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 on 8 November 2007
The VICE-PRESIDENT, Acting President: Please be seated. The sitting is open and I give the floor to Mr. Bundy.
Mr. BUNDY: Thank you very much, Mr. President.
THE CONTINUOUS EXERCISE OF STATE AUTHORITY BY SINGAPORE ON PEDRA BRANCA FROM 1851 TO THE PRESENT
Mr. President, Members of the Court. As always, it is a privilege for me to appear before this Court and it is also an honour for me to represent the Republic of Singapore in this important case. May I also take this opportunity, on behalf of myself and my colleagues, to extend our best wishes to all those in the courtroom who celebrate the Hindu Holy Day of Dipabali today.
Introduction
1. Yesterday Mr. Brownlie explained the roots of Singapore's title over Pedra Branca ⎯ a title which resulted from the lawful occupation and possession of the island by Great Britain, Singapore's predecessor in interest, during the period from 1847 to 1851. My task this morning is to address the subsequent exercise of State authority carried out by Singapore after 1851 by which Singapore confirmed and maintained the title that it had previously acquired.
2. By any standard, Singapore has produced with its written pleadings an impressive quantity of contemporary documentary evidence demonstrating the wide range of sovereign activities it performed on Pedra Branca. These activities represent a pattern of conduct that was undertaken à titre de souverain and which has been carried out on a continuous basis for over 150 years right up to the present. For almost all of this period ⎯ in fact, for 130 years, from 1847 until 1979 when Malaysia first raised a claim to Pedra Branca ⎯ Singapore's conduct on the island went completely unopposed by Malaysia. Not only did Malaysia not once protest any of Singapore's activities carried out on Pedra Branca during this extended period, it never carried out any competing activities on the island of its own.
3. Malaysia's complete inactivity with respect to Pedra Branca is simply the reverse side of the coin of Singapore's constant exercise of sovereign authority on and over the island. The two elements are entirely consistent. Singapore carried out a steady stream of activities on Pedra Branca, starting in 1847, while Malaysia did absolutely nothing. Professor Pellet and Ms Malintoppi later this morning will be addressing Malaysia's conduct, and tomorrow Professor Pellet will discuss Malaysia's express disclaimer of ownership over Pedra Branca in 1953. My purpose this morning is to review the factual and legal significance of Singapore's long-standing pattern of conduct over Pedra Branca and within its territorial waters, starting in 1851.
4. In taking up this task, I cannot fail to recall what Malaysia had to say on the subject of State conduct relating to disputed territory during the oral hearings held in this courtroom five years ago in the Indonesia/Malaysia case, which also concerned two other small islands in the region, the islands of Pulau Ligitan and Pulau Sipadan. During those oral hearings, in the words of Malaysia's counsel:
[slide]
"first I must stress again a basic and inescapable historical fact. These islands are now in the possession of Malaysia, subject to its control and administration, and they have 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 authority on the islands. Indonesia is effectively a claimant attempting to oust the State in possession from its long-possessed territory." (CR 2002/30, Sir Elihu Lauterpacht, p. 30, para. 12.)
5. If anything, this statement applies with even greater force in the present case where Singapore has shown both a prior legal title stemming from the activities of Great Britain in the period 1847 to 1851, discussed by Mr. Brownlie yesterday, and sovereign acts in confirmation of that title that are far more intensive than the scattered examples of effectivités that Malaysia adduced during the Ligitan/Sipadan case. Thus, if we change the language of Malaysia's argument in the Ligitan/Sipadan case to fit the present case, Malaysia's observation is an apt description of the situation in which the Parties now come before you in these proceedings. If I can borrow the relevant language, I would say as follows. First, I must stress again a basic and inescapable historic fact. These islands, Pedra Branca, Middle Rocks, South Ledge, are now in the possession of Singapore, subject to its control and administration and they have been so at all material times for more than a century and a half. There is not a glimmer of actual display of Malaysian State activity on the islands. Malaysia is effectively a claimant attempting to oust the State in possession from its long-possessed territory. That is what we have in this case.
[On slide, now replace "Malaysia" with "Singapore" and replace "Indonesian" and Indonesia" with "Malaysian" and "Malaysia".]
1. The wide range of Singapore's administration and control and the long period during which such conduct was carried out
6. I mentioned earlier that Singapore's administration and control of Pedra Branca has a long and unopposed pedigree. In addition to the activities described by Mr. Brownlie, the story continues in 1851 after the British had taken possession of the island and constructed the Horsburgh lighthouse.
(a) Notices to mariners issued from Singapore starting in 1851
7. In September of that year, the Governor of the Straits Settlements, the most senior British official based in Singapore, issued a Notice to Mariners announcing that the lighthouse had been erected on Pedra Branca (MS, Ann. 56). And other such Notices to Mariners were issued from Singapore in the years following and have been documented in the written pleadings. It was also in 1851 that a complement of staff from Singapore took up residence on the island.
8. Malaysia contends that Notices to Mariners are irrelevant for questions of sovereignty. Well, that may be Malaysia's position now, but it was not the view that it expressed when it appeared before this Court in the Indonesia/Malaysia case five year's ago. There, Malaysia expressly relied on the construction and notification by means of Notices to Mariners of unmanned lights it had built on the two islands in dispute in that case, and Malaysia further argued that those actions were a straightforward reflection of Malaysia's sovereignty which had never been challenged by Indonesia (RM, p. 75). Consistency appears to have its limits for Malaysia when territorial questions are at issue.
(b) The flying of the Singapore marine ensign on Pedra Branca
9. It was also during this same period from 1851 that the British marine ensign began to be flown on the lighthouse. Subsequently, the British ensign was replaced by the Singapore ensign, but the flag has been displayed continually for over 150 years in an open and notorious manner and as a clear manifestation of sovereignty.
10. Malaysia is sensitive to this fact, and rightly so, given the important implications that such actions give rise to as evidence of sovereignty, as has been held in cases such as the Island of Palmas arbitration and in the Temple of Preah Vihear case (2 RIAA 829, p. 870; I.C.J. Reports 1962, p. 30). Consequently, Malaysia is forced to complain that the flag was small and difficult to identify, and that it was therefore not displayed in an open and notorious manner calling for any reaction.
11. Now these are highly defensive arguments which are singularly unpersuasive when other aspects of Malaysia's conduct are taken into consideration. How, how, for example, can Malaysia suggest that it was unaware of the presence of the Singapore ensign on Pedra Branca and at the same time try and impress upon this Court that Malaysia regularly patrolled the waters around the island and that one of its naval officials even landed on the island, scampered up the rocks according to his affidavit in 1962? If Malaysia failed to notice the flag or appreciate its significance, then this simply underscores Malaysia's complete lack of interest in Pedra Branca. Conversely, if Malaysia was aware of the flag, then it should have reacted if it genuinely considered that it possessed sovereignty over the island.
12. Let me pause on this issue for a moment. As the evidence on the record in the written pleadings demonstrates, Malaysia certainly knew how to protest the flying of the Singapore marine ensign when Malaysia considered that the emblem was being displayed on Malaysian territory. Here, I am speaking about an incident that occurred with respect to another island in the area where a lighthouse was located, Pulau Pisang.
[Place map on screen showing Pedra Branca and Pulau Pisang]
13. Pulau Pisang, which the Court will see from the map on the screen, is a small island which unquestionably belongs to Malaysia. Nonetheless, pursuant to an agreement dating from 1885, which was subsequently confirmed by a written indenture in 1900 - and that indenture has been filed with the pleadings (MM, Ann. 89 and CMS, Ann. 24) -, the Ruler of mainland Johor granted to Singapore the right to operate and maintain a lighthouse on Pulau Pisang. Until 1968, Singapore flew its marine ensign over the lighthouse on Pulau Pisang.
14. In 1968, however, Malaysia made a diplomatic protest to Singapore about this ensign and requested that Singapore issue instructions to bring the flag down as soon as possible. Malaysia's actions were the result of a complaint that the Malaysian Ministry of Foreign Affairs had received from an internal Malaysian political constituency that the Singapore flag was being flown over Malaysian territory.
15. Singapore respected Malaysia's request and lowered the flag on Pulau Pisang. What is significant however is that Malaysia made absolutely no similar request concerning the identical flag that Singapore flew at Pedra Branca. There was not even a hint of a suggestion from Malaysia at the time that Singapore should lower the flag at Pedra Branca as well because the island belonged to Malaysia.
16. I shall be returning in a later presentation to discuss other key differences in the way in which Malaysia acted with respect to islands on which lighthouses were located where Malaysia possessed sovereignty, such as Pulau Pisang, and islands where sovereignty rested with Singapore, such as Pedra Branca. For present purposes, I would simply note that the only explanation for Malaysia's inconsistent attitude is that it did not regard itself as possessing sovereignty over Pedra Branca. Had it thought differently, it undoubtedly would have and should have made a similar diplomatic démarche about the Singapore flag being flown on Pedra Branca. Of course, as Professor Pellet will explain a little later, Malaysia's inaction was entirely consistent with its earlier confirmation in 1953 that Malaysia did not claim ownership over Pedra Branca.
(c) Legislative activities relating to Pedra Branca
17. Let me now turn to the legislative measures that Great Britain enacted dealing with Pedra Branca. Evidence of such activities relating to the specific territory in dispute is unquestionably of prime importance as an indication of administration and control. As the Permanent Court stated in the Eastern Greenlandcase, "Legislation is one of the most obvious forms of the exercise of sovereign power" (Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 48).
18. In 1852, just after Great Britain had acquired sovereignty over Pedra Branca, the Government of India enacted Act No. VI of 1852, which specifically related to Pedra Branca. The relevant part of this legislative measure, which the judges will also find in tab 31 of their folders, provided as follows:
[slide]
"Section I
The Light-House on Pedra Branca aforesaid shall be called 'The Horsburgh Light-House' and the said Light-House, and the appurtenances thereunder belonging or occupied for the purposes thereof, and all the fixtures, apparatus, and furniture belonging thereto, shall become the property of, and absolutely vest in, the East India Company and their successors."
The Act went on in Section IV to state:
[slide]
"The management and control of the said 'Horsburgh Light-House', and of the keeper thereof, and of everything relating thereto, is hereby vested in the Governor of the Straits Settlements." (MS, Ann. 59.)
19. There are a number of important points which deserve to be mentioned in connection with this legislation.
20. First, as the Act makes clear, it dealt expressly with Pedra Branca and the lighthouse on the island. In other words, the legislation was specific to the territory in dispute.
21. Second, the 1852 Act was clearly a sovereign act. It was adopted by the Government of India and vested in the East India Company and its successors the lighthouse and all appurtenances occupied for the purposes thereof as well as the management and control of everything related thereto. As Singapore has shown, the extensive public works it carried out on the island effectively covered the entire island just as did the activities of the British Crown undertaken from 1847 to 1851 discussed by Mr. Brownlie yesterday.
22. Third, although Malaysia makes a thin attempt to argue that the 1852 Act was only a matter of private law, this is clearly not the case. The Act was a public act taken by the Government of India, which had no power to legislate extraterritorially. Moreover, the acts of the British East India Company, just as Judge Huber held in the Island of Palmascase with respect to the East India Company's counterpart, the Dutch East India Company, were entirely assimilated to the acts of the State itself (2 RIAA, p. 858).
23. Fourth, the 1852 Act made no mention of any indenture or permission that Malaysia alleges had been granted by the Ruler of Johor for the establishment of the Horsburgh lighthouse. Had such a document existed ⎯ and Singapore has shown that it did not ⎯ it inevitably would have been referred to. By the same token, neither Johor nor Malaysia ever reacted to the 1852 Act or protested it.
24. All of these considerations underscore the fact that the 1852 Act was a classic example of State activity carried out à titre de souverain on the very territory now in dispute.
25. Later in 1852, a second light, a new floating light was established by the East India Company on a submerged sandbank known as the 2½ fathom bank. This light was subsequently replaced by a permanent fixture on a nearby feature known as the "One Fathom Bank", and you can see its location on the screen.
[slide]
[Map showing location of 2½ fathom bank light]
26. Malaysia asserted in its Counter-Memorial that this light was established with the permission of the local Malay Ruler (CMM, p. 155), but Malaysia produced no evidence to support that contention and the contention is incorrect. There was no Malay permission for the East India Company to erect the light ⎯ a fact which actually is perfectly understandable when it is recalled that the light was situated some 15 miles off the mainland coast in the high seas on a submerged sandbank not susceptible to appropriation.
27. Two years later, Act No. XIII of 1854 was enacted replacing the 1852 Act (MS, Ann. 62). The 1854 Act continued to provide that the lighthouse on Pedra Branca and all of its appurtenances belonging thereto or occupied for that purpose were vested in the East India Company and its successors.
28. In contrast, there was no language in the 1854 Act vesting the 2½ fathom light in the East India Company in trust for the British Crown as there was for the lighthouse on Pedra Branca where sovereignty had been established. With respect to the 2½ fathom Light, the 1854 Act simply provided that its "management and control" ⎯ nothing else ⎯ vested in the Governor of the Straits Settlements, because the sandbank on which the light was situated was not capable of appropriation or under British sovereignty. And this, once again, illustrates the sovereign nature of both the 1852 and 1854 Acts with respect to Pedra Branca.
(d) Singapore's continuous staffing, maintenance and improvement of the lighthouse on Pedra Branca and its construction of other facilities on the island
29. During the entire period from 1851 to the present, Singapore has been the sole party to staff, maintain and improve the lighthouse on Pedra Branca, and it has similarly been the only party to erect other installations on the island and to use the island for public works. All of this has been fully documented in Singapore's written pleadings, and Malaysia, in contrast, has remained totally inactive with respect to the island.
30. Permit me to give the Court a flavour of the kinds of activities that Singapore carried out on Pedra Branca from 1851 all the way up to the present.
31. In 1853, and again in 1902, the authorities in Singapore commissioned the expansion of the jetty on Pedra Branca and constructed a landing stage on the island (MS, Anns. 70, 74 and 75). This work was carried out pursuant to an open tendering process that was publicized at the time in the Straits Settlements Government Gazette with tenders for the works to be submitted to the Colonial Secretary's Office in Singapore. Those actions were clearly of a sovereign character administered by Singapore government officials. Despite their public nature, Singapore's actions did not elicit the slightest reaction from Malaysia.
32. Nor did Malaysia react when Singapore built radar reflectors on the island, and radio beacons, and a new alternator room, enlarged crew quarters, boat davits, solar panes and other facilities on the island, or when Singapore installed military communications equipment on Pedra Branca in 1977. These were all quintessentially acts of a sovereign nature on the ground, which took place on a steady basis both before and after 1953 when Malaysia disclaimed ownership over Pedra Branca.
33. Throughout this period ⎯ in other words, for over 150 years ⎯ the lighthouse was staffed and provisioned from Singapore. The original staffing plans for Pedra Branca dated from 1851 and were approved by Governor Butterworth, who also approved the expenses relating to the salaries of the personnel stationed on the island and, as the need arose, the staff on Pedra Branca was supplemented periodically by maintenance and repair crews. On the other hand, and in sharp contrast, no one from Malaysia, or its predecessors, was ever stationed on Pedra Branca whether before 1851 or afterwards ⎯ never.
(e) Singapore's exercise of jurisdiction and control over Pedra Branca
34. A State naturally regulates visits by foreigners to its territory, and Singapore was no exception when it came to Pedra Branca. This also has been amply documented in Singapore's written pleadings in which Singapore has produced, amongst other evidence, copies of the logbooks that were kept by Singapore personnel on the island documenting the many visits and other activities that Singapore regulated with respect to Pedra Branca (MS, Ann. 87).
35. What is particularly significant is that Singapore's control of access to Pedra Branca extended to Malaysian nationals as well as to nationals of third States. Two incidents in particular stand out which evidence not only Singapore's exercise of administration and control over the island, but also Malaysia's recognition of that fact.
36. The first took place in March 1974 when a number of Malaysian officials sought permission from Singapore to visit Pedra Branca as part of an international team to carry out tidal surveys. In order to obtain the necessary approval from Singapore government ministries, Singapore requested Malaysia to furnish the names and passport numbers of the individuals concerned and to indicate their proposed length of stay on the island (MS, Ann. 120). Once again, that attests to Singapore acting in a sovereign capacity with respect to the island. Malaysia duly complied with Singapore's request. Indeed, it was an officer of the Malaysian navy who provided the relevant details and who also confirmed that the Malaysian personnel landing on the island would be escorted by a representative of Singapore (MS, Ann. 122) and, accordingly, the survey team was allowed to land and stay at Pedra Branca. At no point did Malaysia ever intimate that Pedra Branca belonged to Malaysia or that Malaysian officials therefore had the right to visit the island without obtaining permission from Singapore.
37. That event of 1974 may be contrasted with a second episode that occurred four years later in 1978, when two officers from the Malaysian Survey Department arrived unannounced on Pedra Branca ostensibly to carry out further surveys. They were told in no uncertain terms by the Singapore lightkeeper that they could not be allowed to stay without prior permission from the Port of Singapore Authority and the Malaysian officials therefore left the island (MS, Ann. 136; RS, Ann. 51).
38. These incidents reflect two basic realities. The first is that Singapore acted à titre de souverain in controlling access to Pedra Branca, and the second, which was made particularly clear by Malaysia's acceptance of the need for it to obtain Singapore's permission to visit the island in 1974, is that Malaysia recognized Singapore's right to exercise such regulatory control. Malaysia's actions at the time were diametrically at odds with the position it adopts in these proceedings ⎯ namely, the proposition that Malaysia somehow enjoyed an historic title over the island.
39. Of course, Singapore did not discriminate when it came to vetting applications to visit Pedra Branca. Singapore, in its written pleadings, has also documented the fact that when nationals of third States wished to visit the island, whether for scientific research projects or otherwise, they needed to obtain, and did obtain, Singapore's prior permission to do so. I would respectfully refer the Court in this connection to the evidence Singapore has produced at Annex 117 and Annexes 151 to 154 of its Memorial, where this is documented.
40. At the same time, a number of high-ranking Singapore public officials have made official visits to Pedra Branca in addition to Singapore's naval personnel who frequently carried out operations there. These officials included the Minister of Communications, the Minister of Home Affairs, a Member of the Singapore Parliament, and police and military officials ⎯ and all of these are documented and can be found in the logbook that Singapore has filed (MS, Ann. 87). These visits were of a character normally carried out by a sovereign on its territory, and no permission was ever sought from Malaysia, which never protested. As such, the activities in question once again reflect the fact that Singapore consistently regarded itself as possessing sovereignty over the island and acted accordingly.
(f) Singapore's use of Pedra Branca for the collection of meteorological data
41. Another governmental use to which Singapore has constantly put Pedra Branca is for the collection of meteorological data. Malaysia may label this a routine activity carried out at many lighthouses, but this hardly detracts from the sovereign nature of such activities carried out on Singapore territory. As Singapore has shown, it collected meteorological readings from Pedra Branca ever since 1851, up to the present.
42. But that is not all: there is a further important aspect of this element of conduct to which I would like to draw the Court's attention, and that is the way in which Malaysia itself referred to such activities in its own official government publications.
43. The Court will recall from the written pleadings that, even during the period when meteorological observations were carried out on a pan-Malayan basis, the Malayan Meteorological Service was divided into a Singapore branch and a Federation of Malaya branch. Significantly, this Meteorological Service collected data on a territorial basis.
44. Let me place on the screen a number of extracts ⎯ which can also be found in tab 32 of your folders ⎯ these are a number of extracts, first, from the 1959 Summary of Meteorological Observations from the Malayan Meteorological Service (RS, Ann. 28). The Court will first note that the Malayan Service referred to 29 rainfall stations said to be situated "in Singapore", in addition to 43 auxiliary stations located in the Federation of Malaya. In other words, the location of the rainfall stations was referred to in Malayan official reports by reference to the territory in which they were located.
[slide]
[Place introductory paragraph from p. 190 of RS, Ann. 28 on screen]
45. The 29 stations "in Singapore" are all listed in this report, and the relevant page now appears on the screen. [Slide of p. 189 of RS, Ann. 28 "Singapore Rainfall Stations" on screen with Horsburgh lighthouse highlighted.] The Horsburgh lighthouse is expressly listed as one of the 29 stations in Singapore, just as the other 28 stations included on the list are also all unquestionably on Singapore territory.
46. As the Court knows, Singapore merged with the Federation of Malaya in 1963, and Singapore became independent two years later, in 1965. In 1966, consequently, the Summary of Meteorological Observations was published jointly by the Meteorological Services of Malaysia and Singapore. The 1966 Summary, as you can see on the screen [slide, RS, Ann. 35] and which is also in your folders to examine at your leisure, continued to list the station at Horsburgh lighthouse on Pedra Branca as one of the stations "in Singapore". One year later, in 1967, when Singapore and Malaysia began reporting meteorological information separately, Malaysia no longer listed any reporting stations in Singapore, including the station at Pedra Branca (RS, Ann. 36).
47. Let me emphasize again that this was an official Malaysian governmental publication which listed the meteorological station at Horsburgh lighthouse on Pedra Branca as being "in Singapore". The recognition by Malaysia of Pedra Branca's sovereign status is highly relevant, and it is also entirely consistent with the contemporaneous maps that were prepared by Malaysia's official mapping agency at the time: these will be discussed by Ms Malintoppi tomorrow. In short, the record concerning the collection of meteorological data fits comfortably ⎯ fits perfectly ⎯ within the overall pattern of conduct that so clearly emerges demonstrating Singapore's sovereign authority over Pedra Branca, and Malaysia's recognition of that sovereignty.
(g) Singapore's continued exercise of administration and control after the so-called "critical date"
48. Up to this point, I have focused on official acts of a governmental nature that Singapore carried out on Pedra Branca itself, and have shown that the acts performed by Singapore were striking, really quite remarkable, for their breadth and scope, encompassing both lighthouse and non-lighthouse public works carried out as a natural consequence of Singapore's sovereignty over the island. I have also purposely discussed events that transpired well before Malaysia first indirectly raised a claim to the island in 1979-1980 with the publication of its 1979 map. In other words, I have intentionally ignored, up to this point, discussing any of Singapore's effectivités carried out on Pedra Branca after the so-called "critical date", when Malaysia first advanced its claim, in order to reduce the scope for any controversy. As I hope I have shown, Singapore carried out an impressive array of State activities on a constant basis from 1851 to 1979.
49. Yet this in no way diminishes the legal effect of Singapore's continued administration and control of Pedra Branca after 1979 ⎯ administration and control that has endured right up to the present. As the Court so clearly articulated in the Indonesia/Malaysia case, acts which take place after a dispute has crystallized between the parties will be taken into consideration provided that they are "a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them" (I.C.J. Reports 2002, p. 682, para. 135, citing the Palena case).
50. With respect to Pedra Branca, it is apparent that Singapore continued to administer the island after Malaysia's belated claim emerged in 1979 in the same way Singapore had administered the island before that date. The nature of Singapore's conduct did not change one bit, and none of Singapore's post-1979 activities on Pedra Branca were in the least self-serving. They were ⎯ to borrow the Court's words ⎯ a "normal continuation of prior acts" carried out by Singapore.
51. For example, as discussed in Chapter 4 of Singapore's Reply, Singapore continued to staff, maintain and improve the facilities on Pedra Branca, as it had done before. It upgraded communications and lighting equipment, all of which had existed before, and it improved access to the island by constructing a helicopter landing pad to supplement the pier and the jetty, which had been in existence for over 100 years. It carried out a detailed topographical survey of Pedra Branca and a bathymetric survey of the surrounding waters, including Middle Rocks. Singapore also continued to investigate shipping incidents in the vicinity of Pedra Branca and continued to exercise jurisdiction over accidents occurring on Pedra Branca and within its territorial waters.
52. Singapore also continued to perform regulatory activities pertaining to the island, and issued legislation. For example, in 1991, Singapore issued the Protected Places (No. 10) Order of 1991, which provided that a number of places in Singapore, including Pedra Branca ⎯ which is named in the Order ⎯ were protected places and that all visits to such places required a permit from the Port of Singapore Authority (MS, Ann. 178). That legislation was entirely consistent ⎯ a normal continuation of prior acts ⎯ with the previous control of access to Pedra Branca that I discussed and that Singapore has always maintained.
53. Singapore also continued to explore the possibility of reclaiming areas around the island to enlarge its facilities, and open tenders were published for a reclamation project in 1978. Although that project was ultimately shelved, it represented yet another example of Singapore conducting itself as sovereign over the island to which Malaysia did not react.
54. Malaysia complains that these actions ⎯ post 1979 ⎯ were self-serving and undertaken after Singapore had begun to prepare its claim to Pedra Branca. But Singapore engaged in no such "preparation" of a claim. By 1979, Singapore's title over Pedra Branca, and its exercise of administration and control over the island, had been in existence for well over 100 years. It was Malaysia which was the Party that belatedly began to hatch a claim to Pedra Branca at the end of the 1970s. Moreover, as Singapore has documented and showed in its Reply, Singapore had already actively considered reclamation projects around the island as early as 1972, well before Malaysia first articulated its claim by issuing its 1979 map (RS, Ann. 42).
55. In short, Singapore scarcely needed to manufacture more effectivités on Pedra Branca after 1979. Prior to the emergence of Malaysia's claim, the British had taken lawful possession over the island during the period of 1847 to 1851, accompanied by the extensive public works discussed by Mr. Brownlie yesterday. The Dutch had recognized British sovereignty over Pedra Branca in 1850, and Singapore had carried out an unopposed stream of State activities on the islands for 130 years leading up to 1979. Singapore's administration and control over Pedra Branca simply continued thereafter, as it does today.
(h) Singapore's naval patrols around Pedra Branca and its investigation of shipping incidents within Pedra Branca's territorial waters
56. Not surprisingly perhaps, Singapore also exercised jurisdiction over its territorial waters surrounding Pedra Branca. Permit me to recall briefly the kinds of activities that Singapore performed in this connection.
57. First, Singapore has shown that it routinely carried out naval patrols in pre-designated areas just off Pedra Branca. [Place map showing Patrol Sector F5 on screen] The Court will see from the map on the screen, which is also at tab 33 of your folders, Singapore, unlike Malaysia, specifically delineated a naval patrol area ⎯ the F5 area ⎯ which lay just to the north of Pedra Branca in the Middle Channel. That area was designated and identified in 1975, well before Malaysia first raised a claim to Pedra Branca, yet Malaysia never protested Singapore's naval activities in this area until 2003 ⎯ a mere four years ago and 28 years after Singapore's patrol sector had been established.
58. Second, Singapore has documented the fact that when high-ranking Singapore officials visited Pedra Branca, such as the Minister of State for Communication who went to the island in 1974 and again in 1976, these officials were accompanied by Singapore naval vessels without any reaction from Malaysia. Similarly, Singapore used its navy to evacuate stranded Singapore fishermen who had sought refuge on Pedra Branca, to rescue a contractor who had been injured on the island while installing new equipment in 1975, and to carry out search and rescue activities in connection with the accidental drowning in 1980 of Singapore naval personnel who were on a mission to maintain military communications equipment on Pedra Branca. In 1977, the Singapore Marine Police apprehended an Indonesian craft which had been involved in the robbery of Singapore fishing vessels operating just a few miles off of Pedra Branca in its territorial waters (RS, Anns. 45, 48, 50 and 55). All of these ⎯ the references will be in the transcript ⎯ are fully documented in the pleadings.
59. Third, unlike Malaysia, Singapore took responsibility to investigate ship wrecks that occurred within Pedra Branca's territorial waters pursuant to powers granted by Singapore legislation which applied precisely because Pedra Branca was Singapore territory. Singapore's written pleadings documented many such instances spanning a period from 1920, when a Dutch ship ran aground about 1.5 miles north of Pedra Branca, to 1963, when an incident involving a British cargo vessel was similarly investigated by Singapore, to more recent examples in 1979, 1985, 1986, 1992, 1996, 2003 and 2005. The location of these incidents is depicted on the map that now appears on the screen, a copy of which is at tab 34 of the folders [slide: insert 10 facing p. 160 of RS]. Singapore exercised jurisdiction over these incidents because they occurred off its coast ⎯ in other words, in the waters off Pedra Branca. It was only after the incident in 2003 that Malaysia evidently realized the obvious implications of these actions for its belated claim to Pedra Branca, and began to react ⎯ only in 2003.
60. I could go on in the same vein, but it is hardly necessary. The Court has all of the relevant documents attesting to Singapore's activities on Pedra Branca in the written pleadings. Suffice it to recall that the activities that I have discussed were long-standing and they were continuous, and they were undertaken on an open and notorious basis, they were acts of an official nature not private acts, and they went totally unopposed by Malaysia at least until well after Malaysia raised a claim to the island in 1979 with the publication of its map.
2. The legal context within which conduct is to be assessed
61. Mr. President, having discussed the substance of the effectivités ⎯ and I've given a tour d'horizon; obviously I haven't walked the Court, or imposed on the Court all of the documents attesting to the activities Singapore carried out ⎯ but having discussed the substance of the effectivités that Singapore carried out on Pedra Branca and within its territorial waters, it may now be useful to place the question of Singapore's conduct in its proper legal context. The matter, I would submit, is really quite straightforward despite certain attempts by Malaysia to muddy the waters in its written pleadings. There are five basic principles which I would respectfully invite the Court to bear in mind in considering the significance of Singapore's effectivités.
(a) The requirement for both the intention and will to act as sovereign and an actual display of such authority
62. The first principle, indeed the fundamental starting-point is the well-established principle articulated by the Permanent Court in the Eastern Greenland case, and cited with approval in the Court's more recent judgments in the Indonesia/Malaysia and last month in Nicaragua v. Honduras, that:
[slide]
"a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority" (Legal Status of Eastern Greenland, Judgment, 1933 P.C.I.J., Series A/B, No. 53, pp. 45-46).
63. In other words, the Court is well aware, a State claiming title to a particular territory must demonstrate both the animus occupandi and the corpus as well. And as the Court noted at paragraph 72 of its Judgment handed down last month in the Nicaraguav. Hondurascase: "A sovereign title may be inferred from the exercise of powers appertaining to the authority of the State over a given territory." (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, para. 172.)
64. Singapore's conduct fits perfectly within these legal criteria. As Mr. Brownlie explained, Singapore's predecessor ⎯ Great Britain ⎯ manifested the intention to acquire sovereignty over Pedra Branca by its actions from 1847 to 1851, and this, by itself was sufficient to establish Singapore's territorial title at that time. Thereafter, as I have shown, Singapore carried out a considerable array of State activities on the island and within its territorial waters in the maintenance and confirmation of its title. Malaysia, in contrast, has not even begun to satisfy either criteria. Not only is there no evidence of any Malaysian intention or will to act as sovereign over Pedra Branca, whether before 1847 or afterwards, there is similarly not a shred of evidence that Malaysia ever engaged in any display of such authority on the island, on the ground, on the disputed territory, at any time.
(b) Singapore's activities confirming and maintaining its prior legal title
65. This leads me to the second principle that supports the legal underpinnings to Singapore's case. As the Chamber of the Court observed in its oft-cited passage from the Frontier Dispute case:
[slide]
"Where the act corresponds exactly to law, where effective administration is additional to the uti possidetis juris, the only role of effectivité is to confirm the exercise of the right derived from a legal title." (Frontier Dispute, Judgment, I.C.J. Reports 1986, pp. 586-587, para. 63.)
66. In the present case, we have a pre-existing title derived from the actions of Great Britain on Pedra Branca during the period 1847-1851. We also have thereafter the extensive and continuous exercise of sovereign authority carried out by Singapore on the island. Singapore relies on its conduct after 1851 not for purposes of establishing a legal title to the territory in dispute ⎯ that title was already established by 1851 ⎯ but rather to demonstrate that that title was maintained and confirmed by a series of concrete activities on the ground which have lasted for over 150 years.
67. Yet even if title to Pedra Branca was somehow indeterminate as of 1851 ⎯ which Mr. Brownlie has shown was not the case ⎯ even if that situation existed, title today would still vest in Singapore by virtue of its subsequent State conduct on the island. As the Chamber also noted in the Frontier Dispute case: "In the event that the effectivité does not co-exist with any legal title, it must invariably be taken into consideration." (Frontier Dispute, Judgment, I.C.J. Reports 1986, p. 587, para. 63.)
68. In such a case, the Court would be faced with the same kind of situation it confronted in the Minquiers and Ecrehos case, the Indonesia/Malaysia case, the recent Nicaragua v. Honduras case ⎯ and as the Arbitral Tribunal in Eritrea/Yemen was confronted in the sovereignty phase of that case ⎯ where the issue of sovereignty was decided on the basis of which party could show the better title based on sovereign acts undertaken on the disputed territory à titre de souverain. Here, and ignoring for a moment Singapore's pre-existing title established by the British Crown from 1847 to 1851, here not only did Singapore carry out the overwhelming preponderance of administrative activities on Pedra Branca, it performed all such activities. Indeed, neither Malaysia nor its predecessor, Johor, has ever acted on Pedra Branca in any sovereign capacity.
69. Now that leads me to a related argument raised by Malaysia in its written pleadings. Malaysia seeks to reverse the order of things by asserting that Singapore must show, by its actions on Pedra Branca, that this conduct somehow displaced a prior Malaysian title. Now that is an argument essentially predicated on the notion of prescription which has no role to play in the present case. The plain fact, as my colleague Professor Pellet has shown, is that Malaysia has not produced a scintilla of evidence that it possessed an historic title over Pedra Branca, the specific territory, prior to 1847 or, indeed, at any time thereafter. Consequently, there was no pre-existing title which Singapore's conduct displaced.
70. Nonetheless, it is instructive, once again, to recall how Malaysia's arguments have mutated since it appeared before this Court five years ago in the Indonesia/Malaysia case. There, counsel for Malaysia argued during the oral proceedings with respect to its ⎯ that is Malaysia's ⎯ own conduct in Indonesia/Malaysia:
"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 was Malaysia's argument five years ago.
71. Thus, even on Malaysia's thesis, and accepting purely for purposes of argument that Malaysia could somehow show an historic title over the island, Singapore would still possess sovereignty over Pedra Branca since Singapore has exercised continuous sovereignty over the island while Malaysia has done nothing, even on Malaysia's thesis advanced in the Indonesia/Malaysia case. Fortunately, however, the Court does not need to engage in such speculative reasoning or to enter into the controversial realm of prescriptive title. Singapore has shown a title derived from the activities of the British Crown from 1847-1851, and Singapore has also shown that it maintained that title on the ground ever since. Malaysia, in contrast, has shown nothing.
(c) The extent of State conduct on its territory is a function of the nature of the territory in question
72. The third legal principle deserving mention at this stage is the principle that the degree of State authority on the ground to establish or maintain a legal title is a function of, and must be adapted to, the nature of the territory in question. This principle has been endorsed both by this Court and its predecessor, and by arbitral tribunals such as in the Island of Palmas and Eritrea/Yemen arbitrations.
73. Pedra Branca is an important island ⎯ at least for Singapore, it is a very important island ⎯ and the island has been the focus of a significant and well-documented series of administrative activities emanating from Singapore ever since 1851.
74. As I have said, these activities obviously include the staffing, maintenance and improvement right up to the present of the lighthouse which Great Britain constructed between 1847 and 1851. However, as Singapore has also documented in its written pleadings, its exercise of sovereignty on Pedra Branca has not been limited to lighthouse activities alone. The island has also hosted many other non-lighthouse activities of an official character, which I have discussed and which are documented, and it supports a number of facilities which have effectively made full use of the island, as I think the Court will appreciate from the photograph appearing on the screen. [slide] When the entire body of evidence of Singapore's administration is considered, what is, I would suggest, truly remarkable is the breadth and the scope ⎯ the consistent pattern ⎯ of Singapore's public works that it carried out on this parcel of territory. Thus, not simply has Singapore's sovereign conduct on Pedra Branca been commensurate with the nature of the territory in question, that conduct far exceeds what might be expected given the characteristics of the territory in question.
(d) Singapore relies exclusively on official conduct, not the activities of individuals in their private capacity
75. The fourth legal element which characterizes Singapore's conduct is that Singapore, as I have said, relies exclusively on acts of an official nature performed by it on Pedra Branca. As the Court has many times stated in the past, including in Qatarv. Bahrain, Indonesia/Malaysia, what is legally relevant to questions of disputed sovereignty are official actions undertaken in a governmental capacity, not actions of private individuals. Unlike Malaysia, which has been forced to rely on statements by private fishermen who allegedly fished in the waters around Pedra Branca, all of the conduct that Singapore has adduced in its pleadings is of an official, governmental character and that underscores the sovereign nature of that conduct ⎯ conduct constituting the exercise and display of administration and control on Pedra Branca, and within its territorial waters, à titre de souverain.
(e) Singapore's official conduct was specific to Pedra Branca
76. The fifth legal principle upon which Singapore's conduct is founded is that, in order to be legally relevant, the conduct in question must relate to the specific territory in dispute. Again, as the Court stated in the Indonesia/Malaysia case, and in fact reiterated at paragraph 174 of its recent Judgment in the Nicaraguav. Hondurascase:
[slide]
"The Court finally observes that it 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." (I.C.J. Reports 2002, pp. 682-683, para. 136.)
Specific reference to the islands.
77. In contrast to Malaysia, which cannot point to a single example of State authority it carried out on Pedra Branca itself, the official acts on which Singapore relies are unambiguous in their reference to the actual territory at issue in this case. Permit me to expand very briefly on this point.
78. Take the legislation of the Parties ⎯ on the one hand you have legislation such as Malaysia's 1969 Emergency Ordinance, which essentially set the breadth of Malaysia's territorial waters, as compared to legislation enacted by Singapore and its predecessor Great Britain. While the Malaysian 1969 Ordinance makes no reference whatsoever to Pedra Branca and thus begs the question as to what territory it relates, the relevant legislation of Great Britain and Singapore, including both the 1852 and 1854 Acts and the 1991 Protected Places Order, expressly refers to Pedra Branca. Then there is the evidence relating to the staffing, maintenance and improvement of both lighthouse and other facilities introduced by Singapore which also relates to Pedra Branca and which is named ⎯ the island is named ⎯ in the relevant documentation. Next, there is Singapore's exercise of jurisdictional control over individuals visiting the island, including Malaysian officials, which was also specific to Pedra Branca. Turning to other elements, the Singapore marine ensign has been flown for 150 years on the island itself without eliciting any reaction from Malaysia despite their vigorous reaction to the exact same emblem flown on Pulau Pisang. And when Singapore military, government and civilian personnel travelled to the island, the destination of their visit was clearly stated to be Pedra Branca. Applications for permission to undertake scientific research and other activities submitted to Singapore by third parties similarly concerned the island itself and its territorial waters. Investigation of accidental deaths and shipping incidents once again were either on Pedra Branca or within its territorial waters. And the collection of meteorological information was documented as having originated from Pedra Branca which was described by official Malaysian publications as being located "in Singapore".
79. In short, there is no question that the evidence of Singapore's administration and control has related specifically to the territory in dispute ⎯ Pedra Branca. The evidence on the record relates to concrete activities on the ground, not woolly and generalized assertions of alleged jurisdiction over undefined areas asserted by Malaysia. These actions leave no doubt as to which Party considered itself to be sovereign over Pedra Branca and acted as such.
3. Malaysia's arguments on conduct placed in perspective
80. Having set out the factual and legal framework underlying Singapore's conduct on Pedra Branca, I would now like to turn to the arguments Malaysia has raised in its written pleadings in an effort to explain away that conduct. Malaysia obviously faces quite an uphill battle in this respect given the existence of Singapore's constant administration of Pedra Branca as compared with Malaysia's total inactivity on the island. Indeed, as Ms Malintoppi will discuss later this morning, one of the striking aspects of this case is that there are absolutely no competing Malaysian activities on the island at all ⎯ none.
81. Notwithstanding this, Malaysia has asserted in its Reply that Singapore's conduct is "peripheral" to the question of title and that Singapore relies on what Malaysia terms "isolated acts of conduct leaving out of account any assessment of whether the conduct referred to was part of a pattern of routine acts of administration of the Horsburgh Lighthouse or whether it amounted to manifestations of sovereign activity" (RM, p. 148).
82. In responding to these arguments, it is first necessary to recall once again the legal context.
83. As I have explained, the acts that Great Britain and Singapore carried out on Pedra Branca and within its territorial waters after 1851 were performed clearly in a sovereign capacity. They were clearly actions that were premised on the fact that title to Pedra Branca rested with Singapore as a result of the lawful possession of the island from 1847 to 1851 discussed by Mr. Brownlie. In other words, they represented a continuous display of State authority on the territory at issue and, as such, represented the confirmation and maintenance of Singapore's pre-existing title.
84. In these circumstances, there is nothing "peripheral" about the significance of Singapore's conduct as Malaysia would have the Court believe. That conduct shows Singapore consistently and actively maintaining and exercising its pre-existing title. Yet even in cases where there is no pre-existing title, in contrast to the situation we have here where Singapore has shown such a title, even in those cases, the question as to which party to a territorial dispute can show that it performed effectivités on the territory in question has been treated by this Court, and by arbitral tribunals, as a critical element in deciding issues of disputed title. One need only refer to the Court's recent cases involving questions of disputed sovereignty over small islands to appreciate the point ⎯ the Qatar v. Bahrain case where sovereignty over the small island of Qit'at Jaradah was at issue, the Indonesia/Malaysia case which concerned the two small islands of Ligitan and Sipadan and the recent Nicaragua v. Honduras case concerning a series of small islands lying off the mainland coast. In none of those cases was there a pre-existing title of the nature we have here with respect to the British activities from 1847 to 1851. And nor, in none of those cases ⎯ Qatar v. Bahrain, Indonesia/Malaysia, Nicaragua v. Honduras, and in fact one can go back to Minquiers and Ecrehos as well ⎯ in none of those cases, was there the wide array of State activities performed on the territory at issue in any way comparable to the activities that Singapore has carried out on Pedra Branca. Nonetheless, in all of these cases, the Court determined sovereignty on the basis of which party could show that it had carried out administrative acts on the disputed territory. Indeed, in the Qatarv. Bahrainand Indonesia/Malaysia cases, the Court also held that, "The construction of navigational aids . . . can be legally relevant in the case of very small islands." (I.C.J. Reports 2001, p. 100, para. 197.)
85. In the present case, we are not dealing merely with the construction of navigational aids on Pedra Branca. Both during the period 1847 to 1851, when Great Britain took possession of the island, and afterwards when that title was maintained and confirmed, the acts on Pedra Branca, as I have shown, were wide-ranging in nature and covered effectively the whole island and including its territorial waters. These were not, to use Malaysia's term, mere lighthouse activities.
86. But lighthouse related or not, Singapore's conduct was precisely the kind of sovereign conduct that any State would carry out on territory to which it held title having the characteristics of Pedra Branca. Malaysia's labelling of those activities as "routine lighthouse activities" is not only wrong, it in no way establishes that such activities were not part of the normal exercise of sovereign prerogatives that coastal States, including Singapore, perform on their territory where lighthouses are situated. In fact, Malaysia acknowledged as much in its own Counter-Memorial when it stated [slide]: "The construction and administration of lighthouses was usually a matter for the State on whose territory the lighthouse was to be located." (CMM, p. 103.)
87. In short, Singapore's administration of the lighthouse, as well as the non-lighthouse activities that Singapore carried out on Pedra Branca, was a normal exercise of the sovereignty it had acquired as of 1851. Contrary to Malaysia's assertion, Singapore's conduct and its activities were anything but isolated. Given the nature of the territory concerned they were, in fact, a strikingly consistent pattern of State conduct encompassing a broad spectrum of administration and control spanning a long period of time. Throughout this period, once again, I would emphasize the fact that Malaysia never disputed Singapore's right to exercise authority over the island, never advanced a claim of its own, and never carried out any competing acts.
88. What are isolated, on the other hand, are the miscellaneous and wholly unimpressive examples of Singapore conduct that Malaysia has tried to seize upon to bolster its contention that somehow Singapore did not consider that it had sovereignty over the island.
89. Malaysia first refers to the 1927 Straits Settlements and Johor Territorial Waters Agreement, which was discussed on Tuesday. That agreement, when you read it carefully, concerned the retrocession of certain small islands lying in the immediate vicinity of the main island of Singapore to Johor. The agreement did not purport to deal with Pedra Branca, did not deal with Pedra Branca, and is irrelevant to this case.
90. Next, Malaysia seeks refuge in the 1946 Singapore Order in Council pursuant to which the Settlement of Singapore was defined as including the Island of Singapore and its dependencies, as well as all other islands and places then known and administered by Singapore and its territorial waters. At the time that that was issued, in 1946, Pedra Branca was clearly a "dependency" of Singapore. In fact, as Mr. Brownlie noted yesterday, Pedra Branca was expressly described as such during the ceremony for the laying of the foundation stone for the Horsburgh lighthouse as early as 1850. And Pedra Branca was also unquestionably an island being administered by Singapore, as I have discussed. So, far from strengthening Malaysia's case, the 1946 Order in Council is entirely consistent with Singapore's position, as are the other constitutional instruments concerning Singapore that Malaysia has cited, in its written pleadings, dating from 1951, 1952, 1960 and 1965. All, all of them referred to Singapore "and its dependencies" ⎯ and areas that Singapore administered and controlled ⎯ a description which included Pedra Branca.
91. Malaysia also grasps at straws when it refers to two publications issued in Singapore which are said by Malaysia to be telling in that they did not include Pedra Branca as one of the islands appertaining to Singapore. The first such publication is a booklet ⎯ it is really essentially no more than a tourist publication ⎯ called Singapore Facts and Pictures. It was published by the Singapore Ministry of Culture and had nothing to do with a legal definition of Singapore's territory. Nor did it concern Pedra Branca for the obvious reason that Pedra Branca had no tourist facilities.
92. The second set of publications comprise two editions of the Annual Report of the Rural Board of Singapore taken from 1953 ⎯ that was the year that Johor expressly disclaimed ownership of Pedra Branca ⎯ and 1956. These, too, had nothing to do with Pedra Branca. Singapore fully explained, in its written pleadings, that the impetus behind these publications lay in the Rural Board's revision of electoral boundaries in Singapore, which obviously did not concern Pedra Branca. Even Malaysia is forced to concede as much when it acknowledges that the Rural Board was not responsible for any management of lighthouses.
93. Equally unavailing is Malaysia's reliance on a passage from J.A.L. Pavitt's book, First Pharos of the Eastern Seas: Horsburgh Lighthouse, published in 1966. Pavitt says nothing to suggest that Pedra Branca did not belong to Singapore. The only passage which Malaysia has tried to hang its argument on is a single sentence where Pavitt described the lighthouse on Pedra Branca as an "outlying station" in the South China Sea, which geographically it was. But by no account does this mean that Singapore did not possess or exercise sovereignty over the island. And I would suggest that what is more directly relevant is the written note prepared by one of Pavitt's assistants on Pavitt's behalf one year later, in 1967 ⎯ which is also at tab 35 and the relevant part is on the screen ⎯ in which the author, Pavitt's assistant, states:
[slide]
"I have nothing to add . . . except to state that in addition to the waters immediately surrounding Singapore, I have been advised that the waters within 3 miles of Horsburgh Lighthouse (at the eastern entrance to the Singapore Strait) may be considered to be Singapore waters." (CMS, Ann. 42).
94. Obviously, if the waters around Pedra Branca were considered to be Singapore waters, that necessarily implied that the island itself belonged to Singapore. Equally obviously, none of the sparse pickings referred to by Malaysia even remotely begins to counteract the long and unimpeded pattern of State conduct that Singapore carried out on Pedra Branca. And none of them bears any resemblance to Malaysia's own conduct ⎯ or, more accurately, its lack of conduct ⎯ relating to Pedra Branca which, as my colleagues will show, included the famous express disclaimer of ownership over Pedra Branca and a series of official Malaysian maps specifically attributing Pedra Branca to Singapore.
Conclusions
95. Mr. President, Members of the Court, I have taken the Court through the factual and legal elements which demonstrate that Singapore has actively and continuously maintained up to the present the sovereignty it acquired over Pedra Branca during the period 1847-1851. It has done so by concrete actions undertaken à titre de souverain on the ground. I would suggest that the evidence is compelling, it is consistent, and the facts stand unrebutted. It also comports with the standard articulated recently in the Nicaragua v. Honduras Judgment at paragraph 175, that what is relevant is evidence of sovereign activities which "cover a considerable period of time and show a pattern revealing an intention to exercise State functions" (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007). And that is what Singapore's conduct does.
96. In the final analysis, Malaysia would have the Court find that a party that can show no basis of title to the territory in dispute ⎯ whether a so-called "historic title" or otherwise ⎯, which has not carried out a single act, a single sovereign act on the territory at any time, which has let 130 years of unimpeded administration by its neighbour go unprotested and unopposed, which disclaimed any ownership of the territory in question in official correspondence, and which published a series of official maps showing the island as belonging to its neighbour, Malaysia would have this Court believe that that party has a better title than the party which established sovereignty over the territory by official government acts on the territory in question, and then maintained that title through a constant stream of administration and control on the actual territory in dispute for over a century and a half thereafter. And to put it mildly, that proposition is manifestly unsound.
97. Mr. President, that concludes my presentation. I am grateful to the Court for its attention and patience. Perhaps this would be a good time for the coffee break, after which I would be grateful if you would call upon Ms Malintoppi to continue Singapore's presentation. Thank you.
The VICE-PRESIDENT, Acting President: I thank you for your arguments, Mr. Bundy.
We will now take our customary break and in ten minutes' time when we resume I shall call on Ms Malintopppi.
The Court adjourned from 11.25 to 11.40 a.m.