Malaysia seeks to revise judgment on Pedra Branca, citing 'new facts'

Kuala Lumpur

MALAYSIA has filed an application at the International Court of Justice (ICJ) to review a judgment made in May 2008 that awarded Pedra Branca to Singapore after making "discovery of some fact of such a nature as to be a decisive factor".

Malaysia filed the application to the ICJ on Thursday over the sovereignty of the island, said a statement issued by Malaysia's Attorney-General Mohamed Apandi Ali. "The application was made by Malaysia upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to Malaysia as the party claiming revision," the statement said.

"The discovery of the new facts is important and they should be ventilated in a court of law accordingly. Thus, as agreed by both parties in the Special Agreement, the International Court of Justice is the appropriate forum for this."

Mr Apandi added in the statement: "We are also confident that the requirements as stipulated under Article 61 of the Statute of the International Court of Justice have been met in that, inter alia, the application for revision is brought within six (6) months of the discovery of the new fact, and within ten (10) years of the date of the Judgment." He did not elaborate on what the new discovery is.

Singapore said it is studying the application by Malaysia and is looking closely at Malaysia's documentation over the issue.

Singapore has formed a legal team to respond to Malaysia's application, said a statement on Friday from the Ministry of Foreign Affairs (MFA). The team includes Attorney-General Lucien Wong, Professor S Jayakumar, Professor Tommy Koh and former chief justice Chan Sek Keong.

The MFA statement noted that the ICJ judgment was "final, binding and without appeal".

The dispute pitted Malaysia's claim of original title to Pedra Branca against Singapore's claim of taking lawful possession in 1847 and continuous exercise of sovereignty ever since. The ICJ was also asked to determine to whom nearby Middle Rocks and South Ledge belong.

Malaysia's legal case rested on its claim that the Sultanate of Johor had possessed title to the island since its establishment in 1512. That original title was then transmitted to the State of Johor, and subsequently to the Federation of Malaya, which Johor joined in 1948.

To explain Singapore's presence on the island, Malaysia cited an 1844 letter that it claimed was a grant of permission by the Johor rulers to the British, for the latter to build and operate a lighthouse there. Malaysia argued that the British and their successor, Singapore, were merely lighthouse operators and never exercised sovereignty over the island.

Singapore said Pedra Branca was terra nullius, or no man's land, when the British took lawful possession of it in 1847. Britain's conduct from 1847 to 1851, in financing and building Horsburgh Lighthouse, and building piers and rain channels on the island, showed its intention to take sovereign control of the island. Britain thus acquired title to the island through its peaceful occupation of it.

Subsequently, Britain and, later, Singapore, maintained that title through an open, continuous and effective display of state authority over the island from the 1850s up to the present. In international law, such conduct is known as effectivites.

Singapore also noted that Malaysia never once protested against Singapore's exercise of sovereignty over the island. Singapore also produced a 1953 letter from Johor's top civil servant at that time to the British authorities, in which the former wrote that "Johore does not claim ownership of Pedra Branca". That letter, Singapore argued, was a disclaimer of title by Johor that was binding on Malaysia. THE STRAITS TIMES