Oral argument by Mr. Chao Hick Tin, Attorney-General of the Republic of Singapore, 19 November 2007

Mr. CHAO:

GEOGRAPHICAL SETTING AND MIDDLE ROCKS AND SOUTH LEDGE

Introduction

1. Mr. President and Members of the Court, in this presentation, I will be dealing with two points. The first relates to the issue of proximity of Pedra Branca to the coast of Johor. Secondly, I will be responding to Malaysia's arguments on Middle Rocks and South Ledge.
I. Geographical setting ⎯ proximity
2. Professor Kohen devoted a significant part of his presentation last Wednesday attempting to persuade you that Pedra Branca was "near Point Romania" as the phrase was used in the letter from the Temenggong of Johor to Governor Butterworth of 25 November 184427. He showed you J. T. Thomson's 1851 map28 and made the rather curious argument that because Pedra Branca and the Romania Islands were on the same map, they belonged to the so-called "region" of Romania and therefore were near to each other29.

3. The 1851 map shows, in fact, the exact opposite of what Professor Kohen contends. You only need to look at the map on the screen and at tab 5 of your folder to appreciate that, from Thomson's perspective, since Peak Rock was the intended location of the lighthouse "near Point Romania" in 1844, Pedra Branca ⎯ which was located nearly six times the distance from Point Romania compared to Peak Rock ⎯ could not be regarded by the British colonial government as "near Point Romania". And let us not forget that the only contemporaneous official document which actually discussed the relative distance of Pedra Branca from the Johor coast is the 26 August 1846 letter from Governor Butterworth, where he explained his original preference to build the lighthouse at Peak Rock because Pedra Branca was "at so great a distance from the Main Land"

4. Professor Kohen accused Singapore of maintaining what he called "absolute silence"31 in relation to John Crawfurd's 1818 diary entry, and here I quote from the entry:
"Romania is the Eastern part of the Singapore Straits, the entrance is divided into two channels by a cluster of rocks, the largest is 20 feet above the level of the sea named by the Portuguese Pedro Branca."32
But what is there in this entry for Singapore to respond to? Point Romania and the Romanian islands are at the eastern entrance of the Singapore Strait and Pedra Branca does divide the entrance to the Strait into the Middle and South Channels. Crawfurd did not speak of a "region" of Romania, as Malaysia claims. That so-called "region" is a figment of the imagination.

5. Malaysia also suggested that Singapore had been engaging in what was termed "photographic tactics" because we did not produce a photograph showing Pedra Branca with the Johor coast in the background33. Last week, in an attempt to convey a subliminal message of proximity between Pedra Branca and the coast of mainland Johor, Malaysia produced the photograph which appears on the screen34. This was tab 78 in Malaysia's judges' folder.

6. Mr. President and Members of the Court, members of the Singapore team who have visited Pedra Branca were greatly surprised to see this photograph. It did not correspond with their recollection of what Pedra Branca and the Johor mainland looked like when they were there. Nor did it correspond with what J. T. Thomson saw and sketched in 1850.

7. Let us examine a close-up of the photograph relied on by Malaysia showing the lighthouse with the hill, Bukit Pelali or Mount Berbukit, in the background, and compare that with a photograph taken a few days ago showing what the human eye actually sees as one looks in the same direction.

8. If we compare the hill in the background with the same hill in Malaysia's photograph, Malaysia's photograph exaggerates the height of the hill by approximately seven times.

9. The cause of this is an effect called "telephoto compression" which occurs when a telephoto lens is used, instead of a lens that gives a perspective similar to the human eye. The lens used for the photograph on the right approximates what the human eye sees. Thomson's sketch, together with all the photographs, are at tab 6 of your folder.

10. I have a few more observations on the photograph relied on by Malaysia. Malaysia attributes its source to a "blog" website36. This blog website is a most unusual one. It was created only last month. There is no information on the identity of the blogger and the photograph used by Malaysia was only put on the website on 2 November 2007, four days before the start of these oral proceedings.
II. Middle Rocks and South Ledge

11. I now turn to the question of Middle Rocks and South Ledge. Here I would like to note that my learned counterpart, the Attorney-General of Malaysia, claims that "[t]he dispute concerning these two features only crystallized on 6 February 1993 when, for the first time during the first round of bilateral discussions between the Parties, Singapore included Middle Rocks and South Ledge in addition to its claim to Pulau Batu Puteh"37.

12. With respect, the assertion is as wrong as it is artificial. What Malaysia describes as Singapore's "claim" over Middle Rocks and South Ledge on 6 February 1993 was, in reality, Singapore's response to Malaysia's statement made a day earlier describing Middle Rocks and South Ledge as two Malaysian islands38. The reality is that Middle Rocks and South Ledge cannot, by any stretch of the imagination, be considered as distinct from Pedra Branca. It follows that the critical date for all three features must naturally be the same.

13. Last Thursday, we heard the presentation of Professor Schrijver on Middle Rocks and South Ledge. Two key arguments emerged from that presentation:
(a) first, that Malaysia had original title over Middle Rocks and South Ledge; and
(b) secondly, that Pedra Branca, Middle Rocks and South Ledge did not form a group.

A. Alleged original title

14. Professor Schrijver's first point can be very briefly dealt with. As with Pedra Branca, Malaysia provides not a single piece of evidence that Johor had any title to or carried out any sovereign act over Middle Rocks and South Ledge.

B. Whether the features form a group
15. This brings me to Professor Schrijver's second point ⎯ the assertion that the three features do not form a group and cannot be treated together. Malaysia's position in this regard is wholly contradicted by the way it puts forward its case. The acts of Malaysia which Professor Schrijver cites in support of Malaysia's sovereignty over Middle Rocks and South Ledge are, first, Commodore Thanabalasingham's so-called "Letter of Promulgation", secondly, the 1968 oil concession, and thirdly, the 1985 Fisheries Act39. These are the same acts Malaysia relies upon to claim Pedra Branca, which Ms Malintoppi will address tomorrow. This shows that Malaysia has treated them and continues to treat them as a group.

16. Professor Schrijver devoted the better part of his presentation taking issue with the reasons listed by Professor Pellet in support of Singapore's position that the fate of the three features was necessarily linked. I do not propose to respond to every one of the points made. They have already been covered extensively in Singapore's written pleadings41 and Professor Pellet's presentation. But I note in passing Professor Schrijver's rather astonishing suggestion that the three features could not form a group because Singapore was unable to show all of them in a single photograph43. If photography can determine whether features form a single group, we have countless photographs showing Pedra Branca and Middle Rocks in the same frame. These two features were what Commander Kennedy referred to as the "Horsburgh Group" in 195844. As for South Ledge, it is a low-tide elevation within the territorial sea of the Pedra Branca/Middle Rocks group, so its fate follows that of the group.

17. I will focus instead on three aspects of Professor Schrijver's analysis ⎯ first, proximity, secondly, geomorphology; and, thirdly, whether there exists navigable channels between the three features.

(1) Proximity

18. On proximity, Professor Schrijver quite erroneously cited dicta from the Arbitral Award in the Eritrea/Yemen case to argue that, and here I quote, "The mere extending of the territorial sea from PBP cannot in itself generate sovereignty over Middle Rocks and South Ledge."45 The passage he cited from Eritrea/Yemen was concerned with Eritrea's so-called "leapfrogging" argument that sovereignty exists over island B because it falls within the territorial sea of island A and that sovereignty exists over island C just because it, in turn, lies within the territorial sea of island B, and so on.

19. That passage is completely irrelevant to the present case where all three features lie less than 3 nautical miles from each other and Middle Rocks and South Ledge clearly fall within the territorial sea of Pedra Branca. Moreover, the Tribunal in Eritrea/Yemen, as is clear from the dispositif of its Award, did award sovereignty to the "islands, islets, rocks and low-tide elevations" of the Zuqar-Hanish group and the sovereignty to the "islands, islets, rocks and low-tide elevations" of the Zubayr group to Yemen as groups of maritime features.

(2) Geomorphology/geology

20. Turning to geomorphology ⎯ or, more correctly, geology ⎯ Professor Schrijver argued that the same rock type on Pedra Branca, Middle Rocks and South Ledge can be found in other neighbouring islands but not Singapore Island itself48. This contention is baffling. Clearly, in determining whether the three features constitute a group, what matters is whether those three features have similar geological characteristics. The answer is "yes". Whether other places do or do not have such characteristics is beside the point. After all, the issue is not whether Pedra Branca, Middle Rocks, South Ledge and Singapore form a group.

(3) Navigable channels

21. I turn now to Professor Schrijver's argument that the three features do not constitute a group because they are separated by navigable channels.

22. Malaysia's contention that a navigable channel exists between Pedra Branca and Middle Rocks is quite surreal. No one denies that a stretch of water separates the two features, so some boats must be capable of traversing those waters. But what determines whether a navigable channel exists is whether commercial maritime traffic can safely use that route.

23. The navigable width of the "channel" between Pedra Branca and Middle Rocks, if it can be called that, is less than 200 m, as can be seen on the screen and in the chart at tab 8 of your folder. No prudent mariner will navigate commercial vessels through such waters and, in reality, no one does that. It is not for nothing that British Admiralty Chart 2403 shows a danger line surrounding Pedra Branca and Middle Rocks.

24. As for the so-called "navigable channel" between Middle Rocks and South Ledge, I would like to make two comments. First, whether this channel exists does not affect the unity of Pedra Branca and Middle Rocks. As we said last week51, the material question is whether Pedra Branca and Middle Rocks should be treated as one. Once that is settled, the fate of South Ledge, a low-tide elevation, follows that of Pedra Branca and Middle Rocks. Secondly, the fact is that commercial maritime traffic traversing those waters uses either Middle Channel or South Channel because they are safe routes.

25. Last week, Professor Schrijver referred us to an extract of the sailing directions for the north-eastern approach to the Singapore Strait, which is at tab 10 of your folder. Relying on the sentence which reads "passage between Middle Rocks and South Ledge is possible at LW (low water) provided both are plainly visible", he then boldly asserted "if possible at low water, passage is easy at high water". He could not be more wrong. Passage is possible provided both features are plainly visible, allowing a pilot to steer clear of South Ledge by sight. At high water, South Ledge, which is a low-tide elevation, is not visible at all. Passage between Middle Rocks and South Ledge becomes dangerous.

26. This brings me to more general observations on Malaysia's case with respect to Middle Rocks and South Ledge. Malaysia's written and oral pleadings thus far have been almost single-mindedly devoted not to demonstrating acts of sovereignty over the two features ⎯ which she has not done and cannot do ⎯ but to demonstrating that Middle Rocks and South Ledge are not part of the same group as Pedra Branca. Why? Why is Malaysia so anxious to separate the fate of Middle Rocks and South Ledge from Pedra Branca? Why is Malaysia insisting that, if a group exists at all, it would consist of only Middle Rocks and South Ledge? Is Malaysia hoping that, by doing so, they can salvage something for future maritime delimitation if the Court finds that sovereignty over Pedra Branca belongs to Singapore? Is Malaysia hoping that this Court might hand down a judgment like King Solomon by awarding Pedra Branca to one side and Middle Rocks and South Ledge to the other? The law and the facts simply do not support such a ruling.

Conclusion

27. Mr. President, Members of the Court, I shall conclude with a reiteration of Singapore's case with respect to Middle Rocks and South Ledge.

(a) First, Pedra Branca, Middle Rocks and South Ledge have always been treated together and are so treated in Malaysia's pleadings.

(b) Secondly, Middle Rocks and South Ledge, being less than 3 nautical miles from Pedra Branca, fall within its territorial sea.

(c) Thirdly, Middle Rocks, located only 0.6 nautical miles from Pedra Branca, is a mere geomorphological extension of Pedra Branca. It belongs to and forms a single group with Pedra Branca.

(d) Fourthly, South Ledge, being a low-tide elevation, cannot be independently appropriated. Its fate must follow that of Pedra Branca and Middle Rocks.

(e) Finally, because sovereignty over Pedra Branca belongs to Singapore, sovereignty over Middle Rocks and South Ledge also belongs to Singapore.

28. That concludes my presentation. I would like to thank you for your attention. Mr. President, may I ask you to call upon Mr. Chan to continue with Singapore's presentation?

The VICE-PRESIDENT, Acting President: I thank you, Mr. Chao, for your speech. I now call on Mr. Chan to continue with Singapore's presentation.