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. Chapter 1 Introduction A. The positions of the Parties B. New arguments in Singapore's Counter- Memorial (0 TOPO~PY (ii) Geography and geomorphology (iii) The "case of the disappearing Sultanate" (iv) Peripheral issues C. The issues for the Court and the structure of this Reply Chapter 2 Malaysia's Original Title 54-109 Introduction 54-56 A. Allegiance and title to territory 57-65 B. The Johor Sultanate before 1824 66-77 C. The 1824 Treaties and their implementation 78-94 D. The continuity of Johor after 1824 95-108 E. Conclusions 109 Chapter 3 The Transactions leading to the Construction of the Lighthouse Introduction A. Buttenvorth's request for permission to construct the lighthouse B. The Sultan's and Temenggong's answers (i) 'Near Point Romania" (ii) "Or any spot deemed eligible" C. Subsequent correspondence shows that the Johor permission included PBP (i) Butterworth's letter to the Government of India of 26 August 1846 (ii) The dispatch of 3 October 1846 to the Court of Director in London (iii) The "fill report" sent by Governor Butterworth to the Government of Bengal dated 12 June 1848 (iv) Conclusion D. Singapore's invented distinction between "formal" and "informal" permissions given by Malay rulers to construct lighthouses E. Conclusion Appendix to Chapter 3: Handwritiug comparison of the word "casen used in Butterworth's letter of 26 August 1846 Chapter 4 Singapore's Theory of YTakingof Lawful Possession" Tested against the Facts Introduction A. Singapore's claim of c&g of lawful possession" of PBP (i) When did Britain ''take possession" of PBP? (ii) Singapore's approximate presentation of doctrine (iii) Singapore's disregard for British practice B. Events which occurred on or related to PBP in 1850 Introduction (i) The ceremony of 24 May 1850 was a Masonic one (ii) The Temenggong's presence on PBP in June 1850 (iii) Plans for the establishment of a station on Point Romania to protect Horsburgh Lighthouse C. There is no evidence of British intention to acquire sovereignty Introduction (i) The actyal British intention in constructing the lighthouse (ii) The distinction between ownership of the lighthouse and sovereignty over PBP D. Great Britain did not claim sovereignty over PBP after the inauguration of the lighthouse Introduction (i) No single. authority was installed on PBP, which the Orang hut continued to frequent (ii) No British legislation incorporated PBP into the Colony.of the Straits Settlements (iii) The 1861 incidents show that there were no jurisdictional changes after the construction of the lighthouse E. Conclusion Chapter 5 The Subsequent Conduct of the Parties including the Map Evidence Introduction A. The conduct of the parties Introduction (i) Applicable principles (ii) Singapore's responses on constitutional developments and official descriptions (iii) Singapore's further arguments concerning its own conduct (iv) Singapore's responses on bilateral conduct of the Parties (v) Singapore's responses to Malaysia's conduct (vi) The 1953 correspondence (vii) Conclusions on the conduct of the parties B. The map evidence Introduction (i) Malaysia's arguments on the map evidence (ii) Singapore's arguments on the map evidence (iii) Malaysia's response (iv) Conclusion Chapter 6 The Distinct Character of PBP, Middle Rocks and South Ledge Introduction A. Singapore's assertion that PBP, Middle Rocks and South Ledge are not separated by navigable channels B. Additional observations on assertions made in SCM Chapter VIII C Conclusions Summary Submissions Appendices Appendix I Continuity and Sovereignty in the Kingdom of Johor between the Seventeenth and the Nineteenth Centuries, by Professor Dr. Leonard Y. Andaya iii Appendix U Some historical considerations on Johor and the Singapore Straits, by Professor Dr. Vincent J.H. Houben Appendix III Report on Pulau Batu Puteh, Middle Rocks and South Ledge, by Capt (RMN retired) Goh Siew Chong List of Annexes LIST OF FIGURES subject Page Figure 1 Sketch map showing the islands listed in Article XI1 of the 3 7 1824 Angla-Dutch Treaty (pm. 82) Fiire 2 Official Map of the Dutch East Indies produced in 1842 by 43 G.F. Von Derfelden Van Hinderstein (pm 94) Figure 3 Map annexed to the Ord Award, 1868 (para. 99) 45 Figure 4 Diagram showing "The Temenggongs and Sultans of Johor 50 from 1761" (para. 108) Figure 5 Sketch map showing the locations for the Lighthouse 66 mentioned in Butterworth's letter of 28 November 1844 (para. 138) Figure 6 Aerial photograph showing the area of PBP and mainland 67 Johor (including Point Romania (Tg Penyusoh) (para. 140) Figure 7 Drawing by J.T. Thomson of Horsburgh Lighthouse, October 69 1851, showing Point Romania, Barbukit Hill and the False Barbukit, reproduced in Thornson's "Account of the Horsburgh Lighthouse" (para. 140) Fiure 8 Drawing by J.T. Thornson of Pedra Branca (without the 70 lighthouse), 1850, reproduced in Thomson's "Account of the Horsburgh Lighthouse" (para. 140) Figure 9 Thomson's Chart of the Viciniiyof the Horsburgh Lighthouse 73 and Adjacent Malayan Coast, 185 1 (para. 146) Figure 10 Text of the letter from Governor Butterworth to the 81 Govemtnent of India, 26 August 1846 (pm 162) Figure 11 Aerial photograph of Cape Rachado Lighthouse (pm 185) 91 Figure 12 Aerial photograph of Pulau Pisang (pm185) 92 Figure 13 Extract and enlargement of map "Pontian Kechil", Sheet 129, 93 Series L7010, published by the Director of National Mapping, Malaysia 1974, Edition 5-PPNM (para. 185) Figure 14 Photographical reproduction of the inscription on the copper 115 plate installed in Horsburgh Lighthouse, from Thomson's "Account of the Horsburgh Lighthouse" (paras. 21 1,220) Figure 15 Sketch map showing the location of places mentioned in the 136 exchange of letters between Governor Cavenagh and the Temenggong of May 1861 (para. 270) Figure 16 Satellite photographs (3) of PBP, Middle Rocks and South 195 Ledge (paras. 414,426) Chapter 1 INTRODUCTION A. The positions of the Parties I. Both Parties have now filed heir Memorials and Counter-Memorials, and each round of pleadings brings the essential question for the Court into clearer focus. The Parties' Counter-Memorials confirm that, as suggested by Malaysia in its Counter- Memorial, the first essential question faced by the Court, and the one on which the Parties disagree, is "who had sovereignty over PBP, Middle Rocks and South Ledge in the years immediately following the inauguration of the lighthouse, and on what basis?"' The answer to the second essential question-whether anything has happened since that time to change that Legal situation-was resolved in the negative in the first round of pleadings.2 That is, conduct subsequent to the inauguration of the lighthouse in 1851 up to the present day is both secondary and not dispositivc: of the question of title. Accordingly, this Reply will focus mainly on the history ofthe region in the period up to the early 19" century and events in the 19% century leading to the inauguration of the lighthouse in 1851. The conduct of the Parties after 185 1 has already been comprehensively addressed, but it will be dealt with in Chapter S to the extent necessary to respond to points raised by Singapore in its Counter-Memorial. 2. Malaysia's case, as set out in its Memorial, is that it has original title over PBP because it was part of the Sultanate of Johor which later became part of Malaysia, and that this title was never relinquished. The construction and operation of the lighthouse on PBP by Great Britain and later Singapore was on the basis of permission granted by the rulers of Johor for that purpose. Singapore's case, as set out in its Memorial, is that Great Britain acquired an original title over PBP through the "taking of lawful possession" during the years 1847-185 1, such taking of sovereignty occurring variously before 1 847, in 1847, and between 1847 and 1851, but in any case being completed by the end of 1 MCM,para. 13. 2 Ibid. 1851.~ That taking of possession in turn entailed sovereignty over the other features, Middle Rocks and South Ledge, even though there is no evidence of any exercise of sovereignty prior to the present dispute arising. 3. In its Counter-Memorial Malaysia pointed out that "the taking of lawful possession" is not a recognised mode of acquisition, and that Singapore does not seek to establish title through any other recognised modes of acquisition, such as occupation of term nullius or cession, nor even the more doubtkl doctrine of acquisitive prescription.4 For its part Singapore's Counter-Memorial argues that Malaysia cannot show that PBP was ever part of the Sultanate of s oh or' or that there was a continuous chain of succession of title before and after 1824 to the present day.6 4. Singapore's case of title to PBP as expanded in its Counter-Memorial is that: (a) PBP was terra nullius (although it does not use that term7) which was taken in "lawful possession by agents of the British Crown in the period 1847-1851" and "[iln the circumstances the intention of the British Crown was to establish sovereigntyyy8;or, alternatively, (b) PBP did not belong to the Sultanate of oh or' and "[plossession was taken openly.. .without protest" from "any Malay chief or any other power in the regionw.l0 That is, if PBP did belong to someone, that someone did not protest the open taking of possession by the construction of the lighthouse by the British between 1847-1851.