Oral argument by Prof S. Jayakumar, Deputy Prime Minister, Co-ordinating Minister for National Security and Minister for Law of the Republic of Singapore, 19 November 2007

Mr. JAYAKUMAR:

1. Mr. President and Members of the Court, it is my privilege to commence Singapore's second round of oral pleadings.

Distractions by Malaysia

2. During Singapore's first round of oral pleadings, we have focused our presentations purely on legal and factual issues in dispute between the Parties. We have carefully avoided mentioning extraneous matters that may affect the integrity of the proceedings before this honourable Court. In view of the good relations between the two countries, we had expected Malaysia to do likewise.

3. We are therefore surprised and disappointed that Malaysia has, in her oral pleadings, made a series of allegations and insinuations against Singapore. These are of a nature which, unless rebutted, would impeach or diminish Singapore's integrity or could impress on the minds of the Members of the Court that there could be dire consequences for relations in the region if the dispute were decided in Singapore's favour.

4. It would therefore not be right for Singapore to embark on our second round pleadings with these extraneous and prejudicial remarks remaining unanswered. These include:

• an insinuation that Singapore may have concealed a letter from the Court;

• an allegation that Singapore is subverting the existing legal order, and that stability in the region will be affected if sovereignty over Pedra Branca is awarded to Singapore;

• an attribution of sinister motives to Singapore;

• an accusation that Singapore moved its navy belatedly to Pedra Branca and used aggressive methods to assert Singapore's claim; and

• a gratuitous "offer" to continue respecting Singapore's "right" to operate the lighthouse should Malaysia win the case.

5. This morning, I am therefore compelled to point out how baseless and tendentious Malaysia's allegations are and to set the record straight. My colleagues, who will follow me, will deal in detail with the other issues raised by Malaysia.

Malaysia's insinuation of concealment of letter

6. Let me begin by addressing the most disturbing insinuation. During last week's proceedings, Sir Elihu Lauterpacht insinuated that Singapore may have "deliberately concealed" Butterworth's 1844 letters of request addressed to the Sultan and Temenggong of Johor.

7. Sir Eli Lauterpacht said:
"Like many other documents in this case, these must originally have been in the Singapore archive. Malaysia has requested their production by Singapore, but Singapore has given no reply. In the circumstances we are obliged to consider two possible inferences that may be drawn from the available correspondence read as a whole. And I leave entirely aside any suggestion of a third inference, namely that Singapore has deliberately concealed these letters."1

8. This carefully contrived "non-statement" was expressed in public and came after both sides had said, in their written pleadings, that they were unable to locate the letters and after Singapore had repeated this in the first round of our oral pleadings2.

9. Malaysia's Agent also claimed that, in 1994, Malaysia requested Singapore to furnish a copy of the letter but Singapore did not respond to their request3.

10. Mr. President, Members of the Court, Singapore does not have a copy of Butterworth's letters. Singapore had searched for the letters over the years, at various archives but to no avail. In fact, I was personally involved in the search when I was then Dean of the Law Faculty and professor.

11. It is a matter of public record and knowledge that Singapore's archives are incomplete. In Dr. Mary Turnbull's history of The Straits Settlements, from which Malaysia also has extracted for her own judges' folder last week, she states very clearly that many volumes in a series of files in the Singapore archives are missing or in poor condition4. The relevant extracts can be found in tab 1 of the judges' folder. In any case, Malaysia will be aware that microfilm copies of Singapore's archival records are available in various institutions outside Singapore. For example, the microfilm copy of the Series "Governor's Letters to Native Rulers" from 1817 to 1872 had been bought by Monash University in 1961. The Butterworth letters are missing also from this microfilm copy.

12. In fact, Singapore has already explained why our records are incomplete in our written pleadings5. That was why Singapore decided in 1953 to ask the Johor Government whether they had any documents relating to Pedra Branca.

13. Secondly, it is not true that Singapore did not respond to the request from Malaysia. After the second round of bilateral consultations between Singapore and Malaysia in January 1994, Malaysia sent a diplomatic Note in May 1994 to Singapore asking for copies of various documents. Singapore replied to that request orally in June 1994, through our High Commission in Kuala Lumpur, by asking whether it was Malaysia's intention to continue the work of the bilateral consultations through correspondence, and suggested instead that the Parties should convene a third round of bilateral consultation for this purpose. In the event, the idea of convening a third round of consultations was not pursued because a decision was taken by both Governments, in September 1994, to refer the dispute to this Court6.

14. Thirdly, let us look at the facts. Why should Malaysia say that these document "must originally have been in the Singapore archive"7? Why? This letter was sent to Sultan Ali and to the Temenggong of Johor. Would it not be more logical for the original of the letters to be in Johor, not Singapore? However, Malaysia has stated that she also does not have the letters. Singapore, on our part, has accepted that in good faith.

Malaysian claims that Singapore seeks to subvert the long-established arrangements

15. I now turn to Malaysia's claim that Singapore "seeks to disrupt the long-established arrangements in the Straits"8 and to "subvert the arrangements reached between Johor and Great Britain over 150 years ago"9.

16. Malaysia's allegations are another attempt to impress on the Court that Malaysia is the victim and Singapore the perpetrator of some historic wrong against Malaysia. In fact, it is Malaysia who is trying to alter the status quo by suddenly claiming title to Pedra Branca after 130 years of inaction in the face of Singapore's exercise of Singapore's sovereignty over the island.

17. This is evident from Malaysia's telegram of 20 December 197910 informing all her overseas Missions that her 1979 map would "affect":

• Thailand;

• Vietnam;

• Singapore;

• Indonesia;

• Brunei;

• the Philippines; and

• China.

One map, seven countries affected.

18. As Malaysia had anticipated, her map indeed attracted protests from all seven countries11. Who then, may I ask, was seeking to upset the existing legal order?

19. Malaysia's Agent also says that if this Court finds in favour of Singapore, the stability of Malaysia's relationship with Indonesia will be affected12. This is another attempt to influence the Court with extraneous considerations which have no foundation.
Malaysia attributing sinister motives to Singapore

20. The Agent of Malaysia has also alleged sinister intentions on the part of Singapore. He speculates that Singapore may reclaim the sea around Pedra Branca to create a "maritime domain"13 with potential adverse impact on the environment, on navigation and on security14. He also alleged that Singapore wants to create "a military presence"15.

21. Malaysia's reference to the impact of possible reclamation plans is an attempt at scare mongering. Singapore is a law abiding country and is proud of its record in this respect.

22. Singapore's economic well-being and, indeed, our very survival depend on our status as a major port of call, which in turn is dependent on the smooth flow of maritime traffic through the Singapore Strait. We have never taken, and we will never undertake, any action which would endanger the marine environment, the safety of navigation and the security situation in the Singapore Strait.

23. Malaysia has also alleged that Singapore has adopted in the present case "an attitude which is more colonialist than the colonial power herself"16. This, as well as Malaysia's claim that Singapore is attempting to create a "maritime domain"on Pedra Branca, is ridiculous. Only last Thursday, Malaysia dismissed Pedra Branca as a tiny rock which, in relation to Pulau Pisang, is like "the nail of a little finger is to the hand as a whole"18.

Malaysia's accusation on Singapore navy's methods

24. Next, Malaysia complains about Singapore's "military presence" and alleges that Singapore sent its naval vessels to Pedra Branca in 1986, well after the critical date, raising tensions in the area and chasing away Malay fishermen.

25. Mr. President and Members of the Court, Singapore's naval presence around Pedra Branca is not a recent development. Since 1975, when the British navy withdrew from Singapore, the Singapore navy has established a specific patrol sector around Pedra Branca and has regularly patrolled there.

26. The presence of the Singapore navy around Pedra Branca is no different from its presence in any other part of Singapore's territory. It has always been peaceful and non-confrontational and has enhanced security and safety in the area. As for Singapore's policy towards fishermen in Pedra Branca waters, this was clearly stated in our diplomatic Note to Malaysia dated 16 June 1989:
"Singapore Marine Police and Navy patrols often find Malaysian vessels in Singapore territorial waters, fishing in what they claim to be traditional fishing grounds. Singapore has not arrested these boats. Wherever possible, it has allowed them to continue fishing. Where this is not possible for security or other reasons, the Singapore authorities have asked them to leave instead of arresting them." This Note can be found at tab 2 of the judges' folder.

27. Mr. President, Singapore has never arrested any Malaysian fishermen in Pedra Branca waters. On the other hand, it is Malaysia which has been aggressively arresting Singapore fishing vessels and raising tensions21, including through the use of physical violence against Singapore fishermen in the vicinity of Pedra Branca22. All these are documented in our written pleadings and can also be found at tab 3 of the judges' folder.

28. As for Malaysia's complaint that its officials could not go anywhere near Pedra Branca without being challenged by the Singapore navy23, I would like to remind my Malaysian friends that, way back in 1989, Singapore had indicated to Malaysia that we would be happy to invite Malaysian officials to visit Pedra Branca if they wished to do so24. This can be found at tab 4 of the judges' folder.
Malaysia's "offer" to continue to respect Singapore as lighthouse operator

29. Finally, in another attempt to influence the Court with extraneous considerations, Malaysia's Agent told the Court that Malaysia had always respected the position of Singapore as operator of the Horsburgh lighthouse and wished to place on record that it will continue to do so25.

30. There is no need, and certainly no basis for Malaysia to do so. Singapore's rights in relation to Pedra Branca are the rights of a country having sovereignty over the island, not that of a lighthouse operator. Singapore's activities in relation to Pedra Branca go well beyond the operation of a lighthouse operator. They include various sovereign acts on the island and in its territorial waters. Singapore's sovereign status over Pedra Branca had been recognized as such by Malaysia, until December 1979.

31. The questions for the Court, as agreed by both countries in the Special Agreement, concern sovereignty. This case is not about the right to operate the Horsburgh lighthouse.

32. Mr. President and Members of the Court, Singapore has had no choice but to rebut Malaysia's baseless allegations and insinuations. And I have done so with much reluctance. Every State which appears before this honourable Court in any dispute would of course do all it can to persuade this Court to decide in its favour. That is perfectly legitimate. However, we should seek to win by stating objective facts and submitting persuasive legal arguments, and not by resorting to unfounded political statements and making insinuations damaging to the integrity of the opposite Party.

33. Having said this, let me end by reiterating what Singapore's Agent said on 6 November, namely, that both countries agreed to submit our case to this honourable Court instead of allowing the dispute to adversely affect our overall good relations26. I have no doubt that both countries are committed to maintaining these friendly and peaceful relations.

34. Mr. President, Members of the Court, I thank you for your patience and attention. May I now request that you please invite the Attorney-General, Mr. Chao, to address the Court.