(Translated) 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, 7 November 2007
JOHOR HAD NO TITLE TO PEDRA BRANCA AND DID NOT GIVE PERMISSION TO BUILD THE LIGHTHOUSE
I. Johor's lack of title to Pedra Branca
A. Lack of probative documentary material establishing the existence of Johor's original title to Pedra Branca
18. Mr. President, Members of the Court, when I broke off my presentation yesterday I had described the mere handful of documents (only three) relied on by Malaysia and which, it claims, mention Pedra Branca and are proof of the original title on which it relies. As I showed, that makes those documents say much more than they actually do. However, the fact that these are Malaysia's "big guns" shows how short of artillery it is. It nevertheless fires off a few more salvos which fall even further short of their target as they do not mention Pedra Branca at all.
2. The other documents relied on by Malaysia
19. Besides what I presented yesterday, the alleged evidence of original title relied on by Malaysia is the following (once again its very paucity shows to how tricky this exercise is):
- a letter of 10 January 1824 from John Crawfurd to the Governor-General of the Indies;
- the two 1824 treaties between Great Britain and the Netherlands on the one hand and the Sultan and the Temenggong of Johor on the other; and
- the Presgrave Report of 1828.
Malaysia also relies upon a number of documents dating from after the British took possession of Pedra Blanca which, it claims, also confirm Johor's original title to Pedra Branca of course. These are:
- the Ord Award of 1 September 1868;
- the letter of 20 March 1886 from the Sultan of Johor;
- the 1927 agreement between Johor and Singapore on the delimitation of their respective territorial waters; and even
- the 1973 agreement between Indonesia and Singapore, on the territorial sea once again.
Whether considered individually or as a whole, these documents do not support Malaysia's argument, irrespective of whether they date from before or after the British took possession of Pedra Branca.
(a) Documentary "title" prior to 1847
20. Try as we might, it is impossible to find in any of the documents prior to 1847 evidence or confirmation of the original title relied on by Malaysia. This is particularly true of the letter by John Crawfurd dated 10 January 18241, in which the British Resident of Singapore described the territorial extent of the principality of Johor:
«Cette principaut?s'étend, sur le continent, de Malacca jusqu'?l'extrémit?de la péninsule sur les deux côtes. Elle comptait plusieurs établissements sur l'île de Sumatra, et comprenait toutes les îles sises au débouch?du détroit de Malacca ainsi que toutes celles des mers de Chine, jusqu'aux Natuna au point 4?de latitude nord et 109?de longitude est.?
21. As Singapore has shown, that was a very general description of the possessions of the Sultan of Johor when the British settled in Singapore ("when we formed our settlement in the year 1819", Crawfurd wrote) - a description which, incidentally, does not bear out the impression of a strong and powerful State which Malaysia seeks to give: «L'actuel sultan, lorsqu'il est entr?en relation avec nous, était non seulement priv?de toute autorit? mais vivait dans une totale indigence.?
22. Be that as it may, it can certainly not be deduced from that description that Johor's territorial sovereignty extended to the uninhabited islands of the region, or, manifestly, the seas included in that area (Crawfurd's description covers several tens of thousands of square nautical miles). The same applies4 to the 1828 Presgrave Report on piracy in the region5.
23. It is also revealing that neither Crawfurd in his Descriptive Dictionary of the Islands and Adjacent Countries published in 18566, nor Presgrave in the list of the 54 "places within the jurisdiction of [the Sultan of] Johor"7, nor Begbie in his table of the maritime population of the Empire of Johor indicating the various islands and the tribes inhabiting them in 18348 mentioned Pedra Blanca among the possessions of Johor; it is also significant that the latter two limit themselves to listing the inhabited islands alone, which, as we shall see later when I complete this presentation, is not without significance either. And it is worth noting that Malaysia carefully avoided producing all these documents, perfectly relevant though they are . . .
24. Nor do the 1824 treaties confirm Malaysia's claims either. Malaysia seems to interpret Article XII of the Anglo-Dutch Treaty of 24 March 1824 - Mr. Chan reminded us yesterday of the conditions in which it was drafted and of its overall effects - as meaning that the Dutch had recognized British sovereignty over the whole of the Singapore Strait9. That is assuredly not what that provision states, whose wording might usefully be recalled:
«Sa Majest?des Pays-Bas retire les objections faites au sujet de l'occupation de l'île de Singpour par les sujets de Sa Majest?britannique.
S. M. le roi des Pays-Bas se désiste des objections qui ont ét?faites contre l'occupation de l'île de Sincapore par les sujets de S. M. britannique ; cependant S. M. britannique promet qu'il ne sera pas form?d'établissement britannique dans les îles de Carimon ou dans les îles de Battam, Bintang, Lingin ou dans aucune des autres îles situées au sud du détroit de Sincapore, et qu'aucun trait?ne sera conclu sous l'autorit?britannique avec les chefs de ces îles.?0
25. In reality, this provision has nothing to do with the legal status of the Strait, which remained unchanged. However, this is of little importance to us: the only relevant point is whether that text could have had any effect whatever on the legal status of Pedra Blanca. The answer to that question is very clearly no.
26. In its Counter-Memorial, Malaysia asserted the contrary: «Le trait?anglo-néerlandais de 1824 confirma le titre de Johor?1, because, it wrote: «PBP est clairement située au nord de la ligne, sur le territoire du Johor et dans la sphère d'influence britannique?2; according to Malaysia, that line was allegedly marked on the map of the Dutch East Indies by van Hinderstein published in 184213. Malaysia sticks to its guns in its Reply, without adding anything new14 apart from a few quotes from historians which in fact confirm Singapore's analysis15.
27. It thus appears - and I quote Malaysia's Reply - that:
«Pour éviter toute confusion, Elout (qui était alors conseiller du ministre néerlandais des colonies) avait demand?que, dans le projet de trait?du 1er février 1824, le membre de phrase «aucune des autres îles appartenant ?l'ancien royaume de Johore?fût remplac?par «aucune des autres îles situées au sud du détroit de Sincapore? Il y fut consenti. Dans le texte final, l'article XII désignait non pas le Johor mais les îles Carimon, Battam, Bintang, Lingin et les autres îles situées au sud du détroit.?6
As Mr. Chan explained yesterday, one could hardly demonstrate more clearly the lengths to which the Parties have gone not to take positions on the possession of the islands in the region by Johor - by the "ancient kingdom of Johore", a point which deserves to be noted.
[Slide 3: extract from the van Hinderstein map of 1842 (RS, insert 5) (judges' folder, tab 17)]
28. Further, Singapore has shown, in its own Reply, that the travaux préparatoires of the 1824 Treaty reveal that the Parties deliberately avoided drawing a precise line between the respective zones of influence of the two signatories17 and that the red line on the 1842 map simply showed the boundaries of the Dutch Residency of Riau18 (this Residency may be more clearly seen on the map being shown now), but these were not the boundaries of the zone of influence attributed by the treaty to the Netherlands, still less Great Britain.
[Slide 4: sketch-map of the approaches to Pedra Branca indicating the navigation channel (CMS, insert 3) (judges' folder, tab 18)]
I would add that it is debateable to regard Pedra Branca as situated "north of the Strait of Singapore", if one has an extensive view of that waterway as Malaysia appears to, and bearing in mind that the island is situated south of the main channel leading to the Strait as such.
29. But there is more. As it often does, Malaysia engages in a little sleight of hand when it blandly asserts that Singapore's position is tantamount to regarding the Anglo-Dutch Treaty of 1824 as having transformed Pedra Branca into a terra nullius ("it somehow became terra nullius"19). With all due respect to the opposing Party, this is patently absurd: the 1824 Treaty did not alter the island's status. If it was terra nullius, it remained so; if it had belonged to old Johor, it would have continued to do so. But it is clear that the Treaty did not create, modify or confirm any title and that Malaysia cannot rely on it to support the existence of its alleged "original title".
[End of slide 4]
30. The same is true of the donation made the following year by Sultan Abdul Rahman (of Riau) to his brother Hussein (Sultan of Singapore) of the lands and islands belonging to him in the British sphere of influence20. Here too, while there is no real need to lock horns with the opposing Party on the precise meaning of that act, one need simply note that nemo transferre potest quod non habet21: if Pedra Branca was res nullius, it remained so; if it was not, it did not become so - but, in any event the letter of 25 June 182522 changed nothing in the situation and in no way proves the existence of a pre-existing title (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, pp. 674-675, para. 109).
31. The use Malaysia seeks to make of the Treaty concluded by Crawfurd with the Sultan and the Temenggong of Johor on 2 August 182423 is no more convincing. Certainly, by Article II, the latter - the Sultan and the Temenggong - ceded to the English East India Company "the
19RM, p. 35, para. 78; see also para. 79.
Island of Singapore, situated in the Straits of Malacca, together with the adjacent seas, straits and islets, to the extent of 10 geographical miles, from the coast of the said main Island of Singapore". Singapore obviously in no way disputes that "it clearly follows that this area was not an area which the English East India Company or Singapore could enlarge unilaterally"24. But, here too, that Treaty had strictly no effect one way or the other on sovereignty over the other islands in the region, including Pedra Branca, which was clearly not part of its plans. And it obviously lends no weight to the Malaysian argument regarding the existence of its untraceable original title to the island. Consequently, the statement that "[t]itle to other territories and sea areas remains where it was, namely in the Sultanate of Johor"25 simply begs the question.
32. I should emphasize in particular that the width of 10 geographical miles used to set the limit does not in any circumstances mean, as Malaysia seeks to assert, that the princes and sovereigns of the region exercised sovereign rights up to that - arbitrary and logically baseless -10-mile limit and only within that limit. In the two instances on which Malaysia relies, the Crawfurd Treaty and the transfer of Labuan, this limit was selected purely for convenience and to guarantee effective control and avoid disputes with the ceding State26. Moreover, in the case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan, the Court did not rule out the possibility that the Sultan of Sulu could exercise his rights over the disputed islands, despite their "considerable distance" from Borneo (21 nautical miles in the case of Ligitan and about 15 for Sipadan) and although the same Sultan ⎯ Sultan Sulu ⎯ had ceded all his rights and powers over all his possessions in Borneo and "the islands within a limit of 3 marine leagues [which corresponds to nine nautical miles]". On the contrary, the Court wondered whether the Sultan held any kind of title at all to the islets (a fact which could not be proved) (Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, pp. 674-675, paras. 108-110).
[Slide 5: extract from the sketch-map illustrating the Crawfurd Treaty of 1824 (MM, insert 7) (judges' folder, tab 19)]
32. It is also impossible to fully concur with Malaysia when it states: "Obviously, Johor could not have ceded the territory of Singapore Island and islets situated within 10 geographical (i.e. nautical) miles to the English East India Company if Johor did not have title to it."27 In strictly legal terms, this is obviously correct by virtue once again of the adage nemo dat quod non habet. However, here, the expression should certainly not be taken at face value - a simple glance at the map currently on the screen behind me illustrates this. This is a sketch-map prepared by Malaysia which appears on page 25 of its Memorial. It shows that, if we were to interpret Article II (sic. = Article XII) of the Crawfurd Treaty literally, the East India Company would have received not only the small islands north of Bulan and Batam, but also a part of the island of Batam itself which, however, without any doubt did not belong to the Sultan of Johor sitting in Singapore but to the Sultan of Riau. In other words, that the Sultan and the Temenggong should be regarded as having ceded the islands situated within the 10-mile limit belonging to them and not the others and, beyond that, that the expression used provides a clue - one of many - as to the uncertainty then prevailing on the precise extent of the territorial control of the local sovereigns.
[End of slide 5]
(b) The "confirmatory documents" invoked by Malaysia
34. The construction of the Horsburgh lighthouse on Pedra Branca constitutes a key date: after that, any title of Great Britain ⎯ if the latter acquired such title (which is what Mr. Brownlie will show tomorrow) ⎯ could be transferred only by a treaty of cession concluded in due form. It thus seems curious, on the face of it, that Malaysia should rely on documents subsequent to that date to "confirm" its alleged "title immemorial". Singapore is nevertheless prepared to accept the possibility of hypotheses under which the existence of such title could be confirmed by more recent documents establishing its continuity28. That is not the case for the documents on which our opponents rely.
35. We shall return to this matter at greater length when we discuss the respective practices of the two Parties with regard to Pedra Branca. I shall therefore confine myself to noting that none of the documents invoked by Malaysia for this purpose gives any indication of a conviction that any title to the island belonged to Johor.
[Slide 6: map 10 of the cartographic atlas of Malaysia (map attached to the Ord Award of 1868), annotated (in red) to show the area of the dispute between Johor and Pahang (CMS, Insert 6) (judges' folder, tab 20)]
- The "Ord Award" of 1 September 186829 settled a dispute between modern Johor and Pahang. It related to a geographical region situated far to the north of Pedra Branca and had no bearing whatsoever on that island; to interpret the sentence in the operative part establishing that "all the islands . . . to the south of [the line of latitude 2?59' 20" N] belong to Johore" as implying recognition of the Sultanate's sovereignty over Pedra Branca is tantamount to claiming that Bintan, or . . . Borneo or Australia belong to Johor, on the pretext that all of them lie to the south of the line in question, which makes no sense at all.
[End of slide 6]
- The letter of 20 March 1886 from the Sultan of Johor to Earl Granville, Principal Secretary of State to the Colonies30, requesting the establishment of a register of the "Islands in the open Seas and Straits belonging to the State of Johore" also cannot be interpreted along the lines of the Malaysian argument; first of all, the least that can be said of such an approach is that it does not attest to a very sure knowledge of the territorial extent of Johor. Secondly, as was shown by Singapore in its Counter-Memorial, the purpose of the request was in fact to have Johor's sovereignty over the Natunas recognized and had strictly nothing to do with Pedra Branca31. Lastly, and most importantly, as is often the case, Malaysia's reasoning is "topsy-turvy": no doubt the Sultan considered that some islands in the region belonged to him, but he did not know which ones and from this it must be concluded, a contrario, that he accepted that this was not the case for all of them. As to whether he considered that this was or was not the case for Pedra Branca, it would require great perspicacity to know the answer: contrary to what he had announced32, the Sultan did not forward the list of the islands he considered to belong to him and Great Britain took no action on his request.
- The following two episodes in which Malaysia sees confirmation of its imaginary title occurred much later, these being the Straits Settlements and Johor Territorial Waters Agreement34 of 19 October 1927, as confirmed in 199535, and the Agreement of 25 May 1973 between Indonesia and Singapore36; both of these are strictly confined to delimiting the territorial sea around the island of Singapore and have nothing at all to do with Pedra Branca37. Obviously, therefore, no conclusion can be drawn from these concerning the original title to this island claimed by Malaysia.
36. More generally speaking, one observation needs to be made: nearly all the documents relied upon by Malaysia to assert its indispensable but untraceable original title do not mention Pedra Branca by name. They are merely "assertions of sovereignty and jurisdiction that fail to mention any islands whatsoever, and with general references to 'the islands' with no further specificity"38. As in the case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan, the fact that the island in dispute is not "mentioned by name in any of the . . . legal instruments presented by Malaysia to prove" the alleged title (Judgment, I.C.J. Reports 2002, p. 674, para. 108) is certainly not a point in favour of its existence and prevents the documents in question being considered as having "specific reference to [the island] in dispute as such" (ibid., p. 683, para. 136). As they have no reference to Pedra Branca, which they do not identify and which, for the most part, they manifestly do not concern, these documents have no probative value in the case before us.
37. What are we to conclude from all this, Mr. President? The answer is very simple: apart from an isolated press article from 1835 that is subject to caution, and to which I referred yesterday, there is no document, no treaty, no proclamation, no court decision, no authoritative legal opinion that states, or even implies in any way, that Johor enjoyed or claimed any territorial title to Pedra Branca before Great Britain took possession of the island. Even the experts consulted by Malaysia are careful not to make this assertion. Contrary to what Malaysia suggests39, Professor Houben says nothing of this nature: no doubt he considers that the sovereignty or suzerainty (perentah) of what he calls the kingdom of Johor-Riau "consisted [during the first quarter of the nineteenth century] of a ring of islands in the northwestern part of the Riau Archipelago and included Singapore and a portion of the Johor coastline"40. But he goes no further than this and declines to draw any conclusion whatsoever concerning both the specific islands at issue and their nature. In particular, he does not venture to affirm that this perentah extended to uninhabited islands like Pedra Branca ⎯ contrary to what Malaysia would have us believe when it adds, immediately after citing Mr. Houben: "Pulau Batu Puteh, Middle Rocks and South Ledge fell within the Temenggong's territory"41: this is what is affirmed by Malaysia itself, not its expert. As for Professor Andaya, he says nothing about the legal status of the island, although he does not hesitate to allege, as I said yesterday42, that Johor (albeit in the seventeenth century) exercised sovereignty over the surrounding seas.
38. The caution displayed by these experts is understandable: while they are not jurists, Mr. Andaya and Mr. Houben are specialists in the history of the region and, in that capacity, they cannot be unaware that the local populations' conception of the relationship of political authority to territory ruled out the possibility of territorial sovereignty extending to uninhabited islands far from
39RM, p. 35, para. 80. the coasts, such as Pedra Branca. Moreover ⎯ and this cannot be emphasized too strongly ⎯ no document, not a single one, confirms Malaysia's allegations in this respect. Such a claim is, moreover, equally incompatible with the principles of general international law which were applied at that time in the relations between local sovereigns and the European powers.
B. Neither the territorial conceptions of the local population nor the principles of general international law establish the existence of an original title of Johor to Pedra Branca
39. Mr. President, we must surely not exaggerate the differences that exist between these two conceptions of the relationship to territory: as is observed by Malaysia, which superfluously devotes lengthy passages of its pleadings to the subject, Johor was always considered an independent State and was treated as such by the European powers. As such, it came under the scope of the general international law in force at that period (see Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 38-39, para. 79). Singapore has no quarrel with that. The fact nevertheless remains, as was noted by the Court in its 1975 Advisory Opinion on Western Sahara, that "[n]o rule of international law . . . requires the structure of a State to follow any particular pattern, as is evident from the diversity of the forms of State found in the world today" (ibid., pp. 43-44, para. 94). As is moreover clear from the opinions of historians attached by Malaysia to its Reply, Johor, like all the kingdoms or principalities in the region, whatever their names, was subject to a form of political organization different from those that prevailed in Europe; and the political authority's relationship with its population and its territory was a very special one, which may help to show to what extent Malaysia's claims concerning "original title" to Pedra Branca are unfounded.
1. The Malaysian conception of territory
40. I may, however, be brief with regard to the Malaysian conception of territory, which is set out clearly ⎯ I think ⎯ by Singapore on pages 18 to 24 of its Counter-Memorial and which the Chief Justice explained again yesterday. I need doubtless only say that the opinions of Professors Andaya and Houben, which Malaysia has attached to its Reply, do more to confirm than to contradict the views of Singapore, even though in certain respects their assertions must no doubt be qualified ⎯ especially as regards the legal conclusions they draw from their statements.
41. In paragraph 61 of its Reply, Malaysia criticizes us for adopting a "Swiss cheese" theory of State formation in the Malay world. In so doing, it commits two highly regrettable errors: first, our opponents are guilty of an unfortunate failure to distinguish between Swiss gruyère ⎯ which has no holes ⎯ and French emmental, which does . . .43; secondly, and this is even more serious (at least in the case which concerns us), this observation is in fact evidence of a Eurocentrism which is out of place. Whereas political power in Europe was gradually "territorialized", and this movement marked the transition from feudalism to statehood, this was not necessarily the case in the rest of the world, where personal allegiances often predominated.
42. As was also noted by the Court in its 1975 Opinion: "[p]olitical ties of allegiance to a ruler . . . have frequently formed a major element in the composition of a State" (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 44, para. 95), and it is moreover by relying on "ties . . . of dependence or of alliance, which were essentially tribal rather than territorial", and "in the context of such a territory and such a social and political organization of the population that the Court [examined] the question of the 'legal ties' between Western Sahara and the Kingdom of Morocco and the Mauritanian entity at the time of colonization by Spain" (ibid., p. 42, paras. 88 and 89). The same must apply in the present case. While there is hardly any doubt that the relations of the sovereign with the territory (which undeniably existed, contrary to what Malaysia would have us believe)44 presupposed the intermediation of the population, it is clear, as was pointed out by Mr. Chan yesterday, that they did not extend to uninhabited islands remote from the coasts, like Pedra Branca. And the occasional presence of Orang laut ⎯ pirates of the high seas ⎯ which, however, is not attested by any document, makes no difference to the situation.
43. As if to convince itself, Malaysia repeatedly refers to the Orang laut as "subjects of the Temenggong"45; but this is a mere affirmation which it has never proved. That there were ties between this tribe and the Sultans of Johor (and subsequently the Temenggong) is probably true. But the "evidence" put forward by Malaysia relates indiscriminately to the ties between the Orang laut, on the one hand, and the Sultans of continental Johor and Johor-Riau-Lingga, on the other. For example, when John Crawfurd affirms that the Orang laut that he met "are subjects of the King of Johore"46, given the date of that meeting (1822) he can obviously only be referring to the Sultan established in Riau, not the one on the mainland. Secondly, these ties, if they existed, seem to have lacked stability, which is a further characteristic of these nomadic populations.
44. It is not without interest to note that, in its 2002 Judgment, the Court dismissed out of hand the same argument put forward by Malaysia in support of its claim concerning a traditional title to Ligitan and Sipadan:
"Malaysia relies on the ties of allegiance which allegedly existed between the Sultan of Sulu and the Bajau Laut who inhabited the islands off the coast of North Borneo and who from time to time may have made use of the two uninhabited islands. The Court is of the opinion that such ties may well have existed but that they are in themselves not sufficient to provide evidence that the Sultan of Sulu claimed territorial title to these two small islands or considered them part of his possessions. Nor is there any evidence that the Sultan actually exercised authority over Ligitan and Sipadan." (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 675, para. 110; see also p. 670, para. 98.)
45. The same points are applicable here: even if it is admitted that the Orang laut had ties with Johor and engaged in their favourite activities, piracy and fishing, around Pedra Branca ⎯ which Malaysia has failed to prove ⎯ this could in no way establish a traditional or original title on the part of Johor to the island in dispute. Both fishing and piracy are activities of private persons which, as the Court also held in the same Judgment, "cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority" (ibid., p. 683, para. 140)47. A fortiori, they cannot constitute proof of the original title claimed by Malaysia.
2. The applicable rules of international law
46. These remarks are equally valid from the standpoint of the traditional conception of the relationship of political power to territory, concerning which I have up to now followed the line taken by Mr. Chan yesterday, as well as of the general principles of public international law which were applied at that period in relations between States ⎯ and, consequently, in the relations forged between Johor and the European powers. It should be understood, I repeat, that there is no
46RM, Vol. 2, Ann. 7.
47See also, for example, the Arbitral Award of 30 June 1865, Aves Island, in A. de La Pradelle and N. Politis, Recueil des arbitrages internationaux, Vol. II, p. 413, or Dubai-Sharjah Border case, Arbitral Award of 19 October 1981, International Law Reports, Vol. 91, 1993, p. 606. continuity between these two ways of considering the matter: general international law took account of local conceptions and drew the necessary consequences. This again is clearly apparent from the 1975 Advisory Opinion in the Western Sahara case, where the Court held:
"Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius." (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 39, para. 80.)
47. On the other hand, the uninhabited territories were so regarded48. And that was obviously the case with Pedra Branca which, as we have seen, did not come under the territorial sovereignty of the Sultan of Johor from the perspective of the territorial conceptions prevalent in the Malay world. Nor, needless to say, did it come under such sovereignty from the standpoint of general international law.
48. As for the theory of contiguity (which is only relative in this case), it has never been recognized in international law. One need only recall the very clear position taken by Max Huber in the Island of Palmas case, in a dispute over facts contemporaneous with those which concern us here. The citation is sufficiently convincing and important to deserve to be made in full, although it is rather lengthy:
"Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish such a rule of international law, but the alleged principle itself is by its very nature so uncertain and contested that even governments of the same State have on different occasions maintained contradictory opinions as to its soundness. The principle of contiguity, in regard to islands, may not be out of place when it is a question of allotting them to one State rather than another, either by agreement between the Parties, or by a decision not necessarily based on law; but as a rule establishing ipso jure the presumption of sovereignty in favour of a particular State, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation
48See for example the Arbitral Award of the King of Italy, 28 January 1932, Clipperton Island, United Nations, RIAA, Vol. II, pp. 1105-1111. See also: Patrick Daillier and Alain Pellet, Droit international public (Nguyen Quoc Dinh), 7th ed., 2002, p. 530, or Malcolm N. Shaw, Title to Territory in Africa. International Legal Issues, Clarendon Press, Oxford, 1986, p. 31. between the right to exclude other States from a region and the duty to display therein the activities of a State. Nor is this principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty, for it is wholly lacking in precision and would in its application lead to arbitrary results."49 (See also Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 43, para. 92.)
I regard this as an impeccably reasoned demonstration.
49. Before going any further, allow me, Mr. President, to recapitulate the observations made up to now:
(i) no document (apart from a newspaper article with no probative value), no authoritative legal opinion prior to the critical date, puts forward the argument of an original title of Johor to Pedra Branca;
(ii) nor is this corroborated by Malaysia's invocation of activities on the island (to which no document attests) or in the surrounding seas, as neither fishing nor piracy can reasonably be regarded as evidence of any wish to act "with sovereign title"; moreover,
(iii) the documents attesting to these activities are rare and often subject to caution, and the ties between the Orang laut which engaged in them and the Temenggong or the Sultan of Johor, assuming that they existed, which Malaysia has failed to prove, are uncertain and, to paraphrase the conclusions of the Court in the Indonesia/Malaysia case, "such ties may well have existed but . . . they are in themselves not sufficient to provide evidence that the Sultan of [Johor] claimed territorial title to [this small island]" (Sovereignty over Pulau Ligitan and Pulau Sipadan, (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 675, para. 110); furthermore,
(iv) the local princes and chiefs did not consider the uninhabited islands of the region, which were far from the coasts and situated outside their territorial waters, to fall within their territorial sovereignty; and
(v) nor can Pedra Branca be connected to Malaysia, on the basis of a principle of contiguity which has never been recognized in positive international law.
II. ABSENCE OF "PERMISSION" GIVEN BY JOHOR FOR THE CONSTRUCTION OF THE LIGHTHOUSE
50. Mr. President, Malaysia's whole contention depends entirely on the existence of an original title over Pedra Branca on the part of Johor. In the absence of such title, its entire line of argument collapses, and, in particular, the argument that Johor had given its "permission" for the erection of a lighthouse on the island. The indisputable absence of any such title is sufficient to dispose of it.
51. According to Malaysia, "PBP, an island under Johor's sovereignty, was covered by that permission"50. This argument rests on two premises:
⎯ Pedra Branca fell under the sovereignty of Johor;
⎯ the alleged "permission" concerned the island in question.
Both premises are false.
52. I have already given my reasons regarding the first. The second, too, is equally untenable. We have already shown this at length in our written pleadings51 but I would like to highlight the incongruous nature of the reasoning, if such it is, followed by our Malaysian friends.
53. From the outset they distort the problem rather, by writing in paragraph 112 of their Reply: «Les deux Parties conviennent que le gouverneur Butterworth a écrit au sultan et au temenggong en vue d'obtenir l'autorisation de construire le phare.?(Emphasis added.) The reference should be, Mr. President, not to "the lighthouse", but to "a lighthouse", since, as was then envisaged, it was to be constructed on a site belonging to Johor, as I shall explain in greater detail in a moment. All the allegations that follow are based on this distortion: «Elles conviennent également que les autorités du Johor accordèrent cette autorisation par des lettres datées du 25 novembre 1844.?"Such permission"? Yes: permission to construct a lighthouse, if it was to be constructed on the territory of Johor; but only if such was to be the case. The only certainty is, to be sure, that the Parties "disagree as to the geographical scope of that permission . . .". But the next allegation by Malaysia ⎯ the last on this point ⎯ is again misleading: "Singapore argues that Butterworth's request for permission concerned Peak Rock and only Peak Rock"52. That is not really quite what we are saying . . .
54. The fact is that no one knows the content of the letters that Butterworth, the Governor of the Straits Settlements, wrote to the Sultan of Johor and to the Temenggong, which neither Singapore nor Malaysia have traced and the existence of which is known only from the very vague replies of the former, the Sultan53, and the more precise replies of the latter, the Temenggong54. Both are dated 25 November 1844. The content of the Governor's letters can only be inferred from those replies and from the other letters that he himself wrote during the same period.
[Slide 7: sketch-map (Point Romania-Peak Rock-Pedra Branca)]
55. Malaysia's argument centres on the Temenggong's reply, in which he notes that «[son] ami «[lire : «le gouverneur»] souhaite construire un phare près de Romania?et qui (temenggong) poursuit en disant que les Britanniques «étaient totalement libres de construire un phare l?bas, ou sur [tout] emplacement jug?approprié». That sentence, which is at the heart of Malaysia's line of argument, calls for two clarifications.
56. First, it necessarily implies that what is at issue is "any spot belonging to Johor". Curiously, moreover, Malaysia admits as much, fleetingly, when it writes in paragraph 148 of its Reply that: «[C]e qui signifie forcément que l'autorisation portait sur tout lieu plac?sous la souverainet?du Johor que la CIO choisirait pour l'érection du phare dédi??la mémoire de James Horsburgh?(Emphasis added.) "Any place under Johor's sovereignty" could be Peak Rock (as was then envisaged), or Point Romania, or Pulau Mungging. But not Pedra Branca. In claiming the contrary, Malaysia once again comes up against the insurmountable obstacle of the absence of any title on the part of Johor over Pedra Branca.
57. And this constitutes the first, and the most obvious, reply to Malaysia's allegation that Pedra Branca was covered by the permission given to Great Britain to construct the Horsburgh lighthouse on the island: if the Sultan and the Temenggong had given such permission, they would have been disposing of property that did not belong to them, which either cannot be done or has no legal value, as I have explained with regard to the 1824 Crawfurd Treaty55. Just as they did not cede to Great Britain islands or portions of islands not falling under their sovereignty (but under that of the Sultan of Riau-Lingga) such as Batu Berhenti, Pulau Belakang Padang, or part of Batam, so too they could not dispose of Pedra Branca. Decidedly, nemo plus juris tranferre potest quam ipse habet.
58. Malaysia writes, in its Reply, that "what Singapore has to show is that the permission exclusively concerned Peak Rock"57. Not at all, Mr. President. The real challenge for Singapore is not to prove that the permission concerned only Peak Rock; it is for Malaysia to show that it concerned Pedra Branca. It has not done so; and it cannot do so: Johor had no title over that island . . .
59. Moreover, secondly, if the Temenggong's agreement did not "exclusively" concern Peak Rock (but also, possibly, other sites situated in Johor's possessions), it nevertheless certainly did not concern Pedra Branca.
60. Malaysia writes in its Memorial that "the location of the lighthouse was an open question until 1846"58. That might be so, Mr. President. But in 1844, at the time of the exchange of correspondence which is of concern to us for the moment, the focus of attention was firmly on Peak Rock, which, moreover, is assuredly "near Point Romania" ⎯ it is one of the islets in the Romania Islands group; whereas that is much more debatable in the case of Pedra Branca, which is not part of the group59.
[End of slide 7]
61. The chronology leaves no doubt:
⎯ in April 1844, Governor Butterworth entrusted Captain Sir Edward Belcher with the task of determining the most eligible site for the lighthouse envisaged60;
⎯ on 1 October, the latter singled out "the Romania outer island"61 for that purpose ⎯ an expression which undoubtedly refers to Peak Rock62; there is no disagreement between the Parties on this point63;
⎯ on 3 October, in a letter to Captain Faber, Butterworth, after mentioning that Pedra Branca had at one time been under consideration, endorsed Belcher's report and announced his intention of visiting Point Romania64;
⎯ on 20 November 1844, Thomson, the Government Surveyor, whom Butterworth had entrusted with the task of preparing a feasibility study (concerning exclusively Peak Rock), submitted his report ⎯ which concerned only "Peak Rock Romania"65. It was during that period that Butterworth wrote to the Sultan and the Temenggong to obtain their agreement to the construction of a lighthouse, and it was on 25 November (1844) that they gave it, in the terms that I have indicated66. There can be no doubt that their agreement related to Peak Rock; in any case, it did not relate to Pedra Branca.
62. This, furthermore, is confirmed by the letter that Governor Butterworth wrote to the Secretary to the Government of India on 28 November 1844, which refers to the Belcher report and to the chart prepared by Thomson showing the position "of the Rock therein alluded to" . . . "with reference to Pedra Branca", which shows that Pedra Branca could not be the site at issue, but, once again, only Peak Rock67. And Butterworth went on to specify: «Ce rocher fait partie des territoires du rajah de Johore , qui a, avec le tamongong, volontairement consenti de le céder
60Cf. MS, Ann. 11. gracieusement ?la Compagnie des Indes orientales.?8 Three days after receiving the letters from the Sultan and the Temenggong, the Governor of the Straits Settlements was interpreting the authorization given by them as referring to "this Rock", that is, Peak Rock.
63. It was not until August 1846 that Butterworth changed his mind and opted ⎯ this time definitively ⎯ for Pedra Branca. And it is surely not the letter he wrote to the Secretary of the Government of India that changes things69:
- the fact that the Sultan's and the Temenggong's letters of 1844 were once again appended to it cannot be regarded as evidence that the permission extended to Pedra Branca: in requesting a final decision from his Government, the Governor appended the full dossier on the case, but nothing can be inferred from that ⎯ particularly since other documents exclusively concerning Peak Rock, Belcher's report dated 1 October 1844 and Thomson's letter of 20 November 1844 are also appended to it; and this is also the case with regard to the letter dated 3 October from the Government of India to the Court of Directors of the East India Company70 and, a fortiori, the "full report" sent by Butterworth to the Under Secretary to the Government of Bengal dated 12 June 184871;
[Slide 8: extract from the letter from Butterworth W. J., Governor of Prince of Wales Island, Singapore and Malacca, to Bushby G. A., Secretary of the Government of Bengal, dated 24 August 1846 (judges' folder, tab 21)]
- the report by the handwriting expert Ms Lee Gek Kwee, produced by Singapore on 21 August 200772, confirms what Singapore had already stated in its Counter-Memorial73, namely that it is "highly probable" that, in this letter, Butterworth was referring to [l]'ensemble des détails relatifs ?l'entretien [«care»] des phares, tels que décrits dans [sa] lettre en date du 28 novembre 1844...?et non dans le cas [«case»]des phares...? which, furthermore, is meaningless;
[End of slide 8]
- but ⎯ and this is probably the most important point: even if it was accepted that Butterworth had intended to refer to the Peak Rock question, that would obviously only be transposable mutatis mutandis; the distances, in relation to the Malaysian coast or to Singapore, are different; so are the reasons for the choice; and the same is true for the legal status.
Moreover, it is extremely revealing that, from the moment when Pedra Branca was finally chosen, there was never again any question of permission on the part of Johor74 ⎯ until the 1953 episode, to which I shall return on Friday.
[Slide 9: comparison of the passage from Thomson's Account of the Horsburgh Lighthouse of 1852 cited by Malaysia and the complete text as found in the Account (CMS, p. 114, para. 5.103) (judges' folder, tab 22)]
64. And the Temenggong's visit to Pedra Branca some days after the inauguration ceremony for the lighthouse in 1850 certainly does not confirm Malaysia's contention that Johor had sovereignty over Pedra Branca. It is not without interest to note that, in order to turn the situation to its advantage, Malaysia has taken it upon itself to truncate the quotation from Thomson's account relating the scene. Malaysia has relied on the fact that the Temenggong "came in a beautiful fast sailing sampan . . . rigged with graceful latteen sails"75. The ellipses between the words "sampan" and "rigged" conceal a detail of the utmost importance, since, as can be seen from the comparison with the original, authentic, text, which is projected on screen76, this beautiful fast sailing sampan belonged . . . to the Governor of the Straits Settlements ("a beautiful fast sailing sampan belonging to the Governor of the Straits Settlements")77. And I can well understand the embarrassment of our friends in the opposing Party ⎯ even though I am not sure that that embarrassment justifies truncating a quotation; for, Mr. President, that changes everything.
74See, inter alia: CMS, pp. 105-108, paras. 5.86-5.90; RS, pp. 38-39, paras. 3.9-3.11, and p. 43, para. 3.22.
Contrary to the affirmations of Malaysia, the Temenggong (who, it should be noted, was not invited to the inauguration ceremony) did not behave as would befit a sovereign, but as a guest of the British Governor, who placed one of his sampans at his disposal; for, contrary also to Malaysia's affirmations78, it is hard to imagine that the Temenggong would have been able to use one of the Governor's boats without having been invited to do so, or that he would have travelled to the island by that means without having received permission to do so.
[End of slide 9]
65. The fact is, Mr. President, as Mr. Brownlie will now show if you give him the floor, that Pedra Branca had undoubtedly become a dependency of Singapore once the British had taken possession of it. First, however, allow me briefly to draw the conclusions that seem to me to emerge from the second part of my pleadings this morning:
(i) in 1844, when Peak Rock seemed to have been chosen as the site for the construction of the Horsburgh lighthouse, the Governor of the Straits Settlements assured himself of the agreement of the territorial sovereign ⎯ which was incontestably Johor;
(ii) the Sultan and the Temenggong both gave the requisite authorization, which became irrelevant once the final choice settled on Pedra Branca, which is not mentioned in their letters;
(iii) Malaysia's reasoning is topsy-turvy when it proposes that that agreement extended to Pedra Branca, as it has never established the existence of an original title over the island on the part of Johor;
(iv) moreover, after 1846, the question of permission never again arose; and
(v) the Temenggong's visit to Pedra Branca in June 1850, after the inauguration of the lighthouse, on a boat belonging to the Governor, in no way confirms the "permission" to which Malaysia attaches such great importance: on the contrary, it shows that if any permission was given, it was given to the Temenggong, that that dignitary visited the island at the invitation and with the permission of the British authorities.
Mr. President, Members of the Court, thank you very much for your attention.