted in the
Indonesia/Malaysia case, acts occurring after adispute has crystallized are
legally relevant and can be taken intconsideration when they constitute “a
normal continuation of prior acts and are not taken for the purpose of improving
the legal position of the Party which relies on them. This was clearly the
situation with respect to the activities which occurred after 1979 that Singapore
will discuss.All of these were part of a consistent pattern of State activity
relating to Pedra Branca which commenc ed in 1851 and con tinued thereafter,
and thus represented further evidence ofthe exercise of official functions
relating to the island carried out by Singapore à titre de souverain.
Section II. Since 1851, Singapore has Continuously Exercised State
Authority over Pedra Branca
A. S INGAPORE AND HER PREDECESSORS IN TITLE ENACTED LEGISLATION
SPECIFICALLY R ELATING TO P EDRA B RANCA
6.10 In the exercise of their sove reign authority, Singapore and her
predecessors enacted a series of laws re lating to Pedra Branca. These measures
included legislative acts relating tofraying the costs of establishing and
maintaining the Horsburgh Lighthouse, ve sting control of the lighthouse under
the jurisdiction of various governmental bodies, and regulating the activities of
persons residing, visiting and working on the island. All of these measures were
open and notorious and were published as official government documents. None
of them elicited any protest from Malaysia.
203 See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , supra note 180,
at para. 135.
– Page 93 –6.11 The exercise of legislative auth ority over Pedra Branca began on 30
January 1852 when the Government of India enacted Act No. VI of 1852 – “An
204
Act for defraying the Cost of a Light-House on Pedra Branca” . In addition to
imposing tolls on ships calling at Singapore harbour, Act No. VI dealt with
matters of government.
6.12 Section I of the Act provided:
“The Light-House on Pedra Branca aforesaid shall be called “The
Horsburgh Light-House,” and th e said Light-House, and the
appurtenances thereunto belonging or occupied for the purposes
thereof, and all the fixtures, apparatus, and furniture belonging
thereto, shall become the property of, and absolutely vest in, the
East India Company and their successors.”
6.13 Section IV was concerned with the question of management and
control. It provided:
“The management and controul of the said “Horsburgh Light-
House,” and of the keeper ther eof, and of everything relating
thereto, is hereby vested in the Governor of the Straits
205
Settlements.”
6.14 The 1852 Act formally integrated Horsburgh Lighthouse into the British
legislative system following the appropriation of Pedra Branca during the period
1847 to 1851. Having taken possession of Pedra Branca, it was natural for the
British Crown to enact laws dealing with the owne rship, management and
control of the lighthouse and its appurten ances. As is discussed at paragraphs
6.102 to 6.104 below, thes e kinds of legislative me asures are legally very
significant. They represent important evidence of the exercise of sovereign
204 Act No. VI of 1852 (India), attached to this Memorial as Annex 59.
205 As explained in para. 5.11 above, the Governor of the Straits Settlements was responsible to the
Governor-General of India, and, like the Go vernor-General, was an o fficer of the East India
Company.
– Page 94 –authority over Pedra Branca itself which wa s the specific subject matter of the
legislation in question.
6.15 To further appreciate the signific ance of the 1852 Ac t, it should be
recalled that it was enacted by the Governor -General of India in exercise of his
legislative powers in India. As explained in Chapter V, the East India Company
was the vehicle through which the Br itish Crown governed IndiaT . he
Governor-General of India was an officer of the East India Company responsible
to the Court of Directors of the East India Company whic h was, in turn,
responsible to the British Government in London for the governance of
India. Section I of the 1833 Charter of the East India Company provided that all
property of the East India Company was he ld in trust for (i.e., on behalf of) the
206
British Crown for the service of the Government in India . Consequently, for
the period in question, property belo nging to the East India Company was
property of the Government in India and vice versa.
6.16 Given that territorial and ot her possessions held by the British
Government in India were held in the name of the East India Company, it
follows that the vesting of the lighthouse and its appurtenances in the East India
Company by Act No. VI of 1852 was not me rely a transfer of property to a
private company. Instead it was a legisl ative measure enacted by the East India
Company to vest real property in itself. Such a measure is clearly an exercise of
jurisdiction à titre de souverain for the following reasons.
206 See relevant provisions of the 1833 Charter of the East India Company, attached to this
Memorial as Annex 5.
– Page 95 –6.17 First, such an act, by a government to ap propriate real property to itself,
was a clear display of territorial jurisdic tion. As the Permanent Court observed
in the Lotus case:
“… a State … may not exercise its power in any form in the
territory of another State.In th is sense, jurisdiction is certainly
territorial; it cannot be exercised by a State outsid e its territory
except by virtue of a permissive rule derived from international
custom or from convention.” 207
6.18 Second, under section XLIII of the 18 33 Charter of the East India
Company, the legislative po wer of the Governor-General in Council – i.e., the
legislature of the Government in India – was purely territorial in nature in the
sense that the Governor-General was not granted power to legislate extra-
territorially.08Since the Government in Indi a could not pass extra-territorial
legislation, any law vesting or affecting real property on Pedra Branca, such as
Act No. VI of 1852, presupposed that th e Government in India already regarded
Pedra Branca as British territory (i.e., as a result of the events on Pedra Branca
from 1847 to 1851 discussed in Chapter V).
6.19 The enactment of Act No. VI of 1 852 thus provides clear evidence that
the Government in India regarded Pedra Branca as British territory and acted as
such. These arrangements represented a specific exercise of State authority over
Pedra Branca by the British Crown and were undertaken à titre de souverain.
6.20 On 7 April 1854, the Government of India further demonstrated its
authority over Pedra Branca by repeali ng Act No. VI of 1852 and replacing it
207 See S.S. Lotus (France v. Turkey) [1927] P.C.I.J. Ser. A, No. 10, at See also F. A.
Mann, Studies on International Law (1973), where the author reflected this well-established
principle and wrote that “no State has jurisdiction so as to bind property outside its borders.”
208 See relevant provisions of the 1833 Charter of the East India Company, attached to this
Memorial as Annex 5.
– Page 96 –with new legislative measures (Act No. XIII of 1854) for defraying the costs of
the lighthouse thereon and its maintenance 209. The purpose of this Act was to
change the basis on which light dues were collected. Section II of Act No. XIII
provided:
“The Light-House on Pedra Branca af oresaid shall continue to be
called ‘The Horsburgh Light-Hous e,’ and the said Light-House,
and the appurtenances thereunto belonging or occupied for the
purposes thereof, and all the fixtures, apparatus and furniture
belonging thereto, shall remain the property of, and be absolutely
vested in, the East India Company and their successors.”
6.21 Section VIII of the 1854 Act repeat ed in large measure the provisions of
section IV of Act No. VI of 1852.It provided that: “The management and
control of the said ‘Horsburgh LightHouse,’ and of the Sraits’ [ sic] Lights, are
hereby vested in the Governor of th e Straits’ Settlements.” Section X then
provided:
“The Funds raised by the tolls payable under this Act shall be
applicable in the first place to defray the necessary expenses of
maintaining and keeping up the said Light-House and the said
Straits’ Lights, and the establishment and maintenance of such
other lights as aforesaid, as the Governor General of India in
Council may think fit to establis h and maintain, and all necessary
expenses incidental thereto, and the surplus thereof shall from time
to time, be applied in liquidation of the moneys advanced by the
East India Company to wards the erection and completion of the
said Light-House, and the apparatus and furniture thereof.”
6.22 Sovereignty over Pedra Branca having been established in 1847-1851, the
1852 and 1854 Acts form ally vested title over Hors burgh Lighthouse and its
appurtenances in the British Crown fo r internal constitutional purposes.
Thereafter, the United Kingdom , in the maintenance of her sovereignty over
Pedra Branca, periodically enacted orders modifying the tolls that were assessed
209 Act No. XIII of 1854 (India), attached to this Memorial as Annex 62.
– Page 97 –on ships passing through the Straits of Singapore fo r the upkeep of the light on
210
Pedra Branca .
6.23 In 1957, the Singapore Light Dues Board was established, pursuant to the
Light Dues Ordinance (No. 6 of 1957), wi th responsibility for administering the
211
fund into which light dues were remitted . The Board was responsible for the
provision and upkeep of all maritime navigational ai ds in Singapore waters
including the station at Pedra Branca. The Chairman of the Board was ex officio
the Master Attendant, the head of the Si ngapore Marine Department. The other
members of the Board were appointed by a Government Minister . 212
6.24 On 1 April 1973, Sing apore enacted the Light Dues (Repeal) Act 1973
which transferred the assets, liabilities and employees of th e Singapore Light
Dues Board to the Port of Singapore Authority and repealed the 1957
213
Ordinance . A further reorganization took place in 1997 under the Maritime
and Port Authority of Singapore Act 1996 which transferred the functions of the
Port of Singapore Authority to the Maritime and Port Authority of Singapore 21.
6.25 On 29 November 1991, the Singapore Minister for Home Affairs issued
215
the Protected Places (No. 10) Order 1991 . Section 2 of the Order provided
210
See e.g., Order in Council of 23 Oct 1907 (StraSettlements), attached to this Memorial as
Annex 76; and The Light-Houses Ordinance 1912 (Straits Settlements), attached to this
Memorial as Annex 77.
211 See Light Dues Ordinance (No. 6 of 1957) (Colony of Singapore), attached to this Memorial as
Annex 99.
212 Ibid, at s. 6.
213 See Light Dues (Repeal) Act 1973 (Republic of Singapore), attached to this Memorial as Annex
118.
214
See Maritime and Port Authority of Singapore Act 1996 (Republic of Singapore), attached to
this Memorial as Annex 196.
215 See Protected Places (No. 10) Order 1991 (Republic of Singapore), attached to this Memorial as
Annex 178.
– Page 98 –that the premises described in the First Schedule to the Order were declared to be
protected places and that no person shall be in those premis es unless he had a
pass-card or permit issued by the Se cretary of the Port of Singapore
Authority. Under item 10 of the Schedule, “[t]he island occupied by ‘Port of
Singapore (Horsburgh Lighthouse)’” – i.e., Pedra Branca – was included
amongst the places covered by the Order, thus further attesting to the exercise of
216
State functions by Singapore relating specifically to Pedra Branca
6.26 As will be seen in the following sections, Singapore and her predecessors
have administered and controlled a broad spectrum of other activities on and in
the territorial waters around Pedra Bran ca ever since lawful possession of the
island was effected.
B. T HE B RITISH CROWN AND , SUBSEQUENTLY , INGAPORE M AINTAINED ,
MPROVED AND STAFFED THE LIGHTHOUSE AND OTHER F ACILITIES ON PEDRA
BRANCA
6.27 The legislative acts discussed in the previous section show that
administrative control over Pedra Branca and the maintenance of the Horsburgh
Lighthouse after 1851 remained vested in the British Government and, later, in
Singapore.
6.28 In 1883, an official Government no tification was published in the Straits
Settlements Government Gazette inviting tenders for strengthening the jetty on
Pedra Branca and constructing a small landing stage 21. In 1902, another
216
See also the plan/map of Pedra Branca athe Protected Places (No. 10) Order 1991
(Republic of Singapore), attached to this Memorial as Annex 178.
217
See Government Gazette No. 21 of 1883 dated 10 Jan 1883, and Government Gazette No. 159
of 1883 dated 5 Apr 1883, attached to this Memorial as Annex 70.
– Page 99 –Government notification invited tenders for the provision of new girders, tension
rods and roof of davits of the pier at Pedra Branca . 218
6.29 New lighting equipment was installe d on the lighthouse in 1887 and was
publicized by the issuance of a further Notice to Mariners on 2 September
219
1887 .This equipment continued to work well until 1966, when it was
220
upgraded .
6.30 Evidence of the continuous maintenance of the facilities on Pedra Branca
may be found in the Annual Reports of the Marine Department of the Straits
Settlements and the Colony of Singapore starting in 1937 221. These
improvements were carried out by the Ma rine Section of the Public Works
Department of Singapore or by inde pendent contractors hired by that
department 22.Amongst the activities carried out, as shown in the relevant
Annual Reports, were the following:
(a) in 1948, larger living quarters were built for the lightkeeper and
crew stationed on Pedra Branca;
(b) in 1950, the pier foundation at Pedra Branca was repaired and
strengthened and a radio telephone installed;
(c) in 1951, maintenance repairs were carried out along with
repainting and whitewashing;
218 See Government Gazette No. 767 of 1902 dated 13 June 1902, attached to this Memorial as
Annex 74; and Government Gazette No. 867 of 1902 dated 8 July 1902, attached to this
Memorial as Annex 75.
219 See “Notice to Mariners” dated 2 Sep 1887, att ached to this Memorial as Annex 73. See also,
“Notice to Mariners” dated 29 June 1887, attached to this Memorial as Annex 72.
220 See the Marine Department Annual Report for 1966, in Extracts from Selected Annual Reports
of the Marine Department (Singapore), attached to this Memorial as Annex 82.
221 See Extracts from Selected Annual Reports of the Marine Department (Singapore) , attached to
this Memorial as Annex 82.
222 See Letter from the Master Attendant, Singapor e to the Permanent Secretary (Commerce &
Industry) dated 5 Sep 1957, attached to this Memorial as Annex 100.
– Page 100 – (d) in 1952, authorisation was give n to fly the new Ensign of the
Colony of Singapore on all Mari ne Department Establishments,
including Pedra Branca;
(e) in 1952, boat davits were fitted at the lighthouse;
(f) in 1959, dihedral radar reflectors were installed;
(g) by 1962, a radio beacon had been installed;
(h) in 1966, a new electric-powered optic and light source was
installed and an alternator room was added to the lighthouse;
(i) in 1967, general repairs and repainting were effected; and
(j) in 1971, there were further general repairs and repainting
(ordinarily, these took place every four years), an additional diesel
fuel storage tank was installed, and the diesel en223es’ cooling
water tanks and piping connections were renewed .
Throughout this period, Singapore main tained personnel on Pedra Branca to
staff the lighthouse, and arranged for regu lar visits to the island to effect the
various works and enhancements.
6.31 Singapore undertook further improve ments in 1988 when the lighthouse
became fully automated and solar pane ls were mounted on a new housing
structure . With the installation of a remo te monitoring system linked to the
Singapore Port Operation Center, the number of personnel stationed on the
island was reduced.
6.32 In 1989, Singapore installed radar on the island and linked this to a Vessel
Traffic Information System operated out of Singapore 225. This was followed, in
223 See generally, Extracts from Selected Annual Reports of the Marine Department (Singapore) ,
attached to this Memorial as Annex 82.
224 See Extract from the Annual Report of the Port of Singapore Authority for 1987, attached to this
Memorial as Annex 158.
225 See Marine Circular 8 of 1989 dated 20 July 1989 and Marine Circular 12 of 1989 dated 25 Aug
1989, issued by the Port of Singapore Authority, attached to this Memorial as Annex 165.
– Page 101 – 226
1992, by the construction of helic opter landing facilities on the island . A
227
further upgrade was made to the light in 1996 . Once again, they represented a
continuation of Singapore’s long-standing administration of Pedra Branca. See
overleaf for a diagrammatic representation of the various facilities and structures
on Pedra Branca today (Image 16).
6.33 Singapore and her predecessors have also assumed exclusive
responsibility for staffing the lighthouse on Pedra Branca continuously since its
completion in 1851.
6.34 The original staffing plans for Hors burgh Lighthouse were set out in an
1851 letter from J.T. Thomson to the Resi dent Councillor in Singapore, Thomas
Church, and subsequently ap proved by Colonel Butterworth 228. The lighthouse
was serviced by a rotating c ontingent of 13 persons of which eight were to be
stationed on Pedra Branca at any one tim e, and the expenses relating to their
salaries and upkeep were endorsed by Butterworth, in his capacity as Governor.
When the lighthouse was electrified in 1 966, the crew was cut to four men, and
it was further reduced to tw o in 1989 when th e light became automated. These
personnel were augmented from time to tim e as required by visiting inspectors,
repairmen and maintenance crews 229.
226
See Newspaper Reports on the Helipad at Pedra Branca , attached to this Memorial as Annex
172 and Annex 173.
227
See Letter from the Hydrographic Department, Mar itime and Port Authority of Singapore to
Director-General, Maritime and Port Authority of Singapore, dated 13 June 1996, attached to
this Memorial as Annex 197.
228
See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 20 July 1851, attached to this Memorial as Annex 54; Letter
from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca) to Church
T. (Resident Councillor at Singapore) dated 23 Aug 1851, attached to this Memorial as Annex
55; and Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and
Malacca) to Church T. (Resident Councillor at Singapore) dated 28 Oct 1851, attached to this
Memorial as Annex 57.
229 See Selected Entries from the Horsburgh Lighthouse Visitors Logbook (including
transcriptions), attached to this Memorial as Annex 87.
– Page 102 – C. S INGAPORE ’SE XERCISE OF R EGULATORY A UTHORITY AND J URISDICTION
OVER PERSONNEL S TATIONED ON P EDRA BRANCA
6.35 In the maintenance of their pr e-existing title, the Government of
Singapore and her predecessors have exercised sovereign authority and
legislated for the maintenance of pea ce and good order on Pedra Branca and
have regulated the activities of personnel stationed there even to the extent of
exercising criminal jurisdiction over them.
6.36 In 1928, the Government of the Straits Settlements amended the
Merchant Shipping Ordinance to provide that:
“Any person employed in a li ghthouse, who willfully or
negligently omits to do any act proper and requisite to be done by
him with respect to the light or signals exhibited in a lighthouse,
shall, if such omission is of a nature likely to cause danger to
navigation, be liable upon convicti on before a District Court to a
fine not exceeding five hundred dollars or to emprisonment of
either description for a term not exceeding two years.”
6.37 With respect to regulatory activitie s, the Master Attendant of Singapore
issued “Standing Orders and Instruc tions – Lighthouses” on 13 September
1961 . These Standing Orders pertai ned to Horsburgh Lighthouse, and
included, amongst other matters, an instru ction (section 6) that no visitors were
allowed to land or stay at lighthouses without a permit issu ed by the Master
Attendant.Under section 10 of the Standing Orders, the State Ensign of
Singapore was directed to be flown during daylight hours. Section 15 of the
Standing Orders pr ovided that, with respect to Horsburgh Lighthouse, a
230
of the Laws of the Straits Settlements), with subsequent revisions of the section i.e., section 233
of the 1970 Revised Edition and section 215 of the 1985 Revised Edition, attached to this
Memorial as Annex 80. As shown in the 1970 Revised Edition, the fine imposable was later
increased to 1,000 dollars.
231
“Standing Orders and Instructions – Lighthouses” dated 13 Sep 1961, attached to this Memorial
as Annex 106.
– Page 103 –transmitting beacon would be separate ly maintained by the Singapore
Telecommunications Department.
6.38 In 1974, the Navigational Aids Section of the Port of Singapore Authority
232
issued new “Standing Orders and In structions to Lighthouse Personnel” .
Section 2 of these Standing Orders provided that th ey were applicable to
personnel stationed at the Horsburgh Lighthouse on Pedra Branca.
6.39 Apart from regulating the ordinary duties of lighthouse keepers and staff,
the Standing Orders contained provisions having a wider application attesting to
Singapore’s authority. For example, section 9 of the Standing Orders provided:
“Lightkeepers are instructed to see that no visitors are allowed to
land or stay at lighth ouses without a valid permit.Shelter may,
however, be afforded to persons in distress or requiring assistance
and in all such cases, the Lightkeeper shou ld report the
circumstances to the Office forthwith.”
6.40 The actual exercise of control by Singapore over visits to Pedra Branca is
discussed in greater detail at paragraphs 6.54 to 6.64 below.
232 “Standing Orders and Instructions to Lighthouse Personnel 1974” dated 12 Feb 1974, attached
to this Memorial as Annex 119.
– Page 104 – D. T HE STATE A CTIVITIES OF THU NITEDK INGDOM AND SINGAPORE ON
PEDRA B RANCA R ELATED TO THE SLAND AS A W HOLE , NOTS IMPLY THE
LIGHTHOUSE
6.41 Thus far, this Chapter has focusson the actions of an official nature
that the United Kingdom and Singapore u ndertook with respect to Horsburgh
Lighthouse on Pedra Branca.It is sgnificant, however, that the exercise of
sovereignty by Singapore a nd her predecessors over Pe dra Branca related not
simply to the lighthouse, but alsothe island as a whole as well as to its
territorial waters and encompassed numerous non-lighthouse activities.
1. The Authorities in Singapore Used Pedra Branca as a Meteorological
Data Collection Station
6.42 As early as 1851, the architecnd engineer of Hors burgh Lighthouse,
J.T. Thomson, proposed that meteorol ogical observations be made by personnel
stationed on Pedra Branca. In his lette r to Resident Councillor Church dated 20
July 1851, there is a eading “Meteorological Observations” under which
Thomson writes:
“In an establishment of this nature – where the duty is regular and
continuous – these observations can be made with little labour or
troubles to the Keepers … In the meantime I have only proposed
observations in the thermometer and rain guage to be placed in the
Light house Journal…”33
233 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 20 July 1851, attached to this Memorial as Annex 54.
– Page 105 –6.43 That Horsburgh Lighthouse was actually used as a meteorological station
as envisaged by Thomson can be seen from his Account of the Horsburgh Light-
House, where he stated:
“Since the 1st of November, 1851, to the present time, (July 1852)
the indications of the thermomete r have been registered twice a
day….” 234
Thomson provided temperature readings for Pedra Branca from November 1851
to June 1852. 235
6.44 Thereafter the lighthouse continued to be used as a meteorological station
as evidenced by the publication in the official Government Gazette of
236
meteorological data taken on Pedra Branca in the 1860s .
6.45 During the Second World War, the li ghthouse fell into disrepair. After
the Second World War, new rainfall gauges were installed on Pedra Branca on
28 May 1953 by the Meteorolog ical Department, which came directly under the
authority of the Ministry of Communica tions of the Government of the Crown
Colony of Singapore. As the daily ra infall records show, from 1 June 1953 to
April 1988, rainfall data was collect ed daily by the lighthouse keepers 237. The
information was then forw arded to the Meteorological Department, which
collated the information on a monthly a nd annual basis. Officers from the
Meteorological Department also visite d Pedra Branca to maintain the rain
gauges.
234ThomsAoc’sount, supra note 6, at p. 381.
235 Ibid, at p. 381-382.
236 See Extracts from the Straits Settlements Government Gazette 1865-18, attached to this
Memorial as Annex 66.
237 See Rainfall records of Pedra Branca from 1953 to 1988, attached to this Memorial as Annex
92.
– Page 106 –6.46 The rainfall data was then combin ed with figures for rainfall obtained
from other places within Singapore’s te rritory to derive the annual average
rainfall figures for Singapore as a whole. In this regard, it is significant that
rainfall data was also collected for Ra ffles and Sultan Shoal lighthouses, which
were within Singapore’s territory, but not for the lighthouse on Pulau Pisang,
which was administered by Singapore, but sited on territory belonging to
Malaysia.
2. The Display of a British Marine Ensign and, after Independence, a
Singapore Ensign over Pedra Branca
6.47 During the construction of Horsburgh Lighthouse, and subsequently for
more than a century, a Br itish Marine Ensign flew c ontinuously over Pedra
Branca. The earliest proposal for flying the Ensign after th e completion of the
Lighthouse was contained in Thomson’s letter of 20 July 1851. That the Ensign
was flown during the constr uction, and after completion, of the Lighthouse can
be seen from the photographs and pa intings of Pedra Branca overleaf ( Images
17 to 20), and above, after page 10 (Image 2) and page 74 (Image 15).
6.48 The fact that national emblems such as the one flown at Pedra Branca are
indications of sovereignty has been co nfirmed in the Court’s decision in the
Temple Case T .here, the Court underscore d the clear implications for
sovereignty that the flying of a flag over a particular territory has (in that case, at
the Temple of Preah Vihear itself) 23.
6.49 On 27 October 1952, authorization was received to fly the new Ensign of
the Colony of Singapore on all Marine Department establishments (including the
238 See Temple of Preah Vihear (Cambodia v. Thailand) (Merits) [1962] ICJ Rep 6, Seep.30.
also, paras. 7.10 to 7.12 below.
– Page 107 –lighthouse on Pedra Branca).The Annu al Report of the Singapore Marine
Department described the flying of the Ensign as follows:
“Authorization to fly the new Ensi gn of the Colony of Singapore
from all Government vessels and Marine Department
establishments was received on the 27th October [ 1952] and put
into effect by the Department the following day.
It is a Blue Ensign with the Colonybadge in the fly, which consists
of a circle having a white backgro und containing a red cross pall
reversed bearing an Imperial Crown in the centre.The reversed
pall is unique in British heraldry, and was also a feature of the
former Straits Settlements Ensign ex cept that in the latter it was
white on a red diamond shaped la bel and bore three crowns, one
for each of the Settlements (Singapore, Penang and Malacca).” 239
6.50 The following year, on 19 June 1953, W.H. Walmsley, Acting Master
Attendant, issued a set of “Lighthouse Laws and Orders”, which included an
order to lighthouse personnel to fl y the Government’s Ensign daily 240. Since
Singapore’s independence in 1965, the Singapore Marine Ensign has
continuously flown over the island.
6.51 In 1974, Standing Orders and Instru ctions to Lighthouse Personnel were
issued. Section 11 of these orders provided:
“FLYING OF ENSIGN
Except at Pulau Pisang Lighthouse, the Singa pore Marine Ensign
is to be flown from 0800 hrs until sunset every day. Lighthouses
will be informed by R/T whenever the Ensign is required to be
flown at half-mast.
No Ensign is to be flown at Pulau Pisang Lighthouse.” 241
239 See the Marine Department Annual Report for 1952, in Extracts from Selected Annual Reports
of the Marine Department (Singapore), attached to this Memorial as Annex 82.
240 “Lighthouse Laws and Orders” dated 19 June 1953, attached to this Memorial as Annex 94.
241
“Standing Orders and Instructions to Lighthouse Personnel 1974”, attached to this Memorial as
Annex 119.
– Page 108 –6.52 The flying of the Singapore Ensign on Pedra Branca was open and
notorious yet elicited no protest from Malaysia.
6.53 It should be noted that Malaysia has demonstrated her awareness of the
significance of flying national emblems over territory for purposes of evidencing
sovereignty. Malaysia demanded (and obtained) the lowering of the Singapore
Ensign flown until 3 September 1968 over another lighthouse facility maintained
by Singapore at Pulau Pisang, a territory over which Singapore does not exercise
242
or claim sovereignty . It was for this reason that the 1974 Standing Orders to
Lighthouse Personnel instructed that no Ensign be flown on Pulau Pisang.
However, the Ensign continues to be flown from Pedra Branca to this day.
3. Singapore’s Exclusive Control over Visits to Pedra Branca and her
Use of the Island for other Official Purposes
6.54 In the further mainte nance of Singapore’s title to Pedra Branca, the
Government of Singapore has controlle d and, where appropriate, authorized
access to the island by personnel from Si ngapore as well as from other States
including Malaysia. As noted above, re gulatory authority for controlling access
to the island was contained in section 6 of the 1961 Standing Orders and in
section 9 of the 1974 Standing Orde rs and Instructions to Lighthouse
243
Personnel . Failure by Singapore employees stationed on Pedra Branca to
comply with these regulations subjected them to penal sanc tions under section
233 of the Merchant Shipping Act which was itself referred to under section 22
of the 1974 Standing Orders.
242 See Letter from the Ministry of Foreign Affairs, Singapore to the Attorney-General, Singapore
dated 4 Sep 1968, attached to this Memorial as Annex 113. Pulau Pisang is located off the west
coast of Johor. Its exact location can be seen in Map 2, after page 8.
243 See paras. 6.54 to 6.64 above.
– Page 109 –6.55 In Annex 105, the C ourt will find a representa tive sample of requests
submitted by applicants to the Master Attendant of Singap ore to visit Pedra
Branca together with the Master Attendant ’s response. On numerous occasions,
the Master Attendant approv ed these applications on condition that visitors
travelled at their own risk. However, th e Master Attendant also exercised his
authority by occasionally rejecting applications. Moreover, due to the number of
applications that were received to visit the lighthouse, the Master Attendant was
obliged to establish a set of rules re lating to such vis its, thus further
244
demonstrating Singapore’s control over the island .
6.56 Starting in 1946, a lo gbook was kept at Horsbur gh Lighthouse to record
visits to the island 245. Its entries reveal that Singapore officials visited Pedra
Branca literally hundreds of times and fo r a variety of purposes without any
interference or objection from Malaysia .These visits ranged from routine
inspections by the Deputy Master Attendant to maintenance missions and visits
by senior ministerial and naval officials, police personnel and even Members of
Parliament.
6.57 The logbook also shows that the scope of activities undertaken by
Singapore officials visiting Pedra Branca was considerable a nd did not solely
relate to the lighthouse or its communica tions facilities. In November 1952, the
island was inspected for purposes of ascertaining its suitability for naval
requirements. On many occasions, repairs and extensions were made to the
jetty. Other entries reveal that Singapore took continuous step s to maintain the
meteorological recording devices installed on Pedra Branca as well.
244 See Letter from the Master Attendant to the Staff of the Marine Department dated 6 May 1961,
attached to this Memorial as Annex 104.
245 See Selected Entries from the Horsburgh Lighthouse Visitors Logbook (including
transcriptions), attached to this Memorial as Annex 87.
– Page 110 –6.58 These activities represented a conti nuation of Singapore’s exercise of
State authority on the island and a furt her confirmation of her title to that
territory.
6.59 Singapore’s exercise of control ove r Pedra Branca extended to nationals
of foreign StatesT .hus, the record shows that Singapore approved an
application to visit Pedra Branca s ubmitted by a member of the American
246
Piscatorial Society to study the migratory habits of fish .
6.60 It is highly significant that when Ma laysian officials wished to visit the
island to conduct scientific surveys, th ey were also obliged to obtain permits
from the relevant Singapore authorities. At no time did Malaysia protest this
clear exercise of sovereign authority over Pedra Branca by Singapore.
6.61 In March 1974, for example, a numbe r of Malaysian officials sought to
visit Pedra Branca and stay at Horsburgh Lighthouse as part of a joint survey
team (comprising members from Malaysia, Indonesia, Japan and Singapore) to
247
make tidal observations .The survey was planned to be carried out over a
period of seven to eight weeks in areas which included the waters around Pedra
Branca. In order to obtain the necessary approval from the competent Singapore
ministries, the Hydrographic Department of Singapore requested Malaysia to
furnish the particulars of the Malays ian members of the survey team who
246 See Letter from the American Piscatorial Society to the Light Dues Board, Singapore dated 17
June 1972, attached to this Memorial as Annex 117.
247 See Letter from Hydrographic Department, Port of Singapore Authority to Navigational Aids
Section, Port of Singapore Authority dated 26 Mar 1974, attached to this Memorial as Annex
121.
– Page 111 – 248
proposed to take part in the study . This request was duly complied with by a
249
Lieutenant Commander of the Royal Malaysian Navy .
6.62 As discussed in more detail in Ch apter VII, a similar event took place in
1978 when the High Commission of Ma laysia in Singapore wrote to the
Singapore Ministry of Foreign Affair s requesting permission for a Malaysian
government vessel to enter Singapore territo rial waters to conduct an inspection
of Tide Gauges 250.After the appropriate form alities were complied with, the
Singapore Ministry of Foreign Affairs acceded to Malaysia’s request . 251
6.63 In contrast, when Malaysian pers onnel attempted to visit the island
without prior authorization from the authorities in Singapore, they were denied
access. On 4 May 1978, for example, the lightkeeper on Pedra Branca informed
the Port of Singapore Auth ority that two persons wh o claimed to be from the
Survey Department of West Malaysia had landed on the island the previous
month in order to carry out triangulation observations. The lightkeeper told the
visitors that “he could no t allow them to remain at the lighthouse unless prior
permission has been obtained from this [ the Port of Singapore Authority ]
office” 252. As a consequence, the two men left by tugboat. Singapore received
no protest from Malaysia over this incident.
248
See Letter from Hydrographic Department, Port of Singapore Authority to Commanding Officer
of K.D. Perantau dated 26 Mar 1974, attached to this Memorial as Annex 120.
249
See Letter from Mak S. W. (Commanding Officer of Royal Malaysian Navy Vessel K.D.
Perantau) to Hydrographic Department, Port of Singapore Authority dated 22 Apr 1974,
attached to this Memorial as Annex 122.
250 See Malaysia’s Note EC 219/78 dated 9 May 1978, attached to this Memorial as Annex 137.
251 See Singapore’s Note MFA 115/78 dated 12 May 1978, attached to this Memorial as Annex
138.
252 Letter from the Hydrographic Department, Port of Singapore Authority to Secretary
(Administration) dated 4 May 1978, attached to this Memorial as Annex 136.
– Page 112 –6.64 These events clearly demonstrate that Singapore considered Pedra Branca
and its territorial waters to fall un der her sovereignty and that Singapore
exercised her authority by controlling access by visitors, including Malaysian
officials and nationals of other States. They also show that Malaysia recognised
Singapore’s sovereignty and acted accordin gly, a matter which is discussed in
Chapter VII.
4. Permission Given to Foreign Parties to Operate in the Territorial
Waters of Pedra Branca
6.65 Singapore has also controlled access by foreign parties to her territorial
waters around Pedra Branca, and fore ign parties recognized Singapore’s
sovereignty over Pedra Branca when seek ing to engage in activities in these
waters.
6.66 For example, in 1981, when the British marine salvage operators, Regis
Ltd., were retained to recover items lost overboard by a Japane se freighter 6 to
10 miles off Pedra Branca, the Managing Director of Regis approached the
Singapore Hydrographic Department with a request to make preliminary surveys
of the area prior to a full-scale search 253. Regis provided details relating to the
proposed search in a subsequent letter date d 18 June 1981. In relevant part, the
letter stated:
“As you requested we enclose a di agram of the waters concerned;
it shows that the area to be lo oked at lies entirely within the
territorial waters (as defined by ac cepted international practice) of
the islet on which Horsburgh Light House stands.” 254
253 Letter from Regis Ltd to the Hydrographic Department, Port of Singapore Authority dated 25
May 1981, attached to this Memorial as Annex 151.
254 Letter from Regis Ltd to Hydrographic Department, Port of Singapore Authority dated 18 June
1981, attached to this Memorial as Annex 15See also Letter from Regis Ltd to the Port
– Page 113 –6.67 Singapore granted permission for the search to be carried out by a letter
255
dated 2 July 1981 . As a further illustration of her exercise of sovereignty over
Pedra Branca, Singapore’s approval was subject to a number of conditions.
These included:
(a) that copies of the Sonar Search Traces be made available to the
Port of Singapore Authority;
(b) that a representative of the Hydrographic Department of the Port of
Singapore Authority accompany the survey th roughout its
duration;
(c) that no further tasks be undertaken with regard to the project
without prior permission; and
(d) that a copy of the findings of th e survey be provided to the Port of
Singapore Authority.
5. The Conduct of Naval Patrols and Exercises around Pedra Branca by
Singapore and the Installation of Military Communications Equipment on
Pedra Branca
6.68 Singapore also engaged in frequent na val patrols in the territorial waters
around Pedra Branca and installed milita ry communications equipment on the
island.These activities were carried out at Singapore’s own initiative and
without seeking any prior authorization from Malaysia.
Master, Port of Singapore Authority dated 11981, attached to this Memorial as Annex
153. This letter stated that Regis “had been informed that the waters belonged without doubt to
Singapore”.
255 Letter from Port Master, Port of Singapore Authority to Regis Ltd dated 2 July 1981, attached to
this Memorial as Annex 154.
– Page 114 –(1) Singapore Naval Patrols in the Territorial Waters of Pedra Branca
6.69 In exercise of Singapore’s sove reign rights over Pedra Branca and its
surrounding waters, the Republic of Singa pore Navy conducts regular patrols in
those waters. In carrying out its duties of patrolling Singapore’s territorial
waters, the Republic of Singapore Navy divides its area of patrol into five patrol
sectors. The patrol sector in the vicin ity of Pedra Branca was known as “Sector
F5”.
6.70 The Republic of Singapore Navy was o fficially formed on 1 April 1975,
from units of the then Maritime Command of the Singapore Armed Forces. In
the same year – in other words, four ye ars before Malaysia’s publication of her
1979 Map – the Commander of the Re public of Singapore Navy issued
Operations Instructions No. 10/75, dated 18 September 1975, which instructed
(among other things) that :
“With effect from 18 Sep 75, there will be five patrol areas and
they will be designated as belo w and bound by the following co-
ordinates :
Area Co-Ordinates
F1 (Sultan Shoal to …
Raffles Lt)
F2 (Raffles Lt to St. …
John’s Isle)
F3 (St John’s Isle to …
Johore Shoal)
F4 (Johore Shoal to …
Horsburgh Lt)
F5 (Horsburgh Lt 01° 19.0’ N 104° 18.0’ E
extending North-Easterly) 01° 17.5’ N 104° 20.5’ E
01° 28.0’ N 104° 35.0’ E
01° 33.0’ N 104° 32.0’ E ”
256
this Memorial as Annex 123.Operations Instruction No. 10/75 dated 18 Sep 1975, attached to
– Page 115 –The area covered by Sector F5 is mark ed out overleaf on a British Admiralty
Chart (Map 10 - Extract from British Admiralty Chart 3831 (1979), annotated to
show Patrol Sector F5 of the Republic of Singapore Navy). 257 The Republic of
Singapore Navy continues to patrol in this area to this day.
6.71 The establishment of official naval pa trol sectors in the territorial waters
of Pedra Branca, and the conduct of regu lar naval patrols therein, is further
evidence of the maintenance of Singa pore’s long-standing title over Pedra
Branca.
(2) The Establishment of Milit ary Communications Equipment on
Pedra Branca
6.72 In 1977, the Singapore Navy al so installed military communications
equipment on Pedra Branca in order to upgrade radio communications with
Singapore Navy vessels operating in the out er reaches of Singapore’s territorial
waters, including in Sector F5.
6.73 The need for a military rebroadcast relay stati on on Pedra Branca was
explained in a letter dated 6 July 1976 from the Republic of Singapore Navy to
the Port of Singapore Authority in the following terms:
“1.The Republic of Singapore Navy (RSN) patrols the outer
limits of our territorial waters and carries out frequent exercises
with Republic of Singapore Air Force (RSAF) in South China
Seas. On several occasions the crafts, both sea and air crafts,
encountered communication prob lems with our communication
centres in Singapore. On further investigation, it is established that
the problems are technical owi ng to atmospheric conditions and
257 For operational reasons, Sector F5 was limite d to areas to the north of Pedra Branca because
waters to the south of Pedra Branca are strewn with numerous nautical hazards, making regular
patrols impractical.
– Page 116 – distance. It is therefore necessa ry to set-up a relay/rebroadcasting
station to breach the distance.
2. he location most suitable for the relay/rebro station is
Horsburgh Lighthouse. The relay st ation requires floor space of 3
ft by 2 ft for two radio sets (VHF and HF) to be set up and power
source in the lighthouse. The station will not be manned but
periodic maintenance by the radio technicians is required.
3.Obviously it is quite a de mand on the limited space in the
lighthouse. However may I request your co-operation in this
regard in order that communicatio n needs for both security and
defence could be met.
4.I therefore seek your appr oval in principle from your good
office so that installation deta ils could be worked out and
discussed at a later date.” 258
6.74 The Port of Singapore Authority replied positively on 8 July 1976 . This 259
reply also made clear that the Port of Singapore Authority, which serviced and
maintained the lighthouse, had no responsibility for operating or maintaining the
relay station, although it requested that it be kept informed of any personnel
proceeding to the lighthouse to repair or service it.The relay station was
exclusively for the use of the Rep ublic of Singapore Navy which was
260
responsible for its establishment and maintenance . After receiving the
positive reply, a series of equipment trials were then carried out by the Republic
261
of Singapore Navy personnel on Pedra Branca . The relay station was installed
262
on 30 May 1977 .
258
Letter from the Singapore Ministry of Defence to the Hydrographic Department, Port of
Singapore Authority dated 6 July 1976, attached to this Memorial as Annex 124.
259
Letter from the Hydrographic Department, Port of Singapore Authority to the Singapore
Ministry of Defence dated 8 July 1976, attached to this Memorial as Annex 125.
260
See Extracts from Minutes of the 218th Staff Coordination Meeting Held on 21 Oct 1976,
attached to this Memorial as Annex 128
261
See Letter from the Ministry of Defence to the Port of Singapore Authority dated 14 Aug 1976,
attached to this Memorial as Annex 126; Letter from the Ministry of Defence to the Port of
Singapore Authority dated 6 Sep 1976, attached to this Memorial as Annex 127; Letter from the
– Page 117 –6.75 The significance of this example of the exercise by Singapore of authority
over Pedra Branca is two-fold. First, the installation of military equipment on
Pedra Branca took place two years prior to the first suggestion by Malaysia that
it had a claim over Pedra Branca.The installation was carried out openly,
involving the transporta tion of equipment to Pe dra Branca by military
helicopters. 263Military helicopters were also used to transport equipment for
trials before installation 264and for maintenance of the relay station after
installation . Malaysia made no protest at the time. Second, the relay station
had nothing to do with th e operation of Horsburgh Lighthouse.It was an
entirely independent operation, carried out under the authority of the Republic of
Singapore Navy, involving regular visits by military personnel to maintain the
equipment and, as such, represente d yet another concrete example of
Singapore’s exercise of sovereignty over Pedra Branca on the ground.
6. The Investigation by Singapore of Navigational Hazards and
Shipwrecks in the Territorial Waters of Pedra Branca
6.76 Singapore and her pred ecessors-in-title have also exercised sovereign
authority over Pedra Branca by investiga ting and reporting on maritime hazards
and shipwrecks within the island’s territorial waters.
Republic of Singapore Navy to the Port of Singapore Authority dated 24 Nov 1976, attached to
this Memorial as Annex 129.
262 See Letter from Headquarters (Communications and Electronics) of the Ministry of Defence to
the Hydrographic Department, Port of Singapore Authority dated 26 May 1977, attached to this
Memorial as Annex 132.
263 See Minutes of Discussion (held on 7 Nov 1976) on Communications Installation for Horsburgh
Lighthouse dated 29 Nov 1976, attached to this Memorial as Annex 130.
264 See Telex Instructions from HQ Republic of Singapore Air Force to Changi Air Force Base
dated 7 Dec 1976, attached to this Memorial as Annex 131.
265 See Republic of Singapore Air Force Tasking Instru ctions dated 22 Aug 1977, attached to this
Memorial as Annex 133.
– Page 118 –6.77 As early as 1920, a Court of Inves tigation of the Straits Settlement, Port
of Singapore, held a formal investiga tion into the circum stances surrounding a
collision between a British vessel and a Dutc h ship about 1½ to 1¾ miles north
266
of Pedra Branca . The Master of the British vessel was reprimanded by the
Court for his actions.
6.78 On November 1963, a British cargo vessel, the MV Woodburn, became
stranded on a submerged reef adjacent to Pedra Branca. A preliminary inquiry
was conducted by the Master Attendant pursuant to Singapore’s Merchant
Shipping Ordinance 267. n the recommendation of the Master Attendant,
Singapore’s Deputy Prime Minister, ac ting under section 315 of the Singapore
Merchant Shipping Ordinance, conven ed a Court of Investigation on 4
December 1963 to examine the circumstances surrounding the
268
incident U . nder section 315, the Minist er cannot appoint a Court of
Investigation for a ship not registered in Singapore unless the incident either
“occurs on or near the coast of [ Singapore]” or the Government of the ship’s
registry consents.No consent was s ought from the United Kingdom in this
case. So the decision to ap point a Court of Investiga tion could only be on the
basis that the Minister regarded an acci dent near Pedra Branca to be an accident
on or near the coast of Singapore. As a result of the investigation, the Certificate
of Competency of the MV Woodburn’s Chief Officer was suspended for 12
months.
266
Report of the Court of Investigation to Examine into the Circumstances Attending the Collision
between the British S.S. Chak Sang and the Dutch S.S. Ban Fo Soon about 1.5 to 1.75 Miles
North of the Horsburgh Lighthouse on the Night of the 9th Jul, dated 5 Aug 1920,
attached to this Memorial as Annex 78.
267
Stranding of the M.V. Woodburn on the Horsburgh Lighthouse Reef: Report of Preliminary
Inquiry by Master Attendant Singapore, dated 14 Nov 1963, attached to this Memorial as Annex
109.
268
See Appointment Letter from the Deputy Prime Minister, Singapore pursuant to the Merchant
Shipping Ordinance, appointing a Court of Investigation in respect of the Stranding of the M.V.
Woodburn, dated 4 Dec 1963, attached to this Memorial as Annex 110.
– Page 119 –6.79 On 29 November 1979, a Panamanian cargo vessel, the MV Yu Seung Ho,
ran aground approximately 600 metres east of Pedra Branca. Pursuant to section
389 of the Singapore Merc hant Shipping Act, the Mi nister of Communications
of Singapore appointed two offi cers to investigate the matter 26. As a result of
this inquiry, the Master and Second Officer of the ship were debarred from
serving on Singapore ships . 270
6.80 In 1981, Singapore issued a Notice to Mariners with regard to a vessel
which was stranded approximatel y 500 meters from Horsburgh
Lighthouse.Mariners were advised to exercise caution when taking radar
271
bearings from the Lighthouse .
6.81 Two years later, a Report was made by Singapore to the Twelfth
Tripartite Technical Experts Group Mee ting on Safety of Navigation in the
Straits of Malacca and Singapore on 5-6 May 1983 272. The meeting consisted of
experts from Malaysia, Singapore and Indo nesia. In the Report, the Singapore
delegation informed the meeting that “two wrecks in the vicinity of the
Horsburgh Lighthouse had be en verified,” and that a Notice to Mariners had
accordingly been issued. No questions were raised as to Singapore’s jurisdiction
over these hazards in the vicinity of Pedra Branca.
269 See Letter from Director of Marine, Singapore, to Captains Thomas and Chua, notifying them
that they had been appointed to investigate the grounding of the Panamanian registered vessel,
Yu Seung Ho, dated 4 Dec 1979, attached to this Memorial as Annex 139.
270 See Letters from Director of Marine, Singapore, to Bang No Hyeon and Bak Jong Hak, dated 8
Jan 1980, both attached to this Memorial as Annex 142.
271 See Singapore Notice to Mariners dated 1 Jan 1981 and Singapore Notice to Mariners dated 1
Oct 1981, attached to this Memorial as Annex 150.
272 See Report of the Twelfth Tripartite Technical Experts Group Meeting on Safety of Navigation
in the Straits of Malacca and Singapore 5-6 y 1983, dated 6 May 1983 , attached to this
Memorial as Annex 156.
– Page 120 –6.82 To this day, Singapore continue s to investigate shipping accidents
occurring in the waters around Pedra Branca. A representative sample of recent
accidents occurring within Pedra Branca’s territori al waters, which were
investigated by Singapore authorities, is listed below.
(a) The grounding of Singapore ship MV Kota Angkasa , on 22 June
1985, at Lat. 1º 19.4’N Long. 104º 24.5’E – i.e., about 800 metres
south of Pedra Branca and a273t 200 metres north of the western
cluster of Middle Rocks .
(b) The grounding of Nigerian ship MV Binta Yar’adua , on 20 June
1988, at Lat. 1º 19.5’N Long. 104º 24.75’E – i.e., about 800
metres south-east of Pedra Branca and about 400 metres north of
the eastern cluster of Middle Rocks 274.
(c) The grounding of Norwegian ship MV Martha II, on 17 September
1992, at Lat. 1º 17.7’N Long. 104º 23.7’E – i.e., about 100 metres
from South Ledge 27.
(d) The grounding and sinking of Malaysian ship MV Gichoon, on 14
October 1996, at South Ledge. The wreck of MV Gichoon can still
be seen at South Ledge today ( see Image 5 and Image 6 , after
page 11 above) 276.
(e) The grounding of Singapo277ship MT Ocean Gunard, on 6 August
1998, at South Ledge .
6.83 These investigative activities by Si ngapore met with no protests from
Malaysia.The only time that Mala ysia ever protested against such
273 See Investigation Report on Grounding of MV Kota Angkasa on 22 June 1985, attached to this
Memorial as Annex 157.
274
Memorial as Annex 159.rt on Grounding of MV Binta Yar’adua on 20 June 1988, attached to this
275
See Investigation Report on Grounding of MV Martha II on 17 September 1992, attached to this
Memorial as Annex 184.
276
See Investigation Report on Grounding of MV Gichoon on 14 October 1996, attached to this
Memorial as Annex 198.
277
See Investigation Report on Grounding ofMT Ocean Gunard on 6 August 1998, attached to this
Memorial as Annex 200
– Page 121 –investigations was on 30 J une 2003, when Malaysia pr otested against a routine
investigation conducted by the Maritime and Port Authority of Singapore into
the grounding of MV APL Emerald in a stretch of shallow waters between
Middle Rocks and South Ledge (less than 1 nautical mile from Pedra Branca) 278.
The significance of this sudden and very late change in Malaysia’s practice is
discussed in paragraph 6.116 below.
7. Investigation by the Singapore Coroner’s Court into Accidental Deaths
off Pedra Branca
6.84 On 24 June 1980, a Singapore Navy vessel operating in rough seas
capsized off Pedra Branca while attempting to disembark armed forces personnel
on the island for the purposes of maintain ing the military equipment there. The
vessel foundered and was lost with three dead and 13 su rvivors. The bodies of
the three dead soldiers were never found.
6.85 A coroner’s inquiry was duly conduc ted into the deaths by the Singapore
279
State Coroner .Under Singapore law, the ju risdiction of the Coroner is
founded upon the discovery of a body within his jurisdiction. However, when a
body cannot be found, section 278 of th e Singapore Criminal Procedure Code
allows the Coroner to assu me jurisdiction if he believes that the deaths have
280
occurred within his jurisdiction .
278
See Malaysia’s Note EC 65/2003 dated 30 June 2003, attached to this Memorial as Annex 202.
279
See Findings of the Singapore State Coroner in Inquiry 1129A-C of 1980 dated 4 Aug 1981,
attached to this Memorial as Annex 155.
280
See Criminal Procedure Code (Singapore), secns 270-278, attached to this Memorial as
Annex 149.
– Page 122 –6.86 In the instant case, the Coroner’s re port expressly states that his inquiry
was conducted under section 278 of the Criminal Procedure Code. This was a
normal procedure given that the incident occurred in the territorial waters around
Pedra Branca which were under Singapore’ s sovereignty. The report found no
culpability and ruled that the deaths were accidentaI lt was, in the
circumstances, further evidence of the no rmal exercise of State authority with
respect to territory which formed part of Singapore.
6.87 The inquiry was conducted by wa y of a public hearing in open
court. Malaysia made no protest at that time, or at any time since.
8. Proposals by the Port of Singapore Authority to Reclaim Areas
Around Pedra Branca
6.88 Due to her limited size, Singapore has frequently engaged in reclamation
projects in maritime areas surrounding her territory. In 1970, the Government of
Singapore directed the Port of Singapore Authority to study the possibility of
281
reclaiming areas around Pedra Branca .
6.89 The Authority first ca rried out a detailed hydrographic survey of the
area. Based on this survey, a profile wa s prepared calling for the reclamation of
some 5,000 square metres of land area around Pedra Branca. A diagrammatic
scheme of the project appears in Anne x 135.The possibility of installing a
desalination plant was also considered , and an invitation for tenders was
published in the national newspapers. Three companies tendered for the project,
but a decision was ultimately taken not to proceed with it 281.
281 The background and the instructions to the Pof Singapore Authority to prepare for these
works is recounted in the Reclamation and Shore Protection Works at Horsburgh Lighthouse:
(i) Newspaper Advertisement dated 27 Jan 1978, and (ii) Tender Evaluation Report dated 7 Apr
1978, attached to this Memorial as Annex 135.
– Page 123 –6.90 Despite the fact that the reclamati on project did not take place, the steps
that the Government of Singapore took to examine its feasibility and to procure
tenders again attests to the fact that Pedra Branca was considered to be
Singapore territory.
Section III. The Legal Consequences of Singapore’s Long and
Peaceful Possession of Pedra Branca in the Maintenance of her
Title
6.91 In order to appreciate the legal significance of the long and peaceful
exercise of State authority by Singapore and her predecessors over Pedra Branca
discussed in the previous sections, it is ne cessary to place the issue of title in its
proper context.
6.92 Chapter V demonstrated that the United Kingdom acquired title to Pedra
Branca during the years 1847-1851 when the island was lawfully possessed and
Horsburgh Lighthouse was constructed. Following its appropr iation, first the
United Kingdom and, subsequently, Singa pore confirmed and maintained this
title by the continuous and unopposed exer cise of State functions on Pedra
Branca and within its territorial waters – in other words, by using Pedra Branca
for any appropriate State purposes that were necessary.
6.93 As has been shown, these activities were undertaken à titre de
souverain. They related both to the maintenance, expansion and staffing of the
lighthouse as well as to the administrati on and control of the island as a whole
and its territorial waters. In short, Pedra Branca was used for a wide-ranging
variety of State purposes.
6.94 Singapore does not rely on these ac tivities as creating, or constitutive of,
her title to Pedra Branca. Nor does Singa pore argue that it has a “better title” to
Pedra Branca based on these elements. Rather, Singapore’s title was already
established as a result of the prior possession of the island by the United
– Page 124 –Kingdom in the year s 1847-1851.The evidence discussed in the previous
sections demonstrates that the United Kingdom and Sing apore thereafter
maintained that title by exercising a conti nuous pattern of State functions on the
ground – that is, by carryi ng out open and peaceful ac ts of administration and
control on Pedra Branca itself and within its territorial waters without opposition
from Malaysia which only voiced a claim to the island in 1979.
6.95 In such circumstances, State activ ities serve to confirm Singapore’s pre-
existing legal title. As the Court stated in the Frontier Dispute:
“Where the act corresponds exactlyto law … the only role of
effectivité is to confirm the exerof the right derived from a
282
legal title.”
Put another way,
“Elle [l’effectivité] joue sans conteste un rôle pour le maintien des
titres et ell283st une manifestatessentielle de l’exercice de la
souveraineté.”
A. T HE C ONSTRUCTION AND CONTINUED M AINTENANCE OF THE LIGHTHOUSE
ON PEDRA BRANCA IS E VIDENCE C ONFIRMING SINGAPORE S SOVEREIGNTY
O VER THE ISLAND
6.96 There is ample authority for the proposition that the building and
maintenance of a lighthouse on a small is land is, in and of itself, evidence of
sovereignty. In the Qatar-Bahrain case, for example, the Court was called upon
to assess the legal relevance of the fact that Bahrain had erected a navigational
pillar on a very small insular feature, Qit’at Jaradah. While the Court noted that
282
See Frontier Dispute (Burkina Faso/Mali) (Merits) [1986] ICJ Rep 554, at para. 63.
283
KMhn., Possession Contestée et Souveraineté Territoriale (1997), at p. 159.
– Page 125 –purely private activities, such as the drilling of artesian wells, were controversial
as acts performed à titre de souverain, it held that:
“The construction of navigational aids, on the other hand, can be
284
legally relevant in the case of very small islands.”
6.97 The Court took th e same position in the Case Concerning Sovereignty
over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) 285. In that case,
Malaysia argued that the construction of lighthouses on both of the disputed
islands by the United Kingdom, and thei r subsequent maintenance by Malaysia
after independence, were “part of a pa ttern of exercise of State authority
appropriate in kind and degree to the character of the places involved” 286. After
quoting with approval the pa ssage in the Judgment in the Qatar/Bahrain case
cited above – to the effect that the c onstruction of navigational aids on small
islands can be legally relevant – the Court stated:
“The Court is of the view that the same considerations apply in the
present case.” 287
6.98 Arbitral decisions support the same conclusion T.he Grisbadarna
arbitration is a case in point. There, the Arbitral Tribunal found that:
“[t]he stationing of a light-boat, which is necessary to the safety of
navigation in the region of Gr isbadarna, was done by Sweden
without meeting any protest and ev en at the initia tive of Norway,
and likewise a large number of be acons were established there
without giving rise to any protests.” 288
284 See Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), ICJ Judgment of 16 Mar 2001, at para. 197.
285 See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , supra note 180,
at para. 147.
286
Ibid, at para. 146.
287
Ibid, at para. 147.
288
See The Grisbadarna Case (Norway v. Sweden), decision of 23 Oct 1909, Hague Ct. Rep. 121
(1916), at p. 131.
– Page 126 –The Tribunal thus concluded:
“… It is shown by the foregoing that Sweden had no doubt as to
her rights over the Grisbadarna an d that she did not hesitate to
incur the expenses incumbent on the owner and possessor of these
banks even to the extent of a considerable sum of money.”
6.99 The Arbitral Tribunal in the Grisbadarna case considered that these kinds
of acts not only constituted proof of Sw eden’s conviction that the Grisbadarna
banks were Swedish, but also that they showed that Sweden:
“not only thought that she was exercising her right but even more
that she was performing her duty.”
B. BY E XERCISING STATE A UTHORITY OVER P EDRA B RANCA , SINGAPORE
AND HER P REDECESSORS IN TITLE DEMONSTRATED T HEIR CONTINUED
NTENT TO ACT AS S OVEREIGN
6.100 Inthe Legal Status of Eastern Greenland case, the Permanent Court held
that:
“…a claim to sovereignty based no t upon some particular act or
title such as a treaty of cessbut merely upon the continued
display of authority, involves two elements each of which must be
shown to exist: the intention and will to act as sovereign, and some
actual exercise or display of such authority.”
6.101 In the present case, Singapore haa pre-existing title by virtue of the
taking of possession of Pe dra Branca by the British Crown in the years 1847-
1851. On the basis of this prior title, the British Government and, after
independence, Singapore consistently maintained that sovereignty, and
289
See Judgment in The Grisbadarna Case, supra note 288, at p. 131.
290
Ibid, at p. 130.
291
See Legal Status of Eastern Greenland Case (Denmark v. Norway ), Judgment (1933) P.C.I.J.
Reports, Ser. A/B, No. 53, at pp. 45-46.
– Page 127 –demonstrated their intention and will to do so by ex ercising administration and
control over the island in an open, constant and peaceful manner.
1. The Exercise of Legislative Authority over Pedra Branca
6.102The details of the legislative acts which the United Kingdom and
Singapore enacted with resp ect to Pedra Branca have been discussed earlier in
292
this chapter. To place these activities in their pr oper legal context, it is useful
to recall the Permanent C ourt’s observation in the Legal Status of Eastern
Greenland case that:
“Legislation is one of the most obvious forms of the exercise of
293
sovereign power…”
6.103 Starting in 1852, and continuing up to the pres ent, the United Kingdom
and Singapore enacted a number of laws that related specifically to Pedra
Branca. These laws were implemented on the ground by Singapore, in
particular, taking a number of regulatory measures with respect to Pedra Branca
based on her internal legislation. These measures were performed à titre de
souverain and were not contested by Malaysia. In these circumstances, it can be
concluded that:
“...l’adoption d’une législation des tinée à être appliquée dans une
région déterminée est une manife294 tion claire de l’exercice d’une
activité étatique à son égard.”
292
See para. 6.10 et seq.
293
See Legal Status of Eastern Greenland Case, supra note 291, at p. 48.
294
KoMh.e,n supra, note 283, at pp. 210-211. As the author notes, “On peut conclure que pour la
Cour, la législation peut être considérée comme expression du corpus possessionis.”
– Page 128 –6.104 It is not necessary to take this legislative activity in isolation. Rather, it is
but one example amongst many of Singapore ’s intention and will to exercise
sovereignty over the island as a logical extension of her prior title.
2. Singapore Carried Out Numerous Sovereign Acts Over Pedra Branca
and Within its Territorial Waters
6.105 Singapore has also shown that she ca rried out a constant stream of State
activities on Pedra Branca itself.Thes e included maintaini ng, expanding and
repairing the lighthouse.However, they also included a broad scope of non-
lighthouse activities. To recapitulate, Singapore built a docking pier on the
island, organized official visits to Pedra Branca by Singapore government
officials, regulated visits (and accompan ied such visits when they were duly
authorized) by foreign nationals (including Malaysian officials) to the island and
its waters, flew the British and, subsequently, the Singapore Marine Ensign over
the lighthouse, carried out investigations of shipwr ecks and maritime hazards
within the island’s territorial waters, undertook naval patrols and exercises
around the island, controlled visits by vesse ls of other States to these waters,
installed military communication equi pment on the island, collected
meteorological data, investigated cases of accidental death and even studied sea
reclamation in the waters of Pedra Branca.
6.106 The relevance of these kinds of activities relating, as they do here,
specifically to the island in dispute, ha s been recently emphasized by the Court
in its decision in the Indonesia/Malaysia case.Although that case did not
involve an examination of State activ ities undertaken in the context of a
previously established legal title, as is the case here, the Court’s pronouncements
are nonetheless important for purpose s of underscoring the relevance of
activities carried out on the territory in dispute. In the Court’s words:
– Page 129 – “The Court finally observes that it can only consider those acts as
constituting a relevant display of authority which leave no doubt as
295
to their specific reference to the islands in dispute as such.”
6.107 In the past, the Court has been satis fied with very little in terms of the
actual exercise of State authority to up hold a claim of sovereignty over small
islands or remote territory. In the Legal Status of Eastern Greenland case, for
example, the Permanent Court stated that:
“It is impossible to read the record s of the decisions in cases as to
territorial sovereignty without ob serving that in many cases the
tribunal has been satisfied with ve ry little in the way of the actual
exercise of sovereign rights, provided that the other State could not
make out a superior claim. This is particularly true in the case of
claims to so296eignty over areas in thinly populated or unsettled
countries.”
6.108 In the present case, Singapore ha s placed in the record not simply
evidence of its pre-existing title over Pe dra Branca, but also evidence of a
substantial and long-standing series of activities undertaken thereafter with
respect to Pedra Branca. The facts adduc ed by Singapore are thus far stronger
and of a different legal character – i.e., a confirmation of Singapore’s prior title –
than those examined by the Court in the Indonesia/Malaysia case 297. Yet, even
in that case, the Court had occasion to observe that th e acts in question, though
modest in number:
“…are diverse in character and in clude legislative, administrative
and quasi-judicial acts. They cover a considerable period of time
and show a pattern revealing an intention to exercise State
295
See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , supra note 180,
at para. 136.
296
See Legal Status of Eastern Greenland Case, supra note 291, at pp. 45-46.
297
In Sovereignty over Pulau Ligitan and Pulau Sipadan , supra note 180, Malaysia had merely
relied on the fact that navigational aids (beacons) had been built on both of the disputed islands,
the collection of turtle eggs had been regulated, and one of the islands had been proclaimed as a
nature reserve.
– Page 130 – functions in respect of the two islands in the context of the
administration of a wider range of islands.” 298
6.109 The Indonesia/Malaysia case involved a question relating to the relative
strength of title of the parties.It mu st therefore be distinguished from the
present dispute where the acts of the United Kingdom and Singapore relating to
Pedra Branca were carried out in the confirmation and maintenance of a pre-
existing title. Nonetheless, the case preced ents are relevant in underscoring the
compelling nature of the examples of State authority that Singapore has
adduced. While in some cases, the Court has been satisfied with “very little in
the way of the actual exercise of sovereign rights” 299, here the evidence
presented by Singapore is overwhelming and fully consistent with the existence
of a prior title. In contrast, when it co mes to assessing the position of Malaysia
with respect to Pedra Branca, Malaysia can neither point to the existence of a
prior title to the island nor to any co mpeting activities carried out on Pedra
Branca itself in the capacity of a sovereign.
6.110 The foregoing analysis is not merely a reflection of a rule of evidence. It
is a concomitant of the law’s crucial preference for stability, particularly in
matters of title and most emphatically in matters of title to territory.As the
Tribunal concluded in the Grisbadarna Arbitration:
“… it is a settled principle of the law of nations that a state of
things which actually exists and has existed for a long time should
be changed as little as possible…” 300
6.111 For more than 150 years, Singapore has amply satisfied the dual elements
of sovereignty – the animus occupandi and the corpus occupandi - necessary in
298 See Sovereignty over Pulau Ligitan and Pulau Sipadan, supra note 180, at para. 148.
299 See Legal Status of Eastern Greenland Case, supra note 291, at pp. 45-46.
300
See Judgment in The Grisbadarna Case, supra note 288, at p. 130. See also, Territorial Dispute
(Libyan Arab Jamahiriya/Chad)[1994] ICJ Rep 6, at para. 72.
– Page 131 –the context of an island such as Pedra Branca as to which there is no credible
countervailing claim that can be advanced.
Section IV. In Contrast to Singapore, Malaysia has Never Carried
Out any Sovereign Acts on Pedra Branca
6.112 If the documentary record is striki ng in demonstrating that the United
Kingdom and Singapore carried out exte nsive State functions on Pedra Branca
ever since its acquisition, it is equally striking in revealing the complete absence
of any similar activities on the part of Malaysia. Quite simply, Singapore does
not believe that Malaysia can point to a single example of State activity that
Malaysia undertook on Pedra Branca at any time after the island had been
acquired by the United Kingdom in 1847-1851.
6.113 Moreover, neither Malaysia nor he r predecessor ever protested against
any of the constant, clear and public manifestations of State authority performed
by Singapore and the United Kingdom until very late in the day. In fact, the first
protest of any kind lodged by Malaysia was dated 14 July 1989, almost ten years
after the publication of Malaysia’s 197 9 map depicting her continental shelf
301
claims .As will be discussed in Chapte r VIII below, Malaysia had even
expressly disclaimed title to Pedra Branca in official correspondence in 1953 – a
development which was entirely consiste nt with her silence over Singapore’s
activities .2
301 See Malaysia’s Note EC 60/89 dated 14 July 1989, attached to this Memorial as Annex 164.
302 See generally, Chapter 8 below.
– Page 132 –6.114 Singapore is aware that, in recent ye ars, Malaysia has tried to make good
her past inaction. In 1979 , she issued an official map which for the first time
included Pedra Branca within Malaysian te rritorial waters. This was the very
first indication that Malaysia consider ed herself to have a claim over Pedra
Branca and constitutes the starting point of the dispute. Even so, the manner in
which she made the claim (see paragra ph 4.5 above) shows that Malaysia was
uncertain and embarrassed about making it.
6.115 First, Malaysia called for a meeting with the Singapore High
Commissioner to discuss the 1979 Map, and then cancelled, at the last minute, a
press conference about the map which had been scheduled at the same time as
the meeting. Secondly, during the meeting, the fact that Malaysia was
purporting to make a claim to Pedra Br anca was not mentioned at all in the
prepared text which was read out by th e Malaysian official to the Singapore
High Commissioner. It was only after the prepared text had been read out and
other discussions about the map had taken place that th e Singapore High
Commissioner was informed that in Si ngapore’s case, Pedra Branca was
affected. The hesitant and surreptitious manner in which Malaysia conveyed her
claim to Pedra Branca to Singapore shows that she was not only embarrassed
about making her claim at that point of time, but the emphasis on consultations
in the prepared text indicates that she was also aware that her claim would be
entirely disputed by Singapore. Singapor e promptly protested against this map
by a diplomatic note of 14 February 1980 303.
303 See Singapore’s Note MFA 30/80 dated 14 Feb 1980, attached to this Memorial as Annex 144.
– Page 133 –6.116 Since then, Malaysia has attempted to be more “present”, if not actually
on Pedra Branca itself, then at least “on paper” in the waters surrounding the
island. One example of the dramatic change in Malaysia’s practice in this regard
is the very late protest of 6 November 2003, wherein Malaysia, for the first time,
protested against the routine patrols of Singapore Navy ships and the routine
transfer of maintenance and other pers onnel to and from Pedra Branca. This
protest was remarkable because Malaysia had hitherto not protested routine
activities by Singapore. Anot her example of Malaysia’s change in practice is
her protest against Singapore’s acts of investigation in respect of an accident
involving the MV APL Emerald, in Singapore’s territori al waters around Pedra
304
Branca . This protest stands in sharp contra st to Malaysia’s silence in the face
of similar investigations for previous accidents.
6.117 It should be stressed that on every occasion that Singapore became aware
of Malaysian activities within Pedra Branca’s territorial waters, Singapore issued
a protest against what were no more than belated attempts to challenge
Singapore’s long-standing and, until th en, unchallenged sovereignty over the
island 305.
304 See Malaysia’s Note EC 65/2003 dated 30 June 2003, attached to this Memorial as Annex 202;
Malaysia’s Note EC 106/2003 dated 6 Nov 2003, attached to this Memorial as Annex 203; and
Malaysia’s Note EC 109/2003 dated 6 Nov 2003, attached to this Memorial as Annex 204.
These belated assertions of sovereignty have been rejected by SingaporSee Singapore’s
Notes MFA/PD1/00007/2004 dated 5 Feb 2004 (Annex 205) and MFA/PD1/00007/2004 dated
5 Feb 2004 (Annex 206).
305 See e.g., Singapore’s Notes SHC 98/89 dated 16 June 1989 (Annex 160); SHC 99/89 dated 16
June 1989 (Annex 161); SHC 103/89 dated 22 June 1989 (Annex 162); SHC 109/89 dated 1
July 1989 (Annex 163); SHC 139/89 dated 11 Sep 1989 (Annex 166); SHC 141/89 dated 11
Sep 1989 (Annex 167); SHC 135/91 dated 15 Nov 1991 (Annex 177); SHC 41/92 dated 15 May
1992 (Annex 181); MFA/D1/422/92 dated 8 June 1992 (Annex 182); SHC 75/92 dated 17 Aug
1992 (Annex 183); MFA/D1/0080/93 dated 30 Jan 1993 (Annex 186); MFA/D1/675/83 dated
30 July 1993 (Annex 187); MFA/D1/678/93 dated 30 July 1993 (Annex 188); MFA 1094/93
dated 1 Dec 1993 (Annex 189); MFA/D1/554/94 dated 14 Sep 1994 (Annex 191); MFA 815/94
dated 3 Jan 1995 (Annex 194); MFA 200/95 dated 2 Mar 1995 (Annex 195).
– Page 134 –6.118From a legal point of view, Malaysia’s recent attempt to claim
sovereignty over Pedra Branca calls for two brief remarks.
6.119 First, the first sign that Malaysia was making a claim of sovereignty
over Pedra Branca occurred at the end of 1979, when she issued the pre-cited
map. Never before had she made any claim of that kind. Whatever the scope
and merits of the doctrine of the “critical date” in international law, the
Court, as it has recently recalled:
“… cannot take into consideration acts having taken place after the
date on which the dispute betwee n the Parties crystallized unless
such acts are a normal continuati on of prior acts and are not
undertaken for the purpose of im proving the legal position of the
Party which relies on them (s ee the Arbitral Award in the Palena
306
case, 38 International Law Reports (ILR), pp. 79-80).”
6.120 Second, it follows from the ab ove that, in the presen t case, there is no
need to resort to the doctrine of “relative titl e”, according to which competing
claims over a given territory must be reso lved in favour of the State party to the
dispute which can prove the “stronger title” 307. Singapore has a title, confirmed
by the long and undisputed display of the exercise of sovereign authority;
Malaysia has simply no title and has never acted à titre de souverain on the
island, not even in its vicinity before the critical date.
6.121 It can also be added that, in any case,
“… failure by a State to lodge a formal protest may be discounted
where it adequately demonstrates its rejection of the acts or
assertions of another State by continuing itself to perform acts
which can only be construed as a rejection of those acts or
306 See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , supra note 180,
at para. 135. See also Minquiers and Ecrehos [1953] ICJ Rep 47, at pp. 59-60.
307 See e.g., Minquiers and Ecrehos, supra note 306, at p. 67. See also Legal Status of Eastern
Greenland Case, supra note 291, at p. 46; Max Huber’s Award in the Island of Palmas, supra
note 181, at 831.
– Page 135 – assertions, as where an assertion of territorial sovereignty is met by
the continued exercise of sovereignty over the territory in question,
day by day, through acts of le gislation, government and the
courts.” 308
In the present case, the peaceful and undi sturbed continuance of the exercise of
her sovereign jurisdiction by Singapore ca n only be construed as a rejection of
Malaysia’s acts and assertions. Moreover, as will be shown in Chapters VII and
VIII, Malaysia has clearly recognised Singapore’s sovereignty over Pedra
Branca, not only by her s ilence, but also by positive and express acts and
positions.
Section V. Conclusions
6.122 On the basis of the foregoing, it can be concluded that:
(a) title to Pedra Branca already ve sted in the British Crown and,
subsequently, in Singapore as a resu lt of official actions that took
place on the island in the period 1847-1851 as discussed in
Chapter V;
(b) thereafter, the United Kingdom and Singapore engaged in an open
and continuous pattern of State activities relating to Pedra Branca
which confirmed and maintained that title;
(c) these activities were of an offici al character and were undertaken
à titre de souverain;
(d) the activities in question encomp assed a wide array of State
functions related to the island as a whole and its territorial waters;
(e) in a number of instances, Singapore’s administration and control of
Pedra Branca included contro lling access to the island by
Malaysian officials who sought Si ngapore’s approval to visit the
island;
308 See Jennings R. and Watts A., Oppenheim’s International Law , Vol. 1 (9th ed., 1992), at p.
1195.
– Page 136 –(f) for some 140 years, none of these activities elicited any protest
from Malaysia despite their ope n, notorious and peaceful
character;
(g) Malaysia only purported to claim Pedra Branca in 1979 when she
published a map showing Pedra Branca as falling within her
jurisdiction. This map was promptly protested by Singapore;
(h) to the extent that Malaysia ther eafter attempted to build a “paper
claim” to the island, these attempts were all of a self-serving nature
undertaken after the dispute ha d already crystallized and were
protested by Singapore; and
(i) in contrast, Singapore’s activitie s on Pedra Branca and within her
territorial waters after 1979 represented no more than a
continuation of Singapore’s long -standing administration of the
island prior to that date.
– Page 137 – CHAPTER VII
MALAYSIA’S RECOGNITION OF SINGAPORE’S SOVEREIGNTY
OVER PEDRA BRANCA
7.1 In the previous Chapter, Singapore has shown that she and her
predecessors in title have peacefully ex ercised sovereign au thority over Pedra
Branca after taking lawful possession of the island in 1847. It was not until 1979
that Malaysia challenged, in an obl ique manner, Singapore ’s title to Pedra
Branca.
7.2 The contrast could not be more st riking between, on the one hand, the
consistent pattern of documented State activitie s by Singapore (and her
predecessors) over and around the island a nd, on the other hand, the complete
absence of any documented activities of any nature on the part of Malaysia (and
her predecessor, Johor). There was, quite simply, no act or activity of any kind
that evidenced a claim by Johor or Malaysia before 1979.
7.3 For more than 130 years, Singapore’s sovereignty over Pedra Branca
remained unchallenged an d, until 1979, there had been no indication of any
claim that Pedra Branca belonged to any other State. It was only in 1979 that
Malaysia laid an indirect claim to Pedra Branca th rough the publication of an
official map that included Pedra Branca within her territorial waters, in
circumstances which indicated clearly that Malaysia was aware of the weakness
of her claim (see paragraph 6.114 above) 30. Since then, Malaysia has attempted
to maintain her claim and tried to reinfo rce it through various manifestations of
authority, which have been consistently opposed by Singapore.
309 The 1979 Map is discussed in paras. 4.2 to 4.4 above. The circumstances under which Malaysia
communicated this map to Singapore is discussed in para. 4.5 and paras. 6.114 et seq.
– Page 139 –7.4 The purpose of the pr esent Chapter is to showthat Malaysia and her
predecessors have recognised Singapore’ s sovereignty over Pedra Branca, both
expressly and implicitly by th eir persistent silence to wards Singapore’s acts of
sovereignty ( see Section I belM).oreover, Malaysia’s own maps
acknowledge Singapore’s sovereignty over the island (see Section II below).
Section I. Malaysia’s Implicit and Express Recognition of
Singapore’s Sovereignty Over Pedra Branca
7.5 As shown in Chapte rs V and VI above, since 1847, Singapore has
continuously engaged in ac ts of State authority which confirm her original title
to Pedra Branca, and which, if need be, are by them selves sufficient to establish
Singapore’s sovereignty over Pedra Bran ca. his continuous exercise of
sovereignty over the island is in sharp co ntrast to Johor’s and then Malaysia’s
“ineffectivité” (i.e., absence of aeffectivité) as neither of them had ever
performed any competing activities during the relevant period. Singapore’s
activities were performed openly and publicly. In spite of this, neither Johor nor
Malaysia, until 1979, nor any other State, has ever protested or challenged these
acts of sovereign authority ( see Subsection A below).Furthermore, Malaysia
has on several occasions, both beforeand after 1979, formally acknowledged
Singapore’s sovereignty over Pedra Branca (see Subsection B below).
A. M ALAYSIA ’SE LOQUENT S ILENCE IN THEF ACE OF S INGAPORE ’S ACTS OF
S OVEREIGNTY
7.6 Singapore’s effective exercise of s overeign jurisdiction must be seen in
contrast to Malaysia’s total “ineffectivité” as amply demonstrated by her
persistent and prolonged i ndifference and inaction in the face of Singapore’s
consistent assertions of sovereignty through her constant and public acts of State
authority. This silence is not devoid of legal effect.
– Page 140 – 1. Malaysia’s Persistent Silence
7.7 In Chapter V of this Memorial, Singapore has shown that she has lawfully
acquired sovereign title over Pedra Branca by taking possession of the island and
building the Horsburgh Lighthouse.In Chapter VI, Singapore has listed the
various ways in which she has publicly and openly exercised State authority on
or in relation to Pedra Branca after 1851. They are principally:
(a) the responsibility assumed by Si ngapore and her predecessors for
the construction, operation, main tenance and improvements made
310
from time to time to the Horsburgh Lighthouse ;
(b) a diversified pattern of activities pertaining to navigational safety
and security including the publicati on of official notifications of
wrecks and other dangers to navigation 311;
(c) the enactment of legislation specifically relating to Pedra
Branca 312;
(d) the exercise of jurisdiction ov er personnel stationed on the
313
island ;
(e) the deployment of naval patrols and the investigation of
navigational hazards and shipwrecks in the territorial waters of
314
Pedra Branca ;
(f) the exercise of control and the giving of authorisation for access to
the island by personnel from other States, including Malaysia, and
315
for activities in the surrounding waters ; and
310 See generally, Chapter 6 and in particular, paras. 6.27 to 6.34.
311 See above, paras. 6.68 to 6.86.
312 See above, paras. 6.10 to 6.26.
313
See above, paras. 6.35 to 6.40.
314
See above, paras. 6.76 to 6.81.
315
See above, paras. 6.54 to 6.67.
– Page 141 – (g) the flying of the British and then the Singapore Marine Ensign . 316
7.8 Malaysia and her predecessors had never protested against these clear,
public and continuous mani festations of State aut hority by Singapore (and her
predecessors) until well after 1979. Indeed , the first protest of any kind lodged
by Malaysia was made on 14 July 1989, almost ten years after the publication of
the 1979 Map, despite the continuous disp lay of State authority by Singapore in
the intervening years after 1979 . 317
7.9 This last point is of particular legal significance since, as established by
consistent judicial and arbitral preced ents, the absence of protest by foreign
States in such situations confirms and strengthens territorial titles.
7.10 Thus, concerning the flying of national emblems, in the John E. Gowen
and Franklin Copeland Case, the U.S.-Venez uela Mixed Commission
recognised the Venezuelan claim since:
“[t]he United States neve r claimed jurisdiction and made no
protest when its flag was hauled down 318under the orders of the
captain of the Venezuelan man-of-war.”
7.11 In the present case, neither Johor no r Malaysia ever protested against the
regular flying of the Britis h and Singapore emblems over Pedra Branca, even
316 See above, paras. 6.47 to 6.53.
317 See Malaysia’s Note EC 60/89 dated 14 July 1989, attached to this Memorial as Annex 164,
where Malaysia protested against the construction at Pedra Branca of communications
equipment for the Vessel Traffic Information Syst em. This was the first protest by Malaysia
against activity at Pedra Branca undertaken by Singapore or her predecessors in title.
318 See the Los Monges dispute, award of 2 Sep 1890, pertaining to Messrs John Gowen and
Franklin Copeland, as discussed in Moore J.B., History and Digest of the International
Arbitrations to which the United States has been a Party , Vol. 4 (1898), 3354, at
3356. Similarly, in Island of Palmas, supra note 181, at p. 870, Max Huber considered that “the
exercise of some acts of States authority and the existence of external signs of sovereignty, e.g.
flags and coats of arms [...] constitute a beginning of establishment of sovereignty by
continuous and peaceful display of State authority” (empasis added).
– Page 142 –though this was done as a clear displa y of State authority and without seeking
consent from Malaysia or Johor, and Mala ysian officials were fully aware of
319
this .
7.12 Moreover, Malaysia’s long silen ce regarding this clear and public
manifestation of Singapore’ s sovereignty over Pedra Branca since 1847 is in
sharp contrast to Malaysia’s response to the flying of the Singapore marine
ensign on the lighthouse administered by Singapore at Pulau Pisang, an island
which belongs to Malaysia.In 1968, Malaysia objected to the flying of the
Singapore flag over Pulau Pisang Lighthouse 320. Following Malaysia’s
objection, Singapore ceased flying her flag on the Lighthouse. In contrast, at no
time had Malaysia ever protested agains t Singapore’s flying of her flag over
Pedra Branca.
7.13 If Malaysia had any belief that she had a claim to sovereignty over Pedra
Branca, one would have expected Malaysia to have exercised or attempted to
exercise her sovereign authority over th e island in the same way that she had
done with respect to Pulau Pisang, if onl y to put on record that, notwithstanding
Singapore’s presence on Pedra Branca, Ma laysia had sovereig n authority over
the island.This omission on Malaysia’s part is espe cially significant as it
occurred shortly after Singapore left the Federation of Malaysia in August 1965,
when the governments of both countries treated each other with the utmost
caution on bilateral issues.
7.14 Singapore contends that, given these facts, Malaysia had consciously (and
correctly) decided that, in contrast w ith Pulau Pisang, a ny protest was not
appropriate with respect to the flyi ng of the Singapore flag on Pedra
319 See above, paras. 6.47 to 6.53.
320 See Letter from the Ministry of Foreign Affairs, Singapore, to the Attorney-General, Singapore,
dated 4 Sep 1968, attached to this Memorial as Annex 113.
– Page 143 –Branca.This difference of treatment by Malaysia is significant in showing
Malaysia’s state of mind in relation to title over Pedra Branca.
7.15 The difference between how Pulau Pi sang and Pedra Branca were treated
extended, and continues to extend, bey ond the flying of the flag from the
lighthouses. Previously, Singapore’s lighthouse keepers at Pulau Pisang were
not required to comply with norma l Malaysian customs and immigration
procedures. However, in 1992, the Ma laysian Government reviewed this
situation and eventually decided in August 2002 to impose full immigration and
customs control over Singapore lighthouse keepers and crew at Pulau
Pisang.No attempt has ever been made to impose immigration and customs
procedures on lighthouse keepers and crew travelling to Pedra Branca. Nor has
there been any intimation that this would be done.
7.16 Singapore contends that the differe nce in the way Malaysia treated Pulau
Pisang and Pedra Branca is consistent w ith and accurately reflects Malaysia’s
understanding and acknowledgement of Si ngapore’s sovereign authority over
Pedra Branca. This difference in treatme nt reflects Malaysia’s conviction and
acceptance that Pulau Pisang is under Mala ysia’s sovereignty but Pedra Branca
is not.
7.17 Singapore contends that it is reasona ble, and indeed natural, to conclude
that if Malaysia really believed that sh e had sovereignty over Pedra Branca, she
could (and should) have strongly cha llenged Singapore’s acts of sovereign
authority on or in relation to Pedra Br anca on many occa sions. There were
certainly many opportunities for Malaysia to do so, beginning with the taking of
– Page 144 –possession of the island to build a lighthouse 321.It is crystal-clear from the
record that Malaysia never did so until many years after the publication of the
1979 Map.
7.18 Another striking illustration of sile nce amounting to clear recognition is
the attitude of Malaysia regarding poli ce and security activities on and in the
322
vicinity of Pedra Branca N. ot only was there a complete absence of
Malaysian police and security activities, Malaysia had at all material times,
323
expressly agreed or deferred to Sing apore’s jurisdiction in such matters . In
this respect, it is worth recalling th e inter-federal arbitration concerning
delimitation between the Emirates of Dubai and Sharjah. The Arbitral Tribunal,
in its Award of 19 October 1981 based on public international law, stated thus:
“Between 1967 and 1 975 the Sharjah police remained inactive,
whereas the Dubai police were pr esent and Sharjah even allowed
the latter to evict one of its na tionals from his place of work and
did nothing although major work wa s bein324arried out on what it
should have considered its territory.”
7.19 Similarlyo ,newouldnot have expected Malaysia to have remained silent
on the several solemn occasions when international decisions were made relating
to the legal regime of waters in the re gion. One such occasion was the adoption
of the Joint Statement on the Malacca and Singapore Straits signed by Indonesia,
321 See Schooner “John J. Fallon” v. The King (1917), 37 Dominion Law Reports (1st) 659, at 665,
also cited by Kolb R., “L’interprétation de l’article 121, alinéa 3, de la Convention de Montego
Bay”, 40 Annuaire Français de Droit International 881 (1994). See also, but concerning a light-
boat, Grisbardarna, supra note 288; the British protest against French plans to build a
lighthouse in Minquiers and Ecrehos, supra note 306. See Minquiers and Ecrehos (United
Kingdom v. France) (Oral Arguments) [1953] 1 ICJ Pleadings 68, at para. 106, and the French
letter dated 27 Apr 1903 in Minquiers and Ecrehos (United Kingdom v. France) (Oral
Arguments) [1953] 2 ICJ Pleadings 429.
322 See above, paras. 6.68 to 6.75, 6.84 to 6.86.
323 See above, paras. 6.61 to 6.64, and below, paras. 7.31 to 7.36.
324 See Dubai-Sharjah Border Arbitration , 91 I.L.R. 543 (1993), at p. 622.The Tribunal was
presided by Philippe Cahier and composed of John L. Simpson and Kenneth R. Simmonds.
– Page 145 –Malaysia and Singapore on 16 November 1971 325.Malaysia also made no
reference to any claim of sovereignty she might have over Pedra Branca during
the discussions that led to the adoption by the In ter-Governmental Maritime
Consultative Organization (“IMCO”) Asse mbly, on 14 November 1977, of its
Resolution 375 (X) establishing a new navigation scheme in the Horsburgh
326
Light Area . On both of these crucial occasions, Malaysia did not express or
reserve her claim regarding Pedra Branca, nor did she even hint that she might
have such a claim.
2. Legal Effects of Malaysia’s Silence
7.20 In the 1981 Award in the Dubai-Sharjah Border Arbitration, the Arbitral
Tribunal observed:
“...there is a substantial body of case law which indicates that,
when one State engages in activity, by means of which it seeks to
acquire a right or to change an existing situation, a lack of reaction
by another State at whose expense such activity is carried out, will
result in the latter forfeiting th e rights which it could have
claimed.” 327
This is, of course, even mo re true when, as in the pr esent case, the question is
not one of acquiring new rights or chan ging an existing situation, but of
confirming an already existing right and confirming a situation which has
remained unchallenged for over 130 years.
325
See Joint Statement on Matters Relating to the St raits of Malacca and Singapore issued by the
Governments of the Republic of Indonesia, Malaysia and Singapore dated 16 Nov 1971,
attached to this Memorial as Annex 116.
326
See Resolution 375 (X) of the IMCO Assembly dated 14 Nov 1977, attached to this Memorial
as Annex 134.
327
Dubai-Sharjah Border Arbitration, supranote 324, at p. 622.
– Page 146 –7.21 As the Chamber of the Court in Frontier Dispute (Burkina Faso/Mali)
explained, in respect of the conduct of administrative authorities:
“Where the act corresponds exac tly to law, where effective
administration is additional to the uti possidetis juris, the only role
of effectivi328is to confirm the exercise of the right derived from a
legal title.”
7.22 The relevant “acts” can be either “positive” in the sense that the
administrative authorities have performed an act, or “negative” in that the other
side has omitted to act or to protest. In the present case, Singapore has
constantly and consistently acted, while, no less constantly and consistently,
Malaysia has omitted to act, has failed to react, and has re mained absolutely
silent to Singapore’s acts of authority . 329
7.23 The present case is a remarkably clear instance where the persistent
omission by one State to act and to react to the exercise of sovereign authority
by another State constitutes acquiescence, wh ich in international law, “has the
same effect as recognition, but arises fro m conduct, the absence of protest when
this might reasonably be expected” 330. Indeed, the nature and duration of the
acquiescence by Malaysia (and her predecesso rs) in this case is tantamount to
recognition that she had no title to Pedra Branca and that Singapore has.
328
See Frontier Dispute (Burkina Faso/Mali) , supra note 282, at pp. 586-587, paSee also
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
[1992] ICJ Rep 351, at p. 398, para. 61.
329
See above, Chapter 6, in particular paras. 6.112 to 6.121.
330
Brownlie I., Principles of Public International Law(2003), at p. 151.
– Page 147 –7.24 As noted by the Arbitral Tribunal in the Dubai-Sharjah Border
Arbitration, case law unanimously confirms this principle. In this Award, the
Tribunal stated:
“What appears decisive to the Court is not that Sharjah did not
assert its authority over an un-po pulated region by some positive
action, but that it offered no op position to the Government of
Dubai treating the Al Mamzer peninsula as its own territory.” 331
The Tribunal then referred to some important precedents:
“In the Grisbadarna case, decided in 19 09, the mooring of a
Swedish light vessel needed fo r safe navigation, and the
positioning by Sweden of a fairly large number of buoys justified
among other things, in the absence of any protest from Norway,
granting the disputed maritime ar ea to Sweden [United Nations,
Reports of International Arbitral Awards, Vol. XI, p. 161]
In the Island of Palmas case, decided in 1928, the sovereignty of
the Netherlands over this island was recognized not only because:
‘... the documents laid before the Arbitrator contain no trace
of Spanish activities of any ki nd specifically on the Island
of Palmas’,
but also because Spain, which originally ha d a legal claim based
on discovery, had recorded :
‘... no contestation or other ac tion whatever or protest
against the exercise of territo rial rights by the Netherlands
over the Talautse (Sangi) Islets and their dependencies
(Miangas included) ha s been recorded’ [ Ibid., Vol. II, pp.
851 and 868]
In the Norwegian Fisheries case, the International Court of Justice,
deeming that the method adopted by the Norwegian Government
for laying down base lines to define its fi shing grounds was not
contrary to international law, wanted to see what the attitude of the
United Kingdom had been in this ma tter. Observing that the latter
had refrained from expressing any reservations, it added :
331 Dubai-Sharjah Border Arbitration, supranote 324, at p. 622.
– Page 148 – ‘... her prolonged abstention w ould in any case warrant
Norway’s enforcement of he r system against the United
Kingdom’ [ICJ Reports, 1951, p. 139].
In the case of the Temple of Préah-Vihéar , the geographical map
defining the boundary between Siam and Cambodia was deemed
by the International Court of Justice not to have been binding in
the beginning. However :
‘... it is clear that circumstan ces were such as called for
some reaction, within a reasonable period, on the part of the
Siamese authorities, if they wished to disagree with the map
or had any serious question to raise in regard to it. They did
not do so, either then or for many years, and thereby must
be held to have acquiesced’ [ICJ Reports, 1962, p. 23).
It emerges from this analysis that a State must react, although
using peaceful means, when it considers that one of its rights is
threatened by the action of another State.
Such a rule is perfectly logical as lack of action in a situation like
this can only mean two things: e ither the State does not believe
that it really possesses the disputed right, or for its own private
reasons, it decided not to maintain it.
In the case in question, as the Court has pointed out, the Emirate of
Dubai performed acts of authority in the Al Mamzer area, above
all between 1967 and 1975, whic h should have brought about
some reaction on the part of the Emirate of Sharjah, but nothing of
this kind was recorded until 1975.
Dubai’s actions were doubtle ss relatively sporadic, but
international law [the Island of Palmas case, the 1933 Judgment of
the Permanent Court of Internati onal Justice in the case of the
Legal Status of Eastern Greenland , Series A/B, No. 53, p. 46]
admits that the extent to which sovereign rights may require to be
exercised depends on the territory in question and that this exercise
may be very limited when it is a question of territories which are
sparsely populated or have no pe rmanent inhabitants, which is
precisely the case with the Al Mamzer peninsula.
International law also requires demonstrations of sovereignty to be
both peaceful and publicI .t is not disputed that the Dubai
authorities behaved peacefully and the Court has pointed out that
– Page 149 – the Government of Sharjah could not have been unaware of what
was happening at Al Mamzer.” 332
7.25 The case-law cited in this award is impressive.When applied to the
present case, there is no d oubt that Malaysia’s long a nd persistent silence – in
the face of a continued, peaceful and pub lic pattern of acts of Singapore as
sovereign – is an unequivocal recogniti on of, or at the very least clear
acquiescence in, Singapore’s sovereignty over Pedra Branca.
7.26 As the Chamber of the Court recalled in the Gulf of Maine Case:
“... acquiescence is equivalent to tacit recognition manifested by
unilateral conduct which the ot her party may interpret as
333
consent.”
7.27 When States remain silent in the face of another State’s clear and
unambiguous acts or practice, it means th at they acquiesce in them.Their
silence “... bears witness to the fact that they did not consider it to be contrary to
334
international law.”
7.28 This is precisely the case here – Malaysia’s silence, in the face of
Singapore’s unambiguous acts of sovere ignty over Pedra Branca, clearly bears
witness to the fact that she did no t consider she had any claim over the
area. This is confirmed by her “ ineffectivité”, which contrasts with Singapore’s
long-standing and uninterrupted acts à titre de souverain.
332 Dubai-Sharjah Border Arbitration, supranote 324, at p. 622-624.
333 See Delimitation of the Maritime Boundary in The Gulf of Maine Area (Canada v. United States
of America) [1984] ICJ Rep 246, at p. 305, para. 130. See also, Temple of Preah Vihear, supra
note 238, at pp. 30-31.
334
See Fisheries (United Kingdom v. Norway) (Judgment) [1951] ICJ Rep 116, at p. 139.
– Page 150 – B. M ALAYSIA’SF ORMAL A CKNOWLEDGEMENT OF SINGAPORE ’S
SOVEREIGNTY OVER P EDRA BRANCA
7.29 As shown above, by he r persistent silence vis- à-vis Singapore acts of
authority, Malaysia has recognised Singapore’s sovereignty over Pedra
Branca.But Malaysia and her predecessor, the State of Johor, went even
further. First, in a letter sent on 21ember 1953 by the Acting State
Secretary of Johor to the Colonial Secretary of Singapore, Malaysia’s
predecessor made an express disclaimer of title to Pedra Branca, which was also
a formal confirmation of her recognition of Singapore’s sovereignty. Singapore
will deal with this very significant episode in the ne xt Chapter of the present
Memorial. Second, in various other circumstances, Malaysia positively
acknowledged Singapore’s sovereignty over Pedra Branca.
7.30 Not only has Malaysia’s recognition of Singapore’s sovereignty resulted
from her silence in the face of Singe’s acts of sovereignty on the island,
Malaysia has also explicitly acknowled ged Singapore’s sovereignty on many
occasions when she requested permission from Singapore to perform activities at
Pedra Branca or in its surrounding waters.
C. M ALAYSIA’SR EQUESTS TO S INGAPORE FOR AUTHORISATION TO HAVE
A CCESS TO PEDRA B RANCA AND ITSW ATERS
7.31 In March 1974, a number of Malays ian officials sought to visit Pedra
Branca and stay at Horsburgh Lighthouse as part of a joint survey team
(comprising members from Malaysia, Indone sia, Japan and Singapore) to make
– Page 151 –tidal observations 335. The survey was planned to be carried out over a period of
seven to eight weeks in areas which included the waters around Pedra
Branca. As discussed above (at paragraphs 6.61 to 6.64), the particulars of the
Malaysian members of the survey team were duly provided by a Lieutenant
Commander of the Royal Malaysian Navy at the request of the Hydrographic
Department of Singapore 336 and permission was thereafter grantedT .he
Lieutenant Commander’s letter also drew a ttention to the fact that a participant
of the Port of Singapore Authority would be present at all ti mes. Significantly,
Malaysia raised no objection to the fa ct that Singapore’s permission was
required to visit the island – an action wh ich was fully consistent with Johor’s
earlier statement in 1953 that she had no claim over Pedra Branca 33.
7.32 A similar event took place in 1978 when the Hi gh Commission of
Malaysia in Singapore wrote to the Si ngapore Ministry of Foreign Affairs
requesting permission for a Malaysian government vessel – NV “Pedoman” –
“to enter Singapore territorial waters a nd conduct an inspection of Tide Gauges
338
from 9 May – 2 June 1978.” The High Commission’s letter listed the places
where Malaysia’s vessel would be calli ng at, the very first of which was the
“Horsburg [sic] Lt. House Station”. It then stated:
“The High Commission would be gr ateful for the Ministry’s
assistance in securing clearance for NV ‘Pedoman’ to enter
Singapore’s territorial waters for the abovementioned purpose.” 339
335 See Letter from Hydrographic Department, Port of Singapore Authority to Commanding Officer
of K.D. Perantau dated 26 Mar 1974, attached to this Memorial as Annex 120.
336 See Letter from Mak S. W. (Commanding Officer of Royal Malaysian Navy Vessel K.D.
Perantau) to Hydrographic Department, Port of Singapore Authority dated 22 Apr 1974,
attached to this Memorial as Annex 122.
337 See Chapter 8, below.
338 See Malaysia’s Note EC 219/78 dated 9 May 1978, attached to this Memorial as Annex 137.
339 Ibid.
– Page 152 –Here again, the Singapore Ministry of Foreign Affairs acceded to Malaysia’s
request .40
7.33 Even after the publication of Malays ia’s map in 1979 purporting to show
Pedra Branca as appertaining to Mala ysia, Malaysia continued to seek
permission from Singapore to enter the waters around Pedra Branca.
7.34 On 28 January 1980, for example, the Malaysian High Commission in
Singapore wrote to the Singapore Minist ry of Foreign Affairs informing the
latter that the Sarawak Electricity S upply Corporation, together with the
National Electricity Board of Peninsular Malaysia and German consultants,
wished to carry out a feasibility study for electrical power transfer by underwater
cable from Sarawak to Peninsular Malaysia .The last paragraph of the letter
requested Singapore’s permission for the project in the following terms:
“I would appreciate if early appr oval could be granted by your
Government, since th341bove project will covers [ sic] also your
territorial waters.”
The reference to Singapore’s territorial waters was obviously to the waters
around Pedra Branca as the sketch map included in Malaysia’s request conveyed
through the Malaysian High Commission on 26 March 1980
demonstrates . This Malaysian sketch map is reproduced overleaf as Map 11.
Geographically, there are no Singapore te rritorial waters between Sarawak and
Peninsular Malaysia, except for the wate rs around Pedra Br anca. Singapore’s
340
See Singapore’s Note MFA 115/78 dated 12 May 1978, attached to this Memorial as Annex
138, wherein Singapore granted the request sought for by Malaysia.
341
See Letter from the Malaysian High Commission to the Ministry of Foreign Affairs, Singapore
dated 28 Jan 1980, attached to this Memorial as Annex 143.
342
See Letter from the Malaysian High Commission to the Ministry of Foreign Affairs, Singapore
dated 26 Mar 1980, attached to this Memorial as Annex 145.
– Page 153 –Ministry of Foreign Affairs responded by a letter dated 7 June 1980 that
343
Singapore had no objection to the proposed survey .
7.35 In all these circumstances, Malaysia ’s conduct clearly constitutes formal
acknowledgement of Singapore’s sove reignty over Pedra Branca since,
obviously, there would be no sense in Ma laysia requesting authorization to have
access to her own territory. As explained in Chapter VI above (paragraphs 6.54
to 6.67), these events also demonstrate that, on her pa rt, Singapore consistently
acted as sovereign over Pedra Branca and that Malaysia submitted to these
manifestations of soverei gnty even when they directly affected Malaysian
nationals, including Malaysian government officials.
7.36 There can be no doubt that both by her conduct and by her silence and
omission to act and react to Singapor e’s repeated activities as sovereign,
Malaysia has recognised or acquiesced in Singapore’s sovereignty.
7.37 Moreover it is eviden t from the 1979 episode wh en the Under Secretary-
General of the Malaysian Ministry of Foreign Affairs summoned the Singapore
High Commissioner to inform him of the publication of the 1979 Map (see
above, at paragraph 4.5) that Malaysia n officials clearly understood that the
Malaysian claim was entirely new and was not in conformity with a long-
standing situation 344.
343 See Letter from the Ministry of Foreign Affairs, Singapore to the Malaysian High Commission
dated 7 June 1980, attached to this Memorial as Annex 147.
344 See also, para. 6.114 et seq.
– Page 154 – Section II. Official Malaysian Maps Recognising Singapore’s
Sovereignty Over Pedra Branca
7.38 Another manifestation of Malaysia ’s acknowledgement of Singapore’s
sovereignty over Pedra Branca is found in a significant number of maps
published by the Malaysian Government from time to time.These maps are
relevant in the present case as they re present admissions against interest by
Malaysia.
7.39 Prior to 1979, Malaysia consistently issued official maps attributing Pedra
Branca to Singapore and thus acknowle dged that the island belonged to
Singapore. These maps are entirely consistent both with Singapore’s continuous
exercise of State functions over Pedra Branca (discussed in Chapter VI) and with
Johor’s official declaration in 1953 that it did not claim sovereignty over Pedra
Branca (discussed in Chapter VIII).
7.40 International tribunals often refer to cartographic evidence as one of the
factors to be taken into account when ascertaining where title to territory lies in a
territorial dispute.Maps are usually cl assified into different categories, with
varying degrees of relia bility and probative weig ht, depending on their
provenance and technical accuracy. In the general hierarchy, the most important
maps are those which are deemed to be “the physical expression of the will of
the State or States concerned” 345, i.e., maps which are a nnexed to and form an
integral part of a treaty.
7.41 Also of primary importance are maps that have an official character, in
other words, maps emanating from a governmental agency or otherwise
recognized by a government as official.These official maps have a higher
degree of probative value than ordinary maps and can be used to confirm
– Page 155 –sovereignty, particularly when a series of such maps, over a significant period,
shows the same attribution of territory.
7.42 Inthe Island of Palmas case, Judge Huber stressed the legal significance
of official or semi-official maps, par ticularly when they represent a position
inconsistent with that previously adva nced by the issuing State, and notably
when they “do not assert the sovere ignty of the country of which the
346
Government has caused them to be issued” . Thus, self-serving maps, issued
by a government in support of its claim, will have little evidentiary weight.
7.43 When a government publishes or ot herwise endorses a map, it may be
precluded or estopped from challenging that map later.As the Court of
Arbitration noted in its award in the Beagle Channel arbitration:
“Clearly, a map emanating from Pa rty X showing certain territory
as belonging to Party Y is of far greater evidential value in support
of Y’s claim to that territory th an a map emanating from Y itself,
showing the same thing.” 347
7.44 The publication of maps is part of State conduct and when a government
has published a series of official maps consistently showing the same territorial
situation over a certain period of tim e, that conduct may be relevant in
representing the views of the government .As the Judicial Committee of the
Privy Council held in its 1927 opinion in the Canada-Newfoundland Boundary
Dispute:
“… the fact that throughout a l ong series of years, and until the
present dispute arose, all the maps issued in Canada either
supported or were consistent wi th the claim no w put forward by
345 See Frontier Dispute (Burkina Faso/Mali), supra note 282, at pp. 582, para. 53.
346 See Island of Palmas, supra note 181, at p. 852.
347 See Beagle Channel Arbitration (Argentina v. Chile) (Award of 18 Feb 1977), 52 ILR 97, at p.
205.
– Page 156 – Newfoundland, is of some value as showing the construction put
upon the Orders in C ouncil and statutes by persons of authority
and by the general public in the Dominion.” 348
7.45 A similar conclusion was reached by th e Tribunal in the first stage of the
Eritrea-Yemen arbitration.In that case, Er itrea argued that Italy, Eritrea’s
predecessor in interest, had claimed s overeignty over the disputed Hanish
Islands prior to World War II.In re sponse to Eritrea’s arguments, Yemen
produced a number of official Italian maps published throughout the 1924-1939
period which consistently showed that the disputed islands had not been
included in the former Italian colony of Eritrea and that, therefore, Italy had
never regarded these islands as falling under her sovereignty.In upholding
Yemen’s position on this point, the Tribunal held:
“To the extent that these [ maps] may be viewed as admissions
against interest from official Italian sources, which are not
controverted by Eritrean evidence, they have relevance to the
Eritrean claim that Italy considered herself sovereign over the
Islands at the outbreak of the Second World War. The best
interpretation of this evid ence appears to be that official
cartography did not wish formally to portray the Islands as being
under Italian sovereignty in the inter-war period – and even went
so far as to assign the Islands to Yemen. On balance, the evidence
seems to establish that Italy, in the interbellum period, did not
consider the Islands to be under Italian sovereignty or at least does
not establish that Italy in that peri od did consider the Islands to be
under Italian sovereignty.” 349
7.46 Further authority on this point is provided by the decision rendered by the
Boundary Commission in the Eritrea/Ethiopia case. In that case, the
Commission was presented with a great nu mber of official maps showing a
348 See In the Matter of the Boundary between the Dominion of Canada and the Colony of
Newfoundland in the Labrador Peninsula (the Canada/Newfoundland Boundary Dispute) 137
Law Times Reports 199.
349 Eritrea/Yemen Arbitration , Award of the Arbitral Tribunal in Phase One: Territorial
Sovereignty and Scope of the Dispute, dated 9 Oct 1998, 114 ILR 2, at para. 374. The Award is
also published in (1998) 22 RIAA 215, at pp. 293-294.
– Page 157 –consistent depiction of a portion of the boundary. The Commission concluded
as follows:
“… a map produced by an official government agency of a party,
on a scale sufficient to enable its portrayal of the disputed area to
be identifiable, which is genera lly available for purchase or
examination, whether in the country of origin or elsewhere and
acted upon, or not reacted to, by th e adversely affected party, can
be expected to have significant legal consequences.” 350
7.47 In the present case, there exists a number of official Malaysian maps
which consistently depict the island of Pedra Branca as appertaining to
Singapore.The first of these maps – entitled “Pengerang” (Series L7010,
Edition 1-SDFM) – was publis hed in 1962 by the Su rveyor General of the
Federation of Malaya, the highest mapping authority in the Federation of Malaya
(see Map 12). The map shows the island of Pedra Branca (labelled “P. Batu
Puteh” on the map) with the bracketed wo rd “Singapore” appearing under
it. The same designation appears, on the left hand side of the map, under the
island labelled “Pulau Tekong Besar” , which unquestiona bly belongs to
Singapore, thus clearly signifying that both islands belonged to and were subject
to Singapore’s sovereignty. At the time this map was published, Singapore was
a British colony, whereas the Federatio n of Malaya had already been an
independent sovereign State since 1957.
350 Decision of the Eritrea-Ethiopia Boundary Commission Regarding Delimitation of the Border
between the State of Eritrea and the Federal Democratic Republic of Ethiopia , Decision of 13
Apr 2002, reprinted in 41 Int’l L. Materials 1057 (2002), at para. 3.21.
– Page 158 –7.48 The same attribution was also made in at least three other official
Malaysian maps:
(a) In 1962, the Surveyor Genera l of the Federation of Malaya
published a second edition of this map (Series L7010, Edition 2-
SDFM). Pedra Branca was sim ilarly shown with the word
“Singapore” appearing under it (see Map 13).
(b) In 1965, the Director of Nati onal Mapping, Malaysia, published
another map (Series L7010, Edition 2-DNMM). The Director of
National Mapping is the highes t cartographic authority in
Malaysia. This map again show ed Pedra Branca with the word
“Singapore” appearing under it (see Map 14).
(c) In 1974, the Director of Nati onal Mapping, Malaysia, published
another map (Series L7010, Edition 3-PPNM). This map showed
Pedra Branca with the word “Singa pura” under it. “Singapura” is
the Malay-language name for Singapore (see Map 15).
7.49 It should be noted that the 196 2 maps and the 1965 map contain the
following statement: “This map must not be considered an authority on the
delimitation of international or other bo undaries”, while the 1974 map contains
the following disclaimer: “This map is not an authority on bo undaries”. These
reservations are clearly limited to boundari es and cannot be read to apply to the
attribution of a territory – such as an island – to a State, as in the present
case. However, in any event, the presen ce of a disclaimer does not diminish the
importance of the map as recognition of a “geographical fact”. As noted by the
Boundary Commission in the Eritrea/Ethiopia case, in connection with the
effect of disclaimers:
“As regards the State adversely a ffected by the map, a disclaimer
cannot be assumed to relieve it of the need that might otherwise
exist for it to protest against the representation of the feature in
question. The need for reaction w ill depend upon the character of
the map and the significance of th e feature represented. The map
still stands as a statement of geographical fact, especially when the
State adversely affected itself pr oduced and disseminated it, even
– Page 159 – against its own interestT. he disclaimers may influence the
decision about the weight to be 351signed to the map, but they do
not exclude its admissibility.”
7.50 In conclusion, Malaysia’s own ma ps confirm that Pedra Branca forms
part of Singapore’s territory. These maps were published prior to the emergence
of the dispute between the Parties by the highest mapping authority of Malaysia
and her predecessor and thus are entitled to the highest degree of probative value
as admissions against interest by the Government of Malaysia.
Section III. Conclusions
7.51 It follows from the above considerations that:
(a) Malaysia’s persistent lack of protest in the face of Singapore’s
constant and clear manifestations of sovereignty over Pedra Branca
and its adjacent waters since 1847 and up to 1989 constitutes a
clear recognition of Singapore’s sovereignty;
(b) Malaysia has clearly recognised Singapore’s sovereignty over the
island, not only by her silence, but also by positive and express
acts and conduct, in particular, by submitting to Singapore’s
jurisdiction over Pedra Branca and its surrounding waters through
her repeated requests for permission from Singapore to visit Pedra
Branca and carry out activities in its surrounding waters;
(c) Malaysia’s own official maps is sued before 1979 acknowledged
that the island belongs to Singapore.
7.52 These conclusions are consistent with and have been confirmed by the
official exchange of letters in the early 1950s, when Jo hor, as Malaysia’s
predecessor, expressly disclaimed title to Pedra Branca. Singapore will
elaborate on this important disclaimer in the next Chapter.
351 Decision of the Eritrea-Ethiopia Boundary Commission, supra note 350, at para. 3.27.
– Page 160 – CHAPTER VIII
JOHOR’S EXPRESS DISCLAIMER OF TITLE TO PEDRA
BRANCA
8.1 The various manifestations of Ma laysia’s recognitio n of Singapore’s
sovereignty over Pedra Branca describe d in Chapter VII are all the more
significant in that they are entirely c onsistent with and confirm Malaysia’s
predecessor – Johor’s – express disclaimer of title to the island. This extremely
important disclaimer was given in 19 53 when the Acting State Secretary of
Johor declared, in his letter of 21 September 1953 to the Colonial Secretary of
Singapore, that “the Johore Governme nt does not claim ownership of Pedra
Branca” 352.
8.2 It should be emphasised at the out set that Singapore regards the 1953
correspondence as compleme nting other evidence of her long-standing title to
Pedra Branca. The letter of 21 Septem ber 1953 from the Acting State Secretary
of Johor to the Colonial Secretary of Singapore is a clear and striking
confirmation of two things: ( a) that the Government of Johor never had any
claim of title to Pedra Branca, and ( b) that even if she had any possible claim of
title prior to 1953, she was now disclaiming it. Furthermore, in the context of
Singapore’s possession of the island and in the absence of any claim or interest
by third States, Johor’s disclaimer am ounts to an unequivocal recognition of
Singapore’s title.
352 Letter from M. Seth Bin Saaid (Acting SSecretary of Johor) to the Colonial Secretary,
Singapore dated 21 Sep 1953, attached to this Memorial as Annex 96.
– Page 161 –8.3 Given the significance of this lette r, it is, in Singapore’s view, necessary
to examine in some detail:
(a) the circumstances in which the le tter of 21 September 1953 came
to be written (see Section I below); and
(b) the legal significance to be attributed to it (see Section II below).
Section I. The Letter dated 21 September 1953
A. T HE C OLONIAL G OVERNMENT ’S ENQUIRY , 1953
8.4 The 1953 correspondence was in respons e to an enquiry of 12 June 1953
made on behalf of the Colonial Secretary, Singapore by J.D. Higham, the Under-
353
Secretary in the Colonial Secretary’s Office .This followed from an earlier
exchange between the Master Attendant of Singapore and the Director of Marine
of the Federation of Malaya, which starte d when the latter wr ote to the former
354
regarding the maintenance of the Pulau Pisang lighthouse . However, in his
reply, the Master Attendant took it upon hi mself to make inquiries in respect of
355
both Pulau Pisang and Pedra Branca . This led to the Johor authorities being
approached.
353 Letter from Higham J.D., on behalf of the Singapore Colonial Secretary, Singapore to the
British Adviser, Johor dated 12 June 1953cluding Annex A (Extract from Mr John
Crawford’s Treaty of 1824) and Annex B (Extract from a despatch by the Governor of Prince of
Wales Island, Singapore and Malacca to the Secretary to the Government of India dated 28 Nov
1844), attached to this Memorial as Annex 93.
354 Letter from the Director of Marine, Federation of Malaya to the Master Attendant, Singapore
dated 23 Sep 1952, attached to this Memorial as Annex 89. Pulau Pisang is located on the west
coast of Johor. Its exact location is shown on Map 2, printed after page 8.
355 See Letter from the Master Attendant, Singapore to the Director of Marine, Federation of
Malaya dated 29 Sep 1952, attached to this Memorial as Annex 90.
– Page 162 –8.5 Mr. Higham’s letter was addressed to the British Adviser and copied to
the Chief Secretary of the Federation of Malaya 356. This letter explained that the
Colonial Secretary of Singapore, was se eking “... information about the rock
some 40 miles from Singapore known as Pedra Branca on which the Horsburgh
Lighthouse stands,” this being “... re levant to the determination of the
boundaries of the Colony’s territorial waters”. Mr. Higham went on to state that
this rock was outside the limits ceded to the East India Company with the island
of Singapore in the 1824 Treaty 357 and that this rock was mentioned in a
despatch from the Governor of Singapore of 28 November 1844 (an extract from
which was enclosed as Annex B to Mr. Higham’s letter of 12 June 1953) 35. The
relevant passage quoted in Annex B is th e final sentence of paragraph 4 of the
original despatch . 359
8.6 Mr. Higham continued by referring to the lighthouse “built in 1850 by the
Colony Government who have maintained it ever since”. He commented that
this, by international usage, no doubt “confers some rights and obligations on the
Colony [of Singapore].”
8.7 Continuing, Mr. Higham was careful to distinguish the status of Pedra
Branca from that of Pulau Pisang. In respect of the latter, there was an indenture
of 6 October 1900 in the Johor Registry of Deeds which stated that “... a part of
356
The Chief Secretary of the Federation was the senior officer in charge of administrative matters
in the Government of the Federation of Malaya and was the counterpart of the Colonial
Secretary in Singapore.
357 This treaty is discussed above, at para. 3.5.
358 The rock mentioned in that extract, despite th e mistaken manuscript interpolation “[i.e. Pedra
Branca]”, is undoubtedly Peak Rock (and not Pedr a Branca). The original text of the 28 Nov
1844 letter, without the interpolation, is attached to this Memorial as Annex 13.
359 Letter from Higham J.D., on behalf of the Singa pore Colonial Secretary to the British Adviser,
Johor dated 12 June 1953, including Annex A (Extract from Mr John Crawford’s Treaty of
1824) and Annex B (Extract from a despatch by the Governor of Prince of Wales Island,
Singapore and Malacca to the Secretary to te Government of Indi a dated 28 Nov 1844),
attached to this Memorial as Annex 93.
– Page 163 –Pulau Pisang was granted to the [ British] Crown for the purposes of building a
lighthouse”. Although certain conditions we re attached to this grant, “.... it is
clear that there was no abrogation of the sovereignty of Johore”. Mr. Higham
concluded by stressing the desirability of clarifying the status of Pedra Branca
and by enquiring:
“…whether there is any document showing a lease or grant of the
rock or whether it has been ceded by the Government of the State
of Johore or in any other way disposed of.”
8.8 Two points should be noted about this letter.The first, and most
significant, is that the recipient and the copy addressee (the Chief Secretary of
the Federation of Malaya) were put on notice that the information was being
requested in order to “… clarify the st atus of Pedra Branca” with a view to
determining “the boundaries of the Colony’s territorial waters”.It was not a
hypothetical or purely academ ic enquiry. The second is that, in conceding, in
the case of Pulau Pisang, that there had been no “abrogation” of the sovereignty
of Johor, the writer was clearly assuming that Singapore had sovereignty over
Pedra Branca unless there was evidence of Johor’s title to the island.This
explains Higham’s mention that the lighthouse was built by the Singapore
Government in 1850 and the Government had maintained it without interruption
thereafter.
B. T HE R EACTION OF THE J OHOR G OVERNMENT
8.9 An immediate response to Mr. Higha m’s letter of 12 June 1953 to the
British Adviser in Johor came in an incompletely dated letter of June 1953 from
360
J.D. Turner, Secretary to the Johor British Adviser . This letter was received
360 Letter from Turner J.D. (Secretary titish Adviser, Johor) to the Colonial Secretary,
Singapore, received on 18 June 1953, attached to this Memorial as Annex 95.
– Page 164 –by the Colonial Secretary, Singapore, on 18 June 1953. Mr. Turner’s letter was
of a purely temporising nature, explaining to the Colonial Secretary, Singapore
that the British Adviser in Johor had passed on his letter of 12 June to the State
Secretary “... to whom it should, in th e British Adviser’s opi nion, have been
addressed in so far as Johore [ was] concerned”. Mr. Turner’s letter added that
the State Secretary would doubtless wish to consult with the Commissioner for
Lands and Mines and Chief Surveyor and examine any existing archives before
forwarding the views of the State Government to the Chief Secretary.
8.10 This exchange culminat ed in the brief letter of 21 September 1953 from
M. Seth bin Saaid, the Acting State Secretary of Johor to the Colonial Secretary,
Singapore. This letter informed the Colonial Secretary, Singapore that:
“… the Johore Government does not claim ownership of Pedra
361
Branca.”
8.11 This letter put to rest the status of Pedra Branca vis-à-vis Johor.The
validity of this letter has ne ver been questioned. The letter itself has also never
been retracted at any time. The answer of the Acting Secretary of State formed
the basis of an express mutual unders tanding between Singapore and Johor on
the status of Pedra Branca, a mutual understanding which went unquestioned
until Malaysia sought to deny it 26 years later by publishing the 1979 Territorial
362
Waters and Continental Shelf Boundaries Map .
361 Letter from M. Seth Bin Saaid (Acting StaSecretary of Johor) to the Colonial Secretary,
Singapore dated 21 Sep 1953, attached to this Memorial as Annex 96.
362
The 1979 Map is discussed in paras. 4.2 to 4.4 above.
– Page 165 – Section II. The Legal Nature of the Letter from the Acting State
Secretary of Johor of 21 September 1953
A. A N U NCONDITIONAL D ISCLAIMER
8.12 The statement made in the letter from the Acting State Secretary of Johor
of 21 September 1953 that “… the Johore Government does not claim ownership
of Pedra Branca” was self-evidently unconditional.No qualification was
expressed; and no expectation of any acceptance or confirmation by the Colonial
Secretary of Singapore was asked for or even hinted at. This was a formal
declaration and assurance th at Johor was not asserting a claim to sovereignty
over Pedra Branca.
8.13 It is immaterial that the letter speaks of “ownersh ip” rather than
“sovereignty”. In this particular context, the two expressions are
indistinguishable. The enquiry in 19 53 was not merely about the ownership of
the lighthouse, but was made in relation to dete rmining “the boundaries of the
Colony’s territorial waters.” The enquiry clearly concerned the island, and the
answer disclaimed any title to Pedra Branca and not just to the Horsburgh
Lighthouse.For a State to disclaim ow nership of an island is to disclaim
sovereignty over it. Moreover, it is clea r from the context of the exchange of
letters that sovereignty and not mere property rights was being
discussed.Johor’s disclaimer was in re sponse to the letter of 12 June 1953,
which:
(a) spoke of the need to ascertain the status of Pedra Branca because it
was relevant to “the determina tion of the boundaries of the
Colony’s territorial waters”;
(b) observed that Pedra Branca lay out side the limits of the territory
ceded by Johor in 1824; and
(c) noted, by way of contrast, Johor ’s unquestioned sovereignty over
Pulau Pisang.
– Page 166 –8.14 The situation here is quite differe nt from the situatio n in which State A
has title to (sovereignty over) a piece of territory which is nonetheless in the de
facto possession of State B. In the presen t case, Johor knowingly – and three
months after receiving the enquiry – disclaimed title to Pedra Branca in 1953,
never having occupied it at any time prio r thereto, whereas Singapore had been
in sole and uninterrupted possession of Pedra Branca since 1847, and had in fact
administered and maintained both the lighthouse and the island on which it stood
continuously since the completion of the lighthouse in 1851.
8.15 The letter of the Acting Secretary of State of Johor of 21 September 1953
correctly describes the legal consequences of this situation. The State Secretary
was (as described by the Constitution of the State of Johor) “the principal officer
in charge of the administrative affairs of the State” and was an ex officio
363
member of both the legislative and executive organs of the State of Johor . He
had the power to make a disclaimer of title on behalf of Johor.
8.16 It should be emphasised that it is not Singapore’s case that Johor
abandoned or relinquished title to Pedra Branca in 1953. Abandonment or
relinquishment of title is possible only if there is a pre-existing title. What Johor
did by her 1953 letter was not to renounce title (since she did not have title) or a
“claim” to ownership, but rather to pronounce explicitly that Johor did not have
a claim to ownership of Pedra Branca. It must also be em phasised that, in the
context of Singapore’s possession of the is land and in the absence of any claim
or interest by third States, Johor’s di sclaimer can only be regarded as an
unequivocal recognition of Singapore’s title.
363 See Articles VI (1), IX (1), XXII (1) of the Th e Johore Constitution Supplement, 1367 (State of
Johore), enacted on 1 Feb 1948, attached to this Memorial as Annex 88.
– Page 167 – B. A B INDING U NILATERAL U NDERTAKING
8.17 In specifically disclaiming title to Pedra Branca on be half of the Johor
Government (“…the Johore Government does not claim ownership of Pedra
Branca”), the Acting State Secretary of Johor, in his letter of 21 September 1953,
was giving a solemn undertaking which Singapore was entitled to rely, and did
rely, upon.
8.18 The letter of 21 September 1953 ca n best be characterised as a binding
unilateral declaration made in response to a specific enquiry. The present Court,
in its Judgments in the Nuclear Tests cases, set out in general terms its analysis
of the circumstances in which a unilate ral declaration may be regarded as
binding on the declarant State:
“It is well recognised that declar ations made by wa y of unilateral
acts, concerning legal or factual situations, may have the effect of
creating legal obligations. Declarations of this kind may be, and
often are, very specific.When it is the intention of the State
making the declaration that it should become bound according to
its terms, that intention confers on the declaration the character of
a legal undertaking, the State being thenceforth legally required to
follow a course of conduct consistent with the declaration.An
undertaking of this kind, if given publicly, and with an intent to be
bound, even though not made with in the context of international
negotiations, is binding.In these circumstances, nothing in the
nature of a quid pro quo nor any subsequent acceptance of the
declaration, nor even any reply or reaction from other States, is
required for the declaration to take effect, since such a requirement
would be inconsistent with the st rictly unilateral nature of the
juridic364act by which the pronouncement by the State was
made.”
364 See Nuclear Tests (Australia v. France) [1974] ICJ Rep 253, at p. 26Nuclear. 43; and
Tests (New Zealand v. France) [1974] ICJ Rep 457, at p. 472, para. 46.
– Page 168 –8.19 The letter of 21 September 1953 fulf ils all the requirements identified in
this passage for a binding unilateral act. The disclaimer of title to Pedra Branca
could hardly be more specific 36. The letter self-evidently concerns a legal or
factual situation, since it was a response to a specific enqu iry from Singapore
drawing attention to her wish to clarify th e status of Pedra Branca. Moreover, it
was a response given on behalf of Johor in circumstances where the Johor
authorities were or must have been awar e that since Singapore had taken lawful
possession of Pedra Branca and maintained the lighthouse since 1847, Singapore
had sovereignty over the island. There were at least two indications of this in
Mr. Higham’s letter to the British Adviser, Johor of 12 June 19 53. The first is
the reference in the letter to the enquiry about Pedra Branca being “... relevant to
the determination of the Colony’s terr itorial waters”; th e second is the
generalised assertion that the maintenance of the lighthouse on Pedra Branca by
the Singapore Government since it was built “no doubt confers some rights and
obligations on the Colony [of Singapore]”.
8.20 Therefore, in 1953, the Johor aut horities were aware that Singapore must
have a claim of sovere ignty over Pedra Branca on the basis of, among other
things, Singapore’s taking of possession and continuous use of the island. In
light of this awareness, the Johor auth orities must have in tended for the 21
September 1953 letter to be a legally binding undertaking not to put forward a
claim to Pedra Branca. The very terms of the assurance given in the letter of 21
September 1953 on behalf of Johor confirm that it was intended to be a firm and
365 This is in contrast with the argument made by India and partly accepted by the Tribunal in the
case concerning the Rann of Kutch where the acts relied upon constituted “a relinquishment of
potential rights rather than an exit acceptance of claimed rights”See Indo-Pakistan
Western Boundary (Rann of Kutch), Award of 19 Feb 1968, 17 RIAA 1 (1968), at p. 533 (italics
added).The opinion of the Chairman, G. Lagrgren, was endorsed by Mr. Entezam.In the
present case, the disclaimer is explicit and unqualified.
– Page 169 –unqualified disclaimer of title by Joho r, capable of being relied upon by the
Singapore authorities. As the Court has said in the Nuclear Tests cases:
“… a State may choose to take up a certain position in relation to a
particular matter with the intentio n of being bound - the intention
is to be ascertained by interpretation of the act.” 366
8.21 The Court has also endorsed the rule that the form of the communication
is not relevanWt. hat is relevant is the substance and intent of the
communication:
“… this is not a domain in wh ich international law imposes any
special or strict requirements. Whether a statement is made orally
or in writing makes no essential di fference, for such statements
made in particular circumstan ces may create commitments in
international law, which does not require that they should be
couched in written form.” 367
8.22 Finally, the Court, in the Nuclear Tests cases, was able to derive the
requisite juridical support for its opinion regarding the binding nature of certain
unilateral declarations from the principle of good faith:
“Just as the very rule of pacta sunt servanda in the law of treaties
is based on good faith, so also is the binding character of an
international obligatio n assumed by unilateral declaration.Thus
interested States may take cogni zance of unilateral declarations
and place confidence in them, and are enti368d to require that the
obligation thus created be respected.”
8.23 The dicta of the Court in the Nuclear Tests cases do not stand alone. The
Court’s predecessor had, more than forty years earlier, already pronounced on
366 Nuclear Tests (Australia v. France), supra note 364, at p. 267, para. 44; and Nuclear Tests (New
Zealand v. France), supra note 364, at pp. 472-473, para. 47.
367 Nuclear Tests (Australia v. France), supra note 364, at p. 267, para. 45; and Nuclear Tests (New
Zealand v. France), supra note 364, at pp. 472-473, para. 48.
368
Nuclear Tests (Australia v. France), supra note 364, at p. 268, para. 46; and Nuclear Tests (New
Zealand v. France), supra note 364, at pp. 473, para. 49.
– Page 170 –the legal significance in international la w of an oral declaration made by the
Norwegian Foreign Minister to his Dani sh counterpart. This was in the Eastern
Greenland case, the circumstances of which bear some comparison with the
present case. In the Eastern Greenland case, Denmark, having made a prior
claim to the territory in question, challenged a subsequent act of “occupation” of
that territory by Norway in 1931. In support of this challenge, Denmark invoked
a verbal assurance, made by the Norwegian Foreign Minister on 22 July 1919,
that the Norwegian Government would not do anything to obstruct Danish plans
for the territory. In decidi ng that Norway was bound by this statement made by
her Foreign Minister (Mr. Ihlen), the Permanent Court stated:
“The Court considers it beyond a ll dispute that a reply of this
nature, given by the Minister for Foreign Affairs on behalf of his
Government in response to a request by the diplomatic
representative of a foreign Powe r in regard to a question falling
within his province, is binding upon the country to which the
Minister belongs.” 369
8.24 Inthe Eastern Greenland case, the Norwegian Foreign Minister had in
effect stated that Norway would not challenge the Danish claim to sovereignty
over Eastern Greenland. Norway was held to that promiseT .he “Ihlen
Declaration” may not have been an expr ess disclaimer of title on behalf of
Norway; but it can be viewed as an implicit recognitio n of, or acquiescence in,
the Danish claim of title to Eastern Greenland. This reasoning applies, a fortiori,
to Singapore’s title to Pedra Branca.
8.25 Verhoeven, in his seminal work, La reconnaissance internationale dans
la pratique contemporaine , published in 1975, explor es the close links which
exist between the concepts of “recognition”, “admissions”, “renunciations”,
“acquiescence” and “estoppel”:
369 See Legal Status of Eastern Greenland Case, supra note 291, at p. 71.
– Page 171 – “Il est difficile en effet d’en tirer argument qu ant aux effets
spécifiques de la reconnaissance d’autant que la jurisprudence
parle généralement indiffére mment de ‘reconnaissance’,
370
‘acquiescement’, ‘acceptation’, ‘consentement’, ….”
As regards the Eastern Greenland case, Verhoeven makes the entirely valid
point that it is very difficult to disso ciate the reasoning based upon an implied
recognition from the consolid ation of a territorial title forming the context in
which that implied recognition was given.
8.26 It is certainly true that not all instances of inconsistency of conduct on the
part of a State would attract the sa me consequences.Indeed, in the Gulf of
Maine case, the Chamber of the Court was not prepared to find an estoppel
against the United States for failing to protest against the issue of exploration
permits by Canada over part of the disputed area:
“… while it may be conceded th at the United States showed a
certain imprudence in maintaining silence after Canada had issued
the first permits for exploration on Georges Bank, any attempt to
attribute to such silence, a brief silence at that, legal consequences
taking the concrete form of an estoppel, seems to be going too
far.”71
8.27 This having been said, there is of course a world of difference between an
isolated negative failure to react to an isolated event and a positive denial of any
claim of title to a parcel of territory which later becomes a matter of dispute
between the two States concerned.The former may be ambivalent; the latter
represents a definite and unambiguous pos ition, and the statement incorporating
it is, even if for that reason alone, much more likely to be relied upon by other
States.
370 Verhoeven J., La reconnaissance internationale dans la pratique contempor(1975), at
p. 799.
371 See Delimitation of the Maritime Boundary in The Gulf of Maine Area (Canada/United States of
America), supra note 333, at p. 308, para. 140.
– Page 172 –8.28 Singapore accepts that the letter fro m the Acting State Secretary of Johor
of 21 September 1953 was, on its face, a “negative” pronouncement (a
disclaimer of title) by Johor and not a “positive” recognition of Singapore’s
title. Nonetheless, such a negative pr onouncement can be as good as positive
recognition.
8.29 Inthe Eastern Greenland case, a similar negative pronouncement by the
Norwegian Foreign Minister to his Dani sh counterpart was held binding on
Norway. This, comb ined with the evid ence of Danish oc cupation of Eastern
Greenland, was sufficient to convince the Pe rmanent Court that Denmark was
sovereign in title over the disputed land . However one views the letter of 21
September 1953 from the Acting State Secretary of Johor, there can be no doubt
that the letter embodies a binding unilate ral undertaking of the kind considered
by the Permanent Court in the Eastern Greenland case and by the present Court
in the Nuclear Tests cases.
8.30 The present case is even stronger. The facts show that Malaysia has not
only acquiesced in Si ngapore’s title to Pedra Branca – Malaysia is in fact
estopped from lodging a claim of sovereignty on Pedra Branca.
8.31 Estoppel has been accepted and applied by the Court as a general
principle of international law. Thus, in its Judgment on Nicaragua’s application
to intervene in Land, Island and Maritime Fron tier Dispute (El Salvador/
Honduras), the Chamber of the Court defined estoppel as:
“... a statement or representation made by one party to another and
reliance upon it by that other party 372his detriment or to the
advantage of the party making it.”
372 Land, Island and Maritime Frontier Dispute (ElSalvador/Honduras) (Application by Nicaragua
to Intervene) [1990] ICJ Rep 3, at p. 118, para.See also North Sea Continental Shelf
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlan) [1969]
ICJ Rep 3, at p. 26, para. Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea intervening) (Preliminary Object[1998] ICJ
Rep 275, at p. 303, para. 57.
– Page 173 –8.32 Even though estoppel is a concept wh ich is not found in all systems of
law, it is unanimously accepted that the underlying idea is fu lly applicable in
international law. As Professor Dominique Carreau puts it, “il s’agit là d’une
373
règle de bon sens qui signifie simplement que l’on ne peut pas se contredire” .
8.33 There is a close link between estoppel and acquiescence; indeed they may
relate to the same conduct, but viewed from the opposite ends of a telescope. As
has been aptly explained:
“A claim of estoppel may and indeed frequently does relate to the
existence, non-existence or deemed existence of a particular state
of mind of the respondent State, and in particular its acceptance of,
or consent to, a particular matter; but while a claim of
acquiescence asserts that the State concerned did accept or agree
on that point, a claim of estoppel accepts, by implication, that the
respondent State did not accept or agree, but contends that, having
misled the applicant State by behavi ng as though it did agree, it
cannot be permitted to deny the conclusion which its conduct
suggested.” 374[italics in original]
8.34 The Court itself has also stressed th is close link between the concepts of
estoppel and acquiescence.Thus, the Chamber, in the Gulf of Maine case,
observed:
“… that in any case the concepts of acquiescence and estoppel,
irrespective of the status accorded to them by international law,
both flow from the fundamental principles of good faith and
equity.They are, however, base d on different legal reasoning,
since acquiescence is equivalent to tacit recognition manifested by
373 See Carreau D., Droit international (7th ed., 2001), at p. 229, para. 565 (translation: “this is a
rule based upon common sense which simply mean s that a person cannot contradict himself”).
Carreau adds, at p. 230: “Cette règle d’estoppel, que l’on peut appeler pourprincipeier
de non-contradiction , revêt deux modalités particulières: soit l’acquiescement tacite, soit la
reconnaissance formelle.” (translation: “This rule of estoppel, which may be called by way of
simplification, the principle of non self-contradiction, takes on two particular modalities: either
tacit acquiescence or formal recognition”), italics in the original.
374
Thirlway H., “The Law and Procedure of the International Court of Justice 1960-89 ” 60 Brit.
Year Book Int’l L. 4, at p. 29 (1989).
– Page 174 – unilateral conduct which the other party may interpret as consent,
while estoppel is linked to the idea of preclusion.” 375
8.35 The key elements of a plea of estoppel to operate as a bar in limine to the
pursuit of a claim are that the representa tion made by one party must have been
clear and unequivocal, and must have be en relied upon by the other party to its
detriment or to the advantage of the pa rty making the representation.It goes
without saying that the representation made by the Acting State Secretary of
Johor to the effect that “the Johore Government does not claim ownership of
Pedra Branca” was clear and unequivocal. There was no ambiguity and no lack
of clarity in this uncond itional disclaimer. Moreove r, Singapore relied on this
disclaimer, which was entirely consistent with the legal status quo. It is worth
noting in this respect that, on 13 Oct ober 1953, the Office of the Colonial
Secretary of Singapore wrote the following note to the Acting Master Attendant:
“Reference your minute dated 6th February, 1953, the State
Secretary, Johore, states that the Johore Govern ment does not
claim the ownership of Pedra Branca Rock on which the
Horsburgh Lighthouse stands.
2 On the strength of this, the A ttorney General agrees that we
376
can claim it as Singapore territory.”
8.36 Having established that there is no doubt that Singapore had relied upon
Johor’s disclaimer, the next question that has to be addressed is whether she had
relied upon the disclaimer by Johor to her detriment, given that Singapore had
already been administering Pedra Branca and the Horsburgh Lighthouse without
interruption for more than 100 years when the discla imer of title was made by
375 See Delimitation of the Maritime Boundary in The Gulf of Maine Area (Canada/United States of
America), supra note 333, at p. 305, para. 130.
376 Letter from Colonial Secretary, Singapore to Master Attendant, Singapore dated 13 Oct 1953,
attached to this Memorial as Annex 9See also Letter from Master Attendant, Singapore to
Colonial Secretary, Singapore dated 6 Feb 1953, attached to this Memorial at Annex 91, where
the Master Attendant had enquired about the decisi on concerning the 3-mile limit of territorial
waters around Pedra Branca.
– Page 175 –Johor. It is Singapore’s case that she did act to her detriment in that, having
been reassured that Johor had no claim to Pedra Branca, Singapore continued to
377
maintain and improve the lighthouse and the related facilities at her cost .
8.37 In any event, acquiescence also ap plies to this case, and it does not
require that the State relying upon it shou ld have acted to her detriment.As
quoted above, in the Gulf of Maine case, the Chamber stated that:
“... acquiescence is equivalent to tacit recognition manifested by
unilateral conduct which the ot her party may interpret as
consent…” 378
8.38 This dictum fully app lies to the facts of the present case. Singapore had
been open, direct and purposeful when it made her enquiry about the status of
Pedra Branca on 12 June 1953. Indeed, Mr. Higham had commented that the
maintenance of the Horsburgh Lighthouse on Pedra Branca no doubt conferred
“some rights and obligations on the Colony [of Singapore]”. These words, when
viewed in the context of Singapore’s acceptance that Johor had sovereignty over
Pulau Pisang, amounted to an asserti on of sovereignty ove r Pedra Branca by
Singapore. Singapore was su rely justified in interpre ting the disclaimer of title
made on behalf of Johor on 21 September 1953 as en suring that neither Johor
nor any successor in title to Johor w ould or could rais e any objection to
Singapore’s title to Pedra Branca. This is acquiescence within the meaning of
the dictum in the Gulf of Maine case cited above.
377 See above, Chapter 6, in particular paras. 6.27 to 6.34.
378 Delimitation of the Maritime Boundary in The Gulf of Maine Area (Canada/United States of
America), supra note 333, at para. 130. See para. 8.26 above.
– Page 176 –8.39 As Judge Alfaro has also convinci ngly explained in his separate opinion
appended to the Judgment of the Court in the Temple Case:
“Whatever term or terms [ ‘estoppel’, ‘preclus ion’, ‘forclusion’,
‘acquiescence’] be employed to designate this principle such as it
has been applied in the international sphere, its substance is always
the same: inconsistency between claims or allegations put forward
by a State, and its previous conduct in connection therewith, is not
admissible (allegans contraria non audiendus est). Its purpose is
always the same: a State must not be permitted to benefit by its
own inconsistency to the prejudice of another State ( nemo potest
mutare consilium suum in alterius injuriam ). A fortiori, the State
must not be allowed to benefit by its inconsistency when it is
through its own wrong or illegal ac t that the other party has been
deprived of its right or prev ented from exercising it.( Nullus
commodum capere de sua injuria propria ). Finally, the legal
effect of the principle is always the same: the party which by its
recognition, its representation, its declaration, its conduct or its
silence has maintained an attitude manifestly contrary to the right
it is claiming before an internat ional tribunal is precluded from
claiming that right (venire contra factum proprium non valet).
The acts or attitude of a State pr evious to and in relation with
rights in dispute with another St ate may take the form of an
express written agreement, decl aration, representation or
recognition, or else that of a c onduct which implies consent to or
agreement with a determined factual or juridical situation.
A State may also be bound by a passive or negative attitude in
respect of rights asserted by anot her State, which the former State
later on claims to have. Passiveness in front of given facts is the
most general form of acquiescence or tacit consent.” 379
379 Temple of Preah Vihear , supra note 238, at p. 40, pp. 43-51 (where very many examples are
provided). See also Fitzmaurice’s separate opiniibid, at pp. 62-65; Jennings RThe
Acquisition of Territory in International Law(1963), at pp. 36-51.
– Page 177 – Section III. Conclusions
8.40 Th1e953corresponden ce is highly significant in showing that:
(a) the Colonial Secretary of Singa pore sought clarification about the
legal status of Pedra Branca in a letter dated 12 June 1953 to the
Government of Johor;
(b) the terms of this letter showed that colonial authorities in
Singapore were aware that Singapore had sovereign rights over the
island;
(c) the Acting Secretary of State of Johor confirmed Singapore’s
position when he declared, in a letter dated 21 September 1953,
that “… the Johor Government do es not claim ownership of Pedra
Branca”;
(d) the disclaimer was an unequivoc al admission that Johor had no
sovereignty over the island and by necessary implication, Johor
accepted Singapore’s sovereignty;
(e) the disclaimer is fully binding on Malaysia as Johor’s successor.
8.41 The facts and argument s in Chapters VII and VIII leave no doubt that
Malaysia is bound ( a) by her “passive or negative conduct” in relation to the
sovereign rights asserted and exercised by Singapore, ( b) by her repeated
requests to Singapore for authorisation to carry out activities on Pedra Branca
and its vicinity, and (c) by her predecessor’s formal disclaimer of rights over the
island.
– Page 178 – CHAPTER IX
MIDDLE ROCKS AND SOUTH LEDGE
9.1 Middle Rocks are two clusters of rocks lying a mere 1 km (or 0.6 nautical
miles) to the south of Pedra Branca. Th e western cluster of Middle Rocks lies
0.9 meters above the high water mark while the eastern cluster lies 1.5 meters
above the high water mark. The two clusters lie about 250 metres apart.
9.2 The western cluster consists of seve ral rock outcrops spread over an area
measuring 45 meters by 20 meters. The la rgest of these rock outcrops measures
5 by 4 meters at low-tide. The eastern cluster consists of two ridges and one
rocky outcrop with several small rocks interspersed be tween them. The larger
ridge measures about 55 me ters by 15 meters while th e smaller ridge measures
about 45 meters by 15 meters.The rocky outcrop measures about 16 by 4
meters. All the rocks are bare of vegetation.
9.3 Middle Rocks are located 7 nautical miles from the Indonesian coast and
8 nautical miles from the Malaysian coast.
9.4 South Ledge is a low-tide elevati on lying 2.1 nautical miles south of
Pedra Branca.It is completely submer ged at high tide. At low tide, South
Ledge is visible as three isolated rocks situated 20 to 25 meters apart.The
largest of the three rocks measures about 5 meters by 2 meters. The two smaller
rocks have diameters of 3.5 meters and 2.5 meters respectively.
9.5 South Ledge is located 5.5 nautical miles from the Indonesian coast and
7.8 nautical miles from the Malaysian coast.
– Page 179 –9.6 As provided for in Article 2 of the Special Agreement between the
Parties:
“The Court is requested to determine whether sovereignty over:-
(a) Pedra Branca/Pulau Batu Puteh;
(b) Middle Rocks;
(c) South Ledge,
belongs to Malaysia or the Republic of Singapore.”
9.7 Singapore’s position is that sovere ignty in respect of Middle Rocks and
South Ledge goes together with sovereig nty over Pedra Branca. Whoever owns
Pedra Branca owns Middle Rocks and Sout h Ledge, which are dependencies of
the island of Pedra Branca and form with the latter a single group of maritime
features (see Section I below). Moreover, bein g minor maritime features lying
within the territorial waters of Pedra Branca, and not having been independently
appropriated by any State, sovereignty over Middle Rocks and South Ledge
must necessarily be in the hands of th e State which exercises sovereignty over
Pedra Branca itself, since these feat ures are not capable of autonomous
appropriation (see Section II below).
Section I. Middle Rocks and South Ledge Form a Single Group of
Maritime Features Together with Pedra Branca
9.8 Even though Middle Rocks and Sout h Ledge have slightly different legal
characteristics, as will be shown in Se ction II below, they are both mere
dependencies of Pedra Branca and their legal fate must be alike:
(a) first, both Middle Rocks and South Ledge form geographically and
morphologically a single group of maritime features; and
(b) second, Malaysia is unable to show that it has appropriated these
maritime features thro ugh any acts of sovere ignty. Since these
uninhabited, unoccupied reefs have never been independently
– Page 180 – appropriated by Malaysia, they be long to Singapore by virtue of
them falling within Singapore’s te rritorial waters generated by
Pedra Branca.
A. A S INGLE G ROUP OF M ARITIME FEATURES
9.9 As explained by Judge Huber in the Island of Palmas arbitration:
“Although States have in certain circumstances maintained that
islands relatively close to their shores belonged to them in virtue of
their geographical situation, it is impossible to show the existence
of a rule of positive international law to the effect that islands
situated outside territorial waters should belong to a State from the
mere fact that its territory forms the terra firma (nearest continent
or island of considerable size). …
As regards groups of islands, it is possible that a group may under
certain circumstances be regarded as in law, a unit, and that the
fate of the principal part may involve the rest.” 380[emphasis in
underline added]
9.10 Two points were made by Judge Hu ber in this passage concerning the
principle of proximity – first, the principle of proximit y has no relevance with
regards to “islands situated outside territorial waters” and second, the principle
of proximity is relevant as regards islands forming a group, such that they can be
regarded in law as one unit.
9.11 This concept of unity of a group of islands or other maritime features
sharing the same legal destiny has been applied on several occasions by this
Court.
38PIlfas , supra note 181, at pp. 854-855 (italics added).
– Page 181 –9.12 In El Salvador/Honduras , the Chamber of the Court, referring to the
Minquiers and Ecrehos case, said:
“The small size of Meanguerita, its contiguity to the larger island
[Meanguera], and the fact that it is uninhabited, allow its
characterization as a ‘dependency’ of Meanguera, in the sense that
the Minquiers group was claimed to be a ‘dependency of the
381
Channel Islands’ (I.C.J. Reports 1953, p. 71).”
Then, having decided “that El Salvador may be regarded as sovereign over the
island” of Meanguera, since it was “in effective possession and control” of the
island, the Chamber of the Court concluded:
“As regards Meanguerita the Chamber does not consider it
possible, in the absence of evid ence on the point, that the legal
position of that island 382uld have been other than identical with
that of Meanguera.”
9.13 More recently, the concept of an island group was recognised in
Qatar/Bahrain when the Court chose to dispose of the Hawar Islands,
383
comprising “31 islands and islets”, as a single group . Similarly, in its Award
of 9 October 1998, the Arbitral Tribuna l between Eritrea and Yemen allocated
381
Case Concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening), supra note 328, at p. 570, para. 356. See also p. 579, para. 368, where
the Court characterised “Meanguera (to which Meanguerita is an appendage)”.n the
Minquiers and Ecrehos case, the Court defined “the islets and rocks of the Ecrehos and
Minquiers” as forming “groups”. See Minquiers and Ecrehos, supra note 306, at p. 72.See
also the Individual Opinion of Judge Levi Carneiro, ibid, at pp. 99-102. Similarly, in
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Merits) [1982] ICJ Rep 18, at p. 88, para.
128, the Court treated “the Kerkennah Islands, su rrounded by islets and low-tide elevations” as
a single whole. In Delimitation of the Maritime Boundary in The Gulf of Maine Area
(Canada/United States of America) , supra note 333, at p. 336, para. 222, the Chamber dealt
with Seal Island together with “its smaller neighbour, Mud Island”.
382 Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua Intervening), supra note 328, at p. 579, para. 367.
383 See Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, suprnote
284, at pp. 70-85, para. 98-148.
– Page 182 –the disputed islands according to “sub- groups”, each consid ered as forming a
whole .84
9.14 Similarly, Middle Rocks, South Ledge and Pedra Branca form a single
group of maritime features, given their proximity to Pedra Branca (respectively
0.6 nautical miles and 2.1 nautical m iles) and their rela tively small size
compared to Pedra Branca . Consequently, Middle Rocks and South Ledge can
only be regarded as “dependencies” of Pedra Branca, in the meaning adopted by
the jurisprudence of the Court. As explai ned in paragraphs 2.15 to 2.17, this is
how older sea charts and sailing directi ons have always treated Pedra Branca,
Middle Rocks and South Ledge.
9.15 It is also extremely revealing an d noteworthy that Pedra Branca, Middle
Rocks and South Ledge are situated to th e south-east of the main navigational
channel (known as Middle Channel) in th e Straits of Singapore and to the north
of another navigational channel (known as South Channel). As the extract from
the British Admiralty Chart 3831 (reproduced as Map 4, after page 13) shows,
Pedra Branca, Middle Rocks and South Le dge are bounded as a group to the
north and south by these two navigational channels.
9.16 Further justifications for treating Pedra Branca and its dependencies as a
group are to be found in the geomorpholog ical evidence that the three features
form a single physical unit.In partic ular, geological examination of rock
samples taken from Pedra Branca, Middle Rocks and South Ledge shows that
the three features are constituted with the same rock type (namely, a light,
coarse-grained biotite granite), which shows that the three features belong to the
same rock body.
384 Eritrea/Yemen, supra note 349 at para. 460-466; and the dispositif of the Award, at para. 527.
– Page 183 –9.17 Moreover, both countries have treated the three features as a
whole. Thus, after Malaysia published her 1979 Map claiming Pedra Branca to
be within her territorial waters, Singapore lodged a protest in February 1980 to
the effect that “Pedra Branca and the waters around it” belonged to
385
Singapore .
B. M IDDLE R OCKS AND SOUTH LEDGE FALL W ITHIN
PEDRA BRANCA ’S TERRITORIAL W ATERS
9.18 Even if Middle Rocks and/or Sout h Ledge were capable of autonomous
appropriation (which Singapore does not admit, as w ill be shown in Section II
below), Malaysia’s claim would only have some credibility if she could prove
that, before the present di spute crystallized, she acted à titre de souverain with
regard to these features, which are siated within Pedra Br anca’s territorial
sea. This Malaysia cannot do.
9.19 The Judgment of the Court in Qatar/Bahrain makes clear that even
effective activities which are sufficient to cr eate or perfect a State’s title to an
island would not have any effect for acquiring title to a low-tide elevation.
9.20 In that case, Bahrain had relied on va rious acts of authority in support of
386
her claim of sovereignty on Fash t ad Dibal, a lo w-tide elevatione Court
noted that:
“[w]hether this claim by Bahrain is well founded depends upon the
answer to the question whether lo w-tide elevations are territory
385 See Singapore’s Note MFA 30/80 dated 14 Feb 1980, attached to this Memorial as Annex 144.
386
See Maritime Delimitation and Territorial Questions Between Qatanoted Bahrain, supra
284, at p. 100, para. 199 and at p. 101, para. 203.
– Page 184 – and can be appropriated in conformity with the rules and principles
of territorial acquisition.”387
After a lengthy discussion, the Court firmly rejected Bahrain’s claim . 388
9.21 A fortiori, there is no basis for any Malaysian claim to South Ledge, a
low-tide elevation on which Malays ia has never carried out any
activities. Accordingly, South Ledge, like Fasht ad Dibal in the Qatar/Bahrain
case, must go to whoever owns the territorial waters in which it is situated – that
is, Singapore.
9.22 Similarly, Malaysia is unable to show any effectivités to support her claim
to Middle Rocks, which, in contrast with South Ledge, are partly above water at
high tide.Indeed, as the Court recognis ed in its recent Judgment in the case
concerning Sovereignty over Pulau Ligitan and Pulau Sipadan:
“In particular in the case of very small islands which are
uninhabited or not permanently inhabited … effectivités will
389
indeed generally be scarce.”
9.23 As Sir Gerald Fitzmaurice put it:
“…if it can be shown that the disputed areas (whether by reason of
actual contiguity or of proximity) are part of an entity or unity over
which as a whole the claimant State has sovereignty, this may
(under certain conditions and within certain limits) render it
unnecessary – or modify the extent to which it will be necessary –
to adduce specific evid ence of State activity in relation to the
disputed areas as such – provided that such activity, amounting to
387 See Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, notea
284, at p. 101, para. 204.
388 Ibid, at pp. 101-103, para. 204-209. See below, at para. 9.40.
389
See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , supra note 180,
at para. 134.
– Page 185 – effective occupation and possession, can be shown in respect of
390
the entity as a whole.”
As a consequence:
“… sovereignty, once shown to ex ist in respect of an entity or
natural unity as a whole , may be deemed, in the absence of any
evidence to the contrary , to extend to all parts of that entity or
391
unity.”
9.24 Singapore has continuously exercised sovereign authority over the waters
surrounding Pedra Branca, within which Middle Rocks and South Ledge are
located. These activities have been discussed in Chapter VI of this Memorial.
9.25 As the Permanent Court put it in the Eastern Greenland case in 1933:
“It is impossible to read the record s of the decisions in cases as to
territorial sovereignty without ob serving that in many cases the
tribunal has been satisfied with ve ry little in the way of the actual
exercise of sovereign rights, provided that the other State could not
392
make out a superior claim.”
9.26 This is certainly so in the present case.Singa pore has been constantly
acting à titre de souverain in the waters neighbouri ng Pedra Branca, including
around Middle Rocks and South Ledge. Malaysia, on her part, has been
continually absent at all material times. After 1979, Singapore has continued to
390 See Fitzmaurice G., “ The Law and Procedure of the International Court of Justice, 1951-4:
Points of Substantive Law. Part II” 32 Brit. Yr. Bk. Int’l L. 20 (1955-1956), at p. 73. The italics
are in the original text. See also Judge Levi Carneiro’s Individual OpiniMinquiers and
Ecrehos (discussed in Fitzmaurice, ibid, at p. 75): “… the Minquiers and Ecrehos are closer to
Jersey than the mainland. They must be regarded as attached to Jersey rather than to the
mainland. These islets were, and continue to be part of its ‘natural unity’… It seems
inconceivable … that England, having an important interest in the Channel Islands and full
domination over the sea, and possessing all the principal islands, should not, without some
special reason, have conquered and retained the Ecrehos and the Minquiers or, rather, that she
should have left them to France” ( Minquiers and Ecrehos, supra note 306, at p. 102; see also
the Individual Opinion of Judge Basdevant, ibid, p. 78).
391 See Fitzmaurice, supra note 390, at p. 75. Italics in original.
392 See Legal Status of Eastern Greenland Case, supra note 291, at p. 46.
– Page 186 –exercise sovereign authority over the waters around Pedra Branca and continued
to vigilantly protest any Malaysian encroachment into those waters 393, which by
virtue of close proximity, are indistingui shable from the waters around Middle
Rocks and South Ledge.
9.27 As the Court recalled in its Judgm ent of 16 March 2001, in the case
concerning the Maritime Delimitation and Territorial Questions Between Qatar
and Bahrain:
“It is… the terrestrial territorial si tuation that must be taken as the
starting point for the determinati on of the maritime rights of a
coastal State. In accordance with Article 121, paragraph 2, of the
1982 Convention on the Law of the Sea, which reflects customary
international law, islands, regardle ss of their size, in this respect
enjoy the same status, and therefore generate the same maritime
394
rights, as other land territory.”
9.28 In the light of this principle, it is appropriate to reca ll the position taken
by the Arbitration Tribunal in the Eritrea/Yemen case:
“There is a strong presumption that islands within the twelve-mile
coastal belt will belong to the coastal State, unless there is a fully-
established case to the contrary (as, for example, in the case of the
395
Channel Islands).”
393 See above, at para. 6.116.
394 See Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, suprnote
284, at p. 97, para. 185.
395 Eritrea/Yemen, supra note 349, at para. 474. C.f., ibid, at para. 458: “… there is some
presumption that any islands off one of the coasts may be thought to belong by appurtenance to
that coast unless the State on the opposite coast has been able to demonstrate a clearly better
title”.
– Page 187 –9.29 In the present case, there can be no doubt that both Middle Rocks and
South Ledge are situated within the territorial sea of Pedra Branca:
(a) in the case of South Ledge, this low-tide elevation lies 2.1 nautical
miles off Pedra Branca; as for Middl e Rocks, they lie 0.6 nautical
miles from the island;
(b) there can be no ques tion that Pedra Branca itself is entitled to a
territorial sea ( see e.g., Article 10, para. 2, of the Geneva
Convention on the Territorial Se a and Article 121 of the U.N.
Convention on the Law of396e Sea, to which both Malaysia and
Singapore are Parties );
(c) as a former British colony, Singapore has traditionally claimed a 3-
397
mile breadth for its territorial sea but on 15 September 1980
Singapore declared that it would ex tend its territorial sea claim to
12 miles 398. Whether on the basis of a 12-mile territorial sea or a
3-mile territorial sea, both Middle Rocks and South Ledge fall well
within the territorial sea to which Pedra Branca is entitled.
See overleaf for Map 16 (Map showing that Middle Rocks and South Ledge are
within 3 nautical miles of Pedra Branca).
9.30 Although Middle Rocks and South Le dge sit within the 12-nautical mile
belt measured from the Malaysian coas t, this fact has no impact on the
disposition of these features.
396
Since 14 October 1996 and 17 November 1994 respectively. See Chronological lists of
ratifications of, accessions and successions to the Convention and the related Agreements as at
18 November 2003 , available at http://www.un.org/Dep ts/los/reference_files/chronological_
lists_of_ratifications.htm (visited: 3 Dec 2003).
397
See McNair A., International Law Opinions, Vol. 1 (1956), at p. 331 which shows that Britain
has adopted the 3-mile rule as early as 1806. See further, the UK Territorial Waters Jurisdiction
Act 1878 which formally declared the 3-mile rule for all British dominions.This Act is
attached to this Memorial as Annex 69.
398
See Statement by the Singapore Ministry of Foreign Affairs, 15 Sep 1980, attached to this
Memorial as Annex 148.
– Page 188 – 399
9.31 Malaysia only declared a 12-naut ical mile territorial sea in 1969 . For
more than 100 years, Johor, and late r Malaysia, only recognised a 3-mile
territorial sea.
9.32 From as early as 1861, Britain and Johor had reached a common
400
understanding that Johor’s territori al waters extended to 3 miles . Later,
401
Article 5 of the 1885 Treaty between Britain and Johor declared that Johor
waters “extends to three miles from the sh ore of the State”. After independence
in 1957, the Federation of Malaya (and la ter Malaysia) did not formally declare
the breadth of her territorial sea un til the extension to 12 miles in
1969. Moreover, Malaysia’s own State practice confirms that she has adhered to
the British tradition of 3 miles right up to 1969 as shown e.g., by the synoptical
table of the breadth of territorial seas pr epared in 1960 by the Secretariat for the
Second United Nations Law of the Sea Conference, based on submissions by
States and which recorded the Federatio n of Malaya’s territorial sea as 3
402
miles .
399 Section 3 of the Emergency (Essential Powers) Ordinance No. 7 1969 , attached to this
Memorial as Annex 114.
400 See para. 15 of the Letter from His Highness Daing Ibrahim Maharajah (Tumongong of Johore)
to Cavenagh O. (Governor of Prince of Wale s Island, Singapore and Malacca) dated 8 Aug
1861, attached to this Memorial as Annex 63, st ating that Johor’s waters only extended “as far
as by the law and custom of nations.” See also Letter from Cavenagh O. (Governor of Prince of
Wales Island, Singapore and Malacca) to the Secretary to the Government of India dated 16 Oct
1861, attached to this Memorial as Annex 64, where the Governor reported that the
Temenggong’s legal advisers informed that an appeal will be lodged against the exercise of
British jurisdiction within 3 miles of the Johore coast. See also the Advocate General’s Opinion
to the Government of India in Letter from Ritchie W. (Advocate General) to Durand H.M.
(Officiating Secretary to the Government of India Foreign Department) dated 18 Oct 1861,
attached to this Memorial as Annex 65.
401
Agreement on certain points touching the relations of Her Majesty’s Government of the Straits
Settlements with the Government of the Independent State of Johore dated 11 Dec 1885,
attached to this Memorial as Annex 71.
402 UN Document A/CONF.19/4 dated 8 Feb 1960, Official Records of the Second United Nations
Law of the Sea Conference, attached to this Memorial as Annex 103.
– Page 189 –9.33 This means that, for mo re than 100 years, both Middle Rocks and South
Ledge fell within the 3-mile territori al sea generated by Pedra Branca, but
outside the territorial sea measured from the coast of Johor.By the time
Malaysia declared a 12-mile belt in 1969, Singapore had already established and
maintained, for more th an a century, her title over Pedra Branca and,
consequently to all maritime features within its 3-m ile territorial sea.The
subsequent extension of Mala ysian territorial waters to 12 miles cannot affect
Singapore’s prior title.
Section II. Middle Rocks and South Ledge are Not Capable of
Independent Appropriation
9.34 Taken together, Middle Rocks and S outh Ledge are part of a group of
maritime features which belongs to Si ngapore, whose sovere ignty over Pedra
Branca is indisputable as shown in the previous Ch apters of this
Memorial. Moreover, it will be apparent that, taken in isolation, neither South
Ledge nor Middle Rocks are capable of appropriation.
A. S OUTH LEDGE
9.35 According to Article 11, paragraph 1, of the 1958 Geneva Convention on
the Territorial Sea – a provision unan imously adopted during the first United
Nations Conference on the Law of the Sea:
“A low-tide elevation is a naturally formed area of land which is
surrounded by and above water at low-tide but submerged at high
tide.”403
403 The 1958 Convention on the Territorial Sea and the Contiguous Zone 516 UNSee205.
Summary Record of the 19th Plenary Meeting, Official Records of the First United Nations Law
of the Sea Conference, Vol. II, p. 64 (originally issued as A/CONF.13/SR.19), at para. 31.
– Page 190 –9.36 This definition has been incorporated verbatim in Article 13 of the 1982
U.N. Convention on the Law of the Sea a nd accepted as customary international
law by the Court in its Judgment of 16 March 2001 in the case concerning
Maritime Delimitation and Territorial Questions Between Qatar and Bahrain 40.
9.37 According to this de finition, South Ledge is indisputably a low-tide
elevation, and is shown on maritime ch arts as such.For example, British
Admiralty Chart 3831 indicates unequivoc ally that South Ledge is a low-tide
elevation by giving its heig ht in underlined figures, de noting that it is a drying
height measured from chart datum 405. Similarly, Malaysia’s own maritime Chart
515 places the words “dries 2.1m” against South Ledge indicating unequivocally
that South Ledge is a drying rock 406. Chart 515 is presented as Map 17 (Extract
from Malaysian Maritime Chart 515 en titled “Silat Singapura” published under
the superintendence of the Hydrogra pher, Royal Malaysian Navy (1998))
overleaf.
9.38 The series of pictures overleaf do not leave any shadow of a doubt in this
respect. The first photograph (Image 21) was taken on 10 October 2003, at low
tide (0.9 m). It shows three rocks and the wreck of the vessel Gichoon which ran
aground on South Ledge on 14 October 1996. Further photographs taken on the
same day (Image 22), when the tide was higher, show very clearly that the rocks
that comprise South Ledge are fully covered at high tide. They are completely
submerged, and only the hull of Gichoon can be seen.
404
See Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, snote
284, at p.100, para. 201. See also Continental Shelf (Tunisia/Libyan Arab Jamahiriya) , supra
note 381, at p. 89, para. 128; Guillaume G., “Les hauts-fonds découvrants dans la jurisprudence
de la C.I.J.” in Guillaume G., La Cour internationale de Justice à l’aube du XXIème siècle
(2003), at p. 304.
405
See above, Map 4 (Extract from British Admiralty Chart 3831 - Indonesia, Malaysia and
Singapore, Singapore Strait, Eastern Part (1979)), after p. 13.
406
See Map 16 (Extract from Malaysian Maritime Chart 515 – Silat Singapura, published under the
superintendence of the Hydrographer, Royal Malaysian Navy (1998)).
– Page 191 –9.39 As a matter of law, low-tide eleva tions are not capable of independent
appropriationT. he Court first took such a view a contrario in the El
Salvador/Honduras case, when it said:
“That Meanguerita is ‘capable of appropriation’, to use the
wording of the dispositif of the Minquiers and Ecrehos case, is
undoubted; it is not a low-tide elevation, and is covered by
vegetation, although it lacks fresh water.” 407
9.40 The question of whether low-tide el evations are capable of independent
appropriation was most recently considered by this Court in Qatar/Bahrain. The
relevant portion of the Court’s Judgment reads:
“204. Whether this claim by Bahrain [that it has appropriated the
low-tide elevation by effectivités] is well founded depends upon
the answer to the question whether low-tide elevations are territory
and can be appropriated in conformity with the rules and principles
of territorial acquisition. In the view of the Court, the question in
the present case is not whether lo w-tide elevations are or are not
part of the geographical configuration and as such may determine
the legal coastline.The relevant rules of the law of the sea
explicitly attribute to them that function when they are within a
State’s territorial sea. Nor is there any doubt that a coastal State
has sovereignty over low-tide elevations which are situated within
its territorial sea, since it has sovereignty over the territorial sea
itself, including its sea-bed and subsoil. The decisive question for
the present case is whether a St ate can acquire sovereignty by
appropriation over a low-tide elevation situated within the breadth
of its territorial sea when that same low-tide elevation lies also
within the breadth of the territorial sea of another State.
205. International treaty law is silent on the question whether
low-tide elevations can be considered to be ‘t erritory’. Nor is the
Court aware of a uniform and wi despread State practice which
might have given rise to a customary rule which unequivocally
permits or excludes appropriation of low-tide elevations. It is only
in the context of the law of the sea that a number of permissive
407
Nicaragua Intervening), supra note 328, at p. 570, para. 356.e (El Salvador/Honduras:
– Page 192 – rules have been established with regard to low-tide elevations
which are situated at a relatively short distance from a coast.
206. The few existing rules do no t justify a general assumption
that low-tide elevations are te rritory in the same sense as
islands. It has never been disputed that islands constitute terra
firma, and are subject to the rule s and principles of territorial
acquisition; the difference in e ffects which the law of the sea
attributes to islands and low-tide el evations is considerable. It is
thus not established that in the absence of other rules and legal
principles, low-tide elevations can, from the vi ewpoint of the
acquisition of sovereignt y, be fully assimilated with islands or
other land territory.
207. In this respect, the Court recalls the rule that a low-tide
elevation which is situated beyond the limits of the territorial sea
does not have a territorial sea of its own.A low-tide elevation,
therefore, as such does not genera te the same rights as islands or
other territory…
208. Paragraph 3 of Article 4 of the 1958 Convention on the
Territorial Sea and the Contiguous Zone and paragraph 4 of Article
7 of the 1982 Convention on th e Law of the Sea provide that
straight baselines shall not be drawn to and from low-tide
elevations unless lighthouses or similar installa tions which are
permanently above sea level ha ve been built on them.These
provisions are another indication that low-tide elevations cannot be
equated with islands, which under all circumstances qualify as
basepoints for straight baselines.
209. The Court, consequently, is of the view that in the present
case there is no ground for recogn izing the right of Bahrain to use
as a baseline the low-water line of those low-tide elevations which
are situated in the zone of over lapping claims, or for recognizing
Qatar as having such a right.The Court accordingly concludes
that for the purposes of drawing the equidistance line, such low-
408
tide elevations must be disregarded.” [emphasis added]
9.41 In the above Judgment, the Court declined to award the low-tide elevation
of Fasht ad Dibal to Bahrain, even thou gh Bahrain’s claim to ownership of the
408 See Maritime Delimitation and Territorial Questions Between Qatar and Bahrainoteupra
284.
– Page 193 –low-tide elevation was based on the same effectivités upon which the Court had
already awarded a neighbouring island, Qit’at Jaradah, to Bahrain 409. The result
was that sovereignty over Fasht ad Dibal fell to Qatar, who had sovereignty over
the territorial sea within which the low-tide elevation was situated 41.
9.42 In the present case, Malays ia can avail herself of no effectivité
whatsoever.As the Court made clear in Qatar/Bahrain, there is no doubt
“that a coastal State has sovereignty over low-tide elevations which are situated
within its territorial sea, since it has sovere ignty over the territorial sea itself,
411
including its sea-bed and subsoil.” For this reason alone, and without
412
prejudice to other reasons , there can be no doubt th at South Ledge belongs to
Singapore, as a consequence of her sovereignty over Pedra Branca.
B. M IDDLE R OCKS
9.43 Unlike South Ledge, Middle Rock s are above water even at high
tide. They therefore satisfy the definition of “islands” in Article 121 of the 1982
United Nations Convention on the Law of the Sea. However, they are extremely
413
small in size .As such, any attempt to tr eat them separately from Pedra
Branca is an exercise in surreality.
9.44 As indicated by their very name, Middle Rocks are mere rocks.They
certainly “cannot sustain human habitatio n or economic life of their own”. A
409 See Maritime Delimitation and Territorial Questions Between Qatar and Bahrain,notera
284, at para. 197.
410 Ibid, at p. 109, para. 222.
411 See above, para. 9.40.
412 See above, Section I of this Chapter.
413 See the physical description of Middle Rocks above, at paras. 2.12 and 9.1.
– Page 194 –mere glance at the photographs shown in this Memorial (see Images 8, 9 and 10
after Page 12 above) suffices to establish this.
9.45 Moreover, Middle Rocks are, geogr aphically speaking, but a resurgence
of the main island.They lie at 0.6 nautical miles (1 km) from Pedra Branca
proper from which they cannot be reasona bly dissociated. On the other hand, it
must be kept in mind that they are 8 na utical miles from Malaysia’s coast. The
distance from Middle Rocks to the Malaysian coast is 20 times the distance from
Middle Rocks to Pedra Branca. In other words, just like South Ledge 414, Middle
Rocks are situated in Pedra Branca’s territorial sea and the extension to 12 miles
of the breadth of Malaysia’s territorial sea in 1969 does not change the picture.
9.46 An examination of the seabed ar ound Middle Rocks and Pedra Branca
reveals very shallow waters between Pe dra Branca and Middle Rocks, with a
drastic drop in the level of sea bed sli ghtly north of Pedra Branca and slightly
south of Middle Rocks. As the three-dimensional diagrams of the seabed around
Pedra Branca and Middle Rocks shows ( Image 23, overleaf), Pedra Branca and
Middle Rocks are in fact one single ro ck formation, standing apart from the
surrounding seabed.
9.47 These three-dimensional diagrams were computer-generated using data
obtained by an hydrogra phic multibeam sonar survey carried out by the
Maritime and Port Authority of Singapore from 8 to 13 April 2003 415. The study
concluded that:
“Pedra Branca and Middle Rocks appear to be a single rock
formation. Based on the bathym etry, there exists a clearly
observable underwater ridge at th e depth of less than 20 metres
414 See above, para. 9.30 to 9.33.
415 Report on Hydrographic Survey around the Waters of Pedra Branca, Middle Rocks and South
Ledge (8 Apr 2003 to 13 Apr 2003), attached to this Memorial as Annex 201.
– Page 195 – that curved southward from east of Pedra Branca linking with
416
Middle Rocks…”
9.48 It is highly significant that in a ll marine pilots, Pedra Branca and Middle
Rocks are discussed and desc ribed together. As early as the end of the 16th
century, the Dutch explorer and cart ographer Jan Huygen van Linschoten
described Pedra Branca in his Itinerario Voyage ofte Schipvaert naer Oost Ofte
Portugaels Indien, 1579-1592 (Itinerary of the Voyage by Ship to the East or
Portuguese Indies). Chapter 20 of this book, whic h may be regarded as the first
complete sailing directions in the region , is devoted to “Die Navigatie ende
rechte Coursen van Malacca af nae M acau in China” (“The Navigation and
Correct Courses from Malacca to Macao in China”), states:
“Van dese Eylandekens 2 mylen z. z.o. aen, is gelegen die Pedra
Branqua, (dat is, witte steen gese yt) welke is ee n Eylandeken van
witte steen-rootsen ofte Clippen, hebb ende daer dicht by noch
etlicke andere Rudsten ende Cl ippen, ghelegen aende zuydtzyde
daer van af, van welcke zyde in ghelijcks ghelegen’t Eylandt van
Binton… Men heeft rontsom de Pedra Branqua, en daer dicht by 6
vadem diepten, suyver gront; sult u altoos wachten vande Clippen
417
ende Rudtsen daer by gelegen.”
416
Report on Hydrographic Survey around the Waters of Pedra Branca, Middle Rocks and South
Ledge, supra note 415, at para. 20(a). See also observations at para. 17.
417
See Warnsinck J.C.M. (ed.), Jan Huygen van Linschoten’s Itinerario Voyage ofte Schipvaert
naer Oost Ofte Portugaels Indien, 1579-1592 (1939), at pp. 94, 101-102 (Dutch original, with
English translation), attached to this Memorial as Annex 83. The English translation of this
passage is repeated here for easy reference:
Chapter 20: The navigation and correct courses from Malacca to Macao in China…
From these small islands approximately 2 sea miles in South-Southeasterly direction is
situated Pedra Branca (that is to say, the white rock) which is a small island comprising
white protruding rocks and boulders, and nearby located on its Southern side there are
also other sharp rocks and boulders which is th e side where is also situated the island
of Bintan…
Around Pedra Branca and close by one has water measuring 6 Dutch fathoms [in]
depth, on clean ground; one also has to watch the boulders and sharp rocks which are
situated close by…
– Page 196 –9.49 Similarly, to take a more recent example, the Malacca Pilot, first edition,
1924, reads:
“PEDRA BRANCA, lying in the middle of the eastern entrance of
Singapore strait, nearly 8 miles fr om either shore, is 24 feet (73)
high. It is mn the wemtern edge of a ban1/4ith depths of 6 to 10
fathoms (11 0 to 18 3), which extends 1 miles eastward of it. …
A rock which dries 2 feet (0 m6) lies 3 cables, 075°, from the
lighthouse.
1/2 m
A patch, with a depth of 4 fathoms (8 2), and steep-to, lies 4
cables northward of the lighthouse.
Middle rocks, southmard ofmPedra Branca, are of a whitish colour,
from 2 to 4 feet (0 6 to 1 2) high, and stand on the southern edge
of the surrounding bank at 6 cables from the lighthouse.”
Even more clearly, the second edition (1934) notes:
“Pedra Branca – Light – Pedra Branca, 24 feet (7 m3) high, lies in
the middle of the eastern entrance to Singapore strait, and on the
southern side of Middle channel; it is situated on the western edge
of a bank with depths of less than 10 fathoms (18 m3).
A rock which dries 2 feet (0 6) lies about 3 cables eastward of the
1/2 m
lighthouse, and a 4 fathom (8 2) patch, which is steep-to, lies 4
cables northward of the lighthouse.
Middle rocks, from 2 to 4 feet (0 m 6 to 1 2) high, and of a whitish
colour, lie about half a mile southward of the lighthouse, and on
the south-western edge of the bank on which Pedra Branca
lies.”18[emphasis added]
418 Malacca Strait Pilot (2nd ed., 1934), at p. 213, supra note 5. See also Malacca Strait Pilot (3rd
ed., 1946), at p. 217, supra note 5.
– Page 197 –The subsequent editions of the Ma lacca Strait Pilot have similar
419
descriptions . These materials acknowledge th at Middle Rocks are located on
the same geographical bank as Pedra Branca.
9.50 It is Singapore’s position that mi nute rock formations (such as Middle
Rocks), lying in the vicinity of the main land (viz. Pedra Bran ca in the instant
case), cannot be treated as being capable of independent appropriation as islands.
9.51 In any case, it is not necessary to devote too mu ch time to this
issue. Even if Middle Rocks can be regarded as isla nds capable of autonomous
420
appropriation, quod non, as explained above , Malaysia is unable to show any
exercise of sovereignty over Middle Rocks to establish a title to them.
9.52 Inconclusion:
(a) Middle Rocks and South Ledge fo rm a single group of maritime
features with Pedra Branca, of which they are mere dependencies;
(b) They have been treated as such by both States and have always
appeared as such in relevant maritime charts;
(c) South Ledge is, in any case, a low-tide elevation, not susceptible as
such of independent appropriation while Middle Rocks are but a
resurgence of the main island;
(d) Both features clearly fall within Pedra Branca’s territorial sea;
(e) Singapore has constantly and c onsistently exercised sovereign
authority in the surrounding waters; and
(f) As sovereignty over Pedra Branca clearly belongs to Singapore, so
does sovereignty over Middle Rocks and South Ledge.
419 See the various editions of the Mal acca Strait Pilot, in AnSee also the China Sea
Directory, vol. I (1867), at p. 242, attached to this Memorial as Annex 68.
420 See Section I, Subsection (b), in this Chapter.
– Page 198 – SUBMISSIONS
For the reasons set out in this Memorial , the Republic of Singapore requests the
Court to adjudge and declare that:
(a) the Republic of Singapore has sovereignty over Pedra Branca /
Pulau Batu Puteh;
(b) the Republic of Singapore has sovereignty over Middle Rocks; and
(c) the Republic of Singapore has sovereignty over South Ledge.
Prof. Tommy Koh
Agent for the Government of the Republic of Singapore
– Page 199 –
Memorial of Singapore