ALL HISTORY IS CONTEMPORARY HISTORY

Having placed so much weight on the 1953 correspondence to suggest that by that date "Johor understood that it did not have sovereignty over Pedra Branca/Pulau Batu Puteh" (Para. 230) the Court had effectively backed itself into a corner. Despite all the evidence to the contrary it had already read the period of the long century (1850-1952) as demonstrating that Johor had taken "no action at all" in asserting its territorial rights over the island. Taken together with the 1953 exchange which - as we have already seen - was only a partial reading of the records, the Court felt bound to look for examples in the conduct of the parties after 1953 that would "rationalise" its interim decision. This was a predictable case of reading the past through contemporary lenses.

Both Singapore and Malaysia placed before the Court various examples of their respective conduct whose purpose was to persuade the Court that each was exercising their sovereign authority over Pedra Branca/Pulau Batu Puteh. These are described in a long section in the final Judgment covering some 42 paragraphs. They include the following:

1. Investigation by Singapore of shipwrecks in the vicinity of Pedra Branca/Pulau Batu Puteh
2. Visits to Pedra Branca/Pulau Batu Puteh
3. Naval patrols and exercises around Pedra Branca/Pulau Batu Puteh
4. The display of ensigns on Pedra Branca/Pulau Batu Puteh
5. The installation by Singapore of military communication equipment by Singapore in 1977
6. Proposed reclamation by Singapore to extend the island
7. Malaysian Petroleum Agreement 1968
8. The delimitation of Malaysia's territorial sea 1969
9. Indonesia-Malaysia Continental Shelf Agreement 1969 and Territorial Sea Agreement 1970
10. Indonesia-Singapore Territorial Sea Agreement 1973
11. Inter-state cooperation in the Straits of Singapore
12. Official publications
13. Official maps

In their blow-by-blow account of the Court proceedings, Jayakumar and Koh offer an entirely self-serving piece of public relations instead of a judicious appraisal of what actually took place. They write of their international counsel's efforts:

Bundy did a brilliant job in presenting the wide range of sovereign acts undertaken by Singapore .... The effectivites include issuing notices to mariners, flying the Singapore marine ensign, enacting legislation, maintaining and constructing lighthouse-related and non-lighthouse-related facilities, controlling visits and access to the island, collecting meteorological data, conducting naval patrols and investigating shipwrecks. This continuous exercise of state authority, completely unopposed by Malaysia, confirmed and maintained Singapore's title over Pedra Branca (p. 107).

The Court's response was rather less effusive. It plainly stated that "The conduct of the United Kingdom and Singapore was, in many respects, conduct as operator of Horsburgh lighthouse" (Para. 274). This is what Malaysia had contended all along. In fact, the Court only identified three sets of conduct by Singapore that could be construed as acts à titre de souverain: their investigation of marine accidents; their control over visits; and, their installation of naval communication equipment. And even here the Court acknowledged that the "bulk" of these acts took place after 1953 - actually they mostly only took place from the 1970s onwards.

But even the three examples of conduct that the Court accepted are, in reality, highly contentious. Each can be considered in turn.

In relation to visits to the island, the Court accepted that many of them were merely related to the operation and maintenance of the lighthouse. But the Court ruled that it was Singapore that granted permission or withheld permission for visits to Pedra Branca/Pulau Batu Puteh by Malaysian officials, especially in relation to a survey of the waters around the island in 1974 and 1978. In my view, it is difficult to concede this granting of permission to conduct survey visits as being acts à titre de souverain.

In the long history of the Straits light system (which existed until 1946) it was quite normal for lighthouse operators to make such grants of permission or withhold permission based on particular circumstances - to enter buildings or undertake surveys. The records of the light system are located in the Singapore records for the Straits Settlements. These records were never requested nor submitted for the Court's consideration for the simple reason that no one anticipated the issue of visits would be interpreted as having to do with sovereignty.

Even more telling is the fact that there were earlier examples of survey visits by Malaysian officials to Pedra Branca/Pulau Batu Puteh to which Singapore made no objection – even though it supposedly “maintained” title over the island. For example, in October 1959 A. Velu Pillai, from the Survey Department Federation of Malaya, Topographical Branch, travelled to Pedra Branca/Pulau Batu Puteh to undertake observations and triangulation work, the results of which would be incorporated into Map Series L7010 for which there were agreements between the United Kingdom, the Federation of Malaya and the State of Singapore.

Velu Pillai's angle-book was included in the Malaysian written pleadings but no reference was made to it in the Court’s final Judgment. Instead it chose to give credence to the issue of permission for a single survey visit to the island in 1974. As judge Dugard notes, this is a very clear case of the Court “being very kind to Singapore” and “less kind” to Malaysia in the choice of facts and the weight given to them.

Turning now to the second issue regarded by the Court as acts à titre de souverain, namely that Singapore had investigated and reported on maritime hazards and shipwrecks within the vicinity of Pedra Branca/Pulau Batu Puteh. Only three examples are cited: a collision between British and Dutch vessels two miles off the island in 1920; the grounding of a British vessel on a nearby reef in 1963; and, the running aground of a Panamanian vessel off the island in 1979. The Court concluded that Singapore’s investigation of the last case “in particular assists Singapore’s contention that it was acting à titre de souverain”. It further stated that the 1920 and 1963 cases supported this claim “to some extent” (Para. 233). In other words, only one case of an investigation into a shipwreck – 1979 – gives reasonably strong support to Singapore’s claim to possessing sovereign authority. It should be noted that this was only two months before the dispute over Pedra Branca/Pulau Batu Puteh would be crystallised and the famous Malaysian map showing the island as part of Malaysian territory was already in preparation.

There are a number of ways of answering Singapore’s contention that the investigations into shipwrecks demonstrated its sovereign authority. First, the Court considered only three cases over a 50-year period. But there were a number of other examples of shipwrecks that were investigated by Marine Court of Inquiry in Singapore. The list is not exhaustive but they include: the grounding of the SS Kajang in 1920 off the coast of the Philippines; the stranding of the Selamat Maju off the coast of Pahang in 1963; the grounding of the MV Isabel Erica on Pulau Nipa across the Straits of Singapore in Indonesian waters in 1964; the collision of a Liberian and British vessel in Johor waters in 1966. The evidence for each case derives from the Straits Settlements Government Gazettes, Annual Report Marine Department for the State of Singapore, from the Straits Times. None of these cases was presented before the Court. The reason, once again, was simple. Though the cases were investigated and reported by the Singapore authorities in not one single instance were issues of sovereignty or disputed territorial waters invoked. This raises the question as to why the Court considered the three cases cited earlier (1920, 1963 and 1979) as bearing on issues of sovereignty while many other cases investigated under the auspices of the Marine Court of Inquiry in Singapore clearly had nothing to do with sovereignty. It is therefore less credible for the Court to maintain that Singapore’s investigation of shipwreck “gives significant support to the Singapore case” (Para. 234).

The third example of Singapore’s claim to sovereignty relates to events in 1976 and 1977 when Singapore made preparations for and installed a relay station on Pedra Branca/Pulau Batu Puteh for the exclusive use of the Singapore Navy. Singapore claimed that this action was “obviously an exercise of their authority disconnected from the operation of the lighthouse” (Para. 247). Malaysia’s objection was precisely on these grounds – that Singapore’s “conduct does not fall within the consent given for the construction and operation of the lighthouse” (Para. 247). This was a weak way of attacking Singapore’s claim because Malaysia was, in any case, not in a position to produce any document providing for this “consent”.

There are other ways of dealing with this issue. First, a better way of countering Singapore’s actions would have been to emphasise their secretive nature – leading to a situation that Malaysia was not in a position to make any appropriate protest since it had no explicit knowledge of the installation. Malaysia did argue this and, as a result, the Court accepted that it could not assess the degree of knowledge each side had about the installation. Second, the Court made reference to correspondence between the Singapore Navy and the Port of Singapore Authority and accepted it at face value. At no point did the Court subject this correspondence to interrogation. If it had done so, the only conclusion it could reach is that this was internal correspondence unknown to any other party – and therefore Singapore’s action were merely a unilateral act of “sovereignty”.

Third, the Court’s sympathetic treatment of Singapore’s actions – which magnified its presence on Pedra Branca/Pulau Batu Puteh – can be contrasted with its treatment of similar evidence presented by Malaysia. In 1968, Commodore K. Thanabalasingam, Chief of Naval Staff, Royal Malaysian Navy wrote a Letter of Promulgation (16 July) and drew attached charlets to detail the outer limits of Malaysian territorial waters, Singapore territorial waters and Indonesian claimed waters in West Malaysia. Both the letter and chartlets were submitted to the Naval Staff Division, Ministry of Defence, Malaysia.

In the Court’s final Judgment this piece of evidence was considered as “an internal confidential document” (Para. 242). As a result, the Court concluded that the “Malaysian chart … [was an act] of one party, which [was] unknown to the other party, the documents were classified and they were not made public until these proceedings were brought. The Court considers that … neither can be given weight” (Para. 243).

But there is more to this than meets the eye. At the time that Thanabalasingam was producing his letter and chartlets the Ministry of Defence/Navy had already opened a file entitled “Territorial Waters” (KP/Laut/1255). In it, there is letter from J.L. Quinn, Commander, Royal New Zealand Navy, dated 1 August 1968, referring to eight sets Thanabalasingam’s chartlets and issuing an instruction that they be “Forwarded for issue to ships on patrol in West Malaysia”. This surely demonstrates that other parties – in this case, the Royal New Zealand Navy operating under various Commonwealth agreements – knew precisely of the details of the chartlets and were prepared to use them in good faith.

The key analytical point we can draw from this analysis of the Court’s Judgment is straightforward. The Court did not treat correspondence which it considered to be “internal” in an even-handed way. In the case of the 1968 letter and chartlets, the Court dismissed their value as evidence of Malaysia’s claim to sovereignty of Pedra Branca/Pulau Batu Puteh on the grounds that they were not known to other parties even though, as we have shown, Commonwealth naval forces did know of their existence and even used them accordingly. The Court dismissed this evidence even though the Ministry of Defence/Navy was clear that these documents were explicitly about Malaysia’s “territorial waters” and hence its sovereignty.

By contrast, when considering the correspondence between the Singapore Navy and the Port of Singapore Authority in relation to the installation of a relay station – correspondence that was definitely “internal” and unknown to other parties – the Court chose to use this example as a clear act of Singapore’s sovereign authority.

Before we draw out some conclusions from this analysis of the post-1953 conduct of Malaysia and Singapore in relation to Pedra Branca/Pulau Batu Puteh it is worth highlighting one other relevant point. This has to do with the contentious issue of what was known (or not known) to the other side. As we have seen, this became an issue with regards to the installation of the naval relay station and the Ministry of Defence/Navy’s chartlets.

This is compelling evidence that Malaysia’s territorial waters around Pedra Branca/Pulau Batu Puteh were known to Singapore authorities. For example, the Essential (Prohibited Areas for Fishing Vessels) Regulations, 1966 contained definitions of Malaysia’s territorial waters and Singapore’s territorial waters in the Straits of Singapore in its First and Second Schedules (see charts here and here). This draft Bill was discussed openly and bilaterally between Malaysia and Singapore, together with representatives the British Royal Navy. Even though the draft Bill was not finally tabled before Parliament Singapore was fully cognisant of its provisions. The precise indicators contained in the schedules show Pedra Branca/Pulau Batu Puteh as being located in Malaysia’s territorial waters.

Having dealt with the three sets of actions considered by the Court to be Singapore’s acts of sovereignty in the period after 1953, we are now in a position to assess what they really meant. One striking fact that emerges is that all these examples are from the 1970s – the visits (1974 and 1978), the most telling of the shipwreck inquiries (1979), and the installation of a relay station for military purposes (1976-77).

Far from being a “continuous exercise of state authority” by Singapore, and far from being the huge list of so-called effectivites mentioned by Bundy, Jayakumar and Koh, and far from being “a powerful legal case” (in Lee Kuan Yew’s words), in fact the evidence points to a few, belated instances of so-called Singaporean sovereignty from the 1970s. The evidence demonstrates only a very limited range of so-called effectivites. And the evidence demonstrates not a powerful legal case but a very partial reading of the historical narrative by most the Court’s judges.

In their book, Jayakumar and Koh quote their counsel, Rodman Bundy, so-called “punch line” on the question of effectivites and sovereignty: Bundy said this:

Indeed, if Malaysia’s thesis of the case is accepted, it would produce an unprecedented result – it would be the first time that sovereignty over a disputed territory would be found to lie with a party which never carried out a single sovereign act on the actual territory in dispute at any time (p. 121).

We have tried to show - based on historical evidence - that Bundy’s claim is ahistorical and misplaced. Johor and Malaysia did indeed carry out acts that demonstrated its sovereign authority over Pedra Branca/Pulau Batu Puteh. In its wisdom, the Court decided to weigh Singapore’s conduct as more persuasive that that of Malaysia. That is a judgment and the Court’s privilege. It has nothing to do with Bundy’s (and Jayakumar and Koh’s) rhetoric that Malaysia “never carried out a single sovereign act”.

As some of the dissenting judges noted in their separate opinions, the Court actually fell into a trap of its own making. It was guilty of reading the “facts” of contemporary history – mainly actions that took place in the 1970s – back into the past. As a consequence, this process of interpretation magnified and inflated Singapore’s claims and, logically, diminished the value of Johor/Malaysia’s claims which of course the Court had already accepted for the period up to 1850.

The whole of Singapore’s argument is ahistorical and an example of the way that “all history is considered to be contemporary history” in Croce’s famous dictum. What this means, as Gramsci pointed out, is that the history of the past “vibrates” in the mind of the historian – and presumably of judges – and corresponds to his present interest.

In other words, the modern, manufactured version of history of Singapore succeeded in casting its long shadow over the history of the Malay archipelago at least as far back as the mid-nineteenth century. In doing so, the island of Pedra Branca/Pulau Batu Puteh which had once been part of the Sultanate of Johor became part of modern Singapore.

SEE, IT STALKS AWAY!

Hamlet, Act 1, Scene 1

Barnardo: See, it stalks away!
Horatio: Stay! Speak, speak! I charge thee, speak!
Exit ghost.
Marcellus: 'Tis gone, and will not answer.

***
The single best-known piece of evidence which ultimately determined the Court's conclusion that "sovereignty over Pedra Branca/Pulau Batu Puteh belongs to Singapore" (Para. 277) is the (in)famous letter of 1953 from the Acting Secretary of the State of Johor. Dated 21 September 1953, the letter makes the following statement:

"I have the honour to refer to your letter ... dated 12th June 1953, addressed to the British Adviser, Johore, on the question of the status of Pedra Branca Rock some 40 miles from Singapore and to inform you that the Johore Government does not claim ownership of Pedra Branca" (Para. 196).

Such was the importance given by the Court to this letter and the attendant correspondence that some 39 paragraphs were devoted to it in the final Judgment. It would appear that no stone was left unturned in interpreting the context, intention and implications of the Acting Secretary's letter and related correspondence. In the end, the Court decided as follows:

"... the Johor reply is clear in its meaning. Johor does not claim onwership over Pedra Branca/Pulau Batu Puteh. That response relates to the island as a whole and not simply to the lighthouse. When the Johor letter is read in the context of the request by Singapore for elements of information bearing on the status of Pedra Branca/Pulau Batu Puteh ... it becomes evident that the letter addresses the issue of sovereignty over the island. The Court accordingly concludes that Johor's reply shows that as of 1953 Johor understood that it did not have sovereignty over Pedra Branca/Pulau Batu Puteh. In light of Johor's reply, the authorities in Singapore had no reason to doubt that the United Kingdom had sovereignty over the island" (Para. 223).

This conclusion was, of course, devastating for the Malaysian case. The headline writers were ready: "Malaysia loses Pedra Branca/Pulau Batu Puteh".

In my view, the Court's interpretation of the 1953 correspondence and its final decision are highly contentious. We need to unpack this episode in a very careful manner. In doing so, we can reveal two things.

First, the presentation and elaboration of the 1953 correspondence before the Court was deeply flawed in methodological terms. In effect, errors on the part of the Malaysian team - errors that were highlighted even by the most sympathetic judges - gifted Singapore certain key points.

Second, the interpretation of the 1953 correspondence made by the Court was erroneous. Put simply, the Court read too much into the content of the Acting Secretary's letter which in no sense "clarified" that sovereign title to Pedra Branca/Pulau Batu Puteh now resided with Singapore. In fact, in the period after the 1953 correspondence it was Singapore that remained silent and took no public action in relation to the island. In my opinion, having already established beyond doubt that the original title to Pedra Branca/Pulau Batu Puteh was with Johor, nothing in the 1953 correspondence should substantively change that view.

Let us look first at the methodological shortcomings. Malaysia and Singapore presented sets of corresspondences which can be grouped into two files (MALAYSIA FILE and SINGAPORE FILE) relating to the 1953 correspondence before the Court as annexes to their respective Memorials. However, given the fact that the files contain gaps and deliberate omissions that confuse the chain of correspondence, it is necessary to reconstitute the whole as a starting-point

Both Malaysia's and Singapore's files originated in two Colonial Secretary's Office (CSO) files (CSO 11293/52 and CSO 11692/52). CSO 11293/52 Encl. 2 has the title "Horsburgh Lighthouse" and is a letter from the Master Attendant Singapore quoting the Chief Surveyor Singapore's view that he "should claim a 3 mile limit round this point [Horsburgh Lighthouse]". (Actually this letter has no place in the CSO 11692/52 file which Singapore created as the SINGAPORE FILE).

In Encl. 2A of this file (CSO 11293/52), the Colonial Secretary - replying to Deputy Commissioner General for Colonial Affairs for Southeast Asia, stationed in Singapore - writes a long letter (marked "confidential"), dated July1953, with reference to "territorial waters". These are defined in relation to both the Anglo-Dutch treaty and the Crawfurd treaty of 1824, as well as an Agreement of 1927 which fixed the mid-channel line in the Straits of Tebrau. s. This information was then drawn up on an attached chart - stamped by the Survey Department, Colony of Singapore and dated 5 July 1954 (sic). This, of course, does raise the question of how a 1954 map can be attached to a letter of 1953.

For all purposes based on CSO file 11293/52, the Commissioner General for Colonial Affiars, Southeast Asia knew about the territorial extent of Colony of Singapore; the Secretary of State at the Colonial Office knew the same; as did the Colonial Secretary, Singapore (CSO) and the Survey Department, Colony of Singapore knew of the limits of Singapore. They all knew that Singapore's territorial waters did not include Pedra Branca/Pulau Batu Puteh.

In this context, we can also consider the 1952 Annual Report of the Singapore Survey Department that drew the territorial limits of Singapore at the request of the Department of Commerce - this map exists but was never considered by the Court. Singapore has this evidence.

Turning to CSO 11692/52 file we have the following enclosures: 1A; unnumbered dated 29 Sept. 1952; Encl. 7; Encl. 8; Encl. 9; Encl. 10; Encl. 14; Encl. 16. It is of relevant to note that in Jayakumar and Koh's book they claim to have obtained all the 1953 letters not from the Singapore National Archives but from the Department of Communications, Singapore records in 1977. Even a cursory glance at this file reveals that there is so much missing evidence in the chain. At no stage did anyone query why all the correspondence and file title were not produced.

Encl. 1A is a departmental letter of enquiry from the Director of Marine, Federation of Malaya to the Master Attendant Singapore regarding the subject of maintenance of lighthouses close to the coast of the Federation. In a telling phrase, the Director of Marine notes that "The matter will, of course, have to be raised formally between the two Governments", i.e. between the Federation of Malaya and the Colony of Singapore. This clearly establishes that the British authorities saw lighthouses as a Federal matter.

The second item in the CSO 11692/52 file is letter which Singapore obtained from the National Archives Malaysia. Dated 29 September 1952, the letter is the Master Attendant Singapore's answer to the Director of Marine's query. Two points are important here. First, he notes that it is the Land Office that has been asked to "investigate the facts" of lighthouses in the Straits Settlements. Second, the Master Attendant declares that Pedra Branca being close to Johor coast "belonged to the Unfederated State of Johore".

This is fairly compelling evidence of the official view of the British authorities in late 1952. What would one expect now from the CSO 11692/52 file? It would be the follow-up correspondence with regards to the matter of lighthouses, the results of the investigation of facts by the Land Office and, presumably, arrangements for a meeting between the two governments. Instead there is a blank - a break in the chain of evidence - which now jumps to Encl. 9. This is letter from J.D. Higham, for Colonial Secretary Singapore to the British Adviser Johor dated 12 June 1953. This letter comes with two attachments - Encl. 7 and 8. Encl. 7 is a very brief typewritten extract of a despatch from the "Governor of Singapore" - actually it was Butterworth as Governor of the Straits Settlements - to the Governor-General in Bengal, dated 28 November 1844. It states that Butterworth believed that the Sultan and Temenggong of Johor had "gratuitously" ceded "this rock" ["Pedra Branca"] to the East India Company. Encl. 8 is Article II of Crawfurd's treaty of 1824 already addressed in first CSO file. Higham's intention in this letter is clear. In making enquiries about the boundaries of Colony of Singapore's territorial waters he was on the trail for "documentation showing a lease or grant of the rock or whether it has been ceded by the Government of the State of Johore or in any other way disposed of". Higham also copied the letter to the Chief Secretary, Federation of Malaya. At no juncture does he make a direct claim that Pedra Branca/Pulau Batu Puteh "belongs" to the Colony of Singapore.

Encl. 10 is the critical letter in the CSO 11692/52 file. In it the Secretary to the British Adviser Johore, J.D. Turner, informed Higham that his letter had been passed to State Secretary Johore for an answer as the appropriate recipient "in so far as Johore is concerned". Turner goes on to say that the State Secretary will consult with "the Commissioner for Lands and Mines and Chief Surveyor and any existing archives" before responding. It is interesting to note that this letter contains no file reference number for the British Adviser Johor's Office; the letter should have been located in the Johor archives together with attendant correspondence. This information was not provided. So we have no idea of the British Adviser's intention when receiving Higham's letter. Neither do we have any idea of the directive that came from the British Adviser to the State Secretary when the letter was handed over. Once again, it is impossible to infer intention when the records are incomplete.

The reply to Turner's letter is contained in Encl. 14 (obviously there are missing documents in the series, viz. Encls. 11-13). This letter is from the State Secretary Johor's Office (file number SSJ 1120/53/6). It is actually the (in)famous letter from M Seth Bin Saaid, the Acting State Secretary Johore, dated 21 September 1953 in which he says that the "Johore Government does not claim ownership of Pedra Branca". In the SSJ 1120/53 file M Seth Saaid's letter is Encl. 6. The other five Enclosures are not included so we have no idea what the context is. But we do know from archival indexes that the SSJ 1120/53 file was entitled "Certain Land Matters". This indicates that the intention of the file and the answers it contains should be interpreted in this framework, i.e. the issue of "ownership" is actually a land title question.

Furthermore, one week earlier on 14 September 1953 the State Secretary, Johore (Incorporation) Enactment No. 2 was passed into law which limited the powers of the State Secretary to property and land matters and specifically did not extend his authority to sovereign matters involving His Highness the Sultan. In addition, the Colonial Secretary Incorporation Ordinance - which had been passed earlier in the Colony of Singapore- spelled out the general practice that the Colonial Secretary was not empowered to negotiate on matters of territory and sovereignty which involved the Crown.

The final document in the CSO 11692/52 file is Encl. 16 (there is no Encl.15) which is a very brief memorandum on behalf of the Colonial Secretary Singapore to the Acting Master Attendant Singapore, dated 13 October 1953 and entitled "Horsburgh Lighthouse" stating "On the strength this [M Seth Saaid's letter], the Attorney General agrees that we can claim it [Pedra Branca] as Singapore territory". At this point the file goes dead. There are no documents providing legal opinions from the Attorney General's office; there is no view on the matter from key parties such as the Governor of the Colony of the Straits Settlements, the Commissioner General for Colonial Affairs Southeast Asia, the Foreign Office, the Colonial Office, the High Commissioner of the Federation of Malaya, the British Adviser Johor, and not least the Sultan of Johor.

Despite this litany of missing documents and problematic interpretation of the letters and other documents that were presented, the Court ultimately decided that the 1953 correspondence was crucial in determining that sovereignty over Pedra Branca/Pulau Batu Puteh now lay with Singapore. And yet, the Court's Judgment acknowledged that "No further correspondence followed and the Singapore authorities took public action" to assert its so-called sovereignty (Para. 196). This point was picked up by each of the four judges who voted against the Court's majority decision. In each of their dissenting opinions judges Dugard, Simma, Abraham and Parra-Aranguren cite this lack of further correspondence and lack of public action as compelling reasons why sovereignty remained with Malaysia as the undisputed successor of the Sultanate of Johor.

THE SILENT LONG CENTURY, 1850-1952

Having convinced the Court that original title to Pedra Branca/Pulau Batu Puteh lay with the Sultanate of Johor the burning question now arises: how did the Court reach the conclusion in the Judgment that "sovereignty over Pedra Branca/Pulau Batu Puteh passed to the United Kingdom or Singapore" (Para. 273)? In answering this question, and based on its reading of the historical record contained in the written and oral pleadings, the Court blandly concluded that "the Johor authorities and their successors took no action at all on Pedra Branca/Pulau Batu Puteh from June 1850 for the whole of the following century or more" (Para. 275, emphasis added).

Basically the Court is saying that the records of the East India Company (to 1857), the India Office (1857-1867), the Colonial office (1867-1946), and the Malayan civil service (1946 onwards) do not contain a single instance of the Johor authorities and its successor governments exercising sovereignty over the island. This is simply not true. Here we will provide several instances - taken from the historical record - of ways in which the Johor authorities did exercise their sovereignty. Some of these were presented before the Court but were deemed to be unconvincing; some were not even referred to in the Judgment; and some were not even presented in the pleadings.

The first example derives from disputes that arose over fishing licenses issues by the Temnenggong of Johor allowing permit-holders to fish within Johor's waters. The evidence available shows that one group of fishermen that paid for a Johor fishing license and fished within the 10-mile territorial limits of Settlement of Singapore. The Singapore authorities, through the India Office, reprimanded the Temenggong for transgressing into the territorial waters of Singapore as defined by the 2 August 1824 ("Crawfurd") treaty. By contrast, the Temenggong issued a Johor licence for $1 permitting a group of Chinese fishermen, resident in Singapore, to fish under license in Johor territorial waters. This group admitted in front of a Singapore court that it had fished in the vicinity of Pedra Branca/Pulau Batu Puteh. At no juncture did the British authorities - including the India Office, Government of India, Governor of the Straits Settlements and the local newspapers - raise any objection to the rights of these Singapore-based fishermen to fish in Johor's territorial waters near Pedra Branca/Pulau Batu Puteh. If, as Singapore maintained, Pedra Branca/Pulau Batu Puteh was indeed part of Singapore and thus had its own territorial waters then we would expect objections.

Conversely, there is a lot of correspondence in the records - including with the Temenggong - over breaches of the 10-mile territorial limits which had long been agreed. The conclusion is clear. This is a straightforward example of the continued exercise of sovereignty by Johor contained in the historical narrative. Unfortunately, the Court decided that "nothing can be made of the fact" and later that "the facts cannot be clearly established" of these events (Para. 191). This seems to be a rather cavalier misreading of a very clear historical episode. A constant refrain of the Court was that there is insufficient historical evidence on fishing matters to prove questions of sovereignty. In reality, there is enough uncharted material in the in the Indian, British Library and indeed the Singapore archives to pursue this matter as a future research topic.

The second example derives from a very important historical episode concerning struggles between different Malay rulers over questions of boundaries and sovereign authority. Pahang had separated from the old Sultanate of Johor during the nineteenth century. In 1862 Johor and Pahang concluded a treaty which set out to resolve boundary issues between them. However, despite the 1862 agreement, a dispute soon arose over the land and maritime boundary. This even involved the ex-Sultan of Riau-Lingga who had ambitions to revive his dynasty on the Malay peninsula with the support of dissidents who included the aspiring brother of the Bendahara of Pahang, the disgruntled Temenggong of Muar who opposed the Johor ruler, the marginalised family of the late Sultan Hussein of Johor, the Terengganu sultanate, rival factions in the Selangor sultanate and, critically, the presence of the Siamese empire in the peninsula. The British feared that these disputes could lead to a "conflagration" on the Eastern seaboard of the Malay peninsula which would disrupt the lucrative China trade.

It was finally settled in 1868 by an arbitration award given by Sir Harry Ord, British Governor of the Straits Settlements (click to see the chart attached with the award). The Ord Award settled the land boundary along the River Endau which was also to be taken as the starting point and latitude for the maritime boundary out into the South China Sea. The text of the Award is explcit: "... and all the islands to the north of this line shall belong to Pahang and all to the south of this line to Johore as laid down on the chart annexed to the award". The Award was accompanied by an Admiralty Chart 2041 entitled "Eastern Coast of Johor". This chart clearly shows not only Pedra Branca/Pulau Batu Puteh but also Middle Rocks and South Ledge as belonging to Johor. In effect this Chart reconfirmed the text and the map of the Crawfurd treaty (1824) in the context of creating British and Dutch spheres of influence.

Although this evidence - including the Admiralty Chart - was presented in the written and oral pleadings it was not even mentioned in the Court's final Judgment. Surely this evidence is an extremely compelling example of the recognition of Johor's sovereignty by no less a figure than the Colonial Office's representative located in Singapore. The omission of this evidence from the final Judgment is simply baffling.

The third example derives from another treaty arrangement entered into by the Sultanate of Johor and the British as two sovereign entities. During Sultan Abu Bakar's rule, the British Government and the State of Johor concluded what is commonly referred to as the Johor Treaty of 1885. In this Treaty, explicit reference was made to "the Independent State of Johor". This instrument allowed only limited British intervention in the internal affairs of Johor. In essence, the treaty was a cooperative arrangement without eliminating the sovereignty of Johor or changing its territorial extent. For example, Article V of the 1885 Johor Treaty provided that "[T]he Governor of the Straits Settlements, in the spirit of former treaties, will at all times to the utmost of his power take whatever steps may be necessary to protect the Government and territory of Johore from any external hostile attacks ...".

The following year, the Sultan made a visit to London and raised some issues concerning Johor's sovereignty in light of the agreements reached in the 1885 treaty. In an official letter of 20 March 1886 addressed to the British Colonial Office, the Sultan explained:

The Islands in question range themselves around the Coast of Johore: all those on the Western side, and a large number on the Eastern side, being in the immediate vicinity of Johore; but of the latter a large proportion also extends farther out, stretching to even as far as the neighbourhood of Borneo.

Thus the Sultan made the significant distinction between islands in the immediate vicinity of the mainland of Johor and those in the open sea. It is evident that Pulau Batu Puteh was included in the phrase "a large number on the Eastern side, being in the immediate vicinity of Johore". There is no suggestion that any particular island was exempt from the general position so described.

On the same day, the Sultan's Secretary, Abdul Rahman, submitted a Memorandum to the Colonial Office under the title "Charts of the Islands belonging to Johore" (20 March 1886). He drew a distinction between General Charts and Charts of Groups of Islands. As regards the former, he tabled among other charts Admiralty Chart 2041 as used in the Ord Award of 1868. After subsequent discussions between the Colonial Office and the Foreign Office, the Sultan was informed that Britain could not intervene as regards the Sultan's claims to the islands in the South China Sea as Britain had earlier acknowledged Dutch presence in this area.

Taking stock, then, of Johor's territories in the mid-1880s we can see that the British authorities proceeded on the basis that Johor extended to all islands in its vicinity with three exceptions: (a) those that were part of the Riau-Lingga Sultanate in the Straits of Singapore under the Dutch sphere of influence as agreed in the Anglo-Dutch Treaty (17 March 1824); (b) those that were part of the Settlement of Singapore in the Straits of Singapore as defined by the Crawfurd Treaty of 2 August 1824; or (c) those belonging to Pahang pursuant to the Ord Award of 1 September 1868, as depicted on Admiralty Chart 2041. "Horsburgh Light R.", "South Rocks" and other features at the entrance of the Straits of Singapore are indicated on this Chart. These islands were to the north of the Dutch sphere of influence under the 1824 Anglo-Dutch Treaty. They were clearly outside of the islands, straits and seas ceded by the Crawfurd Treaty of 1824. They were clearly south of the newly-drawn Pahang-Johor boundary. Pedra Branca/Pulau Batu Puteh are clearly located within the sovereign territorial waters of Johor.

The final example produced here of Johor's continuing assertion of its sovereignty comes from a series of maps commissioned from the British War Office in the early 1920s. In this case, Sultan Ibrahim of Johor officially engaged the War Office to draw contoured map sheets covering Johor territories. This commission was unprecedented. The usual practice for individual Malay sultanates was to engage the Surveyor General of the Federated Malay States and the Colony of the Straits Settlement to undertake the surveying, mapping and publishing. However, in this instance, the map creation exercise was led by the War Office and involved the army, the air force and the admiralty in doing the work. The Sultan paid in part - over a number of years - the costs of producing the maps. This is an undertaking between two sovereign entities.

In its Memorial, Malaysia produced a version of the WO map sheet (4I/10) covering Pedra Branca/Pulau Batu Puteh in its map atlas. The provenance of this 1926 map sheet was attributed to the Surveyor General of the Federated Malay States and the Colony of the Straits Settlements. The source of the map sheet is given as the Library of Congress, USA, through Wisma Putra on 25 April 1983. In reality this is simply a copy of the War Office map series commissioned directly by the Sultan. By producing the map in the Court in this fashion, the back story of how and why it was produced becomes invisible. Instead of a commission from a sovereign ruler to one of the highest authorities of the British state what the Court is presented is just another routine mapping exercise carried at the behest of the FMS Surveyor General. All of the official details of correspondence, agreements, commitments and payments are to be found in the records of the National Archives (Johor Branch), the archives of the Colony of the Straits Settlement , and at the UK National Archives (War Office: Directorate of Military Survey).

Taken together, these four examples - the question of fishing rights, the arbitration award and attached chart of 1868, the Johor Treaty of 1885 and the charts attached to the letters and memorandum from the Sultan of Johor and his State Secretary, and the production of a special map series by the British War Office - are not further evidence of so-called "evolving views of the authorities in Johor and in Singapore about sovereignty over Pedra Branca/Pulau Batu Puteh" which the Court claims in its Judgment. Rather they represent a clear and consistent reassertion and reaffirmation of Johor's original claim to sovereign title. In each instance the Johor authorities - both the Sultan and temenggong - appear completely at ease in asserting their sovereign rights over the territorial waters around Pedra Branca/Pulau Batu Puteh. But more than this, a whole range of political authorities who were dealing with Johor also had the same view of Johor's sovereignty. These included: the Governor of the Colony of the Straits Settlements; all the departments subordinated to his office such as the Surveyor General; the Colonial Office; the Foreign Office; and the War Office. In other words, in these four instances and in others Johor's claims were accepted by the British authorities at the highest level.

Despite this compelling evidence, the record of the Court's Judgment remains deafeningly silent. In our view, the fault lies with the doubts that Singapore had already sown that the 25 November 1844 letters of permission from the Sultan and Temenggong of Johor did not cover Pedra Branca/Pulau Batu Puteh. As we have already noted, the Court says it did not draw any conclusions about questions of sovereignty. However, the Court opens up sufficient cause for doubt and seems to suggest that the history of the next hundred years will provide the definitive answer. Thus in the Court's view Johor and its successors took "no action at all" in relation to Pedra Branca/Pulau Batu Puteh. It would be but a small step for the Court to draw its own negative inferences from the infamous letter of 1953.

A TALE OF TWO SITES

The process of selecting a site for the proposed Horsburgh lighthouse in the Straits of Singapore was quite drawn out. Initially a number of sites were considered. These included Pedra Branca (Batu Puteh), Tree Island, Peak Rock (Romania Outer Island) and Barn Island. By 1844 the decision had come down to a straight choice between two: Pedra Branca or Peak Rock. For a while it seemed that Peak Rock would be the preferred recommendation of the Government of India to the Court of Directors of the East India Company.

But by 1846 opinions had changed. For one, William Hamilton who was Secretary to the Lords of the Admiralty wrote to J.C. Melvill, Secretary to the East India Company, in support of the Pedra Branca/Batu Puteh location (British Library, F/4/2166). Then, following a detailed survey of the vicinity of Pedra Branca/Batu Puteh ordered by the Court of Directors in London, Governor Butterworth wrote to the Government of India, stating that “Pedra Branca is the only true position” for the lighthouse. On 30 October 1846 the President in Council in India approved Pedra Branca/Batu Puteh as the site; on 24 February 1847 the Court of Directors informed the Indian Government of its approval; and on 10 May 1847 the Government of India requested Butterworth to take measures for the construction of a lighthouse on Pedra Branca/Batu Puteh. The decision was subject to revisions in terms of expenditure and the means of levying the funds required to pay back loans advanced by the Government of Inida.

This narrative looks straightforward enough. In the context of British imperial and trade interests in the region in the mid-nineteenth century the decision to construct a lighthouse in the Straits of Singapore was rational. It can be understood as an effective means to further the Company’s commercial interests with regards to the flourishing China trade. And the accepted view was that the beneficiaries of the lighthouse – primarily the merchant community – would in large part pay for the facility. At the same time, and in a typically Victorian gesture, one of the Company’s great and good – James Horsburgh – would be publicly recognised in a fitting manner.

But at the International Court of Justice this straightforward rendering of history became the source of huge dispute between Singapore and Malaysia. The decision over the siting of the Horsburgh lighthouse now became a struggle over questions of sovereignty and control. In particular, Singapore sought to draw a distinction between Peak Rock, on the one hand, and Pedra Branca/Batu Puteh on the other.

In relation to Peak Rock, Singapore argued that the two letters dated 25 November 1844 from the Sultan and Temenggong of Johor referred exclusively to Peak Rock as the site for the lighthouse. In the letters the Temenggong said he had “no possible objection” while the Sultan expressed the view that he was “exceedingly pleased” with the proposal. Singapore claimed that this correspondence was strictly limited to Peak Rock only – and accepted that the Sultan and Temenggong possessed the authority to give permission for the construction of the lighthouse simply because Peak Rock is located within the 3-mile territorial waters of the Sultanate in the Straits of Singapore.

Here it is important to comment of the notorious case of the "missing letters". While we have the two letters of reply from the Sultan and Temenggong of Johor granting permission, nobody has been able to locate the letters of request from Governor Butterworth to the Johor authorities persumably written in 1844. It is really modern-day wishful thinking to imagine that the letters would provide a clear and unequivocal statement that spells out the intention of the British to obtain the permission of the Johor authorities to construct the lighthouse and would not be a formal acquisition of territory. This is simply not how mid-nineteenth century colonial administrators wrote to "native rulers". So all the effort that was expended and the hope that was vested in the "missing letters" were actually misplaced. In the Court's own words, Butterworth's correspondence was couched "in the most general terms". The claims made today by certain quarters that the "missing letters" hold the key the the sovereignty issue is simply a smokescreen for blunders that were committed in other areas of the research effort.

However, once the decision had been taken to construct the lighthouse on Pedra Branca/Batu Puteh, Singapore now claimed that the Sultan and Temenggong’s 1844 letters were simply irrelevant. For Singapore, Pedra Branca/Batu Puteh and the nearby features (as we have already seen) were terra nullius. In which case, the entire story of the choosing of the site and the construction of the lighthouse becomes a “Singapore project”. Johor becomes invisible. Johor had no rights. The story – in Singapore’s version – is not simply the building and management of a lighthouse facility. The story is now one of taking possession.

In Court, Singapore adduced a whole range of activities – both practical and symbolic – which they claimed demonstrated effective possession of Pedra Branca/Batu Puteh. These included: the laying of bricks, the cutting channels in the rock for drainage purposes, the use of materials sourced from Singapore, the use of a "Singapore" gunboat and steamer for transportation purposes, food provisions from Singapore, as well as the role the “Singapore” Governor and “Singapore Government” Surveyor.

In the Court’s Judgment it conceded that such activities “may be seen as having a sovereign character” (emphasis added). The Court noted, for example, appendix 7 of Singapore’s architect, J.T. Thomson’s Account of the Horsburgh Lighthouse (1852) which detailed “extensive aid” given by Singapore in the construction process. The Court also said that the inscriptions of names such as Butterworth as “Governor” and Thomson as “Architect” on the tablet in the Visitors Room might be have “sovereign characterization”. Of course, this would be the case if Butterworth is considered to have been the Governor of Singapore and not the Straits Settlements and Thomson the Architect of Singapore and not the Straits Settlements. Similarly the gunboats and steamer belonged to the Straits Settlements and not Singapore. The representation of these men and boats as “belonging” to Singapore exclusively is erroneous.

By contrast, the Court notes that “the only time the Johor authorities were present throughout that process was the two-day visit of the Temenggong and his followers in early June 1850” (para 162). This is, of course, not the whole story. A detailed reading of Thomson’s own Account shows that steamships and gunboats frequently used Johor territories – notably Point Romania and Sidili – to service the construction of the lighthouse in, for example, the provisioning of potable water, firewood, selecting spars, digging wells and obtaining quartz (pp. 409-12, 423, 443-4, 448). The map attached to Thomson’s book shows three wells dug at Point Romania used in the provisioning of potable water for use on Pedra Branca/Batu Puteh.

The final element of the tale of the two sites relates to the passing of the Indian Act VI (1852) which can be said to bring to a close this particular episode. Continuing its line of argument about the terra nullius status of Pedra Branca/Batu Puteh, Singapore’s counter-memorial (Singapore Counter-Memorial, Annex 16) takes extracts from a key file of the Company’s Court of Directors records at the British Library (F/4/2509 Coll. No. 142867) (click here to see the original file). In a fine example of creative writing, Singapore retitles this file “Extracts from Travaux Preparatoires (preparatory works) of Indian Act VI of 1852” in relation to the Horsburgh lighthouse. Singapore only made use of enclosures 5, 7, 8, 9, 10, and 11. The actual title of the file is “Act No. VI of 1852, The defraying the cost of the Light House on Pedra Branca”. This is simply an example of partial disclosure which creates difficulties for any court to give judgments based on the true facts.

More importantly, the letters not enclosed by Singapore are very significant in order to help the Court to fully understand the actual facts on the ground. These include correspondence between the Court of Directors and the Government of India that refers back to earlier correspondence from 1845 which debated the merits of the Peak Rock and Pedra Branca. In other words, the file as a whole offers the best source for a comprehensive overview of some eight years of correspondence between the Court of Directors, the Government, the Government of Bengal, the Sultan and Temenggong of Johor and the Governor of the Straits Settlements over the choice of the site for lighthouse and its construction.

By way of illustration we can consider one or two key letters – missing from Singapore’s edited file – which help us reaffirm the sovereignty of Johor over Pedra Branca/Batu Puteh. A letter of 28 June 1852 from the Government of India to the Court of Directors refers back to the Court of Directors’ instructions (dated 15 October 1845, No. 6) concerning the construction of the lighthouse. In the original version of this letter of instruction the Court consideration as application “on the subject of a proposal to erect a Light House on the Peak Rock”. However, in the reference made to the letter of instruction of 15 October 1845 by the Government of India now refers to “the erection of the Horsburgh Light House on the Island rock called Pedra Branca”.

What this clearly points to is that in the mind of the Court of Directors, the Government of India, Government of Bengal, and the authorities of the Straits Settlements the two sites – Pedra Branca and Peak Rock – were to be considered interchangeably. This is extremely significant in relation to the letters of permission issued by the Sultan and Temenggong of Johor on 25 November 1844 which we referred to earlier. The inference is clear. The Sultan and Temenggong were giving permission unequivocally to Pedra Branca and Peak Rock as both were located in their territories. The interchangeability of the two sites was later acknowledged by the British Parliament in a paper entitled “Statement of Measures for Erection, Management and Superintendence of Lighthouses in British Colonies and Possessions” (1850). The failure of Singapore to see and acknowledge this historical fact then allowed the Court to see an anomaly that did not actually exist.

What was the upshot of this partial reading of history for the case? In its Judgment, the Court says that it “does not draw any conclusions about sovereignty based on the construction and commissioning of the lighthouse” (Para. 162). This appears to be a non-committal and rather inconclusive statement. But even though the Court conclusively accepted Malaysia’s argument that Pedra Branca/Batu Puteh came under the sovereignty of Johor, it did not criticise or dismiss Singapore’s erroneous claims made on the basis of a lack of adequate documentation that linked the permission letter of 25 October 1844 to the final selection and construction of the lighthouse on the island. By not doing so, the Court opens up the possibility that the actions described in the construction and commissioning of the lighthouse may be seen as having a sovereign character. In our view, the Court’s unwillingness to dismiss Singapore’s interpretation of this history is a harbinger of how the case would turn. This much is clear from the Judgment.

The story of the lighthouse’s construction may not bear directly on the issue of sovereignty. But the Court certainly “sees those events as bearing on the issue of the evolving views of the authorities in Johor and in Singapore about sovereignty over Pedra Branca/Pulau Batu Puteh” (Para. 162). In effect, the die is cast; a different destiny has taken charge. From this point onwards the reading of the historical evidence by the Court will become silenced or increasingly weighted towards Singapore.

THE ANATOMY OF RESEARCH IN THE SINGAPOREAN PLEADINGS

As part of its presentation to the Court Singapore produced an impressive-looking total of 247 documents - specifically letters of correspondence - for the consideration of the judges. The table below provides an analysis of the different sources for these data. Not unnaturally, many of the documents are sourced from the same archives and databases as Malaysia. But the number of Singaporean documents is hugely inflated by the fact that well over half are 'internal' including correspondence with its Ministry of Foreign Affairs and Ministry of Foreign Affairs, Malaysia.

Much more important, however, is the issue of the research methodology to which Singapore's evidence was subjected. In the preface of their book Pedra Branca: The Road to the World Court (NUS Press, 2009) S. Jayakumar and Tommy Koh, two of Singapore's most senior lawyers, express the following view:

... as the written pleadings and oral arguments showed, the issues involved in the arguments on who had sovereignty turned not only on legal principles but also on assessing the significance of various historical events in the region as well as the interpretation of treaties, colonial records, maps etc

This apparently innocuous statement actually betrays an interesting inversion of the approach adopted by my research team. Surely it is the persuasiveness of the historical facts on the ground that should be primary. Only once these facts are established with a high degree of veracity and rigour can the insights of international legal principles be brought to bear. Legal reasoning should be based on the historical facts - the latter are not a mere appendage. As the eminent Judge John Dugard made clear in his dissenting opinion 'the interpretation of the facts of the case gives rise for concern'. In his view the Court was 'very kind to Singapore in its assessment of the facts of this period [1953-80] and less kind to Malaysia' (para 2, page 1).

In the event, Jayakumar and Koh provide ample illustration of Dugard's assessment in the cavalier way that they treated historical evidence and the facts they revealed. A number of examples illustrate this.

At the very outset of the book, Jayakumar provides an account of his own early searches in the India Office archive at the British Library. On the basis of correspondence between the Johor rulers and the British, Singapore came to a startling conclusion that was the foundation for its legal argument that Pulau Batu Puteh was in fact terra nullius. As Jayakumar sees it:

The British did not seek Johor's permission to build Horsburgh Lighthouse on Pedra Branca because ... they did not consider the island belonged to the Malay rulers. (p. 5)

In addition, the book asserted that after reading Malaysia's pleadings they thought that

"...Malaysia's arguments on historic title were not very convincing. Chan Sek Keong, [the Right Honourable Chief Justice, Singapore] who had immersed himself in Malaysian history, was confident that he could rebut or weaken the Malaysian case on historic title for the Court to hold that Malaysia had failed to prove such a claim". (p. 68)

Such claims and assertions by the very finest of legal minds arguing simply on legal principles flies in the face of the historical evidence. In the event, the Court both appreciated and gave due weight to the huge amount of historical evidence that was adduced for the key period of the early nineteenth century. The Court overwhelmingly accepted the historical facts and judged 15 to 1 that Pedra Branca was not terra nullius and that sovereignty was with the Johor Kingdom. They dismissed the imagined history constructed by the Republic of Singapore.

(Click on the table to enlarge)

GEOGRAPHY IS PERMANENT

Although historical research obviously played a huge part in constructing the legal case the significance of geography should not be forgotten. Nearly a decade ago I wrote the following (now published by SymbiosisOnline) in relation to the geopolitical and geoeconomic turbulence being faced by Southeast Asia in the face of the uncertainties of rapid globalisation:

Scholars in the Asiatic archipelago should recognise that geography is permanent and it is destiny. They should return to the drawing boards and examine resources and manpower, capital and technology, communication and routes and commodities and markets. Except for resources that are permanent, the rest are permanently in a dynamic state of movement in space and time.

What this attempts to capture is the dynamic interplay between those elements of geography that more or less constrain political and economic relations because they are fixed and the fluidity of human interaction that constantly makes and remakes history. In this regard, then, geographical space is always fixed. However, it seems that the Judgment of the Court in effect alters the historical space in the Straits of Singapore. This is a story that needs to be researched, investigated and told.

In the case of the Malay archipelago and the surrounding seas, early cartographers represented that space through maps and charts. From fairly rudimentary beginning, knowledge about this geographical space improved with science and technology over the centuries.

It may seem obvious but it is worth repeating here. The Straits of Singapore are a permanent geographical feature - they link the Straits of Malacca to the South China Sea. Pulau Batu Puteh (Pedra Branca) sits at the mouth of the Straits of Singapore. It is 7.7 nautical miles from the nearest coastline of Johore; it is 7.6 nautical miles from the nearest coastline of Bintang Island. Save for a major incidence of soil erosion or the movement of tectonic plates there is nothing that can change these realities. Even the photographs produced by Malaysia before the Court during the oral pleadings which foregrounded the island do not change the facts on the ground in terms of geographical distance. There was no compelling reason for the Singaporean team to indulge in amateur dramatics over the provenance of the photographs. Let it be stated clearly once and for all: the fact remain unchanged.

The central issues that concerned Singapore in the presentation of its case were that the Johor sultanate in the late eighteenth and nineteenth centuries was in a state of terminal decline. In their words, the sultanate was "falling apart and breaking up". As a result, Singapore asserted that by the mid-nineteenth century of Temenggong of Johor has "no authority on and in the vicinity of Pedra Branca". Further, Singapore claimed that the nature of Johor's sovereignty was never territorial in nature - rather it asserted whatever authority it had by control over people. Finally, Singapore reckoned that during this period of terminal decline the whole of the Straits of Singapore were, in any case, infested with piracy which the sultanate could not control.

All of this flies in the face of the historical and geographical evidence. Here I want to make use of three maps that, together with the historical texts of which they are a part, demonstrate the undeniable fact that geography is permanent.

First, and perhaps the single most convincing source in this regard comes from the famous account of Captain Alexander Hamilton, an officer in the service of the East India Company (see his A New Account of the East Indies, 1727) who travelled extensively in the region during the period from 1688 to 1723. In addition to his description of the "palace upheavals" besetting the sultanate during his visits, Hamilton mapped out - in words and charts - the extent of the authority of the Johor sultanate in relation to other polities in the archipelago (the "liquid world"). Most significantly, Hamilton drew "A Map of the Dominions of Johore and of the Island of Sumatra with the Adjacent Islands". Here is Hamilton's verbatim description of the political geography of the area of the Straits of Singapore:

Upon the East Side of the great Carimon, is the Entrance of the Streights of Drions; and between the small Carimon and Tanjong-bellong on the Continent, is the Entrance of the Streights of Sincapure before mentioned, and also into the Streights of Governadore, the largest and easiest Passage in the China Seas. There are many Islands lying thick hereabout, all under the Dominions of Johore" (pp. 123-24, emphasis added).

On Hamilton's map, the only one of the "islands lying thick hereabout" that he names in the Straits of Governadore (he actually means the present-day Straits of Singapore) is Pedra Branca, an uninhabited island rock, north of the main straits. He clearly states that the island is "under the Dominions of Johore". In the Straits there are also other known rocks which were uninhabited: Tree Island, Coney Island and Buffalo Rock. These were, by Hamilton’s account, also part of the Johor sultanate’s dominions.

Second, we turn to the famous Anglo-Dutch Treaty of 17 March 1824. As is well know, the rationale for the treaty was to solve many of the issues that had arisen due to the British occupation of Dutch properties during the Napoleonic Wars, as well as issues regarding the rights to trade in the Malay archipelago between the two nations.

The famous Article XII of the treaty effectively divided this part of the archipelago into spheres of British and Dutch influence:

His Netherland Majesty withdraws the objections which have been made to the occupation of the Island of Singapore, by the Subjects of His Britannick Majesty.

His Britannick Majesty, however, engages, that no British Establishment shall be made on the Carimon Isles , or on the Island of Bantam, Bintang, Lingin, or on any of the other Islands South of the Straits of Singapore, nor any Treaty concluded by British Authority with the Chiefs of those Islands

In the British sphere of influence the Sultan and Temenggong of Johor had authority and control over its existing territories while the Dutch recognised the authority of Sultan of Riau-Lingga in their sphere. The delimiting line was known and understood by all parties though there was no map attached to the treaty.

Shortly after, the new Resident of the Settlement of Singapore, John Crawfurd, was instructed to rectify all existing constitutional deficiencies by securing the cession of the island of Singapore. The subsequent Treaty of Friendship and Alliance between the East India Company and the Sultan and Tumungong (sic) of Johor (known as the “Crawfurd treaty”) was signed on 2 August 1824. Under its terms in Article II, Johor agreed to:

cede in full sovereignty and property to the Honourable the English East India Company, their heirs and successors for ever, the Island of Singapore, situated in the Straits of Malacca, together with the adjacent seas, straits, and islets, to the extent of ten geographical miles, from the coast of the said main Island of Singapore.

In order to clarify any outstanding issues, the Government of India issued a request to Crawfurd, as the Resident, on 13 October 1825 stating that “His Lordship in Council being desirous to possess a Map or Chart of Singapore with the above possessions annexed to it, you are requested to cause a document of that description to be constructed and transmitted to this Presidency". This was duly undertaken by Assistant Engineer Lieutenant Jackson.

The final map is entitled “Sketch of the British Settlement of Singapore According to the treaty of the 2nd August 1824” (located in the National Archives of India, New Delhi). The map contains an annotation which states: “… the red dotted line denotes the limits of the treaty”. The line drawn on the map is entirely consistent with the wording of the Crawfurd Treaty.

Singapore remains in denial about the significance of this set of evidence. In their account in The Road to the World Court, Koh and Jayakumar curtly dismiss the evidence with the words the “so-called 1824 map” (p.105). The Treaty is real; the instruction from the Government of India is real; and the map is real. It is Singapore that is dealing with an imagined history that requires denials and misleading verbal tics.

In 1825 Crawfurd went to take possession of the islands within the treaty’s limits to the north and south of the Straits. The furthest island south of the main island of Singapore and north of the Straits was Coney island. Crawfurd reported that its location did not violate the provisions of either the Anglo-Dutch Treaty or the Crawfurd Treaty. Significantly, Buffalo Rock was not included as part of the arrangements even though it was within the 10-mile limit since it was south of the Straits and therefore came under the authority of Riau-Lingga.

We can turn now to the third map. In 1842 the King of the Netherlands ordered a map series of the Dutch East Indies (Algemeene Kaart van Nederlandsche Oostindie, 8 sheets, 35 miles to an inch) that was produced by G.F. von Derfelden van Hinderstein. The map collection is located as part of the official Foreign Office Library map collection held at the National Archive at Kew, UK (FO925/2669). The collection was presented officially by the Netherlands government to the British government.

On Map No. 1 of the series, the Dutch drew the boundaries of the Riau residency in the Straits of Singapore in which Buffalo Rock and Tree Island are shown to be located as part of Riau residency while Coney Island clearly belongs to the Settlement of Singapore. Significantly, Pedra Branca is named and shown to be north of the main channel, beyond the limits of Crawfurd Treaty and thus remained with Johor.

While the official cartographical evidence is clear, it remains for a researcher in the future to investigate the accompanying instructions and correspondence in the Dutch and British archives to establish beyond all reasonable doubt the consistency with which the various parties respected their treaty obligations.

In addition to the evidence so obviously contained in the treaties, the maps and supporting correspondence, there is an additional public document which lends further weight to the importance of geographical boundaries. On 25 May 1843 the editor of the Singapore Free Press, William Napier – who was also Singapore’s first law agent – wrote an article examining the issue of piracy. In it he writes:

The places and Islands near which these piracies are most frequently committed and where the pirates go for shelter and concealment, such as Pulo Tinghie, Batu Puteh, Point Romania &c, are all within the territories of our well beloved ally and pensionary, the Sultan of Johore, or rather of the Tomungong of Johore, for he is the real Sovereign.

One would think that this is a very clear statement of how leading public figures in Singapore understood the territorial delimitations deriving from the earlier treaties. However, Singapore dismissed this evidence in the pleadings as having no probative value and on the basis that it could not be corroborated.

Fortunately, we now know that the Court took the evidence seriously. The writer of the article, Napier, was someone with a high public profile as chief editor and law agent. More significantly, the substance of his piece was actually summarising incidents of piracy that had taken place in the previous months and published in the Singapore Free Press. In one particular instance, Batu Puteh is identified as being part of “Johore Territories”. The events described in the Singapore Free Press are directly corroborated by Singapore’s own court and police records (these are contained in the East India Company’s Board of Directors records in the British Library, F/4/2106/98601 series).

Something important therefore emerges from this examination of cartographical and other supporting documents that demonstrate the central importance of geography in defining facts on the ground. Both in its pleadings at the Court and in Koh and Jayakumar’s subsequent account, Singapore has been quick to attack weaknesses in Malaysia’s case. This is not unexpected. It is part of the cut-and-thrust of the adversarial style of advocacy. However, Singapore’s own deliberate dismissal of compelling evidence is not very edifying.

In the event, most of the historical and geographical evidence advanced by Malaysia for the period of the nineteenth century was accepted by the Court. This evidence was, on the whole, both coherent and consistent. The Straits of Singapore - and the islands within it - were not terra nullius. They came under the sovereignty of two identifiable polities: north of the Straits it was the Sultanate of Johor and south of the Straits it was the Sultanate of Riau-Lingga. The understanding of the Court in relation to the cession of Singapore by the Johor Sultanate and its surrounding waters to the British is contained in Para. 116 of the Judgment:

116 ....Were the Court to accept Singapore's argument (see paragraph 109 above) there would have been no legal basis on which Sultan Hussein and the Temenggong of Johor could have ceded the island of Singapore to the East India Company in 1824.

117 In the light of the foregoing, the Court concludes that Malaysia has established to the satisfaction of the Court that as of the time when the British started their preparations for the construction of the lighthouse on Pedra Branca/Pulau Batu Puteh in 1844, this island was under the sovereignty of the Sultan of Johor.

Unfortunately, judging by the account in Koh and Jayakumar's book, Singapore still remains in a state of self-denial.