Malaysia’s new Batu Puteh challenge based on documents in UK National Archives

Feb 4, 2017
The island of Pedra Branca or Pulau Batu Puteh sits at the entrance to the Singapore Strait about 30km east of the city state and 15km off peninsular Malaysia’s southern coast on Jan 6, 2003. Photo by Reuters
The island of Pedra Branca or Pulau Batu Puteh sits at the entrance to the Singapore Strait about 30km east of the city state and 15km off peninsular Malaysia’s southern coast on Jan 6, 2003. Photo by Reuters

The “new fact” which prompted Malaysia to apply for a revision of an International Court of Justice (ICJ) ruling on Pedra Branca, refers to three documents discovered in the National Archives of the United Kingdom.

The ICJ in a press release on its website on Friday said the documents included an internal correspondence of the Singapore colonial authorities in 1958, an incident report filed in 1958 by a British naval officer and an annotated map of naval operations from the 1960s.

The documents were discovered in the National Archives between Aug 4, 2016 and Jan 30, 2017, it said.

It said Malaysia claimed the documents established the new fact that officials at the highest levels in the British colonial and Singaporean administration appreciated that Pedra Branca/Pulau Batu Puteh did not form part of Singapore’s sovereign territory during the relevant period.

“Malaysia argues that the Court would have been bound to reach a different conclusion on the question of sovereignty over Pedra Branca/Pulau Batu Puteh had it been aware of this new evidence,” it said.

ICJ said Malaysia in reference to other conditions of Article 61, also asserted that the new fact was not known to Malaysia or to the Court when the “Judgment” was given because it was only discovered on review of the archival files of the British colonial administration after they were made available to the public by the UK National Archives after the judgment was rendered in 2008.

“Malaysia also argues that its ignorance of the new fact was not due to negligence as the documents in question were confidential documents which were inaccessible to the public until their release by the UK National Archives.”

Malaysia, ICJ said, asserted that its request was also in accordance with the relevant provisions of the Statute, in so far as the timing of its application was concerned.

“It indicates that the Application was being made within six months of the discovery of the new fact, since all of the documents that established this fact were obtained on or after 4 August 2016, and that it was also being submitted before the lapse of ten years from the Judgment date of 23 May 2008.”

ICJ noted that Malaysia was requesting for the Court to adjudge and declare its application for revision of the 2008 judgment as admissible and asking it to “fix time-limits to proceed with consideration of the merits of the application”.

Attorney-General Mohamed Apandi Ali when contacted today said his team consisting of local lawyers and AG’s Chambers officers and a few handpicked renowned professors and Queen’s Counsels from United Kingdom would be doing the actual oral submissions at the hearing in the ICJ at The Hague.

“Currently we are waiting for a management date from the ICJ, where ultimately the hearing dates will be fixed,” he said.

On May 23, 2008, the ICJ ruled that Singapore had sovereignty over Pulau Batu Puteh while Malaysia owned Middle Rocks, and South Ledge belonged to the state in whose territorial waters it is located.

Pulau Batu Puteh is located 7.7 nautical miles off the coast of Johor’s Tanjung Penyusuh. –Bernama