Response of Singapore on the Comments by Malaysia

INTERNATIONAL COURT OF JUSTICE
REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 23MAY 2008 IN THE CASE
CONCERNING SOVEREIGNTY OVER PEDRA BRANCA/PULAU BATU PUTEH,MIDDLE
ROCKS AND SOUTH LEDGE (MALAYSIA/SINGAPORE) (MALAYSIA V. SINGAPORE)
RESPONSE OF
THE REPUBLIC OF SINGAPORE
ON THE
COMMENTS BY MALAYSIA
DATED 15 FEBRUARY 2018
23 APRIL 2018
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RESPONSE OF THE REPUBLIC OF SINGAPORE
CHAPTER I – INTRODUCTION .................................................................. 1
A. Malaysia’s Written Comments ........................................................... 2
B. The Fundamental Defects in Malaysia’s Case .................................. 7
C. Structure of Singapore’s Response .................................................... 9
CHAPTER II – THE COURT CARRIED OUT THE TASK ASSIGNED
TO IT IN A CLEAR, FINAL AND BINDING JUDGMENT ..................... 11
A. The Scope of the Original Case: The Special Agreement and the
Limits of the Court’s Jurisdiction .................................................... 11
B. The Court Clearly Settled the Case Within Its Jurisdictional
Mandate .............................................................................................. 17
C. Conclusions ......................................................................................... 21
CHAPTER III – MALAYSIA’S REQUEST DOES NOT MEET THE
CONDITIONS FOR INTERPRETATION .................................................. 23
A. There Is No Dispute as to the Meaning or Scope of the Judgment 24
B. Malaysia’s Submissions Relating to Pedra Branca and South
Ledge Concern Matters Outside the Scope of the Judgment and
Are Misconceived ............................................................................... 34
1. Malaysia’s Request Regarding Pedra Branca Is Inadmissible .. 34
2. Malaysia’s Request Regarding South Ledge Is Inadmissible ..... 42
C. Conclusions ......................................................................................... 47
SUMMARY OF SINGAPORE’S REASONING ......................................... 49
SUBMISSION.................................................................................................. 53
CERTIFICATION .......................................................................................... 55
LIST OF ANNEXES ....................................................................................... 57
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RESPONSE OF
THE REPUBLIC OF SINGAPORE
CHAPTER I
INTRODUCTION
1.1 On 30 June 2017, Malaysia filed its request for interpretation (“the
Request for Interpretation”) of the Judgment delivered by the Court on
23 May 2008 in the Case concerning Sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore) (“the Judgment”)1. On 30 October 2017,
Singapore filed its written observations on the Request for Interpretation
(“Singapore’s Written Observations”).
1.2 On 15 November 2017, Malaysia requested the opportunity “to submit
written observations on jurisdiction and admissibility in response to
Singapore’s written observations”. On 8 December 2017, the Court
granted Malaysia’s request, and fixed 8 February 2018 as the time-limit
within which Malaysia may submit its comments, and 9 April 2018 as the
time-limit within which Singapore may submit its response thereto.
1.3 On 29 January 2018, Malaysia requested that the time-limit afforded to
submit its written comments be extended to 28 February 2018. On 1
February 2018, the President of the Court decided that the time-limit for
submission of Malaysia’s written comments would be extended to 15
1 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 12. As in
Singapore’s Written Observations, the Case concerning Sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore) is referred to hereafter as “the original case”.
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February 2018, and the time-limit for submission of Singapore’s response
thereto would be extended to 23 April 2018. Malaysia’s written comments
were filed on 15 February 2018 (“Malaysia’s Written Comments”). In
accordance with the President’s decision of 1 February 2018, Singapore
now submits its response to Malaysia’s written comments (“Singapore’s
Response”).
A. Malaysia’s Written Comments
1.4 At the outset, Singapore recalls that in the Judgment, the Court ruled that:
(1) sovereignty over Pedra Branca belongs to Singapore;
(2) sovereignty over Middle Rocks belongs to Malaysia; and
(3) sovereignty over South Ledge belongs to the State in the territorial
waters of which it is located2.
1.5 Malaysia now argues that there is a dispute between the Parties over these
rulings in the Judgment. Malaysia asserts that the rulings in subparagraphs
(1) and (3) require clarification, and should be interpreted to
mean 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’.”3
2 Judgment, pp. 101-102, para. 300.
3 Request for Interpretation, para. 56; Malaysia’s Written Comments, para. 122.
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1.6 Malaysia’s arguments are without merit. The Judgment is clear and
requires no interpretation4. The Request for Interpretation is not a genuine
request which meets the requirements under Article 60 of the Statute of
the Court. Malaysia is instead asking the Court, under the guise of
interpretation, to go beyond what it decided in the Judgment, and to rule
on issues relating to maritime entitlements and delimitation, which were
never before the Court under the Special Agreement signed by the Parties
on 6 February 2003, and which it did not rule upon.
1.7 To this end, in the Request for Interpretation and its Written Comments,
Malaysia has sought to manufacture a dispute based on the fact that the
Parties hold different views over the extent of their respective maritime
entitlements in the relevant area, and the delimitation of those overlapping
entitlements. But this is not a dispute over the meaning or scope of the
Judgment, which could not be clearer.
1.8 Malaysia has never questioned the Court’s finding that sovereignty over
Pedra Branca belongs to Singapore. Similarly, there is and can be no
dispute over the meaning or scope of the Court’s ruling that sovereignty
over South Ledge, as a low-tide elevation, belongs to the State in the
territorial waters of which it is located. Malaysia’s own post-Judgment
conduct and statements show that there is no real dispute over these
rulings. It follows that the Court has no jurisdiction over the Request for
Interpretation.
4 As Singapore highlighted in para. 3.21 of its Written Observations, the exact
same words which are used in the dispositif for Pedra Branca are also used in
the dispositif for Middle Rocks, but Malaysia has not asserted that the Court’s
holding in respect of Middle Rocks requires interpretation. The reality is that
both rulings are equally clear.
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1.9 Moreover, the Request for Interpretation is inadmissible because it seeks
decisions on questions which were never before the Court in the original
case, and which were therefore not decided by it. Pursuant to Article 2 of
the Special Agreement, the Court was requested to rule on sovereignty
over Pedra Branca, Middle Rocks and South Ledge. That is exactly what
the Court did. The Court was not asked to, and did not, decide on the
existence or extent of the Parties’ respective maritime entitlements. The
Court was also not asked to, and did not engage in delimitation with
respect to the territorial waters of Malaysia and Singapore in the area in
question5.
1.10 For Pedra Branca, Malaysia’s new argument, advanced for the first time
in Malaysia’s Written Comments, that the island generates no territorial
waters of its own is entirely misplaced as a matter of international law6.
However, this was not a question before the Court, was not argued by the
Parties, and was not decided by the Court, in the original case.
1.11 For South Ledge, due to the fact that it is a low-tide elevation, the Court
ruled as it did and held that sovereignty over South Ledge belongs to the
State in the territorial waters of which it is located. The Court expressly
refrained from deciding on the question whether South Ledge falls within
the territorial waters of Singapore or Malaysia, because that would depend
on maritime delimitation – an issue that was not within the Court’s
jurisdiction and, quite properly, was not decided by it.
1.12 The Request for Interpretation is actually an appeal of the Judgment and
an attempt to have the Court rule on questions that were, and continue to
be, beyond the scope of its jurisdiction. As Singapore has emphasised
5 Judgment, p. 101, para. 298.
6 See para. 3.29 below.
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from the beginning, the Judgment is crystal clear in its rulings, and
requires no interpretation. The Request for Interpretation is an abuse of
process and should be rejected.
1.13 Far from remedying the deficiencies in the Request for Interpretation,
Malaysia’s Written Comments aggravate them and add to the confusion.
Malaysia has shifted its case and raised arguments in its Written
Comments which contradict its own Request for Interpretation. Whereas
it previously asserted that the Court “has discharged its function under the
Special Agreement”7, Malaysia now attacks the Judgment as being
“incomplete”8, and the Court’s reasoning as “far from unambiguous”9 and
having “introduced a strong element of uncertainty”10. It appears that
Malaysia has found it expedient to jettison elements of its own case to
artificially portray the Judgment as requiring interpretation.
1.14 Furthermore, in various parts of Malaysia’s Written Comments, in a bid
to shore up its case, Malaysia mischaracterises the Judgment and presents
a false picture of the Court’s reasoning11, as well as of Singapore’s case.
Singapore will only respond briefly to some of Malaysia’s
mischaracterisations because the points raised in Malaysia’s Written
Comments are wholly irrelevant to a request for interpretation, and serve
only to obfuscate the fact that Malaysia’s case has no leg to stand on.
7 Request for Interpretation, para. 46.
8 Malaysia’s Written Comments, para. 11.
9 Ibid., para. 40.
10 Ibid., para. 44.
11 See, for example, paras. 2.15, 2.19, 3.22-3.30 and 3.36-3.39 below, which
address various mischaracterisations of the Judgment by Malaysia.
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1.15 However, two particular misrepresentations require a response at the
outset, because they paint an entirely false picture of the character of the
present proceedings and the issues which the Court is called upon to rule
on. The first misrepresentation concerns the astonishing assertion in
Malaysia’s Written Comments that:
“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.”12
This assertion makes no sense, and is nothing more than a straw man
argument that Malaysia has set up13. Malaysia has deliberately chosen to
overlook the fact that Singapore’s Written Observations repeatedly and
clearly set out Singapore’s position on the meaning and scope of the
Judgment, namely, that the Judgment is clear and requires no
interpretation14.
12 Malaysia’s Written Comments, para. 5.
13 This is also apparent in Malaysia’s attempt, in its letters to the Court of 15
November 2017 and 15 February 2018, and in the title given to Malaysia’s
Written Comments, to misleadingly recast Singapore’s Written Observations as
submissions limited only to “contesting jurisdiction and admissibility”.
14 See, for example, Singapore’s Written Observations, paras. 1.7, 1.13, 3.2 and
4.3, and para. 6 of the Summary of Singapore’s Reasoning at p. 64 of that
pleading.
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1.16 The second misrepresentation is Malaysia’s claim that “for tactical
reasons in these proceedings, [Singapore] has hesitated to crystallise its
position as regards maritime and airspace sovereignty around Pedra
Branca/Pulau Batu Puteh …”15. This is plainly a red herring. The issue of
maritime and airspace entitlements, notwithstanding Malaysia’s
deliberate misuse of terminology, has nothing to do with the issue of
sovereignty which the Court was asked to decide in the original case. The
question of the extent of maritime entitlements around Pedra Branca was
outside of the Court’s mandate, and consequently has nothing to do with
the meaning or scope of the Judgment.
1.17 Additionally, Malaysia’s request in paragraph 4 of its letter to the Court
dated 15 February 2018 to be “afforded an opportunity to address any
relevant merits issues” in the event that the Court accepts jurisdiction and
holds the Request for Interpretation admissible is misguided. Article 60
of the Statute of the Court makes no distinction between jurisdiction and
admissibility on the one hand, and the “merits” on the other hand. Both
Parties have had a full opportunity to present their respective positions on
the Request for Interpretation. Malaysia is hoping for yet another
opportunity to argue issues over which the Court had no jurisdiction under
the Special Agreement and were not decided by it.
B. The Fundamental Defects in Malaysia’s Case
1.18 What Malaysia is trying to put forward is not a proper request for
interpretation under Article 60 of the Statute of the Court. In advancing
an entirely new case relating to the maritime entitlements of the Parties,
and seeking to persuade the Court to go beyond the limits of its mandate,
15 Malaysia’s Written Comments, para. 10
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Malaysia repeats the same erroneous arguments made by the Applicant
(Colombia) which the Court addressed and rejected in the Asylum Case.
As the Court explained in that case with respect to a question that
Colombia had argued required interpretation:
“ … The Court can only refer to what it declared in its Judgment
in perfectly definite terms: this question was completely left
outside the submissions of the Parties. The Judgment in no way
decided it, nor could it do so. It was for the Parties to present their
respective claims on this point. The Court finds that they did
nothing of the kind.
The ‘gaps’ which the Colombian Government claims to have
discovered in the Court's Judgment in reality are new questions,
which cannot be decided by means of interpretation.
Interpretation can in no way go beyond the limits of the
Judgment, fixed in advance by the Parties themselves in their
submissions.
In reality, the object of the questions submitted by the Colombian
Government is to obtain, by the indirect means of interpretation,
a decision on questions which the Court was not called upon by
the Parties to answer.
Article 60 of the Statute provides, moreover, that interpretation
may be asked only if there is a ‘dispute as to the meaning or scope
of the judgment’. Obviously, one cannot treat as a dispute, in the
sense of that provision, the mere fact that one Party finds the
judgment obscure when the other considers it to be perfectly
clear. A dispute requires a divergence of views between the
parties on definite points; Article 79, paragraph 2 [now Article
98, paragraph 2], of the Rules confirms this condition by stating
that the application for interpretation “shall specify the precise
point or points in dispute”.”16
1.19 The above quotation aptly summarises the fundamental defects in
Malaysia’s case. First, there is no dispute within the meaning of Article
60 of the Statute of the Court. One cannot treat as a dispute the mere fact
16 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum
Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 403.
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that Malaysia now claims the Judgment is obscure when Singapore
considers it to be perfectly clear. Nor does a dispute that concerns matters
that were not within the Court’s mandate to decide constitute a dispute
over the meaning and scope of the Judgment. There is in fact no
divergence of views between the Parties on the meaning or scope of the
Judgment. Second, Malaysia is trying to obtain, by the indirect means of
interpretation, a decision on questions which the Court was not called
upon by the Parties to answer and did not answer. Singapore will elaborate
on these defects in the following Chapters.
C. Structure of Singapore’s Response
1.20 Singapore’s Response is divided into three Chapters including this
introductory chapter. The remaining Chapters are organised as follows:
(a) Chapter II reiterates that, contrary to Malaysia’s assertions and the
attack which Malaysia has now levelled on the Judgment, the Court
fully carried out the task assigned to it by the Special Agreement,
in a clear, final and binding Judgment, and that in so doing, the
Court decided the dispute submitted to it by the Parties within the
limits of its mandate.
(b) Chapter III explains why Malaysia’s Written Comments, just like
the Request for Interpretation, fail to demonstrate that the
conditions for a request for interpretation under Article 60 of the
Statute of the Court are satisfied. As Singapore will show again,
there is no dispute over the meaning or scope of the Judgment
between the Parties. Moreover, Malaysia seeks rulings from the
Court in respect of Pedra Branca and South Ledge that were not
before the Court in the original case. This is an abuse of process.
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1.21 A Summary of Singapore’s Reasoning and Singapore’s Submission are
set out at the end of Singapore’s Response together with two documentary
Annexes.
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CHAPTER II
THE COURT CARRIED OUT THE TASK ASSIGNED TO IT IN A
CLEAR, FINAL AND BINDING JUDGMENT
2.1 The Court’s jurisdiction in the original case was based on the Special
Agreement. By that instrument, the Parties requested the Court to
determine whether sovereignty over Pedra Branca/Pulau Batu Puteh,
Middle Rocks and South Ledge belongs to Malaysia or Singapore. In
contrast, the Special Agreement did not request the Court to determine
the existence or extent of the Parties’ maritime entitlements generated by
any of the three named features or to effectuate a maritime delimitation.
The Parties did not argue those issues or make submissions on them, and
the Court quite properly did not address them.
2.2 In this Chapter, Singapore will show that the Court respected the limits of
its jurisdictional mandate and fully carried out the task assigned to it by
the Special Agreement in the Judgment. The Court decided the precise
dispute submitted to it – nothing more, and nothing less. With respect to
Pedra Branca, the Court ruled that sovereignty belongs to Singapore. With
respect to Middle Rocks, the Court ruled that sovereignty belongs to
Malaysia. With respect to South Ledge, given its status as a low-tide
elevation, the Court ruled that sovereignty belongs to the State in the
territorial waters of which it is located. The Judgment in all three respects
is perfectly clear and requires no interpretation.
A. The Scope of the Original Case: The Special Agreement and the
Limits of the Court’s Jurisdiction
2.3 The Court has frequently emphasised that there exists “a well-established
principle of international law embodied in the Court’s Statute, namely,
that the Court can only exercise jurisdiction over a State with its
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consent”17. This is equally relevant in interpretation cases, as the Court
noted in its 1985 judgment in the Tunisia-Libya revision and
interpretation case where it stated that: “It is of course a fundamental
principle that ‘The consent of States, parties to a dispute, is the basis of
the Court’s jurisdiction in contentious cases’”18. As noted above,
Singapore and Malaysia expressed their consent to the Court’s
jurisdiction in the Special Agreement. However, that consent, and by
necessity the scope of the Court’s jurisdiction, only extended to the
request for the Court to determine the question of sovereignty over Pedra
Branca, Middle Rocks and South Ledge. The Court had no jurisdiction to
decide any other issues, including the existence and extent of the maritime
entitlements of these features. As the Court noted in its judgment in the
Libya/Malta case:
“Since the jurisdiction of the Court derives from the Special
Agreement between the Parties, the definition of the task so
conferred upon it is primarily a matter of ascertainment of the
intention of the Parties by interpretation of the Special
Agreement. The Court must not exceed the jurisdiction conferred
17 Monetary Gold Removed from Rome, Judgment I.C.J. Reports 1954, p. 32;
Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Judgment, I.C.J. Reports
1959, p. 142; and East Timor (Portugal v. Australia), Judgment, I.C.J. Reports
1995, p. 105, para. 34. See also Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, Advisory Opinion of 30 March 1950 (first phase), I.C.J.
Reports 1950, p. 71; Land and Maritime Boundary between Cameroon and
Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 312,
para. 79; and Armed Activities on the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v. Rwanda), Judgment, I.C.J. Reports
2006, p. 32, para. 64.
18 Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1985, p. 216, para. 43, citing the Asylum Case, Judgment, I.C.J. Reports 1950,
p. 71.
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upon it by the Parties, but it must also exercise that jurisdiction to
its full extent.”19
2.4 Malaysia now says that “[t]he Special Agreement was very clear”20.
Indeed it was. The Special Agreement requested the Court to determine
sovereignty over certain features and nothing else. Malaysia was fully
aware that the only issue before the Court was the question of territorial
sovereignty over Pedra Branca, Middle Rocks and South Ledge. Its
pleadings in the original case, as well as those of Singapore, were devoted
to this issue, not the new arguments now advanced by Malaysia in its
Written Comments to the effect that the notion of “sovereignty” also
“imports sovereignty over the adjacent waters”21, and that the Judgment
is unclear as to whether Pedra Branca generates any territorial waters22
and, if so, to what breadth23. As Singapore will show in Chapter III, by
this convoluted line of argument, Malaysia is seeking to have the Court
answer questions that were not part of its mandate under the Special
Agreement. This is not a proper or valid basis on which to request the
interpretation of the Judgment.
2.5 Singapore’s Written Observations referred to a number of specific
statements made by Malaysia during the original case that stressed the
limited scope of the dispute submitted to the Court as one only concerning
19 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
1985, p. 23, para. 19, cited with approval in Territorial and Maritime Dispute
(Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 671, para. 136.
20 Malaysia’s Written Comments, para. 19.
21 Ibid., para. 24.
22 Ibid., para. 27.
23 Ibid., para. 33.
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sovereignty over these features24. Given that Malaysia’s Written
Comments have remained silent on the point, it is appropriate to recall
one of those statements here:
“To avoid any risk of confusion in the light of these statements,
it should be emphasised what this case is and is not about. This
case concerns sovereignty – over PBP [i.e., Pulau Batu
Puteh/Pedra Branca], Middle Rocks and South Ledge – and that
alone.”25
2.6 Singapore also pointed out that the Parties’ final submissions in the
original case show that they sought rulings from the Court solely on the
issue of sovereignty, not on the Parties’ maritime entitlements26. Malaysia
has not responded to this point either, even though it is a critical one for
the purposes of assessing the admissibility of the Request for
Interpretation. To recall the words of the Court in the Asylum Case:
“To decide whether the first requirement stated above [i.e.
admissibility] is fulfilled, one must bear in mind the principle that
it is the duty of the Court not only to reply to the questions as
stated in the final submissions of the parties, but also to abstain
from deciding points not included in those submissions.”27
2.7 Quite apart from these statements that expose the artificiality of the
Request for Interpretation, Malaysia also knew that the original case
solely concerned the question of territorial sovereignty because it had
been a party to another dispute involving sovereignty over islands just a
few years earlier. This was the case between Indonesia and Malaysia
24 See Singapore’s Written Observations, paras. 3.26-3.28.
25 Counter-Memorial of Malaysia, para. 183.
26 Singapore’s Written Observations, paras. 3.28-3.29.
27 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum
Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402.
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concerning Sovereignty over Pulau Ligitan and Pulau Sipadan28,
submitted to the Court by a Special Agreement between those two
States29.
2.8 The Indonesia/Malaysia Special Agreement is drafted in virtually the
same terms as the Singapore/Malaysia Special Agreement. Article 2 of
the Indonesia/Malaysia Special Agreement dealing with the “Subject of
the Litigation” reads as follows:
“The Court is requested to determine on the basis of the treaties,
agreements and any other evidence furnished by the Parties,
whether sovereignty over Pulau Ligitan and Pulau Sipadan
belongs to the Republic of Indonesia or to Malaysia”.30
The corresponding article in the Singapore/Malaysia Special Agreement
is also Article 2, similarly entitled “Subject of the Litigation”. It provides
as follows:
“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”.31
28 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
Judgment, I.C.J. Reports 2002, p. 625.
29 During the original case, Malaysia’s then Attorney General noted that the
Parties agreed to defer the Singapore/Malaysia case until after the
Indonesia/Malaysia case was concluded (CR 2007/24, p. 28, para. 3).
30 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
Judgment, I.C.J. Reports 2002, p. 630, para. 2.
31 Judgment, p. 18, para. 2. The Applicable Law, Procedure, Judgment of the
Court, Entry into Force and Notification provisions of both Special Agreements
are also, in all material respects, the same.
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2.9 In the Indonesia/Malaysia case, just as in the present case, the parties
directed their arguments and submissions exclusively to the question of
sovereignty over the islands at issue. They did not seek to interject into
the dispute any questions about the maritime entitlements of those islands
– questions that did not appear in their Special Agreement and over which
the Court had no jurisdiction.
2.10 For its part, the Court decided the dispute that the parties submitted to it
in that case – whether sovereignty over Pulau Ligitan and Pulau Sipadan
belongs to Indonesia or Malaysia – without venturing into the question of
the maritime entitlements of the islands. Not surprisingly, the Court’s
dispositif in that case is cast in a similar way to its dispositif in the
Judgment (bearing in mind that, unlike South Ledge, neither Pulau
Ligitan nor Pulau Sipadan is a low-tide elevation). The Court simply ruled
that sovereignty over the islands belonged to one or the other of the
parties. In both instances, the Court was not called upon to make any other
determinations and it did not do so32.
2.11 Returning to the original case, in the Judgment, the Court was also clear
that it was dealing solely with a question of territorial sovereignty. At
paragraph 32 of the Judgment, the Court referred to the case as one
concerning “a dispute related to sovereignty over land”33. In other words,
32 Even in cases where the Court has jurisdiction to determine a sovereignty
dispute over islands and maritime delimitation, the Court has dealt with the
question of sovereignty separately from the question of the maritime
entitlements of islands. For example, in the Territorial and Maritime Dispute
(Nicaragua v. Colombia), the Court first determined the question of sovereignty
over the islands in Part II of the Judgment entitled “Sovereignty” (I.C.J. Reports
2012, p. 662, para. 103). The question of entitlements generated by maritime
features was dealt with in Part V of the Judgment entitled “Maritime Boundary”
(I.C.J. Reports 2012, pp. 686-693, paras. 167-183).
33 Judgment, p. 27, para. 32. Similarly, in para. 122 of the Judgment (p. 51), the
Court made it clear that, critical for its assessment of the conduct of the Parties
“is the central importance in international law and relations of State sovereignty
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consistent with the task conferred upon it, the Court was not addressing a
dispute over the existence or extent of any maritime entitlements.
2.12 Had the Court done so, it would have decided ultra petita. In this
connection, it is useful to recall the observations made by the Court in its
2013 judgment on the Request for Interpretation in the Temple case since
the same principles are apposite to the present case:
“The principle of non ultra petita is well established in the
jurisprudence of the Court (Request for Interpretation of the
Judgment of 20 November 1950 in the Asylum Case (Colombia v.
Peru), Judgment, I.C.J. Reports 1950, p. 402; Arrest Warrant of
11 April 2000 (Democratic Republic of the Congo v. Belgium),
Judgment, I.C.J. Reports 2002, pp. 18-19, para. 43) and is one
reason why the claims contained in the final submissions of the
Parties in the original case are of relevance in interpreting the
1962 Judgment. Nevertheless, that principle cannot justify an
interpretation which runs counter to the terms of the 1962
Judgment. The Court in 1962 necessarily made an assessment of
the scope of the petitum before it; Article 60 of the Statute does
not give the Court the power today to substitute a different
assessment for that made at the time of the Judgment.”34
B. The Court Clearly Settled the Case Within Its Jurisdictional
Mandate
2.13 The Judgment is perfectly clear and there is no need for interpretation.
With respect to Pedra Branca, the Court was asked to determine which
Party has sovereignty over it. The Court answered that question in the
operative clause of the Judgment: “sovereignty over Pedra Branca/Pulau
over territory and of the stability and certainty of that sovereignty” (emphasis
added).
34 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, I.C.J. Reports 2013, p. 307, para. 71.
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Batu Puteh belongs to the Republic of Singapore”35. This was clearly a
ruling on sovereignty over land36.
2.14 It is impossible to see how the Court’s decision with respect to
sovereignty over Pedra Branca could require any interpretation. Indeed,
Malaysia acknowledges this fact. In Malaysia’s Written Comments,
Malaysia quite plainly states: “The finding of sovereignty over the
territory of Pedra Branca/Pulau Batu Puteh is unambiguous as such”37.
That is correct, and it is the end of the matter with respect to Malaysia’s
first submission. But notwithstanding the Court’s ruling on sovereignty,
which was equally clear with respect to sovereignty over Middle Rocks,
Malaysia then goes on to say in its Written Comments that “it is not clear
how far this extends or what exactly it means”38.
2.15 That assertion raises a different question and is wholly misconceived.
Malaysia attempts to conflate the question of sovereignty over Pedra
Branca, which was the issue put to the Court in the Special Agreement
and which the Court decided, with the question whether an island such as
Pedra Branca generates a territorial sea and, if so, how far that entitlement
extends39, which was not put to the Court. As explained above, in the
original case, the Parties did not request the Court to address those
questions in the Special Agreement, they did not argue the points in their
written and oral pleadings, and the Court made no determination on them.
35 Judgment, p. 101, para. 300(1).
36 In fact, Malaysia concedes this fact, when it states at para. 19 of its Written
Comments that “the Court was asked to come to a decision on sovereignty and
accepted that the “dispute related to sovereignty over land””.
37 Malaysia’s Written Comments, para. 23.
38 Ibid.
39 Ibid., paras. 27 and 33.
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As the next Chapter will show, there is no jurisdiction to entertain
Malaysia’s attempt to recast the scope of the original case under the guise
of a request for interpretation because there is no dispute over the Court’s
finding on sovereignty over Pedra Branca. Moreover, the request is
inadmissible because it asks the Court to answer questions that were not
before it in the original case and that it did not decide in the Judgment.
2.16 With respect to South Ledge, the Judgment is also clear. As the Court
explained, South Ledge presented “special problems” that needed to be
considered, “inasmuch as South Ledge, as distinct from Middle Rocks,
presents a special geographical feature as a low-tide elevation”40. In this
connection, the Court noted that the issue of whether a low-tide elevation
is susceptible of appropriation or not had come up in its jurisprudence41.
Drawing on its treatment of low-tide elevations situated within a coastal
State’s territorial sea in the Qatar v. Bahrain case42, the Court indicated
that it:
“… will proceed on the basis of whether South Ledge lies within
the territorial waters generated by Pedra Branca/Pulau Batu
Puteh, which belongs to Singapore, or within those generated by
Middle Rocks, which belongs to Malaysia. In this regard the
Court notes 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
40 Judgment, p. 99, para. 291.
41 Ibid., p. 100, para. 295.
42 Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, pp. 101-102, paras.
204-206.
43 Judgment, p. 101, para. 297.
- Page 20 -
2.17 In adopting this approach, the Court was fully aware that in the Special
Agreement and the Parties’ final submissions in the original case, it had
been “specifically asked to decide the matter of sovereignty separately for
each of the three maritime features”44. At the same time, it was also
conscious of the fact that it had not been mandated by the Parties “to draw
the line of delimitation with respect to the territorial waters of Malaysia
and Singapore in the area in question”45. Similarly, the Court was not
mandated to rule on the extent of the respective maritime entitlements of
the Parties in the area, or whether South Ledge fell within the territorial
sea of one or the other party, since that would have trespassed onto
delimitation questions for which the Court had no jurisdiction.
2.18 It was these factors that underlay the Court’s precisely crafted decision
with respect to sovereignty over South Ledge. The dispositif was tailored
to the legal considerations applicable to South Ledge. As the Court stated:
“In these circumstances, the Court concludes that for the reasons
explained above sovereignty over South Ledge, as a low-tide
elevation, belongs to the State in the territorial waters of which it
is located.”46
2.19 That decision is clear. Contrary to Malaysia’s contention, the Court’s
reasoning on South Ledge is not “far from unambiguous”47. Nor is there
any merit to Malaysia’s criticism of the Court when Malaysia alleges that
the operative part of the Judgment is “incomplete”48. The Court
44 Judgment, p. 101, para. 298.
45 Ibid.
46 Judgment, p. 101, para. 299. See also Judgment, p. 102, para. 300(3).
47 Malaysia’s Written Comments, para. 40.
48 Ibid., para. 11.
- Page 21 -
recognised that there were “special problems”49 associated with South
Ledge due to the fact that, unlike Pedra Branca and Middle Rocks, South
Ledge is a low-tide elevation. The Court’s reasoning that led to its
decision on South Ledge is clearly explained at paragraphs 291 to 299 of
the Judgment and is logical. In short, just as the first sub-paragraph of the
dispositif (concerning Pedra Branca) requires no interpretation, so also is
the third sub-paragraph (concerning South Ledge) equally clear; it
requires no interpretation.
C. Conclusions
2.20 From the foregoing, it is evident that in the Special Agreement the Parties
limited their request to the Court to determining sovereignty over the three
named features without asking the Court to decide any other issues such
as the existence or extent of the maritime entitlements generated by those
features. The Court respected the limits of its jurisdiction by ruling solely
on the question of sovereignty. The determinations on sovereignty that
the Court reached in fulfilling its jurisdictional mandate were perfectly
clear and require no interpretation.
49 Judgment, p. 99, para. 291.
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CHAPTER III
MALAYSIA’S REQUEST DOES NOT MEET
THE CONDITIONS FOR INTERPRETATION
3.1 Malaysia’s Request for Interpretation fails to demonstrate that the
conditions for a request for interpretation under Article 60 of the Statute
of the Court are satisfied, and its Written Comments do nothing to remedy
these deficiencies.
3.2 There is no dispute between the Parties within the meaning of Article 60
of the Statute of the Court. If anything, the Parties disagreed on the
existence and the extent of their respective maritime entitlements, a
question that could not be and was not addressed by the Court. The
attempt in Malaysia’s Written Comments to construct ex post facto a
dispute that never existed cannot cure this elementary defect.
3.3 Furthermore, Malaysia’s Request for Interpretation is inadmissible. It
does not seek “clarification of the meaning and the scope of what the
Court has decided with binding force”50. As confirmed by Malaysia’s
submissions, the Request for Interpretation seeks a decision of the Court,
close to ten years after the Judgment was rendered in the original case, on
issues and questions that the Court could not and did not decide in the
Judgment.
50 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum
Case, I.C.J. Reports 1950, p. 402. See also, 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, I.C.J. Reports
2013, p. 303, para. 55.
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A. There Is No Dispute as to the Meaning or Scope of the Judgment
3.4 Nothing in the Request for Interpretation or Malaysia’s Written
Comments discloses the existence of a dispute between the Parties on the
meaning or scope of the Judgment. Even if, as Malaysia asserts, the
concept of “dispute” in Article 60 is considered to be “more flexible in
scope” and “less stringent in its requirements” than that under
Article 3651, there still needs to be a dispute (contestation) as to the
meaning or scope of the Judgment. For a dispute to exist under Article 60,
it is not sufficient for Malaysia to simply affirm that it disagrees with
Singapore as to the existence or extent of maritime entitlements of Pedra
Branca and on the question whether South Ledge is situated in the
territorial waters of Malaysia or Singapore. It is also not sufficient for
Malaysia to deny Singapore’s position that the Judgment is clear52. As the
Court explained in the Asylum Case:
“…one cannot treat as a dispute, in the sense of that provision
[i.e. Article 60], the mere fact that one Party finds the judgment
obscure when the other considers it to be perfectly clear. A
dispute requires a divergence of views between the parties on
definite points; Article 79, paragraph 2 [now Article 98,
paragraph 2], of the Rules confirms this condition by stating that
the application for interpretation ‘shall specify the precise point
or points in dispute’.”53
51 Malaysia’s Written Comments, para. 77, citing 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, I.C.J. Reports 2008,
p. 325, para. 53.
52 Ibid., para. 72.
53 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum
Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 403.
- Page 25 -
Malaysia has to demonstrate a divergence of views between the Parties
on definite points concerning the meaning or scope of the Judgment54. In
other words, Malaysia has to demonstrate that its allegations concerning
the meaning or scope of the Judgment “are of a sufficiently plausible
character to warrant a conclusion” that the divergence falls under
Article 60 of the Statute55.
3.5 In the present case, there is simply no basis for requesting an interpretation
under Article 60. The operative paragraphs of the Judgment are clear.
They say what they mean and mean what they say. Malaysia’s argument
that this fact is immaterial56 is erroneous. The Court declared Nigeria’s
Request for Interpretation concerning its judgment on preliminary
objections in the Land and Maritime Boundary between Cameroon and
Nigeria case inadmissible precisely because the judgment was clear57. It
noted that entertaining a request for interpretation in such circumstances
would call “into question the effect of the Judgment concerned as res
54 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum
Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 403. See also
Written Observations of Singapore, paras. 3.20 and 4.30, where Singapore
pointed out that Malaysia has not satisfied the requirements of Article 60 of the
Statute of the Court or Article 98, paragraph 2, of the Rules of Court, the latter
of which obliges a party seeking interpretation to indicate the “precise point or
points in dispute as to the meaning or scope of the judgment”.
55 Ambatielos (Greece v. United Kingdom), Merits, Judgment, I.C.J.
Reports 1953, p. 18. See also Oil Platforms (Islamic Republic of Iran v. United
States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II),
p. 810, para. 16 and Separate Opinion of Judge Higgins, ibid., pp. 856-857,
paras. 32-35; and Pulp Mills on the River Uruguay (Argentina v. Uruguay),
Provisional Measures, Order of 13 July 2006, Separate Opinion of Judge
Abraham, I.C.J. Reports 2006, pp. 140-141, paras. 10-11.
56 Malaysia’s Written Comments, para. 103.
57 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, I.C.J. Reports 1999, pp. 38-39, para. 16.
- Page 26 -
judicata”58. Yet this is exactly what Malaysia attempts to do in the present
case.
3.6 Moreover, no genuine dispute as to the meaning or scope of the Judgment
exists between the Parties, nor is the Request for Interpretation capable of
giving rise to a new dispute on this matter.
3.7 In Malaysia’s Written Comments, Malaysia seeks to sweep aside
Singapore’s account of the statements made by the Malaysian government
and the work of the Malaysia-Singapore Joint Technical Committee on
the Implementation of the International Court of Justice Judgment on
Pedra Branca, Middle Rocks and South Ledge (“MSJTC”), and
downplay the fact that these all conclusively show the lack of a dispute
under Article 60 of the Statute of the Court.
3.8 Malaysia concedes that the statements of its officials and the work of the
MSJTC “clearly demonstrate Malaysia’s willingness to work together
with Singapore towards a bilateral delimitation of the Parties’ maritime
entitlements”59. However, Malaysia now belatedly tries to explain its
conduct away by making a claim which defies logic: in its Written
Comments, Malaysia asserts that 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
58 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, I.C.J. Reports 1999, p. 39, para. 16.
59 Malaysia’s Written Comments, para. 85. See also Malaysia’s Written
Comments, para. 92.
- Page 27 -
Court decided with binding effect”60. Malaysia’s assertion makes no sense
and is contradicted by the clear weight of the evidence before the Court.
Malaysia cannot escape the fact that the statements of its officials and the
work of the MSJTC demonstrate that both Parties understood perfectly
well the meaning and the scope of the Judgment, and that the next step
following the Judgment was for the Parties to delimit their overlapping
maritime entitlements. These were not mere statements and indications of
“goodwill and co-operation with Singapore”61, as Malaysia now
disingenuously claims.
3.9 As Malaysia itself acknowledges62, Malaysia’s Foreign Minister accepted
in 2008 that after the MSJTC completed its work, “the territorial waters
of Batu Puteh [i.e. Pedra Branca] will be determined, similarly also [the
waters of] Middle Rocks and also South Ledge – whether it overlaps with
the waters of Middle Rocks or not, will be determined”63. In other words,
the Malaysian authorities were well aware that the Court did not – and
could not – determine the issue of the Parties’ maritime and airspace
entitlements or the delimitation of the waters around Pedra Branca in the
original case. These were questions left for the Parties to agree upon. The
statement of Malaysia’s then Prime Minister concerning South Ledge is
to the same effect. Rather than confirming that the Court decided that
South Ledge is in Malaysian waters, the Prime Minister considered that
“[w]e need to determine the demarcation line to show that South Ledge is
60 Malaysia’s Written Comments, para. 85. See also Malaysia’s Written
Comments, para 92.
61 Ibid., para. 85.
62 See Malaysia’s Written Comments, para. 86.
63 Singapore’s Written Observations, para. 1.16, and Annex 16 to Singapore’s
Written Observations.
- Page 28 -
in our waters”64. If, as Malaysia now claims, it was of the opinion that the
Court had ruled that South Ledge was in Malaysian waters, it would not
have been necessary for the Parties to determine the “demarcation line”.
Instead, Malaysia’s repeated acknowledgments that maritime delimitation
is necessary65 are clear evidence that Malaysia considers South Ledge to
be located in an area in which the Parties have overlapping maritime
entitlements in the light of the Judgment.
3.10 In its Written Comments, Malaysia also tries to play down the
significance of the maritime chart published by the Malaysian Chief of
Navy on 21 August 2017 via social media, which Singapore highlighted
in its Written Observations. Malaysia describes this chart as merely
“marking out the extent of Singapore’s most ambitious claims to maritime
entitlements”66. This post-hoc characterisation is unconvincing when
measured against the clear words and context of the chart published by
Malaysia. It remains illogical for Malaysia to assert that it has consistently
disagreed with Singapore over whether the Judgment means that Pedra
Branca is entitled to territorial waters on one hand, but on the other hand
publish a chart setting out the “potential territorial sea” generated by Pedra
Branca. Malaysia’s Written Comments do nothing to address the point
64 See Malaysia’s Written Comments, para. 87; Singapore’s Written Observations,
para. 4.11, and Annex 7 to Singapore’s Written Observations.
65 For instance, at para. 85 of Malaysia’s Written Comments, Malaysia refers to
“Malaysia’s willingness to work together with Singapore towards a bilateral
delimitation of the Parties’ maritime entitlements”; and at para. 86 of Malaysia’s
Written Comments, Malaysia notes that “[i]t should not be surprising, therefore,
that Malaysia considered it necessary for the delimitation to occur as soon as
possible”.
66 Malaysia’s Written Comments, para. 117.
- Page 29 -
that the chart demonstrates the lack of any dispute over the meaning or
scope of the Judgment concerning sovereignty over Pedra Branca67.
3.11 The Parties’ common understanding of the meaning and scope of the
Judgment is further demonstrated by the establishment of, and the work
carried out within, the MSJTC. Its task was always aimed at the
delimitation of the Parties’ respective entitlements around Pedra Branca
and Middle Rocks in the light of the Court’s rulings. The Parties
considered that these were questions left for the Parties to agree upon.
Rather than showing merely “goodwill and co-operation with Singapore”,
the existence, the mandate and the work of the MSJTC conclusively
demonstrate that, in the Parties’ understanding, the Judgment did not
determine the territorial sea entitlements of Pedra Branca or Middle
Rocks, did not rule that the waters surrounding Pedra Branca belong
solely to Malaysia, and did not rule that South Ledge fell within the
territorial sea of Malaysia. Otherwise, the entire exercise would have been
a waste of time and resources for both sides68. It defies logic for Malaysia
to have engaged in such a long process aimed at maritime delimitation if,
as it only now claims, it was of the opinion that all the waters in the area
were Malaysian waters.
3.12 This is confirmed by the fact that there is no mention anywhere in the
records of the numerous meetings of the MSJTC and its sub-committees
– which run into hundreds of pages – that Malaysia’s interpretation of the
Judgment is that which it now seeks from the Court.
3.13 Malaysia’s only response is to argue unconvincingly that the Parties had
participated in the work of the MSJTC “on the express proviso that all
67 Singapore’s Written Observations, para. 3.17.
68 Ibid., para. 3.11.
- Page 30 -
discussions held and all actions taken would be ‘without prejudice to
issues of sovereignty and eventual delimitation of maritime
boundaries’”69. However, contrary to the spin which Malaysia is trying to
put on it, this demonstrates precisely that the Parties were in agreement
that such delimitation was still to be undertaken and would take place,
even if both sides wanted to preserve their respective positions as to how
the delimitation would be effectuated.
3.14 Moreover, Malaysia’s assertions in the Written Comments contrast
sharply with the clear statements made by its own Agent in the original
case, Tan Sri Kadir Mohamad. In a book published by the Malaysian
Ministry of Foreign Affairs in 2009, he noted that:
“The Court subsequently ruled in favour of Malaysia regarding
the status of Middle Rocks. However, the Court refrained from
taking a position on the status of SL [i.e. South Ledge] as it noted
that SL fell within the apparently overlapping territorial waters
generated by the mainland of Malaysia, Pedra Branca and
Middle Rocks and as such, left the status of SL to be subsequently
determined by negotiation between Malaysia and Singapore.”
…
“As for South Ledge, the Court reached the conclusion that
sovereignty over SL would belong to the State in the territorial
waters of which it is located as this low-tide elevation fell within
the apparently overlapping territorial waters generated by the
mainland of Malaysia, Pedra Branca/BP and MR [i.e. Middle
Rocks], and as the Parties had not mandated the Court to draw
the line of delimitation with respect to their territorial waters in
the area.
The Court’s ruling means that the remaining question of
establishing the sovereign ownership over South Ledge does not
involve the issue of proving title but merely its geographical
location in the context of maritime boundaries. …”
69 Malaysia’s Written Comments, para. 93.
- Page 31 -
…
“As such, what the Court has conferred upon Singapore, in
addition to the “white rock”, is a certain amount of territorial
waters around Pedra Branca.”
…
“All three features — Middle Rocks, South Ledge as well as Pedra
Branca — will generate their respective maritime areas.”
…
“All the three features are therefore only entitled to a 12 nautical
mile territorial sea. …”70
[Emphasis added; original footnotes omitted]
3.15 The above statements were made in 2009. The former Agent of Malaysia
repeated the same points in yet another book published in 2015:
“In accordance with the Law of the Sea, Middle Rocks would
now have its own entitlements to territorial sea around it. Pedra
Branca is surrounded by the Johor coast as well as by Middle
Rocks. This further means that Pedra Branca's territorial sea
westwards, northwards and southwards will be less than 12
nautical miles. …”
…
“The ownership of South Ledge will be determined only after a
delimitation of the territorial sea in the area surrounding Batu
Puteh, Middle Rocks and South Ledge. That task of establishing
the maritime boundaries in the area has fallen on Malaysia and
Singapore to undertake as a bilateral undertaking.”
70 Kadir Mohamad, “Malaysia’s Territorial Disputes – Two Cases at the ICJ”,
Institute of Diplomacy and Foreign Relations, Ministry of Foreign Affairs,
Malaysia, 2009, pp. 18-19, 21-22 and 24, attached as Annex 1 to this Response.
- Page 32 -
…
“The Court’s decision concerning South Ledge also means that
the remaining question of establishing the sovereign ownership
of South Ledge no longer involves any necessity of proving title.
What remains to be established is its geographical location
within the context of maritime boundaries.”
…
“There was mutual agreement [by the MJSTC] to proceed stepby-
step, the first being to undertake a joint survey of the area
between Pedra Branca and Middle Rocks. The purpose was to
gather data for the delimitation process. …”
…
“At the time this book went to the printers, the Joint Technical
Committee had taken a decision to commence the process of
delimitation. This exercise should also determine the ownership
of South Ledge. This responsibility falls on the Joint Technical
Committee.
The task of delimiting the maritime boundaries around Pedra
Branca, Middle Rocks and South Ledge is an urgent matter. It is
not only necessary to determine the sovereign status of South
Ledge, but also vital for resolving the long outstanding competing
claims over airspace in the same area.”71
[Emphasis added; original footnotes omitted.]
3.16 These unequivocal statements, across a six-year span by no less than the
Agent of Malaysia in the original case, completely contradict Malaysia’s
mischaracterisation of the Parties’ post-Judgment conduct. They
demonstrate exactly how hollow Malaysia’s assertions of a dispute
between the Parties over the meaning or scope of the Judgment are.
71 Kadir Mohamad, “Malaysia / Singapore – Fifty Years of Contentions”, The
Other Press Sdn. Bhd., 2015, pp. 123-127, attached as Annex 2 to this
Response.
- Page 33 -
3.17 In Malaysia’s Written Comments, Malaysia claims that “the Parties’
lengthy and vigorous diplomatic correspondence on the matter”72 is “the
most significant evidence of the obvious divergence in the Parties’
views”73. But the diplomatic protests that were exchanged between the
Parties in respect of the status of the waters around Pedra Branca and in
respect of South Ledge do not establish a dispute over the meaning or
scope of the Judgment.
3.18 These protests show something entirely different: that there was a
difference of views concerning the extent of the maritime entitlements of
Pedra Branca and Middle Rocks and the Malaysian mainland. This
difference of views did not arise because the Judgment is unclear; on the
contrary, it only arose because it was crystal clear, from the Judgment,
that these issues were not matters which could be decided by the Court.
These were matters left to the Parties. The question of the extent of the
respective maritime entitlements of the Parties in the area around Pedra
Branca and Middle Rocks was obviously not decided by the Court and
could not have been decided by it74. In short, the fact that the Parties may
have a dispute over issues that the Court was not mandated to decide does
not transform that dispute into one concerning the meaning and scope of
the Judgment. Therefore, the questions whether Pedra Branca is entitled
to any territorial waters and whether South Ledge falls within the
territorial waters of Malaysia or Singapore “cannot be submitted to it [i.e.
the Court] for interpretation under Article 60 of the Statute”75.
72 Malaysia’s Written Comments, para. 89.
73 Ibid., para. 80.
74 See paras. 2.3-2.6, 2.11-2.12 and 2.15-2.19 above.
75 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, I.C.J. Reports 2009,
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3.19 For all of the above reasons, Malaysia’s Request for Interpretation falls
outside the scope of Article 60 because it does not concern a dispute over
the meaning or scope of what the Court decided with binding force in the
Judgment76.
B. Malaysia’s Submissions Relating to Pedra Branca and South Ledge
Concern Matters Outside the Scope of the Judgment and Are
Misconceived
3.20 Malaysia makes great efforts in its Written Comments to build up a
position that is designed to give the appearance of being contrary to
Singapore’s understanding of the Judgment. In fact, Malaysia invents a
dispute that, it claims, concerns the meaning or scope of the Judgment on
the basis of Singapore’s Written Observations. This artificiallyconstructed
dispute cannot fall under Article 60 of the Statute.
3.21 Malaysia’s “dispute” remains outside the scope of the Judgment and is
misconceived. All the issues raised by Malaysia are questions which the
Court was not called upon to answer. The Request for Interpretation does
not attempt to seek a genuine interpretation of the Judgment (and what the
Court decided), but seeks a decision of the Court on new issues that were
and remain outside its jurisdiction.
1. Malaysia’s Request Regarding Pedra Branca Is Inadmissible
3.22 As noted in Chapter II above, Malaysia acknowledges that the Court’s
ruling that sovereignty over the territory of Pedra Branca belongs to
p. 17, paras. 44-45, citing with approval Request for Interpretation of the
Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru),
Judgment, I.C.J. Reports 1950, p. 402.
76 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum
Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402.
- Page 35 -
Singapore is “unambiguous”77. However, Malaysia now contends that the
notion of “sovereignty” requires clarification because it is “not clear how
far this extends or what exactly it means”78.
3.23 More specifically, Malaysia argues that “the norm of sovereignty over the
territorial sea is not absolute”79, and that “in the particular circumstances”
the island of Pedra Branca is not entitled to any territorial sea80. Malaysia
then adds – inconsistently with its own submission – that, even if the
Court accepted that Singapore’s territorial sovereignty over Pedra Branca
extended into the sea, it did so “to an uncertain breadth”81. On this basis,
Malaysia asserts that:
“… 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 Court as to what it had
intended in order that the Parties may proceed successfully to
resolve the dispute”82 .
3.24 This line of argument is wholly untenable.
(a) First, as shown in Chapter II, the Court’s determination on
sovereignty was perfectly clear and requires no interpretation. In
the Special Agreement, the Parties did not ask the Court to rule on
the existence or breadth of the maritime entitlements of Pedra
77 Malaysia’s Written Comments, para. 23.
78 Ibid.
79 Ibid., para. 24.
80 Ibid., para. 27.
81 Ibid., para. 33.
82 Ibid., para. 36.
- Page 36 -
Branca (or of Middle Rocks or South Ledge); in the proceedings
for the original case, they did not argue these points in their
pleadings or make submissions on them; and the Court did not
decide such issues in the Judgment. As the Permanent Court has
clearly stated, under Article 60 of the Statute, an interpretation
“cannot go beyond the limits of [the] judgment itself, which are
fixed by the special agreement”83.
(b) Second, as has been explained in the previous Section, while the
Parties do disagree over the extent of their respective maritime
entitlements in the area, this is not a dispute which arises from the
words of the Judgment and is therefore not a dispute over the
meaning or scope of the Judgment. In the absence of a genuine
dispute over what the Court decided, the Request for Interpretation
lacks a basis of jurisdiction.
(c) Third, given that the Request for Interpretation seeks answers to
questions that were not before the Court in the original case and
that the Court did not decide in the Judgment, it goes beyond the
permissible scope of a request for interpretation under Article 60
of the Statute of the Court, and is inadmissible.
3.25 In this sub-section, Singapore will address this third point: the
inadmissibility of Malaysia’s first submission that the Court should
adjudge and declare, by means of interpretation, that: “The waters
surrounding Pedra Branca/Pulau Batu Puteh remain within the territorial
waters of Malaysia”84. Merely juxtaposing this request with the actual
83 Interpretation of Judgment No. 3 (Treaty of Neuilly), Judgment, 1925, P.C.I.J.
Series A, No. 4, p.7.
84 Malaysia’s Written Comments, para. 122, citing para. 56(a) of the Request for
Interpretation.
- Page 37 -
wording of the Court’s dispositif – “sovereignty over Pedra Branca/Pulau
Batu Puteh belongs to the Republic of Singapore” – already makes it
apparent that Malaysia is seeking to have the Court rewrite the Judgment
by asking it to now make a ruling that the Court was not asked to, and did
not, make.
3.26 Before taking up this defect in Malaysia’s request, it is necessary to make
some brief remarks on the new thesis, never once mentioned by Malaysia
in all of the years since the Judgment was rendered, that Malaysia now
advances in its Written Comments – namely, that Pedra Branca has no
territorial waters85. This is completely at odds with basic principles of the
law of the sea, the Court’s jurisprudence and statements made by the
Court in the Judgment.
3.27 Malaysia has sought to read words into the Judgment which are simply
not there, by asserting in its Written Comments that what the Court did in
the Judgment was effectively “to excise the land territory of Pedra
Branca/Pulau Batu Puteh from Malaysian sovereignty, leaving by
necessary implication all of the remainder within Malaysian
sovereignty”86. Malaysia then introduces as an Appendix to its Written
Comments a note on the constitutional status of the relevant area which is
designed to buttress its argument that all the maritime areas around Pedra
Branca are Malaysian87.
3.28 The Appendix is completely irrelevant. The documents cited by Malaysia
in that portion of its Written Comments were all discussed in the original
case, and they had no bearing on the Court’s ruling that sovereignty over
85 See, for example, paras. 27 and 39 of Malaysia’s Written Comments, where
Malaysia makes this assertion for the first time in the present proceedings.
86 Malaysia’s Written Comments, para. 27.
87 Ibid., paras. 61-70.
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Pedra Branca belongs to Singapore. Moreover, Malaysia’s claim that the
Court simply “excised” Pedra Branca from what were otherwise
Malaysian areas bears no relation to what the Court actually said. The
relevant part of the Court’s reasoning in the Judgment leading to its
decision that sovereignty over Pedra Branca belongs to Singapore reads
as follows:
“The Court is of the opinion that the relevant facts, including the
conduct of the Parties, previously reviewed and summarized in
the two preceding paragraphs, reflect a convergent evolution of
the positions of the Parties regarding title to Pedra Branca/Pulau
Batu Puteh. The Court concludes, especially by reference to the
conduct of Singapore and its predecessors à titre de souverain,
taken together with the conduct of Malaysia and its predecessors
including their failure to respond to the conduct of Singapore and
its predecessors, that by 1980 sovereignty over Pedra
Branca/Pulau Batu Puteh had passed to Singapore.”88
3.29 That statement, together with the operative clause of the Judgment, in no
way suggests that “all of the remainder” of the maritime zones around
Pedra Branca are under Malaysia’s sovereignty. On the contrary, under
basic principles of international law, the island of Pedra Branca generates
its maritime zones. This is crystal clear from Article 121 of the United
Nations Convention on the Law of the Sea (UNCLOS), to which
Singapore and Malaysia are parties, which provides that islands, whatever
their size or character, are entitled to have inter alia a territorial sea. This
is also well settled in the Court’s jurisprudence89. Malaysia’s submission
88 Judgment, p. 96, para. 276.
89 As the Court noted in its judgment in the Territorial and Maritime Dispute
(Nicaragua v. Colombia) case, “even an island which falls within the exception
stated in Article 121, paragraph 3, of UNCLOS is entitled to a territorial sea”.
And the Court added: “that entitlement to a territorial sea is the same as that of
any other land territory. Whatever the position may have been in the past,
international law today sets the breadth of the territorial sea which the coastal
States has the right to establish at 12 nautical miles”, I.C.J. Reports 2012, p.
690, paras. 176 and 177. The same principle was confirmed by the tribunal in
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is moreover inconsistent with several statements made by the Court in the
Judgment, all of which imply that Pedra Branca has a territorial sea90. And
it cannot be squared with the Parties’ establishment of the MSJTC after
the Judgment was delivered. That body was engaged in significant
preparatory work for, and later began work on, maritime boundary
delimitation in the area91. The MSJTC also successfully reached
agreement on practical arrangements, such as the continuation of
traditional fishing activities by the fishermen of both countries, and on the
the Dubai-Sharjah Border Arbitration, where the tribunal stated, at p. 673:
“every island, no matter how small, has its belt of territorial sea”, I.L.R., Vol.
91, p. 543.
90 For example, the Court found relevant for its decision on sovereignty over Pedra
Branca various examples where Singapore or its predecessors investigated
“shipwrecks in the waters around Pedra Branca/Pulau Batu Puteh” – conduct
that the Court noted “gives significant support to the Singapore case”
(Judgment, pp. 82-83, Section 5.4.6. (a) and para. 234). Similarly, the Court
attached relevance for sovereignty purposes to the fact that, in the 1970s,
Singapore’s permission was required for Malaysian officials to carry out
surveys “of the waters surrounding the island [i.e. Pedra Branca]”, further
conduct that supported Singapore’s case (Judgment, pp. 84-85, paras. 238-239).
In addition, the Judgment quotes the Colonial Secretary of Singapore’s letter of
12 June 1953 that gave rise to the reply from Johor that “the Johore Government
does not claim ownership of Pedra Branca”, which sought information “relevant
to the determination of the Colony’s territorial waters” (Judgment, p. 73, para.
192 and p.75, para 204). And the Court further noted that the reply of Johor
“does not challenge in any way whatever action the Colony might have been
contemplating to propose in relation to the determination of its territorial waters
around Pedra Branca/Pulau Batu Puteh” (Judgment, p. 79, para. 221).
Finally, the Court’s ruling on South Ledge was predicated on the basis of
“whether South Ledge lies within the territorial waters generated by Pedra
Branca/Pulau Batu Puteh, which belongs to Singapore, or within those
generated by Middle Rocks, which belongs to Malaysia” (Judgment, p. 101,
para. 297). The Court further observed that South Ledge “falls within the
apparently overlapping territorial waters generated by the mainland of
Malaysia, Pedra Branca/Pulau Batu Puteh and Middle Rocks”. See also paras.
3.35-3.44 below.
91 See Singapore’s Written Observations, paras. 1.19-1.26.
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rendering of assistance in the event of an incident at sea92. Obviously, all
this was predicated on the premise that Pedra Branca, like Middle Rocks,
generated maritime entitlements, the extent of which needed to be
delimited between the Parties.
3.30 While Malaysia attempts to argue the contrary in its Written Comments,
it does not cite a single example where an island has been denied a
territorial sea. The extent of any coastal State’s maritime entitlements may
be subject to delimitation with a neighbouring State. But that is not the
issue in the present proceedings, any more than it was in the original case.
As the Court made clear in the Judgment:
“… the Court has not been mandated by the Parties to draw the
line of delimitation with respect to the territorial waters of
Malaysia and Singapore in the area in question.”93
3.31 Singapore mentions these points not to join issue with Malaysia on the
question of an island’s maritime entitlements, but rather to show that
Malaysia is arguing a matter that was not before the Court in the original
case and over which the Court had no jurisdiction. In other words,
Malaysia is seeking by means of interpretation to invite the Court to
answer questions that were neither addressed by the Parties, nor decided
in the Judgment.
3.32 In Singapore’s Written Observations, Singapore referred to the Court’s
jurisprudence constante to the effect that:
“… the Court must keep strictly within the limits of the original
judgment and cannot question matters that were settled therein
92 See Singapore’s Written Observations, paras. 1.23-1.24.
93 Judgment, p. 101, para. 298.
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with binding force, nor can it provide answers to questions the
Court did not decide in the original judgment.”94
3.33 Malaysia initially purports to accept these principles. It states: “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”95. But it
becomes apparent that this is mere lip service. Malaysia flouts the rules
on admissibility by asking the Court to declare that, in ruling that
sovereignty over Pedra Branca belongs to Singapore, the Judgment should
be interpreted to mean that Pedra Branca “does not generate any maritime
zone”96, and that accordingly, “the waters surrounding Pedra
Branca/Pulau Batu Puteh remain within the territorial waters of
Malaysia”97. In the alternative, Malaysia argues that the breadth of any
maritime zone is uncertain98. Yet it is abundantly clear that these are
questions that the Court did not decide in the Judgment because it had no
jurisdiction to do so. Malaysia’s propositions reveal that what it is seeking
in these proceedings is not an interpretation of the Judgment, but rather
an opportunity to argue and have the Court determine issues that did not
form part of the original case.
94 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, I.C.J. Reports 2013, p. 306, para. 66. See also, Request
for Interpretation of the Judgment of 20 November 1950 in the Asylum Case
(Columbia v. Peru), I.C.J. Reports 1950, p. 402; Application for Revision and
Interpretation of the Judgment of 24 February 1982 in the Case concerning the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab
Jamahiriya), Judgment, I.C.J. Reports 1985, p. 223, para. 56.
95 Malaysia’s Written Comments, para. 112.
96 Ibid., para. 120 d.
97 Ibid., para. 122, citing para. 56(a) of the Request for Interpretation.
98 Ibid., para. 33.
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3.34 In short, Malaysia is attempting to utilise interpretation proceedings in
order to graft onto the original case a different dispute concerning a
different subject-matter that had never seen the light of day before the
Request for Interpretation and Malaysia’s Written Comments. Malaysia’s
submission regarding Pedra Branca is therefore inadmissible and should
be rejected.
2. Malaysia’s Request Regarding South Ledge Is Inadmissible
3.35 In the third paragraph of the operative clause, the Court held “that
sovereignty over South Ledge belongs to the State in the territorial waters
of which it is located”99. This is what the Court decided. Nothing more,
and nothing less. Indeed, considering the fact that sovereignty over South
Ledge as a low-tide elevation100 depends on the territorial sea in which it
falls101, and that the Court had not been “mandated by the Parties to draw
the line of delimitation with respect to the territorial waters of Malaysia
and Singapore in the area in question”102, the Court could not have
decided anything else103. In particular, it could not, and did not, decide
whether South Ledge is located within the territorial waters of Malaysia
or Singapore. Rather, the Court noted that “South Ledge falls within the
apparently overlapping territorial waters generated by the mainland of
Malaysia, Pedra Branca/Pulau Batu Puteh and Middle Rocks”104, and
properly refrained from dealing with the question any further.
99 Judgment, p. 102, para. 300(3).
100 Ibid., p. 99, para. 291.
101 Ibid., pp. 100-101, paras. 295-297.
102 Ibid., p. 101, para. 298.
103 See paras. 2.16-2.19 above.
104 Judgment, p. 101, para. 297. The French text of this paragraph of the Judgment
reads: “South Ledge relève des eaux territoriales générées par la Malaisie
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3.36 In Malaysia’s Written Comments, Malaysia has substantially changed its
position in respect of the alleged dispute with Singapore concerning South
Ledge. In the Request for Interpretation, it alleged that Singapore’s
position was that the Court did not decide the question of sovereignty over
South Ledge105, whereas Malaysia considered that the Court “has
discharged its function under the Special Agreement” and attributed
sovereignty to Malaysia106.
3.37 Having had sight of Singapore’s Written Observations, which
categorically rejected these unfounded allegations107, Malaysia has done
an about-turn and now claims that the Judgment is “far from
unambiguous”108, “incomplete, and thus uncertain in its meaning and
scope”109 , and “introduced a strong element of uncertainty”110. It even
suggests that the Judgment did not determine the issue of sovereignty,
because, it claims, “it is unclear which factors may apply to determine
sovereignty, which was indeed the very question put to the Court”111.
3.38 Such a blunt criticism of the Judgment is unfounded, ill-conceived and
does not advance Malaysia’s case any further. Even if these accusations
continentale, par Pedra Branca/Pulau Batu Puteh et par Middle Rocks, eaux
territoriales qui semblent se chevaucher”.
105 Request for Interpretation, para. 45.
106 Ibid., para. 46.
107 Singapore’s Written Observations, paras. 4.2-4.3.
108 Malaysia’s Written Comments, para. 40.
109 Malaysia’s Written Comments, para. 11. See also Malaysia’s Written
Comments, para. 44.
110 Ibid., para. 44.
111 Ibid., para. 44. See also Malaysia’s Written Comments, para. 45.
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were well-founded (quod non), the Court would not be in a position to
remedy the alleged infra petita ruling by way of an interpretation. As
recalled above112 and accepted by Malaysia, Article 60 of the Statute of
the Court exclusively empowers the Court to entertain requests for
interpretation, but not requests that seek answers to questions that were
not decided (rightly or wrongly) by the Court. The Court’s duty is to
interpret the Judgment, not revise it113.
3.39 Notwithstanding Malaysia’s assertion that the Court left the question of
sovereignty over South Ledge undecided, Malaysia maintains that the
Court “by implication” decided that Malaysia has sovereignty over South
Ledge114. But Malaysia cannot have it both ways: the Court cannot have
failed to decide upon the issue of sovereignty over South Ledge, and still
have decided the issue with res judicata effect for the Parties.
3.40 As explained in Chapter II above, the Court fully discharged its task under
the Special Agreement and did so within the limits set by the Parties in
the Special Agreement. Its decision concerning sovereignty over South
Ledge is entirely clear. It did not decide, and could not have decided, that
South Ledge falls within the territorial waters of Malaysia any more than
that it falls within the territorial waters of Singapore. Malaysia twists the
Court’s ruling – and introduces issues that were not decided by the Court
– in order to suit its own interest and to effectively appeal the Judgment.
3.41 Malaysia also contends that, because of its proximity to Middle Rocks
and the general geographic configuration of the area, South Ledge is
112 See para. 3.32 above.
113 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second
phase, Advisory Opinion, I.C.J. Reports 1950, p. 229.
114 Malaysia’s Written Comments, paras. 12 and 56.
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subject to Malaysia’s sovereignty115. This is simply not what the Court
decided. As the Court recalled in the Judgment, “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”116.
Therefore, the only question is whether the low-tide elevation is situated
in the territorial waters of the State. This cannot be decided solely on the
basis of proximity. On the contrary, the matter involves a question of
delimitation, concerning which proximity can be one element – among
others – to be taken into consideration, but by no means the only one.
However, for present purposes the key point is that this is a question over
which the Court had no jurisdiction under the Special Agreement117, and
which it cannot now decide upon under Article 60.
3.42 In any event, Malaysia made the same argument of proximity before the
Court in the original case118. The Court was aware of Malaysia’s argument
and recalled it in the Judgment119. Yet, it did not rule that, because of its
proximity to Middle Rocks, South Ledge was under Malaysia’s
sovereignty. This is the end of the question.
3.43 Malaysia now contends in its Written Comments that South Ledge
belongs to Malaysia because Pedra Branca does not generate a territorial
sea of its own and, therefore, South Ledge must lie within Malaysia’s
115 Malaysia’s Written Comments, paras. 46, 56 and 60.
116 Judgment, p. 100, para. 295, citing Maritime Delimitation and Territorial
Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment,
I.C.J. Reports 2001, p. 101, para. 204.
117 Ibid., p. 101, para. 298.
118 Counter-Memorial of Malaysia, para. 162; Reply of Malaysia, para. 418;
CR 2007/26, 15 November 2007, pp. 33-34, para. 38 (Professor Schrijver).
119 Judgment, pp. 99-100, para. 293.
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territorial sea120. As discussed in the previous sub-section121, this is an
entirely new argument that was not pleaded by the Parties or decided by
the Court in the original case, nor presented in the Request for
Interpretation. Moreover, during the oral hearing in November 2007 for
the original case, Malaysia took a different view. It explained that “the
sovereignty over PBP [i.e. Pulau Batu Puteh/Pedra Branca], Middle
Rocks and South Ledge is “plainly at issue”. Therefore, Singapore cannot
rely on the extension of its territorial waters from PBP [to claim Middle
Rocks and South Ledge], if its sovereignty over PBP is not
established”122. Malaysia therefore itself suggested in the original case
that Pedra Branca has territorial waters.
3.44 The extent of the Parties’ respective maritime entitlements arising from
the Judgment is a matter that has been left to the Parties. During the
interactions between both Parties after the Judgment, including their
discussions at the MSJTC123, Malaysia accepted that it was incumbent on
the Parties to engage in maritime delimitation, given their overlapping
entitlements in the area. Officials from the highest levels of the Malaysian
Government, including the Agent of Malaysia in the original case124,
acknowledged that the next step, following the rendering of the Judgment,
was the delimitation of the Parties’ respective maritime and airspace
entitlements. No such delimitation negotiations would have been
120 Malaysia’s Written Comments, para. 60.
121 See paras. 3.24 (a) and 3.26 above.
122 CR 2007/31, 23 November 2007, p. 27, para. 22 (Professor Schrijver).
123 See paras. 3.7-3.8, 3.11-3.13 and 3.29 above.
124 See paras. 3.14-3.16 above. See also Singapore’s Written Observations, paras.
1.15-1.17, 3.10, 4.11-4.18 and Appendix 2 to Singapore’s Written
Observations.
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necessary if the Judgment could be read as denying Pedra Branca any
maritime entitlements.
C. Conclusions
3.45 Malaysia has not met the conditions set out in Article 60 of the Statute of
the Court for a request for interpretation. No dispute exists between the
Parties concerning the meaning and scope of the Judgment. If anything, it
has become even more apparent, in Malaysia’s Written Comments, that
Malaysia has sought to manufacture a “dispute”. This does not cure the
fundamental defects in Malaysia’s case and the Request for Interpretation.
All of the issues that Malaysia now asks the Court to decide upon by way
of interpretation concern “questions which the Court was not called upon
by the Parties to answer”125 in the original case. Malaysia’s request does
not seek a genuine interpretation, but a new decision on new questions.
For these reasons, the Court has no jurisdiction over the Request for
Interpretation, which is in any event, inadmissible.
125 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum
Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 403.
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SUMMARY OF SINGAPORE’S REASONING
1. In accordance with the Court’s Practice Direction II, Singapore presents
a short summary of the reasoning developed in this Response.
2. Malaysia’s pleadings demonstrate that the Request for Interpretation is
not a genuine request under Article 60 of the Statute of the Court.
Malaysia is asking the Court, under the guise of interpretation, to go
beyond what it decided in the Judgment, and to rule on issues relating to
maritime entitlements and delimitation, which were never within the
Court’s mandate pursuant to the Special Agreement and which it did not
rule upon. This is an abuse of the Court’s process and should be rejected.
3. The Court fully carried out the task assigned to it by the Special
Agreement and clearly settled the case within its jurisdictional mandate:
(a) The Court’s decision that sovereignty over Pedra Branca belongs
to Singapore is clear. Malaysia’s attempt to conflate sovereignty
over Pedra Branca with the question of its maritime entitlements is
misguided and untenable.
(b) The Court’s decision on sovereignty over South Ledge is also clear
in view of South Ledge’s status as a low-tide elevation and the
Court’s lack of mandate to draw the line of delimitation with
respect to the territorial waters of Malaysia and Singapore in the
area in question.
4. Malaysia does not come anywhere close to meeting the jurisdictional and
admissibility requirements for a request for interpretation of the Judgment
under Article 60 of the Statute of the Court and Article 98, paragraph 2 of
the Rules of Court.
5. The Request for Interpretation lacks jurisdictional basis as there is no
genuine dispute as to the meaning or scope of the Judgment:
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(a) No such dispute existed between the Parties prior to the Request
for Interpretation. It is not sufficient for Malaysia to simply claim
in its written pleadings that it disagrees with Singapore. It must
also demonstrate that such dispute concerns the meaning or scope
of the Judgment. Malaysia has not done so.
(b) On the contrary, Malaysia’s assertions are contradicted by
numerous statements by the Malaysian Government, as well as the
extensive work and discussions of the MSJTC. These demonstrate
the common understanding between the Parties over the meaning
and scope of the Judgment, and that the next step was for the
Parties to focus on the extent of each sides’ maritime and airspace
entitlements.
(c) The diplomatic protests that were exchanged between the Parties
in respect of (i) the status of the waters around Pedra Branca and
(ii) South Ledge merely reflect a difference of views concerning
the different question of the Parties’ respective maritime and
airspace entitlements, not a dispute as to the meaning or scope of
the Judgment.
6. The Request for Interpretation is also inadmissible as Malaysia’s
submissions relating to Pedra Branca and South Ledge are outside the
scope of the Judgment, in addition to being misconceived:
(a) Malaysia’s new argument that Pedra Branca is not entitled to any
territorial sea is patently wrong as a matter of international law and
misrepresents the Judgment. However, this is not the issue for the
present proceedings. The Court was not mandated by the Special
Agreement to rule on the maritime entitlements of the features in
question, and those matters were consequently not decided by the
Court in the Judgment, properly so.
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(b) On sovereignty over South Ledge, Malaysia’s attacks on the
Judgment and the Court’s reasoning are unfounded and betray its
true intention to seek an appeal of the Judgment. Malaysia’s
contention that the Judgment has determined that South Ledge is
subject to Malaysia’s sovereignty in view of geographical
proximity and configuration is untenable. These involve
arguments about how to draw a line of delimitation, which the
Court expressly recognised it had no jurisdiction to engage in.
Malaysia’s alternative argument that South Ledge is located in
Malaysia’s territorial waters because Pedra Branca generates no
territorial sea, quite apart from being wrong in law, also asks the
Court to address a question which it could not and did not
determine.
7. In short, the Judgment is perfectly clear and requires no interpretation.
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SUBMISSION
For the reasons set out in Singapore’s Written Observations and in this Response,
and reserving the right to amend or add to this submission, the Republic of
Singapore requests the Court to adjudge and declare that Malaysia’s
submissions, and the Request for Interpretation, are rejected.
Attorney-General Lucien Wong
Agent for the Government of the Republic of Singapore
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CERTIFICATION
I have the honour to certify that the documents annexed to this Response are true
copies and conform to the original documents.
Attorney-General Lucien Wong
Agent for the Government of the Republic of Singapore
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LIST OF ANNEXES
Number Description Annexes
Page No.
Annex 1 Extracts from Kadir Mohamad, “Malaysia’s
Territorial Disputes – Two Cases at the ICJ”,
Institute of Diplomacy and Foreign Relations,
Ministry of Foreign Affairs, Malaysia, 2009
A1
Annex 2 Extracts from Kadir Mohamad, “Malaysia /
Singapore – Fifty Years of Contentions”, The Other
Press Sdn. Bhd., 2015
A11
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