Singapore’s Minister of Foreign Affairs, Vivian Balakrishnan, said the government will file a “comprehensive and compelling rebuttal” to the International Court of Justice (ICJ) on Malaysia’s new claims of sovereignty over the island of Pedra Branca.

“We are confident of our legal team and our case,” Dr Vivian said.

On 2 February, Malaysia made new claims on the once longstanding dispute over the sovereign ownership of the island which is situated at the eastern part of the Straits of Singapore.

In papers filed with the ICJ, Malaysia said it has new documents which allow it, under Article 61 of the ICJ’s Statute of the Court, to ask the court to revise its 2008 judgement.

The matter of sovereignty over Pedra Branca had been settled by the ICJ in 2008 where, by a vote of 15-4, the court decided in Singapore’s favour.

Malaysia now, however, says that it has three “new facts” 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.

The new documentary evidence, Malaysia says, “cuts deeply against the central thesis of the court’s judgment” and that the court would have reached a different conclusion “had it been aware of this new evidence”.

According to the Straits Times:

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. In it, the Governor had proposed establishing “a corridor of international waters passing only one mile from Pedra Branca”.

This showed he “did not consider the island of Pedra Branca to be part of Singaporean territory”, Malaysia said.

The second document was a report about a naval incident near Pedra Branca.

Malaysia pointed out the report had said a British Navy ship could not go to the aid of a Malaysian vessel being followed by an Indonesian gunboat because it was “still inside Johor territorial waters”.

Malaysia said this showed that the “military authorities responsible for Singapore’s defence at the time did not view the waters around Pedra Branca as belonging to Singapore”.

The third document – a map of naval operations in the Malacca and Singapore straits from 1962 – showed Singapore’s territorial waters “do not extend to the vicinity of Pedra Branca”, Malaysia said.

Malaysia said it had only come to know of the documents after they were declassified by the Archives in the United Kingdom, and after the 2008 judgement.

“Our legal team strongly believes that the documents relied on by Malaysia do not satisfy the criteria under Article 61,” Dr Vivian told Parliament, in reply to a question from Member of Parliament, Baey Yam Keng.

He added that Singapore will file its case by 14 June, the deadline given by the ICJ.

The Singapore team, the minister said, will be assisted by three of the original officials who spearheaded Singapore’s claims at the ICJ in 2008: former Law Minister, Professor S Jayakumar; former Ambassador-at-Large, Tommy Koh; and former Chief Justice, Chan Sek Keong.

Dr Vivian also said “Singaporeans should not be disconcerted” by the latest developments.

“Even with the best of diplomatic and personal relationships,” he said, “we must expect other states to act in their own self-interests.”

The dispute, which eventually took 38 years to settle, between the two Southeast Asian neighbours started in December 1979 when Malaysia published a map which depicted the island of Pedra Branca, or Pulau Batu Puteh, as lying within Malaysia’s territorial waters.

On 14 February 1980, Singapore sent a diplomatic note to Malaysia, rejecting its apparent claims to the island, and requested the map to be corrected.

The note led to an exchange of correspondence and to a series of inter-governmental talks in 1993-1994 between the two sides. However, they were unsuccessful in bringing a resolution to the matter.

In 2003, the two parties agreed to submit the case to the ICJ for resolution.

Malaysia’s claims, basically, was based on the territories, pre-1847, under the sovereign authority of the Sultanate of Johor which was first established in 1512.

Malaysia contended that the Sultanate of Johor held original title to Pedra Branca and retained it up to 1847, when the island was transferred to the authority of the British. Malaysia claimed that “it is the case that from time immemorial Pedra Branca/Pulau Batu Puteh was under the sovereignty of the Sultanate of Johor”.

Singapore’s case, on the other hand, centred on the argument that prior to 1847, Pedra Branca was terra nullius, or “no man’s land”, and had never been the subject of a prior claim, or any manifestation of sovereignty by any sovereign entity.

“Singapore’s title to Pedra Branca is based upon the taking of lawful possession of the island by the British authorities in Singapore during the period 1847 to 1851,” the Singapore 2008 submission to the ICJ said. “Malaysia claims that, prior to 1847, Pedra Branca was under the sovereignty of Johor. However, there is absolutely no evidence to support Malaysia’s claim.”

In brief, Singapore’s case can be summed up as:

  • (a) The selection of Pedra Branca as the site for building of the Horsburgh lighthouse with the authorization of the British Crown constituted a classic taking of possession à titre de souverain.
  • (b) Title was acquired by the British Crown in accordance with the legal principles governing acquisition of territory in 1847-1851.
  • (c) The title acquired in 1847-1851 has been maintained by the British Crown and its lawful successor, the Republic of Singapore.

To arrive at its judgement in 2008, the ICJ said that “the issue is reduced to whether Malaysia can establish its original title dating back to the period before Singapore’s activities of 1847 to 1851, and conversely whether Singapore can establish its claim that it took ‘lawful possession of Pedra Branca/Pulau Batu Puteh’ at some stage from the middle of the nineteenth century when the construction of the lighthouse by agents of the British Crown started.”

The court’s final decision basically rested on the activities on the island by Britain and Singapore, and Malaysia’s non-interference or lack of protests against these over the years.

“The conduct of the United Kingdom and Singapore was, in many respects, conduct as operator of Horsburgh lighthouse,” the ICJ said in its judgement.

The court found, among other things, that “the Johor authorities and their successors took no action at all on Pedra Branca/Pulau Batu Puteh from June 1850 for the whole of the following century or more.”

“And, when official visits (in the 1970s for instance) were made, they were subject to express Singapore permission,” the court ruling said. “Malaysia’s official maps of the 1960s and 1970s also indicate an appreciation by it that Singapore had sovereignty. Those maps, like the conduct of both Parties which the Court has briefly recalled, are fully consistent with the final matter the Court recalls. It is the clearly stated position of the Acting Secretary of the State of Johor in 1953 that Johor did not claim ownership of Pedra Branca/Pulau Batu Puteh. That statement has major significance.”

“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.”

The ICJ then decided, by a vote of 15-4, in Singapore’s favour.

It is left to be seen if the ICJ will allow Malaysia’s latest claims to be heard at The Hague.

Read the full ICJ report here.

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