Written Observations by Malaysia in Response to Singapore's Written Observations Contesting Jurisdiction and Admissibility

INTERNATIONAL COURT OF JUSTICE
REQUEST FOR INTERPRETATION 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)
WRITTEN OBSERVATIONS BY MALAYSIA IN RESPONSE TO
SINGAPORE’S WRITTEN OBSERVATIONS CONTESTING
JURISDICTION AND ADMISSIBILITY
15 February 2018
1
REQUEST FOR INTERPRETATION 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)
WRITTEN OBSERVATIONS BY MALAYSIA IN RESPONSE TO
SINGAPORE’S WRITTEN OBSERVATIONS CONTESTING
JURISDICTION AND ADMISSIBILITY
CONTENTS
I. INTRODUCTION .............................................................................. 2
II. THE JUDGMENT OF THE COURT OF 23 MAY 2008 .......................... 8
A. Preliminary Observations ..................................................................... 8
B. The Status of the Waters Around Pedra Branca/Pulau Batu
Puteh ..................................................................................................... 10
C. Sovereignty Over South Ledge ............................................................ 16
D. Conclusion ........................................................................................... 22
APPENDIX: THE CONSTITUTIONAL STATUS OF THE
RELEVANT AREA ............................................................................. 23
III. THE JURISDICTION OF THE COURT AND THE
ADMISSIBILITY OF THE APPLICATION ......................................... 27
A. The Existence of a Dispute between the Parties ................................ 28
B. The “Meaning or Scope of the Judgment” .......................................... 39
C. Admissibility ........................................................................................ 44
IV. SUMMARY OF REASONING ............................................................ 47
V. SUBMISSIONS ................................................................................. 48
VI. LIST OF ANNEXES ............................................................................ 51
2
I. INTRODUCTION1
1. On 30 June 2017, the Government of Malaysia (“Malaysia”) submitted to the
Court an Application for Interpretation 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) (“Interpretation Application” and “2008
Judgment”). In its Written Observations on the Interpretation Application of 30
October 2017, the Republic of Singapore (“Singapore”) contested the jurisdiction
of the Court in respect of the Interpretation Application and the admissibility of
the Application (“Singapore’s Written Observations”).2
2. By letter to the Court dated 15 November 2017, Malaysia, noting Singapore’s
objections to jurisdiction and admissibility, requested that it be permitted to
submit written observations in response to Singapore’s objections. Having
afforded an opportunity to Singapore to respond to Malaysia’s request,3 the
Court, by letter dated 8 December 2017,4 granted Malaysia’s request to submit
written observations, setting the date of 8 February 2018 as the date by which
such observations were to be submitted. Following an application for an
extension of time by Malaysia by letter dated 29 January 2018, the filing date was
extended to 15 February 2018.5
3. These written observations of Malaysia (“Malaysia’s Written Observations”) are
submitted pursuant to the aforementioned instructions of the Court and in
response to Singapore’s Written Observations.
1 All of the documents referred to in these Written Observations have already been provided to the
Court as annexes to Malaysia’s Interpretation Application and Singapore’s Written Observations.
References to the existing Annexes are provided throughout.
2 See, inter alia, Singapore’s Written Observations, paras 1.13, Summary of Singapore’s Reasoning (pp. 63–
64; paras 2–5), and Submissions (p. 65).
3 Singapore supplied its views by letter dated 24 November 2017.
4 Letter from the Registrar dated 8 December 2017 (149485).
5 Letter from the Registrar dated 8 December 2017 (149959).
3
(i) The issues at the heart of these proceedings
4. In its Interpretation Application, under the heading Interpretation Requested
from the Court, Malaysia asked the Court to adjudge and declare that (a) the
waters surrounding Pedra Branca/Pulau Batu Puteh remain within the territorial
waters of Malaysia, and (b) South Ledge is located in the territorial waters of
Malaysia, and consequently sovereignty over South Ledge belongs to Malaysia.6
5. Singapore contests the jurisdiction of the Court and the admissibility of the
Interpretation Application. It might not have done so. It might have said that
the Judgment of the Court is clear, and that it admits of no reasonable and proper
dispute on the points of scope and meaning raised by Malaysia. It did not do so,
however, for the inescapable reason that such a contention would be
unsustainable by reference to what the Court’s 2008 Judgment concluded. That
Singapore has contested jurisdiction and admissibility, rather than choosing to
stand on the meaning and scope of the 2008 Judgment, is a pointer to the dispute
between the Parties, within Article 60 of the Court’s Statute and Article 98 of the
Rules of Court, concerning the meaning and scope of precise points in the
Operative Clause of the 2008 Judgment.
6. Other than addressing the Court’s jurisdiction in respect of requests for the
interpretation of a judgment and the modalities of commencing such
proceedings, the Statute and Rules of Court do not lay down any given procedure
applicable to such requests. The sparse jurisprudence of the Court on requests
for interpretation, in which only one such request of the five that have been
submitted to the present Court was held to come within the jurisdiction of the
Court and to be admissible, suggests that the Court, if it affirms jurisdiction and
admissibility, will address the interpretation of the judgment in question in the
same proceedings. In other words, jurisdiction and admissibility, in
interpretation cases, are not preliminary matters. If a request comes within the
jurisdiction of the Court, as laid down in Article 60 of the Court’s Statute and
6 Interpretation Application, para. 56.
4
Article 98(2) of the Rules of Court, and is otherwise admissible, it follows that
there is properly a precise point of uncertain construction in the judgment in
question and the Court will be moved to clarify the issue.
7. This point is small but not inconsequential in the present case. Singapore, in its
Written Observations, all but acknowledges that there is a subsisting and
simmering dispute between Malaysia and Singapore around the issues engaged
by the Interpretation Application. It describes that dispute, however, as
concerning “the extent of the maritime entitlements of each Party, and not the
meaning or scope of the Judgment, which dealt only with sovereignty.”7 In a
similar vein, elsewhere in its Written Observations, Singapore says as follows:
Whatever dispute exists, as attested to by the annexes filed with the Request for
Interpretation, concerns the extent of each Party’s maritime and airspace
entitlements, not the finding that sovereignty over [Pedra Branca/Pulau Batu
Puteh] belongs to Singapore.8
8. Malaysia acknowledges that there is indeed a dispute between Malaysia and
Singapore about maritime and airspace entitlements. That dispute, however,
arises directly, fundamentally and unavoidably from the uncertain meaning and
scope of subparagraphs (1) and (3) of the Operative Clause of the 2008 Judgment,
i.e., that (1) sovereignty over Pedra Branca/Pulau Batu Puteh belongs to the
Republic of Singapore, and (3) sovereignty over South Ledge belongs to the State
in the territorial waters of which it is located.9
9. Sovereignty over maritime and air spaces arises from sovereignty over land. But,
maritime and airspace sovereignty do not follow as a matter of course from
sovereignty over land. It does not follow inexorably as a matter of law that an
island which lies wholly and uncontroversially within the historic waters and
subsequently territorial sea of one State, the sovereignty of which is later
contested, and is ultimately held by the Court to have passed from one State to
7 Singapore’s Written Observations, para. 1.10.
8 Singapore’s Written Observations, para. 3.2.
9 2008 Judgment, p. 101, para. 300.
5
another by a “convergent evolution” of practice in respect of the island alone, will
generate its own maritime zones. It is both tenable and reasonable that the only
space addressed by the Court’s judgment on sovereignty is that of the island
itself, given the unusual circumstances of the contestation over territorial
sovereignty.
10. This is Malaysia’s position as regards Pedra Branca/Pulau Batu Puteh. Malaysia
understands that Singapore takes a different position, although, for tactical
reasons in these proceedings, it has hesitated to crystallise its position as regards
maritime and airspace sovereignty around Pedra Branca/Pulau Batu Puteh for
the very precise and unavoidable reason that, were it to do so, the legal predicate
of its case would have to be that Pedra Branca/Pulau Batu Puteh generates its
own maritime zones and airspace, notwithstanding that this does not follow
necessarily from the Court’s 2008 Judgment.
11. As regards South Ledge, the operative part of the Court’s 2008 Judgment is
incomplete, and thus uncertain in its meaning and scope, in the face of the
Parties’ Special Agreement which requested the Court “to determine whether
sovereignty over … South Ledge belongs to Malaysia or the Republic of
Singapore.”10 The expectation of the Parties in concluding the Special Agreement
and affording jurisdiction to the Court was that sovereignty over South Ledge
would be determined.
12. Sovereignty over South Ledge may have been determined, by implication, by the
Court’s 2008 Judgment. Indeed, this is Malaysia’s position, given that South
Ledge was found to be a low-tide elevation and is appurtenant, in geographic
terms, to Middle Rocks (over which Malaysia has sovereignty), lying in waters
that were historically and remain today uncontroversially Malaysian waters, but
for, only, any contested claim that Singapore may assert on the basis of its
uncrystallised claim to maritime zones generated by Pedra Branca/Pulau Batu
Puteh. Malaysia understands that this is in fact Singapore’s position. Once
10 2008 Judgment, pp. 17–19, para. 2.
6
again, however, Singapore, for necessary tactical reasons in these proceedings,
has held back from crystallising its position in respect of South Ledge for the very
precise and unavoidable reason that, were it to do so, the legal predicate of its
case would have to be that Pedra Branca/Pulau Batu Puteh generated its own
maritime zones and airspace, notwithstanding that this does not follow
necessarily from the Court’s 2008 Judgment, and that the maritime zones thus
generated encompassed South Ledge, notwithstanding that South Ledge, in
geographic terms, is appurtenant to Middle Rocks, not Pedra Branca/Pulau Batu
Puteh.
13. When cast in this light, the dispute between Malaysia and Singapore that
Malaysia requests the Court to address by way of an interpretation of its 2008
Judgment is quite clearly a dispute about the meaning and scope of precise points
in the Operative Clause of the 2008 Judgment. There is no escaping the reality
of this appreciation. Singapore’s objections to jurisdiction and admissibility are
a smoke screen to mask the dispute between the Parties as to the meaning and
scope of the 2008 Judgment as regards the status of the waters surrounding Pedra
Branca/Pulau Batu Puteh and sovereignty over South Ledge.
14. Singapore is similarly engaged in distraction when it contends that Malaysia’s
Interpretation Application is an “attempt to appeal the [2008] Judgment.”11 It is
not, and cannot be such, as, in the face of the dispute between Malaysia and
Singapore over the meaning and scope of the 2008 Judgment, there is no point
to appeal. Malaysia takes the view that the waters around Pedra Branca/Pulau
Batu Puteh are Malaysian territorial waters, unaffected by the Court’s
determination that sovereignty over Pedra Branca/Pulau Batu Puteh belongs to
Singapore. Similarly, Malaysia takes the view that sovereignty over South Ledge
belongs to Malaysia given, inter alia, the finding of the Court that sovereignty
over Middle Rocks belongs to Malaysia, and the fact that South Ledge is
appurtenant to Middle Rocks, rather than Pedra Branca/Pulau Batu Puteh, in
geographic terms. Singapore evidently takes a different view, as it acknowledges
11 Singapore’s Written Observations, inter alia, para. 1.31.
7
that there is a dispute between Malaysia and Singapore over maritime and
airspace entitlements around Pedra Branca/Pulau Batu Puteh and South Ledge.
15. The dispute that Malaysia has brought to the Court with its Interpretation
Application is in every respect properly a dispute about the meaning and scope
of precise points in the operative part of the Court’s 2008 Judgment.
(ii) The scheme of these Written Observations
16. Against the preceding background, Malaysia turns to address Singapore’s
objections to the jurisdiction of the Court and the admissibility of the
Interpretation Application under the following headings. First, in Section II,
Malaysia will address the Court’s 2008 Judgment insofar as is relevant to the
question of the status of the waters around Pedra Branca/Pulau Batu Puteh and
sovereignty over South Ledge. Second, in Section III, Malaysia will address
directly Singapore’s objections to jurisdiction and admissibility, elaborating on
what has been said above by way of strategic overview that there is a dispute
between Malaysia and Singapore about the meaning and scope of the Court’s
2008 Judgment on the issue of the status of the waters around Pedra
Branca/Pulau Batu Puteh and sovereignty over South Ledge.
8
II. THE JUDGMENT OF THE COURT OF 23 MAY 2008
A. Preliminary Observations
17. Singapore has thoroughly mischaracterised the Interpretation Application made
under Article 60 of the Statute and Article 98 of the Rules of Court. First, it has
claimed that the request for interpretation was “a second attempt by Malaysia to
appeal the Judgment”12 and, second, that “Malaysia seeks a decision of the Court
on issues that were not the subject of the proceedings in the original case”.13 As
Singapore well knows, there is no appeal mechanism from decisions of the Court.
The Interpretation Application is a request to the Court to construe its Judgment
in the light of the “dispute as to the meaning or scope of the judgment” as per
Article 60, and it falls wholly within the terms of that provision. The
Interpretation Application is not an attempt to re-open the case but rather
simply to seek clarification from the Court upon two points that Malaysia
considers are unclear, are fundamental, and are the subject of dispute between
the Parties.
18. Malaysia and Singapore signed a Special Agreement at Putrajaya on 6 February
2003 which entered into force on 9 May 2003. Under the Special Agreement, the
Parties agreed to submit to the Court under the terms of Article 36(1) the
following request:
Article 2 The Subject of the Litigation
The Court is requested to determine whether sovereignty over:
a) Pedra Branca/Pulau Batu Puteh;
b) Middle Rocks;
c) South Ledge,
belongs to Malaysia or the Republic of Singapore.14
19. The Special Agreement was very clear. The Court is asked to decide as between
Malaysia and Singapore where sovereignty lies with regard to Pedra
12 Singapore’s Written Observations, para. 1.5.
13 Ibid.
14 2008 Judgment, pp. 17–19, para. 2.
9
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge. No more and no less.
The Court was not asked to engage in a maritime delimitation dispute nor tackle
questions as to the exclusive economic zone or navigational rights or fisheries
issues. However, and it is an important “however”, the Court was asked to come
to a decision on sovereignty and accepted that the “dispute related to sovereignty
over land”.15
20. Judge Huber famously observed that “sovereignty in relation to a portion of the
surface of the globe is the legal condition necessary for the inclusion of such
portion in the territory of any particular State”.16 Sovereignty thus endows a
geographical space with the jurisdiction of a State to the exclusion of the
competence of another State. It is a core doctrine of international law. From it
flows a range of consequential norms and principles. Territorial sovereignty is
at the heart of international law, both classical and modern. Despite the rise of
globalisation and extraterritorial claims to jurisdiction, sovereignty is the
starting point of any discussion as to title.
21. The Court in its Operative Clause in the 2008 Judgment:
(1) By twelve votes to four,
Finds that sovereignty over Pedra Branca/Pulau Batu Puteh belongs to the
Republic of Singapore […]
(2) By fifteen votes to one,
Finds that sovereignty over Middle Rocks belongs to Malaysia […]
(3) By fifteen votes to one,
Finds that sovereignty over South Ledge belongs to the State in the territorial
waters of which it is located.17
22. The following sub-sections will deal with the two specific matters brought to the
attention of the Court in this Application for Interpretation; first, the issue of the
15 Ibid., pp. 27–8, para. 32.
16 Island of Palmas, 2 RIAA, pp. 829, 838 (1928).
17 2008 Judgment, pp. 101–2, para. 300.
10
status of the waters around Pedra Branca/Pulau Batu Puteh; second, the issue of
sovereignty over South Ledge.
B. The Status of the Waters Around Pedra Branca/Pulau Batu Puteh
23. The finding of sovereignty over the territory of Pedra Branca/Pulau Batu Puteh
is unambiguous as such, but it is not clear how far this extends or what exactly it
means. There is a clear dispute between the Parties as to the “meaning or the
scope” of the Judgment in this respect. It is to be underlined that the phrase is
disjunctive and not cumulative. The dispute may be one concerning the
meaning of part of the judgment or one concerning the scope or extent of the
judgment.
24. As in the case of coastal States, territorial sovereignty over islands as a general
rule necessarily imports sovereignty over the adjacent waters. While in the case
of the contiguous zone and the exclusive economic zone, a formal declaration is
required so that sovereignty over the land does not inescapably extend into those
areas, as far as the territorial sea is concerned, this is an automatic appurtenance
of jurisdiction over the adjoining land in normal cases.18 However, the norm of
sovereignty over the territorial sea is not absolute but subject to, for example,
the principle of innocent passage.19 Further, as Article 2(3) of the UN Convention
on the Law of the Sea provides, the principle is subject to the Convention and
the rules of international law. Accordingly, it is possible for the relevant parties
and international law to accept and adopt a different principle with regard to
coastal or island States and the territorial sea.
25. The norm that the land dominates the sea is the usual starting point.20 The Court
has underlined this in noting that:
[T]he Court has made clear that maritime rights derive from the coastal State’s
sovereignty over the land, a principle which can be summarized as “the land
18 See Articles 2 and 121 of the UN Convention on the Law of the Sea, 1982.
19 Ibid., Article 17.
20 North Sea Continental Shelf cases, ICJ Reports, 1969, pp. 3, 51, para. 96.
11
dominates the sea” […]. It is thus the terrestrial territorial situation that must be
taken as starting point for the determination of the maritime rights of a coastal
State. In accordance with Article 121, paragraph 2, of the 1982 Convention on the
Law of the Sea, which reflects customary international law, islands, regardless of
their size, in this respect enjoy the same status, and therefore generate the same
maritime rights, as other land territory.21
26. However, while this is a general rule, it is neither inevitable nor absolute. Much
depends upon the particular complex of facts in any given situation. The
comments made below apply equally to airspace rights. However, at this point,
it can be underscored that from at least as early as 6 February 2009, Malaysia has
emphasised to Singapore that the airspace over the waters around Pedra
Branca/Pulau Batu Puteh is part of Malaysia’s airspace in accordance with the
principles of international law as well as the 2008 Judgment. Malaysia has also
consistently underlined that all activities undertaken by Malaysia in its territory,
including activities pertaining to and surrounding Pedra Branca/Pulau Batu
Puteh’s airspace and its maritime areas are legitimate exercise of its sovereignty
and jurisdiction.22 This is controverted by Singapore.
27. It is apparent that there are two possibilities that require exploration or
clarification. The first argument is that, as an exception to the general rule that
islands have a territorial sea, Pedra Branca/Pulau Batu Puteh in the particular
circumstances does not. The reason in brief is the following. Until sometime in
the period 1953–80, it has been accepted by both Parties and by the Court that
all of the relevant area23 was subject to Malaysian sovereignty and this included
Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge. Accordingly,
all of the relevant waters were Malaysian. This is indisputable. In effect, what
the Court did in its 2008 Judgment was to excise the land territory of Pedra
Branca/Pulau Batu Puteh from Malaysian sovereignty, leaving by necessary
21 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), ICJ
Reports, 2001, p. 97, para. 185.
22 Diplomatic Notes from Malaysia to Singapore, EC 07/2009, dated 6 February 2009. Annex 29 to
Singapore’s Written Observations.
23 What is meant, for these purposes, by the relevant area, is addressed as an Appendix to this Section, at
paragraphs 61 to 70 below.
12
implication all of the remainder within Malaysian sovereignty. It is thus both
tenable and reasonable to conclude that the Court’s determination of sovereignty
over Pedra Branca/Pulau Batu Puteh had no implications for the otherwise clear
status of the waters around the island. The Court, in its Judgment, made no
determination of pertinence. Support for this may be found additionally in the
Court’s comment that “South Ledge falls within the apparently overlapping
territorial waters generated by the mainland of Malaysia, Pedra Branca/Pulau
Batu Puteh and Middle Rocks”.24 At the very least, the Court was leaving open
the possibility of an absence of territorial waters pertaining to Pedra
Branca/Pulau Batu Puteh in the circumstances in question by the use of the
significant term “apparently”. This at the least requires clarification under the
provisions of Article 60.
28. That an island may in particular circumstances not have a territorial sea is
apparent from an analogy with coastal areas. For example, the boundary of
Quebec in Hudson’s Bay and Hudson Strait is described as being along the shore
line and no waters are included in that definition.25 A further example would be
the Tanzania–Malawi boundary in Lake Nyasa/Malawi, where the key document
and the legal basis of the boundary is the Anglo–German Treaty of 1 July 1890,
which provided that the boundary of the German sphere of influence followed
the eastern, northern and western shores of the lake to the northern bank of the
mouth of the River Songwe.26 Recently, the International Court has affirmed that
the boundary between Costa Rica and Nicaragua runs along the right bank of the
Lower San Juan River.27 In other words, what counts is the particular situation
pertaining to the matter at hand. There is no absolute rule. Thus, a coast,
24 2008 Judgment, p. 101, para. 297 (emphasis added).
25 See J.I. Charney, ‘Maritime Jurisdiction and the Secession of States: The Case of Quebec’, 25 Vanderbilt
Journal of Transnational Law, 1992, pp. 343, 350–2 and footnote 22.
26 See E. Hertslet, The Map of Africa by Treaty, reprint of the third edition, 1967, vol. III, p. 899. See e.g.
C. Mahoney et al, ‘Where Politics Borders Law: The Malawi–Tanzania Boundary Dispute’, New Zealand
Human Rights Law, Policy and Practice, Working Paper 21, February 2014:
https://cdn.auckland.ac.nz/assets/humanrights/Research/MalawiTanzania-N…
27 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ
Reports 2015, p. 703, para. 92.
13
whether of an island or not, may not have a territorial sea where the particular
factual and legal circumstances so warrant. It depends upon any relevant treaty,
practice or other binding determination. Furthermore, many have observed that
under customary international law small islands, rocks and islets were not
generally accorded territorial seas of their own.28
29. It is therefore entirely tenable, as is Malaysia’s position, given the special
circumstances at the heart of the 2008 Judgment, that a similar situation pertains
to Pedra Branca/Pulau Batu Puteh. It is, of course, an issue disputed between
the Parties, as Singapore appears to have claimed an extensive territorial sea
around the island.29
30. For example, in a diplomatic note dated 29 October 2008, Malaysia rejected
Singapore’s claim that the waters surrounding Pedra Branca/Pulau Batu Puteh
were part of Singapore’s territorial waters:
The Government of Malaysia also strongly rejects the assertions by the Republic
of Singapore that Malaysia’s alleged activities infringed upon Singapore’s rights
over the waters of Batu Puteh. The waters around Batu Puteh are part of the
territorial waters and maritime areas of Malaysia as depicted in the Map Defining
the Boundaries of the Continental Shelf of Malaysia of 1979. In light of the above,
the Government of Malaysia strongly affirms that the maritime areas
surrounding Batu Puteh is located within the territorial waters of Malaysia in
accordance with the principles of international law as well as the Judgment of
the ICJ.
31. Malaysia has consistently restated its rejection of Singapore’s contention that the
waters surrounding Pedra Branca/Pulau Batu Puteh are part of Singapore’s
territorial waters.30
28 See, e.g., L.F.E. Goldie, ‘The International Court of Justice’s “Natural Prolongation” and the
Continental Shelf Problem of Islands’ (1973) 4 Netherlands Yearbook of International Law 237, pp. 238–
50.
29 See Interpretation Application, para. 30 and following.
30 Notes Verbales from the Ministry of Foreign Affairs, Malaysia to the High Commission of the Republic
of Singapore in Kuala Lumpur (all references are to Annexes to the Interpretation Application):
EC72/2009, dated 3 July 2009 (Annex 71); EC161/2010, dated 1 November 2010 (Annex 72); EC164/2010,
14
32. In this scenario, the issue in dispute is clearly not that of maritime delimitation
at all, but rather whether the attribution of sovereignty to Singapore over Pedra
Branca/Pulau Batu Puteh imports as a consequence in the particular
circumstances sovereignty over territorial waters or not. The Court took no view
on whether the sovereignty over the waters surrounding Pedra Branca/Pulau
Batu Puteh which had belonged to Johor also passed to Singapore. This requires
clarification.
33. The second possibility (which is an alternate to the first) requiring consideration
under the framework of Article 60 is that the Court accepted that Singapore’s
territorial sovereignty over Pedra Branca/Pulau Batu Puteh did indeed extend
into the sea but to an uncertain breadth. Singapore regards this as a simple
matter of maritime delimitation.31 This is an over-simplification, however, since
Singapore’s extensive claims to a territorial sea jut deeply into the Malaysian
territorial sea and an ascription of sovereignty cannot be indeterminate. This
would certainly fall within either the “meaning” or the “scope” of the Judgment.
It is also integral to the concept of sovereignty.
34. Malaysia clarifies its position as follows. In the 2008 Judgment, the Court
accepted that Pedra Branca/Pulau Batu Puteh fell historically within Johor’s
waters. In 1969, before any dispute over sovereignty was manifest, Malaysia
extended the breadth of its territorial waters from three nautical miles to 12
dated 1 November 2010 (Annex 73); EC167/2010, dated 1 November 2010 (Annex 74); EC168/2010, dated 1
November 2010 (Annex 75); EC60/2011, dated 19 April 2011 (Annex 76); EC61/2011, dated 19 April 2011
(Annex 77); EC107/2011, dated 8 July 2011 (Annex 78); EC122/2011, dated 22 August 2011 (Annex 79);
EC124/2011, dated 22 August 2011 (Annex 80); EC145/2011, dated 30 September 2011 (Annex 81); EC146/2011,
dated 30 September 2011 (Annex 82); EC18/2012, dated 14 February 2012 (Annex 83); EC30/2012, dated 17
February 2012 (Annex 84); EC31/2012, dated 17 February 2012 (Annex 85); EC69/2012, dated 24 April 2012
(Annex 86); EC70/2012, dated 9 May 2012 (Annex 87); EC81/2012, dated 9 May 2012 (Annex 88); EC88/2012,
dated 1 June 2012 (Annex 89); EC90/2012, dated 6 June 2012 (Annex 90); EC7/2014, dated 27 January 2014
(Annex 91); EC9/2014, dated 28 January 2014 (Annex 92); EC11/2014, dated 29 January 2014 (Annex 93);
EC14/2014, dated 30 January 2014 (Annex 94); EC17/2014, dated 4 February 2014 (Annex 95); EC18/2014,
dated 5 February 2014 (Annex 96); EC22/2014, dated 7 February 2014 (Annex 97); EC144/16, dated 24
November 2016 (Annex 98).
31 See e.g. Singapore’s Written Observations Chapter III, p. 25.
15
nautical miles following the enactment of the Emergency (Essential Powers)
Ordinance No. 7 1969.32 This Ordinance came into force on 10 August 1969.
35. Pedra Branca/Pulau Batu Puteh is situated 7.7 nautical miles from the coast of
Johor. The territorial waters surrounding the island are Malaysian territorial
waters from 1969, if not earlier. On this point, it is important to note that it was
not until after the 2008 Judgment that Singapore only officially notified that it
was exercising its rights to extend its territorial sea limit up to a maximum of 12
nautical miles via Government Gazette No. 1485–Singapore Maritime Zones
dated 30 May 2008.33 However, it is observed that Singapore had indicated its
12-mile claim as early as 1980, as noted in a Singapore Government Press Release
that was issued soon after the sovereignty dispute with Malaysia crystallised.34
This position was repeated in another press statement following the 2008
Judgment of the ICJ which reads as follows:
As indicated in the Ministry of Foreign Affairs Press Statement dated 15
September 1980, Singapore has a territorial sea limit that extends up to a
maximum of 12 nautical miles and an Exclusive Economic Zone. This is
consistent with the United Nations Convention on the Law of the Sea of 10
December 1982; which Singapore is a State Party to.
The precise coordinates of Singapore's territorial sea and Exclusive Economic
Zone will be announced at an appropriate time. Should the limits of its
territorial sea or Exclusive Economic Zone overlap with claims of neighbouring
countries, Singapore will negotiate with those countries with a view to arriving
at agreed delimitations in accordance with international law. Singapore reserves
its position on international agreements it is not a party to.35
36. Accordingly, the question of sovereignty over Pedra Branca/Pulau Batu Puteh
has to include issues as to the existence of a territorial sea and/or the breadth of
any such sea should it be shown to exist. Clarification is thus required of the
32 P.U.(A) 307A/1969 (Annex A).
33 http://www.un.org/depts/los/LEGISLATIONANDTREATIES/STATEFILES/SGP.htm
34 Singapore Government Press Release 09-0/80/09/15, 15 September 1980 (Annex B).
35 Ministry of Foreign Affairs Press Statement, ‘International Court of Justice Awards Sovereignty of [sic]
Pedra Branca to Singapore’, 23 May 2008, Annex 2 to Singapore’s Written Observations, p. A14.
16
Court as to what it had intended in order that the Parties may proceed
successfully to resolve the dispute.
C. Sovereignty Over South Ledge
37. The second issue placed before the Court in this Application relates to the answer
given by the Court in its 2008 Judgment to the explicit question as to whether
sovereignty over South Ledge belongs to Malaysia or Singapore. The Court did
not address this issue in a manner that resolved the dispute between the Parties
of which it was seised. It stated that “sovereignty over South Ledge belongs to
the State in the territorial waters of which it is located”.36
38. Thus, the Court simply provided guidance by which sovereignty could be
ascertained by the Parties subsequently. It did not otherwise address the issue
of sovereign entitlement over the feature. Malaysia took from the Judgment, and
has always taken the view, that the Court’s dispositif on this aspect was an
implicit recognition of Malaysia’s sovereignty over South Ledge.
39. Malaysia takes the view that South Ledge, a low-tide elevation, falls within its
territorial sea for two alternate reasons. First, it is Malaysia’s position that South
Ledge falls within Malaysian territorial waters since Middle Rocks, the nearest
land mass, is Malaysian. The Court itself noted that South Ledge was 1.7 nautical
miles from Middle Rocks and 2.2 miles from Pedra Branca/Pulau Batu Puteh and
is thus indisputably closer to Malaysian territory.37 It will also be noted from the
map of the area (for example the sketch map reproduced on p. 24 of the 2008
Judgment) that Middle Rocks is directly south of Pedra Branca/Pulau Batu Puteh,
while South Ledge is south-west of Middle Rocks. Accordingly, it is difficult to
see how South Ledge could fall within the territorial sea of Pedra Branca/Pulau
Batu Puteh (assuming it has one) without a rather strange diversion and
digression away from Middle Rocks. Second, as already noted, it is Malaysia’s
position that Pedra Branca/Pulau Batu Puteh has no territorial sea. If this is
36 2008 Judgment, p. 102, para. 300(3).
37 Ibid., pp. 99–100, para. 293.
17
correct, there can be no question of South Ledge falling within a claimed
territorial sea pertaining to Pedra Branca/Pulau Batu Puteh.
40. The reasoning of the Court on the question of sovereignty over South Ledge is
far from unambiguous. The 2008 Judgment referred to Article 13 of the UN
Convention on the Law of the Sea, which defines low-tide elevations and
provides that where a low-tide elevation is situated wholly or partly at a distance
not exceeding the breadth of the territorial sea from the mainland or an island,
the low-water line on that elevation may be used as a baseline for measuring the
breadth of the territorial sea. Conversely, where a low-tide elevation is wholly
situated at a distance exceeding the breadth of the territorial sea from the
mainland or an island it has no territorial sea of its own.
41. The Court emphasised the difference in international law between islands and
low-tide elevations, quoting from its judgment in the Qatar v. Bahrain case to
the effect that a coastal State has sovereignty over low-tide elevations situated
within its territorial sea, since it has sovereignty over the territorial sea itself. 38
The Court further underlined that the few existing rules did not justify an
assumption that low-tide elevations constituted territory in the same sense as
islands.39 This position was underlined essentially in the South China Sea
arbitration award between the Philippines and China. The UNCLOS Annex VII
Tribunal stated that:
With respect to the status of low-tide elevations, the Tribunal considers that
notwithstanding the use of the term “land” in the physical description of a lowtide
elevation, such low-tide elevations do not form part of the land territory of
a State in the legal sense. Rather they form part of the submerged landmass of
the State and fall within the legal regimes for the territorial sea or continental
shelf, as the case may be.40
38 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),
Judgment, ICJ Reports, 2001, pp. 40, 101–2, paras 204–6.
39 2008 Judgment, p. 100, paras 293–6.
40 South China Sea Arbitration, Award, 12 July 2016, p. 132, para. 309.
18
42. The Tribunal quoted the International Court’s judgment in the Territorial and
Maritime Dispute (Nicaragua v. Colombia),41 noting that as distinct from land
territory low-tide elevations cannot be appropriated, although “a coastal State
has sovereignty over low-tide elevations which are situated within its territorial
sea, since it has sovereignty over the territorial sea itself”.42
43. It is thus clear that low-tide elevations are not as such part of the territory of the
coastal State. Nevertheless, they have a role in the attribution of sovereignty, not
least in that, as Article 13 (1) of the UN Convention on the Law of Sea declares:
Where a low-tide elevation is situated wholly or partly at a distance not
exceeding the breadth of the territorial sea from the mainland or an island, the
low-water line on the elevation may be used as the baseline for measuring the
breadth of the territorial sea.
44. The Court concluded that “South Ledge falls within the apparently overlapping
territorial waters generated by the mainland of Malaysia, Pedra Branca/Pulau
Batu Puteh and Middle Rocks”.43 However, the formulation is not clear in two
respects. First, by referring specifically and explicitly to “apparently” overlapping
territorial waters, the Court introduced a strong element of uncertainty into the
question of whether in fact the said territorial waters do overlap and the only
reason why they may not would be because Pedra Branca/Pulau Batu Puteh does
not generate a territorial sea. If this is indeed the case, then South Ledge must
necessarily fall within Malaysia’s waters. Second, if the territorial seas actually
do overlap, then it is unclear which factors may apply to determine sovereignty,
which was indeed the very question put to the Court. Accordingly, the Court’s
decision here clearly requires clarification.
45. It is Malaysia’s position that the terms of the Special Agreement required the
Court to determine the question of sovereignty as to, inter alia, South Ledge. To
41 ICJ Reports, 2012, p. 641, para. 26.
42 South China Sea Arbitration, Award, 12 July 2016, p. 132, para. 309.
43 Ibid., p. 101, para. 297.
19
this extent, clarification of the meaning and scope of the 2008 Judgment is
necessary.
46. Leaving aside the argument that Pedra Branca/Pulau Batu Puteh does not
generate a territorial sea of its own, Malaysia, as noted above, takes the view that
South Ledge falls under its sovereignty since South Ledge is clearly closer
geographically to Malaysian territory (i.e., Middle Rocks) than it is to Pedra
Branca/Pulau Batu Puteh. This is an important consideration, which in the
circumstances constitutes the primary factor as to attribution, particularly when
combined with considerations of geographical configuration with Pedra
Branca/Pulau Batu Puteh being essentially “blocked” from a direct line to South
Ledge by the interposition of Middle Rocks.
47. This geographical element was commented upon by several judges in the case.
48. Judge Parra-Aranguren in his Separate Opinion appeared to accept this
argument, noting that:
I agree that Middle Rocks is under the sovereignty of Malaysia, as found in
paragraph 300 (2) of the Judgment. Therefore, I consider South Ledge to be
located within the territorial waters of Malaysia and for this reason to belong to
Malaysia.44
49. The use of the causative word “therefore” in the context shows that he believed
that the fact that Middle Rocks belonged to Malaysia necessarily led to the
conclusion that South Ledge fell within Malaysia’s territorial sea and thus was
subject to its sovereignty.
50. Judge ad hoc Dugard took the same position and declared that:
[B]oth Middle Rocks and South Ledge fall within the sovereignty of Malaysia.
Malaysia’s title to Middle Rocks is based on the original title. South Ledge, a
44 2008 Judgment, Separate Opinion of Judge Parra-Aranguren, pp. 114–5, para. 28 (emphasis added).
20
low-tide elevation falling within the territorial sea of Middle Rocks, belongs to
Malaysia.45
51. Interestingly, Judge ad hoc Sreenivasa Rao also agreed with this approach as the
correct legal one in stating that:
I hold the view that, if Middle Rocks is also held to be under the sovereignty of
Singapore, South Ledge would also belong to Singapore.46
52. Accordingly, the three judges who directly addressed this issue accepted that as
a matter of principle whichever State was sovereign over Middle Rocks would
thus be sovereign over South Ledge.
53. Since Singapore disputes the position of Malaysia that South Ledge falls within
the latter’s territorial sea and thus is part of its sovereign extent, a dispute under
the terms of Article 60 has arisen as between the two States. These States take a
different view of the necessary and logical consequence of the formulation used
by the Court in paragraph 300(3) of its Judgment and interpretation is
accordingly required.
54. To clarify, Malaysia’s argument is not at all about how the maritime boundary
between the Parties should be drawn. It is not about any requisite method or
formula that may be relevant for a delimitation exercise in the area. Malaysia’s
argument, as expressed by the Court in its 2008 judgment, is that:
Middle Rocks and South Ledge have always been considered as features falling
within Johor/Malaysian jurisdiction … they were under Johor sovereignty at the
time of the 1824 Anglo–Dutch Treaty and fell within the British sphere of
influence under that Treaty.47
55. In its Interpretation Application, Malaysia emphasised that the application of
this formula used by the Court naturally led to the conclusion that Malaysia has
sovereignty over South Ledge because South Ledge falls within the territorial
45 2008 Judgment, Dissenting Opinion of Judge ad hoc Dugard, pp. 151–2, para. 44.
46 2008 Judgment, Separate Opinion of Judge ad hoc Sreenivasa Rao, p. 153, para 1.
47 2008 Judgment, p. 98, para. 285.
21
waters of Malaysia. Malaysia has undisputed sovereignty over the nearest feature
to South Ledge (Middle Rocks, 1.7 nautical miles’ distance) and over the nearest
mainland landmass (Johor, 7.9 nautical miles’ distance). Pedra Branca/Pulau
Batu Puteh is some 2.2 nautical miles away and the island of Singapore lies some
22 nautical miles away.48
56. Singapore takes the view that the question of sovereign appurtenance is simply
one of maritime delimitation49 and that Malaysia has “artificially manufactured
a dispute where none exists”.50 It also claims that Malaysia has changed its views
on the sovereignty question in so far as South Ledge is concerned.51 These
contentions are rejected. There is a genuine dispute within the terms of Article
60 of the Statute and Article 98 of the Rules of Court. That dispute focuses upon
the plain terms of the Parties’ Special Agreement referring the original dispute
to the Court and the consequent responsibility of the Court to determine
whether it is Malaysia or Singapore that has sovereignty over South Ledge. The
Court did not do this directly. It is evident, though, that the Parties have
different views about what the 2008 Judgment did implicitly. There can be no
avoiding the clear understanding that the Parties take different views on the
“meaning or scope” of subparagraph 3 of the Operative Clause of the 2008
Judgment. Singapore avoids the question by repeating the formula used by the
Court. Malaysia draws from the Court’s language the logical conclusion that it
is sovereign over South Ledge in view of the fact that it clearly falls within its
territorial sea in view of geographical proximity and configuration. This matter
requires clarification.
57. Singapore claims that Malaysia has changed its position. It says that it was only
from its diplomatic note of 20 April 2017 that Malaysia actually stated that South
Ledge was within its territorial waters and thus subject to its sovereignty.52
Singapore’s assertions are incorrect. Malaysia’s practice has been consistent.
48 Application for Interpretation, para. 46.
49 Singapore’s Written Observations, para. 4.23.
50 Ibid., para. 4.10.
51 Ibid., para. 4.26.
52 Ibid.
22
Malaysia’s conduct was first manifested some three months after the Judgment.
Malaysia engaged in sovereign activity with regard to South Ledge to which
Singapore protested. Malaysia immediately responded by asserting that it
“naturally follows” from the Court’s Judgment that “sovereignty over Tubir
Selatan/South Ledge belongs to Malaysia”.53 This statement was repeated
consistently and unswervingly for decades. This is detailed in the Interpretation
Application.54 Singapore’s view that the 20 April 2017 note “was simply a
contrived attempt by Malaysia to create a dispute over the third paragraph of the
Operative Clause of the judgment where none actually existed”55 is patently
wrong. On the contrary, it is Singapore that is contriving to spirit away a dispute
where one has clearly existed for some considerable period.
D. Conclusion
58. It is Malaysia’s contention that its Interpretation Application is fully justified in
view of Singapore’s approach to the decision and the dispute to which this has
given rise between Malaysia and Singapore.
59. In so far as the waters around Pedra Branca/Pulau Batu Puteh are concerned, the
Court did not refer at all to this key component of sovereignty. Malaysia takes
the view that bearing in mind that the Court accepted that the relevant area
including the waters were subject to Johor/Malaya/Malaysia’s sovereignty as a
matter of original title, the failure of the Court to address the issue of the waters
around Pedra Branca/Pulau Batu Puteh could only mean that such waters
remained, as they had been prior to the 1953–80 period, sovereign waters of
Malaysia. In the alternative, Malaysia contends that to the extent that Pedra
Branca/Pulau Batu Puteh has a territorial sea, the sovereign allocations as
between Singapore and Malaysia must be determined. Since Singapore strongly
53 Application for Interpretation, para. 39 and following.
54 Ibid.
55 Singapore’s Written Observations, para. 4.29.
23
disagrees with Malaysia’s approach, a dispute clearly exists and one that concerns
the “meaning or scope” of the Judgment.
60. In so far as sovereignty over South Ledge is concerned, the Court in its Judgment
left open a space for disagreement that requires clarification under the terms of
Article 60 of the Statute and Article 98 of the Rules of Court. Malaysia contends,
first, that South Ledge, as a low-tide elevation, is within the territorial sea of
Malaysia on grounds of proximity to Middle Rocks and general configuration and
is thus subject to Malaysian sovereignty. Second, Malaysia’s position is that
Pedra Branca/Pulau Batu Puteh has no territorial sea, so that South Ledge could
only fall within the territorial waters of Malaysia. Since Singapore disputes this
conclusion, a dispute exists as to the “meaning or scope” of the 2008 Judgment,
which is rightly the subject of Malaysia’s Interpretation Application.
APPENDIX: THE CONSTITUTIONAL STATUS OF THE RELEVANT AREA
61. As noted in paragraph 27 above, until sometime in the period 1953–80, it was
accepted by both Parties and by the Court that all of the relevant area was subject
to Malaysian sovereignty, including Pedra Branca/Pulau Batu Puteh, Middle
Rocks and South Ledge, and that in consequence all of the relevant waters were
Malaysian. This is indisputable.
62. By the “relevant area”, Malaysia means the area from the coast of Johor
southwards and eastwards, including Pedra Branca/Pulau Batu Puteh, Middle
Rocks and South Ledge. It is important to underline the evolving legal status of
this area in the light of the subsequent sovereignty dispute and in order to
understand the context and consequences of the 2008 Judgment.
63. Commencing with the early 19th century, the Anglo–Dutch Treaty of 17 March
1824 marked the establishment of spheres of influence as between the two
European powers and the Dutch recognition of Britain’s occupation of
Singapore. The Crawfurd Treaty of 2 August 1824 provided for the full cession of
Singapore from the Sultan and Temenggong of Johor to the East India Company,
including all islands within 10 geographical miles of Singapore. Pedra
24
Branca/Pulau Batu Puteh is well over 20 nautical miles from Singapore, as are
Middle Rocks and South Ledge, and thus these features did not fall within the
designated territory of Singapore. It thus remained with the Sultanate of Johor.56
64. In 1826 the East India Company established the Straits Settlement, grouping
together inter alia Penang, Malacca and Singapore. In 1867, the Straits
Settlement became a British Crown Colony. In 1895 the British Government
established the Federated Malay States. Johor constituted part of the
Unfederated Malay States.
65. On 19 October 1927 the Governor of the Straits Settlement and the Sultan of Johor
signed the Straits Settlement and Johor Territorial Waters Agreement (“the 1927
Agreement”) which marked the maritime boundary between Singapore and
Johor. It also provided for a retrocession to the Sultan of Johor of some territory
originally ceded to the East India Company in 1824. This may be seen on the map
annexed to the Agreement, which has been reproduced as Insert 17 in Malaysia’s
Memorial of 25 March 2004, at page 89. It is quite clear that the relevant area is
not within Singapore’s boundaries. Malaysia concluded that:
The 1927 Agreement, with its link back to that of 1824, is evidence of the
continuing appreciation that Pedra Branca/Pulau Batu Puteh and its
surrounding waters were not part of the territory of Singapore.57
66. Singapore was established as a separate colony in 1946, while the other Straits
Settlement territories joined to form the Malayan Union then Malayan
Federation in 1948. This territory became independent in 1957. In 1963 Singapore
became part of the newly formed Federation of Malaysia, but withdrew
therefrom in 1965.58
56 See Malaysia’s Memorial of 25 March 2004, Chapter IV. See also 2008 Judgment, p. 25, para. 21 and
following, and p. 45, para. 102 and following. See also the oral hearings on 13 November 2007, CR 2007/24,
p. 24 and following.
57 2008 Judgment, p. 71, para. 182. However, the Court noted that as Pedra Branca/ Pulau Batu Puteh was
not within 10 geographic miles from Singapore, it was outwith the 1927 Agreement, ibid., p. 72, para. 188.
58 Ibid., p. 71, para. 183 and following.
25
67. In its 2008 Judgment, the Court concluded that as of 1844 the island of Pedra
Branca/Pulau Batu Puteh was under the sovereignty of the Sultan of Johor.59 The
question before the Court at that point was whether this assertion of original title
had been modified by subsequent practice. The Court was unable to draw any
conclusions as to sovereignty based on the construction and commissioning of
the lighthouse.60 Further, the Court did not find that a variety of enactments (in
1852, 1854 and 1912) demonstrated British sovereignty,61 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”.62
Again, no assistance as to the sovereignty question could be obtained from a
consideration of the joint regulation of fisheries in the 1860s.63 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. In brief, 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.
68. The Court considered the 1953 correspondence and practice of the parties and
concluded that:
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
59 Ibid., p. 49, para. 117. See also ibid., p. 35, para. 59 and p. 39, para. 75.
60 Ibid.,p. 65, para. 162.
61 Ibid., p. 67, para. 172.
62 Ibid., p. 71, para. 186.
63 Ibid., p. 72, para. 191.See also the Joint Dissenting Opinion of Judges Simma and Abraham, underlining
that in none of the 1852–1952 practice did the Court “discern a clear manifestation of a British claim to
sovereignty”, Ibid., p. 123, para. 22.
26
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.64
69. In its conclusion as to the legal status of Middle Rocks, the Court explained that:
Since Middle Rocks should be understood to have had the same legal status as
Pedra Branca/Pulau Batu Puteh as far as the ancient original title held by the
Sultan of Johor was concerned, and since the particular circumstances which
have come to effect the passing of title to Pedra Branca/Pulau Batu Puteh to
Singapore do not apply to this maritime feature, original title to Middle Rocks
should remain with Malaysia as the successor to the Sultan of Johor, unless
proven otherwise, which the Court finds Singapore has not done.65
70. In other words, the original title to the relevant area which Malaysia had
possessed was displaced in the circumstances found by the Court but only with
regard to Pedra Branca/Pulau Batu Puteh. Accordingly, the original title as found
by the Court persisted with regard to the rest of the relevant area with the
exception only of Pedra Branca/Pulau Batu Puteh. To put it another way, Pedra
Branca/Pulau Batu Puteh was simply excised or cut out from the relevant area
which was under Malaysian sovereignty and stated to be Singaporean territory.
64 Ibid., p. 96, para. 276.
65 Ibid., p. 99, para. 290.
27
III. THE JURISDICTION OF THE COURT AND THE
ADMISSIBILITY OF THE APPLICATION
71. In its most recent judgment on a request for interpretation, which is the only
interpretation case before the Court to have proceeded beyond jurisdiction and
admissibility, the Court, in the Preah Vihear Interpretation Request, clarified the
conditions for its jurisdiction to interpret a judgment under Article 60 in the
following terms:
[B]y virtue of Article 60 of the Statute, [the Court] may entertain a request for
interpretation provided that there is a ‘dispute as to the meaning or scope’ of any
judgment rendered by it.66
Thus, under Article 60 a request for interpretation must fulfil two requirements:
(a) that a dispute exists between the parties which (b) relates to the meaning or
scope of the judgment.
72. Singapore appears to suggest that the Court’s jurisdiction to deliver an authentic
interpretation is circumscribed by a third requirement when it asserts that “if the
judgment of the Court is clear … the Court lacks jurisdiction to decide on the
request for interpretation”.67 Such a requirement does not find any support in
the terms of Article 60 of the Statute, Article 98 of the Rules of Court, or in the
Court’s case law. It may very well be the case that the two parties bound by a
judgment may each consider its meaning to be impeccably clear while deriving
entirely contradictory meanings from the text. Consequently, the fact that one
party is convinced that the judgment’s meaning is clear cannot alone suffice to
deny the Court jurisdiction to decide a request for interpretation submitted by
the other party. Rather, if a party can demonstrate that the two conditions stated
in Article 60 are satisfied, the Court may decide to respond to the request by
66 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah
Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment, ICJ Reports 2013, p. 295, para. 32 and
Provisional Measures, Order of 18 July 2011, ICJ Reports 2011 (II), p. 542, para. 21; Request for Interpretation
of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v.
United States of America)(Mexico v. United States of America), Judgment, ICJ Reports 2009, p. 9, paras
15–6 and Provisional Measures, Order of 16 July 2008, ICJ Reports 2008, p. 323, paras 44–6.
67 Singapore’s Written Observations, paras 2.2–2.3.
28
providing an authoritative construction of what it ruled with binding effect in
the judgment.
73. In this section, Malaysia will show that its Interpretation Application satisfies the
only jurisdictional requirements that are required by Article 60 of the Statute,
namely, that a dispute exists between the Parties and that the dispute concerns
the meaning and scope of the 2008 Judgment.
A. The Existence of a Dispute between the Parties
74. According to the settled jurisprudence of the Court, “a dispute within the
meaning of Article 60 of the Statute must be understood as a difference of
opinion or views between the parties as to the meaning or scope of a judgment
rendered by the Court”.68 As a result, a party requesting interpretation need only
demonstrate that the parties to a judgment have adopted differing views as to
what the Court decided with binding effect in order to satisfy this requirement.
75. Singapore denies that such a dispute over the meaning or scope of the Judgment
exists between the Parties and contends that Malaysia’s Interpretation
Application does not comply with the first requirement of Article 60 of the
Statute.69 In order to justify its denial of the existence of such a dispute,
Singapore asserts that:
[N]othing in the Parties’ conduct, interactions or correspondence in the years
following the delivery of the Judgment shows the existence of a dispute over the
meaning or scope of what the Court decided in the … operative clause of the
Judgment.70
76. According to Singapore, the actions and statements of Malaysia and Singapore
in the post-Judgment period show that the Parties share a common
understanding as to the content of the Judgment. Singapore maintains that the
68 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah
Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment, ICJ Reports 2013, p. 295, para. 33
69 Singapore’s Written Observations, para. 1.12. See also paras. 1.28–1.30, 3.2, 3.8.
70 Singapore’s Written Observations, para. 3.8.
29
Parties are in agreement that, as a result of the Judgment delivered by the Court,
Singapore has acquired sovereignty over the waters surrounding Pedra
Branca/Pulau Batu Puteh,71 and that sovereignty over South Ledge can only be
determined by a process of maritime delimitation.72
77. From the outset, Malaysia observes that the Court has consistently affirmed that
the term ‘dispute’ under Article 60 is more flexible in scope than it is under
Article 36, paragraph 2 of the Statute, and less stringent in its requirements. In
the Avena Interpretation Request case, the Court explained this difference by
clarifying that, in the French text of the Statute, the term used in Article 60,
‘contestation’, is “wider in scope” than the term ‘différend’ used in Article 36 and
“does not require the same degree of opposition”. Moreover, when compared to
‘différend’, ‘contestation’ in Article 60 “is more flexible in its application to a
particular situation; and… therefore does not need to satisfy the same criteria as
would a dispute (‘différend’ in the French text) as referred to in Article 36,
paragraph 2, of the Statute”.73 Consequently, the threshold for establishing the
existence of a dispute in the context of Article 60 is lower than that applicable
under Article 36, paragraph 2 of the Statute: it merely requires the requesting
party to demonstrate that there is a “divergence of views” between the parties
over the meaning and scope of the judgment.74
78. Moreover, in keeping with the Court’s acknowledgement that a flexible approach
is appropriate when determining the existence of a dispute under Article 60,
71 Singapore’s Written Observations, para. 3.17.
72 Singapore’s Written Observations, paras 4.4, 4.9.
73 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other
Mexican Nationals (Mexico v. United States of America)(Mexico v. United States of America), Provisional
Measures, Order of 16 July 2008, ICJ Reports 2008, p. 325, para. 53; cited in Request for Interpretation of
the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v.
United States of America)(Mexico v. United States of America), Judgment, ICJ Reports 2009, p. 9, para. 17
and Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah
Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment, ICJ Reports 2013, p. 295, para. 33.
74 See, for example, Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case,
Judgment, I.C.J. Reports 1950, p. 403; Request for Interpretation of the Judgment of 31 March 2004 in the
Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America)(Mexico v.
United States of America), Judgment, ICJ Reports 2009, p. 12, para. 25; and Request for Interpretation of
the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand)
(Cambodia v. Thailand), Judgment, ICJ Reports 2013, p. 299, para. 43.
30
there are no specific requirements for the parties to express their disagreement
in a certain way of for their difference of views to appear in a particular form.
The Court has repeatedly recalled the observation made by the PCIJ in the
Interpretation of the Chorzów Factory Judgments that:
[I]t cannot require that the dispute should have manifested itself in a formal way;
according to the Court’s view, it should be sufficient if the two Governments
have in fact shown themselves as holding opposite views in regard to the
meaning or scope of a judgment of the Court.75
79. Observing the conduct of the Parties in the years since the 2008 Judgment was
delivered, there can be no doubt that there is a difference of opinion between the
Parties as to the meaning and scope of the Judgment. As detailed at length in
Malaysia’s Interpretation Application, it has become increasingly obvious—both
through the continuation of diplomatic protests, and the stagnation of
implementation efforts in the Malaysia–Singapore Joint Technical Committee
(MSJTC)—that the Parties are at odds as to what precisely was decided by the
Court with binding effect.
80. The most significant evidence of the obvious divergence in the Parties’ views
concerning the meaning and scope of the Judgment is provided by the lengthy
stream of Notes Verbales exchanged by the Parties from 2008 through to the
present. In these Notes, Malaysia has stated consistently its understanding that,
according to the terms of the Operative Clause of the Judgment, the waters and
airspace around Pedra Branca/Pulau Batu Puteh belong to Malaysia and that
sovereignty over South Ledge also belongs to Malaysia. Singapore, on the other
hand, has indicated in its diplomatic notes that it considers that it has rights over
the territorial waters and airspace appertaining to Pedra Branca/Pulau Batu
Puteh, and that the status of South Ledge can only be determined by the
delimitation of the maritime boundary between the Parties. These Notes
Verbales indicate clearly that the Parties disagree as to what the terms of the
75 Interpretation of Judgments Nos 7 and 8 concerning the Case of the Factory at Chorzów, Judgment No.
11, 1927, PCIJ, Series A, No. 13, p. 11.
31
Judgment require of each of them. Furthermore, these notes show the difficulties
which both Malaysia and Singapore have encountered in their efforts to
implement the Judgment. Without a clear and authentic interpretation from the
Court as to the exact implications of the terms of the Judgment for the Parties,
their endeavours to implement the Judgment fully and to maintain smooth and
orderly relations in the region will be hindered.
81. Singapore denies that there is any difference of opinion between the Parties
regarding the meaning and scope of the 2008 Judgment. It asserts that:
[N]othing in the Parties’ conduct, interactions or correspondence in the years
following the delivery of the Judgment shows the existence of a dispute over the
meaning or scope of what the Court decided in the first paragraph of the
operative clause of the Judgment – namely, that sovereignty over Pedra Branca
belongs to Singapore.76
82. Elsewhere, Singapore maintains that:
[T]he facts establish that, in reality, there is no dispute concerning whether the
third paragraph of the operative clause of the Judgment has decided the question
of sovereignty over South Ledge.77
83. Rather than disagreement, Singapore contends that the Parties actually shared a
“common understanding of the Court’s ruling” in the post-Judgment period.
Singapore seeks support for this assertion by pointing to two elements of the
Parties’ post-Judgment conduct: (1) certain remarks made by Malaysian officials
regarding the delimitation of the parties’ maritime entitlements; and (2) the
creation and operation of the Malaysia–Singapore Joint Technical Committee
(“MSJTC”). However, as the following paragraphs demonstrate, Singapore
misconceives, no doubt intentionally, the nature and significance of these
developments. Upon closer examination, it is clear that the Parties were not in
agreement as to what the Court decided, and the disparity of their views as to
76 Singapore’s Written Observations, para. 3.8.
77 Singapore’s Written Observations, para. 4.9.
32
the meaning and scope of the Judgment became more apparent as steps were
taken towards the implementation of the Judgment.
(i) Statements concerning maritime delimitation
84. Singapore refers to a number of statements in which certain members of the
Malaysian Government indicate Malaysia’s readiness to initiate a process for the
delimitation of the maritime boundary between the Parties.78 For example, the
Malaysian Prime Minister remarked on the day after the 2008 Judgment was
handed down that “the next step was for officials from both sides to meet to
decide on the maritime demarcation line as soon as possible”.79 Singapore argues
that these statements sg that the Parties were in agreement as to the meaning
and scope of the Judgment in so far as they both understood that maritime
delimitation was required. According to Singapore, these statements show
Malaysia’s understanding that, under the terms of the Judgment, Singapore had
acquired territorial waters appertaining to Pedra Branca/Pulau Batu Puteh, since
there would be no need to delimit the waters around Pedra Branca/Pulau Batu
Puteh if Singapore did not possess an entitlement which overlapped with
Malaysia’s. Furthermore, Singapore argues that Malaysia understood that the
issue of sovereignty over South Ledge could only be settled by a maritime
delimitation which would determine in which State’s territorial waters the
feature was located.
85. Malaysia offers three observations concerning these statements and the
conclusions Singapore seeks to draw from them. First, while these statements
clearly demonstrate Malaysia’s willingness to work together with Singapore
towards a bilateral delimitation of the Parties’ maritime entitlements, they say
nothing about the existence of a shared understanding between the Parties as to
the meaning or scope of the Judgment. Malaysia has at all times been mindful
of the importance of achieving a final settlement of the Parties’ maritime
boundary for the maintenance of friendly regional relations, and so has always
78 Singapore’s Written Observations, paras 1.15–1.17 and 4.11–4.12.
79 Singapore’s Written Observations, 1.16.
33
been willing to work towards the achievement of that aim in a spirit of goodwill
and co-operation with Singapore. The statements and acts cited by Singapore
confirm that fact. But these acts and statements provide no basis for claiming
that the Parties’ shared intention to initiate a process of maritime delimitation
entails a shared understanding of what exactly the Court decided with binding
effect. It is one thing to conclude from the Parties’ activity after the Judgment
was delivered that they shared a common resolve to implement the terms of the
Judgment, but it is another thing altogether to suggest that these actions prove
that the Parties understood the content and implications of the Court’s decision
in identical fashion. A common purpose does not presuppose a concurrent
understanding.
86. Second, a close reading of the words used in the small selection of statements
quoted by Singapore reveals that, contrary to Singapore’s characterisation, they
do not support the conclusion that Malaysia understood the Judgment in the
same way as Singapore. Some of these statements show Malaysia’s appreciation
that the waters around Pedra Branca/Pulau Batu Puteh remained undelimited.
For example, Malaysia’s Foreign Minister, Dr Rais Yatim, noted in an interview
with the media in 2008 that “the waters around [Pedra Branca/Pulau Batu Puteh]
have not been determined yet” and, furthermore, that, “whether it overlaps with
the waters of Middle Rocks or not, will be determined.”80 As this statement
shows, far from agreeing with Singapore’s claim to certain territorial waters
around Pedra Branca/Pulau Batu Puteh, there was uncertainty as to the exact
meaning and scope of the Court’s decision in this respect from the very start of
the post-Judgment period. It should not be surprising, therefore, that Malaysia
considered it necessary for the delimitation to occur as soon as possible.81
87. In respect of South Ledge, Malaysian officials stated their understanding in the
period immediately following delivery of the Judgment that South Ledge lies in
Malaysia’s waters. The Prime Minister of Malaysia, Abdullah Badawi, remarked,
80 Annex 16 to Singapore’s Written Observations, p. A71 (emphasis added).
81 See Statement of Prime Minister of Malaysia, Abdullah Badawi, quoted in Singapore’s Written
Observations, para. 1.17.
34
in a statement quoted by Singapore in its Observations, that “[w]e need to
determine the demarcation line to show that South Ledge is in our waters”.82 On
this view, the delimitation process would simply confirm the already existing fact
that South Ledge is under Malaysia’s sovereignty because it is located in
Malaysian territorial waters. This conviction was also expressed by the
Government of Malaysia in its press statement following release of the Judgment:
“Since South Ledge is within the territorial waters of Middle Rocks, Malaysia
appears to be the sovereign holder.”83 Similarly, remarks by the Chief Director
of Research in the Treaty and International division of Malaysia’s Ministry of
Foreign Affairs were reported in the press in the following terms:
[E]ven though geographical fact shows that South Ledge is situated in the
national waters and is nearest to Middle Rocks, nevertheless Kuala Lumpur
would continue with negotiations based on the spirit of neighbourliness and
friendship with Singapore. Negotiations are needed to prove that Malaysia has
sovereignty over South Ledge.84
88. As this last quote shows, the Government of Malaysia was committed from the
outset to co-operating with Singapore in collaborative endeavours aimed
towards the implementation of the Judgment, but its understanding of the
meaning and scope of what the Court decided in the Judgment was evidently
different from Singapore’s. In Malaysia’s view, the bilateral implementation
process initiated with Singapore was required only to confirm the fact that South
Ledge was already subject to Malaysia’s sovereignty. Contrary to Singapore’s
suggestion, the view expressed in these statements is consistent with the position
maintained by Malaysia in its diplomatic correspondence with Singapore
regarding South Ledge.85
89. Third, Malaysia observes that the statements and acts invoked by Singapore
could only serve to establish that the Parties had a shared understanding of the
82 Singapore’s Written Observations, para. 4.11 (emphasis added).
83 Annex 3 to Singapore’s Written Observations, quoted in para. 4.15.
84 Annex 50 to Singapore’s Written Observations, quoted in para. 4.17 (emphasis added).
85 See, for example, Singapore’s Written Observations, para. 4.20.
35
meaning of the Judgment if one were to ignore altogether the evidence of the
diplomatic protests exchanged between the Parties in respect of alleged
incursions into the territorial waters and airspace in the area in question. It is
unusual that Singapore appears ready to accord such importance to a small
handful of relatively informal remarks—most of them extemporaneous
comments reported by the press—while downplaying the significance of the
Parties’ lengthy and vigorous diplomatic correspondence on the matter. Even if
the remarks quoted by Singapore bear out the meaning which Singapore seeks
to attach to them, itself an arguable proposition, passing remarks made during a
doorstop interview at the United Nations–ASEAN International Pledging
Conference on Cyclone Nargis86 or during a roundtable discussion with several
journalists87 cannot properly be afforded less weight than the opposing positions
expressed by the highest levels of Government through regular diplomatic
channels. In that formal diplomatic correspondence, both Parties state positions
which they consider to be in accordance with the binding decision of the Court,
and yet, as described in detail in the Interpretation Application, these positions
are utterly different, even contradictory. Taken together, there is little room for
doubt that the Parties’ views as to what is required of them under the Judgment
differ in many significant respects.
(ii) Malaysia–Singapore Joint Technical Committee
90. Singapore also points to the creation and activity of the MSJTC in an effort to
substantiate its claim that the Parties shared an understanding of the meaning
and scope of the Judgment. Singapore states:
[The MSJTC’s] work was based on the Parties’ common understanding of the
Court’s rulings. Both Parties accepted that the Court’s rulings on sovereignty
over Pedra Branca and Middle Rocks meant that the next step for the Parties was
to focus on the extent of each sides’ [sic] maritime and airspace entitlements.
The Parties were also in agreement that the issue of sovereignty over South
86 Annex 10 to Singapore’s Written Observations.
87 Annex 16 to Singapore’s Written Observations.
36
Ledge, as decided in the Judgment, depends on the delimitation of the Parties’
respective maritime entitlements. The existence and the work of the MSJTC are
therefore entirely inconsistent with Malaysia’s contention that the Parties are in
“deadlock” over the meaning or scope of the Judgment.88
91. Elsewhere, Singapore asserts:
All the discussions between the Parties at the meetings of the MSJTC and its subcommittees
were predicated on the common position that the Judgment had
made clear in the operative clause that sovereignty over Pedra Branca belongs to
Singapore, sovereignty over Middle Rocks belongs to Malaysia, and sovereignty
over South Ledge “belongs to the State in the territorial waters of which it is
located”. The Parties proceeded on the basis that, as a consequence of the
Judgment, they had maritime entitlements generated by Pedra Branca and
Middle Rocks, and that sovereignty over South Ledge flows from maritime
boundary delimitation. The function of the MSJTC was to work out how the
Parties could move forward in the light of this common position.89
92. Singapore paints a misleading picture when it asserts that the Parties’ agreement
to establish the MSJTC and its sub-committees, and their participation in
meetings and works aimed at the implementation of the Judgment, are proof
that the Parties possessed a “common understanding of the Court’s rulings” after
the Judgment was delivered. While this activity demonstrates that the Parties
had a common purpose—to work together towards the full implementation of
the Judgment—it does not attest to the existence of a “common understanding”
between the Parties as to what the Court decided with binding effect.
93. In fact, rather than working upon a “common understanding” within the MSJTC,
the Parties participated in the activity of that body on the express proviso that
all discussions held and all actions taken would be “without prejudice to issues
of sovereignty and eventual delimitation of maritime boundaries”.90 Contrary to
88 Singapore’s Written Observations, para. 1.14.
89 Singapore’s Written Observations, para. 1.19.
90 This formula was used repeatedly in the records of the meetings of the MSJTC and its sub-committees.
See, for example, the following Annexes to Singapore’s Written Observations: Annex 18, p. A128; Annex
21, pp. A141–2, A152; Annex 26, p. A226.
37
Singapore’s assertion, the discussions between the Parties were not predicated
on a common position regarding sovereignty over the features; rather, they were
conducted on the explicit basis that the Parties’ competing positions on issues of
sovereignty and maritime delimitation would be preserved. Thus, when the
Parties agreed “that current traditional fishing activities by both countries will
be allowed to continue around Pedra Branca, Middle Rocks and South Ledge”,
they emphasised that “[t]hese arrangements are without prejudice to issues of
sovereignty and eventual delimitation of maritime boundaries.”91 Again, when
the Parties agreed that humanitarian assistance would be provided by either side
to any vessels affected by an incident occurring in the waters in and around Pedra
Branca/Pulau Batu Puteh, they did so “on the understanding that actions taken
would be without prejudice to issues of sovereignty and eventual delimitation of
maritime boundaries”. Finally, when Malaysia and Singapore eventually agreed
the Memorandum of Understanding with regard to the Joint Hydrographic
Survey, following two-and-a-half years of negotiations concerning the scope,
methodology and costs of the survey works, they again stated clearly that this
work was undertaken without prejudice to issues of sovereignty and maritime
delimitation:
Article 2 – Matters Not to Be Prejudiced:
The Joint Survey or any action or omission undertaken pursuant to the
provisions of this MOU or the Scope of Works are without prejudice to issues of
sovereignty including positions taken in relation to the interpretation and
application of international law, maritime or territorial claims whether in
written form or otherwise and eventual delimitation of maritime boundaries.92
94. Far from demonstrating the existence of a “common understanding of the
Court’s rulings”, as Singapore contends, the activities of the MSJTC and its subcommittees
show not only that Malaysia and Singapore entered into this process
with separate and competing understandings of their specific entitlements in the
area under the Judgment, but that they consistently took careful steps
91 See Record of First MSJTC Meeting, Annex 18 to Singapore’s Written Observations, p. A128.
See also the Record of Second MSJTC Meeting, Annex 21 to Singapore’s Written Observations, p. A198.
92 Annex 66 to Singapore’s Written Observations, pp. A1043–4.
38
throughout their participation in this bilateral process to protect their competing
positions and to ensure that nothing done in the context of the MSJTC would be
detrimental to their entitlements. Contrary to Singapore’s assertion, no common
position as to the meaning and scope of the Judgment is discernible in the
activity of the MSJTC.
(iii) Conclusion on the existence of a dispute
95. Singapore has identified a small selection of acts and statements by Malaysian
officials in an effort to construct a claim that the Parties have shared a “common
understanding of the Court’s ruling” throughout the post-Judgment period.
Singapore is quite right to observe that these statements and actions show an
important point of commonality between the parties: both Malaysia and
Singapore are agreed that the Judgment must be fully implemented and they
share a willingness to initiate steps towards the achievement of that goal. The
Parties’ creation of the MSJTC and the completion of preliminary works by the
MSJTC and its subcommittees attests to Malaysia and Singapore’s shared resolve
to uphold and implement the rulings of the Court.
96. However, while the Parties are united by a common undertaking to respect the
Judgment, they do not share a common understanding as to what the Judgment
requires of them. While Singapore appears to attach little significance to the
long sequence of diplomatic protests made by the Governments of Malaysia and
Singapore, the persistence of these protests, and the simmering and unresolved
dispute that they evidence, is fundamentally rooted in the divergent views of the
Parties of the meaning and scope of key elements of the 2008 Judgment. The
stalled activity of the MSJTC provides further evidence: as more steps are taken
by this bilateral body, the more obvious it becomes that the Parties’ perceptions
as to what the Judgment requires are incongruous.
97. Moreover, in these protests, Malaysia and Singapore have each articulated
entirely different views as to their obligations and entitlements are under the
terms of the Judgment. As such, and as the next section will show more fully,
39
the difference of opinion manifested by the parties concerns the meaning and
scope of the Judgment.
B. The “Meaning or Scope of the Judgment”
98. As the PCIJ explained in the Chorzów Factory Interpretation case, jurisdiction to
interpret a judgment is intended to “enable the Court to make quite clear the
points which had been settled with binding force in a judgment.”93 Accordingly,
for a dispute between the Parties to comply with Article 60, “there must therefore
exist a difference of opinion between the Parties as to those points in the
judgment in question which have been decided with binding force”.94 In other
words, Article 60 of the Statute requires that the difference of opinion must
relate to the “meaning or scope” of the operative clause of the judgment. The
Court has endorsed this as a general rule in interpretation proceedings in a
number of cases.95
99. Although the Court has not had occasion to explain more fully what the
“meaning or scope” of a judgment denotes within the terms of Article 60, it
appears from the case law that this requirement in Article 60 will be satisfied if
the dispute between the parties relates to the specific content of the
determination made by the Court in the operative clause of the judgment in
question. Equally, a dispute “whether a particular point has or has not been
decided with binding force”96 will satisfy this requirement, as will a difference of
opinion over the nature or precise extent of the obligations and entitlements
determined with binding effect by the Court in its judgment. Thus, in the Avena
93 Interpretation of Judgments Nos 7 and 8 concerning the Case of the Factory at Chorzów, Judgment No.
11, 1927, PCIJ, Series A, No. 13 p. 11.
94 Ibid., p. 11.
95 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah
Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, ICJ
Reports 2011 (II), pp. 542–4, paras 20-32; Request for Interpretation of the Judgment of 31 March 2004 in the
Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America)(Mexico v.
United States of America), Judgment, ICJ Reports 2009, p. 3; Request for Interpretation of the Judgment of
20 November 1950 in the Asylum Case (Colombia/Peru)(Colombia v. Peru), Judgment, ICJ Reports 1950, p.
402.
96 Interpretation of Judgments Nos 7 and 8 concerning the Case of the Factory at Chorzów, Judgment No.
11, 1927, PCIJ, Series A, No. 13, pp. 11–12.
40
Interpretation Request case, the Court declined Mexico’s request for
interpretation because the Parties’ divergence of views did not concern the
specific binding effect of the Judgment for Mexico and the United States but
merely involved a general question regarding the general effects of a decision of
the Court in the domestic legal order of a party to that case.97
100. While the general rule requires that a request for interpretation relates to the
operative clause of a judgment, the Court’s jurisprudence confirms that under
Article 60 the Court may also provide clarification of the reasons upon which the
Court based its binding decision “in so far as these are inseparable from the
operative part”.98 Thus, the Court’s jurisdiction under Article 60 extends to
include the ability to clarify the incidental findings made in the course of the
Court’s reasoning where that reasoning is essential for understanding the
meaning or scope of the operative clause of the judgment.
101. Singapore accepts that there are differences of opinion and points of
disagreement between the Parties concerning Pedra Branca/Pulau Batu Puteh,
Middle Rocks and South Ledge, although not a “dispute”. But Singapore
contends that these differences of opinion do not concern the “meaning or
scope” of the Judgment, with the result that Malaysia’s Request is inadmissible
for its failure to comply with this second requirement of Article 60.
102. Singapore makes two arguments in relation to this contention. First, Singapore
argues that the meaning of the Judgment is so clear that any disagreement
between the Parties could not concern the meaning or scope of the terms used
in the Operative Clause. Second, Singapore argues that in so far as the
disagreement between the Parties concerns the delimitation of the Parties’
territorial waters, it does not relate to the “meaning or scope” of the Judgment
97 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other
Mexican Nationals (Mexico v. United States of America)(Mexico v. United States of America), Judgment,
ICJ Reports 2009, pp. 42–3, para. 37.
98 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v.
Cameroon), Judgment, ICJ Reports 1999 (I), p. 35, para. 10; see also Avena Interpretation, Declaration of
Judge Koroma, p. 24, para. 6, and Dissenting Opinion of Judge Sepúlveda-Amor, pp. 41–2, paras. 34–5.
41
since the Court was not asked by the Special Agreement of the Parties to consider
matters of maritime delimitation. Singapore contends that the “true purpose” of
Malaysia’s Request is “to have the Court decide a question that it could not, and
did not, decide in the Judgment.”99
103. Malaysia observes that the degree to which Singapore considers the terms of the
Judgment to be clear is immaterial. While Singapore may well consider the
Judgment to be “crystal clear”, and while it may well have formed a firm view as
to what precisely the Judgment requires of each of the Parties, the pertinent issue
for the purposes of Article 60 is whether Singapore’s appreciation of the meaning
and scope of what the Court decided with binding effect matches that of
Malaysia.
104. As the previous section has demonstrated, it is evident that the Parties have
different understandings of their obligations and entitlements under the
Judgment. This divergence of opinion appears to relate, at least to some extent,
to the differing significance attached by the Parties to the reasoning employed
by the Court to arrive at its binding decision.
105. Malaysia observes that the Operative Clause can only be understood in the light
of three important incidental findings made by the Court in the 2008 Judgment:
first, the Court’s determination that Johor, Malaysia’s predecessor, possessed
until at least 1953 an ancient original title of sovereignty which encompassed all
three features in dispute; second, the Court’s finding that the manner in which
sovereignty over Pedra Branca/Pulau Batu Puteh passed from Malaysia to
Singapore was by a gradual process in which the Parties came to share an implicit
understanding regarding title to Pedra Branca/Pulau Batu Puteh; and, third, the
Court’s ruling that this convergence of the Parties’ positions concerned only
Pedra Branca/Pulau Batu Puteh and left unchanged the situation with regard to
Middle Rocks and South Ledge.100 Considered in light of these findings, Malaysia
queries, as detailed in Section II above, whether the acquisition of an
99 Singapore’s Written Observations, para. 4.4.
100 2008 Judgment, p. 99, paras. 289–90.
42
uninhabited island outside the territorial waters of a coastal State by way of a
tacit agreement arising from the conduct of the Parties101 automatically or
necessarily entails the acquisition also of any territorial waters, and so it remains
uncertain about the precise meaning and scope of the Court’s ruling that
“sovereignty over Pedra Branca/Pulau Batu Puteh belongs to the Republic of
Singapore”. Singapore, on the other hand, seems to ignore these incidental
findings as it takes the first paragraph of the Operative Clause at face value:
“Singapore has sovereignty over Pedra Branca; no more and no less.”102 If by this
statement Singapore means that it has only acquired sovereignty over the island
of Pedra Branca/Pulau Batu Puteh and “no more”, the Parties may well have
arrived at a common understanding on this point.
106. As for the subparagraph in the Operative Clause of the 2008 Judgment
concerning South Ledge, Malaysia observes that, in view of the Court’s
determination that Johor’s original title covered the entire area in dispute, the
only possible meaning of the ruling that “sovereignty over South Ledge belongs
to the State in the territorial waters of which it is located” is that Malaysia
remains sovereign over the feature. Singapore again ignores the Court’s finding
concerning Johor’s original title when it claims that the Court left it for the
Parties to determine sovereignty over South Ledge by a bilateral process of
maritime delimitation.
107. Furthermore, Malaysia observes that, as a result of the three incidental findings
made by the Court, the two disputed paragraphs of the Operative Clause of the
Judgment are interlinked. Singapore’s Observations distort the nature of the
Parties’ dispute over the meaning or scope of the Judgment by consistently
separating the issues concerning the ruling on Pedra Branca/Pulau Batu Puteh
from those related to South Ledge. The meaning and scope of the Court’s ruling
on South Ledge is closely related to its ruling on Pedra Branca/Pulau Batu Puteh
to the extent that there can be no doubts as to the status of South Ledge if, as
101 2008 Judgment, p. 50, para. 120.
102 Singapore’s Written Observations, para. 3.21.
43
Malaysia seeks to clarify, Singapore only acquired rights of territorial sovereignty
over the island of Pedra Branca/Pulau Batu Puteh. And both of these decisions
are closely related to the Court’s earlier finding that Malaysia, as successor to
Johor, held sovereignty over the entire area in dispute by virtue of original title.
108. Turning to Singapore’s second argument that the difference of opinions which
exists between the Parties concerns the extent of their respective maritime
entitlements and is therefore outside the scope of the Judgment, Malaysia
observes that Singapore has mischaracterised the point on which the Parties’
views have diverged. The Parties’ opinions differ on the implications for each of
them of the Judgment as it has been delivered, and the findings of sovereignty
that it has made. The disagreement between the Parties does not involve issues
of maritime delimitation, nor concern the process of maritime delimitation as
such. Malaysia has not requested the Court to determine the maritime boundary
between the Parties, and so it has not asked the Court to resolve a question which
was not put to the Court by Special Agreement in the original proceedings.
Malaysia simply seeks clarification of what precisely the Court meant when—
having decided that Malaysia held an original title of sovereignty over all three
features in dispute, together with their surrounding waters, as recently as 1953—
it concluded that “sovereignty” over Pedra Branca/Pulau Batu Puteh belonged to
Singapore, and that sovereignty over South Ledge belonged to whichever state
in the territorial waters of which South Ledge was located. To claim, as
Singapore does, that this dispute is merely about the “extent” of maritime
entitlements and therefore about delimitation, is to misconstrue the points on
which the Parties are at odds.
109. Finally, Malaysia observes that there is an inconsistency in Singapore’s argument
concerning maritime delimitation. Singapore states that the steps taken by the
Governments of Malaysia and Singapore towards the delimitation of their
maritime entitlements is evidence that a shared understanding existed between
them as to the meaning and scope of the Judgment, while at the same time it
says that the delimitation of the extent of the Parties’ maritime rights is outside
the scope of the Judgment, given that it was not specifically included in the
44
Special Agreement. It is difficult to envisage how the Parties can show that they
have a common understanding of the meaning and scope of a Judgment by doing
something which, in Singapore’s view, has nothing whatsoever to do with that
Judgment. If anything, this contradiction exemplifies the difficulty that the
Parties have encountered when attempting to understand the operative part of
the Judgment. The existing uncertainty surrounding the Judgment evidently
complicates the process of implementation.
110. Having demonstrated the existence of a difference of opinion between the parties
concerning the meaning or scope of the operative part of the Judgment, Malaysia
will now show that its Interpretation Application is admissible.
C. Admissibility
111. The Court set out the conditions for the admissibility of a request for
interpretation in the Asylum Case Interpretation Request as follows:
The real purpose of the request must be to obtain an interpretation of the
judgment. This signifies that its object must be solely to obtain clarification of
the meaning and the scope of what the Court has decided with binding force,
and not to obtain an answer to questions not so decided. Any other construction
of Article 60 of the Statute would nullify the provision of the article that the
judgment is final and without appeal.103
112. The Court has repeatedly affirmed these conditions, and it has declined to
examine any elements of a request for interpretation which do not seek
clarification of the meaning and scope of what the Court has decided. Thus, in
the Revision and Interpretation of the Tunisia/Libya Case, the Court proceeded to
examine Tunisia’s request for interpretation under Article 60 only in so far as it
related to the meaning and scope of the judgment in question.104
103 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, Judgment, I.C.J.
Reports 1950, p. 402. Followed in T/L, p. 217, para. 44, CvN, pp. 36–7, para. 12, PV, p. 303, para. 55.
104 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, p. 223, para. 56.
45
113. Singapore contends that Malaysia’s Interpretation Application is inadmissible
because it asks the Court to decide upon a matter—namely, delimitation of the
respective maritime entitlements of the Parties—which was not decided with
binding force in the Judgment, on account of the fact that the Parties’ Special
Agreement did not seek a ruling on this matter from the Court.105 Singapore
alleges that:
Malaysia’s real purpose in submitting the Request for Interpretation is not to
seek an interpretation of matters which the Court has decided with binding
force, but to seek answers to questions not so decided.106
114. Elsewhere, Singapore asserts:
What Malaysia is in fact doing is, under the guise of interpretation of the
Judgment, appealing against, or seeking to revise, the Judgment.107
115. As Malaysia has explained consistently and repeatedly, it has submitted the
Interpretation Application in order to obtain the Court’s assistance in clarifying
precisely what is meant by the Operative Clause of the 2008 Judgment. In
particular, it is necessary for the Parties to understand what exactly the Court
decided when it found that “sovereignty over Pedra Branca belongs to Singapore”
and “sovereignty over South Ledge belongs to the State in the territorial waters
of which it is located”, given that the Court had ruled earlier in the Judgment
that Malaysia held sovereignty over all three features by virtue of an original title,
and that Singapore had acquired sovereignty by way of “a convergent evolution
of the positions of the Parties regarding title to Pedra Branca/Pulau Batu
Puteh”.108
116. It is unmistakably clear from the long sequence of diplomatic protests relating
to activities in the airspace and waters over and around Pedra Branca/Pulau Batu
Puteh, Middle Rocks and South Ledge, and from the recent inaction of the
105 Singapore’s Written Observations, para. 2.11. See also paras 3.24, 3.31, 4.31, 4.34 and 4.38.
106 Singapore’s Written Observations, Summary para. 5.
107 Singapore’s Written Observations, para. 4.38.
108 2008 Judgment, p. 96, para. 276.
46
MSJTC, that Malaysia and Singapore hold different views as to the meaning and
scope of these two paragraphs in the Judgment’s Operative Clause. Moreover, it
appears from the stalled efforts of the Parties to carry out a maritime delimitation
in the setting of the MSJTC that, without a bilateral maritime delimitation
agreement, this difference of opinion concerning the meaning and scope of the
Judgment may continue to be a source of tension and instability between the
Parties, and may cause complications in the maintenance of safety and security
in this heavily-navigated area.
117. For example, the planning of search and rescue operations by Malaysia’s naval
forces is complicated considerably by the additional allowances which must be
made to prepare for the potential reach of Singapore’s claims to maritime rights.
Singapore referred in its Written Observations to naval charts employed by
Malaysia’s Chief of Navy in relation to an incident involving the US naval vessel
USS John McCain which occurred on 21 August 2017, after Malaysia had
submitted its Interpretation Application. Singapore suggested that this map
showed Malaysia’s recognition that Singapore is entitled to some territorial
waters. In fact, by marking out the extent of Singapore’s most ambitious claims
to maritime entitlements, this chart serves as evidence of the uncertainty and
instability within which the naval forces of Malaysia must strive to operate so
long as the Parties’ disparity of opinion as to what the Court decided continues,
and so long as this disagreement impedes progress towards the conclusion of a
maritime delimitation between the Parties.
118. While Malaysia and Singapore have affirmed their commitment to mutual
communication repeatedly in MSJTC discussions in the past, it would assist the
Parties greatly to have clarity as to what the Court decided with binding effect in
the Judgment, as this would enable them to co-ordinate their response to
emergencies or other incidents, as well as permitting them to plan for mitigating
risks in the area with more precision and assurance.
119. For this reason, the Parties require the assistance of the Court to clarify what
exactly it meant when it decided that “sovereignty over Pedra Branca/Pulau Batu
47
Puteh belongs to Singapore” and that “sovereignty over South Ledge belongs to
the State in the territorial waters of which it is located”. For this reason, Malaysia
has submitted the present Interpretation Application.
IV. SUMMARY OF REASONING
120. In accordance with Practice Direction II, the following is a short summary of the
reasoning set out in these Observations:
a. The meaning and scope of subparagraphs (1) and (3) of the Operative Clause
of the 2008 Judgment are unclear and are the subject of dispute between the
Parties concerning the status of the waters around Pedra Branca/Pulau Batu
Puteh and sovereignty over South Ledge.
b. Singapore acknowledges that a dispute exists between the Parties but
contends that it is a dispute over maritime and airspace entitlements, not
about the meaning and scope of the 2008 Judgment.
c. Malaysia acknowledges that there is indeed a dispute between the Parties
about maritime and airspace entitlements. What Singapore fails to
acknowledge, is that this dispute arises directly, fundamentally and
unavoidably from the uncertain meaning and scope of subparagraphs (1) and
(3) of the Operative Clause of the 2008 Judgment.
d. As regards the waters around Pedra Branca/Pulau Batu Puteh, it does not
follow inexorably as a matter of law that, because the Court determined that
sovereignty over Pedra Branca/Pulau Batu Puteh belonged to Singapore,
Pedra Branca/Pulau Batu Puteh generates its own maritime zones. On the
contrary, it is a tenable and reasonable view, based on the 2008 Judgment,
that Pedra Branca/Pulau Batu Puteh does not generate any maritime zone.
This is Malaysia’s interpretation of the 2008 Judgment.
e. As regards sovereignty over South Ledge, it is Malaysia’s interpretation of the
2008 Judgment that, by necessary implication, sovereignty over South Ledge
48
belongs to Malaysia on the basis that it is a low-tide elevation and is
appurtenant, in geographic terms, to Middle Rocks (over which Malaysia has
sovereignty), rather than Pedra Branca/Pulau Batu Puteh, and that it lies in
waters that were historically and remain today uncontroversially Malaysian
waters.
f. Singapore takes a different view on the meaning and scope of the 2008
Judgment on these issues.
g. This dispute between Malaysia and Singapore is a precise dispute concerning
the meaning and scope of subparagraphs (1) and (3) of the Operative Clause
of the 2008 Judgment.
h. Accordingly, the Court has jurisdiction to interpret its 2008 Judgment in
response to Malaysia’s Interpretation Application. The Interpretation
Application is also admissible.
V. SUBMISSIONS
121. Having regard to Singapore’s objections to jurisdiction and admissibility,
Malaysia requests the Court to adjudge and declare that:
a. there is a dispute between Malaysia and Singapore over the interpretation of
the Judgment of 23 May 2008 within the meaning of Article 60 of the Court’s
Statute; and
b. the Court has jurisdiction over Malaysia’s Interpretation Application and that
the Interpretation Application is admissible.
122. In its Interpretation Application, Malaysia set out the Interpretation Requested
from the Court in the following terms (at paragraph 56):
Malaysia respectfully asks the Court to adjudge and declare that:
49
(a) “The waters surrounding Pedra Branca/Pulau Batu Puteh remain
within the territorial waters of Malaysia”; and
(b) “South Ledge is located in the territorial waters of Malaysia, and
consequently sovereignty over South Ledge belongs to Malaysia”.
123. Malaysia maintains this request to the Court.
124. In the event that the Court considers that further written and/or oral
submissions of the Parties on the issues engaged by the Interpretation
Application would be appropriate, Malaysia requests the Court order such
further submissions of the Parties as would be appropriate to facilitate the
Court’s interpretation of its 2008 Judgment.
50
I have the honour to submit to the Court the Written Observations by Malaysia in
Response to Singapore’s Written Observations Contesting Jurisdiction and
Admissibility in the Request for Interpretation 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 Written Observations 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 15th day of February 2018
Dato’ Ahmad Nazri Yusof
Ambassador of Malaysia to the Kingdom of the Netherlands
Co-Agent of Malaysia
51
VI. LIST OF ANNEXES
Annex A Malaysia’s Emergency (Essential Powers) Ordinance
No. 7 1969, P.U.(A) 307A/1969.
Annex B Singapore Government Press Release 09-0/80/09/15,
dated 15 September 1980.
Annex A
Malaysia’s Emergency (Essential Powers) Ordinance No. 7 1969,
P.U.(A) 307A/1969.
P.U. (A) 307a. 968-(6)
I,AWS OF MALAYSIA
Ordinance7
EMERGENCY (ESSENTIAL POWERS)
ORDINANCE, No. 7 1969
An OrdinangpeT. gpglgated-bthy e Xurg di-PertuaAn gong
under Article 150 (2) of the Constitution.
Wnnneas by reasono f the existenceo f a gravee mergency
threatening the security of Malaysia, a Proclamationo f
l.llJfl Emergencyla s beeni ssuedb y the Yang di-PertuanA gong
r4rtov' under Article 150 of the Constitution;
p.u.(a\ Atqp wnnnrm Parliament was dissolved on the twentieth
e1l6e' day of March, 1969a, nde lectionsto the new DewanR a'ayat
have not been completed;
ANo wmnBAS the Yang di-Pertuan Agong is satisfied
that immediate action is required for an Ordinance to be
promulgated for the delimitalion of the territorial waters of
Malaysia;
IT IS HEREBY ENACTED by the Duli Yang Maha
Mulia Seri Paduka Baginda Yang di-Pertuan Agong pursudnt
to Clause( 2) of-Article 15-0o f the Constitutiona s
follows:
citation. 1. This Ordinancem ay be cited as the Emergency(E ssential
Powers)O rdinanceN, o.7 1969-
Applicatio2n. . This Ordinances hall apply throughout Malaysia'
Breadthof 3. (l) It is hereby declal
ternto'ar waters. of - Malaysia shal
breadth shall be measur
6,'1, 8,9, 10, rl, 12 an
the Territorial Sea and
Articles are set out in the Schedule hereto-
(2) In applying the aforesaid Arliclesr the expression
"territorial sea" occurrinf^ittii"i";h;u bi tonstiued as
"territorial waters".
Modincag4o.n (1) Except as provided in sub-section( 2), anyI ?f:iT::
of laws. occurring in any written law to territorial waters tnu:l.i:i;
far as suih re.feiencea ffectsf ederal law be construeds uDlwt
to the provisionso f this Ordinance.
968-(7) P.U. (A) 307a.
MalaYsia.
(2) A copy of such map shall be published in the Gazette
for generailn formation.
6. The Yang di-Pertuan Agong shall, pursuant to atr| Modificaagleemenet
ntered into between Malaysia and another llo--lflt",^,
fiastal State, by order grodify the areas of the territorial ilil."'
wateros f Malaysia;a nd any modifications o mades hall be
indicatedin a large-scalem ap and a copy thereof shall be
publishedin the Gazettef or generali nformation.
7, In any pro dings before any court in Malaysia if ques- Evidence.
tion arises as to whether an act or omission has taken place
withino r without the territorial waters.ofM alaysia,a certificateto
that effect purported to be signed by or on behalf
of the Minister charged with the responsibility for external
affairs hall be receivedi n evidencea nd shall be prima facie
proof of the facts stated therein.
Scnnourr
(Section3 )
GENEVA CONVENTION ON THE TERRITORIAL SEA AND TIIE
CoNTTGUOUS ZONE (1958)
Anrrcrr 3
, E_xcepwt here otherwise provided in tbese Articles, the normal
baseline-fomr easurins the bieadth of the territorial sea is the lowwatelri
ne along the ioast as marked on large-scalec harts ofhcially
recognisbeyd th-ec oastalS tate.
Anrrcrs 4
2'The.Orawing
of such baselinesm ust not depart to any appreciable
*iliT hp. thE general direction of the coast,
-and
the sea arias lying
hi:1h9 lines must be sufficiently closely linked to the land domain
" ues ubjectto the regimeo f internil wateis.
P.U. (A) 3074. 968-(8)
3. Baselinesh alln ot be drawnt o and from low-tidee levrti^*^
lighthouses or similar insrallations rvhich are perman;iil^;ttdry*
level have been built on them.
5. The system of straight baselines may not
such a manner as to cut off from the high sl:e^"aFsfi ]fi,:ed t"trbiioy raiu Sii.hl te in anotberS tate. ot
6. The coastal State must clearly indicate straight baselineso n charts,
to whicb due publicity must be given.
Anrrcrr 6
The outer limit of the territorial sea is the _line every point of which
is at a distance from. the nearest point of the baseline equal to the
breadth of the territorial sea.
Anrrcre 7
l. This Article relates only to bays the coast of whicb belong to a
single State.
2. For the purposes of tbese Articles, a bay is a well-marked futdentation
whose penetration is in sucb proportion to the width of its mouth
as. to contain land-locked waters and constitute more than a mcre
curyature of the coast as a bay unless. its area is ,as large as, or larger
thau, that of the semi-circle whose diameter is a line drawn acrossth e
mouth of that iadentation.
3. For the purpose of measurement, the area of an indentation is that
Iying between the low-water mark around thc shore of tbe indentation
area of the indentation.
4. If the distance between the low-water marks of the natural entrance
points of a bay does not exceed twenty-four miles, a closing line,may
be drawn between.these two low-water rurtr,
"oJ'the-wat.is
enclosed
tbereby shall be considered as internal waters.
6. The foregoing provisions shall not apply to so-called. :'hflgti::
bays. or'i" ;;t6;wu"i" il" sd;ish1 bil;li" rvrt"r provided for n
Article 4 is applied.
AnrrcrB 8
For the purpose of delimiting the territorial sea, the, oderflost
permanent harbour works whicb form an #;;;i pi'rt tf tn" harbour
system shall be regarded as forming part of the coast.
968-(9) P.U. (A) 307e.
Anrrcru 9
Roadsteads which are normally used for the loading unloading and
Anrrcre l0
l. Al island is a naturally-formcd area of land, surrounded by watet,
wbich is abovc water at high-tide.
2. The territorial sea of an island is measured in accordance with the
provisions of these Articles.
Anrrcm il
l. A low-tide elevation is a naturally-formed area of. land which is
surrounded by aad above water at low-tide but submerged at high-tide.
Whcrc a low-tide elevation is situated wholly or partly at a distance
not cxcceding the breadth of the territorial sea from the m2inlnaf, e1 211
islaud, the low-water line ou that elevatioD may be used as the baseline
for rneasuring the breadth of the territorial sea.
2- Where a low-tide elevation is wholly situated at a distancc excecding
the breadth of the territorial sea from the mainland or an island, it has
Dot territorial sea of its own.
Ar.rlcrs 12
l. Where the coa-st of two States are oppgsite or adjacent to each
othcr, neither of the two States is entitled, failing agreement between
them to the contrary, to extend its territorial sea beyond the mediau
line cvery point of whicb is equidistant from tbe nearest poiats on the
basclines from which the breadth of the territorial seas of each of the
two States is rneasured. The provisions of this paragraph shall not
apply, however, where it is necessary by reason of historic title or other
special circumstances to dclimit the territorial seas of the two States in
a way which is at variance witb this provision.
2. The line of delimitation between the territorial seas of two States
lying opposite to each other or adjacent to each otber shall be marked
on large-scalec harts officially recognised by the coastal States.
Anrrclr 13
-. It a river flowsd ircctlyi nto the sea,t he baselinseh allb e a straigbt
lile acrossth e moutho f ihe river betweeup ointso n thc low-tidel ine
of its banks.
^ Promulgated at Istana Negara, Kuala Lumpur, on the
uecond day of August, 1969.
TUANKU ISMAIL NASIRUDDIN STIAH.
Yang di-Pertuan Agong
Annex B
Singapore Government Press Release 09-0/80/09/15, dated 15 September 1980.