THE RECOGNITION BY MALAYSIA OF SINGAPORE'S SOVEREIGNTY OVER PEDRA BRANCA
1. Mr. President, Members of the Court, the second ⎯ and, I am afraid, not the last ⎯ statement I have the honour to present on behalf of Singapore will lead me to return to the various circumstances in which Malaysia recognized Singapore's sovereignty over Pedra Branca, both through positive actions and through its silence. This will be a general review, but I would make clear at the outset that this morning I shall be referring neither to the maps which also provide evidence of that recognition, as Loretta Malintoppi will show, nor to the Straits Lights System, the legal significance of which will be established by Rodman Bundy, nor to the extremely important declaration by which Johor, in 1953, expressly renounced any claim to Pedra Branca. We shall return to these particular aspects tomorrow morning. But it is important to bear in mind that all this forms a whole ⎯ a pattern which gives a particularly clear picture of what is at issue ⎯ a pattern of consistent actions that support each other and establish beyond any question that neither Malaysia, nor its predecessor Johor, have ever entertained the least doubt concerning Singapore's sovereignty over the island that is today claimed by Malaysia, in flagrant contrast with its past conduct.
2. This being the case, Mr. President, I must confess to being perplexed: throughout our written pleadings, we dwelt at length on this recognition by Malaysia, by action or omission, of Singapore's sovereignty over Pedra Branca1. With the slight exception of a few paragraphs in its Counter-Memorial2, Malaysia has consistently taken care not to refute these arguments, despite their clarity and precision. This "refusal at an obstacle" should no doubt be seen as a further form of recognition by Malaysia, a "procedural" one on this occasion, of Singapore's sovereignty.
3. In the circumstances, it may be sufficient, Members of the Court, to refer you to what Singapore has said on this point in its pleadings. Unfortunately, we thought it impossible to spare you this presentation completely: to pass over in silence the instances of express or tacit recognition of Singaporean sovereignty over Pedra Branca by Malaysia would result in giving an incomplete and truncated picture of the case ⎯ since everything is connected, Mr. President:
Singapore took possession of the island (previously terra nullius) during the period 1847-1851;
since then, it has occupied the island uninterruptedly and carried out numerous and diverse activities there à titre de souverain; these effectivités are in striking contrast to the total lack of any official Malaysian presence, as Loretta Malintoppi has just shown; however, this “ineffectivité” or lack of “effectivité”? is perfectly consistent with both Johor's express disclaimer of any title to Pedra Branca in 1953 and the whole series of express or implicit acts of recognition of Singapore's sovereignty, concerning which Malaysia obstinately refuses to express its views.
I. Implicit recognition
4. Mr. President, Malaysia has several times been guilty of "a failure to react in any way, on an occasion that called for a reaction in order to affirm or preserve title in the face of an obvious rival claim" (Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 31). It has thus acquiesced in Singapore's exercise of the prerogatives deriving from its sovereignty over Pedra Branca. However, according to the terms used by the Chamber of the Court in the Gulf of Maine case, "acquiescence is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent" (Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984, p. 305, para. 130).
5. In fact, as Rodman Bundy has shown, Singapore's activities "à titre de souverain" have been constant and continuous, as has, to an equal degree, the silence kept by Malaysia (and its predecessor) in the face of these activities: neither Johor nor Malaysia protested against them before the dispute arose, or even, as a matter of fact, during the ten years that followed publication of the 1979 map.
6. It was only in 1989 that Malaysia, for the first time, addressed a note to Singapore protesting against an activity of the latter: this was the erection on Pedra Branca of a radar station as part of the vessel traffic information system already established on the island3. Before that, there was nothing other than a passing remark concerning the denial of access to two officials of the Survey Department of West Malaysia who landed on Pedra Branca in order to carry out triangulation observations4. This remark was made during a discussion which took place in 1978 at the request of a counsellor of the Singapore High Commission in Kuala Lumpur5.
7. There was no reaction from Johor, for example, following the adoption of Act No. VI of 1852 of the Government of India6, which provided for the integration of the Horsburgh lighthouse into the British colonial legislative system7, or the adoption in 1852 of Act No. XIII8, which strengthened the powers of the Government of India in this regard9. Mr. Bundy mentioned this earlier. Nor was there any reaction in 1883, when the jetty was reinforced and a small landing stage was constructed10; or in 1902, when the harbour equipment was upgraded11. Again, there was no reaction from Malaysia when, in 1977, Singapore installed heavy military communications equipment on the island. However, this activity, a signal manifestation of State authority, required the intervention, which could not have passed unnoticed, of a military helicopter, not only at the time of the construction itself, but also after the installation of the relay station for purposes of maintenance12. And this silence is made all the more eloquent by the fact that the relay station was set up two years before the publication of the 1979 map and that it persisted in the ensuing years.
8. The same comment is called for with regard to Kuala Lumpur's silence when, in 1978, Singapore published an invitation for tenders to carry out a reclamation project ⎯ or perhaps I should say a polder-creation project, for after all we are in the Netherlands ⎯ in maritime areas around Pedra Branca13: this too was done openly; this too obviously concerns the island itself and the adjacent waters, and not the lighthouse; and it happened shortly before Malaysia's first claim to Pedra Branca ⎯ that is, at a moment when one might have expected it to be particularly careful to assert its alleged rights.
9. The same is true, for example, of Malaysia's silence on the occasion of the adoption of the tripartite statement dated 16 November 1971 on matters relating to the Straits of Malacca and Singapore14, or of resolution 375 (X) of the IMCO Assembly dated 14 November 1977 establishing
a new navigation system in the Straits and, in particular, in the Horsburgh lighthouse area15. Regardless of what Malaysia has written on the matter16, one might reasonably have expected a State anxious to preserve its rights over a maritime area over which it had claims, contradicted by practice, to take advantage of these opportunities to formulate them. Nothing of the sort happened.
10. More generally, it is revealing that, with the single exception of the 1978 incident, which I have just mentioned, following the expulsion of two Malaysian surveyors from Pedra Branca, in no other circumstance did Malaysia, before 1989, protest against any of the very numerous manifestations of sovereignty by Singapore over Pedra Branca and the surrounding waters and islets, which Mr. Bundy has just described. Its silence is total, whether concerning: the many improvements, not only to the Horsburgh lighthouse but also to the island itself17; the regulations (which could not be more public) concerning access to Pedra Branca and the administration of the island18; the Singapore naval patrols in the adjacent waters19; the Notices to Mariners and the many measures taken by Singapore with respect to security in the area20; or the rescues following shipwrecks and other navigational incidents and the ensuing enquiries, or the protection of wrecks21; or the collection of meteorological data22.
11. On all these points, the only thing that Malaysia finds to say is this: "Il ne s'agissait pas d'une conduite à titre de souverain, ce qui, pour reprendre les termes employés par la Cour dans l'affaire du Temple de Préah Vihéar, n'appelait pas de réaction de la Malaisie."23. But it did, Mr. President! If only because these are indeed acts of governments ⎯ acts à titre de souverain ⎯ as my colleague and friend Rodman Bundy has so excellently shown. (Furthermore, I note in passing that when, much more recently, Malaysia tried to "shore up its case", it protested precisely against the same type of acts as those which it disputes were previously carried out "à titre de souverain": for example, against the construction of a radar station24 or concerning activities connected with maritime incidents around Pedra Branca25 and naval patrols conducted by the Singapore Navy around the island26.) All these activities on the part of Singapore were carried out in broad daylight and could not escape Malaysia's attention; they constitute a group of coherent acts that took place over a period of more than 130 years. I can only repeat, it is quite simply unthinkable that a State anxious to preserve its rights should have shown itself so negligent, all the less so as Malaysia has shown ⎯ in other circumstances, but with regard to rights genuinely appertaining to it ⎯ that it was not at all negligent.
12. The contrast between its total, persistent negligence concerning its alleged rights over Pedra Branca and its meticulous affirmation of its (very genuine) rights over Pulau Pisang is indeed striking.
13. In this regard, one clarification needs to be made at the outset: in their written pleadings, the two Parties have compared the régime and practice relating to the two situations; Malaysia has made much of the similarities in this regard27; Singapore has stressed the differences between the two28. In spite of what Malaysia wishes us to believe, the two lines of argument are not symmetrical: first, Singapore's arguments concern not only the lighthouses in question, but also, and above all, the islands on which they are located, whereas Malaysia attempts to focus attention exclusively on the lighthouses; secondly, while it is quite evident that the management and maintenance activities carried out on the two lighthouses are comparable, what is important are the Parties' differences of attitude with regard to the islands on which they are located ⎯ and these differences are extremely significant.
14. First there are the differences, which are glaring, in the way in which the two lighthouses were established ⎯ one (Pisang) was authorized by Johor, the other (Pedra Branca) was not the subject of any such permission, as I showed yesterday. There is also the clear affirmation by Malaysia of its sovereignty over Pulau Pisang, in striking contrast to the express disclaimer by Johor of any title to Pedra Branca, as I shall show tomorrow. But these differences also concern, as Singapore has shown29:
15. In this connection, Mr. Bundy recalled a moment ago that, in 1968, Malaysia called upon Singapore to cease flying its own flag over Pisang; it has never objected to its flying over Pedra Branca ⎯ which has been the case of the British flag since the lighthouse was built, and of the Singaporean flag since its accession to independence. This, Mr. President, is because Pulau Pisang belongs to Malaysia. Pedra Branca, over which Singapore has continuously acted as sovereign with no objection from Malaysia, does not belong to it! Of course, the fact that the lighthouse placed on both the islands was, in both cases, operated by Singapore does not change anything.
16. In vain does Malaysia assert that it was totally unaware of Singapore's activities on Pedra Branca and in its immediate neighbourhood, or that it wished to avoid an improbable violent clash with Singapore. Apart from the fact that these two "defences", presented in passing in the Malaysian Counter-Memorial31, are wholly incompatible with one another, it cannot be accurate that Malaysia was ignorant of all these activities, carried out quite overtly, over a very long period,
and whereas our opponents also rely on intense activity as sovereign in the territorial sea of Pedra Branca and even on the island itself and, in particular, on a constant naval presence in the adjacent waters32. But, as Ms Malintoppi has shown, that is an imaginary presence.
17. One can, I think, Mr. President, unhesitatingly transpose the ample, settled and clear case law of which the Arbitral Tribunal provided a masterly summary in its Award of 19 October 1981 in the Dubai/Sharjah Border case33. There would seem to be no purpose in inflicting the task of reading these again on you, Members of the Court: the passage and the relevant references may be found in our Memorial34 (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 577, para. 364; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 35, para. 66; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 685, para. 148). The inescapable conclusion is that: "it emerges from this analysis that a State must react, although using peaceful means, when it considers that one of its rights is threatened by the action of another State." Malaysia has never reacted to any of the many consistent acts of sovereignty performed by Singapore on the island and in the surrounding waters, and there is no escaping the fact, to paraphrase the Judgment of the Court in 1951 in the case concerning Fisheries (United Kingdom v. Norway), "that in respect of a situation which could only be strengthened with the passage of time, the Government [of Malaysia] refrained from formulating reservations" (Judgment, I.C.J. Reports 1951, p. 139). Moreover, I note that it would be bad grace on Malaysia's part to dispute this conclusion, at least in the domain of law: for Malaysia itself relies on Singapore's silence regarding its alleged acts of sovereignty on the island and surrounding waters35. The difference is that the acts concerned are the product of its counsel's imagination, a fertile imagination to which I am pleased to pay tribute, as Mr. Bundy has shown, whereas the acts Singapore can instance are very real . . .
57 - 50 -
II. Express recognition
18. But this goes further, Mr. President. Not content with not reacting when it should have done to Singapore's manifestations of sovereignty on the island, Malaysia also recognized that sovereignty by quite unambiguous acts or failures to act.
[Slide 1: Sketch-map illustrating the delimitation of the continental shelf under the 1969 Agreement between Indonesia and Malaysia (judges' folder, tab 37)]
19. Among the latter, I would draw your attention, Members of the Court, to the Agreement concluded by Malaysia with Indonesia in 1969 with a view to the delimitation of the continental shelf. It is revealing that the Parties to this instrument agreed on the delimitation of their respective continental shelves, while nevertheless carefully refraining from extending that limit to the approaches to Pedra Branca36, which showed that Indonesia and Malaysia were clearly aware that these waters could not be delimited between them. This failure which, obviously, was calculated and deliberate, is, of course, not without legal significance, as my colleague and friend Loretta Malintoppi has just shown. The illustrative sketch-map at tab 37 is again being shown behind me.
[End of slide 1]
20. The same also applies, a fortiori, to the acts ⎯ positive ones ⎯ by which Malaysia has clearly expressed its conviction that Singapore exercised full sovereignty over the island. This is the case, in particular, of the requests for permission addressed on several occasions by the Malaysian authorities to Singapore to enable them to engage in various activities on Pedra Branca or in the surrounding waters.
21. This is the case, for example, of a 1974 study mission on tides which wished to take readings from Pedra Branca37. As Singapore's Reply showed38, the request for permission from an officer in the Malaysian navy did indeed relate to the island itself and not the lighthouse: a request limited to the lighthouse would not have had much point, since the purpose was
"(a) pour réapprovisionner le camp des marées en nourriture et en eau ;
(b) pour effectuer des réparations urgentes sur le transpondeur ;
(c) pour effectuer une triangulation."39
Nor can there by any doubt either about the fact that it was the territorial sovereign on the island whom the Naval Commander approached and that it was in this capacity that the Singapore Port Authority acted. A detail in the Commander's reply to the request for information made by Singapore leaves us in no doubt about this: "Nous proposons de ne pas exiger de liste des membres du personnel qui débarquent occasionnellement au phare Horsburgh et chaque débarquement sera escorté par votre représentant, le débarquement ne durant normalement que quelques heures." The English is perhaps not perfect but it is indeed acts by a public authority that are involved.
22. On the same lines is the case of the Pedoman, on which the Parties have dwelt at some length40. The Pedoman was a Malaysian government vessel responsible for measuring tides in the Singapore Strait. As it was preparing to enter the territorial waters of Pedra Branca, the High Commission of Malaysia sent a note to the Singapore Ministry of Foreign Affairs stating that: "Le haut Commissariat saurait gré au ministère de l’aider à obtenir
l’autorisation, pour le NV Pedoman, de pénétrer, aux fins susmentionnées, dans les eaux territoriales de Singapour."41 The context shows that there could be no doubt that the territorial waters in question were those of Pedra Branca. Permission was granted42.
[Slide 2: Extract from the sketch-map appended to the letter from the Malaysian High Commission in Singapore of 26 March 1980, annotated (RS, insert 11)]
23. The same scenario occurred after the publication of the 1979 map: it was the case with the 1980 episode relating to plans for a submarine power cable between Sarawak and Peninsular Malaysia43. Malaysia, in its Counter-Memorial
24. Mr. President, these are only examples, albeit very significant ones: until 1989, neither Malaysia nor its predecessor, Johor, expressed the slightest doubt as to Singapore's sovereignty over Pedra Branca. Both remained silent as Singapore exercised its prerogatives of public authority over the island, and Malaysia never failed to request authorization from Singapore to conduct oceanographic or meteorological surveys on Pedra Branca or in the adjacent waters. Those are without a doubt concordant demonstrations of Singapore's sovereignty. And this is reminiscent of the Temple of Preah Vihear case, in which a whole range of omissions, silences and positive acts ⎯ considerably less clear-cut than in the case before us, in my opinion ⎯ were invoked against Siam, from which the Court deduced that it seemed clear that:
"Siam did not in fact believe she had any title - and this would be wholly consistent with her attitude all along, and thereafter, to the Annex I map and line - or else she decided not to assert it, which again means that she accepted the French claim, or accepted the frontier at Preah Vihear as it was drawn on the map" (Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 31; see also pp. 32-33 and, for example, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 685, para. 148).
25. Furthermore, Mr. President, all the conduct by Malaysia which I have described, whether it be "positive" acts, omissions, or silence when it should have made its voice heard, represents only some aspects of a much greater whole; there are others which support such a conclusion in every way:
Members of the Court, I am very grateful for your attention.