Oral argument by Ms Loretta Malintoppi, avocat à la Cour d'appel de Paris, member of the Rome Bar, Frere Cholmeley/Eversheds, Paris on 8 November 2007
The VICE-PRESIDENT, Acting President: Please be seated. Ms Malintoppi, you have the floor.
Ms MALINTOPPI: Thank you, Mr. President, Members of the Court. It is an honour and a privilege to appear before you again and to represent Singapore in these proceedings.
THE ABSENCE OF MALAYSIAN EFFECTIVITÉS
1. In his first speech, my friend and colleague Professor Pellet demonstrated that Malaysia has been unable to produce any evidence of an original title held by Johor over Pedra Branca, or any evidence of sovereign acts carried out on the island prior to 1847. For my part, I will show how Malaysia never conducted any acts of administration and control ⎯ or effectivités ⎯ on Pedra Branca at any time after Great Britain had acquired title over the island in the period 1847 to 1851.
2. The fact that Malaysia cannot point to a single act of administration and control over the disputed territory, Pedra Branca, represents a fundamental defect in its case. The absence of any Malaysian effectivités on Pedra Branca also stands in stark contrast to the acts of the British Crown in taking possession of the island discussed by Mr. Brownlie yesterday, and the evidence reviewed earlier today by Mr. Bundy demonstrating the manner in which Great Britain and Singapore thereafter confirmed and maintained that title by conduct undertaken à titre de souverain on the ground.
3. In trying to overcome this problem, Malaysia has been faced with a dilemma which resulted in an inconsistent and equivocal approach in its written pleadings.
The VICE-PRESIDENT, Acting President: Madam, may I ask you to slow down a little bit for the sake of the interpreters.
Ms MALINTOPPI: I shall.
4. On the one hand, Malaysia asserted in its Memorial that it "had no need actively to assert its title" to Pedra Branca because it possessed an alleged "original title" (MM, p. 117, para. 269). In its Counter-Memorial, Malaysia expanded on this reasoning by citing the Meerauge arbitration as authority for the proposition that its possession of Pedra Branca had lasted for so long that it is impossible to provide evidence of a different situation (CMM, p. 13, para. 21).
5. On the other hand, Malaysia clearly realizes the extent of its predicament, and the fact that the Court has always required evidence of an actual display of sovereignty on the ground to support a claim of title, because it still feels it necessary to invoke what it terms "assertions of sovereignty" which are said to constitute proof of Malaysia's view that Pedra Branca was regarded as Malaysian territory, and which are alleged to be confirmatory of its historic title. As I shall show, in actual fact, the acts in question ⎯ which are enthusiastically referred to as "numerous examples" by Malaysia ⎯ are nothing more than a handful of episodes, all irrelevant, as they concern matters having nothing to do with conduct carried out à titre de souverain on the actual territory in dispute.
6. Malaysia's Memorial identified four examples of Malaysian conduct which Malaysia contends confirm its claim. These were: (i) an internal 1968 letter of the Malaysian navy attaching two naval charts showing Malaysian territorial waters; (ii) a 1968 Petroleum Agreement between the Government of Malaysia and Continental Oil Company of Malaysia; (iii) the establishment of the breadth of Malaysia's territorial sea, and, (iv) the 1969 Indonesia-Malaysia Continental Shelf Agreement (MM, p. 117, para. 269). In its Counter-Memorial, Malaysia grouped these items together under the rubric of a so-called practice in the "maritime context" (CMM, pp. 262-263, paras. 555-556). In addition, it ventured to add two more examples to those already mentioned: First, the use of the waters around Pedra Branca by Johor fishermen, and second, the alleged patrolling of the waters around Pedra Branca by the Royal Malaysian Navy (CMM, pp. 240-260, paras. 515-549).
7. With your permission, Mr. President, I shall focus on each of the elements relied on by Malaysia in order to show that none of them individually, or taken together, are capable of confirming an original title over Pedra Branca, even assuming arguendo that such title existed in the first place, which ⎯ as Singapore has shown ⎯ is not the case.
1. The 1968 letter by Commodore K. Thanabalasingham and attached naval charts
8. Let me start with the so-called "Letter of Promulgation" of 16 July 1968 by Commodore K. Thanabalasingham of the Royal Malaysian Navy. This document was submitted by Malaysia as Annex 76 to its Memorial, while the charts attached to it were not reproduced in the same annex, but as maps 20 and 25 of Malaysia's Memorial Atlas. This internal and confidential letter ⎯ which is now on the screen ⎯ read as follows:
"1. The attached chartlets showing the outer limits of Malaysian Territorial Waters and foreign claimed waters in West Malaysia are promulgated for the information of Senior and Commanding Officers.
2. As can be seen, there are certain areas in which these limits have never been properly determined or negotiated and those promulgated are basically a determination with strict regard to the 1958 Geneva Convention.
3. Strict attention is to be paid to the Notes on certain chartlets which are also reproduced after the Index."
9. This document and its attachments call for a number of comments. First, the title of the letter is a misnomer: when something is "promulgated", it is ordinarily made known publicly and officially, but this was ⎯ by Malaysia's own admission ⎯ an internal and confidential letter, intended only "for the information of Senior and Commanding Officers". Singapore never saw it, something particularly striking in light of the fact that there was no shortage of opportunities during the negotiations between the Parties to raise this point. Therefore, the position raised in this letter and the charts were never advanced by Malaysia as a formal claim and Singapore never had an opportunity to challenge the contents of this letter and its attachments.
10. Malaysia contends that the fact that these were internal documents adds to their "weight and veracity". However, this argument misses the point. The point worth emphasizing is that Commodore Thanabalasingham's letter is an internal letter from the Chief of the Malaysian navy to his own officers. In other words, these were documents produced for internal Malaysian consumption and were never made known to Singapore. As such, they represent, at most, the view of just one department, a view which is also inconsistent with the conduct of the Malaysian Government as a whole. As the Court will recall, the same year when the letter was written, 1968, Malaysia demanded that Singapore stop flying the Singapore ensign at the Pulau Pisang lighthouse. However, no similar request was made in relation to Pedra Branca. As also discussed by Singapore in its written pleadings, well after 1968, Malaysia continued to recognize Singapore's sovereignty over Pedra Branca through the actions of its mapping agency and other official conduct.
11. Moreover, the so-called "Letter of Promulgation" specifies that the limits shown on the charts "are basically a determination with strict regard to the 1958 Geneva Convention". Therefore, at most, this document represented an interpretation of that Convention by the then Chief of the Malaysian navy for internal use, nothing more. As stated by the Arbitral Tribunal in the Eritrea/Yemen arbitration "internal memoranda do not necessarily represent the view or policy of any government, and may be no more than the personal view that one civil servant felt moved to express to another particular civil servant at that moment" (Award, Phase One, 9 October 1998, p. 28, para. 94).
12. This is more than enough to show that these documents lack any probative value with respect to Malaysia's putative claim of title.
13. As for the author of the letter ⎯ Rear-Admiral Thanabalasingham, as he now is ⎯ he makes the following observation in his affidavit which was filed as Annex 4 of Malaysia's Counter-Memorial: "As I examine this chart today [map 25 in Malaysia's atlas] and read the accompanying notes, 36 years after I issued the Letter of Promulgation, I am quite clear that, in 1968, we had no doubt that Pulau Batu Puteh (as well as Middle Rocks and South Ledge) were Malaysian territory."
14. In its Reply, Singapore responded to this statement, and recalled the similarity between this situation and the Court's ruling on a similar matter in the Nicaragua case. As in Nicaragua, the testimony of Rear-Admiral Thanabalasingham is simply the expression of an opinion, or, to borrow the words of the Court, the "mere personal and subjective evaluation of a possibility, which has yet to be shown to correspond to a fact". In other words, it is "not proof in itself", and ⎯ I would add ⎯ cannot replace contemporary evidence (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 42, para. 68). As held by the Court in the Congo v. Uganda case: "The Court will treat with caution evidentiary materials specially prepared for this case and also materials emanating from a single source." (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61.)
15. This statement was also cited with approval by the Court in the Genocide case (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgment of 26 February 2007, para. 213).
16. In the present instance, the Rear-Admiral's statement is not only not contemporaneous, for it is rendered 36 years after the facts on which he testifies, it is also not supported by the contemporaneous factual context. As Singapore has shown, there is no evidence on the record that Malaysia ever expressed the intent to act as sovereign over Pedra Branca or that it ever carried out any acts of sovereignty on the island itself. Neither the 1968 Letter of Promulgation and its attached chartlets, nor Rear-Admiral Thanabalasingham's affidavit changes this picture.
2. The 1968 Petroleum Agreement between the Government of Malaysia and Continental Oil Company of Malaysia
17. Malaysia also relies on the grant of an offshore petroleum agreement on 16 April 1968 to the Continental Oil Company of Malaysia ("Continental") as evidence of Malaysia's so-called appreciation that the concession area encompassed Pedra Branca and, as such, constituted State conduct on the part of Malaysia which was made public and not protested by Singapore. I will respond to these allegations in turn. For ease of reference, the Members of the Court will find a copy of the agreement at tab 36 of the judges' folder.
18. The map which is now on the screen is a reproduction of map 37 of Malaysia's map atlas depicting the Continental licence area. This is also at tab 36 of the judges' folder. The first thing to note about this map is that it does not show Pedra Branca. This is not surprising, given that the Petroleum Agreement expressly excluded from the concession area islands and international boundaries "wherever they may be established" (MM, Ann. 110, p. 31; see, also, MM, p. 119, para. 274) [place relevant quote on screen]. As Singapore pointed out in its Counter-Memorial, it is obvious that this petroleum agreement was without prejudice to the question of boundaries and the sovereignty of islands located where no boundaries had been agreed.
19. In its Reply, Malaysia accuses Singapore of failing to address the fact that the "area of uncertainty" south of the concession was "precisely defined" by one of the charts attached to the Letter of Promulgation I discussed earlier (RM, p. 168, para. 356). In other words, Malaysia is blaming Singapore for failing to interpret the 1968 Petroleum Agreement through a chart attached to a totally unrelated, and unpublished, internal Malaysian letter. However, there is no relation between the concession and the letter and there is no attempt on the part of Malaysia to show any other than through an artificial connection with the so-called "contemporaneous conduct of Malaysia" which is said to evidence Malaysia's "appreciation of sovereignty over this area". However, a claim to title requires more than vague presumptions. At the very minimum, Malaysia must show some actual exercise or display of State authority over Pedra Branca itself, and this it has not done.
20. It should also be noted that the co-ordinates of the concession were never made public, as Malaysia itself admits (RM, p. 169, para. 359), and no exploration was ever carried out on Pedra Branca or within its territorial waters. It is also significant that Malaysia's written pleadings ignored the fact, which was documented in Singapore's Counter-Memorial, that, only a few years after the agreement was signed, Continental relinquished a large portion of its concession including the whole area in the vicinity of Pedra Branca (CMS, Ann. 47). The result can be seen on the map appearing on the screen, which was produced by Singapore as Annex 47 of its Counter-Memorial and is also included at tab 36 of the judges' folder. In these circumstances, what was there for Singapore to protest?
21. As recalled by Singapore in its Counter-Memorial (pp. 169-170, para. 6.86), in the Indonesia/Malaysia case - Sovereignty over Pulau Ligitan and Pulau Sipadan - Malaysia's position on similar issues relating to oil concession activities was very different from the stance it adopts in this case. In the former case, Malaysia stressed the fact that the concessions in question did not encompass the disputed islands and were thus irrelevant for questions of sovereignty, had no bearing on sovereignty. The Court's Judgment summarized Malaysia's position in the following terms: "For its part, Malaysia notes that the oil concessions in the 1960s did not concern territorial delimitation and that the islands of Ligitan and Sipadan were never included in the concession perimeters. It adds that '[n]o activity pursuant to the Indonesian concessions had any relation to the islands'." (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 664, para. 78.) Consequently, the Court held that it could not "draw any conclusion . . . from the practice of the Parties in awarding oil concessions" (ibid., p. 664, para. 79).
22. In the light of the facts in this case, the same reasoning applies here with regard to the Continental oil concession: no conclusions can be drawn from the granting of the concession for purposes of determining sovereignty over Pedra Branca since the concession did not include the island. The concession agreement recognized that boundaries remained to be determined, and a large part of the concession area, including the area in the vicinity of Pedra Branca, was relinquished shortly after it was granted.
3. Malaysia's arguments based on the breadth of its territorial sea
23. Let me now turn to Malaysia's arguments based on the breadth of its territorial sea in the vicinity of Pedra Branca. In this connection, Malaysia relies on the Emergency (Essential Powers) Ordinance of 1969 - recalled by Mr. Bundy earlier - which it enacted in order to extend its territorial waters from three to 12 nautical miles. This Ordinance is mentioned by Malaysia in an attempt to show that it thereby extended its territorial waters "to and beyond" Pedra Branca (MM, p. 123, para. 279; RM, p. 169, para. 360). However, the legislation in question does nothing of the sort.
24. The Ordinance does no more than indicate the methodology which Malaysia intended to adopt in subsequently negotiating the delimitation of its territorial sea. As can be seen from the text of Section 12, paragraph 1, of the Ordinance ⎯ which is Annex 114 of Singapore's Memorial and Annex 111 of Malaysia's Memorial ⎯ the language essentially repeats the provisions of the Geneva Convention on the Territorial Sea and Contiguous Zone of 1958. There is no reference at all to Pedra Branca or to questions of sovereignty, and no public map was ever issued showing Malaysia's territorial waters as encompassing the waters around Pedra Branca until, arguably, Malaysia's continental shelf map was produced in 1979.
25. In its Reply, Malaysia accuses Singapore of failing to mention that Section 3 of the Ordinance made an express renvoi to certain Articles of the 1958 Geneva Convention including in particular Article 12 (RM, pp. 170-171, paras. 362-364). As the Court will be aware, this provision provides that ⎯ in the absence of agreement ⎯ States with opposite or adjacent coasts are not entitled to extend their territorial seas beyond the median line. Malaysia further notes that Section 6 of the Ordinance constitutes a variation from Article 12 to the extent that it stipulates that ⎯ in the event of an agreement with another coastal State ⎯ Malaysia may modify by order the areas of its territorial waters. With a remarkable leap of logic, Malaysia then claims that this legislation provides support for its contention that Pedra Branca fell within Malaysia's territorial waters.
26. Frankly, it is difficult to follow Malaysia's reasoning. Even when reference is made to Section 3 of the Ordinance and to the 1958 Geneva Convention, Malaysia's case is not furthered. The drawing of a median line clearly depends on the base points used for that purpose. Malaysia's Ordinance did not suggest that any such base points were situated on Pedra Branca or that Malaysia possessed a territorial sea around the island. There is nothing in the 1969 Ordinance relating to sovereignty and no reference to Pedra Branca and its related features. The Ordinance might have represented the expression of Malaysia's intention with regard to how it would approach future territorial sea delimitations. However, the fact of the matter is that the Ordinance does not provide for any delimitation, nor does it make any mention of Pedra Branca. In short, the Ordinance contains nothing that Singapore might have found objectionable or that might have given rise to a need to protest. What is significant on the other hand is that when there was cause to object, in other words when Malaysia finally did publish a map in 1979 depicting the outer limits of its territorial waters and continental shelf and its intentions became clear, then Singapore promptly protested.
4. The 1969 Indonesia-Malaysia Continental Shelf Agreement
27. Likewise, the Indonesia-Malaysia Continental Shelf Agreement of 1969 called for no reaction on the part of Singapore. As a bilateral agreement, the 1969 Agreement was without prejudice to the rights of third States. Moreover, as can be seen from the enlargement of the relevant area of the sketch-map now on the screen, and under tab 37 of the folders, the agreed delimitation line stayed well clear of Pedra Branca as confirmed by the co-ordinates listed in Article I, Section B, and depicted on the map.
28. Had Pedra Branca played any role in this delimitation as falling under Malaysia's jurisdiction, it would presumably have had some effect on the delimitation. However, there is no evidence whatsoever that Pedra Branca was taken into account. In such circumstances, what was there for Singapore to object to?
5. The use of the waters around Pedra Branca by Johor fishermen
29. Malaysia also contends that the waters around Pedra Branca were traditional fishing grounds of Johor fishermen. In its Counter-Memorial, it provided the affidavits of two local fishermen to that effect (CMM, Anns. 5 and 6) and in its Reply Malaysia added that the Oräng-laut also fished in Pedra Branca's waters (p. 132, para. 262).
30. The first comment to make in this respect is that these two statements only represent subjective, personal opinions regarding a certain state of things. Moreover, they are drafted in vague and general terms: only one of them specifically refers to isolated landings on Pedra Branca (CMM, Affidavit of Saban Bin Ahmad, Ann. 6), while the other merely mentions, without any details, that the lighthouse keepers were known to provide occasional shelter to fishermen (CMM, Affidavit of Idris Bin Yusof, Ann. 5, p. 4).
31. In any event, the views expressed in these affidavits as to the fishing practices of Johor fishermen do not support Malaysia's case since, even admitting that such practices were of the kind described in the affidavits, the fact that Johor fishermen may have occasionally used the waters around Pedra Branca as fishing grounds, as did fishermen from Singapore and other countries, is not capable in itself of establishing or confirming sovereign title. Malaysia recognizes as much when it concedes at paragraph 530 of its Counter-Memorial that "these are private acts" and not evidence of "conduct à titre de souverain by Malaysia".
32. What is striking, on the other hand, is the total absence of any evidence of Malaysian State activity relating to Pedra Branca, such as fishing legislation referring to Pedra Branca or any regulation of fisheries or enforcement activities in Pedra Branca's waters. Indeed, there is nothing in this case resembling any form of administrative or legislative control, not even the kind of licensing of activities related to fishing in the disputed islands that were carried out by Honduras in the recent Nicaragua v. Honduras case (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, paras. 190-198) and which was held by this Court to represent "a display, albeit modest, of the exercise of authority" (ibid., para. 196). In short, there is no evidence on the record of any exercise of authority undertaken by the Malaysian Government with respect to the actual territory in dispute.
33. In this connection, the observation of the Court in the case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) relied on again by this Court in the Nicaragua v. Honduras Judgment of last month (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, para. 194) is very relevant. As the Court stated: "activities by private persons, . . . 'cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority' (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 683, para. 140)".
34. Likewise, in the present case, the recent and limited private activities to which the witness statements produced by Malaysia refer, even if taken at face value, cannot even begin to prove the existence of Johor or Malaysian title.
6. The alleged patrols of the waters around Pedra Branca by the Royal Malaysian Navy
35. Finally, with respect to Malaysia's arguments concerning the alleged patrolling of the waters around Pedra Branca by Malaysian vessels, they also do not assist Malaysia in advancing its case, particularly since these arguments are entirely based on Rear-Admiral Thanabalasingham's affidavit (CMM, Ann. 4), representing his own personal evaluation, and nothing else.
36. As Malaysia acknowledges, Singapore did not formally establish its own navy until 1975 and was therefore not in a position to patrol the waters off Pedra Branca independently until then (RM, p. 250, para. 537). Malaysia also recognizes that it continued to "have some responsibility for the defence of Singapore under the Separation Agreement of 1965". The fact of the matter is that for a number of years the Parties continued to co-operate very closely on coastal defence, so much so that their activities were referred to as being "indivisible" in a joint communiqué of June 1968 (RS, Anns. 37, 38 and 39).
37. As recalled in Malaysia's Counter-Memorial (CMM, p. 249, para. 536) and in the affidavit (CMM, Ann. 4, paras. 11-15), vessels of the Malayan Naval Force, then the Royal Malayan Navy, and subsequently of the Royal Malaysian Navy, were based in Singapore for almost 50 years, until 1997. Given this situation, there is nothing extraordinary in the fact that Malaysian vessels may have transited in the vicinity of Pedra Branca on their way to or from the base in Singapore, and nothing in the documents produced by Malaysia shows that these transits could be appropriately termed as formal "patrols", or that they had any direct relationship with Pedra Branca and related features. In short, Malaysia's alleged "patrols" do not provide any evidence of Malaysian sovereignty over Pedra Branca itself. By contrast, as recalled by Mr. Bundy, for 28 years the Singapore navy routinely undertook specific enforcement actions in pre-designated areas just off Pedra Branca (RS, Ann. 50), and such official activities raised no protest from Malaysia until 2003.
38. It is also in this context that Rear-Admiral Thanabalasingham's affidavit in his recollection of his landing at Pedra Branca in 1962 must be viewed. Five years prior to that date, the Federation of Malaya had concluded a security agreement with Great Britain ⎯ the Anglo-Malayan Defence Agreement of 12 October 1957 ⎯ which provided for the protection of British territories in the Far East, including Singapore. Even admitting that the episode recounted by Rear-Admiral Thanabalasingham could amount to "patrolling" around Pedra Branca's waters, which is difficult to accept, at the time of these events the Royal Malayan Navy had an obligation to protect Singapore's waters under the Anglo-Malayan Defence Agreement. There was therefore nothing particularly noteworthy about this episode, which would have called the attention of the lighthouse keeper at the time and which could have triggered a protest from Singapore. In contrast, what is significant is that Rear-Admiral Thanabalasingham never protested the flying of Singapore's ensign on Pedra Branca. This could not have escaped his attention any more than the exact same ensign that flew over the lighthouse on Pulau Pisang, which Malaysia protested, as Mr. Bundy recalled earlier.
39. A pertinent example of the lack of specificity of the evidence filed by Malaysia is provided by two documents relating to a survey carried out by a ship of the British Royal Navy, HMS Dampier, in 1967. These documents consist of a letter of request for the survey together with an attachment, which is entitled "Details of Surveys in West Malaysia: March to May 1967" and a survey fair sheet (attachments 6 and 7 to Rear-Admiral Thanabalasingham's affidavit).
40. In the details of the survey provided in the attachment to the letter, there is no reference whatsoever to areas in the vicinity of Pedra Branca. In fact, the points mentioned in this document are situated along the Malaysian coast and do not concern any area of sea near Pedra Branca. Clearly, this is not a request for permission to survey the area around the island, and the fact that a vessel of the British Royal Navy, HMS Dampier, subsequently surveyed the waters around Pedra Branca, is no proof whatsoever that permission to conduct the survey was sought and obtained, and shows nothing regarding Malaysia's current claim to sovereignty over the island. At the time, as the Court will recall, vessels of the British fleet which were based in Singapore were frequently transiting and monitoring Singapore's waters, as part of their mission.
41. In conclusion, none of the activities adduced by Malaysia as confirmatory of a presumed original title amounts to an act undertaken à titre de souverain on the actual territory in dispute ⎯ Pedra Branca and related features.
⎯ Not the undisclosed 1968 letter by the then Commodore Thanabalasingham and its attached naval charts, for they were internal and confidential and they lack the necessary legal force to establish title or displace Singapore's sovereign title.
⎯ Not the 1968 Petroleum Agreement between Malaysia and Continental, for no legal conclusions can be drawn from the granting of an oil concession that expressly excluded all islands in the area, recognized that boundaries still had to be determined, and with respect to which no exploration was ever carried out and which was relinquished shortly after the agreement was signed.
⎯ Not the 1969 Ordinance concerning the extension of Malaysia's territorial sea because the Ordinance did nothing more than enunciate the methodology for future delimitations without identifying the areas which Malaysia considered to comprise its territorial sea, and did not mention Pedra Branca at all.
- Not the 1969 Indonesia-Malaysia Continental Shelf Agreement because it was res inter alios as far as Singapore was concerned and because in any event it avoided the area around Pedra Branca.
- Not the sporadic and non-exclusive fishing by Johor fishermen, for these activities are entirely of a private nature and have not been carried out on the basis of official regulations or legislation which might represent a display of authority over Pedra Branca.
And finally, not the alleged patrols of the waters around Pedra Branca by Malaysian vessels, for there is no evidence of actual patrolling demonstrating that Malaysia considered that Pedra Branca and related features were under its sovereignty.
42. At the end of the day, Mr. President, Members of the Court, Malaysia's conduct is fundamentally different from that of Singapore. Singapore has shown that its sovereignty over Pedra Branca was established by the taking of possession of the island in 1847-1851, and that Singapore's title was confirmed and maintained thereafter throughout formal acts of a sovereign nature, consistently carried out on the ground, and which have been expressly and implicitly recognized by Malaysia's own conduct.
43. In contrast, there are no competing activities of a similar nature on the part of Malaysia. The fragmented and vague activities that Malaysia adduces to support its claim are so remarkably thin and unpersuasive that they do not rise to the level of effectivités on Pedra Branca, and cannot, a fortiori, be confirmatory of any title to the island.
44. When all is said and done, the question as to which Party possesses sovereignty over Pedra Branca hinges on an assessment of the evidence showing the acquisition of sovereignty and the exercise of State functions on the ground. In the light of the facts of this case, the conclusion must be that Pedra Branca is, and has been, at all relevant times, subject to the territorial sovereignty of Singapore.
Mr. President, Members of the Court, this concludes my presentation. I thank you for your attention and I would be grateful if you could give the floor to Professor Pellet.