Oral argument by Mr. Chan Sek Keong, Chief Justice of the Republic of Singapore on 6 November 2007
The VICE-PRESIDENT, Acting President: Please be seated. I now call on Mr. Chan. You have the floor.
1. Mr. President and Members of the Court, for the rest of this morning, Professor Pellet and I will address Malaysia's claim that Johor had an original title to Pedra Branca. The purpose of my presentation is to describe the historical setting and to explain why the historical context, when properly understood, in no way supports Malaysia's claim. Professor Pellet will also, inter alia, examine the documents that Malaysia has produced and show that none of them supports Malaysia's claim.
2. I wish to begin by clarifying the name "Johor" which has been used extensively by the Parties in their pleadings. I would like to point out that in the period relevant to Malaysia's claim, there were two different political entities in the region that were called "Johor". The historian, Carl Trocki, has explained the difference in his book entitled Prince of Pirates: The Temenggongs and the Development of Johor and Singapore. In writing this book, Trocki was given full access to the Johor royal archives42. Malaysia accepts Professor Trocki's study as an authoritative work on the history of Johor43. An extract from this book is in the judges' folder at tab 8. In this extract, Professor Trocki writes:
"The term 'Johor' is used by historians to refer to two different states ⎯ an old one and a new one. Old Johor was the maritime Malay empire that succeeded Malacca. It began in 1512 when the defeated Sultan of Malacca established a capital on the Johor River, and gradually disintegrated in the eighteenth 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 . . ."44 (Emphasis added.)
3. It is important to bear in mind, as noted by Professor Trocki, that "Old Johor" began in 1512 and disintegrated in the eighteenth century, and "modern Johor" dates from the mid-nineteenth century. Old Johor has been referred to by other names, such as, "Johor-Riau-Lingga Sultanate", "Riau-Johor", "Sultanate of Johor" and "Kingdom of Johor". Singapore's written pleadings refer to old Johor as the "Johor-Riau-Lingga Sultanate", but for the purpose of my presentation, I will simply use the term old Johor or the Johor Sultanate. I will also refer to the later entity as modern Johor ¯ or new Johor ¯ or the State of Johor. However, Malaysia has in her pleadings referred to old Johor and new Johor by the same name, namely, "Sultanate of Johor".
Part I. Overview of Malaysia's claim to original title over Pedra Branca
4. Allow me to begin by giving an overview of Malaysia's claim to Pedra Branca. Malaysia's claim is based on two main propositions. The first is that Pedra Branca belonged to old Johor. The second is that Pedra Branca became part of new Johor. The first proposition is not supported by any evidence. The second proposition is therefore irrelevant, but nevertheless I will show that Pedra Branca did not become part of new Johor by transmission or in any other manner.
5. Malaysia has attempted to establish the first proposition by relying on geography, that is to say, location and proximity. She argues that Pedra Branca is situated in "the centre of the region that constituted the Sultanate of Johor"45 and has pointed out that it is possible to see Pedra Branca from the Johor coast46. Except for these vague assertions, she has produced no evidence whatever that the Johor Sultanate ever claimed or exercised any acts of sovereignty over Pedra Branca.
6. Malaysia has produced a few historical documents as evidence. Professor Pellet will show later that they are not relevant, and that whatever indirect inferences Malaysia attempts to draw from these documents are totally misconceived. Malaysia also relies on unspecified private acts of fishing and piracy in the area near Pedra Branca, at unknown times, by people who were not necessarily subjects of Johor. Professor Pellet will also explain later that these activities cannot constitute evidence of title.
7. Pedra Branca was a barren, rocky and uninhabited island. The fact is, until the British took possession of Pedra Branca to build Horsburgh lighthouse, no one else, including local rulers, had any interest in claiming it as territory. It is therefore not surprising that, across the period spanning more than 300 years from 1512, there is not a shred of evidence that the Johor Sultanate had claimed ownership of the island or that it had been attributed to the Sultanate. In the end, Malaysia is reduced to asserting that "from time immemorial Pedra Branca was under the sovereignty of the Sultanate of Johor"47 and that "Johor held sovereignty over Pulau Batu Puteh in the context of its title to a wider range of islands"48. These vague and barren assertions only serve to show that Malaysia really has no evidence that Pedra Branca was ever part of the Sultanate.
8. Malaysia has, furthermore, glossed over two inconvenient facts which undermine her claim to an original title. The first fact is that the Sultanate's territorial extent was largely unstable and uncertain during the Sultanate's existence. Sir Richard Winstedt, an acknowledged expert on the history of Johor, has summarized this point in his book A History of Johore in these words: "From her foundation down to the XIXth century the kingdom of Johor was in a precarious state."49
Contrary to this historical fact, Malaysia has attempted to portray the Johor Sultanate as a stable kingdom whose territorial extent remained the same throughout all phases of its history.
9. The second fact that Malaysia has glossed over is that a traditional Malay sultanate, such as old Johor, had a different conception of sovereignty from that of a modern territorial State. In a Malay sultanate, sovereignty was based on the allegiance of subjects and not on the control of land. It was only at the end of the nineteenth century that this concept began to evolve into the modern concept of territorial sovereignty. For this reason, old Johor did not and could not have clear boundaries. This fact presents a very serious obstacle to Malaysia's attempt to prove that Pedra Branca was part of old Johor. Malaysia has not surmounted it.
Part II. History of the Johor Sultanate 1512-1824
10. Mr. President and Members of the Court, allow me now to provide a brief account of the relevant historical setting and show how the first inconvenient fact undermines Malaysia's first proposition that Pedra Branca was part of old Johor. As Singapore has given a full account of the history of the Johor Sultanate in her written pleadings50, I will only focus on the key facts relevant to Malaysia's claim.
11. The Johor Sultanate began in 1512 with the fall of the Malacca Sultanate to the Portuguese. The defeated Sultan, Mahmud I, fled from Malacca and established a new capital along the Johor River, from which the sultanate took its name. The capital of the sultanate would later shift to Riau and then finally to Lingga, thus giving rise to the name "Johor-Riau-Lingga Sultanate".
The first period: 1512 to 1641
12. For the purpose of my presentation, the history of the Johor Sultanate can be divided, roughly, into four periods. The first period, is from 1512 to 1641. During this period old Johor was constantly harried by the Portuguese and the Kingdom of Aceh (a Malay kingdom in northern Sumatra)51. Malaysia's history consultant, Professor Andaya, recorded that Johor's capital was sacked 15 times between 1518 and 162352. There is no evidence that the Sultanate claimed or exercised authority over Pedra Branca during the first period.
The second period: 1641 to 1699
13. The second period, from 1641 to 1699, began when, in 1641, the Dutch, in alliance with Johor, drove the Portuguese out of Malacca. This alliance changed its political fortunes and this period was one when the power and influence of Johor was at its height. Yet, there is also no evidence that the Sultanate claimed or exercised any authority over Pedra Branca during this second period. In any event, the Sultanate was soon weakened by internal conflicts and began to decline rapidly during the final years of the reign of Sultan Mahmud II (1685-1699). Concerning these years, Professor Andaya has written: "In just two years [1697 to 1699] Johor had changed from the acknowledged leading entrepot in the Malay world to a small backwater port."53
The third period: 1699 to 1784
14. In 1699 Sultan Mahmud II was assassinated by his leading nobles. This marked the beginning of the third period, lasting from 1699 to 1784. The death of Sultan Mahmud II without an heir led to a period of internal strife and instability, during which many vassals broke away from the Johor Sultanate. Stability within the Sultanate was only regained more than 20 years later, when it began to prosper again. However, the prosperity was short-lived. By 1784, the Sultan, having been defeated by the Dutch, had to sign a treaty making himself a vassal of the Dutch54. Concerning this treaty, Winstedt has written in his book A History of Johore: "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."55 (Emphasis in original.) Winstedt also wrote: "Naturally during all these years the old mainland kingdom of Johor had sunk into insignificance."56
There is also no evidence that the Sultanate claimed or exercised sovereignty over Pedra Branca during this third period.
The fourth period: 1784 to 1824
15. The 1784 Treaty marked the beginning of the fourth and final period in the history of the Johor Sultanate. In 1787, the Sultan drove the Dutch out of his capital, Riau, but he himself was driven out later that year. He was not allowed to return to Riau until 1795. Commenting on this period, Andaya wrote: "The catastrophic events of these years, when the Malay ruler exercised little authority and the economy was moribund, ended any hopes that Riau might once again assume its former position in the Malay world."57 Singapore has referred to similar opinions of other reputable historians in her written pleadings58. Even the official 1949 Annual Report published by the Government of the State of Johor noted that by the beginning of the nineteenth century "the old empire was in a state of dissolution"59. This was the political condition of the Sultanate in 1819 when the British arrived in Singapore, and on the eve of the signing of the Anglo-Dutch Treaty of 1824.
Malaysia's treatment of the historical setting
16. Mr. President and Members of the Court, allow me now to highlight Malaysia's treatment of the historical setting in her written pleadings.
17. First, Malaysia's historical account has simply ignored the political condition of the Johor Sultanate during the greater part of the 300 years of its existence. Malaysia has focused on the second period from 1641 to 1699 and has highlighted two Dutch internal letters60 from that period to show the extent of the Sultanate in the seventeenth century. From these two letters, Malaysia takes a big leap in logic by asserting that "[t]he general extent of the Sultanate of Johor was much the same at the beginning of the nineteenth century"61. These two letters were not concerned with territory but with trade62. Hence, they do not prove the territorial extent of the Sultanate in the seventeenth century, much less at the beginning of the nineteenth century.
18. Malaysia has ignored the first and third periods and most of the fourth period of the history of the Sultanate. She has ignored the last 150 years of the Sultanate's history leading to its dissolution. She has wrongly portrayed the Sultanate as powerful and unchanging throughout its existence when the historical evidence shows the contrary.
19. Secondly, Malaysia's exorbitant conclusion from two irrelevant events in the seventeenth century shows the profound weakness in her claim that the Johor Sultanate ever had an original title to Pedra Branca. By the time she filed her Counter-Memorial, Malaysia realized she was staring into an evidentiary void, and this caused her to advance an argument that Pedra Branca was part of the Sultanate from time immemorial63. This is no more than clutching at straws. The burden remains at all times on Malaysia to produce specific proof that old Johor had sovereignty over Pedra Branca and carried out acts of a sovereign nature on or over the island. Malaysia has produced no evidence whatever in this regard. Mr. President and Members of the Court, Malaysia cannot avoid this burden of proof by simply asserting immemorial possession.
Part III. Malaysia's failure to consider the traditional Malay concept of sovereignty
20. Allow me now to elaborate on the second inconvenient fact that Malaysia has glossed over, namely the traditional Malay concept of sovereignty. This concept undermines Malaysia's claim to an original title. It is based mainly on control over people, and not control over territory. Traditional Malay sovereignty is people-centric and not territory-centric. This is authoritatively stated by Professor Anthony Milner of the Australian National University in his book entitled Kerajaan: Malay Political Culture on the Eve of Colonial Rule. I will read out an extract from the book, which I have included in the judges' folder at tab 10:
"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: a Sultan of Trengganu, for instance, admitted to an English enquirer in 1875 that it was not known 'where the Trengganu boundary ran'. The actual location of the Malay state, in fact, appears to have been a matter of relatively little importance."64 (Emphasis in original.)
21. Similarly, Professor Nicholas Tarling, an expert on south-east Asian history, has also written:
"The idea that the ambit of a state 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."65 (Emphasis added.)
Singapore has, in her Counter-Memorial, referred to these quotations and similar views of other experts on Malay history and political culture66. They are unanimous on this point.
22. Malaysia is fully aware of this concept. She relied on it in the Sipadan/Ligitan case. There, she filed a study by Professor Vincent Houben on the Malay sultanate of Bulungan, in which he quoted Milner's passage with approval. After Singapore had pointed this out in her Counter-Memorial67, Malaysia filed a new opinion from Professor Houben to make, basically, two points:
More importantly, Professor Houben did not dispute that the traditional Malay concept of sovereignty was people-centric and not territory-centric69.
23. In her Reply, Malaysia has also put in a report by Professor Andaya70, who, of course, accepts the nature of the traditional Malay sovereignty71. In fact, Professor Andaya has also written in 2001 as follows:
"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 established the territorial boundaries between neighbouring states."72 (Emphasis added,)
It was only in the late nineteenth century when the Malay States progressively came under British administration that the traditional Malay concept of sovereignty gradually evolved into the modern concept of territorial sovereignty.
Implications of the traditional Malay concept of sovereignty for Malaysia's case
24. Mr. President and Members of the Court, allow me 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. In her Counter-Memorial, Singapore has referred to two such instances directly applicable to Johor. The first is a letter written to the Government of India by the Resident of Singapore, John Crawfurd, regarding the claim of the Temenggong, the local ruler of mainland Johor, to certain islands. Even though other rulers did not dispute the Temenggong's claim, Crawfurd explained that the claim was "more satisfactorily ascertained by the voluntary and cheerful allegiance yielded to him by the inhabitants"73. In 1849, a British official called Thomson ⎯ the same Thomson who supervised the construction of Horsburgh lighthouse ⎯ undertook a survey of the east coast of Pahang, Johor and adjacent islands. He found that the ownership of some of these islands was uncertain, and that he was only able to determine whether they belonged to Pahang or Johor by asking the inhabitants whom they owed allegiance to74.
25. Secondly, the concept also means that it was difficult to determine with accuracy the territorial extent of the Johor Sultanate at any time. In this connection, I wish to point out that during the drafting of the Anglo-Dutch Treaty, the negotiators decided to replace the phrase "any of the remaining of the islands belonging to the ancient kingdom of Johor" with the phrase "any of the other islands South of the Straights of Singapore"75. The reason for the change was that the negotiators agreed that: "no one could claim to be able to define the limits of the ancient Sultanate of Johore with any degree of certainty"76.
26. This would certainly be the case with regard to barren, isolated and uninhabited islands, such as Pedra Branca. Therefore, unless Malaysia can produce clear evidence of a direct claim to or the actual exercise of sovereign authority over Pedra Branca, any attempt to argue that the island belonged to old Johor is totally devoid of merit. It is not enough for Malaysia to plead geography or immemorial possession to prove original title. Malaysia must produce concrete evidence of specific acts of sovereign authority by old Johor on or over Pedra Branca. Malaysia has provided no such evidence. In contrast, Singapore has adduced sufficient evidence to show that no one, including the Malay rulers, thought that Pedra Branca belonged to old Johor.
27. To conclude my submission on Malaysia's first proposition, Malaysia has not proved, nor is there any evidence that Pedra Branca ever belonged to old Johor.
Part IV. The effect of the Anglo-Dutch Treaty of 1824
28. Let me now turn to Malaysia's second proposition ⎯ that Pedra Branca became part of new Johor. Malaysia tries to prove this proposition by arguing that the effect of the Anglo-Dutch Treaty was to split the Johor Sultanate into two parts and to place Pedra Branca in the northern part within the British sphere of influence, thus allocating it to new Johor. This is a misinterpretation of the Treaty.
Origins and context of the Anglo-Dutch Treaty of 1824
29. To make good Singapore's point, it is necessary to discuss the origins of the Anglo-Dutch Treaty. The origins can be traced back to two events ⎯ the French conquest of the Netherlands in 1795, and the death of Sultan Mahmud III of Johor in 1812, leaving a succession dispute between his two sons, Hussein and Abdul Rahman. In 1795, Britain took control of the Dutch colonial possessions in the east to deny them to the French. When war ended in 1814, Britain agreed to return these possessions to the Dutch. A number of disputes arose between the British and the Dutch regarding the British occupation of these possessions. These disputes led to the negotiations which culminated in the signing of the Anglo-Dutch Treaty.
30. In 1818, the Dutch resumed control of Malacca and Riau, the two most important ports in the region. Britain needed to establish another trading station along the Straits of Malacca and Singapore. The British official assigned to do this, Sir Thomas Raffles, landed in Singapore in January 1819. He met the local chief, called the "Temenggong", who explained that, as an official of the Johor Sultanate, he needed his Sultan's approval for Raffles to establish a trading station. But as the Sultan, Abdul Rahman, was under Dutch control, Raffles could not get his consent. However, Raffles knew that the Johor throne was disputed by his elder brother, Hussein. Raffles enticed Hussein to come to Singapore with a promise to install him as Sultan. When Hussein arrived in Singapore in February 1819, Raffles installed him as Sultan of Johor. On the same day, Hussein signed an agreement to allow Britain to set up a trading station in Singapore.
31. Raffles's action resulted in the Johor Sultanate having two nominal rulers, one living in Lingga under Dutch protection, and the other living in Singapore under British protection. The Dutch disputed the legitimacy of the British presence in Singapore. This dispute was also resolved by the Anglo-Dutch Treaty, with the Dutch withdrawing their objections.
32. The Treaty settled the parties' territorial disputes by providing for a mutual exchange of possessions north and south of the Straits of Malacca and Singapore. This resulted in British possessions being concentrated to the north of the Straits, and the Dutch possessions concentrated to the south. The Treaty also prohibited the British from establishing themselves south of the Straits and the Dutch from establishing themselves on the Malay Peninsula. This was done to avoid future commercial conflicts between their respective subjects. These provisions effectively divided the region into two spheres of influence.
Malaysia's arguments concerning the Anglo-Dutch Treaty of 1824
33. I will now address Malaysia's arguments on the effect of the Anglo-Dutch Treaty. On screen now is Insert 6 of Malaysia's Memorial77. Malaysia proceeds by imagining that the Treaty drew "a line of demarcation" - these are Malaysia's words - in the Singapore Strait from "Carimon . . . to Bintan" and placed Pedra Branca north of this line in the British sphere of influence78. When this line is traced along the areas imaginatively shaded by Malaysia, you will see that it conveniently places Pedra Branca, Middle Rocks and South Ledge north of the line. That is Malaysia's argument. With respect, all that Malaysia has done is to imagine a non-existent line in order to show an imaginary transmission of an imaginary original title.
34. Mr. President and Members of the Court, if there were such a demarcation line running through the Singapore Strait, the line would have run north, as shown on screen, instead of south of Pedra Branca for two reasons: first, Pedra Branca where it lies is not associated with either Johor or Bintan, and second, the island is nearer to the coast of Bintan than to the coast of Johor. That would have been the logical and natural way to draw the line. This shows the artificial and self-serving nature of Malaysia's imaginary line. No less an authority than Winstedt has written that the Anglo-Dutch Treaty "allotted to Great Britain the Malay peninsula and to Holland all the islands lying to starboard of East Indiamen voyaging to China . . ."79. The expression "starboard" means "the right-hand side". As Pedra Branca, Middle Rocks and South Ledge are starboard of vessels sailing towards China, they all lie south, rather than north, of Malaysia's imaginary line.
35. The fact is that the Anglo-Dutch Treaty did not contemplate any demarcation line. This is clear from the negotiating history of the Treaty. An earlier draft of the Treaty inserted an article providing for a demarcation line. But this article was omitted when the text of the Treaty was finalized80.
36. The text of the Anglo-Dutch Treaty also confirms that there is no line. On screen now are the texts of Articles X and XII of the Treaty81. Article X excludes the Dutch from "any part of the Peninsula of Malacca", that is the Malay Peninsula, while Article XII excludes the British from "any of the islands South of the Straights of Singapore". There is no provision excluding either State from any part of the straits or any islands within the Strait. In other words, the Treaty did not divide up the Strait between the two Powers. The width of the entire Strait was left open for access by both States, as was intended.
37. The understanding of the Dutch is very clear. So is that of the British, as I will explain shortly. In an internal Note of the Dutch Ministry of Colonies dated 15 October 1858, it was explained that: "The definitive article 12 evidently reflects this concern, as this is adopted into the treaty, with reference to the Straits of Singapore as the dividing line."82 (Emphasis added.) This Note expressly describes the whole of the Straits of Singapore as the dividing line.
38. The disposition of the islets lying within the Straits was not specifically addressed by the Treaty, but was worked out subsequently over the years as a matter of State practice. This point is clearly illustrated in the correspondence dated 1 October 1824 and 4 March 1825 between the Resident of Singapore, John Crawfurd, and the Government of India where they both agreed that the cession of all the islands within ten miles from the coast of Singapore did not breach the terms of the Treaty83. Copies of these two letters are found in the judges' folder at tab 12. The Treaty did not divide up the waters of the Straits of Malacca and Singapore. It was not until 1969 that the maritime boundary was agreed between Malaysia and Indonesia in the Straits of Malacca, and not until 1973 that a boundary in the Singapore Strait was agreed between Singapore and Indonesia.
39. In addition to using an artificial demarcation line to prove succession of title, Malaysia has also misinterpreted the effect of the Anglo-Dutch Treaty in the breaking up of the Johor Sultanate. Malaysia's Memorial describes the division of the Sultanate as follows:
"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 southern part of Malay Peninsula and came within the British sphere. The other, the Sultanate of Riau-Lingga, was within the Dutch sphere of influence and was to the south of Singapore Strait."
In this passage, Malaysia claims that new Johor, and not Riau-Lingga, was the continuator of the Johor Sultanate.
40. Singapore disagrees. Malaysia's claim is contradicted by no less an authority than Sir Richard Winstedt, who wrote in his book, Malaya and Its History:
"To the Johore Sultanate was left only the Riau archipelago, while the two greatest Malay chiefs of the broken empire were cut off at Pahang and Johore from the overlord in the Riau area, and soon made themselves independent Sultans."85 (Emphasis added.)
Windstedt makes it clear that the Riau archipelago, that is, Riau-Lingga, was the continuator of the Johor Sultanate, and not new Johor. Winstedt further explains that the Johor Sultanate was split into three parts, not two. On the Malay Peninsula, two new States emerged ⎯ Pahang and new Johor.
41. Malaysia hopes that, by presenting new Johor as the continuator of old Johor, she can avoid the burden of showing how old Johor's alleged title to Pedra Branca was transmitted to Malaysia. Since new Johor was a breakaway fragment, and not the continuator of old Johor, it is incumbent on Malaysia to produce clear evidence not only to show when and how title to Pedra Branca first came to be vested in old Johor, but also to show how the island came to be transmitted to new Johor. It is respectfully submitted that Malaysia has failed to do both.
Sultan Abdul Rahman's donation of 1825
42. Mr. President and Members of the Court, allow me now to direct your attention to another piece of evidence that also undermines completely Malaysia's theory of title transmission. The practical effect of the Treaty on the Johor Sultanate was that Sultan Abdul Rahman could no longer exert any power over his mainland territory of Johor and Pahang. On the advice of the Dutch, he accepted the political reality and, in 1825, formalized the division by donating mainland Johor and Pahang to his brother, Sultan Hussein86.
43. The terms of the donation are highly significant. They specified how much and which parts of the Sultanate's territory were being donated by Sultan Abdul Rahman to Sultan Hussein.
A copy of the translated text of the letter is in the judges' folder at tab 13. I will read out the extract shown on screen:
"Your Brother [Abdul Rahman] sends you [Hussein] this letter . . . to give you notice of the conclusion of a treaty between His Majesty the King of the Netherlands and His Majesty the King of Great Britain, whereby the division of the lands of Johor, Pahang, Riau and Lingga is stipulated.
The parts of the lands assigned to you, My Brother, I donate to you with complete satisfaction, and sincere affection . . .
You are already familiar with the borders of our respective empires. But in order to make the matter clear and transparent, Your Brother wishes through this friendly letter to provide a detailed description.
Your territory, thus, extends over Johor and Pahang on the mainland or on the Malay Peninsula. The territory of Your Brother [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. On the basis of these premises, I earnestly beseech you that your notables, the Bendahara of Pahang and Temenggong . . . will not in the slightest concern themselves with the islands that belong to your Brother."87
It is clear from this letter that "[w]hatsoever may be in the sea" is the territory of Sultan Abdul Rahman, and "whatever is situated on the mainland" is the territory of Sultan Hussein. The donation letter shows that Malaysia's theory that Pedra Branca was allocated to Sultan Hussein as a result of the Anglo-Dutch Treaty is plainly wrong.
Part V. Developments in peninsular Johor after 1824
44. I come now to the last part of my presentation, which concerns political developments after 1825 in peninsular Johor, which was under the control of the Temenggong. Professor Houben, in his report, has described the Temenggong's territorial domains as consisting of "a ring of islands in the northwestern part of the Riau Archipelago and included Singapore and a portion of the Johor coastline"88. Professor Houben's source of information is Carl Trocki's 1975 doctoral thesis on the Temenggongs of Johor. Trocki's thesis contains a map which shows the domains of the Temenggongs between 1818 and 1823. This same map is reproduced in Trocki's book, The Prince of Pirates, which I referred to earlier. This map, now shown on screen, and found in the judges' folder at tab 14, shows that Pedra Branca did not fall within the Temenggong's domains89.
45. Sultan Hussein, the nominal ruler of peninsular Johor, died in 1835, leaving a ten-year-old son, Ali, as his heir. For political reasons, the British refused to recognize Ali as Sultan. In 1855, the British brokered a settlement between Ali and the Temenggong, by which the Temenggong recognized Ali as Sultan and agreed to pay him a certain sum of money, in return for which Ali, as Sultan, signed a Treaty of Friendship and Alliance and ceded to the Temenggong "full sovereignty and absolute property" over "the whole of the territory of Johore within the Malayan Peninsula and its dependencies, with the exception of the Kassang territory"90. This Treaty marked the formal establishment of modern Johor or the State of Johor, which later became part of Malaysia.
46. I ask the Court to note the terms of the treaty. Pedra Branca is certainly not "within the Malayan Peninsula". It is an isolated feature in the sea 7.7 nautical miles from the Johor mainland. Furthermore, in 1855, Pedra Branca could not have been a dependency of mainland Johor since Sultan Abdul Rahman had omitted all islands in the sea from his donation to Sultan Hussein. It follows that whether or not Pedra Branca ever belonged to the Johor Sultanate, it never became part of the State of Johor. What Hussein did not have, his heir, Ali, could not give ⎯ nemo dat quod non habet.
47. Finally, let me complete this part of my presentation by referring to an incident that occurred in 1861, six years after the signing of the 1855 Treaty. The Governor of Singapore had sought an explanation from the Temenggong on a complaint made by some fishermen from Singapore that they had been harassed by subjects of Johor while fishing near Pedra Branca. The Governor requested that the offenders be punished. The Temenggong did not assert that he had jurisdiction or authority over Pedra Branca or its waters. Instead, he replied to the Governor to explain that the incident happened somewhere else, within three miles off Johor. This episode is fully analysed in Appendix B in Singapore's Reply.
48. Mr. President and Members of the Court, allow me now to end my presentation with the following remarks. In a Malay sultanate ⎯ the Johor Sultanate included ⎯ sovereignty was based on control of people rather than control of territory. This means that the Johor Sultanate did not have clearly defined boundaries and it was difficult to determine with accuracy the territorial extent of the Sultanate at any time. Since Malaysia has claimed an original title to Pedra Branca, she must produce clear evidence of such a title. Malaysia has not done so. There is no evidence that Pedra Branca belonged to the Johor Sultanate at any point in its history and certainly not at the beginning of the nineteenth century. Furthermore, for reasons I have mentioned, Pedra Branca did not become part of new Johor after 1824, and therefore never became part of Malaysia.
I wish to thank you for your attention. May I now invite you to call on Professor Pellet to continue with Singapore's presentations in the first round.