Malaysia's 'new facts' in application to overturn ruling on Pedra Branca revealed

Malaysia’s application to overturn the 2008 decision by The International Court of Justice (ICJ) to award sovereignty of the island of Pedra Branca to Singapore hinges on three documents, according to media reports.

According to the text released by ICJ, Malaysia states in court documents filed on 3 February that the “new facts” would have led to the ICJ ruling differently had it been privy to such information.

Malaysia cited a letter by Singapore’s top colonial official and a British naval incident report in 1958, and a map with markings dated in 1966, all three of which it discovered in the British archives between 4 August 2016 and 30 January 2017.

The first document is reportedly a telegram sent in 1958 by the Governor of Singapore to the secretary of state for the colonies in London. Malaysia said the document showed that the governor “did not consider the island of Pedra Branca/Pulau Batu Puteh to be part of Singaporean territory”. Pulau Batu Puteh is the Malaysian name for the disputed island.

The governor had proposed setting up an international high seas corridor passing “only one mile” from Pedra Branca, according to Malaysia.

“If he had understood…that Pedra Branca/Pulau Batu Puteh was under Singaporean sovereignty, there would not have been a need for him to advocate the provision of an international passageway so near the island,” the application showed.

The second document is a naval incident report sent to the Governor of Singapore that said a British naval vessel could not intervene when a Malaysian vessel was being followed by an Indonesian gunboat as it “was still inside Johor territorial waters”. The incident report showed that the British navy “did not view the waters around Pedra Branca/Pulau Batu Puteh as belonging to Singapore”, according to the application.

The third document is a map that purportedly shows Singapore’s territorial waters “do not extend to the vicinity of Pedra Branca/Pulau Batu Puteh”. The map is dated 1962 but has annotations dated February 1966, Malaysia said.

The ICJ assigned significant weight to a 1953 letter when it ruled the sovereignty of Pedra Branca in favour of Singapore. The letter written by the acting colonial secretary in Johor to Singapore officials showed that the Malaysian state did not lay ownership claim to the island.

But Malaysia said, “The documents (in the application) indicate that in the critical years following the 1953 correspondence…Singapore officials at the highest levels did not consider that Singapore had acquired sovereignty over Pedra Branca from Johor.”

Besides Pedra Branca, the sovereignty of the Middle Rocks and South Ledge were also considered in the 2008 case. The ICJ ruled that the Middle Rocks belongs to Malaysia, while it withheld from deciding on the sovereignty of South Ledge.

Singapore’s Ministry of Foreign Affairs said on 3 February that the government has formed a legal team to respond to Malaysia’s application.

MFA noted that under Article 61 of the Statute of the ICJ, “an application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, and which was, when judgment was given, unknown to the Court and the party claiming revision.

“Such an application must be made within ten years of the date of the judgment, and at latest within six months of the discovery of the new fact.”