Oral argument by Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, Chairman of the United Nations International Law Commission, Emeritus Chichele Professor of Public International Law, University of Oxford, member of the Institut de droit international, Distinguished Fellow, All Souls College, Oxford on 7 November 2007
The VICE-PRESIDENT, Acting President: Thank you, Professor Pellet, for your pleadings. I now call on Mr. Brownlie.
Mr. BROWNLIE: Thank you, Mr. President.
THE ACQUISITION OF TITLE TO PEDRA BRANCA IN 1847-1851
1. Mr. President and Members of the Court, it is an honour for me to address the Court today as counsel for Singapore.
2. It is my task to deal with the acquisition of title by Singapore.
3. Singapore possesses sovereignty over Pedra Branca on the basis of the lawful possession of Pedra Branca by Singapore's predecessor in title, the United Kingdom, in the period 1847 to 1851.
4. Prior to 1847 Pedra Branca was terra nullius, and had never been the subject of a prior claim, or any manifestation of sovereignty by other means, by any sovereign entity.
5. The available documents support the inference that the British Crown proceeded on the basis that Pedra Branca was terra nullius.
6. Malaysia has suggested from time to time that the British officials were not conscious of, or sensitive to, issues of title, and were indifferent to the geographical location of the site to be established: I refer to the Malaysian Counter-Memorial, Volume I, paragraph 104.
7. However, the evidence indicates that the British Crown was conscious of the ramifications of sovereignty in the region. Thus, in the letter dated 28 November 1844, Butterworth, as Governor, refers to the fact that Peak Rock "is part of the Territories of the Rajah of Johore . . ." (MS, Vol. 2, Ann. 13). The Governor was writing to Currie, Secretary to the Government of India. And on the map on screen you will see that Peak Rock was a part of the Romania group of islands, which is tab 23 in the judges' folder. And that is a chart ⎯ it is not a sketch ⎯ prepared by Thomson. You can also see the letter from Captain Belcher to Butterworth, dated 1 October 1844 (MS, Vol. 2, Ann. 11).
8. The question of title also appears in the letter from Church, the responsible official at Singapore, to Butterworth, dated 7 November 1850, in which the following passage appears:
"4. I observe Mr. Thomson advocates the Establishment of a Station near Point Romania, for the purpose of affording assistance to the inmates of the Light House in case of need, and also to suppress Piracy; an armed party of the strength suggested would, doubtless, be of some Service, but I doubt whether such is absolutely necessary, or commensurate with the permanent expense which such an establishment must necessarily occasion. Romania moreover belongs to the Sovereign of Johore, where the British possess no legal jurisdiction; it will of course, be necessary for the Steamer or Gun Boats to visit Pedro Branca weekly; some benefits would also accrue by requesting His Highness the Tumongong to form a village at Romania under the control of a respectable Panghuloo to render assistance to the inmates of the Light House in a case of emergency." (MS, Vol. 3, Ann. 48; emphasis added.)
9. It is thus clear that the taking of possession of Pedra Branca by the British authorities elicited no protests or reservations of rights from other Powers. The process of construction of the lighthouse and other public works was necessarily public in character and the operations were referred to in the Singapore newspapers. The building operations which began in 1847 did not necessitate seeking permission from other Powers in respect of shipping movements, which included patrolling by British gunboats for the purpose of protecting ships moving building materials and workmen.
10. The continuous public activities of the British Crown over a period of four years also elicited no reservations from other Powers. And in this general context it comes as no surprise that the Dutch General Secretary in Batavia, writing to the Dutch Resident in Riau in 1850, should refer to ''the construction of a lighthouse at Pedra Branca on British territory" (RS, Vol. 2, Ann. 8).
11. Malaysia in response asserts that no protest or reservation of rights was called for (CMM, p. 69, para. 134). This response rests on several unproven assumptions: for example, that the British authorities had the permission of Johor. In any event Malaysia accepts that there was no protest or reservation of rights on the part of Johor.
The funding and construction of the lighthouse and the associated works
12. The entire process of planning, choice of site, and construction of the lighthouse was subject to the control and approval of the British Crown and its representatives.
13. The construction of the lighthouse involved a series of decisions and activities on the ground:
14. This entire procedure was under the authority and control of the British Crown. The East India Company was the relevant organ of the British Crown.
15. It is necessary to introduce the sources of British authority in the Straits Settlements, and these are now on screen and are at tab 25 in the judges' folder. These sources comprised Singapore, Malacca and Penang (also known as the Prince of Wales Island). The Straits Settlements were created in 1826 and were administered by the East India Company.
16. The East India Company acted as an organ of the British Crown and its activities were supervised by the Board of Control in London headed by a British government minister.
17. It will be helpful if the nomenclature is explained. In general, reference to the Government of India involves the Governor-General of India and his Council sitting in Calcutta ⎯ all of whom were officers of the East India Company. The Governor-General of India was subject to the authority of the Court of Directors of the East India Company. This, in turn, was under the direction of the Board of Control, which was headed by the Secretary of State, a British government minister. Consequently, all decisions of the Government of India were under the control of the British Crown, that is to say, the British Government in London. Below the Governor-General of India, the administration was divided into four presidencies (Bengal, Bombay, Madras and Agra). The Straits Settlements, including Singapore, were administered as part of the Bengal presidency at the time when the lighthouse was being planned and constructed.
18. The ultimate approval for construction of the lighthouse was obtained from the Court of Directors of the East India Company (sited in London) and this was the appropriate procedure.
19. The evidence of the entire process of planning and construction consists, in large part, of correspondence between three linked pairs of officials of the Government of India, who were instrumental in the planning and execution of the enterprise. The three pairs of officials can be seen mentioned on the screen and in the judges' folder at tab 26.
20. The three pairs of officials functioned in this way:
third, Thomas Church had authority over, and corresponded with, J.T. Thomson, the Government Surveyor at Singapore, who was the architect and engineer responsible for planning and constructing the lighthouse on Pedra Branca (hereinafter referred to as "Thomson").
21. Governor Butterworth was directly involved from early on, and he himself recorded his visit to Pedra Branca in 1847. Governor Butterworth was present at the formal laying of the foundation stone on 24 May 1850; and his name appears on the panel in the Visitors Room of the lighthouse; and he it was who signed the British Notice to Mariners dated 24 September 1851. It was also Governor Butterworth who was in charge of the final commissioning ceremony on 27 September 1851.
22. But the authoritative witness is clearly Thomson. Apart from the correspondence involving Thomson, a major resource is the Account of the Horsburgh Light-house, written by Thomson and published, in 1852, in the Journal of the Indian Archipelago and Eastern Asia. This is in fact the text of the official report prepared by Thomson, in his role as Government Surveyor at Singapore, after completion of the project. It is dated 14 August 1852. As the preface explains, the account had been prepared at the desire of Governor Butterworth. On the panel in the Visitors Room, Thomson is described as the "Architect" and it was Governor Butterworth who selected Thomson for that position.
23. Thomson was in charge of the entire construction project, and it was under his direct control. Not only did he make regular visits to Pedra Branca, but he spent long periods living on the island in a house. The correspondence between the key officials, together with Thomson's Account, produces a detailed and reliable volume of evidence.
Mr. President, it would help me if we could have a slightly early coffee break. I have a break point here but not an easy one for some time afterwards.
The VICE-PRESIDENT, Acting President: Then I think it will be convenient to take the coffee break now.
Mr. BROWNLIE: Thank you very much.
The Court adjourned from 11.20 to 11.35 a.m.
The VICE-PRESIDENT, Acting President: Please be seated. Please continue, Mr. Brownlie.
Mr. BROWNLIE: Thank you.
The question of the applicable law
24. Mr. President, Members of the Court, I must now move to the question of the applicable law. The position of Singapore has been set forth in detail in the Memorial (pp. 79-87). The submission of Singapore is that title was acquired by the United Kingdom in accordance with the legal principles governing acquisition of territory in the material period, that is, 1847 to 1851. The contemporary doctrine is consistent in requiring both an intention to acquire sovereignty and the taking of possession.
25. On this basis the legal claim of Singapore can now be formulated in more detail as follows:
26. The evidence and relevant legal considerations establish that the British Crown acquired sovereignty in the period 1847 to 1851, an entitlement subsequently inherited by the Republic of Singapore.
27. The other aspect of the applicable law is the absence of any support in the evidence for the claim of Malaysia to an "original title". As Professor Pellet has demonstrated, Malaysia has failed to explain the legal basis of her claim to an original title to Pedra Branca.
28. The approach of Malaysia to the question of the applicable law is never clearly defined. In the first place, arguments are deployed which avoid a careful examination of the principles of general international law governing acquisition of title. Thus, in her Memorial, Malaysia relies upon three concurrent arguments: the alleged existence of permission of Johor; the alleged special character of a British practice; and the assertion that the lighthouse did not raise an issue of sovereignty (MM, paras. 104-177).
29. In her Counter-Memorial, Malaysia adopts the same arguments (paras. 52-142). There is also emphasis on the argument that on the facts there was no intention to acquire sovereignty on the part of the British Crown (paras. 63-72).
30. In the Reply, Malaysia leans heavily on the argument that there is no evidence of the taking of possession by the British Crown (paras. 191-216), and further that there was no evidence of a British intention to acquire sovereignty (paras. 247-278).
31. The Reply of Malaysia also includes the baseless assertion that, in her Counter-Memorial, Singapore has misrepresented the "doctrinal sources" (RM, paras. 195-203).
32. Mr. President, the approach of Malaysia to the question of the applicable law is both tangential and evasive. At the same time in a general way Malaysia appears to accept that the principles of general international law apply in accordance with the doctrine of inter-temporal law (RM, paras. 191-216).
33. But Malaysia also relies on the subsidiary argument that there was permission in any case, and this issue has been examined by my friend Professor Pellet.
34. A further subsidiary argument is to the effect that Britain had no intention of establishing sovereignty over Pedra Branca (MM, paras. 157-64; CMM, paras. 63-72, and RM, paras. 247-259).
35. As I have already said, Malaysia appears to accept that the principles of general international law apply, but this position is somewhat obscured by the insistence by Malaysia on the argument that British practice required a formal taking of possession of territories as the basis of sovereignty (Memorial, paras. 157-164; Counter-Memorial, paras. 73-92, and Reply, paras. 204-216).
36. For the present, it is necessary to emphasize the confusion which emerges from the arguments of Malaysia. Thus, in the Counter-Memorial, in particular, the argument is based exclusively upon the alleged "British practice" of taking possession and an alleged absence of a taking of possession. In this section no reference is made to the principles of general international law (CMM, paras. 73-92).
37. However, both in her Counter-Memorial and in her Reply Malaysia includes sections on the theme that various British actions relating to Pedra Branca were not accompanied by the requisite intention to acquire sovereignty (CMM, paras. 63-72, and RM, paras. 247-259).
38. In these sections, Malaysia refers to general international law instead of British practice. While Malaysia does not explain whether her description of British practice is compatible with general international law in the relevant period, the significant fact is that neither general international law nor British practice required any kind of formalities in the relevant period, nor has the legal position changed since the relevant period. Thus, as a matter of general international law, the presence of formalities in relation to Christmas Island was not regarded as conclusive by the United States Department of State (see Hackworth's Digest, Vol. 1 (1940), pp. 507-508; RS, Vol. 1, paras. 3.104-3.106).
39. In this context the official position of other sovereigns in the region is of key significance. In relation to Pedra Branca the Government of the Netherlands East Indies recognized that the island constituted British territory in November 1850, some time before the commissioning of the lighthouse in September 1851. The Dutch document consists of a letter, dated 27 November 1850, from the General Secretary, Dutch East Indies, to the Dutch Resident in Riau (judges' folder, tab 27). The relevant passage reads as follows:
"As commissioned, I have the honour of informing Your Excellency that the government has found no grounds for granting gratuities to the commanders of the cruisers stationed at Riau, as proposed in your despatch of 1 November 1850, number 649, on account of their shown dedication in patrolling the waterway between Riau and Singapore, lending assistance to the construction of a lighthouse at Pedra Branca on British territory." (RS, Ann. 8 (English translation); emphasis added.)
40. The Dutch recognition had practical consequences and the Resident in Riau sent a gunboat to Pedra Branca which arrived on 6 May 1850 and, with British approval, was maintained during the term of the building operations (see Thomson, Account, pp. 424 and 473, MS, Vol. 4, Ann. 61, pp. 527 and 576).
41. In her Reply Malaysia asserts that the description of the "doctrinal sources" by Singapore is flawed, essentially because the sources cited do not support the taking of lawful possession as a mode of acquisition of title (see the Reply, paras. 195-203). This exercise in obfuscation is rejected by Singapore. The authorities governing acquisition of territory in the middle and late nineteenth century are set forth in the Singapore Memorial (paras. 5.108-5.111). Nine authorities are indicated, published in the period 1864 to 1906.
42. The Memorial of Singapore also concludes the relevant section as follows:
"5.109. In looking at the legal doctrine of the second half of the 19th century there can be no doubt that the appropriation of Pedra Branca to the exclusive use of the British Crown in 1847-1851 constituted title by occupation, that is, by the taking of possession. The literature requires an intention to acquire sovereignty, a permanent intention to do so, and overt action to implement the intention and to make the intention to acquire manifest to other States. It is difficult to conceive of a manifestation of sovereignty and exclusive possession as unmistakable in meaning as the taking of possession of Pedra Branca by persons acting with the authority of the British Crown, more particularly in the light of the purpose of taking possession and the construction which followed.
5.110. The doctrine quoted in this Chapter is compatible with the practice of States at the material time. On this aspect of the matter reference can be made to McNair's International Law Opinions, which cites Reports of the Law Officers dated 1842 and 1868. The Reports stress the need to establish title by means of effective occupation, as McNair points out in his commentary."
The Memorial refers here to McNair's International Law Opinions, 1956, Volume 1, at page 285.
And, lastly, we say: "5.111. The sources confirm that an uninhabited island (such as Pedra Branca) was perfectly capable of appropriation by the taking of lawful possession."
That is the end of the quotation of the analysis from the Memorial.
43. This presentation of the authorities on the part of Singapore attracted a minimum of detailed comment in the Malaysian Counter-Memorial, paragraphs 3 to 7. The Government of Malaysia, however, purports to find the phrase "lawful possession" controversial (see the Counter-Memorial, paras. 52-62).
44. This reaction is an artifice. The term "lawful possession is synonymous with the effective occupation of terra nullius, and this is evident from the quotations from the authorities set forth in the Singapore Memorial: and see also the Reply of Singapore, Appendix A, at pages 285 to 290.
45. The Malaysian argument rejects the use of the term "possession" but it is difficult to understand why. The term "possession" is the normal general term used in the technical literature, and in the judgments of this Court to describe the basis of title otherwise than by treaty of cession. This is also seen in standard academic references including:
(a) Professor O'Connell, International Law, 3rd edition, 1970, at pages 405 to 421;
(b) Sir Robert Jennings, Acquisition of Territory in International Law, published in 1963, at pages 4 and 20; and
(c) Professor Rousseau, Droit International Public, published in 1977, Volume III, at pages 151 to 173.
46. The older sources sometimes refer to "occupation" or '"effective occupation". The modern judicial usages are primarily "possession" or a predominant pattern of effectivités.
47. For examples of "possession" the Court can refer to Minquiers and Ecrehos. The Court used the term possession in several key statements in successive pages. Thus, on page 55:
"Basing itself on facts such as these, the United Kingdom Government submits the view that the Channel Islands in the Middle Ages were considered as an entity, physically distinct from Continental Normandy, and that any failure to mention by name any particular island in any relevant document, while enumerating other Channel islands, does not imply that any such island lay outside this entity . . . If the Ecrehos and Minquiers were never specifically mentioned in such enumerations, this was probably due to their slight importance. Even some of the more important Islands, such as Sark and Herm, were only occasionally mentioned by name in documents of that period, though they were held by the English King just as were the three largest Islands. The Court does not, however, feel that it can draw from these considerations alone any definitive conclusion as to the sovereignty over the Ecrehos and the Minquiers, since this question must ultimately depend on the evidence which relates directly to the possession of these groups." (Minquiers and Ecrehos (France/United Kingdom), Judgment, I.C.J. Reports 1953; emphasis added.)
And, for a second example, in the same report, at page 57, the Court, having summarized the history of the islets since 1204, observed:
"In such circumstances it is difficult to see why the dismemberment of the Duchy of Normandy in 1204 should have the legal consequences attributed to it by the French Government. What is of decisive importance, in the opinion of the Court, is not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession of the Ecrehos and Minquiers groups." (Ibid., p 57: emphasis added.)
48. The Court has sometimes referred to a predominant pattern of effectivités, as in the Judgment in the case of Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), (I.C.J. Reports 2002, pp. 685-686, paras. 148-149).
49. In parenthesis it is worth pointing out that whilst the significance of the decision in the Minquiers and Ecrehos case is not to be underestimated, the basic elements of the Judgment reflected a particular model, namely the existence of contemporaneous and competitive State activities of the two parties. The circumstances of the present case are qualitatively different and the absence of any competition from Malaysia and its predecessors persisted until 1979.
50. In her Reply Malaysia reiterates her criticism of what she calls Singapore's "theory of lawful possession" (paras. 190-203). However, the emphasis in this part of Malaysia's written pleading is upon the facts, that is to say, what may constitute a taking of possession of territory.
51. In addition the Malaysian Reply makes complaints of Singapore's references to authorities. Thus, Malaysia asserts that Singapore quotes from the authority W.E. Hall, but fails to explain the relevance of what he says. But the text of Hall is characteristically clear and speaks for itself: and the Court may refer to the Singapore Counter-Memorial at paragraph 5.11. Hall makes clear that the ultimate criterion is the manifestation of the will of the Crown.
52. The Malaysian Reply also reproves Singapore for not quoting from the 5th edition of Oppenheim's International Law, described by Malaysia as a "classic British work". Singapore does not deny that Oppenheim is a "classic British work". However, the particular edition cited by Malaysia ⎯ the 5th edition ⎯ was published in 1937, which makes it neither relevant as a source of inter-temporal law nor useful as a digest of the most current judicial thinking.
53. According to Malaysia, the 5th edition of Oppenheim stands for the proposition that the proof of animus occupandi requires some formal act. Malaysia is wrong. She refers to the passage which reads:
"For this purpose [that is, the purpose of taking possession by an occupying State] it is necessary that it should take the territory under its sway (corpus) with the intention of acquiring sovereignty over it (animus). This can only be done by a settlement on the territory, accompanied by some formal act which announces both that the territory has been taken possession of and that the possessor intends to keep it under his sovereignty."
54. One wonders why Malaysia does not cite the latest edition of Oppenheim, which would be more relevant for having collected and digested the most current jurisprudence emanating from this Court. In contrast to the 5th edition, the 9th edition of Oppenheim reads:
"For this purpose it is necessary that it should take the territory under its sway (corpus) with the intention of acquiring sovereignty over it (animus). This ⎯ at least for considerable and habitable areas ⎯ normally involves a settlement on the territory, accompanied by some formal act which announces both that the territory has been taken possession of and that the possessor intends to keep it under his sovereignty." (Oppenheim, 9th edition, II, p.689)
55. The 9th edition provides a footnote at the end of this passage I have just read, and the footnote is as follows:
"Earlier editions of this volume suggest that settlement is a sine qua non of effective occupation. While this is doubtless true of large areas of habitable terrain, it might not apply to, for example, offshore islets. The rocky islets of Jersey in the Minquiers and Ecrehos case [I.C.J. Reports 1953, p. 47], could hardly be 'settled' in any true sense of the word; but they surely could be 'occupied' if not subject already to a sovereignty?"
56. Clearly the editors of the 9th edition interpreted previous editions of Oppenheim as suggesting that effective occupation requires a settlement, and not, as Malaysia alleges, that effective occupation requires some formal act. Similarly, Sir Humphrey Waldock also interprets the passage from earlier editions of Oppenheim as making settlement ⎯ and not formal acts, ⎯ an essential element of effective occupation. Writing in 1948 Waldock notes:
"The most recent edition of Oppenheim still asserts categorically that territory can only be taken into possession by settlement upon it and that otherwise the occupation is only fictitious. But this theory has been decisively rejected by arbitral and judicial decisions in the present century." (25 BYBIL 311 (1948), p. 315.)
In the same article, Waldock made clear his view that no formal acts are required. He explained that evidence of the intention to acquire sovereignty "may consist either of published assertions or - acts of sovereignty" (p. 334). This, together with the 9th edition of Oppenheim, confirms that Malaysia is wrong to rely on the 5th edition of Oppenheim for a proposition which it does not support.
57. What is more significant for the present purpose is Malaysia's complete disregard for the sources of applicable inter-temporal law. The Singapore Memorial cites nine works published between 1864 and 1906, including such classic British works as Sir Robert Phillimore's Commentary upon International Law (published in 1879) and Sir Travers Twiss' The Law of Nations in Peace (published in 1884). None of these authorities considered formal acts to be an essential element of effective occupation. It is notable that Malaysia has made no attempt to address any of these authorities directly.
58. In this context I shall turn to Malaysia's treatment of British practice. In her Memorial, Malaysia describes this as "the traditional and consistent British practice of formally taking possession of territories under its sovereignty" (MM, p. 73, para. 157). The Malaysian Counter-Memorial calls it "standard practice" (CMM, pp. 38-39, para. 76). In support of her claim that there is such a "standard practice", Malaysia refers to a number of examples where formalities were undertaken in the course of taking of possession. In doing so, Malaysia has committed the logical fallacy of leaping directly from a descriptive account to a normative conclusion. As the Singapore written pleadings have made clear, there is no evidence that British State practice requires the performance of formalities as a positive rule. In fact, the evidence points the other way.
59. While formalities are commonly performed, it is clear that British officials do not consider formalities to be either "necessary" or "required". One example is the United Kingdom Application before this Court in the Antarctica case, which Malaysia so heavily relied on. In her Counter-Memorial, Malaysia quotes half a sentence from paragraph 17 of the United Kingdom Application: "Great Britain's title to the islands and territories of the Dependencies was thus formally confirmed and defined by the issue of the Letters Patent of 1908 and 1917 . . ." The second half of the sentence, which Malaysia omits to quote, reads: "but, as has been shown, it did not originate or depend on these Letters Patent, and had been in existence for many decades previously". Clearly, the drafters of the United Kingdom Application did not consider formalities to be a requirement of British practice.
60. The Singapore Reply also cited the example of Pitcairn Island. A British Foreign Office official noted in 1893 in relation to Pitcairn Island that: "No record of the hoisting of the British flag, or of its having been declared British territory, but so considered." (RS, p. 80, para. 3.102.) Here was yet another British official who had no difficulty accepting that territory can be acquired without formalities. While still on the subject of Pitcairn Island, Members of the Court may recall that, two years ago, certain Pitcairn islanders attempted to dispute British sovereignty over the island. The Pitcairn Island Court of Appeal, consisting of three judges from New Zealand, whose judgment is found at tab 28 of the judges' folder, held that:
"It is not necessary to define with accuracy the time at which Pitcairn Island did become a British possession. Sometimes there may be a gradual extension of jurisdiction over a territory, as was recognised in Attorney General for British Honduras v. Bristowe (1880) 6 App Cas 143. British Honduras was formally annexed in 1862, but there were grants of land by the Crown made as early as 1817. The Privy Council [that is, the final Appeal Court of the British Empire] held that sovereignty was acquired on or before that earlier year. Similarly, a formal act of acquisition is not required. It is the intention of the Crown, gathered from its own acts and surrounding circumstances, that determines whether a territory has been acquired for English law purposes. The same principle applies in the resolution of international disputes as to sovereignty." ((2005) 127 ILR 232, pp. 294-295; emphasis added.)
61. In short, the judges, after examining the British practice applicable in the mid-nineteenth century, found that "a formal act of acquisition is not required" and that, as a matter of English law, the intention of the Crown is to be "gathered from its own acts and surrounding circumstances". This is a clear, unequivocal and authoritative refutation of the Malaysian thesis on British practice.
62. Finally, Singapore referred to Sir Kenneth Roberts-Wray. Roberts-Wray joined the Dominions Office, subsequently the Commonwealth Relations Office and Colonial Office in 1931 and rose to be the Legal Adviser to the Commonwealth Relations Office and Colonial Office in 1945, holding that position for 15 years until his retirement in 1960. He wrote the book Commonwealth and Colonial Laws as a guide and manual for future generations of lawyers in the Commonwealth Relations Office and Colonial Office. If there is indeed a rule of British practice requiring formalities in every case, one would have expected the chief legal adviser to the Commonwealth Relations Office and Colonial Office to say so in his book. He does not. Instead, where formalities are concerned, Roberts-Wray only records that they are "preferable" ⎯ not essential ⎯ merely preferable.
The evidence of acquisition of title
63. Mr. President, I must now move on to examine the evidence of acquisition of title. In the period 1847 to 1851 the British Crown acquired title by the taking of lawful possession or, which is the same thing, a process of effective occupation. Malaysia seeks to gain some advantage by suggesting that the length of the process is in some sense anomalous. But, of course, it is not. The process of taking possession and the appropriation of Pedra Branca for the purpose of building a lighthouse simply did take that period. It seems academic to speculate at what point in time title was established. The acknowledgment of title by the Dutch authorities took place in 1850.
64. In any event, the very public process of construction began in the months of January to March 1850: I refer here to Thomson's Account, pages 402 to 407. The operations were supported by the steamer Hooghly and the gunboat Charlotte, together with decked lighters called tonkangs (Thomson, p. 401).
65. Mr. President, by the time that the lighthouse was commissioned on the 27 September 1851, Pedra Branca had been the subject of a major sequence of official acts set on foot by the British Crown, and involving the taking of exclusive possession of Pedra Branca as a whole.
66. The Malaysian contention that the possession was only for the purpose of acquiring room for the lighthouse flies in the face of common sense.
67. The strong evidence of the taking of lawful possession or effective occupation by the British Crown has induced my distinguished opponents to produce a whole armoury of obfuscation, and I shall now review those different forms of Malaysian obfuscation.
(a) Forms of Malaysian obfuscation
Malaysia: The requirement of a formal act of taking possession
68. In the first place Malaysia contends that there is a legal requirement of a formal act of taking possession and that the (alleged) absence of any formal act of possession of Pedra Branca constituted evidence that Britain had no intention of establishing sovereignty over it (MM, paras. 157-164; CMM, paras. 63-72).
69. As we have already explained to the Court, in fact Malaysia produces no credible evidence of a requirement of a formal act of taking possession either in British practice or in general international law.
70. The remarkable fact which emerges from the lengthy exposition in Malaysia's Counter-Memorial is that no source is indicated which recites the alleged requirement of a formal act of taking. The standard sources are invoked in Singapore's Counter-Memorial. The sources quoted by Malaysia are as follows:
⎯ first, Lord McNair, International Law Opinions (1956) Volume 1, page 285; and
⎯ second, T.J. Lawrence, The Principles of International Law (1895), page 147.
71. However, neither of these works indicates that a formal taking is necessary. Like the doctrine generally, these sources make the assumption that a formal taking is only a sufficient but not necessary proof of intention.
72. On this question the position of Singapore is to be found in her Reply, where we say:
"Singapore, in her Memorial, quotes Sir Kenneth Roberts-Wray, a leading authority. This is dismissed in Malaysia's Counter-Memorial as a 'doctrinal quotation', whatever that might mean. But the passage from Roberts-Wray makes the position absolutely clear: the unilateral manifestation of the will of the Crown is sufficient. (P. 78, para. 3.96.)
(b) Malaysia misrepresents the character of activity à titre de souverain
73. The second form of obfuscation involves the argument, often reiterated, that the "mere" administration of a lighthouse is entirely divorced from any question of sovereignty or title. This argument forms the theme of Chapter 6 of the Malaysian Counter-Memorial.
74. The argument is stated in passages at paragraphs 203 and 204 which will appear in the transcript: I shall not read them out.
"This Chapter also addresses the extensive body of practice by lighthouse authorities around the world, whether governmental or non-governmental, concerning the administration of lighthouses. Such practice, which neither hinges on the sovereignty of the territory on which the lighthouse is situated nor is in any way determinative of it, reflects the general conduct that would be undertaken by any operator of a lighthouse as part of its administrative responsibilities.
In particular, this Chapter illustrates these points by reference to the practice of lighthouse administration in the Red Sea, in the Arabian/Persian Gulf, by Trinity House, and in a number of other cases involving individual lighthouses. As will be shown, the construction and administration of lighthouses around the world, especially during the period from the mid-19th to the mid-20th centuries, combined imperial interest and the commercial objectives of private undertakings operating under an imperial mantle. The practice of Britain, France and other European States during this period focused on the objective of securing maritime safety and was driven by commercial needs and the interests of international navigation rather than by concerns to acquire tiny islets, rocks or other portions of territory on which the lighthouses were to be constructed." (CMM, pp. 99-100, paras. 203-204.)
75. Malaysia distorts the concept of activity à titre de souverain. The motivation involved in taking possession of territory may be to acquire access to space for an airfield or port facilities, or natural resources, but the legal vehicle for acquiring access is the acquisition of sovereignty. As Singapore has pointed out in the Reply, the precise legal context is paramount in each case. This context includes the evidence of intention. It does not include facile typologies about lighthouses or navigational aids.
(c) Malaysia separates the question of the intention of the British Crown from the process of the taking of possession
76. The third form of obfuscation involves the separation of the question of intention and the taking of possession. This separation is artificial. In the present case it is inappropriate to apply the legal criteria of intention and taking of possession in separate compartments. In terms of the detailed process of decision-making and construction of the lighthouse, the two criteria are interdependent and complementary.
77. The entire sequence of planning and activities on Pedra Branca concerned the manifestation of sovereignty over the island as a whole by the British Crown.
(d) The tendency of Malaysia to fragment the evidence
78. The fourth type of obfuscation involves the constant practice of the authors of Malaysia's pleadings to fragment the substantial body of evidence and consequently to divorce intention from the manifestation of intention. There are many examples of this fragmentation.
79. In the Malaysian Counter-Memorial we find the following on the subject of the placing of the seven brick pillars on Pedra Branca in 1847:
"What is presented by Singapore as either the beginning of the taking of possession of PBP, or the completed act of 'taking of lawful possession' in 1847, was nothing more than Thomson's visit to study the feasibility of the construction of the lighthouse and place seven brick pillars to test the strength of the waves. Leaving aside that these acts neither constituted a material act of seizure of the island nor demonstrated the slightest intention to acquire sovereignty, it should be noted that Thomson also visited Peak Rock for the same purpose of assessing its feasibility for constructing the lighthouse." (P. 54, para. 106.)
80. In this passage the placing of the pillars is taken out of its context. Malaysia fails to record that the building of the brick pillars on Pedra Branca was preceded by the decision of the British Crown, after much deliberation, to select Pedra Branca as the site of the lighthouse. Thomson was checking on the feasibility of the building materials to be employed, and the decision to build on Pedra Branca had already been taken. In the circumstances, it is not surprising that no brick pillars were placed on Peak Rock. No decision had been taken to construct a lighthouse on Peak Rock.
81. A further example is the manner in which Malaysia analyses the laying of the foundation stone on 24 May 1850. Malaysia insists that the ceremony was simply one of "the various formalities undertaken in the course of the construction of the lighthouse" and did not indicate any intention to acquire sovereignty (CMM, para. 66, and see paras. 69-72). According to the Malaysian argument, these "various formalities" related exclusively to the matter of private law ownership, and did not even indicate the taking of exclusive possession (ibid., para. 70). Yet, Mr. President, this characterization ignores the fact that the foundation-laying ceremony was organized entirely by the British authorities, and that the persons in attendance, which included civil and military officials, as well as foreign consuls, had been invited by Governor Butterworth, the highest ranking government official of the Straits Settlements. Moreover, Pedra Branca was described as a "dependency" of Singapore during the ceremony.
The acts involved as evidence of taking possession
82. I must next examine the evidence relied upon by Singapore in establishing title to Pedra Branca, as acquired in the period 1847 to 1851.
83. Certain observations are called for by way of introduction. In the first place, Malaysia admits the predominantly governmental character of the enterprise to acquire Pedra Branca in order to build a lighthouse. In her Counter-Memorial, in a discussion of the "taking of possession", Malaysia makes the following admission:
"The point at issue here is not who constructed the lighthouse and operated it, but whether this construction can be considered as an act of taking of possession of that island. There is no question that Horsburgh Lighthouse was constructed by the East India Company and that it belonged to it. Understandably, this construction was carried out and supervised by British authorities. The question at issue is whether the construction was conducted with the intention to acquire sovereignty over PBP." (CMM, para. 61.)
84. This statement is less than complete. The British Crown was not merely the instrument of construction, it authorized and funded the construction. But nonetheless this statement constitutes an admission of the essential character of the enterprise as a British official project. Moreover, in the circumstances, there was a presumption of an intention to acquire title. As a matter of stability and effectiveness it would be appropriate and necessary to take possession of the island as a whole.
85. In her Counter-Memorial, Malaysia remarks that: "This is the first time in the history of territorial litigation that a taking of possession is presented as a complex act lasting at least four years and without a single manifestation during that period of the intention to acquire sovereignty." (CMM, para. 61.)
86. But, Mr. President, Members of the Court, there is no reason, legal or otherwise, why the taking of possession should not be a complex act. In the Clipperton Island Arbitration the Award states, in the English translation:
"It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying State reduces to its possession the territory in question and takes steps to exercise exclusive authority there."
The original French text of the Award will appear in the transcript.
"Il est hors de doute que par un usage immémorial ayant force de loi juridique, outre l'animus occupandi, la prise de possession matérielle et non fictive est une condition nécessaire de l'occupation. Cette prise de possession consiste dans l'acte ou la série d'actes par lesquels l'État occupant réduit à sa disposition le territoire en question et se met en mesure d'y faire valoir son autorité exclusive." (Subject of the Difference Relative to the Sovereignty over Clipperton Island (France v. Mexico), Arbitral Award dated 28 Jan. 1931, (1928) 2 United Nations, RIAA 1107, p. 1110 (for the original French text) and 26 AJIL 390 (1932), p. 393 (for the English translation); emphasis added.)
87. In her pleadings Malaysia insists that there was not a single manifestation of the intention of the British Crown to acquire sovereignty in the material period (CMM, already quoted and MR, paras. 249-256).
88. Mr. President, this is an extravagant position. The entire pattern of the decisions and activities of the British Crown constitutes the evidence of an intention to acquire sovereignty. The analysis of Malaysia rests upon an entirely artificial dichotomy between the taking of control of territory and the intention to acquire sovereignty.
89. The key point is the assessment of the evidence as a whole. In the result, the physical and administrative actions of the officials of the British Crown form a part of the evidence of intention.
90. In many cases involving title the significant evidence consists of assemblages of evidence of State activity and acts of jurisdiction. A good example is the Beagle Channel Arbitration in which the Court addressed the issue of the interpretation of the 1881 Treaty on the basis of the evidence of the acts of jurisdiction performed by Chile (see International Law Reports, Vol. 52, pp. 220-226, paras. 164-175). The evidence of such an assemblage of State activities and administration creates a strong inference of the existence of a title.
91. In face of this pattern of activity by the British Crown, Malaysia contends that no protest or reservation of rights was called for (CMM, p. 69, para. 134). But this bold assertion is based upon the equally bold assertion that there had been no formal or informal taking of possession by the British Crown.
92. And Singapore has responded to this argument in her Reply (pp. 88-89) where she says:
"3.121. The failure to protest in face of the flow of public activity, and especially the continuous operations attending the construction of the lighthouse, must cast a deep shadow upon Malaysia's claim to 'original title'. Johor had very complete knowledge of the intentions of the British Crown through the correspondence concerning the site for a lighthouse. The visit of the Temenggong is significant in this respect, and the laying of the foundation stone was reported in the local press. As Malaysia has herself indicated, the time frame was a period of four years.
3.122. The criteria indicating that a protest is called for have been stated succinctly by Sir Gerald Fitzmaurice:
'There must of course be knowledge, actual or presumptive, of the events or circumstances calling for a protest . . . Subject to that, it might be said generally that a protest is called for whenever failure to make it will, in the circumstances, justify the inference that the party concerned is indifferent to the question of title, or does not wish to assert title, or is unwilling to contest the claim of the other party.' (Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. I, p. 299, note 3.)
3.123. And Fitzmaurice, in the same source, describes the consequences of silence:
'a failure to protest, where a protest is called for, must have a detrimental effect on the position of the party concerned and may afford evidence of non-existence of title'." (Ibid., p. 299.)
93. In the Beagle Channel Arbitration the distinguished Court of Arbitration accepted that acts of jurisdiction were confirmatory and corroborative evidence in relation to the issue of treaty interpretation which was central to the dispute.
94. In the words of the Court of Arbitration:
"The Court does not consider it necessary to enter into a detailed discussion of the probative value of acts of jurisdiction in general. It will, however, indicate the reasons for holding that the Chilean acts of jurisdiction while in no sense a source of independent right, calling for express protest on the part of Argentina in order to avoid a consolidation of title, and while not creating any situation to which the doctrines of estoppel or preclusion would apply, yet tended to confirm the correctness of the Chilean interpretation of the Islands clause of the Treaty." (International Law Reports, Vol. 52, pp. 220-221, para. 165.)
95. In the analysis of the evidence which then follows, the Court of Arbitration in the Beagle Channel accepts that the pertinent activities of Chile were "well-known to the Argentine authorities" and "again public and well-known to Argentina" (see the Decision, paras. 166 and 169).
96. And I shall complete this analytical exercise by repeating the warning that the methodology adopted by Malaysia has a basic flaw, namely, the insistence of Malaysia upon a simplistic typology of "relevant acts" which are supposedly to be assessed individually. In other words Malaysia persists in fragmenting the evidence and divorcing intention from the practical ways of manifesting intention.
Acts invoked by Singapore as evidence of sovereignty
97. In presenting the acts invoked by Singapore as evidence of the acquisition of sovereignty in the period 1847 to 1851, I shall follow the categories outlined in the Singapore Memorial.
First: the selection of the site of the lighthouse
98. The British Crown had an exclusive role in respect of the selection of a site for the construction of the lighthouse (MS, paras. 5.33-5.44). In the response to a request for advice from the Governor in 1844, Sir Edward Belcher proposed the Romania outer island, that is, Peak Rock, and did so in the interests of general navigation.
99. The remainder of the history is straightforward, and appears in Singapore's Memorial, as follows:
"In due course, the results of a further survey of the Straits by Thomson and Captain Congalton, which disclosed many previously unknown rocks and shoals, came to Governor Butterworth's attention. He instituted further enquiries regarding both Pedra Branca and Peak Rock as sites for the lighthouse. On 26 August 1846, he wrote to the Government of India urging that the lighthouse be built on Pedra Branca. In doing so, he reversed his long-standing position that the lighthouse should be built on Peak Rock. In October 1846, the Government of India agreed, and recommended the Pedra Branca site to the Court of Directors of the East India Company. In February 1847, the East India Company agreed to the change of site; and in May 1847, Governor Butterworth was instructed to begin work on the Horsburgh Lighthouse on Pedra Branca." (Para. 5.44.)
100. The ultimate choice of Pedra Branca was politically and legally significant. In the British documents it is recognized that Peak Rock "is part of the territories of the Rajah of Johor . . .". However, no document links the issue of Johor title to Pedra Branca (CMS, pp. 92-108). The question of whether Johor had granted permission to build a lighthouse has been addressed by my colleague, Professor Pellet. It is clear that once Pedra Branca had been selected as the site, the question of permission became moot and was never raised by Johor at any time afterward.
Second: the decision to construct the lighthouse
101. The decision to construct the lighthouse has to be taken in conjunction with the decision on its location and the basis of the funding. The planning of the construction has been described in Singapore's Memorial (paras. 5.47 to 5.53).
102. The decision to build the lighthouse followed the final discussion of the location and the decision to use Pedra Branca. The key document is the letter dated 24 February 1847 from the Court of Directors of the East India Company to the Governor-General of India in Council (MS, Vol. 2, Ann. 18). The key paragraph is the first, which reads as follows:
"Your letter dated 3rd October 1846 in reply to our Despatch of the 6th May preceding, forwards Copy of a Report received from the Governor of Prince of Wales Island, Singapore and Malacca, which leaves no doubt as to the superiority of Pedra Branca over Peak Rock on the outer Romania Island as a site for the Lighthouse proposed to be erected in the neighbourhood of Singapore to the memory of Mr. Horsburgh. We concur therefore in your approval of the choice of the former site." (Emphasis added.)
103. In 1847 and 1848 certain practical measures were put in hand, and these are recorded in the documents available.
104. The process of taking lawful possession of Pedra Branca for the purpose of constructing and maintaining a lighthouse began in 1847. It was in the period 1846 and 1847 that the Government of India decided that Pedra Branca was to be the site of the project rather than Peak Rock. In a letter dated 21 June 1847, Church, the Resident Councillor in Singapore, instructed Thomson to submit preliminary plans and estimates. Thomson responded in a letter dated 9 July 1847 in which he reviewed a long series of practical matters, including the engagement of a contractor, labour requirements, the housing of workmen on Pedra Branca, and the need to build pillars to assess the force of the monsoon (MS, Ann. 21).
105. As a consequence of the instructions received from Church, Thomson, in his role as Government Surveyor, made his first landing on Pedra Branca. The purpose was to build brick pillars on the rock in order to assess the action of the waves at the worst season. This assessment was directed to the making of an informed decision on the building materials to be used. The decision to build on Pedra Branca had already been taken and it was the modalities of the construction which were in issue at this stage.
106. On 1 March 1848, Thomson revisited Pedra Branca to examine the state of the pillars. In the event he decided that it would be necessary to use granite for the edifice rather than brickwork. These findings are also recorded in the letter dated 12 June 1848 from Governor Butterworth to W. Seton Karr, the Under-Secretary to the Government of Bengal (MS, Ann. 27).
107. On 6 March 1850, Thomson again inspected the island prior to commencing operations. Further public activity took place in the course of April 1850, when houses for the workmen were built on Pedra Branca.
108. The entire process of preparation for the construction, and the construction itself, was public, and this particularly so in the relatively narrow seas of the region. The key stages in the construction were the subject of contemporary reports in the local newspapers. Thus the laying of the foundation stone was reported in the Straits Times and Singapore Journal of Commerce on 28 May 1850 (MS, Ann. 45).
109. The completion of the lighthouse and the visit of the Governor of the Straits Settlements on 27 September 1851 were reported in the Straits Times and Singapore Journal of Commerce on 23 September 1851 and 30 September 1851, respectively (MS, Ann. 56). The Singapore Free Press and Mercantile Advertiser carried a report on 3 October 1851 (ibid.).
Third: the funding of the construction work
110. I move now to the process of funding the construction work which has been chronicled in detail in Singapore's Memorial (paras. 5.60-5.65). In response to the evidence presented Malaysia claims that the idea to build a lighthouse was the private initiative of certain merchants in Canton (CMM, p. 50, para. 95). This is true but it does not have the legal consequences desired by Malaysia. The fact is that the British Crown was alone responsible for taking the decision to build the lighthouse. These facts are accepted by Malaysia in her Counter-Memorial. There it is stated: "In fact, the East India Company twice rejected the proposal to build the lighthouse. The Court of Directors only acted in response to repeated requests by the merchants." (Ibid., p. 50, para. 95.) In other words, Mr. President, the decision was that of the British Crown.
111. And the conclusion can only be that the final decision to proceed was based upon a number of political and economic considerations connected with the issue of levying a duty on shipping.
In my examination of the evidence of title the next item is the:
Ceremonial laying of the foundation stone
112. On 24 May 1850 the foundation stone of the lighthouse was laid in the presence of an official party transported to the island by two government vessels. The official account is provided by Thomson, and it reads in part:
"The 24th day of May being the birthday of Her Most Gracious Majesty, Queen Victoria, was fixed upon as the day on which the foundation stone was to be laid. Her Majesty's Steam frigate 'Fury' arrived off the rock at 11½ A.M. on that day, having in tow the H.C. ['Honourable Company'] Steamer 'Hooghly' and the merchant vessel 'Ayrshire' carrying the Hon'ble Colonel W.J. Butterworth C.B., the Governor of the Straits Settlements, who had invited his Excellency Admiral Austin the Naval Commander-in-Chief of the East India Station, and the Hon'ble T. Church, Esquire, Resident Councillor at Singapore to accompany him; also M.F. Davidson, Esq., Master of the Lodge Zetland in the East, No. 748, who with the office-bearers of the Lodge and other members of that Lodge, had been requested to perform the ceremony of laying the foundation stone with Masonic honours. Various other civil and military members of the Singapore community, together with the foreign Consuls had come by invitation to witness the ceremony . . ." (Thomson, Account, p. 427.)
113. During the ceremony the Master of the Lodge Zetland in the East made the following statement in the presence of Governor Butterworth and all of the other invited officials and guests (tab 29 of the judges' folder). He said: "May the All Bounteous Author of Nature bless our Island, of which this Rock is a dependency . . ." (Source: Straits Times and Singapore Journal of Commerce, 28 May 1850; Singapore Memorial, Ann. 45.)
114. This reference to "our island" is clearly a reference to the main island of Singapore from which the party had come, and it confirms the status of Pedra Branca as a dependency of Singapore.
115. The standard dictionary definition of a dependency is "the condition of being dependent, contingent logical or causal connection . . . something dependent or subordinate" (source: Shorter Oxford English Dictionary (1974), p. 521).
116. As Singapore has stated in her Reply, the connotation of the term in public international law is essentially the same. Thus, the authoritative Dictionnaire de droit international public, edited by Jean Salmon, provides the following guidelines in an English translation:
"Dependency: . . . Part of a territory linked with another in a subordinate way. Thus:
⎯ maritime territory, dependency of the land territory . . .
⎯ an island, dependency of another island or group of islands."
And then two examples are set forth. The first example is a quotation from the Minquiers and Ecrehos Judgment:
"When the British Embassy in Paris, in a Note of November 12th, 1869, to the French Foreign Minister, had complained about alleged theft by French fishermen at the Minquiers and referred to this group as 'this dependency of the Channel Islands' . . ." (Minquiers and Ecrehos (France/United Kingdom), Judgment, I.C.J. Reports 1953, p. 71.)
And the second example is:
"The small size of Meanguerita, its contiguity to the larger island, and the fact that it is uninhabited, allow its characterization as a 'dependency' of Meanguera, in the sense that the Minquiers group was claimed to be a 'dependency of the Channel Islands'." (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 570, para. 356.)
And the text of the French original will be in the transcript:
"Dépendance: . . . Partie d'un territoire se rattachant de manière subordonnée à un autre. Ainsi:
⎯ Le territoire maritime, dépendance du territoire terrestre: . . .
⎯ Une île, dépendance d'une autre île ou d'un groupe d'îles."
"Quand l'ambassade britannique à Paris, dans une note du 12 novembre 1869 au ministre français des Affaires étrangères, s'est plaint de prétendus vols par les pêcheurs français aux Minquiers et s'est référée à ce groupe en disant: 'cette dépendance des Îles de la Manche' . . ." (Minquiers et Ecréhous (France/Royaume-Uni), arrêt, C.I.J. Recueil 1953, p. 71.)
"L'exiguïté de Meanguerita, sa proximité de la plus grande île et le fait qu'elle est inhabitée permettent de la qualifier de 'dépendance' de Meanguera, au sens où il a été soutenu que le groupe des Minquiers était une 'dépendance' des îles de la Manche." (Différend frontalier terrestre, insulaire et maritime, (El Salvador/Honduras; Nicaragua (intervenant)), arrêt, C.I.J. Recueil 1992, p. 570, par. 356.)
117. In her written pleadings Malaysia asserts that the ceremony of 24 May 1850 did not relate to the question of sovereignty (see MM, paras. 151-164; CMM, paras. 66, 69-72; RM, paras. 219-230).
118. In face of the evidence of the inauguration of the lighthouse Malaysia resorts to a series of weak and self-serving arguments. The first principal argument is that the Masonic element in the ceremonial allegedly outweighed the governmental and official elements. But, Mr. President, the ceremony was organized under the authority of the Governor of the Straits Settlements, Lieutenant-Colonel Butterworth, and the Masonic Brethren had been requested by the Governor to participate in the ceremonial. Thus the ceremony originated with the British Crown and was organized for its official purposes. The second argument used by Malaysia is to the effect that the laying of the foundation stone was simply one of the "formalities" undertaken in the course of the construction and that none of these formalities manifested any intention to acquire sovereignty or to claim exclusive possession of the island (see the CMM, para. 66).
119. However, as Singapore has pointed out in her Reply:
"The substance of the matter is that the laying of the foundation stone was not an isolated event. The newspaper account relied upon by Malaysia makes it clear that the ceremony was held under the auspices of the Governor of the Straits Settlements. The Governor had requested the Worshipful Master and Brethren of the Lodge Zetland in the East to lay the Foundation Stone, and the distinguished visitors listed were there at the invitation of the Governor. In fact, the laying of the foundation stone formed part of a long process of decision-making and preparation for the construction of the lighthouse under the control of and on behalf of the British Crown." (Pp. 46-47, para. 3.31.)
In face of all this evidence of British title Malaysia argues that:
The construction of the lighthouse was related exclusively to administration and ownership
120. Thus, in the Memorial Malaysia contends "that the construction and maintenance of lighthouses or other aids to navigation are not per se considered manifestations of sovereignty" (MM, p. 78, para. 171). The argument is expressed in two ways. First, on the basis that navigational aids are not relevant to the issue of sovereignty and, secondly, that the construction involved only the acquisition of the ownership of a lighthouse on the territory of another sovereign, namely Johor.
121. The first argument, the alleged irrelevance of navigational aids is based upon an erroneous characterization of the legal criterion. The criterion is not based upon an abstract proposition to the effect that navigational aids are, or are not, manifestations of sovereignty, but consists of the intention to acquire sovereignty as revealed in all the relevant circumstances.
122. As Singapore has stated in her Counter-Memorial, the jurisprudence invoked by Malaysia does no more than demonstrate that each case depends on the legal and historical circumstances. Thus, in the Minquiers and Ecrehos case the Court examined the evidence of competing State activity as a whole and found that the British activities on the Minquiers predominated. As the excerpts from the Judgment offered by Malaysia show, in the circumstances the lighting and buoying carried out by France "can hardly be considered as sufficient evidence of the intention of that Government, to act as a sovereign over the islets . . ." (MM, pp. 78-79, para. 172; emphasis added). Thus the criterion was the intention of the Government concerned in the light of the evidence generally. On the other hand, in appropriate circumstances the construction and maintenance of lighthouses may constitute evidence of sovereignty, as in the cases of Qatarv. Bahrainand Indonesia/Malaysia. In the latter case, it was Malaysia who invoked this proposition in her favour (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, pp. 684-685, para. 146).
123. In addition, Malaysia invokes the Award in the first phase of the Eritrea/Yemen arbitration. The Malaysian Memorial asserts that: "The Arbitral Tribunal . . . rejected the assertions that the establishment or maintenance of lighthouses constituted acts of sovereignty." (MM, p. 79, para. 173.) But, with respect, this categorical statement does not reflect the language of the Award. The quotation given by Malaysia states that: "The operation or maintenance of lighthouses and navigational aids is normally connected to the preservation of safe navigation, and not normally taken as a test of sovereignty." (Emphasis added.) And then the quotation continues: "Maintenance on these islands of lighthouses by British and Italian companies and authorities gave rise to no sovereign claim or conclusions. The relevance of these activities and of Yemen's presence at the 1989 Red Sea Lights Conference are examined in Chapter VI." (Emphasis added.)
124. Both the content of this statement by the Tribunal and the content of Chapter VI of the Award confirm that the legal significance of the operation of lighthouses depended on the particular historical circumstances and, in particular, the overall evidence of intention to claim. The criterion was thus the intention of the States concerned. The relevant passages of the Award are set forth in Singapore's Counter-Memorial (pp. 122-124).
125. These passages constitute a sufficient sample of the reasoning of the Tribunal in Chapter VI of the Award in Phase One. They establish, without any shadow of doubt, that the significance of the lighthouses was assessed in the precise historical context, and in relation to the evidence of the intention and attitude of each Government at the material time, as evidenced by available documents and the general circumstances. The implications for sovereignty or not, as the case might be, were intention-related.
126. In this context it is useful to recall a part of Malaysia's argument in the Indonesia/Malaysia case. Thus in her Reply Malaysia observed:
"The second part of the Indonesian response draws upon two cases ⎯ the Eritrea/Yemen case and the Minquiers and Ecrehos case ⎯ to support the contention that the establishment of lights and buoys is not normally taken as a test of sovereignty and does not constitute proof of occupation à titre de souverain. It is true that in those two cases the Arbitral Tribunal and this Court respectively did not find that the construction of the light was sufficient evidence of the intention of the Government concerned to act as sovereign over the territorial location of the lights. But that conclusion was reached on the basis of the facts particular to each of the two cases, and cannot be applied to the two islands here." (Para. 5.25.)
And Malaysia continues:
"The circumstances in which the Tribunal in the Eritrea/Yemen case made its remarks about the effect of the establishment of lighthouses are peculiar to that case, whereas a reading of the whole of the relevant part of the Award, and not merely the lifting of a line out of context, shows that the States concerned did not, in their special situation, regard the construction of a lighthouse with the knowledge and consent of other interested States as leading to the conclusion that the State constructing the light thereby intended to act à titre de souverain in respect of the location of the light." (Para. 5.26; emphasis in the original.)
127. The conclusion must be that it is the historical and political circumstances that determine the nature of the intention. The evidence concerning the intention of the British Crown in respect of Pedra Branca is voluminous and definitive. There is a great deal of evidence to show that the British Government selected Pedra Branca, funded the construction and provided every kind of logistical support and protection during the process. Moreover, given the physical circumstances of Pedra Branca and the purpose of the appropriation, to suggest that there was no appropriation of the island as a whole is to defy common sense.
128. In any event, the Malaysian pleadings in the present case have reiterated the argument of the Memorial, and this can be seen in the Counter-Memorial (paras. 228-37) and the Reply (paras. 247-59).
I shall move now to the evidence of visits to Pedra Branca by British officials.
The visits of British officials
129. During the preparation for construction of the lighthouse, and the process of construction, British officials made regular visits to the site.
130. In the period before construction began and together with the period of actual construction, there were at least 19 visits by officials to Pedra Branca. These visits are chronicled in the Singapore Memorial (paras. 5.66-5.68). At least 13 landings involved senior representatives of the British Crown, Governor Butterworth, Councillor Church, and Thomson, the Government Surveyor. On six other occasions, Government vessels landed workmen and building materials, acting under the instructions and supervision of Thomson.
131. In this very specific context I would draw the Court's attention to the contemporary paintings by Thomson (see judges' folder, tab 30).
If the Court will observe the screen, we see images 11 and 12 from the Singapore Memorial. These are paintings which show the supervision by Thomson of the construction activities on the island. Also on screen is image 13 from the Singapore Memorial, which is a painting showing Pedra Branca with the living quarters of the construction workers in the background.
132. In addition there were several significant visits by senior officials after the completion of the lighthouse (MS, paras. 5.81-5.84).
133. In response to this evidence, Malaysia argues that the visits did not constitute evidence of sovereignty (CMM, para. 123). Singapore considers such a view to be disingenuous. The full record available shows that the visits formed an integral part of the process of the construction and the concomitant exercise of the authority of the British Crown. The visits formed part of the implementation of an enterprise authorized and funded by the British Crown.
134. In any event, Malaysia contends that the visits of officials cannot be invoked as evidence of sovereignty (CMM, para. 124). And in this connection the decision of this Court in the Minquiers and Ecrehos case is relied upon. In fact, the passage quoted from the Judgment does not rely upon a principle that the visits of officials cannot qualify as evidence of title. The Court was clearly taking the view that, in the circumstances, these facts were not "sufficient to show that France has a valid title to the Minquiers". It is useful to recall that, in the Minquiers case, both sides had exercised acts of jurisdiction in the group of islets and the Court's decision on title was based upon an assessment of the relative strength of the claims. Similarly, in relation to the Ecrehos the Court stated that it was "now called upon to appraise the relative strength of the opposing claims to sovereignty over the Ecrehos . . ." (Judgment, I.C.J. Reports, 1953, p. 67). The situation in the Minquiers involved contemporaneous and competing acts of jurisdiction by the two claimants in sharp contrast to the facts of the present case.
Logistical support provided by British government vessels
135. During the preparation for the construction and the construction itself, continuous logistical support was provided by Government vessels, namely:
(a) the steamer Hooghly;
(b) the gunboat Charlotte;
(c) the gunboat Nancy: and
(d) two lighters (that is to say, flat-bottomed barges).
136. The Governor of the Straits Settlements sent various letters to the Resident Councillors of Singapore and Malacca ensuring the availability of the gunboats for conveying supplies to Pedra Branca (MS, p. 62, para. 5.70).
Mr. President, that would be a convenient place to stop, thank you.
The VICE-PRESIDENT, Acting President: I would not but if you prefer we can stop here. You may go on because yesterday, part of the time allotted to Singapore was used by me for my introductory remarks and the swearing in of the two ad hoc judges, so if you would like to go on for a few more minutes, please?
Mr. BROWNLIE: Fine, thank you very much.
Protection by gunboats
137. In addition to the question of logistical support, the government also provided protection by gunboats of the operations, and there were two gunboats always in attendance at the works. As Thomson makes clear in the pertinent passage of his report, the prevalence of piracy "in the immediate neighbourhood" made the protection of the gunboats a necessity. The gunboat Charlottewas a vessel of 23 tons, carried two 6-pounder guns, and had a crew of 27 men. The other gunboat, the Nancy, was a vessel of the same size.
138. The provision of a government steamer and gunboats to assist in the movement of building materials and to provide protection against pirates formed a regular feature of the various plans and financial estimates relating to the construction of the lighthouse.
139. In her Counter-Memorial Malaysia asserts that the activities of the gunboats "did not manifest the exercise of the sovereign functions" (CMM, p. 55, para. 108). However, earlier in the same paragraph, Malaysia states more moderately that the activity of gunboats "does not in itself constitute a manifestation of sovereignty" (emphasis added).
140. Whilst Malaysia does not deny the logistical role of the government ships in the course of the construction, she denies that the activities relate to "sovereign functions" (CMM, p. 55, para. 108). This denial involves an artificially conceived view of State functions. Malaysia, in the same paragraph, asserts that the procuring of water and provisions and the carriage of workmen were not sovereign functions. But such activities, along with the provision of protection against pirates, were intrinsically a part of the Crown's operations in relation to the construction of the lighthouse.
141. In the same general setting, it can be recalled that the Dutch recognition of British title in 1850 had the direct result that the Dutch Resident in Riau offered the assistance of two gunboats as long as the lighthouse operations were in progress (see Thomson, Account, pp. 424 and 473). The Dutch letter referring to the construction of a lighthouse "on British territory" was addressed to the Resident in Riau, and related to naval patrols lending assistance to the construction of a lighthouse "at Pedra Branca on British territory" (RS, Ann. 8).
Display of the marine ensign on Pedra Branca
142. The practice since the lighthouse first began to function was for the marine ensign of Great Britain to be flown. The arrangements for the operation of the lighthouse were reviewed by Thomson, the Government Surveyor, in a letter to Church, Resident Councillor at Singapore, dated 20 July 1851 (MS, Ann. 54). In this letter Thomson wrote: "The Lighthouse flag, I presume is different from the national one." The use of the ensign represented contemporary British practice.
143. In addition, during the construction of the Lighthouse, the marine ensign was flown from the structure in the course of building. The evidence consists of the contemporary paintings by Thomson, the Government Surveyor, and we refer to images 13 and 15 in the Memorial and on the slide (judges' folder, tab 30).
144. In the Singapore Reply (p. 74), it is emphasized that Singapore's argument is to the effect that the subsequent flying of the marine ensign was evidence that possession had already been taken, and thus constituted a manifestation of sovereignty already acquired.
Conclusions on evidence of the acquisition of sovereignty in the period 1847 to 1851
145. I must now present my conclusions and in doing so, I shall not reiterate all the various forms of evidence but focus upon a single aspect of evidence of sovereignty and State activities.
146. In summary, Mr. President, the activities of the British Crown constituted a major public works project which included the following elements:
147. There is strong judicial authority for the status of public works as evidence of title to territory. Thus, in the Minquiers case this Court relied upon various public works constructed on the Ecrehos by the British authorities. These constructions were as follows (I.C.J. Reports 1953, p. 66):
(a) a customs house established in 1884;
(b) a slipway in 1895;
(c) a signal post in 1910; and
(d) the placing of a mooring buoy in 1939.
148. Evidence of a similar character was relied upon in relation to title in respect of the Minquiers. In the words of the Judgment:
"It is established that contracts of sale relating to real property in the Minquiers have, as in the case of the Ecrehos, been passed before the competent authorities of Jersey and registered in the public registry of deeds of the Island. Examples of such registration of contracts are given for 1896, 1909 and some later years.
In 1909 Jersey customs authorities established in the Minquiers a custom-house with the arms of Jersey. The islets have been included by Jersey authorities within the scope of their census enumerations, and in 1921 an official enumerator visited the islets for the purpose of taking the census.
These various facts show that Jersey authorities have in several ways exercised ordinary local administration in respect of the Minquiers during a long period of time.
Of other facts throwing light upon the dispute it should be mentioned that Jersey authorities have made periodical official visits to the Minquiers since 1888, and that they have carried out various works and constructions there, such as a slipway in 1907, a mooring buoy in 1913, a number of beacons and buoys in 1931 and later years and a winch in 1933."
And the Judgment continues:
"The evidence thus produced by the United Kingdom Government shows in the opinion of the Court that the Minquiers in the beginning of the seventeenth century were treated as a part of the fief of Noirmont in Jersey, and that British authorities during a considerable part of the nineteenth century and in the twentieth century have exercised State functions in respect of this group." (Judgment, I.C.J. Reports 1953, pp. 69-70).
149. The weight accorded to the emplacement of public works and ancillary features, such as slipways, is significant, obviously, for the present case. Above all, it is clear that the British authorities used Pedra Branca as a whole. The erection of a jetty and of the piers involved a use of Pedra Branca as a unit and for public purposes. The cutting of the rain channels around all the higher rocks in 1851 provides further evidence of the appropriation for public use of the island as a whole.
150. There is other relevant judicial authority on the evidential significance of public works. Thus in Phase One of the Eritrea/Yemen dispute concerning certain Red Sea islands, the Arbitration Tribunal recognized the evidential significance of the building and use of an airstrip on Greater Hanish, an uninhabited island.
The relevant passages in the Award will be seen in the transcript:
"419. Incidental as it may have been to Total's Petroleum Agreement, the building and use of an airstrip on Greater Hanish is in the view of the Tribunal a material effectivité. It demonstrates the exercise by Yemen of jurisdiction over Greater Hanish, a recognition of that jurisdiction by Total, and the conduct of visible indicia of that jurisdiction ⎯ an airstrip in active use ⎯ over a period of time. Eritrea appears to have been unaware of it and in any event made no protest . . ." (International Law Reports (ILR), Vol. 114, p. 109.)
"502. It was later that there was more activity; notably the construction in 1993 by the Total Oil Company of an air landing strip on Hanish, for the recreational visits of their employees, and as a by-product of their concession agreement with Yemen. That agreement did not encompass either Zuqar or Hanish. Nevertheless, the fact that there were regular excursion flights constitutes evidence of governmental authority and the exercise of it. Nor did it apparently attract any kind of protest from Eritrea; though of course by this time the civil war was over and Eritrea was established as an independent State." (Ibid., p. 132.)
"507. Yemen has more to show by way of presence and display of authority. Putting aside the lighthouse in the north of the island, there was the Ardoukoba expedition and campsite which was made under the aegis of the Yemeni Government. There is the air landing site, as well as the production of what appears to be evidence of frequent scheduled flights, no doubt mainly for the off-days of Total employees; and there is the May 1995 licence to a Yemeni company (seemingly with certain German nationals associated in a joint venture scheme) to develop a tourist project (recreational diving is apparently the possible attraction to tourism) on Greater Hanish." (Ibid., pp. 133-134.)
151. These authorities confirm the significance of public works, more especially in the case of uninhabited islands, as evidence of sovereignty.
152. Mr. President, I shall now examine the thesis of Malaysia according to which the British Crown only took possession of a part of the island for the purpose of building a lighthouse and then only gained an item of property and not a title to a parcel of territory. Two points immediately arise. In the first place, international tribunals have had no difficulty in classifying public works as State functions. And, secondly, in making their determinations of law and fact, tribunals have shown no tendency to decide that public works only produce title, so to speak, to the subsoil and the space they actually occupy. No court, and no writer, has taken such a view.
153. In this connection the cutting of rain channels around the higher rocks in May 1851 is typical of the State functions involved. Such improvements were ancillary to the purpose for which possession was taken and, like the lighthouse, the outside platform and the piers, constituted evidence of the intention to appropriate the island as a whole for a use which was both permanent and exclusive. In the circumstances the Malaysian assertion that the cutting of the rain channels had no bearing on the question of sovereignty is without merit (MS, para. 580; CMM, para. 125; RS, paras. 386-87).
154. The construction of public works is not, as such, conclusive evidence of an intention to acquire sovereignty. In the present case, however, the taking of possession was accompanied by a substantial flow of documents manifesting the intention of the British Crown to acquire an exclusive control of Pedra Branca for public purposes. As I have demonstrated, the works involved access to and use of the island as a unit.
Mr. President, Members of the Court, I would like to thank you for your patience and consideration. Thank you very much.
The VICE-PRESIDENT, Acting President: Thank you, Mr. Brownlie. We meet tomorrow morning at 10 o'clock. The sitting is closed.
The Court rose at 1.15 p.m.