Wednesday, November 14, 2007

No evidence from Singapore support claim of sovereignty over Pulau Batu Puteh


Singapore has failed to adduce evidence to support its claim that Britain had established title on Pulau Batu Puteh in the years 1847-1851, the International Court of Justice (ICJ) here heard.

Malaysia’s counsel Sir Elihu Lauterpacht said that although Singapore had repeatedly stated that its conduct after 1851 merely confirmed and maintained a title already acquired, there was no contemporary documentation of any kind which implicitly or explicitly specified that the island was or had become British territory.

“One looks in vain for evidence of any official, formal, direct or even indirect assertion of title,” he told the 16-member bench.

He said that unless by 1851 there really existed British title over Pulau Batu Puteh, there was nothing that could be maintained or confirmed.

“Just as we are taught in school the simple arithmetic that when zero is multiplied by any number whatsoever, the result is always zero. So a title that does not exist cannot be confirmed or maintained by any amount of subsequent state action,” he said.
Singapore, which is claiming sovereignty over Pulau Batu Puteh, Middle Rocks and South Ledge, had argued that it was maintaining and confirming its pre-established title of Pulau Batu Puteh as the British successor and had continuously, exercised State Authority on and in relation to the island.

Sir Elihu refuted this claim, saying that overwhelmingly this was practised with regard to the operation of the lighthouse on Pulau Batu Puteh and had nothing to do with sovereignty over the island.

He emphasised that the operation of lighthouses was not a basis for sovereignty, citing the Minquiers and Ecrehos case, where the ICJ had decided that lighting and buoying since 1861 could not be considered sufficient evidence of an intention to act as sovereign.

They were not seen as acts of such a character that they could be considered as involving a manifestation of state authority.

He also cited another case where an arbitral tribunal held that “the operation and maintenance of lighthouses and navigational aids is normally connected to the preservation of safe navigation, and not normally taken as a test of sovereignty”.
Turning to Middle Rocks and South Ledge, Sir Elihu said that there was also no substance in Singapore’s claim for these two marine features because, just like Pulau Batu Puteh, they have always belonged to Johor.

On Singapore’s contention that it had also carried out non-lighthouse activities, he said that these could either be attributed to the republic’s role as the lighthouse administrator or were otherwise unconnected with sovereignty over Pulau Batu Puteh.
Sir Elihu submitted that when Britain built and operated the Horsburgh lighthouse on the island, it showed no intention at all of acquiring sovereignty over Pulau Batu Puteh.

In light of this, plus the strong British practice in the 19th and 20th centuries of building and administering lighthouses on its key trade routes on the territories of other states, the continued administration today by Singapore of a lighthouse, which formed part of the Straits Lights System, could not be regarded as evidence of its sovereignty over the territory where it is located.

Submitting on Singapore’s claim that Johor never carried out any competing activities on the island on its own, Sir Elihu said this point was “meaningless verbiage.”
He pointed out that Pulau Batu Puteh was a very small place, no more than half the area of a football field, and all that area had been taken up by the lighthouse.

“Where was Johor to engage in competing activities on the island, what competing activities could there have been on the island. Was it to build a competing lighthouse?” he said.

Sir Elihu said that Johor had licensed Britain to construct and operate a lighthouse and after that there was nothing for Johor to do except let Britain get on with the operation of the lighthouse and any related activities.

“There was no scope for any competitive Johor activity,” he stressed.

Describing every stage, phase or element in Singapore’s claim to Pulau Batu Puteh as ill-founded, he said that Britain’s conduct between 1847 and 1851, on which Singapore relied to found the establishment of title during that period, could not be regarded as effective.

“Singapore concedes that it must show an intention of British conduct to have acquired title in that period. But there is no evidence of British conduct that can be interpreted as a manifestation of intention to acquire sovereignty between 1847 and 1851,” he said - Bernama

Islands 'part of Johor Sultanate'

By : V. Anbalagan reporting from The Hague

MALAYSIA yesterday presented to the International Court of Justice that Pulau Batu Puteh, Middle Rocks and South Lodge were part of the Johor Sultanate.

In the fifth day of proceedings in the territorial dispute between the two countries, Malaysia sought to disprove Singapore's claim that the British acquired sovereignty over Pulau Batu Puteh as no man's land.

Malaysia's agent, Tan Sri Abdul Kadir Mohamed, said Singapore advanced in many ways last week its claim of sovereignty over Pulau Batu Puteh and the two maritime features.

"But all these cannot hide the fact that Singapore is seeking to subvert the arrangements reached between Johor and Britain over 150 years ago and maintained throughout the period of British rule," Kadir said in his opening address.

He said Malaysia had provided evidence that Johor had given permission to Britain to build and operate a lighthouse on one of Johor's islands. Pulau Batu Puteh was selected as the site.

He said Britain, and then Singapore, had operated the lighthouse ever since.

"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."

Kadir said Singapore's claim also ignored the territorial agreements reached in 1824, namely the Anglo-Dutch Treaty between Britain and the Netherlands of March 17 and the Crawfurd Treaty of Aug 2.

He said despite their small size, the issue of sovereignty of Pulau Batu Puteh and the other two maritime features were important.

"Not only does it have implications for the territorial and maritime stability of the (Singapore) straits, but the long-established arrangement is important to the continued cooperative management of navigational aids, marine environmental protection and safety matters."

He said Malaysia had shown that Pulau Batu Puteh was not a no man's land (terra nullius) in 1847 and it was not so in 1851, when the British East India Company completed the construction of the Horsburgh Lighthouse on the island.

Pulau Batu Puteh was part of the ancient Johor Sultanate and when the empire was divided into two after the 1824 Anglo-Dutch Treaty, it remained part of the Johor Sultanate, instead of Riau-Lingga.

The Anglo-Dutch Treaty established that the division between the British and Dutch spheres of influence would run to the south of the Singapore straits.

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. Last week, Kadir said Singapore sought to present a new interpretation of the dividing line.

Today, Professor Nicholaas Jan Schrijver, appearing for Malaysia, would explain why the Singapore interpretation was wrong.

Kadir said permission was given by the Temenggong and Sultan of Johor on Nov 25, 1844 for the building and operation of a lighthouse "near Point Romania, or any spot deemed eligible".

Pulau Batu Puteh was near Point Romania and was an "eligible spot" because of the difficulties of navigating the waters at the eastern entrance to the straits.

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

He said the co-operation between Malaysia and Singapore was not limited to the building of lighthouses and navigational aids, but also in patrolling the seas in that locality.

Kadir said Singapore now wanted to radically change the basis on which it acquired the lighthouse on Pulau Batu Puteh.

"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."

Kadir said in 1969, Malaysia enacted a legislation which extended its territorial sea from three to 12 nautical miles and the island republic had not protested.

"Singapore at no time asserted any interest or raised any objection. Neither did Singapore delimit the area around Pulau Batu Puteh when it concluded the Territorial Sea Boundary Agreement with Indonesia in 1973."

He said Singapore's claim not only upset the existing arrangements but included a land reclamation proposal around Pulau Batu Puteh.

"This is not a fanciful conjecture. Singapore has an extremely active reclamation policy which was the subject of the Reclamation Case instituted by Malaysia against Singapore in September 2003," said Kadir.

"In fact, the aggressive methods (Singapore) 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." - The New Straits Time

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