Lawyers for Singapore liken KL's case to shooting blanks

Legal experts contrast Republic's voluminous proof of ownership to Malaysia's 'scant proof'

The Straits Times, November 8, 2007
By Lydia Lim, Senior Political Correspondent

THE HAGUE (NETHERLANDS) - SINGAPORE spent Day Two of the hearing on the sovereignty of Pedra Branca producing evidence of ownership dating back 160 years and arguing that Malaysia's proof paled by comparison.

Two top international lawyers acting for Singapore yesterday contrasted what they said was the Republic's 'voluminous and definitive' body of proof of ownership with Malaysia's scant evidence.

One of them, Professor Alain Pellet of the University of Paris X-Nanterre, went so far as to describe Malaysia's case as the equivalent of 'shooting blanks'.

Professor Pellet and Queen's Counsel Ian Brownlie were speaking for the Republic before the International Court of Justice (ICJ).

Singapore and Malaysia are appearing before the court, to determine the ownership of Pedra Branca, Middle Rocks and South Ledge located at the eastern entrance of the Singapore Strait. About 900 ships pass through the strait daily, making it one of the busiest in the world.

The 12-day oral hearing, which began on Tuesday, marks the final stage of a long legal battle. The dispute was sparked in 1979, when Malaysia published a map putting Pedra Branca in its territory for the first time, effectively challenging Singapore's sovereignty over it.

Malaysia has argued that it has a historical claim to it, going back to before colonial times.

Prof Pellet opened yesterday's session with a wry presentation in French that continued on the argument begun by Singapore's Chief Justice Chan Sek Keong the day before to debunk this historical claim.

The French lawyer told the court that after years of research, Malaysia had dug up merely a handful of documents.

Only three of these mentioned Pedra Branca by name. Of these, only one hinted at Johor's sovereignty over the islet.

That was a newspaper editorial in the Singapore Free Press. But Prof Pellet pointed out that courts had in the past not accepted such articles as evidence capable of proving facts, only of corroborating them.

Thus, he concluded, on Malaysia's claim to owning Pedra Branca: 'They are content to affirm 'possession immemorial' for which they provide no proof, not even a date of commencement or the beginnings of proof: they invoke no text, no act, no conduct which would establish such a title or allude to it.'

Both counsel also quoted past judgments handed down by the ICJ on sovereignty disputes which they said made clear that what mattered were specific acts relating to the disputed territory - not vague historical claims.

They cited, for example, the Minquiers and Ecrehos case between the United Kingdom and France over sovereignty of some of the Channel Islands.

The court stated that 'what is of decisive importance...is not indirect presumption deduced from events in the Middle Ages, but the evidence which relates directly to...possession'.

Prof Pellet also sought to debunk Malaysia's argument that the British colonial government obtained permission from the Johor leaders to build Horsburgh lighthouse on Pedra Branca.

The only documentary evidence that it provided for this were two 1844 letters from the Temenggong of Johor to the Governor of the Straits Settlements.

Prof Pellet argued that permission was granted for a lighthouse in 'any spot belonging to Johor'. It did not specify Pedra Branca.

The Malaysian argument, he said, once again 'collides' with the insurmountable obstacle of the lack of evidence that Pedra Branca ever belonged to Johor.

It then fell to Mr Brownlie to enumerate methodically numerous acts that the British carried out between 1847 and 1851 to take lawful possession of Pedra Branca.

Singapore's case is that before 1847, the islet was terra nullius, Latin for 'nobody's land'.

Mr Brownlie cited various acts of claim on the island, which included not just the construction and funding of the Horsburgh lighthouse, but also the deployment of naval gunboats to patrol the pirate-prone area during the building process.

So well established was Britain's possession of the island that in 1850, the Dutch authorities referred in an official letter to a new lighthouse 'at Pedra Branca on British territory', he said.

The hearing continues today.