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Counter-Memorial of Malaysia

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Counter-Memorial of Malaysia INTERNATIONAL COURT OF JUSTICE CASE CONCERNING SOVEREIGNTY OVER PEDRA BRANCA/PULAU BATU PUTEH, MIDDLE ROCKS AND SOUTH LEDGE MALAYSIA/SINGAPORE COUNTER-MEMORIAL OF MALAYSIA VOLUME2 Reports and Affidavits 25 JANUARY 2005 INTERNATIONAL COURT OF JUSTICE CASE CONCERNING SOVEREIGNTY OVER PEDRA BRANCA/PULAU BATU PUTEH, MIDDLE ROCKS AND SOUTH LEDGE MALAYSIA/SINGAPORE COUNTER-MEMORIAL OF MALAYSIA VOLUME2 Reports and Affidavits 25 JANUARY 2005 LIST OF ANNEXES VOLUME2 Reports and Affidavits Annex Number Title of Report or Affidavit (MCM) 1. Conduct Forming Part of the Normal Administrative Responsibilities of a Lighthouse Operator and Singapore's Claims in Respect of the Horsburgh Lighthouse and Pu/au Batu Puteh, Report by Captain Duncan Glass and Mr David Brewer 2. The History and Working of the Middle East Navigation Aids Service ("MENAS") and Related Issues, Report by Commander Peter John Christmas, Royal Navy (Retired) 3. Note on Lighthouses and Their Functions, by Rear-Admiral (retired) Jean-Charles Leclair 4. Affidavit of Rear Admiral (Rtd) Dato' Karalasingam Thanabalasingam 5. Affidavit ofldris Bin Yusof 6. Affidavit of Saban Bin Ahmad ANNEX MCM 1 Conduct Forming Part of the Normal Administrative Responsibilities of a Lighthouse Operator and Singapore's Claims in Respect of the Horsburgh Lighthouse and Pu/au Batu Puteh, Report by Captain Duncan Glass and Mr David Brewer Conduct Forming Part of the Normal Administrative Responsibilities of a Lighthouse Operator and Singapore's Claims in Respect of the Horsburgh Lighthouse and Pulau Batu Puteh Report by Captain Duncan Glass and Mr David Brewer I. Introduction 1. This Report has been prepared by the undersigned, Captain Duncan Glass and Mr David Brewer, in response to a request by the Government of Malaysia for an assessment, by persons experienced in the operation and management of lighthouses, of the various elements of conduct advanced by Singapore in support of its claim to sovereignty over Pulau Batu Puteh. The authors are respectively the Director of Navigational Requirements and the former Director of Administration of the Corporation of Trinity House in London. Further details of our respective backgrounds and expertise are given below and in the summary curricula vitae attached as Annexes 1 and 2 to this Report. We understand that this Report will be submitted as part of the Counter-Memorial of Malaysia to be filed with the International Court of Justice in the pending proceedings concerning sovereignty over Pulau Batu Puteh, Middle Rocks and South Ledge. This Report is prepared in our personal capacities and does not engage the responsibility of Trinity House or any other organisation or body. 2. For purposes of the preparation of this Report, we have reviewed the Memorials of the Governments of Malaysia and Singapore, together with relevant annexes, submitted to the International Court of Justice. Our attention was directed in particular to Chapter VI of Singapore's Memorial and the conduct described therein. 3. Following some background information on Trinity House, its work and the wider international context relevant to its activities, we address in general terms a number of elements relating to the construction, operation and management of lighthouses which are relevant to an assessment of the specific conduct advanced by Singapore. We thereafter turn to comment directly on each of the items of conduct to which Singapore refers. As will be apparent from the review and discussion that follows, we are of the opinion that the vast bulk of the practice referred to by Singapore is conduct that forms part of the normal administrative responsibilities of a lighthouse operator. This assessment is made from our perspective as professionals in the field of the provision of aids to navigation and lighthouse management. We make no comment on any other aspect of the dispute between Malaysia and Singapore or on any legal issue. 4. Our qualifications and experience are as follows: (a) Captain Duncan Glass. I am the Director of Navigational Requirements at Trinity House. The Director of Navigational Requirements is responsible for core aspects of the Corporation's work in fulfilment of its statutory responsibility to provide, operate and maintain aids to navigation around the coasts of England, Wales, the Channel Islands and Gibraltar. In this capacity, I chair the Trinity House Examiners' Committee, which prescribes the level of service of visual, radar, radio and electronic aids to navigation. I am also chairman of the International Association of Marine Aids to Navigation and Lighthouse Authorities ("IALA") Aids to Navigation Management Committee and a member of its Automatic Identification System ("AJS'') Committee. Other elements of my background and experience are described in the curriculum vitae at Annex 1 hereto. (b) Mr David Brewer. I stepped down as the Director of Administration at Trinity House in July 2004 after 27 years at the Corporation. The Director of Administration is responsible for all aspects of the Corporation's work in the fields of estate management, human resources, legal and public affairs, risk management and communications. In this capacity, I advised various United Kingdom Government departments and agencies, and the three General Lighthouse Authorities responsible for the provision and maintenance of aids to navigation in United Kingdom and Republic of Ireland waters (Trinity House, the Northern Lighthouse Board, and the Commissioners of Irish Lights), on a range of lighthouse service related matters. I was also engaged in and responsible for various aspects of the Corporation's participation in the work of other national and international bodies, including IALA. Other elements of my background and experience are described in the curriculum vitae at Annex 2 hereto. II. Trinity House 5. The Corporation of Trinity House was constituted under a Royal Charter granted by Henry VIII in 1514. Throughout its long and distinguished history, the Corporation's prime objective has been the safety of shipping and the welfare of seafarers. Today, the Corporation has three functions: • under Part VIII of the Merchant Shipping Act 1995 (previously 1894 and 1854), it is the General Lighthouse Authority for England, Wales, the Channel Islands and Gibraltar, providing aids to general navigation. These include 72 lighthouses, 11 major floating aids, over 400 buoys, 48 radar beacons, and 7 differential Global Positioning System ("GPS") stations. It is also responsible for wreck marking and dispersal in coastal waters under Part IX of the 1995 Act; • under the UK Charities Act, it is a charitable organisation for the safety, welfare and training of mariners and relief of those in financial distress; and • it is a statutory Deep Sea Pilotage Authority under regulations brought into force under the Pilotage Act 1987. 6. Trinity House is responsible for marking some of the busiest shipping lanes in the world, such as the Traffic Separation Scheme in the Dover Strait, and provides contractual services - including the maintenance of aids to navigation for third parties, the provision of hydrographic surveys and maintenance of data buoys - under powers granted in the Merchant Shipping 1995 Act to exploit spare capacity in its assets. 2 7. The Corporation is overseen by a Court of Elder Brethren. Two separate Boards have delegated power to manage, respectively, the Lighthouse Service (known as the Trinity House Lighthouse Service), and the Corporation.'s charitable and Deep Sea Pilotage activities. III. The International Dimension 8. Pursuant to the terms of Regulation 13 of Chapter V of the International Maritime Organisation's ("IMO") International Convention on the Safety of Life at Sea, 1974, as amended ("SOLAS"), each Contracting Government undertakes "to provide, as it deems practical and necessary either individually or in co­ operation with other Contracting Governments, such aids to navigation as the volume of traffic justifies and the degree of risk requires." The wording of Regulation 13 on the provision of marine aids to navigation is deliberately broad, avoiding issues concerning the ownership of property and territorial rights. 9. Trinity House is one of the four founder members of IALA. IALA is a non­ government, non-profit-making technical association that provides a framework for aids to navigation ("AtoN") authorities, manufacturers and consultants with the aim of fostering the safe, economic and efficient movement of vessels for the benefit of the maritime community and protection of the environment. 10. The IALA Aids to Navigation Guide (generally known as the NavGuide; the 41" edition of which was published in December 2001) contains detailed guidance on the provision and maintenance of aids to navigation and the agreed standards of availability and reliability to be achieved by lighthouse authorities. IV. General Observations on Elements Relating to the Construction, Operation and Management of Lighthouses (1) The changing character of lighthouse administration 11. The vast majority of lighthouses throughout the world have now been automated and the lighthouse keepers withdrawn. This was probably the single largest change in the administration and operation of lighthouses in the twentieth century and was driven both by advances in technology and the pressure for substantial economies. The description of the Horsburgh Lighthouse in Lighthouses of the World mentions that the lighthouse's operation was automated in 1988 using solar power. In our view, such
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