Second oral argument by Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of the United Nations International Law Commission, 9 November 2007

09 November 2007

Mr. PELLET: Thank you very much, Mr. President. Mr. President, Members of the Court, I have two pieces of good news for you. The first is that this is my final statement in Singapore's first round and the second is that it will be brief.


1. In paragraph 419 of its Reply Malaysia asserts: "This case is not simply about sovereignty over PBP" ("La présente affaire ne se limite pas à la souveraineté sur Pulau Batu Puteh"). It is entirely correct that the Court is requested in Article 2 of the Special Agreement
"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".

2. But it does not follow that the fates of these three features should differ. Granted, that could be the case if material in the record showed that they had received different treatment either de jure or even de facto. But that is not so, as Malaysia cautiously stated in its Memorial: "Il est vrai qu'il s'agissait de formations mineures, qui n'ont pas fait l'objet d'une attention particulière"39. This is actually an understatement, Mr. President: neither Middle Rocks nor South Ledge was ever, from any perspective, treated differently from Pedra Branca. Malaysia has not been able to cite any act prior to the critical date which was connected specifically with one or other of these features. And while Singapore, for its part, has been able to name a few40, they are clearly linked with its territorial sovereignty over Pedra Branca and, as a result, over the adjacent waters where Middle Rocks and South Ledge lie and there is nothing specific about them.

3. It is moreover telling that in all its written pleadings Malaysia consistently used the arguments it deployed in support of its claims to Pedra Branca in an attempt to justify its claims to Middle Rocks and South Ledge. In drafting its Reply, its counsel no doubt realized that they were very short of arguments in this regard, as the phrase "PBP, Middle Rocks and/or South Ledge" appears more than 80 times (I counted with the help of the Ctrl-F keys on my computer) in the Reply! Malaysia may well deny that these three features form a group but it nevertheless treats them as one throughout its pleadings.

4. Having made this preliminary comment, I intend, Mr. President, first to rebut the two arguments to the contrary which Malaysia still feebly offers in its Reply. I shall then very briefly review Singapore's position as to sovereignty over Middle Rocks and South Ledge.

5. Albeit in muted terms, Malaysia's Reply reiterates its contention that Pedra Branca, Middle Rocks and South Ledge have differing characteristics. While it devotes 12 pages to this, it raises only two arguments to this effect, with which I shall deal in turn in a few words:
(1) the three features are said to be separated from one another by navigable channels; and
(2) South Ledge ⎯ which the Parties concur is not capable of being appropriated separately ⎯ is claimed to lie in the territorial waters of Middle Rocks, not Pedra Branca.

1. The question of navigable channels
6. Malaysia goes to great trouble in attempting to establish that navigable channels separate Pedra Branca from Middle Rocks, on the one hand, and Middle Rocks from South Ledge, on the other. Besides the fact that this assertion attests a rather odd conception of what makes a navigable channel, I have difficulty, Mr. President, seeing how this helps Malaysia's argument.

7. To support its assertion as to the existence of "navigable" channels, Malaysia relies on a "report" (which can be considered to be an affidavit) by Captain Goh Siew Chong, which is annexed to its Reply41. According to this, Pedra Branca is separated from Middle Rocks by a channel at least 10.1 m deep and Middle Rocks from South Ledge by a different channel with a minimum depth of 18.3 m42. This is more or less exactly what Singapore said in its Memorial, basing itself on a study carried out in 2003 by the Maritime and Port Authority43.
[Slide 1: Extract from British Admiralty Chart 2403 (folded copy placed in the inside back cover of CMM) (judges' folder, tab 51)]

8. Does it follow that these can be called navigable channels? Yes, in that small boats can bravely venture into them at their own risk. But the significance of this in terms of navigation is nominal, given the relatively shallow draught of the vessels to which these channels are open. The British Admiralty Chart extract on the screen behind me shows this in the clearest possible way: Pedra Branca and Middle Rocks are circumscribed, together, by a single dotted line announcing one danger for navigation and indicating a depth of less than 10 fathoms (this is the white shape slightly resembling Snoopy). Further, on either side of the group formed by our three features we find channels which are far "more navigable", as seen in the diagram and marine charts appearing at tabs Nos. 50, 52 and 53 in the judges' folder. Moreover, no chart refers to a navigable channel between Pedra Branca and Middle Rocks, including ⎯ and this bears noting ⎯ British Admiralty Chart 3831, which, according to Captain Goh, was drawn up for the most part from data collected by the HMS Dampier during the 1967 survey44. Nor can Malaysia point to any nautical guide or instructions whatsoever indicating a navigable channel at this location: one exists only in the very biased imagination of Captain Goh.
[End of slide 1]

9. It would seem that the whole point of the exercise for Malaysia is to show that Pedra Branca, Middle Rocks and South Ledge do not form a "group". This notion is, in all honesty, a very relative one, as Captain Goh expressly observes in his affidavit: "D'un point de vue hydrographique, il n'existe pas de facteur spécifique qui détermine si un ensemble d'îles constitue un groupe d'îles ou une autre formation."45 Will the three features be said not to form a group because small boats can sail between them? Or will they be considered a group because they are hemmed in by two far deeper channels, by which they can be skirted? I do not think that there is an incontrovertible answer to the question from the legal point of view. And, more importantly, I think that this is of virtually no significance.

10. "Group" or not, the fact is, as I pointed out a few moments ago, that the three features have always been seen as a whole and treated as one. And this inevitably brings to mind a passage from Max Huber's award in the Island of Palmas case, which I quoted two days ago in respect of Johor's untraceable title to Pedra Branca46, a passage in which the renowned arbitrator, after having ruled out contiguity as a principle to be applied in settling territorial disputes, nevertheless added:
"As regards groups of islands, it is possible that a group may under certain circumstances be regarded as in law a unit, and that the fate of the principal part may involve the rest. Here, however, we must distinguish between, on the one hand, the act of first taking possession, which can hardly extend to every portion of territory, and, on the other hand, the display of sovereignty as a continuous and prolonged manifestation which must make itself felt through the whole territory."47

11. This is precisely what happened in the present case: Britain's act of first taking possession of Pedra Branca founded Singapore's title to the principal island. And the Straits colony and then Singapore subsequently exercised their sovereignty over the neighbouring minor maritime features insofar as they, plainly uninhabited and difficult of access, lent themselves to it.

2. The inclusion of South Ledge in the territorial waters of Pedra Branca and Middle Rocks

12. Mr. President, the two Parties agree that, contrary to Middle Rocks, South Ledge is a low-tide elevation48 which, as such, cannot be subject to separate appropriation (Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 102, para. 207; see also, 8 October 2007, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, para. 141). Consequently, in its Counter-Memorial, Malaysia asserts that "South Ledge would attach to Middle Rocks rather than to PBP"49. It enlarged upon this topic in its Reply, in which it explains that:

"Nul ne peut contester que South Ledge est plus proche de Middle Rocks que de PBP. Middle Rocks peut tout autant que PBP engendrer une mer territoriale sur le plan juridique. Affirmer que Middle Rocks et South Ledge se trouvent au sein de la mer territoriale de PBP ne sert donc absolument à rien. Si la Cour reconnaît que PBP et Middle Rocks sont des formations distinctes, comme la Malaisie le soutient, South Ledge sera dès lors située au sein de la mer territoriale engendrée par Middle Rocks, non par PBP."50

13. Singapore readily accepts that Middle Rocks generates a territorial sea of its own and that it is therefore correct to consider that, if Middle Rocks does not constitute a single group with Pedra Branca, or if it falls under different sovereignty, it would be more accurate to say that South Ledge is included in the territorial sea of Middle Rocks and not in that of Pedra Branca. The problem for Malaysia is that neither of these two "ifs" is known. For the reasons I have just given ⎯ and which are not based on the legal concept of territorial sea ⎯ the "archipelago" formed by Pedra Branca and Middle Rocks constitutes a unit and, therefore, South Ledge lies in their joint territorial sea.

14. Furthermore, Malaysia's argument is highly artificial and formalistic. The few acts performed by Singapore on the two features (Malaysia, it should be noted, has no acts to its credit) were performed because those features lie in the immediate vicinity of Pedro Branca and within the limits of its territorial waters.

3. Brief résumé of Singapore's position

15. This situation, Mr. President, is, moreover, the simple commonsense view on which Singapore's position is based. The fate of Pedra Branca and the fate of its tiny dependencies ⎯ Middle Rocks and South Ledge ⎯ are necessarily linked. If sovereignty over Pedra Branca belongs to Singapore ⎯ which is the case ⎯ sovereignty over either of these maritime features also inevitably belongs to Singapore, even though, in fact and in law, they exhibit characteristics which are in part distinct: South Ledge is a low-tide elevation, which does not lend itself to separate appropriation, whereas the rocks forming Middle Rocks are, legally, islands within meaning of Article 121 of the Convention on the Law of the Sea. But these islands are so small, so inhospitable, so close to Pedra Branca too, that there is to say the least "a strong presumption" (to use an expression in the 1998 Award in the Eritrea/Yemen case51) in favour of their being treated as forming part of the principal island. All this, in any case, in the absence of "better title"52 of which Malaysia has not provided even a scintilla of proof.

16. There seems to me to be little point in rehearsing here all the elements leading to this conclusion; a simple list will suffice; they are:

⎯ the proximity of the three features to one another;

⎯ the geomorphology;

⎯ the toponymy (South Ledge is defined by its position in relation to Pedra Branca; Middle Rocks is defined by its intermediate position);

⎯ the situation of the three features between Middle Channel and South Channel (whereas, let me remind you, there is no navigable channel between them worthy of the name);

⎯ the cartography;

⎯ the fact that they are lumped together in guides and nautical instructions; and

⎯ the impossibility of distinguishing the acts of sovereignty performed on South Ledge and Middle Rocks from those relating to Pedra Branca ⎯ bearing in mind that, whereas Singapore has been able to instance a number of acts of this type, Malaysia has not (and also that the four “effectivités” which it evokes in this connection ⎯ and which are no such thing ⎯ are precisely the same (mere) four facts on which it relies to support its claim on Pedra Branca).

17. This list is self-sufficient, I believe, Mr. President; sovereignty over Middle Rocks and South Ledge belongs to Singapore, on the same basis as sovereignty over Pedra Branca. 

I thank you most sincerely, Members of the Court, for your renewed attention and would ask you, Mr. President, to give the floor to the Deputy Prime Minister of Singapore, Mr. Jayakumar, who will briefly summarize our argument in support of this conclusion. 

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