Tuesday, November 13, 2007

Sovereignty over Pulau Batu Puteh:

Opening speech by Malaysia's agent


13 NOVEMBER 2007

1. Mr. President, distinguished Members of the Court, it is a great honour to appear before you, and to take this opportunity to explain why sovereignty over Pulau Batu Puteh, Middle Rocks and South Ledge belongs to Malaysia.

2. Mr. President, please allow me to thank the Agent of Singapore for his kind greetings to my colleagues on the Malaysian team and to me personally on the opening day of these proceedings. These greetings are fully reciprocated. Indeed, both of us have known each other for a long time, as members of the diplomatic service of our respective countries.

3. Mr. President, Malaysia and Singapore are two neighbouring countries in South-east Asia, which have mutually agreed to appear before this honourable Court to settle a dispute over the three features, located at the eastern entrance of the Singapore Straits, off the Malaysian Peninsula, as illustrated on the map that is now being displayed on the screen before the Court. You may also see it in tab No. 1 of your folders.

4. Pulau Batu Puteh and the two other features form part of the State of Johor, now part of Malaysia. The State of Johor has its origins in the ancient Sultanate of Johor. The current Sultan of Johor, Sultan Iskandar Ibni Al-Marhum Sultan Ismail, is a direct descendant of one of the signatories to the Treaty of Friendship and Alliance between Johor and Great Britain of 2 August 1824, also known as the Crawfurd Treaty, in which part of the territory of the Sultanate was ceded to create Singapore. Singapore Island is nestled in the bottom of Peninsular Malaysia. At its closest point Singapore is only 600 meters from the Johor mainland. It is now shown on the screen and can be found in Tab No.2 in the Judges's Folders.

5. Singapore and Malaysia, together with Indonesia, today share the waters and management of the Malacca and Singapore Straits which link the Indian Ocean to the South China Sea. Because of this geography, their genealogy and British colonial history, Singapore and Malaysia share much in common. The graphic now on the screen shows the Malacca and Singapore Straits. This will also be found in Tab No.3 of the Judges? Folders. This is a current navigational chart which is readily available in the public domain.

6. The details of how this dispute arose and the efforts of the parties to settle it will be described to you by the Attorney-General of Malaysia later this morning.

7. But before looking at how, the Court may wonder why: why would two responsible States be in such an acute and extended disagreement about sovereignty over such small maritime features?

8.. Last week, the Court heard many arguments advanced in many ways by Singapore to support its claim of sovereignty over Pulau Batu Puteh, Middle Rocks and South Ledge. But all these cannot hide the fact that Singapore is seeking to subvert the arrangements reached between Johor and Great Britain over 150 years ago and maintained throughout the whole period of British rule. In its written pleadings. Malaysia has provided evidence that Johor had given permission that Great Britain could build and operate a lighthouse on one of Johor?s islands. Pulau Batu Puteh was selected as the site. Great Britain and then Singapore have operated the lighthouse ever since. Singapore is now present on the island, as was Great Britain before it, with Johor?s consent. Therefore it matters a great deal to Malaysia when Singapore claims sovereignty over Pulau Batu Puteh, simply because it has been running a lighthouse on it with our consent.

9. Singapore?s claim also ignores the territorial agreements in the area reached in 1824, namely the Anglo-Dutch Treaty between Britain and the Netherlands of 17 March 1824, and the treaty which created the colony of Singapore, the Crawfurd Treaty of 2 August 1824.

10. Despite their extremely small size, the issue of sovereignty of Pulau Batu Puteh and the other two maritime features is important. Not only does it have implications for the territorial and maritime stability of the Straits but the long-established arrangement is important to the continued cooperative management of navigational aids, marine environmental protection and safety matters in the Straits.

Mr. President, distinguished Members of the Court,

11. Malaysia?s case is clear and finds full support in the evidence.

12. As Malaysia has shown in her written submissions, Pulau Batu Puteh was not terra nullius in 1847. It was not terra nullius in 1851, when the East India Company completed the construction of Horsburgh Lighthouse on the island. Pulau Batu Puteh was part of the ancient Sultanate of Johor, and when the Sultanate divided in two after the Anglo-Dutch Treaty of 1824 it remained part of the Sultanate of Johor rather than that of Riau-Lingga.

13. The Anglo-Dutch Treaty established that the division between the British and Dutch spheres of influence would run to the south of the Straits of Singapore. This placed Pulau Batu Puteh in the British sphere of influence and in that part of Johor which continued to be known as the Sultanate of Johor. The division between the British and Dutch spheres is now illustrated on the screen, as well as in Tab No. 4 in the Judges? Folders. Last week, Singapore sought to present a new interpretation of the dividing line. Tomorrow, Professor Schrijver will explain why the new Singapore interpretation is wrong.

14. In the Crawfurd Treaty of 1824, Johor transferred sovereignty over Singapore Island to the East India Company together with islets and rocks within 10 geographical miles of Singapore. Pulau Batu Puteh is 25.5 nautical miles away from Singapore.

15. In 1851, with the permission of Johor, the Horsburgh Lighthouse was built on Pulau Batu Puteh by the East India Company. The permission was given by the Temenggong and Sultan of Johor on 25 November 1844, for the building and operation of a lighthouse "near Point Romania" or "any spot deemed eligible". As you can see on the graphic that is now displayed on the screen (and in Tab 5 of your folders), Pulau Batu Puteh is near Point Romania.

16. Pulau Batu Puteh was certainly an "eligible spot" because of the difficulties of navigating the waters at the eastern entrance to the Straits. In fact, Pulau Batu Puteh was the location of choice of the merchant subscribers when they began collecting funds for a lighthouse in 1836.

17 It is on the basis of the consent of the Temenggong and Sultan of Johor that Great Britain built and then operated the Horsburgh Lighthouse on Pulau Batu Puteh.

18. Tomorrow, Professor Kohen will analyse the letters of permission written by the Temenggong and the Sultan of Johor on 25 November 1844. Malaysia has not been able to trace the letter of request from Governor Butterworth which was referred to in the letters of permission. In 1994, Malaysia requested Singapore to furnish a copy of the Governor?s letter if Singapore had such a copy in their possession. Singapore did not respond to Malaysia?s request. If this letter exists today it is likely that it is in Singapore?s archives in the file entitled "Letters to Native Rulers". Unfortunately, Malaysia does not have access to these archives.

19. Between 1850 and 1946, the Straits Lights system was developed by Britain to aid navigation through the length of the Malacca and Singapore Straits. The graphic now on the screen and located at Tab No. 6 in the Judges? Folders, shows the lights in the Straits Lights system, including the names of the various lighthouses. This was the list which appeared in the 1912 Ordinance of the Colony of Singapore which abolished light dues.

20. The Straits Lights system, including Horsburgh Lighthouse, was administered by the Straits Settlements. Each lighthouse was operated from one of the three stations in Singapore, Penang or Malacca. From 1912, the Federated Malay States contributed to the running costs of the Straits Lights when they stopped being funded by the collection of lights dues. But the Straits Settlements kept maintaining the lights because they had the necessary expertise.

21. In 1946, when the Straits Settlements was dissolved and the Colony of Singapore and the Malayan Union created, the Straits Lights system ceased to be run as a single system. However, the lighthouses continued to be operated from their original stations in the former Straits Settlements. Pulau Pisang and Horsburgh lighthouses continued to be run from Singapore, and the others, such as Pulau Undan, Cape Rachado, Muka Head and Pulau Rimau, were run from their stations in Malacca and Penang both of which in 1946 formed part of the Malayan Union, and are now part of Malaysia.

22. Today, Horsburgh Lighthouse and Pulau Pisang Lighthouse continue to be run from Singapore, the others from Malaysia. Nothing has changed.

23. The authorities in Singapore simply picked up where the British left off, as did the authorities in Penang and Malacca. The arrangement has worked for over 150 years.

24. The cooperation between the States which later became Malaysia and Singapore was not limited to cooperation in the building of lighthouses and navigational aids.

25. Let me take the example of the Royal Malaysian Navy, previously referred to as the Malayan Naval Force. It had responsibilities for Singapore until 1975 when Singapore established its own navy. The Royal Malaysian Navy continued to operate primarily from the Woodlands base in Singapore until the early 1980s, and only handed over the Woodlands base to Singapore in 1997.

26. Before and after the creation of the Singapore Navy, British and then Malaysian naval forces patrolled the waters of the Straits, including the area of Pulau Batu Puteh.

27. Such cooperative arrangements - and there are many others, for example in the field of communications and water supply - reflect not only our close historical ties but our ongoing rights and obligations as the littoral States of the Malacca and Singapore Straits.

28. Malaysia and Singapore, together with Indonesia, have cooperated for over 30 years in the management of the Straits. On 16 November 1971, all three countries joined forces to adopt a common position on matters relating to the Straits of Malacca and Singapore, and created the Tripartite Technical Experts Group on Safety of Navigation in the Straits of Malacca and Singapore. This forum meets annually to discuss technical issues relating to the safety of navigation in the Straits.

29. Horsburgh Lighthouse and its facilities form part of the multilateral regime for the safety of navigation in the Straits, just as it was a key light in the Straits Lights system in the 1850s until 1946.

30. With traffic in the Straits expected to increase from 94,000 vessels in 2004 to 141,000 in 2020, the safety of navigation, maritime security and protection of the marine environment are key. Ongoing cooperation in the Straits between the three littoral States is crucial.

Mr. President, Members of the Court:

31. Singapore now seeks to disrupt the long established arrangements in the Straits.

32. Singapore wants to radically change the basis on which it acquired the lighthouse on Pulau Batu Puteh, and the character of its presence on the island.

33. Singapore is endeavouring to create for itself a maritime domain which is a far cry from the basis of its presence on Pulau Batu Puteh as lighthouse administrator.

34. Singapore?s presence on Pulau Batu Puteh as lighthouse operator never extended to issues concerning the territorial waters or the continental shelf around Pulau Batu Puteh. In 1969 Malaysia enacted legislation which extended its territorial sea from 3 to 12 nautical miles. Singapore did not protest. Later in 1969 an Agreement was reached between Malaysia and Indonesia in relation to the Continental Shelf. The delimitation line agreed between Malaysia and Indonesia in 1969 is shown in the map now on the screen. The same graphic is provided as Tab No. 8 in the Judge?s Folders.

35. As you can see, the delimitation line approached the vicinity of Pulau Batu Puteh closely and Point 11 is just 6.4 nautical miles from Pulau Batu Puteh. Singapore at no time asserted any interest, raised any objection or reserved its position. Neither did Singapore delimit the area around Pulau Batu Puteh or reserve its position in that area of the Straits in the Territorial Sea Boundary agreement it concluded with Indonesia in 1973.

36. Singapore?s claim not only upsets the existing arrangements in this way, but raises the question of what it wants to do with the island. In its pleadings Singapore has relied on a reclamation proposal around Pulau Batu Puteh. An internal document, a 1978 Tender Evaluation Report, shows a prospective artificial island of 5,000 sq meters towards Middle Rock. This is not fanciful conjecture. Singapore has an extremely active reclamation policy, which was the subject of the Reclamation Case instituted by Malaysia against Singapore in ITLOS in September 2003. The Provisional Measures Order given by that Tribunal in October 2003 will be known to the Court, as well as the subsequent amicable settlement of that case.

37. But Singapore does not need a bigger island for a better lighthouse. What does it need a bigger island for? Quite apart from the possible effects on environment and navigation in the Straits, this could lead to potentially serious changes to the security arrangements in the eastern entrance to the Straits. In fact, the aggressive methods Singapore has used to assert its claim to Pulau Batu Puteh have already led to regrettable - although not irreversible - changes to the stable conditions in the area.

38. In 1986, well after the critical date, Singapore sent its naval vessels to Pulau Batu Puteh, and has since then maintained a permanent, 24-hour guard around Pulau Batu Puteh. This has created tension and danger. Johor fishermen have been chased away by Singapore forces from their traditional fishing waters and sheltering spots around Pulau Batu Puteh. Malaysian officials and naval vessels cannot go anywhere near Pulau Batu Puteh without being physically challenged by Singapore naval vessels. In response to Singapore?s actions, Malaysia has chosen to adopt a policy of non-confrontation and to act in a peaceful manner while this dispute is in the process of being settled. We have now learned through its pleadings that Singapore placed military communications equipment on Pulau Batu Puteh in May 1977, which we were not previously aware of and which causes us grave concern. This conduct does not fall within the consent given for the construction and operation of the lighthouse.

39. Great Britain and Singapore?s conduct in respect of Pulau Batu Puteh before the critical date, at least that which was known to Malaysia, was entirely consistent with being the operator of the lighthouses on Pulau Batu Puteh and Pulau Pisang with the consent of the sovereign, Johor.

40. Malaysia, by contrast, has always respected the long-standing arrangements for Singapore?s operation of the lighthouses on Pulau Batu Puteh and Pulau Pisang. We have not interfered with Singapore?s operation of the lighthouses.

41. But Malaysia does not wish the stability of its relationship with Indonesia altered. Yet this would inevitably follow if Singapore were to be treated as sovereign over Pulau Batu Puteh with attendant implications for established maritime delimitation in the area.

42. Malaysia respectfully requests the Court to bear in mind these important considerations and, accordingly, to reaffirm Malaysia?s title to Pulau Batu Puteh, Middle Rocks and South Ledge.

43. Mr President and distinguished members of the Court, before ending my submission, I would like to clarify one point. Our problem is with Singapore as a military presence on one of Johor?s islands in the eastern entrance of the Singapore Straits. We have no problem with Singapore as the operator of Horsburgh Lighthouse. Malaysia wishes to maintain the peaceful and stable conditions at the entrance to the South China Sea. It is Singapore which is seeking to change the situation. The Sultan and Temenggong of Johor, in 1844, gladly consented to the establishment of the lighthouse on Pulau Batu Puteh, and Malaysia has never suggested that its continued operation by Singapore presented any problem. I repeat, Malaysia has always respected the position of Singapore as the operator of Horsburgh Lighthouse and I would like to place formally on record that Malaysia will continue to do so. Malaysia?s concern is quite different, as I have indicated.

44. Mr. President, I wish to conclude here. After this, my colleague the Co-Agent will describe to you the Sultanate of Johor?s geographical make-up, the political events which shaped its territory, and Pulau Batu Puteh?s social and economic place in Johor and Malaysia.

45. Mr. President, distinguished Members of the Court, I thank you and would ask you now to call on the Co-Agent of Malaysia, Her Excellency Noor Farida Ariffin - The New Straits Time

Malaysia's turn to present case on islands today

THE HAGUE: The International Court of Justice (ICJ) will hear Malaysia's oral arguments on the dispute over the sovereignty of Pulau Batu Puteh, the Middle Rocks and South Ledge, today.

On Friday, Singapore completed the first round of its four-day oral arguments. Malaysia has also been given four days for the first round of its oral presentation.

Malaysia's head of delegation Tan Sri Abdul Kadir Mohamad, who is Malaysia's agent for the case, will present the opening statement before the court. Abdul Kadir is Ambassador at Large and also the Prime Minister's Adviser on Foreign Affairs.

Co-agent Datuk Noor Farida Ariffin, the Malaysian ambassador to the Netherlands and Attorney-General Tan Sri Abdul Gani Patail will also make oral submissions.

The court is scheduled to sit at 10am (5pm Malaysian time).

Malaysia is requesting the ICJ to adjudge and declare that the sovereignty of Pulau Batu Puteh and the two marine features belong to Malaysia.

In its memorial submitted to the court, among other things Malaysia said that Pulau Batu Puteh, Middle Rocks and South Ledge, and other islands in and around the Singapore strait were part of the Sultanate of Johor before 1824.

This was unaffected by the Anglo-Dutch Treaty of 1824, which concerned only islands and territories to the south of the strait, it said in the memorial.

Malaysia said in its written submission that its sovereignty over Pulau Batu Puteh, Middle Rocks and South Ledge are also based on the fact that neither Britain nor Singapore ever claimed sovereignty over the three features at any time prior to the critical dates in relation to the present dispute (1980 in the case of Pulau Batu Puteh and 1993 in the case of the other two features).

On the other hand, it said Singapore's legislation and treaty practice, its publications and maps as well as statements by knowledgeable Singapore officials all confirmed that the three features were not territories of Singapore, and were not administered as part of the territory of Singapore.

Singapore, in its memorial, claimed that the title to Pedra Branca (Singapore's name for Pulau Batu Puteh) already vested in the British Crown and subsequently in Singapore as the result of official actions that took place on the island in the period 1847-1851.

It contended that during this period, the British Crown acquired the title to Pulau Batu Puteh when it took lawful possession of the island and completed the erection of the Horsburgh Lighthouse - Bernama