Concluding statement and final submissions by Mr. Tommy Koh, Ambassador-at-Large, Ministry of Foreign Affairs of the Republic of Singapore, Professor of Law at the National University of Singapore, 20 November 2007

Mr. KOH:

THE AGENT'S CONCLUDING STATEMENT AND FINAL SUBMISSIONS

Concluding statement

1. Mr. President and Members of the Court. I have the honour to deliver the concluding statement and the final submissions for Singapore. I will do so by recapitulating our key points.

2. First, Singapore has shown that in 1847, Pedra Branca was terra nullius. Malaysia disputes this and argues that it was not terra nullius but was part of the Sultanate of Johor. Malaysia has, however, failed to produce any evidence that this particular island, Pedra Branca, was subject to the sovereignty of Johor. Malaysia has failed to prove her only argument in this case, that she has an historic title to Pedra Branca. She has failed to show: (a) that Pedra Branca was part of the Sultanate of Johor; and (b) that an original title had been transmitted to the State of Johor.

3. Second, Singapore has shown that between 1847 and 1851, Britain was in possession of Pedra Branca without the consent of any native ruler. Malaysia argues that she had given permission to Britain for the construction of the lighthouse on Pedra Branca. Again, she has not provided any evidence of such permission. All that Malaysia can rely upon are the indirect inferences from letters which do not even mention Pedra Branca.

4. Third, Singapore has shown that in the period 1847-1851, the British acquired sovereignty over Pedra Branca by satisfying the two requisite criteria: animus or intention, and corpus or activities undertaken à titre de souverain. Malaysia has repeated ad nauseum her argument that the British lacked the animus and the corpus and all the activities that they undertook were merely those concerned with the construction of a lighthouse. The Malaysian argument is flawed and it remains flawed, no matter how many times it is repeated.

5. Fourth, from 1847 to 1979, a period of 130 years, Singapore's sovereignty over Pedra Branca was open, continuous and notorious. It was acknowledged by all concerned and challenged by none. It was only in 1979 when, like a bolt out of the blue, Malaysia published her infamous map which claimed, for the very first time, that Pedra Branca belonged to her.

6. Fifth, in 1953, when Johor was a sovereign State under international law, the State Secretary of Johor, writing in an official capacity, informed the Singapore Government that, "the Johore Government does not claim ownership of Pedra Branca". This disclaimer, Mr. President, is binding on Malaysia under international law. Malaysia is clearly embarrassed by this disclaimer. Discarding her earlier argument that the disclaimer "is not a model of clarity", Malaysia has invented a new argument, which is that Singapore is seeking to use the letter as the root of her title. But this has never been Singapore's case. Mr. President, Singapore's case is that the disclaimer confirms Singapore's title and is further evidence that Johor has no prior title.

7. Sixth, in 1968, three years after Singapore separated from Malaysia, the Malaysian Government demanded that Singapore lower its marine ensign from its lighthouse in Pulau Pisang. Since Pulau Pisang was under Malaysian sovereignty, Singapore promptly complied with Malaysia's demand. However, Malaysia failed to make the same demand with respect to the flying of the Singapore marine ensign on Pedra Branca. The conclusion which I urge the Court to draw from this difference is that Malaysia's conduct is recognition of Singapore's sovereignty over Pedra Branca.

8. Seventh, between 1962 and 1975, Malaysia published six maps which attributed Pedra Branca to Singapore. Singapore never published a single map ⎯ not one ⎯ attributing the island to Malaysia.

9. Eighth, Malaysia has argued that Pedra Branca, Middle Rocks and South Ledge should not be treated as a group but as three separate and distinct maritime features. This is an untenable argument. Mr. President, the truth is that for reasons of proximity, geology, history and law, the three features are inseparable and must be treated together. Pedra Branca and Middle Rocks form a group. South Ledge is a low-tide elevation within the territorial sea of Pedra Branca and Middle Rocks and its fate must necessarily follow that of Pedra Branca and Middle Rocks.

10. Ninth, Malaysia has repeatedly argued that this case is about title and not about competing effectivités. With respect, this is not correct. Singapore's case is that Pedra Branca was terra nullius in 1847 and that we had acquired sovereignty over the island between 1847 and 1851 and have maintained it ever since. However, should this Court find that the title to Pedra Branca was indeterminate at that time, and were to examine the competing effectivités of the two Parties, Singapore has clearly shown that it has sovereignty. I can understand why Malaysia would be concerned if the Court were to decide to walk down this path. The reason is that Malaysia has zero effectivités.

11. Tenth, Malaysia has, in the first round, said that Singapore may continue to own and operate the Horsburgh lighthouse should sovereignty over Pedra Branca be awarded to her. This may sound magnanimous but, make no mistake, it is in reality an attempt by Malaysia to change a legal order which has existed for 160 years.

12. Mr. President and Members of the Court, the evidence in this case presents a remarkably consistent picture. All of Singapore's actions are entirely consistent with that of a country that has sovereignty over Pedra Branca. In contrast, all of Malaysia's actions and inactions are entirely consistent with that of a country which has no title over Pedra Branca.

13. In fact, all the pieces of the puzzle fit neatly together. The picture that emerges is that Singapore has sovereignty over Pedra Branca. The British activities from 1847 to 1851 in taking lawful possession of the island are simply the other side of the coin of the complete absence of Johor's original title or of any sovereign acts by Johor on the island. Singapore's continuous stream of sovereign activities on Pedra Branca and within its territorial waters, from 1851 to the present, is the reverse side of the coin of the complete absence of any Malaysian effectivités on the island at all relevant times. Singapore's actions were open and public and are the counterpart of Malaysia's silence in the face of these activities over a period of over 130 years. Malaysia's official disclaimer in 1953 and its series of official maps attributing the island to Singapore are further confirmation of this picture. The whole story fits perfectly together. There can therefore be no doubt that Pedra Branca, Middle Rocks and South Ledge belong to Singapore.

14. Mr. President, my colleagues and I would like to thank you and the distinguished Members of the Court for your patience, attentiveness and courtesy. For me, as a student of international law, the opportunity of pleading before this honourable Court is a high point in my career. I will always treasure this memory.

15. Mr. President, I would also like to thank the distinguished Registrar and his able staff for ensuring the smooth running of the oral proceedings, the prompt delivery of the transcript of each day's hearing and for looking after all the other administrative details.

16. I would also like to thank our excellent interpreters who have enabled the anglophones and the francophones to understand each other perfectly. In our multilingual world, good interpreters and good translators play an important role which is often ⎯ too often ⎯ taken for granted.

17. Mr. President, I would also like to thank Ms Laurence Blairon, the Head of the Information Department and her staff who have been very helpful to the two Parties and to the representatives of our media.

18. Mr. President and Members of the Court, I have come to the end of my concluding statement. Before I go on to the next point, I would like to express my great pleasure in seeing my friend of 30 years, Sir Elihu Lauterpacht, back with us in the Court today. I wish him continued good health.

19. Concerning the question posed by Judge Keith, the Singapore delegation will reply in writing by the deadline of 30 November 2007.
Final submission
20. Now I turn to my final submissions. In accordance with Article 60, paragraph 2, of the Rules of Court, I hereby present Singapore's final submissions:

The Government of the Republic of Singapore requests the Court to adjudge and declare that:
(a) the Republic of Singapore has sovereignty over Pedra Branca/Pulau Batu Puteh;
(b) the Republic of Singapore has sovereignty over Middle Rocks; and
(c) the Republic of Singapore has sovereignty over South Ledge.

21. Mr. President, distinguished Members of the Court, I thank you very much for your attention. Thank you.