Written Comments of Singapore on the Additional Written Observations of Malaysia

INTERNATIONAL COURT OF JUSTICE APPLICATION FOR REVISION OF THE JUDGMENT DELIVERED BY THE INTERNATIONAL COURT OF JUSTICE ON 23 MAY 2008 IN THE CASE CONCERNING SOVEREIGNTY OVER PEDRA BRANCA / PULAU BATU PUTEH, MIDDLE ROCKS AND SOUTH LEDGE (MALAYSIA / SINGAPORE) (MALAYSIA v. SINGAPORE) WRITTEN COMMENTS OF THE REPUBLIC OF SINGAPORE ON THE ADDITIONAL WRITTEN OBSERVATIONS OF MALAYSIA 12 FEBRUARY 2018 This page is intentionally left blank. WRITTEN COMMENTS OF THE REPUBLIC OF SINGAPORE CHAPTER I – INTRODUCTION .............................................................................. 1 A. Procedural Background to these Written Comments ................................. 1 B. Overview and Structure of these Written Comments ................................. 3 1. Malaysia’s Continued Failure to Satisfy “the Due Diligence and Temporal Criteria of Admissibility” ........................................................................................ 3 2. Malaysia’s Mischaracterisation of its “Newly Discovered Facts” .................. 5 3. Malaysia’s Flawed Case on Decisiveness......................................................... 5 4. Malaysia’s Disguised Appeal on the Merits...................................................... 6 CHAPTER II – MALAYSIA’S FAILURE TO SATISFY THE PROCEDURAL REQUIREMENTS FOR ADMISSIBILITY .............................................................. 9 A. The Documents that Malaysia Relies on ..................................................... 10 1. Annexes to the Application .............................................................................. 10 2. Annexures to the Additional Written Observations ......................................... 11 B. Malaysia’s “Newly Discovered Fact” Was Not Unknown When the Judgment Was Given .............................................................................................. 15 C. Malaysia Failed to Exercise Reasonable Diligence to Obtain the New Documents Before the Judgment Was Delivered ................................................. 19 D. Malaysia Failed to File the Application Within Six Months of the Alleged Discovery of the “New Fact” or the New Documents .......................................... 27 E. Conclusion ...................................................................................................... 31 CHAPTER III – THE IRRELEVANCE OF MALAYSIA’S DOCUMENTS ...... 33 A. Annex 1 to the Application – the 1958 correspondence ........................... 33 B. Annex 2 to the Application and Annexure A to the Additional Written Observations – Documents Relating to the 1958 Labuan Haji Incident ............ 36 C. Annex 3 to the Application and Annexures B and C to the Additional Written Observations – Documents Relating to the Sketch Map ....................... 39 D. Annexure D to the Additional Written Observations – the 1937 Johore Map ......................................................................................................................... 46 E. Conclusion ...................................................................................................... 50 i CHAPTER IV – MALAYSIA’S FAILURE TO MEET THE “DECISIVE FACTOR” REQUIREMENT FOR ADMISSIBILITY .......................................... 51 A. Overview of the “Decisive Factor” Requirement ....................................... 52 1. The Exceptional Nature of Revision ................................................................ 52 2. The Requirement that the New Fact Be of a Decisive Nature ......................... 53 B. The Basic Deficiencies of Malaysia’s Case and Its Mischaracterisation of Singapore’s Analysis of the Judgment .................................................................. 57 C. Malaysia’s New Documents Do Not Meet the “Decisive Factor” Requirement ............................................................................................................ 63 1. Annex 1 – 1958 Internal Correspondence Concerning Delimitation of Territorial Waters .................................................................................................. 64 2. Annex 2 – Documents Concerning the 1958 Labuan Haji Incident ................ 71 3. Annex 3 – Sketch Map of Restricted and Prohibited Areas ............................ 76 4. The 1937 Johore Map ...................................................................................... 81 D. Conclusion ........................................................................................................... 83 CHAPTER V – THE TRUE NATURE OF MALAYSIA’S REVISION APPLICATION: AN APPEAL ................................................................................. 85 SUMMARY OF SINGAPORE’S REASONING..................................................... 95 SUBMISSION ............................................................................................................. 99 ii LIST OF INSERTS Number Description Location Insert 1 Sketch map in Annex 3 to the Application annotated after page 42 (in red) to show the places in Singapore where the incidents recorded in Annexure C (serial numbers in blue) took place Insert 2 Item 34 in Annexure C to the Additional Written after page 44 Observations iii This page is intentionally left blank. WRITTEN COMMENTS OF THE REPUBLIC OF SINGAPORE CHAPTER I INTRODUCTION A. Procedural Background to these Written Comments 1.1 On 2 February 2017, Malaysia filed an application for revision (the “Application”) of the Judgment delivered by the Court on 23 May 2008 in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (the “Judgment”). The Application is accompanied by three Annexes. On 24 May 2017, Singapore filed its written observations (the “Written Observations”) on the admissibility of the Application. 1.2 On 9 June 2017, Malaysia requested the opportunity to submit further views on the admissibility of the Application, and to present further documentation. In a subsequent letter to the Court dated 23 June 2017, Malaysia stated that the further documentation “has only been found after the Application was filed” and that the documents “do not constitute a second application for revision”. 1.3 On 9 October 2017, the Court acceded to Malaysia’s request. On 11 December 2017, Malaysia filed its additional written observations and documentation (the “Additional Written Observations”). In accordance with the Court’s decision of 9 October 2017, Singapore now submits these written comments on the Additional Written Observations (these “Written Comments”). Unless expressly stated otherwise, the terms and abbreviations used in these Written Comments bear the same meaning as those used by Singapore in the Written Observations. - Page 1 - 1.4 At the outset, two aspects of the Additional Written Observations symptomatic of Malaysia’s general approach towards the Application deserve comment. First, the Additional Written Observations have made even more apparent that the Application is in effect an appeal of the Judgment, and an attempt to obtain a rehearing of the original case, rather than a proper request for revision. This will be elaborated upon in Chapter V below. Second, Malaysia has introduced documents in the Additional Written Observations that contradict the representations it made to the Court when it sought permission to file further written pleadings and documentation. These representations formed the basis of the Court’s grant of permission to do so. This is an abuse of process, on which Singapore will elaborate in Chapter II below. 1.5 In the Written Observations, Singapore showed that the Application fails to meet the conditions under Article 61 of the Statute and is therefore inadmissible. The Additional Written Observations do not remedy those deficiencies. On the contrary, Malaysia’s pleading: (a) again distorts, and even goes so far as to attack, the reasoning of the Court underlying its decision in the Judgment that sovereignty over Pedra Branca belongs to Singapore; (b) advances the wrong test for “decisiveness” at the admissibility stage of the revision procedure, which ignores the text of the Statute and the jurisprudence of the Court; (c) fails to deal with Singapore’s arguments in the Written Observations that Malaysia’s “newly discovered documents” have nothing to do with sovereignty over Pedra Branca, and do not affect the reasoning in the Judgment that supported the Court’s decision on sovereignty; - Page 2 - (d) fails to demonstrate how Malaysia’s “newly discovered documents” differ from similar documents that the Court regarded as irrelevant in the Judgment; (e) in an attempt to circumvent the requirements of Article 99 of the Rules, introduces still further documents, which, in any event, are completely irrelevant to the issue of sovereignty over Pedra Branca; and (f) still fails to explain how the Application satisfies the procedural requirements under Article 61 of the Statute, and in fact raises further doubts as to whether such requirements have been met. B. Overview and Structure of these Written Comments 1. MALAYSIA’S CONTINUED FAILURE TO SATISFY “THE DUE DILIGENCE AND TEMPORAL CRITERIA OF ADMISSIBILITY” 1.6 Chapter II of these Written Comments addresses Malaysia’s contention in the Additional Written Observations that it has met what it terms the “due diligence and temporal criteria of admissibility”1. As Singapore will demonstrate, notwithstanding the amount of ink spilt and voluminous documents annexed, Malaysia has still failed to show that it has overcome the

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