New Facts for Revision Application

2015

Let me thank all the readers of this blogspot for reading the on-going research work and giving us the encouragement to pursue the search for new evidence that could reveal the truth as to whether the Republic of Singapore or the State and Territory of Johore that possess sovereignty over Pedra Branca/Pulau Batu Puteh and its Territorial Waters in the Straits of Singapore.  Some years have gone since the 2008 International Court of Justice’s Judgment awarded Pedra Branca/Pulau Batu Puteh to the Republic of Singapore.  Research has continued and we are now in a position to place on record the recent findings.  Do continue to give us your feedback as your views are the source of our strength and inspiration.  Thank you. 

“Contrariwise,” continued Tweedledee, “if it was so, it might be; 
and if it were so, it would be; but as it isn’t, it ain’t.  That’s logic”

 Alice’s Adventures in Wonderland &Through the Looking-Glass 

 

Application for Revision of the Judgment of 23 May 2008 - Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)       

Introduction

On 23^rd May 2008 the International Court of Justice (ICJ) delivered its Judgement regarding the case between Malaysia and Singapore on the Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge.  The ICJ awarded the sovereignty over Pedra Branca to Singapore by a Judgement of 12 votes in favour; 4 votes dissenting.  On the sovereignty of South Ledge the ICJ favoured Malaysia by a decision of 15 votes in favour and One vote against.  That of Middle Rocks were left to the two parties to decide within whose Territorial Waters (Pedra Branca or South Ledge) to which it belonged.  The decision on Middle Rocks was 15 votes for and One against. The matter is still in negotiation between the two parties. 

The Statutes of the ICJ are clear that the Judgments of the Court are final and without appeal.  However, its Statute does recognize that within a ten year period after delivery of Judgment any one of the Party involved has a right to make an application for its revision. These provisions are provided in accordance with Article 61 of the International Court of Justice’s Statute and Articles 99 and 100 of the Rules of Court.  This means that Malaysia has until 23^rd May 2018 to apply for a revision of the Court’s Judgment and time is crucial.  In its Statues and Rules the Court is clear that it will not be persuaded by legal arguments no matter how lofty it is.  It will be more inclined to be impressed by the discovery of some evidence that, at the time the Judgment was given, was unknown to the Court and to the Party claiming revision, provided the unknown fact would be decisive factor therein.  It is research and documents based on research that will be the bed-rock for the application for revision.

In the search for evidence that was unknown to the Court at the time when Judgment was delivered we return to the Judgment itself.   Judge Dugard in his Dissenting Opinion pointed out that in its Decision to Award sovereignty over Pedra Branca/Pulau Batu Puteh to Singapore the Court held that “[i] the light of Johor’s reply [1953], the authorities in Singapore had no reason to doubt that the United Kingdom had sovereignty over the island”.  (See Judgement, para 223 and para 230).  Simply stated it meant that the Settlement of Singapore during the period when it was part of the Colony of the Straits Settlements (1867-1946); the Colony of Singapore (1946-1959); the State of Singapore (1959-1963) and the Republic of Singapore, (1965 -  )  who were the authorities in Singapore in each of the unfolding periods knew that all along that the United Kingdom had sovereignty over Pedra Branca/Pulau Batu Puteh.

The new research evidence, hitherto not opened to the public, presented below will establish that  the United Kingdom did know for certain that Pedra Branca/Pulau Batu Puteh was within Johore’s sovereignty and therefore Malaysia.  Not only did the United Kingdom knew that Pedra Branca/Pulau Batu Puteh was part of the State and Territory of Johore in the Straits of Singapore, the newly revealed facts will also establish that the Governor of the Colony of the Straits Settlements and later the Governor of the Colony of Singapore did not register any Singapore claim on sovereignty over Pedra Branca/Pulau Batuh Puteh  when it set out to demarcate the Territorial Waters of the Settlement of Singapore from that of the State and Territory of Johore in the Straits of Singapore.  In addition, the new evidence will also establish that the Law Commission, an agency set up under the auspices of the United Nations, and the Secretary-General of the United Nations knew that in the Straits of Singapore there was only one Agreement between the Colony of the Straits Settlements and the State and Territory of Johore that demarcated the Territorial Waters of the Settlement of Singapore from that of the Territorial Waters of the State and Territory of Johore. Finally, the newly disclosed evidence will reveal that the Singapore authorities knew that Pedra branca/Pulau Batu Puteh and its Territorial Waters are part of the State and Territory of Johore and expressed this fact in its records.  

The Evidence

In 2013 the National Archives, UK under its series Migrated Files released three files for the years 1907, 1927 and 1958 respectively that revealed the territorial limits of the Settlement of Singapore in the Straits of Singapore and that of the State and Territory of Johore that is contiguous to the Straits of Singapore. 

Collectively the evidence from these files make a compelling case that Britain knew the Territorial Waters of the Settlement of Singapore and it did not include the Island Rock Pedra Branca/Pulau Batu Puteh some forty miles eastwards from the Main Island of Singapore in the Straits of Singapore.  These new evidence were unknown to the ICJ as the Malaysian pleadings did not have access to these files which were either newly released or hidden within unrelated files held by the National Archives, UK.

Without the above mentioned details the ICJ in its 2008 Judgment recorded that Singapore authorities knew during the periods of the Colony of the Straits Settlements (1867-1946); the Colony of Singapore (1946-1959); the State of Singapore (1959-1963) and the Republic of Singapore, (1965-) that Britain had the evidence that UK/Singapore had sovereignty over Pedra Branca/Pulau Batu Puteh.  The newly released files flies against the assumptions that led to the final Judgment of the ICJ. 

In the newly released 1907 file the Governor of Colony of the Straits Settlements, Sir John Anderson, confirmed that the Settlement of Singapore had no territories in the Straits of Singapore beyond 10 geographical miles from the Main Island of Singapore. (Draft, John Anderson to Lord Elgin, Secretary of State for the Colonies, 22 January 1907) Outside this limit in the Straits of Singapore were Islands and the Territorial Waters of the State and Territory of Johore. The Settlement of Singapore did not possess property and sovereignty in the Straits of Singapore outside the ten miles from the Main island of Singapore.  The Governor of the Colony of the Straits Settlements was careful in pointing out that the Sultan of Johore did possess property but not sovereignty in the Settlement of Singapore over the Island of Pulau Tekong Ketchil in the Johore Straits which was part of the larger Straits of Singapore. In raising the issue of Territorial Waters of the Settlement of Singapore, the Governor of the Colony of the Straits Settlements (1867-1946), acknowledged that the territorial waters of the Settlement of Singapore was limited to 10 miles from the Main Island of Singapore as expressed in Article 2 of the 2^nd August 1824 Treaty.  There was no mention that Pedra Branca, in the Straits of Singapore, on which the Colony of the Straits Settlements operated one of several Lighthouses in the Straits of Singapore and the Straits of Malacca was an Island regarded by the Governor of the Colony of the Straits Settlements as a sovereign appendage to the Settlement of Singapore.  This new evidence of 1907 establishes that the United Kingdom and the Singapore authorities knew the territorial limits of the Settlement of Singapore in the Straits of Singapore within which it had full property and sovereign rights.

The second file released in 2013 is the original 1927 Agreement between the Colony of the Straits Settlements and the State and Territory of Johore. In its catalogue description the file is registered as an “Agreement concerning the boundary between the territorial waters of Singapore and Johore” It is the catalogue description of this new evidence that is most revealing on the intention of the 1927 Agreement which was to demarcate the Territorial Waters of Singapore and Johore.  There was no Territorial Waters to demarcate between Pedra Branca/Pulau Batu Puteh in the Straits of Singapore and that of Mainland Johore and this fact was recognised by UK Parliament which ratified the Agreement in 1928 and the authorities in Singapore.

The third document is actually an archival file that was opened to the public prior to the 2008 Judgment.  However, the case must be made that the evidence in the file is decisive to the Application for Revision of Judgment.  The Title of the File in the UK Archives is very misleading.  It reads “Tidelands Oil” and U.S. Territorial Waters. It had nothing to do with the subject of the Judgment. However, within this innocuous file title there are relevant unknown factual material evidence to the Application for Revision. 

In 1953 the Foreign Office, UK replied to a letter of the Secretary-General of the United Nations on the subject “Delimitation of Territorial Sea of Adjacent States” which requested the assistance of the UK authorities to the request of the International Law Commission on Territorial Waters on UK practise and any observations they may wish to make.  The 1953 reply of the UK authorities to the Secretary-General of the United Nations is as follows:

“5. So far as information on the practice of States in regard to this matter is concerned, Her Majesty’s Government can add to the examples already referred to in the discussions of the Commission one of which the Commission may not yet be aware, namely, the Straits Settlements and Johore Territorial Waters (Agreement) Act, 1928. (footnote 6.  18 and 19 Geo. 5 c. 23)”.  This information was advanced as evidence to demonstrate how two states demarcated their Territorial Waters in the Straits of Singapore.

From the evidence of this particular file it is clear that in 1953 the Foreign Office of UK took the position that the Territorial Waters between adjacent counties, in this case the Settlement of Singapore within the Colony of the Straits Settlements, 1928 and now in 1953, Colony of Singapore, and the State and Territory of Johore was settled by the 1927 Agreement and ratified by UK Parliament in 1928.  UK authorities knew that in 1927 and 1928 and in 1953 that Pedra Branca/Pulau Batu Puteh in the Straits of Singapore was not a sovereign entity as part of the Settlement/Colony of Singapore.

The final piece of evidence that is decisive in the Application for Revision of Judgment is yet another 2013 released file in the UK Archives.  The file makes three important new facts hitherto unknown.

    

First, it lists all Indonesian patrol vessel intrusions into Singapore Territorial Waters in the Straits of Singapore which were raised with Indonesian authorities by the Government of the Colony of Singapore.  The incidents listed covered the period 1955 to 1958. The cases included incidents near Mata Ikan, Raffles Lighthouse and Pulau Senang.  There is no mention of Horsburgh Lighthouse and Pedra Branca/Pulau Batu Puteh in the list of intrusions into Singapore Territorial Waters.

Second, this file reveals another crucial piece of evidence where there was mention of an incident around the Territorial Waters of Pedra Branca/Pulau Batu Puteh and in its official correspondence the local authorities of Singapore mentioned that this incident occurred within the territorial waters of Johore which was also reported in the local press.  The incident was never recorded in the List of Intrusions into the Territorial Waters of Singapore.  This is a decisive fact.

The Third new fact was the observation of Singapore authorities to the suggested Extension of territorial waters to 6 miles in the Straits of Singapore would not be in Singapore’s interests for the following reasons:

(a)  The approaches to Singapore are through the channels between the Indonesian Islands on the south and the mainland of the Federation of Malaya [The State and Territory of Johore] on the north.  These channels are only 8 ½ miles wide at their narrowest parts on both the western and eastern side.  The effect of extending territorial waters to 6 miles therefore be to close the high seas channels of approach to Singapore.

(b) 2.  It is therefore important to Singapore that the present 3 mile limits of territorial waters should be retained.  However, if it is necessary in the last resort to agree to a general application of six mile limits, not only must the right of innocent passage through the International Straits so created be reaffirmed, but a special provision should be made for an international high seas corridor one mile wide through the straits between Singapore and Malayan territory on the north and Indonesian territory on the south.  This corridor should follow the normal shipping channel from west to east which is approximately as follows.  From a point 3 miles north of the Brothers light to a point 3 miles south of Sultan Shoal Light to a point 2 miles south of Raffles Light to a point midway between the southern point of St Johns Islands and Batu Berhenti Light to a point 1 mile north of Horsburgh Light.”

It is obvious that had the Colony of Singapore sovereignty over Pedra Branca/Pulau Batu Puteh the issue of closing the entrance into the Straits of Singapore from the High Seas of the South China Sea or the exit from the Straits of Singapore into the South China Sea would never had been raised in 1958.

Conclusion

The above mentioned new evidences satisfies all the conditions of the Statute of the ICJ in making an Application for Revision of Judgment.  The Application for Revision should it be carried forward is within the ten year period since the date of Judgment in 2008.  All the evidence, save one, were only made recently available in the National Archives, UK.  And each of the mentioned files reveals evidence that is decisive that UK authorities knew that in Singapore’s unfolding historical periods it never made a claim to have sovereignty over Pedra Branca/Pulau Batu Puteh.  The 1907 file; the 1927 file; the 1953 file and the 1958 file all make a compelling case that sovereignty over Pedra Branca/Pulau Batu Puteh was with the State and Territory of Johore and this fact was known to the authorities in the UK, Singapore, Law Commission for Territorial Waters and the Secretary General, United Nations.

It is the Republic of Singapore that aggressively pushed a contemporary legal proposition that it had sovereignty over Pedra Branca/Pulau Batu Puteh.  In the 1970’s the Republic of Singapore tabled several unchallenged facts in establishing that it had sovereignty over Pedra Branca/Pulau Batu Puteh.  It refused permission for a landing of a Malaysian survey team to land on Pedra Branca/Pulau Batu Puteh.  It provided evidence that its naval patrol vessels were patrolling in the Territorial Waters of Pedra Branca/Pulau Batu Puteh unchallenged.  It showed a file that its Military Helicopters carried Military equipment onto Pedra Branca/Putau Batu Puteh unchallenged and that its Admiralty Court heard of a shipwreck case in the vicinity of Pedra Branca/Pulau Batu Puteh.  Based on these unchallenged facts the Republic of Singapore in its pleadings set out to establish its contemporary assertions backwards into the historical records.  Much evidence was not disclosed from its records to make its historical case.  New and decisive evidence recently opened by the National Archives, UK makes a compelling case for an application for the revision of judgment as it substantially alters the judgment assumptions.

The earliest evidence it had was the 1920 Shipwreck that was heard in the Admiralty Court of the Colony of the Straits Settlements in the Settlement of Singapore.  The cases of all Admiralty Court hearings under the Merchant Shipping Ordinance in the Settlement of Singapore; Colony of Singapore and State of Singapore are officially published in Singapore. In these Admiralty Court hearings sovereignty was not the cardinal principle of hearing a shipping incident case in Singapore.  In 1907 and 1927 UK and Singapore authorities knew that Singapore’s sovereignty did not extend over Pedra Branca/Pulau Batu Puteh and the Admiralty Court would not have made a case in its official records that it heard the 1923 Shipwreck incident on Pedra Branca/Pulau Batu Puteh on grounds that the Colony of the Straits Settlements had sovereignty over Pedra Branca/Pulau Batu Puteh.  It is the contemporary Republic of Singapore that made that bold and unchallenged assertion in its pleadings. 

Similarly the 1953 letter of the Acting State Secretary, Johore did not change the situation of sovereignty over Pedra Brance/Pulau Batu Puteh.  The file was never translated into an active taking over of the sovereignty of Pedra Branca/Pulau Batu Puteh by the Colony of Singapore.  Indeed, the UK authorities in 1953 informed the Law Commission for Territorial Waters and the Secretary-General, United Nations that there was only one Agreement that demarcated the Territorial Waters between Adjacent Countries in the Straits of Singapore.

In the 1958 newly disclosed file all intrusions by Indonesian Patrol Vessels, 1955-1958, were recorded that occurred within the Territorial Waters of the Colony of Singapore.  There was one intrusion in the vicinity of Pedra Branca/Pulau Batu Puteh and Singapore authorities acknowledged it as one occurring within Johore’s Territorial Waters.  Its newspapers too confirmed the official view.

From newly released documents, sovereignty over Pedra Branca/Pulau Batu Puteh was never with the unfolding entity that started with the Settlement of Singapore within the Colony of the Straits Settlements; down to the Colony of Singapore; State of Singapore and finally the Republic of Singapore.  Sovereignty over Pedra Branca/Batu Puteh and its Territorial Waters was and is with the State and Territory of Johore and the Singapore evidence that is out of joint must be contextually reconstructed with the new evidence to restore decisively its historical continuity.

Shaharil Talib

24^th March 2015

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.