Saturday November 17, 2007

Counsel: Johor’s 1953 response ‘could not confer sovereignty on Singapore’

THE HAGUE: Britain’s activities in relation to the Horsburgh lighthouse and Pulau Batu Puteh after 1851 were purely operational and did not reflect any intention to acquire sovereignty over the island, the International Court of Justice (ICJ) heard here. 

Malaysia’s counsel Sir Elihu Lauterpacht said it was something one would expect from a responsible lighthouse operator. 

He said that Britain had performed a number of activities relating to the operation of the lighthouse like providing maintenance and improvements to the structure, issuing notices to mariners and flying the British Marine Ensign, which Singapore claimed were the “exercise of state functions on Pedra Branca” (Singapore’s name for Pulau Batu Puteh). 

“However, none of them could be properly classified as conduct a titre de souverain (exercise of sovereign powers),” he told the court, which is hearing a sovereignty dispute over Pulau Batu Puteh, Middle Rocks and South Ledge between Malaysia and Singapore. 

Lauterpacht said these acts were specific to the lighthouse and carried out as part of Britain’s role as the operator of the lighthouse and in accordance with its role in the Straits Lights System. 

Singapore claimed that during this period, Britain performed acts on and in relation to Pulau Batu Puteh, which confirmed that the title had already been established by Britain through its activities there during 1847-1851. 

Lauterpacht said that until today, British practice on the construction and administration of lighthouses worldwide never constituted, nor was considered by Britain as amounting to taking lawful possession of territories on which the lighthouses were situated in order to establish sovereignty. 

Lauterpacht said the Sultan and Temenggong of Johor had given permission to Britain in 1844 to build the lighthouse on Pulau Batu Puteh and, as such, what Britain did on the island, like constructing and administering a lighthouse with the permission of local rulers, was completely in line with its practice concerning lighthouses. 

“British concern was with maritime safety and commerce, not with the acquisition of sovereignty.”  

Lauterpacht also submitted on Singapore’s claim that both the republic and Britain had enacted a series of laws relating to Pulau Batu Puteh, including measures to defray the cost of establishing and maintaining the Horsburgh Lighthouse. Singapore argued that such legislation was clearly a sovereign act undertaken “a titre de souverain.” 

He dismissed this argument, stressing that no item of legislation ever referred to Pulau Batu Puteh in isolation and that a majority of the references were to Horsburgh Lighthouse or, if Pulau Batu Puteh was mentioned, it was associated with the lighthouse. 

Lauterpacht also referred to the 1953 letter from then Johor acting state secretary, which Singapore claimed expressed a disclaimer of the Pulau Batu Puteh title. The letter stated the “Johor government does not claim ownership of Pedra Branca.” 

It was in response to an enquiry dated June 12, 1953 made on behalf of the Singapore Colonial Secretary seeking to clarify the status of Pulau Batu Puteh.  

“If Singapore had sovereignty, then the (then) Malayan reply of Sept 21, 1953 has no relevance to the question of title. The letter could not confer on Singapore a sovereignty that it already possessed,” he said. 

He said that if, on the other hand, Singapore did not possess sovereignty over Pulau Batu Puteh in June 1953, then Singapore was effectively treating the September 1953 letter as its root of title. 

This would imply that nothing that Britain or Singapore had done in the preceding century had been effective to reflect or establish title and that it was only the September 1953 reply that effectively created Singapore’s title, he said. 

“If the Johor reply has been intended to be a ‘formal disclaimer’, it is easy to think of the language in which it could have been expressed, but certainly not the short letter from the acting state secretary. The word formal is simply introduced by Singapore to puff up the significance of the letter,” he said. – Bernama  


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