Oral argument by Mr. Chan Sek Keong, Chief Justice of the Republic of Singapore, 19 November 2007

Mr. CHAN:

HISTORICAL SETTING

1. Mr. President and Members of the Court, my presentation this morning will address the arguments of Professor Crawford on Malaysia's claim to an original title to Pedra Branca and Professor Schrijver's arguments on the Anglo-Dutch Treaty. Both sets of argument have no merit.
Malaysia's lack of response to Singapore's arguments

2. I begin by observing that Professor Crawford did not respond to my argument that the territorial extent of the Johor Sultanate was indeterminate because it was unstable and its rulers had a conception of sovereignty based on control of people rather than control of territory. He simply dismissed it as a theory of the disappearing Sultanate and labelled it as the discontinuity thesis which has three elements.

3. Professor Crawford claims that all these three elements can be contradicted, firstly, by the expert opinions of Professor Houben and Professor Andaya; secondly, by the documentary and historical evidence; and thirdly, by the conduct of the Parties. In fact, they are not.

Mr. CHAN: Yes, Mr. President. Let me elaborate. The first element, that the State of Johor "dates from the mid-nineteenth century" is a quotation from Professor Trocki's book, The Prince of Pirates, which Professor Houben has endorsed in his report. These passages can be found at tabs 11 and 12 of the judges' folder.

The second element, that traditional Malay sovereignty is "based on the allegiance of subjects and not on the control of land" is the unanimous opinion of all expert historians Singapore has referred to in her Counter-Memorial, including Professor Andaya, who wrote in 1997 in his article, "Writing a History of Brunei": "Historians have accepted the truism that in Southeast Asia it is not the control over land but people which is the crucial element in statecraft."

(Emphasis added.) Professor Crawford's description of a Malay State as "virtually non-territorial" is his, not mine. In my speech last week, I took great pains to make clear that:
"it is not Singapore's case that the traditional Malay concept of sovereignty means that a Malay sultanate had no territory. What it means is that the only reliable way to determine whether a particular territory belonged to a ruler is to find out whether the inhabitants pledged allegiance to that ruler."

Instead of rebutting this proposition and proving it wrong, Professor Crawford simply ignored it. The proposition creates difficulties for Malaysia in showing when and how the Johore Sultanate acquired title to Pedra Branca.

The third element, that it was only in the late nineteenth century that the concept of territorial sovereignty became apposite for the Malay States, including Johor, is extracted from a passage in Professor Andaya's book A History of Johore, which I have quoted during the first round. The passage is found in the judges' folder at tab 13. Professor Houben also endorses this view in paragraph 13 of his report, which can be found in the judges' folder at tab 12, where he also cites another study by Professor Milner published in 1995.

4. Mr. President and Members of the Court, Malaysia's case is based on original title. But up to today, Malaysia has produced no evidence whatever to prove her claim. She has produced no evidence whatever that the Johor Sultanate had ever exercised any sovereignty over Pedra Branca or carried out State activities specific to the island. My argument is that the three elements of

(1) the historical instability of the Johor Sultanate throughout its existence,

(2) the indeterminacy of its territorial boundaries, and

(3) the traditional Malay concept of sovereignty
constitute a huge obstacle to Malaysia's claim, which she has not surmounted. Pedra Branca was a small, barren and uninhabited island. There were no inhabitants to pledge allegiance to the ruler, and so this test cannot be satisfied. In the case of Pedra Branca, Malaysia has to show that the Sultanate has carried out acts of a sovereign nature specific to the island.

5. Singapore's case is not that the Sultanate disappeared. Obviously, the Sultanate could not disappear because, as Professor Andaya has stated in his report: "Wherever the ruler settled, there would be a royal capital and the center of the kingdom."59 This is the underlying basis of my argument. It is precisely because a Malay sultanate is centred entirely on the person of the Sultan that the territorial extent of a Malay kingdom is inherently indeterminate. When the Sultan was driven out of his capital, he lost territory and also, eventually, the allegiance of the subjects whom he could no longer protect. Each time he moved, he had to acquire new subjects to build up a kingdom again. That is the traditional concept of Malay sovereignty, but that does not mean a Malay kingdom has no territory, contrary to what Professor Crawford wants us to say or the Court to think. It simply means that the territory cannot be defined without a reference to the people who live there and pledge allegiance to the ruler.

Malaysia's other arguments

6. Let me now deal with Professor Crawford's other arguments that Pedra Branca was part of the Johor Sultanate.

The activities of the Orang Laut

7. His first argument is that the territory of the ruler "included islands whose surrounding waters were used by his subjects"60. Particular reference is made to the Orang Laut who were the subjects of the Sultanate. The argument appears to suggest that the mere usage of the waters of an island by the Sultanate's subjects is evidence that those waters belong to the Sultanate. That cannot be right. Private acts are not sufficient in law to establish the sovereignty of the Sultan over Pedra Branca and the adjacent waters. In fact, the waters around Pedra Branca have been used by mariners and merchant ships from all over the world for hundreds of years.

8. In any case, not all Orang Laut were subjects of the Sultanate. Orang Laut came from all parts of the archipelago, some as far as the Philippines and Thailand or Vietnam. They were also called sea nomads. Some of them paid allegiance to no one. They both engaged in fishing and in piracy. Begbie referred to the piratical activities of the Lanum ⎯ or Illanum ⎯ from Mindanao, Philippines, who were not subjects of Johor . Paragraphs 12 to 15 of Presgrave's report on piracy also refer to Orang Laut from Thailand, Trengannu, Selangor, Perak, Sulu, Borneo ⎯ all engaging in piracy.

The Dutch letters of 1655 and 1662

9. The waters around Pedra Branca have never been the territorial waters of the Johor Sultanate or claimed as such by the Sultanate. In this connection, Professor Crawford has referred to a proposed Dutch scheme, in 1655, to divert Chinese junks from the mouth of the Johor River to Malacca. He claimed that the Sultan protested against this scheme in 1662, seven years later64. It is not clear whether the two incidents were related, but the fact was that the scheme and the protest had nothing to do with territory but trade. Professor Crawford, in disregard of the contents of the 1662 letter, interpreted that the Sultan's "great displeasure was at the infringement of its territorial rights". Nothing in the 1662 letter speaks of territorial rights. In fact, the reaction described by the Governor-General shows clearly that the Sultan's great displeasure was against the seizure of the two Chinese junks to prevent them from sailing into the Johor River to trade. The protest was not against either the Dutch or the Chinese encroaching or trespassing in the waters of the Sultanate, but about the diversion of trade away from the Sultan. In this connection, Malaysia appears to have acknowledged her mistake in translating the Dutch word for "express" as "his" in the 1662 letter to convey the idea that the waters around Pedra Branca belonged to the Sultan.

Absence of evidence despite 300 years of history

10. Except for the single article in the Singapore Free Press referring to Batu Puteh which Professor Pellet will examine again in his presentation, Malaysia has not managed to harvest from the 300 years of the existence of the Johor Sultanate any evidence that it had an original title over Pedra Branca. The paucity of evidence is a strong indication that Pedra Branca had never belonged to the Sultanate.

The reliance on general descriptions of the Sultanate

11. Professor Crawford also relies on general descriptions of the geographical extent of the Sultanate's possessions given by Crawfurd and Presgrave as evidence of its title to Pedra Branca. But Presgrave and also the Dutch and British negotiators of the Anglo-Dutch Treaty acknowledged that they did not know the territorial limits of the Sultanate66. Even the Sultan of Trengganu, as late as 1875 did not know the extent of his territory67. In the context of a Malay sultanate which was people-centric and not territory-centric, general descriptions of the geographical extent of the Sultanate's domains have no probative value at all as attributions of sovereignty. Crawfurd himself was aware of the nature of traditional Malay sovereignty. He had accepted the Temenggong's claim to certain islands on the basis that the inhabitants there had cheerfully pledged their allegiance to the Temenggong.

12. In any case, as these descriptions do not name Pedra Branca specifically, they have no probative value as evidence of title to the island. As this Court has stated in the Indonesia/Malaysia case, which was reiterated at paragraph 174 of your recent Judgment (of 8 October 2007) in the Nicaragua v. Honduras case: "The Court . . . can only consider those acts as constituting a relevant display of authority which leave no doubt as to their specific reference to the islands in dispute as such." (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, pp. 682-683, para. 136.)

The Sultanate's lack of interest in small, uninhabited islands

13. The nature of traditional Malay sovereignty militates against the ruler showing any interest in small, uninhabited islands, especially an isolated one like Pedra Branca. Begbie and Presgrave only listed inhabited islands as belonging to the Sultanate69. The Sultanate's disinterest in Pedra Branca is consistent with and explains the absence of any evidence that the Johor Sultanate had claimed, or had any intention to claim, Pedra Branca as its territory.

Anglo-Dutch Treaty of 1824

14. Mr. President and Members of the Court, let me now examine Professor Schrijver's arguments on the Anglo-Dutch Treaty. He argues that:

(a) the Treaty divided up the Straits of Singapore;

(b) the 1825 donation by Sultan Abdul Rahman had no legal effect whatever, as the issues were already resolved by the two Treaties of 1824; and

(c) the Treaty, although intended to create spheres of influence between the two Powers, in fact determined the boundaries of the territories of a divided Sultanate72.
Professor Pellet will also deal with some aspects of the second argument, and also the third argument.

15. Professor Schrijver's first argument is wrong. It is contradicted by the negotiating history and the text of Articles 10 and 12 of the Treaty and an internal Note of the Dutch Ministry of Colonies dated 15 October 1858 and correspondence between Crawfurd and the Government of India73. A copy of Articles 10 and 12 can be found in the judges' folder at tab 14. Professor Schrijver argued that Singapore's interpretation is untenable and unsustainable because it was "unthinkable that they would have agreed to leave the entire Straits of Singapore open and undivided". He also claims that not a single shred of evidence can be found to support Singapore's thesis. But then, what evidence has Malaysia produced? Only an imaginative sketch-map on which was traced an imaginary line.

16. However, there is further evidence to show that the "dividing line" was the entire Straits of Singapore. The Court will recall that in 1886 Sultan Abu Bakar requested the British to keep a register of all his islands to keep out other Powers. The Secretary to the Sultan sent a memorandum with the title "The Natunas, the Anambas and the Tambilan Islands" dated 5 May 1886 to the British Colonial Office. This Note can be found in the judges' folder at tab 15. Paragraph 3 of this note states:
"3. By the English-Dutch Treaty of 1824, the Dutch are excluded from exercising any right or interfering with the islands to the North of the Straits of Singapore. The groups in question are situated to the north of that line, with the exception of certain islands of the Tambelan Group, on one of which the Dutch have a coal depot and a fort. This island is below the line of the Straits of Singapore."

17. This memorandum was sent after obtaining legal advice from Mr. Rodyk, a lawyer who founded the oldest law firm in Singapore, Rodyk & Davidson, which is still one of the largest law firms in Singapore today. The memorandum clearly identifies the whole of the Straits of Singapore as the dividing line, with the British sphere of influence north of the Straits of Singapore and the Dutch sphere of influence south of the Straits of Singapore. To emphasize this meaning, the word "North" is underlined in the original manuscript. This understanding is also significant in another context which I shall discuss later. There is thus a coincidence of the views of the Dutch, the British and the State of Johor itself that the entire Straits of Singapore is "the dividing line".

The donation letter of 1825

18. Mr. President and Members of the Court, I will now examine Professor Schrijver's argument that the 1825 donation letter had no legal effect as a matter of international law because the issues had been resolved by the 1824 Treaties. Professor Schrijver cites no applicable international law principle to support this. He does not identify the issues that had been resolved or their relevance to the donation letter. The Anglo-Dutch Treaty created two spheres of influence, not two territories. The Dutch needed Abdul Rahman, as the ruler of the Johor Sultanate, to enhance a "spheres of influence" arrangement into a division of the possessions of the Sultanate. The Sultan was not a civil servant.

19. The 1825 donation was a constitutional act of the highest order. In transferred sovereignty of territory by one ruler to another ruler under Malay adat law. Any suggestion that the donation had no legal effect was plainly absurd.

20. Professor Schrijver has carefully avoided any discussion of the text of the donation letter. So, let us have another look at the text of the letter of donation to see what it says. This is now shown on screen and can be found at tab 16 of the judges' folder. I have read out this text earlier (CR 2007/20, p. 50, para. 43) so I will read out only the underlined words:

"Your territory, thus, extends over Johor and Pahang on the mainland or on the Malay Peninsula. The territory of your Brother [Sultan Abdul Rahman] 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 Brother, and whatever is situated on the mainland is yours."76 (Emphasis added.)

21. The donation letter gives to Sultan Hussein as Sultan of Singapore and all obedient dependencies, Johor and Pahang on the mainland or on the Malay Peninsula, with Sultan Abdul Rahman retaining for himself "all other islands", and "whatsoever may be in the sea." Obviously, "all other islands" and "whatsoever may be in the sea" cannot be given a literal meaning. They cannot refer to islands which did not belong to the Sultanate (such as Pedra Branca) or islands which the donation letter itself gives away. Hence, the extent of the territory donated or retained by Sultan Abdul Rahman cannot be determined by reading the words of donation literally, but contextually. And what is the context? It was, as pointed out by Professor Schrijver, that the Dutch needed Sultan Abdul Rahman to "effectuate" the arrangements made under the Anglo-Dutch Treaty, and "to include in that arrangement that part of the Kingdom of Johor which is situated within the British sphere of influence"77. The Dutch wanted Sultan Abdul Rahman to donate his territory within the British sphere of influence to Sultan Hussein.

22. In this context, the extent of the territory donated to Sultan Hussein becomes clear. It extends to all the Sultanate's territory north of the Straits of Singapore. Sultan Abdul Rahman also provided a detailed description of the respective territories of both Sultans: those not donated to Sultan Hussein would be retained to himself, that is, all islands and whatsoever may be in the sea. The effect of the donation was that Sultan Abdul Rahman expressly retained all his former territory not donated to Sultan Hussein.

23. Professor Schrijver has never been able to rebut Singapore's case that the entire Singapore Strait was the dividing line. Singapore's interpretation on this point was, as I have shown a few minutes ago, also the understanding of the Sultan of the State of Johor in 1886 where he sought the assistance of the British Government to recover the Natunas as his territory on the ground that they were situated north of the Straits of Singapore. The British Government rejected the request on the ground that they had already recognized Dutch sovereignty over the Natunas before 1886. The correspondence on this issue is found in Annex 21 of the Counter-Memorial of Singapore.

24. Accordingly, the scope of the donation did not affect Pedra Branca, even assuming that the island belonged to Sultan Abdul Rahman. It was not donated to Sultan Hussein. This interpretation finds support in Professor Schrijver's account as to the circumstances in which Sultan Abdul Rahman agreed to donate his territory within the British sphere of influence to Sultan Hussein.

25. For this reason, it would not be necessary to discuss whether the donation letter also included all the dependencies of Sultan Hussein (as indicated by the title of the document itself) as such dependencies would naturally be part of his territory north of the Straits of Singapore.

26. The Court will recall that in 1864, a dispute arose between Johor and Pahang as to the ownership of certain islands situated at the boundary separating them. The dispute was referred to arbitration by Governor Ord and this led to the Ord Award. Malaysia has attempted to construe the Ord Award to include Pedra Branca. This is plainly wrong as there was no dispute between Johor and Pahang as to ownership of Pedra Branca, and also because Pedra Branca was never donated to Johor or Pahang. It would be very odd indeed for the Governor to award Pedra Branca to Johor when the island was not within the terms of reference of the dispute. It would be odder still if, had the Ord Award awarded Pedra Branca to Johor, Johor would disclaim ownership of Pedra Branca in 1953. The Ord Award was a very significant victory for Johor and it is reasonable to assume that the Acting State Secretary of Johor could not have failed to consider its terms when the Government of Johor decided to disclaim title to Pedra Branca in 1953.

The 1861 incident

27. As I am now on the topic of mainland Johor, I wish to take this opportunity to clarify an issue in connection with the 1861 incident involving certain fishermen. Last Thursday, Sir Elihu Lauterpacht referred to two letters from the British Governor to the Temenggong concerning this incident78. He argued that certain subtle differences in tone between the two letters revealed that the British Governor did not regard Pedra Branca as falling within British waters. Sir Elihu's conclusion is not borne out by a proper reading of the documents. What he fails to mention is that the two letters in fact refer to the same incident. The full analysis given by Singapore is in Appendix B of our Reply, which I do not propose to repeat here, but it demonstrates very clearly that the Singapore fishermen concerned and the British officials in Singapore had the clear understanding that the Temenggong possessed no jurisdiction and authority around Pedra Branca.

Conclusion

28. Mr. President and Members of the Court: the crux of the issue is the source of the original title that Malaysia has claimed? Where is the evidence of this source? Malaysia has never been able to provide the answer to this critical issue. Where is the evidence of the Johor Sultanate having claimed or exercised sovereignty over Pedra Branca or its waters before 1847? There is none, and therefore it is not surprising that Malaysia pleaded time immemorial or possession immemorial.

29. Before I conclude my presentation, I would refer to Professor Crawford's statement that both Parties have to prove their propositions. We agree. For Malaysia, she must prove that Pedra Branca was part of the Johor Sultanate and, assuming that she can prove it, she must further prove that the Sultanate's original title had been transmitted to the Malaysian State of Johor. For the reasons I have given in my speech at the first round and today, I respectfully submit that Malaysia has failed to prove both propositions, and that Malaysia does not have an original title to Pedra Branca.

30. Mr. President and Members of the Court, before I sit down, I would wish to express my deep appreciation of the Court's kindness and patience in listening to my submissions on behalf of the Republic of Singapore in what will be my one and only appearance as counsel before this Court. It is an honour and a privilege I will not forget. But I would like to leave the Court with this submission. Malaysia has been trying to explain away the 1953 letter as a disclaimer of ownership of property, not sovereignty. But if that was the intention, Malaysia should have some documentary evidence to prove it. There was absolutely no reason for the Johor Government to declare, and it would never have declared, that it "does not claim ownership of Pedra Branca"82 unless it did not own Pedra Branca. The continuous pattern of activities by Singapore and the continuous silence of Malaysia in relation to Pedra Branca from 1847 onwards are consistent with, and confirmed by, the 1953 disclaimer. In truth and logic, Malaysia's absence of any title to Pedra Branca was the source and origin ⎯ the fons et origo ⎯ of the 1953 disclaimer of title. Johor disclaimed title because it had no title. What more can be said?

Mr. President, may I now request that you call on Professor Pellet to continue Singapore's presentations. Thank you.