Hague court reveals Malaysia’s ‘new facts’ on Pedra Branca

SINGAPORE — The International Court of Justice (ICJ) has released the full text of Malaysia’s application to challenge a 2008 judgment to award sovereignty of Pedra Branca to Singapore, shedding new light on Putrajaya’s legal arguments.

Malaysia filed the application with The Hague-based ICJ on Feb 2, citing “new facts” discovered in recently declassified British documents which it said would have had resulted in a “different conclusion” by the court.

The “new facts” originate from three documents recently 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.

“The documents indicate that in the critical years following the 1953 correspondence … Singapore officials at the highest levels did not consider that Singapore had acquired sovereignty over Pedra Branca from Johor,” said Malaysia in its filing.

The 1953 correspondence refers to a letter from Johor’s Acting State Secretary to Singapore’s Colonial Secretary which stated “the Johor government does not claim ownership of Pedra Branca”. It was a key consideration in the 2008 ruling.

Malaysia’s application to the ICJ challenged the significance of the 1953 letter. “(The) weight that the Court accorded to the 1953 correspondence cast this correspondence as the prism through which the subsequent developments were seen,” its application said.

“The recently discovered 1958 documentation goes directly to the reliability of this vantage point, calling into question not only the controlling character that was attributed to the 1953 correspondence but also the evaluation of the practice subsequent thereto.”

Malaysia claims the new 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.

“It is Malaysia’s contention, informed by a close reading of the judgment in 2008 and its accompanying opinions, that the court would have been bound to reach a different conclusion on the question of sovereignty over Pedra Branca had it been aware of this new evidence.”

Malaysia said in its application that it discovered these documents between Aug 4 last year and Jan 30 this year.

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 has said it is “studying Malaysia’s application and documentation closely”, and has formed a legal team to respond to Malaysia’s challenge.

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.

Commenting on the timing of the filing amid signs that Malaysian Prime Minister Najib Razak may call for a general election this year, Professor James Chin, director of the Asia Institute at the University of Tasmania said “he (Mr Najib) will milk it for political mileage”.

“But until we see the new documents, we don’t really know.” 

Dr Oh Ei Sun, an adjunct senior fellow at the S Rajaratnam School of International Studies, added: “What is remarkable in this case is that both countries take this matter very professionally and strictly in accordance with the proper procedure of international law, with hardly a hint of public spat or shouting match.”