Oral argument by Mr. Rodman R. Bundy, avocat à la Cour d'appel de Paris, member of the New York Bar, Frere Cholmeley/Eversheds, Paris, 19 November 2007

19 November 2007

Mr. BUNDY: Thank you, Mr. President.


1. As I said, Mr. President, Members of the Court, my task this morning, and to be continued tomorrow, is to turn to Singapore's conduct on Pedra Branca and within its territorial waters after 1851 and also to the relevance of Malaysia's conduct relating to the Straits Lights during this same period.

2. In my first round presentation two weeks ago, I reviewed the numerous examples of State conduct ⎯ effectivités ⎯ that Singapore undertook on Pedra Branca after 1851 and I pointed out how this conduct evidences how Singapore confirmed and maintained the title it acquired to Pedra Branca during the period 1847 to 1851, discussed by my colleague, Mr. Brownlie, and this was maintained by concrete actions on the ground. Now the maintenance of title ⎯ the maintenance of title ⎯ is an important element of sovereignty, although I can well understand Malaysia's sensitivity to this point given its complete absence from the island, whether before 1851 or afterwards.

3. Malaysia's written reply labelled Singapore's conduct "peripheral" to the main issues in this case. Last Tuesday Sir Elihu Lauterpacht was more extravagant in downgrading that description. He asserted that Britain's and Singapore's conduct on Pedra Branca after 1851 is "irrelevant" and he went on to say that "it is unnecessary for Malaysia to respond at all". Given the alleged irrelevance of Singapore's conduct, it was interesting and perhaps revealing to find both Sir Elihu and Professor Crawford devoting a considerable time to addressing that conduct last Thursday, even though Sir Elihu, I admit, confessed that he was dealing with the subject "with the greatest reluctance".

4. Now, counsel's main point was that unless by 1851 there really existed British title over Pedra Branca, then "there was nothing that could be maintained or confirmed, either by Britain's or Singapore's subsequent conduct" (CR 2007/24, p. 47, para. 49). To recall my distinguished colleague's schoolboy tale, zero multiplied by any number produces zero, and it was on the basis of this reasoning and, dare I call it the "lobsterpot theorem", that Sir Elihu went on to say: "Either Britain acquired title by 1851 or it did not. If it did, Singapore is right. If it did not, Singapore loses, and loses without more. It is as simple as that." (CR 2007/24, p. 53, para. 59).

5. The problem with this line of argument is that the situation we have here is not one of multiplication, zero times some other number. It is a question of addition, involving the fact that while there is absolutely nothing on Malaysia's side of the equation, on Singapore's side there are the activities of the British Crown during the period 1847 to 1851 plus the numerous activities that Britain and Singapore carried out thereafter on the island. In other words, one plus much more than one.

6. Now, counsel's assertion also runs against all of the recent jurisprudence on the issue of disputed sovereignty to small islands, despite my learned friend's confident assertion that "Malaysia's position is entirely in line with the Court's case law and that of arbitral tribunals" (CR 2007/24, p. 51).

7. To appreciate the point, I would respectively ask the Court, once again, to consider what the position would be if, quod non, Malaysia was somehow correct in its thesis that Great Britain's activities on Pedra Branca between 1847 and 1851 did not evidence the intention to acquire sovereignty over the island at that time ⎯ a proposition which Mr. Brownlie has thoroughly rebutted. In other words, what would be the position if sovereignty remained indeterminate as of 1851, bearing in mind that Malaysia has not shown any intention on the part of Johor to exercise sovereignty over the specific territory in dispute nor a single sovereign act carried out on these features before that time.

8. As I pointed out in my first round presentation, the Court would then be faced with the question as to which Party could show the better title to the specific territory in dispute, based on their conduct relating to that territory. That was the question that the Court ultimately had to deal with in the Minquier and Ecrehos case. It was also the determinative issue in the Qatar v. Bahrain case, with respect to the small island of Qit'at Jaradah; in the Indonesia/Malaysia case, with respect to both Pulau Ligitan and Pulau Sipadan; and in the Nicaragua v. Honduras case with respect to the four cays claimed by Honduras. And it was also an issue that the Arbitral Tribunal, which was presided over by a former President of this Court, was confronted with in the Eritrea/Yemen case dealing with a number of uninhabited islands in the Red Sea.

9. In every one, every one, of those cases the conduct of the parties was assessed to determine which one had demonstrated a greater intensity of State activities undertaken on the islands in question à titre de souverain and the question of sovereignty was decided on that basis. Professor Schrijver complains that Singapore never claimed title to Pedra Branca before 1980. Of course, neither did Johor nor Malaysia. But as this Court so clearly articulated just last month in its Judgment in Nicaragua v. Honduras ⎯ and it is a statement that can be applied to Great Britain's and Singapore's conduct on Pedra Branca: "A sovereign title may be inferred from the effective exercise of powers appertaining to the authority of the State over a given territory." (Judgment of 8 October 2007, para. 172.) Or, to borrow the words of the sole arbitrator in the Island of Palmas case: "the continuous and peaceful display of territorial sovereignty is as good as title" (RSA, Vol. II, p. 839).

10. In these circumstances, I fail to see how Singapore's exclusive, peaceful, open and long-standing conduct with respect to its administration and control over Pedra Branca, including its territorial waters, both between 1847 and 1851, and from 1851 all the way up to the present, can possibly be categorized as either "peripheral" or "irrelevant".

11. In his second intervention on post-1851 conduct last Thursday, Sir Elihu attempted to distinguish the cases that I just mentioned from the present one. He argued that in none of those cases was the starting-point of the determination of the conduct of the Parties a predetermination that one of them had a clear title ⎯ as Malaysia contends ⎯ and the other did not rely on prescription (CR 2007/26, pp. 35-36, para. 1). And he added: "Here the position is quite different; the starting-point of Singapore's post-1851 efforts must be the acceptance of Johor's prior title." (Ibid., p. 36, para. 1.)

12. Now that line of argument is flawed in three fundamental respects.

13. First, the assertion that the starting-point for assessing Singapore's post-1951 activities on the islands must be the acceptance of Johor's prior title simply begs the proposition that Malaysia has so utterly failed to prove. How can a claim to an historic title over Pedra Branca survive when Johor never demonstrated any intention to act as sovereign, to claim sovereignty over Pedra Branca, never once mentioned the island by name, and never set foot on Pedra Branca in any sovereign capacity? How can historic titles survive those facts?

14. Second, counsel assumes away the actions of Great Britain in taking possession of the island from 1847 to 1851. Although, to be fair, I should recall that Sir Elihu did concede that if Britain had acquired title by 1851, as Mr. Brownlie has shown, Singapore is right ⎯ it has sovereignty (ibid., p. 35, para. 1).

15. Third, it is incorrect to assert that cases such as Minquiers and Ecrehos, or Eritrea/Yemen, or Indonesia/Malaysia, did not involve a prior examination of whether a claim to an historic title had been made out. In Minquiers and Ecrehos, the Court rejected France's claim of an historic title because it had not been proved before the Court went on to take up the issue of the conduct of the parties on the disputed territory. In Eritrea/Yemen, the Arbitral Tribunal also rejected Yemen's claim of an historic title to the islands based on ties to the Ottoman Empire before deciding the case on the basis of the effectivités. Moreover, with respect to that case, counsel fails to mention the fact that the administration of the Red Sea lights in the case was not relevant because the colonial Powers ⎯ Great Britain and Italy ⎯ had agreed a specific understanding: it was the 1927 Rome Understanding, referred to in the Award, that provided that those kinds of acts would be without prejudice to the issue of sovereignty. And in the Indonesia/Malaysia case, the Court rejected both parties' claims of an historic chain of title before deciding the case on the basis of the effectivités. Professor Pellet will be coming back tomorrow to say more about the Indonesia/Malaysia case.

16. In addressing the relevance of Singapore's post-1851 conduct on Pedra Branca, counsel for Malaysia also exhibited an acute sensitivity to the doctrine of prescription: so much so, that Sir Elihu mentioned prescription both in his first speech, where he suggested that Singapore was trying to induce the Court to accept a kind of "pseudo"-prescriptive conduct (CR 2007/24, p. 53) and in his last speech, where he accused me of engaging in "verbal gymnastics" in giving the impression that Britain's post-1851 conduct can override Johor's earlier historic title (CR 2007/26, p. 35, para. 1). And for good measure, Professor Crawford also felt it necessary to make a reference to prescription in his closing arguments (CR 2007/27, p. 63, para. 4).

17. In my first round presentation, I pointed out that it was Malaysia, in its written pleadings, that argued that Singapore was trying to displace a prior Malaysian title: and I said that the Court does not need to address this issue because of three main factors. First, Malaysia has in no way demonstrated an historic title to the specific territory in dispute ⎯ in other words, there was no Johor title to displace; second, because Great Britain established title to the island by its actions from 1847 to 1851, discussed by my colleague; and third, because, even if title was somehow indeterminate as of 1851, Singapore has demonstrated that it was the only party to carry out sovereign acts on Pedra Branca thereafter. I also pointed out that it is Malaysia, it is Malaysia, which previously told this Court ⎯ five years ago ⎯ that in the face of the complete inactivity of one party which asserts a prior title to disputed territory, the subsequent administration of the territory in question over a long period of time by the other party is sufficient to establish title in that party.

18. Now I realize that I have cited from Malaysia's oral argument in the Indonesia/Malaysia case in the first round. But given that counsel for Malaysia neglected to mention this fact last week ⎯ and I can perhaps understand why ⎯, it is appropriate to recall Malaysia's own discussion of the issue: a discussion which post-dated by several years the Kasikili/Sedudu Island case to which Professor Crawford made reference last Friday. To quote again from counsel's statement of principle in the Indonesia/Malaysia case: "A title based on a peaceful and continuous display of State authority would in international law prevail over a title of acquisition of sovereignty not followed by an actual display of State authority." (CR 2002/30, pp. 35-36, para. 22.) That is Malaysia speaking to the Court.

19. If nothing else, this observation shows that Malaysia itself recognizes the need for a party claiming title at least to maintain that title ⎯ something that Malaysia never did even if one accepts, for purposes of argument, our opponent's far-fetched theory of an original title: one that has not been proved.

Mr. President, with your permission, I find that would be an appropriate place for me to break. Thank you very much.

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