Additional Written Observations and Documentation of Malaysia

INTERNATIONAL COURT OF JUSTICE
APPLICATION FOR REVISION OF THE JUDGMENT OF 23 MAY 2008
IN THE CASE CONCERNING SOVEREIGNTY OVER
PEDRA BRANCA/PULAU BATU PUTEH, MIDDLE ROCKS AND
SOUTH LEDGE (MALAYSIA/SINGAPORE) (MALAYSIA v. SINGAPORE)
ADDITIONAL WRITTEN OBSERVATIONS
AND DOCUMENTATION OF
MALAYSIA
11 December 2017
1
CONTENTS
I. INTRODUCTION ........................................................................... 1
A. Preliminary Observations ..................................................................... 1
B. The Structure of These Observations and Brief Framing Remarks ..... 6
II. THE NEW FACT – DECISIVE FACTOR CRITERIA OF
ADMISSIBILITY ........................................................................... 11
A. Newly Discovered Facts ........................................................................ 12
B. The Decisive Nature of the Newly Discovered Fact ............................. 16
B.1 Analysis of the Court’s 2008 Judgment ................................................ 19
B.2 The Decisive Character of the Newly Discovered Documents Taken
in Context with Additional Documentation ....................................... 31
III. THE DUE DILIGENCE AND TEMPORAL CRITERIA OF
ADMISSIBILITY .......................................................................... 48
A. Newly Discovered Facts Unknown When Judgment Given ................ 48
B. Ignorance Not Due to Negligence ....................................................... 50
B.1 Malaysia Had No Knowledge of or Reasons to Believe the Existence
of the New Documents before the 2008 Judgment Was Given ......... 51
B.2 Comparison Between the July 1953 Letter Produced by Malaysia in
the Original Case and the 7 February 1958 Telegram Submitted as
Annex 1 to Malaysia’s Application ........................................................ 52
B.3 Comparison between the Annex 3 Sketch Map and the “Set of
Orders” which Singapore Alleged Was Made Available to Malaysia
Prior to the 2008 Judgment ................................................................. 56
B.4 UK Legislation on Archival Records .................................................... 61
C. Temporal Limits Observed .................................................................. 62
C.1 The Application Was Filed within Six Months of Discovery ............ 63
C.2 The Application Was Filed Within Ten Years of the Judgment ........ 71
IV. SUMMARY OF REASONING ........................................................ 73
V. SUBMISSIONS .............................................................................. 75
VI. LIST OF ANNEXURES .................................................................. 77
1
I. INTRODUCTION
A. Preliminary Observations
1. These additional written observations and documentation (“Observations”) are
submitted pursuant to the letter of the Registrar dated 9 October 2017
transmitting the decision of the Court to permit such submissions. These
Observations address the Written Observations of the Republic of Singapore
dated 24 May 2017 (“Singapore’s Observations”).
2. There is agreement between the Parties that the present proceedings are
concerned with the admissibility of Malaysia’s 2 February 2017 Application for
Revision of the Judgment of 23 May 2008 in the Case Concerning Sovereignty
Over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore) (“Revision Application”) and not with the substantive
issues that would fall to be addressed in a merits rehearing in the event that the
Court concludes, as Malaysia contends, that the Revision Application is
admissible.
3. The admissibility character of these proceedings bears emphasis for three
reasons. First, while it is necessary for a revision application to be placed in the
context of the judgment of the Court the revision of which is sought, there is a
proper divide between contextualising the revision application and engaging in
sotto voce submissions on the merits that would fall to be addressed in
proceedings that would follow a finding of admissibility. Second, while
admissibility is a threshold matter, in respect of which the burden properly rests
2
on the Applicant, it must be seen for what it is, namely, a gateway test to filter
out applications to reopen cases other than on grounds that go to the essence of
the Court’s original judgment and in respect of which it is appropriate, in the
administration of international justice, for the Court to look again at the
substance of its original decision. Third, the differentiation between admissibility
proceedings and a substantive rehearing on the merits makes it plain that the
criteria for assessing admissibility are not to be construed as a test of whether
the application would succeed on the merits but rather whether the application
has the potential to succeed on the merits. For example, the “decisive factor”
criterion in Article 61 of the Court’s Statute, properly construed, is a test of
whether the new fact advanced has the potential to lead to a different outcome
on the controlling aspect of the original judgment, not whether they would have
led to a different outcome. A “would succeed” or “would have led” test would
require a merits examination. It is thus not appropriate for an admissibility
proceedings. An admissibility threshold cannot be construed in such a way as to
establish an insurmountable procedural hurdle to frustrate applications that
properly warrant reconsideration on the merits.
4. Singapore objects to the admissibility of the Revision Application on every
conceivable ground: Malaysia knew of the facts that it now adduces as new at the
time of the 2008 Judgment or, if it did not, it should have known and was
negligent, or, if it was not negligent, it knew of the facts nearly two years before
the Revision Application was filed; the claimed facts are not facts, within the
meaning of this term in Article 61 of the Court’s Statute, or, if they are facts, they
are not new facts, or, if they are new facts, they are not of such a nature as to be
3
a decisive factor, going to the 2008 Judgment. Singapore seeks to diminish
Malaysia’s application to that of a cavalier appeal to the Court, driven by “internal
factors within Malaysia that are unconnected with the merits of the case.”1
5. The 2008 Judgment of the Court, the revision of which is sought by Malaysia,
warrants review by reference to the new fact now established by Malaysia’s new
documents, which goes to the heart of the reasoning in the 2008 Judgment. In
the realm of cases concerning territorial sovereignty, the 2008 Judgment has
unusual features. It is to all intents and purposes a case of acquisitive
prescription or historical consolidation by the implication of a shared
understanding, a tacit agreement, in which the Malaysian component of the
shared understanding is inferred by the Court and Singapore’s component of the
shared understanding is construed from limited and and shifting practice. It is
also to be noted that, as the dissenting opinions to the 2008 Judgment make
clear, the appreciations on which the Court’s Judgment turned in 2008 were
never addressed by the Parties in argument.2 The 2008 Judgment rested on a
proprio motu analysis that had not had the benefit of submissions by the Parties.
6. As was set out in the Revision Application, and is addressed further below in
response to Singapore’s Observations, the 2008 Judgment turned on two
interlocking and inextricable appreciations. The first was the appreciation that
the Court gave to the 1953 correspondence between the Colonial Secretary of
Singapore and the Acting Secretary of State of Singapore (“the 1953
1 Singapore’s Observations, para. 1.18.
2 Joint Dissenting Opinion of Judges Simma and Abraham, ICJ Reports 2008, pp. 120–1, paras 12
and 14; Dissenting Opinion of Judge ad hoc Dugard, ICJ Reports 2008, p. 152, para. 45.
4
Correspondence”), which the Court described as “of central importance for
determining the developing understanding of the two Parties about the
sovereignty over Pedra Branca/Pulau Batu Puteh”.3 The second was the
appreciation of the shared understanding of the Parties in the period following
1953, a shared understanding that the Court had necessarily to imply from a
limited basis of available practice.
7. Based, as it was, on the evidence then before the Court, the 2008 Judgment was
finely balanced in its reasoning. It does no disservice to the Court to say that the
Judgment might have gone either way. It turned on limited practice and nuanced
appreciations.
8. The new documents on which Malaysia’s Revision Application rests go directly
to these interlocking appreciations on which the 2008 Judgment turned. They go
to the construction given, weight and authority attributed, to the 1953
Correspondence. They go to the implied shared understanding, or tacit
agreement, on which the Judgment subsequently rested. The simple reason for
this is that the new documents show that Singapore did not as a matter of
fact have the understanding that was attributed to it by the Court in the
2008 Judgment. A shared understanding requires two components. The
Malaysian component, implied by the Court, was always doubtful, given
Malaysia’s assertion of sovereignty over Pedra Branca/Pulau Batu Puteh and its
contestation of Singapore’s claim. The new documents now go to Singapore’s
component of the implied shared understanding and raise sufficient doubt about
3 Judgment, p. 75, para. 203.
5
the veracity of the appreciation at the heart of the 2008 Judgment to warrant a
re-hearing on the merits.
9. Amongst its other admissibility objections, Singapore contends that the new
facts now advanced, even if they are new and even if they are facts, and even if
they meet the due diligence and temporal requirements of Article 61 of the
Court’s Statute, are not in the nature of a decisive factor that would lead to a
different result. At the most, Singapore suggests, by way of reference to the
Court’s jurisprudence, these new facts might have led to some addition to the
discussion in the 2008 Judgment, but not to a different outcome.
10. As noted above, however, the decisive factor test is an admissibility requirement.
It does not impose, at the admissibility phase, a merits evaluation. It is a test of
whether the new facts go to the controlling appreciation on which the Judgment
in question rested and have the potential, following a merits rehearing, to lead
to a different outcome. It is not a test of whether the outcome would definitively
have been different. Such an approach would turn these admissibility
proceedings into the merits phase, but without the benefit of a fully pleaded case
on the substance.
11. In a case in which the appreciation of the Court was unavoidably finely balanced,
resting on variable evidence and implied understandings, what is or may be a
decisive factor need have no greater weight than a feather capable of tipping the
scale in a different direction. Malaysia does not come to the Court in this Revision
Application wielding a sledge hammer. It seeks to put to the Court new evidence,
that, in Malaysia’s contention, would have altered the Court’s appreciation of the
6
balance of understanding between the Parties in the decade following the 1953
Correspondence. The Court’s 2008 Judgment turned on the 1953 Correspondence
as of central importance for the shared understanding that the Court went on to
imply. Before 1953, sovereignty over Pedra Branca/Pulau Batu Puteh rested with
Johor. After 1953, the Court perceived, on the evidence before it, a shared
understanding in favour of acquisitive prescription or historical consolidation by
Singapore. The documents that Malaysia now brings to the Court, the new
evidence, raise fundamental questions that go to the heart of the Court’s
appreciation. They are more than just a feather tipping the balance on the scale.
B. The Structure of These Observations and
Brief Framing Remarks
12. These Observations are divided into five parts. Following this Introduction (Part
I), Part II addresses the new fact – decisive factor criteria of the admissibility
requirements of Article 61 of the Court’s Statute, namely, that an application for
revision may be made only when it is “based upon the discovery of some fact of
such a nature as to be a decisive factor”. Thereafter, Part III addresses the due
diligence and temporal criteria of Article 61, namely, the requirements that
any new fact must have been unknown to the Court and to the Party claiming
revision, that such ignorance was not due to negligence, and that the application
is made at the latest within 6 months of the discovery of the new fact and no later
than 10 years from the date of the judgment the revision of which is sought. A
summary of the reasoning set out in these Observations is given in Part IV. These
Observations conclude with Malaysia’s formal submissions in Part V.
7
13. A number of brief framing remarks are warranted on what follows in the
remainder of these Observations. The detail is, as appropriate, developed more
fully in the remainder of these Observations.
14. On the new fact – decisive factor criteria of admissibility addressed in Part II
below, three issues warrant comment at this introductory point. First, Malaysia
does not claim that new documents are, without more, new facts. A newly
discovered document could, self-evidently, simply repeat what is said elsewhere.
This would not meet the admissibility requirement of Article 61 of the Court’s
Statute. Something more is required. That something more is that the document
must shed new light on the point on which the judgment in question turned.
That new light might be generated by the provenance of the document, by its
addressee, or by its content. What is material is that the evidence in respect of
which the document is advanced must be new, in the sense of not having been
before the Court in the original proceedings.
15. As is addressed more fully below, the new documents advanced by Malaysia in
support of its Revision Application all meet the new fact test. As a formal matter,
none of the three documents were before the Court in the original proceedings.
More importantly, each of the three documents goes to an issue which the Parties
did not address in argument to the Court but on which the 2008 Judgment
ultimately rested, namely, the implied shared understanding, or tacit agreement,
of the Parties about the change in the sovereign status of Pedra Branca/Pulau
Batu Puteh from the period before 1953 to the period after 1953. Also of
importance is that the new documents shed materially new light on the apparent
8
Singaporean component of the shared understanding implied in the 2008
Judgment, challenging the appreciation that it was Singapore’s understanding
that sovereignty over Pedra Branca/Pulau Batu Puteh had shifted to Singapore,
by operation of acquisitive prescription or historical consolidation, in and after
1953.
16. It is also material that the new documents, while unknown to Malaysia in the
period leading up to the 2008 Judgment, and unknown to the Court, would
manifestly have been known to Singapore. Singapore thus comes now before the
Court to press the Court to deny a request to re-open the case that is based on
documents of which Singapore would have been aware but of which Malaysia
and the Court were ignorant.
17. Second, Singapore suggests that it is not clear whether Malaysia is asserting that
the new facts, for purposes of Article 61, are the new documents or the light that
they shed on the shared understanding on which the 2008 Judgment turned. The
answer is simple. It is both the documents themselves that are new and the
evidence that they embody, in the form of their content, that is new. It is also
material that the issue to which the evidence embodied in the documents goes,
namely, the shared understanding (or lack thereof) of the Parties, was not
addressed in argument before Court. It is material as the Court would, if the
Revision Application is found to be admissible, for the first time, be addressed,
by reference to the new facts, on the implied shared understanding, or tacit
agreement, on which the 2008 Judgment was based.
9
18. Third, the construction that ought properly to attach to the “decisive factor”
criterion has already been addressed above and is addressed more fully below.
The contentions advanced in paragraphs 40 and 41 of the Revision Application
nonetheless warrant further emphasis. The new evidence demonstrates that
Singapore knew that the 1953 Correspondence did not effect a transfer of
sovereignty of Pedra Branca/Pulau Batu Puteh from Malaysia to Singapore. The
new documents demonstrate that there was no shared understanding, post-1953,
that sovereignty rested with Singapore. On the contrary, the new documents
demonstrate that any shared understanding between the Parties that there might
have been in the period after 1953 was a shared understanding that sovereignty
rested with Malaysia. By any assessment, the new fact, established by the new
evidence, meets the decisive factor admissibility criterion.
19. On the due diligence and temporal criteria of Article 61 addressed in Part III
below, three issues warrant comment at this introductory point. First, on the
issue of due diligence, Singapore covers all the bases. It contends that Malaysia
knew of the facts that it now adduces as new at the time of the 2008 Judgment
or, if it did not, it should have known and was negligent, or, if it was not
negligent, it knew of the facts nearly two years before the Revision Application
was filed. There is nothing whatever sustainable in Singapore’s assertions. As is
addressed more fully below, as the volume of documentary evidence attached to
the pleadings in the original proceedings plainly attests, Malaysia undertook
every conceivable step and made every conceivable effort to locate relevant
documents and material evidence for the original proceedings. The plain fact is
that the documents now advanced to the Court were not available to, or, if they
10
were available, they were not readily discoverable by, Malaysia in the period
leading to the 2008 Judgment.
20. Second, going to both the due diligence and temporal criteria of Article 61,
Singapore contends that Malaysia must be deemed to have been aware of the
new documents well before the 6 months’ limitation period for the filing of the
Revision Application as the facts disclosed by the new documents were disclosed
in blog posts by Professor Shaharil, a retired academic who had been a consultant
on Malaysia’s original legal team before the Court for the purposes of the 2008
case.
21. There is no basis to this suggestion. Professor Shaharil’s position, and the content
of his blog posts, are addressed fully below. The short response to Singapore’s
claim, however, is that Professor Shaharil had not published, or seemingly even
identified, the documents which Malaysia now advances and on which it now
relies. Malaysia cannot, on any reasonable appreciation, be prejudiced and
penalised in its Revision Application in consequence of an unsubstantiated claim
by someone once associated with the Malaysian Government that new material
casts doubt upon the 2008 Judgment. The present Revision Application was not
filed in a cavalier manner, without due and proper regard to the Court’s Statute
and the criteria for such applications. The Revision Application rests on and is
rooted in newly discovered documents, adducing new evidence, that go to the
controlling appreciation on which the 2008 Judgment rested.
22. Third, while there are documents in the record of the original proceedings that
appear, on superficial examination, to cover the same ground as the three
11
documents now advanced to the Court, the new documents are materially
different in relevant and important aspects of their content by comparison to
anything put before the Court in the original proceedings. These material
differences are addressed fully in the discussion that follows in Part II below.
23. Against the background of these introductory remarks, Malaysia now turns to
address more fully the issues raised by Singapore’s Observations.
II. THE NEW FACT – DECISIVE FACTOR
CRITERIA OF ADMISSIBILITY
24. As the Court explained in Genocide Convention Revision Application, and
repeated in the El Salvador v Honduras Revision Application, there are two
substantive conditions which an Application for Revision must satisfy in order to
be admissible. The first requirement is the “discovery’ of a “fact’, and the second
is that this fact is “of such a nature as to be a decisive factor’.4
25. In this section, Malaysia will show that its Application satisfies both of these
substantive conditions.
4 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), ICJ Reports 2003,
pp. 11–12, para. 16; 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, ICJ Reports 2003, p. 398–9, para. 19.
12
A. Newly Discovered Fact Within the Meaning of Article 61
26. Under Article 61, an Application for Revision must be based upon the discovery
of some fact. As the Court has explained, this fact must have existed already at
the time when Judgment was given, even though it was only discovered
subsequently by the Applicant.5
27. Singapore contends that “there is no ‘new fact’ of the nature alleged by Malaysia
for the purposes of Article 61”,6 and that “none of the documents evidences any
‘new fact’”.7 Elsewhere, Singapore asserts:
[W]hether 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.” 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.8
28. Malaysia observes that a newly discovered fact for the purposes of Article 61
includes the discovery of the non-existence of a fact. As Judge ad hoc Dimitrijevic
observed in his Dissenting Opinion in the Genocide Convention Revision
Application, “[t]he non-existence of a fact, as well as its existence, is also a factual
5 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, ICJ
Reports 2003, p. 30, para. 67.
6 Singapore’s Observations, para. 4.8.
7 Singapore’s Observations, para. 3.1.
8 Singapore’s Observations, para. 4.8.
13
question.”9 Several commentators have also noted that the requirement for the
discovery of some fact can be satisfied if a fact which was relied upon when the
Judgment was delivered is found to have not existed.10
29. Accordingly, each of the documents newly discovered by Malaysia confirms a
discrete moment in the continuation of a certain empirical state of affairs,
namely the non-existence of any tacit agreement between the parties concerning
the transfer of Johor’s sovereignty over Pedra Branca/Pulau Batu Puteh to
Singapore. As will be demonstrated more fully in the following section II.B, it is
a question of fact whether an agreement forms between two parties, and the
Court’s factual finding that a tacit agreement had formed between the parties
through an informal process of convergent evolution was the key element of the
2008 Judgment. The newly discovered documents establish that such an
agreement never came into existence, as they provide evidence of incidents and
acts which show with clarity that no shared understanding existed between the
parties.
30. Malaysia also notes that, contrary to Singapore’s assertion, it has been accepted
generally and for a long time in practice that in the revision context the term
“fact” is to be understood broadly to include a wide range of documents. Thus,
9 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), ICJ Reports 2003, p.
55, para. 11.
10 Oellers-Frahm, ‘Revision of Judgments of International Courts and Tribunals’, Max Planck
Encyclopedia of Public International Law, 2013, para. 12; A Zimmermann and R Geiß, ‘Procedure,
Article 61’, in Zimmermann et al, The Statute of the International Court of Justice: A Commentary
(2nd edn, Oxford University Press, 2012), p. 1516, para. 48.
14
in the Statute of the Permanent Court of International Justice, on which this
Court’s Statute was modelled, the reference to “fact” in Article 61 was generally
understood to include evidence, documents, maps and other potentially
probative materials.11 In the Heim and Chamant arbitration, the Tribunal
accepted that “fact” “embraces all means of proof relating to questions of law”,12
and other international courts and tribunals have adopted a similar approach.13
Most importantly for present purposes, the practice of this Court also aligns with
this approach. In the El Salvador v. Honduras Revision Application, the Court
proceeded to examine whether the scientific, historical and technical evidence,
as well as a map and expedition report, submitted by El Salvador in support of its
Application for Revision satisfied the condition of decisiveness. By so doing the
Chamber appears to have accepted the possibility that these evidentiary
materials can be characterised as facts within the meaning of Article 61.14 In that
case Judge ad hoc Paolillo observed that the Court’s consideration of the
decisiveness of the new facts was “tantamount to an implicit acknowledgement
of its status as ‘new facts’. The Chamber thus confirms that the production of
such documents may substantiate an application for revision provided that they
11 A Zimmermann and R Geiß, ‘Procedure, Article 61’, in A Zimmermann et al. (eds), The Statute of
the International Court of Justice: A Commentary (2nd edn, Oxford University Press, 2012), p. 1512,
para. 39.
12 Heim and Chamant v. The German State, 7 August and 22 September 1922, 1 ILR 379 at p. 380.
13 For example, in the International Criminal Tribunal for Rwanda: Barayagwiza v. Prosecutor,
Decision (Prosecutor’s Request for Review or Reconsideration), Case No. ICTR-97–19-AR72, A.Ch., 31
March 2000; in the International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Tadić,
Appeal Judgement on Allegations of Contempt against Prior Counsel Milan Vujin, Case No. IT-94–1-
A-AR77, A.Ch., 27 February 2001; in the European Court of Human Rights, McGinley and Egan v
United Kingdom (Apps 21825/93, 23414/94)(Revision Request), 28 January 2000, ECHR 2000-I.
14 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, ICJ Reports 2003, pp. 406–7, para. 40, pp. 409–10, paras 49–55.
15
meet the criteria laid down by Article 61 of the Statute.”15 Judge ad hoc Paolillo
dedicated considerable attention in his Dissenting Opinion to the specific
question whether documentary evidence may serve as new facts, and his
conclusion was unequivocal: “there can be no doubt whatsoever that the
ordinary meaning of the term ‘facts’ includes documents.”16
31. Nevertheless, Singapore has attempted to sail against the current of this
widespread practice by invoking a quote from the PCIJ’s Monastery of Saint-
Naoum Advisory Opinion.17 Setting aside the fact that this Advisory Opinion was
not brought under the provisions governing the PCIJ’s revision jurisdiction in
Article 61 of the PCIJ Statute, the PCIJ drew a distinction between “fresh” or “new
facts” and “facts already in existence” of which the decision-maker was unaware
at the time of decision, and the quote invoked by Singapore relates only to the
former category. As for facts already in existence which were unknown at the
time of the decision—a category which corresponds to the interpretation of
Article 61 provided by the Court in the Genocide Convention Revision Application,
as noted above—the PCIJ appears to accept that fresh documents could
15 Ibid., Dissenting Opinion of Judge ad hoc Paolillo, p. 421, para. 29.
16 Ibid., Dissenting Opinion of Judge ad hoc Paolillo, p. 422, para. 32. Kaikobad is similarly
conclusive when he remarks that ‘this rule [that evidence can be admitted as a new fact under
Article 61] has a good legal pedigree’: Interpretation and Revision of International Boundary
Decisions (Cambridge University Press, 2007), p. 277.
17 Question of the Monastery of Saint-Naoum (Albanian Frontier), Advisory Opinion, 1924, PCIJ
Series B, No. 9, p. 22.
16
constitute previously unknown facts if the information they convey might prove
the existence of such facts.18
32. In any case, the documents which Malaysia has newly discovered do not simply
repeat information that has been found elsewhere. They shed new light on the
factual record on which the 2008 Judgment was based by providing fresh
information about the Singaporean component of the shared understanding
implied in the Judgment. This new information establishes that, as a matter of
fact, no shared understanding, or tacit agreement, existed between the Parties.
B. The Decisive Nature of the Newly Discovered Fact
33. According to paragraph 1 of Article 61, an Application for Revision is only
admissible when it is based upon “the discovery of some fact of such a nature as
to be a decisive factor”. In Tunisia v Libya Revision and Interpretation, the Court
concluded that the correct co-ordinates of the petroleum concession granted by
the Libyan authorities was not “a fact of such nature as to be a decisive factor”,
since those details “would not have changed the decision of the Court” as to the
relevant sector of the delimitation.19
34. This test requires the Court to assess the newly discovered fact against the factual
record produced during the original proceedings and to determine whether the
18 Id. See A Zimmermann and R Geiß, ‘Procedure, Article 61’, in Zimmermann et al, The Statute of
the International Court of Justice: A Commentary (2nd edn, Oxford University Press 2012), p. 1516,
para. 48. para. 62.
19 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, ICJ Reports 1985, pp. 213–4, para. 39.
17
Court “might have reached different conclusions… had it also had before it the
[newly discovered fact]”.20 Thus, it falls to the Applicant to ensure that it
accurately identifies the grounds on which the Court arrived at its conclusions in
the Judgment in order to show how those grounds would be changed by the
newly discovered facts. In Tunisia v Libya Revision and Interpretation, the Court
considered that Tunisia had presented “an oversimplification of its reasoning” in
the Judgment,21 such that the Court’s reasoning was “wholly unaffected” by
Tunisia’s arguments based on the newly discovered fact.22 So too in the El
Salvador v Honduras Revision Application, the Chamber considered that El
Salvador had incorrectly summarised the basis of its Judgment, so all of El
Salvador’s arguments concerning avulsion were irrelevant in view of the fact that
the Chamber’s determined the course of the boundary on the basis of El
Salvador’s conduct during the relevant period. Avulsion simply did not matter in
that judgment, with the result that findings to that effect like those urged by El
Salvador on the basis of its new facts “would provide no basis for calling into
question the decision taken by the Chamber in 1992 on wholly different grounds.”
In that sense, the new facts asserted by El Salvador could not be decisive factors
in respect of the Judgment.23 As for the second alleged new fact in El Salvador v
Honduras Revision Application, based on the discovery of a new copy of an
historical map and an expedition report, the ICJ concluded that these documents
20 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), ICJ Reports 2003, p. 410, para. 51.
21 Ibid., p. 210, para. 35.
22 Ibid., p. 213, para. 38.
23 Ibid., pp. 406–7, para. 40.
18
differed only in minor details from the map which the Court had considered at
the time when the Judgment was given. Accordingly, the Court determined that
these alleged new facts lacked decisive character.24
35. It must be recalled, however, that Article 61, paragraph 2 envisages that two
separate procedural stages must be completed before the Court can finally decide
whether and how the Judgment requires revision. Article 61, paragraph 2
provides:
The proceedings for revision shall be opened by a judgment of the Court
expressly recording the existence of the new fact, recognizing that it has such a
character as to lay the case open to revision, and declaring the application
admissible on this ground.
36. The Court highlighted the two-stage structure of revision proceedings in the
Genocide Convention Revision Application when it stated:
Article 61 provides for revision proceedings to open with a judgment of the
Court declaring the application admissible on the grounds contemplated by
the Statute, Article 99 of the Rules makes express provision for proceedings on
the merits if, in its first judgment, the Court has declared the application
admissible. Thus the Statute and the Rules of Court foresee a “two-stage
procedure”. The first stage of the procedure for a request for revision of the
Court’s judgment should be “limited to the question of the admissibility of that
request”.25
37. Consequently, the first stage of the process is not concerned with the ultimate
question as to whether the Judgment should be revised. Rather, the Court’s task
24 Ibid., pp. 409–10, paras 51–5.
25 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), ICJ Reports 2003, p.
11, para. 15.
19
is more limited. In these admissibility proceedings, the Court is required merely
to determine whether a fact exists and whether it is of such a nature as to be
capable of affecting or altering the Judgment of the Court. If an Applicant is
adjudged to be successful in this first admissibility stage, the Court does no more
than record the existence of the new fact of requisite character and “lays the case
open to revision”. It is only after the second stage of the process—the
proceedings on the merits—that the Court will decide ultimately whether the
alleged facts truly do possess a decisive character and whether the original
Judgment should be revised.
38. In this light, the applicable test in the admissibility proceedings for the
decisiveness of a newly discovered fact is, to use Geiß’s formulation, “whether it
is of such a nature as to be capable of altering the prior Judgment, but not
whether it does in substance do so.”26 The Court’s practice bears out this
approach. By asking whether it “might have reached different conclusions” or
“would not have changed [its] decision’, the Court has sought to determine
whether the newly discovered fact has the potential to alter its original findings.
B.1 Analysis of the Court’s 2008 Judgment
39. In order to determine whether a fact is “decisive” according to Article 61 of the
Statute, it is, as Singapore has noted in its Written Observations, “necessary to
26 R Geiß, ‘Revision Proceedings before the International Court of Justice’ (2003) 63 Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 167, p. 184.
20
review the basis upon which the Court decided in the Judgment that sovereignty”
over Pedra Branca/Pulau Batu Puteh “belongs to Singapore”.27
40. But first a brief comment on Singapore’s Written Observations on this matter is
necessary. Singapore takes the view that the Court’s decision 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”.28 This
clearly proposes that the Court had four independent legal reasons for holding
that Singapore had title to Pedra Branca/Pulau Batu Puteh. This, as the following
section amply demonstrates, is simply not the case. On the contrary, the whole
tenor of the Court’s approach was that, faced with Malaysia’s original title to the
island, a combination of sovereign activities coalesced so as to demonstrate a
“convergent evolution” in the views of the Parties as to the transfer of title. It is
this evolving progression that for the Court was the key to the decision and for
Malaysia the key to the current request for revision.
41. Singapore’s comment manifests not only a misunderstanding of the Court’s
decision, but also a confusion as to Malaysia’s current arguments, as the
following section will seek to demonstrate.
42. In reaching its decision, the Court commenced with an analysis of the legal
situation as it existed prior to the construction of the Horsburgh Lighthouse in
the 1840s.
27 Singapore’s Observations, para. 2.1.
28 Singapore’s Observations, para. 2.3.
21
43. The Court noted that Malaysia argued that Pedra Branca/Pulau Batu Puteh had
always been part of the Sultanate of Johor since the kingdom had come into
existence. Indeed, the Court underlined that the Sultanate of Johor had
established itself in 1512 as a sovereign state with a certain territorial domain
under its sovereignty.29 The Court concluded that:
[F]rom at least the seventeenth century until early in the nineteenth it was
acknowledged that the territorial and maritime domain of the Kingdom of
Johor comprised a considerable portion of the Malaya Peninsula, straddled the
Straits of Singapore and included islands and islets in the area of the Straits.
Specifically, this domain included the area where Pedra Branca/Pulau Batu
Puteh is located.30
44. The Court analysed the legal conditions necessary for title in such situations,
taking into account the principles concerning the relevance of the paucity of rival
legal claims and the geographical circumstances of the island (citing the Eastern
Greenland31 and Island of Palmas32 cases). The clear conclusion reached was that
“the Sultanate of Johor had original title to Pedra Branca/Pulau Batu Puteh”.33
This was so as of 1824.
45. In so doing, the Court firmly rejected the primary contention argued by
Singapore which was that Pedra Branca/Pulau Batu Puteh had been terra nullius
prior to 1847 and thus susceptible of the lawful taking of possession by the UK in
29 Judgment, pp. 31–3, paras 46–8 and 52.
30 Judgment, p. 35, para. 59.
31 Judgment, pp. 35–6, paras 63–4 (Legal Status of Eastern Greenland, Judgment, 1933, PCIJ Series
A/B, No. 53, pp. 39 and 46).
32 Island of Palmas Case (Netherlands/United States of America), Award of 4 April 1928, RIAA, Vol.
II (1949), pp. 839, 840 and 855.
33 Judgment, p. 37, para. 69.
22
1847-1851.34 Singapore had concluded that there was no evidence that the island
belonged to the Johor Sultanate “at any point in its history and certainly not at
the beginning of the nineteenth century“.35 The Court found very firmly that
Malaysia (the successor to the Sultanate of Johor) had original title to the island.
This title was confirmed by the nature and degree of the authority of the Sultan
of Johor exercised over the Orang Laut who inhabited the islands in the Straits
of Singapore.36
46. The Court reaffirmed this original title in examining the situation between 1824
and 1840. It is not necessary for present purposes to examine the relevant
instruments (the 1824 Anglo-Dutch Treaty; the Crawfurd Treaty of 1824 between
the Sultan and Temenggong of Johor and the East India Company; and the 1825
“letter of donation“). It suffices to underline the conclusion of the Court that as
of the time when the British started their preparations for the construction of the
lighthouse on Pedra Branca/Pulau Batu Puteh in 1844, “this island was under the
sovereignty of the Sultan of Johor“.37
47. Faced with an analysis focusing clearly on the recognition of Johor/Malaysia’s
“original title” to Pedra Branca/Pulau Batu Puteh as of 1844, the Court proceeded
to examine whether subsequent conduct could modify this. Leaving aside for one
moment the question of legal methodology and continuing with the Court’s
findings, the Court was unable to draw any conclusions as to sovereignty based
34 Judgment, p. 32, para. 49.
35 Judgment, p. 32, para. 50.
36 Judgment, p. 39, para. 75 and p. 40, para. 79.
37 Judgment, p. 49, para. 117.
23
on the construction and commissioning of the lighthouse.38 Further, the Court
did not find that a variety of enactments (in 1852, 1854 and 1912) demonstrated
British sovereignty,39 while the various constitutional changes that took place in
the area (in 1927, 1946, 1957, 1959, 1963 and 1965) in the Court’s view “do not help
resolve the question of sovereignty“.40 Again, no assistance as to the sovereignty
question could be obtained from a consideration of the joint regulation of
fisheries in the 1860s.41 One may conclude at this point by saying that the Court
apparently found no applicable legal activity up to 1953 that constituted or could
constitute a clear and effective modification of Malaysia’s original title.
48. We turn now to the relevant legal methodology.
49. There are various legal consequences that may be drawn from the Court’s
analysis up to the 1953 correspondence. The Court found that Johor and thus its
successor Malaysia had original title to Pedra Branca/Pulau Batu Puteh in the
1840s and that nothing had happened during the period of some one hundred
years to displace that title, still less to transfer it to another sovereign.
International law has historically put in place a number of presumptions and
principles with regard to the situation where there is an established legal title to
territory. First, as Judge Ranjeva underlined in his Declaration in the 2008
38 Judgment, p. 65, para. 162.
39 Judgment, p. 67, para. 172.
40 Judgment, p. 71, para. 186.
41 Judgment, p. 72, para. 191.The general point is underlined in the Joint Dissenting Opinion of
Judges Simma and Abraham, who noted that in none of the 1852-1952 practice did the Court
“discern a clear manifestation of a British claim to sovereignty”, ICJ Reports 2008, p. 123, para. 22.
24
judgment, “the transfer of territorial sovereignty cannot be presumed in
international law”. Consent was required. 42
50. Secondly, as O’Connell has noted, there is a presumption against loss of
sovereignty or to put it another way, a presumption against abandonment. 43
Further, it was stated that: “there can be no loss of territory without the intention
of abandonment coupled with withdrawal in fact. Mere hiatus in administration
and settlement does not … affect the persistence of sovereignty”.44 Oppenheim
has written that dereliction (or abandonment) was accomplished “through the
owner-state completely abandoning territory with the intention of withdrawing
from it for ever, thus relinquishing sovereignty over it … Actual abandonment
alone does not involve dereliction as long as it must be presumed that the owner
has the will and ability to retake possession of the territory“.45
51. Judges Simma and Abraham in their Joint Dissenting Opinion expressed the
matter as follows:
[A] presumption in favour of maintaining the sovereignty in the hands of the
initial holder must be clearly asserted and that presumption should not be
lightly regarded as having been overturned.46
52. As a presumption, this may be rebutted by evidence to the contrary, of course,
but the burden of proof rests upon the party claiming that sovereignty has been
relinquished. The parties do not come to this as to a blank page. There is no
42 Ibid., p. 104, para. 3.
43 D P O’Connell, International Law, (Stevens, 1965), Vol. I, p. 512.
44 Ibid., p. 511.
45 Jennings and Watts (eds), Oppenheim’s International Law (9th edn, Longmans, 1992), p. 717.
46 ICJ Reports 2008, p. 119, para. 8.
25
juridical equality as between the title holder and the claimant to title. It is for the
latter to prove clearly that title has shifted.
53. Thirdly, there is the principle that the legal boundary has precedence over
practice to the contrary or to put it another way, legal title has priority over
effectivités. This is now well-established. International law proclaims the
doctrine that “where the territory which is the subject of the dispute is effectively
administered by a state other than the one possessing the legal title, preference
should be given to the title-holder“.47 The effectivités of the state claiming
transfer of title are not as such relevant, while the conduct of the title-holder is
relevant only in the context of alleged acquiescence to a change in sovereignty.48
The Tribunal in the Croatia/Slovenia arbitration emphasised that the “legal
boundary is not necessarily the same as what might be called the ‘practical
boundary’”, for instance where a particular location was treated for certain
purposes (for example allocation of postal codes or connection to public utilities
such as gas, water or sewage) as part of another state. The obligation here was to
determine the legal boundary.49 This had priority.
54. The reason for such principles and presumptions is clear. As the Court
emphasised robustly in an essential statement of principle:
Critical for the Court’s assessment of the conduct of the Parties is the central
importance in international law and relations of State sovereignty over
47 Frontier Dispute (Burkina Faso/Mali), ICJ Reports 1986, p. 587, para. 63.
48 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial
Guinea intervening), ICJ Reports 2002, p. 353, para. 68.
49 Final Award, 29 June 2017, p.109, paras 337–8.
26
territory and of the stability and certainty of that sovereignty. Because of that,
any passing of sovereignty over territory on the basis of the conduct of the
Parties, as set out above, must be manifested clearly and without any doubt by
that conduct and the relevant facts. That is especially so if what may be
involved, in the case of one of the Parties is in effect the abandonment of
sovereignty over part of its territory.50
55. Having established the essential legal framework as it appears from the Court’s
judgment and general international law reflected in the caselaw of the Court,
consideration will now be given as to how the Court approached the question of
the possible transfer of Malaysia’s legal title over Pedra Branca/Pulau Batu Puteh
after 1952.
56. Although the two Parties accepted that the notion of acquisitive prescription had
no role to play in the case51 and that the Court itself did not refer explicitly to this
concept52 nor to that of historical consolidation, it is noticeable that in effect the
Court drew upon their key elements in analysing the case.53
57. The Court noted that sovereignty could pass by way of agreement between the
Parties, but such agreement could also be “tacit and arise from the conduct of
the Parties … International law … places its emphasis on the parties’ intentions”.54
The intention of the Parties may appear from their conduct “particularly conduct
50 Judgment, p. 51, para. 122.
51 CR 2007/26, para. 1 (Malaysia) and CR 2007/27, p. 29, para. 69.
52 See Declaration of Judge Ranjeva, p. 103, para. 2; Joint Dissenting Opinion of Judges Simma and
Abraham, p. 119, para. 11 and following; Dissenting Opinion of Judge Dugard, p. 145, para. 31 and
Separate Opinion of Judge Sreenivaso Rao, p. 171, para. 38.
53 See Joint Dissenting Opinion, p. 122, para. 17 and following.
54 Ibid., p. 50, para. 120.
27
occurring over a long period”.55 As the Court noted in its 2007 judgment in
Nicaragua v Honduras, “[e]vidence of a tacit legal agreement must be
compelling”.56 This standard was cited with approval by the Special Chamber of
the International Tribunal for the Law of the Sea in the Ghana/Côte d’Ivoire
case.57
58. Further, under certain circumstances, sovereignty could pass as a result of the
failure of the State which has sovereignty to respond to conduct à titre de
souverain of the other State. The absence of reaction, noted the Court, could well
amount to acquiescence.58
59. In this context, the judgment of the Court in Cameroon v Nigeria is pertinent.
Here, the Court was faced with a situation of extensive settlement of territory
near Lake Chad subject to Cameroonian sovereignty by treaty and claimed by
Nigeria partly on the basis of its activities. The Court noted that some of these
activities were acts à titre de souverain. However, as there was a pre-existing title
held by Cameroon in the area in question, “the pertinent legal test [was] whether
there was thus evidenced acquiescence by Cameroon in the passing of title from
itself to Nigeria”.59 The Court concluded that there was not.60
55 Ibid., p. 61, para. 149.
56 Territorial and Maritime Dispute between Nicaragua v Honduras in the Caribbean Sea (Nicaragua
v. Honduras), ICJ Reports 2007, p. 735, para. 253.
57 Decision of 23 September 2017, para. 212.
58 Judgment, p. 50, para. 121.
59 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial
Guinea intervening), ICJ Reports 2002, p. 353, para. 67.
60 Ibid., p. 355, para. 70.
28
60. The Court also drew attention to the temporal element and held that:
the facts and circumstances put forward by Nigeria with respect to the Lake
Chad villages concern a period of some 20 years, which is in any event far too
short, even according to the theory relied on by it [of historical
consolidation].61
61. The “tacit agreement … arising from the conduct of the Parties” matrix relied
upon by the Court was deemed to be manifested in this case by what may be
termed a process by which the parties seemed to reach an understanding. The
Court put it in the following way:
The Court is of the opinion that the relevant facts, including the conduct of the
Parties … 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.62
62. There are two particular point to be noted here. First, the temporal factor relates
to the period between 1953 and 1980 (28 years). There is here a clear analogy with
the Cameroon v Nigeria case (where a period of 20 years was deemed to be far
too short). Secondly, the intention of the parties deducible from their conduct is
referenced in the light of “convergent evolution”. Other relevant phrases used by
the Court were “evolving views”63 and “developing understanding”64 with regard
61 Ibid., p. 352, para. 65.
62 Judgment, p. 96, para. 276.
63 Judgment, p. 65, para. 162.
64 Judgment, p. 75, para. 203.
29
to sovereignty over the island. Thus, the Court saw the conduct of the Parties
over the relevant time frame in terms of an emerging pattern of coalescing
understanding as to the sovereignty issue.
63. The evidence for this was critical. The Court regarded the terms of the 1953
correspondence as of “central importance for determining the developing
understanding of the two Parties about sovereignty over Pedra Branca/Pulau
Batu Puteh”.65 It is not necessary for present purposes to analyse this exchange
of letters. What is important to note is that the Court held that the
correspondence was not of itself determinative66 nor did it amount to an
estoppel67 nor did it amount to a unilateral binding undertaking. 68 However, it
did constitute one (albeit important) element in a progression of elements that
the Court believed led to the transfer of sovereignty.
64. The Court examined 13 kinds of post-1953 sovereign activity which it regarded as
relevant to this progression. Of these nine categories of activity were regarded as
of no weight concerning the sovereignty issue. These included the conduct of
naval patrols and exercises by both Parties around the island,69 the display of the
British and Singapore ensigns on the island,70 the installation by Singapore of
65 Judgment, p. 75, para. 203.
66 The Court did “not consider the Johor reply as having a constitutive character in the sense that it
had a conclusive legal effect on Johor”, Judgment, p. 81, para. 227.
67 Judgment, pp. 81–2, para. 228.
68 Judgment, p. 82, para. 229.
69 ‘‘The Court does not see this activity as significant on one side or the other”, Judgment, p. 85,
para. 241.
70 ‘‘The Court accepts the argument of Malaysia that the flying of an ensign is not in the usual case
a manifestation of sovereignty”, Judgment, p. 87, para. 246. However, the Court did note that
30
military communications equipment on the island,71 a Malaysian Petroleum
Agreement of 1968,72 the delimitation of Malaysia’s territorial sea in 1969,73 the
Indonesia–Malaysia Continental Shelf Agreement 1969 and Territorial Sea
Agreement 1970,74 the Indonesia–Singapore Territorial Sea Agreement 1973,75
inter-state cooperation in the Straits of Singapore,76 and a range of official
publications.77
65. Those four activities that the Court found of relevance were the following. First,
the investigation by Singapore of shipwrecks around the coasts of the island,
which it was felt gave “significant support” to Singapore’s case.78 Secondly, the
regulation of visits by Singapore to the island, which again was seen as
constituting “significant support” to its claims.79 Thirdly, the publicity given to a
proposed land reclamation scheme by Singapore on the island “supported”
Singapore’s case, even though the scheme was not carried out.80 Finally, the
Court felt that 6 (out of nearly 100 maps) published between 1962 and 1975 “tend
Malaysia did express concern over the flying of the flag by Singapore in 1978, Judgment, p. 87, para.
246.
71 The Court noted that although this was undertaken à titre de souverain, it was not clear whether
Malaysia actually knew about this activity, Judgment, p. 88, para. 248.
72 Judgment, p. 89, paras 251–3.
73 Judgment, pp. 89–90, paras 254–6.
74 Judgment, pp. 90–91, paras 257–8.
75 Judgment, p. 91, para. 259.
76 The Court held that this was “not conduct concerned with territorial rights”, Judgment, pp. 91–2,
para. 260.
77 The Court noted that “[g]iven the purpose of the publications and their non-authoritative and
essentially descriptive character, even if official, the Court does not consider that they can be given
any weight”, Judgment, pp. 92–4, paras 261–6.
78 Judgment, pp. 82–3, paras 231–4.
79 Judgment, pp. 83–5, paras 235–9.
80 Judgment, pp. 88–9, paras 247–8.
31
to confirm that Malaysia considered that Pedra Branca/Pulau Batu Puteh fell
under the sovereignty of Singapore”.81
66. This was categorised in the Joint Dissenting Opinion as “a very meagre harvest”.82
67. Nonetheless, what is important, is that the Court clearly weighed those activities
that it thought of relevance in the balance in reaching its conclusion that
“convergent evolution” had been demonstrated so that Malaysia’s original title,
accepted as persisting at least until 1952–3, was transferred to Singapore at some
point before 1980. In view of the character, number and significance of these
activities as analysed by the Court, it must have been a fine call.
68. It is in this context that the additional elements brought to the Court by Malaysia
may be seen as “decisive” in tipping that balance the other way and thus
reaffirming Malaysia’s original title to the island.
B.2 The Decisive Character of the Newly Discovered Documents Taken
in Context with Additional Documentation
69. Singapore claims that “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”,83 and also that the
documents newly discovered by Malaysia, by virtue of their alleged similarity to
81 Judgment, pp. 94–5, paras 267–72.
82 Judgment, p. 124, para. 26.
83 Singapore’s Observations, para. 6.13.
32
documents which the Court “dismissed as irrelevant” in the original case “are not,
and cannot be considered to be, of such a nature as to be a decisive factor.”84
70. As explained in the previous section, a central element of the 2008 Judgment was
the finding of fact made by the Court that a tacit agreement was formed between
the parties by their conduct to the effect that Johor’s sovereignty over Pedra
Branca/Pulau Batu Puteh was transferred to Singapore. The documents
discovered by Malaysia establish the occurrence of a series of incidents which all
demonstrate that no such agreement came into existence. Since the Court’s
determination that sovereignty over Pedra Branca/Pulau Batu Puteh passed by
way of this tacit agreement was an essential finding of the 2008 Judgment,
Malaysia’s newly discovered documents showing that this agreement never came
about are capable of altering the Judgment. In this way, the newly discovered
facts which support Malaysia’s Application are of such nature as to be a decisive
factor.
71. As for Singapore’s claim that Malaysia’s newly discovered documents are similar
to documents submitted during the original proceedings, each new document
will be considered in turn.
(a.) Annex 1 – 1958 internal correspondence concerning delimitation of
territorial waters
72. Annex 1 to the Application comprises internal correspondence between the
Governor of Singapore and the Secretary of State for the Colonies in 1958
84 Singapore’s Observations, para. 6.14.
33
concerning the implications for Singapore of the possible enlargement of States’
entitlement to territorial waters under international law. Singapore attempts to
query the decisiveness of these newly discovered documents in three ways.
73. First, Singapore says that this internal correspondence is “very similar” to an
internal Singapore letter from July 1953 which the Court considered in the
original proceedings. Moreover, Singapore claims that the 1953 letter concerned
the “same issues” as the 1958 correspondence, since both address “‘new methods
of defining territorial waters’ following the Court’s 1951 Judgment in the Fisheries
case”.85 Singapore contends that “Malaysia is now seeking to re-argue a point
already canvassed and dismissed in the original case”.86
74. By way of response it is worth noting at the outset that the Court said no more
about this 1953 letter in the Judgment than that it was “not at all surprising” that
“the authorities in Singapore—or in London for that is where the final decisionmaking
power lay—took no action at that time”.87 This letter from the Mr Colton
on behalf of the Colonial Secretary in London had been received by the Deputy
Commissioner for Colonial Affairs in Singapore in July 1953, two months before
Singapore received, in response to its request for information about “the rock”,
the notorious letter dated 21 September 1953 in which the Acting Secretary of
State of Johor wrote that the Johor Government did not claim ownership of Pedra
Branca. It is this letter of September 1953, of course, which was considered by the
85 Singapore’s Observations, para. 6.16.
86 Id.
87 Judgment, p. 81, para. 225.
34
Court to be “of central importance for determining the developing
understanding of the two Parties about sovereignty over Pedra Branca/Pulau
Batu Puteh”.88
75. The Court noted that the Singapore authorities took no further action at all after
receiving either of these documents, irrespective of the fact that they relate to a
matter of great significance, the extent of Singapore’s sovereign space. Although
the Court considered that this inaction on Singapore’s part was “not at all
surprising”,89 Singapore misrepresents this aspect of the Judgment when it claims
in its Written Observations that the Court “dismissed [this point] in the original
case”.
76. Moreover, Singapore’s claim that the newly discovered 1958 correspondence is
“very similar” to the 1953 Colton letter does not withstand scrutiny. The Colton
letter was, as noted above, sent before the Singaporean authorities had received
the September 1953 letter from Johor’s Acting State Secretary about Pedra
Branca/Pulau Batu Puteh, so in its assessment of the implications for Singapore’s
interests and entitlements the Colton letter could not have included
consideration of the possibility that Singapore possessed sovereignty over Pedra
Branca/Pulau Batu Puteh. In contrast, the 1958 internal correspondence must be
viewed in the light of the 1953 correspondence concerning sovereignty over Pedra
Branca/Pulau Batu Puteh, especially when the Court considered that exchange
to have carried such great importance in the resolution of the dispute over Pedra
88 Judgment, p. 75, para. 203.
89 Judgment, p. 81, para. 81.
35
Branca/Pulau Batu Puteh, and when the Court attached such strong probative
value to this exchange when arriving at its factual determination that a tacit
agreement developed between the parties by their conduct. That the Singapore
authorities, five years after the 1953 correspondence with Johor, apparently did
not take Pedra Branca/Pulau Batu Puteh into the reckoning when examining an
issue which was apparently so important for a “densely populated maritime
Colony dependent on sea-borne trade”, to use the description of the Colton
letter, is unusual, to say the least. As the Court reminds us in the Judgment, a
State’s failure to act in circumstances when it is reasonable to expect a reaction
provides a basis for ascertaining or interpreting the intent of that State.90 Faced
with a clear challenge from the State conduct of its neighbours, whose expanding
claims to maritime spaces threaten the lifeblood of Singapore’s society and
economy—its access to an uninterrupted shipping channel—it is remarkable
that Singapore’s authorities make no mention at all of Pedra Branca/Pulau Batu
Puteh and the maritime rights which are generated by sovereignty over that
island.
77. The 1958 correspondence differs from the 1953 Colton letter in two other respects:
it comes after the Federation of Malaya had achieved independence, and its
content is focused not on the consequences of changes in the international rules
concerning territorial waters for fishing grounds, which are scattered around
various parts of Singapore’s waters, but on the consequences for the maintenance
of an uninterrupted channel for shipping running all the way through the Strait
90 Judgment, p. 51, para. 121.
36
of Singapore. Pedra Branca/Pulau Batu Puteh’s position at the eastern end of that
Strait would seem to be considerably more relevant to the 1958 correspondence
than the 1953 letter.
78. Second, Singapore claims that Annex 1 lacks the character of decisiveness
because the Court had already considered evidence concerning a routing system
for maritime traffic to be irrelevant.91 Malaysia notes that the construction and
maintenance of navigational systems has typically been considered a separate
matter to questions of sovereign entitlement,92 and the 1958 correspondence is
animated by concerns for the extent and configuration of Singapore’s maritime
spaces rather than the placement and upkeep of navigational aids.
79. Third, Singapore contends that Annex 1 offers no more than a simply
geographical description and is therefore irrelevant.93 While it is true that the
Court decided that a short passage in a monograph written by a former Director
of the Singapore Light Dues Board could not be given any weight “given the
purpose of the publication and [its] non-authoritative and essentially descriptive
character”,94 Annex 1 deserves an altogether different categorisation, given that
it is a document distributed among high-ranking Singapore authorities about an
essential attribute of Singaporean sovereignty, the extent of its territorial waters.
80. As the preceding analysis demonstrates, Annex 1 provides invaluable “assistance
in determining the understanding at that time by the authorities in Singapore of
91 Singapore’s Observations, para. 6.17.
92 Minquiers and Ecrehos case (France/United Kingdom), ICJ Reports 1953, pp. 70–1.
93 Singapore’s Observations, para. 6.18.
94 Judgment, pp. 92–3, paras 262–4.
37
sovereignty over Pedra Branca/Pulau Batu Puteh”.95 Accordingly, it weighs
heavily against the notion that a convergence in the understanding of the parties
concerning Pedra Branca/Pulau Batu Puteh had formed, or even begun to form,
in 1958. Annex 1 tips the balance of the factual record on which the Court
determined that there was a tacit agreement between the parties, and therefore
it constitutes a newly discovered fact of such a nature as to be a decisive factor.
(b.) Annex 2 – documents concerning Labuan Haji incident in Johor’s
territorial waters
81. Singapore objects to the characterisation of Annex 2 as a fact of decisive nature
on the basis that the documents contain “imprecise and vague references” to the
location of the incident. Singapore contends that “[i]n the original case… the
Court gave no significance to similarly imprecise and vague documents, and
therefore no significance should be given to Annex 2.”96
82. Singapore attempts to make much of the fact that Mr Wickens’s message to the
Governor of Singapore recounting the Labuan Haji incident employs the word
“near”, so as to invoke what it claims to be the Court’s rejection of certain
evidence produced during the original proceedings because it too used the word
“near”.97 In fact, the Court did not rule on the evidence cited by Singapore, since
it had already decided that Johor was sovereign over Pedra Branca/Pulau Batu
Puteh in 1844. If anything, the Court’s comment about the generality of the 1844
correspondence cited by Singapore relates to the fact that the correspondence
95 Judgment, p. 72, para. 191.
96 Singapore’s Observations, para. 6.19.
97 Singapore’s Observations, para. 6.20.
38
did not even “specifically identif[y] Pedra Branca/Pulau Batu Puteh”.98 Singapore
makes similarly weak claims in respect of a different letter from the British
Governor to the Temenggong of Johor.99
83. The situation is altogether different with the documents in Annex 2. Above all,
Malaysia has discovered in the same British archival file a number of separate
documents which all refer to the same incident, each corroborating the others to
provide a reliable indication of the location of the of the incident and the conduct
of the Royal Malaysian Navy in responding to it. Mr Wickens’s message is an
internal report which states that the Dutch merchant vessel being followed by an
Indonesian gunboat “near Horsburgh Light” could not be assisted by the Royal
Navy because the “ship [was] still inside Johore territorial waters”.100 Attached to
that message is a file note which explains that the Royal Navy “could not
intervene in Johore territorial waters unless specifically requested to do so by the
Federation Government”.
84. The press report in the Straits Times reported that the “Indonesian gunboat was
harassing [the Labuan Haji] off Horsburgh lighthouse, 35 miles north east of
Singapore.” (It is notable that the Court stated in the Judgment that Horsburgh
is 33 miles distant from Singapore.)101 The second press cutting, from the
Singapore Standard provides further detail when it notes that the Indonesian
98 Judgment, p. 55, para. 134.
99 Singapore’s Observations, para. 6.21.
100 Annex 2, Application for Revision, para. 27.
101 Judgment, p. 93, para. 264. (But at p. 22, para. 16 of the Judgment, the Court says that Pedra
Branca/Pulau Batu Puteh “lies approximately 24 nautical miles to the east of Singapore”.)
39
gunboat and the Labuan Haji were seen in the area north of Horsburgh
Lighthouse.
85. Pursuant to the permission granted by the Court to submit additional
documentation, Malaysia attaches three further newspaper articles which
provide further corroboration of the location of the Labuan Haji incident
(Annexure A). Of particular interest is the cutting from the Straits Times on 27
February 1958, as it not only reiterates that the incident took place “off Horsburgh
lighthouse, 35 miles north-east of Singapore”, it also reports that the Prime
Minister of Malaya, Tengku Abdul Rahman, “call[ed] for a full report on the
incident in Johore territorial waters yesterday”, in confirmation of the fact that
the Malayan authorities considered that Johor’s territorial waters encompassed
the waters to the north of Pedra Branca/Pulau Batu Buteh.
86. Far from being “too vague”, the various documents comprising Annex 2, when
taken together, offer a clear and reliable indication that the Labuan Haji was
being pursued in the waters just north of Pedra Branca/Pulau Batu Puteh. The
most significant element of the Annex is the revelation that the Singapore
authorities considered that this area could not be accessed by the Royal Navy
without the permission of the Federation of Malaya, since that area was part of
Johor’s territorial waters.
(c.) Annex 3 – sketch map of restricted maritime areas
87. Singapore also asserts that Annex 3 lacks the character of decisiveness necessary
to satisfy the conditions of admissibility. Annex 3 comprises a sketch map dated
40
25 March 1962 depicting the “Restricted and Prohibited Areas – Singapore
Territorial Waters” established by the Singaporean authorities which, according
to the handwritten annotations featured on the newly discovered copy of this
document, were re-imposed regularly by Singapore authorities until at least
February 1966.
88. In its Observations, Singapore contends that “[t]he purpose of the sketch map is
disclosed by reviewing that part of the 1964–1966 file containing the sketch map
that Singapore has not produced”.102 Malaysia observes that a clearer and more
complete understanding of the context in which the sketch map was produced
and of the significance of Singapore’s conduct can be obtained by producing the
complete set of orders of which the sketch map forms part. Thus, in accordance
with the permission granted by the Court to submit additional documentation
concerning the admissibility of its Application for Revision, Malaysia attaches
the entire archival file in which the sketch map was newly discovered. This file,
number DEFE 69/539 titled “Naval Operations in the Malacca and Singapore
Straits, 1964–66”, includes the full “Set of Orders for Ships Patrolling in Defence
of Western Malaysian Seaboard (Second Edition) (MALPOS II)” (Annexure B).
The sketch map is Appendix One to Annex B (Patrol Areas and Navigation) of
MALPOS II. The details concerning the discovery of DEFE 69/539 are provided
in section III.C.1 below.
102 Singapore’s Observations, para. 3.29.
41
89. In its attempt to query the decisive character of the Annex 3 map, Singapore relies
upon a passage from the Judgment concerning the omission of Pedra
Branca/Pulau Batu Puteh from the scope of a curfew order made in Singapore in
1948. In that passage, the Court endorsed Singapore’s view that “there was no
reason in terms of its purpose for extending the ban to such a distant island”.103
According to Singapore “[e]xactly the same reasoning applies to the sketch map
in Annex 3 to the Application.”104 Singapore contends that:
[T]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 the coverage of the sketch map to Pedra Branca.105
90. In order to respond to this contention, Malaysia avails itself of the opportunity it
has been given by the Court by letter dated 9 October 2017 to present further
documentation in support of its Application.
91. Annexed to these Additional Observations is a copy of file WO 268/802
(Annexure C), which is a confidential document from the UK War Office titled
“Indonesian Offensive Against West Malaysia (Excluding Piracies and
Undetected Infiltrations)”. The document was released by the UK National
Archives for public access on 16 September 2008, after the Judgment was
delivered, and it was discovered by Malaysian researchers on 30 May 2017, after
Malaysia had already submitted its Application for Revision on 2 February 2017.
103 Judgment, p. 72, para. 189.
104 Singapore’s Observations, para. 6.25.
105 Singapore’s Observations, para. 6.25, citing Judgment, p. 95, para. 272.
42
92. The document tabulates the details of the incidents involving British forces and
Indonesian infiltrators in the period 17 August 1964–31 December 1965, when
Konfrontasi, the Indonesian campaign of confrontation intended to intimidate
and destabilise the newly formed Federation of Malaya, was underway. The
document records such details as the location of the incident, the number of
persons involved, whether any enemy persons were killed or captured, and any
casualties suffered by the allied forces.
93. On page 8 of document WO 268/802, item 34 records an incident which took
place on 25 March 1965 involving an attempted landing by three boats. Two of
these boats were intercepted by Royal Navy vessels as part of Operation Oak Tree
III. The document shows that one of the Indonesian infiltrators was “captured at
HORSBORO Lighthouse attempting escape”. The document indicates the
specific zone or area in which each incident took place, and this sea interception
is marked under “EAST JOHORE–TG PUNGGAI area”.106
94. As this document shows, the UK authorities had subdivided the operational
theatre of West Malaysia into a series of areas, such as “SINGAPORE–RAFFLES
LIGHT” or SELANGOR–KUALA LUMPUR”, to note two of the more common
areas. Item 34 indicates that the UK authorities considered Horsburgh lighthouse
to be situated in East Johor until at least the end of 1965.
106 “TG PUNGGAI” refers to Tanjung Punggai, which is a cape on the south-eastern coast of Johor,
roughly nine nautical miles north-west of Pedra Branca/Pulau Batu Puteh. It is the easternmost
point of the Malay Peninsula.
43
95. While this additional document is valuable in itself for providing yet another new
illustration that the “understanding at that time by the authorities in Singapore”
that it had not acquired sovereignty over Pedra Branca/Pulau Batu Puteh from
Johor, it has further relevance in illuminating why the omission of Pedra
Branca/Pulau Batu Puteh from the Annex 3 sketch map is significant.
96. Singapore attempts to explain the absence of any reference to Pedra
Branca/Pulau Batu Puteh in the Annex 3 map depicting the “Restricted and
Prohibited Areas in Singapore Territorial Waters” by stating that “there was no
reason” for extending the orders and restrictions to Pedra Branca/Pulau Batu
Puteh, and so “there was “no reason in terms of its purpose” for extending the
coverage of the sketch map to Pedra Branca.”107 According to Singapore:
[R]ead 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.108
97. Considering the information provided in the additional documentation—the
War Office list of incidents and the Ministry of Defence file on naval
operations—it quickly becomes clear that Singapore’s claim that there was
neither need nor reason for Singapore to include Pedra Branca in these security
arrangements or on the sketch map cannot be sustained. In particular, Singapore
understates the scale of the danger caused by Konfrontasi when it suggests in its
107 Singapore’s Observations, para. 6.25.
108 Singapore’s Observations, para. 3.34.
44
Written Observations that Konfrontasi was a threat “arising from the south of
the main island of Singapore”.109
98. The documents comprising Annex 2 themselves call this claim into question, as
the Labuan Haji incident reported by those documents is a clear indication that
the danger posed by Indonesian infiltration forces stretched to Pedra
Branca/Pulau Batu Puteh and its surrounding waters. Furthermore, the War
Office document WO 268/802 presented as additional documentation lists no
fewer than 124 hostile interactions with Indonesian antagonists over 16 months
in an area encompassing the Malacca and Singapore Straits and the southeastern
coast of Johor. Finally, the introductory document in archival file DEFE
69/539 provides a useful overview of the extent of the security threat posed by
armed Indonesian craft throughout the region. It states that “the main areas of
threat were: South Malacca Strait, Singapore, SE Johore”.110
99. As these documents indicate, the threat to security posed by the Indonesian
agitators during the Konfrontasi campaign spread throughout the region, and
certainly encompassed the area of Pedra Branca/Pulau Batu Puteh, as the Labuan
Haji incident itself attests. In these circumstances, it seems that there was a
palpable need for Singapore to include Pedra Branca/Pulau Batu Puteh in its
security arrangements and curfew orders, and so too there was every reason for
Singapore to depict Pedra Branca/Pulau Batu Puteh in the Annex 3 sketch map.
109 Id.
110 “Naval Operations in the Malacca and Singapore Straits 1964–1966”, first document in DEFE
69/539, p. 7.
45
100. Finally, Singapore attempts to claim that the Court “dismissed [the] arguments”
that Singapore’s failure to depict Pedra Branca/Pulau Batu Puteh as part of
Singapore demonstrated that it did not understand that Pedra Branca/Pulau
Batu Puteh formed part of its territorial entitlements.111 However, a close reading
of the passage cited by Singapore shows that the Court did not go as far as
Singapore claims. Rather than “dismissing” the argument that Singapore’s
repeated failure to include Pedra Branca/Pulau Batu Puteh in maps of its
sovereign territory indicates its view about sovereignty, the Court simply
attached less probative value to the specific maps published by Singapore than it
did to the maps published by Malaya and Malaysia.112
101. This second contention can be readily discounted, as it does not withstand a
close reading of the passage from the Judgment relied upon by Singapore. Rather
than “dismissing” the claim that Singapore’s repeated failure to include Pedra
Branca/Pulau Batu Puteh in cartographic representations of its sovereign
territory, the Court simply attached less probative value to the specific maps
published by Singapore than other maps published by Malaya and Malaysia. This
does not foreclose the possibility that the discovery of the annotated map may
tip the balance of the factual record on which the Court based its determination
that a tacit agreement emerged.
111 Singapore’s Observations, para. 6.26.
112 Judgment, pp. 94–5, paras 267–72.
46
(d.) Annexure D – the 1937 map validated by the War Damage Commission
Stamp
102. Further confirmation that the authorities of Malaya and Singapore both
understood that Pedra Branca/Pulau Batu Puteh was situated in Johor’s
territorial waters is offered by a newly discovered map which Malaysia also
submits as additional documentation and attaches as Annexure D.
103. This newly discovered map is titled “Johore, 1937” and it has been franked with
an official stamp of the War Damage Commission. The Government of Malaysia
was first made aware of the existence of this map as stamped by the War Damage
Commission on 9 November 2017, and it received a copy of the stamped map
from a private individual, Dr R Satkunarajah, on 5 December 2017, after Malaysia
submitted its Revision Application. Dr Satkunarajah has informed the
Government of Malaysia that he purchased the stamped map on 3 September
2017 from a UK seller/collector, Mr Martin Fuller, who had held the map
privately. The Government of Malaysia states that it was unaware of and had no
means whatsoever of knowing of the existence of this map as stamped by the
War Damage Commission, prior to being informed of the same by Dr
Satkunarajah.
104. The newly discovered map shows a dotted boundary line between Singapore and
Johor (thus clearly distinguishing between the two entities), and very clearly
includes Pedra Branca/Pulau Batu Puteh as part of Johor. Although this map was
produced in 1937 (and reissued in 1946), its significance for the Revision
Application comes from the fact that it was used by the War Damage
47
Commission, as shown by the official stamp on the map and the bindings. The
War Damage Commission was a body established by War Damage Ordinances
and came into being on 1 January 1950. It consisted of 12 members, all of whom
were appointed jointly by the High Commissioner of the Federation of Malaya
and the Governor of the Colony of Singapore. It operated during the 1950s.
Among the members of the Commission were the Honourable Financial
Secretaries of both Malaya and Singapore.113 As such, Singapore had clear official
notice that this map included Pedra Branca/Pulau Batu Puteh as part of Johor
and it made no protest.
105. In this way, the use by the War Damage Commission, with its official constitution
and operation, of this map showing Pedra Branca/Pulau Batu Puteh as
indisputably part of Johor provides further evidence that no shared
understanding was emerging between the parties. There was no appreciation on
the part of the Singapore authorities that Pedra Branca/Pulau Batu Puteh was
part of Singapore. Although other copies of this map exist, this particular copy is
distinctive and important for the purposes of the Revision Application because it
has been imprinted with the stamp of the War Damage Commission, an official
Malay-Singapore body, established at the highest level.
113 See War Damage Commission Report, 1952, p. 33, Annexure D. It is to be noted that none of the
reports of this Commission explicitly refer to the map, thus Malaysia had no notice of its existence
until informed on 9 November 2017 of its discovery in a private collection.
48
III. THE DUE DILIGENCE AND TEMPORAL
CRITERIA OF ADMISSIBILITY
A. Newly Discovered Fact Unknown When Judgment Given
106. Singapore contends that Malaysia’s application is inadmissible because Malaysia
knew during the proceedings that Singapore did not claim that the 1953
correspondence had effected a transfer of sovereignty over Pedra Branca/Pulau
Batu Puteh.114 Alternatively, Singapore claims that Malaysia was aware that
Singaporean authorities knew that Pedra Branca/Pulau Batu Puteh did not form
part of Singapore’s sovereign territory in the years after the 1953 correspondence
“because this was precisely what Malaysia claimed in its pleadings in the original
case. There, Malaysia alleged that Singapore’s conduct and representation
showed that Singapore’s conduct and representation showed that Singapore did
not have sovereignty over Pedra Branca.”115
107. These observations are misplaced, since they misconstrue the facts which
Malaysia has newly discovered and in respect of which Malaysia has applied for
Revision of the Judgment. As section II explained in detail, the documents newly
discovered by Malaysia establish the existence of a continuing factual situation,
of which neither the Court nor Malaysia knew when the Judgment was given:
specifically, that no agreement, express or tacit, existed between the parties as to
114 Singapore’s Observations, para. 5.3.
115 Singapore’s Observations, para. 5.5.
49
the transfer of Johor’s sovereignty over Pedra Branca/Pulau Batu Puteh to
Singapore.
108. These particular documents attesting to the non-existence of an agreement
between the parties were not laid before the Court during the original
proceedings, nor were they part of or referred to in the pleadings of either
Malaysia or Singapore in those proceedings. Singapore has been unable to point
in its Written Observations to any reference to these newly discovered
documents during the original proceedings, and has merely noted that counsel
for Malaysia acknowledged, during the oral pleadings in the original case, that
Singapore did not claim that the 1953 correspondence amounted to title to
territory.116 The most that Singapore has claimed is that Malaysia argued in its
written pleadings that Singapore did not have sovereignty over Pedra
Branca/Pulau Batu Puteh117. This is a feeble basis for asserting that Malaysia knew
during the earlier proceedings that there was evidence available which proved
that no agreement for the transfer of sovereignty from Johor to Singapore ever
formed between the parties.
109. The fact that no agreement ever arose between the parties was obviously
unknown to the Court itself, seeing that a crucial element of the Court’s
Judgment was the specific finding of fact that an agreement had come into
existence as a result of an informal convergent evolution in the parties’
understanding of sovereignty over Pedra Branca/Pulau Batu Puteh. Since the
116 Singapore’s Observations, para. 5.3.
117 Singapore’s Observations, para 5.5.
50
Court did not know of the existence or content of the newly discovered
documents it could not come to the conclusion that there was no convergent
evolution in the parties’ understanding. This finding of fact and its centrality to
the Court’s Judgment is discussed more fully in section III.
110. Contrary to Singapore’s vague allegations, these documents evidencing this vital
fact were only discovered by Malaysia after August 2016, following a review of
archival files in the United Kingdom. The following section, III.B, describes in
detail the circumstances surrounding the discovery of these documents.
B. Ignorance Not Due to Negligence
111. Singapore alleges that Malaysia’s application is inadmissible on the grounds that
it fails to satisfy the condition that the late discovery of the fact is not due to
negligence on the part of the Applicant. Singapore claims that “Malaysia failed
to exercise reasonable diligence with respect to the research and discovery of all
the ‘new documents’ on which it now seeks to rely” on the basis that the newly
discovered documents were, “by reason of their character and substance”,
obtainable by Malaysia during the original proceedings “with minimal effort”.118
112. Malaysia notes that the test of negligence in discovery is, as Kaikobad explains,
objective, based on what reasonably can be expected of a State’s conduct in the
circumstances of the case.119
118 Singapore’s Observations, paras 5.16 and 5.21.
119 K H Kaikobad, Interpretation and Revision of International Boundary Decisions (Cambridge
University Press, 2007), p. 296.
51
113. This formulation reflects the practice of the Court in Tunisia v Libya Revision and
Interpretation. In that case, when considering whether Tunisia’s ignorance of the
precise boundary of a petroleum concession granted by Libya was due to
negligence on Tunisia’s part, the Court noted that:
[It] must however consider whether the circumstances were such that means
were available to Tunisia to ascertain the details of the co-ordinates of the
concession from other sources and indeed whether it was in Tunisia’s own
interests to do so. If such be the case, it does not appear to the Court that it is
open to Tunisia to rely on those co-ordinates as a fact which was “unknown” to
it for the purposes of Article 61, paragraph 1, of the Statute.120
114. In the following paragraphs, Malaysia will demonstrate that it is not
unreasonable in the circumstances of the original case that Malaysia, despite its
extensive and systematic efforts, did not locate or obtain the documents which
support the newly discovered facts on which this Application is based.
B.1 Malaysia Had No Knowledge of or Reasons to Believe the Existence
of the New Documents before the 2008 Judgment Was Given
115. Singapore contends that Malaysia has “presented no evidence to show that it had
made any attempt to obtain the documents before the judgment was given”. 121
Singapore further contends that “the new documents could have been researched
and discovered before the judgment was given”.122 These contentions are wholly
disingenuous and mischievous.
120 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), ICJ Reports 1985, p. 205, para. 23.
121 Singapore’s Observations, para. 5.9.
122 Singapore’s Observations, Part B(2), Chapter V.
52
116. Singapore’s contention presupposes that Malaysia was aware of the existence of the
documents and therefore Malaysia should have attempted to request such
documents from the UK Government before judgment was given. This prompts the
question as to how Malaysia was supposed to make a request for documents of
whose existence it was unaware. Malaysia contends that it had no knowledge of or
reason to believe the existence of these documents before the judgment was given,
and therefore that there was no basis during the original case to make any approach
to the UK Government to request such documents of which it was unaware. In
contrast, these documents were available to Singapore before the 2008 Judgment
was given, and could have been produced by Singapore in good faith during the
original proceedings.
117. While Singapore claims that these facts were obtainable by Malaysia in the
original case “by reason of their character and substance”, this is clearly
baseless.123 Malaysia will demonstrate below that the newly discovered facts as
produced as Annexes 1 and 3 to the Application for Revision share no substantial
similarity with Singapore’s suggested documents, let alone share similarity “by
reason of their character and substance”
B.2 Comparison Between the July 1953 Letter Produced by Malaysia in
the Original Case and the 7 February 1958 Telegram Submitted as Annex 1
to Malaysia’s Application
123 Singapore’s Observations, para. 5.1.
53
118. Singapore contends that the 7 February 1958 telegram comprising Annex 1 to
Malaysia’s Application does not evidence a new fact because it is similar to a 1953
letter that Malaysia produced in the original case.124
119. Singapore attempts to characterise these two documents as similar merely
because “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“.
Singapore further states that based on the 1953 letter, “Malaysia clearly knew that
there were internal discussions within Singapore concerning the territorial sea
issue, but Malaysia has produced no evidence in the Application of any
approaches made to the United Kingdom so as to discover Annex 1 to the
Application”.125 Mere knowledge of the 1953 letter would by no means whatsoever
result in Malaysia having knowledge of the 1958 telegram.
120. Singapore has failed to recognise the fact that these two documents are
substantially different from one another. In respect of this, Malaysia wishes to
highlight that there are at least two significant differences between the 1958
telegram and the 1953 letter: first, the 1958 document makes specific mention of
the Horsburgh Lighthouse, which the 1953 correspondence does not; and second,
the subject matter of the two documents differs appreciably.
124 Letter from A.G.B. Colton, for the Colonial Secretary, Singapore, to the Deputy Commissioner
General for Colonial Affairs, Singapore, July 1953 (Annex 68 of Memorial of Malaysia)
125 Singapore’s Observations, para. 5.15.
54
(a.) No specific mention of the Horsburgh Lighthouse
121. First, there is no specific reference to or mention of the Horsburgh Lighthouse
in any part of the 1953 letter. This is entirely different from the 1958 telegram
which expressly refers to the Horsburgh Lighthouse in the following terms:
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 southernmost point of St John's
Islands and Batu Berhanti Light to a point 1 mile north of Horsburgh Light.
122. This reference to the Horsburgh Lighthouse alerted Malaysia to its significance
with regard to the question of the sovereignty of Pedra Branca/Pulau Batu Puteh.
In fact, Malaysia’s arguments in the Application for Revision as regards the 1958
telegram substantially and specifically revolve around the proposal by the
Governor of Singapore contained therein, i.e., the special provision for an
international high seas corridor passing only 1 mile from the Horsburgh
Lighthouse.
123. Neither this proposal nor anything related to it can be found in the 1953 letter,
giving Malaysia no reason to be aware of the existence of the 1958 telegram by
only having sight of the 1953 letter.
(b.) Different subject matter
124. Second, the subject matter in the 1953 document is completely different from the
subject matter in the 1958 telegram. Whilst both sets of correspondence have
55
some relation to the development of the law of the sea, their specific contents
are totally different.
125. In this regard, it is clear that the 1953 letter essentially concerns the effects of the
Anglo-Norwegian Fisheries judgment of 1952, whereas the 1958 telegram is an
exchange of views among Singapore officials at the highest levels following the
work of the International Law Commission. These are two entirely different
subjects of discussion. This is also why Malaysia’s arguments concerning the 1953
letter in the original case were entirely different from Malaysia’s arguments
regarding the 1958 telegram in the Malaysia’s present Application for Revision.
126. In the original case, Malaysia referred to the 1953 letter to demonstrate the
Colonial Secretary of Singapore’s understanding that the extent of Singapore’s
sovereignty over nearby islands was determined by the Anglo-Dutch and
Crawfurd treaties of 1824 and the 1927 Agreement.126 This was following the
Anglo-Norwegian Fisheries judgment of 1952. It had nothing to do with the
special provision for an international high seas corridor as proposed by the
Governor of Singapore in the 1958 telegram which only happened five years after
the 1953 letter.
127. If the two sets of correspondence were connected, as Singapore attempts to
characterise them, then the Singapore officials in the 1958 telegram would have
specifically mentioned or made reference to the 1953 letter. But they did not do
so because the two sets of correspondence are unrelated to each other and do
126 Memorial of Malaysia, para. 238.
56
not share any substantial similarity “by reason of their character and substance”,
as alleged by Singapore, or any other reason.
B.3 Comparison between the Annex 3 Sketch Map and the “Set of
Orders” which Singapore Alleged Was Made Available to Malaysia Prior
to the 2008 Judgment
128. Singapore contends that “Malaysia’s negligence is also demonstrated in the case
of the sketch map in Annex 3 to the Application”.127 Singapore further contends
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”. The Annex
referred to by Singapore is Annex 33 to the Reply of Singapore in the original
case, and copies of the said set of orders “containing the sketch map” were
allegedly distributed to various Malaysian authorities and therefore has been in
Malaysia’s possession for more than 50 years.128
129. Nevertheless, Malaysia’s sketch map was not obtained either from Singapore’s
Annex 33 or from the “set of orders” from which Singapore’s Annex 33 was
extracted. Indeed, Singapore has failed to produce any evidence to prove that
Malaysia’s sketch map was obtained from the “set of orders” from which
Singapore’s Annex 33 was extracted and annexed.
130. In fact, upon careful examination of Singapore’s Annex 33, it is observed that
Singapore’s Annex 33 contains only a few documents, as follows:
127 Singapore’s Observations, para. 5.18.
128 Singapore’s Observations, para. 5.23.
57
i. a cover letter entitled “Orders for Ships Patrolling in Defence of West
Malaysian Seaboard (Short title: MALPOS II)” together with the
distribution list – Page (i) and (ii);
ii. a list of contents – Page (iii) and (iv); and
iii. Annex K: Characteristic of Legal Craft, Crews and documents (pages
K.1 to K.7)
131. Singapore contends that Malaysia’s sketch map was obtained from the “same set
of orders” which were available to Malaysia prior to the 2008 judgment. In this
regard, Malaysia relies on a specific sketch map taken from a specific file, not the
sketch map contained in any other files as alleged by Singapore.
132. More particularly, the sketch map relied on by Malaysia contains specific
handwritten annotations that cannot be found in any other files. The said sketch
map is part of Appendix One to Annex B (Patrol Areas and Navigation) to the Set
of Orders for Ships Patrolling in Defence of Western Malaysian Seaboard (Second
Edition) (MALPOS II) found in file DEFE 69/539 obtained from the UK National
Archives.
133. Singapore contends that the same set of orders can also be found in the UK
National Archives file DEFE 24/98 which Singapore claims “was made available
for research as early as January 1998”.129 Singapore clearly reached this view
without examining file DEFE 24/98 carefully. Malaysia’s sketch map at Annex 3
in its Application for Revision contains handwritten annotations which are not
129 Singapore’s Observations, para. 5.21.
58
found in the sketch map in DEFE 24/98. This fact sets the two maps apart and
the sketch maps are different “by reason of their character and substance“. In this
regard, Singapore has failed to recognise that Malaysia’s reliance on the sketch
map that it submitted depends inter alia on the handwritten annotations on it.
134. The said handwritten annotations in the sketch map contained in DEFE 69/539
state as follows:
NOTE. The night curfew arrangements described above are reviewed each
month by Singapore Authorities and re-imposed as necessary. Currently (FEB
66) there is no change to that laid down above other than that the [fishing]
areas are in abeyance.
135. It is clear from the handwritten annotations that they were inserted in February
1966.
136. In this regard, from a page containing State of Amendments in DEFE 69/539, a
total of 17 amendments were made to the set of orders with the latest amendment
dated 12 July 1966. More importantly, 2 amendments were made on 9 and 23
February 1966. This is consistent with the handwritten annotations on Malaysia’s
sketch map which were dated February 1966.
137. Contrary to DEFE 69/539, the page containing State of Amendments found in
DEFE 24/98 shows that only a total of five amendments were made to the set of
orders in DEFE 24/98. More significantly, the latest amendment was made on 21
January 1966 and therefore it is impossible for the sketch map contained in the
file to have any amendments made in February 1966.
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138. Based on the above comparison, it is clear that the sketch map from DEFE 24/98
is totally different from the Malaysia’s sketch map submitted in her Application
for Revision.
139. Singapore further alleges that “the set of orders containing the sketch map is
referred to by Dr. Ian Pfennigwerth in his book on the Royal Australian Navy in
South East Asia” which “research [on it] had been completed and the manuscript
finalised for publication by November 2007”, prior to the 2008 Judgment.130
140. In respect of this, Malaysia also submits that the sketch map that was produced
by Dr. Pfenningwerth is entirely different from Malaysia’s sketch map as it bears
no annotations.
141. In fact, Singapore acknowledges that “the primary documents reference” sourced
by Dr. Pfenningwerth with regard to information relating to the sketch map was
“UKNA DEFE 24/98 – Report on Naval Operations in East and West Malaysia 1964
– 1966” which is file DEFE 24/98 obtained from the UK National Archives. As
established earlier, the sketch map from DEFE 24/98 is totally different from
Malaysia’s sketch map taken from DEFE 69/539.
142. With regard to Singapore’s allegation that the said “set of orders containing the
sketch map” were distributed to various Malaysian authorities and therefore have
been in Malaysia’s possession for more than 50 years,131 Malaysia comments that
130 Singapore’s Observations, para. 5.20.
131 Singapore’s Observations, para. 5.23.
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Singapore has failed to provide any evidence whatsoever to substantiate such an
allegation. Malaysia further contends that:
a. the cover letter in Singapore’s Annex 33 is a generic letter which can also be
found in several other files; and
b. the cover letter was dated 25 March 1965; hence it is impossible that the said
letter was attached to a sketch map with annotations dated February 1966,
which Malaysia relies on in her Application for Revision.
143. In addition, Malaysia’s sketch map with handwritten annotations inserted in
February 1966 can only be found in file DEFE 69/539, which is a file owned by
Director of Naval Tactical and Weapon Policy (DNTWP), Ministry of Defence,
United Kingdom. The file was classified as “SECRET” and the existence of such
file was not known to Malaysia before it was discovered on 8 November 2016.
144. Malaysia contends that the handwritten annotations on Malaysia’s sketch map
have not only distinctive characters that differentiate them from other sketch
maps, but they also carry probative value that is highly significant. The fact that
the sketch map relied on by Malaysia was reviewed on a monthly basis by the
Singapore authorities and that it was reviewed up to February 1966 show the
Singaporean authorities' understanding up to 1966 that their territorial
entitlements never included Pedra Branca/Pulau Batu Puteh. Thus, Malaysia
submits that the alleged existence of a convergent evolution in respect of the title
to Pedra Branca/Pulau Batu Puteh is clearly not borne out by the said sketch
map.
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B.4 UK Legislation on Archival Records
145. The position in respect of UK public records is not as simple as Singapore
attempts to suggest. The original position under the Public Records Act 1958
(“Act”)(Annexure E) was provided in section 5 (1) of the Act as follows:
Public records in the Public Record Office, other than those to which members
of the public had access before their transfer to the Public Record Office, shall
not be available for public inspection until they have been in existence for fifty
years or such other period, either longer or shorter, as the Lord Chancellor
may, with the approval, or at the request, of the Minister or other person, if
any, who appears to him to be primarily concerned, for the time being
prescribe as respects any particular class of public records.
146. In 1958, when the Act was promulgated, there was no absolute right of access to
documents. For example, file FCO 141/14808, from which Annexes 1 and 2 were
taken, would only have been disclosable in 2009. Admittedly, the 50-year period
was subsequently reduced to 30 years and 20 years but it is clear from section 5(1)
of the Act that the 50-year period could have been extended at the request of the
“Minister or other person”. Singapore’s contention that the “documents had to
be made available for public inspection once they had been in existence for 30
years” is, with respect, economic with the truth as such a period could have been
extended with no right of access being granted to anyone.
147. It is to be further noted that both FCO 141/14808 and DEFE 69/539 were files
which were marked as “SECRET” and therefore it is clear that their disclosure
was protected by the relevant departments which they originated from.
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148. Singapore has referred to the enactment of the Freedom of Information Act (“FOI
Act”) in 2005 but has not informed the Court that the FOI Act has statutory
exemptions contained in Part II which relate inter alia to national security,
defence and international relations. It is clear that the SECRET files would have
fallen into this category and it would have been up to the relevant authorities to
de-classify them, as they did, at the appropriate time. The relevant provisions
relating to the exemptions are, inter alia, sections 24, 26 and 27 of the FOI Act.
(Annexure F).
149. It is therefore clear that Malaysia did not act negligently but rather acted
diligently and researched and obtained the necessary documents as best as it
could in the circumstances.
150. It must also be noted that the National Archives in the United Kingdom releases
documents to the public on an ongoing basis. Documents are released
progressively and continue to be released now, even in 2017, as shown by the
schedule for the transfer (Annexure G).
151. It is wholly unreasonable to expect Malaysia to monitor, on a daily, weekly or
monthly basis the document releases of the National Archives in the United
Kingdom.
C. Temporal Limits Observed
152. Article 61 imposes two time limits for the admissibility of an Application for
Revision of a Judgment. The first is a relative limit, in the sense that a party must
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submit an Application within six months of discovering a relevant fact, whenever
that may be. The second condition is absolute, as an Application may not be
submitted any later than ten years after the Judgment was given by the Court.
153. Malaysia’s Application fulfils both of these temporal conditions.
C.1 The Application Was Filed within Six Months of Discovery
154. In 2016, the Government of Malaysia decided to conduct comprehensive research
in relation to the sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks
and South Ledge, bearing in mind the approach of the ten year deadline (2018).
The objective of the research was to discover any new fact that may fulfil the
requirements set out in Article 61 of the Statute of the ICJ, so as to form a basis
for Malaysia to file an application for the revision of the judgment delivered by
the ICJ on 23 May 2008.
155. The research commenced on 4 August 2016 and took place in the National
Archives of the United Kingdom in London. The National Archives keeps an
extensive collection of historical documents relating to both Malaysia and
Singapore and has been progressively releasing its Colonial Records and
documents on an ongoing basis.
156. The research was carried out according to the following methodology:
a. First, a keyword was entered into the online catalogue of the National
Archives which is accessible to registered readers of the National Archives
and also the public domain. The main keywords entered into by the
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researchers include “Malaya”, “Singapore”, “Johor” and “Johore”. The online
catalogue would then show the search results which display all the available
records containing the keyword along with descriptions of records and
information about how to access them. It is to be noted that a wide range of
records were available;
b. Second, the available records were filtered based on their respective dates. In
this regard, the researchers divided the available records into two separate
groups, i.e., records dated before the year 1950 and records dated after 1950;
c. Third, the researchers scrutinised all the available records based on their
descriptions. The researchers then determined records that were most likely
to contain any new fact and mark such records accordingly;
d. Fourth, after identifying the relevant records, the researchers proceeded to
make a request to the National Archives for the physical records to be
produced. These records would then be analysed to identify any new fact
which could form a basis for revision of a judgment; and
e. Fifth, in the event where a new fact is found and identified, the researchers
would make the necessary check to confirm that the new fact was only made
available after the ICJ rendered its Judgment on 28 May 2008.
157. In respect of all three newly discovered documents by Malaysia, Malaysia
categorically affirms that these newly discovered documents were all filed within
the six month time limit from the date of discovery as prescribed in Article 61 of
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the Statute of the ICJ. This is evident from the actual date of discovery of these
newly discovered documents which are as follows:
158. Both the Colony of Singapore Confidential Telegram No. 52 from Governor of
Singapore to the Secretary of State for the Colonies dated 7 February 1958
regarding territorial waters and the Memorandum reporting the Labuan Haji
incident on 25 February 1958 and the accompanying file note were contained
within a single file (File Reference No. FCO 141/14808). This file was discovered
by the researchers on 4 August 2016. (Annexure H). The record opening date for
this file is 27 September 2013 (Annexure I).
159. The file containing the Map of Restricted and Prohibited Areas – Singapore
Territorial Waters dated 25 March 1962 (File Reference No: DEFE 69/539) was
discovered by the researchers on 8 November 2016 (Annexure J). However, the
record opening date of this file could not be identified (Annexure K). The
researchers then took the step to confirm the date through the method
prescribed by the UK National Archives. This could be confirmed through email
correspondence between the researchers and the National Archives dated 19 and
21 January 2017 (Annexure L). Singapore has received a different response from
the National Archives and it is astonishing that on the one hand, when Malaysia
enquired, the Archives could not confirm the date when the files were made
available to the public, while on the other hand they could provide a specific date
to Singapore when it enquired on the same point. In this regard Malaysia urges
the Court to treat the date given to Singapore with some circumspection as it
66
clearly is not supported with any contemporaneous documentation to evidence
the fact that the file had indeed been released on the earlier date.
160. Based on the above, Malaysia has clearly complied with the Article 61
requirement to submit its Application for Revision within six months of the
discovery of the new documents.
(a.) Professor Shaharil
161. In addition, Singapore claims that the documents introduced by Malaysia in
support of the Application do not satisfy the six month requirement under
Article 61 because “[t]here is substantial overlap” between the material forming
the basis of Malaysia’s Application and content found on a blog posted on the
World Wide Web by one Professor Shaharil.132 Singapore claims that “Professor
Shaharil had knowledge of the Annexes to the Application from early 2015, if not
before”, and furthermore that any knowledge which Professor Shaharil may have
had is attributable to Malaysia on account of Professor Shaharil’s participation in
the oral proceedings in the original case.
162. According to R Geiß,133 in the absence of any specific authority with regard to
this requirement, the attribution of knowledge to the applicant State in revision
proceedings is undertaken by analogy with Article 4 of the International Law
Commission’s Articles on the Responsibility of States for Internationally
132 Singapore’s Observations, paras 5.30–5.31.
133 R Geiß, ‘Revision Proceedings before the International Court of Justice (2003) 63 Zeitschrift für
ausländisches öffentlices Recht und Völkerrecht, p. 167 at p. 187.
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Wrongful Acts 2001.134 According to Article 4, only the knowledge of State organs
should be considered as knowledge of the State. Article 4, paragraph 1 provides:
The conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial or
any other functions, whatever position it holds in the organization of the State,
and whatever its character as an organ of the central Government or of a
territorial unit of the State.
163. In response to this claim that Professor Shaharil’s knowledge is somehow
attributable to Malaysia, Malaysia offers the following clarification of Professor
Shaharil’s past and present roles. Professor Dato’ Dr. Shaharil Talib’s was
Professor and Head of the Department for South East Asia Studies at the
University of Malaya. The Attorney General’s Chambers of Malaysia (AGC)
engaged Professor Shaharil on a contractual basis as the Head of the Special
Research Unit from 1 September 2005 to 31 August 2013. Professor Shaharil was
subsequently appointed as the AGC’s historical advisor from 1September 2009
until 31 August 2013. Professor Shaharil acted as the Adviser to the Malaysian
delegation in the Case concerning Sovereignty over Pedra Branca/Pulau Batu
Puteh, Middle Rocks and South Ledge (Malaysia/Singapore).
164. Professor Shaharil’s engagement with the Government ended 31 August 2013.
Further, the AGC has not re-employed Professor Shaharil following the end of
his employment in 2013. On 19 July 2013, AGC issued Professor Shaharil with a
Certificate of Appreciation in conjunction with the expiration of his contract.
(Annexure M)
134 Appended to GA Res 56/83, 12 December 2001.
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165. Professor Shaharil was not engaged by the AGC or the Government of Malaysia
for the purposes of Malaysia’s present Revision Application, nor has he been
involved in the preparation of this Application in any way whatsoever.
166. In this regard, it is pertinent to note that certain information in the curriculum
vitae as attached by Professor Shaharil in his blog is not accurate, especially in
respect of information on his “professional positions” which states that he
continues to be the Head of the Special Research Unit of the AGC from “2005 to
date”. This is simply incorrect.
167. Professor Shaharil’s blog, “In Defence of Research”, contains only his personal
views and opinions with regard to the Case concerning Sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)
and neither the AGC nor the Government of Malaysia have been involved in any
way whatsoever. This is reaffirmed by the disclaimer on his blog which reads as
follows:
The information and analysis contained in this blog site is written by me as an
academic and does not reflect the position of any government agency. All data
presented in this blog site is within the public domain and does not
compromise official policy.
168. Professor Shaharil had published a total of 15 posts in his blog. None of the
documents contained in Annexes 1 to 3 of the Application or any information
which would have specifically identified the documents contained in the said
Annexes were communicated to the Government of Malaysia or to any of its
agencies at any stage. Fourteen of the 15 posts constituted merely his personal
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analysis of the judgment rendered by the ICJ in 2008 as well as an analysis of
evidence filed by both parties and the Court proceedings.
169. Professor Shaharil published on his blog a post dated 24 March 2015 entitled
“New Facts for Revision Application” where he referred to the release of three
files for the years 1907, 1927 and 1958.
170. It is important to note that none of the Annexes to the Application for Revision
are files for the years 1907, 1927 and 1958.
171. The dates of the files which comprise the Annexes are as follows :
Annex 1: 1 January 1957 – 31 December 1959
Annex 2: 1 January 1957 – 31 December 1959
Annex 3: 1 January 1966 – 31 December 1967.
172. Professor Shaharil claimed that the alleged “new facts” were contained in the
three files. However, in the write up to his blog he appears to have referred to
four files as follows.
173. File from the year 1907: Professor Shaharil alleged that the “new fact” is a
correspondence from the Governor of Colony of the Straits Settlements at the
time, Sir John Anderson, confirming that the Settlement of Singapore had no
territories beyond 10 geographical miles from the Main Island in the Straits of
Singapore. Nothing from any 1907 file has been used in the Application for
Revision.
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174. File from the year 1927: Professor Shaharil alleged that the “new fact” is the
original “Agreement between the Colony of the Straits Settlement and the State
and Territory of Johore 1927”. He added that the file proved that there was “no
territorial waters to demarcate between Pedra Branca/Pulau Batu Puteh in the
Straits of Singapore and that of Mainland Johore and this fact was recognised by
UK Parliament which ratified the Agreement in 1928”.
175. The third document: Professor Shaharil alleged that this file was named
“Tidelands Oil and U.S. Territorial Waters”. He has not given a date for this file
but nothing from any file which was named as such has been used in the
Application for Revision.
176. The fourth document: This document is not identified but Professor Shaharil
merely says that the final piece of evidence “is yet another 2013 released file in
the UK Archives”. He also states that “[t]here is no mention of Horsburgh
Lighthouse and Pedra Branca/Pulau Batu Puteh in the list of intrusions into
Singapore Territorial Waters”.
177. The blog provides no means of identifying precisely which document Professor
Shaharil is referring to. There is no basis to suggest that the Government of
Malaysia was aware of any new fact so as to be in breach of Article 61, paragraph
4 of the Statute of the ICJ.
178. Further, Singapore raises the issue of the alleged blocking of Professor Shaharil’s
blog. This is irrelevant. Professor Shaharil’s blog is accessible in Singapore and
globally. Indeed, Singapore has referred extensively to Professor Shaharil’s blog
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and therefore they were clearly not prejudiced in any way or denied access to the
blog.
C.2 The Application Was Filed Within Ten Years of the Judgment
179. Singapore has accepted in its Observations that Malaysia has complied with the
requirement to bring an Application for Revision within ten years of the
Judgment, since the submission date of 2 February 2017 is no later than ten years
after the Judgment date of 23 May 2008.
180. However, Malaysia cannot let it pass without comment that Singapore has
repeatedly insinuated in its Observations that Malaysia has not acted in good
faith by lodging its application towards the end of the ten-year period stipulated
by Article 61.
181. Malaysia notes that it is entitled under Article 61 to apply for Revision at any
moment during the ten years following delivery of the Judgment (provided, of
course, that the other conditions for admissibility are satisfied). There is nothing
in the Statute of the ICJ nor the Rules of Court to suggest that an Application can
only be brought shortly after the Judgment date, or that it must be brought as
early as possible. Certainly, the Court did not indicate any objection concerning
this admissibility condition when El Salvador submitted its application for
Revision on the very last day of the ten-year period stipulated by Article 61.135
135 El Salvador submitted on 10 September 2002 its Application for Revision of the Judgment
delivered on 11 September 1992 by a Chamber of the Court in the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras: Nicaragua intervening). The Chamber decided that El
Salvador’s Application was inadmissible on the basis that one of the facts it alleged was not a
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182. The six-month stipulation included in Article 61 serves to protect against the
possibility of a State seeking to delay or postpone an Application for Revision for
strategic or other reasons.
183. Malaysia rejects any insinuation that it has delayed its Application for any reason
whatsoever.
184. Malaysia has always indicated its acceptance of the Court’s Judgment, as
Singapore itself has noted, and it has participated in efforts to achieve
compliance by the parties with the decision of the Court. Malaysia only makes
this Application for Revision because it has come upon documents which call
into question the incomplete factual basis upon which the Court gave its
Judgment in 2008.
185. Malaysia has not embarked upon this process lightly or without due respect for
the principles of stability and finality which international justice demands. At the
same time, it is in the interests of justice to ensure that the Judgment of the Court
is well founded on an accurate record of the pertinent facts, and those facts are
only fully known now that these new documents have been discovered by
Malaysia and brought before the Court.
186. For this reason and in this spirit, Malaysia respectfully submits its Application
for Revision to the Court.
decisive factor in the Court’s Judgment, while the other fact was not a new fact within the meaning
of Article 61: ICJ Reports 2003, pp. 409–11, paras 49–59.
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IV. SUMMARY OF REASONING
187. In accordance with Practice Direction II, the following is a short summary of the
reasoning set out in these Observations:
a. The documents on which Malaysia’s Revision Application rests are both new
documents, in the sense of not having been before the Court in the original
proceedings, and contain evidence that is new, in that they address an issue
that is not addressed in the documents before the Court in the original
proceedings.
b. The new documents constitute new facts within the meaning of this term in
Article 61 of the Statute of the Court and the jurisprudence of the Court
thereunder, the Court having construed Article 61 broadly to include
probative materials of whatever form.
c. The evidence that emerges from the new documents goes to the heart of the
appreciation on which the 2008 Judgment rested, namely, the effect, weight
and consequence of the 1953 correspondence and the implied shared
understanding, or tacit agreement, of the Parties perceived by the Court in
the period from 1953 and following that sovereignty over Pedra Branca/Palau
Batu Puteh had shifted from Malaysia to Singapore.
d. The appreciation of a shared understanding on which the 2008 Judgment
rested was not a matter than had been addressed in argument by the Parties
in the proceedings culminating in the 2008 Judgment. This is material to the
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appreciation that the evidence adduced by reference to the new documents
now advanced to the Court is new.
e. The reasoning behind the 2008 Judgment was finely balanced, turning on
variable practice and nuanced appreciations of what the Parties understood.
Against this background, the assessment of whether the new fact meets the
decisive factor criterion in Article 61 of the Statute is an assessment of
whether the new fact has the potential to lead to a different outcome on the
point on which the 2008 Judgment, not whether it would have led to a
different outcome.
f. The distinction between the tests of “having the potential to lead to a
different outcome” and “would have led to a different outcome” is highly
material as it goes to the differentiation between admissibility proceedings
and merits proceedings. The construction given to the admissibility criteria
in Article 61 of the Statute cannot properly be such as to effectively establish
an insurmountable hurdle to the reopening of cases that, in the interests of
the effective administration of international justice, warrant further review.
g. The Revision Application meets all the due diligence and temporal criteria in
Article 61 of the Statute. The documents now advanced to the Court were
not available to, or, if they were available, were not readily discoverable by,
Malaysia in the period leading to the 2008 Judgment.
h. With regard to the claim by Singapore that the new facts now advanced by
Malaysia were published by Professor Shaharil more than two years prior to
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the Revision Application, Professor Shaharil had not published, or seemingly
even identified, the documents which Malaysia now advances and on which
it now relies. Malaysia cannot properly be prejudiced and penalised in its
Revision Application in consequence of an unsubstantiated claim by
someone once associated with the Malaysian Government that new
documents cast doubt upon the 2008 Judgment.
i. While there are documents in the record of the original proceedings that
appear, on superficial examination, to cover the same ground as the
documents on which the Revision Application rests, the new documents are
materially different in relevant and important aspects of their content by
comparison to anything put before the Court in the original proceedings.
V. SUBMISSIONS
188. For the reasons given above, Malaysia requests the Court to adjudge and declare:
a. That there exists a new fact of such a nature as to be a decisive factor within
the meaning of Article 61 of the Statute of the Court;
b. That Malaysia’s Revision Application is admissible; and
c. That the Court should, in accordance with Article 99 of the Rules of Court,
fix a time to proceed with consideration of the Revision Application on its
merits.
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I have the honour to submit to the Court the Additional Written
Observations and Documentation of Malaysia in the Application for Revision
of the Judgment of 23 May 2008 in the Case concerning Sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore) (Malaysia v. Singapore) as well as the annexes attached
hereto.
The Additional Written Observations and Documentation are submitted
pursuant to the letter of the Registrar dated 9 October 2017 transmitting the
decision of the Court to permit such submissions. In accordance with the
respective Rules and Practice of the Court, I submit a duly signed copy of the
Written Observations.
I am pleased to certify that the copies of the annexed documents are true
copies of the originals.
Dated the day of 2017
Dato’ Ahmad Nazri Yusof
Ambassador of Malaysia to the Kingdom of the Netherlands
Co-Agent of Malaysia
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VI. LIST OF ANNEXURES
Annexure A Additional newspaper clippings concerning the Labuan
Haji incident.
Annexure B File DEFE 69/539: “Naval Operations in the Malacca
and Singapore Straits, 1964–66”.
Annexure C File WO 268/802: “Indonesian Offensive Against West
Malaysia (Excluding Piracies and Undetected
Infiltrations)”.
Annexure D Map of “Johore 1937” and War Damage Commission
Report for 1952.
Annexure E United Kingdom Public Records Act 1958.
Annexure F United Kingdom Freedom of Information Act 2000.
Annexure G Printout of the transfer schedule of the UK FCO’s
retained records to the UK National Archives and a
copy of the list of records transferred January to June
2017.
Annexure H Cover sheet for file FCO 141/14808 showing file retrieval
receipt.
Annexure I UK National Archives record description for file
FCO 141/14808.
Annexure J Cover sheet for file DEFE 69/539 showing file retrieval
receipt.
Annexure K UK National Archives record description for file DEFE
69/539.
Annexure L Correspondence between Malaysia’s researchers and
the UK National Archives, dated 19–21 January 2017.
Annexure M Certificate of Appreciation issued to Professor Shaharil
by the Attorney General’s Chambers of Malaysia, dated
19 July 2013.