All the pieces in
Singapore's case 'fit perfectly together'
Ambassador-at-large Tommy Koh summed up Singapore's case yesterday
by highlighting the 10 key points of its arguments. He said these
were pieces of a puzzle that fit perfectly together to show
Singapore has sovereignty over Pedra Branca. Here is Ambassador
Koh's summing-up of Singapore's case.
Straits Times, The
(Singapore)
Home, Pg 4
November 21, 2007
FIRST, Singapore has shown that in 1847, Pedra Branca was terra
nullius. Malaysia disputes this and argues that it was not terra
nullius but was part of the Sultanate of Johor.
Malaysia has, however, failed to produce any evidence that this
particular island, Pedra Branca, was subject to the sovereignty of
Johor. Malaysia has failed to prove her only argument, that she has
a historic title to Pedra Branca.
She has failed to show that: (a) Pedra Branca was part of the Johor
Sultanate; and (b) that any original title had been transmitted to
the State of Johor.
Second, Singapore had shown that from 1847 to 1851, Britain was in
possession of Pedra Branca without the consent of any native
ruler.
Malaysia argues that she had given permission to Britain for the
construction of the lighthouse on Pedra Branca.
Again, she has not provided any evidence of such permission. All
that Malaysia relies on are indirect inferences from letters which
do not even mention Pedra Branca.
Third, Singapore has shown that in the period, 1847 to 1851, the
British acquired sovereignty over Pedra Branca by satisfying the
two requisite criteria: animus or intention, and corpus or
activities undertaken ? titre de souverain.
Malaysia has repeated ad nauseam her argument that the British
lacked the animus and the corpus and that all the activities
undertaken by them were merely concerned with the construction of a
lighthouse.
The Malaysian argument is flawed and remains so no matter how many
times it is repeated.
Fourth, from 1847 to 1979, a period of over 130 years, Singapore's
sovereignty over Pedra Branca was open, continuous and notorious.
It was acknowledged by all concerned and challenged by none.
It was only in 1979, when, like a bolt out of the blue, Malaysia
published her infamous map which claimed, for the very first time,
that Pedra Branca belonged to her.
Fifth, in 1953, when Johor was a sovereign State under
international law, the State Secretary of Johor, writing in an
official capacity, informed the Singapore Government that, 'the
Johore Government does not claim ownership of Pedra Branca'.
This disclaimer is binding on Malaysia under international law.
Malaysia is clearly embarrassed by this disclaimer.
Discarding her earlier argument that the disclaimer 'is not a model
of clarity', Malaysia has invented a new argument, which is that
Singapore is seeking to use the letter as the root of her
title.
But this has never been Singapore's case. Singapore's case is that
the disclaimer confirms Singapore's title and is further evidence
that Johor has no prior title.
Sixth, in 1968, three years after Singapore separated from
Malaysia, the Malaysian government demanded that Singapore should
lower its marine ensign from its lighthouse in Pulau Pisang. Since
Pulau Pisang was under Malaysian sovereignty, Singapore promptly
complied with Malaysia's request.
However, Malaysia failed to make the same demand with respect to
the flying of the Singapore marine ensign on Pedra Branca.
Malaysia's conduct is recognition of Singapore's sovereignty over
Pedra Branca.
Seventh, between 1962 and 1975, Malaysia published six maps which
attributed Pedra Branca to Singapore. Singapore never published a
single map, not one, attributing the island to Malaysia.
Eighth, Malaysia has argued that Pedra Branca, Middle Rocks and
South Ledge should not be treated as a group but as three separate
and distinct maritime features. This is an untenable
argument.
The truth is that for reasons of proximity, geology, history and
law, the three features are inseparable and must be treated
together. Pedra Branca and Middle Rocks constitute a group.
South Ledge is a low-tide elevation within the territorial sea of
Pedra Branca and Middle Rocks and its fate must necessarily follow
that of Pedra Branca and Middle Rocks.
Ninth, Malaysia has repeatedly argued that this case is about title
and not about competing effectivites. This is not correct.
Singapore's case is that Pedra Branca was terra nullius in 1847 and
that we had acquired sovereignty over the island between 1847 and
1851 and have maintained it ever since.
However, should the Court find that the title to Pedra Branca were
indeterminate at that time, and were to examine the competing
effectivites of the two parties, Singapore has clearly shown that
it has sovereignty.
I can understand why Malaysia would be concerned if the Court were
to decide to walk down this path. The reason is that Malaysia has
zero effectivites.
Tenth, Malaysia has, in the first round, said that Singapore may
continue to own and operate the Horsburgh Lighthouse should
sovereignty over Pedra Branca be awarded to her. This may sound
magnanimous, but make no mistake, it is really an attempt by
Malaysia to change a legal order which has existed for 160
years.
Mr President and Members of the Court, the evidence in this case
presents a remarkably consistent picture. All of Singapore's
actions are entirely consistent with that of a country that has
sovereignty over Pedra Branca.
In contrast, all of Malaysia's actions (and inactions) are entirely
consistent with that of a country which has no title over Pedra
Branca.
In fact, all the pieces of the puzzle fit neatly together. The
picture that emerges is that Singapore has sovereignty over Pedra
Branca.
The British activities from 1847 to 1851, in taking lawful
possession of the island, are simply the other side of the coin of
the complete absence of Johor's original title or of any sovereign
acts by Johor on the island.
Singapore's continuous stream of sovereign activities on Pedra
Branca and within its territorial waters, from 1851 to the present,
is the reverse side of the coin of the complete absence of any
Malaysian effectivites on the island at all relevant time.
Singapore's actions were open and public and are the counterpart to
Malaysia's silence in the face of these activities over a period of
130 years.
Malaysia's official disclaimer in 1953 and its series of official
maps attributing the island to Singapore are further confirmation
of this picture. The whole story fits perfectly together.
There can therefore be no doubt that Pedra Branca, Middle Rocks and
South Ledge belong to Singapore.
----------------------------
'Singapore's continuous stream of sovereign activities on Pedra
Branca and within its territorial waters, from 1851 to the present,
is the reverse side of the coin of the complete absence of any
Malaysian effectivites on the island at all relevant time.
Singapore's actions were open and public and are the counterpart to
Malaysia's silence in the face of these activities over a period of
130 years.' - AMBASSADOR-AT-LARGE TOMMY KOH
Copyright, 2007, Singapore Press Holdings Limited
