Since I started on the issue of Pedra Branca, I thought I might as well follow up with the case. Apparently, the photographic evidence obtained by the Malaysia side is no longer brought up and no one seemed to be harbouring on it. The Singapore side seemed to be rather diplomatic when it came to questioning the credibility of the photograph that was apparently obtained from the Internet.

Again, the reason why I brought up the issue in the previous post is not to take sides, but rather, to highlight the possibility dangers of people using “evidences” from blogs and how others should react to it.

However, because there are no formal regulations of blogs in each country, it is highly possible that blogs may just spring up out of the blue just to support a particular case – which I don’t think should be allowed unless given special situations (which I won’t dive into but perhaps Kevin might). Personally, I would like to see how well maintained the blog will be after the court case. I wonder if anyone could trace back to the IP address of the blog owner. =P

THE HAGUE (NETHERLANDS) – SINGAPORE played its trump card in the Pedra Branca case yesterday as it wrapped up its oral pleadings before an international court.

It argued that its claim to the disputed island stands on two legs – lawful acquisition of title between 1847 and 1851 when the British built Horsburgh Lighthouse there, and sovereign acts carried out over 150 years.

Malaysia’s claim, however, stands on only one leg: its claim that the Johor sultanate had original title to the island since time immemorial.

Singapore proposed to the court that if neither side has proven it had title to the disputed island in 1851, then Singapore’s claim must prevail over Malaysia’s because it alone has carried out state activities on the island.

In inviting the International Court of Justice (ICJ) to look at the case in this light, Singapore’s Ambassador-at-large Tommy Koh said it was an approach that was bound to cause Malaysia concern.

‘Malaysia has repeatedly argued that this case is about title and not about competing effectivites. That is not correct,’ he said.

The legal term effectivites refers to a state’s activities that are an exercise of sovereignty over a territory.

Singapore has produced a wealth of evidence of its effectivites on Pedra Branca, and they include control of access to the island and naval patrols in its surrounding waters.

Singapore and Malaysia are appearing before the ICJ to resolve their dispute over the sovereignty of Pedra Branca, an island 40km east of Singapore which stands at the eastern entrance of the Singapore Strait.

As the hearing enters its third and final week, the court has heard Malaysia mount a claim based on the Johor sultanate’s alleged title to Pedra Branca from time immemorial.

But Singapore has pointed out that Malaysia has failed to produce any documents to prove such a title.

Singapore’s claim is that Pedra Branca was terra nullius, that is, belonged to no one, in 1847 when the British took lawful possession of it and built Horsburgh Lighthouse there.

But Malaysia has called into question the depiction of Pedra Branca as terra nullius since the island is located at the centre of what used to be the Johor sultanate.

Professor Koh argued yesterday that the court should not make a decision based on title alone, as Malaysia has repeatedly asked it to.

‘Malaysia has repeatedly argued that this case is about title and not about competing effectivites. That is not correct,’ he said.

‘Should this court find that title to Pedra Branca were indeterminate in 1851, and were to examine the competing effectivites of the two parties, Singapore has clearly shown 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,’ he added.

Essentially, Singapore is saying that its case stands even if the first of the two legs upon which it rests is a little wobbly.

Malaysia’s case, on the other hand, must collapse if the one leg upon which it rests is shaky.

Yesterday, Singapore’s international counsel Rodman Bundy pointed out that the ICJ has ruled on the basis on effectivites in four recent cases when neither side could prove it had title over the disputed territory.

One of those cases was the dispute between Malaysia and Indonesia over the islands of Sipadan and Ligitan, which Malaysia won on the basis of its activities on the islands.

‘In every one of these cases – every one – the conduct of the parties was assessed to determine which one had demonstrated a greater intensity of state activities undertaken on the islands,’ Mr Bundy said.

He also argued that if the court ruled in Malaysia’s favour on Pedra Branca, it would produce an ‘unprecedented result’.

‘It would be the first time sovereignty over disputed territory would be found to lie with a party which never carried out a single sovereign act on the actual territory at any time,’ he said.

In drawing Singapore’s arguments to a close yesterday, Prof Koh laid out the 10 key points of Singapore’s case.

He said they were like the pieces of a puzzle that fit perfectly together to show that Singapore has sovereignty over Pedra Branca.

The picture that emerged, he said, was that of British activities from 1847 to 1851 amounting to the taking of lawful possession of the island which belonged to no one.

That was followed by Singapore’s continuous stream of sovereign activities on the island from 1851 to the present.

On the reverse side of the coin, he said, was the ‘complete absence’ of any Malaysian activities on the island.

‘The whole story fits together. There can therefore be no doubt that Pedra Branca, Middle Rocks and South Ledge belong to Singapore,’ he said.

Malaysia will rebut Singapore’s arguments tomorrow and on Friday, when the hearing ends.

A verdict is expected next year.

The following article highlights the points that the Singapore side has presented to the court.

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.

Both articles obtained from straitstimes.com on 21st November 2007



Reader's Comments

  1. Sungimann | November 21st, 2007 at 2:17 pm

    Great article. Well written and very informative.

  2. TAN | July 31st, 2008 at 12:44 pm

    Is rock consider an island under law of sea? what is the reason pedra branca can general EEZ?

  3. Chan | November 6th, 2008 at 2:41 pm

    Rock can define as island which it can sustain human habitation or economic life of their own then it can general territorial sea, the exclusive economic zone and continental shelf. If the rock which could not sustain human habitation or economic life of their own would have no economic zone or continental shelf. It mean rock cannot define as island. ICJ have define pedra branca as an isand so it can general EEZ and contintal self. ICJ define middle rock as two rocks, so it dont have EEZ and Continental self.

  4. Chan | February 18th, 2009 at 11:27 pm

    pedra branca is a island which ICJ have define it

  5. Hermes Mens Wallet Singapore | August 2nd, 2014 at 4:49 pm

    Summing up the Pedra Branca case… » Simply Jean Hermes Herbag Retail Cost
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