Friday, 1 June 2018

Malaysia withdraws ICJ challenge on Pedra Branca, ceding rights for future revision to 2008 ruling

Malaysia abandons Pedra Branca case ahead of International Court of Justice (ICJ) hearings
It gives up for good the right to dispute ruling that awarded island's sovereignty to Singapore
By Royston Sim, Deputy Political Editor, The Straits Times, 31 May 2018

Malaysia has withdrawn its application to revise a 2008 judgment on Pedra Branca, relinquishing for good its right to challenge the ruling that awarded sovereignty of the island to Singapore.

It will also discontinue a separate application for the International Court of Justice (ICJ) to interpret that same judgment issued on May 23, 2008.

The withdrawal comes just two weeks before scheduled hearings for both cases, and it means the 10-year window for revision has lapsed. Under the ICJ's Statute, an application for revision must be made within 10 years of the judgment.

Singapore's Ministry of Foreign Affairs (MFA), in a statement yesterday, said Malaysia had informed the ICJ on Monday that it would stop the proceedings it had initiated earlier.

A day later, Singapore told the court it agreed with Malaysia's request to discontinue proceedings.

Malaysia's Solicitor-General had earlier written to inform Singapore's Attorney-General of Malaysia's intention, and Singapore replied to convey its agreement on this count, MFA said.

In letters dated May 29, the ICJ informed both countries it had placed on record the discontinuance of proceedings, and directed that the cases be removed from the court's list.

Foreign Minister Vivian Balakrishnan said yesterday that Singapore had been confident of its case and the correctness of the original ICJ decision. "When Malaysia requested to discontinue the cases, without them being argued, we were happy to agree. Both Malaysia and Singapore had gone through the due legal process and put this matter to rest," he said.

Malaysia's withdrawal brings to a close a long-running saga which began in 1979 and was thought to have been resolved when the ICJ ruled in 2008 that Pedra Branca belongs to Singapore.



Malaysia applied to revise the ICJ's judgment on Feb 2 last year.

The small island of Pedra Branca - also known as Pulau Batu Puteh - houses the Horsburgh Lighthouse, and is located about 40km east of Singapore's main island.

In 2008, the court also ruled on the sovereignty of two other maritime features near Pedra Branca: It said Middle Rocks belongs to Malaysia, but it did not make a definitive ruling on South Ledge, saying it belongs to whoever owns the territorial waters it sits in.

In its application for revision last February, Malaysia had cited three new documents discovered in the British Archives. It based its application on Article 61 of the ICJ's Statute, which states that an application to revise a judgment may be made when there is discovery of a fact which would be a "decisive factor" and not known at the time of judgment.

On June 30 last year, Malaysia submitted a second application asking the ICJ to declare the waters around Pedra Branca to be Malaysian waters - and, by extension, to rule South Ledge belongs to Malaysia. Public hearings on both cases were scheduled over eight days next month from June 11 to 22.

Singapore filed its rebuttal on May 24 last year, contending that the documents Malaysia relied on do not satisfy the criteria for a revision application. On Oct 30 last year, Singapore filed its rebuttal to Malaysia's request for interpretation.

Singapore had earlier said that it considered Malaysia's application for interpretation unnecessary and without merit.

Mr Yang Razali Kassim, a senior fellow at the S. Rajaratnam School of International Studies, Nanyang Technological University, said Prime Minister Mahathir Mohamad might have been briefed by his officials about the pros and cons of pursuing the applications, and concluded it could be tough for KL to succeed. Tun Dr Mahathir might have also concluded that the whole pursuit at ICJ would be a distraction from his top priority of reducing the national debt and finances.

"Besides, engaging international lawyers to fight such a high-profile case would be an expensive business. So, in the end, it could be a matter of Dr Mahathir trying to cut his losses," he said.

















S. Jayakumar not surprised Malaysia withdrew Pedra Branca cases, says both had very weak legal basis
By Royston Sim, Deputy Political Editor, The Straits Times, 1 Jun 2018

Former deputy prime minister S. Jayakumar said he is not surprised that the new Malaysian government has withdrawn its applications on Pedra Branca as both cases had "very weak legal basis".

In fact, he was very surprised when the previous Malaysian government brought these two cases, Professor Jayakumar said in a statement yesterday.

Malaysia had filed an application on Feb 2 last year to revise a 2008 judgment by the International Court of Justice (ICJ), which awarded sovereignty of Pedra Branca to Singapore.

On June 30, Malaysia filed a second application to request that the ICJ interpret that same judgment.

The ICJ will remove both cases from its list, after Malaysia informed it on Monday that it would discontinue the proceedings it had initiated earlier, and Singapore agreed. "Our foreign counsel, as well as we in the Singapore team, felt that Malaysia's cases had very weak legal basis," said Prof Jayakumar, who led the Republic's Pedra Branca team.

"We were very confident of our own legal case on both applications. Therefore, I am not surprised that the new Malaysian government had proposed to discontinue both these cases. This has put the matter to rest amicably."

The small island of Pedra Branca - also known as Pulau Batu Puteh - houses the Horsburgh Lighthouse, and is located about 40km east of Singapore's main island.



Prof Jayakumar was one of three key figures who helmed the team that argued the original case before the ICJ in 2007. The other two were Professor Tommy Koh and former chief justice Chan Sek Keong.

The three of them, along with Attorney-General Lucien Wong, led the legal team to prepare for the latest cases, which were initially scheduled to be heard over eight days from June 11 to 22 at the Peace Palace in The Hague, in the Netherlands.

Prof Jayakumar said all members of the team were fully prepared for the oral hearings at the ICJ.

"Some members of the team are disappointed that the cases will not be heard," he said. "They had put in a lot of work and were looking forward to arguing our cases before the ICJ judges."

Prof Jayakumar also gave four reasons why he was cheered by the way the Singapore team worked on the Pedra Branca cases.

He said he and senior lawyers such as Prof Koh, Mr Chan and Mr Wong worked very well with younger international lawyers in the team.

He praised the legal acumen and total dedication of the younger lawyers, and said Singapore now has a new generation of highly competent international lawyers.

"We are in good hands when similar international legal disputes arise in the future," he added.



Prof Jayakumar also hailed the close collaboration between the Attorney-General's Chambers, Ministry of Foreign Affairs, Maritime and Port Authority of Singapore, National Archives of Singapore, Ministry of Law, Ministry of Defence and other agencies.

Finally, he lauded Singapore's foreign legal counsel - Professor Alain Pellet, Mr Rodman Bundy and Mr Daniel Muller. Prof Pellet and Mr Bundy acted for Singapore in the original Pedra Branca case.

"All of them had high praise for the younger lawyers in the team," Prof Jayakumar said.









Domestic priorities behind Malaysia's move to drop Pedra Branca challenge: Analysts
Decision to scrap high-speed rail could also be a factor, they say
By Royston Sim, Deputy Political Editor, The Straits Times, 31 May 2018

Malaysia's surprise move to drop its legal challenges on Pedra Branca's sovereignty could be due to a desire by its new government to focus on domestic concerns, say political analysts.

To a lesser extent, it could also be influenced by two other factors: A separate move to scrap the Kuala Lumpur-Singapore high-speed rail (HSR), subject to talks with Singapore, and an assessment that Malaysia has a weak case going forward with Pedra Branca.

Dr Mustafa Izzuddin, a fellow at the ISEAS - Yusof Ishak Institute, said the new Malaysian government's priority now is to stabilise the country, both politically and economically. "They may not have wanted to get themselves entangled so soon in court hearings," he added, noting that the cases would be heard in the middle of next month.

He added that Malaysia may have also wanted to create a "more positive diplomatic climate" going into negotiations with Singapore on issues such as the HSR.

Malaysia Prime Minister Mahathir Mohamad said on Wednesday (May 30) that his Cabinet has agreed to scrap the HSR project due to high costs. He previously said there could be a penalty levied for the cancellation.

The HSR negotiations will be complex, said ISEAS - Yusof Ishak Institute fellow Norshahril Saat.

Given the timing, Malaysia could have concluded it may not be beneficial to revisit the old issue of Pedra Branca, he said. Dropping the case is "a way for Malaysia to signal to Singapore that it is mainly interested in tackling domestic economic issues, and not creating tensions via foreign policy", he added.

But this does not mean that Malaysia's withdrawal gives it a bargaining chip in the HSR negotiations, said Dr Mustafa. He noted that the HSR and Pedra Branca are two separate issues, and cautioned against linking the two together.

Malaysia could also have felt its case was not as strong as Singapore's, and that pursuing the matter could take up time and money without yielding the desired result, he added.

Singapore's Ministry of Foreign Affairs said on Wednesday that Malaysia had informed the International Court of Justice (ICJ) on Monday that it would discontinue the proceedings it had initiated earlier.

Professor Simon Chesterman, law dean at the National University of Singapore, said in a Facebook post that states bring actions before the ICJ for various reasons, including the chance of winning and the opportunity to air their grievances on the world stage.

"Withdrawing the case suggests that the new government in KL does not think that either end justifies continuing the two applications," he said.

Prof Chesterman also said that the withdrawal is consistent with the new government's efforts to carefully manage public finances. "Though an ICJ case is far less expensive than some of the infrastructure projects now being reconsidered, lawyers' fees and trips to and from The Hague with a low chance of success might not be seen as a worthwhile investment," he said.



At a press conference on Wednesday, Tun Dr Mahathir revealed that Malaysia intends to enlarge its existing structures on the nearby Middle Rocks - over which it was granted sovereignty - "so that we can form a small island for us".

"That is something we are thinking of," he said. " We haven't made a full decision yet."

Political analyst Derek da Cunha noted that Malaysia now has a legally recognised presence in the area through a maritime base on Middle Rocks.

In an earlier Facebook post, he said that the strategic significance of Singapore's presence on Pedra Branca would be diminished if Malaysia expands Middle Rocks into a small island.

But Dr Mustafa said that any attempt to expand Middle Rocks will require discussions and negotiations on territorial waters, which both countries have yet to reach an agreement on.

Additional reporting by Charissa Yong and Nur Asyiqin Mohamad Salleh




 















TIMELINE OF EVENTS

FEB 6, 2003

Singapore and Malaysia sign a special agreement requesting the International Court of Justice (ICJ) to determine which country has sovereignty over Pedra Branca, Middle Rocks and South Ledge.

NOVEMBER 2007

Oral proceedings for the case take place in the Peace Palace at The Hague, in the Netherlands.

MAY 23, 2008

The ICJ delivers its judgment, ruling that Singapore has sovereignty over Pedra Branca, Malaysia has sovereignty over Middle Rocks, and South Ledge belongs to the state in the territorial waters of which it is located.

FEB 2, 2017

Malaysia files an application to revise the 2008 judgment.

MAY 24, 2017

Singapore files its written observations on the admissibility of Malaysia's revision application.

JUNE 30, 2017

Malaysia files a second application, for the ICJ to interpret the 2008 judgment.

OCT 30, 2017

Singapore files its written observations on Malaysia's interpretation request.

MAY 28, 2018

Malaysia informs the ICJ that it will discontinue the proceedings that it had initiated earlier. Prior to that, the Malaysian Solicitor-General had written to inform Singapore's Attorney-General of Malaysia's intention to discontinue the proceedings, and Singapore replied, conveying its agreement.

MAY 29, 2018

Singapore informs the ICJ that it agreed with Malaysia's request for discontinuance. ICJ issues letters informing both countries that the court has placed on record the discontinuance of proceedings, and directed that the cases be removed from its list.

MAY 30, 2018

Singapore's Ministry of Foreign Affairs issues a statement on Malaysia withdrawing both cases.

















Rapid changing of gears in Singapore-Malaysia ties
By Lydia Lim, Associate Opinion Editor, The Straits Times, 31 May 2018

The new government in Kuala Lumpur has called off a multi-billion-dollar high-speed rail project and dropped a high-profile international court case over Pedra Branca - all within three weeks of winning power, and without having appointed a foreign minister.

Such rapid turnarounds in bilateral matters between Singapore and Malaysia are perhaps par for the course, now that Prime Minister Mahathir Mohamad is back in charge across the Causeway.

The news on Pedra Branca, which broke yesterday afternoon, means Malaysia has relinquished for good its right to seek a revision of the International Court of Justice's May 2008 ruling, which awarded sovereignty of the island to Singapore. A country's right to apply for a revision expires after 10 years.

The previous government under then Prime Minister Najib Razak had applied to reopen the case in February last year.

Last November, Prime Minister Lee Hsien Loong had said he was unsure about Malaysia's motivation for doing so as the Pedra Branca case had appeared to have been settled for good back in 2008, but "their general election is coming, and that might have something to do with it".

That general election has now come and gone, ending with a historic change in government.

The decision to drop the Pedra Branca case might be due to the new leadership in KL being unsure of securing a good outcome. It might be because the new government has other more important priorities to deal with. Or it might be that Tun Dr Mahathir is holding out an olive branch to the Singapore Government, given his plan to both cancel the high-speed rail project (HSR) and reduce the compensation Malaysia has to pay Singapore for doing so, which he said might run as high as RM500 million (S$168.4 million).

The HSR deal was inked in 2016 under Datuk Seri Najib.

Earlier yesterday, after their weekly Cabinet meeting, Dr Mahathir announced that Cabinet members had agreed to call off the project due to high financial costs and subject to discussions with the Singapore Government.

Might the Pedra Branca move be linked to how Dr Mahathir hopes to play his hand on the HSR talks?

Are bilateral ties returning to an era when Singapore will be asked to vary earlier agreements which both sides had invested time and effort in negotiating before signing?

That was a hallmark of the later years of Dr Mahathir's last turn as prime minister, when the two countries struggled to reach agreement on a set of inter-related issues on the Points of Agreement on railway land, the relocation of Customs, Immigration and Quarantine for railway facilities, revisions to the Water Agreements and a "crooked bridge" to replace the Causeway.

Beyond reversals in substantive policy, what might also change in the weeks and months ahead is the tone of bilateral communications.

Dr Mahathir has already given an early hint of what may be in store. In an interview with the Financial Times published on Monday, he observed that "the people of Singapore, like the people in Malaysia, must be tired of having the same government, the same party, since independence".

That sardonic tone is itself a Dr Mahathir trademark, as older Malaysians and Singaporeans well know.

As Singaporeans continue to watch developments across the Causeway, they must be ready for surprises, even as they keep calm and carry on.





* Pedra Branca: KL failed to meet terms for seeking revision of ruling
Singapore's rebuttal published by ICJ, along with documents that Malaysia had submitted
By Royston Sim, Deputy Political Editor, The Straits Times, 4 Aug 2018

Malaysia has failed to meet all the conditions required - save one - to apply for a revision of a 2008 judgment that awarded sovereignty of Pedra Branca to Singapore.

The only condition that was met: It submitted its application within the 10-year deadline.

These points were made in a written rebuttal by Singapore's legal team to the International Court of Justice (ICJ), as it sought to show on multiple fronts why Malaysia's application for revision should be dismissed.

The case was due to be heard by the ICJ in June this year, but Malaysia withdrew its application in May. The ICJ published the documents submitted by both parties on its website earlier this week.

Malaysia applied to revise the ICJ's judgment on Feb 2 last year, and cited three new documents discovered in the British Archives to argue its point that "Singapore's officials at the highest levels did not consider that Singapore had acquired sovereignty over Pedra Branca from Johor" in the years following 1953.

It based its application on Article 61 of the court's statute, which provides that an application for revision may be made when there is discovery of a fact that would be a "decisive factor" and was not known at the time of judgment.

Ignorance of this new fact must not be due to negligence, and the application must be made at latest within six months of its discovery.



In its submissions to the ICJ, Singapore argued that Malaysia failed to file the application within six months of discovering the documents. It highlighted how a member of the Malaysian delegation in the original 2008 case - Professor Shaharil Talib - had published most of the documents on an online blog in March 2015, nearly two years before the application was made in February last year.

Singapore also contended that Malaysia was negligent in failing to obtain the documents it presented as "new facts" in a timely manner.

"Malaysia either knew or, with reasonable diligence, should have known, of the documents... before the judgment was given. These documents were all obtainable by Malaysia from the UK National Archives before 2008," Singapore said in its rebuttal.

In addition, the "new facts" Malaysia relied on were already known to Malaysia - its legal team had made full arguments before the ICJ on such "facts" in the original case, Singapore argued. In any event, none of the three documents can be of a decisive factor, Singapore said.

The first document is a confidential telegram sent from Singapore's top colonial official to the British Secretary of State for the Colonies in 1958.The second was a report about a naval incident near Pedra Branca, while the third was a map of naval operations in the Malacca and Singapore straits from 1962.

"When given their true meaning and read in context, none of Malaysia's 'newly discovered documents' refers to sovereignty over Pedra Branca or bears the interpretation that Malaysia gives them," Singapore said.

For instance, it contended that Malaysia had taken the sketch map of naval operations "completely out of context and misrepresented what it shows", as it was not intended to and does not depict Singapore's territorial boundaries.

Singapore's legal team noted the ICJ's decision in the original case - that sovereignty over Pedra Branca had passed to Singapore by 1980 - was based on four key elements.

These included correspondence in 1953 showing Johor's understanding that it did not have sovereignty over Pedra Branca.

Another was activities that Singapore carried out on or related to the island that were a titre de souverain, that is, in a manner that conferred title on the state responsible. Significantly, most of these activities took place after 1966, which is the latest date that appears on three documents on which Malaysia relies in its application, Singapore said.

None of the three documents presented by Malaysia "remotely affected" any of the four key elements, Singapore said, arguing that they are "irrelevant" to the question on sovereignty over Pedra Branca.

In contrast, all of them are similar in nature to factors the court examined and did not consider relevant to sovereignty in the original case, it added.

The small island of Pedra Branca - also known as Pulau Batu Puteh - houses the Horsburgh Lighthouse, and is located about 40km east of Singapore's main island.





** Pedra Branca: Malaysia asking ICJ to go beyond its mandate: Singapore
By Royston Sim, Deputy Political Editor, The Straits Times, 4 Aug 2018

Malaysia, in asking the International Court of Justice (ICJ) to rule on the sovereignty of waters around Pedra Branca and of the maritime feature South Ledge, was calling on the court to go beyond its mandate, Singapore said.

In documents published earlier this week by the ICJ, Singapore's legal team argued that Malaysia had failed to meet the requirements to request an interpretation of a May 2008 judgment on the sovereignty of three maritime features. Hence, it asked that the case be dismissed.

About 10 years ago, the ICJ awarded sovereignty of Pedra Branca to Singapore and said Middle Rocks belongs to Malaysia.

But it did not make a definitive ruling on South Ledge, saying it belongs to whoever owns the territorial waters it sits in.

In June 2008, both countries established the Malaysia-Singapore Joint Technical Committee (MSJTC) to discuss issues "related to the smooth implementation" of the ICJ judgment.

On June 30 last year, Malaysia submitted a request for interpretation, asking the ICJ to declare the waters around Pedra Branca to be Malaysian waters - and, by extension, to rule that South Ledge belongs to Malaysia.

It was Malaysia's second application on the 2008 judgment, after an earlier one made in February last year for revision of the judgment.

Both cases were due to be heard by the ICJ in June this year, but Malaysia withdrew its applications in May.

In its submissions, Singapore noted that the ICJ, in its 2008 judgment, did what it was mandated by both countries to do - rule on the issue of sovereignty over the maritime features in question.

But by seeking a declaration from the court that sovereignty of South Ledge belongs to Malaysia, Singapore argued that Malaysia is asking the ICJ to decide on maritime delimitation - an issue the court was not mandated to do under a 2003 Special Agreement that set out the scope of its jurisdiction. Maritime delimitation was something the ICJ had "expressly declined to do in the judgment", Singapore added.

Its legal team noted that Malaysia had pointed to a deadlock over the meaning or scope of the judgment, and said it is compelled to ask the ICJ for interpretation as there is no reasonable prospect of progress being made through further bilateral discussions.

In particular, Malaysia had highlighted "an alleged impasse" in the discussions by the MSJTC.

"Malaysia's assertions are misleading and not borne out by the facts," Singapore said. It added that a proper examination of all the facts reveals there is no dispute over the meaning or scope of the judgment.

Singapore also contended that Malaysia's real purpose in submitting its request is "not to seek an interpretation of matters which the court has decided with binding force, but to seek answers to questions not so decided".

It said: "The request for interpretation is nothing more than another attempt by Malaysia to institute a backdoor appeal against, and a revision of, the judgment, in order to overturn those aspects of the judgment which Malaysia considers unfavourable to itself."





Related

International Court of Justice (ICJ, UN):

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)

Application for revision of the Judgment of 23 May 2008 in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (Malaysia v. Singapore)

MFA Press Statement: Discontinuance of Malaysia's Application for Revision and Request for Interpretation of the International Court of Justice's Judgment of 23 May 2008 in the Case Concerning Sovereignty over Pedra Branca, Middle Rocks and South Ledge -30 May 2018

MFA Press Release: Comments by Professor S Jayakumar, Chair of Singapore's Pedra Branca International Court of Justice Committee, on the Discontinuance of Malaysia's Application for Revision and Request for Interpretation of the International Court of Justice's Judgment of 23 May 2008 in the Case Concerning Sovereignty over Pedra Branca, Middle Rocks and South Ledge -31 May 2018

Malaysia applies for revision of Pedra Branca judgment on 2 Feb 2017

Malaysia's fresh challenge dtd 30 June 2017 on Pedra Branca 'without merit': Singapore's Ministry of Foreign Affairs

Kuala Lumpur-Singapore High Speed Rail scrapped, says Malaysia PM Mahathir Mohamad

Malaysia General Election 2018: Mahathir Mohamad sworn in as country's 7th Prime Minister

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