This electronic version of Malaysia's Pleadings is provided as a courtesy. The printed version of Malaysia's Pleadings submitted to the International Court of Justice (ICJ) shall remain as the authentic version. Copyright O Government of Malaysia. All rights reserved. Information or data contained herein shall not be reproduced without the written permission of the Government of Malaysia. TABLE OF CONTENTS Chapter 1 htrodactiort A. Points of agreement and disagreement B. The role of egectivit4s and the critical date C. The smcture of this Counter-Mdal PART L 'FEE 'ITI'LES INVOKED BY THE PARTIES Chapter 2 Malaysia's Original Title Introduction A. Pulau Batu Puteh was not terra aullius B. The British taking of possession of Singapore and Labuan confirms that islands within 10 geographical miles from the coast were not tma nullius C. For Singapore, history starts in 1819 D. The 1824 Anglo-Dutch Treaty confirmed Johor's title E. Continued sovereignfy of Johor over Pulau Batu Puteh was not affected by the Crawfhd Treaty F. Pulau Batu Puteh was never a dependency of Singapore G. Conclusions Chapter 3 Singapore's Purported '(Taking of Possession9' A, The original title alleged by Singapore B. Britain never "took possession" of Pulau Batu Puteh C. There was no intention to acquire sovereignly D. Lighthouse activities and the British practice of taking of possession E. Acts invoked by Singapore are not relevant for a taking of possession (i) The process of selection of Pulau Batu Puteh as the site for Horsburgh Lighthouse (ii) The alleged '%king of possession" of Pulau Batu Puteh in 1847 or subsequently (iii) Activity of gunboats and "control of public order in the region" (iv) Visits of British officials are not evidence of sovereignty over the island (v) Other activity during the process of construction of the lighthouse 125-128 (vi) The display of a flag 129-133 (vii) The "lack of opposition" fiom other Powers 134 F. Singapore's Memorial provides merevidence that the Johor permission included Pulau Batu Puteh 135-141 G. Conclusion 142 Chapter 4 The Three Features do not form one Island Group 143-164 In&oduction 143 A. Can Pulau Batu Puteh, Middle Rocks and South Ledge be identified as one island group? 144-154 B. hIiddle Rocks and South Ledge have always been part of Johor 155-162 C. Conclusions 163-164 PART IL THE SUBSEQUENT CONDUCT OF THE PARTIES Chapter 5 The Subsequent Conduct of the Parties: An Overview 165-200 Introduction 165-174 A. The scope of Part II and smaryof conclusions 175-179 B. General and preliminary observations 180-200 (i) Singapore's case based on the importance of Horsburgh Lighthouse 181-194 (E) The legal framework mu questions of evidence 195-198 (iii) Evidence adduced by Malaysia in support of the claims in this Part 199-200 Chapter 6 The Law and Practice Concerning Lighthouses 201-297 Introduction 201-204 k Imperial interest in the co~ctionand administration of lighthouses 205-212 B. The construction and administration of lighthouses by authorities other than of the territorial State 213-237 (i) State practice 213-220 (ii) The Middle East Navigation Aids Service (MENAS) 22 1-227 (iii) The character of lighthouse administmtion: legal evaluations 228-237 C. Common usage and practice in the administration of lighthouses (i) The international legal framework (ii) Usage and practice in lighthouse administration (a) Conduct required in consequence of the responsibility to provide an .aid to navigation (b) Other conduct associated with the provision of an aid to navigation (1) The investigation of marine hazards and the publication of Notices to Mariners and other warnings (2) The regulation of personnel and activities associated with the lighthouse (3) The adding to lighthouses of additional structures and facilities (c) Other common elements of practice in the administration of lighthouses (1) The collection of lightdues (2) The siting of VTS towers on lighthouses (3) Common non-light uses of lighthouses (4) Permission to undertalce scientific and technical surveys (5) Control of access to lighthouses and their associated facilities (6) The flying of ensigns or flags on lighthouses D. Conclusions Chapter 7 The Straits' Lights System Introduction A. Background issues (i) The constitutional position of Singapore and the Straits Settlements (ii) Pulau Pisang lighthouse and the status of the territory on which it stands iii B. The Straits' Lights System (i) The existence of the Straits' Lights System and its legislative .Eramework (ii) Lights which formed part of the Straits' Lights System (iii) Permission from Malay Rulers for construction and administration of lights (iv) The administration of the Straits' Lights (v) The administration of the Straits' Lights &er 1946 C. Conclusions Chapter 8 Conduct Claimed by Singapore to be b titre de souwain Introduction A. Claims concerning enacting legislation relating to Pedra Branca and the Horsburgh Lighthouse B. Claims concerning the maintenance and improvement of the lighthouse and building and upgrading a jetty (i) General observations (ii) Post-critical date conduct (iii) Notices to Mariners C. Claims concerning exercise of jurisdiction over personnel on the island and the maintenance of order D. Claims concerning collecting meteorological information E. Claims concerning flying the Singapore Marine Ensig~i (i) Singapore's reliance on the Temple Case (ii) Flying the Singapore Marine Ensign on Horsburgh Lighthouse is not an act h titre de sowerain (iii) The alleged contrast with the Pulau Pisang Lighthouse F. Claims concerning control of access to the island, official visits and granting permission for surveys (i) Preliminary observations (ii) Measures regulating the conduct of lighthouse personnel (iii) Visits to the lighthouse, the logbook and visits recorded therein (iv) Permission in respect of technical and scientific surveys (v) Permission given to foreigners to operate in Pulau Batu Puteh's territorial waters G. Naval patrols and the installation of military communications equipment on Pedra Branca H. Claims concerning investigation of navigational hazards and shipwrecks I. Claims concerning the investigation of accidental death in the waters of Pedra Branca J. Claims concerning sea reclamation plans K Conclusions Chapter 9 Malaysian Conduct Supportive of its Claim to Sovereignty Introduction A. General observations (i) Historical interaction between Malaysia and Singapore and the character of Pulau Batu Puteh (ii) Cooperation in the Singapore Straits in the field of maritime safety and related matters (iii) The scope of Malaysian conduct B. The 1953 correspondence C. Conduct confirmatory of Malaysia's title (i) Use of Pulau Batu Puteh waters by Johor fishermen (ii) Royal Malaysian Navy Patrols in the waters around Pulau Batu Puteh D. Conclusions Chapter 10 The Maritime Context A. Singapore's new claim to jurisdiction in the South China Seas compared with its delimitation practice B. Malaysia's practice C. The position of third States D. Singapore's reliance on certain Malaysian maps E. Conclusion summary Maps Sectlon: Maps 1-17 Submissions List of Annexes Chapter 1 INTRODUCTION A. Points of agreement and disagreement 1. The Court will have observed from a perusal of the Parties' Memorials that there are some important points of agreement between them. Thus it is agreed that: (a) So far as the present dispute is concerned, Malaysia and Singapore are respectively successors to the legal position of Johor, on the one hand, and of Great Britain in right of Singapore, on the other hand.' (b) Johor was a substantial kingdom originally located north and south of the Singapore Strait, with which the British and other powers conducted political relations.' (c) Before the CrawfUrd Treaty of 1824, Johor's sovereignty extended to Singapore island itselg and other islands in and around the coast, whether or not these were within 3 nautical miies (hereafter m) ofke mainiand.' (d) By the Crawfbrd Treaty, Johor ceded singapore island and other islands within 10 nm to Great Britain, but that Treaty did not result in a cession of Pulau Batu PutehPedra Branca (hereafter PBP)? (e) Horsburgh Light was constructed and operated as a lighthouse for the purposes of assisting mariners, and continued to be so operated when the present dispute broke out, in 1980; I See SM, paras. 1.5-1.7; MM, para~.67-71,190-206. 2 See SM, paras. 3.2-3.5; MM, paras. 37-47,61-67. 3 See SM, paras. 3.2-3.3; MNL, paras. 77-84. 4 See SM, para. 3.5,5.5,5.30-5.31,5.86-5.87,6.2; MM, paras. 55,72. 5 See SM, paras. 5.30-5.31, 6.2, 6.4; MM, paras. 114, 117, 180. (f) The Parties also agree that this is the critical date for the purposes of this case.6 2. In its Memorial Malaysia has shown that PBP, which has been internationally well-known since the 16~century, was not tewa nullius but was part of the Kingdom of oho or.^ Malaysia has also shown that the Governor of Singapore sought Johor's permission for the construction of a lighthouse in honour of James ~orsburgh,~that he did so at a time when PBP was one of the preferred spots under consideration for the location of the lighthouse, and that permission was duly given? The subsequent construction and operation of the lighthouse was never accompanied by any public claim by Great Britain to sovereignty.1° The lighthouse was inaugurated with a Masonic ceremony. Neither the Governor nor the East India Company ever proclaimed the island as ~ritish." In the more than one hundred years that followed, Great Britain never asserted or exercised sovereignty over the island or the surrounding waters; it never listed or showed the island as belonging to singapore.12 All Great Britain did was operate the lighthouse, and the same is true of Singapore, until for the first time it formally asserted a claim to sovereignty over PBP in response to the Malaysian map of 1979.13 The mere operation of a lighthouse on territory belonging to another State does not give sovereignty, and afortiori it does not do so if the process is inaugurated with the consent of the latter State.