- 2007/11/14 No evidence to support Pulau Batu Puteh cliam

Singapore has failed to adduce evidence to support its claim that Britain had established title on Pulau Batu Puteh in the years 1847-1851, the International Court of Justice (ICJ) here heard. Malaysia's counsel Sir Elihu Lauterpacht said that although Singapore had repeatedly stated that its conduct after 1851 merely confirmed and maintained a title already acquired, there was no contemporary documentation of any kind which implicitly or explicitly specified that the island was or had become British territory. "One looks in vain for evidence of any official, formal, direct or even indirect assertion of title," he told the 16-member bench. He said that unless by 1851 there really existed British title over Pulau Batu Puteh, there was nothing that could be maintained or confirmed. "Just as we are taught in school the simple arithmetic that when zero is multiplied by any number whatsoever, the result is always zero. So a title that does not exist cannot be confirmed or maintained by any amount of subsequent state action," he said. Singapore, which is claiming sovereignty over Pulau Batu Puteh, Middle Rocks and South Ledge, had argued that it was maintaining and confirming its pre-established title of Pulau Batu Puteh as the British successor and had continuously, exercised State Authority on and in relation to the island. Sir Elihu refuted this claim, saying that overwhelmingly this was practised with regard to the operation of the lighthouse on Pulau Batu Puteh and had nothing to do with sovereignty over the island. He emphasised that the operation of lighthouses was not a basis for sovereignty, citing the Minquiers and Ecrehos case, where the ICJ had decided that lighting and buoying since 1861 could not be considered sufficient evidence of an intention to act as sovereign. They were not seen as acts of such a character that they could be considered as involving a manifestation of state authority. He also cited another case where an arbitral tribunal held that "the operation and maintenance of lighthouses and navigational aids is normally connected to the preservation of safe navigation, and not normally taken as a test of sovereignty". Turning to Middle Rocks and South Ledge, Sir Elihu said that there was also no substance in Singapore's claim for these two marine features because, just like Pulau Batu Puteh, they have always belonged to Johor. On Singapore's contention that it had also carried out non-lighthouse activities, he said that these could either be attributed to the republic's role as the lighthouse administrator or were otherwise unconnected with sovereignty over Pulau Batu Puteh. Sir Elihu submitted that when Britain built and operated the Horsburgh lighthouse on the island, it showed no intention at all of acquiring sovereignty over Pulau Batu Puteh. In light of this, plus the strong British practice in the 19th and 20th centuries of building and administering lighthouses on its key trade routes on the territories of other states, the continued administration today by Singapore of a lighthouse, which formed part of the Straits Lights System, could not be regarded as evidence of its sovereignty over the territory where it is located. Submitting on Singapore's claim that Johor never carried out any competing activities on the island on its own, Sir Elihu said this point was "meaningless verbiage." He pointed out that Pulau Batu Puteh was a very small place, no more than half the area of a football field, and all that area had been taken up by the lighthouse. "Where was Johor to engage in competing activities on the island, what competing activities could there have been on the island. Was it to build a competing lighthouse?" he said. Sir Elihu said that Johor had licensed Britain to construct and operate a lighthouse and after that there was nothing for Johor to do except let Britain get on with the operation of the lighthouse and any related activities. "There was no scope for any competitive Johor activity," he stressed. Describing every stage, phase or element in Singapore's claim to Pulau Batu Puteh as ill-founded, he said that Britain's conduct between 1847 and 1851, on which Singapore relied to found the establishment of title during that period, could not be regarded as effective. "Singapore concedes that it must show an intention of British conduct to have acquired title in that period. But there is no evidence of British conduct that can be interpreted as a manifestation of intention to acquire sovereignty between 1847 and 1851," he said.

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