Islet row hinges on new evidence
Since Feb 2, Malaysia has appealed to the International Court of Justice (ICJ) to reassess its 2008 ruling on a territorial dispute over an islet, Pedra Branca, in which the ICJ granted sovereignty rights to another party in the dispute, Singapore.
Singapore has administered Pedra Branca, which is called Palau Batu Puteh by Malaysia, since its predecessor, the United Kingdom, built a lighthouse there in 1850. In 1979, Malaysia published a map that showed the islet as part of its territorial waters, igniting the dispute that lasted for a few decades prior to the ruling by the ICJ.
Seeking a reevaluation of the verdict, Malaysia cites the discovery of new facts, which were previously inaccessible to it, that it says will prove that Singapore does not have sovereignty over the small islet. Since an application for the ICJ's reassessment of its ruling is quite rare, it is not only the international lawyers in Malaysia and Singapore who will be watching this closely but also many others in the global legal and academic communities.
Unlike domestic courts, the scope for reassessment of previous verdicts in many international courts is limited. In many cases, this is mainly due to a lack of an appellate court. Additionally, the scope for an international court to reassess its own ruling, as opposed to an appeal to a higher court, is even narrower.
And this latter course is what Malaysia has taken by filing an application to the ICJ to revise its verdict delivered on 23 May 2008 in the case concerning sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge.
The full application of Malaysia has yet to be uploaded on the ICJ's website. According to a press release issued by the ICJ, Malaysia seeks a revision of the judgement regarding the sovereignty over Pedra Branca/Pulau Batu Puteh which in 2008 was held to be the territory of Singapore.
Malaysia's application revolves on three documents: a 1958 internal correspondence of the Singapore colonial officials, an incident report filed in 1958 by a British naval officer and an annotated map of naval operations from the 1960s.
Malaysia argues that these documents have 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 those periods of time. It also claims that these documents were previously inaccessible to it because they were confidential materials which have only been accessible later on to the public after their release from the UK's National Archives.
Article 61(1) of the Statute of the ICJ keeps the possibility of revising a judgement on the discovery of new facts open but on very strict conditions. The provision states that: "An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence."
Thus, an application for the revision may be admissible only if there is a discovery of an unknown fact which could have been decisive, not even only material. This means the fact must be important enough that had it been known to parties in the dispute and the court before; the decision would have been different. Any party seeking the revision would also have to prove the lack of knowledge of the newly discovered fact (during the hearing of the prior case) was not due to its negligence.
It is therefore clear that Article 61(1) keeps the option of seeking a revision limited which is natural to ensure that meritless claims do not clog up the court. If the scope for the court's acceptance of petitions for revision is too liberal, it can encourage more petitions of this kind to be employed as a delaying tactic to prevent the enforcement of the court's judgement.
Thus, a petition of this nature is allowed for a party to either seek a correct judgement or reach the finality of a judgement. This is to ensure that litigations are not unduly dragged by the re-opening of settled cases.
At the risk of over-simplification, it can be said that a reading of the ICJ's 2008 judgment substantially hinged on Singapore's assertiveness regarding the sovereignty over the islet and Malaysia's inertia about the same. Hence, now the Malaysian legal team faces an uphill task to prove that its claimed newly discovered documents can trump such inertia so much to an extent that if they were discovered before the 2008 decision, the ICJ's judgement would have been different.
In the absence of the full application filed by Malaysia and the pleadings by the parties, it is difficult to predict how the ICJ judges would apply Article 61(1).
However, the ICJ's previous decisions on other similar cases were not in favour of those seeking a revision of its rulings. In the past, there have been only three prior applications for revision of the ICJ's judgements: El Salvador against Honduras in 2002, Yugoslavia against Bosnia and Herzegovina in 2001, and Tunisia against Libya in 1984. The ICJ held all of them to be inadmissible.
The Malaysian application for revision must be made within a 10-year period of the judgment and prima facie within six months of the discovery of the new facts. This means that it meets the procedural threshold for the admissibility of its application under Article 61.
Lodging an application for reassessment of the court's decision is a much better way of resolving territorial conflicts than the recent displays of military deployments that are occurring in some other territorial disputes in other parts of Asia.
Md. Rizwanul Islam is an Associate Professor at School of Law, BRAC University in Bangladesh.