REPORT ONE

The Time is Out of Joint

“The time is out of joint. O cursèd spite,

That ever I was born to set it right!

Nay, come, let’s go together.”

 

Hamlet, Act 1

 Point of Fact

 

The learned Judges in handing down its Judgment delivered as a general principle of law on establishing a fact the following: 

ICJ Judgment Para 45. “It is a general principle of law, confirmed by the jurisprudence of this Court, that a party which advances a point of fact in support of its claim must establish that fact (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 75, para. 204, citing Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101).”

 

Introduction

This Report will examine the point of fact advanced by the Republic of Singapore that on investigating shipping casualties and reporting marine hazards on Pedra Branca and its Territorial Waters, the Republic was exercising sovereign acts.  This point of fact that advanced the Republic’s claim to sovereignty over Pedra Branca and its Territorial Waters is factually incorrect based on evidence that is before the Courts. The point of fact in this Report is not based on new facts previously unknown to the Court and the party making an Appeal for Revision. Rather this Report makes the claim that facts recorded in the “Account of the Horsburgh Lighthouse” by J.T. Thomson, Journal of the Indian Archipelago and Eastern Asia, Volume 6, 1852 (Singapore Memorial, Annex 61) are decisive facts that reverses the claims of the Republic of Singapore had the Republic did its due diligence in presenting its evidence to the learned Judges on shipwrecks and maritime hazards.  Indeed the Republic of Singapore did refer to the J.T. Thomson’s Shipping Casualty List in the context of making the case why a Lighthouse was required at the eastern entrance into the Straits of Singapore.  (See Singapore Memorial, Para 5.31).  The Republic failed the other obvious point of fact in the said list that Straits Settlements authorities at Singapore and Straits Settlements official vessels investigated and reported these shipping incidents and were involved in salvaging operations. Newspapers located at the Settlement of Singapore reported these activities.

The rendering of assistance in shipping casualties; recording of statements; reporting of shipwrecks; salvaging of shipwrecks and the investigation into the cause of shipwrecks was an established practice by Straits authorities "in the proximity of Pedra Branca". These actions were an established practice decades before the Republic of Singapore conjured the device that such acts were legal facts proving sovereignty.  These actions were conducted by the Straits Settlements authorities decades before the Horsburgh Lighthouse was commissioned and started operations on Pedra Branca in 1851.  Singapore in its Pleadings had misled the Court and Report One will establish the facts from written evidence with the Courts but never highlighted by the party that advanced the claim.

In the Republic of Singapore’s Memorial it made several claims and repeated these assertions in its Reply.  Central to its claim is that Pedra Branca had its own Territorial Waters and that the Republic of Singapore and its predecessors-in-title have also exercised sovereign authority over Pedra Branca by investigating and reporting on maritime hazards and shipwrecks within the island’s territorial waters. 

The first case it cited was a collision between a British vessel and a Dutch ship within the Territorial Waters of Pedra Branca.  This event occurred during the period when the Settlement of Singapore was a part of the single entity the Colony of the Straits Settlements (1867-1946) and the proceedings was heard in a Colony of the Straits Settlements Court held in the Port of Singapore.  The second case occurred some 2 scores and 3 years later in November 1963 when a British registered ship MV Woodburn was stranded on a reef adjacent to Pedra Branca.  The incident occurred when the State of Singapore was still a part of the Federation of Malaysia.  The third event was the running aground of a Panamanian vessel in 1979.

The Body of Facts Advanced by the Republic of Singapore   

The following extracts are quotations ad verbatim taken from the Singapore Memorial and Singapore Reply in making the Republic of Singapore’s claim that it exercised sovereign authority by investigating and reporting maritime hazards and shipwrecks within the territorial waters of Pedra Branca.

Singapore Memorial,

6. The Investigation by Singapore of Navigational Hazards and Shipwrecks in the Territorial Waters of Pedra Branca.

 

6.76    “Singapore and her predecessors-in-title have also exercised sovereign authority over Pedra Branca by investigating and reporting on maritime hazards and shipwrecks within the island’s territorial waters”

6.77    “As early as 1920, a Court of Investigation of the Straits Settlement, Port of Singapore, held a formal investigation into the circumstances surrounding a collision between a British vessel and a Dutch ship about 1 ½ and 1 ¾ miles north of Pedra Branca.  The Master of the British vessel was reprimanded by the Court for his actions”

6.78    “On 7 November 1963, a British cargo vessel, the MV Woodburn, became stranded on a submerged reef adjacent to Pedra Branca.  A preliminary inquiry was conducted by the Master Attendant pursuant to Singapore’s Merchant Shipping Ordinance.  On the recommendation of the Master Attendant, Singapore’s Deputy Prime Minister, acting under section 315 of the Singapore Shipping Ordinance, convened a Court of Investigation on 4 December 1963 to examine the circumstances surrounding the incident.  Under section 315, the Minister cannot appoint a Court of Investigation for a ship not registered in Singapore unless the incident either “occurs on or near the coast of [Singapore]” or the Government of the ships registry consents.  No consent was sought from the United Kingdom in this case.  So the decision to appoint a Court of Investigation could only be on the basis that the Minister regarded an accident near Pedra Branca to be an accident on or near the coast of Singapore.  As a result of the investigation, the Certificate of Competency of the MV Woodburn’s Chief Officer was suspended for 12 months.”

6.79    “On 29 November 1979, a Panamanian cargo vessel, the MV Yu Seung Ho, ran aground approximately 600 meters east of Pedra Branca.  Pursuant to section 389 of the Singapore Merchant Shipping Act, the Minister of Communications of Singapore appointed two officers to investigate the matter.  As a result of this inquiry, the Master and Second Officer of the ship were debarred from serving on Singapore ships”.

Singapore Reply

“H.      Singapore’s Investigation of Navigational Hazards, Shipwrecks and Incidents of Accidental Death around Pedra Branca”

4.161  “The next incident taken up by Malaysia’s Counter-Memorial concerns the investigation carried out by a Court of Investigation sitting in Singapore into a collision in 1920 between a British vessel SS Chak Sang and a Dutch vessel SS Ban Foo Soon some 1 ½ miles north of Pedra Branca.  Malaysia contests this example of the exercise of territorial jurisdiction by authorities in Singapore on the grounds that the jurisdictional basis of inquiry had nothing to do with the sovereignty over Pedra Branca”.

4.162  “While the report of the investigation does not state the exact basis on which it was convened, the significance of Singapore’s investigation of an accident occurring so near (i.e. 1 ½ miles) to Pedra Branca is undeniable.  The incident further illustrates that Singapore authorities were diligent in investigating incidents of this kind which took place in Pedra Branca’s waters while Malaysia, and her predecessor Johor, were not”.

4.163  “Similar remarks can be made about another two shipping incidents that occurred in the territorial waters of Pedra Branca.  These involved the stranding of the British vessel MV Woodburn on a reef adjacent to Pedra Branca in 1963, and the running aground of the Panamanian cargo vessel MV Yu Seung Ho off Pedra Branca in 1979.  In both cases the investigation was carried out by Singapore, not Johor.  With respect to the stranding of MV Woodburn, Singapore’s Master Attendant prepared a report in addition to the report issued by the Court of Investigation.  In the latter case, Singapore’ Minister for Communications ruled that two officers of MV Yu Seung Ho would henceforth be unfit for employment on a Singapore vessel.

4.164  “Malaysia’s Counter-Memorial provides no response to Singapore’s arguments concerning the Woodburn incident.   As explained in paragraph 6.78 of Singapore’s Memorial, a provision in section 315 of the Singapore Merchant Shipping Ordinance places express limits on the Minister’s powers to appoint a Court of Investigation to investigate shipping casualties.  The proviso reads as follows:

“Provided that a Court of Investigation shall not be appointed for the purpose of holding a formal investigation into any shipping casualty occurring to a ship not registered in the Colony, unless either the casualty occurs on a near the coast of the Colony or whilst the ship is wholly engaged in the coasting trade of the Colony, or the appointment of the Court is requested or consented to by the Government of that part of the British Commonwealth in which the ship is registered.” [emphasis added]

In other words, in respect of a shipping casualty which does not concern a ship registered in Singapore, a Court of Investigation may be convened only if: (a) the casualty occurs on or near the coast of Singapore; (b) the ship is wholly engaged in the coasting trade of Singapore; or (c) the government of the ship’s registry agrees to jurisdiction being exercised”

4.165  “The Court of Investigation for the Woodburn incident could only have been appointed on the basis that Pedra Branca is Singapore territory.  The Woodburn – a vessel registered in the United Kingdom – was bound for Japan at the time of the incident.  It was thus not “engaged in the coasting trade of the Colony”.  The appointment of the Court of Investigation was not requested or consented to by the Government of the United Kingdom.  Therefore the only basis of jurisdiction was that the incident had occurred “on or near the coast of [Singapore]”.  In this connection, it should be pointed out at this phrase (“on or near the coast”) has been interpreted as not extending to any distance of upwards of 20 miles.  The Woodburn incident occurred less than a mile from Pedra Branca but more than 25 miles from the main island of Singapore.”

 

4.166  “Malaysia does not confront this argument in her Counter-Memorial.  Instead, she seeks to dismiss the Woodburn incident on the grounds that: (a) Singapore was part of the Federation of Malaysia at the relevant time, and (b) Singapore exercised jurisdiction because the expression “shipping casualty” in the Singapore Merchant Shipping Ordinance was defined so widely that “jurisdiction can be exercised in a wide range of cases”.  Neither argument is correct or relevant.

4.167  First, the fact that Singapore was (at the time) part of the Federation of  Malaysia does not detract from the fact that the incident was investigated by Singapore and not by Johor.  The only reasonable explanation is that, even when Singapore was part of the Federation, Malaysia regarded Pedra Branca as part of the territory of Singapore and not Johor.  Secondly, the fact that “shipping casualty” was widely defined in the Singapore Merchant Shipping Ordinance does not detract from the fact that not all “shipping casualties” were subject to the jurisdiction of a Court of Investigation.  The real issue is not whether Woodburn was or was not a “shipping casualty”, but whether Woodburn was a shipping casualty coming within the limited class set out in the proviso to Section 315 (1) of the Merchant Shipping Ordinance.  In short, jurisdiction was exercised because a shipping casualty had occurred “on or near the coast of [Singapore]”.  In failing to address the relevant legal point, Malaysia has implicitly accepted that there is no rebuttal to Singapore’s arguments.”

4.168  “With respect to the incident involving the MV Yu Seung Ho, surprisingly, Malaysia’s Counter-Memorial criticises Singapore for only providing three documents involving the MV Yu Seung Ho and for not making it clear whether the vessel involved was a Singapore-registered vessel or whether there was any other connection to Singapore.  Malaysia’s Counter-Memorial then asserts that, “the information provided by Singapore is so sketchy and so lacking in precision that it should be disregarded”.

4.169  “Malaysia’s complaints are as surprising as they are misplaced.  As Singapore’s Memorial clearly shows, the MV Yu Seung Ho was a Panamanian registered vessel with no particular connection to Singapore.  To supplement the file on this matter, Singapore is producing in Annex 52 of this Reply a copy of the Investigation Report which her authorities prepared in connection with the incident.  This Report also confirms that the vessel was Panamanian and none of the crew were of Singaporean nationality.  The significance of any “connection” to Singapore lies in the fact that Singapore fully investigated the vessel’s grounding, which took place near Pedra Branca, and subsequently issued orders that the senior officers on the vessel be prohibited from serving on Singapore-registered ships due to their irresponsible conduct.

4.170  “These examples attest to Singapore’s continued vigilance over accidents occurring in Pedra Branca’s territorial waters and her assumption of jurisdiction to investigate such incidents.  Malaysia may now try to question the jurisdictional basis for Singapore’s action, but she cannot avoid the fact that Singapore consistently took responsibility for these kinds of incidents occurring around Pedra Branca while Malaysia did not.”

4.171  “Singapore’s Memorial also referred to five more examples of cases where Singapore exercised exclusive jurisdiction for investigating shipping accidents in the vicinity of Pedra Branca and disciplining where necessary, members of the crew.  Malaysia elects not to discuss these events other than to say that they post-date the critical date and that they do not constitute continuity of pre-critical date conduct.  Malaysia adds that each of the incidents had some connection to Singapore.”

4.172  “These explanations do not help Malaysia, given the pre-1979 examples that Singapore had cited where she exercised the same State authority.  After 1979, Singapore simply continued her practise of investigating all accidents taking place within Pedra Branca’s territorial waters that came to her attention.  The fact that each of the incidents took place in Pedra Branca’s waters was precisely the essential link to Singapore”.

The Judgment

 

The Court assessed the facts as presented by both parties and favoured the facts advanced by the Republic of Singapore on the legal significance of investigating of shipping incidents and reporting on maritime hazards.  The shipping incidents from 1851 until 1980 were 3 shipping casualties in the territorial waters of Pedra Branca.  The first in 1920; the second in 1963 and the third in 1979.   These cases were those highlighted by the Republic of Singapore in making its claim and the Court in its Judgment exclusively on these 3 shipping incidents converted these facts as sovereign acts.  The Court never for a moment considered that in the 100 over years period since 1851 the Court of Enquiry in the Port of Singapore had ever investigated shipping incidents outside of Pedra Branca and its territorial waters under the same Straits Settlements Merchant Shipping Ordinance which were all officially Gazetted in the Straits Settlements Gazettes for the period and is available to any Malaysian and Singaporean schoolboy of a future generation.

Judgment Para 231.  “Singapore contends that it and its predecessors have exercised sovereign authority over Pedra Branca/Pulau Batu Puteh by investigating and reporting on maritime hazards and shipwrecks within the island’s territorial waters.”

Judgment Para 233.  “The first investigation to which Singapore refers was into a collision within 2 miles of the island in 1920 between British and Dutch vessels.  The report of the investigation does not identify the jurisdictional basis on which it was undertaken.  Of some significance for the Court is that the enquiry was undertaken by Singapore and not Johor.  The next investigation Singapore invokes was into the grounding of a British vessel [MV Woodburn] on a reef adjacent to the island in 1963, when it will be recalled, Singapore was part of the Federation of Malaysia. ……..While the points of Singapore law may be subject to dispute, again the Court would note that it was the authorities in Singapore, rather than those in Johore, that undertook the investigation.  The last marine casualty occurring before 1980 and investigated by Singapore was the running aground of a Panamanian vessel off the island in 1979.  The Court considers that this enquiry in particular assists Singapore’s contention that it was acting a titre de souverain.  This conduct, supported to some extent by that of 1920 and 1963, provides a proper basis for the Court also to have to the enquiries into the grounding of five vessels (three of foreign registry) between 1985 and 1993, all of which 1,000 m of the island.”

234.  “The Court accordingly concludes that this conduct gives significant support to the Singapore case.”  

Old yet Decisive Facts Never Considered

The Republic of Singapore submitted that the construction and commissioning of the Horsburgh Lighthouse from 1847 – 1851 were sovereign acts. This construction of the Republic’s claim will be examined in another Report.  In advancing that claim the Republic Annexed the Account of J.T. Thomson that was published in the Journal of the Indian Archipelago and Eastern Asia, Volume 6, 1852 and drew the Court’s attention to such activities as the Republic wanted the Court to consider and nothing else.  However, in J.T. Thomson’s Account he researched the local newspapers of the Settlement of Singapore, that of the Singapore Free Press and Straits Times and provided a detailed “List of Casualties to Vessels in the Proximity of Pedra Branca”.  The List showed decisively that the authorities in Singapore long before the Horsburgh Lighthouse was constructed and commissioned between 1847–1851, were investigating, salvaging, marking and reporting shipping incidents in the Territorial Waters of the State and Territories of Johore, including its off-shore islands such as Pedra Branca and that of the neighbouring Dutch Province of Rhio-Lingga.  

The Court in its Judgment considered shipping incidents in the Territorial Waters of Pedra Branca clearly outside the agreed cut off point in 1980 (See Court Judgment Para 233) as the Republic pointed out that it was acting as was in past practises.  The Court was persuaded.  But the Republic failed to point out to the Court based on evidence in front of the Court that even before the construction of the Lighthouse was considered the authorities in Singapore were already investigating shipping casualties in the Straits of Singapore without consideration of territoriality as the basis of its actions. 

 

 

 

 

The Thomson's List of Casualties for the period 1824-1846 cited Sixteen cases of which only Three (June 1830, October 1836 and September 1842) actually struck Pedra Branca or on rocks near Pedra Branca and one case (October 1836) was reported by noting bales of cotton were seen floating near Pedra Branca. These Four reported cases of shipwrecks on Pedra Branca and rocks around it occurred in the period prior to 1847 when the Republic of Singapore did not “take possession of Pedra Branca”.  Sovereignty over Pedra Branca as the Court ruled was with the State and Territory of Johore prior to 1846.

The rest of Eleven cases on that list, for the period 1825-1846, were all outside the defined 2nd August 1824 Territorial Waters of the Settlement of Singapore. There were Eight cases reported of vessels running into rocks off North-East Bintang Island

which are islands and other maritime features located "South of the Straits of Singapore" as defined by the Anglo-Dutch Treaty of 17^th March 1824 in the Dutch Province of Rhio-Lingga and Three cases occurring around Point Romania, Romania Islands and Romania Shoal, all maritime  features well north of the Straits of Singapore and within Johor Territories.

 

CONCLUSION

A detailed examination of these incidents from Newspapers and Gazettes will show that Straits Settlements authorities from the Settlement of Singapore investigated these incidents in the State and Territories of Johore and that of the Rhio-Lingga Sultanate under the Dutch sphere of influence; reported the shipping causalities; provided salvage assistance and even heard cases in the Straits Settlements Courts in the Settlement of Singapore.  The names of Government vessels coming out from the Port of Singapore to investigate; salvage and report on shipping incidents include H. C. Steamer Diana; and government officers include J.T. Thomson.

The legal argument presented by the Republic of Singapore with only partial selection of factual incidents that the Settlement of  Singapore investigated; reported and heard shipping casualties cases because these cases were on Pedra Branca and its Territorial Waters flounders on solid rock evidence that were never revealed to the Court.