Oral pleading on the Straits Lights System by Mr. Rodman R. Bundy, avocat à la Cour d'appel de Paris, member of the New York Bar, Frere Cholmeley/Eversheds, Paris on 8 November 2007
We are ready to stop now or, if you prefer, Mr. Bundy is ready to begin his pleading on the Straits Lights System, on which Malaysia seems to be impatient to have our views.
The VICE-PRESIDENT, Acting President: How long will that take, may I ask?
Mr. PELLET: It can be stopped whenever you like. So it is really in your hands.
The VICE-PRESIDENT, Acting President: I think he could start now. Thank you.
Mr. PELLET: Thank you very much.
Mr. BUNDY: Thank you, Mr. President, Members of the Court.
THE STRAITS LIGHTS SYSTEM
Introduction
1. At this stage of Singapore's first round presentation, my task is to address a further element of Malaysia's case. This is the legal significance of the Straits Lights System that was established over the years for the financing and upkeep of various lighthouses situated in the Straits of Singapore and the Straits of Malacca. My presentation is probably a total of 30 to 35 minutes, but I will find an appropriate stopping place, I hope, close to 1 o'clock, if that meets with the Court's approval.
2. Now, as part of its effort to counter the fact that Singapore has administered and controlled Pedra Branca from 1851 to the present, Malaysia's written pleadings include an extended discussion of the financial arrangements that were put in place for the administration of a number of lighthouses in the relevant area, including the lighthouse on Pedra Branca. Malaysia's purpose for introducing this material is made tolerably clear in its Counter-Memorial where Malaysia states the following: "The establishment and administration of the Straits' Lights was not regarded as determinative of the sovereignty of the underlying territory" (CMM, para. 298).
3. On one level, Malaysia's contention is unexceptional. Singapore does not suggest that the system that was put in place for the funding of lighthouse operations after 1851, after the lighthouse on Pedra Branca had been commissioned, was, in and of itself, determinative of the issue of sovereignty over Pedra Branca. As Singapore has explained, both in its written pleadings and thus far in its first round presentations, Singapore's title derives from the lawful possession of the island by Great Britain during the period from 1847 to 1851, discussed by Mr. Brownlie, and on Singapore's long-standing and continuous exercise of sovereign authority over the island ever since that date in the confirmation and maintenance of that title. And, as we have heard earlier today, Singapore has also discussed the manner in which Malaysia effectively recognized Singapore's sovereignty and carried out no competing activities on the disputed territory of its own, and how there is no evidence for this extravagant claim of an "historic title" to Pedra Branca.
4. But, nonetheless, the manner in which the Parties addressed issues relating to the establishment and upkeep of various lighthouses in the area does shed important additional light on how the Parties viewed questions of sovereignty. As I shall show in this presentation, the Parties acted very differently with respect to islands, such as Pedra Branca, where Singapore's sovereignty had been established, as opposed to islands, such as Pulau Pisang, which I mentioned earlier, where Malaysia held title. That is the real relevance of the Straits Lights System for purposes of this case: the fundamentally different way in which the Parties, particularly Malaysia, acted with respect to islands where there were lighthouses where Singapore had sovereignty, such as Pedra Branca, as opposed to islands that had lighthouses where Malaysia had sovereignty, such as Pulau Pisang.
The legal framework concerning lighthouses in the region
5. My starting point for the review of the Straits Lights System is the legal framework within which the lighthouses in question were established. To assist in this discussion, I have had placed on the screen, and in the judges' folder ⎯ I believe it will be put in the folders tomorrow morning, at tab 38 ⎯ a map depicting the various lighthouses that I shall be addressing. This is the map, you will have it in your folders in the morning.
[Slide: map showing Horsburgh lighthouse on Pedra Branca, the Pulau Pisang light, the Cape Rachado light, the One Fathom Bank light and the location of Pulau Aur]
6. Now, in considering the issue of these lighthouses, the point I would respectfully ask the Court to bear in mind is the following: when the intention of the State actors in the region was to authorize the building and management of a lighthouse by one of the parties on territory belonging to the other, they agreed to such arrangements in an express written document. In contrast, when there was no need to obtain the written permission of a local ruler, either because the lighthouse was located on the high seas or it was located on territory that did not belong to that ruler, then no such agreements and arrangements were concluded. And I will show how this principle operated in practice by addressing each of the lighthouses depicted on the map in the order in which they were established.
7. With respect to Pedra Branca ⎯ the first lighthouse constructed in the area ⎯ despite Malaysia's permission of the Ruler of Johor, Professor Pellet has shown that there was no such permission sought or obtained, or needed. None was needed because Pedra Branca did not belong to Johor and what actually took place, as discussed by Mr. Brownlie, were the official actions of the British Crown in taking lawful possession of the island in the period 1847 to 1851, followed by specific legislation, also issued by British authorities ⎯ the 1852 and 1854 Acts that I discussed earlier this morning ⎯ dealing with Pedra Branca and vesting the lighthouse and its appurtenances in the British Crown, and the unimpeded administration of the island by Singapore afterwards, right up to the present day.
8. Similarly, the second light that the British established in the region and put into operation in 1852 ⎯ this was a floating light at a location called One Fathom Bank ⎯ which had originally been called the 2½ Fathom Bank, but it was moved ⎯ that light, as well ⎯ it was not a lighthouse ⎯ was not accompanied by any permission or indenture granted by a ruler of mainland Malaysia. As I noted in my earlier intervention today, the light was situated on a submerged sandbank lying well beyond the territorial waters of the Malaysian mainland in the high seas and thus was not under the sovereignty of any Malay State, and no permission was consequently required for the British to establish the light.
9. But the situation changed dramatically when it came to the next lighthouse that was built by Great Britain in the area ⎯ the Cape Rachado lighthouse, constructed in 1860 and located on the coast of mainland Malaysia along the Straits of Malacca at a place also known as Tanjung Tuan. You can see that highlighted on the map. In this instance, since the territory where the lighthouse was situated belonged to the local Malay ruler, the Sultan of Selangore, the Governor of the Straits Settlements in Singapore sought and received written permission from the Sultan for a grant of land on which to establish the light. The relevant documents were attached in Annex 62 to the Malaysian Memorial, and tomorrow, when further judges' folders are circulated, they will be found in tab 39 of your folders. Here was a light on the Malaysian mainland, clearly under the sovereignty of the local Malaysian ruler and it was subject to an express written grant.
10. The same procedure was followed when the lighthouse on the island of Pulau Pisang was later constructed. As the Court will see from the map, Pulau Pisang is an island located off the coast of Malaysia in the Straits of Malacca: and the island, as I said earlier today, has always been regarded as belonging to Johor and, subsequently, to Malaysia.
11. In 1885, an agreement was reached between the Ruler of Johor and the Governor of the Straits Settlements in Singapore pursuant to which the former ⎯ the Ruler of Johor ⎯ granted to the Government of the Straits Settlements a plot of land on which to build and maintain a lighthouse and a roadway access to the lighthouse. The lighthouse itself was erected on Pulau Pisang in 1886 and, in accordance with the 1885 Agreement, was managed and maintained by the Government of the Straits Settlements and later by Singapore, which continues to do so up to the present. The 1885 grant by the Ruler of Johor was not reduced to writing at the time, but it was subsequently recorded in an express written indenture signed on 6 October 1900 between the Sultan of Johor and the Governor of the Colony of the Straits Settlements after the Sultan of Johor had sent a reminder to this effect to the Governor of the Straits Settlements (CMS, Ann. 24). What is striking about this event is that the Sultan never referred at the time to the need to execute a similar indenture for the lighthouse on Pedra Branca: only for the light on Pulau Pisang. And that is further striking evidence that Pedra Branca was not regarded by the Sultan as falling under Johor's sovereignty.
12. Tomorrow morning you will be able to find a copy of the 1900 indenture relating to Pulau Pisang in your judges' folders ⎯ it will be at tab 40 ⎯ and it set out in considerable detail the precise limits of the grant and the conditions under which it was accorded (MM, Ann 89). Thus, while Singapore has always managed the lighthouse on Pulau Pisang pursuant to that indenture, this has taken place on the clear understanding that the underlying territory is Malaysian territory. But there is no similar indenture for the lighthouse on Pedra Branca, because it did not appertain to Johor.
Mr. President, I think that would be an appropriate time to stop for lunch. Thank you for according me this time.
The VICE-PRESIDENT, Acting President: Thank you, Mr. Bundy. The sitting is closed for today. We will meet tomorrow at 10 o'clock.
The Court rose at 1.05 p.m.