Dissenting opinion of judge ad hoc dugard

DISSENTING OPINION OF JUDGE AD HOC DUGARD Malaysia has original title to Pedra Branca/Pulau Batu Puteh ⎯ Construction of Horsburgh lighthouse did not alter situation ⎯ 1953 correspondence of uncertain meaning and authorization ⎯ Failure of Singapore to publicize 1953 correspondence confirms its inconsequential nature ⎯ Court wrong to attach significance to 1953 correspondence ⎯ Conduct of Partiesbetween 1953 and 1980 equivocal ⎯ No inferences on sovereignty to be drawn from this period ⎯ Singapore’s conduct consistent with that of lighthouse operator ⎯ Court errs in interpretation of facts of this period ⎯ Legal basis for Court’s decision unclear ⎯ Court correctly rejects prescription and estoppel ⎯ Court’s decision that conduct of Parties displayed tacit agreement or understanding onpassing of sovereignty unconvincing in law and on facts ⎯ Insufficient evidence to support finding that Malaysia acquiesced in Singapore’s claim to sovereignty ⎯ Requirements for acquisition of territory set out in Eritrea/Yemen Arbitration Award ⎯ Such requirements not satisfied in present case ⎯ Title to Pedra Branca/Pulau Batu Puteh remains with Malaysia ⎯ Middle Rocks and South Ledge fall withinsovereignty of Malaysia ⎯ Unfortunate that counsel not invited to address Court on legal basis for Court’s decision. 1. The Court’s Judgment provides an equitable solution to the dispute before it. Pedra Branca/Pulau Batu Puteh is awarded to Singapore; Middle Rocks is awarded to Malaysia; and South Ledge, a low-tide elevation, will be allocated to the State in the territorial waters of which itis located. Although the dispute was not, at least in theory, about territorial sea and continental shelf, both Parties will share these areas and their resources. If this Court was sitting as a court of equity, or if it had been authorized by the Parties to decide the case ex aequo et bono in terms of Article 38, paragraph 2, of the Statute of the Court, I might have been able to agree with theCourt’s Judgment. The Court is not, however, sitting as a court of equity. The Special Agreement entered into between Malaysia and the Republic of Singapore on 6 February 2003 makes it clear, in Article 5, that the dispute is to be resolved in accordance with international law. As I find it impossible to agree with the Court’s reasoning on the law, and its interpretation of the facts upon which thislegal reasoning is based in respect of the question of sovereignty over Pedra Branca/Pulau Batu Puteh, I must dissent on this issue. 2. The majority judgment of a court the size of that of the International Court of Justice inevitably must take account of different judicial views and will reflect the lowest common denominator of the majority. Even allowing for this, I find it difficult to fullycomprehend the basis for the Court’s Judgment. The Judgment is premised on the finding that the conduct of both Parties has resulted in the passing of sovereignty over Pedra Branca/Pulau Batu Puteh from Malaysia (previously Johor) to Singapore. While considerations of acquiescence, abandonment of title and tacit agreement or understanding feature prominently in the Court’s reasoning no attempt ismade to justify or explain the passing of sovereignty in terms of accepted principles governing the acquisition of territorial title. At the same time the interpretation of the facts of the case gives rise for concern. The facts of the dispute are complex, contradictory and complicated. In reaching its final decision the Court has been compelled to choose between competing facts and to attach moreweight to some facts than to others. This is the nature of fact finding in the judicial process. In my view, however, the Court has allowed itself, in making its choice of facts and the weight to be attached thereto, particularly in respect of the period 1953 to 1980, to be unduly influenced by its interpretation of the controversial correspondence of 1953 between Singapore and Johor. It has...