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Sovereignty of disputed Pedra Branca

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    • M'sia files application for revision of ICJ's ruling on Pulau Batu Puteh sovereignty

      KUALA LUMPUR: Malaysia filed an application yesterday for a revision of the International Court of Justice (ICJ)’s judgement on the sovereignty of the disputed Pedra Branca – also known as Pulau Batu Puteh – Middle Rocks and South Ledge.

      In a statement to the press, Attorney-General Tan Sri Mohamed Apandi Ali said the application, which was filed at the ICJ, The Hague, was made by Malaysia upon the discovery of a fact, of such a nature as to be a decisive factor, which was unknown to the Court and also to Malaysia, as the party claiming revision.

      “The discovery of the new facts is important and they should be ventilated in a court of law accordingly. Thus, as agreed to by both parties in the Special Agreement, the International Court of Justice is an appropriate forum for this.

      “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 inter alia (among other things), the application for the revision is brought within six months of the discovery of the new fact and within ten years of the date of judgement,” Mohamed Apandi said.

      He continued to say that Malaysia’s application for a revision of the judgement is a continuation of the process embarked upon on May 9, 2003, by both Malaysia and Singapore, when both nations agreed to submit the dispute over the sovereignty of Pedra Blanca – or Pulau Batu Puteh – Middle Rocks and South Ledge, to the ICJ (“Special Agreement”).

      An online portal has reported that the dispute over the proprietorship of Pulau Batu Puteh dates back to the 1980s, when Malaysia published a map indicating the island to be in the country’s territory.

      The dispute had come to a close when the island was ruled to be Singaporean territory by the ICJ some nine years ago. The ICJ had found that Singapore investigated shipwrecks within Pulau Batu Puteh’s territorial waters, and granted or did not grant permission, to Malaysian officials to survey the waters surrounding the island.

      The ICJ had, among others, noted that Malaysia did not react to the flying of the Singapore flag on the island, and Singapore’s installation of military equipment on the island.

      The ICJ had also judged that sovereignty over the Middle Rocks is Malaysia’s, and refrained from awarding South Ledge to either Malaysia or Singapore.


      © New Straits Times Press (M) Bhd

    • Timing of Malaysian challenge on Pedra Branca could be way of 'garnering votes' ahead of elections: Experts

      SINGAPORE: Malaysia’s revival of a decades-old issue with Singapore over the islet of Pedra Branca could be a political manoeuvre ahead of elections, according to researchers and analysts specialising in relations between the neighbours.

      The rocky outpost 44km off Singapore’s east coast - referred to by Malaysia as Batu Puteh - was first claimed as Johor territory in 1979. Singapore protested, the matter was brought to the International Court of Justice (ICJ) in 2003 and in 2008, Pedra Branca was ruled as under Singapore’s sovereignty.

      On Feb 2 this year, however, Malaysia applied to revise the judgment, claiming three newly unearthed documents in the National Archives of the United Kingdom (UK) demonstrated that officials at the highest levels “did not consider Singapore had sovereignty over Pedra Branca” during the 1950s to 1960s.

      Malaysia also said the three documents - found between Aug 4, 2016 and Jan 30, 2017 - were previously confidential and only made publicly available after the 2008 ruling. Channel NewsAsia understands the three documents were released around 2013.

      “The timing of the application is quite interesting,” said Dr Mustafa Izzudin, a fellow at the Institute of Southeast Asian Studies (ISEAS)-Yusof Ishak Institute. “During Malaysia’s 2013 elections, Pedra Branca was brought up by the opposition to show that the UMNO (United Malays National Organisation) government was weak,” he observed. 

      “Perhaps this time round, UMNO will make use of this to show the Malaysian public that Najib’s leadership is strong in foreign policy and can safeguard the sovereignty of Malaysia. The timing does suggest it could be in the minds of policymakers in UMNO that it could be used as a way of garnering votes.”

      Noting the emergence of opposition - like the Democratic Action Party (DAP) - in support of reopening the case, Dr Mustafa said: “This could be an issue that rallies the Malaysian people, who are normally quite divided, as one.”

      Dr Bridget Welsh, a Southeast Asian political expert at Rome’s John Cabot University, said this opportunity to overturn the ruling would be taken to “full political advantage” by Malaysia. “One cannot get away from the fact that this issue will have domestic political implications and comes at the pre-election period,” she pointed out, adding that Prime Minister Najib Razak will use the issue "for political capital”.

      Research analyst David Han of the S. Rajaratnam School of International Studies (RSIS) echoed this point. "Some politicians could seek to leverage this issue ... to boost their success in the coming elections and serve as a distraction from other more pressing domestic issues."

      But Associate Professor Kevin Blackburn, a historian at the National Institute of Education (NIE), suggested otherwise. ‘’Given the political problems the Barisan Nasional has already, something like this is small stuff that is unlikely to stoke up patriotism that they could possibly benefit from,” he said.

      In its application, Malaysia also noted it was submitting the documents before the lapse of a 10-year period for the case to be reviewed, from the judgement date of May 23, 2008.

      “It appears to be an act of desperation by the Malaysian team, to find new evidence when time is running out,” said Assoc Prof Blackburn. “They have to go with whatever documents that have come up.”

      Dr Mustafa agreed. "It could be an 11th-hour, last-ditch attempt. They’re trying to see if there are any loopholes,” he said.


      Malaysia's full application, released on Friday (Feb 10), showed the first document to be a 1958 telegram sent from the Singapore Governor to British colonial authorities, proposing an international high seas corridor a mile from Pedra Branca. Malaysia said there would have been no need for this if Singapore owned the waters surrounding the island, and concluded that the Governor “did not consider Pedra Branca to be part of Singaporean territory”.

      The second document, an incident report from 1958, cited the British navy refraining from aiding a Malaysian vessel near Pedra Branca as it “was still inside Johor territorial waters”. This showed the British military, responsible for Singapore’s defence at the time, “did not view the waters around Pedra Branca as belonging to Singapore”, said Malaysia.

      The third document, a map from 1962, delimits Singapore’s territorial waters and shows that they “did not extend to the vicinity of Pedra Branca”, said Malaysia. Further annotations made on the map in 1966 also demonstrate how Singapore regularly reviewed its maritime spaces but "never extended coverage to include Pedra Branca".

      Had the ICJ been aware of such evidence, said Malaysia, it “would have been bound to reach a different conclusion on the question of sovereignty over Pedra Branca”.

      Malaysia has also stated it believes its application fulfils the requirements under Article 61 of ICJ statutes, which detail requirements for a revision of an earlier decision. These include applying within six months of the discovery of the new fact, the aforementioned 10-year lapse, and making a claim based upon the discovery "of some fact of such a nature as to be a decisive factor" previously unknown to both the ICJ and Malaysia.

      The key question now, said Dr Mustafa, is how the new documents square with the pivotal consideration which swung the ICJ’s ruling in Singapore’s favour in 2008.

      This was a 1953 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 is not so much what new evidence Malaysia has stumbled upon, as important as it may be,” said Dr Mustafa. “But much more on how much weight and credibility that new information has when compared to past evidence presented to the ICJ.”

      Assoc Prof Blackburn said nothing in Malaysia’s new application was capable of trumping the 1953 letter.

      “Having the Johor government saying in black and white it had no sovereignty over the island is much stronger than these documents,” he said. “None of these new documents unequivocally says Pedra Branca is part of Johor … It’s all very weak evidence which doesn’t seem substantial.”

      For instance, referring to the 1958 naval incident report, Assoc Prof Blackburn argued that Pedra Branca being surrounded by Johor’s territorial waters did not mean the island was part of Johor.

      The same applied to the 1962 map, which he also called the weakest piece of evidence. “It is a map of Singapore and its surrounding waters. Pedra Branca is a long way from Singapore, so how could the map show Pedra Branca?” he questioned.

      “If it was large enough to show Pedra Branca, it could not possibly show much detail at all … which was clearly its purpose. Pedra Branca is just too far from Singapore to be realistically included, except as an insert.”

      He concluded that Malaysia’s best hope was to retrieve original documents from the mid-19th century - when the Horsburgh Lighthouse on Pedra Branca was built - and which would demonstrate any agreements Johor might have entered into with the British.


      Nonetheless, the reopening of the dispute will not affect Causeway ties as there is an “amicable” sense to proceedings, said Dr Mustafa.

      “Malaysia-Singapore relations are at a high now; the best they’ve ever seen," he pointed out. "Malaysia did inform Singapore about reopening the case, in the spirit of neighbourliness."

      Assoc Prof Blackburn, however, countered that reopening the case went against recent advances in establishing goodwill and cooperation between Malaysia and Singapore. He cited the Kuala Lumpur-Singapore High-Speed Rail project, which he said would require an “unprecedented, perfect relationship” between the two countries to work.

      “Still, this is a continuation of the various minor disputes Singapore and Malaysia have had since Singapore broke away from the Malaysian Federation in 1965,” he added. “There are regular disagreements over what is happening in the Johor Strait.”

      “The two countries are still bound together by shared languages, history and cultures, but because they are now two separate nation-states, they are naturally concerned with protecting their own sovereignty.”

      Said Dr Mustafa: “It’s about sovereignty and adherence to international law, which Singapore is a staunch proponent of. Pedra Branca fits in that narrative, hence our position on it. With Malaysia, it’s also an issue of sovereignty.”

      “For both countries, it’s about their territory and what belongs to them.” 

      - CNA/jo
    • Singapore ‘confident’ of its case on Pedra Branca: Vivian Balakrishnan

      SINGAPORE: Singapore is confident of its case against Malaysia's claim over Pedra Branca, Foreign Minister Vivian Balakrishnan told Parliament on Thursday (Mar 2).

      He said its legal team “strongly believes” that the three documents relied on by Malaysia in their application to overturn a 2008 International Court of Justice (ICJ) ruling on Pedra Branca do not satisfy the criteria laid out for a revision of a judgement. "We are confident of our legal team and our case," he said.

      Speaking at the Ministry of Foreign Affairs' Committee of Supply debate, Dr Balakrishnan noted that Malaysia had applied for a revision under Article 61 of the ICJ’s Statute and that several criteria must be met for a revision:

      - It must be based upon the discovery of facts which were unknown to the court and the party claiming revision when judgment was first given.

      - The newly-discovered facts must be decisive, and of such a character as to lay the case open to revision.

      - And an application for revision must be made at latest within six months of the discovery of the new fact, and within ten years of when the judgment was given.

      After careful study of Malaysia's application, Singapore's legal team believes the documents do not satisfy the criteria under Article 61. Singapore will submit its “comprehensive and compelling rebuttal” to Malaysia’s application by Jun 14, which is the time limit fixed by the ICJ, Dr Balakrishnan said.

      He added that Singapore is committed to resolving the issue amicably and in accordance with international law. “Bilateral relations with Malaysia therefore are good, will remain good, and we will continue on all our mutually-beneficial bilateral programmes,” he said.


      Dr Balakrishnan also told the House that Singaporeans should not be disconcerted by these developments. “Because even with the best of diplomatic and personal relations, we must expect other states to act in their own self-interests,” he said.

      He added that part of what underpins Singapore’s good relations with Malaysia is a commitment by both sides to resolve disagreements amicably in accordance with international law, while allowing mutually-beneficial cooperation to continue in the meantime.

      Dr Balakrishnan noted that Singapore has marked a new milestone in its relationship with Malaysia, with the signing of the agreement on the KL-Singapore High-Speed Rail (HSR) in Dec 2016.

      “In addition to the HSR, we’re also looking to sign a bilateral agreement on the Singapore-JB Rapid Transit System (RTS) this year,” he added. “This RTS will improve the flow of people and business between Singapore and Johor, and bring both sides closer together.”

      He stressed that on the whole, Singapore’s bilateral relations with Malaysia are “excellent.” “Other than these connectivity initiatives, the economic, the people-to-people ties remain strong,” he said. “We will continue to cooperate on security, defence and counter-terrorism.” 


      In a separate press statement, the Ministry of Foreign Affairs said under the Statute of the ICJ, if there is no judge of the nationality of the parties on the Bench of the Court, the parties may each choose a judge ad hoc who will take part in the decision of the case.

      MFA said Singapore has chosen Judge Gilbert Guillaume to sit as judge ad hoc for the purposes of Malaysia’s application to overturn the 2008 ICJ ruling.

      Judge Guillaume was a member of the ICJ from 1987 to 2005, and served as its President from 2000 to 2003, added MFA. He is currently a member of the Permanent Court of Arbitration.


      In 2003, Singapore and Malaysia had agreed to submit the case concerning sovereignty over Pedra Branca, Middle Rocks and South Ledge to the ICJ. The ICJ had ruled in 2008 that Singapore had sovereignty over Pedra Branca, while Middle Rocks was awarded to Malaysia and South Ledge belonged to the state in whose territorial waters it is located.

      On Feb 2, however, Malaysia applied to revise the judgment, claiming “a new fact” unearthed from three documents discovered in the National Archives of the United Kingdom between Aug 4, 2016 and Jan 30, 2017.

      The first document is a confidential telegram in 1958 from the Governor of Singapore to the British secretary of state for the colonies. The second document is a naval incident report from 1958 citing the British navy’s inability to assist a Malaysian vessel being followed by an Indonesian gunboat near Pedra Branca as it “was still inside Johor territorial waters”.

      The third document is a map dated 1962 but with handwritten annotations from 1966 which showed that Singapore’s territorial waters “do not extend to the vicinity of Pedra Branca”, according to Malaysia.

      - CNA/lc
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