SINGAPORE: Malaysia’s second attempt to contest Singapore’s sovereignty over Pedra Branca within the space of four months points to a bid to “do what they can” against a backdrop of domestic political factors, said experts on international law, politics and history.
On Jun 30, Malaysia filed an application to the International Court of Justice (ICJ) requesting interpretation of a 2008 judgment which awarded sovereignty of Pedra Branca to Singapore, nearby islet Middle Rocks to Malaysia and the South Ledge outcrop to “the state in whose territorial waters it is located”.
Malaysia’s new application claims South Ledge, along with the waters surrounding Pedra Branca, as located within its territorial waters.
This is "separate and autonomous to" an earlier application in February seeking revision of the same ICJ judgment, which hinged on Malaysia presenting three newly discovered documents to argue Singapore’s ownership of Pedra Branca.
“These two applications … can, in one sense, be seen as thorough work by lawyers,” said Professor Simon Chesterman, dean of the National University of Singapore’s law faculty.
“But they also suggest an effort to leave no stone unturned. Even if the ICJ rejects both applications, which seems likely, they would deflect any suggestion that Malaysia’s lawyers did not explore every possible means of overturning or at least challenging the 2008 decision.”
But he said the two applications, which come before the May 23, 2018 deadline for a revision request, had “a whiff of the kitchen sink about them”.
“Malaysia is throwing every possible argument at the Court in the hope of getting a preferable outcome – or at least not being seen as failing to do so for want of trying,” said Prof Chesterman, a known authority on international law.
Dr Mustafa Izzuddin, fellow at the Institute of Southeast Asian Studies (ISEAS)-Yusof Ishak Institute, agreed.
“As with the case in Malaysia's application in February, the latest application does not seem to hold water and is unlikely to stand up to scrutiny. Singapore's position remains sound and principled ... under the auspices of international law, and thus, it is extremely unlikely that there will be changes to the 2008 ICJ judgment,” he observed.
“There is a realistic recognition on the part of Malaysian policymakers that the ICJ will not reverse its judgment on Pedra Branca belonging to Singapore. So what they are hoping to do instead is to get the most out of the adjudication, by getting the ICJ to rule that the waters around Pedra Branca as well as the sovereignty of South Ledge belong to Malaysia.”
REVISION VS INTERPRETATION
Prof Chesterman also explained the difference between Malaysia’s February “revision” application and the June “interpretation” application.
The former seeks to overturn the 2008 decision giving Pedra Branca to Singapore, but there is no historical precedent - all three previous attempts to use this procedure at the ICJ have failed, noted the professor.
“The more recent application … is an alternative approach that does not challenge the 2008 decision but says that it was unclear in its meaning and scope.” He said this “interpretation” approach has been used with success in the past, most recently by Cambodia in 2013 for a 1962 decision relating to a temple sitting on its border with Thailand.
But this type of application cannot be used to ask the ICJ “to decide something new” - which is what Malaysia is doing.
“Since the 2008 Pedra Branca case explicitly excluded the maritime boundary between Malaysia and Singapore, it is not clear how a request to find that (Pedra Branca’s surrounding) waters belong to Malaysia is merely an ‘interpretation’ of that earlier decision.”
“Though interpretations are usually nuances on the original case, here a finding on territorial waters could be of vastly greater significance than who owns the lighthouse and the rocks.”
Added Prof Chesterman: “An additional complication is that Indonesia may also have a claim to the relevant waters.”
“A TACTICAL GAMBIT”
Associate Professor Kevin Blackburn, a historian at the National Institute of Education (NIE), pointed to another complexity arising from the 2008 ruling, this time centered on South Ledge.
“These rocks are very close together and present problems in drawing up maritime boundaries. However, these really just required cooperation between Singapore and Malaysia to solve.”
To that end, a Malaysia-Singapore Joint Technical Committee (MSJTC) was set up. But in full documents released by ICJ in mid-July, Malaysia said the committee “failed to achieve its stated aims” with an “impasse” and “deadlock” since November 2013.
“Throughout the post-judgment period, both Malaysia and Singapore have issued a large number of official protests in respect of incidents alleged to have taken place on, over and around South Ledge, as well as in the disputed waters surrounding Pedra Branca and the airspace above these waters,” Malaysia added.
“The ongoing uncertainty as to which state is sovereign over South Ledge and the airspace and maritime spaces over and around both South Ledge and Pedra Branca continues to complicate the task of ensuring orderly and peaceful relations. Given the high volume of aerial and maritime traffic in the area, the need to achieve a viable solution to this dispute is pressing.”
This claim, said Dr Mustafa, is “a tactical gambit to compel and convince the ICJ to rule, in Malaysia's favour”.
“LOSE PEDRA BRANCA, GAIN EVERYTHING ELSE”
According to Dr Mustafa, Malaysia’s new application represents a willingness to “lose Pedra Branca but gain everything else”.
This would still “satisfy the domestic populace in the UMNO-led government's efforts to protect Malaysia's territorial integrity”, he explained, referring to the United Malays National Organisation.
Calling the second submission in June “a deliberative strategic attempt on the part of the Malaysian authorities to keep the Pedra Branca issue alive for domestic consumption”, Dr Mustafa reiterated what he told Channel NewsAsia in February: “It does not escape notice that the elections are round the corner in Malaysia.”
Not giving up on Pedra Branca is perhaps a way of appeasing the electorate, and in particular the more nationalistic voters, most of whom are Malays, noted the expert on party politics in Malaysia.
“Not to mention that Johor, which has the greatest vested interest in reclaiming Pedra Branca, is a stronghold of UMNO and therefore, crucial in electoral terms for the current government to be returned to power after the elections,” said Dr Mustafa. “Even more so considering that the newly formed Bersatu party are working hard to make inroads into the Johorean State.”
“GOOD NEIGHBOURS DON’T KEEP TAKING EACH OTHER TO COURT”
Dr Mustafa also held firm to an earlier belief shared with Channel NewsAsia - that an “amicable” solution to the Pedra Branca issue would be found.
“Because of the existing positive atmospherics in Malaysia-Singapore relations, mutual bilateral cooperation based on political trust is still more likely. There is no danger of a derailment, or worse still, a rupture in Malaysia-Singapore relations,” he said.
But Assoc Prof Blackburn said Malaysia’s second application only served to reinforce what he saw as historical baggage with Singapore.
“Even though Malaysia is seeking to resolve the issue peacefully through international law, it is analogous to a situation where your neighbour is taking you to court again to settle a property boundary line dispute because he did not get the result he wanted the first time.”
“Good neighbours don't keep taking each other to court.”
“The 2008 case should have settled it,” he said. “Of course, Malaysia is just exercising its rights within international law. And other nation-states that have been good friends have used the international courts to resolve their disputes.
“But to come back for a second time does indicate it is part of a long run of disputes that go back to the separation of the two countries in 1965.”