Oral argument by Mr. Tommy Koh, Ambassador-at-Large, Ministry of Foreign Affairs of the Republic of Singapore, Professor of Law at the National University of Singapore on 6 November 2007
Mr. KOH:
1. Mr. President and Members of the Court.
2. I have the great honour to appear before you as the Agent of Singapore. Since this is the first case involving Singapore in the International Court of Justice, I would like to begin by saying a few words about my country's policy on international law, on the rule of law and on the peaceful settlement of disputes.
3. Singapore attaches great importance to international law and we have always sought to conduct ourselves in conformity with it. We have worked with other like-minded States to strengthen the rule of law in the world. We believe in the peaceful settlement of disputes. We believe that States should seek to resolve their differences by consultations, negotiations and mediation. When a dispute cannot be resolved by those means, we believe that, instead of allowing the dispute to adversely affect the overall bilateral relationship of the two countries concerned, it is preferable to refer a dispute to a binding third party procedure, namely, to arbitration or adjudication. It is for this reason that Singapore and Malaysia have agreed to submit our dispute to this honourable Court.
4. I would now like to extend my fraternal greetings and my respect to the Agent of Malaysia, Tan Sri Abdul Kadir Mohamed, who is an old friend, to the Co-Agent, the much admired Ambassador Noor Farida Ariffin, to the distinguished Attorney-General, Tan Sri Abdul Gani Patail another friend, and to the other learned members of their team.
5. Mr. President, I would now like to introduce the members of my team. They are: my Co-Agent, Ambassador Anil Kumar Nayar; the Deputy Prime Minister and Minister for Law, Professor S. Jayakumar; the Chief Justice of Singapore, Mr. Chan Sek Keong; the Attorney-General, Mr. Chao Hick Tin; Mr. Ian Brownlie, Q.C.; Professor Alain Pellet; Mr. Rodman Bundy; and Ms Loretta Malintoppi. Professor Jayakumar was previously Dean of the Faculty of Law at the National University of Singapore. He has been involved in Singapore's research on the Pedra Branca issue, ever since 1979, when Malaysia first published a map asserting her claim to the island.
6. I would like now to explain the presence of the Chief Justice of Singapore in our delegation. Mr. Chan Sek Keong was Singapore's Attorney-General for 14 years, a position he relinquished in April last year when he was appointed as the Chief Justice of Singapore. He became involved in this case beginning in 1993, with the first series of bilateral consultations between Singapore and Malaysia. After the Special Agreement was submitted to this Court, Mr. Chan led the legal team in preparing our written pleadings. In view of the pivotal role which he has played in overseeing Singapore's preparations for this case, when he was appointed Chief Justice, the Singapore Parliament was informed that he had agreed, at the Government's request, to continue with this role until the case has been decided by this Court.
The subject-matter of the dispute
7. Mr. President and Members of the Court, this case concerns sovereignty over three maritime features ⎯ a main island called "Pedra Branca" and two subsidiary features called "Middle Rocks" and "South Ledge". According to Article 2 of the Special Agreement:
"The Court is requested to determine whether sovereignty over:
(a) Pedra Branca/Pulau Batu Puteh;
(b) Middle Rocks;
(c) South Ledge,
belongs to Malaysia or the Republic of Singapore."
Pedra Branca means "White Rock" in the Portuguese language. The phrase "Pulau Batu Puteh" means "White Rock Island" in the Malay language. The name "Pulau Batu Puteh", has only recently appeared in maps of the region and is the name by which my Malaysian friends refer to the island today. For the purpose of Singapore's oral presentations, we will be referring to the island as "Pedra Branca", the name by which it has been known since the Portuguese started mapping the region in the sixteenth century.
8. The location of the three features in dispute can be seen in the map now shown on the screen. This map is No. 2 in the Singapore Memorial, and it can also be found in the judges' folders at tab 1. It shows the three features lying strategically at the eastern entrance to the Strait of Singapore. About 900 ships daily pass through the Strait of Singapore, making it one of the busiest straits in the world.
9. I would now like to show the Court a photograph of Pedra Branca, with the lighthouse painted in black and white, the helipad and other fixtures on it. This is inserted at tab 2 of the judges' folders. Middle Rocks are in the background. South Ledge cannot be seen in this photograph because it is outside the photograph's frame, and it is located about two nautical miles south-west of Pedra Branca. Moreover, it is entirely submerged at high tide.
10. Mr. President and Members of the Court, it is our submission that sovereignty over Pedra Branca, Middle Rocks and South Ledge belong to Singapore.
11. The three features lie about 25 nautical miles from Singapore and between seven and eight nautical miles from the Malaysian coast. I should emphasize that during the relevant period, the applicable width of the territorial sea was three miles. Malaysia extended its territorial sea to 12 miles in 1969, long after Singapore had acquired title to the three features.
12. Before 1979, Malaysia had never laid claim to any of these three features. In 1979, for the first time, Malaysia published a map purporting to place Pedra Branca within the Malaysian territorial sea, giving rise to the present dispute. The dispute has been an irritant in the bilateral relations between our two countries. After almost 28 years, we are very pleased that the dispute will finally be brought to an end. And I am very happy to inform the Court that the two Parties have agreed to accept and to abide by the judgment of this Court.
The Parties to the dispute
13. Mr. President and Members of the Court, Singapore and Malaysia are two friendly neighbours in south-east Asia. The map now shown on the screen is a general map of south-east Asia. This map can be found at tab 3 of the judges' folders. You can see that Malaysia comprises two parts: West Malaysia and East Malaysia. East Malaysia occupies the northern part of the island of Borneo, while West Malaysia forms part of the Asian mainland, occupying the Malay Peninsula. Singapore is the island coloured orange - the national colour of the Netherlands! - at the southern tip of the Peninsula. The location of Pedra Branca is shown by a red arrow on this map, at the entrance to the Singapore Strait and the South China Sea. This is the spot where, 160 years ago, the British colonial government decided to build a lighthouse.
14. Mr. President, Members of the Court, Singapore is a former British colony. For the purpose of this case, Singapore is the successor in title to Great Britain. From 1826 to 1946 Singapore was part of a political unit called the "Straits Settlements", which also included Penang and Malacca. The Straits Settlements was, at all times, a British colony. Before 1867, the Straits Settlements was subordinate to the Government of British India which was, in turn, accountable to London. In 1946, the Straits Settlements was dissolved, and Singapore became a Crown colony in its own right. In 1963, Singapore merged with the Federation of Malaya to form the Federation of Malaysia. Two years later, Singapore separated from Malaysia and became an independent and sovereign State.
15. I should add here that, although Singapore was part of the Federation of Malaysia for two years, the two Parties' written pleadings agree that nothing turns on this point. It is not disputed that every single piece of territory which Singapore brought into the Federation in 1963 was taken out of the Federation in 1965.
16. Mr. President and Members of the Court, Malaysia is a federation of 13 States. The State nearest to Singapore and to Pedra Branca is the State of Johor. Prior to 1957, Johor was a separate political entity, with its own international legal personality. Although from 1948 to 1957 Johor - 20 - was part of a political entity known as the "Federation of Malaya", this federation was just a grouping, a mixed grouping of colonies and Malay States under the protection of the British. Johor remained a sovereign State until the British granted independence to the Federation of Malaya in 1957. On that date Johor ceased to be an independent sovereign State and became a constituent State of the independent Federation of Malaya. As noted previously, the Federation of Malaya became the Federation of Malaysiain 1963. For the purpose of this case, Malaysia is the successor to the State of Johor. The last two slides which I have shown, have been enclosed in tab 4 of the judges' folders.
17. At this point Mr. President, I would like to explain a usage of terminology which applies throughout Singapore's oral presentations. Although Malaysia was formed only in 1963 and Singapore became an independent State only in 1965, many of the events which we will be discussing in these oral proceedings took place long before those dates. To avoid unnecessary repetition, we will sometimes simply refer to "Malaysia" or to "Singapore" when discussing those past events, even though the conduct in question was undertaken by their respective predecessors.
18. Mr. President and Members of the Court, Singapore and Malaysia are closely linked, not only by geography, but also in terms of history, culture and economics. For a brief period of two years, we were even part of the same country. Today, economic, cultural and family ties remain strong.
19. For example, Malaysia is Singapore's largest trading partner and Singapore is Malaysia's second largest trading partner. Cultural ties are strong because the two countries share many commonalities of language, of ethnicity and of religion.
20. These close historical and political ties do not, however, alter the fact that the officials of the two countries have been vigilant in exercising exclusive jurisdiction over areas in which they consider to be under the sovereignty of their respective country. The reason why I emphasize this point is that a key feature of this case is the constant stream of Singapore's acts of administration in relation to Pedra Branca, contrasted with the complete absence of Malaysian effectivités on Pedra Branca or within its territorial waters, and with Malaysia's silence in the face of all these State activities of Singapore. Such silence on the part of Malaysia is significant, and must be taken to mean that Malaysia never regarded Pedra Branca as her territory.
Outline of Singapore's case
21. Mr. President and Members of the Court, I will now outline the main elements of Singapore's case both on the facts and on the law.
22. Singapore's title to Pedra Branca is based upon the taking of lawful possession of the island by the British authorities in Singapore during the period 1847 to 1851. Malaysia claims that, prior to 1847, Pedra Branca was under the sovereignty of Johor. However, there is absolutely no evidence to support Malaysia's claim. Mr. President, the truth is that, prior to 1847, Pedra Branca was terra nullius, and had never been the subject of a prior claim, or any manifestation of sovereignty by any sovereign entity.
23. Mr. President, the lawful taking of possession of Pedra Branca by the British during the period of 1847 to 1851 was effected by a series of official actions. These actions began with the first landing of an agent of the British Crown in 1847 and culminated with the official inauguration of the lighthouse in 1851.
24. The whole pattern of activities and official acts undertaken by agents of the British Crown during this period ⎯ 1847 to 1851 ⎯ constituted a clear and unequivocal manifestation of the intention to claim sovereignty over Pedra Branca. These actions were peaceful and public, and elicited no opposition from any power.
25. Mr. President, Malaysia claims that the British sought permission from Johor to build the Horsburgh lighthouse, but she has not provided any evidence to support this contention.
26. There was no doubt in the minds of contemporary observers that the British Crown had acquired sovereignty over Pedra Branca during that period. At the foundation stone laying ceremony for the Horsburgh lighthouse, held on 24 May 1850, Pedra Branca was described as a dependency of Singapore in the presence of the Governor of the Straits Settlements ⎯ the most senior British official in Singapore ⎯ as well as other British and foreign officials. This attribution of sovereignty, which was widely reported in the local newspapers, elicited no response from any quarters. In particular, it elicited no protest from the Johor authorities. Indeed, in November 1850, the Government of the Netherlands East Indies in Batavia expressly recognized British sovereignty over Pedra Branca by referring to the construction of the lighthouse on Pedra Branca as being "on British territory".
27. After 1851, the United Kingdom and, subsequently, Singapore, confirmed and maintained the title that had been acquired over Pedra Branca by the continuous, open and effective display of State authority on Pedra Branca as a whole and within its territorial waters. These activities were wide ranging, comprising both lighthouse and non-lighthouse activities suitable to the nature of the territory concerned and, most importantly, were undertaken à titre de souverain. All of them have been fully documented in Singapore's written pleadings.
28. For over 130 years, from 1847 until 1979, when Malaysia first advanced a claim to the island, Singapore's effective administration and control of Pedra Branca went unopposed by Malaysia or her predecessor in interest, Johor, and was recognized by third States and other nationals.
29. Mr. President, not only did Malaysia not protest the taking of lawful possession of Pedra Branca by the British Crown in 1847-1851, she never objected to any of the official State actions that Singapore undertook on Pedra Branca until well after 1980. In fact, Malaysia has, by her own conduct, recognized Singapore's sovereignty over the island. In 1953, when Johor was still an indisputably sovereign State, Johor officially declared that she did not claim ownership over Pedra Branca. Mr. President, this disclaimer is binding on Malaysia. In addition, the highest national mapping authority of Malaysia published a series of four maps, from 1962 to 1975, specifically attributing Pedra Branca to Singapore.
30. The evidence shows that the two Parties have been remarkably consistent in their conduct in relation to Pedra Branca. On the one hand, Singapore has, for more than 150 years, acted in a manner entirely consistent with her sovereignty over Pedra Branca. On the other hand, prior to Malaysia's claim in 1979, Malaysia never once intimated that she possessed title to Pedra Branca and never once carried out any sovereign act on or in relation to Pedra Branca. Instead, as I have said, Malaysia officially disclaimed ownership over the island in 1953, issued official maps which depicted Pedra Branca as belonging to Singapore, and remained silent in the face of Singapore's continuous administration and control of the island.
31. Mr. President and Members of the Court, with respect to Middle Rocks and South Ledge, both features lie within Pedra Branca's territorial waters. Middle Rocks, lying 0.6 nautical miles from Pedra Branca, is part of the same island group as Pedra Branca, while South Ledge is a low-tide elevation incapable of independent appropriation. Therefore, sovereignty over both Middle Rocks and South Ledge belongs to Singapore by virtue of Singapore's sovereignty over Pedra Branca.
32. Mr. President and Members of the Court, each of the points which I have made will be elaborated upon by my colleagues over the next four days. To assist the Court in following our subsequent presentations, allow me to outline the sequence of our presentations. You can also find the order immediately after the index in the judges' folders.
33. After my statement, the Attorney-General, Mr. Chao will speak on the geographical setting and the background of the dispute.
34. Following Mr. Chao, Chief Justice Chan, followed by Professor Pellet, will rebut Malaysia's claim of an original historical title.
35. Tomorrow, we will turn our attention to Singapore's positive case, beginning with Professor Pellet who will explain that Singapore's acquisition of Pedra Branca did not involve any form of permission or consent from Johor. He will be followed by Mr. Brownlie who will explain the process by which Singapore acquired title to Pedra Branca. Mr. Bundy will then explain how Singapore has maintained its title through the continuous exercise of State authority on and in relation to Pedra Branca.
36. He will be followed by Ms Malintoppi who will, by contrast, discuss Malaysia's absence of effectivités. Professor Pellet will then elaborate on Malaysia's recognition of Singapore's sovereignty over Pedra Branca. After Professor Pellet, Mr. Bundy will discuss the system of lighthouses in the Straits of Malacca and Singapore, also known as the "Straits Lights System".
37. Professor Pellet will then discuss the important exchange of correspondence in 1953 through which the Johor Government expressly and unconditionally disclaimed title to Pedra Branca. Following Professor Pellet's presentation, Ms Malintoppi will speak on the significance of maps and third State recognition. Professor Pellet will then return to deal with Middle Rocks and South Ledge. The Deputy Prime Minister, Professor Jayakumar, will then end Singapore's first round of presentations with a concluding statement.
38. Mr. President and Members of the Court, that brings my presentation to a close. I apologize for my voice. May I respectfully request you now to call upon the Attorney-General of Singapore, Mr. Chao, to continue with Singapore's presentation.
39. Thank you very much.