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

09 November 2007

The VICE-PRESIDENT, Acting President: Please be seated. The sitting is open. Before giving the floor to Mr. Bundy, I should like to bring to your attention that Judge Owada, for reasons duly communicated to me, is unable to sit with us this morning. Mr. Bundy, you have the floor.

Mr. BUNDY: Thank you, Mr. President.


12 (a). Mr. President, Members of the Court, before the Court rose for lunch yesterday, I had begun to discuss the Straits Lights System which concerned a number of lighthouses in the region, and my starting point was the legal basis on which each of the lights was established.

12 (b). As I explained yesterday, when the British proposed to build a lighthouse on territory belonging to a local Malay ruler, such as the 1860 lighthouse at Cape Rachado and the 1886 lighthouse at Pulau Pisang, a specific written agreement to this effect was concluded. The agreement and documents covering the Cape Rachado lighthouse may be found at tab 39 of your folders and the written indenture concluded with the Ruler of Johor with respect to the Pulau Pisang lighthouse is at tab 40.

12 (c). In contrast, when lights were established by the British, either on the high seas, as was the case with the One-Fathom Bank light established in 1852, or on territory not belonging to a local Malay ruler, such as the lighthouse on Pedra Branca, there is no such written agreement.

12 (d). I now propose to continue with my chronology of the lights that I started yesterday morning.

13. In 1900, the same year that the indenture was concluded with respect to the Pulau Pisang lighthouse, the Government of the Straits Settlements in Singapore also considered building a lighthouse on the island of Pulau Aur, the location of which can be seen on the screen.

[Slide showing Pulau Aur]

14. To that end, on 20 February 1900 the deputy of the Officer Administering the Government of the Straits Settlements wrote a letter to the Sultan of Johor in which he enquired whether, given the fact that the island of Pulau Aur lay within the territory of Johor, the Sultan desired to erect a lighthouse on the island himself or, alternatively, whether the Sultan would permit the Government of the Straits Settlements to establish and erect a lighthouse there instead (CMS, Ann. 24).

15. On 25 April 1900, the Sultan of Johor responded to that query. After indicating that Johor did not desire to undertake the erection of the lighthouse on Pulau Aur itself, the Sultan stated that he would be willing to grant to the Government of the Straits Settlements a site for the proposed work. The Sultan's letter went on to suggest that the arrangements for such a light would be the same as those that were made for the lighthouse on Pulau Pisang ⎯ namely, a grant of land by the Sultan sufficient for the lighthouse and a roadway leading up to the lighthouse.

16. Now, ultimately, the Government of the Straits Settlements decided not to proceed with that light. Nonetheless, this episode is relevant for a number of reasons. First, it confirmed once more that the practice of the authorities in Singapore was to seek the written permission of a local Malay ruler when they sought to build a lighthouse situated on territory belonging to that ruler. In contrast, as Professor Pellet explained, the British Crown never sought the Sultan's permission for the construction of the lighthouse on Pedra Branca. Secondly, with respect to the Pulau Aur lighthouse, the Sultan's response in 1900 was that he was willing to enter into the same kind of detailed arrangements for a light on Pulau Aur as existed with respect to the lighthouse on Pulau Pisang, where there was a written indenture. The fact that the Sultan made no mention at that time of having agreed similar arrangements for the lighthouse at Pedra Branca is further confirmation of the fact that no such arrangements existed for Pedra Branca.

17. In the light of these facts, the difference in legal treatment between the Cape Rachado and Pulau Pisang lighthouses and the proposed light on Pulau Aur, all of which were situated on Malaysian territory and thus subject to written agreements granting to Singapore the right to build and maintain lighthouses located thereon, and the situation with respect to the lighthouse on Pedra Branca, which was not located on Malay territory and which therefore was subject to no such agreement, that contrast, that difference in treatment could not be clearer. In those instances where Singapore built and managed a light located on the territory of Malaysia, an express agreement was concluded to this end. But where, however, the authorities from Singapore built and maintained a light on territory not under the sovereignty of a Malay ruler, no such agreement was needed and none exists.

18. And it is the complete absence of an agreement for the British activities on Pedra Branca from 1847 to 1851, activities which culminated in the construction of the lighthouse on Pedra Branca, that is a fundamental defect in Malaysia's case. The plain and simple truth is that Malaysia has been unable to produce any written agreement dealing with the lighthouse on Pedra Branca as it did with respect to the lighthouses at Cape Rachado and Pulau Pisang, and as was proposed for the lighthouse on Pulau Aur. The obvious explanation for this glaring gap in Malaysia's case is that neither Malaysia, nor its predecessor Johor, ever considered Pedra Branca to be under its sovereignty.

19. It is this lack of any written agreement concerning the lighthouse on Pedra Branca which also distinguishes the present case from the examples of lighthouse practice elsewhere in the world that Malaysia has sought to rely on in its written pleadings. Malaysia's thesis is that lighthouses are frequently built and maintained by an entity which does not possess sovereignty over the territory on which the light is situated, and that Pedra Branca is simply an example of this practice. But let me examine the authorities that Malaysia has cited and on which it relies to support this proposition.

20. I have already mentioned in my first presentation yesterday that Malaysia itself concedes in its written pleadings that the construction and maintenance of lighthouses is usually a matter for the State on whose territory the light is situated. It is also worth noting that one of the authorities that Malaysia relies on, this is Judge van Eysinga's concurring opinion in the 1937 Lighthouses case, emphasized exactly the same point ⎯ namely, that "the administration of lighthouses is a service which in most States belongs to their domestic jurisdiction".

21. It is true that Judge van Eysinga did go on to say in his separate opinion that there were examples where the State possessing sovereignty over a particular territory was not in a position to provide for the administration of a lighthouse on that territory and, as a result, as the judge noted in his opinion:

"It sometimes happens that the Maritime Powers come to an agreement with the territorial State in regard to the operating of a lighthouse." (1937, P.C.I.J., Series A/B, No. 71, p. 24.)

22. That is precisely what happened with respect to the lighthouses at Cape Rachado and Pulau Pisang and with respect to the proposed light that was never built ⎯ but which was proposed in correspondence with Johor - with respect to Pulau Aur. The parties came to an agreement or they foresaw that such an agreement was necessary. It is also what happened in the other examples cited in Malaysia's written pleadings.

23. Take the situation involving the Cape Spartel lighthouse, which was built and maintained by an international commission on Moroccan territory. Malaysia referred to the Cape Spartel Convention of 31 May 1865 in its written pleadings, but curiously did not actually annex the document and the Convention, which Singapore therefore provided in Annex 18 to its Reply, and which the judges can also find at tab 41 of the judges' folder. Now, as Singapore pointed out in its Reply, when the provisions of that Convention are examined, it becomes clear that the Sultan of Morocco, on whose territory the light was situated, expressly consented to the construction of the lighthouse by the other contracting parties. Indeed, the Cape Spartel Convention contained the following important proviso in its Article 1:


"It is well understood that this delegation [in other words, permission to build the lighthouse] does not import any encroachment on the rights proprietary and of sovereignty of the Sultan, whose flag alone shall be hoisted on the tower of the Pharos." (RS, Ann. 11.)

24. I need scarcely repeat the fact that no agreement of this kind exists with respect to the lighthouse on Pedra Branca. Moreover, I would also recall that it has been the Singapore ensign and flag, not the Malaysian flag, which has openly been flown on Pedra Branca ever since the lighthouse was constructed up to the present. And this is another factor which distinguishes Pedra Branca from the Cape Spartel light and renders the Cape Spartel example of no assistance and of no use to Malaysia.

25. Now, a similar comment can be made about Malaysia's reference to a lighthouse called the Cape Race lighthouse in Newfoundland. And as Singapore explained in some detail in its Counter-Memorial, not only was this light administered by Britain with the consent of Newfoundland, it was not an international transaction, in any event, since Newfoundland was already a British colony under British sovereignty at the time the relevant arrangements were entered into.

26. Nor does Malaysia's reliance on the Red Sea lighthouse practice at issue in the Eritrea/Yemen arbitration assist its position. As the Arbitral Tribunal very clearly noted in its Award in the first phase of that arbitration, the operation of the Red Sea light was subject to a specific understanding between the relevant colonial Powers at the time ⎯ Great Britain and Italy ⎯ that was without prejudice to questions of sovereignty. And no such understanding exists with respect to our case.
27. At the end of the day, of course, each case must be assessed on its own facts. In the present case, the record shows that the British authorities sought and obtained permission from local Malay rulers to establish lights on territory belonging to those rulers ⎯ such as at Cape Rachado and Pulau Pisang, and with respect to the proposed light at Pulau Aur ⎯ but Britain did no such thing when it came to the lighthouse on Pedra Branca, and Malaysia can scarcely find any support for its arguments in these facts.

2. The relevance of various funding proposals for the Straits lights

28. Mr. President, I would now like to turn to the question of how the lighthouses in the region were funded, and the relevance of Malaysia's conduct in this respect.

29. Originally, the lighthouse on Pedra Branca, after it had been commissioned, as well as other lights subsequently put into operation in the region, were financed by the levying of tolls on vessels passing through the Straits of Singapore. And after 1912, these tolls were abolished and the States concerned defrayed the costs of the lights on a co-operative basis. So, up to this point, therefore, the funding alone for lighthouse operations in the region was "sovereignty neutral".

30. However, there are two important developments that occurred after 1912 relating to funding issues, which show in a really quite striking manner how Malaysia viewed the question of sovereignty in connection with how the lights in the region were to be financed.

31. The first such development occurred in 1913, after tolls had ceased to be levied on ships under the 1854 Act. In July 1913, the Chief Secretary to the Government of the Federated Malay States tabled a motion before its Federal Council to appropriate some $20,000 to meet the costs of lighthouse upkeep. What is significant about this episode is that the Chief Secretary's proposal was for these monies to be appropriated to meet a share of the costs of maintaining only the One Fathom Bank light off the coast of Sengalore and the Cape Rachado light located on the Malaysian mainland. The rationale behind this proposal of the Chief Secretary was explained in the following way ⎯ this is coming from the Malaysian side:


"I think it is an international obligation that each country should bear the cost of maintaining all lights considered necessary on its coasts, and I think there can hardly be any question now that we should not be doing our duty if we did not come forward and offer to maintain these two very useful light-houses." (MM, Ann. 65.)
"these two" lighthouses being One Fathom Bank and Cape Rachado on the Malaysian mainland.

32. Now, clearly, at this point, the Chief Secretary did not consider that the light on Pedra Branca was situated on Malay territory or within its jurisdiction. Hence, the proposal did not suggest that the Federated Malay States should also contribute to the costs of maintaining the lighthouse, or assume the costs of maintaining the lighthouse, on Pedra Branca. The proposal was limited to One Fathom Bank and the Cape Rachado lighthouse.

33. Malaysia is rightly concerned about the adverse implications this funding proposal gives rise to with respect to Malaysia's claim of an historic title over Pedra Branca. Malaysia, in its written pleadings, therefore, tries to explain away the fact that Pedra Branca was not mentioned in the Chief Secretary's proposal of 1913 by asserting that the Horsburgh lighthouse ⎯ the one on Pedra Branca ⎯ as well as the light on Pulau Pisang, was situated on the territory of Johor and that Johor, at that time, was not one of the Federated Malay States. And then, in its written pleadings, Malaysia goes on to assert that it is not clear whether Johor ever made any separate proposal to contribute to the upkeep of the lighthouse either on Pedra Branca or on Pulau Pisang.

34. But the facts are clear, they are very clear and they have been documented. As Singapore documented in its Memorial in September 1952, the Director of Marine of the Federation of Malaya, which by that time encompassed Johor, wrote to the Master Attendant of Singapore specifically offering to assume responsibility for the light on Pulau Pisang, but making no such offer with respect to the Horsburgh lighthouse on Pedra Branca. The relevant part of the Director of Marine's letter is worth quoting. It also can be found at tab 42 of the judges' folder. In it the Director stated the following ⎯ this is the Director of Marine of the Federation of Malaya saying this:


"I have the honour to raise the subject of maintenance of Pulau Pisang Lighthouse and to say that as it is close to the coast of the Federation it would seem appropriate that it should be a commitment of this Government, and to suggest that responsibility for it should be assumed by us, in the same way we have assumed responsibility for Pulau Merambong." (MS, Ann. 89.)


Just for reference, the Court will see from the map that is now on the screen the location of Pulau Merambong, which was also clearly in Malaysian territory. So, we have an offer here in 1852 from the relevant authorities on the Malaysian mainland encompassing Johor to fund the lighthouse at Pulau Pisang but not a word about Pedra Branca.

35. And once again, we have a clear pattern of Malaysian conduct showing that Malaysia did not consider itself as possessing sovereignty over Pedra Branca. Because how else can Malaysia explain why it made offers to fund lighthouses on its territory at Cape Rachado and at Pulau Pisang or just off its coast on the One Fathom Bank, and the One Fathom Bank remember was not vested in the British Crown under the 1854 Act; how can Malaysia have made offers to fund those lighthouses but made no similar offer with respect to the lighthouse on Pedra Branca? Malaysia's absence of title over Pedra Branca is further confirmed by the fact that its offer in 1952 to assume responsibility for the lighthouse at Pulau Pisang on its own territory, but once again not on Pedra Branca, came just one year before its official disclaimer of ownership over Pedra Branca that will be discussed by Professor Pellet in a few minutes.

3. Malaysia's conduct with respect to Pulau Pisang and Pedra Branca

36. Having reviewed the elements of the Straits Lights System which undermine Malaysia's case, I would now like to conclude this part of Singapore's presentation by recalling a number of fundamental differences that exist with respect to the Parties' conduct relating to Pulau Pisang, where Malaysia held title, as compared to the Parties' conduct with respect to Pedra Branca, where title was vested in Singapore. As I trust the Court will appreciate, these differences are very telling. They all go to show how Malaysia recognized that it possessed no sovereign rights over Pedra Branca.

37. First, we have the clear indenture issued by the local Malay ruler granting Singapore permission to construct and maintain the lighthouse on Malaysian territory at Pulau Pisang. We have no such indenture with respect to Pedra Branca ⎯ a fundamental difference.

38. Second, as I discussed yesterday, Malaysia insisted that Singapore lower its flag and ensign on Pulau Pisang because it might give rise to an inference that the island belonged to Singapore. Malaysia made no such request regarding the absolutely identical Singapore ensign flown on Pedra Branca.

39. Third, Singapore exercised continuous control over access to Pedra Branca and even, as I pointed out yesterday, Malaysian officials sought permission from Singapore to visit the island. Singapore exercised no such control over access to Pulau Pisang since it was Malaysian territory and Malaysian nationals could travel there freely.

40. Fourth, Singapore government officials made frequent visits to Pedra Branca in the normal course of business all of which are documented in amongst other sources by the logbook kept with respect to Pedra Branca. In contrast, when Singapore officials visited Pulau Pisang, which they only did on very very rare occasions, they were advised to carry their passports and travel documents with them because they were travelling to Malaysian territory.

41. Fifth, Singapore was the only Party which issued permits for nationals of third States to visit Pedra Branca and to carry out surveys or scientific research on the island and within its territorial waters. Singapore took no such steps with respect to Pulau Pisang because it was not Singapore territory.

42. Sixth, Singapore routinely collected meteorological data on Pedra Branca, but not on Pulau Pisang, and Malaysia's own official meteorological publications described the station on Pedra Branca as being located in Singapore.
43. Seventh, Malaysia issued a whole series of official maps depicting Pedra Branca as belonging to Singapore. As Ms Malintoppi will show later this morning, the same series of Malaysian maps never showed Pulau Pisang as belonging to Singapore even though Singapore maintained the light on Pulau Pisang.

44. Eighth, Singapore installed military communications equipment and other non-lighthouse facilities on Pedra Branca, made full use of the island as you could see from the photograph and undertook various public works on the island. It undertook no similar activities on Pulau Pisang. Singapore also designated a specific naval patrol area in the vicinity of Pedra Branca, while it undertook no such action around Pulau Pisang because Pulau Pisang appertained to Malaysia.
45. Ninth, Singapore investigated shipping incidents and accidental deaths on Pedra Branca and within its territorial waters. It had no jurisdiction over Pulau Pisang and thus carried out no similar activities there.
46. Tenth, Malaysia made offers for the funding and the assumption of the responsibility for the lighthouse on Pulau Pisang. It made no similar offer with respect to the lighthouse on Pedra Branca.
47. Eleventh, and last, Malaysia expressly disclaimed "ownership" over Pedra Branca. Singapore, in contrast, obviously never disclaimed "ownership" over Pedra Branca, and it never claimed sovereignty over Pulau Pisang.

48. Since this last element ⎯ Malaysia's official disclaimer over Pedra Branca ⎯ will be the subject of the next part of Singapore's presentation, I would ask, Mr. President, if you would now give the floor to Professor Pellet who will address this important aspect of the case. Thank you very much.

The VICE-PRESIDENT, Acting President: Thank you Mr. Bundy for your statement. I now give the floor to Professor Pellet.

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