COUNTER-MEMORIAL OF SINGAPORE
CHAPTER I — INTRODUCTION..........................................................................1
Section I. Overview of the Parties’ Pleaded Cases.........................................1
A. T HE BASIS OFM ALAYSIA ’S CLAIM .........................................1
B. S INGAPORE ’SC ASE.................................................................4
C. M IDDLE R OCKS AND SOUTH L EDGE .......................................8
Section II. Structure of this Counter-Memorial...............................................9
CHAPTER II — GEOGRAPHICAL SETTING AND
NOMENCLATURE..........................................................................................11
Section I. The Geographical Location of Pedra Branca...............................11
Section II. Malaysia’s Usage of the Term “Pulau Batu Puteh”.....................12
Section III. Malaysia’s Usage of the Term “Sultanate of Johor”....................14
CHAPTER III — HISTORICAL SETTING........................................................17
Section I. Notions of Sovereignty in Early Malay Polities ..........................18
Section II. The Johor-Riau-Lingga Sultanate – An Unstable and
Indeterminate Sultanate................................................................24
Section III. The Important Distinction Between Pre-1824 and
Post-1824 Johor............................................................................27
A. I MPACT OF THE ANGLO -D UTCH T REATY ON THE
JOHOR -R IAU-LINGGA SULTANATE .......................................28
1. The Anglo-Dutch Treaty Did Not Prescribe any
Demarcation Line in the Singapore Strait .....................29
2. The Anglo-Dutch Treaty Did Not Place Pedra
Branca in the British Sphere..........................................31
3. Donation by Sultan Abdul Rahman of Mainland
Territories in Peninsular Malaya to Sultan
Hussein ..........................................................................34
B. T HE DOMAIN OF THE STATE OF JOHOR .................................35
1. The Temenggong’s Domains.........................................36
2. The 1855 Treaty of Friendship and Alliance
between Sultan Ali and Temenggong Daing
Ibrahim...........................................................................37
Section IV. The Question of Applicable Law.................................................38
Section V. Conclusions..................................................................................39
– Page i – COUNTER-MEMORIAL OF SINGAPORE
CHAPTER IV — PEDRA BRANCA WAS
NEVER PART OF JOHOR.............................................................................41
Section I. Malaysia has Failed to Explain the Legal Basis of Her
Alleged Title to Pedra Branca......................................................42
Section II. Malaysia’s Historical Materials Do Not Support Her
Case..............................................................................................46
A. M ALAYSIA ’SREFERENCES TO H ISTORICALW RITINGS.........46
B. D UTCH C OMMUNICATIONS OF 1655 AND 1662.....................47
C. C RAWFURD ’SL ETTER OF10JANUARY 1824 AND
PRESGRAVE S REPORT OF 5 DECEMBER 1828.......................48
D. T HE ORD AWARD OF 1868AND THE REPORT OF THE
OHOR BOUNDARY COMMISSION OF 1898............................54
E. T HE SULTAN OFJOHOR ’SLETTER OF 20M ARCH 1886.........56
F. T HE 1843 INGAPORE F REEPRESS ARTICLE.........................59
G. T HE STATE OFPUBLIC KNOWLEDGE IN M ID-19TH
CENTURY SINGAPORE ...........................................................60
H. T HE TEMENGGONG H AD NO AUTHORITY O N ORIN
THE VICINITY OP EDRA BRANCA ........................................62
1. Suppression of Piracy by the Temenggong...................63
2. Temenggong’s Visit to Pedra Branca on 2 June
1850 ...............................................................................65
3. Alleged Activities of Orang Laut ..................................65
4. Church’s Letter of 7 November 1850............................67
5. Evidence that the Temenggong Lacked
Authority in the Vicinity of Pedra Branca.....................68
Section III.Conclusions..................................................................................71
CHAPTER V — RECAPITULATION OF THE BASIS OF TITLE TO
PEDRA BRANCA: THE TAKING OF LAWFUL POSSESSION
BY AGENTS OF THE BRITISH CROWN...................................................73
Section I. Introduction..................................................................................73
Section II. The Basis of Claim.......................................................................73
Section III.The Question of the Permission of Johor and the
Decision of the British Government on Pedra Branca
as the Location of the Lighthouse................................................82
Section IV. The Rejection of Butterworth’s Proposal and the
Sequel, 1845-1847 .......................................................................92
Section V. The Contention of the Malaysian Memorial that the
Letters of Permission Extended to Pedra Branca.........................95
ii COUNTER-MEMORIAL OF SINGAPORE
CHAPTER V (continued)
Section VI. Rebuttal by Singapore of Various Ancillary
Contentions in Chapter 6 of the Malaysian Memorial...............109
A. P LANS FOR THECONSTRUCTION OF A LIGHTHOUSE
AT THEENTRANCE OF THE STRAIT OFSINGAPORE..............109
B. T HE VISIT OF THTEMENGGONG TO PEDRA BRANCA
ON 2 UNE 1850..................................................................113
C. M ALAYSIAN CLAIMS THAT THEINAUGURATION OF
THE LIGHTHOUSE DID NOTNVOLVE A C ESSION OR
CLAIM OFS OVEREIGNTY ....................................................115
D. M ALAYSIAC ONTENDS THAT THEC ONSTRUCTION OF
THE HORSBURGH L IGHTHOUSE DID NOT CONSTITUTE
AN ACQUISITION OFSOVEREIGNTY.....................................120
Section VII. Conclusions................................................................................125
CHAPTER VI — THE PARTIES' CONDUCT CONFIRMS
SINGAPORE'S TITLE TO PEDRA BRANCA ..........................................129
Section I. Introduction – The Applicable Principles..................................129
Section II. — The Constitutional Developments and Official
Descriptions of Singapore and Malaysia Lend No
Support to Malaysia's Case........................................................133
A. M ALAYSIAS CONSTITUTIONAL DEVELOPMENTS D O
NOT POINT TO THEEXISTENCE OFM ALAYSIAN
SOVEREIGNTY OVER PEDRA BRANCA .................................134
B. S INGAPORE'SCONSTITUTIONAL AND LEGISLATIVE
DEVELOPMENTS ..................................................................137
1. The Straits Settlements and Johore Territorial
Waters Agreement, 1927.............................................137
2. Establishment of the Colony of Singapore, 27
March 1946..................................................................140
3. The Curfew Order of 1948 ..........................................142
4. Establishment of the State of Singapore, 1
August 1958.................................................................144
Section III.Singapore’s Conduct Confirms Singapore's Title to
Pedra Branca..............................................................................151
A. S INGAPORE'SLIGHT DUES LEGISLATION............................151
B. J.A.L.P AVITTSC OMMENTS R EGARDING PEDRA
BRANCA ..............................................................................154
C. P ULAU PISANG AND PEDRA BRANCA W ERE SUBJECT
TO DIFFERENTLEGAL R EGIMES..........................................156
iii COUNTER-MEMORIAL OF SINGAPORE
CHAPTER VI (continued)
D. T HEINDONESIA -INGAPORE T ERRITORIALSEA
A GREEMENT 1973 ..............................................................159
E. C ONCLUSIONS AS TOSINGAPORE SC ONDUCT .....................161
Section IV. Malaysia's Conduct Does Not Evidence Malaysia's
Title to Pedra Branca..................................................................163
A. M ALAYSIAN N AVAL CHARTS OF 1968................................165
B. T HE1968 PETROLEUM AGREEMENT WITH THE
C ONTINENTAL OILC OMPANY OF M ALAYSIA .....................167
C. T HED ELIMITATION OFM ALAYSIAS TERRITORIAL
S EA IN THA REAA ROUND PEDRA B RANCA .......................171
D. T HEINDONESIA -MALAYSIA CONTINENTAL S HELF
A GREEMENT OF 1969..........................................................172
Section V. Bilateral Conduct of the Parties Invoked by Malaysia
Has No Bearing on Title on Pedra Branca.................................174
A. T HESTRAITS SETTLEMENTS AND JOHOR
T ERRITORIALW ATERS AGREEMENT OF 1927.....................174
B. T HESTRAITS LIGHTSS YSTEM ............................................176
Section VI. Conclusions................................................................................180
CHAPTER VII — THE 1953 CORRESPONDENCE CONFIRMS
SINGAPORE’S TITLE..................................................................................181
Section I. Introduction................................................................................181
Section II. The Singapore Colonial Secretary’s Letter of 12 June
1953 is Not “Evidence of Singapore’s Recognition of
Johor’s Original Title” to Pedra Branca.....................................184
A. T HEIRRELEVANCE OF THE TREATIES OF1824 AND OF
THE 1927 AGREEMENT .......................................................187
B. T HER EFERENCE TOPULAU P ISANG AND THE
R ELATIONSHIPBETWEEN THE M ANAGEMENT OF A
L IGHTHOUSE AND THEISSUE OFSOVEREIGNTY ..................191
Section III.The Internal Singapore Correspondence Confirms
Singapore’s Ownership of the Island.........................................193
Section IV. Singapore Consistently and Constantly Reconfirmed
her Ownership of Pedra Branca.................................................195
Section V. The letter from the Acting State Secretary, Johor, of
21 September 1953 is a Clear Disclaimer of
Sovereignty Over Pedra Branca.................................................196
Section VI. Conclusions................................................................................199
iv COUNTER-MEMORIAL OF SINGAPORE
CHAPTER VIII — MIDDLE ROCKS AND SOUTH LEDGE........................201
Section I. Introduction................................................................................201
Section II. The Relationship Between Pedra Branca and the Two
Features......................................................................................202
Section III.The Conduct of the Parties Supports Singapore’s Title
over the Two Features................................................................209
A. A BSENCE OF ANY A CTS OFSOVEREIGNTY BY
MALAYSIA OVER THE TWO FEATURES................................209
B. S INGAPORE HAS CONSISTENTLY TREATED THE
THREE FEATURES AS AG ROUP ...........................................212
Section IV. Conclusions................................................................................214
CHAPTER IX — THE MAP EVIDENCE..........................................................215
Section I. Introduction................................................................................215
Section II. Analysis of the Maps Presented in Malaysia’s Map
Atlas...........................................................................................217
A. T HE EARLY M APSSUBMITTED BY M ALAYSIA ....................217
B. 19 TH CENTURY M APSSUBMITTED BY M ALAYSIA ..............219
C. 20 THC ENTURY M APSS UBMITTED BY M ALAYSIA..............221
1. Maps 15 to 31 and 35 to 36 of Malaysia’s Map
Atlas.............................................................................221
2. Malaysian Official Maps Constituting
Admission against Interest (Maps 32 to 34, 38,
39 and 41 of Malaysia’s Map Atlas)............................230
3. Other 20th Century Maps Submitted by
Malaysia (Maps 40 and 42 to 48 of Malaysia’s
Map Atlas)...................................................................232
Section III.Conclusions................................................................................236
SUBMISSIONS ......................................................................................................239
CERTIFICATION.................................................................................................241
APPENDIX A — THE REGIONAL HISTORY IN RELATION TO
JOHOR FROM 1511 TO 1963......................................................................243
LIST OF ANNEXES (VOLUME 2).....................................................................263
LIST OF ANNEXES (VOLUME 3).....................................................................266
LIST OF MAPS IN MAP ATLAS (VOLUME 4)...............................................269
v COUNTER-MEMORIAL OF SINGAPORE
LIST OF INSERTS (MAPS AND IMAGES)
Number Description Location
Insert 1 Sketch Map of the Vicinity of Pedra Branca after page 12
Insert 2 Places Mentioned in Chapter III & Appendix A after page 18
Insert 3 Sketch Map of the Vicinity of Pedra Branca, showing after page 34
shipping route
Insert 4 Map printed on p.46 of Carl Trocki’s Prince of Pirates after page 36
annotated with the approximate location of Pedra
Branca
Insert 5 Places Mentioned in Chapter IV after page 42
Insert 6 Map 10 of Malaysian Memorial Map Atlas (Chart after page 54
attached to the Ord Award, 1868) annotated to
highlight area of Johor-Pahang dispute
Insert 7 Map attached to the Johore Boundaries Commission after page 56
Report
Insert 8 Chart of the Vicinity of Horsburgh Lighthouse and after page 82
Adjacent Malayan Coast by J.T. Thomson,
Government Surveyor (1851)
Insert 9 Satellite photograph showing area covered by Insert 8 after page 100
(Source: IKONOS, Date: 15 October 2004)
Insert 10 Key Places Mentioned in Chapter VI after page 130
Insert 11 Malaysian Memorial’s Insert 22 annotated (in red) to after page 204
highlight area between Pedra Branca and Middle
Rocks
Insert 12 Diagram of the seabed surrounding Pedra Branca and after page 206
Middle Rocks
Insert 13 Shipping Accidents Investigated by Singapore (with after page 212
Year of Occurrence Indicated)
Insert 14 1962 Federation of Malaya “Admission against after page 230
Interest” Map
Insert 15 1974 Malaysian “Admission against Interest” Map after page 232
vii COUNTER-MEMORIAL OF
THE REPUBLIC OF SINGAPORE
CHAPTER I
INTRODUCTION
1.1 This Counter-Memorial is filed pu rsuant to the Court’s Order dated
1September 2003 fixing 25 January 2005 as the time-limit for the filing of the
Counter-Memorial of the Republic of Singapore (“Singapore”). It responds to
the Memorial of Malaysia of 25 March 2004.
Section I. Overview of the Parties’ Pleaded Cases
A. T HE BASIS OF M ALAYSIA’SC LAIM
1.2 Malaysia’s claim to Pedra Branca is based on an alle ged “original title”
held by the Johor-Riau-Lingga Sultanate(called the “Sultanate of Johor” in
Malaysia’s Memorial) before 1824, wh ich was subsequently transmitted to
Malaysia through an elaborate chain of “succession”.
1.3 According to Malaysia, this allege d chain of “succession” proceeded as
follows:
(a) the 1824 Anglo-Dutch Treaty sp lit the region into British and
Dutch spheres of influence and resulted in the division of the
Johor-Riau-Lingga Sultanate in to two successor entities – one
north of the Strait of Singaporthe other south of the Strait of
Singapore;
– Page 1 – (b) after the split, Pedra Branca beca me a territory of the northern
1
successor entity (i.e., the State of Johor);
(c) when the State of Jo hor joined the Malayan Union in 1946, Pedra
Branca became part of the territory of the Malayan Union;
(d) when the Malayan Union was re placed by the Federation of
Malaya in 1948, Pedra Branca becam e part of the territory of the
Federation of Malaya;
(e) when the Federation of Malaya was reconstituted as the Federation
of Malaysia in 1963, Pedra Branca became part of Malaysia.
1.4 Before responding in detail to each of the arguments raised by Malaysia
in support of her case, Singapore wishes to highlight some basic problems with
Malaysia’s claim. First, the contrived chain of “succession” put forth by
Malaysia is based both on an over-simp lified interpretation of the 1824 Anglo-
Dutch Treaty, and on a skewed and inacc urate account of th e history of the
region. As Singapore will show in Chapters III and IV below, neither the Anglo-
Dutch Treaty nor the historical events support Malaysia’s theory concerning this
chain of “succession”. Needless to say, if Malaysia fails to prove any one link in
this chain of “succession”, her entire case fails.
1.5 Secondly, and more importantly, Malaysia has merely asserted but has
failed to furnish any evidence to prove that Pedra Bran ca was part of the Johor-
1 Malaysia has, confusingly, referred to the northern successor entity also as the “Sultanate of
Johor”, thus obscuring the distinction betthis new entity and the former Johor-Riau-
Lingga Sultanate. This distinction will be explai ned in Chapter III below. To avoid confusion
between the Johor-Riau-Lingga Sultanate and the northern successor entity, Singapore will refer
to the latter as the “State of Johor” or “peninsular Johor”.
– Page 2 –Riau-Lingga Sultanate befo re 1824 or the State of Johor after 1824. In
paragraph 8 of her Memorial, Malaysia claims that:
“in 1844, at the time when considerat ion was given to the construction
of the lighthouse on Pulau Batu Puteh, that island was certainly part of
the territories subject to the sovereig nty of the Sultanate of Johor. This
certainty regarding Johor's title in 1844 derives from the fact that, from
th
the early 16 century, the territories of the Sultanate of Johor had 2
extended to the islands south of and around Singapore Strait.”
[emphasis added]
1.6 This reference to the “Sultanate of Johor” (called “Johor-Riau-Lingga
Sultanate” in Singapore’s Memorial) ex tending “to the islands south of and
around Singapore Strait” appears to lay the foundation for an argument based on
physical proximity. As Singapore will s how in Chapter IV, physical proximity
is irrelevant in this case.
1.7 Apart from this oblique invocation of physical proximity, Malaysia is
unable to produce any documentary record to support her case. Despite the
wealth of historical writings and material s publicly available on the history of
the Johor-Riau-Lingga Sultanate, Malaysia has, in a 157-page Memorial,
produced nothing more substantial than the gene ral descriptions given by two
3 4
British officials – John Crawfurd in 1824 and Edward Presgrave in 1828 – of
the “extent” of the Johor-Riau-Lingga Sultanate, neither of which mentions
Pedra Branca. As Singapore will show in Chapter IV, these two descriptions do
not and cannot support Malaysia’s claim to original title.
1.8 Apart from attempting to draw i ndirect presumptions from these two
general descriptions, Malaysia has also produced no eviden ce of either an
2 MM p. 4, para. 8.
3 MM p. 39, para. 80.
4 MM p. 40, para. 82.
– Page 3 –intention to claim Pedra Branca or any act of sovereign authority on or in
relation to the island, at any time, by the Johor-Riau-Lingga Sultanate, the State
5
of Johor or Malaysia herself. As this Court has stated in Minquiers and
Ecrehos:
“What is of decisive im portance, in the opinion of the Court, is not
indirect presumptions deduced from events in the Middle Ages, but the
evidence which rela6es directly to the possession of the Ecrehos and
Minquiers groups.”
B. S INGAPORE S C ASE
1.9 In contrast, Singapore’s case is based on well-documented and
uncontroverted acts of lawful posse ssion undertaken by Great Britain,
Singapore’s predecessor in title. Lawful possession of Pedra Branca was taken
by agents of the British Crown during the years 1847- 1851 for the purpose of
constructing a lighthouse. Possession wa s taken openly without seeking the
permission of any Malay ch ief or any other power in the region, and without
protest from any of them.
1.10 Although the idea of a lighthouse on Pedra Branca was first proposed by
private merchants, it was the British authorities who made the decision to
proceed with the project as a governme ntal undertaking. The project was
commenced, planned and executed entirely by the government – from
conducting the survey for a suitable site, the deci sion to proceed, the planning,
the construction, the funding (with more than 75% of the construction cost being
met from public revenue), the employment of workers, the supervision, right up
to the completion and the official opening of the lighthouse.
5
See paras.2.8 to 2.11 below for an explanation of the nomenclature “Johor-Riau-Lingga
Sultanate” and “State of Johor”.
6
Minquiers and Ecrehos [1953] ICJ Rep 47, at p. 57.
– Page 4 –1.11 Following the completion of the light house, Britain (and later Singapore)
exercised innumerable official acts of a legislative, administrative and quasi-
judicial character on and in relation to the island over a period of 150 years.
This continuous and uninte rrupted exercise of Stat e authority unequivocally
manifested the will and intention of Br itain and, subsequently, Singapore to
maintain title over Pedra Branca.
1.12 Britain’s (and Singapore’s) title over Pedra Branca was time and again
recognised and acknowledged by Malaysia and her predecessor, the State of
Johor. Such recognition included:
(a) Malaysia seeking permission from Singapore for her officials to
conduct activities around Pedra Branca;
(b) Malaysia requiring Singapore to cease flying the Singapore Marine
Ensign on the lighthouse on Pula u Pisang (which belongs to
Malaysia), but at the same time making no such requests with
respect to Horsburgh Lighthouse on Pedra Branca; and
(c) publishing a series of official maps from 1962-1975 which
attributed Pedra Branca to Singapore.
1.13 Not only did Malaysia and he r predecessor, the State of Johor,
consistently recognise and acknowledge Si ngapore’s title, in 1953, the State of
Johor expressly, unconditionally and uneq uivocally disclaimed title to Pedra
Branca.
– Page 5 –1.14 In her Memorial, Malaysia has sought to deny Singapore’s title by
arguing that:
(a) under the Crawfurd Treaty of 1824 only the island of Singapore
7
and all the islands with in 10 geographical miles from its coasts
were ceded to the British, and Pedra Branca is located outside this
zone;
(b) Britain (Singapore’s predecessor) sought and obtained in 1844 the
9
permission of “Sultan” Ali and the Temenggong to construct the
lighthouse on Pedra Branca; 10
(c) under international law, the me re construction and operation of a
lighthouse does not confer sovereignty upon the lighthouse
operator: a fortiori, when the lighthouse, as in the case of Pedra
Branca, was built and operated with the permission of the
territorial sovereign; 11
(d) Singapore’s unilateral conduct and the bilateral conduct of the
parties during this period (e.g., Si ngapore’s boundary treaties with
Johor in 1927 and with Indonesia in 1973) show that Singapore did
7 One geographical mile is for all practical purposes equivalent to one nautical mile.
8
MM p. 35, para. 72(d); p. 50, para. 103(c).
9
The “Temenggong” was traditionally the third highest official in the Johor-Riau-Lingga
Sultanate. By the mid-19th century, the Temenggong had become the de facto ruler of
mainland Johor. See Appendix A to this Counter-Memorial and Chapter III of Singapore’s
Memorial (in particular, paras. 3.1-3.5) for a more detailed explanation of the role and function
of the Temenggong.
10
MM p. 4, para. 9; p. 81, paras. 177(c) and (d).
11 MM p. 5, para. 10.
– Page 6 – not regard herself as sovereign over Pedra Branca . In contrast,
Malaysia has exercised State authority over Pedra Branca,
including the publication of ma ps showing Pedra Branca as
belonging to Malaysia. 12
1.15 Malaysia’s arguments run contrary to the evidence. As Singapore has
shown in her Memorial and will further demonstrate in this Counter-Memorial:
(a) the Crawfurd Treaty of 1824 is irrelevant. It does not circumscribe
British competence in acquiring othe r territories in the region.
Singapore’s claim is not based on this Treaty but on Britain’s
lawful taking of the island in 1847;
(b) British officials did not seek pe rmission from any local rulers for
their activities on Pedra Branca;
(c) contrary to Malaysia’s contentio n, this Court has recognised that
the construction of navigational aids “can be legally relevant in the
13
case of very small islands”. In any event, Singapore’s activities
on the island are not confined to the operation of the lighthouse,
but include a vast range of othe r acts of State authority, including
legislative, administrative and quasi-judicial acts, performed over a
period of 150 years on the island and in the waters around it;
12
MM p. 5, para. 11.
13
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), ICJ Judgment of 16 Mar 2001, at para. 197. See also Sovereignty over Pulau Ligitan
and Pulau Sipadan (Indonesia/Malaysia), ICJ Judgment of 17 Dec 2002, at para. 147.
– Page 7 – (d) in contrast, not only have Ma laysia and her predecessors been
unable to show a single example of the exercise of authority over
Pedra Branca, they have repeat edly recognised and accepted
Singapore’s title through their public acts and also by publishing
official maps attributing Pedra Br anca to Singapore. In particular,
in 1953, Johor officially disclaimed title to Pedra Branca.
C. M IDDLE R OCKS AND S OUTH LEDGE
1.16 As for Middle Rocks and South Ledg e, Malaysia claims that these two
features do not constitute a group with Pe dra Branca. Hence, even if Singapore
had title over Pedra Branca, she would not have title over these features as she
14
did not advance any separate claim to these features prior to 1993. This
argument is both illogical and untenable under international law.
1.17 Singapore’s case is that title over these rocks, both of which lie within the
territorial sea of Pedra Branca, natu rally follows from Singapore’s title over
Pedra Branca. In fact, these features have consistently been treated by both
Malaysia and Singapore as a group. Furt hermore, Malaysia has not exercised a
single act of authority on or in relation to Middle Rocks and South Ledge, while
Singapore is able to point to various offi cial acts undertaken on or in relation to
these two features.
14
MM p. 131, para. 291; p. 134, para. 300.
– Page 8 – Section II. Structure of this Counter-Memorial
1.18 Singapore’sCounter-Memor ial comprises 9 chapters. Chapter II
discusses the geographical setting and no menclature, and responds to Chapter 3
of Malaysia’s Memorial.
1.19 Chapter III deals with the historical se tting and points out various
inaccuracies and over-simplifications in Malaysia’s pr esentation of the regional
history in Chapter 4 of Malaysia’s Memorial.
1.20 Chapter IV responds to Chapter 5 of Ma laysia’s Memorial, by showing
that Malaysia’s claim of an “original title” is not borne out by the historical
materials.
1.21 Chapter V recapitulates the legal basis of Singapore’s title to Pedra
Branca – i.e., the lawful taking of possession by agents of the British Crown
without seeking permission from any local rule rs and without protest from any
other powers. The Chapter also responds to the erroneous claim, in Chapter 6 of
Malaysia’s Memorial, that the rulers of Johor gave permission for the British to
build a lighthouse on Pedra Branca.
1.22 Chapter VI responds to Chapter 7 of Malaysia’s Memorial by
demonstrating that the Parties’ conduct unequivocally supports Singapore’s title
to Pedra Branca.
1.23 Chapter VII rebuts Malaysia’s argument th at the disclaimer of title by
Johor on 21 September 1953 “does not refer to sovereignty” by showing that the
correspondence can only rela te to the question of sove reignty, and that Johor’s
letter of 21 September 1953 is an un conditional and binding disclaimer of
sovereignty over Pedra Branca.
– Page 9 –1.24 Chapter VIII responds to Malaysia’s ar guments on Middle Rocks and
South Ledge in Chapter 8 of her Memori al, and demonstrates that these two
minor features lie within Pedra Branca’s territorial sea and therefore share a
common destiny with Pedra Branca.
1.25 Chapter IX discusses the maps submitted by Malaysia in Chapter 9 of
her Memorial and shows that, apart fro m certain official maps published by
Malaysia which expressly identify Pedra Branca as belonging to Singapore, the
maps submitted by Malaysia are irrelevant.
1.26 Although the most pertinent aspects of the historical setting are explained
in Chapter III of this Counter-Memorial, Singapo re has provided, for
background information, a more detailed account of the regional history in
Appendix A.
1.27 Also attached to th is Counter-Memorial are 57 annexes (Volumes 2 and
3), and a Map Atlas containing 31 maps (Volume 4). In addition, three copies of
certain documents referred to in this Counter-Memorial but not annexed (or not
annexed in full) have been deposited with the Registrar.
– Page 10 – CHAPTER II
GEOGRAPHICAL SETTING AND NOMENCLATURE
2.1 In Chapter 3 of her Memorial, Mala ysia seeks to present arguments in
support for her case based on the geographi cal setting. Malaysia also seeks to
bolster her case by asserting that the “n ame of Pulau Batu Puteh (‘White Rock
15
Island’) [has] been known for centuries”. In this Chapter, Singapore will
address these points. For easy reference, Insert 1 (Sketch Map of the Vicinity of
Pedra Branca) overleaf shows the location of various places mentioned in this
Chapter.
Section I. The Geographical Location of Pedra Branca
2.2 Malaysia has suggested that Pedra Branca lies nearer to the Malaysian
mainland than to the ma in Island of Singapore, 16 implying a more natural
connection with Malaysia. However, she omits to me ntion two other important
facts. First, Pedra Branca is geographically nearer to the island of Bintan
(Indonesia) than to the Malaysian mainland. Malaysia has sought to obscure the
distance between Pedra Branca and Bintan by stating vaguely that “Pulau Bintan
17
is less than 10nm from Pulau Batu Puteh”, even though she has taken the
trouble to give the exact distance between Pedra Branca and the Malaysian
18
mainland.
15 MM p. 9, para. 25.
16 MM p. 3, para. 6; p. 13, para. 32; p. 129, para. 288.
17 MM p. 11, para. 28.
18 MM p. 13, para. 32.
– Page 11 –2.3 Secondly, geomorphologically, only a body of relatively shallow water,
mainly within the 20 to 30 metres depth range, lies between Pedra Branca and
Indonesia, whereas Pedra Branca is separated from the Malaysian mainland by a
deep water channel, which is also the main shipping cha nnel, with depths
ranging from 50 metres to more than 70 metres. 19 As Malaysia herself has
declared, “the depths in Si ngapore Strait vary from 20 metres to 95 metres but
are mainly in the 30-40 metre range”. 20 Thus, the waters between Pedra Branca
and Indonesia are among the shallowest in the Strait while those between Pedra
Branca and Malaysia are among the deepest in the Strait. These facts
demonstrate that any argument based on proximity is not supported by the
geography.
2.4 Malaysia has also sought support from some old maps which she claims
21
depict Pedra Branca as closely a ssociated with the Johor mainland. In reality,
the early cartography shows otherwise: th at Pedra Branca stands clearly apart
from, and without any hint of physical connection with the Malaysian mainland.
A full discussion of these maps is found in Chapter IX of this Counter Memorial.
Section II. Malaysia’s Usage of the Term “Pulau Batu Puteh”
2.5 Malaysia has stated that:
“the Malay ‘Pulau Batu Puteh’ (‘White Rock Island’) is rendered ‘Pedra
Branca’ in Portuguese, ‘Pierre Blanche’ in French, ‘ Pia22hiao ’ in
Chinese. All these names have exactly the same meaning...”
19 See Report on Hydrographic Survey around the Waters of Pedra Branca, Middle Rocks and
South Ledge (2003) (SM Vol. 7, Annex 201).
20 MM p. 11, para. 31.
21 MM p. 137-138, para. 307.
22 MM p. 3, para. 5.
– Page 12 –The use of the word “rendered” in the above statement is incorrect and
misleading insofar as it implies that th e Malay name “Pulau Batu Puteh” pre-
existed the Portuguese name “Pedra Bran ca”, and that the Portuguese name
“Pedra Branca” was simply a “rendition” of the Malay name “Pulau Batu
Puteh”. Equally incorrect is Malaysia’s statement that the “name of Pulau Batu
Puteh (‘White Rock Island’) [has] been known for centuries”. 23 While the name
of this island (i.e., “Pedra Branca”) has been known for centuries, it is certainly
not the case that the island has been known as “Pulau Batu Puteh” for centuries.
2.6 When the Portuguese started charti ng the maritime features in the region
in the 16th century, they used Malay pilots to identify the islands by their local
names, which they would then also adopt. As stated by Luis Filipe Thomaz in
his study of Portuguese cartography:
“The whole Portuguese toponymy of th e Far East and South-East Asia,
is Malay... Even common nouns such as luça or nuça (< nusa) and pulo
(< pulau)... have been adopted by the Portuguese and appear in maps.
Malay place-names tend even to predominate over local names... It is
interesting to note that beyond the boundaries of the world frequented by
24
Malay seafarers, Malay toponymy fades again...” [italics in original]
If there had been an established local name for Pedra Branca, the Portuguese
would have adopted it. In stead, they gave it the Port uguese name of “Pedra
Branca”. In contrast, most insular features in the region were referred to by their
local Malay names in many Western maps dating back to the 16th century (for
23 MM p. 9, para. 25.
24 Thomaz L.F., The Image of the Archipelago in Portuguese Cartography of the and Early
17thCenturies , in Kratoska P.H. (edSoutheast Asia: Colonial History , Vol. 1 (2001), at
pp. 46-47, relevant extracts of which are attached to this Counter-Memorial as Annex 56. Judge
Huber, in the Island of Palmas Case, also accepted that it was customary for European explorers
to adopt native names for islands where such names were known to exist. See Island of Palmas
Arbitration (Netherlands v. U.S.) (1928) 2 RIAA 829, at p. 845.
– Page 13 –example, Pulau Pisang was rendered Pulo Picaon in Portuguese while Pulau
Tioman was rendered Pulo Timaõ). 25
2.7 The foregoing provides strong indication that there were no Malay names
in use for Pedra Branca when the Portuguese first arrived. The Malays and their
rulers simply did not have sufficient interest in Pedra Branca to give it a Malay
name, much less claim it as a part of th eir dominions. This historical reality
contradicts Malaysia’s case based on “o riginal title”, and is consistent with
Singapore’s historical analysis and arguments in Chapters III and IV below.
Section III. Malaysia’s Usage of the Term “Sultanate of Johor”
2.8 In Singapore’s Memorial, the term “Johor-Riau-Lingga Sultanate” is used
to describe the sultanate established by Sultan Mahmud I after he fled Malacca
in 1511. 26 Many historians employ the co mposite label “Johor-Riau-Lingga”
because the seat of the Sultan shifted amongst Johor, Riau and Lingga at various
times. 27 The Johor-Riau-Lingga Sultanate is sometimes referred to simply as the
“Johor Empire” or the “Johor Sultanate ”. Malaysia has, in her Memorial,
referred to the Johor-Riau-Lingga Sultanate as the “Sultanate of Johor”.
25
See e.g., Singapore Counter-Memorial Map Atlas, Map No. 1 (Map of Asia from Linschoten’s
Itinerario, 1595), Map No. 2 (Map by Willem Lodewijcksz, 1598) and Map No. 3 (Map of the
Molucca Islands by Petrus Placius, 1617).
26
See note 602 in Appendix A regarding the various Sultans named “Mahmud” referred to in this
Counter-Memorial.
27
Trocki C., Prince of Pirates: The Temenggongs and th e Development of Jo hor and Singapore
1784-1885 (1979), relevant extracts of which are att ached to this Counter-Memorial as Annex
50. See in particular, at p. 1, note 1:
“The capital of the Johor kingdom was moved about twenty times between 1512 and
1682, generally because of Portuguese or Achehnese attacks or because of the
installation of a new ruler. From 1513 to 1526, it was at Bentan (Riau). From 1526 to
1618, it was at various sites on the Johor River. In 1618, it was moved to Lingga and
then to Tambelan. From 1637 to 1673, it was again located at various places on the
JohorRiver,generallyBatuSawar. ItwasagainatRiauin1673-85. Itwasbackon
the Johor River at Kota Tinggi from 1688 to 1700. From 1722 to 1819, it was at Riau.”
– Page 14 –2.9 The 1824 Anglo-Dutch Treaty led to the dismemberm ent of the Johor-
Riau-Lingga Sultanate – with Riau-L ingga within the Dutch sphere and
mainland Johor (in the Malay Peninsul a) within the British sphere. In
Singapore’s Memorial, this new political entity in the Ma lay Peninsula is
referred to as the “State of Johor”, “p eninsular Johor” o r, simply, “mainland
Johor”. This is an entirely different entity from the former Johor-Riau-Lingga
Sultanate. As historian Carl Trocki puts it:
“The term ‘Johor’ is used by historians to refer to two different states –
an old one and a new one. Old Jo hor was the maritime Malay empire
that succeeded Malacca. It began in 1512 when the defeated Sultan of
Malacca established a capital on th e Johor River, and gradually
disintegrated in the ei ghteenth century... Modern Johor occupies the
southern tip of the Malay Peninsula and is one of the eleven states of the
Federation of Malaysia. It dates from the mid-nineteenth century... The
[temporal] dividing line between the two, as far as one can make out,
was the foundation of Singapore by Sir Thomas Stamford Raffles in
28
1819.” [footnotes omitted]
2.10 Malaysia has, however, employed the term “Sultanate of Johor” to
describe this new political entity, as if the old Johor-Riau-Lingga Sultanate and
29
the new State of Johor were the same political entity. Malaysia’s approach in
obscuring the distinction between the tw o political entities woul d appear to be
tactical – to suggest, without proof, a continuous and uninterrupted chain of state
succession, thereby making it unnecessary to show how and when the old
Sultanate’s alleged “original title” came to be transmitted to the State of Johor.
28
Ibid, at p.1 – For the nature of the “maritime Malay empire” described as “old Johor” in this
passage, see below, at para. 3.15. As for the phrase “eleven states”, this is a reference to the 11
states in the Malay Peninsula. The Federation also includes two states in Borneo.
29
See e.g., MM p. 24, para. 51. See also MM p. 30, para. 61 (where the term “Sultanate of Johor”
is used to describe the 16th century entity), compared with para. 62 (where the same term is
used to describe the 19th century entity).
– Page 15 –2.11 To avoid any confus ion between these two po litical entities, Singapore
will, in this Counter-Memorial, continue to use the nomenclature that she has
used in her Memorial:
(a) “Johor-Riau-Lingga Sultanate” is used to describe the sultanate
established by Sultan Mahmud I after he fled Malacca in 1511;
(b) “State of Johor”, “peninsular J ohor” or “mainland Johor” are used
to describe the new political entity on the Malay Peninsula after
1824.
– Page 16 – CHAPTER III
HISTORICAL SETTING
3.1 In Chapter 4 of her Memorial, Mala ysia has provided an account of the
regional history in an attempt to support her claim to an “original title” to Pedra
Branca. Malaysia’s account contains in accuracies, inappropriate generalisations
and material omissions, some of which will be highlighted and addressed by
Singapore in this Chapter. By way of supplement, Singapore has set out, in
Appendix A to this Counter-Memorial, a more detailed account of the regional
history to give the Court a better appr eciation of the hist orical context and
developments.
3.2 Section I of this Chapter examines the notion of sovereignty prevailing in
traditional Malay polities and shows that its most significant feature was the
allegiance of inhabitants and not the cont rol of territory as such. Section II
shows that, contrary to Malaysia’s as sertion of stability and continuity, the
extent and influence of th e Johor-Riau-Lingga Sultanate was unstable and in a
constant state of flux, and that it wa s no longer a significant power by the
beginning of the 19th century. Section III discusses the key events of 1824 and
the dislocations and discontinuities they created in the Malay world. Section IV
puts the rest of this Chapter in perspective by discussing Singapore’s position on
the question of applicable law. The clear conclusion that emerges is that,
whether assessed under classical principles of international law or under regional
custom of allegiance, Joho r had no prior title to Pedra Branca when the British
took possession of the island in 1847.
3.3 As the discussion in this Chapter w ill demonstrate, what is of decisive
importance in this case “is not indirect presumptions deduced from events in the
– Page 17 –Middle Ages, but the eviden ce which relates directly to the possession of” the
30
features in dispute.
Section I. Notions of Sovereignty in Early Malay Polities
3.4 The consensus among modern scholar s of Malay history is that, unlike
modern European States, the concept of “sovereignty” in traditional Malay
polities was based, not on th e control of territory, bu t on the allegiance of
inhabitants. For example, historian Nicholas Tarling wrote:
“The idea that the ambit of a stat e was geographically fixed was rarely
accepted. What counted in Southeast Asia, sparse in population, was
allegiance. Whom, rather than what , did the state comprise?... What
concerned a ruler was the people not the place.” 31
Historian Leonard Andaya has also written:
“Historians have long accepted the truism that in Southeast Asia it is not
the control over land but people wh ich is the crucial element in
statecraft.”32
The number of historians wh o have made the same point in one way or another
is formidable. 33 Their conclusions are further reinforced by the findings of
30
Minquiers and Ecrehos, supra note 6, at p. 57.
31
Tarling N., Nation and States in Southeast Asia (1998), at p. 47.
32 Andaya L., Writing a History of Brunei in Barrington B. (ed.), Empires, Imperialism and
Southeast Asia: Essays in Honour of Nicholas Tarling (1997), at p. 201.
33 These are four examples:
(a) WheaP t,ye Impressions of the Malay Peninsula in Ancient Times (1964), at p. 183:
“Boundaries were unknown but frontiers – wastes of uninhabited forest separating
tracts of more or less permanent settlement – fluctuated constantly, and states
underwent a continual process of absorption and fission as charismatic rulers competed
for control over labour in the villages scattere d peripherally around the capitals of the
city-states.”
– Page 18 –Malay specialists in other disciplines such as sociology and anthropology. A
useful summary of their findings is provi ded by Jane Carste n in her study of
boundaries in Malaysia:
“The traditional Southeast Asian state, or negeri, was a different kind of
entity from the modern nation-state. Its borders were shifting and
permeable... Anderson, Tambiah ( 1976), Wolters (1982), Errington
(1989) and others have discussed the nature of the traditional Southeast
Asian polity. In Southeast Asia the traditional state was defined by its
centre not by its boundaries... control over people was of greater
34
significance to the ruler than control over land...”
3.5 This difference between the European concept of territorial sovereignty
and traditional Malay notions of “sovereignty” is clearly illustrated by the
dislocation experienced by the Malay rulers when the British began more active
(b) BarnTa.d., Multiple Centres of Authority: Society and environment in Siak and
eastern Sumatra, 1674-1827 (2003), at p. 4:
“The fluidity – the lack of set borders, parameters, or standards – in Siak society is
captured in the narrative of the Hikayat Siak.”
[Note: The Siak Sultanate was based in Sumatra and was a client state of Johor in the
17th century, and broke away in the 18th century to become one of the rivals of the
Johor Sultanate during the late 18th century.]
(c) WoOlt.rs., History, Culture, and Region in Southeast Asian Perspectives (1999), at
p. 131:
“... Malay texts never emphasize territory bu t only the center of power, the center’s
outreach being vaguely described in terms of river basins.”
[Note: Wolters was surveying the current literatu re dealing with issues of historical
geography of the Srivijaya Kingdom, which was based in Sumatra, and citing studies
showing the parallels between the Srivijaya Kingdom and later Malay rulers.]
(d) LeDw.,is Jan Compagnie in the Straits of Malacca 1641-1795(1995), at p. 9:
“Land was of little consequence in reckoni ng status. Population and wealth were the
denominators – and wealth often dictated population, for Malay demography was
notoriously fluid...”
34
Carsten J., Borders, Boundaries, Tradition and State in the Malaysian Periphery , in Wilson
T.M. & Donnan H. (eds.), Border identities: Nation and state at international frontiers (1998),
at pp. 217-222.
– Page 19 –interference in the affairs of the Malay states in the late 19th and early 20th
centuries. Historians Barbara and Leonard Andaya wrote:
“While Malays conceived of a ruler’s authority in terms of his control
over people and resources , the British related it to control over land .
As Malay rulers were progressively drawn under the British umbrella,
there was normally a period of sometimes painful negotiation by which
colonial administrators establishe d the territorial boundaries between
neighbouring states. Sometimes these settlements simply made ancient
understandings explicit, but on other occasions decisions were based on
compromises that had little to do with local loyalties; several offshore 35
islands, for example, were ‘s hared’ between Johor and Pahang. ”
[emphasis added]
3.6 This is a point which Malaysia is familiar with, having dealt with it in her
written and oral pleadings in the Case Concerning Sovereignty over Pulau
Ligitan and Pulau Sipadan (“the Indonesia/Malaysia case”). In fact, in rebutting
Indonesia’s claim that the Sultanate of Bulungan held historic title to the
36
disputed islands, Malaysia submitted a study by Professor Houben, in which he
adopted the following instructive passage from A.C. Milner:
“Just as the Malay state lacked governmental or legal structures, so it
differed from Western states in its geographical definition. Territorial
borders were often unknown... The actual location of the Malay state, in
fact, appears to have been a matter of relatively little importance... The
Malay word often translated loos ely as ‘government’, ‘state’ or
‘kingdom’ was kerajaan... [K]erajaan connotates little more than ‘being
37
in the condition of having a Raja’.” [emphasis added]
3.7 It is therefore noteworthy that Malaysia has completely omitted to
acknowledge, much less discuss, this hist orical fact in her Memorial for the
present case. But Malaysia’s deaf ening silence about this matter is
35 Andaya B.W. & Andaya L., A History of Malaysia (2nd ed., 2001), at p. 204.
36 This study was submitted by Malaysia as part of her Counter-Memorial in the
Indonesia/Malaysia case.See ICJ Pleadings, Sovereignty over Pulau Ligitan and Pulau
Sipadan (Indonesia/Malaysia), Counter-Memorial of Malaysia, at Appendix I.
37 Milner A.C., Kerajaan: Malay Political Culture on the Eve of Colonial Rule(1982), at pp. 8-9.
– Page 20 –understandable – it presents an insurmountable obstacle to Malaysia’s claim that
“Pulau Batu Puteh had always been under the sovereignty of Johor” 38 in two
respects.
3.8 First, the emphasis in the traditiona l Malay sultanate on personal
allegiance of inhabitants as opposed to control of land implies that it was
common to find territory which was not re garded as belonging to anyone. As
one expert on early South East Asian cartography puts it:
“Whereas European eyes presumed that a country’s possessions
extended as far as its border with its neighboring country, in Southeast
Asia there were usually spaces in-between, ‘empty’ land, which was not
part of any kingdom and which sometimes served as a neutral buffer.” 39
[emphasis added]
Therefore, even if, as alleged by Mala ysia, “the Sultanate of Johor extended
north and south of Singapore Strait and included many islands in and around the
Strait”,40 it does not necessarily m ean that every single rock and island in or
around the Strait would have belonged to the Sultanate . Similarly, Crawfurd’s
and Presgrave’s descriptions of the Jo hor-Riau-Lingga Sultanate, which state in
general language that the Sultanate extended from Point A to Point B, must be
read and understood against this background. 41 Malaysia has relied heavily on
these two descriptions in support of he r case based on original title, but reliance
on such general descriptions does not excuse Malaysia from having to show how
her predecessors have acquired original title to Pedra Branca.
38 MM p. 37, para. 73, emphasis added.
39 Suarez T., Early Mapping of Southeast Asia (1999), at p. 20.
40 MM p. 15, para. 36.
41 For detailed treatment of these two descriptions,see below, para. 4.20 et seq.
– Page 21 –3.9 Secondly, the essential element of pers onal allegiance means that, in
many cases, the only reliable way of find ing out whether a particular territory
could be said to belong to a particular ruler was to obtain the views of the
inhabitants as to who they regarded as being their ruler. A number of examples
documented during this period illustrate this:
(a) In a letter dated 1 October 18 24, John Crawfu rd, the ranking
British official in Singapore, in formed the Government of India
that the islands of Carimon and Bulang belonged to the
Temenggong of Johor, and stated that:
“The Carimon Islands and the Malayan Settlement of Bulang are
two of the principal possessions of the Tumongong of Johore or
Singapore, and his claim to them is not only allowed by the rival
Chiefs but more satisfactorily ascertained by the voluntary and
cheerful allegiance yielded to him by the inhabitants. ”42
[emphasis added]
(b) In 1851, J.T. Thomson published an account of his 1849 official
survey of the east coast of Johor, Pahang and adjacent islands. In
that account, Thomson found that he could not accurately ascertain
the exact boundary be tween Johor and Pahang and that he was
only able to ascertain that a particular group of islands
“undoubtedly belongs to Paha ng as all the inhabitants
acknowledge the Raja as their chief and pay tribute annually.” 43
42 See Letter from Crawfurd J. (Resident of Singapore) to Swinton G. (Secretary to the
Government in India), dated 1 Oct 1824, attached to this Counter-Memorial as Annex 4.
43 Thomson, J.T., Description of the Eastern Coast of Johore and Pahang, and Adjacent Islands, 5
Journal of the Indian Archipelago and Eastern Asia 83 (1851), at p.84. The entire article is
attached to this Counter-Memorial as Annex15 (hereafter, “Thomson’s Description of the
Eastern Coast”).
– Page 22 –3.10 For this reason, all detailed 19th cen tury descriptions of Johor made by
contemporary officials naturally included only inhabited islands and continental
territories: see, for example, the list of islands attached to Presgrave’s report of
44
1828. Another example is the list in Begbie’s The Malayan Peninsula, written
45
in 1834. Neither list mentions Pedra Branca.
3.11 Whetherexaminedwith in the local context of allegiance or under
classical international law principles , Malaysia’s claim to original title
completely fails. As Pedra Branca was un inhabited, there were no people on it
from whom allegiance could be sought by any ruler. No Malay ruler would have
taken an interest in claiming Pedra Branca as territory, and none did. This view
is supported by the complete absence of any mention of Pedra Branca (or “Pulau
Batu Puteh”, as Malaysia prefers to cal l it) in any Malay texts, correspondence
or historical material. Furthermore, Malaysia has failed to demonstrate any
intention or will to act as sovereign or any actual exer cise or display of State
authority over Pedra Branca . These factors present an insuperable obstacle in
the way of any claim by Malaysia that “Pulau Batu Puteh had always been under
the sovereignty of Johor”. 46
44 Malaysia has omitted this list of territories fr om Annex 27 of her Memorial, even though it is
mentioned in Paragraph 4 of Presgrave’s report and forms an integral part of the report.
Singapore has attached the list to this Counter-Memorial as Annex 7.
45 Begbie, P.J., The Malayan Peninsula (1834, reprinted 1967), at pp.269-272, attached to this
Counter-Memorial as Annex 8.
46 MM p. 37, para. 73, emphasis added.
– Page 23 –3.12 Aware of the insurmountable difficulties she faces with this aspect of her
case, Malaysia is compelled to repeatedly assert that Pedra Branca was “used as
47
part of the coastal economy”. But she has produced no proof whatever to show
such usage. In any event, it is a well established prin ciple of international law
that activities by private individuals do not confer title to territory. As the Court
observed in the Indonesia/Malaysia case:
“... activities by private persons cannot be seen as effectivités if they do
not take place on the basis of offici al regulations or under governmental
authority.”48
In the present case, Malaysia has produce d no evidence whatever that there was
any governmental involvement in any of these alleged activities.
Section II. The Johor-Riau-Lingga Sultanate – An Unstable and
Indeterminate Sultanate
3.13 Malaysia has sought to give the impression that the Johor-Riau-Lingga
Sultanate was a stable and unchanging kingdom throughout its existence and that
it was a major power even in the modern period. In her Memorial, Malaysia
argues:
“Despite frequent incu rsions by the Portuguese and subsequently, the
Dutch, the Siamese and the British, and notwithstanding frequent
internal power struggles, the Sultanate of Johor was able to remain a
major power in the Malay region and to survive into the modern
period.” [emphasis added]
47 MM p. 37, para. 75.
48 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malays, supra note 13, at
para. 140.
49 MM p. 17, para. 37.
– Page 24 –This attempt by Malaysia to exaggerate the stability and continuing power of the
Johor-Riau-Lingga Sultanate is clearly aimed at shoring up Malaysia’s weak
case based on an alleged “original title”. This Counter-Memorial will however
show that:
(a) the political fortunes of the Joho r-Riau-Lingga Sultanate and the
extent of its influence were in a constant state of flux; and
(b) by the beginning of the 19th century, the Johor-Riau-Lingga
Sultanate was no longer a significant power in the region.
3.14 To provide the proper historical context, Singapore has included with this
Counter-Memorial a detailed account of the regional history in Appendix A.
The key events described in Appendix A can be summarised as follows:
(a) The Johor-Riau-Lingga Sultanate led a precarious existence for
most of the 16th century, enjoyed a brief period of prosperity from
the mid-17th century, but lost its power and influence at the end of
the reign of Sultan Mahmud II (1685-1699) 50 as a result of internal
divisions. Historian Leonard Andaya has recorded that:
“In just two years Johor had changed from the
acknowledged leading entrepot in the Malay world to a
small backwater port.” 51
(b) Sultan Mahmud II was assassinated in 1699. This act of regicide
ended the Malacca royal line and was a catastrophic event in
Malay history. It caused many client states to break away; 52
50
See note 602 in Appendix A regarding the various Sultans named “Mahmud” referred to in this
Counter-Memorial.
51
Andaya L., The Kingdom of Johor, 1641-1728 (1975), at p.184, writing about the years 1697-
1699.
– Page 25 – (c) In 1784, the Dutch captured Ri au, the then capita l of the Johor-
Riau-Lingga Sultanate, following which the Sultan signed a treaty
53
ceding sovereignty over the Sultanate to the Dutch.
(d) In 1795, the defeat of the Dutch in the French Revolutionary Wars
led to the British taking over Malacca from the Dutch and also
removing the Dutch garrison from Riau. 54 In 1818, the British
returned Malacca to th e Dutch who then return ed to Riau in the
same year and renewed the 17 84 treaty with the Johor-Riau-
Lingga Sultanate. Concerning th ese tumultuous years, historian
R.O. Winstedt has commented:
“Naturally during all these years the old mainland 55
kingdom of Johor had sunk into insignificance.”
(e) In 1812, Sultan Ma hmud III of Johor died , leaving behind two
sons, Hussein and Abdul Rahman , neither of whom were born
from royal wives. Taking advantage of the absence of Hussein,
Abdul Rahman assumed the throne. Hussein, lacking any forces to
52
Andaya B.W. & Andaya L., supra note 35, at pp.78-79.
53
Lewis D., supra note 33, at p.110 (“The resulting treaty ended Johor’s independence”) and at
p. 113 (“[The Dutch ] claimed the territories of Johor and Pahang by right of conquest”).
Andaya B.W. & Andaya L., supra note 35, at p.108 (“Riau-Johor was to become a Dutch
vassal state, a leenrijk, where Malays would rule only at the VOC’s i.e. Dutch East India
Company’s] pleasure”). Winstedt R.O., A History of Johore (1932, reprinted 1992), at p.74
(“On 10 November a formal treaty was signed. The Sultan and chiefs acknowledged that the
kingdom and port had become by right of war the property of the Dutch, which the Malays
would hold as a fief under certain conditions.” - italics in original).
54 Andaya B.W. & Andaya L., supra note 35, at p. 112.
55
Winstedt R.O., supra note 53, at p. 75. See also Andaya B.W. & Andaya L., supra note 35, at
p.109 (“The catastrophic effects of these year s, when the Malay ruler exercised little authority
and the economy was moribund, ended any hopes that Riau [i.e.,the seat of the Johor-Riau-
Lingga Sultanate] might once again assume its former position in the Malay world.”).
– Page 26 – support his claim, retired and “lived in obsc urity in Riau”. 56 He
was later installed as a rival “S ultan of Johor” by the British to
lend legitimacy to the British presence in Singapore. 56
Thus, by the beginning of the 19th century, the Johor-Riau-Lingga Sultanate was
57
“in a state of dissolution”.
3.15 The foregoing summary demonstrates that Malaysia’s claim that “the
Sultanate of Johor was able to remain a major power in the Malay region and to
survive into the modern period” 58 does not stand up to scrutiny. Instead, the
picture is that of an unstable kingdom, whose extent and influence depended on
constantly shifting allegiances and which at times amou nted to no more than a
mere collection of thinly populated centres at river mouths. Given this historical
background, it is surprising that Malaysia can confidently cl aim, without proof,
that Pedra Branca had always been a territorial possession of the Johor-Riau-
Lingga Sultanate.
Section III. The Important Distinction Between Pre-1824 and
Post-1824 Johor
3.16 Malaysia has argued that the Anglo-Dutch Treaty of 1824, in dividing the
Malay region into British a nd Dutch spheres of influe nce, led to Pedra Branca
being placed in the British s phere. This is said to have resulted in the Johor-
56 Turnbull C.M., A History of Singapore 1819-1988 (1989), at p. 9.
57 See State of Johore Annual Report for 1949 (written by Dato Wan Idris bin Ibrahim, Ag. Mentri
Besar [i.e., Chief Minister ], Johore, printed by Government Printing Department, Johore), at
p. 57, attached to this Counter-Memorial as Annex 32. The same report also noted that “in 1847
Johor Lama [i.e., old Johor] consisted of only 25 huts”.
58 MM p. 17, para. 37.
– Page 27 –Riau-Lingga Sultanate’s title to Pedra Branca being transmitted to the emerging
59
State of Johor (which Malaysia calls “Sultanate of Johor”).
3.17 Singapore notes that this argumen t is predicated upon the Johor-Riau-
Lingga Sultanate having title to Pedra Bran ca in the first place. Since Malaysia
is not able to prove that Pedra Bran ca was part of th e Johor-Riau-Lingga
Sultanate, Malaysia’s argument concerning the Anglo-Dutch Treaty is irrelevant
to this case. Nevertheless, in this S ection, Singapore will c onsider Malaysia’s
argument on its own terms, and will show that, even on a mo st charitable view
of the evidence, Malaysia’s argument is without any merit.
3.18 This Section therefore begins with a discussion of the impact of the
Anglo-Dutch Treaty on the Johor-Riau-Lingga Sultanate, and closes by drawing
certain conclusions on the territorial extent of the State of Johor.
A. IMPACT OF THE ANGLO -DUTCH T REATY ON THE JOHOR -R IAU-LINGGA
SULTANATE
3.19 Malaysia argues that:
“For the effect of the Anglo-Dutch Treaty was to split ‘the ancient
kingdom of Johore’ into two parts. One, the Sultanate of Johor,
remained based in the southe rn part of Malay Peninsula and came
within the British sphere. The othe r, the Sultanate of Riau-Lingga, was
within the Dutch sphere of influen ce and was to the south of Singapore
60
Strait.”[emphasis added]
Malaysia then asserts, without proof, th at “Pedra Branca lay within the British
sphere of influence”, thus implying that Pedra Bran ca became part of the
northern successor entity in the British sphere (which Si ngapore calls “State of
59
MM p. 15, para. 36.
60
MM p. 24, para. 51.
– Page 28 –Johor” and Malaysia calls “Sultanate of Johor”). By asserting that the Sultanate
“remained based in the... Malay Peninsul a” and by continuing to use the same
name “Sultanate of Johor” to describe both the undivided Johor-Riau-Lingga
Sultanate and the new, much smaller entity emerging in the Malay Peninsula
(which later became the State of Johor), Malaysia is engaging in a disingenuous
attempt to use the term “Sultanate of Johor” to effect a form of “state
succession” by semantics.
1. The Anglo-Dutch Treaty Did Not Prescribe any Demarcation Line in
the Singapore Strait
3.20 To bolster her arguments on the Anglo-Dutch Treaty, Malaysia has
produced a creative, and tendentious, sk etch map of the Strait of Singapore
showing a boundary line within the Strait dividing the northern part of the Strait
61
and the southern part of the Strait. In the vicinity of Pedra Branca, this
boundary line is shown detouring from its previous course, bulging slightly
southwards so that Pedra Branca, Midd le Rocks and South Ledge are all shown
to be within the British sphere of influe nce north of the boun dary. This sketch
map is then used, in a circular argument, to justify the assertion that these three
features came to be part of the northern successor entity.
3.21 It is surprising that Malaysia has go ne to such an extent to shore up her
case concerning her claim to an “original title”. In fact, the Anglo-Dutch Treaty
had no map attached to it. There were therefore no offici al maps from which
Malaysia could derive the rather astounding boundary line found in Insert 6 of
her Memorial. Nor could the boundary lin e in Insert 6 of Malaysia’s Memorial,
61 MM p. 23, Insert 6 - British Sphere After the Anglo-Dutch Treaty 1824.
– Page 29 –by any stretch of the imagination, be said to have been derived from the text of
the Treaty.
3.22 The Treaty did not prescribe any terr itorial boundary or demarcation line
in the Strait of Singapore. The princi pal object of the Treaty was to determine
the respective spheres of influence betw een the British and the Dutch to avoid
future conflicts, not the allocation of te rritories between the Sultans under their
62
respective protection. Article X of the Treaty merely prohibited the Dutch
from forming any establishment “on any part of the Peninsula of Malacca” (i.e.,
the Malay Peninsula), while Article XII merely provided that:
“...no British Establishment shall be made on the Carimon Isles, or on
the Islands of Battam, Bintang, Lingi 63 or on any of the other Islands
South of the Straights of Singapore.”
3.23 Accordingly, the Treaty did not di vide up the waters of the Singapore
Strait between the British and the Dutc h or between Sultan Abdul Rahman
(under Dutch protection) and Sultan Hu ssein (under British protection). By
focusing on the “Peninsula of Malacca” (i.e., the Malay Peninsula) in Article X
and on “Islands South of the Straits of Singapore” in Article XII, the Treaty left
the entire Singapore Strait undivided and op en to access by both the British and
the Dutch. This historical truth is confirmed by the nego tiating history which
shows that although the Du tch initially proposed a de marcation line within the
Singapore Strait, the idea was abandoned for fear that any such demarcation line
would invite the jealousy of other powers, who may interpret the prescription of
such a line as an attempt by Britain and Netherlands to divide up the region
62
The preambular paragraph of the Treaty states th at the Parties wished to settle their differences
concerning their possessions and the commerce of th eir subjects in the East Indies “so that the
welfare and prosperity of both Nations may be pr omoted, in all time to come” and so that “all
occasions of misunderstanding between Their resp ective Agents may be, as much as possible,
prevented...”.
63
Treaty between His Britannick Majesty and the King of the Netherlands, Respecting Territory
and Commerce in the East Indies, dated 17 Mar 1824 (MM Vol. 2, Annex 5).
– Page 30 –between themselves. 64 Hence, the demarcation line shown in Malaysia’s
supposedly illustrative map is entirel y speculative and has no historical,
geographical or legal basis.
3.24 Even if, arguendo, a dividing line could be in ferred from the text of this
Treaty, the only reasonable interpretation would be that the entire breadth of the
65
Singapore Strait formed the dividing “line” or, rather, dividing zone. This
would have left Pedra Branca in neither the British sphere nor the Dutch sphere.
2. The Anglo-Dutch Treaty Did Not Place Pedra Branca in the British
Sphere
3.25 Malaysia argues that Pedra Branca was placed within the British sphere
because “there is no doubt that Pulau Batu Puteh is not an island to the ‘South of
66
the Straights of Singapore’.” There are two problems with this argument.
First, it simply begs the questi on of what “South of the Straights of Singapore”
means in relation to Pedra Branca. Secondly, it assumes, wrongly, that
everything which is not “South of the St raights of Singapore” must necessarily
fall within the British sphere.
64 Irwin G., Nineteenth Century Borneo: A Study in Diplomatic Rivalry(1955), at pp.62-63,
relevant extracts of which are attached to this Counter-Memorial as Annex 36. See also Marks
H., The First Contest for Singapore:1819-1824 (1959), at pp.189, 192, 201, 206 & 209,
relevant extracts of which are attached to this Counter-Memorial as Annex 39.
65 See e.g., Dutch Ministry of Colonies,Internal Note Relating to the Borneo Question with
England dated 15 Oct 1858, relevant extracts of which are attached to this Counter-Memorial as
Annex 18, where Article 12 of the Anglo-Dutch Treaty was described as adopting “the Straits of
Singapore as the dividing line”See also Prescott J.R.V., Map of Mainland Asia by Treaty
(1975), at p.410 (“Thus although no precise maritime boundary was drawn, the boundary was
defined by the allocation of islands to the two parties”).
66 MM, p. 24, para. 53.
– Page 31 –3.26 On the first point, Pedra Branca may well be said to lie south of the Strait
not only because it is geogra phically nearer to the coas t of Bintan than to the
Johor mainland but also because it lies south of the main shipping channel in this
part of the Strait. In the vicinity of Pedra Branca, the Strait of Singapore splits
into 3 branches – the North Channel (w hich runs between the Romania Islands
and the Johor mainland), the Middle Ch annel (which runs between Romania
Islands and Pedra Branca) and the Sout h Channel (which runs between Pedra
Branca and the Indonesian island of Bintan ). Of the three channels, the best
candidate for being regarded as the eastward continuation of the Singapore Strait
must be the Middle Channel, since that is the deepest channel and the main
shipping channel. 67
3.27 Therefore, Malaysia’s logic woul d place Pedra Branca south of the
Singapore Strait and within the Dutch sphere of influence, if indeed the issue of
spheres of influence were relevant to the dispute concerning the island. In this
connection, it is worth notin g that Winstedt in his History of Johore states, at
page 2: “[a]fter the treaty of London in 1824, the islands on the starboard side of
68
the East Indiamen faring to China fell within the Dutch sp here of influence”
and later, at page 97:
“All land right of the East Indiamen’s course to China now fell within
the Dutch sphere of influence, and all land to the left of that course fell
within the British sphere.” 69
67
Thomson J.T., Account of the Horsburgh Light-house , 6 Journal of the Indian
Archipelago and Eastern Asia 376 (1852) (hereafter, “Thomson’s Account”), at p.379
(SM Vol.4, Annex61, p.480): “There are three channels leading into the Straits of
Singapore from the China sea. That on the north of Pedra Branca, and between it and the
Romania Shoal, is the one principally used and is termed the Middle Channel.” See also
Dunn S. et. al., A New Directory for the East Indies (5th ed., 1780) p.509 (SM Vol. 2,
Annex 2, p. 6) and Horsburgh J.,India Directory, Vol. 1 (2nd ed., 1817) pp.192-193
(SM Vol. 2, Annex 3, pp.8-9), both of which recommended using the channelNorth of
Pedra Branca (i.e., the Middle Channel) toenter or leave the Singapore Strait.
68 Winstedt R.O., supra note 53, at p. 2.
69 Ibid, at p. 97.
– Page 32 –As explained in the previous paragra ph, ships sailing to China through the
Singapore Strait would use the Middle Ch annel, and Pedra Branca lies to the
right or starboard side of this route. See Insert 3 (Sketch Map of the Vicinity of
Pedra Branca, Showing Shipping Route), overleaf.
3.28 Even more importantly, on the s econd point, Malaysia’s argument fails
because the Anglo-Dutch Tr eaty does not say that every island which is not
“South of the Straights of Singapore” automatically falls within the British
Sphere. Instead, the Treaty simply pr ovides that the British were to have no
influence “South of the Straights of Singapore” while the Dutch were to have no
influence in the “Peninsula of Malacca”. Malaysia’s logic can therefore be
easily turned around to support the argument that Pedra Branca was placed in the
Dutch sphere because it is not part of the “Peninsula of Malacca”.
3.29 The truth of the matter is that the Anglo-Dutch Treaty did not place Pedra
Branca in either the British sphere or th e Dutch sphere. This remained the case
until the British took lawful possession of the island in 1847.
3.30 To sum up: the Anglo-Dutch Treaty is totally irrelevant in the context of
the present dispute. It dealt with sphere s of influence. The Treaty did not deal
with the status of Pedra Branca, which wa s not mentioned at all in the Treaty.
The negotiating history of the Treaty demonstrates that the parties did not
address their minds to Pedra Branca. Mala ysia’s claim to original title to Pedra
Branca based on the words “south of the Straights of Singapore” in the Anglo-
Dutch Treaty does not stand up to scrutiny. In fact, the Anglo-Dutch Treaty had
absolutely nothing to do with Pedra Branca.
– Page 33 – 3. Donation by Sultan Abdul Rahman of Mainland Territories in
Peninsular Malaya to Sultan Hussein
3.31 The Anglo-Dutch Treaty did not, by its terms, effect a division of the
Johor-Riau-Lingga Sultanate. Instead, the subsequent dismemberment of the
Sultanate resulted from the practical fact that Sultan Abdul Rahman (who in the
eyes of the locals was the legitimate rule r of the Johor-Riau-Lingga Sultanate),
as well as his officials in Riau, had been cut off and could no longer exert
effective power in the Malay Peninsula (which had fallen within the British
sphere). This allowed the territories in the Malay Peninsula to eventually gain
independence from the Riau court. Th e territorial extent of the northern
breakaway fragments (i.e., peninsular Jo hor and Pahang) is not determined by
the terms of the Anglo-Dutch Treaty but by subsequent acts of and dealings
amongst the relevant Malay rulers.
3.32 One example of such dealing wa s the express donation of territory by
Sultan Abdul Rahman to Su ltan Hussein one year after the Anglo-Dutch Treaty
was signed. This donation was made on th e advice of the Dutch, who wished to
avoid any confusion over which territories remained under the control of Sultan
Abdul Rahman in the post Anglo-Dutch Treaty period. In 1825, they sent an
official, Christiaan van Angelbeek, to e xplain to the Sultan th e implications of
the Anglo-Dutch Treaty and to advise him to formally cede the mainland
territories of Johor and Pahang to hi s brother Hussein (who was living in
Singapore under British protection).
3.33 As a result, Sultan Abdul Rahman sent a letter to Hussein to donate “the
lands of Johor, Pahang” in the Malayan Pe ninsula to Hussein while retaining all
islands in the sea for himself. The text of Sultan Abdul Rahman’s letter reads:
“Your brother sends you this letter... to give you notice of the conclusion
of a treaty between His Majesty th e King of the Netherlands and His
Majesty the King of Great Britain, whereby the division of the lands of
– Page 34 – Johor, Pahang, Riau and Lingga is stipulated. The part of the lands
assigned to you, My brother, I donate to you with complete satisfaction,
and sincere affection, for we are brothers and the only children left
behind by our father... Your territory, thus, extends over Johor and
Pahang on the mainland or on the Malay Peninsula. The territory of
Your brother extends out over the Islands of Lingga, Bintan, Galang,
Bulan, Karimon and all other islands. Whatsoever may be in the sea ,
this is the territory of Your brothr, and whatever is situated on the
mainland is yours. On the basis of these premises I earnestly beseech
you that your notables, the Paduka Bendahara of Pahang and
Temenggong Abdul Rahman, will not in the slightest concer70
themselves with the islands th at belong to Your brother.” [emphasis
added]
3.34 The nature and terms of Sultan Abdul Rahman’s donation of territories to
Sultan Hussein is another im pediment to Malaysia’s claim that original title to
Pedra Branca is derived fro m the Johor-Riau-Lingga Sultanate. By the terms of
that letter, Sultan Abdul Ra hman donated only the mainland territories to his
brother Sultan Hussein, and retained for himself all islands in the sea. Thus,
even if Pedra Branca was a possessi on of the Johor-Riau-Lingga Sultanate
(which it was not), it would have been retained by Sultan Abdul Rahman and not
become part of the State of Johor.
B. T HE D OMAIN OF THE S TATE OF JOHOR
3.35 The donation of the mainland territory by Sultan Abdul Rahman to Sultan
Hussein nonetheless did not result in Sulta n Hussein being able to exercise any
authority over these territories. As acknowledged by Malaysia in her Memorial,
the Temenggong came to be the de facto ruler of mainland Johor. It is thus
necessary to examine the extent of the Temenggong’s domain in this period.
70
See letter from Sultan Abdul Rahman to Sultan Hussein dated 25 June 1825, attached to this
Counter-Memorial as Annex 5. At the satime, the Under-King (who was the real power
behind Sultan Abdul Rahman) also sent to Hussein a letter in similar terms confirming and
giving full effect to Sultan Abdul Rahman’s doSee Letter from the Under-King Raja
Jaffar to Sultan Hussein dated 25 June 1825, attached to this Counter-Memorial as Annex 6.
– Page 35 – 1. The Temenggong’s Domains
3.36 Singapore has not been able to tra ce any official document or historical
record documenting the exte nt of the Temenggong’s do main in the early 19th
71
century. But Winstedt, in his study published in 1932 stated: “The immediate
sway of the Temenggong of Johor ran from Pontian around Cape Rumenia to
72
Sedili Besar.” Historian Carl Trocki, in his authoritative study of the
Temenggongs of Johor, concludes that apart from 1,000 followers in mainland
Johor and 1,500 followers in Singapore, the Temenggong’s domain in the period
73
1823-1824 was limited to the western portion of the Riau Archipelago. This
conclusion is illustrated in the same study by a sketch map, reproduced opposite
as Insert 4. The sketch map shows that the Temenggong’s domains did not
extend to Pedra Branca.
3.37 Mid-19th century observers also confirmed that there was no relationship
between Pedra Branca and mainland Johor. According to Thomson’s Account
(1852), personnel on Pedra Branca (which is 42 miles from Singapore) had to
get “all provisions and other necessaries” 74 from Singapore because:
“... the coasts between Pedra Branca and Singapore, with the exception
of a few miserable fishing villages, none of which are within 20 miles of
it and whose inhabitants are well know n to be addicted to piracy, are
uncultivated and covered with prim eval forest, which, besides being
infested with wild animals, such as the tiger, bear, rhinoceros and
elephant, is almost impenetrable to man, by reason of thick underwood
thorns and creepers.” 74[emphasis added]
71
Tro,ki supra note27, at p.42 (“It is of in terest that no contemporary account ( c. 1800-30),
whether Malay, English, or Dutch, has much to say about the Temenggongs’ government on the
mainland of Johor. This is probably because there really was not one to speak of.”).
72 Winstedt R.O., supra note 53, at p. 102.
73 Trocki C., supra note 27, at pp. 44, 46.
74 Thomson’s Account, supra note 67, at p. 379 (SM Vol. 4, Annex 61, p. 480).
– Page 36 –There were no settlements, a nd thus no governmental ad ministration, within 20
75
miles of Pedra Branca.
2. The 1855 Treaty of Friendship and Alliance between Sultan Ali and
Temenggong Daing Ibrahim
3.38 Through a British-brokered settleme nt in 1855, the Temenggong, who
was until then the de facto ruler of the State of Johor, became its de jure ruler as
well. Malaysia describes this episode in the following terms:
“In March 1855, the then Sultan and the Temenggong concluded an
agreement in order to put an end to their differences. This amounted to a
transfer of full authority to the Temenggong over the whole of the territory
of Johor, with the exception of the small Kassang territory which
remained reserved for the Sultan.” 76
3.39 This so-called “transfer of full au thority” was effected by a treaty dated
10 March 1855, between the Temenggong a nd Ali, son of Sultan Hussein (who
died in 1835). In return for formal recognition as Sultan of Johor and for certain
monetary payments, Ali agreed to “ce de in full sovereignty and absolute
property” to the Temenggong all of main land Johor, retaining only a small
territory around the Kassang river for himself. The territories ceded under the
Treaty, to quote the exact words used, were:
“the whole of the territory of Johore within the Malayan Peninsula and
its dependencies, with the excep tion of the Kassang territory...” 77
[emphasis added]
75
In a letter dated 7 Nov 1850, the Resident Councillor of Singapore, T. Church, suggested
requesting the Temenggong to form a village aRomania under the control of a respectable
penghulu (village headman), thereby confirming that no organized government had been formed
anywhere near Point Romania. See Letter from Church T. (Resident Councillor at Singapore) to
Butterworth W.J. (Governor of Prince of Wale s Island, Singapore and Malacca) dated 7 Nov
1850 (SM Vol. 3, Annex 48; MM Vol. 3, Annex 59).
76
MM pp. 30-31, para. 63.
77 Treaty of Friendship and Alliance between His Highness Sultan Ali Iskander Shah bin Sultan
Hussain Mahomed Shah and His Highness Datu Tumungong Daing Ibrahim bin Abdul Rahman
Sri Maharajah dated 10 Mar 1855, Article 1 (MM Vol. 2, Annex 7).
– Page 37 –The express words of cession focused on te rritories within the Malay Peninsula.
No mention was made of Pedra Branca, which was certainly not part of the
Malay Peninsula. To put the point in its historical context, it is worth recalling
that by this time, Pedra Branca was alr eady British territory, as a result of the
taking of lawful possession of the island in 1847 by agents of the British Crown.
Section IV. The Question of Applicable Law
3.40 The present Chapter demonstrates that when the Br itish took possession
of Pedra Branca in 1847, Johor had no prior title to th e island, whether assessed
under classical principles of interna tional law or under regional custom of
allegiance.
3.41 While the law applicable to the British acquisition of Pedra Branca in
1847 was clearly the law of the nations as adopted by the European powers,
there is less certainty c oncerning the applicable law by which Malaysia’s claim
to an “original title” should be evaluated. This is because of Malaysia’s
complete failure to explain the legal basis of her alleged “original title” and also
because Malaysia has not made clear how and when this alleged “original title”
arose, apart from some vague hints in he r Memorial that her alleged “original
title” dates from the 16th century.
3.42 Malaysia’s avoidance of this cr itical issue has made it necessary for
Singapore to discuss both the regional custom of allegiance and classical
principles of international law. Whet her examined under the local context of
allegiance or under classical internationa l law, the evidence clearly establishes
that, immediately before the British t ook possession of Pedra Branca in 1847,
there was an absence of title on the part of Johor.
– Page 38 – Section V. Conclusions
3.43 The following conclusions can be drawn from the discussion in this
Chapter:
(a) in the traditional Malay sultana te, which includes the Johor-Riau-
Lingga Sultanate, the notion of “sovereignty” was based on
personal allegiance of inhabitants and not necessarily on control of
territory. This means that it was common to find territory which
was not regarded as belonging to an yone. It also means that the
only reliable way of finding out whether a particular territory could
be said to belong to a particular ruler was to obtain the views of the
inhabitants as to who they regarded as their ruler;
(b) Pedra Branca was uninhabited before the British built a lighthouse
on it. Thus, there were no people on Pedra Branca from whom any
Malay ruler could claim allegian ce. There was absolutely no
reason or incentive for any Sultan or local Raja or chief to consider
Pedra Branca as part of his domin ion at any material time, nor did
any do so. Thus, Pedra Branca c ould not have been a territorial
possession of the Johor-Riau-Lingga Sultanate;
(c) Malaysia’s claim that the Johor- Riau-Lingga Sultanate “was able
to remain a major power in the Malay region and to survive into
the modern period” is contrary to the historical evidence and is an
attempt to shore up her weak case based on an alleged “original
title”;
(d) the 1824 Anglo-Dutch Treaty did not result in the transmission of
the Sultanate’s title to Pedra Branca (assuming such existed, quod
non) to the modern State of Johor. In fact, the Anglo-Dutch Treaty
did not touch upon or affect the status of Pedra Branca;
– Page 39 –(e) neither the territorial domain of the Temenggong nor that of Sultan
Hussein (and his son, Ali) ever extended to Pedra Branca. This
remained the case when the British took possession of the island in
1847.
– Page 40 – CHAPTER IV
PEDRA BRANCA WAS NEVER PART OF JOHOR
4.1 In Chapter 5 of her Memorial, Malays ia seeks to show that “Pulau Batu
Puteh had always been under the sovereignty of Johor”. 78
4.2 Malaysia begins by asserting that “at a time when the Johor Sultanate
extended north and south of Singapore Strait, its territory included all the islands
79
within and adjacent to the Strait”. Malaysia then goes on to assert that “Johor
held sovereignty over Pulau Batu Puteh in the context of its title to a wider range
of islands, which the local people, subjects of the Sultan, used as part of the
coastal economy”. 80 After making these bare and highly generalised assertions,
Malaysia presents a number of pieces of what she calls “evidence” in an attempt
to prove that Pedra Branca was part of the Johor-Riau-Lingga Sultanate, and
later part of the State of Johor.
4.3 In this Chapter, Singapore will br iefly address the foregoing general
81
assertions, before proceeding to analyse each of Malaysia’s arguments to show
that the “evidence” produced by her is entirely speculative and incapable of
proving title to Pedra Branca.
78 MM p. 37, para. 73.
79 MM p. 37, para. 74
80 MM p. 37, para. 75.
81 MM p. 37, paras. 74-75.
– Page 41 – Section I. Malaysia has Failed to Explain the Legal Basis of Her
Alleged Title to Pedra Branca
4.4 The most striking feature of Malaysia’s case is that there is a complete
absence in her Memorial of any attempt to explain the legal basis of her alleged
“original title” over Pedra Branca (that is to say, whether it is based on effective
occupation, on the principle of contiguity , or on traditional notions of title such
as personal allegiance of the inhabitants ). Consequently, the entire Malaysian
Memorial only deals with generalities and makes vague claims about an
“original title” without being able to explain the legal basis for such claims.
4.5 However, certain passages in Malaysia ’s Memorial that obliquely hint at
the underlying basis of her case can be dealt with quickly.
4.6 First, there is the hesitant attempt to hint at an argument based on
proximity in the following passages:
“... Pulau Batu Puteh ... was certainly part of the territories subject to the
sovereignty of the Sultanate of Johor . This certainty regardith Johor's
title in 1844 derives from the fact that, from the early 16 century, the
territories of the Sultanate of Johor had extended to the islands south of
and around Singapore Strait.” 82
“... the Sultanate of Johor extended north and south of83ingapore Strait
and included many islands in and around the Strait.”
“... at a time when the Johor Sultan ate extended north and south of
Singapore Strait, its territory included all the islands within and adjacent
to the Strait.”4
82 MM p. 4, para. 8.
83 MM p. 15, para. 36.
84 MM p. 37, para. 74.
– Page 42 –However, Malaysia stops s hort of expressly arguing that proximity constitutes
the basis of her “original title”. Malaysia’s omission to do so is telling. It shows
that she does not pin much hope on this argument.
4.7 Any argument by Malaysia based on proximity is flawed in two respects.
As a matter of fact, Pedra Branca lies outside the territorial waters of Johor. 85
As a matter of law, proximity in this context is of no relevance. In the Island of
Palmas case, Judge Huber said:
“..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)... Nor is
this principle of contiguity admi ssible as a legal method of deciding
questions of territorial s overeignty; for it is who lly lacking in precision
and would in its application lead to arbitrary results.”86 [Emphasis in
underline added, italics in original]
4.8 Secondly, Malaysia, being fully aware of the weakness of her claim based
on proximity, seeks support at various sections of her Memorial from the Court’s
observations in Sovereignty over Pulau Li gitan and Pulau Sipadan
(Indonesia/Malaysia), concerning the exercising of State functions “in the
87
context of the administration of a wider range of islands”. Malaysia is
clutching at straws. There is a fundamental difference between Pedra Branca and
Ligitan/Sipadan that renders inapplicable the quoted words in the instant case.
4.9 tne Indonesia/Malaysia case, Malaysia was able to prove some acts of
State authority on the two islands, such as the construction of navigational aids,
85 Pedra Branca lies 7.7 nautical miles from the Johor mainland and 6.8 nautical miles from the
nearest island in the Romania Group – outside the 3-nautical mile territorial sea belt of Johor in
1847 (until 1969, Malaysia and her predecessor Johor claimed only a 3-nautical mile territorial
sea).
86 See Island of Palmas Arbitration (Netherlands v. U.S.), supra note 24, at pp. 854-855.
87 MM p. 37, para. 75; p. 47, para. 97; p. 80, para. 175; p. 132, para. 294 and p. 156, para. 328(h).
– Page 43 –the regulation of turtle egg collection and the establishment of a bird sanctuary.
While accepting that Malaysia’s activities on Sipadan and Ligitan were “modest
in number”, the Court noted that these activities were nevertheless “diverse in
character” and showed:
“... a pattern revealing an intention to exercise State functions in respect
of the two islands in the context of the admin istration of a wider range
of islands.” [emphasis added]
4.10 In stark contrast to that case, Malaysia is unable to point to a single act of
State authority on or in relation to Pedra Branca at all. Consequently, there is no
room for applying the dicta from the Indonesia/Malaysia case concerning “the
administration of a wider ra nge of islands”. Moreover, as shown in Chapter III
above, in the mid-19th century, the Temenggong’s administration effectively did
89
not extend to the Romania islands or even to Point Romania. There was a total
absence of “administration of a wider range of islands” that could have had any
bearing on Pedra Branca at all.
4.11 As for the claim that Pedra Bran ca was “used as part of the coastal
90
economy” by “subjects of the Sultan”, Malaysia has provided no proof to show
such usage. This is not surprising. Pedra Bran ca was uninhabited and barren.
91
In the 1840s, there were no inhabitants within more than 20 miles from it – the
92
island was a “great dist ance from inhabited places”. The island was, and still
88 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), supra note 13, at
para. 148.
89 See above, at para. 3.37 and below, at Chapter IV, Section II, Subsection H, in passim.
90 MM p. 37, para. 75.
91
At the beginning of the 19th century, Johor was very sparsely populated as contemporary
accounts given by travelers show. See e.g., Thomson’s Description of the Eastern Coast, supra
note 43, at p. 84; Favre P., A Journey in Johore, 3 Journal of the Indian Archipelago and Eastern
Asia 50 (1849), at p. 63, attached to this Counter-Memorial as Annex 14.
92 Thomson’s Account, supra note 67, at p. 392 (SM Vol. 4, Annex 61, p. 493).
– Page 44 –is, subjected to harsh weather throughou t the year. During the North-East
monsoon season, lasting from October to March, its accessibility was greatly
limited. 93 During the South-West monsoo n, from April to September, it was
unbearably hot. 94 No vegetation could grow on Pedra Branca, even with the use
of imported soil from Singapore, as Thom son’s failed attempt to grow a garden
on the island demonstrated. 95 Presgrave had, in his Report of 5 December 1828,
compiled a detailed list of the produce of various islands in the region – no
96
produce from Pedra Branca was recorded on this list.
4.12 In any event, any activities allege d by Malaysia as pa rt of the coastal
economy would have been private activities. It is a well established principle of
97
international law that private activities do not confer title to territory.
4.13 These comments are sufficient to di spose of the preliminary assertions
with which Malaysia began Chapter 5 of her Memorial. Singapore will now deal
with the “evidence” presented by Malaysia in that Chapter.
93 Thomson’s Account, supra note 67, at p. 440 (SM Vol. 4, Annex 61, p. 543). By October 1850,
work on the lighthouse had to stop because of th e approach of the North-East monsoon, and the
entire island evacuated. When Thomson returned on 28 March 1851, he found that the pier and
houses which he had built the previous year had all been washed away by the force of the
North-East monsoon ( Ibid, at p.442, reproduced in SM Annex 61, p.545). Thomson has
provided a detailed description of the weather patterns around Pedra BrancaIbid, at p. 382,
reproduced in SM Annex 61, p. 483).
94
During the South-West monsoon season, the heat on the island was so unbearable that Thomson
records: “the skin peeled off from the face and other exposed parts of the body, the lips cracked,
and the heat induced a constant flow of perspirtion, creating a thirst that large draughts of
water could only allay.” (Ibid, at p. 419, reproduced in SM Annex 61, p. 522).
95 Ibid, at pp. 384, 443, reproduced in SM Annex 61, pp. 485, 546.
96 See above, at para. 3.10 and below, at para. 4.25.
97 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , supra note 13, at
para. 140. See also 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 p.86,
para. 315. The Award is also published in (1998) 22 RIAA 215.
– Page 45 – Section II. Malaysia’s Historical Materials Do Not Support Her Case
A. M ALAYSIA S R EFERENCES TO H ISTORICAL W RITINGS
4.14 Malaysia asserts that “for centur ies” the Johor-Riau-Lingga Sultanate’s
territories stretched:
“... both north and south of the Singa pore Strait. It c overed substantial
territories, including parts of the mainland of the Malay Peninsula, parts
of the island of Sumatra, all islands within and at the entrance of the
Singapore Strait and numerous other islands in the open China Sea
98
including the Natunas, Anambas and the Tambelans.”
This assertion implies that Pedra Branca, which lies at the entrance of the
Singapore Strait, was part of the Sultana te’s territories. The evidence Malaysia
cites in support of this assertion is said to be found in the historical sources (in
footnote 55 of her Memorial) as follows:
“See also Leonard Y. Andaya, The Kingdom of Johor 1641 to 1728
Kuala Lumpur: Oxford University Press, 1975; E. Netscher, De
Nederlanders in Djohor en Siak, 1602 tot 1865 [The Dutch in Johor and
Siak, 1602 to 1865], Batavia: Bruining & Wijt, 1870; C.A. Trocki,
Prince of Pirates: The Temenggongs and the Development of Johor and
Singapore, Singapore: Singapore University Press, 1979.”
4.15 Singapore has examined these writings carefully. None of them contains a
statement or supports the assertion that the Sultanate extended to “all islands
within and at the entrance of Singapore Strait”.00
98 MM p. 38, para. 77.
99 MM p. 38, note 55.
100 MM p. 38, para. 77.
– Page 46 – B. D UTCH C OMMUNICATIONS OF 1655 AND 1662
4.16 Malaysia cites two 17th century Dutch letters in an attempt to
101
demonstrate Dutch recognition of her “original title” to Pedra Branca.
4.17 The first letter, dated 1 April 1655, was an internal communication from
the Dutch Governor of Malacca to th e Dutch Governor-General in Batavia
proposing that Dutch vessels “must cruise ... in the vicinity of Pedra Branca” to
prevent Chinese ships from entering the Johor River. 102 This proposal, if
implemented, would redirect the Chin ese trade from Johor to Malacca or
Batavia. Nothing in this communication can remotely be interpreted as Dutch
recognition of the Johor-Riau-Lingga Sultanate’s ownership of Pedra Branca.
4.18 The second letter is another in ternal Dutch communication dated 26
December 1662 – i.e., seven years after the first letter. This was a report by the
Dutch Governor-General to the Directors of the Dutch East India Company that
the Sultan of Johor had protested agains t the Dutch practice of diverting trade
away from the Johor River to Malacca. After citing this letter, Malaysia
concludes:
“Thus the Sultan of Johor protested at a Dutch scheme involving if not a
blockade at least a form of trade diversion from his dominions, in
correspondence specifically mentioning Pedra Branca ...”103[emphasis
added]
This passage is highly misleading in s uggesting that the Sultan of Johor had
specifically mentioned Pedra Branca in correspondence with the Dutch. In fact,
101 MM p. 38, para. 78.
102 See Missive from Thijssen (Governor of Melaka) to the Governor-General and Council of the
Dutch East India Company in Batavia dated 1 Apr 1655 (MM Vol. 3, Annex 22).
103 MM p. 39, para. 79.
– Page 47 –Malaysia cited no correspondence from th e Sultan at all. Nor did the Dutch
report of 26 December 1662 concerning the Sultan’s protest mention Pedra
Branca. There was simply no evidence that the Sultan “specifically mention[ed]
Pedra Branca” in any correspondence with the Dutch. More over, the Sultan’s
protest was not against any supposed incurs ion by the Dutch in to his territories,
but against the diversion of trade from the Johor River.
4.19 These two letters cannot possibly be read as Dutch recognition that Pedra
Branca was a territory of the Johor-Riau-Lingga Sultanate.
C. C RAWFURD S LETTER OF 10 JANUARY 1824 AND PRESGRAVE S R EPORT
OF 5 D ECEMBER 1828
4.20 After the Dutch communications, th ere is a lengthy gap of about 160
years in the “evidence” produced by Malaysia – Malaysia next cites two general
descriptions of the extent of the Johor-Riau-Lingga Sultanate by British officials
stating that certain named islands inthe South China Sea belonged to the
Sultanate. Presumably, the poi nt which Malaysia wishes to make is that if the
Sultanate owned certain is lands in the South ChinaSea, then Pedra Branca,
which lies at the entrance of the Singapore Strait from the South China Sea must
also have belonged to the Sultanate. This is fall acious reasoning. As explained
in paragraph 3.8 above, it was common in early South East Asia to find
territories which did not belong to any ruler. Furthermore, the fact that an island
at Point A and another island at Point B belonged to a sultanate does not mean
that all islands in between also belonged to that sultana te, especially given the
political structure of traditional Malayltanates. With th is understanding,
Singapore will now examine these two sources.
– Page 48 –4.21 The first description is found in a letter dated 10 January 1824 from
Crawfurd, the British Resident in Singapore, to the Governor-General in India.
Malaysia quotes the following words from the letter:
“I beg for a moment to bring to the recollection of the Right Hon’ble the
Governor-General the situation of this island [i.e., Singapore] and of the
other countries in its neighbourhood constituting the nominal
principality of Johore, when we formed our settlement in the year 1819.
This principality extends on the continent from Malacca to the extremity
of the peninsula on both coasts. It had several settlements on the island
of Sumatra, and embraced all the isla nds in the mouth of the Straits of
Malacca with all those in China seas, as far as the Natunas in the
latitude of 4º N and the longitude 109º E . These coun104es are all sterile,
thinly inhabited here and there on the coast only...” [emphasis added]
Malaysia then concludes that “an info rmed British source clearly considered all
islands of the Strait of Malacca, throu gh Singapore Strait and up to a specified
105
distance into the China Seas to belong to the Sultanate of Johor.”
4.22 The following points may be noted about this passage:
(a) Crawfurd’s description did not mention Pedra Branca;
(b) Crawfurd’s purpose in writing the letter was to seek authorisation
from the Governor-General in Indi a to negotiate with the local
chiefs for “the unequivocal cessi on of the island of Singapore in
106
full sovereignty and property”. Crawfurd’s description was
104 MM p. 39, para. 80.
105 MM pp. 39-40, para. 81, italics in original.
106 Letter from Crawfurd J. (Resident of Singapore) to Swinton G. (Secretary to the Government in
India) dated 10 Jan 1824, attach ed to this Counter-Memorial as Annex 2, at para.26 of the
letter.
– Page 49 – therefore intended to provide his superiors with a broad overview
107
of the political setting in the region, and nothing more;
(c) the distance between the Natunas a nd the entrance to the Straits of
Malacca is more than 400 nautical miles. Crawfurd could not
possibly have meant that every single uninhabited island within
this vast area was a territorial possession of the principality
108
Johor. This reading (i.e., that Crawfurd could not have intended
to refer to every single uninhab ited island) is also entirely
consistent with the fact that the traditional Malay idea of
sovereignty was based on allegian ce of inhabitants and not on
control of territory;
(d) In spite of Malaysia’s attempts to interpret Crawfurd’s description
as including Pedra Branca among Johor’s territorial possessions, it
is significant that Crawfurd did not attribute the island to Johor in
the lengthy entry on Pedra Branca in his Descriptive Dictionary of
the Indian Islands and Adjacent Countries, published in 1856. 109
107 Malaysia refers to Crawfurd’s letter withoutannexing it to her Memorial. It was therefore
impossible, from reading Malaysia’s Memorial, to appreciate Crawfurd’s description in its
proper context. Singapore has a ttached Crawfurd’s letter in its entirety as Annex 2 to this
Counter-Memorial. As can be seen from the copy annexed, Crawfurd’s description is one short
line in a long, 33-paragraph letter spanning 12 manuscript pages (or 9 type-written pages when
transcribed).
108
In fact, at one stage in the 18th century, certain settlements in Borneo (namely, the settlements
of Calca, Seribas and Melanoege near Sambas) switched allegiance from the Sultan of Brunei to
the Sultan of Johor. See Valentyn F., Oud en Nieuw Oost-Indiën, Vervattende Een
Naauwkeurige en Uitvoerige Verhandelinge van Nederlands Mogentheyd in de Gewesten , Vol.
7 Part 5 (1726, reprinted 2004), at p.359, relevant extracts of which are attached to this
Counter-Memorial as Annex 1. Even then, there was no suggestion that, by reason of the fact
that the Johor-Riau-Lingga Sultanate extended to Borneo, every single island and uninhabited
rock between Borneo and the Malay Peninsula belonged to the Sultanate.
109 Crawfurd J., A Descriptive Dictionary of the In dian Islands and Adjacent Countries (1856,
reprinted 1971), relevant extracts of which are a ttached to this Counter-Memorial as Annex 17,
at p. 331.
– Page 50 –4.23 For the foregoing reasons, Crawfurd ’s description does not support
Malaysia’s claim of original title to Pedra Branca.
4.24 Malaysia also places great relian ce on the description of the Sultanate
given by Presgrave in his Report on the subject of piracy. Malaysia argues:
“Crawfurd’s description of the territorial extent of the Sultanate of Johor
is confirmed in the Presgrave report of 1828. Presgrave observed that
the Johor Sultanate appeared to embrace...
‘the Southern part of the Mala yan peninsula till joined by the
Malacca territory, and principality of Pahang, a small portion of
the eastern coast of Sumatra, la ying between the Jambi and Siak
Countries, all the Islands lying between the Karimons to the
South – Pulau Aor to the East, at the entrance of the China Sea –
and Linggin and the numerous Islands adjacent thereto,
extending nearly to the Islands of Banka and Billiton.’” 110
[emphasis in italics as added in Malaysia’s Memorial]
4.25 The following points may be made about this passage:
(a) Point(s a), ( b) and ( c) made in paragraph 4.22 above about
Crawfurd’s description apply equally to Presgrave’s description;
(b) The passage quoted by Malays ia omits importa nt words of
qualification. The full passage (with the omitted wo rds in italics)
reads:
“It is difficult to give an accurate description of the limits
of what is usually termed the Johor Empire . It appears to
embrace the Southern part of the Malayan peninsula till
joined by the Malacca territory, and principality of
Pahang, a small portion of the eastern coast of Sumatra,
laying between the Jambi and Siak Countries, all the
Islands lying between the Kari mons to the South – Pulau
Aor to the East, at the entrance of the China Sea – and
Linggin and the numerous Islands adjacent thereto,
extending nearly to the Is lands of Banka and Billiton.
110
MM p. 40, para. 82.
– Page 51 – This is a roug111ketch of the boundaries of the Johor
territories...”
It is clear from the two italicised sentences in the above passage
that Presgrave himself did not know the “limits” of the Johor-Riau-
Lingga Sultanate and that he could only give a very rough sketch.
Again, his uncertainty is not surpri sing. It is consistent with the
traditional Malay notion of sovere ignty being based on allegiance
and not on control of territory;
(c) Presgrave provided a detaile d list of the is lands which he
considered “to be under the authority of the Sultan of Johor” based
on knowledge which he had obtain ed personally and from native
sources. This list, entitled “A lis t of places under the jurisdiction
of Johor with the probable number of inhabitants at each”, is
mentioned in Paragraph 4 of his Report (but not annexed by
Malaysia to her Memorial). Th e list does not refer to Pedra
Branca. 112
4.26 Presgrave was not alone in admitting to an inability to accurately describe
the limits of the Sultanate. There we re no Malay maps or other official
documents which recorded th e Sultanate’s territorial limits. That this was the
state of knowledge (or, rather, the stat e of ignorance) during this period is
confirmed by the views of the British an d Dutch officials who negotiated the
1824 Anglo-Dutch Treaty.
4.27 The negotiators were of the view th at no one could claim to be able to
define the limits of the Johor-Riau-Lingg a Sultanate. As Malaysia has stated,
111 Report from Presgrave E. (Registrar of Imports and Exports) to Murchison K. (Resident
Councillor) dated 5 Dec 1828 (MM Vol. 3, Annex 27).
112
Attached to this Counter-Memorial as Annex 7.
– Page 52 –quoting from pages 62 to 66 of Irwin’s Nineteenth-Century Borneo: A Study in
Diplomatic Rivalry, the words “any of the remain ing islands belonging to the
113
ancient kingdom of Johore”, which appeared in the penultimate draft of the
treaty, were omitted and replaced by the words “any of the ot her Islands South
114
of the Straights of Singapore ” at the final conference. The reason for the
substitution – which Malaysia has not provided – is given in page 67 of the same
book, which reads:
“Nor was the wording of Falck’s [ the Dutch Minister of the Colonies,
who was the chief Dutch negotiator during the 1824 negotiations ]
suggested draft, ‘islands belonging to the ancient Kingdom of Johore’,
quite conclusive either, since no one could claim to be able to define the
115
limits of the ancient Sultanate of Johore with any degree of certainty.”
[emphasis added]
This was the state of affairs in the early 19th century: “no one could... define the
limits of the ancient Sultanate of Johore with any degree of certainty”.
4.28 In any event, Crawfurd’s and Pres grave’s descriptions have no probative
value at all. They constitute mere “assertions of sovereignty and jurisdiction that
fail to mention any islands whatsoever, and with general re ferences to ‘the
116
islands’ with no further specificity”. They certainly do not qualify as evidence
which “leave no doubt as to their specific reference to the islands in dispute as
117
such”. For the foregoing reasons, these two descriptions provide no support
for Malaysia’s claim of original title to Pedra Branca.
113 MM p. 24, para. 51, citing Irwin G., Nineteenth Century Borneo: A Study in Diplomatic Rivalry
(1955, reprinted 1967), relevant extracts of wh ich are attached to this Counter-Memorial as
Annex 36.
114
In relating this incident, Malaysia cites Irwin, supra note 113, at pp. 62-66.
115
Irwin, supra note 113, at p. 67
116
Eritrea/Yemen Arbitration (Phase One), supra note 97, at para. 241.
117 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), supra note 13, at
para. 136.
– Page 53 – D. T HE O RD AWARD OF 1868 AND THE R EPORT OF THE J OHOR BOUNDARY
COMMISSION OF 1898
4.29 Malaysia has interpreted the Ord Award of 1868 as having attributed
Pedra Branca to the State of Johor, 118thereby confirming the “long-standing
status quo” that the island was “within the dominions of Johor”.
4.30 This attempt at proving Malaysia’s original title is utterly devoid of merit.
It has no basis whatsoever for the simple reason that the Ord Award had nothing
to do with Pedra Branca.
4.31 First, the Ord Award was an arbitral award made by Governor Ord of the
Straits Settlements to resolve a dispute between the States of Johor and Pahang
over territories lying far to the north of Pedra Branca. The dispute did not
concern Pedra Branca, and therefore the Ord Award could not, and did not,
allocate Pedra Branca to the State of Johor. The statement in the Award that:
“all the islands to the north of this linlatitude 2 °59’20”N] shall
belong to Pahang and all to the south of this line to Johore”
clearly refers only to the cl uster of islands near the 2 °59’20” N parallel which
were in dispute between Johor and Pahang. The Award had no relevance
whatever to the status of Pedra Branca, lying 100 nautical miles south of the
2°59’20”N parallel, and which was not in dispute between Pahang and Johor.
(See Insert 6 (Chart attached to the Ord Award, 1868, annotated to highlight
area of Johor-Pahang dispute settled by the Ord Award) opposite.0
118 MM p. 43, para. 87-88; p. 46, para. 93.
119 MM p. 51, para. 103(e).
120 Prior to 1862, the Sedili Besar River (the river at the southern Insert 6,e red circle in
opposite p.41) was generally accepted as the poi nt where Johor’s influence ends and Pahang’s
influence begins. In 1862, Bendahara Tun Korais of Pahang signed a treaty with Temenggong
Abu Bakar of Johor, fixing the boundary between Johor and Pahang at the River Endau (about
– Page 54 –4.32 Secondly, Malaysia’s argument that, in the chart attached to the Ord
Award, “the islets with ‘Horsburgh Light R’ and ‘South Rocks’ are included and
121
depicted as islands belonging to Johor ”, is completely disingenuous.
Governor Ord did not get a new maritime chart prepared specially for this
Award. He used a pre-existing admiralty chart (which was the practical thing to
do) and drew on it a boundary line at 2 °59’20” N to mark the arbitrated
boundary between Johor and Pahang. Ther e is nothing in the chart itself which
depicts Pedra Branca and Middle Rocks (nam ed “South Rocks” in the chart) as
belonging to Johor. These features appeared on the chart because they happened
to fall within its geographical coverage. Singapore notes that the geographical
coverage of the chart also includes othe r islands belonging to Singapore such as
Pulau Tekong Besar, Pulau Tekong Kechil and Pulau Ubin, as well as part of the
main Island of Singapore. Based on Ma laysia’s logic, these other islands were
also depicted by Governor Ord “as isla nds belonging to Johor”. Malaysia’s
reasoning is clearly unten able. This chart theref ore cannot be and is not
evidence that Pedra Branca was intended to be or was a ttributed to the State of
Johor.
4.33 Malaysia has also argued that th e Ord Award was re-confirmed by the
Report of the Johor Boundary Commission of 1898 regarding the status quo of
Pedra Branca as Johor territory. 122 However, like the Ord Award, the 1898
60 nautical miles north of the Sedili Besar River). This treaty (a copy of which is at MM,
Vol.2, Annex 8) also ceded Pulau Tioman and some offshore islannorth of that river to
Johor. When the Pahang Civil War ended in 1864 with Bendahara Tun Korais deposed by
Bendahara Wan Ahmad, the latter sought to repudiate the cession made by Tun Korais in 1862
between Johor and Pahang which was eventually settled by the Ord Award in 1868. The Johor-l dispute
Pahang dispute settled by the Ord Award was therefore confined to the area between the Endau
River and the Sedili Besar River, and to the isla nds between and adjacent to these two rivers.
The Johor-Pahang dispute did not extend to the area around Pedra Branca.
121 MM p. 43, para. 88, emphasis added. The “South Rocks” referred to in this quotation are now
called “Middle Rocks”.
122 MM p. 46, para. 93, read with MM p. 51, para. 103(e).
– Page 55 –Report had nothing to do w ith Pedra Branca. In fact , the map attached to the
1898 Report did not even depict Pedra Branca (see Insert 7 (Map attached to the
Johore Boundaries Commission Report), opposite). This omission confirms that
the Ord Award had nothing to do with Pedra Branca.
E. T HE S ULTAN OF JOHOR ’S LETTER OF 20 M ARCH 1886
4.34 Next, Malaysia refers to a letter dated 20 March 1886 from the Sultan of
Johor to the British Government and cl aims that “[t]his provides further
evidence that at the time... Pulau Batu Puteh was firmly believed to be under the
sovereignty of the State of Johor”. 123 Malaysia quotes the following passage
from the letter:
“2. The Islands in question range themselves around the Coast of
Johore: all those on the Western side, and a large number on the Eastern
side, being in the immediate vicinity of Johore; but of the latter a large
proportion also extends farther out, stretching even as far as the
neighbourhood of Borneo.” 124[emphasis added]
and argues that:
“[i]t is evident that Pulau Batu Puteh was included in the phrase ‘a large
number on the Eastern side , being in the immediate vicinity of Johore’.
There is no suggestion th at any particular island was exempt from the
125
general position so described.”
4.35 Malaysia’s argument is a mere petitio principii. As the first paragraph of
the Sultan’s letter (which Malaysia has omitted to quote) makes clear, the Sultan
was asking for a register to be made of “the Islands in the open Seas and Straits
123 MM at p. 44, para. 91, emphasis added.
124 Letter from Sultan of Johore to Granvil(Principal Secretary of State to the Colonies)
dated 20 Mar 1886 (MM Vol. 3, Annex 63), quoted in MM p. 44, para. 90.
125 MM p. 44, para. 90.
– Page 56 – 126
belonging to the State of Johore”. The second paragraph of the letter (as
quoted by Malaysia above), merely de scribes where these islands (i.e., the
“Islands in question”) are geographically distributed. It is of course to be
expected that some of these islands (e .g., Pulau Tinggi) would be found “on the
Eastern side... in the immediate vicinity of Johore”. Such a statement is
therefore unremarkable and does not help advance Malays ia’s case in any way.
As a matter of simple logic, in order for such a statement to have any application
to Pedra Branca, Malaysia would first have to prove that Pedra Branca was
indeed an island “belonging to the State of Johore”, and this Malaysia has not
done.
4.36 Three further observations can be made about this letter:
(a) Singapore has examined the subse quent British reply to this letter
and the Sultan’s response, to discover that the entire purpose of
this letter was to seek the British Government’s assistance to claim
the Natunas, Anambas and Tambelans (collectively called “Pulau
Tujoh” in the Sultan’s letter) which were then in the possession of
the Dutch. The letter had nothing to do with Pedra Branca at all;
(b) In paragraph 5 of the letter, the Su ltan stated that he would send
“a detailed list of all the Islands with an alphabetical index”. This
statement is particularly telling. It shows that the Sultan intended
126 See para. 1 of the Sultan’s letter of 20 Mar 1886 (MM Vol. 3, Annex 63), which reads in full as
follows:
“In view of the possibility of any other Power making, as under its protectorate, any of
the Islands in the open Seas and Straits belo nging to the State of Johore, I shall feel
much obliged if your Lordship will kindly arrange for a Register of these appanages to
be preserved by Her Majesty’s Secretary of State for the Colonies as well as by His
Excellency the Governor of the Straits Settlements – By this plan the interests of [my]
country will be safeguarded under the provision of the Agreements recently made.”
[The word in square bracket was transcribed in MM Annex 63 as “any”. Singapore has
examined the manuscript and has ascertained that the word reads “my”.]
– Page 57 – only to claim such islands as listed, and not all the islands within
the general description he had given in his letter. As it turned out,
the Sultan did not send the list. The British had declined to assist
the Sultan to claim the Natunas, Anambas and Tambelans from the
Dutch, the reason being that th e British had, only a few years
127
before, acknowledged Dutch rights over the Natunas. Once this
was made known, the Sultan sto pped all correspondence on this
subject, making clear that the letter was all along about the
Natunas, Anambas and Tambelans only;
(c) Malaysia claims that among th e charts submitted by the Sultan
with this letter was “the same chart as used in the Ord Award”. 128
Singapore is unable to verify whether this is the case, because the
chart was returned by the British Government to the Sultan and no
copies of the chart can be found in the British archives. 129 Even if
that were the case, the chart is ir relevant to the present dispute as
the Ord Award chart had nothing to do with Pedra Branca (see
paragraphs 4.29 to 4.32 above).
4.37 For the foregoing reasons, there is not hing in the Sultan’s letter of 1886
that could form the basis of any belief on the part of the Sultan of Johor that
Pedra Branca was under his sovereignty when he wrote that letter.
127 See Correspondence Concerning Claim of the Sultan of Johore to the Natuna, Anambas and
Tambelan Islands: (i) File note by Herbert R. (Undersecretary, Colonial Office) of meeting with
Inchi Abdul Rahman (Secretary to the Sultan of Johore) dated 23 Mar 1886; (ii) Letter from the
British Colonial Office to British Foreign Office dated 25 Mar 1886; (iii) Letter from the British
Colonial Office to Inchi Abdul Rahman (Secretary to the Sultan of Johore) dated 20 Apr 1886;
(iv) Memorandum from Inchi Abdul Rahman (Secre tary to the Sultan of Johore) to the British
Colonial Office dated 5 May 1886; (v) Letter from the British Colonial Office to Inchi Abdul
Rahman (Secretary to the Sultanof Johore) dated 26 May 1886, attached to this Counter-
Memorial as Annex 21.
128 MM p. 44, para. 91.
129 See British Colonial Office Internal Minutes dated 28 Apr 1886 and 29 Apr 1886, attached to
this Counter-Memorial as Annex 22.
– Page 58 – F. T HE 1843 S INGAPORE F REE PRESS ARTICLE
4.38 Malaysia asserts th at an article in the Singapore Free Press “makes it
clear that Pulau Batu Pu teh belonged to Johor”. 130 Singapore notes that this is
merely an anonymous article published in a privately-owned newspaper. It is
not an official source, nor is there any indication that the information therein was
based on any official source. Concerning the value of press articles as evidence:
“the Court has been careful to treat them with great caution; even if they
seem to meet high standards of objectivity , the Court regards them not
as evidence capable of proving facts, but as material which can
nevertheless contribute, in some circumstances, to corroborating the
existence of a fact, i.e., as illustrative materialadditional to other
sources of evidence.”131[emphasis added]
4.39 The whole purpose of the article was to lobby the British authorities to
put pressure on the Temenggong to stop his subjects from engaging in piracy – it
can hardly be regarded as an article meeting “high standards of objectivity”. Nor
is the article capable of “corroborating” other sources of evidence – apart from
this one isolated reference, Singapor e has not been able to find any other
historical materials which attribute any “Batu Puteh” to the Temenggong. In any
event, the article is inaccu rate and unreliable – it erro neously states that Pulau
132
Tinggi was within the territories of the Temenggong.
130 MM p. 47, para. 95, emphasis added.
131 Case concerning Military and Paramilitary Activ ities in and against Nicaragua (Nicaragua v
United States of America) (Merits) [1986] ICJ Rep 14, at p. 40, para. 62.
132 See Crawfurd J., A Descriptive Dictionary of the Indian Islands and Adjacent Countries , supra
note 109, at p. 436, which attributed Pulau Tinggi to Pahang. See also Tarling N., British Policy
in the Malay Peninsula and Archipelago 1824-1871 (1969), at p. 68, note 268, where it is stated
that prior to the 1862 treaty, the Johore-Pahang boundary was at Sungei Sedili. This would
have placed Pulau Tinggi clearly on the Pahang side. See further Thomson’s Description of the
Eastern Coast, supra note 43, at p. 84, where Thomson wrote :
– Page 59 – G. T HE S TATE OF P UBLIC K NOWLEDGE IN M ID-19TH CENTURY S INGAPORE
4.40 Contrary to Malaysia’s claim that “[t]he sovereignty of Johor over Pulau
133
Batu Puteh was public knowledge”, all available evidence of the state of
public knowledge of the pe riod shows that Pedra Branca was not regarded as a
territory of Johor.
4.41 In 1847 (the year in which preparatory works fo r the construction of the
134
lighthouse were undertaken by the British), J.R. Logan published a detailed
account of his voyage to the east coast of Johor entitled Journal of a Voyage to
135
the Eastern Coast an d Islands of Johore . In addition, J.T. Thomson (the
architect and engineer of Horsburgh Lighthouse) had, in 1851 (the year in which
Horsburgh Lighthouse was commissioned) , published a detaile d account of his
voyage entitled Description of the Eastern Coas t of Johore and Pahang, with
136
Adjacent Islands. Both accounts gave detailed de scriptions of the islands of
Johor, but neither account mentioned Pedra Branca as belonging to the
Temenggong of Johor. Clearly neither Logan nor Thomson thought so.
“The group of islands that extends off th e coast to a distance of 30 geographical
miles, commencing atTokong Eu and ending atPulo Beralah , undoubtedly
belongs to Pahang as all the inhabitants acknowledge the Raja as their chief and
pay tribute annually.” [emphasis added] (Note : Pulau Tinggi belongs to the group
of islands commencing at Tokong Eu and ending at Pulo Beralah.)
133 MM p. 47, para. 96.
134 James Richardson Logan (1819-1869) was born in Scotland, studied law in Edinburgh and was
a law agent in Penang and later Singapore. He was the founding editor of the Journal of the
Indian Archipelago and Eastern Asia (from 1847 to 1859). He was also editor of the Pinang
Gazette. Further biographical information about him can be found in the Oxford Dictionary of
National Biography (2004), Vol. 34, pp. 313-314.
135
Logan J.R., Journal of a Voyage to the Eastern Coast and Islands of Johore , 2 Journal of the
Indian Archipelago and Eastern Asia 616 (8), attached to this Counter-Memorial as
Annex 13.
136 Thomson’s Description of the Eastern Coast, supra note 43.
– Page 60 –4.42 Furthermore, from the first public meeting on 22 November 1836 in
Canton concerning the proposal to construct Horsburgh Lighthouse, all the
European merchants, whether in Canton, Singapore or India, had acted on the
basis that all that the British had to do was to take possession of Pedra Branca
and build the lighthouse on it. At no time did any of them consider or express a
view that the consent of either the Su ltan or Temenggong of Johor was relevant
137
to the project.
4.43 Neither did the British Government – when they took possession of Pedra
Branca in 1847, they did it without any reference to the Temenggong – see
Chapter V, below. This is confirmed by comparison with British practice in the
19th century in the region concerning the building of lighthouses on native
territories. If the lighth ouse was to be bui lt on native territories, the British
practice was to obtain a formal gran t or cession of the land on which the
lighthouse was to be built from the local chief who had authority there. For
example, in the cases of Cape Rachado and Pulau Pisang, the British sought and
obtained land grants from the local ch ief for the establishment of the
138
lighthouse. In the cases of Peak Rock an d Pulau Aur, informal permission
was obtained from the local chiefs, but the British did not follow up with
obtaining formal land grants because the British did not proceed with either of
these projects.
4.44 In the case of Pedra Branca, the British built the lighthouse but did not
request a land grant. This shows that the British did not consider that they had to
seek permission from the local chiefs to take possession of the island and to
build a lighthouse on it. What stands out clearly from the documentary evidence
137 The only newspaper article that had referred to permission being soughtPeak Rock,
not Pedra Branca. See below, at para. 5.78.
138
MM p. 60, note 101 and 102.
– Page 61 –is the complete absence of any disc ussion in British official documents
indicating any necessity to seek permissi on to take possessi on of Pedra Branca
and to build a lighthouse on it.These facts clearly show that British officials
of the time did not regard Pedra Branca as territory belonging to any native chief
in the region. Similarly, when the British constructed the One Fathom Bank
lighthouse, which was beyond the 3-nautical mile territorial waters of the Malay
states, Britain did not seek permission from any local ruler before constructing
the lighthouse.40
4.45 Clearly, any notion that the state of “public knowledge” in the mid-19th
century supports Malaysia’s case is completely misguided.
H. T HE TEMENGGONG H AD N O AUTHORITY O N OR IN THE V ICINITY OF
P EDRA B RANCA
4.46 In Chapter 6, Section C of her Me morial, Malaysia extensively discusses
the role of the Temenggo ng, in an attempt to sh ow that the Temenggong’s
activities “confirm that Pulau Batu Pu teh was under Johor’s sovereignty”.41
Singapore will show in the next few pa ragraphs that none of these alleged
activities were à titre de souverain , and that the Temenggong in fact exercised
142
no authority on or in the vicinity of Pedra Branca.
139 See below, Chapter V, Section V, at paras. 5.58-5.90.
140 The One Fathom Bank lighthouse is located 16 nautical miles off the coast of a Malay state
called Selangor. See Insert 5 (Places Mentioned in Chapter IV), after p. 42 for the position of
One Fathom Bank.
141 MM p. 70, para. 150.
142 See above, Chapter III, at paras. 3.36-3.37.
– Page 62 – 1. Suppression of Piracy by the Temenggong
4.47 Malaysia has relied on the Temen ggong’s role in the suppression of
piracy as evidence of th e effective display of authority over Pedra Branca.
Malaysia refers to an event where a Britis h gunboat proceeded to the vicinity of
Pedra Branca for escort duties with four boats belonging to the Temenggong as
one of “[t]he Temenggong’s activitie s against piracy constitut[ing] a
manifestation of Johor’s exercise of sovereignty in the region under
consideration”. 143
4.48 This argument has no merit. Piracy was a crime against the law of nations
long before 1819. States have routinely taken action to suppress piracy outside
their territorial waters. Acts relating to suppression of piracy are not acts
establishing territorial sovereignty under international law. In making this
argument, Malaysia is speaking from diffe rent sides of her mouth at different
times. In the Indonesia/Malaysia case, Indonesia sought to rely on an actual
visit in 1921 by a Dutch vessel, the Lynx, to the island of Sipadan for the purpose
of suppressing piracy, as evidence of her sovereignty over the island. Malaysia’s
rebuttal was that:
“Passing through or surveying a particular area, even if it is for the sake
of combating piracy jure gentium144must not be confused with the
exercise of territorial sovereignty.”
Malaysia then continued:
“The incident has nothing to do with Dutch territorial jurisdiction over
145
any islands whatever.”
143
MM pp. 67-68, paras. 142-143.
144
See ICJ Pleadings, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) ,
Reply of Malaysia, at p. 35, para. 3.21.
– Page 63 –The Court agreed, and said in its Judgment:
“In the opinion of the Court, it cannot be deduced either from the report
of the commanding officer of the Lynx or from any other document
presented by Indonesia in connecti on with Dutch or Indonesian naval
surveillance and patrol activities that the naval authorities concerned
considered Ligitan and Sipadan and the surrounding waters to be under
the sovereignty of the Netherlands or Indonesia.” 146
4.49 In the incident in qu estion, the Temenggong’s boa ts were in fact being
escorted to the vicinity by the British gunboat. 147 The suppression of piracy in
the Straits of Malacca and Singapore was, at that time, an essentially British
enterprise, for which th e British authorities sou ght the contribution and
assistance of friendly local chiefs. 148 The Temenggong’s activities in relation to
the suppression of piracy were carried out at the request of the British and he
was merely one of several subordin ate participants in a wider British
undertaking. 149
4.50 Malaysia’s argument based on the Temenggong’s participation in the
suppression of piracy fails completely to prove, and is also irrelevant to the
determination of, title to Pedra Branca.
145 Ibid, at p. 37, para. 3.26.
146 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , supra note 13, at
para. 139.
147 Malaysia acknowledges that the Temenggong’s bo ats proceeded to the vicinity in the company
of a British gunboat – see MM p. 67, para. 142.
148
Tarling N., Piracy and Politics in the Malay World (1962), at pp. 67-68; Miller H., Pirates of
the Far East (1970), at p. 41.
149
See Speech of Butterworth W.J. (Governor of Pr ince of Wales Island, Singapore and Malacca)
at Ceremony for Presentation of Sword to the Temenggong quoted in “Presentation of a Sword
to H.H. the Tomongong Sree Maharajah of Johore”, Straits Times (5 Sep 1846) (MM Vol.3,
Annex 52).
– Page 64 – 2. Temenggong’s Visit to Pedra Branca on 2 June 1850
4.51 Malaysia has referred to the visit of the Temenggong to Pedra Branca on
2 June 1850 and his overnight stay on the island as “suggest[ing] that he
considered himself as being on his own territory”. 150 Singapore will deal with
this episode fully in Chapter V below. It is sufficient now to note that
Malaysia’s suggestion has no factual ba sis and that in fa ct the Temenggong
visited Pedra Branca with British permission, and acted throughout his stay as a
guest of Thomson, a British official. 151
3. Alleged Activities of Orang Laut
4.52 Another piece of “evidence” relied on by Malaysia was the piracy
perpetrated by the Orang Laut in the waters of Pedra Branca. 152 Malaysia asserts
that “most of the pirates were considered to be subjects of Johor, in particular
those who were ‘Orang Laut’ or ‘Orang Selat’ by origin”. 153
4.53 Malaysia’s argument – that the piratical acts of the Or ang Laut (allegedly
subjects of the Temenggong) constitutes evidence of Johor’s ownership of Pedra
Branca – has no substance at all. Certainl y, there is no rule of international law
150 MM p. 70, para. 149.
151
The visit of the Temenggong is discussed in further detail below, at paras. 5.102 to 5.106.
152
The phrase “Orang Laut” literally means “sea people” in Malay, and is a generic term referring
to sea dwelling peoples throughout South EastAsia. They are commonly referred to by
Europeans as “sea gypsies”, due to their nomadic disposition and their propensity to engage in
peddling trade in a manner reminiscent of the Gypsies in Europe. These Orang Laut came from
many tribes and areas in the region. For example, Orang Laut of Bajau origin, usually known as
“Orang Bajau Laut” or simply “Bajau Laut” we re distributed across the entire region, with a
higher concentration around the coast of Borneo.
153 MM p. 67, para. 141.
– Page 65 –that the piratical activities of a State’s subjects in a particular area can somehow
confer sovereignty upon that State.
4.54 Malaysia has also argued that the Rules for Lightkeepers drafted by J.T.
Thomson for the Horsburgh Lighthouse prov ides “further evidence that a clear
distinction existed, in the minds of those involved, between sovereignty over the
island and the ownership of the lighthouse”. 154 Malaysia based this argument on
the observation that those rules only required lightkeepers to exclude “natives of
the Orang Laut tribe” from the lighthouse building, but did not expressly require
lightkeepers to exclude them from the island. 155 This is an outlandish argument
made without regard to the context of the Rules for Lightkeepers. Nothing in the
Rules implied that the British did not c onsider themselves sovereign over the
island. The Rules for Lightkeepers did not expressly requi re the lightkeepers to
actively prevent the native tr ibes from landing on the island for the very simple
reason that the lighthouse was lightly manne d and located in a very isolated and
remote position. If attacked by pirate s and outnumbered, it would have been
imprudent for the lightkeepers to leave the lighthouse to try to expel them from
the island. The best defence, and the safest course of action, was for the
lightkeepers to defend themselves from inside the lighthouse. Thomson has
156
explained this fully in his Account.
154
MM p. 68, para. 145.
155
MM p. 68, para. 143-145.
156
Thomson’s Account, supra note 67, at pp. 391-392 (SM Vol. 4, Annex 61, pp. 492-493) , where
Thomson writes:
“It is the most approved practice in modern Light-house engineering, to erect
accommodation for the light-keepers separate from the tower or pillar that carries the
lantern, for, notwithstanding the greatest precautions are adopted, the minute particles
of dust that always imperceptably [ sic] fly about the rooms of dwellings, penetrate to
and affect all other parts of the same building, and which falling on and covering every
article cannot but act prejudicially on the de licate apparatus now used for Light-house
illumination ... But in the position of Pedra Branca, an object more important than this
seemed to consist in the safety of the lig ht-keepers from attack by pirates and other
evil-disposed persons. Its solitary position and great distance from inhabited places,
– Page 66 – 4. Church’s Letter of 7 November 1850
4.55 Malaysia next refers to Resi dent Councillor Chur ch’s letter of 7
November 1850. After expressing doubt on the necessity of establishing a
station on the mainland at Point Romania to provide protection to the lighthouse
and its inmates (as recommended by Thom son in his letter dated 2 November
1850), Church stated in the letter th at “Romania moreover belongs to the
Sovereign of Johore, where the British possess no legal jurisdiction”. Malaysia
extrapolates the following conclusion from these words:
“Thus for the British authorities in the Settlement of Singapore, the
establishment of a naval force in the vicinity of Point Romania would
have required the Temenggong’s authorization.” 157 [emphasis added]
Malaysia appears to be implying that because the establishment of a “naval force
in the vicinity of Point Romania” required the Temenggong’s authorisation, he
must have had authority over Pedra Branca as well.
4.56 Malaysia’s argument is based on a distortion of Thomson’s and Church’s
references in their respective letters of 2 November 1850 and 7 November 1850.
Thomson advocated the esta blishment of an aid station at Point Romania.
Church described Thomson’s proposal as one for “the Establishment of a station
near Point Romania”. Neither wrote about “the establishment of a naval force
might, were this point not attended to, have subjected the establishment to molestation,
not only from the sea tribes of the immediate vicinity, who are notorious for their
piratical propensities, but from the Chinese junks which in numbers annually commit
depredations on all they think they can sa fely attack. ... Under these circumstances I
considered that a tower having accommodation for the light-keepers, with rooms for
stores, provisions and water for 6 months, would be the most suitable for the position;
this tower to be entered by strong doors reached by a ladder, which could be drawn up
inside when necessary, to prevent access . This plan, it appeared to me, would amply
suffice to deter any class of natives om attacking the building, and as the
establishment now consists of 8 men with fi re arms for each there can be no fear of
their not being able to resist any attempt made against them.” [Emphasis added]
157 MM p. 69, para. 147.
– Page 67 –in the vicinity of Point Romania”, as alleged by Malaysia. Their letters
addressed the proposal to establish an aid station on mainland Johor, not the
placement of a naval force in the wate rs around Pedra Bran ca. Malaysia’s
approach is no more than an exercise in linguistic gymnastics in order to hide the
fact that Church’s words strongly su pport Singapore’s case. The real
significance of Church’s letter is that he, the most senior British official in
Singapore after the Governor, drew a cl ear distinction between mainland Johor
(Point Romania) where the British po ssessed no legal jurisdiction, and Pedra
Branca where the British had jurisdiction (and the Temenggong had none).
5. Evidence that the Temenggong Lacked Authority in the Vicinity of
Pedra Branca
4.57 Malaysia has made much of fishing and piracy in the vicinity of Pedra
Branca by people considered to be subj ects of the Temenggong as evidence of
the Temenggong’s jurisdiction over Pedr a Branca. However, Malaysia has not
produced any evidence that thes e fishermen and pirates were all subjects of the
Temenggong or that the waters of Pedra Branca were frequented exclusively by
his subjects. Thomson’s Account shows that the natives he encountered came
from other islands that were not with in the jurisdiction of the Temenggong. 158
Singapore has already referred to Church ’s letter of 7 Nove mber 1850 which
shows that the Temenggong had no authority on and in the vicinity of the Pedra
Branca. In any event, as a matter of international law, fishing activities are
159
private acts and have no legal relevance.
158
Thomson’s Account, supra note 67, at p. 457 (SM Vol. 4, Annex 61, p. 560).
159
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Mal, supra note 13, at
para. 140. See also, para. 3.12 above.
– Page 68 –4.58 Further, it should be noted that th e situation concerni ng Orang Laut in
this case is in many respect s the same as the situation concerning a similar tribe
of sea gypsies – the Bajau Laut – that featured in the Indonesia/Malaysia case.
The Court noted in that case:
“Malaysia relies on the ties of a llegiance which allegedly existed
between the Sultan of Sulu and the Bajau Laut who inhabited the islands
off the coast of North Borneo a nd who from time to time may have
made use of the two uninhabited islands [i.e., Ligitan and Sipadan]. The
Court is of the opinion that such ties may well have existed but that they
are in themselves not sufficient to provide evidence that the Sultan of
Sulu claimed territorial title to these two small islands or considered
them part of his possessions. Nor is there any evidence 160t the Sultan
actually exercised authority over Ligitan and Sipadan.”
4.59 By the same token, even if ther e were ties of allegiance between the
Orang Laut who fished in the vicinity of Pedra Branca and the Sultan or
Temenggong of Johor – and such ties have not been demonstrated by Malaysia –
they would not convert th e occasional presence of these Orang Laut into
evidence of the Sultan’s or Temenggong’s sovereignty over the island. Just as in
the Indonesia/Malaysia case, there is absolutely no evidence here that the Sultan
or Temenggong of Johor ever exercised any authority over Pedra Branca.
4.60 It is also pertinen t to note that, in the Eritrea/Yemen arbitration, even
temporary residence of a few months at a time by fisherman on barren islands
was considered insuffi cient to prove title. 161 In the case of Pedra Branca, no
evidence of any form of residence, howev er temporary, has been produced by
Malaysia.
160
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malay, supra note 13, at
para. 110.
161
Eritrea/Yemen Arbitration (Phase One), supra note 97, at paras.347-357, in particular, paras.
353-355.
– Page 69 –4.61 Indeed, and finally, a fully-documented incident in 1861 concerning some
Singapore fishermen shows conclusively that the Temenggong had no authority
162
whatever over the wate rs around Pedra Branca. In1861,someChinese
163
fishermen resident in Singap ore (and thus British subjects) were attacked by
164
some Johor Malays when fishing in waters near the coast of mainland Johor.
Their boats and nets were also seized and detained. The Singapore fishermen
lodged a complaint with the British Resident Coun cillor in Singapore, claiming
that they had been fishing near Pedra Branca, and were attacked near the Johor
coast on their way back to Singapore. Th ey sought the protection of the British
authorities, which they submitted was “t heir right as naturalized British
subjects”. 165 The British authorities, believi ng that the fishermen had been
fishing near Pedra Branca, took up th eir complaints with the Temenggong
without hesitation. 166 However, subsequent inves tigations into the complaint
showed that the fishermen ha d not told the truth and th at they had indeed been
fishing in waters near the Johor coast. 167
4.62 The fact that the Singapore fishermen chose to lie about the location of
their fishing activities gives rise to the irresistible inference that they were aware
that the Temenggong exerci sed no authority whatever over Pedra Branca, and
162
See Letter from Cavenagh O. (Governor of the Straits Settlements) to the Secretary to the
Government of India dated 17 July 1861 (with 9 enclosures), attached to this Counter-Memorial
as Annex 19.
163 Ibid, at pp. 2 and 6 (Annex 19, pp. 190 and 194).
164 Ibid, at p. 2 (Annex 19, p. 190).
165 See the Petition from 41 Chinese Fishermen, inhabitants of Singapore, to the Resident
Councillor of Singapore (undated), attached as part of Annex 19, at pp. 193-194.
166
See Letter from Cavenagh O. (Governor of the Straits Settlements) to the Temenggong of Johor
dated 15 May 1861, attached as part of Annex 19, at p. 194.
167
See Letter from the Temenggong of Johor to Cavenagh O. (Governor of the Straits Settlements)
dated 17 July 1861, attached as part of Annex 19, at pp. 196-202. In particsee para.3 of
the letter (Annex 19, p.197). The various depositions attached to the letter confirm that the
Singapore fishermen had been fishing near the Johor coast and not near Pedra Branca.
– Page 70 –that the waters around Pedra Branca came under British protection and
jurisdiction. This is the logical and natu ral explanation for their giving the false
account. They were layi ng the foundation for the British authorities to seek
redress on their behalf and retrieve th eir fishing equipment. As they had
anticipated correctly, the British took up their complaints with the Temenggong,
and the obvious conclusion from the British action is th at they had jurisdiction
over Pedra Branca and its territorial waters.
Section III. Conclusions
4.63 From the discussions in Chapter I II and this Chapter, it can be concluded
that:
(a) Malaysia has not explained a nd is unable to explain how her
alleged “original title” came ab out. When examined under
classical international law concep ts, Malaysia has failed to prove
her title. Even when examined under traditional Malay concepts
of sovereignty, Malaysia’s clai m to “original title” also fails.
There is clearly no such “original title” on any basis;
(b) Malaysia’s claim to original title to Pedra Branca based on the
ownership of both coasts of th e Singapore Strait by the Johor-
Riau-Lingga Sultanate at some tim e in the past is nothing more
than a claim based on proximity, a claim that is of no legal
relevance in this case;
(c) Neither the Johor-Riau-Lingga Sultanate nor the State of Johor had
ever displayed an intention to claim Pedra Branca, nor had they
ever exercised State authority on or in relation to Pedra Branca.
Malaysia has produced no evidence that points to a single exercise
of State authority on or in relatio n to Pedra Branca either by the
Johor-Riau-Lingga Sultanate or the State of Johor. The Orang
– Page 71 – Laut activities alleged by Malaysia were private activities which
could not have conferred title to territory;
(d) No Malay ruler had taken any interest in Pedra Branca, and there is
not a single historical document which has positively attributed
Pedra Branca to the Johor-Riau-Lin gga Sultanate or the State of
Johor;
(e) At the time when the British took possession of Pedra Branca, it
was not regarded as a territorial possession of Johor.
– Page 72 – CHAPTER V
RECAPITULATION OF THE BASIS OF TITLE TO PEDRA
BRANCA: THE TAKING OF LAWFUL POSSESSION BY AGENTS
OF THE BRITISH CROWN
Section I. Introduction
5.1 The purpose of the present Chapter is to rebut both the legal arguments
and connected assertions of fact contained in Ch apter 6 of the Malaysian
Memorial. Whilst the apparent focus of that Chapter is the permission of Johor
to build a lighthouse (allegedly on Pe dra Branca), the arguments advanced
involve a substratum of flawed premises and assumptions. As a consequence,
Singapore has found it appropriate, in S ection II of this Chapter, to recapitulate
the basis of her title to Pedra Branca and the pertinence of the principles of
general international law applicable at the material time.
5.2 Sections III, IV and V of the pres ent Chapter are devoted to a detailed
examination of the long sequence of th e relevant British documents and the
demonstration that the Malaysian Memorial has misrepresented the substance of
Butterworth’s letter dated 28 November 1844 by proposing that Butterworth was
referring to Pedra Branca as well as Peak Rock.
Section II. The Basis of Claim
5.3 At this stage it is appropriate to recapitulate the basis of Singapore’s
claim (or title). The basis of claim ithe taking of lawful possession of Pedra
Branca by the agents of th e British Crown in the peri od 1847 to 1851. This
taking of possession was not protested by Johor and there were no competing
acts of any other sovereign. In the circumstances the inte ntion of the British
Crown was to establish sovereignty, th at is to say, an exclusive title under
– Page 73 –general or customary international law to the island and its appurtenant rocks
and waters.
5.4 The title to Pedra Branca was acquired by the United Kingdom in
accordance with the legal principles go verning acquisition of territory in the
period 1847 to 1851. 168 In the applicable law th e key legal principle was the
requirement of an intention to take possession permanently and with the
intention of acquiring sovereignty in terms of public international law.
5.5 The existence of intention depended on the provision of evidence but no
particular formalities were called for. This was the position in the British
practice of the time.
5.6 The position is set forth very luci dly in the passage from Roberts-Wray
169
already quoted in the Singapore Memorial. In a fuller version, the passage
reads as follows:
“Annexation, in a broad sense, is a fourth method of acquisition of
Colonies. An instrument of annexation may accompany the acquisition
of territory by settlement, conque st 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 w ithin Her Majesty’s dominions; for
example, in the case of remote unoccupied areas such as those in the
Antarctic, where there is no question of settlement, cession or conquest.
Even if the root of title is discove ry, that, though important from the
international point of view, is not per se a method of acquisition. In
international law it must be followed by effective occupation; in
municipal law ownership should some how be asserted, preferably by
formal document, such as an instrument of annexation. The first formal
instrument made with respect to th e Falkland Islands Dependencies and
the British Antarctic Territory appears to have been Letters Patent dated
July 21, 1908, providing for their government.” 170
168 SM pp. 79-86.
169 SM p. 74, para. 5.90.
170 Roberts-Wray K., Commonwealth and Colonial Law (1966), at pp. 107-108.
– Page 74 –5.7 This author does not indicate that an instrument of annexation is
mandatory, either in international law or in municipal law. In any case, the
governing principle is inte ntion, and Roberts-Wray is clear that the unilateral
manifestation of the will of the Crown is a sufficient basis of title.
5.8 In the Malaysian Memorial it is contended that the consistent British
practice in the annexation of territory i nvolved “formal and rather standardised”
acts of taking of possession of territory . A passage from the work of Keller,
Lissitzyn and Mann is quoted to support this thesis. 171
5.9 The Malaysian thesis is built on sand. The standard works on British
172
practice are ignored. More importantly, the applicable law is general
international law and not British practice. In any event there was no distinction
between the position in general internatio nal law and the standard adopted in
British practice. Both eschewed any requirement of formality.
5.10 There is a further flaw in the Malaysian position. The practice relied
upon relates to cases of acts of annexation by British subjects, and the principle
here was the requirement that the will of the Crown should be operative. This is
very clear from the authoritative sources. The normal practice is that when a
British subject purports to acquire title over territory, this can be converted into
title by occupation only upon adoption by the Crown. 173
171 MM pp. 73-74, paras. 158-160.
172 The standard works include the following: Hall W.E., A Treatise on International Law (8th ed.,
1924); Smith H.A., Great Britain and the Law of Nations, Vol. 2 (1935); McNair, International
Law Opinions, Vol. 1 (1956); Roberts-Wray K., Commonwealth and Colonial Law (1966).
173 See McNair, International Law Opinions, Vol. 1 (1956), at pp. 295-298, 314-319.
– Page 75 –5.11 The position is set out by the classical writer, W.E. Hall, as follows:
“In order that occupation shall be legally effected it is necessary, either
that the person or persons appropriating territory shall be furnished with
a general or specific authority to take possession of unappropriated lands
on behalf of the state, or else that the occupation shall subsequently be
ratified by the state. In the latter case it would seem that something
more than the mere act of taking po ssession must be done in the first
instance by the unauthorised occupant s. If, for example, colonists
establishing themselves in an unappropriated country declare it to
belong to the state of which they are members, a simple adoption of
their act by the state is enough to complete its title, because by such
adoption the fact of possession and the assertion of intention to possess
upon which the right of property by occupation is grounded, are brought
fully together. But if an uncommissioned navigator takes possession of
lands in the name of his sovereign, and then sails away without forming
a settlement, the fact of possession has ceased, and a confirmation of his
act only amounts to a bare assertion of intention to possess, which, being
neither declared upon the spot nor supported by local acts, is of no legal
value. A declaration by a commissioned officer that he takes possession
of territory for his state is a state act which shows at least a momentary
conjunction of fact and intenti on; where land is occupied by
unauthorised colonists, ratificatio n, as has been seen, is able
permanently to unite the two; but the act of the uncommissioned
navigator is not a state act at the moment of performance, and not being
permanent in its local effects it cannot be made one afterwards, so that
the two conditions of the existe nce of property by occupation, the
presence of both of which is necessary in some degree, can never co-
exist.”174
5.12 Thus, the test remains that of the ma nifestation of the will of the Crown.
The proposition by Keller, Lissitzyn and Mann is not relevant and has no
application to the British occupation of Pedra Branca. Instead, as explained
above, in some cases, symbolic acts effected by the individuals in the absence of
a commission from the Crown were not sufficient in themselves to generate title,
except when the ratification of the Crown had been effected. This again, is of no
relevance to Pedra Branca.
174
See Higgins P., Hall’s International Law (8th ed., 1924), at p.128.
– Page 76 –5.13 The Malaysian argument in this connection thus lacks any sound legal
foundation. It also runs counter to common sense. The ag ents of the Crown
responsible for planning and constructing the Horsburgh Lighthouse were acting
upon the express mandate of the Br itish Crown, a mandate which was the
originating element of the wh ole enterprise. The result was in sharp contrast to
the cases of acts of British subjects re lied upon by Malaysia in which no title
could result until ratification was forthcoming.
5.14 The Malaysian Memorial seeks to es tablish two propositions (intended to
apply in conjunction) as follows:
First, “[i]n all the cases in which Britain’s intention was the establishment
or the assertion of British sovereignty... that act was accomplished
in a formal manner, involving a formal claim of sovereignty, the
hoisting of the Union Jack and other manifestations of that
intention, followed by some official proclamation of
annexation”. 175
Secondly, “[t]he absence of a British act taking possession of Pulau Batu
Puteh testifies to the fact that at no time did Britain have the
176
intention of establishing sovereignty over it”.
5.15 The assertions relating to British practice have several fundamental flaws.
The correct approach must involve referen ce to the applicable law, that is, the
general international law of the releva nt time. The criterion prescribed by
international law was the in tention of the state concer ned to acquire title. As it
has been demonstrated above, the British approach was essentially the same and,
175
MM pp. 74-75, para. 161.
176
MM p. 76, para. 164.
– Page 77 –in particular, there was no mandatory requirement of a formal taking of
possession.
5.16 The British practice must be appreciat ed in this general ambit. As a
matter of administrative convenience, Le tters Patent would be issued in some
cases but such measures were not th e necessary prerequisite of claiming
sovereignty. Such measures were of course sufficient to evidence intention to
claim title, but they were not the only means of evidencing such intention.
5.17 There are further flaws in the Malaysian argument. Because the
Malaysian position rests on the (invented ) premise that a claim had to be
accomplished “in a formal manner”, it is assumed that the absence of such
formality in the case of Pedra Branca is fatal to Singapore’s case. This
reasoning involves the usual non sequitur. The criterion was the manifestation
of an intention to claim sovereignty a nd this could constitute evidence either
with or without “formalities”.
5.18 More significantly, the Malaysian G overnment argues that, in relation to
certain other territories, British practice was different. In the words of the
Malaysian Memorial:
“Nothing of this sort occurred on Pu lau Batu Puteh. The absence of a
British act taking possession of Pulau Batu Puteh testifies to the fact that
at no time did Britain have the intention of establishing sovereignty over
it. Unlike Cocos (Keeling) Island s and Christmas Island, no further
incorporation of Pulau Batu Pute h into the Colony of the Straits
Settlements by way of Letters Patent, Order in Council, Proclamation or
otherwise occurred. At 177time did Pulau Batu Puteh become part of the
territory of Singapore.”
5.19 The answer to this argument is si mple. There was no requirement of
British practice that the cases of the Co cos Islands and Christmas Island should
177 MM p. 76, para. 164.
– Page 78 –be dealt with in the same manner as Pe dra Branca. The British conduct in the
period 1847 to 1851 constituted a pattern of State activities which unequivocally
indicated an intention to acquire sovereignty and exclusive possession.
5.20 In this context it is instructive to examine the data presented by Malaysia
in relation to the Cocos Islands, which is as follows:
“Of particular interest are the case s of the Cocos (Keeling) Islands and
the Christmas Island. In 1857, Captain Fremantle in command of HMS
Juno took possession of the Cocos Is lands on behalf of the British
Crown. In 1878, the British Govern ment authorised its colonial
authorities in Ceylon to exercise administrative control over the Cocos
(Keeling) islands. On 1 February 1886, Letters Patent appointed the
Governor of the Straits Settlements to be Governor of the Cocos
(Keeling) Islands and authorised a transfer of those islands to the Colony
of the Straits Settlements. Or dinance XVIII of 18 September 1903
provided that ‘for administrative purposes [the Cocos Islands] be
incorporated with and form part of the Settlement of Singapore’, quoting
the Proclamation of 15 July 1903, by which ‘the boundaries of the
Colony of the Straits Settlements should be extended so as to include the
178
Cocos Islands.’” [footnotes omitted]
5.21 If these data are compared with th e activities relating to Pedra Branca in
the period leading up to th e inauguration of the lightho use, can it be credibly
argued that the modalities of possession re lating to the Cocos Islands are in any
sense of superior quality, legally and politically, than those relating to Pedra
Branca?
5.22 The absence of common sense fro m the substance of the Malaysian
argument is even more apparent in re lation to certain other examples. The
Malaysian Memorial provides, as an ex ample of an assertion of sovereignty
“accomplished in a formal manner”, the deposit of a cylinder in which there was
178
MM p. 75, para. 162.
– Page 79 –a document taking possession of the territory. 179 Thus, such an act is proposed
as an act more substantial in charac ter (perhaps because it is supposedly
“formal”) than the pattern of British Government ac tivities concerning Pedra
Branca which are detailed in Chapter V of the Singapore Memorial. In this
context the Court is asked to consider that a process lasting more than four years,
and involving the appropriation of an island and the construction of a major
lighthouse for State purpo ses, as evidence of animus occupandi, should carry
less weight legally than the “formal” deposit of a cylinder containing a
document.
5.23 Malaysia invokes the British Applications in the Antarctica cases as the
basis for her proposal that such an act as the deposit of the cylinder containing a
document involves “a formal claim of sovereignty”. 180 But the Court should not
be persuaded into believing that this was the British position.
5.24 The statement relied upon, indirectly and without actual quotation, by
Malaysia, is as follows:
“In 1829, Captain H. Foster, R.N., in H.M.S. Chanticleer, effected a
landing on one of the coastal islands, Hoseason Island off West Graham
Land, and deposited there a copper cylinder in which was a document
taking possession in the name of King George IV.” 181
This statement appears in the Unite d Kingdom Applications instituting
proceedings against Argentin a and Chile. In both Applications, the statement
appears under the same heading: “Ori gins of the British Titles, Historic
179 MM at p.74, para.161, referring to ICJ Pleadings, Antarctica Cases (United Kingdom v.
Argentina; United Kingdom v. Chile) , p.8 at p.12; and p.48 at p.52 respectively (4 May
1955).
180 MM pp. 74-75, para. 161.
181 See ICJ Pleadings, Antarctica Cases (United Kingdom v. Argentina; United Kingdom v. Chile) ,
p. 8 at p. 12, para. 10; and p. 48 at p. 52, para. 10 respectively.
– Page 80 –Discoveries and Acts of Annexation by British Nationals in the Period 1675 –
1843”.
5.25 So much for the provenance of the statement, and now for the substance
of the matter. In neither Application is it contended that such acts of themselves
can confer title. The Applications rely on other elements, namely, the display of
British sovereignty and recognition by the opposing party, which other elements
are clearly necessary to establish title. 182 As the text of these Applications
shows, the United Kingdom was relying upon “long- continued and peaceful
display of British sovereignty”. In the result the Un ited Kingdom Applications
provide no support for the view that “forma l” acts were essential, or that they
could provide sufficient basis of title w ithout the presence of other necessary
elements.
5.26 It is significant that the distingui shed international lawyers who were
concerned in the development of the British legal strategy regarding the Falkland
Islands Dependencies insisted, in thei r published works, on the need for the
actual display of sovereignty and maintenance of title on the basis of actual State
183
activity.
5.27 In any event, even if Malaysia’s insistence on formalities was correct,
quod non, Singapore notes that British coins, copies of the official trade and
revenue figures of the Straits Settlement s and a plan of the Town of Singapore
182
Ibid, at p. 37, paras. 45-46 and p. 74, paras. 43-44, in the concluding submissions, respectively.
183
See Waldock H., Disputed Sovereignty in the Falkland Island Dependencies , 25 Brit. Yr. Bk.
Int’l L. 311 (1948), at p. 322-325. (In the relevant period Sir Humphrey Waldock was known to
Fitzmaurice G., The Law and Procedure of the International Court of Justice 1951-4: Points ofe);
Substantive Law (Part II), 32 Brit. Yr. Bk. Int’l L. 20 (1955-56), at pp. 49-52, 66-67 and 69-70
(Sir Gerald Fitzmaurice was Legal Adviser [the senior position among the legal advisers] in the
British Foreign Office from 1953 to 1960).
– Page 81 – 184
were deposited on Pedra Branca during the inauguration ceremony. If, as
Malaysia has argued, the deposit of a cyli nder in the Antarctic a case fulfils the
requirements of formality, it is illogical to claim that the depo sit of these items
on Pedra Branca does not similarly fulfil this requirement. In the final analysis,
the criterion is the existence of intention to acquire sovereignty. In the case of
Pedra Branca there is a variety of proofs of intention, and th ese have been set
forth in Singapore’s Memorial.
Section III. The Question of the Permission of Johor and the
Decision of the British Government on Pedra Branca as the
Location of the Lighthouse
5.28 In presenting the thesis that the authorities in Johor gave permission to the
British Government for the building of a lighthouse on Pedra Branca, the
Malaysian Government misconstrues the key documents and also fails to give a
complete picture of the process of deci sion-making on the part of the British
Government. In order to make the necessary corrections both of general
perspective and of detail, the Governme nt of Singapore will adopt a strictly
chronological account of the decision-making process.
5.29 As a preparatory step toward understanding the history it is useful to refer
to Map 9 of the Singapore Memorial, entitled: “Chart of the Vicinity of the
Horsburgh Lighthouse and Adjacent Malayan Coast by J.T. Thomson,
Government Surveyor, 1851”, reproduced opposite as Insert 8 . This Chart
shows that Peak Rock, a possible site much referred to in the documents, forms
part of the Romania Islands which ar e obviously adjacent to the Malay
Peninsula. Peak Rock is near the eastern edge of the group but it is not in any
way separated from the group. Pedra Bran ca lies 7.7 nautical miles from Point
184 Thomson’s Account, supra note 67, at p.428 (SM Vol. 4, Annex 61, p.531). The relevant
passage from Thomson’s Account is quoted in SM p. 53, para. 5.57.
– Page 82 –Romania on the Malaysian mainland and forms an independent feature, well
separated from the Romania group. This is also abundantly apparent from a
perusal of the satellite photograph at Insert 9, after page 100 of this Counter-
Memorial.
5.30 The history starts in 1836 when merchants in Canton and elsewhere
resolved to raise a lighthouse on Pedr a Branca in memory of the hydrographer
James Horsburgh. 185 However, “not hing definitive was resolved on”. 186 Six
years later Jardine Matheson & Co. wr ote to the Governor of the Straits
Settlements to inform him that they ha d collected 5,513.50 Sp anish dollars for
the building of a lighthouse on Pedra Branca. 187 The Governor, S.G. Bonham,
reported this to the Government in Indi a and recommended that a lighthouse be
built on Barn Island. 188 The proposal was not ac ted upon because the British
Crown was reluctant to impose port dues on vessels calling at Singapore for the
189
maintenance of the lighthouse. In 1844 the project to build a lighthouse
received a fresh impetus and by 1846 th e question of the site was finally
resolved.
185 See Memorial from Merchants, Mariners and others Interested in the Trade and Navigation of
the Straits of Singapore to Auckland G. (Gover nor General of India in Council) dated 29 Dec
1836 (SM Vol. 2, Annex 6).
186 See Letter from Jardine Matheson to Bonham S.G. (Governor of Prince of Wales Island,
Singapore and Malacca) dated 1 Mar 1842 (SM Vol. 2, Annex 8).
187
The amount collected by Jardine Matheson & Co. was less than one-quarter of the total cost of
construction, which was 23,665.87 Spanish Dollars, or 53,134 Rupees. See SM p.54,
para. 5.60.
188
See Letter from Bonham S.G. (Gover nor of Prince of Wales Island, Singapore and Malacca) to
Bushby G.A. (Secretary to the Government of Bengal) dated 23 July 1842 (SM Vol. 2, Annex
9).
189 See Letter from Bushby G.A. (Secretary to th e Government of Bengal) to Bonham S.G.
(Governor of Prince of Wales Is land, Singapore and Malacca) dated 31 Aug 1842 (SM Vol. 2,
Annex 10).
– Page 83 –5.31 On 20 April 1844 the then Govern or of the Straits Settlements, W.J.
Butterworth, wrote to Captain Sir Edward Belcher asking for his advice on the
most advantageous site for the erecti on of a lighthouse in memory of James
Horsburgh. In respons e Belcher recommended Peak Rock as the site. 190
Belcher’s advice was acknowledged with gratitude by Butterworth. 191
5.32 On 3 October 1844, Butterworth wrote to Captain C.E. Faber, the
Superintending Engineer, in the following terms:
“ I have the honor to forwar d fon your information the
accompanying Copy of a letter from Capt . Sir Edward Belcher C.B.
relative to the site for a Light House at the entrance of the China Sea.
2. I should mention that some year s since, Funds were raised in
China with a view of erecting a tes timonial to thrememory of the late
celebrated Hydrographer James Horsburgh Esq .
3. At a meeting of the subscribers a wish was expressed that the
contribution should be devoted to the Building of a Light House bearing
the name of Horsburgh on Pedro Branc o, at the entrance of China Sea,
or on such other locality as might be deemed preferable by the
Government.
4. The question of erecting a Li ght House on Barn Island was
submitted to the Supreme Governm tby the late Governor of these
Settlements, but the position involved the necessity of a Military Guard,
Special Superintendant and a large Es tablishment for this purpose, and
the measure was accordingly abandoned.
5. The Funds amounting to 5513 D rsare still forthcoming, and I am
desirous of again submitting the question to the supreme government,
backed by the approved experience and confirmed judgment of so
talented an Officer as Capt nSir Edward Belcher C.B. whose able letter,
will prepare you for the call I am about to make on your acknowledged
acquirements, for a report of the probable expenses that would be
incurred in carrying out Sir Edward Belcher’s views.
190 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 (SM Vol. 2, Annex 11).
191 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Belcher E. (Captain of H.M.S. Samarang) dated 2 Oct 1844, attached to this Counter-
Memorial as Annex 9.
– Page 84 – 6. In the course of a few days I intend to visit Point Romania in the
steamer when I shall request the favo r of your attendance in furtherance
of the Philan192pic resolution of the committee for the Horsburgh
testimonial.”
5.33 The first paragraph of the letter refe rs to Belcher’s letter to Butterworth,
dated 1 October 1844, in which Belche r recommended Peak Ro ck as the most
advantageous site. While paragraph 3 indicates the preference of the initial
subscribers for Pedra Bran ca, Governor Butterworth eventually decided upon
Peak Rock after receivin g Captain Belcher’s reco mmendation on 1 October
1844.
5.34 The Malaysian Memorial refers 193 to the letter from John Purvis & Co. to
Governor Butterworth dated 31 October 1844, which reads as follows:
“We have the honor to acknowledge rece ipt of your letter of yesterday
in which you request us to inform you whether the funds subscribed in
China to the Horsburgh Testimonial are still forthcoming for the purpose
of aiding in the erection of a Light House in the vicinity of Pedra
Branca.
In reply we beg to state the order given to us in 1842 by Messrs. Jardine
Matheson & Co. to pay the amount of subscriptions into the hands of
Government here, whenever they would pledge themselves to construct 194
a Light House in the vicinity of Pedra Branca has not been rescinded.”
5.35 The Malaysian pleading invokes this letter and observes:
“Even at the time when Peak Rock was the lead contender as the site for
the construction of the lighthouse, Governor Butte rworth continued to
refer to the plan as ‘the erection of a Light House in the vicinity of Pedra
Branca’. Thus the construction on Pulau Batu Puteh of the Horsburgh
192 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Faber C.E. (Superintending Engineer) dated 3 Oct 1844, attached to this Counter-Memorial
as Annex 10.
193 MM p. 64, para. 130.
194 See Letter from John Purvis & Co. to Butterwort h W.J. (Governor of Prince of Wales Island,
Singapore and Malacca) dated 31 Oct 1844 (MM Vol. 3, Annex 42).
– Page 85 – Lighthouse was envisaged at all stages of the decision-making process,
both before and after the permissi on of the Temenggong and the Sultan
of Johor.”195[footnotes omitted]
5.36 First, Malaysia is wrong in stating that Governor Butterworth continued
to refer to the project as “the erection of a Light House in the vicinity of Pedra
Branca” during the period when he decided on Peak Rock. This phrase was not
used by Butterworth, but by John Purvis, a private merchant. In fact, the actual
phrase used by Butterworth, in his letter of 28 November 1844, is “in the vicinity
of Singapore and the opening of the China Sea”.
5.37 Secondly, it is simply not correct to state that “construction on Pulau Batu
Puteh of the Horsburgh Lighthouse was e nvisaged at all stages of the decision-
making process, both before and after the permission of the Temenggong and the
195
Sultan of Johor”. In actual fact, Butterworth ag reed on Peak Rock as soon as
he received the recommendation of Captai n Belcher on 2 October 1844, as can
be seen from Butterworth’s letter to Belcher of that date. 196 Following this,
Butterworth commissioned the Government Surveyor, J.T. Thomson, to produce
an assessment exclusively of Peak Rock as a site toge ther with an estimate of
costs: see the following paragraph. The preference fo r Peak Rock was
confirmed in the letter sent by Butterworth to the Government in India, dated 28
November 1844.
5.38 Following the advice received from Captain Sir Edward Belcher in his
letter of 1 October 1844, Butterworth ga ve instructions to the Government
Surveyor, Thomson, to prod uce an estimate of costs of a lighthouse to be built
195
MM p. 64, para. 130.
196
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Belcher E. (Captain of H.M.S. Samarang) dated 2 Oct 1844, attached to this Counter-
Memorial as Annex 9.
– Page 86 –on Peak Rock. Thomson reported his findings in a substantial letter to
Butterworth, dated 20 November 1844. 197
5.39 At this point in the chronological survey of the correspondence available,
there is a hiatus. On 25 November 1844, Allie wrote to Butterworth as follows:
“From Sultan Allie of Johore
I have received my friend’s letter, and in reply desire to acquaint
my friend, that I perfectly understand his wishes, and I am exceedingly
pleased at the intention expressed th erein as it (a Light House) will
enable Traders and others to enter and leave this Port with greater
confidence.
Dated November 25th 1844
True Translation
(Sd) T. Church
Resident Councillor
Translation” 198
5.40 On the same day the Temenggong of Johor wrote to Butterworth in the
following terms:
“Translation of a letter from Datto Tamengong of Johore
Compliments
I have duly received my friend’ s communication, and understand the
contents. My friend is desirous of erecting a Light House near Point
Romania. I can have no possible objection to such a measure, indeed I
am much pleased that such an unders tanding is in contemplation I wish
to be guided in all matters by the G ovt., so much so, that the company
are at full liberty to put up a Light House there, or any spot deemed
eligible.
197 See Letter from Thomson J.T. (Government Surv eyor at Singapore) to Butterworth W.J.
(Governor of Prince of Wales Is land, Singapore and Malacca) dated 20 Nov 1844 (SM Vol. 2,
Annex 12).
198 See Letter from Allie (Sultan of Johore) to Butterworth W.J. (Governor of Prince of Wales
Island, Singapore and Malacca) dated 25 Nov 1844 (SM Vol. 2, Annex 13, p.105; MM
Vol. 3, Annex 44).
– Page 87 – Myself and family for many years have derived support from Singapore,
our dependence is wholly on the English Government, and we hope to
merit the protection of, and be favoured by the Company on all
occasions consistent with propriety.
Dated New Harbour the 25th Nov. 1844
True Translation
(Sd) T. Church
Resident Councillor” 199
5.41 Neither Party has been able to pr oduce the letters from Butterworth to
which these two letters respond.
5.42 There are no words in “Sultan” A llie’s reply which purports to identify
the geographical scope of the permission. As for the Temenggong’s letter, the
language of identification used is imprecise. The reference is to a “Light House
near Point Romania”. P eak Rock, the outermost of the Romania group of
islands, lies merely 1.5 nautical miles from Point Romania. Moreover, it is clear
that Governor Butterworth himself did no t consider Pedra Branca to be “near
Point Romania”. This is clearly demons trated by his letter of 22 August 1845,
where, in response to a proposal to s ite the lighthouse on Pedra Branca, he
indicated his preference for Peak Rock because Pedra Branca “is so remote from
200
Singapore, at so great a distance from the Main Land...”.
5.43 The Temenggong’s letter does not c onstitute evidence at the necessary
standard of proof that the permission related to Pedra Branca. From that letter, it
is clear that the permission sought was on ly for Peak Rock. In any event, the
issue can be resolved by reference to Butte rworth’s letter to the Government in
199 See Letter from the Tamungong of Johore to Governor W.J. Butterworth (Governor of
Prince of Wales Island, Singapore and Malacca) dated 25 Nov 1844 (SM Vol. 2,
Annex 13, pp. 105-106; MM Vol. 3, Annex 45).
200 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 (SM Vol. 2,
Annex 14).
– Page 88 –India dated 28 November 1844. 201 In the first place the text of the letter of 28
November is to be read in the light of its antecedents, which were as follows:
(a) Captain Sir Edward Belcher’s letter to Butterworth, dated 1
October 1844, in which he recomm ended Peak Rock as the most
advantageous site;
(b) the instructions given by Butterworth to the Government Surveyor,
Thomson, to produce an estimate of costs of a construction on
Peak Rock, and Thomson’s response dated 20 November 1844;
and
(c) the letters dated 25 Nove mber 1844 from Allie and the
Temenggong, respectively.
5.44 In her Memorial, Malaysia herself recognises that in this period “Peak
Rock was the lead contender as th e site for the construction of the
lighthouse...”,202 and refers to the letter dated 31 October 1844 from John Purvis
& Co. to Butterworth. 203
5.45 The letters giving permission, in very imprecise language, are dated 25
November 1844. Butterworth’s letter conveying his proposal to the Government
in India is dated 28 November 1844. Th e contents of the letter of 28 November
and its antecedents indicate with certaint y that the site which was the subject of
his proposal was Peak Rock. The text of the letter refers expressly to the advice
canvassed from Captain Sir Edward Belc her and this took the form of
201
Letter from Butterworth W.J. (Governor of Prince of Wales Is land, Singapore and Malacca) to
Currie F. (Secretary to the Government of India) dated 28 Nov 1844 (SM Vol. 2, Annex 13;
MM Vol. 3, Annex 46).
202
MM p. 64, para. 130.
203
See Letter from John Purvis & Co. to Butterwort h W.J. (Governor of Prince of Wales Island,
Singapore and Malacca) dated 31 Oct 1844 (MM Vol. 3, Annex 42).
– Page 89 –recommending Peak Rock “as the most eligible site”. Belcher’s letter was
appended to Butterworth’s letter. In this connection it is to be noted that the
pertinent Malaysian Annex (Annex 46) doe s not include this appendix, and the
letter of 1 October 1844 appears separately as Annex 41. Belcher refers to “the
Romania Outer Island”. The relevant passage is as follows:
“In reply to your communication N o. 109 and bearing date April 20 th
1844, requesting an opinion upon the most eligible position for a Light
House in the Straits of Singapore.
I have after very mature considerat ion and also from a recent special
survey, come to the conclusion: That in pursuance of the intent of the
re
vote to erect a Testimonial to the Hydrographer James Horsburgh Esq ,
I am firmly of opinion that it would lend more to the general interests of
navigation if such Testimonial st ood upon a position where its benefit
would be generally useful to the navigation of the China Seas as well as
these Straits.
For the latter object, nature specially presents the Romania Outer Island
as the most eligible site, by affording the means of distinctly avoiding
night dangers, and thus enabling vesse ls 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 out er Romania Island to the tail of
Johore Bank would nearly eclipse th e light by the in tervention of the
nearer Land. Vessels have no business near this line, but as is frequently
practised in our recent British Light Houses, it is very easy to screen the
light to the safe line so as to warn vessels in time to shape a safe course.
The law being either on entering or quitting the Straits to ‘keep the Light
in sight’.”204[underline in original]
5.46 Subsequent correspondence confirms that the Romania Outer Island
referred to by Belcher is Peak Rock. 205
204
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 (SM Vol. 2, Annex 11; MM
Vol. 3, Annex 41).
205 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 (SM Vol. 2,
Annex 14);Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and
Malacca) to Bushby G.A. (Secr etary to the Government of Bengal) dated 26 Aug 1846 (SM
Vol. 2, Annex 16).
– Page 90 –5.47 The text of the Butterw orth’s letter also refers to the report and estimate
of costs which the writer had commissi oned from Thomson. The letter from
Thomson, dated 20 November 1844, is concerned with Peak Rock, as the
opening passages make clear:
“In accordance with your instructions that I should proceed and examine
Peak Rock Romania in order to ascertain the probable cost of building a
Light House thereon, of a construction fitted for the situation and whose
price should 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 ir on and further to make the plans (as
far as practicable with the limited su m allowed) in conformity with the
recommendation of Sir Edward Belcher viz ‘that the Light house should
be based as a Martella Tower, and any chance of surprise from Pirates
be obviated by clean scarping to low wa ter 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.
1. I therefore now have the honor of informing you that having
proceeded to Peak rock and survey ed 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 the Eastward of Large
Romania Island, 1½ miles from Point Romania, and 32 miles East by
North from Singapore Town....” 206
5.48 These incorporations by reference of the Belcher and Thomson letters are
conclusive of the identification of the subject as Peak Rock. In any case, further
proof emerges from the following passage in Butterworth’s letter.
“... I took upon myself to submit the subject for the consideration of
Captain Sir Edward Belcher C B in the hope that some site might be
determined upon which would be free from the objections referred to,
and meet the object in view. The report of that scientific officer I desire
to lay before the Right Hon’ble the Governor General of India with the
Plan and section of the Rock therein alluded to, prepared by Mr
Thomson the surveyor, together with an outline chart, showing its
position with reference to Pedra Branca , the main land of Johore, and
Island of Romania situated about 32 miles in an E by N direction from
206
See Letter from Thomson J.T. (Government Surv eyor at Singapore) to Butterworth W.J.
(Governor of Prince of Wales Islands, Singapore and Malacca) dated 20 Nov 1844 (SM Vol. 2,
Annex 12).
– Page 91 – Singapore. This Rock is part of the Territories of the Rajah of Johore,
who with the Tamongong have willingly consented to cede it
gratuitously to the East India Company.” 207 [emphasis in italics added,
underline in original]
5.49 This passage can only be understood as referring to Peak Rock and it thus
confirms that the permission of “Sulta n” Allie and the Te menggong related to
Peak Rock and not to Pedr a Branca. Of particular significance is the reference
to the outline chart “showing its position with reference to Pedra Branca.” 207
5.50 The “Rock therein alluded to” in the Butterworth letter is necessarily
Peak Rock.
Section IV. The Rejection of Butterworth’s Proposal and the Sequel,
1845-1847
5.51 The proposal of Butterworth to th e Government in India, to construct
Horsburgh Lighthouse on Peak Rock, in the letter dated 28 November 1844, did
not find favour with the Government.
5.52 In 1845, the selection of an appr opriate site for the construction of a
lighthouse was the subject of furthe r exchanges between Butterworth, the
Governor of the Straits Settlements, and th e Government in India. In a letter
dated 22 August 1845 Butterworth indicate d to the Government that Peak Rock
was still to be given preference over Pedra Branca. And further:
“By a letter from the U nder Secy to the Governme nt of India dated the
th
15 Februaryth845 No 121 forwarded to me with your Endorsement
dated the 24 Idem No 510, it would appear that the proposition for the
Erection of a Light House on the site selected by Captain Sir E. Belcher
207 Letter from Butterworth W.J. (Governor of Prince of Wales Is land, Singapore and Malacca) to
Currie F. (Secretary to the Government of India) dated 28 Nov 1844 (SM Vol. 2, Annex 13).
See also Thomson’s Chart at Insert 8, after p. 82, and the satellite photograph at Insert 9, after
p. 100, for an illustration of the positions of the various places mentioned in this letter.
– Page 92 – C.B. viz Peak Rock the outer Ro mania Island has been recommended
for the favourable consideration of the Honble the Court of Directors
and I trust that the time is not far distant when the Work may be
commenced upon, as a light in that qua rter is becoming daily of more
paramount importance.” 208
5.53 On 15 October 1845, the Court of Directors of the East India Company in
London approved the levyi ng of duties in Singapor e for the construction and
209
maintenance of a lighthouse on Peak Rock. This document al so confirms that
Butterworth’s letter of 28 November 1844 relates to Peak Rock.
5.54 In a significant letter to Bushby, Se cretary to the Government of India,
dated 26 August 1846, Butterworth changed his mind and accepted, for the first
time, that Pedra Branca was the better s ite for a lighthouse. The key passages
are as follows:
nd
“In my letter under date the 22 August 1845 No 139, I intimated my
unqualified opinion that Pedra Bran ca would be the best possible
position for a Light House so far as the light is concerned, but I was
induced to give the preference to Peak Rock in outer Romania Island,
the position selected by Captain Sir Edward Belcher C.B. in
consequence of the former Island being so remote from Singapore, at so
great a distance from the Main Land and so inaccessible at certain
seasons of the year.
The recent Survey of the Straits ma de by the Government Surveyor Mr
Thomson and Captain Congalton Comm anding the Honble East India
Company’s Steamer Hooghly has led to the discovery of so many Rocks
and Shoals previously unknown, that I only waited to learn the decision
of Government touching the Erecti on of a Light House, to institute
further enquiries regarding the sites viz Pedra Branca and Peak Rock.
On receipt of Mr Melvill’s commun ication I forthwith called upon the
above Officers for their Report which I have honor to enclose, and by
which the Honble the Pres ident in Council will at once perceive that
208 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 (SM Vol. 2,
Annex 14).
209 See Letter from the Court of Directors of the East India Company to the Governor General of
India in Council dated 15 Oct 1845 (SM Vol. 2, Annex 15).
– Page 93 – Pedra Branca is the only true positio n for a Light House at the Entrance
210
of the China Sea.”
5.55 This document provides yet furt her confirmation that until 1846
Butterworth had preferred Peak Rock as th e site on the basis of the advice of
Captain Sir Edward Belcher in his letter of 1 October 1844.
5.56 In a letter dated 3 October 1846, the Government in India informed
Butterworth that Pedra Branca had b een approved for the position of the
Horsburgh Lighthouse. 211 On 24 February 1847, th e Court of Directors in
London approved th e change of site and approv ed the construction of the
lighthouse on the condition that this should be based on the original design of a
212
tower of masonry.
5.57 As Singapore has stated in her Memorial:
“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 Church,
Resident Councillor at Singapore, in structed Thomson, the Government
Surveyor, to submit plans and estimates for the construction of
Horsburgh Lighthouse. Thomson re plied on 9 July 1847 with a
description213 Pedra Branca a nd some preliminary plans and
estimates.” [footnotes omitted]
210 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 (SM Vol. 2,
Annex 16).
211
See Letter from Bushby G.A. (Secretary to the Gvernment of Bengal) to Butterworth W.J.
(Governor of Prince of Wales Island, Singapore and Malacca) dated 3 Oct 1846 (SM Vol. 2,
Annex 17).
212
See Letter from the Court of Directors of the East India Company to the Governor General of
India in Council dated 24 Feb 1847 (SM Vol. 2, Annex 18).
213 SM p. 37.
– Page 94 – Section V. The Contention of the Malaysian Memorial that the
Letters of Permission Extended to Pedra Branca
5.58 The general tendency of the Malaysia n Memorial is to suggest that the
letters of permission addressed to Bu tterworth from Allie and the Temenggong
of Johor on 25 November 1844 relate not only to Peak Rock but also to Pedra
Branca. This distinction is critical in nature because the British Government and
its successors considered that Peak Rock formed part of Johor, whilst Pedra
Branca did not.
5.59 However, there is a major obstacle to the Malaysian thesis in that neither
of the letters of permission refer to Pedra Branca. Consequently, Malaysia finds
it necessary to produce a more diffuse and extensive thesis, as follows:
“The ordinary meaning of their answers is clear: the East India
Company was free to choose between erecting the lighthouse near Point
Romania, or anywhere else in the te rritory of Johor considered suitable
for the purpose of providing guidan ce to shipping going to or leaving
Singapore. The author isation did not concer n only Peak Rock.
Moreover, the geographic area fo r the construction of Horsburgh
Lighthouse had also been clearly established at that time: the entrance of
Singapore Strait in the South China Sea. The territory in that region was
under Johor’s sovereignty, as explained in Chapter 5.”214
5.60 In this passage the Malaysian Govern ment in effect ev ades the task of
geographical identification of the proposed site. The location is now broadcast
and is described as being “near Point Roma nia, or anywhere else in the territory
214
of Johor considered suitable...”. In the alternative, th e reference is to “the
214
geographic area for the construc tion of Horsburgh Lighthouse,” described as
“the entrance of Singapore St rait in the South China Sea.” 214 The result is that
no serious attempt at geographical location is made.
214
MM p. 61, para. 123.
– Page 95 –5.61 In the result, Malaysia faces the same dilemma which affects her case
relating to proof of title. Her thesis that the letters of permission related also to
Pedra Branca is premised on the proposition that “the territory in that region was
under Johor’s sovereignty, as explained in Chapter 5 [ of the Malaysian
215
Memorial]”. However this thesis is unsus tainable because, as has been
216
pointed out earlier in the present Counter-Memorial, Malaysia has failed to
provide any evidence which relates to Pedra Branca, and thus falls back upon
generalised claims to all territory “in th at region”, as in the paragraph quoted
above.
5.62 In the final analysis this is all besi de the point. Butterworth’s letter of 28
November 1844 to the Government in In dia refers clearly and exclusively to
Peak Rock. Both th e text of the letter and the related documentation establish
this identification beyond any doubt. The reports by both Belcher and Thomson
refer unequivocally to Peak Rock. Moreover, in his letter of 28 November 1844,
Butterworth states:
“This Rock is part of the territories of the Rajah of Johore, who with the
Tamongong have wi217ngly consented to cede it gratuitously to the East
India Company”.
5.63 This statement clearly points to Peak Rock as the subject of the
permission and thus provides no evidence to the effect that Johor had title in
respect of Pedra Branca.
5.64 In her Memorial Malaysia seeks to establish that Pedra Branca “is
undoubtedly covered by the authorisation given by the Sultan and
215 MM p. 61, para. 123.
216 See above, at paras. 4.10-4.11.
217 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Currie F. (Secretary to the Government of India) dated 28 Nov 1844 (SM Vol. 2, Annex 13).
– Page 96 –Temenggong”. 218 Malaysia offers as a firs t reason the argument that Pedra
Branca “is a place ‘near Point Romania’ ” and “is located only 7.7nm from Point
Romania, which is the nearest mainland coast to [ Pedra Branca]”. 219 This is
disingenuous. The documentation, and, in particular, Butterworth’s letter of 28
November 1844, is unequivo cal in identifying the is land in question as Peak
Rock.
5.65 In any event, proximity is a relative quality. The fact is that Peak Rock
forms part of the Romania island group, as the charts demonstrate. Pedra Branca
does not form part of the Romania group, and this is seen clearly on Thomson’s
Chart of 1851 ( Insert 8, after page 82) and from th e satellite photograph at
Insert 9, after page 100. None of this bear s upon the contents of Butterworth’s
letter and its reference to Peak Rock. The references in pa ragraph 125 of the
Malaysian Memorial to the views of J ohn Crawfurd and J.T. Thomson provide
no assistance in the matter. Thus, Thoms on is quoted to the effect that Point
Romania is “the nearest land to Pedra Branca”. 220 The reference is to the nearest
mainland and this fact is hardly conclusive of the point in question. In any case,
it is clear that the Romania Island gro up is well within the territorial sea of
221
Johor.
218
MM p. 61, para. 124.
219
MM p. 61, para. 125.
220
Ibid, quoting the Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T.
(Resident Councillor at Singapore) dated 2 Nov 1850 (SM Vol. 3, Annex 47).
221 The Romania Island group is described in Singapore’s Memorial, at p.13, para.2.14. It is
useful to reiterate here that “... [the] Romania Islands (also called ‘Lima Islands’ in more recent
charts and sailing directions) will be referrfrom time to time. Within this group lies an
island called ‘Peak Rock’. It is convenient to state clearly that Pedra Branca, Middle Rocks and
South Ledge stand by themselves as a group and are distinct from the Romania group of islands.
The latter group of islands all lie within close pr oximity (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 water channel in this
part of the Straits of Singapore.” In fact, the outermost island in this group, Peak Rock, is only
about 1.5 nautical miles away from the Johor coast.
– Page 97 –5.66 The Malaysian Memorial, in paragrap h 126, seeks to persuade the reader
that the cartography supports the identification of Pedra Branca as the subject of
the permission. This is done by following the proposition in the last sentence of
paragraph 125, in which Th omson is quoted as referring to “Point Romania the
nearest land to Pedra Branca”, with the text of paragraph 126:
“This is also evident from the Chart of the Vicinity of the Horsbourgh
Lighthouse and Adjacent Malayan Coast drawn by the same J.T.
Thomson in 1851, which appears on the opposite page as Insert 16.
From the very beginning, the cartogr aphy was consistent in showing
Pedra Branca and Point Romania as the two most important ge222aphic
features, close together at the entrance of Singapore Strait.”
5.67 The reference to the Chart prepared under the auspices of Thomson is the
only evidence offered and the second se ntence of the paragraph is question-
begging. Thomson’s Chart shows Pedra Branca well-separated from the
Romania group adjacent to the mainland of Johor. This is not apparent from the
version of the Chart which appears as Insert 16 in the Malaysian Memorial. This
Insert includes an “enlargement” box, the location of which is confusing, but
which cannot obscure the fact that Pedr a Branca is not part of the Romania
group. The relationships can be better se en in the more usef ul reproduction of
the Chart in this Counter-Memorial, as Insert 8, after page 82. It is clear that
“the cartography” simply do es not support Malaysia’s contention that Pedra
Branca is covered by the permission. The subject of cartography is dealt with in
greater detail in Chapter IX of this Counter-Memorial.
5.68 Malaysia’s alternative argument, in paragraph 127 of her Memorial, is as
follows:
“Secondly, even if Pulau Batu Puteh we re not considered a place ‘near
Point Romania’, it would be covered by the extension of the consent to
another ‘spot deemed eligible’. As stressed above, Pulau Batu Puteh
222
MM p. 62, para. 126.
– Page 98 – was at all times one of the spots eligible for the construction of the
lighthouse. The Sultan and the Temenggong, who were both resident in
223
Singapore, would have been aware of this.”
5.69 This wording of the Temenggong’s letter hardly takes matters further.
The phrase “or any spot deemed eligibl e” does not detract from the fact that at
that time, the only location under consideration wa s Peak Rock – Pedra Branca
was not regarded as an eligible spot. Indeed, Butterworth, in his letter dated 28
November 1844 reporting on the letter, considered that the Temenggong had
referred to Peak Rock.
5.70 In any case, the Temenggong’s refe rence to “any spot deemed eligible”
could not have referred to Pedra Branca because it is not a spot near Point
Romania and there are several other is lands within the Romania Group which
fits that description (as shown in Thomson’s Chart at Insert 8, after page 82, and
the satellite photograph at Insert 9 overleaf). 224
5.71 The Malaysian Memorial states that the British authorities “had in mind
225
other possible locations”. This is clear from th e documents. However, the
Malaysian Memorial in fact asserts th at: “They had in mind other possible
226
locations within the territory of Johor besides Peak Rock”. This qualification
is unjustified, and is not reflected in edocm n. Given the practical
223 MM p. 62, para. 127.
224 In fact a light stands today on one of the Romania Islands, half a mile South-West of Peak
Rock. This is the island identified as “Pulau Pemanggil” in Inserts 1, 2 and 3 of Malaysia’s
Memorial. It is named “Pulau Mungging” on British Admiralty Charts (see Map 4 of Singapore
Memorial [SM, Vol. 1, after p.13] and Map No. 13 of the Singapore Counter-Memorial Map
Atlas) and labelled as “South Island” in Thomson’s 1851 Chart at Insert 8, after page 82 above.
A photograph of this light appears as an inset to Insert 9 overleaf. For more information about
the establishment of the Pulau Pemanggil/Pulau Mungging light, see Notice to Mariners No. 20
of 1931 from Freyberg G. (Master Attendant, raits Settlements) attached to this Counter-
Memorial as Annex 27.
225 MM p. 62, para. 128.
226 Ibid, emphasis added.
– Page 99 –desiderata relating to navigation, much stressed by the Malaysian pleading, why
should the Singapore officials confine the choice of site only to “locations within
the territory of Johor”? 227 The fact remains that at the end of the day the British
officials did not choose Peak Rock or an y other location within the territory of
Johor. The question of permission thus became moot.
5.72 The actual evidence indicates that the British authorities were well aware
of the political contingencies involved. Thus, in the letter of 28 November 1844
Butterworth expressly refers to the fact that Peak Rock “is part of the Territories
of the Rajah of Johore...”. The issue of title also appears in the letter from
Church to Governor Butterworth, da ted 7 November 1850, in which the
following passage appears:
“4. I observe Mr Thomson advocates the Establishment of a Station
near Point Romania , for the purpose of affo rding assistance to the
inmates of the Light House in case of need, and also to suppress Piracy;
an armed party of the strength sugg ested would, doubtless, be of some
Service, but I doubt whether such is absolutely necessary, or
commensurate with the permanent expense which such an establishment
must necessarily occasion. Romania moreover belongs to the Sovereign
of Johore, where the British possess no legal jurisdiction ; it will of
course, be necessary for the Steamer or Gun Boats to visit Pedro Branca
weekly; some benefits would also accrue by requesting His Highness the
Tumongong to form a village at Romania under the control of a
respectable Panghuloo to render as228t ance to the inmates of the Light
House in a case of emergency.” [emphasis added]
227
It should be noted that one year after Horsburgh Lighthouse began operations, Britain
established a second light outside the limits of any native states. This was the lightship Torch at
a place known as 2½ Fathom Bank on the North Sands – See Extracts from Travaux
Préparatoires of Indian Act No.VI of 1852, attached to this Counter-Memorial as Annex 16;
and preamble to Indian Act No. XIII of 1854 (SM Vol. 5, Annex 62, p. 615). This lightship was
replaced in 1904 by the One Fathom Bank Lighthouse – see Blue Book for the Colony of the
Straits Settlements, 1914, p. V2 (MM, Vol.3, Annex66). Clearly, the British officials in
Singapore did not confine their choice of sites to locations within the territories of native states.
(For location of One Fathom Bank Lighthouse, see Insert 5 after p.42. Malaysia also accepts
that the One Fathom Bank Lighthouse was originally located on the high seas, and only came to
be within Malaysia’s territorial sea because of the extension of her territorial sea limit from 3
nautical miles to 12 nautical miles – see MM, p. 102, para. 222).
228 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 (SM Vol. 3, Annex 48).
– Page 100 –5.73 It is important to have regard to the overall picture and to recall the fact
that at no time did the British authorities express any concern about the question
of third party title over Pedra Branca.
5.74 In paragraphs 129 and 130 the Malaysian Memorial enlarges on the
theme that the British authorities al ways had several locations under
consideration, including Pedra Branca . As pointed out already, this
consideration leaves the key issue unresolved. The key issue is the identification
of the feature referred to by Butterworth in the letter dated 28 November 1844.
This was undoubtedly Peak Rock.
5.75 In two significant passages in th e Memorial the Malaysian Government
expressly recognises:
First: that the Belcher letter related to Peak Rock;
Secondly: that Butterworth in his le tter of 28 November 1844 was
229
referring to Peak Rock.
5.76 Moreover, in paragraph 132 the Malaysian Memorial quotes from the
Bombay Times and Journal of Commerce as follows:
“The Malayan authorities of Johore, in whose territo ry the Romania
Island is situated, not only offer th e Island for a lighthouse, but express
satisfaction at the prospect of its erection.”
5.77 This newspaper source in fact provid es no support for the view that the
location envisaged by Butterworth was Pedra Branca. The item took the form of
the report of a Committee of the Chambe r of Commerce “regarding the erection
229
See MM pp. 64-65, paras. 131-132.
230
See “Erection of a Light-House on Romania Island” inBombay Times and Journalof
Commerce (10 Jan 1846) (MM Vol. 3, Annex 48).
– Page 101 –of a Light-house on Romania Island.” The date of the published report was 10
January 1846.
5.78 The content of the report provides no indications that Pedra Branca was
the preferred location. The report is accurate in reflecti ng the options which
Butterworth had been examining. The report then emphasises that the opinion of
Captain Sir Edward Belcher had been ob tained and that he had preferred the
Romania Outer Island as the most eligible site. This cannot be identified with
Pedra Branca as the following passage from the newspaper report itself
demonstrates:
“The Malayan Authorities in Johore, in whose territory the Romania
Island is situated, not only offer the Island for a lighthouse, but express
satisfaction at the prospect of its erection . The Governor mentioned to
the deputation of the Chamber that he had visited the proposed site in
the H.C. Steamer Diana, having with him the superintending Engineer
of public works in the Straits, whom he had instructed to make an
estimate of the cost of the proposed erection –This officer considered
that about one, to one and a half, l acs of Rupees would be necessary to
complete the work of masonry. This being beyond the sum likely to be
available, the Governor instruct ed Mr Thomson, the Government
Surveyor, to submit an estimate; which had been done by the gentleman
with great care and detail, and which was accompanied by an offer from
a Chinese contractor to erect a granite base of 16 feet for Drs. 2667, and
further, if required, a brick tower (e xclusive of lanthorn and lamps) for
4,333 Drs addition, or in all, Drs 7,000. The Governor seemed to think
that an iron Tower on the granite base, would be preferable to brick, and
had suggested the sending of one from England, similar to one erected at
Bermuda, at a cost of £1,500. Mr Thomson describes the proposed site
as being ¾ of a mile East of larg e Romania Island, 1½ miles from Point
Romania, and 32 miles East by North from Singapore town. ”231
[emphasis added]
231 See “Erection of a Light-House on Romania Island” in Bombay Times and Journalof
Commerce (10 Jan 1846) (MM Vol. 3, Annex 48). As shown in Insert 8, after page 82 above,
the rock “¾ of a mile East of large Romania Island, 1½ miles from Point Romania” can only be
Peak Rock.
– Page 102 –5.79 The report of the Government Surveyor, J.T. Thomson, referred to by the
newspaper, also confirms that Peak Rock was the location in question: see the
letter from Thomson to Butterworth, dated 20 November 1844. 232
5.80 The Malaysian Memorial pursues the argument with the unfounded
assertion that in retrospect “[t]he British authorities in Singapore understood the
extent of the consent given by the Sultan and the Teme nggong as being
applicable to Pulau Batu Puteh”. 233 In this connection the Malaysian
Government refers to Butterworth’s lette r to the Government in India dated 26
August 1846. 234
5.81 Care is needed at this point. Th e language used by Butterworth gives no
support to the suggestion that the consent was understood “as being applicable to
Pulau Batu Puteh”. What Butterworth wrote was as follows:
nd
“My letters under dates the 28 November 1844 No 150, and 22 August
1845 No 139 will have pointed out the glaring necessity for a Light
House in the position above indicated, but I need hardly observe that the
work has not been commenced upon as anticipated by the Secretary to
the Honble E.I. C°. I sincerely tr ust however that the question will
receive early consideration, and that the accompanying Copy of a letter,
with its enclosures just received from the Chamber of Commerce at
Singapore will induce the Honble the President in Council to move the
Honble Court of Directors to orde r an Iron Light House from England
for erection on Pedra Branca. The whole of the Deta ils for rhe care of
Light House as set forth in my letter under date 28 Nov 1844, with
232
See Letter from Thomson J.T. (Government Surv eyor at Singapore) to Butterworth W.J.
(Governor of Prince of Wales Is land, Singapore and Malacca) dated 20 Nov 1844 (SM Vol. 2,
Annex 12). See also para. 5.38 above.
233 MM p. 65, para. 134.
234 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 (SM Vol. 2,
Annex 16; MM Vol. 3, Annex 51).
– Page 103 – reference to its being located on Pe ak Rock, will be equally applicable
235
to the new Position.” [emphasis added]
5.82 The associated Malaysian contention is this:
“Amongst the ‘details’ of the letter of 28 November 1844 can be found
the consent given by the Sultan an d the Temenggong of Johor to the
construction of the lighthouse. Gove rnor Butterworth clearly explained
to the Government of India that ‘the whole of the details’ related to Peak
Rock are ‘equally applicable’ to Pulau Batu Puteh.” 236
5.83 This passage is misleading. Bu tterworth (see the penultimate paragraph
above) refers to “The whole of the details for the care of Light House ...”
(emphasis added). Malaysia has wrongl y transcribed the word “care” as
“case”. 237 There are sections in his letter of 1844 which are concerned with “the
care” of the lighthouse envisaged but such sections do not include the passage
relating to the question of permission. The section in the letter of 1844 which
deals with the “care” of the lighthouse is as follows:
“A Light House, if not properly at tended, would prove infinitely more
perplexing and dangerous to the Marine r, than its total absence. I am
therefore of opinion that less than two European and Eight Natives
would barely answer the purpose of keeping watch and working the Gun
in case of need, I would theref ore recommend that two steady
Pensioners from the Artillery might be allowed to volunteer for the
service, who should receive an add itional Salary and Rations, with 8
Malays or Lascars, making the annual cost to the state including the
Estimated cost of materials for feeding the light, 2856 Rupees per
235
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 (SM Vol. 2,
Annex 16; MM Vol. 3, Annex 51).
236
MM p. 66, para. 135.
237 Singapore has obtained manuscript copies of the letter of 26 Aug 1844 from three different
sources (the National Archives of India, the National Archives of Singapore and the India
Office Collection of the British Library) and coared these copies to ascertain the correct
transcription. In Singapore’s view, it is evident from all 3 manuscripts that the word transcribed
as “case” by Malaysia should read “care”See Three Manuscript Versions of the 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 Counter-Memorial
as Annex 12, where the relevant words have been magnified and highlighted in red.
– Page 104 – annum should it be deem ed advisable to employ 1 stClass Convicts in
place of the Malays or Lascars, the expense would be considerably
reduced.” 238[underlining in original]
5.84 Even if the word in Butterworth’s 1846 letter is “case”, this does not help
Malaysia’s claim. As Singapore has shown in paragraphs 5.43 to 5.50 above, in
the first place those letters of permissi on cannot be read as extending to Pedra
Branca. Moreover, many aspects of Butte rworth’s letter of 1844 are simply not
applicable to Pedra Branca, for example, Thomson’s survey of Peak Rock. By
making the simplistic argument that everything in the 1844 letter relating to Peak
Rock applied to Pedra Bran ca in 1846, Malaysia is si mply seeking to evade the
difficulties of showing that the 1844 le tters of permission applied to Pedra
Branca.
5.85 The relevant section of the Malays ian Memorial continues its trail of
unfounded assertions with the following passages:
“136. The British authorities in India were also aware that the consent
given by the Sultan and the Temenggong included Pulau Batu Puteh, as
emerges from the exchange of letters between the Government of India
and the Marine Department in 1846 with regard to the request to send an
iron lighthouse from England. This exchange includes the reports that
Pedra Branca has been approved as the position for erecting Horsburgh
Lighthouse and contains the letters of the Sultan and the Temenggong
referred to above.
137. The material referred to above confirms that the permission of
Johor included different locations en visaged for the construction of the
Horsburgh Lighthouse, amongst them Pulau Batu Puteh. There is
nothing in it to show that the Sultan and the Temenggong did more than
approve the building of a lighthouse on Johor’s territory.”239
5.86 In reality the British documents in the period 1845 to 1847 provide a
simple and consistent picture to the effect that for practical reasons Pedra Branca
238 See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Currie F. (Secretary to the Government of India) dated 28 Nov 1844 (SM Vol. 2, Annex 13).
239 MM p. 66, paras. 136-137.
– Page 105 –was the final choice of site and no reference was made to the issue of the
permission of Johore. The following sequ ence of documents provides the basic
materials, and it is unfortunate that the Malaysian Government cites only one
document (the letter of 3 October 1846) to support the imaginative picture
painted in the two paragraphs of her Memorial quoted above.
5.87 The relevant documents are as follows:
240
(a) Butterworth to the Government in India, dated 22 August 1845.
There is no reference to the issue of permission.
(b) The Court of Directors of the East India Company to the
241
Governor-General in India in Council dated 15 October 1845.
There is no reference to the issue of permission.
(c) The Secretary to the Admiralty to the Secretary to the East India
242
Company, dated 18 April 1846. There is no reference to the
issue of permission.
(d) The Secretary to the Court of Directors to Butterworth, dated 6
243
May 1846. There is no reference to the issue of permission.
(e) Captain Congalton and J.T. Th omson to Butterworth dated 25
244
August 1846. There is no reference to the issue of permission.
240 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 (SM Vol. 2,
Annex 14).
241 See Letter from the Court of Directors of the East India Company to the Governor General of
India in Council dated 15 Oct 1845 (SM Vol. 2, Annex 15).
242 See Letter from Hamilton N.B. (Secretary to the Admiralty) to the Secret ary to the East India
Company dated 18 Apr 1846 (MM Vol. 3, Annex 50).
243 See Letter from the Secretary to the Court ofDirectors of the East India Company to
Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca) dated 6 May
1846 (MM Vol. 3, Annex 50).
– Page 106 – 245
(f) Butterworth to the Government in India, dated 26 August 1846.
There is no reference to the issue of permission.
246
(g) The Government in India to Butterworth, dated 3 October 1846.
There is no reference to the issue of permission.
(h) The Court of Directors of the East India Company to the Governor
General of India in Council, dated 24 February 1847. 247 There is
no reference to the issue of permission.
248
(i) J.T. Thomson to T. Church, dated 9 July 1847. Thereisno
reference to the issue of permission.
5.88 As Singapore pointed ou t in her Memorial, it is significant that Church
rejected a proposal from Thomson for th e building of an out station near Point
Romania on the ground that the location “belongs to the Sovereign of Johore,
where the British possess no legal jurisd iction”. The proposal by Thomson
244 See Letter from Congalton S. (Captain of the Hooghly) and Thomson J.T. (Government
Surveyor) to Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
dated 25 Aug 1846, attached to this Counter-Memorial as Annex 11.
245
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 (SM Vol. 2,
Annex 16).
246 See Letter from Bushby G.A. (Secretary to the Go vernment of Bengal) to Butterworth W.J.
(Governor of Prince of Wales Island, Singapore and Malacca) dated 3 Oct 1846 (SM Vol. 2,
Annex 17).
247 See Letter from the Court of Directors of the East India Company to the Governor General of
India in Council dated 24 Feb 1847 (SM Vol. 2, Annex 18).
248
See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 9 July 1847 (SM Vol. 2, Annex 21).
– Page 107 –appears in his report to Ch urch dated 2 November 1850. 249 The response
appears in Church’s letter to Butterworth dated 7 November 1850. 250
5.89 The text of Church’s response of 7 November 1850 confirms the contrast
between Point Romania, which “belongs to the Sovereign of Johore, where the
British possess no legal jurisdiction”, and the status a contrario of Pedra Branca
where the British do possess legal jurisdiction. The relevant passage is as
follows:
“4. I observe Mr Thomson advocates the Establishment of a Station
near Point Romania, for the purpose of affording assistance to the
inmates of the Light House in case of need, and also to suppress piracy;
an armed party of the strength sugg ested would, doubtless, be of some
Service, but I doubt whether such is absolutely necessary, or
commensurate with the permanent expense which such an establishment
must necessarily occasion. Romania moreover belongs to the Sovereign
of Johore, where the British possess no legal jurisdiction; it will, of
course, be necessary for the Steamer or Gun Boats to visit Pedro Branca
weekly; some benefits would also accrue by requesting His Highness the
Tumongong to form a village at Romania under the control of a
respectable Panghuloo to render assist ance to the inmates of the Light
House in a case of emergency.” 251
5.90 The common sense interpretation of the British documents is that, once
the focus had shifted to Pedra Branca, the issue of third party title dropped away.
There is no single document extant in wh ich the issue of Johor title is linked to
Pedra Branca.
249 See Letter from Thomson J.T. (Government Surveyor at Singapore) to Church T. (Resident
Councillor at Singapore) dated 2 Nov 1850 (SM Vol. 3, Annex 47).
250 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 (SM Vol. 2, Annex 48).
251 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 (SM Vol. 2, Annex 48).
– Page 108 – Section VI. Rebuttal by Singapore of Various Ancillary Contentions
in Chapter 6 of the Malaysian Memorial
A. P LANS FOR THE CONSTRUCTION OF A L IGHTHOUSE AT THE E NTRANCE OF
THE S TRAIT OF SINGAPORE
5.91 The section of the Malaysian Memorial under this rubric (at pages 54 to
59), is intended to establish certain propositions. In Malaysia’s words:
“These documents demonstr ate three things. First , the construction of
the lighthouse was a private initiative. Second, the location of the
lighthouse was an open question until 1846. Third , from the very
beginning and during the entire decision-making process the site of
Pulau Batu Puteh was envisaged as one of the main options for the
construction of Horsburgh Lighthouse.”52
5.92 In her Memorial Singapore has give n a detailed account of the origins of
the project to build a lighthouse. 253 The origin of the project was a private
initiative, but it is somewhat confusing on the part of Malaysia to use the
formulation “the construction of the lighthouse was a private initiative”.254The
facts are clear: the necessity of government funding was assumed on all sides. 255
Moreover, it was the British Crown which decided whether and on what terms a
lighthouse would be constructed. It was the British Crown which took the
clearly political decision that the fund ing would involve a levy on shipping, a
factor which at an earlier stage, had been the cause of offici al opposition. In
short, the planning and the construc tion of the lighthouse were under the
exclusive control of the British Government.
252 MM p. 59, para. 116.
253 SM pp. 33-41, paras. 5.13-5.32.
254 MM p. 59, para. 116, also quoted in para. 5.91 above.
255 SM pp. 54-58, paras. 5.60-5.65.
– Page 109 –5.93 All the modalities for the constr uction were determined by the
government, including the site of th e lighthouse and the ultimate method of
public funding. When the lighthouse was completed, it was a government asset.
Colonel Butterworth, Governor of the St raits Settlements, officiated at the
commencement of construction of the light house, in the presence of invited
256
officials and guests. When the construction was complete the lighthouse was
commissioned by a party led by the G overnor, again accompanied by other
officials and guests.
5.94 On completion of the project the Government Surveyor at Singapore, J.T.
Thomson, prepared a detailed report at the request of the Governor of the Straits
257
Settlements. The Preface of this report clearly indicates the control of the
258
operation by the British Government. The text of Thomson’s Account itself
begins by describing “[t]he rock on which the Government determined on
259
placing the Horsburgh Testimonial”.
5.95 The second proposition advanced by Malaysia in the passage quoted
above is to the effect th at “the location of the lighthouse was an open question
until 1846”. This is not accurate. Governor Butterwor th had decided,
unequivocally, on Peak Rock in 1844, and it was in th is context that permission
to construct on Peak Rock was sought from the Malay rulers and granted. It was
only in 1846 that Butterworth changed his mind and decided on Pedra Branca at
the instigation of the British Admiralty. The issue has been examined already in
256 SM pp. 51-54, paras. 5.56-5.59.
257 SM p. 34, para. 5.16.
258 Thomson’s Account, supra note 67, preface (SM Vol. 4, Annex 61, p. 477).
259 Ibid, at p. 378, (SM Vol. 4, Annex 61, p. 479), emphasis added.
– Page 110 –the Singapore Memorial. 260 The chronological developments have also been
examined elsewhere in the present Chapter. 261
5.96 The third proposition is reflected su fficiently in the do cuments and it is
only necessary to stress that, at the time of the giving of permission by the Johor
authorities, it was Peak Rock which was the established preference.
5.97 This section of the Malaysian Me morial closes w ith the following
adumbrations:
“It is also clear that the choice depended mainly upon the identification
of the best location from a navigati onal point of view. In considering
the advantages and drawbacks of each site, the question of sovereignty
over them was not an issue. Ther e is not a single reference in the
correspondence to the effect that the lighthouse would be built on terra
nullius or that Pulau Batu Puteh was finally chosen because it was terra
nullius. The lighthouse was a project262 the general interest and not a
matter of purely national concern.”
5.98 This piece of reasoning is not in fact a conclusion of section A of Chapter
6 of the Malaysian Memorial but in reality constitutes an introduction to Section
B, the subject of which is the permission of Johor in 1844 and its scope. In other
words the argument is that sovereignty was not an issue, because the consent
would be granted in respect of islands ou tside the limits of Singapore. As the
Malaysian Memorial suggests:
“In the latter case (at least as far as concerned islands in the British
sphere) no difficulty was anticipated in obtaining the consent of the
relevant territorial sovereign, given th e general beneficial nature of the
enterprise.”262
260 SM pp. 42-46, paras. 5.33-5.44.
261 See above, at para. 5.51 et seq.
262 MM p. 59. para. 117.
– Page 111 –5.99 This convoluted reasoning is not easy to follow. The passage contains an
unproven assertion that the island in question would belong to Johor and
therefore the consent of “the relevant te rritorial sovereign” would be required.
The assertion tends to contradict the earlier passage (quoted above) in which it is
stated that “the question of sovereignty... was not an issue”. But it was certainly
an issue linked to the Malaysian thesis based upon the alleged permission of
Johor in relation to Pedra Branca. More over, the assertion that sovereignty was
not an issue is incompatible with the documents. In his important letter to the
Government in India, dated 28 Novemb er 1844, the Governor of the Straits
Settlements, in relation to Peak Rock, had observed that:
“This Rock is part of the territories of the Rajah of Johore, who with the
Tamongong have wi263ngly consented to cede it gratuitously to the East
India Company.”
5.100 Moreover, in a letter to Butterw orth dated 7 Nove mber 1850 (already
quoted above, in paragraph 5.89) Church, who had much to do with the planning
and organisation of the c onstruction, shows a sensitivity to the issue of
sovereignty. In his words:
“4. I observe Mr Thomson advocates the Establishment of a Station
near Point Romania, for the purpose of affording assistance to the
inmates of the Light House in case of need, and also to suppress Piracy;
an armed party of the strength sugg ested would, doubtless, be of some
Service, but I doubt whether such is absolutely necessary, or
commensurate with the permanent expense which such an establishment
must necessarily occasion. Romania moreover belongs to the Sovereign
of Johore, where the British possess no legal jurisdiction; it will of
course, be necessary for the Steamer or Gun Boats to visit Pedro Branca
weekly; some benefits would also accrue by requesting His Highness the
Tumongong to form a village at Romania under the control of a
263
See Letter from Butterworth W.J. (Governor of Prince of Wales Island, Singapore and Malacca)
to Currie F. (Secretary to the Government of India) dated 28 Nov 1844 (SM Vol. 2, Annex 13).
– Page 112 – respectable Panghuloo to render assist ance to the inmates of the Light
House in a case of emergency.”64
5.101 The content of paragraphs 107 to 11 7 of the Malaysian Memorial fails to
produce any cogent considera tions to justify either the proposition that Pedra
Branca was subject to the sovereignty of Johor or the proposition that the
permission accorded by Johor related to Pe dra Branca as well as to Peak Rock.
In any case, it is clear fro m all the available evidence that when the British took
possession of Pedra Branca to build the li ghthouse, they did not consider that
265
Pedra Branca was a territorial possession of the Sultan or the Temenggong.
B. T HE V ISIT OF THE T EMENGGONG TO P EDRA B RANCA ON 2 JUNE 1850
5.102 In Paragraphs 148 a nd 149 of her Memorial, Malaysia places great
emphasis on the visit of the Temenggon g to Pedra Branca on 2 June 1850.
Malaysia argues that this visit “suggests that he [ the Temenggong] considered
himself as being on his own territory”. 266 Malaysia further asserts that “[n]o
objection was raised either to his pres ence with his followers or to their
266
activities” and “[n]o reference is made to any permission being sought or
266
given for the Temenggong’s presence”.
5.103 Apart from mere assertion, Malays ia provides no ev idence that the
Temenggong “considered himself as being on his own territory”. The fact was
that the Temenggong’s visit to Pedra Branca was made with British permission.
Malaysia is only able to claim in Paragraph 149 of her Memorial that “[n]o
reference is made to any permission bein g sought” because she has, once again,
264 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 (SM Vol. 2, Annex 48).
265 See above, at paras. 4.40-4.45.
266 MM p. 70, para. 149.
– Page 113 –omitted a vital reference fro m the quotation set out in Paragraph 148 of her
Memorial. Singapore now sets out the passage in full, showing the words
omitted by Malaysia:
Quotation as it appears in Para. Actual Passage
148 of Malaysia’s Memorial from Thomson’s Account
“On the evening of the 3rd of June, “On the evening of the 3rd of June, the
the Tomungong took his departure. Tomungong took his departure. He
He came in a beautiful fast sailing came in a beautiful fast sailing sampan
sampan ... rigged with graceful belonging to the Governor o f th e
latteen sails.” Straits Settlements rigged with
graceful latteen sails.”7
[Words in italics were omitted b y
Malaysia from para 1.48 of he r
Memorial.]
5.104 Thomson’s Account is clear. The Temenggong arrived in the British
Governor’s boat . This could only have been done with the Governor’s
permission – the Temenggong was on th e island at the British Governor’s
invitation. The Temenggong was at that time residing in Singapore, and given
267
his friendly relations with the British government in Singapore, it was not
surprising that he was invited to visit Pedra Branca. As Thomson points out, the
Temenggong was “allied to British interests”. 267
5.105There was no evidence that e ither Thomson or the Temenggong
considered that the visit related to an y question of title. The Temenggong spent
his time fishing and left after one night because he could not tolerate the
mosquitoes. Malaysia emphasises that the Temenggong stay ed in Thomson’s
house during the one night he was on Pedra Branca. Since the Temenggong was
Thomson’s guest on Pedra Branca, it was only natural that Thomson did his duty
as host to a visiting friendly native chief, by letting the Temenggong stay in his
house.
267
Thomson’s Account, supra note 67, at p. 430 (SM Vol. 4, Annex 61, p. 533).
– Page 114 –5.106 The Temenggong’s visit on 2 June 1 850 took place nine days after the
laying of the foundation stone. 268 Thomson’s house wa s already erected on
Pedra Branca (the Temenggong stayed in it). Contemporaneous paintings by
Thomson show that the British marine en sign was flying on Pedra Branca soon
after the completion of Thomson’s house, even before any significant
construction work on th e lighthouse began (see Image 13, after page 62 of
Singapore’s Memorial). The Temenggong’s visit thus came at a time when the
bases of the title of the British Crown were already established. Moreover, the
British activities relating to Pedra Branca had involved repeated public activities
under the control of British officials and with the assistance of British
government vessels. The Temenggong’s vi sit formed a part of these activities,
and took place under the auspices of the Governor of the Straits Settlements.
C. M ALAYSIAN C LAIMS THAT THE INAUGURATION OF THE LIGHTHOUSE DID
NOT NVOLVE A C ESSION OR C LAIM OF SOVEREIGNTY
5.107 As a subsidiary argument Malaysia makes the following assertions:
“Further evidence that the British authorities in Singapore did not
consider that it had acquired sovere ignty over Pulau Batu Puteh can be
derived from the form of the ceremonies that took place for the
construction and operation of the Ho rsburgh Lighthouse. This section
will demonstrate that the ceremonies that took place for the construction
and operation of the Horsburgh Lighthouse were of a completely
different kind from those which i nvolved the assumption of sovereignty
in British practice.”
268 The foundation stone ceremony took place on 24 May 1850. The Temenggong was not
amongst the invited guests at the ceThe ceremony was however publicised in local
newspapers a few days later. See SM Vol. 3, Annex 45, which is an account of the ceremony in
the 28 May 1850 edition of the Straits Times and Singapore Journal of Commerce.
269 MM p. 71, para. 151.
– Page 115 –5.108 The essence of the argument involves two elements: First, that the
ceremony did not relate to sovereignty; and, second, that the ceremony did not
conform with British practice in claiming sovereignty. As with other Malaysian
arguments the legal foundation is flawed and consists of a questionable premiss.
The questionable premiss is that the app licable law in this case is “British
practice” and that British practice involved a ceremonial.
5.109 The applicable law in this case is the principles of general international
law of the material time and the criteri on which emerges from these principles.
The pertinent criterion is the intention of the claimant State evidenced by her
conduct. Such conduct may or may not involve a ceremony but the leading
element is the existence of clear evidence of intention to acquire sovereignty.
The inauguration ceremony was part of a well-developed and impressive pattern
of evidence of the intention of the British Crown which evidence began to
appear in 1847. This ev idence took variou s forms and has been examined in
detail in Chapter V of Singapore’s Memorial.
5.110 The Malaysian position is wrong-foot ed in another way. As has been
demonstrated above, the British practic e does not depend on the existence of
formalities in any case. 270
5.111 The Malaysian argument seeks to play down the official elements in the
inauguration of the lightho use and yet by the time of the inauguration the
intention of the British Crown had been manifested in a long sequence of
decisions and actions. The inauguration took place on 24 May 1850 and the
271
British activities prior to that date are set forth in Singapore’s Memorial.
270
See above, at paras. 5.5 to 5.27.
271
SM pp. 42-69, paras. 5.33-5.79.
– Page 116 –5.112 When the sequence of planning and preparation is appreciated properly it
becomes clear that it would have been unnecessary to use the inauguration
ceremony as the juncture at which sovere ignty would be clai med. Sovereignty
already existed. The first unequivocal acts of possession occurred in 1847 when
Thomson placed the brick pillars on Pedra Branca.
5.113 The inauguration ceremony has been described in detail in Singapore’s
Memorial. 272 The ceremonial took place under the control and auspices of the
British Crown, in the person of Colonel W.J. Butterwor th, the Governor of the
Straits Settlements. The party were ta ken to Pedra Branca in Government-
provided vessels, that is, the Honourable Company’s Steamer Hooghly, and the
barque Ayrshire in tow of Her Majesty’s Steamer Fury. To appear to insist, as
Malaysia does, that the Masonic element was dominant is to distort the realities.
The official character of the occasi on appears from both the account in the
273
Straits Times and Singapore Journal of Commerce and in the official account
274
produced by Thomson, the Government Surveyor.
5.114 In this general context it comes as no surprise that the participation of the
Worshipful Master, and the Members of the Lodge “Zetland in the East”, was at
the express invitation of the Governor of the Straits Settlements. The Governor
wrote to M.F. Davidson, the Worshipful Master, on 23 April 1850. Referring to
the impending erection of the lighthouse, the Governor made his request in the
following terms:
“The philanthropic justification for which this building is to be erected
viz the safety of the mariner appear s to render the occasion most fitting
for the exercise of your craft and I shall esteem it a favour if you the
272 SM pp. 51-54, paras. 5.56-5.59.
273 See “The Horsburgh Lighthouse” in the Straits Times and Singapore Journal of Commerce (28
May 1850) (SM Vol. 3, Annex 45).
274 Thomson’s Account, supra note 67, at p. 427-428 (SM Vol. 4, Annex 61, p. 530-531).
– Page 117 – worshipful Master and the members of the Lodge Zetland in the East
will take upon yourselves the pleasing task of laying the foundation
stone of the light house at Pedra Branca.
The architect of this most useful work reports that measures will be so
far in progress that the foundation st one of the light house may be laid
on the anniversary of the Birthday of our Most Grac ious Majesty the
Queen, when should you consent to meet my wishes I shall be prepared
to carry to Pedra Branca as many officers and members of the Lodge
Zetland in the East as may desire to be in attendance on that auspicious
occasion.” 275
5.115 During the ceremony the Worshipful Master made an appropriate address
to the company and, in response, the Governor expressed his gratitude, saying:
“Worshipful Master and Gentlemen of the Lodge Zetland in the East;
I thank you for the able manner in which you have been pleased to
perform this day’s most interesting ceremony. I have ever honored the
Craft of Masonry and the solemnity which has characterized this day’s
proceedings has made me feel th e deepest respect for what I had
previously honored.” 276
5.116 As the Singapore Government had occasion to point out in her Memorial,
during the ceremony the senior Masonic official made the following political
attribution in the presence of Governor Butterworth and the invited officials and
guests:
“May the All Bounteous Author of Nature bless our Island, of which this
Rock is a dependency ...” 276
This political attribution was reported verbatim in both the Singapore Free Press
and the Straits Times, two English langua ge Singapore newspapers of the day.
275 Letter from Butterworth W.J. (Governor of Prince of Wales Is land, Singapore and Malacca) to
Davidson M.F. (Worshipful Master of Lodge “Zetland in the East”) dated 23 Apr 1850, (MM
Vol. 3, Annex 56).
276 See “The Horsburgh Lighthouse” in Straits Times and Singapore Journal of Commerce (28 May
1850) (SM Vol. 3, Annex 45).
– Page 118 –Neither “Sultan” Allie nor the Temenggo ng – both of whom were residing in
Singapore – objected to this attribution.
5.117 The Malaysian Memorial labours the point that “[a] Masonic ceremony
does not constitute an official act...”, 277and this very abstract statement is no
doubt true. But the nature of the exercise as a whole was to celebrate the
commencement of the construction of a lighthouse, for public purposes, planned
and funded by the British Government. It is to be recalled that the proceedings
also involved a chaplain, wh o took part, as the newspaper report makes clear.
The analogy is useful because, whilst it is clear that a religious element is not as
such “an official act”, prayers are a normal concomitant of official ceremonies in
many parts of the world.
5.118 Malaysia next argues, in paragraph 156 of her Memorial, that:
“It may be noted that an identical Masonic ceremony took place in the
course of building the Raffles Lighthouse on Coney Island (Pulau
Satumu) in 1854. This uninhabited island had undoubtedly been ceded
by Johor to the East India Company in 1824. It is located more than
three miles further south from the ma in Island of Singapore, but within
the ten-mile radius. On that occasion, a ceremony which was in all
essentials the same as that conduc ted for the Horsburgh Lighthouse was
celebrated, and this was done on an island alrea dy under British
sovereignty. This is a further i ndication that the Masonic ceremony in
Pulau Batu Puteh in 1850 was not conduc ted with278e intention of either
establishing or confirming British sovereignty.”
5.119 The reference to Raffles Lighthous e is a mere distraction precisely
because in that case sovereignty was not involved. As a matter of law, the
criterion for establishing sovereignty is the intention of the British Government
as this appears in the particular context and from all the surrounding
circumstances. The laying of the foundation stone on Pedra Branca formed part
277
MM p. 73, para. 155.
278
MM p. 73, para. 156.
– Page 119 –of a series of events indicating the inte ntion of the Crown to take possession of
Pedra Branca in order to build a lighthouse.
5.120 In respect of both Horsburgh Lighthouse and Raffles Lighthouse, the
Masonic element in the laying of th e foundation stone was not in anyway
instrumental in relation to soverei gnty over Pedra Branca and Coney Island
respectively. The ceremonies merely underscored the solemnity of the occasion.
Moreover, the ceremony on Pedra Branca took plac e in May 1850, by which
time the British Crown had al ready taken possession of Pedra Branca. It was
thus entirely in keeping with this thathe Worshipful Master referred to “our
Island [i.e., Singapore ], of which this Rock [i.e. , Pedra Branca ] is a
dependency” in the presence of Governor Butterworth.
D. M ALAYSIA C ONTENDS THAT THE C ONSTRUCTION OF THE HORSBURGH
L IGHTHOUSE DID NOT CONSTITUTE AN ACQUISITION OF S OVEREIGNTY
5.121 The Malaysian Memorial advances the argument “that the construction
and maintenance of lighthouses or other aids to navigation are not per se
279
considered manifestations of sovereignty”. On this basis the assertion is made
that the construction of Pedra Branca did not involve an exercise of sovereignty
but simply the acquisition of owners hip by the East India Company of a
lighthouse on the territory of the sovereign, Johor.
5.122This argument rests on an err oneous characterisation of the legal
criterion. The criterion is not based uponan abstract proposition to the effect
that navigational aids are, or are not, manifestations of sovereignty, but consists
of the intention to acquire sovereignty as revealed in the relevant circumstances.
279
MM pp. 76-79, paras. 165-175, and, in particular, at p. 78, para. 171.
280
MM p. 80, para. 175, and the conclusions, at p. 81, para. 177.
– Page 120 –5.123 The jurisprudence inv oked by Malaysia does no more than demonstrate
that each case depends on the legal and hi storical circumstances. Thus, in the
Minquiers and Ecrehos case the Court examined the evidence of competing
State activity as a whole and found th at the British activities on the Minquiers
predominated. 281 As the excerpts from the Judgment offered by Malaysia show,
in the circumstances the lighting and buoyi ng carried out by France “can hardly
be considered as sufficient evidence of the intention of that Government , to act
282
as a sovereign over the islets...”. Thus the criterion was the intention of the
Government concerned in the light of the evidence generally. On the other hand,
in appropriate circumstances the cons truction and maintenance of lighthouses
283
may constitute evidence of sovereignty, as in the cases of Qatar v Bahrain and
284
Indonesia/Malaysia. In the latter case, it was Malaysia who invoked this
proposition in her favour. 285
5.124In addition, Malaysia invokes th e Award in the first phase of the
286
Eritrea/Yemen arbitration. The Malaysian Memorial asserts that: “The
Arbitral Tribunal... rejected the assertions that the establishment or maintenance
of lighthouses constituted acts of sovereignty”. 287 But this categorical statement
281 Minquiers and Ecrehos, supra note 6, at p. 67.
282 MM p. 79, para. 172, emphasis added.
283 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), supra note 13, at para. 197.
284
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , supra note 13, at
para. 147.
285 ICJ Pleadings, Sovereignty over Pulau Ligitan and Pulau Sipadan , Memorial of Malaysia , at
pp.69-70, paras. 6.25-6.29; Counter-Memorial of Malaysia , at p. 83, para. 4.24;Reply of
Malaysia, at pp. 74-75, paras. 5.23-5.26; Oral Arguments, 7 June 2002, CR 2002/32, at p.19,
para. 26 (Sir Elihu Lauterpacht).
286
Eritrea/Yemen Arbitration (Phase One), supra note 97, at para. 328.
287
MM p. 79, para. 173.
– Page 121 –does not reflect the language of the Awa rd. The quotation given by Malaysia
states that:
“The operation or maintenance of li ghthouses and naviga tional aids is
normally connected to the preservation 287of safe navigation, and not
normally taken as a test of sovereignty.” [emphasis added]
5.125 Moreover, the quotation continues:
“Maintenance on these islands of lighthous es by British and Italian
companies and authorities gave rise to no sovereign claim or
conclusions. The relevance of thes e activities and of Yemen’s presence286
at the 1989 Red Sea Lights Conferen ce are examined in Chapter VI.”
[emphasis added]
5.126 Both the content of this statement by the Tr ibunal and the content of
Chapter VI of the Award confirm that the legal significance of the operation of
lighthouses depended on the particular historical circumstances and, in
particular, the overall evidence of intention to claim. The criterion was thus the
intention of the States concerned, as the following paragraphs of the Award
demonstrate:
“216. The Pro-Memoria can only be read as a claim to sovereignty over
South West Haycock by Italy (while at the same time agreeing that the
erection of the lighthouse was to be treated as a commercial rather than a
sovereign act) and a failure to adva nce a comparable claim to title over
the Hanish group. The internal ev idence shows that this was an
assessment that Great Britain was at the time inclined to accept, and
with which it was satisfi ed; although in other documents Great Britain
treats South West Haycock as part of the Hanish group, and as having
been Ottoman. In the event, all fell to be treated as provided by article
16 of the Treaty of Lausanne, which was reinforced by the
understanding reached in the Rome Conversations.
217. The South West Haycock lighthouse was extinguished in 1940.
It was abandoned after 1945. When the 1930 Convention failed to come
into effect the British authorities were left with the sole financial burden
of the existing lights. It decided to abandon the Centre Peak light (in the
Zubayr group) from September 1932 and Italy (which had been notified,
along with France) reactivated the Centre Peak light in 1933. The
decision was taken in Italy to inform the “interested powers” that this
was being done for reasons of navigational necessity, and that the Imam
“who lays claim to rights over the islands” should be “informed of the
– Page 122 –provisional nature of the occupation and the us efulness to himself in
having the lighthouse reactivated.” It was apparently originally intended
to ask for contributions, but in the event this was not done.
218. The British authorities were notified by Note Verbale on October
4, 1933 of the anxieties of the Captai n of the Port at Massawa as to
safety on the Massawa-Hodeidah route, in the absence of the Centre
Peak light, and of Italy’s decision to take over the lighthouse. The Note
Verbale expressly stated:
...the Royal Ministry for Foreign Affairs need hardly add that the
presence of an Italian staff on the Island of Zebair (Centre Peak),
which will ensure the operati on of the light, implies no
modification of the international judicial status of the island
itself, which, together with the islands of Abu Ail and Gebel Taiz
[sic], was considered by the Italian and British governments in
1928 during the negotiations for the Red Sea Lights Convention,
when the conclusion was reached that the question of sovereignty
of those islands should remain in suspense.
219. Thus in the northern islands , too, Italy had established a
navigational interest but affirmed that it had no implications for
sovereignty. The British decided this was a sufficient comfort not to
have to pursue this matter further with the Italians.
220. The situation remained e ssentially unchanged by the 1938
agreement. Article 4(2) of Annex 3 again affirmed that neither Great
Britain nor Italy would establish sovereignty over the renounced islands,
following Article 16 of the Treaty of Lausanne, and that no objections
would be raised to lighthouse personnel.
221. By the outbreak of the Second World War it may be said that the
maintenance of the lights is seen as a non-sovereign act and there is
agreement that the underlyi ng title to the islands concerned was left in
abeyance – though Italy had asserted tit le (even if choosing not to press
it) to South West Haycock. But this turned upon a perception of South
West Haycock as being part of th e Mohabbakahs, rather than upon any
suggestion that the erection of a lig hthouse thereon itself had a role in
establishing sovereignty. In the course of the Second World War, the
South West Haycock and the Centre Peak lights were extinguished.
222. In June 1948 the British Milita ry Authority (BMA) in Eritrea
sought legal advice as to whether it was liable under any international
conventions for the re-establishme nt of various lights previously
operated by the Government of Italy. These included those at South
West Haycock and at Centre Peak. The advice (which eventually came
from the Ministry of Transport) was that there was no obligation under
any convention.
– Page 123 – 223. The decision by the BMA that it had no responsibility for the
lights at South West Haycock and Centre Peak was not because it
thought those islands were not Italian. No particular attention seems to
have been given to that aspect. Rather, it was decided that as long as the
Abu Ali light was maintained there was no real danger to shipping.
Further, the Admiralty advised that a state was under no obligation to
light its coasts. Thus even if South West Haycock and Centre Peak had
been Italian (and neither was addr essed in the 1948 correspondence nor
is there any evidence that Zubayr was ever regarded by the British as
Italian)288o obligation was passed to the BMA as the occupying
power.”
5.127 These passages constitute a sufficie nt sample of the reasoning of the
Tribunal in Chapter VI of the Award in phase one. They establish, without any
shadow of doubt, that the significanc e of the lighthouses was assessed in the
precise historical context, and in rela tion to the evidence of the intention and
attitude of each Government at the mate rial time, as evid enced by available
documents and the general circumstances. The implications for sovereignty or
not, as the case might be, was intention-related. 289
5.128 In this context it is useful to reca ll a part of Malaysia’s argument in the
Indonesia/Malaysia case:
“5.25 The second part of the Indonesian response draws upon two
cases – the Eritrea/Yemen case and the Minquiers and Ecrehos case – to
support the contention that the establishment of lights and buoys is not
normally taken as a test of sovereig nty and does not constitute proof of
occupation à titre de souverain . It is true that in those two cases the
Arbitral Tribunal and this Court respectively did not find that the
construction of the light was sufficient evidence of the intention of the
Government concerned to act as sovereign over the territorial location of
the lights. But that conclusion was reached on the basis of the facts
particular to each of the two cases, and cannot be applied to the two
islands here.
5.26 The circumstances in wh ich the Tribunal in the Eritrea/Yemen
case made its remarks about the effect of the establishment of
288 Ibid, at paras. 216-223.
289 Ibid, at paras. 219-223, passim.
– Page 124 – lighthouses are peculiar to that case, whereas a reading of the whole of
the relevant part of the Award, and not merely the lifting of a line out of
context, shows that the States concerned did not, in their special
situation, regard the construction of a lighthouse with the knowledge and
consent of other interested States as leading to the conclusion that the
State constructing the light thereby intended to act à titre de souverain
290
in respect of the location of the light.”[underline in original]
5.129 In any event it is the historical an d political circumstances that determine
the nature of the intention. The evidence concerning the intention of the British
Crown in respect of Pedra Branca is vo luminous and definitive. There is no
evidence to support the Malaysian assertion of a permission in the case of Pedra
Branca. There is a great deal of evid ence to show that the British Government
selected Pedra Branca, funded the cons truction and provided every kind of
logistical support and protection during the process. Moreover, given the
physical circumstances of Pedra Branca and the purpose of the appropriation, to
suggest that there was no appropriation of the rock as a whole is to defy common
sense.
5.130 The fact remains that Johor made no protest or reservation of its position
during the process of construction or af terwards. Moreover, at no stage has
Johor or its successors sought to treat the lighthouse as a privately owned asset
sited on the territory of Johor.
Section VII. Conclusions
5.131 The Malaysian case on title lacks substa nce and this at several levels. In
the first place, the quantity of British doc uments relating to the planning and
construction of the lighthouse is impressive . Most, if not all, of the documents
are available. The Malaysian Govern ment has relied upon some thirty
290
See ICJ Pleadings, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
Reply of Malaysia, at pp. 74-75, paras. 5.25-5.26.
– Page 125 –documents. 291 The Singapore Government has relied upon fifty-two. 292 When
the documents are properly studied, and effectively related to each other, a clear
and convincing picture emerges. In spite of the richness of the documentation,
Malaysia trades in elisions and ambiguities.
5.132 The cavalier approach to the documents does not serve Malaysia well.
The key document, Butterworth’s letter da ted 28 November 1844, which is the
centrepiece of the argument based upon the permission of Johor, is spectacularly
misconstrued. It concerns Peak Rock, an d the documents to which it refers also
relate to Peak Rock. The permission give n in the Johor letters does not refer to
Pedra Branca.
5.133 The weakness of the Malaysian case is compounded by other elements.
The Malaysian claim to a prior title is base d, or so it appears, upon a traditional
title, but no adequate case is advanced, an d no evidence is elicited, which refers
293
specifically to Pedra Branca.
5.134 The Malaysian Government seeks to augment a weak case by certain
weak ancillary contentions: see above for Singapore’s rebuttal. As an example,
Malaysia relies upon the visit of the Te menggong to Pedra Branca on 2 June
1850, but fails to adduce any evidence that he made any protest or reservation of
the position of Johor. Moreover, Malaysia appears to have little confidence in
the argument and thus finds it necessary to edit the supporting quotation by
omitting a key phrase.
291
MM Volume 3 (Historical and Legal Documents), Part A.
292
SM Volumes 2 to 3.
293
See above, at Chapter III and Chapter IV of this Counter-Memorial.
– Page 126 –5.135 Singapore will now reiterate her conc lusions on the basis of her claim to
sovereignty in respect of Pedra Branca.
(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 its maintenance on a permanent basis.
5.136 The particular manifestations of the intention of the British Crown to take
lawful possession of Pedra Branca include the following:
(a) The ceremonial laying of the fo undation stone in 1850 under the
control and auspices of the Governor of the Straits Settlements and
in the presence of other senior officials.
– Page 127 – (b) The logistical support and protection provi ded by British
Government vessels during the preparation for construction and
the construction itself.
(c) The maintenance of public orde r by the British Crown during the
process of preparation and construction.
(d) The official commissioning of the lighthouse on 27 September
1851 which involved a visit by the Governor of the Straits
Settlements and other officials.
(e) The panel placed in the Visito rs’ room within the lighthouse
confirms its official character and bears the names of the Governor
and of J.T. Thomson, the Government Surveyor.
(f) The flying of the marine ensign in accordance with contemporary
British practice. It is also clear that the marine ensign was flown
during the process of construction, 1850-51, and then, of course,
after completion.
5.137 In addition: The acts of taking possession were peaceful and public and
elicited no opposition from other powers.
5.138 In consequence, title to Pedra Br anca was acquired by the British Crown
in accordance with the legal principles go verning acquisition of territory at the
material time.
5.139 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 th e 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 of th e Memorial of Singapore, and in Chapter
VI of the present Counter-Memorial.
– Page 128 – CHAPTER VI
THE PARTIES' CONDUCT CONFIRMS SINGAPORE'S TITLE TO
PEDRA BRANCA
Section I. Introduction – The Applicable Principles
6.1 The basis of Malaysia's arguments in Chapter 7 of he r Memorial entirely
rests on Johor's alleged “title to the is land and Malaysia's succession thereto” 294
and supposed “granting of permission... to the British authorities in Singapore to
build a lighthouse on Pulau Patu Puteh”. 295 As Singapore has shown above, 296
those assertions are ill -founded and erroneous. Si milarly (and consequently),
Malaysia's allegation that Singapore's Diplomatic Note of 14February 1980 297
298
“was the first time that Singapore asserted a claim of title of its own” is
misplaced. Singapore “claimed” noth ing under the Diplomatic Note; she
protested against Malaysia's map issued the previous year which had asserted,
for the first time, Malaysia's claim over Pedra Branca.
6.2 Moreover, it goes without saying that there was no need for Singapore to
protest against Malaysia's prior conduct vis-à-vis Pedra Branca because there
294 MM p. 83, para. 178.
295 MM p. 84, para. 182. See also MM p. 83, paras. 179-180.
296
See above, Chapters III and IV of this Counter-Memorial.
297
See Singapore’s Note MFA 30/80 dated 14 Feb 1980 (SM Vol. 6, Annex 144; MM Vol. 3,
Annex 80).
298 MM p. 84, para. 181.
– Page 129 – 299
was none at all, as Singapore has shown in her Memorial and will show again
in this Chapter.
6.3 There are crucial differences between the Parties on the actual state of
affairs. However, there are no differences between them as to the basic
applicable legal principles that Malaysia has re ferred to in paragraphs 186-187
of her Memorial. In particular, the Parties agree that:
(a) “there is a presumption agai nst the easy abandonment or
displacement of title to territory” 300 – although it goes without
saying that title can only be abandoned or displaced if it existed to
begin with;
(b) a title to territory can only be established by conduct à titre de
300
souverain – but, very evidently, a fortiori, a total absence of
conduct cannot give rise to or confirm any claim.
6.4 However, these principles do not avail Malaysia in the instant case as she
cannot prove any original title to Pedra Branca. She has not protested against
Singapore’s consistent conduct à titre de souverain since the British authorities
took possession of the island in 1847. Neither has Mala ysia acted in a way that
manifests her alleged title to Pedra Branca.
6.5 For these reasons, Singapore notes that the case law invoked by Malaysia
does not help her. Moreover, Malaysia om its important aspects of the decisions
that she quotes. Thus, she attaches great importance to the Court's Judgment
concerning Sovereignty over Certain Frontier Land in order to show that
“[i]nternational law will be slow to pres ume either the abandonment of title or
299
See SM pp. 132-136, paras. 6.112-6.121.
300
MM pp. 85-86, para. 187.
– Page 130 –the displacement of the sovereignty of th e original titleholder in the absence of
301
clear evidence to this effect”. As Malaysia rightly points out, in that case, the
Court found that the acts re lied upon by the Netherla nds “are insufficient to
displace Belgian sovereignty established by that Convention” of 1843; but what
301
she omits to stress (although she quotes this very extract of the Judgment), is
that the Court noted:
“The weight to be attached to th e acts relied upon by the Netherlands
must be determined against the b ackground of the complex system of
intermingled enclaves which existed. The difficulties confronting
Belgium in detecting encroach ments upon, and in exercising, its
sovereignty over these two plots, surro302ed as they were by
Netherlands territory, are manifest.”
6.6 There are no such difficulties in the present case. Singapore's display of
303
sovereignty over Pedra Branca has always been “open and public”. Not only
did Great Britain, her predecessor in title, take possession of the island, build and
maintain the lighthouse (without any kind of opposition, let alone authorization
from Johor), but she also continuously exercised activities à titre de souverain
304
on Pedra Branca and its surrounding waters. Had Malaysia or her predecessor
considered that such acts were encroa chments on her sovere ignty, they would
(and should) have reacted, 305but they never did. And, to adopt Judge Huber's
reasoning in his Award in the Island of Palmas case,
“[t]here is moreover no evidence wh ich would establish any act of
display of sovereignty over the island by [ Johor, Malaysia] or another
301 MM p. 85, para. 186.
302
Case concerning Sovereignty over certain Frontier Land (Belgium/Netherlands) , Judgment of
20 June 1959, [1959] ICJ Rep 209, at p. 229.
303
See Island of Palmas Arbitration (Netherlands v. U.S.), supra note 24, at p. 868.
304
See SM pp. 89-137, paras. 6.1-6.122 (Chapter VI).
305 See e.g., Dubai-Sharjah Border Arbitration, 91 ILR 543 (1993), at p.622. The Tribunal was
presided by Philippe Cahier and composed of John L. Simpson and Kenneth R. Simmonds. See
also SM pp. 148-150, paras 7.24-7.28 and the numerous authorities cited and quoted thereat.
– Page 131 – Power, such as might counter-balance or annihilate the manifestations of
306
[Singapore] sovereignty”.
6.7 Malaysia also refers to the finding of the Arbitrator in the Clipperton
Island case, 307 that France had “never had the animus of abandoning the
island”. 308 Neither, it should be added, has Singapore, after title was acquired in
1847-1851. Other parts of that Award are also worth noting as they are relevant
to the present case. In pa rticular, just as the Arb itrator emphasized that, “to
establish the contention of Mexico [...it is necessary] to prove that Spain not only
had the right, as a state, to incorporate the island in her possessions, but also had
effectively exercised the right”, 309 similarly, in the present case, Malaysia’s
claim rests on her ability to show that she effectively exercised territorial
sovereignty over Pedra Branca – this she does not, and cannot do. In contrast,
Great Britain took possession of Pedra Br anca as early as 18 47 and, together
with her successor in title, Singapore, co ntinuously exercised sovereignty over
the island. As the Ar bitrator said in the Clipperton Island case, “[t]hus, if a
territory, by virtue of the fact that it was completely uninha bited, is, from the
first moment when the occupying state makes its appearance there, at the
absolute and undisputed disposition of th at state... and the occupation is thereby
310
complete”.
6.8 The previous Chapter of this Coun ter-Memorial reiterates that this is
precisely what happened in the present case: Singapore’s title over Pedra Branca
306 Island of Palmas Arbitration (Netherlands v. U.S.), supra note 24, at p. 868.
307 MM p. 85, footnote 158.
308 English translation of Subject of the Difference Relative to the Sovereignty over Clipperton
Island (France v. Mexico), Arbitral Award dated 28 Jan 1931, 26 Am. J. Int'l L. 390 (1932), at
p. 394 (or in (1928) 2 RIAA 1107, at pp. 1110-1111 for the original French text).
309 Ibid, at 393 (or in 2 RIAA 1107, at p. 1109 for the original French text).
310 Ibid, at 394 (or in 2 RIAA 1107, at p. 1110 for the original French text).
– Page 132 –stems from the British Crown’s taking of po ssession of the island in 1847. This
Chapter will show that this title has been confirmed si nce then by the peaceful
and repeated exercise of State author ity over Pedra Bran ca and the adjacent
waters by Singapore and he r predecessor in title, w ithout any challenge by
Malaysia until 1979.
6.9 As Singapore has made the foregoing points in Chapters VI and VII of
311
her Memorial, she will, in this Chapter, confine her remarks to answering
Malaysia's allegations and showing that:
(a) the constitutional developments and official descriptions of
Singapore and Malaysia lend no support to Malaysia's case
(Section II);
(b) Singapore's conduct confirms he r title to Pedra Branca (Section
III);
(c) Malaysia's conduct does not esta blish her title to Pedra Branca
(Section IV); and
(d) the bilateral conduct of the Par ties invoked by Malaysia has no
bearing on title over Pedra Branca (Section V).
Section II. The Constitutional Developments and Official
Descriptions of Singapore and Malaysia Lend No Support to
Malaysia's Case
6.10 Malaysia argues that the constitu tional developments and official
descriptions of Singapore and Malays ia demonstrate that Singapore never
considered Pedra Branca to be part of Singapore and that the island remained
311 SM pp. 89-160.
– Page 133 –part of the Federation of Malaysia.2 As the present section will show, this
contention is unsustainable.
6.11 With respect to Malaysia's own conduct, at no po int prior to the issuance
of her 1979 map did Malaysia ever suggest that Pedra Branca formed part of the
territory of either Johor or MalaysiIndeed, as Singapore will discuss in the
next Chapter, in 1953 the Ac ting State Secretary of Johor expressly stated that
313
“the Johor Government does not cl aim ownership of Pedra Branca”.
Malaysia's constitutional developments must be seen in the light of that explicit
disclaimer, and in the lighof the total absence of any effectivités on Pedra
Branca, or claim to the island, whethe r by Malaysia or by Johor, and whether
before the United Kingdom acquired title in 1847-1851 or afterwards.
6.12 In contrast, the activities of Singa pore are fully consistent with her pre-
existing title. Not only did Singapore, and her predecessor in title, the United
Kingdom, carry out a steady stream of official activities on Pedra Branca and
within its territorial waters, her legislative measures and constitutional
developments confirmed that title.
A. M ALAYSIA'SC ONSTITUTIONAL D EVELOPMENTS D O NOT P OINT TO THE
EXISTENCE OF M ALAYSIAN S OVEREIGNTY OVER P EDRA B RANCA
6.13 In support of her case, Malaysia refers to the esta blishment of the
Malayan Union under the Malayan Union Order in Council 1946.314 That Order
simply referred to the Mala yan Union as comprising, inter alia, the “Malay
States”, which in turn were definedas including Johor. Based on this non-
312
MM pp. 91-94, paras. 198-206; p. 99, para. 218.
313
See Chapter VII below, and SM pp. 161-178, paras. 8.1-8.41 (Chapter VIII).
314
MM p. 91, para. 198.
– Page 134 –contentious fact, the Malaysian Memorial jumps to the conclusion that Pedra
Branca, which it claims formed part of Johor, thus “became part of the Malayan
315
Union”.
6.14 As Singapore has shown in Chapter IV, there is no support for this line of
argument. Pedra Branca has never formed part of Johor, and the Sultan of Johor
never claimed the island or exercised any authority over it. On the contrary, title
was already vested in Singa pore by virtue of the taking of lawful possession of
the island by the British Crown during th e period 1847-1851 discussed in the
previous Chapter. This title was s ubsequently maintained by the United
Kingdom’s and Singapore’s uninterrupted administration of Pedra Branca to the
present. The 1946 Malayan Union Or der in Council could not and did not
change this situation. Malaysia’s relia nce on the Order in Council simply begs
the question and is consequently irrelevant.
6.15 Malaysia next refers to the 19 48 Federation of Malaya Agreement
pursuant to which the Malayan Union was replaced by the Federation of Malaya.
The Federation of Malaya was defined as comprising the Malay States including
Johor, “and all dependencies, islands and places which, on the first day of
December, 1941, were administered as pa rt thereof, and the territorial waters
adjacent thereto”. 316
6.16 On 1 December 1941, Pedra Branca was not administered as part of
Johor. Put in its simplest terms, Malaysia has not referred, and cannot refer, to a
single act of administration that either J ohor or Malaysia ever carried out with
respect to Pedra Branca. 317 As such, the island coul d not have been considered
315
MM p. 91, para. 198.
316
MM p. 92, para. 199.
317
SM pp. 132-136, paras. 6.112-6.121.
– Page 135 –to be part of Johor or, under the Federa tion of Malaya Agreement, part of the
Malayan Federation.
6.17 Lastly, Malaysia argues that, by vi rtue of the Federation of Malaya
Agreement of 5 August 1957, “Johor (including Pulau Batu Puteh) remained part
of the Federation of Malaya”. 318 Once again, this assertion is a mere petitio
principii. The 1957 Federation of Malaya Agreement again defined the
expression the “Malay States” as including:
“all dependencies, islands and places which, immediately before the
thirty-first day of August, nine teen hundred and fifty-seven, are
administered as part thereof, a nd the territorial waters adjacent
thereto”.19
6.18 Clearly, Pedra Branca had not been, and was not then being, administered
by the State of Johor. The assertion that Pedra Branca thus remained part of the
Federation of Malaya rests on the to tally unproven assumption that it had
hitherto formed part of th e territory of Johor. Moreover, the fact that Pedra
Branca could not have been included in the 1957 Fede ration of Malaya
Agreement is confirmed – if further c onfirmation is necessary – by the express
disclaimer that the Acting State Secret ary of the State of Johor had made four
years earlier when he stated that the “J ohor Government does not claim
ownership of Pedra Branca”. 320 Since Malaysia’s predecessor, the State of
Johor, carried out no activities with respect to Pedra Branca, nor made any claim
to the island prior to the date when the 1957 Federation of Malaya Agreement
came into force, it follows that Pedra Branca could not have “remained” part of
the Federation by virtue of that Agreement.
318
MM p. 92, para. 200.
319
See Federation of Malaya Agreement 1957, Art. 2 (MM Vol. 3, Annex 100), cited at MM p. 92,
para. 200.
320
See Letter from M. Seth Bin Saaid (Acting State S ecretary of Johor) to th e Colonial Secretary,
Singapore dated 21 Sep 1953 (SM Vol. 6, Annex 96; MM Vol. 3, Annex 69).
– Page 136 – B. S INGAPORE S C ONSTITUTIONAL AND L EGISLATIVE DEVELOPMENTS
6.19 With respect to Singapore's own conduct, the Malaysian Memorial asserts
that this conduct “never manifested a conviction th at Pulau Batu Puteh was
anything other than Malaysian”. 321 This argument is pure wishful thinking. It
ignores the fact that Great Britain took possession of the island in 1847-1851 as
well as the well-documented re cord of State functions that Singapore and Great
Britain continuously exercised on an d around Pedra Branca since 1851. As
Singapore demonstrated in Chapter VI of her Memorial, Singapore's
administration of the island included both legislative acts specifically referring to
the island and actual displays of authority on the island itself. None of these have
been contested by Malaysia. All of them were consistent with Singapore's pre-
existing title to Pedra Branca acquired in 1847-1851.
1. The Straits Settlements and Johore Territorial Waters Agreement,
1927
6.20 Instead of focusing on the character of Singapore's activities as a whole,
the Malaysian Memorial targets a numbe r of disparate legislative measures
enacted by Singapore in an attempt to argue that they do no t evidence
sovereignty over Pedra Branca. The first act mentioned in the Malaysian
Memorial is the 1927 Straits Settleme nts and Johor Territorial Waters
Agreement. 322 There is nothing in this Agreement which even remotely called
into question Singapore’s sovereignty over Pedra Branca.
321
MM p. 124, para. 283.
322
MM pp. 87-88, paras. 190-192.
– Page 137 –6.21 The object of the 1927 Agreement is clearly se t out in the Agreement's
Preamble. 323 The Preamble first recalls th e 1824 Crawfurd Treaty by which
Sultan Hussein and the Temenggong of Johor had ceded the island of Singapore,
together with “the adjacent seas, straits and islands” up to a distance of ten miles.
It then states that the British Crown was:
“... desirous that certain of the said seas, straits and islets [i.e ., the seas,
straits and islets ceded in the 1824 Crawfurd Treaty ] shall be retro-
ceded and shall again form part of the State and Territory of Johore”. 324
[emphasis added]
According to its very purpose, the 1927 Agreement had nothing to do with Pedra
Branca, which both Parties recognise to fall outside the scope of the 1824
Crawfurd Treaty. It was concerned with a retrocession to Johor of other islands
325
and waters.
6.22 To accomplish this purpose, the 1927 Agreement delimited a boundary
line in the Johor Strait base d on the thalweg line. Because both Singapore and
Johor claimed three-mile territorial seas at the time, to the west and east of the
main island of Singapore the line set out in Article 1 of the Agreement
terminated at the limits of the three-mile territorial sea drawn from the relevant
coastal territory of each of the parties. Under Articles 2 and 3 of the Agreement,
all waters and islets lyin g within three miles of th e low-water mark of the
mainland of Johor – which had previously appertaine d to Singapore under the
1824 Crawfurd Treaty – were retroced ed to Johor subject to the boundary
delimitation established under Article 1.
323 MM p. 87, para. 190.
324 See Straits Settlements and Johore Territorial Waters Agreement dated 19 Oct 1927, reprinted
in Allen, Stockwell & Wright (eds.), A Collection of Treaties and Other Documents Affecting
the States of Malaysia, 1761-1963 (1981), pp. 114-116 (MM Vol. 2, Annex 12).
325 The significance of the 1824 Treaty is discussed above, at para. 1.15, and below, at para. 7.13 et
seq.
– Page 138 –6.23 The background and purpose of the 1927 Agreement was addressed in the
British Parliamentary debates of 1928 where the Under-Secretary of State for the
Colonies, Mr. Ormsby-Gore, explained the situation as follows:
“The old Treaty whereby Great Britain obtained possession of the Island
of Singapore, which was drawn up by Sir Stamford Raffles and finally
ratified in 1824, had the effect, if st rictly construed, of claiming for the
Colony of the Straits Settlements not merely the whole of the water of
the Island of Singapore, but of islands which really are part of the State
of Johore. One of these islands [ Pulau Nenas] is 100 yards from Johore
and two or three miles from Singapore. It is a small island of 26 acres
and according to the Treaty of 1824, wa s regarded as part of the Colony
of the Straits Settlements but, acc ording to justice and equity326nd
according to intention it ought to be part of the State of Johore.”
6.24 That the 1927 Agreemen t was only intended to effectuate a transfer of
certain islands and waters in the immediate vicinity of the main island of
Singapore – particularly the island of Pulau Nenas – to the Sultan of Johor was
further confirmed by internal British correspondence dated 30 January 1928
which forwarded copies of the Agreement to the colonies. The relevant part of
the transmittal letter reads as follows:
“The effect of this agreement [the 1927 Agreement] is to convert certain
islands and waters which formerly formed part of the Colony of the
Straits Settlements into te327tory under His Majesty’s protection and
territorial waters thereof.”
6.25 Because Pedra Branca lies more than six nautical miles from the coast of
Johor, there was no need for the 1927 Agre ement to address the territorial sea
boundary around the island or the issue of its ownership, and the Agreement did
not do so. By that time, Singapore ha d been in soverei gn possession of Pedra
326 See U.K. Parliamentary Debates (House of Commons), Second reading of the Straits
Settlements and Johore Territorial Water (Agreement) Bill, 16 July 1928 attached to this
Counter-Memorial as Annex 26. For the location of P. Nenas, see Insert 10, after p. 130.
327 Letter from Lovat (Secretary of State for Dominion Affairs) to Governments of Canada,
Australia, New Zealand, South Africa, Irish Free State and Newfoundland dated 30 Jan 1928,
attached to this Counter-Memorial as Annex 25. At the time, Johor was ostensibly under British
protection.
– Page 139 –Branca for some 80 years. It follows that nothing in the 1927 Agreement lends
any credence to Malaysia's argument that it “is evid ence of the continuing
appreciation that Pulau Batu Puteh and its surrounding waters were not part of
the territory of Singapore”. 328
2. Establishment of the Colony of Singapore, 27 March 1946
6.26 The next act referred to in the Malaysian Memorial is the Singapore
Colony Order in Council, 1946. This instrument defined “the Settlement of
Singapore” as “the Island of Singapore and its dependencies, Christmas Island,
the Cocos or Keeling Islands, and all islands and places which, on the fifteenth
day of February, 1942, were known and administered as part of such Settlement,
and the territorial waters adjacent thereto ”, and established these localities as
the Colony of Singapore. 329
6.27 After also proceeding to discuss th e descriptions of the “Settlement of
Singapore” in the 1946 Transfer of Powers and Interpretation Ordinance and the
330
1948 amendment thereto, Malaysia argues that thes e descriptions were no
different from those set out in Article 1 of the 1927 Agreement and, for that
331
reason, Pedra Branca was not in any way part of the Settlement of Singapore.
328
MM p. 88, para. 192.
329
Singapore Colony Order in Council, 1946 (United Kingdom) (SM Vol. 5, Annex 86; MM
Vol. 3, Annex 92), emphasis added.
330 Transfer of Powers and Interpretation Ordinance, 1946 (Malayan Union) (MM Vol. 3, Annex
93); Transfer of Powers and Interpretation Amendment Ordinance (No. 11 of 1948) (Federation
of Malaya) (MM Vol. 3, Annex 94).
331 MM p. 88, para. 193.
– Page 140 –6.28 This contention is incorrect for two reasons. First, the expression
“Settlement of Singapore” was not defined in the 19 27 Agreement. That
Agreement, as has been seen above, wa s not concerned with defining the places
which comprised the Settlement of Singapore, but rather with the retrocession to
Johor of certain islets and waters situated in the imme diate vicinity of the main
island of Singapore within three miles of the Johor coast. The 1927 Agreement
thus had nothing to do with Pedra Branca. Secondly, the 1946 Order in Council
defined the Settlement of Singapore as including not only “its dependencies”,
but also “all places which, as of 15 February 1942, were known and
administered as part of such Settleme nt, and the territorial waters adjacent
thereto”. From the materials that Singa pore furnished with he r Memorial, it is
clear that, as of 15 February 1942, Pedr a Branca was not only a dependency of
the Island of Singapore, it was also – and had been for some 90 years –
administered as part of Singapore. Cont rary to Malaysia's assertions, therefore,
the 1946 Order in Council confirmed that Pedra Branca was part of Singapore.
6.29 It is also significant that the “Settlement of Singapore” as defined
included both its dependencies and “the territorial waters adjacent thereto”. As
Singapore has shown in ChapterIX of her Memorial, both Middle Rocks and
South Ledge fell within the three-mile territorial waters adjacent to Pedra
332
Branca. Thus, the 1946 Order in Counc il confirmed that these features
formed part of the Settlement of Singapore as well.
6.30 Neither the 1946 Transfer of Powers and Interpretation Ordinance nor the
1948 amendment thereto, both of which are referr ed to in the Malaysian
Memorial, changed the picture. In Se ction 2 of the 1946 Ordinance, the
“Settlement of Singapore” was defined as:
“[T]he towns and island of Singapore, all othe r islands heretofore
administered as part of the Settlement of Singapore and all British
332 SM pp. 184-190, paras. 9.18-9.33.
– Page 141 – waters adjacent thereto, but does not include the Cocos Islands and
333
North Keeling Island.”
Under the 1948 Amendment, the “Colony of Singapore” included “the Island of
334
Singapore and its dependencies”. Pedra Branca continued to be administered
as part of the Settlement of Singapore and was a dependency of the Island of
Singapore. It follows that both acts c ited by Malaysia were fully consistent with
Singapore's title over Pedra Branca.
3. The Curfew Order of 1948
6.31 Malaysia’s Memorial also seeks to find support for its contention that
Pedra Branca did not form part of the te rritory of Singapore in the 1948 Curfew
335
Order issued by the Commissioner of Police of Singapore. This effort is
futile.
6.32 The Curfew Order was designed to prevent smuggling of supplies by
communist insurgents be tween Singapore and Joho r across the narrow Johor
Straits.336 It prohibited persons from being in an area lying within the boundary
of the territorial waters of “the Is land of Singapore” during night-time hours.
The territorial waters of “the Island of Singapore” were defined in essentially the
same terms as in the 1927 Agreement.
333 See Transfer of Powers and Interpretation Ordinance, 1946 (Malayan Union) (MM Vol. 3,
Annex 93).
334
See Transfer of Powers and Interpretation Amendment Ordinance No. 11 of 1948 (Federation of
Malaya) (MM Vol. 3, Annex 94).
335
MM pp. 90-91, paras. 194-197; The Curfew (Johore Straits) (Singapore) Order 1948 (Colony of
Singapore) (MM Vol. 3, Annex 95).
336 Minute from Barry J.C. (Deputy Commissioner of Police, Singapore) to Foulger R.E.
(Commissioner of Police, Singapore) dated 27 Sep 1948 and Reply from Foulger R.E.
(Commissioner of Police, Singapore) to Barry J.C. (Deputy Commissioner of Police, Singapore)
dated 29 Sep 1948, attached as Annex 31 to this Counter-Memorial.
– Page 142 –6.33 The Order had nothing to do with Pedra Branca for two reasons. First, it
only applied to areas falling within the territorial wate rs of “the Island of
Singapore” in the vicinity of the Jo hor Straits. This was confirmed by a
memorandum sent by the Deputy Commiss ioner of Police of Singapore to the
Chief Police Officer of Joho r on 2 July 1948, which de scribed the area to be
covered by the curfew as follows:
“At a Meeting of the Defence Committee this morning it was decided to
impose a Curfew on the Johore Straits between Singapore Island and the
mainland, following the Johore-Singapore boundary line from Terawang
to the West of Singapore Island to a point North of a line drawn between
Changi Point and Penggarang.” 337
Obviously, neither the territorial waters of the main Island of Singapore nor the
Johor Straits extended as far as Pedra Branca – which lies more than three miles
from the Island of Singapore – any more than they extended to the Cocos Islands
or North Keeling Island wh ich, at the time, were part of the Colony of
Singapore. By its very terms, theref ore, the Curfew Order did not extend to
Pedra Branca.
6.34 Secondly, there was no reason why Pedr a Branca should have been
included in an Order imposing a curfew. Access to the island was already
controlled by the Singapore authorities, and the on ly residents were the
Singaporean staff who manned and maintain ed the lighthouse. It goes without
saying that there were no communist insurgents on Pedra Branca to benefit from
the smuggling of supplies from Johor, nor could Pedra Branca (given its physical
condition and location) serve as a stagi ng point for the smuggling of supplies to
communist insurgents in Johor.
337 See Letter from the Singapore Deputy Commissioner of Police to the Chief Police Officer, dated
2 Jul 1948, attached to this Counter-Memorial as Annex 30.
– Page 143 – 4. Establishment of the State of Singapore, 1 August 1958
6.35 The Malaysian Memorial also refers to the definition of the “Colony of
Singapore” set forth in the 1951 Interp retation and General Clauses Ordinance
and its amendments in 1952, 1960 and 1965. 338 In the first two instruments, the
“Colony of Singapore” was defined as “the Island of Singapore and its
dependencies...”. As already demonstrated, Pedra Br anca was a de pendency of
the Island of Singapore and thus fell within the ambit of this legislation.
6.36 In the Interpretation and Genera l Clauses (Amendments) Ordinance of
1960, the reference to the “Colony of Singapore” was ch anged to “the State of
Singapore”. It was defined as including “the Island of Singapore and all islands
and places which on the 2nd day of June, 1959, were administered as part of the
339
Colony of Singapore and all terr itorial waters adjacent thereto”. era
Branca, as previously shown, was un questionably being administered by
Singapore at the relevant time and thus fell within this definition as well.
(a) Malaysia's Attempt To Diminish the Importance of Singapore's
Administration of Pedra Branca
6.37 Malaysia is understandably sensitive about the references to “islands
administered as part of the Colony of Singapore” in the various instruments
referred to above. As the Malaysian Memorial concedes, “it might be argued
that the reference to ‘islands... administer ed as part of the Colony of Singapore’
338 MM pp. 93-94, paras. 201-204; See ss. 1-2 of the Interpretation and General Clauses Ordinance
(No. 4 of 1951) (Colony of Singapore) (MM Vol. 3, Annex 97); and Interpretation and General
Clauses (Amendment) Ordinance (No. 18 of 1952) (Colony of Singapore) (MM Vol. 3, Annex
98).
339
See Interpretation and General Clauses (Amendment) Ordinance (No. 2 of 1960) (State of
Singapore) (MM Vol. 3, Annex 104); Extract from Interpretation Act (No. 10 of 1965)
(Republic of Singapore) (MM Vol. 3, Annex 109). The 1965 amendment repeated the same
definition.
– Page 144 –in the various instruments cited must be read to include Pulau Batu Puteh [Pedra
Branca] as Singapore operated the Horsburgh Lighthouse.” 340 However,
Malaysia then goes on to assert that Singapore did not admi nister the island –
she only managed and controlled the lighthouse – and that even if Singapore did
administer Pedra Branca, she did so as a consequence of her management of the
341
lighthouse not as part of her territory.
6.38 These arguments are co mpletely misplaced. In the first place, Singapore
already possessed a prior title to the island as a result of the events of 1847-1851.
Secondly, that title was confirmed and main tained by a constant stream of State
activities that Singapore and her predecessor in title carried out on the island as a
whole and within its territorial waters. Chapter VI of Singapore's Memorial
documented the many ways in which Sing apore has administered Pedra Branca
for over 150years. It is true that an important part of this administration
involved the lighthouse. After all, the lighthouse is the most important structure
on what is a very small island. Sing apore and her predecessor, the United
Kingdom, enacted legislation and issued Notices to Mariners specifically dealing
with the lighthouse. 342Moreover, Singapore staffed, maintained and improved
the lighthouse throughout this period.
6.39 Equally important, however, is the fa ct that Singapore's administration of
Pedra Branca and its territorial waters was of a far reaching nature and involved
a wide variety of activities carried out à titre de souverain that went well beyond
simply managing the lighthouse. Singapor e built, maintained and extended a
340 MM p. 95, para. 207.
341 MM p. 95, paras. 208-209.
342 See e.g., Act No. VI of 1852 (India) (SM Vol. 3, Annex 59); Act No. XIII of 1854 (India) (SM
Vol. 5, Annex 62); Light Dues Ordinance, 1957 (Colony of Singapore) (SM Vol. 6, Annex 99);
Light Dues (Repeal) Act, 1973 (Republic of Singapore) (SM Vol. 6, Annex 118); and
Singapore, Protected Places (No. 10) Order 1991 (SM Vol. 7, Annex 178).
– Page 145 – 343
jetty on the island. She consistently flew the British Marine Ensign and, after
independence, the Singapore Ensign over the island. 344 She carried out
meteorological observations on Pedra Branca. 345 She exercised exclusive
control over visits to Pedra Branca and the waters arou nd it, including by
346
Malaysian nationals, and vetted a pplications to visit the island. She oversaw
and authorized scores of official visits by Singapore civil and military officials to
347
the island. She granted permission to Ma laysian authorities to undertake
scientific and technical surveys on Pe dra Branca and within Pedra Branca's
territorial waters and prohibited Malays ian officials from visiting the island
when not in possession of a Singapore permit. 348 She installed military
349
communications equipment on the island, and carried out naval patrols and
350
naval exercises within Pedra Branca's territorial waters. She investigated and
351
reported on hazards to navigation and shipwrec ks around the island, and
Singapore authorities investigated acci dental deaths off Pedra Branca. 352
Finally, Singapore consider ed and invited public te nders for land reclamation
projects involving the island itself. 353
343
See Extracts from the Annual Reports of the Marine Department of the Straits Settlements and
the Colony of Singapore from 1937 to 1971 (SM Vol. 5, Annex 82).
344 SM pp. 107-109, paras. 6.47-6.53.
345 SM pp. 105-107, paras. 6.42-6.46.
346
SM pp. 109-114, paras. 6.54-6.67.
347
SM p.110, paras.6.56-6.57 , and Selected Entries from the Horsburgh Lighthouse Visitors
Logbook (including transcriptions) (SM Vol. 5, Annex 87).
348 SM pp. 111-112, paras. 6.60-6.63.
349 SM pp. 116-118, paras. 6.72-6.75.
350
SM pp. 114-116, paras. 6.68-6.71.
351 SM pp. 118-122, paras. 6.76-6.83.
352 SM pp. 122-123, paras. 6.84-6.87.
353
SM pp. 123-124, paras. 6.88-6.90.
– Page 146 –6.40 These extensive activities, all of which were of an open, notorious and
official nature and none of which were carried out with Malaysia's permission or
ever protested by Malaysia until after the dispute emerged in 1979–1980, went
far beyond simply managing the lighthouse. They were classic State activities
undertaken on the island à titre de souverain and fully in conf ormity with the
fact that Pedra Branca was regarded as part of Singapore's territory.
6.41 Once again, the Malaysian Memo rial passes over these activities in
complete silence. Instead , it attempts to parse miscellaneous publications
periodically issued in Singapore in an attempt to show that Singapore did not
consider Pedra Branca to form part of her territory. As Singapore will presently
show, this highly selective approach is unpersuasive.
6.42 One such publication relied on by Malaysia is a booklet entitled
Singapore Facts and Pictures issued by the then Singapore Ministry of
Culture. 354 The Malaysian Memorial points out that the 1972 edition of this
booklet notes that “Singapore consists of the Island of Singapore and some 54
small islands within its territorial waters”, but that Pedra Branca is not included
355
in the list of such islands. It was only in 1992, Malaysia argues, that Pedra
356
Branca was added to the list.
6.43 The publication in question was pu blished by the Singapore Ministry of
Culture (later, renamed as the Ministry of Information and the Arts). Far from
being a legally comprehensive desc ription of Singapore's territory, Singapore
354 MM pp.95-97, paras.211-212, citing Singapore Ministry of CultuSingapore Facts and
Pictures 1972 , pp.1-3, 148-150 (MM Vol. 3, Annex 79); and Singapore Ministry of
Information and the Arts, Singapore Facts and Pictures 1992 , pp.1, 178 (MM Vol. 3, Annex
83).
355 MM pp. 95-96, paras. 211-212.
356 MM pp. 96-97, para. 212.
– Page 147 –Facts and Pictures , as can be seen from the copy that Singapore is depositing
with the Registry, is a pub lication of general informa tion. It provides a broad
overview of Singapore, her people, infrastructure and places of interest. Neither
the 1972 nor the 1992 editions were comprehensive.
6.44 In the 1972 edition, for example, the text quoted by Malaysia refers to the
Main Island of Singapore and some 54 sma ll islands within its territorial waters.
Leaving aside the fact that Pedra Bran ca does not fall with in the territorial
waters of the Main Island of Singapore, the list included in Appendix I to the
booklet lists 59 islands, not 54. Similar discrepancies may be found in the 1992
edition. Moreover, the 1 972 edition omitted at least eight other islands that
357
belong to Singapore. Mostofthese,butnota ll, were included in the 1992
edition including Pedra Branca.
6.45 In the same vein, Malaysia also re fers to the 1953 and 1956 editions of
the Annual Report of the Ru ral Board of Singapore, a publication issued by the
358
Rural Board as its title suggests. Once again, Malaysia seeks to find
significance in the fact that these publications did not list Pedra Branca.
6.46 This fact is unremarkable. First, contrary to Malaysia's claim that “the
intention behind the enlarged geographi cal competence of the Rural Board in
1953 was to include all the islands falling within th e territorial waters of the
359
Colony of Singapore”, the 1953 Annual Report of the Rural Board explained
very clearly that it was merely inte nded to include “all the other small
neighbouring islands” (emphasis added). Pedra Branca, situated more than 24
357
The following were other Singapore islands omitted in the 1972 list: Pulau Buloh, Pulau
Chichir, Pulau Merlimau, Pulau Renget Besa r, Pulau Renget Kechil, Pulau Renggis, Pulau
Sakeng and Pulau Sarimbun.
358
MM pp. 97-98, paras. 213-216.
359
MM p. 98, para. 216.
– Page 148 –nautical miles from Singapore, is clearl y not a “neighbouring island”. It is
therefore not surprising that the list of “neighbouring islands” in the 1953
Annual Report does not include an outlying island like Pedra Branca.
6.47 Secondly, even some neighbouring island s which undisputedly belonged
360
to Singapore were omitted from the list. It is therefore wrong for Malaysia to
conclude that the omission of any island from this list indicates a lack of belief
by Singapore that she owns such an island.
6.48 Finally, it is clear from the internal documents of the Rural Board that the
impetus behind the 1953 extension of the Rural Board's jurisdiction was the
361
revision of electoral boundaries. The 1953 extension sought to achieve two
objectives – (i) previously uninhabited islands which were inhabited in 1953
should be included within the Rural Board's jurisdic tion; and (ii) uninhabited
islands which may be inhabited in the fu ture should also be included. These
considerations have no application to Pedra Branca, which was inhabited only by
the lighthouse crew, who did not perman ently reside on the island, but were
stationed there on rotation for one month at a time. In any event, the functions
of the Rural Board (such as street works, building control, public health, supply
of water and other utilities) were not relevant to Pe dra Branca, which was only
inhabited by a small lighthouse crew whos e needs in all these areas were being
met adequately by the Marine Department of the Singapore Government. As the
Malaysian Memorial itself acknowledges, “[t]he Rural Board of Singapore was
360
E.g., Pulau Ayer Merbau and Pulau Bakau.
361
See Minutes of a Meeting of the Ad Hoc Committee appointed by the Rural Board, Singapore,
to revise the Rural District Boundaries, 11952, attached to this Counter-Memorial as
Annex 33; Minutes of a Meeting of the Rural Board, Singapore, 21 Aug 1952, attached to this
Counter-Memorial as Annex 34.
– Page 149 –not responsible for the management of lighthouses within the Colony of
362
Singapore.”
6.49 It is thus irrelevant whether the Annual Reports of the Rural Board
referred to Pedra Branca or not. Thes e Reports did not concern islands falling
outside the authority of the Board or not germane to the revision of electoral
boundaries, and were thus not compre hensive in detailing the extent of
Singapore's territory.
6.50 What is striking, on the other hand, is the double standard that Malaysia
applies to the treatment of this kind of publication. Malaysia purports to find
significance in the fact that Pedra Bran ca is not listed in certain Singapore
publications when there was no reason why the island should have been so
listed. At the same time, Malaysia convenie ntly overlooks the fact that she
cannot point to any contem poraneous, official Malays ian document in which
Pedra Branca is listed as belonging to her . On the contrary, in 1953, the very
year for which Malaysia cites the Sing apore Rural Board's Report, Malaysia's
predecessor, Johor, expressly disclaimed ow nership of Pedra Branca in official
363
correspondence. In addition, Malaysia simp ly ignores the many and varied
examples of Singapore's on-going administration of the island – acts which were
clearly carried out à titre de souverain and which were entir ely consistent with
Singapore's own constitutional acts relating to the extent of her territory.
362
MM p. 98, para. 216.
363
This was discussed in SM Chapter VIII, and also in this Counter-Memorial, at Chapter VII
below.
– Page 150 – Section III. Singapore’s Conduct Confirms Singapore's Title to
Pedra Branca
6.51 Rather than focusi ng on the long-standing pattern of Singapore
administration of Pedra Branca as a whole, the Malaysian Memorial takes aim at
three isolated items of Singapore's conduc t in an effort to show that these
364
examples support Malaysia's case. This very cavalier treatment of the relevant
facts is unimpressive as Singapore will now show.
A. S INGAPORE S LIGHT DUES L EGISLATION
6.52 The first instruments referred to by the Malaysian Memorial are the 1957
Lights Dues Ordinance, pursuant to whic h Singapore established a Lights Dues
Board, and the 1958 Amendment to that Or dinance. Malaysia purports to find
significance in the fact that the 1957 Ordinance referred to the duty of the Board
to expend funds on the ma intenance and improvement of navigational aids “in
the waters of the Colony” which the 1958 Amendment changed by replacing the
words quoted above with the words “in Singapore including those at Pedra
Branca (Horsburgh) and at Pulau Pisang”. According to Malaysia, given that
there is no dispute that Pulau Pisang belongs to Mala ysia, the fact that both
Pedra Branca and Pulau Pisang were mentioned in the same breath demonstrates
that the islands “had a common status, na mely, that both islands fell outside of
the territory of Singapore notwithstandi ng Singapore's management and control
of the lighthouses situated thereon.”65
364
MM pp. 110-116, paras. 245-267.
365
MM p. 112, para. 250.
– Page 151 –6.53 Neither the language of the legisl ation referred to nor the parliamentary
debates which accompanied the 1958 ame ndments provide any support for this
argument. Under the provisions of Sec tion 6(4) of the 1957 Ordinance, the
Board was only authorized to spend mone y for the maintenance of navigational
aids in the “waters of the Colony” (a term defined in the Ordinance to mean
territorial waters of the Colony excluding waters within the port limits). Nothing
in this legislation indicated that Pedra Branca did not belong to Singapore or that
it was outside Singapore territorial wate rs. It is therefore disingenuous for
Malaysia to try to draw unwarranted co nclusions from the mere appearance of
the words “Pedra Branca” in a provision which also mentions Pulau Pisang.
6.54 This was made very clear by the speech of Singapore's Minister for
Commerce and Industry made to the Legislative Assembly during the second
reading of the 1958 amendments. He stated:
“Sir, fifteen months of operation of the Light Dues Ordinance 1957 has
disclosed the necessity for a number of amendments to the Ordinance
which are contained in this Bill. Al l the amendments have been agreed
to by the Singapore Shipowners' Association.
The definition of the ‘waters of the Colony’ in section 2 of the Ordinance
is deleted by clause 2 of the Bill. This definition refers to territorial
waters excluding the port limits . This deletion is effected because the
intention now, as reflected in clause 3 of the Bill, is that the light dues
are to be paid by ships which call at the port or place within the Colony
and not by ships which are in trans it in the waters of the Colony and
which do not call here. The deletion of the definition would also enable
the Light Dues Board to expend monies from the Light Dues Fund on
the maintenance of lights and navigational aids within the port limits
and on the maintenance of the light at Pulau Pisang which is not within
territorial waters.
...
Clause 4 of the Bill gives effect to the intention I referred to earlier of
enabling the Light Dues Board to pr ovide navigational aids within the
– Page 152 – port limits and at Pulau Pisang which is outside our territorial
waters.”366 [emphasis added]
6.55 The Minister's speech only referred to Pulau Pisang as falling outside of
Singapore's territorial waters, but did not do so in respect of Pedra Branca. This
was a clear recognition by the Minister that Singapore had no sovereignty over
Pulau Pisang. In contrast, Singapore bo th possessed and exercised sovereignty
over Pedra Branca. Accordingly, the Mi nister made no reference to Pedra
Branca in his speech.
6.56 Far from supporting Malaysia's case , the 1957 and 1958 Ordinances and
the Parliamentary debates clearly show that Pedra Branca and Pulau Pisang were
not regarded as having “a common stat us”. Unlike Pulau Pisang, there was
absolutely no suggestion, either in the text of the Ordinance or in the Minister’s
Parliamentary speech, that Pedra Branca did not belong to Singapore.
6.57 Malaysia's reliance on the Singapo re Light Dues Act 1969 is also
misplaced for the same reas ons. In the first place, section 2 of the 1969 Act
defined Singapore as including:
nd
“the Island of Singapore and all the islands and places which on the 2
day of June 1959, were administered as part of Singapore and all
territorial waters adjacent thereto.”67
Singapore has already show n that she was administer ing Pedra Branca at the
relevant date and that the island and its territorial waters consequently fell
squarely within the definition of “Singapore” in the Act.
366 See Singapore Legislative Assembly Debates, Second Reading of the Light Dues (Amendment)
Bill, 16 July 1958, attached to this Counter-Memorial as Annex 38. In Singapore's
parliamentary practice, the second reading is th e occasion for the Minister moving a particular
bill to explain the object of the legislation.
367 MM p.112, para.252; Light Dues Act (No. 12 of 1969) (Republic of Singapore) (extracts)
(MM Vol. 3, Annex 112).
– Page 153 –6.58 Secondly, Section 7 of the Act, wh ich is cited at pa ragraph 253 of the
Malaysian Memorial, does no more than repeat essentially the same language
that had been adopted in the 1958 Amen ded Light Dues Ordinance. It adds
nothing to Malaysia's case. The fact that the lighthouses at Pedra Branca and
Pulau Pisang were mentioned in addition to the naviga tional aids “in Singapore
and the approaches thereto” reflected no more than a recognition of a geographic
fact – namely, that both Pedra Bran ca and Pulau Pisang lay beyond the
immediate approaches to the main island and port of Singapore.
B. J.A.L. P AVITT 'S COMMENTS R EGARDING P EDRA B RANCA
6.59 Malaysia’s Memorial refers to a st atement of J.A.L. Pavitt, the former
Director of Marine, Singapore, as expressed in his book entitled First Pharos of
the Eastern Seas: Horsburgh Lighthouse . 368 As will be seen, this adds nothing
to the points that have al ready been dealt with in th e previous sections and do
not advance the Malaysian thesis.
6.60 Malaysia cites the following passage from the book:
“Horsburgh is one of the group of 5 lighthouses operated by the
Singapore Light Dues Board.
The Board, formed by Statute in 1957, is responsible for the provision
and upkeep of all ship navigational aids in Singapore waters, and for the
outlying stations at Pedra Branca (Horsburgh) in the South China Sea
and Pulau Pisang in the Malacca Strait. Within Singapore waters, the
Board maintains Raffles, Sult an Shoal and Fullerton Lighthouses 3693
light beacons, 29 unlit beacons, 15 light buoys, and 8 unlit buoys.”
[emphasis added in Malaysia’s Memorial]
368 MM pp. 114-115, paras. 257-263.
369 MM p.114, para.259, citing Pavitt J.AFirst Pharos of the Eastern Seas: Horsburgh
Lighthouse (1966), at p. 51 (MM Vol. 3, Annex 74). For the location of the various lighthouses
mentioned, see Insert 10 above, after p. 130.
– Page 154 –Malaysia seeks to find significance in th e fact that Pavitt distinguished between
the navigational aids “in Singapore waters ” and the “outlying stations” of Pedra
Branca and Pulau Pisang. Accordi ng to Malaysia, “[t]he unavoidable
implication is that Horsburgh and Pula u Pisang do not fall within Singapore
waters.” 370 This may be correct as far as it goes, but it adds nothing to
Malaysia's case.
6.61 Malaysia's argument simply begs th e question as to wh at Pavitt meant in
referring to “Singapore waters”, which in normal parlance, simply refers to the
waters around the Island of Singapore. The key statement in Pavitt's account is
that both Pedra Branca and Pulau Pisang were considered to be “outlying
stations”. As pointed out above, as a matter of pure geography, both islands do
not lie within “Singapore waters”, sinc e both are located more than three miles
(which was the limit of Singapore's te rritorial waters at the time) from the
nearest land territory of the main is land of Singapore and its immediately
371
adjacent islands. This is why they were distinguished as “outlying stations” in
contrast to the Raffles, Sultan Shoal and Fullerton lighthous es. Pulau Pisang
belonged to Malaysia. Pedra Branca belonged to Singapore. Pedra Branca
generated its own territorial waters, with in which both Middle Rocks and South
Ledge are situated, but it would not, in nor mal parlance, be described as falling
within “Singapore waters”.
6.62 All this, however, has no bearing on Pedra Branca's attribution. Pedra
Branca belongs to Singapore, not by virt ue of the fact that it lay within
Singapore's waters, but rather because it had been lawfully possessed, occupied
and administered by Great Britain and Si ngapore for over 100 years. Pavitt's
account is a correct factual description of the geographical location of the
370 MM pp. 114-115, para. 260.
371 See above, at paras. 6.33.
– Page 155 –lighthouses which in no way implies that Pedra Branca and Pulau Pisang were
under the same sovereign. For the reasons that Singapore has already explained,
it simply does not follow that because Pavitt mentioned both Pedra Branca and
Pulau Pisang, on both of which Singapor e maintained lighthouses, he thereby
“considered that they had a common status”. 372 The misguided nature of
Malaysia’s conclusions regarding Pavitt’s account is further underlined by the
fact that, in the following year (1967), a letter was written on his behalf by one
of his officials to the Singapore Foreign Ministry, stating that:
“I have been advised that the waters within 3 miles of Horsburgh
Lighthouse (at the eastern entrancof the Singapore Strait) may be
373
considered to be Singapore territorial wate[emphasis added]
This letter, written at a time when Pavitt was the head of the Singapore Marine
Department, 374demonstrate that, while Pedr a Branca may be described as
outside “Singapore waters” as a matter of geography, Singapore officials regard
the island as subject to Singapore’s sove reignty and capable of generating its
own three-mile belt of territorial waters.
C. P ULAU P ISANG AND PEDRA BRANCA W ERE S UBJECT TO DIFFERENT
LEGAL R EGIMES
6.63 It is a non sequitur for Malaysia to suggest th at each time Pedra Branca
and Pulau Pisang were menti oned together, this meant th at both were under the
same sovereign status. The historical record shows that each island had a very
372 MM p. 115, para. 261.
373 Letter from Brown D.T. on behalf of Director of Marine, Singapore to Permanent Secretary,
Ministry of Foreign Affairs, dated 14 Sep 1967 attached to this Counter-Memorial as Annex 42.
374 J.A.L. Pavitt was Director of Marine, Singapo re until 1 Mar 1968, when he was succeeded by
D. T. Brown, the author of this letter, as Director of Marsee Extract from
Annual Report of the Marine Department, 1968 attached to this Counter-Memorial as Annex 43.
– Page 156 –different legal and factual history – a fact that is borne out by the Minister's
speech referred to in paragraph 6.54 above.
6.64 Pulau Pisang was subject to a written grant from the Ruler of Johor
pursuant to which Singapore had the right to operate and maintain a lighthouse
on a specific plot of ground on the isla nd which remained under the Ruler's
sovereignty. The original grant by the Sultan of Johor to the Governor of the
Straits Settlements to build and operate the lighthouse on Pulau Pisang was made
375
in 1885. This grant was confirmed by a written Indenture dated 6 October
1900 which covered both the plot of land on which the lighthouse was
constructed and a roadway to the beach for landing supplies. 376 The grant was to
last in perpetuity so long as the light house was maintained in good order and
properly managed. The grant was also s ubject to the specific proviso that the
Governor of the Strait Settlements would not use any of the lands granted except
for purposes of maintaining and workin g the lighthouse. In contrast, Pedra
Branca was subject to no such grant. It had been lawfully possessed by Great
Britain in the years 1847-1851 and constantly administered as such thereafter by
both Great Britain and, subsequently, Singapore, without Malaysia claiming any
rights thereto until the dispute emerged in 1979-1980.
6.65 The extent of Singapore’s “control” over Pulau Pisang was limited to the
lighthouse and the roadway. In contrast , on Pedra Branca, Singapore exercised
full sovereign authority over the entire is land and carried out numerous acts of
administration over both the lighthouse a nd on the island as a whole, as well as
375 MM p. 91, para. 197.
376
See Indenture between Ibrahim (Sultan of Johore) and Sir James Alexander Swettenham,
(Officer Administering the Government of the Colony of the Straits Settlements) dated 6
October 1900 (MM Vol. 3, Annex 89).See also Letter from Sultan Ibrahim of Johore to the
Officiating Secretary of the Straits Settlements dated 25 Apr 1900, attached to this Counter-
Memorial at Annex 24.
– Page 157 – 377
within its territorial waters. Malaysian officials could travel freely to Pulau
Pisang. In contrast, when they wished to visit Pedra Branca, they were obliged
378
to, and did, seek specific permis sion from the authorities of Singapore. In
1968, the Director of Marine, Singapore instructed his department to “ensure
379
that all staff proceeding to Pulau Pisang possess valid travel documents”. No
such instructions were given in relati on to Pedra Branca. On Pulau Pisang,
380
Malaysia insisted that Singapo re not fly her Marine Ensign. With respect to
Pedra Branca, Malaysia made no such demand, and the British and,
subsequently, Singapore Marine Ensign flew continuously and without protest
for more than 150 years. 381
6.66 These are just a few representativ e examples which show that the two
islands were subject to entirely differe nt legal regimes and that Malaysia
recognised as much. In short, all of Singapore's activities, whether legislative or
administrative, were entirely consistent with the fact that Singapore possessed
sovereignty over Pedra Branca while she had none over Pulau Pisang.
377 SM pp. 89-137, paras. 6.1-6.122.
378 SM pp. 109-113, paras. 6.54-6.64.
379
See Minute from Brown D.T. (Director of Marine, Singapore) to Marine Department Engineer
dated 27 May 1968, attached to this Counter-Memorial as Annex 45.
380
SM p. 109, para. 6.53.
381 SM pp. 107-109, paras. 6.47-6.53.
– Page 158 – D. T HE NDONESIA -SINGAPORE TERRITORIAL S EA A GREEMENT 1973
6.67 The last item of unilateral Singapore conduct referred to in the Malaysian
382
Memorial is the 1973 Indonesia-Singapore Territorial Sea Agreement.
Malaysia's arguments with re spect to this agreement are very tentative. In the
words of the Malaysian Memorial:
“If Singapore had consider ed at this time that it had sovereignty over
Pulau Batu Puteh [ Pedra Branca ], it might have been expected that
some reference would have been made in the Agreement to the waters
around the island, in particular given the proximity of Pulau Batu Puteh
to the Indonesian island of Pula u Bintan, which lies 7.5 nm to its
383
south.” [emphasis added]
6.68 The Indonesia-Singapore Territorial Sea Agreement provides no support
at all to Malaysia's contention that it amounted to recognition that Singapore did
not have sovereignty over Pedra Branca . The Agreement was specifically
designed to deal with delimitation within the Singapore Strait, one of the busiest
shipping channels in the world, rather than to effectuate a complete delimitation
of the two States' maritime zones. The position is acc urately summed up in the
well-known study of maritime boundaries published by Charney and Alexander,
International Maritime Boundaries (Vol. 1) in the following way:
“Indonesia and Singapore border on one of the world's most critical
navigational bottlenecks, namely the Straits of Malacca and Singapore.
The boundary in this agreement runs through an area where unimpeded
transit of vessels is fundamentally im portant for the three coastal states,
including Malaysia. Although their territorial sea boundary would
eventually require two tri-junctions on both ends of the Singapore Strait,
their immediate concern is the safety of navigation in the Straits of
Malacca and Singapore rather than extension of their territorial sea
boundary around Singapore. Hence the delimitation in this agreement
382 MM pp.115-116, paras.264-266Agreement Stipulating the Territorial Sea Boundary Lines
between Indonesia and the Republic of Singapore in the Strait of Singapore dated 25 May 1973,
reprinted in U.S. Department of State, Limits in the Sea (No. 60, 1974) (MM Vol. 3, Annex 18).
383 MM p. 116, para. 266.
– Page 159 – has been left ‘unfinished’ except in the heavily navigated portion of the
”384
Strait of Singapore. [emphasis added]
6.69 There is another reason why the 1973 Agreement did not and could not
deal with the delimitation between Pedr a Branca and Indonesia. Due to the
geography of the area, any delimitation in the vicinity of Pedra Branca would
have been impractical without the particip ation of all three States – Singapore,
Indonesia and Malaysia. In this respect, Malaysia's own conduct is significant.
385
The 1970 Indonesia-Malaysia Territorial Sea Agreement, which was confined
to the busy Malacca Strait, did not deal with the area around Pedra Branca which
would have been expected had Malaysia genuinely considered that Pedra Branca
386
was part of its territory. In other words, the Ind onesia-Malaysia Territorial
Sea Agreement was also a limited delimitation which did not deal with the entire
delimitation situation between the two St ates. Thus, the same argument that
Malaysia now raises against Singapore can be used against her with respect to
her own practice.
6.70 The Charney and Alexander study al so notes that the 1973 Indonesia-
Singapore Territorial Sea Agreement will eventually have to be extended:
“The present boundary line would have to be extended on both sides, in
order to complete the circle of the island republic's [i.e ., Singapore's]
maritime jurisdiction. In this regard , it should be noted that Horsburgh,
Singapore's isolated territory situated on the eastern approach to the
Strait of Singapore, was placed with in Malaysian jurisdiction in an
official Malaysia map of 1979. Singa pore regards this as an innocent
error that would cause no ‘territorial dispute’ with Malaysia.” 387
384
Charney J. and Alexander L. (eds.), International Maritime Boundaries, Vol. 1 (1993), at
p. 1052.
385 MM Vol. 2, Annex 17.
386 Charney J. and Alexander L. (eds.), supra note 384, at pp. 1025-1034.
387 Ibid, at p. 1050.
– Page 160 – E. C ONCLUSIONS AS TO S INGAPORE S C ONDUCT
6.71 From the foregoing, it can be seen that Malaysia's attempt to pick and
choose from isolated acts of Singapore' s conduct, far from supporting her own
case that Singapore did not consider that she possessed sovereignty over Pedra
Branca and that title to the island vest ed in Malaysia, actually confirms
Singapore's sovereignty over Pedra Branca. Malaysia's attempt to draw adverse
inferences from Singapore's conduct is quite extr aordinary when it is
remembered that Malaysia cannot point to a single act of administration that she
has undertaken on Pedra Branca at any time. This is a ma tter that will be
discussed in the next section. For present purposes, it bears recalling, as
Singapore documented in her Memorial, 388 that in addition to taking possession
of Pedra Branca and building the lighthouse in 1847-1851, Singapore has carried
out a steady stream of official State f unctions and administered and controlled
the island for over 150 years. To recapitulate, these activities included:
(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) collectngeteorologicnl formation from Pedra Branca;
(e) building and upgrading a jetty on Pedra Branca;
388 See generally SM pp. 89-137, paras. 6.1-6.122 (Chapter VI).
– Page 161 – (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) inviting public tenders for sea reclamation works to extend the
island.
6.72 This is the proper context within which any examinati on of the Parties'
conduct must be undertaken. When consid ering this conduct, it is instructive to
recall what Malaysia had to say about he r own administration and control of the
islands of Ligitan and Sipadan in the Indonesia/Malaysia case – administration
and control which was not accompanied by the prior lawful possession of the
islands, as is the case here, and which was far less extens ive than that of
Singapore over Pedra Branca. In the words of Malaysia's Counsel:
“But first I must stress again a ba sic and inescapable historical fact.
These islands are now in the posse ssion of Malaysia, subject to its
– Page 162 – control and administration, and they ha ve been so at all material times
for more than a century and a half . There is not a glimmer of actual
display of Indonesian State auth ority on the islands. Indonesia is
effectively a claimant attempting to oust the State in Possession from its
long-possessed territory.”89
6.73 Needless to say, this comment is en tirely apposite to the present case.
Taken as a whole – and it is an impre ssive "whole" – and compared to the
complete absence of any competing Ma laysian activities, Singapore's conduct
fully confirms that she is the lawful owner of Pedra Branca.
Section IV. Malaysia's Conduct Does Not Evidence Malaysia's Title
to Pedra Branca
6.74 In the conclusion of Section E of Chapter 7 of her Memorial, Malaysia
asserts that her conduct demonstrates he r “consistently held position regarding
her title to Pulau Batu Pu teh and surrounding waters”. 390 Tothatend,she
invokes four (and only four) “examples” of such alleged conduct:
(a) Malaysian naval charts showing Malaysian territorial waters;
(b) the 1968 Petroleum Agreemen t Between the Government of
Malaysia and Continental Oil Company of Malaysia;
(c) the delimitation of Malaysia's te rritorial sea in the area around
Pedra Branca; and
(d) the Indonesia-Malaysia Continental Shelf Agreement of 1969.
Singapore now deals with each of these so-called "assertions of sovereignty".
389
See ICJ Pleadings, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) ,
Oral Arguments, 6 June 2002, CR 2002/30, at p. 30, para. 12.
390
MM p. 124, para. 282.
– Page 163 –6.75 However, two general preliminary remarks must be made:
(a) Malaysia insistently alleges th at she “consistently” exercised
sovereignty over Pedra Branca during:
“the 136 years between the 1844 granting of permission
by Johor to the British author ities in Singapore to build a
lighthouse on Pulau Batu Puteh and Singapore's Note of
1980”. 391
However, the four acts she availed herself of only date back to
1968 at best – that is twelve years before the publication of her
1979map. Theactsalsoallre late to the determination of her
maritime spaces, not to the island itself;
(b) Malaysia herself is conscious of the weaknesses in her case, since
she tries to justify them by invoking “the tiny surface of the island
and the permission given for its use as the location of the
Horsburgh lighthouse”. 392 But this is no excuse. Besides the fact
that the “permission” she claims to have given to Great Britain is a
pure product of her imagination as has been shown earlier in this
393
Counter-Memorial, it is most relevant to note that none of the
alleged acts relates to or even me ntions Pedra Branca. More than
that: not only has Malaysia neve r protested agai nst Singapore's
acts of sovereignty over the isla nd, but also, when Malaysian
officials sought access, for whatev er reason, to Pe dra Branca and
394
its waters, she formally requested authorisation from Singapore.
391 MM p. 84, para. 182; and at p. 117, para. 269.
392 MM p. 117, para. 269.
393 See above, at paras. 5.43-5.50, 5.58-5.90.
394 See e.g., SM pp. 151-154, paras. 7.31-7.37; pp. 111-113, paras. 6.60-6.64.
– Page 164 –6.76 It is against this background that the alleged Malaysian conduct in respect
of Pedra Branca and its surrounding waters must be examined.
A. M ALAYSIAN N AVAL C HARTS OF 1968
6.77 Malaysia's first argument in respect of her alleged acts relating to waters
around Pedra Branca concerns a confidential “Letter of Promulgation” addressed
on 18 July 1968 by Commo dore K. Thanabalasingham of the Royal Malaysian
395
Navy to the Naval Staff Division of the Ministry of Defence in Kuala Lumpur.
In reality, this letter ca n have no legal effect vis-à-vis Singapore and does not
prove any animus occupandi on the part of Mala ysia, contrary to her
396
assertions.
6.78 Malaysia refers to Charts N° 240 3 and 3839, which, according to her,
would “show Pulau Batu Puteh (as well as South Ledge and Middle Rocks) as
falling clearly within Malaysian territorial waters”.397This might be so. But it is
troubling that Malaysia does not expr essly refer to any annexed maps. If
Singapore’s understanding is correct, th ose Charts are Maps 20 and 25 in
Malaysia's Map Atlas, the significance of which is discussed elsewhere in this
398
Counter-Memorial. It can, however be noted that:
(a) curiously enough, none of those charts has ever been shown by
Malaysia during previous negotiations between the Parties; and
395 MM p. 118, para. 270; Letter from Thanabalasingham K. (Commodore, Royal Malaysian Navy)
to Naval Staff Division (Ministry of Defence, Malaysia) dated 16 July 1968 (MM Vol. 3, Annex
76).
396 MM pp. 118-119, paras. 270-273.
397 MM p. 118, para. 272.
398 See below, at para. 9.21.
– Page 165 – (b) moreover, it seems that, at leas t with respect to Map 25 the
territorial waters around Pedra Br anca were not contained in the
399 400
original map, but appears to have been added later by hand,
401
probably for the purpose of the 18 July 1968 letter.
6.79 As Malaysia herself acknowledges, this confidenti al letter and the
attached chartlets, which were only “f or the information of Senior and
402 403
Commanding Officers”, belongs to Malaysian “internal practice” which, in
the circumstances, cannot have any probative value — both the letter and Charts
N° 2403 and 3839, which had not been communicated to Singapore before the
filing of Malaysia’s Memorial, are clearly of an exclusively preparatory nature.
These documents are in no way dispositive and are not opposable to
Singapore. 404
6.80 In any case, this point does not he lp Malaysia since it is made crystal
clear in Commodore Thanabalasingham's letter itself that:
“As can be seen, there are certain areas in which these limits have never
been properly determined or nego tiated and those promulgated are
basically a determination with strict regard to the 1958 Geneva
Convention.” 405
399 See the original Admiralty Chart 2403 (1936), attached as Map No. 13 of the Singapore
Counter-Memorial Map Atlas.
400
See below, at para. 9.21.
401
See above, at para. 6.77 et seq.
402 Letter from Thanabalasingham K. (Commodore, Royal Malaysian Navy) to Naval Staff
Division (Ministry of Defence, Malaysia) dated 16 July 1968 (MM Vol. 3, Annex 76).
403 MM p. 118, para. 273, emphasis added.
404 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), supra note 13, at
para. 48; Eritrea/Yemen Arbitration (Phase One), supra note 97, at para. 94.
405
MM p. 118, para. 270; Letter from Thanabalasingham K. (Commodore, Royal Malaysian Navy)
to Naval Staff Division (Ministry of Defence, Malaysia) dated 16 July 1968 (MM Vol. 3, Annex
76).
– Page 166 –In other words, this internal document was nothing but a "projection" of the rules
of the 1958 Convention on the Territorial Sea, as the Malaysian Navy interpreted
it and without regard to the legal boundaries between the concerned States in the
area. It did not necessarily reflect the views of the Malaysian Government as a
whole, as demonstrated by the fact that in that very same year (1968), Malaysia
asked Singapore to stop flying the Singapor e marine ensign at Pulau Pisang, but
did not ask for the same to be done in respect of same marine ensign at
Horsburgh Lighthouse on Pedra Branca. 406
6.81 Finally, whatever value Comm odore Thanabalasingham’s internal
confidential letter of 18 July 1968 may ha ve as evidence, it certainly cannot
outweigh internal statements by Singapore officials asserting Singapore’s right
407
to claim a territorial sea around Pedra Branca. It clearly stems from all these
reasons that this internal document ca nnot “confirm” or “assert” any Malaysian
title over the island, let alone create a new title or displace Singapore's title.
B. T HE 1968 P ETROLEUM AGREEMENT WITH THE C ONTINENTAL O IL
C OMPANY OF M ALAYSIA
6.82 The Malaysian Memorial relies on th e grant of an offshore oil agreement
by Malaysia to the Continental Oil Co mpany (“Continental”) on 16 April 1968
406 See above, at para. 6.65. See also, SM p. 109, para. 6.53.
407 See Letter from Brown D.T. on behalf of Director of Marine, Singapore to Permanent Secretary,
Ministry of Foreign Affairs, dated 14 Sep 1967 attached to this Counter-Memorial as Annex 42,
which advised that “... thrs within 3 miles of Horsburgh Lighthouse (at the eastern
entrance of the Singapore Strait) may be consid ered to be Singapore teSeetorial waters.”;
also opinion of Chief Surveyor, Singapore dated 7 Oct 1952 that “... Singapore should claim a 3
mile limit around this poinPedra Branca ]”, quoted in Letter from Master Attendant,
Singapore to Colonial Secretary, Singapore dated 6 Feb 1953 (SM Vol. 6, Annex 91, p.855). (It
was this opinion by the Chief Surveyor, Singapore which led to the enquiry of 21 Sep 1953 by
J.D. Higham of the Singapore Colonial Secretary’s Office, resulting in the formal disclaimer of
title over Pedra Branca by the Acting State Secretarsee SM p.175, para.8.35,
note 376.)
– Page 167 –to support her case. According to Malaysia, the existence of that agreement, and
Singapore's failure to protest it, evidences a “clear understanding” 408that
Malaysia considered that she had sovere ign authority over the area covered by
the Agreement (which is said to have extended beyond Pedra Branca), and that
Singapore “was content in the knowledge that it had no territorial interests in the
409
area...”. As Singapore will show, these contentions are misplaced.
6.83 The first thing to note about the concession agreement with Continental is
that it did not encompass the island of Pe dra Branca. The First Schedule to the
agreement stipulated that the conce ssion was being awarded over “Scheduled
Lands” which included the whole area of the continental shelf “extending to the
International Boundaries wherever they may be established”. 410 Since there was
no established international boundary around Pedra Branca, the precise extent of
the concession was speculative – it left open the fact that international
boundaries “may be established” in th e future. The concession agreement was
thus without prejudice to the question of boundaries and, necessarily, of
sovereignty over islands located where boundaries had not been agreed.
6.84 In this respect, it is worth noti ng that Article 8 of the Agreement
reinforces the point raised in the previous paragraph. It provided:
“In the event of the inclusion by inadvertence in the Scheduled Lands of
any area or areas over which it may s ubsequently be proved that the
Government is not entitled to the petroleum rights or of lands or areas in
respect of which the petroleum rights have already been granted to other
individuals or companies, this Agreement shall be deemed to have been
408 MM p. 119, para. 274.
409 MM p. 121, para. 278.
410 Petroleum Agreement Under Section 9 of the Petr oleum Mining Act, 1966 in Respect of Off-
shore Lands between the Government of Malaysia and Continental Oil Company of Malaysia
Concerning 24,000 (Approximate) Square Miles of the Continental Shelf Adjacent to the East
Coast of West Malaysia dated 16 Apr 1968 (extracts) (MM Vol. 3, Annex 110), at p. 31,
emphasis added.
– Page 168 – amended by the exclusion from the Sc heduled Lands of any such lands
411
or areas from the date of such proof or grant.”
6.85 In addition, as Malaysia herself concedes, islands, including three-mile
belts of territorial sea around them, were expressly excluded from the concession
412
agreement. By definition, therefore, Pe dra Branca could not have been
encompassed by the concession. Moreover, neither Malaysia nor her concession
holder ever carried out any petroleum op erations either on Pedra Branca or
within its territorial waters. Thus, th e concession agreement had nothing to do
with Pedra Branca, which was exclud ed from its scope, and the agreement
simply does not impact on the sovereign rights of Singapore over the island.
413
6.86 Once again, Malaysia adopts a fundament ally different position in the
present case from it s position in the Indonesia/Malaysia case when it comes to
the relevance of these kinds of activities. In Indonesia/Malaysia, Malaysia was
at pains to downplay the significance of the parties' oil concession practice. This
was because the concessions in issue in that case did not encompass the disputed
islands of Ligitan and Sipadan. As the Court observed in its Judgment:
“For its part, Malaysia notes that the oil concessions in the 1960s did not
concern territorial delimitation and that the islands of Ligitan and
Sipidan were never included in the c oncession perimeters. It adds that
‘[n]o activity pursuant to the Indonesian concessions had any relation to
414
the islands’.”
411 Although Malaysia provided a copy of the full Agreement to the Court, she did not annex Art. 8
of the Agreement to her Memori al. Singapore does so in this Counter-Memorial for ease of
reference. See Additional Extracts from Petroleum Agreement Under Section 9 of the
Petroleum Mining Act, 1966 in Respect of Off-shore Lands between the Government of
Malaysia and Continental Oil Company of Malaysia Concerning 24,000 (Approximate) Square
Miles of the Continental Shelf Adjacent to the East Coast of West Malaysia dated 16 Apr 1968,
attached to this Counter-Memorial as Annex 44.
412
MM p. 119, para. 274.
413
See e.g., paras. 4.48, 6.72 above.
414 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), supra note 13, at
para. 78.
– Page 169 –And the Court concluded:
“The Court cannot therefore draw a ny conclusion... from the practice of
415
the Parties in awarding oil concessions.”
6.87 Obviously, the same remarks apply here with respect to the Continental
oil concession. First, Pedra Branca was not included in the concessions
perimeters. Secondly, neither Malaysia nor her co ncessionaire carried out any
activities in relation to the island. It follo ws that just as the oil concessions in
the Indonesia/Malaysia case were irrelevant for purposes of determining
sovereignty, the Continental concession is also irrelevant in the present case. 416
6.88 Malaysia also argues that the existence of her oil concession with
Continental was public knowledge at the time and that Singapore did not protest.
However, Malaysia does not provide any evidence that the actual co-ordinates of
the concession were made public at the tim e. The press extracts quoted in her
Memorial did not provide any coordi nates nor did the article in the Bulletin of
the American Association of Petroleum Geologists, reproduced as Annex 77 to
417
the Malaysian Memorial. In fact, the map attached to that artic le shows the
southern limit of the concession to be a line due east from Point Romania: Pedra
Branca lies south of Point Romania, clearly outside this area. There was simply
no cause for Singapore to protest.
6.89 It also appears that a few years after the agreement was signed,
Continental relinquished a large portion of its concession including the entire
415 Ibid, at para. 79.
416 See also Eritrea/Yemen Arbitration (Phase One), supra note 97, at paras.389-437, and, in
particular, para.437 (the conclusion of the Tribunal), which amutatis mutandis in the
present case.
417 MM p. 121, paras. 276-277.
– Page 170 –southern area off the coast of Johor in the vicinity of Pedra Branca.418 The
Malaysian Memorial fails to mention this development. In the light of this
relinquishment and the fact that Contin ental never carried out any petroleum
activities on Pedra Branca or within its territorial waters (whether drilling or
even seismic surveys), Singapore scarcely had any duty to react. The concession
as such is irrelevant for the present proceedings and provides absolutely no
evidence supporting Malaysia's contention that she held title to Pedra Branca.
C. T HE DELIMITATION OF M ALAYSIA 'ST ERRITORIAL S EA IN THE AREA
A ROUND P EDRA BRANCA
6.90 In paragraph 279 of her Memorial , Malaysia recalls that, “[b]y the
Emergency (Essential Powers) Ordinance 1969, Malaysia extended its territorial
waters to a distance of 12 nm”. 419Thisisanobviousfact. But,contraryto
Malaysia's assertion, this legislation did not extend “Malaysian territorial waters
419
to and beyond Pulau Batu Puteh”. Not only did the Ordinance not name Pedra
Branca (or any other place), it also e xpressly left open th e question of the
420
delimitation between Malays ia and her neighbours. The fact is that the
Ordinance does no more than to re-ena ct the methodological provisions of the
Geneva Convention on the Territorial Sea and the Contiguous Zone to which she
became a Party on 21 December 1960.
418 See Extracts from Bowman J.D., Petroleum Developments in Far East in 1973 , 58 American
Association of Petroleum Geologists Bulletin 2124 (1974), attached to this Counter-Memorial
as Annex 47, referring to this relinquishment.
419 MM p. 123, paras. 279.
420 See Federation of Malaysia, Emergency (Essential Powers) Ordinance, No. 7 1969, section 3
(SM Vol. 6, Annex 114; MM Vol. 3, Annex 111).
– Page 171 –6.91 Section 12, paragraph 1, of the said Ordinance provides:
“Where the coast of two States ar e opposite or adjacent to each other,
neither of the two States is entitl ed, failing agreement between them to
the contrary, to extend its territorial sea beyond the median line every
point of which is equidistant fromthe nearest points on the baselines
from which the breadth of the territorial seas of each of the two States is
measured. The provisions of this paragraph shall not apply, however,
where it is necessary by reason of historic title or other special
circumstances to delimit the territorial seas of the two States in a way
which is at variance with this provision.”
This provision clearly cannot prejudge sovereignty over any land territory or
island (including of course , Pedra Branca). On the contrary, it leaves the
question open and confines itself to indicating the method which Malaysia might
adopt in any negotiations with her ne ighbours for the delimitation of their
respective territorial seas. It goes without saying that Singapore did not have the
slightest reason to raise an objecti on or a commentary concerning such an
expression of intention, especially since the Charts first referred to in Section 5
of the Ordinance were not published until 1979 – whereupo n it was met by a
prompt protest from Singapore.
D. T HE INDONESIA -M ALAYSIA C ONTINENTAL S HELF A GREEMENT OF 1969
6.92 There are two reasons why Singapor e was not obliged to react to the
conclusion of the Agreem ent between Indonesia and Malaysia of 27 October
422
1969 relating to the delimitation of their respective continental shelves. First,
421 See Federation of Malaysia, Emergency (Essential Powers) Ordinance, No. 7 1969, section 3
(SM Vol. 6, Annex 114; MM Vol. 3, Annex 111).
422 See Indonesia-Malaysia: Agreement between the Government of the Republic of Indonesia and
the Government of Malaysia Relating to the Delimitation of the Continental Shelves between the
Two Countries dated 27 Oct 1969 (MM Vol. 2, Annex 16).
– Page 172 –this Agreement is res inter alios acta and could, by no means, have encroached
upon Singapore's rights.
6.93 Secondly – and this is even more significant – this Agreement carefully
avoided any intrusion into the area in th e vicinity of Pedra Branca. This is
apparent from the coordinates in Article I, Section B as illustrated on the map
reproduced in Malaysia’s Memorial. 423 By not including that sector under the
treaty, Indonesia and Malaysia clearly showed the conviction that the island was
under the sovereignty of neither of them.
6.94 This is confirmed by the joint pre ss statement issued by Indonesia and
Malaysia of 22 September 1969 in which the two delegations indicate that “their
two countries have reached agreement on the delimitation of the continental
shelf boundaries between the two countries in the Straits of Malacca, off the East
424
Coast of West Malaysia and off the Coast of Sarawak”. This statement clearly
excludes the Strait of Singapore, and fo r a good reason: it was not possible for
Indonesia and Malaysia to delimit their respective maritime areas in the Straits
of Singapore without the participation of Singapore, which has sovereignty over
Pedra Branca and the adjacent features.
423
MM p. 122 (Insert 20).
424
See Press Statement by the Indonesian and Malaysian Delegations to the Talks on the
Delimitation of the Continental Shelves Between Malaysia and the Republic of Indonesia dated
22 Sep 1969 (MM Vol. 3, Annex 78).
– Page 173 –Section V. Bilateral Conduct of the Parties Invoked by Malaysia Has
No Bearing on Title on Pedra Branca
6.95 In her desperate effort to estab lish her alleged title over Pedra Branca,
Malaysia also invokes “[t]hree examples of the conduct of the Parties in a
425
bilateral context”:
(a) the Straits Settlements and Johor Territorial Waters Agreement of
1927;
(b) the Straits Lights System; and
(c) the 1953 exchange of corresp ondence between the Colonial
Secretary, Singapore, and the Acting State Secretary, Johor.
6.96 Given the importance of the la st point, which Malaysia grossly
underestimates in her Memo rial, Singapore will deal with it separately in the
next Chapter of this Counter-Memorial. In this Section, Singapore will only
briefly answer Malaysia's arguments c oncerning the 1927 Agreement and the
Straits Light System.
A. T HE STRAITS S ETTLEMENTS AND J OHOR TERRITORIAL W ATERS
A GREEMENT OF 1927
6.97 Malaysia sought to make argument s based on the Straits Settlements and
Johor Territorial Waters Ag reement of 19 October 1927426at two places in her
Memorial – first, in Sec tion B of Chapter 7 of her Memorial, as part of her
425
MM p. 99, para. 219.
426
See Straits Settlements and Johore Territorial Waters Agreement dated 19 Oct 1927, reprinted
in Allen, Stockwell & Wright (eds.), A Collection of Treaties and Other Documents Affecting
the States of Malaysia, 1761-1963 (1981), pp. 114-116 (MM Vol. 2, Annex 12).
– Page 174 –arguments concerning th e constitutional development of Singapore and
427
Malaysia, and again in Section C of the same Chapter as part of her arguments
428
concerning bilateral conduct between the Parties. Singapore has already dealt
429
fully in Section II (B) (1) of the present Chapter with the arguments in Section
B of Chapter 7 of Malaysia’s Memorial . The only additio nal point Malaysia
made in Section C of Chapter 7 of he r Memorial is that the 1927 Agreement
does not operate merely as a delimitation ag reement, but in fact “defines an arc
within which falls the land territory an d territorial waters of Singapore and
outside of which falls the la nd territory and territorial waters of Johor or third
States.” 430
6.98 Malaysia’s argument is untenable once the 1927 Agreement is understood
in its proper context. As pointed out ear lier in this Chapter, the purpose of this
Agreement was a retrocession by Britain to Johor of certain Singapore islands
431
and waters within the Johor Strait. The purpose of the Agreement was not the
comprehensive definition of “the limits of the land territory and territorial waters
of Singapore”. 430 Contrary to Malaysia’s assertion, the delimitation was effected
in the 1927 Agreement by the simple process of tracing “an imaginary line
following the centre of the deep-water channel in the Johor Strait” 432and not, as
Malaysia alleges, by “a detailed descri ption of the territory and waters of
Singapore”. 433
427 MM pp. 87-88, paras. 190-192.
428 MM p. 100, paras. 220-221.
429 See above, at paras. 6.20-6.25.
430 MM p. 100, para. 220.
431
See paras. 6.20-6.25 above.
432
Article I of the Straits Settlements and Johore Territorial Waters Agreement (MM Vol. 2,
Annex 12).
433 MM p. 100, para. 220.
– Page 175 –6.99 As for Malaysia’s reliance on the absence of any mention of Pedra Branca
in the 1927 Agreement, Singapore makes two observations:
(a) given that the whole purpose of the Agreement was the
retrocession of certain islands and waters within the Johor Strait,
there was no need for the Agreem ent to refer to Pedra Branca,
which lies more than 20 nautical miles outside the Johor Strait;
(b) As the breadth of the territorial sea was three nautical miles for
both Great Britain and Johor in 1927, 434and Pedra Branca lies
more than six nautical miles from Johor's coast, there could have
been no common territorial sea boundary between Johor and Pedra
Branca and the question of dealing with Pedra Branca in the 1927
delimitation exercise simply did not arise.
B. T HE STRAITS L IGHTS S YSTEM
6.100 Malaysia devotes considerable space to trying to in terpret the Straits
Lights System, in an atte mpt to imply that Singapor e had no sovereignty over
Pedra Branca.
6.101 Malaysia cites several Straits Lights situated in Malaysian territory, such
as Pulau Pisang lighthouse, Cape Rach ado lighthouse and One Fathom Bank
lighthouse to argue that:
“The fact that a lighthouse was mana ged by the Governor of the Straits
Settlements thus had no bearing on th e sovereignty over the territory on
which the lighthouse was situated.”5
434
SM pp. 188-190, paras. 9.29-9.33.
435
MM p. 102, para. 222.
– Page 176 –As Malaysia has acknowledged, the Straits Lights are located on
British/Singapore territories as well as territories belongi ng to the Malay
436
states. Therefore, the inclusion of a lighthouse within the Straits Lights
system has no impact on territorial sovereig nty. It is untenable for Malaysia to
argue that, just because Horsburgh Lighthouse is part of the Straits Light system,
it is not situated in British/Singapore territory.
6.102 Malaysia next seeks support in the text of the Ordinance of 1912. 437 She
attempts to find significance in the fact that Horsburgh Lighthouse was the only
lighthouse mentioned by name in Sections 3 and 5(1) of the 1912 Ordinance, and
argues:
“225. ... the formulation in section 3 of the Ordinance, in which
explicit reference is made only to th e Horsburgh Lighthouse, is such as
to leave little doubt that the proprietary interest of the Straits Settlements
in Horsburgh was limited to the ‘light-house... together with the
appurtenances thereof and all the fixtures apparatus and furnit438
belonging thereto’ and not to sovereignty over the island as such.”
In doing so, Malaysia fails to explain this Ordinance in its proper context. This
Ordinance gave effect to a new arra ngement whereby the Straits Light Fund
would be funded through direct cont ributions from the Governments of the
Straits Settlements and the Federated Ma lay States, instead of through the levy
of tolls. With the Federated Malay States now contributing to the Straits Lights
Fund, the question naturally arose as to what rights the Federated Malay States
would have over the Straits Lights. Se ctions 3 and 5(1) of the Ordinance
therefore clarified that, despite this ne w arrangement, property in the Straits
Lights as well as management and contro l of the lights will be retained by the
436 MM p.102, para.222. For the location of the various lighthouses mentionesee Insert 10,
above, after p. 130.
437 See The Light-Houses Ordinance (No. XVII of 19 12) (Straits Settlements) (MM Vol. 3, Annex
90).
438 MM p. 103, para. 225.
– Page 177 –Straits Settlements Government. Nothing was said or implied in the Ordinance
about sovereignty over the territories on which the Straits Lights stood.
6.103 Malaysia next argues that:
“226. This understanding of the limite d nature of the interest of the
Straits Settlements in the Horsburgh Lighthouse receives further support
from the language of section 5(1) of the Ordinance which refers to ‘[t]he
management and control of the Horsburgh Light- house’, again singling
out Horsburgh for explicit reference. The evident object of this
reference appears to have been to guard against the risk of the new
arrangements in respect of Straits Lights being taken to have affected a
transfer of the management and439ntrol of the lighthouse back to Johor
as the territorial sovereign.” [emphasis added]
This argument ignores th e fact that Johor was not part of the Federated Malay
440
States, and thus was not a contributor to the Straits Lights Fund. It is
therefore impossible to see how the new funding arrangement might be “taken to
have affected a transfer of the management and control of the lighthouse back to
441
Johor”. Quite clearly, the provision wa s to prevent the Federated Malay
States from interfering with the manageme nt and control of the lighthouse, and
had nothing to do with Johor or the question of sovereignty.
439
MM p. 104, para. 226.
440 The Federated Malay States were formed in 1896 and comprised Negri Sembilan, Pahang,
Perak and Selangor. Johor, Kedah, Kelantan , Perlis and Trenganu, although under British
protection, were not part of the Federated Malay States. It was only in 1946 that both the
Federated Malay States and the Unfederated Malay States came together to form the Malayan
Union.
441 MM p. 104, para. 226 – italics in original.
– Page 178 –6.104 Neither can Malaysia find any suppo rt in Mr. Pavitt's letter of 13 May
442 443
1964. Malaysia indulges in a lengthy discussion to argue:
“The reference to the Pulau Pisa ng lighthouse in Pavitt's response,
alongside reference to the Raffles and Sultan Shoal lighthouses, both
situated on Singapore te rritory, attests that the management of these
lighthouses had no bearing on the sovereignty of the territory on which
they were located.” 444
Malaysia's attempt to squeeze conclusi ons concerning sovereignty from this
letter cannot be taken seriously. The letter was in fact a response to a query,
made for the purpose of budgetary estimates, concerning television sets in
lighthouses operated by the Singapore Ma rine Department – this clearly
necessitated a discussion of television se ts in all such lighthouses, including
Raffles, Sultan Shoal, Pula u Pisang and Horsburgh Light house. Furthermore,
this letter was written in 1964, when Singapore was pa rt of the Federation of
Malaysia.
6.105 In any event, Malaysia's conclusion is unremarkable. Singapore does not
claim that her sovereignty over Pedra Branca is grounded on the management of
the lighthouse. Instead, her sovereignty is based on the taking of possession of
the island as a whole and its constant and exclusive occupation, control and
administration for more than 150 years.
6.106A final observation may be made . Malaysia has presented these
arguments in a Section of her Me morial entitled: “Bilateral Conduct
442 See Letter from Gee R.E. (Director of Marine, Malaya) to Director of Marine, Singapore dated 1
May 1964, and reply from Pavitt J.A.L. (Direcof Marine, Singapore) to The Director of
Marine, Marine Headquarters, Malaysia dated 13 May 1964 (MM Vol. 3, Annex 73).
443 MM pp. 104-106, paras. 227-234.
444 MM p. 106, para. 234.
– Page 179 – 445
Confirmatory of Malaysian Title ”. It is clear that ne ither the Straits Lights
System as a whole, nor the correspondence of 1964, is able to “confirm” any title
– and certainly not a supposed “Malaysian title”.
Section VI. Conclusions
6.107 A review of the Parties’ conduct with respect to Pedra Branca leads to the
following conclusions:
(a) Malaysia has been unable to point to a single act of administration
or control that she has performed on the island of Pedra Branca;
(b) Singapore, in contrast, has docu mented a steady stream of open,
peaceful and public di splays of authority she and her predecessor
in title, Great Britain, had underta ken on Pedra Branca for over
150 years in the maintenance of the title she acqu ired in 1847-
1851;
(c) none of these displays of s overeignty were ever protested by
Malaysia until well after the dis pute had emerged in 1979-1980;
and
(d) Malaysia has recognized Si ngapore's sovereignty over Pedra
Branca not only by her persistent s ilence, but also by her express
acts and conduct, notably in seeking Singapore’s permission to
visit the island.
445 MM pp. 99-110, paras. 219-244 (Chapter VII, Section C), emphasis added.
– Page 180 – CHAPTER VII
THE 1953 CORRESPONDENCE CONFIRMS SINGAPORE’S
TITLE
Section I. Introduction
7.1 In her Memorial, Malaysia gives little importance to the exchange of
correspondence of 1953 between the British colonial authorities and the
Government of the State of Johor. Sh e limits herself to including it as a Sub-
Section of Chapter 7 of her Memorial as part of “Bilateral conduct confirmatory
446
of Malaysian title”. This discreet and understa ted way of dealing with this
point is understandable: contrary to Ma laysia’s audacious assumption, the 1953
correspondence, far from confirming Malaysian title, constitutes an express
disclaimer by Johor of any title to Pedra Branca.
7.2 Singapore has dealt with this subject-matter extensively in her
447
Memorial. She will not repeat wh at has already been sa id there. The sole
purpose of the present Chapter is to refute the erroneous interpretation by
Malaysia of the 1953 correspondence.
446
MM pp. 107-110, paras. 235-243.
447
See SM Chapter VIII.
– Page 181 –7.3 It should be recalled that the corre spondence in questi on consists of a
number of documents, of which Malaysia has chosen to cite only the following:
(a) a letter of 12 June 1953 from the Colonial Secretary, Singapore, to
448
the British Adviser to the Sultan of Johor; and
(b) a “reply” from the Acting State Se cretary, Johor, of 21 September
449
1953.
Malaysia also mentions two internal me moranda – one dated July and the other
October 1953. The former is from the Colonial Secretary, Singapore, to the
450
Deputy Commissioner General for Colonial Affairs, Singapore whilst the
451
latter consists of various handwritten annotations. Also relevant, but not
mentioned by Malaysia, are:
(a) a letter from the Director of Marine of the Federation of Malaya to
the Master Attendant of Singapor e and the reply from the Master
Attendant; 452
448 Letter from Higham J.D., on behalf of the Colo nial Secretary, Singapore 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 the Government of India da ted 28 Nov 1844) (SM
Vol. 6, Annex 93; MM Vol. 3, Annex 67).
449
Letter from M. Seth Bin Saaid (Acting State Secretary of Johor) to the Colonial Secretary,
Singapore dated 21 Sep 1953 (SM Vol. 6, Annex 96; MM Vol. 3, Annex 69).
450 Letter and attachments from Colton A.G.B., on behalf of the Colonial Secretary,
Singapore to the Deputy Commissioner General for Colonial Affairs of Singapore dated
July 1953 (MM Vol. 3, Annex 68).
451 Internal Memorandum from the Colonial S ecretary, Singapore to the Attorney-General,
Singapore dated 2 Oct 1953, and reply from the Attorney-General, Singapore to the Colonial
Secretary, Singpaore dated 7 Oct 1953 (MM Vol. 3, Annex 70).
452
Letter from the Director of Marine, Federation of Malaya to the Master Attendant, Singapore
dated 23 Sep 1952 and letter from the Master Attendant, Singapore to the Director of Marine,
Federation of Malaya dated 29 Sep 1952 (SM Vol. 6, Annex 89 and Annex 90 respectively).
– Page 182 – (b) a letter of June 1953 from the Secretary to the British Adviser,
453
Johor, to the Colonial Secretary, Singapore; and
(c) a Memorandum from the Colonial Secretary, Singapore, to the
454
Acting Master Attendant, Singapore, of 13 October 1953.
7.4 Malaysia makes six points in respect of the documents she cites:
First, the Singapore Colonial Secretary’s letter of 12 June 1953 “stands as
evidence of Singapore’s recogniti on of Johor’s original title to
455
Pulau Batu Puteh”;
Second, “the Singapore Colonial Secretar y understood very clearly that
the extent of Singapore’s sove reignty over nearby islands was
determined by the Anglo-Dutch and Crawfurd treaties of 1824 and
the 1927 Agreement” as shown by the contemporary process of
456
delimitation of Singapore’s territorial waters;
Third, the reference to Pulau Pisang shows that the Colonial Secretary
understood “that the management of a lighthouse was distinct from
and was not determinative of the s overeign status of the territory
457
on which the lighthouse was constructed”;
Fourth, the language of the Singapore inte rnal memoranda (in particular
the word “claim”) “clearly im plies that Singapore had not
453 Letter from Turner J.D. (Secretary to the itish Adviser, Johor) to the Colonial Secretary,
Singapore, received on 18 June 1953 (SM Vol. 6, Annex 95).
454
Letter from Colonial Secretary, Singapore to Acting Master Attendant, Singapore dated 13 Oct
1953 (SM Vol. 6, Annex 97).
455
MM p. 108, para. 237.
456
MM p. 108, para. 238.
457 MM p. 109, para. 240.
– Page 183 – previously made a claim to, or ha d any sense that it was sovereign
over, Pedra Branca”; 458
Fifth, following the 1953 correspondence, “Singapore at no time prior to
1980 expressed any conviction that Pulau Batu Puteh was part of
459
its territory”; and
Sixth, “while the letter from the Actin g State Secretary, Johor, of 21
September 1953 is not a model of clarity, it does not refer to
460
sovereignty over Pulau Batu Puteh but to ownership”.
7.5 Singapore will deal in turn with each of these allegations.
Section II. The Singapore Colonial Secretary’s Letter of 12 June
1953 is Not “Evidence of Singapore’s Recognition of Johor’s
Original Title” to Pedra Branca
7.6 The operative part of the Singapore Colonial Secretary’s letter of 12 June
1953 to the British Adviser to the Sultan of Johor has been reproduced verbatim
461
in both Memorials. It is evident from its terms that the letter in no way shows
that Singapore recognised Johor’s title to Pedra Branca.
7.7 As Malaysia rightly points out, the letter clearly appears to be an
462
“enquiry”. Its language is crystal clear in this respect: “I am directed to ask
458
MM p. 109, para. 241.
459
MM p. 110, para. 242.
460 MM p. 110, para. 243.
461 See SM pp. 163-164, paras. 8.5-8.8; and MM p. 107, para. 235.
462 MM p. 108, para. 237.
– Page 184 –for information ...” 463 and “It is now desired to clarify the status of Pedra
Branca...”. 463 This language certainly does not constitute a disclaimer of title by
Singapore, let alone recognition of any J ohor title to Pedra Branca. It simply
asked whether there are any documents showing a lease or grant of the island, or
if the island had been in any other way disposed of.
7.8 The underlying premise of the author of the letter is that the character of
Singapore’s presence on Pedra Branca “by international usage no doubt confers
some rights and obligations to the Colony”. 463 The use of the term “international
usage” can be seen as a reference to inte rnational law. The reference to “rights
and obligations”, when the enquiry was for “the determination of the boundaries
of the Colony’s territorial waters”, s hows that the Colonial Secretary believed
that, in the absence of any treaty or agreement to the contrary, Singapore would
have sovereignty over Pedra Branca. The enquiry was to determine whether any
such treaty or agreement existed – prob ably because the Colonial Secretary
could not be sure that his documentary records were complete, given that many
464
records were destroyed during the Second World War.
7.9 Further proof of this can be found in how the author proceeded, in his
letter, to draw a clear dis tinction between the situation of Pedra Branca and that
of Pulau Pisang. Of the latter, the author stated clearly that:
“Certain conditions were attached and it is clear that there was no
abrogation of the sovereignty of Johore.” 463
463 Letter from Higham J.D., on behalf of the Colo nial Secretary, Singapore 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 the Government of India da ted 28 Nov 1844) (SM
Vol. 6, Annex 93; MM Vol. 3, Annex 67), emphasis added.
464 It is a well-documented fact that many records in Singapore were lost in the Second World War.
See e.g., Letter from the Director of Marine, Singapore to the Hydrographic Department in
London dated 18 Mar 1966, attached to this Counter-Memorial as Annex 41.
– Page 185 –7.10 It is to be recalled in this re spect that the enquiry by the Colonial
465
Secretary, Singapore, was a follow-up to a previous investigation of “the facts
of the position regarding the erection of lighthouses by the Straits Settlements
Government on Pulau Pisang” initiated by the Director of Marine of the
Federation of Malaya. 466 The letter of 12 June 1953 explained the outcome of
that previous investigation:
“In the case of Pulau Pisang which is also outside the Treaty limits of
the Colony it has been possible to trace a467ndenture in the Johore
Registry of Deeds dated 6th October, 1900.”
7.11 Clearly, no such document had been found in respect of Pedra Branca –
468
and for good reason: no such deed or grant exists.
469
7.12 Moreover, contrary to Ma laysia’s implied assertion, nothing can be
inferred in this respect fro m the references, made in the documents attached to
the letter of 12 June 1953, to the Crawfurd Treaty of 1824 and the 1844 despatch
from the Governor of Straits Settlement s. Where the Crawfurd Treaty is
concerned, Singapore has shown that it is of no relevance in the present
dispute. 470 As for the 1844 de spatch, Singapore has established that it is
465
See Letter from the Master Attendant, Singapore to the Director of Marine, Federation of
Malaya dated 29 Sep 1952 (SM Vol. 6, Annex 90).
466
Letter from the Director of Marine, Federation of Malaya to the Master Attendant, Singapore
dated 23 Sep 1952 (SM Vol. 6, Annex 89).
467 Letter from Higham J.D., on behalf of the Colo nial Secretary, Singapore to the British Adviser,
Johor dated 12 June 1953 (SM Vol. 6, Annex 93).
468 See above, at para. 6.64.
469
MM p.108, para 237. Malaysia mentions the Crawfurd Treaty and the despatch from the
Governor of the Straits Settlements of 28 Nov 1844, but she does not explain why they would
prove her case.
470
See above, at para. 1.15, and Subsection B below. See also SM para. 5.5.
– Page 186 –untenable to interpret it as showing that “permissi on” was sought from the
Sultan and Temenggong of Johor to build a lighthouse on Pedra Branca. 471
A. T HE IRRELEVANCE OF THE T REATIES OF 1824 AND OF THE 1927
AGREEMENT
7.13 Malaysia attaches great importanc e to the Anglo-Dutch and Crawfurd
Treaties of 1824, and the 1927 Agreement on the De limitation of Territorial
472
Waters between Johor and the Straits Settlements. As has been shown in
other parts of this Counter-Memorial, th ese instruments are irrelevant to the
473
present dispute. For easy reference, these in struments are described briefly
here:
(a) the 1824 Anglo-Dutch Treaty de fines the respective spheres of
influence of Great Britain and the Netherlands in the region;
Article XII expressly states that “His Britannick Majesty... engages
that no British Establishment sha ll be made... on any of the other
474
Islands South of the Straights of Singapore”;
(b) by the Crawfurd Treaty, concluded that same year, the Sultan and
Temenggong of Johor ceded to the East India Company “the Island
of Singapore, situated in the Straits of Malacca, together with the
471 See above, at paras. 5.43-5.50, 5.58 et seq, in particular, the conclusions at paras. 5.88-5.90.
472 See, for example, MM pp.21-26, paras.48-56; pp.87-88, paras.190-192; and p.100,
paras. 220-221.
473 See above , at para. 3.30 (concerning the 1824 Anglo-Dutch Treaty); pabove, and
Subsection B below, and SM para. 5.5 (concerning the 1824 Crawfurd Treaty); and paras. 6.20-
6.25 above (concerning the 1927 Agreement).
474 Treaty between His Britannick Majesty and the King of the Netherlands, Respecting Territory
and Commerce in the East Indies dated 17 Mar 1824 (MM Vol. 2, Annex 5).
– Page 187 – adjacent seas, straits, and islets, to the extent of ten geographical
miles, from the coast of the said main island of Singapore”; 475 and
(c) the 1927 Agreement d eals with the retrocession of certain islands
to Johor and the consequent delimitation of the territorial waters of
Johor and the Straits Settlements in the Straits of Johor. 476
7.14 It is not disputed that all three tr eaties are closely inter-related: the 1824
Anglo-Dutch Treaty provided legitimacy for the continued British presence in
Singapore; the Crawfurd Treaty transferred full sove reignty in the island of
Singapore and all the islands within ten geographical miles of its coast to the
British, while the 1927 Agreement retroced ed to Johor some of these islands in
the Straits of Johor to create a new te rritorial boundary between Singapore and
Johor in the Straits of Johor. As was made very clear in the letter of July 1953
of Mr. A.G.B. Colton from the Colonial Secretary, Singapore, to the Deputy
Commissioner General for Colonial Affairs, Singapore 477 – extensively quoted
by Malaysia 478– the delimitation line determ ined by the 19 27 Agreement
applied only to the Straits of Johor. None of these documents had anything to do
with Pedra Branca:
(a) the Anglo-Dutch Treaty, contrary to Malaysia’s assertions, did not
479
result in a delimitation line. ned,tme rely established
475 Treaty of Friendship and Alliance between the Honourable East India Company, and the Sultan
and the Temenggong of Johore dated 2 Aug 1824 (SM Vol. 2, Annex 4; MM Vol. 2, Annex 6).
476 Straits Settlements and Johore Territorial Waters Agreement dated 19 Oct 1927, reprinted in
Allen, Stockwell & Wright (eds.), A Collection of Treaties and Other Documents Affecting the
States of Malaysia, 1761 – 1963 (1981), p. 114-116 (MM Vol. 2, Annex 12).
477 Letter and attachments from Colton A.G.B., on behalf of the Colonial Secretary,
Singapore to the Deputy Commissioner General for Colonial Affairs of Singapore dated
July 1953 (MM Vol. 3, Annex 68).
478 MM pp. 108-109, para. 238.
479 See above, at paras. 3.20-3.24.
– Page 188 – British and Dutch spheres of influence in the region. Pedra Branca
was not mentioned, nor addressed in the Treaty. In any event, the
island is more proximate to Bintan (which was expressly
mentioned as falling into the Dutch sphere of influence in Article
XII of the Treaty) than to Johor; 480
(b) the Crawfurd Treaty does not extend beyond ten geographical
miles from the coast of the main island of Singapore; Pedra Branca
lies 40 English miles (i.e., 25 geographical miles) away; and
(c) t1e927greement deals with the delimitation of territorial
waters between Johor and Singapore and there was no need (at that
time, when a three-mile territori al sea was the norm) for such
delimitation around Pedra Branca, since the island lies more than
six nautical miles from the Johor coast. 481
7.15 Malaysia’s reliance on Mr. Colton’s letter of July 1953 is also misguided.
The letter was a report on the applicability of the “new methods of defining the
limits of territorial waters ” (i.e., Norway’s straight baseline method for deeply
indented coastlines approv ed by the Court in the Fisheries case). Since the
considerations relating to use of straight baselines for deeply indented coastlines
would not apply to Pedra Branca, it is not surprising that Mr. Colton’s letter does
not mention Pedra Branca. However, this does not mean that Singapore officials
did not regard Pedra Branca as Singapor e territory. In fact, the file which
contains Mr. Colton’s letter of July 19 53 (i.e., file reference “C.S.O.11293/52”)
also contains an earlier advice from the Chief Surveyor of Singapore to Mr.
480
In this respect, it must be noted that Insert 6 of Malaysia’s Memorial (inserted at p.23) is
grossly misleading: it puts Pedra Branca uthe “area of British Influence” without any
justification whatsoever – see above, at paras. 3.25-3.30.
481
See above, at paras. 6.20-6.25.
– Page 189 –Colton that Singapore should claim a 3-nautical mile territorial sea around Pedra
482
Branca.
7.16 Even more importantly, the whole Ma laysian argument is vitiated by the
fundamentally erroneous postul ate on which it is based. It starts off with the
wrong premise that Singapore was defined forever and c onfined to the limits in
the 1824 Crawfurd Treaty. This is simply fallacious. The territory of Singapore
is the result of a complex history, of wh ich the Crawfurd Treaty is an important
part, but certainly not the sole element. As a matter of fact, Singapore was able
to acquire new territories outside the scope of the 1824 Crawfurd Treaty, such as
Christmas Island and the Cocos (Keeling) Islands. Similarly, the taking of
possession and constant administration of Pedra Branca is also part of the history
of Singapore, leading to the current territorial extent of Singapore.
7.17 Therefore the concluding remarks of Malaysia in respect of the 1953
exchange of correspondence – are substantially flawed. Malaysia argues that:
“... there can be no doubt that ( a) the Singapore authorities had a very
precise understanding of the extent of the Colony’s sovereignty, (b) that
this flowed from the Anglo-Dutc h and Crawfurd treaties, and ( c) that it
did not extend to Pulau Batu Puteh” 483
7.18 These three points are in substa nce only one argument – that Singapore’s
sovereignty did not extend to Pedra Branca becaus e these two treaties have
permanently circumscribed her extent . However, both th e 1824 Anglo-Dutch
Treaty and the Crawfurd Treaty are simply irrelevant in respect of Pedra Branca.
As explained above, at paragraph 7.13 et seq, Singapore is not asserting that her
sovereignty over Pedra Branca is a resu lt of either Treaty. Singapore has
482
See SM Vol.6, Annex 91, p. 855, where the Chief Surveyor was quoted as stating that: “in a
minute of 14.7.52 to S[ecretary for] E[conomic] A[ffairs] in CSO. 11293/52 I gave my opinion
that Singapore should claim a 3 mile limit round this point [i.e., Pedra Branca]”.
483
MM p. 109, para. 239(a).
– Page 190 –explained in Chapter V that title to Pedra Branca was acqui red by virtue of
official acts in 1847-1851 , when the British author ities in Singapore took
possession of Pedra Branca. As a result, whilst it is true that the limits of the
Crawfurd treaty (which did not extend to Pedra Branca) were known by the
Singapore authorities, this has absolutely no relevance to Singapore’s capacity to
acquire sovereignty over any other island, including Pedra Branca.
B. T HE R EFERENCE TO P ULAU P ISANG AND THE R ELATIONSHIP BETWEEN
THE M ANAGEMENT OF A L IGHTHOUSE AND THE SSUE OF S OVEREIGNTY
7.19 In his letter of 12 June 1953 to the British Adviser, Johore, Mr. Higham
referred to Pulau Pisang. According to Malaysia, this reference:
“... indicates an understanding on the part of the Colonial Secretary that
the management of a lighthouse was distinct from and not determinative
of the sovereign status of therritory on which the lighthouse was
constructed.”4
7.20 As a general proposition, it is certainly true that the management of a
lighthouse and the status of the territory on which the lightho use is built can be
distinct. However, in her pleadings against Indonesia in the Indonesia/Malaysia
case, Malaysia insistently stressed thathe construction and maintenance of
lighthouses were evidence of her continuou s exercise of sovereignty over the
485
disputed islands. InitsJudgmentof17De cember 2002, the Court observed
“that the construction and operation of li ghthouses and navigational aids are not
normally considered manifestations of State authority ( Minquiers and Ecrehos,
484 MM p. 109, para. 240.
485 See ICJ Pleadings, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) ,
Memorial of Malaysia , at pp.69-70, paraCounter-Memorial, at p.83, para.4.24;
Reply, at pp.74-75, para.5.23-5Oral Arguments , CR 2002/32, 7 June 2002, p.19,
para. 26 (Sir Elihu Lauterpacht). See also text accompanying note 285 above.
– Page 191 –Judgment, I.C.J. Reports 1953, p. 71)”. 486 However, the Court went on to recall
that:
“... in its Judgment in the case concerning Maritime Delimitation and
Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) it
stated as follows:
‘Certain types of ac tivities invoked by Ba hrain such as the
drilling of artesian wells would, taken by themselves, be
considered controversial as acts performed à titre de souverain .
The construction of navigational aids, on the other hand, can be
legally relevant in the case of very small islands. In the present
case, taking into account the size of Qit’at Jaradah, the activities
carried out by Bahrain on that island must be considered
sufficient to support Bahrain’s clai m that it has sovereignty over
it.’ (Judgment, Merits, I.C.J. Reports 2001, para. 197).” 487
and concluded that “the same considerations apply in the present case”. 487
7.21 It must however be recalled that, in the present case, Singapore’s title is
not based on the role of the lighthouse as an effectivité per se. As explained in
488
Singapore’s Memorial, Singapore’s title is based on the lawful taking of
possession of the island. This title is confirmed by the administration and
control of the island and the maintenance of the facilities on it for more than 150
years without any dispute or contention by Johor or Malaysia or any third State.
7.22 With this in mind, Mr. Higham’s letter can be properly understood.
Indeed, he clearly understood the dis tinction between the construction and
maintenance of the lighthouse on the one hand and the sovere ignty over islands
on the other hand. This is precisely the reason why he mentioned the position of
486 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysi, supra note 13, at
para. 147.
487 Ibid, at para. 147, italics in original.
488 See SM p. 78, para. 5.101.
– Page 192 –Pulau Pisang. Regarding that island, he declared that it was “clear that there was
no abrogation of the sovereignty of Johore”. 489
7.23 Here again, Malaysia’s argumen t turns against her: far from being
evidence of an acknowledgement or rec ognition of a supposed “Johor’s title”
over the island, the comparison made by th e author of the letter of 12 June 1953
between Pulau Pisang (whose “status is quite clear”) and Pedra Branca, shows
that while he acknowledged Johor’s sovere ignty over the former island, he did
not as far as the latter was concerned.
Section III. The Internal Singapore Correspondence Confirms
Singapore’s Ownership of the Island
7.24 In his answer to Mr. Higham’s le tter, the Acting State Secretary, Johor,
informed the Colonial Secr etary, Singapore, “that the Johore Government does
not claim ownership of Pedra Branca”. 490 In view of this answer, the Colonial
Secretary, Singapore, informed the Acting Master Attendant, Singapore, that:
“ Reference your minute dated 6th February, 1953, the State
Secretary, Johore, states that the Jo hore Government does not claim the
ownership of Pedra Branca Rock on which the Horsburgh Lighthouse
stands.
489 Letter from Higham J.D., on behalf of the Colo nial Secretary, Singapore 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 the Government of India da ted 28 Nov 1844) (SM
Vol. 6, Annex 93; MM Vol. 3, Annex 67).
490 Letter from M. Seth Bin Saaid (Acting StatSecretary of Johor) to the Colonial Secretary,
Singapore dated 21 Sep 1953 (SM Vol. 6, Annex 96; MM Vol. 3, Annex 69).
– Page 193 – 2. On the strength of this, t491Attorney General agrees that we can
claim it as Singapore territory.”
7.25 According to Malaysia, this language “clearly implies that Singapore had
not previously made a claim to, or ha d any sense that it was sovereign over,
Pedra Branca”. 492 On the contrary, this language implies nothing of the kind. It
simply means that the Colonial Administration in Singapore could now
authoritatively regard the island as Sing apore territory since Johor’s express
disclaimer of title had removed all doubts which had arisen from the incomplete
state of the Singapore archives resulti ng from destruction of documents during
493
the Second World War.
7.26 Malaysia makes a tenuous argumen t based on the internal minute from
the Colonial Secretary to the Attorney-General that Singapore can “claim” Pedra
494
Branca as Singapore territory. In the present contex t, the word “claim” was
entirely appropriate as a reaction to Johor’s answer. Given Johor’s answer, there
was no doubt that Singapore had a “claim ” over Pedra Branca – in other words
that she was fully justified in regarding Pedra Branca as Singapore territory.
7.27 In any event, Johor’s letter of 21 September 1953 constituted a clear
disclaimer as Singapore has explained at length in her Memorial, 495a disclaimer
which, in any case, precl udes any “counter-claim” fr om Malaysia as Johor’s
successor.
491 Letter from Colonial Secretary, Singapore to Acting Master Attendant, Singapore dated 13 Oct
1953 (SM Vol. 6, Annex 97). See also Internal Memorandum from the Colonial Secretary,
Singapore to the Attorney-General, Singapore dated 2 Oct 1953, and reply from the Attorney-
General, Singapore to the Colonial Secretary, Singapore dated 7 Oct 1953 (MM Vol. 3, Annex
70). In this Annex, there app ears a manuscript note from J.D. Hi gham to the Attorney-General
stating : “I think, on the strength of (14) [ i.e., the letter from the Acting State Secretary, Johor],
we can claim Pedra Branca as Singapore terr itory”, to which the Acting Attorney-General
replied: “I agree”.
492 MM p. 109, para. 241.
493
See note 464 above.
494
MM p. 109, para. 241.
495 SM pp. 166-178, paras. 8.12-8.40.
– Page 194 – Section IV. Singapore Consistently and Constantly Reconfirmed
her Ownership of Pedra Branca
7.28 Malaysia’s assertion that “Singa pore at no time subsequent to this
correspondence took any steps to claim Pulau Batu Puteh” 496 is simply untrue.
7.29 In the first place, it must be noted that, since Pedra Branca was under
Singapore’s sovereignty and Johor had fo rmally recognized this fact, there was
no need for Singapore to constantly make “claims” in this respect: States do not
make formal “claims” of sovereignty on their undisputed territory; they simply
administer it à titre de souverain. And this is exactly what happened with Pedra
Branca, which remained under Singapore’s administration and exclusive control
as had been the case for more than a hundred years before.
7.30 Malaysia mentions however two ep isodes which she claims would prove
496
“Singapore’s perception that the island was not in its territory” :
(a) the Singapore Rural Board’s An nual Reports of 1953 to 1956 did
not include Pedra Branca;
(b) the island was not me ntioned in the 1972 Singapore Facts and
Pictures.
7.31 Singapore has dealt elsewhere with these allegations. Suffice it to recall
that:
(a) if Pedra Branca was not mentioned in the Rural Board reports it
was for the simple reason that it was not administered by that
Board; 497
496 MM p. 109, para. 242.
– Page 195 – (b) as for the 1972 Singapore Facts and Pictures it is a booklet
providing general information about Singapore and has no
pretension to (and does not) desc ribe Singapore territory in an
exhaustive manner. 498
Moreover, it is recalled that, contrary to Malaysia’s assertion, Singapore has
constantly and consistently acted on Pedra Branca in a way which demonstrates
her clear intent to act as sovereign, including during the period between 1953
and 1980. 499
Section V. The letter from the Acting State Secretary, Johor, of
21 September 1953 is a Clear Disclaimer of Sovereignty Over Pedra
Branca
7.32 In her attempt to disc redit the letter of the Ac ting State Secretary, Johor,
500
of 21 September 1953, Malaysia asserts that it “is not a model of clarity”. In
fact, it is crystal-clear and straightforward:
“I have the honour to refer to your letter No.CSO.11692/52 dated 12th
June 1953, addressed to the British A dviser, Johore, on the question of
the status of Pedra Branca Rock so me 40 miles from Singapore and to
inform you that 501 Johore Govern ment does not claim ownership of
Pedra Branca.”
7.33 It would have been difficult to be clearer. Questioned on the issue of the
legal status of an island administered by Singapore but in the vicinity of the
497
See above, at paras. 6.45-6.49 .
498
See above, at paras. 6.42-6.44.
499 See e.g., SM Chapter VI, passim.
500 MM p. 110, para. 243.
501 Letter from M. Seth Bin Saaid (Acting StateSecretary of Johor) to the Colonial Secretary,
Singapore dated 21 Sep 1953 (SM Vol. 6, Annex 96; MM Vol. 3, Annex 69).
– Page 196 –Johor’s coasts, the Acting State Secret ary, Johor, gives a prudent but clear
answer: Johor “does not claim ownership of Pedra Branca”.
7.34 Malaysia tries to exploit the use of the word “ownership” to argue that the
letter of 21 September 1953 is not con cerned with sovereignty over the island.
This attempt calls for four remarks:
(a) the letter answers a request for information made in order to
502
“clarify the status of Pedra Branca” with a view to determining
502
“the boundaries of the Colony’s territorial waters” – this is
clearly a request concerning sovereignty;
(b) the Johor authorities evidently understood that the request was
about sovereignty – Johor’s reply re fers to “the status of Pedra
Branca Rock” and disclaims owners hip of the entire island (not
just the lighthouse). For a State to disclaim “ownership” of an
entire island is to disclaim sovereignty over it;
(c) there is little doubt that this an swer was made after consultations
with the Commissioner for Lands and Mines and the Chief
Surveyor in Johor, 503who was the officer in charge of land matters
in Johor; and
(d) the answer of the Acting State Secretary, Johor, was immediately
understood by Singapore officials as referring to sovereignty,
Their immediate reaction was that, since “the Johore Government
502 Letter from Higham J.D., on behalf of the Colo nial Secretary, Singapore 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 the Government of India da ted 28 Nov 1844) (SM
Vol. 6, Annex 93; MM Vol. 3, Annex 67).
503
See Letter from Turner J.D. (Secretary to the Britis h Adviser, Johor) to the Colonial Secretary,
Singapore, received on 18 June 1953 (SM Vol. 6, Annex 95).
– Page 197 – does not claim the ownership of Pedra Branca Rock on which the
Horsburgh Lighthouse stands”, it could be claimed “as Singapore
territory”.504
The conclusion is inescapable: in the contex t, it is clear that “ownership” refers
to title.
7.35 It is also to be noted that Johor’s disclaimer contradicts and undermines
completely Malaysia’s principal argum ent that Pedra Branca had always
belonged to the Johor-Riau-Lingga Sultanate. 505
7.36 There is no room for doubt: by in dicating in unambiguous terms that she
did not “claim ownership of Pedra Branca”, Johor clearly disclaimed sovereignty
over the island. Moreover, since th e Singapore authorities relied on this
disclaimer, which confirmed their convic tion that Singapore had sovereignty on
Pedra Branca, Johor’s formal declaratio n must be seen as “a statement or
representation made by on e party to another and re liance upon it by that other
506
party to his detriment or to the advantage of the party making it”. This is the
definition of estoppel in the strictest sense, and there can be no doubt that, as the
successor of Johor, Malaysia is now esto pped from putting this disclaimer into
question.
504 See the Internal Memorandum from the Colonial Secretary, Singapore, of Oct 1953 (MM Vol.
2, Annex 6); and the Letter from Colonial Secretary, Singapore, to Master Attendant, Singapore
dated 13 Oct 1953 (SM Vol. 6, Annex 97).
505 See above, at paras. 3.4-3.15, and the summary at para. 3.43.
506 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (Application by
Nicaragua to Intervene), [1990] ICJ Rep 3, at p. 118, para. 63. This was cited and discussed at
para. 8.31 of Singapore’s Memorial.
– Page 198 – Section VI. Conclusions
7.37 Iconclusion:
(a) the Singapore Colonial Secretary’s letter of 12 June 1953 is by no
means evidence of Singapore’s recognition of Johor’s original title
to Pedra Branca;
(b) the reference made in this lett er to Pulau Pisang shows, by
contrast, that Singapore drew a distinction between the two
islands;
(c) the letter from the Acting State Se cretary, Johor, of 21 September
1953 is a clear disclaimer of sovereignty over Pedra Branca;
(d) the internal Singapore corresp ondence confirms Singapore’s title;
and
(e) Singapore has consistently a nd constantly reconfirmed her
ownership of Pedra Branca, incl uding in the period following the
1953 correspondence.
– Page 199 – CHAPTER VIII
MIDDLE ROCKS AND SOUTH LEDGE
Section I. Introduction
8.1 Malaysia has erroneously asserted that:
“[d]uring the first round of its talks, held in Kuala Lumpur on 5
February 1993, Singapore made it clear for the first time that the dispute
was not limited to Pulau Batu Puteh (to which it had referred 507lusively
up to that point) but extended to Middle Rocks and South Ledge.”
As a matter of fact, the assertion is simply not true. Furthermore, as a matter of
law, it is based on the erroneous assumption that sovereignty over Middle Rocks
and South Ledge can be determined separately from that over Pedra Branca.
8.2 Factually, it is worth recalling th at Singapore has always adopted the
position that the legal fate of the thre e features must be the same. When
Singapore lodged a protest in 1980 against Malaysia’s 1979 map, she stated that
508
“Pedra Branca and the waters around it ” belonged to Singapore. What
Malaysia describes as Singapore’s “claim” over Middle Rocks and South Ledge
on 6 February 1993, was, in reality, a response to Malaysia’s claim made the day
before by the Leader of the Malaysian Delegation, who, in his opening speech,
had described South Ledge and Middle Rocks as two Malaysian islands. This
was immediately refuted by the Leader of the Singapore Delegation.
8.3 Legally speaking, Malaysia’s claim over the two features is untenable: as
explained in Singapore’s Memorial, both sets of features lie within Pedra
507
MM p. 6, para. 14; p. 129, para. 286 and p. 134, para. 299.
508
Singapore’s Note MFA 30/80 dated 14 Feb 1980 (SM Vol. 6, Annex 144), emphasis added.
– Page 201 –Branca’s territorial sea and neither set of features is capable of independent
appropriation – Middle Rocks forms a si ngle group with Pedra Branca while
South Ledge is but a low-tide elevation, incapable of being subjected to an
independent claim of sovereignty. 509 For her part, Malaysia asserts that:
(a) the three features are independent from one another; and
510
(b) she exercised “consistent acts of sovereignty over them”.
Both assertions are ill founded.
Section II. The Relationship Between Pedra Branca and the Two
Features
8.4 Both Parties are in agreement w ith regard to the geomorphological
characterization of Middle Rocks and Sout h Ledge. In particular, they both
recognize that South Ledge is a low-tid e elevation which partly dries at low
511 512
tide. As such, it is not “capable of appropriation” separately from the “main
land” (whether a continental land or an island): sovereignty over a low-tide
elevation belongs to the coastal State wh ich has sovereignty over the territorial
513 514
sea surrounding it as Singapore has shown in her Memorial. Consequently,
it does not matter whether or not South Le dge forms a group with Pedra Branca
and Middle Rocks.
509
SM pp. 179-198.
510
MM p. 132, para. 295.
511
MM p. 131, para. 289; SM p. 179, para. 9.4.
512
See Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
Intervening) (Merits) [1992] ICJ Rep 351, at p. 570, para. 356.
513 See Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), Judgment of 16 Mar 2001, at p. 101, para. 204.
514 SM pp. 190-194, paras. 9.35-9.42.
– Page 202 –8.5 Malaysia’s depiction of the Pedra Branca group in sketch maps included
with her Memorial gives (and is cl early aimed at giving) a misleading
impression. Insert 21 515 of her Memorial is intende d to stress that the three
features are more remote from Singapore than from the Malaysian coast. This is
true but irrelevant. The key point, which Malaysia has chosen to ignore, is that
both South Ledge and Middle Rocks lie within the territorial sea of Pedra Branca
itself.16 As Singapore has explained in her Memorial, 517this alone makes their
fate inseparable from that of Pedra Branca.
8.6 Next, in Insert 22 of Malaysia’s Memorial (reproduced overleaf as
Insert 11 of this Counter-Memorial), she provides a cross-sectional sketch of the
seabed around the three features and argues that:
“As this [ the sketch in Insert 22 ] shows, Pulau Batu Puteh, Middle
Rocks and South Ledge are separated by navigational channels, do not
have similar structures and are not standing on a single raised section of
the seabed.” 518
First, it is not entirely clear what Malaysia means by the phrase “do not have
similar structures”. In determining whether a partic ular cluster of maritime
features ought to be treated as a group, it is irrelevant whether or not they “have
similar structures” (whatever that phrase means). Even if it were relevant,
Singapore has noted in her Memorial that the three features are constituted of the
515 MM p. 128 (Insert 21).
516 Malaysia gives the distance of South Ledge fr om Pedra Branca as 2.2 nautical miles (MM at
p.129, para.288) while Singapore gives this distance as 2.1 nautical miles (SM at p.179,
para.9.4). Singapore has rechecked the measurem ents and confirmed that the distance of 2.1
nautical miles is correct. In any event, whether the correct distance is 2.1 or 2.2 nautical miles,
what is of legal relevance is the fact that So uth Ledge lies less than 3 nautical miles from Pedra
Branca.
517 SM pp. 184-190, paras. 9.18-9.33.
518 MM p. 131, para. 290.
– Page 203 –same coarse-grained biotite granite 519 and, further, that a detailed hydrographic
survey conducted by the Maritime and Port Authority of Singapore from 8 to 13
April 2003 concluded that:
“a. Pedra Branca and Middle Rocks appear to be a single rock
formation. Based on the bathymetry, there exists a clearly observable
underwater ridge at the depth of less than 20 metres that curved
southward from east of Pedra Branca linking with Middle Rocks; and
b. Although the South Ledge and Middle Rocks are separated by a
channel measuring 30 to 40 metres at its deepest, this channel is much
shallower than the Middle Channel, which runs to the north-west of both
Middle Rocks and South Ledge.” 520
8.7 Secondly, Malaysia’s assertion that the three features “are not standing on
521
a single raised section of the seabed” is far from convincing. It is apparent
from careful study of Malaysia’s Insert 22 that:
(a) the seabed between the features is extremely shallow: the deepest
point between Pedra Br anca and Middle Rocks is 32 metres and
that between Pedra Branca and South Ledge is 36 metres;
(b) all three features are separated from Malaysia by a broad and deep
channel of about 70-metre depth, Middle Channel, which is the
main navigational route to and from the Straits of Singapore; and
(c) the three features constitute the external margin (from the south) of
the sea-bed before it falls deeper to form the Middle Channel.
In fact, Malaysia’s Insert 22 demonstrat es very clearly that Pedra Branca and
Middle Rocks are, in Malaysia’s own words, “standing on a single raised section
519 SM p. 183, para. 9.16.
520 Report on Hydrographic Survey around the Waters of Pedra Branca, Middle Rocks and South
Ledge (2003) (SM Vol. 7, Annex 201).
521 MM p. 131, para. 290.
– Page 204 –of the seabed” 522 – as the red circle drawn by Singapore on Insert 11 above
illustrates. This unequivocally support s Singapore’s conclusion that “Pedra
Branca and Middle Rocks are in fact one single rock formation, standing apart
from the surrounding seabed”. 523 This conclusion is shared by various sailing
directions. 524
8.8 Lastly, Malaysia’s argument that “Pulau Batu Puteh, Middle Rocks and
South Ledge are separated by navigational channels ” 525is yet another absurd
argument based merely on vague and mean ingless semantics. Malaysia has not
explained what she means by “navigatio nal channels” (e.g., navigation by what
types of vessels and under what conditions?). In re lation to this argument,
Singapore notes that:
(a) As a matter of fact, although South Ledge is separated from
Middle Rocks by a very shallow passable channel of about 20-
metre depth, 526no reasonable ship master would, under normal
circumstances, sail his ship be tween Middle Rocks and South
Ledge. This shallow channel, while passable by small boats when
South Ledge is visible above water (during low tide), can hardly be
regarded as a “navigational ch annel” – the only recognised
navigational channels in this area are Middle Channel (which
522
MM p. 131, para. 290.
523
SM p. 195, para. 9.46.
524
See e.g., Malacca Strait Pilot (2nd ed.) (1934) p. 213 (SM Vol. 5, Annex 79 , p. 686): “Middle
Rocks... lie about half a mile southward of the lighthouse, and on the south-western edge of the
bank on which Pedra Branca lies”, emphasis added.
525 MM p. 131, para. 290, emphasis added.
526 The channel between Middle Rocks and South Le dge is about 30 metres at its deepest.
However, for navigational purposes, it is nothe greatest depth of the channel, but the
shallowest passable depth of the channel which is relevant.
– Page 205 – passes between Pedra Branca an d Johor) and South Channel
(which passes between South Ledge and Indonesia).
(b) As for the area between Pedr a Branca and Middle Rocks,
527
Malaysia’s Insert 22 gives a completely misleading impression
about whether a navigable channe l of any description actually
exists between these two featur es. As the diagram opposite
(Insert 12 ) shows, the cross-sectiona l line chosen by Malaysia
(i.e., the line bearing 163° from Pe dra Branca to Middle Rocks) in
fact cuts through the deepest pa rts of the seabed between Pedra
Branca and Middle Rocks, thus ignoring the reality that, to the east
of this cross-sectional line, ther e is a shallow ba nk linking Pedra
Branca to Middle Rocks, making the area non-navigable. The fact
that there is simply no navigational channel between Pedra Branca
and Middle Rocks is also appare nt from two investigation reports
annexed to Singapore's Memorial: in both of these incidents, the
528
vessels ran aground between Pedra Branca and Middle Rocks.
One of these, M.V. Kota Angkasa, was in fact a small vessel with a
draught of only 6.45 metres.
(c) In any case, there is no principl e of law that the existence of a
navigational channel between mar itime features precludes them
from being regarded as a group.
8.9 Malaysia places great reliance on the fact that “the three features have
[never] been referred to as a group or have been given a collective name such as
527
MM p. 130, reproduced above as Insert 11, after p. 204.
528
See Investigation Report on Grounding MV Kota Angkasa on 22 Aug 1985 (SM Vol. 7,
Annex 157); Investigation Report on Grounding of MV Binta Yar’adua on 20 June 1988 (SM
Vol. 7, Annex 159).
– Page 206 –the ‘Pedra Branca Rocks’ or the ‘Horsburgh Rocks’.” 529 This assertion calls for
several remarks:
(a) even though they seem not to have been specifically called “a
group” in sailing directions, the th ree features have usually – and
certainly Pedra Branca and Midd le Rocks have always – been
530
described together and Malaysia herself has treated them as a
531
unit;
(b) and more importantly, in a st udy reproduced as a preparatory
document for UNCLOS I, Commande r R.H. Kennedy, referred to
Pedra Branca and Middle Rocks co llectively as the “Horsburgh
group”, “Horsburgh group of rocks” and “group of rocks on which
stands Horsburgh Light”:
“Towards the eastern end [ of the Singapore Strait ], the
group of rocks on which stands Horsburgh Light divides
the Strait into two. South Cha nnel, the southern part, is
5½ miles wide between the nor th coast of Pulau Bintan
and a drying rock [i.e., South Ledge] 1½ miles south-west
of the Horsburgh group, and 9¾ miles wide between the
group and Tanjong Berakit [i.e., the north-eastern point
of Pulau Bintan ]. Middle Channel, th e northern part, is
5¾ miles wide between the Horsburgh group of rocks and
a drying reef [i.e., Stor532eef ] 2 miles off the south-
eastern point of Johore” [emphasis added];
529
MM at p.131, para.291. See also p.132, para.293, where Malaysia asserts that “these three
features were never formally described as a group or as an island and its appurtenant rocks, nor
were they ever given a collective title”.
530
SM pp. 196-198, para. 9.48-9.49.
531 See below, at paras. 8.14–8.15.
532 Extracts from United Nations Co nference on the Law of the Sea, Official Records, Volume I:
Preparatory Documents, Geneva 24 February-27 Apr 1958, A/CONF.13/6 and Add.1
(Preparatory Document No. 6), attached to this Counter-Memorial as Annex 37.
– Page 207 – (c) it is also noteworthy that a number of maps have adopted the
composite label “Pedra Branca Horsburgh (Middle Rock)”, clearly
533
treating Pedra Branca and Middle Rocks as one single group;
(d) in spite of Malaysia’s asse rtions, the toponymy is highly
significant in the present case – it is extremely relevant that both
Middle Rocks and South Ledge, ar e named in clear relation to
Pedra Branca: South Ledge lies to the South of the island and
marks the southern extremity of the group of maritime features
formed by Pedra Branca, Middle Rocks and South Ledge, while
Middle Rocks lie between Pedra Branca and South Ledge, just as,
for example, “North Rock” and “S outh Rocks” mark the northern
and southern limits of the Romania Group; 534
(e) as aptly noted by Judge Levi Ca rneiro in his individual opinion
appended to the Court’s Judgment in the Minquiers and Ecrehos
case, the mention of the principal island is “sufficient to designate
535
[an] archipelago as a whole”.
8.10 For these reasons, as well as for those given in Singapore’s Memorial,
there can be no doubt th at Middle Rocks form a single group of maritime
features with Pedra Branca – of which they are mere dependencies – and that
533 See e.g., Maps 27, 28 and 29 in the Map Atlas attached to Malaysia’s Memorial.
534 See J.T. Thomson’s Chart of the Vicinity of the Horsburgh Lighthouse and Adjacent Malayan
Coast (1851) reproduced above as Insert 8 after p. 82, discussed at para. 5.29 above.
535 See Minquiers and Ecrehos, supra note 6, at p. 100. See also, the Court’s Judgment of 17 Nov
1953, at p. 55.
– Page 208 –sovereignty over Pedra Branca nece ssarily encompasses Middle Rocks. 536 As
for South Ledge, whether or not it is part of this group does not really matter: as
a low-tide elevation, the sovereignty ove r it depends on the territorial sea in
which it is situated and th ere can be no doubt that S outh Ledge lies within the
territorial sea appertaining to Pedra Branca and Middle Rocks.
Section III. The Conduct of the Parties Supports Singapore’s Title
over the Two Features
8.11 The conclusions above are confirmed by the conduct of the Parties in not
having treated the three features separately.
A. A BSENCE OF ANY A CTS OF SOVEREIGNTY BY M ALAYSIA OVER THE TWO
FEATURES
8.12 Where Middle Rocks and South Ledge are concerned, Malaysia notes that
537
“as minor features not much separate attention was paid to them”. She should
have gone further than tha t: in reality Malaysia is unable to avail herself of any
distinct acts of sovereignty, unlike Singapore, which has demonstrated that she –
in contrast with Malaysia – has exerci sed sovereign authority in respect of
Middle Rocks, South Ledge, and the te rritorial waters appertaining to these
538
features.
536 In the case concerningLand, Island and Maritime Frontier Dispute , the Chamber of the
Court accepted that “[t]he small size of Meanguerita , its contiguity to the larger island, and the
fact that it is uninhabited, allow its characterization as a ‘dependeSee’ of Meanguera...”.
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening)
(Merits), supra note 512, at p. 570, para. 356.
537 MM p. 132, para. 294.
538 SM pp.113-116, paras.6.68-6.71; pp.118-124, paras.6.76-6.90; pp.129-132, paras.6.105-
6.111; and below, at paras. 8.18–8.20.
– Page 209 –8.13 Malaysia tries to prove the cont rary by invoking what she calls her
“consistent acts of s overeignty over them”. 539 However, she has listed only
three:
(a) the Letter of Promulgation by Commodore K. Thanabalasingam of
16 July 1968;
(b) the Petroleum Agreement betwee n Malaysia and the Continental
Oil Company of Malaysia signed on 16 April 1968; and
540
(c) the Malaysian 1985 Fisheries Act.
8.14 These three acts are also relied on by Malaysia in Chapter 7 of her
Memorial to support her claim to Pedr a Branca. Clearly, the only “evidence”
that Malaysia is able to produce in re lation to her claim fo r Middle Rocks and
South Ledge are the same meagre offeri ngs she has used in relation to Pedra
Branca. This supports Singapore’s point that the three features have a common
destiny and that both Malays ia and Singapore have cons istently considered the
three features as a group.
539 MM p. 132, para. 295.
540 Ibid. Malaysia also asserts at p.132, para.of her Memorial that “[t]raditional fishermen
from Johor had been fishing the inshore waters around these features for as long as records
show” and footnotes for this proposition, other paragraphs (namely paras. 142, 143 and 148) of
her Memorial. However, those paragraphs are of no relevance to the proposition that is
asserted, and no passage in Malaysia’s Memorial establishes or provides support for the
proposition.
– Page 210 –8.15 This is particularly striking in th e letter of 16 July 1968. As recalled by
541 542
Malaysia, the line drawn on Chart 2403 is introduced by a note according to
which:
“The pecked line south of the Horsburgh Light represents the outer limit
of Malaysian Territorial Waters as authorised by the 1958 Geneva
Convention i.e. a three mile circle around South Ledge...” 543
In other words, Commodore Thanabalasin gam’s letter of 16 July 1968 treats
South Ledge together with Pedra Branca and purports to use South Ledge as the
relevant feature to delimit Malaysia’s alleged territorial waters south of
Horsburgh Light.
8.16 As for the 1968 Oil Concessions and the 1985 Fisheries Act, neither of
them mentions Middle Rocks or South Ledge, nor was there any mention of
Pedra Branca in these two documents. 544
8.17 Moreover, as shown above in the present Counter-Memorial, 545all these
“acts” are devoid of any probative value in relation to any claim of sovereignty
of Malaysia over Pedra Branca and its appurtenant features.
541
MM p. 118, para. 271.
542 See Map 25 in the Map Atlas attached to Malaysia’s Memorial.
543 Letter from Thanabalasingham K. (Commodore, Royal Malaysian Navy) to Naval Staff
Division (Ministry of Defence, Malaysia) dated 16 July 1968 (MM Vol. 3, Annex 76).
544 See Petroleum Agreement Under Section 9 of the Petroleum Mining Act, 1966 in Respect of Off-
shore Lands between the Government of Malaysia and Continental Oil Company of Malaysia
Concerning 24,000 (Approximate) Square Miles of the Continental Shelf Adjacent to the East
Coast of West Malaysia of dated 16 Apr 1968 (extracts) (MM Vol. 3, Annex 110); Fisheries Act
(Act 317 of 1985) (Malaysia) (extracts) (MM Vol. 3, Annex 113).
545
See paras. 6.77-6.89 above.
– Page 211 – B. S INGAPORE H AS C ONSISTENTLY T REATED THE T HREE FEATURES AS A
G ROUP
8.18 In contrast, it is worth noting that, on her part, Singapore can avail herself
not only of regular and routine naval pa trols in the waters around Pedra Branca
546
and its dependencies, but also of investigations of navigational hazards and
accidents in places very close to, or on, the three features.47See Insert 13,
opposite, showing the locations of vari ous accidents investigated by Singapore
authorities.
8.19 Moreover, if it were assumed that the “critical date” with respect to
Middle Rocks and South Ledge is 6 Febr uary 1993, as Malaysia alleges, 548at
least three investigations listed in Sing apore Memorial would have taken place
before that date. These were in respect of the following vessels and accidents:
(a) the Singapore ship MV Kota Angkasa , on 22 June 1985 – about
200 metres (i.e., about 0.1 nautical miles) from Middle Rocks;
(b) the Nigerian ship MV Binta Yar’adua , on 20 June 1988 – about
400 metres (i.e., about 0.2 nautical miles) from Middle Rocks; and
(c) the Norwegian ship MV Martha II, on 17 September 1992 – about
100 metres (i.e., about 0.05 nautical miles) from South Ledge.49
546 SM pp. 114-116, paras. 6.68-6.71.
547 SM pp. 118-123, paras. 6.76-6.87.
548 See above, at para. 8.1.
549 SM p. 121, para. 6.82.
– Page 212 –Malaysia has never protested against the in vestigations. She also did not do so
in October 1996 or in August 1998, when the Singapore Authorities investigated
on the sinking of the Malaysian ship MV Gichoon or the grounding of the
Singapore ship MT Ocean Gurnard, both occurring on South Ledge itself. 550
8.20 Furthermore, Singapore officials have conducted routine landings on
Middle Rocks as part and parcel of th eir administration of Pedra Branca and its
waters. For example, in 1977, and late r in 1991, Singapore officials landed on
Middle Rocks in the course of conduc ting surveys of Pedra Branca and the
surrounding waters. 551 (The 1977 survey was do ne for the purpose of the
proposed reclamation of Pedra Bran ca which was not proceeded with. 552 The
1991 survey was done for the purposes of building the helipad on Pedra Branca.)
An even earlier example is found in a pa inting by J.T. Thomson himself, which
recorded his own landing on Middle Rock s in the course of supervising the
construction of the lighthouse on Pedra Branca. 553
550 See Investigation Report on Grounding ofMV Gichoon on 14 Oct 1996 and Investigation
Report on Grounding of MT Ocean Gurnard on 6 Aug 1998 (SM Vol. 7, Annex 198 and Annex
200 respectively).
551
See Records of Survey Conducted on Pedra Branca and Middle Rocks from 28 June to 1 July
1977, attached to this Counter-Memorial as Anne x 49; and Report of Survey of Pedra Branca
(Horsburgh) from 10 Sep to 12 Sep 1991, attached to this Counter-Memorial as Annex 51.
552
An account of this project can be found in SM pp.123-124, paras.6.88-6.90. The relevant
documents are attached as Annex 135 to Singapore’s Memorial.
553 SM, Image 11, after p. 62.
– Page 213 – Section IV. Conclusions
8.21 In conclusion, for the reasons in th e present Chapter as well as for those
in Chapter IX of her Memorial, Singapore maintains that:
(a) all three features have always been treated together;
(b) Middle Rocks and South Ledge fall within the territorial sea
appertaining to Pedra Branca;
(c) Middle Rocks, located only 0.6 nautical miles from Pedra Branca,
are merely geomorphological extensions of the main island (Pedra
Branca). They undoubtedly belo ng to, and form, a single group
with Pedra Branca;
(d) South Ledge, being a low-tide el evation, is not susceptible to
independent appropriation. Its fa te must follow that of Pedra
Branca and Middle Rocks;
(e) since sovereignty over Pedra Bran ca clearly belongs to Singapore,
the same necessarily holds true with regards to Middle Rocks and
South Ledge.
– Page 214 – CHAPTER IX
THE MAP EVIDENCE
Section I. Introduction
9.1 Malaysia has devoted an entire Ch apter of her Memorial to the map
evidence (Chapter 9) and filed a Map Atla s containing 49 maps. It is thus clear
that the cartography forms a significant pa rt of Malaysia’s ca se despite the fact
that Malaysia recognises that the Court has treated maps which are not annexed
to, or an integral part of, a boundary treaty with considerable caution.554
9.2 The leitmotif of Chapter 9 of Malaysia’s Memorial is that, while
Malaysian maps have consistently showed Pedra Branca as part of Johor (which,
as will be seen, is no t the case), Singapore never produced any cartography
showing the island as appertai ning to Singapore prior to 1994. In more general
terms, Malaysia’s argument is that th e preponderance of the map evidence
supports her claim.
9.3 Although Malaysia ackno wledges that there are no maps in this case
which possess legal force for the purpose of establishing sovereign rights, she
maintains that there exists a “substantial record of depictions of the three
th 555
features on maps from the 17 century onwards.” Chapter9 of Malaysia’s
Memorial is cryptic as to what such record actually proves, and the map
evidence presented there and in Mala ysia’s Map Atlas does not provide any
further assistance in this regard. As will be demonstrated below, the map
554
See e.g., MM p.135, para.302, where Malaysia cites the Court's JudgmentFrontier
Dispute (Burkina Faso/Mali) (Merits) [1986] ICJ Rep 554, at p. 582, para. 54.
555
MM p. 137, para. 304.
– Page 215 –evidence submitted by Malaysia is inconclusive and, ex cept for certain official
maps expressly identifying Pedra Bran ca as belonging to Singapore, it is
irrelevant. To recall what the Court stated in the Frontier Dispute case:
“... maps can still have no greater le gal value than that of corroborative
evidence endorsing a conclusion at which a court has arrived by other
means unconnected with the maps.” 556
9.4 In the present case, there simply is no Malaysian title to Pedra Branca
which the maps introduced by Malaysia can even remote ly endorse or confirm.
By contrast, what is relevant is the fact that Malaysia has been unable to produce
a single published map attributing Pedra Branca, Middle Rocks or South Ledge
to herself or to her predecessors. Indeed, none of the 49 maps contained in
Malaysia’s Atlas supports the Malaysia n position. On the contrary, Malaysia
has published official maps prior to the emergence of the dispute that
557
unambiguously depicted the isla nd as belonging to Singapore. These maps
558
have been discussed in Singapore’s Memorial. Suffice it to recall here that
these maps constitute clear admissions ag ainst interest from official Malaysian
sources demonstrating that, prior to the critical date in 1979-1980, Malaysia
regarded Pedra Branca as forming part of Singapore’s territory.
9.5 The Map Atlas filed by Singapo re with this Counter-Memorial
demonstrates that there are maps which clearly undermine every single argument
that Malaysia seeks to make on the basis of her Map Atlas. These maps include:
(a) numerous historical maps ranging from the late 16th century to the
early 19th century showing that Pedra Branca was not considered
556
Frontier Dispute, supra note 554, at p.583, para.56, cited with apprKasikili/Sedudu
Island (Botswana/Namibia) [1999] ICJ Rep. 14, at para. 87.
557
SM p. 158, paras. 7.47-7.50, where official Malaysian maps are discussed.
558
SM pp. 155-160, paras. 7.38-7.50.
– Page 216 – to have any connection with the Jo hor mainland or to be part of
Johor’s dominions; and
(b) numerous official maps of the State of Johor, starting from the first
official map published by it in 1887, which show that Pedra
Branca was not considered to be part of the State of Johor.
A full description of each Map in the Si ngapore Map Atlas, and its significance
vis-à-vis the Maps adduced by Malaysia in her Memorial can be found within
the Singapore Map Atlas itself. Thes e descriptions and comments are also
reproduced in the List of Maps at page 269 below.
9.6 Singapore considers that the maps introduced by Malaysia are totally
unpersuasive in supporting Malaysia’s case. Nevertheless, for the sake of
completeness, Singapore will comment on each of the maps below by reference
to the period in which they were drafted.
Section II. Analysis of the Maps Presented in Malaysia’s Map Atlas
A. T HE EARLY M APS S UBMITTED BY M ALAYSIA
9.7 Malaysia has referred to six ma ps published between 1620 and 1826,
ostensibly in support of her claim of an historic title, although this is not a point
expressly argued by Malaysia and Malaysia’s Memorial merely observes that the
pre-1824 maps “show how the political geography of the region was viewed
prior to the two Treaties of that year”.
559 MM p. 137, para. 305.
– Page 217 –9.8 These maps are of no use in the present case. None of the six maps
dating from this early period contained in Malaysia’s Atlas identify the disputed
features as pertaining to any particular territory, nor do they purport to show any
attribution of territory at all. In particular, the early 19th century maritime charts
produced by Malaysia (Maps 4, 5 and 6 of the Malaysian Map Atlas) appear to
depict Pedra Branca as one of the relevant features in the Singapore Strait
merely for purposes of navigation in the area.
9.9 Malaysia contends that maps of th is period show that there was a close
connection between Pedra Branca and the Johor mainland. In reality, these maps
prove nothing, since the cartographic de piction of physical proximity to the
mainland of an island has no relevance for purposes of attribution of that island
to a State. In any event, even assuming – arguendo – that Malaysia’s position
has some merit, there are many hist orical maps published throughout an
extended period of time, from 1595 to 1851, which depict Pedra Branca as
considerably removed from the mainland. Accordingly, contrary to the
impression that Malaysia has sought to cr eate, the maps of this period do not
show a close connection between Pedra Branca and the Johor mainland.
9.10 As for the colour-codin g appearing on the earliest of Malaysia’s maps, a
Dutch map of Sumatra, dated 1620, drawn by Hessel Gerritz, (Insert 23 at p. 136
of Malaysia’s Memorial and Map 1 in th e Malaysian Map Atlas), it is virtually
impossible to discern whether any of the islands and other features are coloured
differently from the mainland. However, ev en if that were the case, this would
not amount to even a perception that title to territory rested with one or the other
ruler. In this respect, referen ce may be made to the Award in Eritrea-Yemen
Arbitration, where the Tribunal stated:
“... it is not possibl e to eval uate the colour of maps produced during
periods when hand-colouring had to be applied to maps at a second
stage. These factors are therefore no t determinative with regard to the
issue of reversionary historic title . Moreover, there is no evidence that
Southern Arabian rulers themselves ever saw or authorized these maps.
– Page 218 – Conclusions based on this material would be tenuous at best.” 560
[emphasis in original]
9.11 In any event, even taking, arguendo, Malaysia’s arguments at face value,
there exist historical maps which show exactly the opposite of this map i.e.,
maps that clearly depict Pedra Branca in a different colour from the Johor
mainland. This can be seen from some of the maps that Singapore is furnishing
561
with this Counter-Memorial.
B. 19 TH CENTURY M APS S UBMITTED BY M ALAYSIA
9.12 Similarly, the maps published in the 19th century discussed in Malaysia’s
Memorial are neither indicative, nor di spositive, of the issue of title. With
respect to the Map of the Dutch East Indies of 1842 (Map 7) and the Dutch maps
dated 1882-1883, 1929 and 1 934 (Maps 11, 22 and 24), they merely illustrate
Dutch perceptions of where the limits of the Riau-Lingga Sultanate lay.
9.13 With regard to Maps 7, 11, 22 and 24, Malaysia contends that they show
that the islands situated at the entr ance of Singapore Strait “were always
562
considered as within the British sphere.” In actual fact, nothing in these maps
indicates an attribution of sovereignty, but, even if they could be interpreted – as
Malaysia does – in the sense of show ing that the Dutch Government did not
claim Pedra Branca as part of its sphere of influence, this does not mean that it
considered that Pedra Branca belo nged to the Sultan of Johor. In short, these
maps do not, in any way, contradict th e fact that, until the British authorities in
560 Eritrea/Yemen Arbitration (Phase One), supra note 97, at para. 370.
561 See e.g., Singapore Counter-Memorial Map Atlas, Maps No. 3 and No. 4.
562 MM p. 138, para. 310.
– Page 219 –Singapore took lawful possession of Pe dra Branca in the period 1847-1851,
sovereignty over the island was undetermined.
9.14 This reasoning is not inconsistent with Thomson’s map of 1849 showing
a boundary drawn around Singapore (M ap 8, Malaysian Map Atlas). For
Malaysia, the fact that Pedra Branca was not included amongst Singapore’s
dependencies on this map means that this island was not considered as belonging
563
to Singapore. In reality, by Malaysia’s own admission, this map deals only
with islands lying within 10 miles of Singapore and thus did not encompass
Pedra Branca for obvious reasons. In any event, the British authorities did not
consider it to be authoritative as to Singapore’s territorial extent. In 1861, when
a dispute arose on whether British jurisdiction in the Johor Strait extended all the
way to the Johor coast or only up to the median line between Johor and
Singapore, the Johor authorities pointed to the median line drawn in the Johor
Strait on this map as “evidence” that British jurisdiction extended only to mid-
channel. 564 This argument was not accepted by the British. 565 More importantly,
whatever the evidentiary value of this map, it certainly does not detract from the
fact that, during the period 1847-1851, title to Pedra Branca was acquired by
Britain by the taking of lawf ul possession, through a series of official acts, in
accordance with the legal pr inciples governing the acquisition of territory at the
time. 566
9.15 As for the maps showing Singapor e’s dependencies drawn by J. Van
Cylenberg of the Surveyor General’s O ffice in Singapore and dated 1885, 1898
563 MM p. 140, para. 312.
564 See paragraph 17 of Letter from His Highness Daing Ibrahim Maharajah (Tumongong of
Johore) to Cavenagh O. (Governor of Princes of Wales Is land, Singapore and Malacca) dated 8
Aug 1861 (SM Vol. 5, Annex 63, p. 625).
565 This dispute eventually resulted in thnclusion of the 1927 Agreement where the British
agreed to retrocede to Johor part of the territorial waters in the StraSee above, at
paras. 6.20-6.25.
566 SM Chapter V.
– Page 220 –and 1911 (Maps 12, 13 and 14 of the Mala ysian Map Atlas), th ey, too, contain
no attribution of sovereignt y. Malaysia’s arguments are based on the fact that
Pedra Branca does not figure amongst Sing apore’s dependencies shown in these
maps. However, Singapore notes that, du ring the same period, official maps
published by Johor also fail to depict Pedra Branca amongst Johor’s
567
dependencies. Singapore has demonstrated th at, by the time these maps were
issued, sovereignty over Pedra Branca la y with Great Britain and these maps do
not contradict that legal c onclusion nor are they incons istent with it. In any
event, the maps in question are at mostneutral for purposes of attribution of
sovereignty, and they certainly do not support Malaysia’s argument that the State
of Johor held sovereign title over the island.
C. 20 TH C ENTURY M APS S UBMITTED BY M ALAYSIA
1. Maps 15 to 31 and 35 to 36 of Malaysia’s Map Atlas
9.16 Reproduced as Maps 15 and 16 of the Malaysian Map Atlas are two
sheets of a map of Singapore which was part of a compilation of 16 sheets.
Malaysia asserts that this set of ma p sheets was published in 1923-1924 by the
Surveyor General of the Federated Ma lay States and Straits Settlements and
concludes that, since the series of maps did not include Pedra Branca, Middle
Rocks and South Ledge, these islands were not considered at the time to be
dependencies of Singapore. In reality, these sheet s show nothing relating to the
legal status of the islands. Furthermore, Malaysia has failed to provide the
legend or any other source for either of these sheets other than her own assertion
that they were published “under the direction of the Surveyor General F.M.S. &
567 See Singapore Counter-Memorial Map Atlas, Maps No. 9 (1887) and No. 10 (1893).
– Page 221 – 568
S.S.”. In the absence of such informati on, it is impossible to establish the
purpose of these maps.
9.17 In Malaysia’s view, the maps of Malaya dated 1925 and 1928 (Maps 17
and 21 of the Malaysian Map Atlas), which were published by the Surveyor
General of the Federated Malay States and Straits Settlements, do not show
Pedra Branca in the same colour as the Strait Settlements. Malaysia’s argument
seems to be that this shows that Pedr a Branca did not belo ng to the Straits
Settlements. This is di singenuous because careful examination reveals that
whilst the Straits Settlements are shown in one colour (pink), and Johor in
another (yellow), Pedra Branca is totally devoid of colour, probably due to its
small size and the quality of the reproduction. As such, these maps simply
cannot be interpreted as having attributed Pedra Branca to Johor.
9.18 Map 19 is a map of Johor date d 1926 and published by the Surveyor
General of the Federated Malay States a nd Straits Settlements. According to
Malaysia, the map is based on new survey s, but no evidence is provided in
support of this assertion. In any event, the map is in teresting for other reasons.
Although the original map is in colour, it has been in explicably reproduced in
black and white in Malaysia’s Map Atlas. In the coloured original (reproduced
by Singapore as Map No. 11 in the Si ngapore Counter-Memorial Map Atlas)
Johor’s territories are depicted in diffe rent colours, while everything outside
Johor, including notably Singapore and Pedra Branca, is left in white. It is
therefore entirely unclear how Malaysia can attempt to draw any support from
this map.
9.19 Map 18 in the Malaysia Map Atlas is a 1926 map of part of the Kota
Tingi district of Johor published by the Surveyor General of the Federated Malay
568 See the Divider Sheets for Maps 15 and 16 of the Malaysian Map Atlas.
– Page 222 –States and Straits Settlements and show s Pedra Branca with the denomination
“Pedra Branca Horsburgh”. Malaysia argues that, since the island is included in
a map of Johor, it was part of Johor’s Kota Tinggi district. This is pure
speculation given that there is no indica tion that Pedra Branca was shown for
any purpose other than to illustrate the presence of the lighthouse.
9.20 Moreover, Map 18 is contradicted by the maps enclos ed with the Johor
Annual Reports published from 1931 to 1939 which do not include Pedra Branca
within Johor’s dependencies. These maps are attached as Maps No. 15-23 of the
Singapore Counter-Memorial Map Atlas. The omission of Pedra Branca from
these maps is especially significant give n that the maps in the 1928 to 1930
Johor Annual Reports did depict Pedra Br anca. Johor’s selective inclusion of
Pedra Branca in this series of maps is wholly inconsistent, and does nothing to
advance the Malaysian case. The same reasoning applies to Map 23 of the
Malaysian Map Atlas, which is a 1932 reprint of Map 18.
9.21 Map 20 is an admiralty chart ent itled “Horsburgh Ligh t to Jason Bay”.
Malaysia claims that it “shows Pedra Br anca just below the bottom (southern)
border of the map, with no indication of its pertaining to Singapore.” 569
Singapore notes that, being a maritime chart, it only purports to assist navigation
in the relevant area and not to reflect po litical boundaries or the attribution of
territory. The chart similarly does not attribute Pedra Branca in any way to
Johor, as can be seen more clearly in the original British Admiralty Chart No.
3839 reproduced as Map No. 12 of the Singapore Counter-Memorial Map Atlas.
Therefore, it scarcely supports a claim of sovereignty.
9.22 Malaysia then claims that th is chart was subsequently used by
Commodore Thanabalasingham of the Mala ysian Navy “to indicate maritime
569 MM p. 146, para. 316.
– Page 223 –boundaries, including around Pedra Branca”. 570 She then proceeds to assert that
“[e]vidently, Commodore Thanabalasingham believed Pulau Batu Puteh, Middle
Rocks and South Ledge to belong to Johor”. 570 She further argues that “[t]he
same is true” of Map 25 of her Map Atlas. 570 It would therefore appear, from the
foregoing discussion, that Maps 20 and 25 in Malaysia’s Map Atlas are in fact
copies of the chartlets attached to a confidential letter addressed on 18 July 1968
by Commodore K. Thanabalasingham of the Royal Malaysian Navy to the Naval
Staff Division of the Ministry of Defence in Kuala Lumpur. 571 However, it is
troubling that Malaysia has not expl ained this connection clearly in her
Memorial. If Singapore’s understanding is correct, and the lines on Maps 20 and
25 were indeed added by hand for the pu rposes of the letter of 18 July 1968,
then, these maps can have no greater si gnificance than the letter itself. As
Singapore noted in Chapter VI above, this letter (and consequently Maps 20 and
25) cannot have any probative value:
(a) since the letter was a confidentia l and internal document, it was,
together with the a ttached charts, unknown to Singapore and was
never brought to her attention in the course of negotiations or
572
otherwise;
(b) they represent merely a technical “projection” of the rules of the
1958 Convention on the Territorial Sea, without regard to legal
573
boundaries between concerned States in the area;
570 MM p. 146, para. 316.
571 See Letter from Thanabalasingham K. (Commodore, Royal Malaysian Navy) to Naval Staff
Division (Ministry of Defence, Malaysia) dated 16 July 1968 (MM Vol. 3, Annex 76).
572 See above, at paras. 6.78-6.79
573 See above, at para. 6.80
– Page 224 – (c) they certainly cannot outweigh similar internal statements by
Singapore officials asser ting a contrary right on Singapore’s
behalf.574
9.23 Map 26 is a map of the region described by Malaysia in her Map Atlas as:
“Singapore, On a Scale of 1:1,000,000, GSGS 4204, Sheet NA-48,
published by the War Office 1941, Re printed from Third Edition HIND
5000, 1944, Reproduced by War Office 1946”
The map shows several lines in the Singapore Strait, the purpose of which is not
clear. According to Malaysia, these lines allocate Pedra Branca to Malaysia but
no explanation is given to support this assertion. Singapore notes that Pedra
Branca is not even named or labelled on this map. Si ngapore further notes that
the words “Pulau Batu Puteh” in the enlargement of this map found on p. 147 of
her Memorial as Insert 29 were adde d by Malaysia for the purpose of her
Memorial and not found in the original map. This map also contains a number
of curious features:
(a) Although Malaysia describes this map as “GSGS 4204, Sheet NA-
48, ... Third Edition HIND 5000”, the box on the top right hand
corner of the map states “Refer to this map as :- GSGS 4646, Sheet
NA-48, Edition 5” [emphasis in italics added], while the box at the
bottom left hand corner of the map states : “REFER TO THIS
MAP AS :- HIND 5000 GSGS 4204 SHEET SA-48 THIRD
EDITION...” [emphasis in italics added]. It woul d appear that
Map 26 of Malaysia’s Map Atlas is formed by hand-taping two or
more printed maps together. It is not clear whether any pertinent
information on the map has been omitted or lost as a result;
574 See above, at paras. 6.62, 6.81.
– Page 225 – (b) It would appear that some items on the map had been highlighted
by hand using a green highlight er or crayon, thus making it
difficult to discern what featur es on the map (as reproduced in
Malaysia’s Map Atlas) are from the printed original and what have
been added later by hand.
9.24 Grouped in the same category by Malaysia with Map 26 is Map 31 of the
Malaysian Map Atlas. Singapore notes that this is an aeronautical chart
published in 1959 by D. Survey, War Office and Air Ministry, and is presumably
intended to provide guidance for navigation by air. As such, this map can hardly
be accepted as an authority in matters of attribution of sovereignty. This is spelt
out in the map, which contains the following, rather emphatic, disclaimer, which
Malaysia has overlooked: “ THIS MAP IS NOT AN AUTHORITY ON INTERNATIONAL
BOUNDARIES ” (emphasis in original).
9.25 TheBoundary Commission in the Eritrea-Ethiopia case had occasion to
consider the effect that disclaimers ma y have on the evidentiary value on maps
and noted in that respect that the presence of a disclaimer indicates that:
“... the body making the map (or its Gove rnment) is not to be treated as
having accorded legal recognition to the boundaries marked thereon or
to the title to territory of the States concerned as indicated by the marked
boundary.” 575
Thus, when a map carries a disclaimer, th e map simply reflects the particular
view of a geographical situation take n by the cartographer and cannot be
interpreted as attributing any legal recogn ition to that geographical situation for
purposes of territorial attribution.
575
Decision of the Eritrea-Ethiopia Boundary Commission Regarding Delimitation of the Border
between the State of Eritrea and the Federal Democratic Republic Decision of 13
Apr 2002, reprinted in 41 Int’l L. Materials 1057 (2002), at p. 28, para. 3.27.
– Page 226 –9.26 Like the previous maps, Map 27 of the Malaysian Map Atlas was issued
for military purposes. The map – entitled “Sedili Besar” and published in 1944
– depicts a line in the sea dividing “B ritish Malaya” from “Netherlands East
Indies”. Malaysia points out that “Ped ra Branca Horsburgh (Middle Rocks) is
576
clearly indicated as falling within British Malaya”. But at that time, British
Malaya encompassed both the Malay St ates (which included Johor) and the
Straits Settlements (which included Singa pore). This is also evident from the
legend appearing at the bottom of the map, which employs the labels “Johore
(Malaya)” and “Singapore (Malaya)”. This map therefore provides no
information about whether Pedra Branca belonged to Singapore or Johor. 577
9.27 Maps 28 and 29 bear the same title and are later editions of Map 27, both
published in 1950. The only noticeable change from Map 27 is the replacement
of the words “British Malaya” with the label “Federation of Malaya”. This
appears to be a simple update to refl ect the formation of the Federation of
Malaya in 1948. It would appear that, as with previous editions, the line drawn
in the sea continues to be for the purpose of differe ntiating between the British
and Dutch possessions/protectorates (or, in the case of Map 29, between British
possessions/protectorates and Indonesia ). There are no indications on these
maps that this update was done with th e intention of authoritatively attributing
territories between those elements of Br itish Malaya which be came part of the
Federation of Malaya in 1948 (i.e. J ohor and other Malay states) and those
576
MM p. 146, para. 318.
577
It may be noted that Malaysia’s Map 27 is based on an earlier map in which a similar line is
drawn across the South China Sea but labelle d as “Unfederated Malay States-Straits
Settlements” (see Map No. 24 of the Singapore Counter-Memorial Map Atlas). Johor was an
Unfederated Malay State while Singapore was part of the Straits Settlements. The earlier map,
in using the composite label “Unfederated Mala y States-Straits Settlements” (instead of the
simple label “Unfederated Malay States”) seems to imply that the mapmaker considered that
there were territories belonging to the Straits Settlements in the vicinity of the South China Sea,
which is where Pedra Branca, Middle Rocks and South Ledge are sited on the map.
– Page 227 –which did not join the Federation (i .e. the Colony of Singapore and its
dependencies). In fact, the disclaimers contained on both maps clearly suggest
otherwise. The general unreliability of the map as a source for the attribution of
territory is also underscored by the fact that South Ledge is shown as lying on
the Netherlands East Indies’ or Indonesian side of the line.
9.28 Grouped in the same category by Ma laysia with Maps 27 to 29 are Maps
35 and 36 of Malaysia Map Atlas entitle d, respectively, “Johor Baharu and
Singapore” and “Tandjunguban”. These were published by the U.K. Ministry of
Defence in 1967 and 1968. As Malays ia has conceded, these maps contain
relevant disclaimers. 578 They show a sporadic, dotted line going between Pedra
Branca and Indonesia, labelled “Malaysi a” on one side and “Indonesia” on the
other side. As is the case with other maps produced by Malaysia, it is not clear
what these lines were intended to represent and the maps’ legends shed no light
on this point.
9.29 Malaysia refers to a compilation sh eet prepared in 1957 (reproduced as
Map 30 in the Malaysian Map Atlas) and claims that it “was evidently carefully
579
drawn and checked”. There is no way of know ing what Malaysia’s grounds
are for advancing such an assertion. This compilation sheet depicts Pedra
Branca (labelled as “Batu Puteh”) solely with the triangular symbol representing
a trigonometric (or triangulation) station, without tracing the outline of the island
as an area of land. This is despite th e fact that the outline of various islands
within the Romania Group which are comparable in size with Pedra Branca have
been traced out in detail. A table to the right of the compilation sheet lists Pedra
578
MM p. 146, para. 318.
579
MM p. 148, para. 319.
– Page 228 –Branca as one of 10 Plan Control Po ints. Singapore makes the following
observations about this compilation sheet:
(a) Nothing in this compilation sh eet attributes Pedra Branca
politically to Johor or the Federation of Malaya.
(b) Technical experts of Singapore have reviewed this compilation
sheet and have come to the c onclusion that it was drawn for
verification of the results of an air photo survey 580and that Pedra
Branca appeared in this compila tion sheet because its prominent
position made it a convenient tria ngulation point. However, a
geographical feature can serve as a triangulation point without the
need for the surveyor to actually travel to the feature. Nor does the
usage of a feature as a triangulat ion point imply any claim as to
sovereignty over the feature – it is perfectly possible for a surveyor
in one country to use a prominent feature in another country as a
triangulation point. 581
(c) Technical experts of Singapore ar e also of the vi ew that this
compilation sheet in fact formed the basis on which the 1962
admission against interest map wa s drawn (this is the official
Federation of Malaya ma p attributing Pedra Branca to Singapore,
discussed further in sub-section ( 2) below and reproduced as Map
580 See also Annual Reports of the Survey Department for the Federation of Malaya (extracts) for
the years 1954, 1956, 1957, 1958-1961, and 1962, attached to this Counter-Memorial as
Annex 35.
581
See e.g., Records of Survey Conducted on Pedr a Branca and Middle Rocks from 28 June to 1
July 1977, attached to this Counter-Memorial as Annex 49 (in particular, Vol.3, pp.420-421)
and Report of Survey of Pedra Branca (Horsburgh) from 10 Sep to 12 Sep 1991, attached to this
Counter-Memorial as Annex51 (in particular, Vol.3, p.452), where Singapore surveyors on
Pedra Branca made use of islands in the Romania group as triangulation points.
– Page 229 – 32 of Malaysia’s Atlas, as Map No. 26 of the Singapore Counter-
Memorial Map Atlas, and as Insert 14 opposite). 582
2. Malaysian Official Maps Constituting Admission against Interest
(Maps 32 to 34, 38, 39 and 41 of Malaysia’s Map Atlas)
9.30 With respect to various offici al Malaysian maps which represent
admissions against interest, Malaysia ha s reproduced them as Maps 32, 33, 34,
38, 39 and 41 of her Atlas. Maps 32, 33, 34 and 39 were presented and
discussed by Singapore as Maps 12 to 15 of the Singapore Memorial. Map 38
(Series L8010, 1970) and Map 41 (Ser ies L7010, 1975) are maps which
Singapore was previously not aware of. Map 41 is merely a reprint of Map 39
(Series L7010, 1974), while Map 38 simp ly reproduces the materials from the
L7010 series of maps (scale 1:63,360) in a larger scale (1:25,000). These two
maps tell the same story as the other four – they all unequivocally attribute Pedra
Branca to Singapore. Malaysia has made no attempt to explain them other than
to point out that they contain a disclaimer and that “the emphasis here is entirely
on the lighthouse rather than the isla nd – the feature shown as a symbol and not
583
as an area of land”.
582 The compilation sheet under discussion (Map 30, Malaysian Map Atlas) states on the top right
hand corner that it is prepared for the revision of SheeAccording to the 1954 Annual
Report of the Survey Department of the Federation of Malaya (attached to this Counter-
Memorial as part of Annex 35), the implementation of a new national grid system resulted in a
redesign of the topgraphical sheet layosee para. 31 on pp. 89, Annex 35 (pp.297-298).
Sheet number “135” was assigned to the south-eastern corner of Johor – see Annex 35 (p. 305).
The first topographical map known to have been published by the Surveyor-General of the
Federation of Malaya with the sheet number “135” is the sheet entitled Pengerang, Sheet 135,
Series L7010 Edition 1-SDFM (i.e., Map 32 of the Malaysian Map Atlas and Map No. 26 of the
Singapore Counter-Memorial Map Atlas).
583 MM p. 148, para. 321, emphasis added.
– Page 230 –9.31 First, concerning the effect of the disclaimer, Singapore has already
highlighted in her Memorial the observation by the Eritrea/Ethiopia Boundary
Commission that, despite the disclaimer:
“The map still stands as a statemen t of geographical fact, especially
when the State adversely affected itself produced and disseminated it
even against its own interest.”84
Secondly, the argument that the emphasis is “ entirely on the lighthouse rather
than the island” has no merit at all :
(a) contrary to Malaysia’s asserti ons, Pedra Branca is not just shown
as a lighthouse, but also as an area of land. This is readily
apparent by comparing the lighthous e symbol in the legend of the
map with how the island is depicted on the map (see Insert 14,
opposite page 230; and Insert 15, overleaf). The bottom of the
lighthouse symbol, as depicted in th e legend of the map, is a flat
straight line. In contrast, Pedra Branca is depicted with a small
circle protruding from under the lighthouse symbol. In other
words, Pedra Branca is depicted on the map by a small circle
denoting an area of land, with a lighthouse symbol placed on top
of this circle;
(b) a number “28” appears next to th e island which, according to the
legend in the map, denotes height in feet above mean sea level.
This is clearly a referenc e to the height of the island and not the
lighthouse (which is more than 100 feet tall). This further
undermines Malaysia’s argument that the emphasis was “ entirely
on the lighthouse rather than the island”.
584 Decision of the Eritrea-Ethiopia Boundary Commission Regarding Delimitation of the Border
between the State of Eritrea and the Federal Democratic Republic of Decision of 13
Apr 2002, reprinted in 41 Int’l L. Materials 1057 (2002), at p. 28, para. 3.27
– Page 231 – (c) Malaysia does not even attemp t to explain what the bracketed
word “Singapore” appearing un der the island stands for.
Obviously the word was to indica te that the island belonged to
Singapore, just as Pulau Teko ng Besar, which is undisputedly
Singapore territory, is also la belled with the bracketed word
“Singapore” on the same map. It is to be noted that, on a different
sheet within the same series of maps published just one year
before, Pulau Pisang is depicted without the word “Singapore”
even though the lighthouse on Pulau Pisang is operated by
Singapore (See Map No. 25, Si ngapore Counter-Memorial Map
Atlas).
3. Other 20th Century Maps Submitted by Malaysia
(Maps 40 and 42 to 48 of Malaysia’s Map Atlas)
9.32 With respect to th e illustrative map accompanying the publication Limits
in the Sea No. 60 (1974) issued by the Geographer of the United States
Department of State, reproduced as Map 40 of Malaysia’s Atlas, Malaysia points
to the absence of a boundary line between Singapore and Malaysia around Pedra
Branca in this map, and argues that:
“The median line drawn by the Geographer in the Singapore Strait to the
south of Pulau Batu Puteh, Middle Rocks and South Ledge suggests that
these features were considered as Malaysian”585
This argument is without merit. While the drawing of a median line between
Pedra Branca and Indonesia on this map might imply a belief that Pedra Branca
does not belong to Indonesia, such a line clearly does not prejudge the status of
Pedra Branca as between Malaysia and Singapore . After all, this map was
585 MM p. 150, para. 322.
– Page 232 –drawn solely for the purpose of analysing the Indonesia-Singapore boundary.
Moreover, Malaysia failed to refer to th e actual text of the U.S. publication
Limits in the Seas No. 60, which contains a disclaimer drafted in the following
terms:
“Intended for background use only, this research document does not
represent an official acceptance of the United States Government of the
line or lines represented on the charts or, necessarily, of the specific
586
principles involved, if any, in the original drafting of the lines.”
In any event, the conclusi on which Malaysia tries to draw from this map is
belied by the fact that the database on toponyms maintained by the U.S. Board
on Geographic Names (whose member s include the Geographer, U.S.
Department of State) has, since 1970 , shown (and continues today to show)
Pedra Branca as belonging to Singapore. 587
9.33 Map 42 is a geological map of Si ngapore whilst Maps 43, 45 and 46 are
topographical maps. They show the ma in island of Singapore and neighbouring
islands. There is no indication that th ese maps are intended to exhaustively
encompass all Singapore territories. Nothing in these maps contradict the fact
that Singapore’s sovereignty extended to Pedra Branca.
9.34 Map 44 is the well-known map i ssued by the Director of National
Mapping of Malaysia in 1979 showing the limits of Malaysia’s continental shelf
586 Limits in the Seas No. 60 - Territorial Sea Boundary: Indonesia-Singapore, November 11, 1974,
attached to this Counter-Memorial as Annex 48.
587 See Gazetteer No. 10, Malaysia, Singapore and Brunei , second edition, Official Standard
Names approved by the U.S. Board on Geographic names, prepared by the Geographic
Division, U.S. Army Topographic Command, Washington, D.C., November 1970, attached to
this Counter-Memorial as Annex 46. See also, extracts from the web site of the U.S. Board on
Geographic Names (July 2004), attached to this Counter-Memorial as Annex 57. (Limits
in the Sea No. 60, Gazetteer No. 10 contains a disclaimer. However, this does not detract from
the fact that Gazetteer No. 10 positively attributed Pedra Branca to Singapore, while Limits in
the Sea No. 60, which Malaysia is relying on, made no positive attribution of Pedra Branca to
either country.)
– Page 233 –boundaries through which Malaysia unilaterally defined, for the first time, some
of her boundaries with Singapore and third States. The map shows Pedra Branca
within Malaysia’s territorial waters. As the Court will recall, Singapore formally
588
protested this map on 14 February 1980. In her note of protest, Singapore
rejected Malaysia’s purported claim and requested that the map be amended to
589
reflect Singapore’s sovereignty over Pedra Branca.
9.35 The map entitled “Joint Operations Graphic” (Map 47 in Malaysia’s Map
Atlas) is the fifth edition of a series produced under the direction of the Director
General of Military Survey of the British Ministry of Defence. The map, which
was issued in 1994 – in other words, well after th e dispute had crystallised –
contains a broken dotted line on which the words “Malaysia-Indonesia” appear
south of Pedra Branca, Middle Rocks and South Ledge. Pedra Branca is
identified by the legend “Pulau Batu Puteh (Horsburgh)”. However, the map
does not explicitly attribute Pedra Branca to any countr y. The first to third
editions of this map all contained a si milar dotted, broken line on which also
appear the words “Malaysia-Indonesia”, but without explicitly attributing Pedra
Branca to any country. This series of ma ps also contains a disclaimer that they
“are not to be taken as necessarily repr esenting the view of the UK Government
590
on boundaries or political status”.
9.36 In 1993, the U.K. Ministry of Defence sent a draft (or proof) of the fourth
edition of this “Joint Operations Graphic” map to Singapore for comments. This
draft omitted the dotted line found in pr evious editions, a nd added the word
“Malaysia” under the legend “Pulau Batu Puteh (Horsburgh)”. As this is the
first time a political attribution of Pedra Branca appeared in this series of maps,
588
See Singapore's Memorial, at pp. 21-25, paras. 4.2-4.6.
589
See Singapore's Note MFA 30/80 dated 14 February 1980 (SM Vol. 6, Annex 144).
590
See lower right corner of Map 47, Malaysian Map Atlas.
– Page 234 –the Ministry of Foreign Affairs of Si ngapore protested to the High Commission
of the United Kingdom on 14 December 1993 and – as a result of this protest –
the United Kingdom decided to reprint the map without the word “Malaysia”. 591
At a meeting which also took place on 14 Decemb er 1993, Singapore also
obtained a verbal assurance from the Br itish High Commissioner in Singapore,
Mr. Gordon Duggan (the he ad of the United Kingdom diplomatic mission in
Singapore), that the map did not repres ent the official views of the British
592
Government. The fourth edition map was withdrawn and never formally
593
published. The following year (1994), the U.K. Ministry of Defence
published the fifth edition “Joint Operations Graphics” map, which reverts to the
format used in the first to third editions. It is this fifth edition map which
Malaysia has included as Map 47 of her Map Atlas.
9.37 Map 48 is a map of Singapore pu blished by the Singapore Ministry of
Information and the Arts in 1995. The map is reproduced from the inside cover
of the 1995 edition of the Singapore Ye arbook. This publication provides
general information about Singapore and, as such, it includ es a reference to
Pedra Branca. Malaysia states that the map cannot “produce any effect on the
594
situation”. Singapore agrees. This map was produced as part of a normal
routine for the purposes of the Singapore Yearbook. Singapore’s title to Pedra
Branca is not based on this or any other map, but on the lawful taking of
591 See Diplomatic Note from the Ministry of Foreign Affairs of Singapore to the High
Commission of the United Kingdom of 14 Dec 1993 and the United Kingdom’s Reply dated 28
Apr 1994, attached to this Counter-Memorial as Annex 52 and 54 respectively.
592 See Notes of Conversation at the Singapore Ministry of Foreign Affairs between the U.K. High
Commissioner, Mr. Gordon Duggan and the Singapore Ministry of Foreign Affairs Deputy
Secretary (South-East Asia) on December 1993 at 4:00 p.m ., attached to this Counter-
Memorial as Annex 53.
593 See United Kingdom’s Note 79/94 to the Ministry of Foreign Affairs of Singapore dated 28 Apr
1994 attached to this Counter-Memorial as Annex 54.
594 MM p. 150, para. 324.
– Page 235 –possession of Pedra Branca in the period 1847-1851, an d on the uninterrupted
maintenance of her title through administ ration of the island and the waters
around it for more than 150 years.
Section III. Conclusions
9.38 It is an established principle in international law that maps are seldom
considered as primary evidence of title. Certain exceptions are made to this
principle, particularly when maps are atta ched to a treaty and made an integral
part of it. Otherwise, ma ps which cannot be characterised as primary evidence
are examined with the utmo st caution by internationa l courts and tribunals if
they are used in support of a claim of sovereignty over disputed territory.
9.39 For instance, in the Island of Palmas case, Judge Huber stated that, when
dealing with the attribution of territory, maps can only provide indirect evidence
of sovereignty and, unless annexed to a treaty, they do not have the legal weight
of an instrument implying recognition of legal rights. 595 According to the dictum
in the Island of Palmas case, therefore, maps normally play a minor role and
cannot be conclusive as to the recognitio n or abandonment of rights unless they
represent the title of territorial sovereignty itself by virtue of being annexed to a
boundary treaty. This distinction was maintained by the Court in the Frontier
Dispute (Burkina Faso/Mali) Case and in the Case Concerning Kasikili/Sedudu
Island (Botswana/Namibia) and by the arbitral tribunal in the Eritrea-Yemen
arbitration.
9.40 It is also recognised that maps having an offi cial character, i.e., maps
issued by governmental agencies or otherwise endorsed by a government, are
595 See Island of Palmas Arbitration (Netherlands v. U.S.), supra note 24, at 852-854.
– Page 236 –often viewed as having a higher proba tive value than maps published by private
entities.
9.41 The vast majority of the maps prod uced by Malaysia in the present case
were not published for the purpose of indicating sovereignty, but, rather, for
purely illustrative purposes or to assist na vigation in the area. They thus cannot
be given any probative weight or legal significance for the purposes of assessing
sovereignty over Pedra Branca. Furtherm ore, a number of these maps contain
disclaimers, which indicate – as note d by the Boundary Commission in the
Ethiopia-Eritrea case - that the cartographer “is not to be treated as having
accorded legal recognition to the boundaries marked th ereon or to the title to
territory of the States concerned as indicated by the marked boundary”. 596
9.42 This is all the more true since ther e exists a number of official Malaysian
maps, issued before the dispute emerged in 1979-1980, depicting the island of
Pedra Branca as belonging to Singapor e. As Singapore has discussed at
paragraphs 7.38-7.50 of her Memorial , these maps provid e evidence that
Malaysia’s official view at the time wa s that the island belonged to Singapore,
not Malaysia. International doctrine a nd case law support the proposition that
official maps issued by one government which are co nsistent with the position
expressed by another govern ment can be treated as admissions against the
interests of the former and have significant probative value. 597
596 Decision of the Eritrea-Ethiopia Boundary Commission, supra note 575, at p. 28, para. 3.27.
597 Minquiers and Ecrehos, supra note 6, at pp.66-67,71; Island of Palmas, supra note 24, at p.
852; Honduras Border Award ,Reports of International Arbitration Awards, Vol. II, p. 1307, at
pp.1330-1331, 1336, 1360-1361; Beagle Channel Arbitration (Argentina v. Chile) ( Award of
18 February 1977), 52 ILR 97, at 205; In the Matter of the Boundar y between the Dominion of
Canada and the Colony of Newfoundland in the Labrador Peninsula (the
Canada/Newfoundland Boundary Dispute) 137 Law Times Reports 187, at 199, 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.3See also, Brownlie, I., “International
Law at the Fiftieth Anniversary of the United Nations: General Course on Public International
Law”, in 255 Académie de Droit International (ed.) Recueil des Cours (1995), at p. 161.
– Page 237 –9.43 In conclusion, apart from the 19 79 Continental Sh elf Boundaries map
(Map 44, Malaysian Map Atlas) which triggered the present dispute, and against
which Singapore promptly pr otested, Malaysia has not been able to introduce a
single published map, whether emanati ng from Malaysia, J ohor or any other
country, which positively and unequivocally attributed Pedra Branca to Malaysia
(or Johor). The kind of ca rtographic materials produced by Malaysia does not
assist the Court to reach a decision w ith respect to sovereignty over Pedra
Branca.
9.44 Singapore’s title to Pedra Branca is rooted in the lawful possession of the
island and is confirmed by the open, peace ful and continuous exercise of State
authority subsequently exercised on it. The inconsistent and inconclusive
cartography presented by Malaysia does not even begin to put this title in
question. To the extent that any maps ar e relevant in the present case, they are
limited to the official maps issued by Malaysia prior to the emergence of the
dispute which showed that the Malaysian government itself regarded the island
as Singapore’s territory.
– Page 238 – SUBMISSIONS
For the reasons set out in this Counte r-Memorial and in Singapore’s 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 239 –
Counter-Memorial of Singapore