Malaysia cites 3 British documents from 1950s and 1960s in Pedra Branca challenge

SINGAPORE — Malaysia is challenging the Pedra Branca judgment using three documents discovered in the United Kingdom's national archive - internal correspondence of the Singapore colonial authorities in 1958, an incident report filed in 1958 by a British naval officer and an annotated map of naval operations from the 1960s.

Publishing these details of Malaysia's application in a press release overnight, the Netherlands-based International Court of Justice (ICJ) said on Saturday (Feb 4) that Malaysia claims that these documents establish the new fact that “officials at the highest levels in the British colonial and Singaporean administration appreciated that Pedra Branca/Pulau Batu Puteh did not form part of Singapore’s sovereign territory” during the relevant period. 

Malaysia argues that “that the Court would have been bound to reach a different conclusion on the question of sovereignty over Pedra Branca/Pulau Batu Puteh had it been aware of this new evidence”, the ICJ said, referring to the Malaysian government's name for Pedra Branca.

Malaysia said in its application - which was filed on Thursday - that it discovered these documents between Aug 4 last year and Jan 30 this year. "In its Application, Malaysia contends that 'there exists a new fact of such a nature as to be a decisive factor within the meaning of Article 61'," the ICJ said.

Article 61 of the Statute of the Court provides that an application for revision of an ICJ 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, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence”. The request for revision must be submitted within six months of the discovery of the new fact and not later than 10 years from the date of the judgment. 

Singapore’s Ministry of Foreign Affairs has said that the Republic is “studying Malaysia’s application and documentation closely”, and has formed a legal team - which includes Attorney-General Lucien Wong, former Deputy Prime Minister S Jayakumar, Professor Tommy Koh and former Chief Justice Chan Sek Keong -  to respond to Malaysia’s challenge.

It is early days yet in the court process, with the panel of judges to hear the case yet to be formed. Both sides will have a say in the appointment of the judges, and the number of judges on the panel is yet to be determined. 

The court process will take place in two phases: The first is called the admissibility phase, where the court determines if the facts raised by Malaysia were discovered within the last six months. During this phase, Singapore will also make written submissions, before oral proceedings take place in court. It will likely extend to next year. In the second phase, the court decides if the facts raised by Malaysia are decisive.

The row over the ownership of Pedra Branca dates back to 1979, when Malaysia published a map indicating the island to be within the country’s territorial waters. Singapore lodged a formal protest with Malaysia in early 1980.

It took more than 20 years for the dispute to be brought before the ICJ in July 2003. In May 2008, after several rounds of written pleadings and public hearings, the court ruled Pedra Branca to be Singaporean territory.

The ICJ had found that Singapore investigated shipwrecks within Pedra Branca’s territorial waters and granted or did not grant permission to Malaysian officials to survey the waters surrounding the island. The ICJ noted too that Malaysia did not react to the flying of the Singapore ensign on the island and Singapore’s installation of military equipment on the island.

The ICJ had also judged that sovereignty over the Middle Rocks, a maritime feature to the south of Pedra Branca, belonged to Malaysia. But the court refrained from awarding South Ledge, also to the south of Pedra Branca, to either Malaysia or Singapore.