Sunday, 5 February 2017

Malaysia applies for revision of Pedra Branca judgment; Singapore files written observations to ICJ on 24 May 2017

The Straits Times, 4 Feb 2017

Malaysia has applied to the International Court of Justice (ICJ) for a revision of its 2008 judgment which found that sovereignty over Pedra Branca belonged to Singapore.

Malaysia's Attorney-General Mohamed Apandi Ali said yesterday that the application was made on Thursday after it discovered "new facts". "The discovery of the new facts is important and they should be ventilated in a court of law accordingly."

A spokesman for Singapore's Foreign Ministry said yesterday that it is studying Malaysia's application and documentation closely, and has formed a legal team to respond to it. The team includes Attorney-General Lucien Wong and three others who played leading roles in presenting Singapore's case at the ICJ in 2007: former deputy prime minister and law minister S. Jayakumar, Ambassador-at-Large Tommy Koh and former chief justice Chan Sek Keong.

The spokesman noted that the ICJ judgment was "final, binding and without appeal", and an application for revision may be made only when based on discovery of a fact that would be a "decisive factor" and was not known at the time of judgment.

The application must be filed within 10 years of the judgment and six months of the new fact being found.








* Singapore files rebuttal over Malaysia's application to revise judgment on Pedra Branca
By Royston Sim, Assistant Political Editor, The Straits Times, 26 May 2017

Singapore has responded to an application by Malaysia to revise a 2008 international judgment that awarded sovereignty of Pedra Branca to the Republic.

The Ministry of Foreign Affairs said yesterday that Singapore has filed with the International Court of Justice (ICJ) its written observations on the admissibility of Malaysia's application.

The written observations are a "comprehensive rebuttal" to the application submitted in February this year.

"Singapore is confident of our case and our legal team. The next step is for the parties to present their oral arguments after the ICJ has fixed the schedule for the oral proceedings," the ministry said in a statement.

The country's legal team is helmed by four people.

Three of them led the original team on the Pedra Branca case - former deputy prime minister and law minister S. Jayakumar, Ambassador-at-Large Tommy Koh and former chief justice Chan Sek Keong.

The fourth is Attorney-General Lucien Wong, who took office on Jan 14.



In a Facebook post yesterday, Foreign Minister Vivian Balakrishnan said: "Their wisdom, experience and guidance have been invaluable to the younger lawyers on the team."

It took a "whole-of government effort" to produce Singapore's response, he added.

The work involved the Attorney-General's Chambers, National Arc- hives, Maritime and Port Authority of Singapore and three ministries - Defence, Law and Foreign Affairs.

Singapore contends that the documents relied on by Malaysia in its bid to reverse the judgment do not satisfy the criteria under which it applied for a revision.

Malaysia had cited three documents to argue its point that "Singapore's officials at the highest levels did not consider that Singapore had acquired sovereignty over Pedra Branca from Johor" in the years following 1953.

It said two of the documents, which are from the United Kingdom National Archives, were declassified after the 2008 judgment. The third document's release date is unknown.

Malaysia based its application on Article 61 of the ICJ's Statute, which provides that an application to revise a judgment may be made when there is discovery of a fact that would be a "decisive factor" and was not known at the time of judgment.

The request for revision must be filed within six months of the new fact being found - in this case, Aug 4 last year - and 10 years of the judgment, which means the window for filing it closes next year.

In its May 2008 judgment, the ICJ had considered correspondence from 1953 between Singapore's colonial officials and Johor as being of central importance in determining the sovereignty of Pedra Branca. Johor's top official had written in a 1953 letter that "the Johor government does not claim ownership of Pedra Branca".

This shows, the court said, that while Johor had the original title, "as of 1953, Johor understood that it did not have sovereignty over Pedra Branca".

The territorial dispute had also involved two smaller maritime features: Middle Rocks and South Ledge, near Pedra Branca.

The three features in the Singapore Strait are located about 40km east of Singapore's main island.

The ICJ's judgment said sove- reignty over Middle Rocks belongs to Malaysia.

It did not make a definitive ruling on the third feature, South Ledge, saying it belongs to whoever owns the territorial waters it sits in.






























* ICJ makes public details of Malaysia's bid to revise 2008 Pedra Branca judgment
By Tham Yuen-C, Assistant Political Editor, The Straits Times, 11 Feb 2017

The International Court of Justice (ICJ) yesterday released Malaysia's application to revise the court's 2008 judgment that awarded sovereignty of Pedra Branca to Singapore.

In the 42-page application, Malaysia cited three "new facts" to argue that "Singapore's officials at the highest levels did not consider that Singapore had acquired sovereignty over Pedra Branca from Johor" in the years following 1953.

Malaysia filed the application on Feb 2, asking the court to revise its judgment. Singapore has formed a legal team, including senior lawyers well acquainted with the issue, to study the application.

In its 2008 ruling, the ICJ had considered correspondence from 1953 between Singapore's colonial officials and Johor as being of central importance in determining the sovereignty of Pedra Branca.

In the 1953 letter, Johor's top official wrote that "the Johor government does not claim ownership of Pedra Branca". The court found this showed that while Johor had the original title, "as of 1953, Johor understood that it did not have sovereignty over Pedra Branca".



Malaysia, in its application, cited three documents. This, it said, "cuts deeply against the central thesis of the court's judgment". It contends that the court would have reached a different conclusion "had it been aware of this new evidence".

The first document is a confidential telegram sent from Singapore's top colonial official to the British Secretary of State for the Colonies in 1958. In it, the Governor had proposed establishing "a corridor of international waters passing only one mile from Pedra Branca".

This showed he "did not consider the island of Pedra Branca to be part of Singaporean territory", Malaysia said.

The second document was a report about a naval incident near Pedra Branca.

Malaysia pointed out the report had said a British Navy ship could not go to the aid of a Malaysian vessel being followed by an Indonesian gunboat because it was "still inside Johor territorial waters".

Malaysia said this showed that the "military authorities responsible for Singapore's defence at the time did not view the waters around Pedra Branca as belonging to Singapore".

The third document - a map of naval operations in the Malacca and Singapore straits from 1962 - showed Singapore's territorial waters "do not extend to the vicinity of Pedra Branca", Malaysia said.

It also said two of the documents - from the UK National Archives - were declassified after the 2008 judgment. The third document's date of release is unknown. Malaysia discovered them on or after Aug 4 last year, it said, and had filed its application within six months of getting the documents.

Based on the ICJ's rules, an application for revision may be made only when there is discovery of a fact that would be a "decisive factor" and was not known at the time of judgment. The application must be filed within six months of the new fact being found and 10 years of the judgment, which means the window for filing it closes next year.

The territorial dispute between Singapore and Malaysia had also involved two smaller maritime features, Middle Rocks and South Ledge, near Pedra Branca.

The ICJ, in its 2008 judgment, found that 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.

The three features in the Singapore Strait are located about 40km east of the Republic's main island.










Malaysia refers to declassified British files in seeking revision of ICJ ruling on Pedra Branca
It claims ICJ would have reached different conclusion if it had been aware of 'new fact'
The Sunday Times, 5 Feb 2017

Malaysia has cited three documents recently declassified by Britain to support its application for a revision of an International Court of Justice (ICJ) ruling on Pedra Branca.

They are: Internal correspondence of 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 ICJ said in a press statement on Friday.

These items were discovered in the UK National Archives between Aug 4, 2016 and Jan 30, 2017.

"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," the ICJ said.

"Malaysia argues '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'."

Pedra Branca, some 40km east of Singapore at the eastern entrance of the Singapore Strait, is known as Pulau Batu Puteh in Malaysia. Britain, and later, Singapore, has maintained control over the island since the 1850s.

Malaysia staked its claim to the island in a 1979 map. The dispute saw both neighbours refer the case to the ICJ, which is based in the Hague, in 2003.

The court found on May 23, 2008, that sovereignty over Pedra Branca belongs to Singapore, sovereignty over Middle Rocks belongs to Malaysia and sovereignty over South Ledge belongs to the state in the territorial waters of which it is located.

The 16 judges of the ICJ voted 12 to four in Singapore's favour.

A key consideration in its decision was a letter dated Sept 21, 1953, in which Johor's top official informed the British authorities in Singapore that "the Johor government does not claim ownership of Pedra Branca".

The court said in its 2008 ruling that it considered this correspondence and its interpretation of central importance for determining the understanding of both parties about sovereignty over the island. It found that Johor's reply showed that "as of 1953, Johor understood that it did not have sovereignty over Pedra Branca".

ICJ's statement on Friday came as Malaysia's Attorney-General Apandi Ali said the same day that his country had applied to revise the 2008 judgment on Feb 2. He said the bid 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".

A spokesman for Singapore's Ministry of Foreign Affairs (MFA) said Malaysia had informed Singapore it had made an application for revision of ICJ's judgment.

MFA said "Singapore is studying Malaysia's application and documentation closely and has formed its legal team to respond to Malaysia's application", which includes Attorney-General Lucien Wong, Professor S. Jayakumar, Professor Tommy Koh and former chief justice Chan Sek Keong.

In its release, the ICJ noted that Malaysia based its application on Article 61 of the ICJ's Statute, which provides that an "application for revision of a judgment may be made when it is based only upon the discovery of some fact of such a nature as to be a decisive factor". The fact had to be "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 also be made within six months of discovery of the new fact - in this case Aug 4, 2016 - and no later than 10 years from the date of judgment.

The ICJ noted that "proceedings for revision are opened by a judgment which decides whether an application for revision is admissible, that is, whether the above conditions have been fulfilled".

The Straits Times understands that this process could take over a year.

The ICJ added that Malaysia, in its application, contends "there exists a new fact of such a nature as to be a decisive factor within the meaning of Article 61". Malaysia said the new fact was not known to it or the ICJ when the judgment was given because it was "only discovered on review of the archival files of the British colonial administration after they were made available to the public by the UK National Archives after the judgment was rendered in 2008", the ICJ said.

"Malaysia also argues that its ignorance of the new fact was not due to negligence as the documents... were 'confidential documents which were inaccessible to the public until their release by the UK National Archives'," it added.



Yesterday, Johor Menteri Besar Khaled Nordin said the state government welcomed and fully supported the efforts by Malaysia's Attorney-General on the case.

"Our hope naturally is that it will succeed this time," he added.

Law Minister K. Shanmugam told reporters that a number of conditions have to satisfied before a judgment can be relooked. Among them are that there are new facts which will make a decisive difference.

"Looking at it from that perspective, I'm wondering what are the new facts in these documents, and how they would make any difference to the case. But these are very quick observations. Our team will study it and respond," he said.

























MFA: Singapore studying closely KL's application over Pedra Branca
The Republic's legal team includes senior lawyers well acquainted with the issue
By Chong Zi Liang and Reme Ahmad, South-east Asia Editor, The Straits Times, 4 Feb 2017

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.

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.











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.





ICJ ruling on Pedra Branca dispute
The Straits Times, 4 Feb 2017

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.
















** Parliament: Singapore rebuttal by June 14
Singapore confident of its team and case
By Nur Asyiqin Mohamad Salleh, The Straits Times, 3 Mar 2017

Singapore strongly believes that the documents relied on by Malaysia in its bid to overturn a 2008 judgment awarding Pedra Branca to the Republic do not satisfy the criteria under which it applied for a revision.

Its legal team has carefully studied the application that Malaysia filed last month at the International Court of Justice (ICJ), including the three documents it cited to support its bid, Foreign Minister Vivian Balakrishnan said yesterday.

"We will submit to the ICJ our comprehensive and compelling rebuttal to Malaysia's application by June 14, which is the time limit fixed by the ICJ," he said during the debate on his ministry's budget. "We are confident of our legal team and our case."



He was responding to Parliamentary Secretary for Home Affairs Amrin Amin and Mr Baey Yam Keng (Tampines GRC), who asked about the Pedra Branca case.

Malaysia last month filed an application to revise the 2008 judgment, citing three "new facts" to argue that "Singapore's officials at the highest levels did not consider that Singapore had acquired sovereignty over Pedra Branca from Johor".

It based its application on Article 61 of the ICJ's Statute, which provides that an "application for revision of a judgment may be made when it is based only upon the discovery of some fact of such a nature as to be a decisive factor".

The fact had to be unknown to the court and also to the party claiming revision when the judgment was given.

The request for revision must also be made within six months of discovery of the new fact - in this case, Aug 4, 2016.

Malaysia cited three documents in its application last month. The first is a confidential telegram from Singapore's top colonial official to the British Secretary of State for the Colonies in 1958, which Malaysia says shows that he "did not consider the island of Pedra Branca to be part of Singaporean territory".

The second is a report about a naval incident near Pedra Branca.

The third document is a map of naval operations in the Malacca and Singapore straits from 1962.

Malaysia said two of the documents, from the United Kingdom National Archives, were declassified after the 2008 judgment. The third document's release date is unknown.

The territorial dispute between Singapore and Malaysia had also involved two smaller maritime features, Middle Rocks and South Ledge, near Pedra Branca.

The ICJ, in its 2008 judgment, found that sovereignty over Middle Rocks belongs to Malaysia and sovereignty over South Ledge belongs to the state in the territorial waters of which it is located.

The three features in the Singapore Strait are located about 40km east of the Republic's main island.

The ICJ had considered correspondence from 1953 between Singapore's colonial officials and Johor as being of central importance.

Johor's top official had written in a 1953 letter that "the Johor government does not claim ownership of Pedra Branca". The court found this showed that while Johor had the original title, "as of 1953, Johor understood that it did not have sovereignty over Pedra Branca".

Singapore's legal team on the case includes senior lawyers well-acquainted with the issue. Dr Balakrishnan said Singapore is very fortunate to still have former deputy prime minister and law minister S. Jayakumar, Ambassador-at-Large Tommy Koh and former chief justice Chan Sek Keong - the leading figures in the original team on the Pedra Branca case.

They are working with a younger team of "bright legal minds" in the Attorney-General's Chambers, to build up expertise and experience in the next generation, he added.



On whether this episode will affect ties with Malaysia, Dr Balakrishnan said bilateral relations are excellent, and mutually beneficial bilateral cooperation will continue.

Singaporeans should not be disconcerted by these developments, he said. "Even with the best of diplomatic and personal relationships, we must expect other states to act in their own self-interests."

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 cooperation to continue, he said.

The Foreign Affairs Ministry, in a separate statement yesterday, announced that Singapore has chosen Judge Gilbert Guillaume - a member of the Permanent Court of Arbitration who was president of the ICJ from 2000 to 2003 - as a judge ad hoc for the case.

Under the ICJ's Statute, 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 on the case.





Related
MFA Spokesman's Comments on Malaysia's Application to Revise the International Court of Justice's Judgment on Sovereignty over Pedra Branca, Middle Rocks and South Ledge, 3 Feb 2017

International Court of Justice – Case concerning sovereignty over Pedra Branca, Middle Rocks and South Ledge

ICJ: Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)

Application for revision of the Judgment delivered by the International Court of Justice (ICJ) on 23 May 2008 in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), filed by Malaysia on 2 February 2017

Speech by Minister for Foreign Affairs Dr Vivian Balakrishnan on the Pedra Branca case in Parliament during the Committee of Supply Debate, 2 March 2017

MFA Press Statement: Filing of Singapore's Written Observations on the Admissibility of Malaysia's Application to Revise the International Court of Justice's Judgement on Sovereignty over Pedra Branca, Middle Rocks and South Ledge - 25 May 2017

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