New Facts for Revision Application

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. 

“Contrariwise,” continued Tweedledee, “if it was so, it might be; 
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 23^rd 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 23^rd 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 2^nd 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

24^th March 2015