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 ©The
Straits Times, Singapore (Used by permission)
by Lydia Lim, Senior Political Correspondent
• Now you see it, now you don't
• DPM Jaya rebuts KL's allegations
• General descriptions of sultanate 'not enough to prove claim'
• What the case is about
• S'pore rebuts M'sia's 'prejudicial' remarks
Jayakumar says KL altered status quo with its 1979 map,
not S'pore
IN THE HAGUE - SINGAPORE launched its final arguments
in the Pedra Branca case with a robust rebuttal against what it called
Malaysia's 'baseless' allegations against its conduct.
In its oral pleadings last week, Malaysia had sought to depict Singapore as
dishonest, aggressive and out to 'subvert' the stable maritime arrangements in
the Singapore Strait.
Yesterday, Deputy Prime Minister S. Jayakumar said these insinuations were
baseless and unnecessary.
He said that in Singapore's first round of oral pleadings, it had focused its
presentations on legal and factual issues.
It had carefully avoided mentioning extraneous matters that might affect the
integrity of the court proceedings, he told the International Court of Justice (ICJ).
'In view of the good relations between the two countries, we had expected
Malaysia to do the same,' he said.
'We are therefore surprised and disappointed that Malaysia has, in her oral
pleadings, made a series of allegations and insinuations against Singapore.
'These are of a nature which, unless rebutted, would impeach or diminish
Singapore's integrity or could impress on the minds of the members of the court
that there could be dire consequences for relations in the region if the dispute
were decided in favour of Singapore.'
Singapore and Malaysia are appearing before the ICJ to resolve their dispute
over the sovereignty of Pedra Branca, an island 40km east of Singapore and which
stands at the eastern entrance of the Singapore Strait.
Both sides have presented their first round of oral arguments in the last two
weeks. The hearing is now in its third and final week, with each side given two
days to rebut the other's arguments.
DPM Jayakumar said that contrary to Malaysia's claims, Singapore was an honest,
law-abiding state that has never and will never do anything to endanger
navigational safety, security arrangements or the Singapore Strait's
environment.
He also said it was Kuala Lumpur, not Singapore, which sought to alter the
status quo by publishing a map in 1979 that altered the maritime boundaries with
seven of Malaysia's neighbours.
That map sparked the dispute over Pedra Branca.
The DPM read from a telegram which KL had sent to its overseas missions in
December 1979, informing them that the 1979 map would 'affect' Thailand,
Vietnam, Singapore, Indonesia, Brunei, the Philippines and China.
He also took pains to debunk Malaysia's insinuation that Singapore had hidden
two letters from the ICJ, a charge he described as 'the most disturbing' of the
lot. He said Singapore did not have the letters and had searched various
archives to no avail.
Five other speakers delivered presentations on Singapore's behalf yesterday.
They included Chief Justice Chan Sek Keong, who focused on KL's claim that the
Johor sultanate possessed a title to Pedra Branca from time immemorial.
Drawing from historians' accounts, he painted a picture of the Johor sultanate
as an unstable kingdom whose geographical boundaries were unclear and based more
on people's allegiance than territory.
To establish Johor's sovereignty over an uninhabited island like Pedra Branca,
Malaysia thus had to produce documentary proof of its title, CJ Chan argued.
This it had failed to do, he added.
Besides asking the ICJ to decide Pedra Branca's fate, Singapore and Malaysia
have also asked it to rule on who has sovereignty over two smaller maritime
features near it: Middle Rocks and South Ledge.
Yesterday, Malaysia's stand that the two should be regarded as separate and
distinct from Pedra Branca was criticised by Singapore's Attorney-General Chao
Hick Tin.
Singapore's stand is that whoever has sovereignty over Pedra Branca also owns
the two smaller features.
Mr Chao asked why Malaysia was 'so anxious' to separate their fate from that of
Pedra Branca. Was Malaysia hoping to salvage something for the future
delimitation of its seas, in the event the court ruled Pedra Branca belonged to
Singapore, he asked.
Or was Malaysia hoping the court would split the goods between the two
countries? If it was the latter, Mr Chao said: 'The law and the facts simply do
not support such a ruling.'
DPM Jaya rebuts KL's allegations
Deputy Prime Minister S. Jayakumar expressed surprise and
disappointment at the allegations and insinuations made against Singapore by
Malaysia last week. He has to rebut them, he said yesterday. Otherwise, they
will leave an impression of dire consequences for the region if the ICJ decided
in Singapore's favour, he added. Below is an account of his arguments.
Concealment of letters
MALAYSIA insinuated that Singapore might have hidden two 1844 letters from
Governor Butterworth to the rulers of Johor, in which he sought permission to
build a lighthouse near Point Romania on the Johor coast.
Both countries are disputing whether the scope of the permission sought included
Pedra Branca.
This is an important point as Malaysia claims that Pedra Branca was part of the
Johor sultanate at the time and the Johor rulers gave the British permission to
build a lighthouse there.
Singapore disputes that. It argues that Pedra Branca belonged to no one when the
British took lawful possession of it in 1847 and built Horsburgh Lighthouse
there.
Both Tan Sri Abdul Kadir Mohamad, Foreign Affairs Adviser to the Malaysian Prime
Minister, and Malaysia's counsel, Sir Elihu Lauterpacht, spoke about the missing
letters.
Sir Elihu told the International Court of Justice (ICJ) at The Hague that the
letter must originally have been in the Singapore archives and that he would
have to 'leave entirely aside any suggestion...that Singapore has deliberately
concealed'.
Yesterday, DPM Jayakumar told the court that remark was the 'most disturbing' of
Malaysia's insinuations.
Singapore did not have copies of Butterworth's letters, he said, and had
searched for them in various archives to no avail.
The reality was that its archives were incomplete, as noted in Mary Turnbull's
authoritative history of the Straits Settlements, he added.
DPM Jayakumar also pointed out the difficulty Singapore would face in hiding
such documents, even if it wished to, as microfilm copies of its archival
records were available in other institutions, including Australia's Monash
University, which bought them in 1961.
Finally, he noted that Governor Butterworth sent the letters to Johor's Sultan
and Temenggong.
'Why should Malaysia say that 'these must originally have been in the Singapore
archive'? Would it not be more logical for the original of the letters to be in
Johor, not Singapore?
'However, Malaysia has stated that she also does not have the letters. Singapore
has accepted that in good faith,' he said.
Subverting the legal order
MALAYSIA also claimed that Singapore 'seeks to disrupt' long-established
arrangements in the Singapore Strait and 'subvert' arrangements reached between
Johor and Great Britain more than 150 years ago.
But it is Malaysia, DPM Jayakumar said, that is trying to alter the status quo
by claiming Pedra Branca after 130 years of inaction.
In 1979, Malaysia published a map which showed for the first time that Pedra
Branca lay within its territorial waters.
DPM Jayakumar said it was evident from a telegram Malaysia had sent to all her
overseas missions on Dec 20, 1979 that Kuala Lumpur knew the map would alter the
status quo.
That telegram said the 1979 map would 'affect' Thailand, Vietnam, Singapore,
Indonesia, Brunei, the Philippines and China.
'As Malaysia had anticipated, her map indeed attracted protests from all seven
countries,' DPM Jayakumar said.
'Who then, may I ask, was seeking to upset the existing legal order?'
Malaysia also told the court that if it found in Singapore's favour, the
stability of Malaysia's relationship with Indonesia would be affected.
DPM Jayakumar said that was another attempt to influence the court with
'extraneous considerations which have no foundation'.
Sinister motives
MALAYSIA also alleged sinister intentions on Singapore's part.
It speculated that Singapore might reclaim the sea around Pedra Branca to create
a 'maritime domain', with potential adverse impact on the environment,
navigation and security.
DPM Jayakumar said that was 'scaremongering' as Singapore was a law-abiding
country.
Its economic well-being and very survival depended on its status as a major port
of call, which, in turn, was dependent on the smooth flow of shipping traffic
through the Singapore Strait.
'We have never taken, and will never undertake, any action which would endanger
the marine environment, the safety of navigation and the security situation in
the Singapore Strait,' he said.
Used navy aggressively
MALAYSIA also complained of Singapore's 'military presence' on Pedra Branca. It
alleged that Singapore sent its naval vessels to the island in 1986, after the
dispute arose, raising tensions in the area and chasing away Malaysian
fishermen.
But Singapore's navy had been patrolling Pedra Branca's waters since the British
navy withdrew in 1975, four years before the dispute arose in 1979, he said.
The Singapore navy's presence in the area had also been peaceful and
non-confrontational and none of its officers had arrested any Malaysian fishing
vessels.
By comparison, Malaysia had aggressively arrested Singapore's fishing vessels in
the area and raised tensions, he added.
Offer to let Singapore continue running lighthouse
MALAYSIA also told the court that it had always respected Singapore's position
as the operator of Horsburgh Lighthouse on Pedra Branca and would continue to do
so.
DPM Jayakumar said there was no need and no basis for Malaysia to do so.
'Singapore's rights in relation to Pedra Branca are the rights of a country
having sovereignty over the island, not that of a lighthouse operator,' he said.
And Malaysia had recognised Singapore's sovereign status over Pedra Branca until
December 1979, he added.
'The questions for the court, as agreed by both countries...concern sovereignty.
This case is not about the right to operate the Horsburgh Lighthouse,' he said.
In closing, DPM Jayakumar said Singapore had no choice but to rebut Malaysia's
baseless allegations and insinuations.
'Every state which appears before this honourable court in a dispute would of
course do all it can to persuade this court to decide in its favour. That is
perfectly legitimate.
'However, we should seek to win by stating objective facts and submitting
persuasive legal arguments, and not by resorting to unfounded political
statements and making insinuations damaging to the integrity of the opposite
party,' he said.
He reiterated that Singapore and Malaysia agreed to submit their dispute to the
ICJ instead of allowing it to adversely affect their overall good relations.
'I have no doubt that both countries are committed to maintaining our friendly
and peaceful relations,' he said.
General descriptions of sultanate 'not enough to prove
claim'
by Lydia Lim
SINGAPORE yesterday laid out the reasons why Malaysia's
reliance on general descriptions of the Johor sultanate is just not good enough
to prove its title to Pedra Branca.
Chief Justice Chan Sek Keong said three characteristics of the old Johor
sultanate constituted a 'huge obstacle to Malaysia's claim which she has not
surmounted'.
The first was that the Johor sultanate was, throughout its existence, unstable.
The second was that the sultanate's territorial limits were indeterminate.
The third was that the traditional Malay concept of sovereignty was based more
on the allegiance of people than on clearly-defined territorial limits.
It was thus difficult to establish such a kingdom's sovereignty over an
uninhabited island such as Pedra Branca.
Malaysia claims the Johor sultanate had title to the disputed island from as far
back as the 16th century.
Last week, it sought to back its claim by quoting historical descriptions of the
Johor sultanate as a maritime empire that stretched all the way to the Natunas
islands in the South China Sea, and covered all the islands in the Singapore
Strait.
Singapore, however, argues that Pedra Branca was terra nullius, that is,
belonged to no one when the British took lawful possession of it in 1847 and
built Horsburgh Lighthouse there.
In rebutting Malaysia's points based on history, Mr Chan quoted from the
writings of renowned historians of South-east Asia, such as L. Andaya and Carl
Trocki, whose writings Malaysia had also relied on.
He told the court: 'In the context of a Malay sultanate which was people-centric
and not territory-centric, general descriptions of the geographical extent of
the sultanate's domains have no probative value at all as attributions of
sovereignty.'
Yet, Malaysia had sought to rely on such general descriptions to debunk
Singapore's stand that Pedra Branca was, in the 1840s, terra nullius.
Yesterday, Mr Chan and counsel for Singapore Alain Pellet also highlighted
Malaysia's complete lack of documentary proof that Johor ever possessed title to
Pedra Branca.
They noted that none of the historical documents cited by Malaysia to back its
claim even mentioned Pedra Branca by name.
The only one that did was a newspaper article that Professor Pellet had earlier
argued was unreliable.
Yesterday, he highlighted a previous International Court of Justice ruling in
which the court had said that documents which did not mention an island by name
were not relevant in deciding which state had sovereignty over it.
That ruling was issued in the case between Malaysia and Indonesia over the
islands of Sipadan and Ligitan.
Mr Chan also reminded the court of a 1953 letter in which Johor's top civil
servant of the time informed the British authorities in Singapore that Johor
'does not claim ownership of Pedra Branca'.
That disclaimer, he said, was entirely consistent with the lack of evidence that
Johor ever possessed title to the disputed island.
It was also consistent with Malaysia's silence in the face of Britain and
Singapore's display of state authority over Pedra Branca since 1847.
'Johor disclaimed title because it had no title. What more can be said?' he
asked.
What the case is about
SINGAPORE and Malaysia have a dispute over who owns Pedra
Branca and two outcrops - the Middle Rocks and South Ledge.
Pedra Branca, which the Malaysians call Pulau Batu Puteh, is an island the size
of a football field located some 40km east of Singapore.
Singapore has exercised sovereignty over it since 1847 when the British colonial
government built the Horsburgh Lighthouse there. But in 1979, Malaysia staked a
claim to the island when it published a new map of its territories and placed
the island in its waters.
In 2003, the two countries signed a Special Agreement referring the dispute to
the International Court of Justice. Legal teams from both sides are appearing
before the court over three weeks until Friday, to argue their case. A judgment
is expected next year.
WHY IT MATTERS
It is about sovereignty. Singapore has all along exercised sovereignty over
Pedra Branca until Malaysia published the map in 1979.
That coincided with a change in international law concerning territorial waters
from a three-mile to a 12-mile regime. Malaysia unilaterally extended its
territorial waters without consulting its neighbours.
This resulted in disputes with not just Singapore, but also Indonesia and the
Philippines.
Pedra Branca commands the eastern access into the Strait of Singapore, through
which some 900 ships pass daily. On the island is a vessel traffic information
services tower that relays shipping traffic information back to the mainland.
WHAT HAPPENED YESTERDAY
Singapore launched its final round of oral pleadings with Deputy Prime Minister
S. Jayakumar rebutting what he termed Malaysia's 'baseless allegations' against
Singapore's conduct.
To the charge that Singapore wished to 'subvert' the status quo in the Singapore
Strait, he said it was Kuala Lumpur that had done so by publishing a map which
altered Malaysia's maritime boundaries with seven of its neighbours.
Attorney-General Chao Hick Tin also exposed Malaysia's use of a photographic
trick to exaggerate Pedra Branca's closeness to Johor's coast.
Singapore wraps up its oral arguments today.
S'pore rebuts M'sia's 'prejudicial' remarks
©Today
Online (Used by permission)
As the International Court of Justice (ICJ) resumed the
hearing over the Pedra Branca (picture) dispute, Deputy Prime Minister and Law
Minister S Jayakumar said that if Singapore did not rebut Malaysia's
"prejudicial" remarks last week, Singapore's integrity would be diminished.
The statements included an insinuation that Singapore may have concealed crucial
letters from the 16 judges of the ICJ.
Malaysia claims the crucial letters show that the British had asked for
permission to build the Horsburgh Lighthouse on the rocky island, and that the
then Johor ruler had given consent.
Professor Jayakumar reiterated Singapore's stand that it does not have a copy of
the letters, as many of its documents were lost in World War II.
He also said Malaysia's speculation that Singapore may reclaim the sea around
Pedra Branca to create a maritime domain and that the Republic wanted to create
a military presence was "an attempt at scare-mongering".
"We have never taken, and will never undertake, any action which would endanger
the marine environment, the safety of navigation and the security situation in
the Singapore Strait," said Prof Jayakumar.
Another rebuttal came from Attorney-General Chao Hick Tin, this time on
Malaysia's arguments about the location of Pedra Branca.
.
He said the outcrop is not located as near to Johor as Malaysia had made it out
to be when it showed the court a photograph of the island last week.
Mr Chao produced another photograph, taken by Singapore a few days ago, and said
Malaysia had given a wrong portrayal. Placing the two photographs side by side,
he said that Malaysia had exaggerated the size of the Johor background by about
seven times. Singapore wraps up its rebuttal today.
Now you see it, now you don't
By Lydia Lim, Senior Political Correspondent
How close is Pedra Branca to Johor? See the pictures, says
S'pore
IN THE HAGUE - AT A glance, the two pictures look
alike. Both have Horsburgh Lighthouse and Pedra Branca in the foreground.
But look again - at the background which shows the Johor mainland, with Point
Romania and a hill named Mount Berbukit. In one picture the hill is highly
visible; in the other, it is hardly visible.
Therein lies the photographic illusion that Malaysia had created to exaggerate
the closeness of Pedra Branca to Johor, Singapore said yesterday at the
International Court of Justice (ICJ) in The Hague.
The first photograph, which Malaysia had shown the court last week, was taken by
a camera using a telephoto lens.
ILLUSION: The Malaysian photograph, taken with a telephoto
lens, magnifies the height of the hill by seven times. -- ST GRAPHIC: MIKE DIZON
The second photograph was taken by Singapore, using a camera
lens that approximates what the human eye sees. As a result, the Malaysian
photograph exaggerated the height of Mount Berbukit by about seven times,
Singapore's Attorney-General Chao Hick Tin said when he presented the two photos
before the court.
This photo was taken with a camera
that approximates what the human eye sees. -- ST GRAPHIC: MIKE DIZON
He described it as 'an attempt to convey a subliminal message
of proximity between Pedra Branca and the coast of Johor'.But it was not an
accurate reflection of what visitors to Pedra Branca would see if they were
looking towardsthe Johor mainland, he said.
Mr Chao was speaking before the ICJ as the hearing over the Pedra Branca dispute
enters the third week. Yesterday was the first day of Singapore's rebuttals
against Malaysia's oral arguments made last week.
Both countries are appearing at the ICJ to resolve their dispute over the
sovereignty of the island 40km east of Singapore and which stands at the eastern
entrance of the Singapore Strait.
Last week, Malaysia had also claimed the photo in question was taken from an
online blog or weblog. The implication was the photo came from an independent
source.
But yesterday, Mr Chao raised questions about the blog.
'This blog site is a most unusual one. It was created only last month. There is
no information on the identity of the blogger and the photograph used by
Malaysia was only put on the website on Nov 2 2007, four days before the start
of these oral proceedings,' he said.
Mr Chao also sought to debunk Malaysia's claim that Pedra Branca was near Point
Romania in Johor. The phrase 'near Point Romania' was used in an 1844 letter
from the Temenggong of Johor to Governor Butterworth in Singapore.
In that letter, the Temenggong gave permission for the British to build a
lighthouse on any island near Point Romania.
Malaysia claimed the phrase included Pedra Branca, and that the letter showed
Britain acknowledged Johor's sovereignty over the island.
Mr Chao said the letter did not refer to Pedra Branca but to Peak Rock which, in
1844, was where the British planned to build a lighthouse.
He pointed out the distance between Pedra Branca and Point Romania was six times
that between the latter and Peak Rock.
In an 1846 letter, Governor Butterworth explained his original preference for
Peak Rock as the site of a lighthouse because Pedra Branca was 'at so great a
distance from the main land'.
Singapore's rebuttals yesterday were launched by Deputy Prime Minister S.
Jayakumar. He highlighted five 'baseless allegations and insinuations' that
Malaysia had lobbed against Singapore and rebutted each in turn.
Among them was Malaysia's charge that Singapore wished to 'subvert'
long-established arrangements in the Singapore Strait.
On the contrary, he said, it was Kuala Lumpur that tried to alter the status quo
through the publication of a map in 1979 that altered its maritime boundaries
with seven of its neighbours.
That was also the map that sparked the current dispute.
Prof Jayakumar said he was disappointed that Malaysia had resorted to such
allegations in its bid to win the case. 'We should seek to win by stating
objective facts and submitting persuasive legal arguments, and not by resorting
to unfounded political statements and making insinuations damaging to the
integrity of the opposite party,' he said.
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