Singapore’s legal team is closely studying Malaysia’s application and documentation for a revision of the International Court of Justice (ICJ) judgment on sovereignty over Pedra Branca, Middle Rocks and South Ledge, a Ministry of Foreign Affairs (MFA) spokesman said yesterday.
The team includes senior lawyers well acquainted with the issue. It includes Attorney-General Lucien Wong, former deputy prime minister and law minister S. Jayakumar, Ambassador-at-Large Tommy Koh and former Chief Justice Chan Sek Keong.
Professor Jayakumar, Professor Koh and Mr Chan were leading figures in the team that represented Singapore when Singapore and Malaysia referred the dispute over Pedra Branca, Middle Rocks and South Ledge to the ICJ in 2003. Both countries made their respective cases at a three-week-long hearing in 2007 before judges of the ICJ in The Hague, the Netherlands.
In its 2008 judgment, the ICJ found that sovereignty over Pedra Branca belonged to Singapore, sovereignty over Middle Rocks belonged to Malaysia and sovereignty over South Ledge belongs to the state in the territorial waters of which it is located.
Read Also: Malaysia seeks to revise judgment on Pedra Branca, citing discovery of ‘new facts’
The three features in the Singapore Strait are located some 40km east of the Republic’s main island.
Yesterday, the MFA spokesman noted of the ICJ’s ruling: “Its judgment was final, binding and without appeal.”
He added: “Under Article 61 of the Statute of the ICJ, an application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, and which was, when judgment was given, unknown to the court and the party claiming revision. Such an application must be made within 10 years of the date of the judgment, and at latest within six months of the discovery of the new fact.
“Malaysia has informed us that it has made an application for revision of the ICJ’s judgment.”
Malaysia filed its application to revise the judgment on Thursday.
Its Attorney-General Mohamed Apandi Ali said in a statement that the application was made “upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the court and also to Malaysia as the party claiming revision”.
He added: “We are also confident that the requirements as stipulated under Article 61 of the Statute of the International Court of Justice have been met in that… the application for revision is brought within six months of the discovery of the new fact, and within 10 years of the date of the judgment.”
He did not elaborate on what the new discovery entailed.
But Mr Apandi noted that Malaysia’s application for a revision of the judgment is “a continuation of the process” both countries embarked on when they agreed to submit the dispute on sovereignty over Pedra Branca, Middle Rocks and South Ledge to the ICJ.
He added: “The discovery of the new facts is important, and they should be ventilated in a court of law accordingly. Thus, as agreed by both parties in the Special Agreement, the ICJ is the appropriate forum for this.”
The ICJ comprises 15 judges, who are elected to nine-year terms by the United Nations General Assembly and the UN Security Council.
Singapore will submit its observations to the ICJ after studying Malaysia’s application.
At the same time, the ICJ will begin deciding on the admissibility of the application – that is, whether the facts submitted were presented within six months of being discovered, as well as whether they are decisive.
The Straits Times understands that this process alone may take more than a year to complete.
If the court decides that the criteria are met, the case will go on to the next stage of proceedings.
Representatives of both countries may also have to appear before the ICJ to argue their case.
ICJ ruling on dispute
In 2008, the International Court of Justice (ICJ) awarded Pedra Branca to Singapore. It recognised that Johor had the original title to Pedra Branca, but found that sovereignty over the island had passed to Singapore by the time the dispute crystallised in 1980.
Malaysia had argued that the Sultanate of Johor had possessed the title to the island since its establishment in 1512. That original title was then transmitted to the State of Johor, and subsequently to the Federation of Malaya.
It also put forth that the British and their successor, Singapore, were merely lighthouse operators and never exercised sovereignty over the island.
Singapore’s case was that Pedra Branca was terra nullius, or no man’s land, when the British took lawful possession of it in 1847.
In building the Horsburgh Lighthouse and other infrastructure, Britain showed its intention to take sovereign control of the island. Subsequently, Britain, and later, Singapore, maintained that title through an open, continuous and effective display of state authority over the island from the 1850s up to the present.
Singapore noted that Malaysia never once protested against Singapore’s exercise of sovereignty over the island. It also produced a 1953 letter from Johor’s top civil servant at that time to the British authorities, in which the former wrote that “Johor does not claim ownership of Pedra Branca”.
The ICJ noted that Johor’s 1953 reply showed that as of then, Johor understood that it did not have sovereignty over Pedra Branca.
It found Singapore’s activities since then – investigating shipwrecks, granting permission to Malaysian officials to visit and survey surrounding waters, installing military communications equipment, and proposing reclamation plans – a titre de souverain, that is, conduct that confers title on the party responsible.
The court also found that the original title to Middle Rocks – two smaller outcrops nearby – should remain with Malaysia as the successor to the Sultanate of Johor.
As for South Ledge, the court said it belongs to the state in whose territorial waters it is located.
TIMELINE
1979
- Dec 21: Malaysia publishes a new map of its territorial waters and continental shelf, including Pedra Branca in its territory.
1980
- Feb 14: Singapore’s Ministry of Foreign Affairs issues a diplomatic note rejecting Malaysia’s new claim.
1981
- Dec 17: Prime Minister Lee Kuan Yew and his Malaysian counterpart Mahathir Mohamad agree to resolve the ownership of Pedra Branca through the exchange of documents.
1994
- Sept 6: Prime Minister Goh Chok Tong and Dr Mahathir agree to submit the Pedra Branca case to the International Court of Justice (ICJ). Officials meet nine months later.
2003
- Feb 6: Singapore and Malaysia sign a pact to refer the Pedra Branca dispute to the ICJ.
2004
- March 25: Singapore and Malaysia submit their first set of written arguments on the Pedra Branca dispute to the ICJ.
2007
- Nov 6-23: A three-week hearing before 16 judges of the ICJ in The Hague begins. Singapore and Malaysia put up their cases.
2008
- May 23: The ICJ delivers its ruling, awarding Pedra Branca to Singapore, Middle Rocks to Malaysia, and South Ledge to the state in whose territorial waters it is located. Both sides have since met regularly to discuss the implementation of the ICJ judgment.
ziliang@sph.com.sg
reme@sph.com.sg
This article was first published on February 4, 2017.
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