COMMENT | Sovereignty over Pulau Batu Puteh: A legal dispute?

COMMENT | On July 6, 2017, I shared my views on Malaysia’s decision to submit an application for review and to interpret the International Court of Justice’s (ICJ) earlier judgment regarding the case concerning sovereignty over Pedra Branca/Pulau Batu Puteh of May 23, 2008, to the ICJ.

Since then, Malaysia has withdrawn its application on May 28, 2018. The ICJ had thereafter ordered that the application be removed from the court’s list, ending the proceedings. 

Recently, the issue was resurrected by the government when Prime Minister Ismail Sabri Yaakob said that it would establish a task force on the matter to, among others, “propose suitable options by obtaining views from international legal experts on laws regarding a request to review and interpret the Pulau Batu Puteh case”.

To clarify, Malaysia’s application to the court in February 2017 was not an appeal but a revision application. Unlike in domestic courts, all judgments of the ICJ are final and without appeal. 

A revision application is only entertained by the court if certain conditions are met. Firstly, it must be made within 10 years from the court's initial judgment, in this case, 10 years from May 23, 2008.

Various arguments

Further, the revision application must be made on the basis that Malaysia had discovered “new facts” and that the application was made within six months of this discovery.

In its reply to Malaysia’s application at the ICJ, Singapore had submitted various arguments to counter Malaysia’s application, including the fact that Malaysia had not met the conditions for a revision application and that the application was in the guise of an appeal. 

As Malaysia withdrew the application, the issue is now moot, and we will never know for certain whether Malaysia would have succeeded in its application for revision.

What is clear is that there is no remaining legal recourse for Malaysia regarding the matter before the ICJ. 

A task force on the subject should, therefore, not be focused on pursuing the matter further at the international legal forums. 

Overlapping claims

Rather, if any, the task force should examine and make public, in the interest of the taxpayers, how decisions were made, and if any concrete recommendations were mooted to meet any shortcomings to better prepare for future international litigations, given that Malaysia does have overlapping claims with other nations and may very well end up before an international court or tribunal again in the future.

In terms of establishing who did what (or failed to do) and why, I would also encourage the government to take a few steps back by also examining what had transpired at the initial proceedings from 2003-2008. 

Singapore had in 2017 responded to Malaysia’s review application by stating, among others, that Malaysia was not a diligent litigant and was, in fact, negligent.

Malaysia did not carry out extensive research in the UK National Archives or had not requested access to the newly discovered documents from the UK Foreign and Commonwealth Office, namely the internal correspondence of the Singapore colonial authorities in 1958, the incident report filed in 1958 by a British naval officer, and an annotated map of naval operations before the delivery of the judgment in 2008.

Season of healing

If Malaysia had done so, it could have discovered these documents during the initial proceedings.

Was this, in fact, the case? If so, why was this not done? Could it have changed the outcome? It would, in Malaysia’s view, hence the review application in 2017.

Importantly, I believe that the people would also be interested to know the total financial costs incurred (direct and indirect) by the government from 2003 until the withdrawal of the application in May 2018, including on legal costs paid to world-renowned international lawyers who advised and represented Malaysia (and who would likely be consulted by the current task force). 

Finally, in this season of healing for the nation, it is hoped that the task force’s findings will lead to concrete changes and improvements as to how the government handles such matters.

Hopefully, with this, Malaysia will be better prepared for its next appearance at the court.

SHAUN KANG is a researcher in international law.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.