2015
Let me thank all the readers of
this blogspot for reading the on-going research work and giving us the
encouragement to pursue the search for new evidence that could reveal the truth
as to whether the Republic of Singapore or the State and Territory of Johore
that possess sovereignty over Pedra Branca/Pulau Batu Puteh and its Territorial
Waters in the Straits of Singapore. Some
years have gone since the 2008 International Court of Justice’s Judgment
awarded Pedra Branca/Pulau Batu Puteh to the Republic of Singapore. Research has continued and we are now in a
position to place on record the recent findings. Do continue to give us your feedback as your
views are the source of our strength and inspiration. Thank you.
and if it were so, it would be; but as it isn’t, it ain’t. That’s logic”
Alice’s Adventures in Wonderland &Through the Looking-Glass
Application
for Revision of the Judgment of 23 May 2008 -
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore)
Introduction
On 23rd
May 2008 the International Court of Justice (ICJ) delivered its Judgement regarding
the case between Malaysia and Singapore on the Sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge. The ICJ awarded the sovereignty over Pedra
Branca to Singapore by a Judgement of 12 votes in favour; 4 votes dissenting. On the sovereignty of South Ledge the ICJ
favoured Malaysia by a decision of 15 votes in favour and One vote
against. That of Middle Rocks were left
to the two parties to decide within whose Territorial Waters (Pedra Branca or
South Ledge) to which it belonged. The
decision on Middle Rocks was 15 votes for and One against. The matter is still
in negotiation between the two parties.
The Statutes of the
ICJ are clear that the Judgments of the Court are final and without
appeal. However, its Statute does
recognize that within a ten year period after delivery of Judgment any one of
the Party involved has a right to make an application for its revision. These
provisions are provided in accordance with Article 61 of the International
Court of Justice’s Statute and Articles 99 and 100 of the Rules of Court. This means that Malaysia has until 23rd
May 2018 to apply for a revision of the Court’s Judgment and time is
crucial. In its Statues and Rules the
Court is clear that it will not be persuaded by legal arguments no matter how
lofty it is. It will be more inclined to
be impressed by the discovery of some evidence that, at the time the Judgment
was given, was unknown to the Court and to the Party claiming revision,
provided the unknown fact would be decisive factor therein. It is research and documents based on
research that will be the bed-rock for the application for revision.
In the search for
evidence that was unknown to the Court at the time when Judgment was delivered we
return to the Judgment itself. Judge Dugard in his Dissenting Opinion pointed
out that in its Decision to Award sovereignty over Pedra Branca/Pulau Batu
Puteh to Singapore the Court held that “[i] the light of Johor’s reply [1953],
the authorities in Singapore had no reason to doubt that the United Kingdom had
sovereignty over the island”. (See
Judgement, para 223 and para 230).
Simply stated it meant that the Settlement of Singapore during the
period when it was part of the Colony of the Straits Settlements (1867-1946);
the Colony of Singapore (1946-1959); the State of Singapore (1959-1963) and the
Republic of Singapore, (1965 - ) who were the authorities in Singapore in each
of the unfolding periods knew that all along that the United Kingdom had sovereignty
over Pedra Branca/Pulau Batu Puteh.
The new research
evidence, hitherto not opened to the public, presented below will establish
that the United Kingdom did know for
certain that Pedra Branca/Pulau Batu Puteh was within Johore’s sovereignty and
therefore Malaysia. Not only did the
United Kingdom knew that Pedra Branca/Pulau Batu Puteh was part of the State
and Territory of Johore in the Straits of Singapore, the newly revealed facts
will also establish that the Governor of the Colony of the Straits Settlements
and later the Governor of the Colony of Singapore did not register any
Singapore claim on sovereignty over Pedra Branca/Pulau Batuh Puteh when it set out to demarcate the Territorial
Waters of the Settlement of Singapore from that of the State and Territory of
Johore in the Straits of Singapore. In
addition, the new evidence will also establish that the Law Commission, an
agency set up under the auspices of the United Nations, and the
Secretary-General of the United Nations knew that in the Straits of Singapore
there was only one Agreement between the Colony of the Straits Settlements and
the State and Territory of Johore that demarcated the Territorial Waters of the
Settlement of Singapore from that of the Territorial Waters of the State and
Territory of Johore. Finally, the newly disclosed evidence will reveal that the
Singapore authorities knew that Pedra branca/Pulau Batu Puteh and its
Territorial Waters are part of the State and Territory of Johore and expressed
this fact in its records.
The
Evidence
In 2013 the
National Archives, UK under its series Migrated Files released three files for
the years 1907, 1927 and 1958 respectively that revealed the territorial limits
of the Settlement of Singapore in the Straits of Singapore and that of the
State and Territory of Johore that is contiguous to the Straits of
Singapore.
Collectively the
evidence from these files make a compelling case that Britain knew the
Territorial Waters of the Settlement of Singapore and it did not include the
Island Rock Pedra Branca/Pulau Batu Puteh some forty miles eastwards from the
Main Island of Singapore in the Straits of Singapore. These new evidence were unknown to the ICJ as
the Malaysian pleadings did not have access to these files which were either newly
released or hidden within unrelated files held by the National Archives, UK.
Without the above
mentioned details the ICJ in its 2008 Judgment recorded that Singapore authorities
knew during the periods of the Colony of the Straits Settlements (1867-1946); the
Colony of Singapore (1946-1959); the State of Singapore (1959-1963) and the
Republic of Singapore, (1965-) that Britain had the evidence that UK/Singapore
had sovereignty over Pedra Branca/Pulau Batu Puteh. The newly released files flies against the assumptions
that led to the final Judgment of the ICJ.
In the newly
released 1907 file the Governor of Colony of the Straits Settlements, Sir John
Anderson, confirmed that the Settlement of Singapore had no territories in the
Straits of Singapore beyond 10 geographical miles from the Main Island of
Singapore. (Draft, John Anderson to Lord
Elgin, Secretary of State for the Colonies, 22 January 1907) Outside this
limit in the Straits of Singapore were Islands and the Territorial Waters of
the State and Territory of Johore. The Settlement of Singapore did not possess
property and sovereignty in the Straits of Singapore outside the ten miles from
the Main island of Singapore. The
Governor of the Colony of the Straits Settlements was careful in pointing out
that the Sultan of Johore did possess property but not sovereignty in the
Settlement of Singapore over the Island of Pulau Tekong Ketchil in the Johore
Straits which was part of the larger Straits of Singapore. In raising the issue
of Territorial Waters of the Settlement of Singapore, the Governor of the
Colony of the Straits Settlements (1867-1946), acknowledged that the territorial
waters of the Settlement of Singapore was limited to 10 miles from the Main
Island of Singapore as expressed in Article 2 of the 2nd August 1824
Treaty. There was no mention that Pedra
Branca, in the Straits of Singapore, on which the Colony of the Straits
Settlements operated one of several Lighthouses in the Straits of Singapore and
the Straits of Malacca was an Island regarded by the Governor of the Colony of
the Straits Settlements as a sovereign appendage to the Settlement of
Singapore. This new evidence of 1907
establishes that the United Kingdom and the Singapore authorities knew the
territorial limits of the Settlement of Singapore in the Straits of Singapore
within which it had full property and sovereign rights.
The second file
released in 2013 is the original 1927 Agreement between the Colony of the
Straits Settlements and the State and Territory of Johore. In its catalogue
description the file is registered as an “Agreement concerning the boundary
between the territorial waters of Singapore and Johore” It is the catalogue
description of this new evidence that is most revealing on the intention of the
1927 Agreement which was to demarcate the Territorial Waters of Singapore and
Johore. There was no Territorial Waters
to demarcate between Pedra Branca/Pulau Batu Puteh in the Straits of Singapore
and that of Mainland Johore and this fact was recognised by UK Parliament which
ratified the Agreement in 1928 and the authorities in Singapore.
The third document
is actually an archival file that was opened to the public prior to the 2008
Judgment. However, the case must be made
that the evidence in the file is decisive to the Application for Revision of
Judgment. The Title of the File in the
UK Archives is very misleading. It reads
“Tidelands Oil” and U.S. Territorial Waters.
It had nothing to do with the subject of the Judgment. However, within this
innocuous file title there are relevant unknown factual material evidence to
the Application for Revision.
In 1953 the Foreign
Office, UK replied to a letter of the Secretary-General of the United Nations
on the subject “Delimitation of Territorial Sea of Adjacent States” which
requested the assistance of the UK authorities to the request of the
International Law Commission on Territorial Waters on UK practise and any
observations they may wish to make. The
1953 reply of the UK authorities to the Secretary-General of the United Nations
is as follows:
“5. So far as
information on the practice of States in regard to this matter is concerned,
Her Majesty’s Government can add to the examples already referred to in the
discussions of the Commission one of which the Commission may not yet be aware,
namely, the Straits Settlements and Johore Territorial Waters (Agreement) Act,
1928. (footnote 6. 18 and 19 Geo. 5 c.
23)”. This information was advanced as
evidence to demonstrate how two states demarcated their Territorial Waters in
the Straits of Singapore.
From the evidence of
this particular file it is clear that in 1953 the Foreign Office of UK took the
position that the Territorial Waters between adjacent counties, in this case the
Settlement of Singapore within the Colony of the Straits Settlements, 1928 and
now in 1953, Colony of Singapore, and the State and Territory of Johore was
settled by the 1927 Agreement and ratified by UK Parliament in 1928. UK authorities knew that in 1927 and 1928 and
in 1953 that Pedra Branca/Pulau Batu Puteh in the Straits of Singapore was not
a sovereign entity as part of the Settlement/Colony of Singapore.
The final piece of
evidence that is decisive in the Application for Revision of Judgment is yet
another 2013 released file in the UK Archives.
The file makes three important new facts hitherto unknown.
First, it lists all
Indonesian patrol vessel intrusions into Singapore Territorial Waters in the
Straits of Singapore which were raised with Indonesian authorities by the
Government of the Colony of Singapore.
The incidents listed covered the period 1955 to 1958. The cases included
incidents near Mata Ikan, Raffles Lighthouse and Pulau Senang. There is no mention of Horsburgh Lighthouse
and Pedra Branca/Pulau Batu Puteh in the list of intrusions into Singapore
Territorial Waters.
Second, this file
reveals another crucial piece of evidence where there was mention of an
incident around the Territorial Waters of Pedra Branca/Pulau Batu Puteh and in
its official correspondence the local authorities of Singapore mentioned that
this incident occurred within the territorial waters of Johore which was also
reported in the local press. The
incident was never recorded in the List of Intrusions into the Territorial
Waters of Singapore. This is a decisive
fact.
The Third new fact
was the observation of Singapore authorities to the suggested Extension of
territorial waters to 6 miles in the Straits of Singapore would not be in
Singapore’s interests for the following reasons:
(a) The approaches to Singapore are through the
channels between the Indonesian Islands on the south and the mainland of the
Federation of Malaya [The State and Territory of Johore] on the north. These channels are only 8 ½ miles wide at
their narrowest parts on both the western and eastern side. The effect of extending territorial waters to
6 miles therefore be to close the high seas channels of approach to Singapore.
(b) 2. It is therefore important to Singapore that
the present 3 mile limits of territorial waters should be retained. However, if it is necessary in the last
resort to agree to a general application of six mile limits, not only must the
right of innocent passage through the International Straits so created be
reaffirmed, but a special provision should be made for an international high
seas corridor one mile wide through the straits between Singapore and Malayan
territory on the north and Indonesian territory on the south. This corridor should follow the normal
shipping channel from west to east which is approximately as follows. From a point 3 miles north of the Brothers
light to a point 3 miles south of Sultan Shoal Light to a point 2 miles south
of Raffles Light to a point midway between the southern point of St Johns
Islands and Batu Berhenti Light to a point 1 mile north of Horsburgh Light.”
It is obvious that had the
Colony of Singapore sovereignty over Pedra Branca/Pulau Batu Puteh the issue of
closing the entrance into the Straits of Singapore from the High Seas of the
South China Sea or the exit from the Straits of Singapore into the South China
Sea would never had been raised in 1958.
Conclusion
The above mentioned new
evidences satisfies all the conditions of the Statute of the ICJ in making an
Application for Revision of Judgment.
The Application for Revision should it be carried forward is within the
ten year period since the date of Judgment in 2008. All the evidence, save one, were only made
recently available in the National Archives, UK. And each of the mentioned files reveals evidence
that is decisive that UK authorities knew that in Singapore’s unfolding
historical periods it never made a claim to have sovereignty over Pedra
Branca/Pulau Batu Puteh. The 1907 file;
the 1927 file; the 1953 file and the 1958 file all make a compelling case that
sovereignty over Pedra Branca/Pulau Batu Puteh was with the State and Territory
of Johore and this fact was known to the authorities in the UK, Singapore, Law
Commission for Territorial Waters and the Secretary General, United Nations.
It is the Republic of Singapore
that aggressively pushed a contemporary legal proposition that it had
sovereignty over Pedra Branca/Pulau Batu Puteh.
In the 1970’s the Republic of Singapore tabled several unchallenged
facts in establishing that it had sovereignty over Pedra Branca/Pulau Batu
Puteh. It refused permission for a
landing of a Malaysian survey team to land on Pedra Branca/Pulau Batu
Puteh. It provided evidence that its naval
patrol vessels were patrolling in the Territorial Waters of Pedra Branca/Pulau
Batu Puteh unchallenged. It showed a
file that its Military Helicopters carried Military equipment onto Pedra
Branca/Putau Batu Puteh unchallenged and that its Admiralty Court heard of a
shipwreck case in the vicinity of Pedra Branca/Pulau Batu Puteh. Based on these unchallenged facts the
Republic of Singapore in its pleadings set out to establish its contemporary
assertions backwards into the historical records. Much evidence was not disclosed from its
records to make its historical case. New
and decisive evidence recently opened by the National Archives, UK makes a
compelling case for an application for the revision of judgment as it
substantially alters the judgment assumptions.
The earliest evidence it had
was the 1920 Shipwreck that was heard in the Admiralty Court of the Colony of
the Straits Settlements in the Settlement of Singapore. The cases of all Admiralty Court hearings
under the Merchant Shipping Ordinance in the Settlement of Singapore; Colony of
Singapore and State of Singapore are officially published in Singapore. In
these Admiralty Court hearings sovereignty was not the cardinal principle of
hearing a shipping incident case in Singapore.
In 1907 and 1927 UK and Singapore authorities knew that Singapore’s
sovereignty did not extend over Pedra Branca/Pulau Batu Puteh and the Admiralty
Court would not have made a case in its official records that it heard the 1923
Shipwreck incident on Pedra Branca/Pulau Batu Puteh on grounds that the Colony
of the Straits Settlements had sovereignty over Pedra Branca/Pulau Batu Puteh. It is the contemporary Republic of Singapore
that made that bold and unchallenged assertion in its pleadings.
Similarly the 1953 letter of
the Acting State Secretary, Johore did not change the situation of sovereignty
over Pedra Brance/Pulau Batu Puteh. The
file was never translated into an active taking over of the sovereignty of
Pedra Branca/Pulau Batu Puteh by the Colony of Singapore. Indeed, the UK authorities in 1953 informed
the Law Commission for Territorial Waters and the Secretary-General, United
Nations that there was only one Agreement that demarcated the Territorial
Waters between Adjacent Countries in the Straits of Singapore.
In the 1958 newly disclosed
file all intrusions by Indonesian Patrol Vessels, 1955-1958, were recorded that
occurred within the Territorial Waters of the Colony of Singapore. There was one intrusion in the vicinity of
Pedra Branca/Pulau Batu Puteh and Singapore authorities acknowledged it as one
occurring within Johore’s Territorial Waters.
Its newspapers too confirmed the official view.
From newly released documents,
sovereignty over Pedra Branca/Pulau Batu Puteh was never with the unfolding
entity that started with the Settlement of Singapore within the Colony of the
Straits Settlements; down to the Colony of Singapore; State of Singapore and
finally the Republic of Singapore.
Sovereignty over Pedra Branca/Batu Puteh and its Territorial Waters was
and is with the State and Territory of Johore and the Singapore evidence that
is out of joint must be contextually reconstructed with the new evidence to restore
decisively its historical continuity.
Shaharil Talib
24th
March 2015
