Written Observations of Singapore

INTERNATIONAL COURT OF JUSTICE
APPLICATION FOR REVISION OF THE JUDGMENT DELIVERED BY THE INTERNATIONAL COURT OF
JUSTICE ON 23 MAY 2008 IN THE CASE CONCERNING SOVEREIGNTY OVER PEDRA BRANCA/PULAU
BATU PUTEH, MIDDLE ROCKS AND SOUTH LEDGE (MALAYSIA/SINGAPORE)
(MALAYSIA v. SINGAPORE)
WRITTEN OBSERVATIONS OF
THE REPUBLIC OF SINGAPORE
24 MAY 2017
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i
WRITTEN OBSERVATIONS OF THE REPUBLIC OF SINGAPORE
CHAPTER I – INTRODUCTION .............................................................................1
A. Malaysia’s Failure to Satisfy Its Burden of Proof .......................................3
1. The Conditions for the Admissibility of a Request for Revision .......................3
2. Malaysia Has Failed to Meet the Conditions for Admissibility........................5
B. The Conduct of the Parties Following the Judgment ..................................8
C. Structure of These Written Observations ..................................................11
CHAPTER II – THE BASIS OF THE COURT’S JUDGMENT ON
SOVEREIGNTY OVER PEDRA BRANCA...........................................................13
A. The Relevance of the 1953 Correspondence...............................................15
B. Singapore’s Activities à titre de souverain on Pedra Branca.....................17
1. Investigation by Singapore of Shipwrecks in the Waters Around Pedra Branca
.........................................................................................................................17
2. Singapore’s Control of Visits to Pedra Branca ..............................................19
3. Display of the British and Singapore Ensigns on Pedra Branca ...................21
4. Installation by Singapore of Military Communications Equipment on Pedra
Branca in 1977.......................................................................................................22
5. Proposed Reclamation by Singapore to Extend Pedra Branca......................23
C. Malaysian Publications and Maps Supporting Singapore’s Sovereignty
Over Pedra Branca .................................................................................................24
1. Malaysian Meteorological Information..........................................................25
2. Official Maps...................................................................................................25
D. The Lack of Any Malaysian Effectivités on Pedra Branca........................29
E. The Court’s Conclusions on Sovereignty....................................................30
CHAPTER III – MALAYSIA’S “NEWLY DISCOVERED DOCUMENTS” IN
CONTEXT ..................................................................................................................35
A. The 1958 Correspondence............................................................................35
B. The Documents Relating to the 1958 Labuan Haji Incident .....................40
C. The Sketch Map ............................................................................................44
ii
CHAPTER IV – THE CONDITIONS OF ADMISSIBILITY UNDER
ARTICLE 61 ...............................................................................................................53
CHAPTER V – THE PROCEDURAL SHORTCOMINGS IN
THE APPLICATION.................................................................................................59
A. Malaysia’s “Newly Discovered Facts”, However Characterised, Were Not
Unknown When the Judgment Was Given...........................................................59
B. Malaysia Failed to Exercise Reasonable Diligence to Obtain These “New
Facts” Before the Judgment Was Delivered.........................................................61
1. UK Legislation on Archival Records ..............................................................62
2. The “New Documents” Could Have Been Researched and Discovered Before
the Judgment was Given ........................................................................................65
3. Conclusion ......................................................................................................69
C. Malaysia Failed to File the Application Within Six Months of the Alleged
Discovery of the “New Facts”.................................................................................69
CHAPTER VI – MALAYSIA’S FAILURE TO SATISFY THE
“DECISIVE FACTOR” REQUIREMENT .............................................................75
A. Malaysia’s Erroneous Characterisation of the Court’s Reasoning in the
Original Case ...........................................................................................................76
B. The Court’s Reasoning is Unaffected by Malaysia’s “New Facts” ..........78
C. Documents Similar to Malaysia’s New Documents Were Dismissed as
Irrelevant by the Court in the Original Case .......................................................80
1. Annex 1............................................................................................................81
2. Annex 2............................................................................................................83
3. Annex 3............................................................................................................86
SUMMARY OF SINGAPORE’S REASONING.....................................................89
SUBMISSION .............................................................................................................93
CERTIFICATION......................................................................................................95
LIST OF ANNEXES ..................................................................................................97
iii
LIST OF INSERTS
Number Description Location
Insert 1 1974 Malaysian “Admission Against Interest” Map
(Map 30 of Singapore Counter-Memorial Map Atlas
in the original case)
after page 26
Insert 2 Map annotated to illustrate the approximate route of
the “normal shipping channel” described by the
Governor in Annex 1 to the Application
after page 36
Insert 3 Sketch map in Annex 3 to the Application annotated
(in red) to show the names of Pulau Ubin and Pulau
Tekong Besar and the 1927 territorial waters
boundary in the Johor Strait
after page 46
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WRITTEN OBSERVATIONS OF
THE REPUBLIC OF SINGAPORE
CHAPTER I
INTRODUCTION
1.1 On 2 February 2017, Malaysia filed an Application for revision (“the
Application”) of the Judgment delivered by the Court on 23 May 2008 in
the Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh,
Middle Rocks and South Ledge (Malaysia/Singapore) (“the Judgment”)1.
The Application is accompanied by three Annexes.
1.2 In accordance with the Registrar’s letter dated 14 February 2017, these
Written Observations address the question of the admissibility of the
Application under Article 61 of the Statute of the Court (“the Statute”)
and Article 99, paragraph 2, of the Rules of Court (“the Rules”). As the
Court has made clear, the Statute and the Rules foresee a “two-stage
procedure” for a request for revision, with the first stage “limited to the
question of admissibility of that request”2.
1 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 12. In
accordance with the terminology applied in the jurisprudence of this Court in
previous revision cases, the Case concerning Sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore) is referred to hereafter as “the original case”.
2 Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1985, p. 197, paras. 8 and 10; Application for Revision of the Judgment of
11 July 1996 in the Case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
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1.3 At this stage, therefore, the question is whether Malaysia has satisfied the
conditions laid down in Article 61 of the Statute for the admissibility of
the Application. Those conditions are the following3:
(a) the application should be based upon the “discovery” of a “fact”;
(b) the fact, the discovery of which is relied on, must be “of such a
nature as to be a decisive factor”;
(c) the fact should have been “unknown” to the Court and to the party
claiming revision when the judgment was given;
(d) ignorance of this fact must not be “due to negligence”; and
(e) the application for revision must be “made at latest within six
months of the discovery of the new fact” and before ten years have
elapsed from the date of the judgment.
In these Written Observations, Singapore will show that except for the
ten-year time limit, the Application fails to meet the conditions set out in
Article 61, and is thus inadmissible.
v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and
Herzegovina), Judgment, I.C.J. Reports 2003, p. 11, para. 15.
3 See Application for Revision of the Judgment of 11 July 1996 in the Case
concerning Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports
2003, pp. 11-12, para. 16; Application for Revision of the Judgment of
11 September 1992 in the Case concerning the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador
v. Honduras), Judgment, I.C.J. Reports 2003, pp. 398-399, para. 19.
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A. Malaysia’s Failure to Satisfy Its Burden of Proof
1. THE CONDITIONS FOR THE ADMISSIBILITY OF A REQUEST FOR REVISION
1.4 Malaysia bears the burden of demonstrating that all of the conditions for
the admissibility of a request for revision laid down in Article 61 of the
Statute have been met. This is made clear in Article 99, paragraph 1, of
the Rules, which provides that:
“A request for the revision of a judgment shall be made by
an application containing the particulars necessary to show
that the conditions specified in Article 61 of the Statute are
fulfilled.” [Emphasis added]
The requirement for an applicant seeking revision to show that the
conditions for admissibility have been met was affirmed in the Chamber’s
Judgment on El Salvador’s request to revise the Judgment in the Land,
Island and Maritime Frontier Dispute, where the Chamber observed that,
at the admissibility stage, the decision is “limited to the question whether
El Salvador’s request satisfies the conditions contemplated by the
Statute.”4
1.5 The Court has also emphasised that “[i]f any one of [the conditions in
Article 61] is not met, the application must be dismissed.”5 Reinforcing
this point, the Court has also observed that: “[s]trictly speaking, once it is
4 Application for Revision of the Judgment of 11 September 1992 in the Case
concerning the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras),
Judgment, I.C.J. Reports 2003, p. 398, para. 19.
5 Ibid., p. 399, para. 20, citing also Application for Revision of the Judgment of
11 July 1996 in the Case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and
Herzegovina), Judgment, I.C.J. Reports 2003, p. 12, para. 17.
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established that the request for revision fails to meet one of the conditions
for admissibility, the Court is not required to go further and investigate
whether the other conditions are fulfilled.”6
1.6 These conditions are demanding ones to which Malaysia is held to a high
standard of proof. Pursuant to the first sentence of Article 60 of the
Statute: “The judgment is final and without appeal”. Requests for the
revision of a Judgment are thus exceptional proceedings because they go
to the finality of what the Court has decided with binding force, and
potentially impact the stability of legal relations, including, in this case,
the stability of territorial sovereignty.
1.7 In this respect, it is significant that none of the three previous requests for
revision submitted to the Court under Article 61 have been found to be
admissible7. This attests to the high standard of proof which an Applicant
seeking revision has to satisfy.
6 Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1985, p. 207, para. 29.
7 Ibid., p. 229, para. 69; see also Application for Revision of the Judgment of
11 September 1992 in the Case concerning the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador
v. Honduras), Judgment, I.C.J. Reports 2003, p. 411, para. 60; and Application
for Revision of the Judgment of 11 July 1996 in the Case concerning
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections
(Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 32,
para. 75.
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2. MALAYSIA HAS FAILED TOMEET THE CONDITIONS FOR ADMISSIBILITY
1.8 As will be shown in these Written Observations, the Application does not
come close to meeting the conditions imposed by Article 61. Malaysia’s
non-compliance with the conditions of admissibility will be discussed in
Chapters IV to VI. However, certain key points deserve mention here.
1.9 As to whether (i) the “newly discovered documents”8 on which Malaysia
relies were unknown to Malaysia when the Judgment was given; (ii) such
ignorance was not due to negligence; and (iii) the Application was made
within six months of their discovery:
(a) Malaysia has made only bare assertions that the documents in
support of the Application were “not available to Malaysia before
the Judgment”9 and were “confidential official documents which
were inaccessible to the public until their release by the UK
National Archives”10, and that it undertook research in the UK
National Archives during the period from 4 August 2016 to
30 January 2017, thus complying with the six-month
requirement11.
(b) Singapore has found evidence showing that nearly two years
before the Application was filed, Malaysia knew of the existence
of the documents, in particular those in Annexes 1 and 2 of the
8 Application, para. 22.
9 Ibid., para. 47.
10 Ibid., para. 47.
11 Ibid., paras. 23 and 51.
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Application. As such, the Application was not made within six
months of the acquisition of such knowledge.
(c) Moreover, the content of the documents in Annexes 2 and 3 of the
Application shows that these documents and any fact they are said
to evince must have been known to Malaysia well before the time
of the Judgment.
(d) In the case of all three Annexes to the Application, even if they
were unknown to Malaysia at the time of the Judgment, Malaysia’s
ignorance was due to negligence. In particular, Annex 3 was part
of a document promulgated in March 1965 and distributed to
Malaysian authorities. Moreover, the documentary annexes to the
pleadings in the original case contain an extract of that same
document. In any event, the UK National Archives file containing
Annex 3 was accessible to the public since April 2005.
1.10 Malaysia also has to satisfy the requirement that the new documents
adduced by Malaysia are evidence of a fact “of such a nature as to be a
decisive factor” affecting the Court’s reasoning underlying its decision
that sovereignty over Pedra Branca belongs to Singapore. In assessing
whether Malaysia has done so, it is necessary to distinguish between the
factors that the Court considered material for its decision on sovereignty,
and those that it did not. As Chapter VI shows, the documents on which
Malaysia now seeks to rely fall into the latter category. Thus, those
documents are, and would have been, irrelevant to the Court’s decision.
1.11 The Court’s holding in the dispositif of the Judgment—“that sovereignty
over Pedra Branca/Pulau Batu Puteh belongs to the Republic of
Singapore”12—was based on a number of factors occurring within a
12 Judgment, p. 101, para. 300(1).
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certain time frame, which, when taken together, reflected a “convergent
evolution of the positions of the Parties regarding title over Pedra
Branca/Pulau Batu Puteh”13, leading the Court to conclude that “by 1980
sovereignty over Pedra Branca/Pulau Batu Puteh had passed to
Singapore.”14 These factors comprised the following key elements:
(a) Johor’s understanding that it did not have sovereignty over Pedra
Branca, as evinced by Johor’s unequivocal statement, in official
correspondence with Singapore in 1953, that it did not claim
ownership of Pedra Branca;
(b) various activities that Singapore undertook on Pedra Branca à titre
de souverain between 1953 and 1980, coupled with Malaysia’s
acceptance of, or failure to react to or protest against, these
activities;
(c) Malaysia’s own publications and official maps, which showed
Pedra Branca as part of Singapore—conduct that constituted
recognition by Malaysia of Singapore’s sovereignty over Pedra
Branca; and
(d) the absence of any Malaysian effectivités on Pedra Branca for over
a century after 1850.
1.12 None of the documents on which Malaysia relies in the Application
affects the reasoning of the Court underlying its decision that sovereignty
over Pedra Branca belongs to Singapore. Moreover, none of those
documents refers to the question of sovereignty or bears the meaning that
Malaysia ascribes to them. Similar documents had been submitted in the
13 Judgment, p. 96, para. 276.
14 Ibid., p. 96, para. 276.
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original case, to which the Court attached no significance for the purpose
of determining sovereignty over Pedra Branca.
B. The Conduct of the Parties Following the Judgment
1.13 Having set out an overview of Singapore’s case as to why Malaysia has
failed to discharge its burden of proving that the conditions of
admissibility under Article 61 have been satisfied, it is apposite to recall
the context in which Malaysia brings the Application.
1.14 On 23 May 2008, the Court delivered the Judgment, in which the Court
found that:
(a) sovereignty over Pedra Branca/Pulau Batu Puteh belongs to the
Republic of Singapore;
(b) sovereignty over Middle Rocks belongs to Malaysia;
(c) sovereignty over South Ledge belongs to the State in the territorial
waters of which it is located.
1.15 The Judgment resolved a long-standing dispute between Malaysia and
Singapore concerning sovereignty over Pedra Branca. This was a dispute
that had lasted some thirty years. Significantly, the Parties included a
specific provision in Article 6 of their Special Agreement submitting the
dispute to the Court, as follows: “The Parties agree to accept the Judgment
of the Court given pursuant to this Special Agreement as final and binding
upon them.”15
15 Judgment, p. 19, para. 2.
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1.16 In a Ministry of Foreign Affairs press statement following the Judgment,
Singapore noted that the Judgment was
“not totally in Singapore’s favour, as the Court [had]
awarded Middle Rocks to Malaysia. The Court also decided
that South Ledge belongs to the country in whose territorial
waters it is located. We had argued that these features are
part of Pedra Branca but as the Court has found otherwise,
Singapore accepts the Court’s decision.”16
In remarks carried in the media, the Malaysian Minister for Foreign
Affairs at the time, H.E. Datuk Seri Utama Dr. Rais Yatim, described the
Judgment as a “win-win situation”. He stated:
“It is a victory for Singapore and it is a winning episode for
Malaysia for having obtained the Middle Rocks. We are
also pleased that the judgment which states that the
territorial waters within which South Ledge is situated, will
be, to be in favour of the state that has the territorial waters.
We will work this out with the technical committee and as
George [George Yeo, Singapore’s Minister for Foreign
Affairs] has stated, the technical committee is already in
swing and in operation, virtually to be in session within
2 weeks from today.”17
16 Singapore Ministry of Foreign Affairs, MFA Press Statement: International
Court of Justice awards sovereignty of Pedra Branca to Singapore, 23 May
2008, available at:
https://www.mfa.gov.sg/content/mfa/media_centre/special_events/pedrabra…
a/press_room/mfa_pr/2008/200805/press_200805_11.html (last accessed:
20 May 2017).
17 Singapore Ministry of Foreign Affairs, Transcript of Door-stop Interview with
Minister for Foreign Affairs George Yeo and Malaysian Foreign Minister,
Datuk Seri Utama Dr. Rais Yatim on 25 May 2008, Sedona Hotel, Yangon,
available at:
https://www.mfa.gov.sg/content/mfa/media_centre/special_events/pedrabra…
a/press_room/sp_tr/2008/200805/press_200805_1.html (last accessed: 20 May
2017).
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1.17 Between August 2008 and November 2013, Malaysia and Singapore met
six times under the auspices of the technical committee mentioned by the
Malaysian Minister for Foreign Affairs. On almost every occasion,
Malaysia and Singapore issued a joint press statement reiterating their
commitment to “honour and abide by the ICJ’s judgment and fully
implement its decision”18. In May 2011, Malaysia and Singapore
completed a joint hydrographic survey of the area in and around Pedra
Branca and Middle Rocks.
1.18 Thus, until it filed the Application, Malaysia had spent the majority of the
nine-year period following the Judgment working with Singapore to
implement the Judgment. During this period, both Malaysia and
Singapore conducted themselves on the basis that sovereignty over Pedra
Branca belongs to Singapore. The hydrographic survey referred to in the
previous paragraph was done in preparation for the work of a subcommittee
to discuss maritime boundary delimitation, and was obviously
premised on the fact that Singapore had sovereignty over Pedra Branca
(otherwise, there would be nothing to delimit). In these circumstances, the
timing of the Application, not to mention its content, is surprising, and
gives every impression of having been submitted owing to internal factors
within Malaysia that are unconnected with the merits of the case.
18 See, e.g., Singapore Ministry of Foreign Affairs, Joint Press Statement on the
5th Malaysia-Singapore Joint Technical Committee (MSJTC) Meeting on the
Implementation of the ICJ Judgment on Pedra Branca, Middle Rocks and South
Ledge, 29-30 November 2010 by H.E. Dato’ Sri Anifah Aman, Minister of
Foreign Affairs, Malaysia and H.E. George Yeo, Minister for Foreign Affairs,
Republic of Singapore, Singapore, 2 December 2010, available at:
https://www.mfa.gov.sg/content/mfa/media_centre/press_room/if/2010/20101
2/infocus_20101202_02.html (last accessed: 20 May 2017).
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C. Structure of These Written Observations
1.19 Singapore’s Written Observations are divided into six Chapters including
this introductory chapter. The remaining Chapters are organised as
follows:
(a) Chapter II will review the central aspects of the Court’s reasoning
in the Judgment that led the Court to hold that sovereignty over
Pedra Branca belongs to Singapore. This background is important
to place Malaysia’s contentions in the proper context.
(b) Chapter III will show that none of the documents introduced by
Malaysia in the Application pertains to sovereignty over Pedra
Branca, and that none bears the meaning Malaysia ascribes to the
documents when given their true meaning in their context.
(c) Chapter IV will then discuss the conditions for admissibility under
Article 61 of the Statute.
(d) Chapter V will show the procedural shortcomings of the
Application, and that, on the basis of any of these shortcomings,
the Application is inadmissible.
(e) Chapter VI will show that Malaysia has also failed to satisfy the
requirement that any “new fact” adduced is “of such a nature as to
be a decisive factor”, and that the Application is therefore
inadmissible.
1.20 A Summary of Singapore’s Reasoning and Singapore’s Submission are
set out at the end of these Written Observations.
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1.21 Concerning terminology and the names of the Parties during the period
relevant to these proceedings, the Court may find it useful to refer to the
following paragraphs reproduced from the Memorial of Singapore
submitted in the original case. These set out basic points not disputed by
Malaysia:
“1.5 Malaysia is a federal State made up of 13 constituent
states. She was formed in 1963 through the merger of the
Federation of Malaya with the State of Singapore (then a
British colony) and the British territories of Sabah and
Sarawak in Borneo. Among the 13 constituent states of
Malaysia, the one that is relevant to this dispute is the State
of Johor. It is the state which is geographically closest to
Singapore.
1.6 In the context of this dispute, Malaysia is the
successor State to the State of Johor in relation to her claim
of sovereignty over Pedra Branca.
…
1.10 In the context of this dispute, Singapore is the
successor in title to the United Kingdom. [Footnote 4 in
original: Throughout this Memorial, the terms ‘United
Kingdom’, ‘Great Britain’ and ‘Britain’ will be used
interchangeably as is appropriate to the context.]”19
1.22 Malaya became independent on 31 August 1957. Malaysia was formed
on 16 September 1963. Singapore became independent on 9 August 1965.
In these Written Observations, Singapore will refer to Malaysia using the
name that applied on the relevant date. Thus, in references to matters
taking place before 16 September 1963, the name used is “Malaya”.
19 Memorial of Singapore, paras. 1.5-1.6 and 1.10. See also CR 2007/20,
6 November 2007, pp. 19-20, paras. 16-17 (Koh).
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CHAPTER II
THE BASIS OF THE COURT’S JUDGMENT ON SOVEREIGNTY
OVER PEDRA BRANCA
2.1 As the Court has observed in previous revision cases, in considering the
contentions of the Applicant, it is necessary to recapitulate at the outset
the relevant part of the reasoning of the Judgment20. To use the Court’s
words from its Judgment on the request for revision in the Genocide case:
“the Court will recount the background to the case with a view to
providing the context for the contentions of the FRY.”21 It is therefore
necessary to review the basis upon which the Court decided in the
Judgment that sovereignty over Pedra Branca belongs to Singapore. This
will show the elements the Court considered relevant for its finding on
sovereignty, as well as the elements that the Court did not consider to be
pertinent. All of the new documents or the “facts” contained therein
introduced by Malaysia fall into the latter category.
2.2 Malaysia contends that, in the light of its recent discoveries, “it is
impossible to identify the development of the ‘shared understanding’ on
which the Court based its judgment”, particularly given what Malaysia
20 See Application for Revision of the Judgment of 11 September 1992 in the Case
concerning the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras),
Judgment, I.C.J. Reports 2003, p. 400, para. 23.
21 Application for Revision of the Judgment of 11 July 1996 in the Case concerning
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections
(Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 14,
para. 24.
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asserts was the “controlling character” that was attributed to the 1953
correspondence and the evaluation of the practice subsequent thereto22.
2.3 This contention is unsustainable. For present purposes, a review of the
relevant parts of the Judgment shows very clearly that the Court’s ruling
on Singapore’s sovereignty over Pedra Branca was based on four key
elements, each of which was, in and of itself, significant, and none of
which is even remotely affected by the new documents introduced by
Malaysia. These elements, which will be discussed in turn below, are:
(a) the 1953 correspondence, including in particular the response of
the Acting State Secretary of Johor on 21 September 1953 to a
query from the Colonial Secretary of Singapore, stating that “the
Johore Government does not claim ownership of Pedra Branca”,
which the Court found reflected Johor’s understanding that it did
not have sovereignty over Pedra Branca;
(b) various activities that Singapore undertook on Pedra Branca à titre
de souverain between 1953 and 1980 (14 February 1980 being the
critical date23), and Malaysia’s acceptance of, or lack of reaction
to or protest against, Singapore’s activities until after the critical
date. It should be noted that the vast majority of these activities
took place after 1966, which is the latest date that appears on the
documents on which Malaysia relies in the Application;
(c) Malaysia’s own publications and maps, which acknowledged
Pedra Branca as part of Singapore, and most of which post-dated
1966; and
22 Application, para. 3.
23 See Judgment, p. 28, para. 34.
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(d) the lack of any competing Malaysian effectivités on or relating to
Pedra Branca for over a century after 1850.
A. The Relevance of the 1953 Correspondence
2.4 On 12 June 1953, the Colonial Secretary of Singapore wrote to the British
Adviser to the Sultan of Johor asking for information regarding Pedra
Branca, on which the Horsburgh lighthouse stood, for the purpose of
ascertaining Singapore’s territorial waters. After referring to various
background documents, the Colonial Secretary stated: “It is how [now]
desired to clarify the status of Pedra Branca”, and asked “whether there is
any document showing a lease or grant of the rock or whether it has been
ceded by the Government of the State of Johore or in any other way
disposed of.”24 Later that month, the Secretary to the British Adviser to
the Sultan of Johor advised the Colonial Secretary that the letter had been
passed to the State Secretary of Johor25.
2.5 On 21 September 1953, the Acting State Secretary of Johor replied to the
Colonial Secretary’s letter of 12 June. In that letter, the Acting State
Secretary informed the latter “that the Johore Government does not claim
ownership of Pedra Branca.”26
2.6 As the Court noted, no further correspondence followed, and Singapore
took no public action although Singapore officials did consider the matter
24 Judgment, p. 73, para. 192.
25 Ibid., pp. 73-74, para. 195.
26 Ibid., p. 74, para. 196.
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internally27. At paragraph 203 of the Judgment, the Court then stated the
following:
“The Court considers that this correspondence and its
interpretation are of central importance for determining the
developing understanding of the two Parties about
sovereignty over Pedra Branca/Pulau Batu Puteh.”
2.7 In the original case, Malaysia argued that the Acting State Secretary of
Johor did not have the authority and capacity to write the reply letter of
21 September 195328. However, the Court did not uphold this
contention29. As to the content of the letter, the Court observed that, while
in law “ownership” was distinct from “sovereignty”; it also observed that
in international litigation, “ownership” over territory had sometimes been
used as equivalent to “sovereignty”30. The Court thus drew attention to
the fact that the enquiry was directed at Singapore’s sovereignty over
Pedra Branca, and that “Johor does not put that matter in doubt in any way
at all.”31 In the Court’s view:
“the Johor reply is clear in its meaning: Johor does not claim
ownership over Pedra Branca/Pulau Batu Puteh. That
response relates to the island as a whole and not simply to
the lighthouse.”32
The Court then concluded:
27 Judgment, p. 74, para. 196.
28 Ibid., p. 77, para. 211.
29 Ibid., p. 79, para. 220.
30 Ibid., p. 80, para. 222.
31 Ibid., p. 80, para. 222.
32 Ibid., p. 80, para. 223.
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“Johor’s reply shows that as of 1953 Johor understood that
it did not have sovereignty over Pedra Branca/Pulau Batu
Puteh. In light of Johor’s reply, the authorities in Singapore
had no reason to doubt that the United Kingdom had
sovereignty over the island.” 33
B. Singapore’s Activities à titre de souverain on Pedra Branca
2.8 The Court then addressed the arguments of the Parties relating to their
respective conduct after 1953. That conduct comprised a number of
different events that were significant for the Court’s holding that
sovereignty over Pedra Branca belongs to Singapore. In this section,
Singapore will recall the Court’s findings about various Singaporean
activities on the island that were undertaken à titre de souverain, for the
most part after 1966, as well as Malaysia’s acceptance of, or failure to
react to or protest against, those activities.
1. INVESTIGATION BY SINGAPORE OF SHIPWRECKS IN THE WATERS
AROUND PEDRA BRANCA
2.9 The first event under this category pre-dated 1953, and concerned a
collision in 1920 between British and Dutch vessels within two miles of
Pedra Branca. While the Court noted that the report of the investigation
did not identify the jurisdictional basis on which it was undertaken, it
nonetheless stated that “[o]f some significance for the Court is that the
enquiry was undertaken by Singapore and not Johor.”34
2.10 The next incident involved the grounding of a British vessel on a reef
adjacent to Pedra Branca in 1963. On this, the Court again noted that “it
33 Judgment, p. 80, para. 223.
34 Ibid., p. 83, para. 233.
- Page 18 -
was the authorities in Singapore, rather than those in Johor, that undertook
the investigation.”35
2.11 The last marine casualty occurring before the 1980 critical date36
concerned the running aground of a Panamanian vessel off Pedra Branca
in 1979. Singapore investigated the incident under its Merchant Shipping
Act. The investigation resulted in a ruling that debarred the vessel’s
Master and Second Officer from working on any Singapore vessel37. On
this incident, the Court was more categorical. It stated:
“The Court considers that this enquiry in particular assists
Singapore’s contention that it was acting à titre de
souverain. This conduct, supported to some extent by that
of 1920 and 1963, provides a proper basis for the Court also
to have regard to the enquiries into the grounding of five
vessels (three of foreign registry) between 1985 and 1993,
all within 1,000 m of the island.”38
2.12 Accordingly, the Court concluded that:
“this conduct gives significant support to the Singapore
case. It also recalls that it was only in June 2003, after the
Special Agreement submitting the dispute to the Court had
come into force, that Malaysia protested against this
category of Singapore conduct.”39 [Emphasis added]
2.13 Also significant in this connection was the Court’s conclusion regarding
the Light Dues Ordinance 1957 (Singapore) concerning the upkeep of
lighthouses and its amendment in 1958. As the Court noted in the
35 Judgment, p. 83, para. 233.
36 Ibid., p. 28, para. 34.
37 See Memorial of Singapore, para. 6.79; Reply of Singapore, para. 4.163.
38 Judgment, p. 83, para. 233.
39 Ibid., p. 83, para. 234.
- Page 19 -
Judgment, not only did the statement of purpose for the 1958 amendment
refer to Pulau Pisang (an island to the north west of Singapore in the Strait
of Malacca which was indisputably under Malayan sovereignty) as not
lying within Singapore’s territorial waters, the drafting history of the
amendment made an express statement that Pedra Branca is
Singapore’s40. The Court observed that such a combination of factors
“does give support to Singapore’s contentions”41 regarding its exercise of
sovereign authority over Pedra Branca.
2. SINGAPORE’S CONTROL OF VISITS TO PEDRA BRANCA
2.14 Another of Singapore’s arguments supporting its claim to sovereignty
over Pedra Branca concerned its control over visits to the island both by
Singaporeans and other nationals (including Malaysian officials), and its
use of the island. Singapore drew attention to the fact that at no point did
Malaysia protest against Singapore’s requiring its officials to obtain
permits to visit Pedra Branca from Singapore42.
2.15 While the Court noted that many of the visits by Singaporean personnel
“related to the maintenance and operation of the lighthouse and are not
significant in the present case”43, it found that two visits by Malaysian
officials to Pedra Branca in 1974 and 1978 were particularly significant
for sovereignty purposes44. Both of these events took place well after the
40 See Judgment, p. 68, para. 174.
41 Ibid., p. 68, para. 174.
42 Ibid., p. 83, para. 235.
43 Ibid., p. 84, para. 236.
44 Ibid., p. 84, para. 236.
- Page 20 -
dates of the three “new documents” on which Malaysia relies in the
Application.
2.16 The 1974 event involved a tidal survey team from Indonesia, Japan,
Malaysia and Singapore who wished to visit Pedra Branca over a seven to
eight week period. As the Judgment recalls, an officer from the Port of
Singapore Authority wrote to the Commanding Officer of the Royal
Malaysian Navy asking for a list of the Malaysian members who would
be staying at the lighthouse, and seeking their particulars, such as names,
passport numbers and nationalities, “[i]n order to facilitate the necessary
approval from the various government ministries concerned”45. The
Malaysian Commanding Officer complied with this request.
2.17 The 1978 visit entailed a request from the Malaysian High Commission
in Singapore for clearance for a Malaysian Government vessel “to enter
Singapore territorial waters” and inspect tide gauges, including at the
Horsburgh lighthouse station on Pedra Branca, over the course of about
three weeks. Singapore’s Ministry of Foreign Affairs acceded to the
request, which evidenced its exercise of authority over Pedra Branca. In
contrast, shortly before this request was made, two people who claimed
to be from the Malaysian Survey Department had landed at Pedra Branca
to carry out triangulation observations without authorisation. They were
informed by the light keeper that they could not remain on the island
without prior permission from the Port of Singapore Authority. The two
Malaysian officials left, and Malaysia made no protest46.
2.18 Given the materiality of these events to the question of sovereignty, the
Court’s view of their legal significance merits recalling:
45 Judgment, p. 84, para. 237.
46 Ibid., p. 84, para. 238.
- Page 21 -
“In the Court’s opinion, this Singaporean conduct is to be
seen as conduct à titre de souverain. The permission
granted or not granted by Singapore to Malaysian officials
was not simply about the maintenance and operation of the
lighthouse and in particular its protection. Singapore’s
decisions in these cases related to the survey by Malaysian
officials of the waters surrounding the island. The conduct
of Singapore in giving permission for these visits does give
significant support to Singapore’s claim to sovereignty over
Pedra Branca/Pulau Batu Puteh.”47 [Emphasis added]
3. DISPLAY OF THE BRITISH AND SINGAPORE ENSIGNS ON PEDRA BRANCA
2.19 As noted above48, Malaysia has sovereignty over the island of Pulau
Pisang. Singapore manned and operated a lighthouse on Pulau Pisang
pursuant to an earlier agreement between the Sultan of Johor and the
Singapore Government. Until 1968, Singapore flew its marine ensign at
the lighthouses on both Pulau Pisang and Pedra Branca. In 1968,
following demonstrations in Malaysia over the flying of the Singapore
ensign on Pulau Pisang, Malaysia requested Singapore to “bring down the
Singapore flag from Malaysian soil at Pulau Pisang”49. In contrast, it
made no such request in respect of the ensign flying at Pedra Branca50.
2.20 In the Judgment, the Court agreed with Malaysia that the flying of an
ensign is “not in the usual case a manifestation of sovereignty and that the
47 Judgment, p. 85, para. 239.
48 See para. 2.13 above.
49 Judgment, p. 87, para. 244.
50 Ibid., p. 87, para. 244.
- Page 22 -
difference in size of the two islands must be taken into account.”51
Nonetheless, it still considered that
“some weight may nevertheless be given to the fact that
Malaysia, having been alerted to the issue of the flying of
ensigns by the Pulau Pisang incident, did not make a
parallel request in respect of the ensign flying at Horsburgh
lighthouse.”52
4. INSTALLATION BY SINGAPORE OF MILITARY COMMUNICATIONS
EQUIPMENT ON PEDRA BRANCA IN 1977
2.21 The Judgment notes that “[i]n July 1976, the Singapore Navy explained
to the Port of Singapore Authority its need, shared by the Singapore Air
Force, for a military rebroadcast station on Pedra Branca/Pulau Batu
Puteh to overcome communications difficulties.”53 The Navy thus
requested the co-operation of the Authority “in order that communications
needs for both security and defence could be met”54—a request to which
the Authority responded positively. The relay station was then installed in
May 197755.
2.22 Although the Court was unable to assess whether Malaysia knew, or
should have known, about the installation by Singapore of this equipment
51 Judgment, p. 87, para. 246.
52 Ibid., p. 87, para. 246.
53 Ibid., p. 87, para. 247.
54 Ibid., p. 87, para. 247.
55 Ibid., p. 87, para. 247.
- Page 23 -
at the time56, regarding Singapore’s establishment of military
communications equipment on the island, the Court found that:
“What is significant for the Court is that Singapore’s action
is an act à titre de souverain. The conduct is inconsistent
with Singapore recognizing any limit on its freedom of
action.”57 [Emphasis added]
5. PROPOSED RECLAMATION BY SINGAPORE
TO EXTEND PEDRA BRANCA
2.23 As the Judgment recalls, in 1978, the Port of Singapore Authority, on the
direction of the Government of Singapore, “studied the possibilities,
which had also been considered in 1972, 1973 and 1974, of reclaiming
areas around Pedra Branca/Pulau Batu Puteh.”58 The Authority published
tenders for a reclamation project in a newspaper advertisement, and three
companies tendered for the project.
2.24 Despite the fact that the project ultimately was not implemented59, the
Court still considered Singapore’s conduct to be material. It observed that:
“while the reclamation was not proceeded with and some of
the documents were not public, the tender advertisement
was public and attracted replies. Further, as the Malaysian
Agent recognizes, the proposed action, as advertised, did go
beyond the maintenance and operation of the lighthouse. It
is conduct which supports Singapore’s case.”60
56 Judgment, p. 88, para. 248.
57 Ibid., p. 88, para. 248.
58 Ibid., p. 88, para. 249.
59 Ibid., p. 88, para. 249.
60 Ibid., pp. 88-89, para. 250.
- Page 24 -
2.25 In addition to the effectivités undertaken by Singapore discussed above61,
this was yet further conduct of Singapore relating to the administration of
Pedra Branca that was undertaken à titre de souverain.
C. Malaysian Publications and Maps Supporting Singapore’s
Sovereignty Over Pedra Branca
2.26 Apart from these activities undertaken by Singapore on or in relation to
Pedra Branca in a sovereign capacity, the Court also addressed a variety
of publications and maps that the Parties adduced in support of their
respective positions.
2.27 For its part, Malaysia relied on a number of Annual Reports of the Rural
Board of Singapore, along with a publication entitled Singapore Facts and
Pictures and a book by J. A. L. Pavitt, Singapore’s Director of Marine for
many years, for the proposition that they did not include Pedra Branca as
part of Singapore’s territory62. However, the Court dismissed the
relevance of these publications. It stated:
“Given the purpose of the publications and their nonauthoritative
and essentially descriptive character, even if
official, the Court does not consider that they can be given
any weight.”63 [Emphasis added]
2.28 In contrast, certain Malaysian publications and maps which showed Pedra
Branca as part of Singapore were viewed by the Court as material and as
61 See paras. 2.9-2.22 above.
62 See Judgment, p. 92, para. 261; p. 93, para. 263.
63 Ibid., p. 92, para. 262. In the Judgment, p. 93, para. 263, the Court stated that
“[t]he same is also true” with respect to a passage from the book by
J. A. L. Pavitt on which Malaysia relied.
- Page 25 -
supporting Singapore’s case. The Court focused on several such examples
discussed below.
1. MALAYSIAN METEOROLOGICAL INFORMATION
2.29 Over the years, meteorological information had been collected from a
weather station on Pedra Branca. This was reported in official government
publications.
2.30 In 1959, before Singapore’s independence, Malaya listed the Horsburgh
lighthouse as one of the “Singapore” Stations for the collection of such
information, and Malaysia and Singapore did the same in a joint
publication in 1966, the year after Singapore’s independence64. However,
in 1967, after the latest date that appears on Malaysia’s “newly discovered
documents” (i.e., 1966), the two countries began to report meteorological
information separately. Malaysia’s 1967 report listed a number of weather
stations in Johor, but did not include the station on Pedra Branca. This
omission was considered to be relevant by the Court:
“The Court does consider as significant in Singapore’s
favour the inclusion of Horsburgh lighthouse as a
‘Singapore’ Station in the 1959 and 1966 reports and its
omission from the 1967 Malaysian report.”65 [Emphasis
added]
2. OFFICIAL MAPS
2.31 Both Parties produced a large number of maps in the original case. While
they both agreed that none of the maps established title, they did contend
64 See Judgment, p. 93, para. 265.
65 Ibid., pp. 93-94, para. 266.
- Page 26 -
that some of the maps issued by the Parties or their predecessors “have a
role as indicating their views about sovereignty or as confirming their
claims.”66
2.32 In the Judgment, the Court noted that “Singapore places considerable
weight on six maps published by the Malayan and Malaysian Surveyor
General and Director of National Mapping in 1962 (two maps), 1965,
1970, 1974 and 1975.”67 For the convenience of the Court, Singapore is
reproducing the 1974 map as Insert 1 on the facing page68.
66 Judgment, p. 94, para. 267.
67 Ibid., p. 94, para. 269.
68 The map at Insert 1 was included as Map 30 in Singapore’sMap Atlas filed with
the Counter-Memorial of Singapore in the original case.
Insert 1
1974 Malaysian “Admission Against Interest” Map
(Map 30 of Singapore Counter-Memorial Map Atlas in the original case)

- Page 27 -
2.33 As can be seen from the representative sample, in all six maps, Pedra
Branca (indicated as “P. Batu Puteh (Horsburgh)”) is annotated with the
word “(SINGAPURA)” or “(SINGAPORE)”. As the Court highlighted in
the Judgment:
“Exactly the same designation ‘(SINGAPORE)’ or
‘(SINGAPURA)’ appears on the maps under the name of
another island which unquestionably is under Singapore’s
sovereignty. Further, in a map in the same series relating to
Pulau Pisang, the site of the other Singapore administered
lighthouse, no similar annotation appears, that omission
indicating that its inclusion has nothing to do with
ownership or management of the lighthouse.”69
2.34 While Malaysia contested the relevance of these maps on various grounds
(that the annotations might be assessed differently, maps did not create
title, maps could never amount to admissions except when incorporated
in treaties or used in inter-state negotiations, and the maps contained a
disclaimer)70, the Court did not accept these arguments. The Court’s
reasoning was as follows:
“On Malaysia’s first contention it does appear to the Court
that the annotations are clear and support Singapore’s
position. On the second point, the Court sees strength in
Singapore’s more limited argument that the maps give a
good indication of Malaysia’s official position rather than
being creative of title. On the third there is authority for the
proposition that admissions may appear in other
circumstances (e.g. Frontier Dispute (Benin/Niger), I.C.J.
Report 2005, p. 119, para. 44). The disclaimer, the subject
of the fourth Malaysian contention, says that the map must
not be considered an authority on the delimitation of
69 Judgment, p. 94, para. 269.
70 Ibid., p. 94, para. 270.
- Page 28 -
international or other boundaries. (The 1974 formula is a
little different.)”71 [Emphasis added]
On this last point, the Court cited the Boundary Commission’s decision
in the Eritrea/Ethiopia case, where the Commission said:
“The map still stands as a statement of a geographical fact,
especially when the State adversely affected has itself
produced and disseminated it, even against its own
interest.”72
2.35 In contrast, Malaysia sought to rely on maps published by Singapore
which, like the sketch map in Annex 3 to the Application, did not depict
Pedra Branca or show it as part of Singapore. However, in concluding its
assessment of the maps, the Court stated:
“The Court recalls that Singapore did not, until 1995,
publish any map including Pedra Branca/Pulau Batu Puteh
within its territory. But that failure to act is in the view of
the Court of much less weight than the weight to be
accorded to the maps published by Malaya and Malaysia
between 1962 and 1975. The Court concludes that those
maps tend to confirm that Malaysia considered that Pedra
Branca/Pulau Batu Puteh fell under the sovereignty of
Singapore.”73
71 Judgment, p. 95, para. 271.
72 Decision regarding Delimitation of the Border between the State of Eritrea and
the Federal Democratic Republic of Ethiopia, 13 April 2002, United Nations,
Reports of International Arbitral Awards, vol. XXV, p. 116, para. 3.28.
73 Judgment, p. 95, para. 272.
- Page 29 -
D. The Lack of Any Malaysian Effectivités on Pedra Branca
2.36 In contrast to Singapore, Malaysia was unable to point to any actions it
took with respect to Pedra Branca that was conduct à titre de souverain.
Indeed, Malaysia never set foot on the island in any sovereign capacity or
did any other act in relation to Pedra Branca in a similar capacity.
2.37 Instead, in the original case, Malaysia advanced a number of factors that
it claimed indirectly evidenced its sovereignty over the island. These
included arguments based on a Malaysian petroleum agreement of 1968,
internal Malaysian legislation from 1969 extending its territorial sea from
3 to 12 nautical miles, and the 1969 Continental Shelf Agreement and
1970 Territorial Sea Agreement between Malaysia and Indonesia. None
of these were considered by the Court to be relevant to the question of
sovereignty.
2.38 With respect to Malaysia’s 1968 petroleum agreement, the Court was
succinct in dismissing its relevance:
“Given the territorial limits and qualifications in the
concession and the lack of publicity of the co-ordinates, the
Court does not consider that weight can be given to the
concession.”74
2.39 Malaysia’s argument based on its 1969 territorial sea legislation fared no
better. The Court’s opinion was that “the very generality of the 1969
legislation means that Malaysia’s argument based on it must fail. It does
not identify the areas to which it is to apply except in the most general
sense: it says only that it applies ‘throughout Malaysia’.”75
74 Judgment, p. 89, para. 253.
75 Ibid., p. 90, para. 256.
- Page 30 -
2.40 As for Malaysia’s reliance on its 1969 Continental Shelf and
1970 Territorial Sea Agreements with Indonesia, the Court attached no
weight to either of these agreements. The 1969 Agreement stopped
6.4 nautical miles short of Pedra Branca, while the 1970 Agreement also
avoided the area around the island. As the Court stated:
“Given that fact [that Singapore had not yet extended its
territorial waters to 12 nautical miles] and the fact that the
line stops 6.4 nautical miles to the east of Pedra
Branca/Pulau Batu Puteh and begins again beyond the
western end of the Straits of Singapore, the Court does not
consider that the 1970 Territorial Sea Agreement can have
any significance in this case.”76
2.41 The Court also did not find significance in the 1973 Indonesia-Singapore
Territorial Sea Agreement. The Court did not consider
“that the 1973 Agreement can be given any weight in
respect of sovereignty over Pedra Branca/Pulau Batu Puteh.
Like the Malaysia-Indonesia Agreements in 1969 and 1970,
the issue is not covered in the 1973 Indonesia-Singapore
Territorial Sea Agreement.”77
E. The Court’s Conclusions on Sovereignty
2.42 Having examined the conduct of the Parties in detail, the Court set out its
conclusions on the question of sovereignty at paragraphs 273-277 of the
Judgment.
2.43 The Court started by saying that the question to which it must respond “is
whether in the light of the principles and rules of international law it stated
earlier and of the assessment it has undertaken of the relevant facts,
76 Judgment, pp. 90-91, para. 258.
77 Ibid., p. 91, para. 259.
- Page 31 -
particularly the conduct of the Parties, sovereignty over Pedra
Branca/Pulau Batu Puteh passed to the United Kingdom or Singapore.”78
2.44 The Court then recalled the conduct of Singapore that had been carried
out on Pedra Branca à titre de souverain and had not been protested by
Malaysia. Although the Court noted that, in many respects, the conduct
of the United Kingdom and Singapore was conduct as the operator of the
Horsburgh lighthouse, it went on to say:
“[B]ut that was not the case in all respects. Without being
exhaustive, the Court recalls their investigation of marine
accidents, their control over visits, Singapore’s installation
of naval communication equipment and its reclamation
plans, all of which include acts à titre de souverain, the bulk
of them after 1953. Malaysia and its predecessors did not
respond in any way to that conduct, or the other conduct
with that character identified earlier in this Judgment, of all
of which (but for the installation of the naval
communications equipment) it had notice.”79
2.45 The Court remarked on the contrasting conduct of Johor and Malaysia. In
this respect, the Court recalled that “the Johor authorities and their
successors took no action at all on Pedra Branca/Pulau Batu Puteh from
June 1850 for the whole of the following century or more.”80 It continued:
“And, when official visits (in the 1970s for instance) were
made, they were subject to express Singapore
permission.”81
78 Judgment, p. 95, para. 273.
79 Ibid., pp. 95-96, para. 274.
80 Ibid., p. 96, para. 275.
81 Ibid., p. 96, para. 275.
- Page 32 -
With respect to the maps, the Court then stated:
“Malaysia’s official maps of the 1960s and 1970s also
indicate an appreciation by it that Singapore had
sovereignty. Those maps, like the conduct of both Parties
which the Court has briefly recalled, are fully consistent
with the final matter the Court recalls.”82
This “final matter” was the 1953 correspondence. On this point, the Court
recalled as follows:
“It is the clearly stated position of the Acting Secretary of
the State of Johor in 1953 that Johor did not claim
ownership of Pedra Branca/Pulau Batu Puteh. That
statement has major significance.”83
2.46 It was this constellation of factors that led to the Court’s conclusion on
sovereignty over Pedra Branca, which it summed up at paragraphs 276
and 277 of the Judgment. Those two paragraphs deserve to be quoted in
their entirety:
“276. The Court is of the opinion that the relevant facts,
including the conduct of the Parties, previously reviewed
and summarized in the two preceding paragraphs, reflect a
convergent evolution of the positions of the Parties
regarding title to Pedra Branca/Pulau Batu Puteh. The Court
concludes, especially by reference to the conduct of
Singapore and its predecessors à titre de souverain, taken
together with the conduct of Malaysia and its predecessors
including their failure to respond to the conduct of
Singapore and its predecessors, that by 1980 sovereignty
over Pedra Branca/Pulau Batu Puteh had passed to
Singapore.
82 Judgment, p. 96, para. 275.
83 Ibid., p. 96, para. 275.
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277. For the foregoing reasons, the Court concludes that
sovereignty over Pedra Branca/Pulau Batu Puteh belongs to
Singapore.”84
2.47 As will be shown in Chapter VI, none of these factors are affected by any
“new fact” which Malaysia purports to rely on in the Application.
84 Judgment, p. 96, paras. 276-277.
This page is intentionally left blank.
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CHAPTER III
MALAYSIA’S “NEWLY DISCOVERED DOCUMENTS” IN CONTEXT
3.1 Malaysia’s request for revision of the Judgment rests on a small selection
of documents that Malaysia has included in three annexes to the
Application. In this Chapter, Singapore will place these documents in
their proper context. Further, Singapore will demonstrate that Malaysia’s
claim of an “implicit underlying fact” regarding sovereignty over Pedra
Branca, said to be evidenced by these documents, is unsupportable. None
of these documents concerns sovereignty per se, much less sovereignty
over Pedra Branca. As Chapters V and VI will show, it therefore also
follows that none of the documents evidences any “new fact”, let alone
any fact “of such a nature as to be a decisive factor” within the meaning
of Article 61.
A. The 1958 Correspondence
3.2 Annex 1 to the Application consists of two telegrams. The first telegram,
dated 18 January 1958, is signed by the Secretary of State for the Colonies
and addressed to the Governor of Singapore. The second telegram, dated
7 February 1958, is the response of the Governor of Singapore to the
Secretary of State for the Colonies.
3.3 This correspondence concerned the breadth of the territorial sea and the
proposal by some States to extend the territorial sea to 6 nautical miles.
This proposal caused concern to Singapore because of the narrowness of
the Strait of Singapore. As the Governor noted in his 7 February 1958
telegram, the western and eastern approaches to Singapore were through
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channels that were “only 8½ miles wide at their narrowest parts.”85 The
effect of extending the territorial sea to 6 nautical miles would have been
to “close the high seas channels of approach to Singapore”86, giving rise
to “special difficulties”87 for Singapore. Singapore would, in effect, be
“territorial sea-locked” by neighbouring States.
3.4 To deal with those “special difficulties”, the Governor suggested
providing for an “international high seas corridor” through the Strait of
Singapore. According to the Governor, the “international high seas
corridor” would “follow the normal shipping channel”88. The effect of
this “corridor” would have been to prevent the channels of approaches on
the eastern and western sides of Singapore from being “close[d]”89 by the
extended territorial seas of Malaya and Indonesia. The “normal shipping
channel” at that time was “approximately”90 described by the Governor
by reference to various navigational aids and is depicted on a chart
prepared for illustrative purposes at Insert 2 on the facing page.
85 Confidential telegram from Governor [of] Singapore to Secretary of State for
the Colonies dated 7 February 1958, para. 1(a) (Application, Annex 1).
86 Ibid., para. 1(a).
87 Confidential telegram from Secretary of State for the Colonies to Governor [of]
Singapore dated 18 January 1958, para. 1 (Application, Annex 1).
88 Confidential telegram from Governor [of] Singapore to Secretary of State for
the Colonies dated 7 February 1958, para. 2 (Application, Annex 1).
89 Ibid., para. 1(a).
90 Ibid., para. 2.
Insert 2
Map annotated to illustrate the approximate route of the “normal shipping
channel” described by the Governor in Annex 1 to the Application

- Page 37 -
3.5 Malaysia argues that the 1958 correspondence showed that the Singapore
authorities did not consider Pedra Branca as part of Singapore territory at
that time91. If they did, according to Malaysia, Singapore “would have
been able to claim rights over the territorial waters surrounding Pedra
Branca/Pulau Batu Puteh”92, thus obviating the need for the Governor to
“advocate the provision of an international passage so near the island”93.
This argument defies logic. The mere fact that the Governor described the
course of the “normal shipping channel” as passing a point “near” a
particular feature does not lead to the conclusion that he did not
understand, or was not advised, that that feature belonged to Singapore.
3.6 First, what the Governor described by reference to the navigational
features was not an exact and detailed proposal of the envisaged
international high seas corridor. All that the Governor stated was that the
corridor would “follow” what was the normal shipping channel, which in
turn was “approximately” described by reference to those navigational
features.
3.7 Second, in his description, the Governor referred to several features that
indisputably belong to Singapore. Apart from “a point 1 mile north of
Horsburgh Light”, the Governor also referred to points “3 miles south of
Sultan Shoal Light” and “2 miles south of Raffles Light”94. Malaysia has
never disputed that Sultan Shoal lighthouse and Raffles lighthouse are
located in Singapore territorial waters, or that they sit on geographical
91 See Application, para. 25.
92 Ibid., para. 25.
93 Ibid., para. 25.
94 Confidential telegram from Governor [of] Singapore to Secretary of State for
the Colonies dated 7 February 1958, para. 2 (Application, Annex 1).
- Page 38 -
features of Singapore95. Further, the Governor referred to “a point
midway between the southernmost point of St. John’s Islands and Batu
Berhanti Light”, which would have been approximately 1.25 nautical
miles from St. John’s Island96. Malaysia has also never disputed that
Singapore has sovereignty over St. John’s Island97.
3.8 Apart from features belonging to Singapore, the Governor’s description
of the “normal shipping channel” also included “Brothers Light” and
“Batu Berhanti Light”, which were and are located on geographical
features belonging to Indonesia.
3.9 Thus, the Governor’s references to various navigational aids along the
“normal shipping channel” were not based on any territorial entitlement
to the features on which those navigational aids were located.
3.10 Malaysia makes several more leaps in logic by asserting that the 1958
correspondence indicates that: (i) “the Governor of Singapore appreciated
that the 1953 correspondence with Johor was not dispositive and did not
effect the transfer of sovereignty over Pedra Branca/Pulau Batu Puteh”98;
and (ii) “Malaysia and Singapore had a shared understanding at that point
95 See Judgment, p. 93, para. 263.
96 This distance is reckoned according to Malaysia’s own pleadings in the original
case, where Malaysia stated that the distance between St. John’s Island and Batu
Berhanti is 2.5 nautical miles. See Memorial of Malaysia, para. 29 (“Near the
middle of the Straits, between Saint John Island and Batu Berhenti, the channel
is only 2.5 nm wide. In short, the area is a confined one, and in normal
conditions all the islands are visible from the nearest coastlines.”)
97 See Memorial of Malaysia, para. 211, where Malaysia cited the 1972 edition of
Singapore Facts and Pictures, and reproduced a list of “islands forming part of
Singapore”. The list that Malaysia reproduced included “St. John’s Island”
(with its Malay name, “Pulau Sekijang Bendera”).
98 Application, para. 25.
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that sovereignty over Pedra Branca/Pulau Batu Puteh rested with
Malaysia, not with Singapore.”99 Neither of these assertions is accurate.
3.11 First, as Singapore has shown above, the 1958 correspondence had
nothing to do with sovereignty. Instead, the Governor was simply
proposing a navigational corridor following the existing “normal shipping
channel”100. This was to overcome the “special difficulties” arising from
the “clos[ing] [of] the high seas channels of approach to Singapore.”101
Thus, the 1958 correspondence had nothing to do with, and gives
absolutely no indication of, any appreciation on the Governor’s part that
the 1953 correspondence “did not effect the transfer of sovereignty over
Pedra Branca”102.
3.12 Second, the 1958 correspondence indicates no “shared understanding”103
between Singapore and Malaysia as to sovereignty over Pedra Branca.
For the reasons set out in the previous paragraph, the 1958
correspondence does not evince Singapore’s understanding of its lack of
sovereignty over the territorial waters surrounding Pedra Branca. Nor
does it indicate any understanding of sovereignty on the part of Malaya
since it did not involve anyMalayan authorities. Indeed, Malaysia did not
at any time after 1953 resile from the position it expressed in the official
correspondence of that year, referred to in Chapter II, that “the Johore
99 Application, para. 26.
100 Confidential telegram from Governor [of] Singapore to Secretary of State for
the Colonies dated 7 February 1958, para. 2 (Application, Annex 1).
101 Ibid., para. 1(a).
102 Application, para. 25.
103 Ibid., para. 26.
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Government does not claim ownership of Pedra Branca.”104 That position
is entirely unaffected by the 1958 correspondence.
3.13 In short, Malaysia has misconstrued the true meaning of the 1958
correspondence at Annex 1 to the Application, viewed in its proper
context. Contrary to Malaysia’s assertion, the 1958 correspondence does
not, and cannot, “attest” anything at all about “Singapore’s understanding
of its entitlement to maritime rights”105 around Pedra Branca. It follows
that the 1958 correspondence cannot be construed to reflect any
understanding, much less “shared understanding”106 as to any matter
relating to sovereignty over Pedra Branca, and therefore evidences no
“fact” of such a nature, let alone a “fact” of such a nature as to be a
decisive factor.
B. The Documents Relating to the 1958 Labuan Haji Incident
3.14 Annex 2 to the Application concerns a navigational incident that occurred
on 25 February 1958 involving the vessel Labuan Haji which was sailing
from Singapore to Thailand. The documents which Malaysia claims it
“discovered in a British archival file for 1958”107 consist of a message
from one Mr Wickens dated 25 February 1958108, which is accompanied
by handwritten internal minutes dated 26 February 1958109, and two
104 See para. 2.5 above.
105 Application, para. 26.
106 Ibid., para. 26.
107 Ibid., para. 27.
108 Note from “ER” to “G.S.” (i.e., Governor’s Secretary, Harold Anthony Shaw)
dated 25 February 1958 (Application, Annex 2).
109 Handwritten internal minute signed by “H Shaw” to “Y.E.” (i.e., “Your
Excellency”, Governor of Singapore, W. A. C. Goode) and handwritten internal
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newspaper cuttings of reports of the incident from well-known and
publicly available newspapers, the Straits Times110 and Singapore
Standard111.
3.15 With respect to Mr Wickens’s message, this stated:
“KPM vessel Labuan Haji left Singapore this morning for
Petani. At 12.56 p.m. message received that she was being
followed by Indonesian gunboat near Horsburgh Light and
she turned back to Singapore. The RMN patrol launch left
Telok Ayer to go to the rescue. Further frantic messages
received that the Indonesian gunboat was trying to block the
Labuan Haji. Royal Navy were not in a position to act as
ship still inside Johore territorial waters. Finally, 2.15 p.m.
RAF Sunderland went up and at 2.50 p.m. Labuan Haji
signalled that gunboat had sheered off and she (Labuan
Haji) was turning north again and proceeding inside
Federation territorial waters.”112
3.16 On the basis of this imprecise description of where the vessel was at the
relevant time, Malaysia alleges that:
minute signed “W A C Goode” to “G.S.” (i.e., Governor’s Secretary, Harold
Anthony Shaw), both dated 26 February 1958 (Application, Annex 2).
110 Cutting from the Straits Times (Application, Annex 2).
111 Cutting from Singapore Standard (Application, Annex 2).
112 Note from “ER” to “G.S.” (i.e., Governor’s Secretary, Harold Anthony Shaw)
dated 25 February 1958 (Application, Annex 2).
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“the military authorities responsible for Singapore’s
defence at the time did not view the waters around Pedra
Branca/Pulau Batu Puteh as belonging to Singapore.
Indeed, these authorities considered these waters to belong
to Johor, and had apparently issued instructions to their
ships to refrain from entering those waters without specific
invitation.”113
3.17 Malaysia has distorted Mr Wickens’s message. The message states that
the incident had occurred “near Horsburgh Light”, not, as Malaysia
asserts, in “the waters around Pedra Branca/Pulau Batu Puteh”114.
Nothing meaningful can be drawn from the expression “near Horsburgh
Light”. It is clear from the context that the crew of the Labuan Haji
mentioned “Horsburgh Light” as a navigational aid and a natural
reference point for navigators in the area—nothing more.
3.18 Moreover, given the geographical setting of the area, with several features
belonging to different States situated so close together, the generality of
the term “near” permits no conclusion as to the location of the incident.
Pedra Branca is 0.6 nautical miles from Middle Rocks, and 6.8 nautical
miles from Pulau Pemanggil, the next nearest Malaysian island115. In the
original case, Malaysia even described Pedra Branca as “a place ‘near
Point Romania’”, based on Pedra Branca’s location “only 7.7 nm from
Point Romania”116. Point Romania is the nearest location on the
Malaysian mainland at Johor. According to Malaysia’s own description,
therefore, a navigational incident in the territorial waters of theMalaysian
mainland at Johor can still be described as having taken place “near”
Pedra Branca. It is therefore not surprising that both a Royal Malayan
113 Application, para. 30.
114 Ibid., para. 30.
115 See Memorial of Malaysia, paras. 32 and 34.
116 Ibid., para. 125. See also CR 2007/24, 13 November 2007, p. 14, para. 15
(Kadir).
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Navy patrol launch and a Royal Air Force Sunderland aircraft were
dispatched in response to the Labuan Haji’s distress message.
3.19 As for the newspaper cuttings, they are equally imprecise. The cutting
from Singapore Standard states:
“On receipt of the message a Royal Malayan Navy motor
launch wa[s] alerted and in addition, a Sunderland aircraft
from the Royal Air Force Station in Seletar was dispatched
for investigation.
When the Sunderland arrived in the area, north of
Horsburgh Lighthouse, the Indonesian gunboat was seen
moving off towards Indonesia, while the Labuan Haji
steamed north-west within the Federation territorial
waters.”117 [Emphasis added]
The only indication as to the actual location of the incident is that the area
was “north of Horsburgh Lighthouse”. According to the same cutting, the
vessel “steamed north-west within the Federation territorial waters.”118
3.20 The cutting from the Straits Times is just as vague on the location of the
incident. It simply reports that according to the Labuan Haji’s own
message, it was “harass[ed]” by the Indonesian gunboat “off Horsburgh
lighthouse, 35 miles north east of Singapore.”119 As the Court noted in the
Judgment, Pedra Branca “lies approximately 24 nautical miles
[27.6 statute miles] to the east of Singapore”120. Therefore, it is unlikely
that the incident occurred anywhere close to, much less within, the
117 See cutting from Singapore Standard (Application, Annex 2).
118 See cutting from Singapore Standard (Application, Annex 2).
119 See cutting from the Straits Times (Application, Annex 2).
120 Judgment, p. 22, para. 16.
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territorial sea of Pedra Branca, which, at the time, extended to 3 nautical
miles (3.5 statute miles).
3.21 In summary, the documents in Annex 2 to the Application say nothing
about sovereignty over Pedra Branca. They do not indicate the distance
between Pedra Branca and the incident involving the Labuan Haji, let
alone the co-ordinates of where the incident took place. In the absence of
any precise indication as to the location of the incident, Mr Wickens’s
statement that “Royal Navy were not in a position to act as ship still inside
Johore territorial waters”121 cannot be construed to mean, as Malaysia
argues, that the “British naval authorities viewed the waters adjacent to
Pedra Branca/Pulau Batu Puteh as belonging to Johor”122.
3.22 For these reasons, the allegedly “newly discovered documents” in
Annex 2 to the Application do not support Malaysia’s case that Singapore
had any understanding, much less a “shared understanding”, that
sovereignty over Pedra Branca “rested with Malaysia, in the name of
Johor”123, and therefore also evidence no “fact” of such a nature, let alone
a fact that could be a decisive factor.
C. The Sketch Map
3.23 Annex 3 to the Application is a sketch map dated 25 March 1962 with
handwritten annotations. The most recent of those handwritten
121 Note from “ER” to “G.S.” (i.e., Governor’s Secretary, Harold Anthony Shaw)
dated 25 February 1958 (Application, Annex 2).
122 Application, para. 31.
123 Ibid., para. 30.
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annotations is dated “Feb 66”124. Malaysia has given this sketch map its
own characterisation, “[a]nnotated map of naval operations”. For ease of
reference, Singapore reproduces this sketch map from the Application
below as Figure 1.
Figure 1. Sketch map at Annex 3 to the Application
3.24 According to Malaysia, this sketch map includes “a clear line delimiting
the Singaporean territorial waters”125 and shows “the limits of
Singaporean territorial waters at a point south of Pulau Tekon [sic] Besar
in the Johor Strait; they do not extend to the vicinity of Pedra Branca.”126
This purportedly provides a “valuable new basis for assessing the
124 Ibid., Annex 3.
125 Application, para. 33.
126 Ibid., para. 33.
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Singaporean authorities’ understanding of their territorial entitlements”,
which did not include Pedra Branca127.
3.25 Malaysia has taken this sketch map completely out of context and
misrepresented what it shows. This sketch map was not intended to depict
the territorial waters or the territorial extent of Singapore, and it does not
do so.
3.26 The sketch map depicts the main island of Singapore, some of
Singapore’s smaller islands, and the southern part of Johor (Malaysia).
The waters dividing the main island of Singapore and Johor in the north
are known as the Johor Strait. The territorial waters boundary between
Singapore and Johor in the Johor Strait has been in existence since
1927128. That boundary has never been disputed by Malaysia129. At
Insert 3 on the facing page is the sketch map from Annex 3 to the
Application with the 1927 territorial waters boundary in the Johor Strait
superimposed on it. If Annex 3 was intended to depict the “territorial
boundary”, it would clearly be inaccurate, especially on the eastern side
of the main island of Singapore.
127 Ibid., para. 35.
128 See Counter-Memorial of Singapore, paras. 6.20-6.25 and 6.97-6.99.
129 See Memorial of Malaysia, paras. 11, 99-100, 190-192, 220-221 and Inserts 14
and 17.
Insert 3
Sketch map in Annex 3 to the Application annotated (in red) to show the
names of Pulau Ubin and Pulau Tekong Besar and the 1927 territorial
waters boundary in the Johor Strait

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3.27 Malaysia’s argument appears to be that the Singapore authorities did not
understand that Pedra Branca belongs to Singapore because it does not
fall within the “territorial boundary” depicted in the sketch map130. The
fallacy of this argument is apparent from the face of the sketch map. The
sketch map shows two islands northeast of the main island of Singapore,
in the Johor Strait. One of these islands is Pulau Tekong Besar. It is
labelled as such on the sketch map, and this label is enlarged for clarity in
Insert 3. The island immediately to the west of Pulau Tekong Besar is
Pulau Ubin, and Pulau Ubin is labelled in Insert 3. Malaysia has never
disputed that Pulau Tekong Besar and Pulau Ubin are islands belonging
to Singapore131. However, on the sketch map, both islands are shown
outside the purported “territorial boundary” of Singapore, the eastern end
of which implausibly and erroneously ends on land in the middle of Pulau
Tekong Besar. Thus, the sketch map was clearly not prepared as an
authoritative or official map to depict the territorial boundaries of
Singapore.
3.28 Rather, the sketch map was made in conjunction with a set of orders
prepared solely for security purposes. Malaysia has mentioned the title of
these orders in the Application132. However, Malaysia has not mentioned
that, when these orders were in force, Singapore faced threats from the
south during a period of tension known as the Confrontation
(Konfrontasi) by Indonesia. As the historian C.M. Turnbull describes:
“Confrontation with Indonesia damaged trade and brought
physical violence. Between September 1963 and May 1965
saboteurs exploded a number of bombs in Singapore, and
130 See Application, paras. 33-35.
131 See Memorial of Malaysia, paras. 191, 196, 211, 214 and 313.
132 See Application, para. 32.
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Indonesian gunboats seized many Singapore fishing
craft.”133
3.29 In this regard, the sketch map was intended to depict only areas south of
the main island of Singapore that were affected by restrictions designed
to guard against security threats from the south. The purpose of the sketch
map is disclosed by reviewing that part of the 1964-1966 file containing
the sketch map that Malaysia has not produced. Singapore has attached
the relevant extracts of the 1964-1966 file to these Written Observations
as Annex 1134.
3.30 At paragraph 32 of the Application, Malaysia refers to the “Orders for
Ships Patrolling in Defence of Western Malaysian Seaboard” from which
the sketch map was taken. However, Malaysia has failed to produce or
refer to Annex B to these orders, paragraph 6 of which reads:
“SINGAPORE PORT RESTRICTED AREAS
6. In the waters South of Singapore Island. Restricted
areas, night curfew areas and night fishing areas are in
force. Details are given in Appendix One to this Annex.”135
[Emphasis added]
3.31 Further, Appendix One to Annex B contains the following text, which
bears reproducing in full:
133 Turnbull, C.M.: A History of Singapore, 1819-2005. Singapore: NUS Press,
2009, p 290.
134 Extracts from Orders for Ships Patrolling In Defence of Western Malaysian
Seaboard, 2nd ed., promulgated by the Naval Officer-in-Charge, West Malaysia,
and the Commander, Far East Fleet of the Royal Navy on 25 March 1965
(MALPOS II), attached to these Written Observations as Annex 1.
135 Annex 1, p. A4.
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“Restricted and Prohibited Areas – Singapore Territorial
Waters.
The Shipping and Fishing Community is advised that new
night curfew arrangements for boats under oars, sails and
outboard motors will come into force at 1900 hours (7 p.m.)
Friday 29.1.65. Three areas where night fishing will be
permitting have been designated. Boats must enter the areas
before 1900 hours (7 p.m.) and remain in the area until
0530 hours (5.30 a.m.). Night movement of boats under
oars, sails and outboard motors in all other parts of the
territorial waters of Singapore between Tg. Changi and Tg.
Kampong continues to be prohibited.
The prohibited day and night areas for all vessels under
100 tons will with effect from 1900 hours (7 p.m.) 29.1.65
be extended to the East to a point off Tg. Mata Ikan and to
the West off Sultan Shoal Lighthouse. Any vessel under
100 tons wanting to pass through the area by day or night
must be in possession of a permit issued by the O.C. Port
Authority or in possession of a Port Clearance. Passes are
normally only issued for day-light passage through the
prohibited areas.
A plan showing: -
(a) the night fishing areas [indicated as ]
and
(b) the night curfew area for boats under oars,
sails and outboard motors [indicated as
], and
(c) the prohibited zones for all vessels under
100 tons during day and night [indicated as
],
is attached herewith.” [Emphasis added]
3.32 The “plan… attached herewith” is the sketch map found at Annex 3 to
the Application.
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3.33 At paragraph 33 of the Application, Malaysia refers in passing to what
can only be Appendix One to Annex B, based on the title of the order to
which Malaysia refers. However, Malaysia has omitted the crucial context
for the sketch map that is provided by reading the sketch map together
with the extracts from Annex B reproduced at paragraphs 3.30 and 3.31
above. As can be seen in the sketch map, the “waters South of Singapore
Island” mentioned in paragraph 6 of Annex B are “the territorial waters
of Singapore between Tg. Changi and Tg. Kampong”, and the areas “to
the East to a point off Tg. Mata Ikan and to the West off Sultan Shoal
Lighthouse”. Tanjung Changi (“Tg. Changi”) is the easternmost point of
the main island of Singapore marked on the sketch map, while Tanjung
Kampong (“Tg. Kampong”) is the westernmost point of the main island
of Singapore marked on the sketch map. Tanjung Mata Ikan (“Tg. Mata
Ikan”) is where “Mata Ikan Beacon” is marked on the sketch map, near
Tanjung Changi, while Sultan Shoal Lighthouse is marked as such on the
sketch map, near Tanjung Kampong. All of the designated curfew areas
and fishing areas mentioned in Appendix One and marked on the
“plan”—which is the sketch map in Annex 3 to the Application—are
south of the main island of Singapore.
3.34 Therefore, read in its context, the sketch map was produced specifically
and purely for security threats associated with Confrontation
(Konfrontasi) by Indonesia, arising from the south of the main island of
Singapore. Thus, there was no need to include Pedra Branca on the sketch
map. Similarly, there was also no need to include Pedra Branca when the
“night curfew arrangements” shown on the sketch map were “reviewed
each month by Singapore Authorities and re-imposed as necessary”, as
was done according to the handwritten annotation dated “Feb 66”136.
136 Application, Annex 3.
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3.35 In summary, the sketch map provides no basis for “assessing the
Singaporean authorities’ understanding of their territorial
entitlements”137. Neither the sketch map nor the handwritten annotation
“describe[s] the operation and outcome of a regular process in which the
Singapore authorities reviewed and reaffirmed the strict regulation of
their maritime spaces every month.”138 The sketch map was not prepared
as an authoritative or official map to depict the territorial boundaries of
Singapore, but as part of a set of orders concerning security arrangements
specifically designed to counter security threats to the south of the main
island of Singapore. For all these reasons, the sketch map is irrelevant to
the issue of sovereignty over Pedra Branca.
137 Application, para. 35.
138 Ibid., para. 35.
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CHAPTER IV
THE CONDITIONS OF ADMISSIBILITY UNDER ARTICLE 61
4.1 The relevant provisions of Article 61 of the Statute are:
“1. 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, 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.
…
4. The application for revision must be made at latest
within six months of the discovery of the new fact.
5. No application for revision may be made after the
lapse of ten years from the date of the judgment.”
4.2 Singapore shares, and can fully endorse, Malaysia’s analysis of the
requirements of Article 61, in paragraphs 17 to 19 of the Application, in
particular the remark that:
“Malaysia acknowledges that all of these requirements
must be satisfied for an application for revision to be
admissible.”139 [Emphasis added]
4.3 This last remark is in line with the Court’s well-established jurisprudence,
according to which:
139 Application, para. 19. At footnote 11 of the Application, Malaysia also cites
Application for Revision of the Judgment of 11 September 1992 in the Case
concerning the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras),
Judgment, I.C.J. Reports 2003, p. 399, para. 20.
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“an application for revision is admissible only if each of the
conditions laid down in Article 61 is satisfied. If any one of
them is not met, the application must be dismissed.”140
[Emphasis added]
4.4 As recently and aptly observed, the provisions of the Statute and the Rules
concerning revision
“are couched and placed in the Statute in such a way as to
emphasize the exceptional nature of [this procedure], as
possibly impairing the stability of the jural relations
established by the res judicata.”141
4.5 Due to this exceptional nature, the Court has acknowledged that the
“conditions for granting an application for revision of a judgment are
strictly circumscribed”142. Therefore:
“[i]n the interests of the stability of legal relations, those
restrictions must be rigorously applied.… Subject only to
140 Application for Revision of the Judgment of 11 July 1996 in the Case concerning
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections
(Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 12,
para. 17. See also Application for Revision and Interpretation of the Judgment
of 24 February 1982 in the Case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya),
Judgment, I.C.J. Reports 1985, p. 207, para. 29; and Application for Revision of
the Judgment of 11 September 1992 in the Case concerning the Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
(El Salvador v. Honduras), Judgment, I.C.J. Reports 2003, p. 404, para. 36.
141 Shaw, Malcolm N.: Rosenne’s Law and Procedure of the International Court:
1920-2015. 5th edition. Koninklijke Brill NV, 2016. §III.394. See also ibid.,
§III.397 (“It is also the case that the process of revision needs also to be strictly
circumscribed and for the same reason, that is respect for the fundamental
importance of the principle of res judicata.”).
142 Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary
Objections, Judgment, I.C.J. Reports 2004, p. 314, para. 90. See also
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment,
I.C.J. Reports 2007, p. 90, para. 115.
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this possibility of revision [offered by Article 61], the
applicable principle is res judicata pro veritate habetur, that
􀁌􀁖􀀃􀁗􀁒􀀃􀁖􀁄􀁜􀀃􀁗􀁋􀁄􀁗􀀃􀁗􀁋􀁈􀀃􀂿􀁑􀁇􀁌􀁑􀁊􀁖􀀃􀁒􀁉􀀃􀁄􀀃􀁍􀁘􀁇􀁊􀁐􀁈􀁑􀁗􀀃􀁄􀁕􀁈􀀏􀀃􀁉􀁒􀁕􀀃􀁗􀁋􀁈􀀃􀁓􀁘􀁕􀁓􀁒􀁖􀁈􀁖􀀃
of the case and between the parties, to be taken as correct,
and may not be reopened on the basis of claims that doubt
has been thrown on them by subsequent events.”143
4.6 At the outset, it is difficult to discern what, precisely, is the “new fact”
within the meaning of Article 61 on which Malaysia relies in support of
the Application. First, Malaysia claims that each of the documents “can
be characterised as a new fact”144. Then, Malaysia states:
“these newly discovered documents may be taken as
evidence of an implicit underlying fact, namely, that
Singapore did not consider that the 1953 correspondence
effected a transfer of sovereignty over Pedra Branca/Pulau
Batu Puteh to Singapore.”145 [Emphasis added]
Yet elsewhere in the Application, Malaysia asserts that:
“[t]he newly discovered documents individually and
together demonstrate that Singapore, at the very highest
levels, knew that that 1953 correspondence did not effect a
transfer of sovereignty, and that in the years after that
exchange Pedra Branca/Pulau Batu Puteh did not form part
of Singapore’s sovereign territory.”146
4.7 With respect to Malaysia’s claim that each of the documents “can be
characterised as a new fact”, it should be highlighted that “fresh
143 Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment,
I.C.J. Reports 2007, pp. 92-93, para. 120.
144 Application, para. 22.
145 Ibid., para. 22.
146 Ibid., para. 40. See also Application, para. 23.
- Page 56 -
documents do not in themselves amount to fresh facts.”147 A document
may be newly discovered, but the underlying “fact” to which it is said to
relate could have been known earlier and thus not be a “new fact”.
4.8 Moreover, as shown in Chapter III, whether the “newly discovered
documents” are considered individually or collectively, they do not stand
for Malaysia’s proposition that they can “be taken as evidence of an
implicit underlying fact, namely, that Singapore did not consider that the
1953 correspondence effected a transfer of sovereignty over Pedra
Branca/Pulau Batu Puteh to Singapore.”148 Nor do they “demonstrate that
Singapore, at the very highest levels, knew that that 1953 correspondence
did not effect a transfer of sovereignty, and that in the years after that
exchange Pedra Branca/Pulau Batu Puteh did not form part of Singapore’s
sovereign territory.”149 In short, there is no “new fact” of the nature
alleged by Malaysia for the purposes of Article 61. On this basis alone,
the Application is not admissible.
4.9 In Chapters V and VI, Singapore will show that except for the ten-year
requirement specified in Article 61, paragraph 5, none of the other
conditions prescribed in Article 61 is satisfied. Specifically, Singapore
will demonstrate the following:
147 Question of the Monastery of Saint-Naoum (Albanian Frontier), Advisory
Opinion, 1924, P.C.I.J., Series B, No. 9, p. 22. See also Application for Revision
of the Judgment of 11 September 1992 in the Case concerning the Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
(El Salvador v. Honduras), Judgment, I.C.J. Reports 2003, p. 411, para. 59,
where the Chamber made no finding as to whether the documents submitted by
El Salvador, in and of themselves, constituted “new facts”. Rather, the Chamber
found that these documents did not meet the “decisive factor” requirement under
Article 61.
148 Application, para. 22 (Emphasis added).
149 Ibid., para. 40.
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(a) The “new facts” allegedly referred to in the new documents
discovered by Malaysia were not unknown to the Court and to
Malaysia when the Judgment was given. This is discussed in
Chapter V, Section A.
(b) Malaysia has failed to show that its ignorance of the “new facts”
in the time before the Judgment was given is not due to its
negligence. This is discussed in Chapter V, Section B.
(c) Malaysia has not fulfilled the six-month condition of Article 61,
paragraph 4, because the so-called “new facts” were known to
Malaysia well before 4 August 2016. This is discussed in
Chapter V, Section C.
(d) Malaysia’s “new facts” do not satisfy the “decisive factor”
requirement. This is discussed in Chapter VI.
This page is intentionally left blank.
- Page 59 -
CHAPTER V
THE PROCEDURAL SHORTCOMINGS IN THE APPLICATION
5.1 In this Chapter, Singapore will show that Malaysia’s “newly discovered
facts”, however Malaysia characterises them, were known to the Court
and Malaysia as the Parties had made full arguments based on such facts
in the original case. Singapore will also show that the “new facts” were
obtainable by Malaysia in the original case by reason of their character
and substance. Furthermore, most of Malaysia’s “new documents” were
published online in March 2015 by a member of the Malaysian delegation
in the original case, much earlier than six months before the filing of the
Application as prescribed under Article 61, paragraph 4. For all these
reasons, the Application’s procedural shortcomings are sufficient grounds
for the Court to dismiss Malaysia’s request under Article 61.
A. Malaysia’s “Newly Discovered Facts”, However Characterised,
Were Not Unknown When the Judgment Was Given
5.2 As the Court made clear in its Judgment on the Application to revise its
Judgment on Preliminary Objections in the Genocide (Bosnia and
Herzegovina v. Yugoslavia) case:
“[U]nder the terms of Article 61, paragraph 1, of the
Statute, an application for revision of a judgment may be
made only when it is ‘based upon the discovery’ of some
fact which, ‘when the judgment was given’, was unknown.
These are the characteristics which the ‘new’ fact referred
to in paragraph 2 of that Article must possess. Thus both
paragraphs refer to a fact existing at the time when the
judgment was given and discovered subsequently.”150
150 Application for Revision of the Judgment of 11 July 1996 in the Case concerning
Application of the Convention on the Prevention and Punishment of the Crime
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5.3 As discussed in paragraph 4.6 above, it is not clear what “new fact”
Malaysia is relying upon for the Application. If the “fact” on which
Malaysia is relying is that “Singapore did not consider that the 1953
correspondence effected a transfer of sovereignty over Pedra
Branca/Pulau Batu Puteh to Singapore”151, this “fact” was known to all at
the time of the Judgment. This was the position Singapore took in the
original case, and this position was fully known to Malaysia, and formally
acknowledged by Counsel for Malaysia in the oral proceedings:
“Nous prenons acte toutefois que Singapour ne revendique
pas cette lettre comme valant un titre ou même comme
constituant la racine d’un titre.”152
5.4 If, on the other hand, the “newly discovered fact”153 upon which Malaysia
is relying is that “Singapore, at the very highest levels, knew… that in
the years after that exchange [i.e., the 1953 correspondence] Pedra
Branca/Pulau Batu Puteh did not form part of Singapore’s sovereign
territory”154, this is also not an “unknown” fact within the meaning of
Article 61.
5.5 Contrary to what Malaysia claims in various parts of the Application,155
Malaysia clearly knew about this “newly discovered fact” because this
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections,
(Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 30,
para. 67.
151 Application, para. 22.
152 CR 2007/31, 23 November 2007, p. 29, para. 3 (Kohen) (“We note, however,
that Singapore is not claiming for this letter the status of a title or even a root of
title.” [Translation by the Registry])
153 Application, para. 41.
154 Ibid., para. 40.
155 Ibid., paras. 44-45 and 48.
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was precisely what Malaysia claimed in its pleadings in the original case.
There, Malaysia alleged that Singapore’s conduct and representation
showed that Singapore did not have sovereignty over Pedra Branca156.
This claim was carefully considered and dismissed by the Court157. Thus,
the documents that Malaysia has now produced are but a futile attempt to
prove a non-existing “new fact”.
5.6 Even if the Court’s earlier decision was based on matters not pleaded by
the Parties, quod non, that alone is not a valid ground to request revision
of a Judgment under Article 61. To suggest otherwise, as Malaysia does
in the Application158, would be to confuse the revision procedure under
Article 61 with an appeal procedure that might be available in a municipal
court but which is not envisaged in the Statute, which expressly states that
its Judgments are “final and without appeal”.
B. Malaysia Failed to Exercise Reasonable Diligence to Obtain These
“New Facts” Before the Judgment Was Delivered
5.7 Article 61, paragraph 1, of the Statute makes clear that even if Malaysia’s
“new facts” were unknown to it at the time of the Judgment, Malaysia
must still show that “such ignorance was not due to negligence”. In
Tunisia v. Libya, the Court referred to this condition as “one of the
156 See Memorial of Malaysia, paras. 242 and 245-267; Counter-Memorial of
Malaysia, paras. 510-514; and Reply of Malaysia, paras. 304-318, 324-329 and
339-367.
157 Judgment, pp. 36-38, paras. 118-124; pp. 82-96, paras. 231-277.
158 See Application, paras. 41, 45 and 48.
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essential conditions of admissibility of a request for revision laid down in
paragraph 1 of Article 61 of the Statute”159.
5.8 In the case of the Application, even if Malaysia’s documents were
evidence of “new facts”, quod non, Malaysia has not shown that it has
made any effort to obtain these documents before the Judgment. Indeed,
all of the documents on which Malaysia now seeks to rely were obtainable
with reasonable diligence before the Judgment was delivered.
1. UK LEGISLATION ON ARCHIVAL RECORDS
5.9 To circumvent this plain conclusion, Malaysia argues:
“Since the documents described above were housed in the
UK National Archives and were only released to the public
after the Judgment, their discovery after the conclusion of
the proceedings before the Court is not attributable to any
negligence on the part of the Government of Malaysia, and
so presents no obstacle to the admissibility of the
application for revision.”160
This is a weak attempt by Malaysia to attribute its own negligence to the
declassification policy of the UK National Archives. Malaysia has
presented no evidence to show that it had made any attempt to obtain the
documents before the Judgment was given. In fact, as the following
explanation of the relevant UK law shows, if Malaysia had made a request
to the United Kingdom (“UK”) before the Judgment was given for the
documents it now annexes to the Application, Malaysia could have
159 Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1985, p. 207, para. 28.
160 Application, para. 49.
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obtained them under the applicable UK law in force. The explanation
below is derived from information freely available on the website of the
UK National Archives161.
5.10 For many years until January 2005, the applicable law was the Public
Records Act (UK)162. Under the Public Records Act, “records of, or held
in, any department of Her Majesty’s Government in the United
Kingdom”163 are “public records” to be selected for permanent
preservation and transferred to the Public Record Office (now the UK
National Archives)164. Under the so-called “30 year rule”, public records
in the Public Record Office had to be made available for public inspection
once they had been in existence for 30 years165.
5.11 Therefore, up to January 2005, if the Malaysian Government had made a
request to the UK Government for access to archival records concerning
colonial administration in Malaysia and Singapore, the UK Government
would have been obliged under UK law to accede to that request if the
relevant records had been in existence for at least 30 years. This means
that the UK Government would have been obliged to provide access to
161 See The National Archives, Legislation and regulations, available at:
http://www.nationalarchives.gov.uk/information-management/legislation/ (last
accessed: 20 May 2017).
162 Public Records Act 1958 (UK), as amended by the Public Records Act 1967
(UK), available at: http://www.legislation.gov.uk/ukpga/Eliz2/6-7/51/ (last
accessed: 20 May 2017).
163 Public Records Act 1958 (UK), First Schedule, para. 2(1)(a).
164 See Public Records Act 1958 (UK), Sec. 3(4).
165 See Public Records Act 1967 (UK), Sec. 1, available at:
http://www.legislation.gov.uk/ukpga/1967/44/section/1 (last accessed: 20 May
2017), which amended the Public Records Act 1958 (UK), Sec. 5(1). See also
The National Archives, History of the Public Records Acts, available at:
www.nationalarchives.gov.uk/information-management/legislation/publicre…-
act/history-of-pra/ (last accessed: 20 May 2017).
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archival records dating from before January 1975. This obligation would
have covered Annexes 1 to 3 to the Application, since all of them date
from before January 1975.
5.12 In January 2005, the Freedom of Information Act (UK) amended the
Public Records Act so that if the Malaysian Government had made its
request after that time, the UK Government would have been obliged
under the Freedom of Information Act to allow the Malaysian
Government access to the relevant archival records on request166.
5.13 The UK legislation mentioned at paragraphs 5.10 through 5.12 above
accords with the general spirit of Article 28, paragraph 3, of the Vienna
Convention on Succession of States in respect of State Property, Archives
and Debts167, which provides that:
“The predecessor State shall provide the newly independent
State with the best available evidence from its State
archives which bears upon title to the territory of the newly
independent State or its boundaries, or which is necessary
to clarify the meaning of documents of States archives of
the predecessor State which pass to the newly independent
State pursuant to other provisions of the present article.”168
166 In January 2005, the parts of the Public Records Act 1958 (UK) relating to
access to public records were amended by the Freedom of Information Act 2000
(UK). The effect of those amendments was to make the rules for accessing the
UK Foreign and Commonwealth Office archives even more flexible, subject
only to the exceptions set out in the Freedom of Information Act 2000. See The
National Archives, The public records system, available at:
http://www.nationalarchives.gov.uk/information-management/legislation/
public-records-act/public-records-system (last accessed: 19 May 2017).
167 United Nations, Official Records of the United Nations Conference on
Succession of States in respect of State Property, Archives and Debts
(Documents of the Conference), document A/CONF.117/14, p. 146.
168 The Convention was adopted at a diplomatic conference convened by the United
Nations General Assembly on the basis of a set of draft articles adopted by the
United Nations International Law Commission. In respect of evidence “which
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2. THE “NEW DOCUMENTS” COULD HAVE BEEN RESEARCHED AND
DISCOVERED BEFORE THE JUDGMENT WAS GIVEN
5.14 Malaysia has also failed to exercise reasonable diligence with respect to
the research and discovery of all the “new documents” on which it now
seeks to rely.
5.15 First, in the original case, Malaysia produced a July 1953 document
similar to the 7 February 1958 telegram in Annex 1 to the Application169.
Both the 1953 and the 1958 correspondence concerned issues relating to
the potential extension of the limits of the territorial sea beyond 3 nautical
miles, arising from contemporaneous developments in the law of the
sea170. This disposes of the Malaysian argument that “it would be difficult
to expect litigants to be characterised as negligent for not discovering
information relevant to a point which was not anticipated in the
proceedings.”171 From the July 1953 correspondence, Malaysia clearly
knew that there were internal discussions within Singapore concerning
the territorial sea issue, but Malaysia has produced no evidence in the
bears upon title to territory of the newly independent State or its boundaries”
mentioned in Article 28, paragraph 3 [then draft Article 26, paragraph 3], the
Commission noted that “[t]he need for such evidence is especially crucial when
the latter State is in dispute or litigation with a third State concerning the title to
part of its territory or its boundaries. The Commission considers, therefore, that
the predecessor State has a duty to transmit to the newly independent State the
‘best evidence’ available to it.” See United Nations, Yearbook of the
International Law Commission, 1981, vol. II, Part Two,
document A/CN.4/SER.A/1981/Add.1 (Part 2), p. 64.
169 Letter and attachments from A.G.B. Colton, for the Colonial Secretary,
Singapore, to the Deputy Commissioner General for Colonial Affairs,
Singapore, dated July 1953 (Memorial of Malaysia, Vol. 3, Annex 68).
170 See also paras. 3.3-3.4 above.
171 Application, para. 48.
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Application of any approaches made to the United Kingdom so as to
discover Annex 1 to the Application172.
5.16 Second, Malaysia’s position is no better on the documents relating to the
Labuan Haji incident. It is highly significant that Annex 2 to the
Application includes two contemporary press articles from well-known
and publicly available newspapers, the Straits Times and Singapore
Standard, reporting on this incident “off Horsburgh lighthouse”. The
Straits Times was the main English-language newspaper in both Malaya
and Singapore in 1958, and in 1959 the archives of the Straits Times were
relocated from Singapore to Kuala Lumpur in Malaysia. Since then,
materials dating before 1959, including the Straits Times article in
Annex 2 to the Application, have remained in Kuala Lumpur. Had
Malaysia exercised reasonable diligence during its preparations for the
original case, it is clear that Malaysia could have identified and obtained
the article with minimal effort.
5.17 Furthermore, according to Mr Wickens’s message and the press cuttings,
both British and Malayan military forces responded to the distress
message sent by the Labuan Haji. The Royal Malayan Navy sent a naval
launch and the Royal Air Force dispatched a Sunderland aircraft.
Therefore, the incident and its concrete circumstances were known to
Malaysia ever since the incident occurred.
5.18 Third, Malaysia’s negligence is also demonstrated in the case of the
sketch map in Annex 3 to the Application. Malaysia claims that “[i]t is
not known precisely when [the sketch] map was released to the public,
172 See also paras. 5.10-5.12 above.
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and the UK National Archives was unable to supply a specific date when
enquiries were made.”173
5.19 The UK National Archives has in fact specifically informed Singapore in
a letter dated 25 April 2017 (attached to these Written Observations as
Annex 2) that the file numbered “DEFE 69/539”, in which Malaysia
“discovered” the sketch map, was “transferred to The [UK] National
Archives on 20th September 2002” and “made available for research on
21st April 2005.”174
5.20 Indeed, the set of orders containing the sketch map is referred to by
Dr. Ian Pfennigwerth in his book on the Royal Australian Navy in
Southeast Asia175. The book was published in 2008, but it is clear that all
the research had been completed and the manuscript finalised for
publication by November 2007176.
5.21 In the book, Dr. Pfennigwerth mentions certain “Orders for Ships
Patrolling in Defence of Western Malaysia Seaboard — known by its
short title MALPOS.”177 The primary document reference in the relevant
footnote is to “UKNA DEFE 24/98 - Report on Naval Operations in East
and West Malaysia, 1964-1966, COMFEF Letter 1763.FEF.143/12 OPS
173 Application, para. 36.
174 Correspondence concerning the date of release of DEFE 69/539 with The UK
National Archives dated 4-25 April 2017, attached to these Written
Observations as Annex 2.
175 Pfennigwerth, Ian: Tiger Territory: The Untold Story of the Royal Australian
Navy in Southeast Asia from 1948 to 1971. Kenthurst, New South Wales:
Rosenburg Publishing, 2008.
176 Ibid., p. 9.
177 Ibid., p. 187.
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of 23 November 1966.”178 Then, he mentions “[t]he second edition of
MALPOS, issued in March 1965”, which “was a comprehensive set of
instructions on how to prepare for and conduct patrols.”179 This set of
orders was accessible to a private individual like Dr. Pfennigwerth and
would certainly have been accessible to Malaysia with minimal effort.
Further, the UK National Archives informed Singapore that DEFE 24/98
was made available for research from as early as January 1998180.
5.22 Apart from being freely available since January 1998, as confirmed by
the UK National Archives, Malaysia has also omitted to mention that the
same set of orders from which the sketch map was obtained was extracted
and annexed to the written pleadings in the original case. At paragraph 32
of the Application, Malaysia refers to these orders by title: “Orders for
Ships Patrolling in Defence of Western Malaysian Seaboard”. An annex
bearing extracts from the same title is attached to the Reply of Singapore
filed in the original case as Annex 33.
5.23 Annex 33 also shows that copies of the set of orders containing the sketch
map were distributed to various Malaysian authorities, including the
“Inspector-General RMP” (“RMP” refers to the Royal Malaysian Police),
“Mindef K.L. for Navy” (“Mindef K.L.” refers to the Ministry of Defence
in Kuala Lumpur, Malaysia) and “C.O. NOICWM … for R.M.N. ships”
178 Pfennigwerth, Ian: Tiger Territory: The Untold Story of the Royal Australian
Navy in Southeast Asia from 1948 to 1971. Kenthurst, New South Wales:
Rosenburg Publishing, 2008, pp. 307-308, note 79.
179 Ibid., p. 187.
180 See Correspondence concerning the date of release of DEFE 69/539 and
DEFE 24/98 with The UK National Archives dated 4-25 April 2017, attached
to these Written Observations as Annex 2. In the letter dated 25 April 2017 at
Annex 2, p. A15, the Chief Executive’s Office of the UK National Archives
noted that “there is one retained item (redacted) [in DEFE 24/98] which is held
by the Ministry of Defence”. The sketch map is not part of that retained item.
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(“R.M.N.” refers to the Royal Malaysian Navy)181. The set of orders
containing the sketch map has thus been in Malaysia’s possession for
more than 50 years.
5.24 Therefore, Malaysia was in a position to obtain the sketch map well before
the Judgment was given.
3. CONCLUSION
5.25 For all these reasons, there can be no doubt that “one of the essential
conditions of admissibility of a request for revision laid down in
paragraph 1 of Article 61 of the Statute, namely ignorance of a new fact
not due to negligence, is lacking.”182 Malaysia was negligent in failing to
obtain in a timely manner all the documents it now presents as “new
facts”.
C. Malaysia Failed to File the Application Within Six Months of the
Alleged Discovery of the “New Facts”
5.26 Malaysia has also failed to comply with the condition of Article 61,
paragraph 4, of the Statute, according to which “[t]he application for
revision must be made at latest within six months of the discovery of the
new fact.”
181 Reply of Singapore, Vol. 3, Annex 33, p. 244.
182 Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1985, p. 207, para. 28.
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5.27 In paragraph 23 of the Application, Malaysia explains that “[d]uring the
period 4 August 2016–30 January 2017, research was undertaken by
Malaysia at the United Kingdom National Archives in London.”183 This
explanation calls for a number of observations.
5.28 First, the very fact that such research was undertaken shows that Malaysia
considered that its research within the scope of the original case was not
as complete as it should have been. Second, as far as Annex 1 to the
Application is concerned, Malaysia claims that the relevant archives were
opened to the general public in 2013184, but gives no explanation as to
why it then waited another three years before commencing a search for
new documents. Third, the Application says nothing at all about the
lateness of the “discovery” of the documents in Annexes 2 and 3. Fourth,
the Application gives no precise date of the so-called “discovery” of any
of the “new documents”.
5.29 Malaysia, as the Applicant, bears the burden of showing that it has met
the conditions for admissibility prescribed in Article 61 of the Statute,
including the six-month condition185. Singapore, as the Respondent,
cannot be expected to rebut evidence not disclosed.
5.30 That said, it is clear that the documents introduced by Malaysia in support
of the Application do not fulfil the six-month condition under Article 61,
paragraph 4. In a 29 March 2015 blog entry published by Professor
Shaharil Talib, entitled “New Facts for Revision Application”, Professor
Shaharil states:
183 Application, para. 23.
184 Ibid., para. 25.
185 See also para. 1.4 above.
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“The final piece of evidence that is decisive in the
Application for Revision of Judgment is yet another 2013
released file in the UK Archives. The file makes three
important new facts hitherto unknown.
First, it lists all Indonesian patrol vessel intrusions into
Singapore Territorial Waters in the Straits of Singapore
which were raised with Indonesian authorities by the
Government of the Colony of Singapore. The incidents
listed covered the period 1955 to 1958. The cases included
incidents near Mata Ikan, Raffles Lighthouse and Pulau
Senang. There is no mention of Horsburgh Lighthouse and
Pedra Branca/Pulau Batu Puteh in the list of intrusions into
Singapore Territorial Waters.
Second, this file reveals another crucial piece of evidence
where there was mention of an incident around the
Territorial Waters of Pedra Branca/Pulau Batu Puteh and in
its official correspondence the local authorities of
Singapore mentioned that this incident occurred within the
territorial waters of Johore which was also reported in the
local press. The incident was never recorded in the List of
Intrusions into the Territorial Waters of Singapore. This is
a decisive fact.
The Third new fact was the observation of Singapore
authorities to the suggested Extension of territorial waters
to 6 miles in the Straits of Singapore would not be in
Singapore’s interests for the following reasons:
(a) The approaches to Singapore are through the
channels between the Indonesian Islands on the south and
the mainland of the Federation of Malaya [The State and
Territory of Johore] on the north. These channels are only
8 ½ miles wide at their narrowest parts on both the western
and eastern side. The effect of extending territorial waters
to 6 miles therefore be to close the high seas channels of
approach to Singapore.
(b)2. [sic] It is therefore important to Singapore that the
present 3 mile limits of territorial waters should be retained.
However, if it is necessary in the last resort to agree to a
general application of six mile limits, not only must the
right of innocent passage through the International Straits
so created be reaffirmed, but a special provision should be
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made for an international high seas corridor one mile wide
through the straits between Singapore and Malayan
territory on the north and Indonesian territory on the south.
This corridor should follow the normal shipping channel
from west to east which is approximately as follows. From
a point 3 miles north of the Brothers light to a point 3 miles
south of Sultan Shoal Light to a point 2 miles south of
Raffles Light to a point midway between the southern point
of St. Johns Islands and Batu Berhenti Light to a point 1
mile north of Horsburgh Light.”
It is obvious that had the Colony of Singapore sovereignty
over Pedra Branca/Pulau Batu Puteh the issue of closing the
entrance into the Straits of Singapore from the High Seas of
the South China Sea or the exit from the Straits of Singapore
into the South China Sea would never had been raised in
1958.”186
5.31 There is substantial overlap between the material forming the basis of the
Application and the “new facts” described in Professor Shaharil’s blog
entry. Professor Shaharil had knowledge of the Annexes to the
Application from early 2015, if not before.
5.32 Professor Shaharil participated in the oral proceedings in the original case
and is listed in the Judgment as a member of the Malaysian delegation. In
the delegation list, his designation is “Head of Special Research Unit,
Chambers of the Attorney-General of Malaysia”187. According to the
curriculum vitae attached to the blog, Professor Shaharil continues to hold
186 Shaharil Talib, New Facts for Revision Application, dated 29 March 2015,
available at http://indefenceofresearch.blogspot.com/2015/03/new-facts-forrevision-
application.html (last accessed: 24 April 2017), attached to these
Written Observations as Annex 3.
187 Judgment, p. 16, preambular paragraph.
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this position188. Knowledge of Professor Shaharil is therefore knowledge
of Malaysia.
5.33 As noted by Professors Zimmermann and Geiss:
“in order to establish that the fact was unknown to the
applicant, the question of whose knowledge is attributable
to the applicant State has to be answered.189 In analogy to
Art. 4 of the ILC Articles on State Responsibility, the
knowledge of State organs should be considered as
knowledge of the State,190 but in particular the knowledge
of those persons who had represented the applicant in the
original proceedings.191”192
Although this observation was made in the context of knowledge for the
purposes of Article 61, paragraph 1, it applies equally to Article 61,
paragraph 4.
188 Curriculum vitae of Dato’ Dr. Shaharil Talib, undated, available via a link on
http://indefenceofresearch.blogspot.com to
http://www.scribd.com/doc/15984859/CV-Prof-Shaharil (last accessed:
15 April 2017), attached to these Written Observations as Annex 4.
189 Note 186 in the original: “With regard to the attribution of knowledge, cf.
generally the Corfu Channel case, ICJ Reports (1949), pp. 4, 17–22.”
190 Note 187 in the original: “ILC Articles on Responsibility of States for
Internationally Wrongful Acts, UN Doc. A/56/10; (Bosnian) Genocide case
(Application for Revision), CR/2002/40, p. 62 (Varady), where Art. 4 of the
ILC Articles was applied in the context of the discovery of the fact in order to
establish that the time-limit had been observed and that Mr Kostunica’s acts and
knowledge were not attributable to the FRY, because at the relevant time, he
acted as a private person; cf. also CR/2002/41, p. 28 (van Biesen).”
191 Note 188 in the original: “As to the representation of the parties by agents,
counsel and advocates cf. Berman on Art. 42, passim.”
192 Zimmermann, Andreas, and Geiss, Robin: Article 61 (In: The Statute of the
International Court of Justice: A Commentary, ed. by Andreas Zimmermann
et al. Second ed. Oxford: Oxford University Press, 2012, p. 1522).
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5.34 In this connection, it is telling that current access to Professor Shaharil’s
blog is denied in Malaysia and remains inaccessible in Malaysian
territory. Notifications appearing in place of the blog explain that the
“website is not available in Malaysia as it violate(s) the National
law(s)”193, and that the relevant “National law(s)” are sections 263(2) and
233 of the Communications and Multimedia Act 1998 (Malaysia)194.
From section 263(2) of the same Act and from one of the notifications
appearing in place of the blog, it is clear that access was denied at the
written request of the Malaysian Communications and Multimedia
Commission, a Malaysian Government agency. Malaysia is therefore
fully aware of this blog. The Court can draw its own conclusions from the
coincidence of the denial of access to the blog in Malaysia and the filing
of the Application.
5.35 It is therefore quite apparent that Malaysia discovered the “new facts” in
or before March 2015. By submitting the Application only on
2 February 2017, Malaysia has failed to comply with the six-month
condition prescribed by Article 61, paragraph 4, of the Statute.
193 Screen capture of notification of unavailability of
www.indefenceofresearch.blogspot.my in Malaysia (last accessed: 27 April
2017 in Malaysia), attached to these Written Observations as Annex 5.
194 Screen capture of notification of the details of denial of access to
www.indefenceofresearch.blogspot.my in Malaysia due to violation of the
Communications and Multimedia Act 1998 (Malaysia) (last accessed: 27 April
2017 in Malaysia), attached to these Written Observations as Annex 6.
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CHAPTER VI
MALAYSIA’S FAILURE TO SATISFY THE
“DECISIVE FACTOR” REQUIREMENT
6.1 As set out in Chapter IV195, Malaysia must satisfy all the conditions in
Article 61 of the Statute. These include the condition that the alleged
“new facts” must be of such a nature as to be a decisive factor. Malaysia
has also failed to satisfy this condition. The “new facts” presented by
Malaysia are not of such a nature and by no means justify the admissibility
of the request for revision under Article 61, paragraph 1.
6.2 In determining whether the “decisive factor” equirement is satisfied, the
Court assesses the newly discovered fact in the light of the factors relied
on as the basis of the Court’s judgment196. Whether or not a fact is of a
decisive nature depends, as the Chamber in El Salvador v. Honduras put
it, on whether it “overturn[s] the conclusions arrived at” by the Court in
the original case197.
195 See paras. 4.2-4.3 above.
196 See para. 2.1 above, and authorities cited therein. See also Franco-German
Mixed Arbitral Tribunal, Baron de Neuflize (France) v. Diskontogesellschaft et
al. (Germany), 1927, 7 Recueil des décisions des Tribunaux Arbitraux
Mixtes 629; Application for Revision of the Judgment of 11 September 1992 in
the Case concerning the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras),
Judgment, I.C.J. Reports 2003, pp. 409-410, paras. 50-51; Geiss, Robin:
“Revision Proceedings before the International Court of Justice” (In: Zeitschrift
für ausländisches öffentliches Recht und Völkerrecht, Vol. 63, 2003, p. 182).
197 Application for Revision of the Judgment of 11 September 1992 in the Case
concerning the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras),
Judgment, I.C.J. Reports 2003, p. 410, para. 53.
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6.3 In Chapter II, Singapore reviewed the decisive factors that led the Court
to hold that sovereignty over Pedra Branca belongs to Singapore. As
Singapore will demonstrate in this Chapter, the Court’s reasoning in the
Judgment is “wholly unaffected”198 by any fact evidenced by Malaysia’s
“newly discovered documents”. On the contrary, Malaysia’s “newly
discovered documents” are similar to those that the Court dismissed as
irrelevant in the original case.
A. Malaysia’s Erroneous Characterisation of the Court’s Reasoning in
the Original Case
6.4 At the outset, it is necessary for Singapore to respond to Malaysia’s
mischaracterisation of the Court’s reasoning in the Judgment when it
alleges that:
“While the Court’s 2008 judgment considered post-1953
practice, the weight that the Court accorded to the 1953
correspondence cast this correspondence as the prism
through which the subsequent developments were seen. 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.”199 [Emphasis added]
6.5 This is a mischaracterisation of the Judgment. The 1953 correspondence,
while regarded by the Court as having “major significance”200, did not
have the “controlling character” that Malaysia seeks to ascribe to it. As
198 Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1985, p. 213, para. 38.
199 Application, para. 3.
200 Judgment, para. 275.
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explained in Chapter II, the Court’s ruling on Singapore’s sovereignty
over Pedra Branca was based on four key elements—including the 1953
correspondence—each of which was, in and of itself, significant201.
Malaysia relies on this mischaracterisation, which it repeats at
paragraphs 40 and 41 of the Application, to support the assertion that its
“new fact” is of such a nature as to be a decisive factor.
6.6 In addition, Malaysia contends that the
“newly discovered fact would … if considered anew,
inevitably lead to a different conclusion on the question of
whether Johor’s title to the island had passed to Singapore.
This is all the more the case as the Court’s appreciation that
sovereignty passed in consequence of the emergence of an
informal agreement between the Parties was not the subject
of submission by the Parties or enquiry by the Court in the
original proceedings.” 202
6.7 There is no factual basis for Malaysia’s assertions that “the Court’s
appreciation that sovereignty passed in consequence of the emergence of
an informal agreement between the parties” was “not the subject of
submission by the Parties or enquiry by the Court in the original
proceedings.”203 This is because the Court simply never made any
reference to, much less a finding that there had emerged, such an
“informal agreement”. Instead, the Court found that:
“the relevant facts, including the conduct of the Parties,
previously reviewed and summarized in the two preceding
paragraphs, reflect a convergent evolution of the positions
of the Parties regarding title to Pedra Branca/Pulau Batu
Puteh. The Court concludes, especially by reference to the
201 See paras. 2.2 and 2.3 above.
202 Application, para. 41.
203 Ibid., para. 41.
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conduct of Singapore and its predecessors à titre de
souverain, taken together with the conduct of Malaysia and
its predecessors including their failure to respond to the
conduct of Singapore and its predecessors, that by 1980
sovereignty over Pedra Branca/Pulau Batu Puteh had
passed to Singapore.”204
B. The Court’s Reasoning is Unaffected by Malaysia’s “New Facts”
6.8 In Chapter II, Singapore has given a detailed explanation of the Judgment,
which was based on four key elements205. Each key element is wholly
unaffected by Malaysia’s “new facts”.
6.9 First, in relation to the 1953 correspondence, which the Court considered
to be of “central importance for determining the developing
understanding of the two Parties about sovereignty over Pedra
Branca/Pulau Batu Puteh”206,Malaysia’s argument in reliance on its “new
documents” is that there is some “new fact” regarding the Singapore
authorities’ purported understanding of Singapore’s sovereignty over
Pedra Branca. Malaysia has misconstrued the Court’s conclusion on the
1953 correspondence, which is that “Johor’s reply shows that as of 1953
Johor understood that it did not have sovereignty over Pedra
Branca/Pulau Batu Puteh.”207 In other words, the Court focused on
Johor’s understanding regarding sovereignty over Pedra Branca rather
than that of Singapore. None of the documents on which Malaysia bases
the Application alters the significance of the statement by the Acting State
Secretary of Johor that Johor did not claim ownership, i.e., sovereignty,
204 Judgment, p. 96, para. 276.
205 See paras. 2.42-2.46 above.
206 Judgment, p. 75, para. 203 (Emphasis added).
207 Ibid., p. 80, para. 223 (Emphasis added).
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as decided by the Court, of Pedra Branca208—a statement that neither
Johor nor Malaysia ever resiled from afterwards.
6.10 Second, the Court referred to various activities that Singapore undertook
à titre de souverain on or related to Pedra Branca mostly after 1953, and
Malaysia’s acceptance of, or failure to react to or protest against, any of
these activities, as a key part of its conclusion that, by 1980, sovereignty
over Pedra Branca had passed to Singapore. Significantly, the vast
majority of these activities took place after 1966, which is the latest date
that appears on the documents on which Malaysia relies in the
Application. With respect to these activities, the Court noted in several
places in the Judgment that they gave “significant support” to Singapore’s
claim209. Malaysia’s “new facts” in no way affect this aspect of the
Court’s reasoning.
6.11 Third, the Court relied on Malaysia’s own publications and official maps,
most of which also post-date 1966, to support its ruling on sovereignty.
Thus, with respect to Malaysia’s failure to include Pedra Branca as a
Malaysian meteorological station after Singapore’s independence in its
official publication, the Court stated that it considered this omission “as
significant in Singapore’s favour”210. Similarly, in connection with a
number of official maps that Malaysia published designating Pedra
Branca as “Singapore”, the Court found that these annotations were “clear
and support Singapore’s position.”211 The Court concluded that “those
maps tend to confirm that Malaysia considered that Pedra Branca/Pulau
208 Judgment, p. 80, para. 223.
209 Ibid., p. 83, para. 234; p. 85, para. 239. See also Judgment, p. 87, para. 246;
p. 88, para. 248; and pp. 88-89, para. 250.
210 Ibid., pp. 93-94, para. 266.
211 Ibid., p. 95, para. 271.
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Batu Puteh fell under the sovereignty of Singapore.”212 None of the
documents annexed by Malaysia to the Application affects this aspect of
the Court’s reasoning.
6.12 Fourth, the Court noted that Malaysia could not point to a single act it
ever took in a sovereign capacity on Pedra Branca213. This aspect of the
Court’s reasoning is also wholly unaffected because none of the
documents that Malaysia relies on shows any Malaysian effectivités on
Pedra Branca.
6.13 In view of the above, none of the so-called “new facts” affects the holding
of the Court that sovereignty over Pedra Branca belongs to Singapore or
the reasoning of the Court that formed the basis for that holding. Thus,
none can be a decisive factor.
C. Documents Similar to Malaysia’s New Documents Were Dismissed
as Irrelevant by the Court in the Original Case
6.14 There is another reason why Malaysia’s “new facts” are not, and cannot
be considered to be, of such a nature as to be a decisive factor. In the
original case, the Court considered, but did not accept, arguments raised
by the Parties based on documents similar to those now relied on by
Malaysia; a fortiori, none of the documents now presented by Malaysia
can be considered a decisive factor. This is elaborated below.
212 Judgment, p. 95, para. 272.
213 Ibid., p. 96, para. 275. See also paras. 2.36-2.41 above.
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1. ANNEX 1
6.15 Annex 1 to the Application consists of an exchange of correspondence in
1958 concerning the breadth of the territorial sea. Malaysia relies on
Annex 1 to argue that Singapore did not at the time consider Pedra Branca
as part of Singapore territory, and did not consider that the 1953
correspondence had any impact on its understanding of its territorial
entitlements214.
6.16 First, the Court did not consider correspondence between British
authorities and the colonial administration in respect of the breadth of the
territorial sea decisive in respect of sovereignty over Pedra Branca in the
original case215. As explained in Chapter III216, the 1958 exchange of
correspondence took place in the context of developments in the law of
the sea concerning “new methods of defining territorial waters” following
the Court’s 1951 Judgment in the Fisheries case. In the original case, the
Court considered internal Singapore correspondence of July 1953
concerning the same issues, which Malaysia had in fact exhibited217. The
1958 correspondence that Malaysia now seeks to rely on is very similar
to the July 1953 correspondence. Paragraph 225 of the Judgment bears
quoting in full to show the parallels with Annex 1 to the Application:
“Internal Singapore correspondence of July 1953 indicates
that the Foreign Office and Colonial Office in London were
involved in a wider examination of issues relating to
territorial waters, with the then recent Judgment of this
214 See Application, para. 25.
215 See Judgment, p. 81, para. 225.
216 See para. 3.3 above.
217 See Letter and attachments from A.G.B. Colton, for the Colonial Secretary,
Singapore, to the Deputy Commissioner General for Colonial Affairs,
Singapore, dated July 1953 (Memorial of Malaysia, Vol. 3, Annex 68).
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Court in the Fisheries case (United Kingdom v. Norway)
(Judgment, I.C.J. Reports 1951, p. 116) constituting an
important element (that Judgment was rendered on
11 December 1951). The conclusion reached in Singapore
by the Colonial Secretary was that because of geographical
circumstances, the colony would gain very little from the
new methods of defining territorial waters. On the other
hand, ‘an application of the new principles by neighbouring
countries’ could ‘only result in an undesirable restriction to
fishing grounds normally used by Singapore fishermen’.
‘For general reasons also any enclosure of the high seas by
foreign States is contrary to the interest of this densely
populated maritime Colony dependent on sea-borne trade.’
The internal letter of July 1953 concluded by mentioning an
understanding reached on the former methods of defining
territorial waters with Indonesia in July 1951, and a concern
not to disturb the relationship which then existed between
the Colony and Indonesia. In all the circumstances, the fact
that the authorities in Singapore — or in London for that is
where the final decision-making power lay — took no action
at that time is not at all surprising.”218 [Emphasis added]
In the light of the quote above, what Malaysia is now seeking is to reargue
a point already canvassed and dismissed in the original case.
6.17 Second, the Court also did not consider as relevant a new ships routeing
system through the Straits of Malacca and Singapore, including “at
Horsburgh Light Area”219, which was established in 1977 and performed
a similar function to the “international high seas corridor” proposed in
Annex 1 to the Application. The Court held that this routeing system was
“not concerned with territorial rights but with the facilitation and safety
of navigation through the Straits as a whole.”220
218 Judgment, pp. 80-81, para. 225.
219 See Memorial of Singapore, Annex 134, p. 1060.
220 Judgment, p. 91, para. 260.
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6.18 Third, concerning the Governor’s references to several navigational aids
in the Singapore Strait when describing the “international high seas
corridor”, the Court rejected a similar argument by Malaysia in the
original case. There, Malaysia had attempted to draw inferences about
sovereignty over Pedra Branca from the following passage in the 1966
Singapore Light Dues Board publication by J. A. L. Pavitt:
“The Board, formed by statute in 1957, is responsible for
the provision and upkeep of all ship navigational aids in
Singapore waters, and for the outlying stations at Pedra
Branca (Horsburgh) in the South China Sea and Pulau
Pisang in the Malacca Strait. Within Singapore waters, the
Board maintains Raffles, Sultan Shoal and Fullerton
Lighthouses, 33 light beacons, 29 unlit beacons, 15 light
buoys, and 8 unlit buoys.”221
The Court agreed with Singapore’s reading of the same passage that the
descriptions were “simply geographical”222, and therefore irrelevant to
the question of sovereignty over Pedra Branca. The same conclusion must
apply to the documents in Annex 1 to the Application, which are equally
irrelevant to the question of sovereignty over Pedra Branca.
2. ANNEX 2
6.19 Annex 2 to the Application consists of documents concerning an incident
involving the Labuan Haji and an Indonesian gunboat, namely a message
from one Mr Wickens223, accompanied by handwritten internal
221 Reproduced in the Judgment at p. 93, para. 264. See also para. 2.27 above.
222 Judgment, p. 93, para. 264.
223 Note from “ER” to “G.S.” (i.e., Governor’s Secretary, Harold Anthony Shaw)
dated 25 February 1958 (Application, Annex 2).
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minutes224, and two newspaper cuttings of reports of the incident from the
Straits Times and Singapore Standard. On the basis of imprecise and
vague references in these documents that the incident took place “near
Horsburgh Light”, Malaysia argues that the territorial waters around
Pedra Branca were the territorial waters of Johor (and therefore
Malaysia). In the original case, however, the Court gave no significance
to similarly imprecise and vague documents, and therefore no
significance should be given to Annex 2.
6.20 First, similarly to Malaysia’s present argument based on the phrase “near
Horsburgh Light”225, Malaysia relied on 1844 correspondence between
the Governor of Singapore and the Temenggong of Johor on the
construction of “a Light House near Point Romania”226 in order to bolster
its case before the Court. Specifically, Malaysia argued that the
expression “near Point Romania” encompassed Pedra Branca. The Court
stated:
“The Court would note in any event that the Malaysian
contention about that acknowledgement faces the difficulty
that the correspondence appears to be in the most general
terms, in all likelihood without specifically identifying
Pedra Branca/Pulau Batu Puteh.”227 [Emphasis added]
6.21 Second, the Court addressed an 1861 incident involving Singapore
fishermen who had been attacked by Johor Malays while returning from
224 Handwritten internal minute signed “H Shaw” to “Y.E.” (i.e., “Your
Excellency”, Governor of Singapore, W. A. C. Goode) and handwritten internal
minute signed “W A C Goode” to “G.S.” (i.e., Governor’s Secretary, Harold
Anthony Shaw), both dated 26 February 1958 (Application, Annex 2).
225 Application, para. 27 (Emphasis added).
226 Judgment, p. 53, para. 128 (Emphasis added).
227 Ibid., p. 55, para. 134.
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fishing, according to them, “near to the Pedro Branco Light House”228. In
the original case, Malaysia drew attention to a letter from the British
Governor to the Temenggong of Johor describing the incident as having
taken place “in the neighbourhood of the Pedro Branco Light House”229
and asking for the attackers to be punished. Malaysia argued that this
letter demonstrated that the Governor did not consider Pedra Branca as
British230. Concerning the Parties’ arguments over whether this incident
showed that the British colonial authorities had jurisdiction over Pedra
Branca and its territorial waters, the Court concluded that
“the wording of the Singapore reports are too vague to
provide any assistance in determining the understanding at
that time by the authorities in Singapore of sovereignty over
Pedra Branca/Pulau Batu Puteh.”231 [Emphasis added]
6.22 Third, in respect of Malaysia’s 1969 territorial waters legislation, the
Court underlined that “the very generality of the 1969 legislation means
that Malaysia’s argument based on it must fail. It does not identify the
area to which it is to apply except in the most general sense”232.
6.23 In the same way, the “very generality” of the documents in Annex 2 to
the Application also means that Malaysia’s argument based on Annex 2
must fail.
228 Counter-Memorial of Singapore, Vol. 2, Annex 19, p. 194 (Emphasis added).
229 Ibid., Annex 19, p. 194 (Emphasis added).
230 See Counter-Memorial of Malaysia, paras. 119-120; Reply of Malaysia,
para. 276.
231 Judgment, p. 72, para. 191.
232 Ibid., p. 90, para. 256.
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3. ANNEX 3
6.24 Annex 3 to the Application consists of a sketch map forming part of a set
of naval orders indicating curfews and restrictions.Malaysia relies on this
sketch map to argue that its omission of Pedra Branca showed that
Singapore did not, at the time, consider Pedra Branca as forming part of
Singapore’s territorial entitlement233.
6.25 In the original case, Malaysia similarly relied on the omission of Pedra
Branca from the scope of a curfew order made in Singapore in 1948 (“the
1948 Curfew Order”) to support its argument that the Singapore
authorities had appreciated that Pedra Branca “was not part of the territory
of Singapore”234. Rejecting Malaysia’s argument, the Court decided that:
“[A]s Singapore points out, there was no reason in terms of
its purpose for extending the ban [on persons being in the
specified area between 6.30 p.m. and 6.30 a.m. without a
police permit] to such a distant island anymore than there
was for extending it to the Cocos and Christmas Islands,
some great distance away in the Indian Ocean, which at the
time were part of the Colony of Singapore.”235
Exactly the same reasoning applies to the sketch map in Annex 3 to the
Application. As explained in Chapter III236, the sketch map was prepared
to depict only areas south of the main island of Singapore that were
affected by restrictions designed to guard against security threats from the
south. As such, there was “no reason in terms of its purpose” for extending
233 See Application, paras. 33 and 35.
234 Memorial of Malaysia, para. 197.
235 Judgment, p. 72, para. 189.
236 See paras. 3.28-3.34 above.
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the coverage of the sketch map to Pedra Branca, which is approximately
24 nautical miles east of the main island of Singapore237.
6.26 Further, as explained in Chapter II238, in the original case, Malaysia relied
on Singapore maps that did not depict Pedra Branca or show it as part of
Singapore in support of Malaysia’s assertion that Pedra Branca did not
form part of Singapore’s understanding of its territorial entitlements239.
However, the Court dismissed these arguments. In concluding its
assessment of the maps, the Court stated:
“The Court recalls that Singapore did not, until 1995,
publish any map including Pedra Branca/Pulau Batu Puteh
within its territory. But that failure to act is in the view of
the Court of much less weight than the weight to be
accorded to the maps published by Malaya and Malaysia
between 1962 and 1975. The Court concludes that those
maps tend to confirm that Malaysia considered that Pedra
Branca/Pulau Batu Puteh fell under the sovereignty of
Singapore.”240 [Emphasis added]
6.27 For all these reasons, Malaysia has failed to satisfy the “decisive factor”
requirement prescribed by Article 61 of the Statute.
237 See Judgment, p. 22, para. 16.
238 See para. 2.35 above.
239 See Judgment, p. 94, para. 268.
240 Ibid., p. 95, para. 272.
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SUMMARY OF SINGAPORE’S REASONING
1. In accordance with the Court’s Practice Direction II, Singapore presents
a short summary of the reasoning developed in these Written
Observations.
2. Malaysia has to satisfy a high standard of proof that it has met all of the
conditions prescribed by Article 61 of the Statute. Save for the
requirement that the Application must be brought within ten years of the
Judgment, Malaysia has failed to meet these conditions.
3. The Application contains procedural shortcomings, which, in and of
themselves, are sufficient grounds for the Court to dismiss the
Application:
(a) Malaysia failed to file the Application within six months of
discovering the documents annexed to the Application. Nearly
two years before the Application was filed, most of those
documents were published online by a member of the Malaysian
delegation in the original case.
(b) Malaysia has failed to show that it had made any effort to obtain
the documents annexed to the Application before the Judgment
was given in 2008.
(c) Malaysia either knew or, with reasonable diligence, should have
known, of the documents annexed to the Application before the
Judgment was given. These documents were all obtainable by
Malaysia from the UK National Archives before 2008. Further,
they relate to matters that were already known to Malaysia or
- Page 90 -
pleaded by the Parties in the original case, and were thus
discoverable by Malaysia before 2008.
(d) The “new facts” Malaysia is relying on—whether characterised
as: (i) “Singapore did not consider that the 1953 correspondence
effected a transfer of sovereignty over Pedra Branca/Pulau Batu
Puteh”; or (ii) “Singapore, at the very highest levels, knew … that
in the years after that exchange [i.e., the 1953 correspondence]
Pedra Branca/Pulau Batu Puteh did not form part of Singapore’s
sovereign territory”—were known to Malaysia before the
Judgment was given. In the original case, Malaysia made full
arguments before the Court on such “facts”.
4. In any event, the Application does not satisfy the “decisive factor”
requirement under Article 61, paragraph 1 of the Statute.
5. When given their true meaning and read in context, none of Malaysia’s
“newly discovered documents” refers to sovereignty over Pedra Branca
or bears the interpretation that Malaysia gives them:
(a) Annex 1 (the 1958 correspondence) merely proposed a
navigational corridor that Singapore should seek to establish in
the event that States were permitted to extend their territorial sea
limits. It was to follow the normal shipping channel, which in turn
was approximately described by reference to navigational aids
without regard to sovereignty over the underlying features.
(b) Annex 2 (the documents on the Labuan Haji incident) contained
no information about the exact location of the incident. The fact
that it took place “near” Horsburgh Lighthouse is of no probative
value, especially given the proximity of Malayan and Singapore
waters in that area.
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(c) Annex 3 (the sketch map) was prepared to depict security
arrangements in the south of the main island of Singapore during
the period of Confrontation by Indonesia. Accordingly, there was
no need to depict Pedra Branca on the sketch map.
6. The Court’s decision in the original case that Singapore had sovereignty
over Pedra Branca was based on four key elements: (i) the 1953
correspondence showing Johor’s understanding that it did not have
sovereignty over Pedra Branca; (ii) Singapore’s conduct à titre de
souverain, almost all of which post-dated the documents annexed to the
Application, and Malaysia’s acceptance of or failure to object to that
conduct; (iii) Malaysia’s publications and maps, most of which also postdated
the documents annexed to the Application, indicating Pedra Branca
as belonging to Singapore; and (iv) the lack of competing effectivités by
Malaysia.
7. None of the documents adduced by Malaysia affects any of the four key
elements of the Court’s reasoning. In contrast, all of them are similar in
nature to factors that the Court examined and did not consider relevant to
sovereignty in the original case.
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SUBMISSION
For the reasons set out above, the Republic of Singapore requests the Court to
adjudge and declare that Malaysia’s request for revision of the Judgment is
inadmissible.
Attorney-General Lucien Wong
Agent for the Government of the Republic of Singapore
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CERTIFICATION
I have the honour to certify that the documents annexed to these Written
Observations are true copies and conform to the original documents.
Attorney-General Lucien Wong
Agent for the Government of the Republic of Singapore
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LIST OF ANNEXES
Number Description Annexes
Page No.
Annex 1 Extracts from Orders for Ships Patrolling In Defence of
Western Malaysian Seaboard, 2nd ed., promulgated by
the Naval Officer-in-Charge, West Malaysia, and the
Commander, Far East Fleet of the Royal Navy on
25 March 1965 (MALPOS II)
A1
Annex 2 Correspondence concerning the date of release of
DEFE 69/539 and DEFE 24/98 with The UK National
Archives dated 4-25 April 2017
A11
Annex 3 Printout of the 29 March 2015 post entitled “New Facts
for Revision Application” by Professor Shaharil Talib
available at
http://indefenceofresearch.blogspot.com/2015/03/newfacts-
for-revision-application.html
(last accessed: 24 April 2017)
A17
Annex 4 Curriculum vitae of Dato’ Dr. Shaharil Talib, undated,
available via a link on
http://indefenceofresearch.blogspot.com to
http://www.scribd.com/doc/15984859/CV-Prof-
Shaharil (last accessed: 15 April 2017)
A27
Annex 5 Screen capture of notification of unavailability of
www.indefenceofresearch.blogspot.my in Malaysia
(last accessed: 27 April 2017 in Malaysia)
A35
Annex 6 Screen capture of notification of the details of denial of
access to www.indefenceofresearch.blogspot.my in
Malaysia due to violation of the Communications and
Multimedia Act 1998 (Malaysia) (last accessed:
27 April 2017 in Malaysia)
A39
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