JOHOR'S EXPRESS DISCLAIMER OF ANY TITLE TO PEDRA BRANCA
1. Mr. President, Members of the Court, while Singapore has presented in detail the circumstances in which Johor, in 1953, expressly disclaimed any title to Pedra Branca1, Malaysia has been very guarded over this crucial episode2. Crucial, I hasten to explain, not because that disclaimer would provide the basis for Singapore's title to the island, but because it strikingly confirms that Malaysia had no claim over Pedra Branca. I would note in passing, particularly for the attention of the interpreters, that the English word "disclaimer" is doubtless a better reflection of the legal realities of the episode in question, but that, unfortunately, there is no exact equivalent in French.
2. The truth of the matter is that if I were to confine myself to what Malaysia says on the question in its Reply, these oral pleadings could be very brief: apart from reiterating its previous positions in the form of mere affirmations ⎯ to which Singapore has already replied ⎯, it confines itself to seeing "a glaring non sequitur" between, on the one hand, the basis for Singapore's title to Pedra Branca ⎯ its taking of possession in 1847 followed by the construction of the lighthouse ⎯ and, on the other, its reliance on the 1953 correspondence3.
3. It seems to me, Mr. President, to go without saying that there is no contradiction between these two different but complementary lines of argument submitted by Singapore.
4. As Mr. Brownlie showed the day before yesterday, Great Britain acquired the title to which Singapore succeeded by its taking of possession of Pedra Branca, an uninhabited island and terra nullius, in 1847 and by constructing the Horsburgh lighthouse on it. Thereafter, it continuously administered the island à titre de souverain, without the slightest challenge, and without Malaysia being able to point to any act of administration at all, however insignificant, on the part of Johor. This amply suffices to establish Singapore's sovereignty over the island; and it is not necessary to ask oneself whether the effectivités, numerous, coherent and diversified, that we have described could take the place of a title, since they undoubtedly constitute a "peaceful and continuous display of State authority"4 (Legal Status of Eastern Greenland, Judgment, P.C.I.J., Series A/B, No. 53, p. 45), particularly convincing in view of the island's small size and inhospitable character. Here, they merely confirm Singapore's title. All these elements bear witness, to borrow the expression used several times by the Court in the Cameroon v. Nigeria case on the question of where sovereignty over Bakassi lay (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, pp. 409-412, paras. 213-217), to a "common understanding of the Parties" as to sovereignty over Pedra Branca.
5. And indeed the same is true of the 1953 exchanges of correspondence: they share that "common understanding". And it is not really useful to ask oneself whether, in the absence of any other title, this correspondence ⎯ and, in particular, the letter from the Acting State Secretary of Johor dated 21 September 19535 ⎯ might in itself constitute a territorial title: that title exists independently of those exchanges of correspondence. They do not replace it, but they confirm it.
[Slide 1: Letter No. SSJ.1120/53/6 dated 21 September 1953 to the Colonial Secretary, Singapore from Mr. Seth Bin Saaid, Acting State Secretary of Johor (MS, Vol. 6, Ann. 96) (judges' folder, tab 43)]
Or, to be more precise, the letter from the State Secretary establishes the absence of title on the part of Johor (and, in consequence, of its successor, Malaysia): "the Johore Government does not claim ownership of Pedra Branca" and, by the same token, that letter establishes the existence of the title of Singapore, since no third State has ever voiced the slightest claim to the island.
6. The fact of the matter is that Malaysia does not seriously contest either the course or the scope of this episode. But it nevertheless seems to us to be sufficiently important and significant to justify our dwelling on it again for a few moments. Allow me first, Mr. President, briefly to recapitulate the facts.
7. The whole affair begins with a request dated 23 September 1952 from the Director of Marine of the Federation of Malaya to the Master Attendant of the Colony of Singapore concerning the position regarding Pulau Pisang6, on which Rodman Bundy has just spoken at length. The Master Attendant's reply, dated 29 September, reveals, first, that the Land Office was asked to investigate the matter and, secondly, that the enquiry was extended to Pedra Branca ⎯ which was not mentioned in the letter from the Director of Marine of the Federation7. For its part, in a minute dated 7 October 1952 entitled "Horsburgh Lighthouse", the Chief Surveyor informs the Commissioner of Lands of the Colony of Singapore that
"[l]ors des discussions relatives aux eaux territoriales de Singapour, en 1937, il semble qu'aucune mention n'ait été faite de Horsburgh mais, dans une note du 14/7/52 à la Surveillance de l'administration des actifs dans CSO.11293/52, j'ai émis l'avis que Singapour devrait revendiquer une limite de 3 milles autour de ce point"8.
8. Four months later, on 6 February 1953, the Master Attendant, in a letter to the Colonial Secretary, expressed concern as to whether any action had been taken in response to that proposal. After citing the minute that I have just read out, he asked: "A la lumière de ce qui précède, puis-je savoir si une décision a déjà été prise?"9. It was following this reminder ⎯ concerning which Malaysia maintains a prudent silence in the present proceedings ⎯ that, on 12 June 1953, the Master Attendant, J. D. Higham, asked the British Adviser at Johor, on behalf of the Colonial Secretary, for information concerning the legal status of "le rocher appelé Pedra Branca qui se trouve à environ 40 milles de Singapour et sur lequel est situé le phare Horsburgh"10. He stresses ⎯ and this is an important indication ⎯ that: "[l]a question est d'importance pour la délimitation des eaux territoriales de la colonie". A copy of that letter had been forwarded to the Chief Secretary of the Federation of Malaya.
9. Higham considers that the legal status of Pulau Pisang ⎯ constructed on another island much larger than the one with which we are concerned ⎯ is "quite clear": it falls under the sovereignty of Johor. On the other hand, he is unsure of the status of Pedra Branca, concerning which he gives a number of items of information, not all of them equally reliable:
⎯ the first is correct: the island is situated outside the limits ceded to the East India Company in 1824 (I would stress that Malaysia makes much of this point11, but that we do not for a moment challenge it).
[End of slide 1]
[Slide 2: Extract from a despatch by the Governor of Singapore to the Governor-General in Bengal dated 28 November 1844 (MS, Ann. 93, App. B) (judges' folder, tab 44)]
⎯ The second is false: Pedra Branca is not "mentionnée dans la dépêche du gouverneur de Singapour en date du 28 novembre 1844". The extract from the despatch in question which is annexed to the letter is worded thus: "Ce rocher fait partie des territoires du Rajah de Johore , qui a, avec le tamongong, volontairement consenti de le céder gracieusement à la Compagnie des Indes orientales."12 It does not include the name Pedra Branca, which was inserted in handwriting in circumstances that have not been explained, but this insertion is clearly erroneous; the rock in question ("this Rock") cannot be Pedra Branca. And, first, for one obvious reason: the author of the despatch, Butterworth, the Governor of Singapore, indicated that it illustrated the position of the "Rock therein alluded" ⎯ of the rock of which he was speaking ⎯ "with reference to Pedra Branca". Now it is impossible to pinpoint a place's location by reference to itself . . . If you explain to me how to get to the Peace Palace by saying where it is relative to the Peace Palace, I have no chance of finding it! Admittedly, I am fairly sure of my way . . . It is regrettable that the sketch specifying the position of the rock, which Butterworth appended to his despatch, seems to have been lost, but, in any case, as Singapore has fairly incontestably shown, the rock in question could only be Peak Rock13. And I would add that, strange to relate, Malaysia has never produced its copy of Higham's letter ⎯ which is a great pity, for reference to the original might perhaps have enabled us to gain a better understanding of the origin of the erroneous handwritten insertion, which remains a mystery.
[End of slide 2 ⎯ back to slide 1]
⎯ On the other hand, the third and last item of information given by Higham in his letter of 12 June 1953 is indisputably correct, even if the conclusion he draws from it is cautiously vague: "Ce phare fut construit en 1850 par le gouvernement de la colonie, qui en a toujours assuré l'entretien depuis lors, ce qui, de par l'usage international, confère sans doute à la colonie certains droits et obligations"; but that caution is attributable to the fact that he had no document at his disposal and could not be sure that none existed; if Singapore's archives had been complete, there would have been no need for his request (or, moreover, for the Colony's whole démarche).
10. What followed is well known:
- the Secretary to the British Adviser, Johor, forwarded the request for clarification to the State Secretary of Johor, commenting that the State Secretary "souhaitera certainement consulter le commissaire à l'aménagement du territoire et aux mines, le géomètre en chef et toutes archives existantes avant de communiquer l'avis du gouvernement de l'Etat au secrétaire principal"14;
- it is thus after a careful enquiry that the Acting State Secretary replied, on 21 September 1953, and thus after having allowed himself time to reflect: "J'ai l'honneur ... de vous informer que le gouvernement du Johor ne revendique pas la propriété de Pedra Branca"15;
- armed with this answer, as laconic as it is unambiguous ⎯ with all due respect to our Malaysian friends ⎯ the Attorney-General of Singapore considered that, on that basis, "we can claim Pedra Branca as Singapore territory"16; and
- the Colonial Secretary informed the Master Attendant of that decision on 13 October 195317.
[End of slide 1]
II. The legal significance of the disclaimer by Johor
11. Mr. President, Malaysia points out that "la lettre du secrétaire d'Etat par intérim du Johor du 21 septembre 1953 n['est] pas un modèle de clarté "18. This is a convenient ⎯ though hardly convincing ⎯ means of disposing of it, since the fact that a text fails to match Malaysia's argument does not necessarily mean that it lacks clarity. And the following, on the contrary, is crystal-clear: "the Johore Government does not claim ownership of Pedra Branca". The text is clear; the circumstances and the context in which the Johor State Secretary's letter was sent are clear; its legal significance is clear.
(a) The text
12. Malaysia attaches some importance to the word "ownership" used in the letter of 21 September 195319. Singapore does not contest in any way that the ownership of a lighthouse may be dissociated from the sovereignty exercised over the territory on which it has been erected, as was very clearly shown by the presentation of Mr. Bundy. In this case, however, there is no doubt that the State Secretary of Johor was referring not to ownership of the lighthouse, but to sovereignty over the island.
13. The "ownership" in question concerns precisely the island itself, not the lighthouse. And Malaysia is the first to make this distinction in its pleadings20, often in a debatable way, moreover21. Here, in any event, it is perfectly clear that the authorities of Johor (not only the State Secretary, but also the Commissioner for Lands and Mines and the Chief Surveyor of Johor, all of whom were consulted) understood that the information sought by Singapore did indeed concern the island as a whole, and not merely the lighthouse. Nor does Malaysia itself hesitate to use the word "ownership" in its pleadings, when it is unquestionably referring to sovereignty over the island as such22, and you will find examples of this in the verbatim records.
14. This assimilation does not result solely from the phrase "le Gouvernement du Johor ne revendique pas la propriété de Pedra Branca"; it also derives from what comes before it: "J'ai l'honneur de me référer à votre lettre ... du 12 juin 1953 ... concernant la question du statut du rocher Pedra Branca à quelque 40 milles de Singapour". In writing thus, moreover, the State Secretary is merely adopting the very terms which Higham used on behalf of the Colonial Secretary, Singapore: "It is how [probably: now] desired to clarify the status of Pedra Branca"23. Of Pedra Branca, not of the Horsburgh lighthouse. And if there could still be the slightest doubt as to the meaning of the question (and consequently the answer), it may be pointed out once again, if I can put it thus, that Higham "dotted the i's" by stating that the information he was seeking was connected with the delimitation of Singapore's territorial sea: "The matter is relevant to the determination of the boundaries of the Colony's territorial waters."24 This left no doubt as to the purpose of the enquiry: the ownership of a lighthouse does not generate any territorial sea, unlike sovereignty over an island.
15. In other words:
- in spite of the distance involved (the State Secretary of Johor uses the phrase: "Pedra Branca Rock some 40 miles from Singapore"), which could have led to some hesitation in attributing sovereignty over Pedra Branca;
- Johor formally declines the latter: it "does not claim ownership of Pedra Branca";
- of Pedra Branca, thus of the whole of the island (and not merely the lighthouse built on it);
- all this, in answer to a question which leaves no doubt as to its purpose: it was a matter of determining the legal status of the island, in order to establish the extent of Singapore's territorial waters, in other words to resolve an issue of straightforward public international law, and not in any sense, contrary to what Malaysia would have us believe, an issue of ownership in private law.
(b) The circumstances and the context
16. Mr. President, the context in which Johor's answer was given ⎯ which I attempted to describe concisely a moment ago ⎯ leaves no doubt as to the obvious correctness of this interpretation, from the standpoint of both the prior and the subsequent events.
17. In the period leading up to the date of the letter, two points are worthy of attention:
(1) Singapore's action reflects a more general concern about the determination of the colony's territorial waters following this Court's Judgment in the Fisheries case25; this concern is, moreover, doubtless also linked to the initial request from the Director of Marine of the Federation of Malaya concerning Pulau Pisang26; and
(2) the letter of 12 June 1953, written by Higham on behalf of the Colonial Secretary, undoubtedly attests to some uncertainty (otherwise, any enquiry would have been unnecessary), but it certainly does not show, contrary to what is stated by Malaysia in its Reply, that Singapore "was aware that PBP was part of the Sultanate of Johor"27.
18. It is true that the very fact that this request was made demonstrates that Singapore or, in any event, certain colonial administrative authorities, wished to satisfy themselves that the Colony's sovereignty over Pedra Branca was not disputed and that Singapore could claim territorial waters around the island. As early as July 1952, the Chief Surveyor had taken a clear position to this effect and had expressed the opinion that Singapore should claim a 3-mile limit around the island28. However, in the absence of conclusive evidence one way or the other (unlike the situation that obtained for Pulau Pisang or Pulau Merembong29), the colonial authorities, while expressing the conviction that the construction and maintenance of the lighthouse ever since 1950 "by international usage no doubt [confer] some rights and obligations on the Colony"30 considered that the status of Pedra Branca needed to be confirmed.
19. This view, as I have already pointed out, was based on an error ⎯ since Higham, relying on a mysterious handwritten addition, interpreted Butterworth's despatch of 28 November 1844 as concerning Pedra Branca, whereas it referred to Peak Rock. But this makes the answer all the more revealing: despite this error, which would have constituted a tempting "inducement" to a claim of sovereignty if such a claim had been the least bit plausible, Johor declined: "le Gouvernement du Johor ne revendique pas la propriété de Pedra Branca". However, and this is also worthy of note, Johor, at that period in any case, was not at all disinterested in the precise extent of its territorial sovereignty, as is clearly shown by the reaction of the British Adviser in Johor, who stated that, before replying to Higham's letter of 12 June 1953, "[l]e secrétaire d'Etat souhaitera certainement consulter le commissaire à l'aménagement du territoire et aux mines, le géomètre en chef et toutes archives existantes..."31.
20. What are we to conclude from all this, Mr. President? "[En]... juin 1953, ..., [Singapour] n'avait pas le moindre sentiment que Pulau Batu Puteh faisait partie de son territoire"32 as is claimed by Malaysia? That would no doubt be going too far. The Chief Surveyor and also, apparently, the Master Attendant, that is to say the two colonial administrators most conversant with the actual conditions of administration of the island, appeared to have no doubt about Singapore's sovereignty over Pedra Branca. For their part, the higher authorities, anxious not to encroach upon the territorial sovereignty of Johor, sought to hedge themselves about with all necessary precautions before undertaking the delimitation of the Colony's territorial waters; and it should not be forgotten that some of the colonial archives had been destroyed during the war, a fact of which those authorities were aware. And it would appear that this was done quite systematically since, in the case of Pulau Pisang, for instance, the Master Attendant of Singapore did not endorse the views of the Director of Marine of the Federation of Malaya until after "[qu'il a été possible de] retrouver dans le Johore Registry of Deeds un acte daté du 6 octobre 1900"33. The Colony's authorities adopted the same approach with regard to Pedra Branca, but with the opposite result, since they obtained confirmation that "the Johore Government does not claim ownership of Pedra Branca".
21. I would add that it is paradoxical, to say the least, that Malaysia should stubbornly affirm that "cette correspondance indique également que le secrétaire colonial de Singapour avait une idée précise de l'étendue de la souveraineté de Singapour"34. Higham's letter of 12 June 1953 undoubtedly shows that he was aware that Pedra Branca was situated outside the limits fixed by the Crawfurd Treaty of 1824, but he did not at all infer from this that the island did not belong to Singapore: it was precisely in view of this fact that he sought information from Johor about the existence of any document that would make it possible to determine its legal status. The answer from the State Secretary of the Sultanate shows that none existed, since ⎯ and this can never be repeated too often ⎯ following his researches, "the Johore Government does not claim ownership of Pedra Branca".
22. Mr. President, that is the reasonable interpretation that must be made of what happened in the period leading up to Johor's answer of 21 September 1953. And this confirms in all respects the conclusions that can be drawn from the actual text of that letter. The same is true of the "later circumstances", that is, the resulting action taken, even if there is less to be said on this matter.
23. Clearly, the answer from the State Secretary of Johor dispelled any uncertainties. Since the Sultanate made no claim to Pedra Branca, the Singaporean authorities drew the necessary conclusions and, as was immediately announced by the Attorney-General, "sur le fondement de [la réponse de Johor,] [n]ous pouvons revendiquer Pedra Branca comme faisant partie du territoire de Singapour"35. Needless to say, this conclusion in no way confirms, as is alleged by Malaysia, "même à cette époque, Singapour ne considérait pas que Pulau Batu Puteh faisait déjà partie de son territoire"36. It simply shows the scruples of certain conscientious colonial officials who recognized the incomplete nature of the archives saved from destruction during the war: the fact is that Singapore, in the absence of any claim by Johor, did indeed have sovereignty over the island.
24. This is also what was understood by the Colonial Secretary who, in his eventual reply, dated 13 October 1953, to the Master Attendant's question of 6 February37, referred to the answer from Johor and conveyed the conclusion drawn therefrom by the Attorney General38. In addition, this note adds further confirmation to what I was saying a few moments ago about the significance of the word "ownership" which appears in the letter from the State Secretary of Johor of 21 September: "[L]e secrétaire d'Etat du Johor déclare que le Gouvernement du Johor ne revendique pas la propriété du rocher de Pedra Branca sur lequel se trouve le phare Horsburgh" (emphasis added). It is in fact the island that is referred to, not the lighthouse.
(c) The legal significance of the 1953 exchange of correspondence
25. Until now, Mr. President, my argument has been "analytic" and I have sought to examine the significance of each of the documents available to us in isolation. Before moving on from this important episode, I would like, with your permission, to offer a more "synthetic" reminder of the legal significance which should be attributed to it as a whole - if only because "in judging the effect of these notes too much importance must not be attached to particular expressions here and there. The correspondence must be judged as a whole." (Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J. Series A/B, No. 53, p. 54; see also p. 60.)
26. In reflecting on this aspect of the present case, one cannot but be struck by its similarities with the Eastern Greenland case settled by the Permanent Court of International Justice. In its Judgment of 5 April 1933, the Court recognized Danish title to the disputed territory on account of the peaceful and continuous exercise of State authority by that country (ibid., inter alia pp. 51, 54 and 64), but that did not prevent it from inquiring as to the legal consequences of "certain [Norwegian] undertakings which recognized Danish sovereignty over all Greenland" (ibid, p. 64). These include the famous "Ihlen Declaration", which is of interest to us on more than one count.
27. In it, Ihlen, Norway's Minister for Foreign Affairs, informed "the Danish Minister that the Norwegian Government would not make any difficulties in the settlement of this question", that is to say that it would not be opposed to "the Danish Government extending their political and economic interests to the whole of Greenland" (ibid., p. 70). Without having to resolve the issue - with which the literature is fascinated - of whether Norway was in that case bound by a verbal agreement with Denmark or by a unilateral act, the Court held "it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs" (ibid., p. 71; see also Nuclear Tests (Australia v. France) (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 267, para. 43; p. 472, para. 46 or Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), I.C.J. Reports 2006, p. 28, paras. 49-50).
28. Mutatis mutandis, the same could be said in the present case: a competent organ of the Colony of Singapore approaches the Government of the neighbouring State with an enquiry about the legal status of a territory. The answer is unequivocal (the "le Gouvernement du Johor ne revendique pas la propriété de Pedra Branca"). It is equally indisputable that, there being no reason to dwell on the particular capacity of the person who gave the reply, as that person unquestionably possessed the capacity to bind the State (ibid., pp. 27-28, paras. 47-48), such a reply is binding on Johor: its author was a person who, according to the 1948 Constitution of Johor, was none other than "the principal officer in charge of the administrative affairs of the State" (MS, Ann. 88, Art. VI (1)).
29. The comparison can moreover be taken further. It is certain that just as the Ihlen Declaration did not constitute "a definitive recognition of Danish sovereignty" over the whole of Greenland (Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J. Series A/B, No. 53, p. 69), so too the letter from the State Secretary of Johor does not explicitly recognize Singapore's sovereignty over Pedra Branca - we do not claim the contrary and that was not in any case what Higham had asked. However, just as Norway was under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole as a result of the undertaking involved in the Ihlen Declaration of 1919 (ibid., p. 73), so too Malaysia, as Johor's successor, cannot now invoke against Singapore a title to territory which the State Secretary of Johor acknowledged did not exist in 1953.
30. Indeed, the State Secretary of Johor ⎯ and this goes further then the Ihlen Declaration ⎯ does not simply make a declaration of intent regarding a project, he states a fact: "the Johore Government does not claim ownership of Pedra Branca". That is an assertion which was sufficient in itself and did not require any response by Singapore. To borrow the expression used by the Court in the Nuclear Tests cases, "[i]n these circumstances, nothing in the nature of a quid pro quo, nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect" (Nuclear Tests (Australia v. France) (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 267, para. 43; p. 472, para. 46). And, Mr. President, I cannot refrain from quoting once again the famous separate opinion by the Vice-President, Judge Alfaro, in the Court's Judgment in the Temple of Preah Vihear (Cambodia v. Thailand) case: whatever terms are employed to designate the principle, its
"legal effect . . . is always the same: the party which by its recognition, its representation, its declaration, its conduct or its silence has maintained an attitude manifestly contrary to the right it is claiming before an international tribunal is precluded from claiming that right (venire contra factum proprium non valet)" (Judgment, Merits, I.C.J. Reports 1962, p. 40).
31. In other words, Mr. President, I readily acknowledge that the letter from Johor of 21 September 1953 does not constitute positive proof that it is Singapore which enjoys territorial title to Pedra Branca. But it absolutely rules out sovereignty over the island belonging to Malaysia. In the absence of any challenge from a third State, that can only lead you, Members of the Court, to find that Singapore has sovereignty over Pedra Branca.
Members of the Court, I thank you for your kind attention and ask you, Mr. President, to give the floor to Ms Loretta Malintoppi.