Reversing an ICJ judgement is tough, experts say

Professor Simon Chesterman, Dean of National University of Singapore Faculty of Law, explaining the difficulties in seeking a revision of a judgment from International Court of Justice. Malaysia has applied to overturn the 2008 ICJ judgment that ruled Pedra Branca as part of Singapore’s territory. CAMPUS EYE/Fikri Yeong (Singapore)

By Fikri Yeong

SINGAPORE, Mar 8 (Campus Eye) – Legal experts say Malaysia’s new claims on Pedra Branca is unlikely to succeed, since no country has ever succeeded in its application to reverse a judgment before the International Court of Justice (ICJ).

Malaysia’s new claims indicated that the British did not consider Pedra Branca to be part of Singapore’s sovereign territory, based on the new documents recently found in the National Archives of the United Kingdom.

On Feb 3, 2017, Malaysia applied for the revision of the 2008 ICJ judgment that awarded the sovereignty of Pedra Branca to Singapore.

“In the history of the ICJ of more than 70 years of cases, there were three other attempts to bring applications for revision on that basis. All three had been rejected,” said Professor Simon Chesterman, dean of the National University of Singapore Faculty of Law.

For instance, Tunisia’s application to overturn an ICJ judgment in 1985 proffered new facts based on internal Libyan correspondence.

This evidence, as Chesterman explains, is similar to Malaysia’s new evidence; namely the 1958 telegram sent from the Singapore Governor to British colonial authorities.

Libya’s case was rejected because its evidence is not a decisive fact, a necessary element to succeed.

It is difficult to revise judgments from the ICJ because of the high legal thresholds to meet, Chesterman explained.

Professor Alan Tan from the same faculty, specialising in Aviation Law and in International Regulation of Shipping said: “This threshold prevents states from re-opening a decided case on weak or frivolous grounds so that there can be certainty in the relations among states.”

Malaysia’s chances 

Chesterman said: “I think that if you are a betting person it would be a long shot.

“I would not rule anything out, but given the history of the International Court of Justice and their desire to be seen as a stable decision-making body, it is not likely to overturn its previous decisions on a whim.”

Singapore’s evidence as proffered in the ICJ hearing in 2007 remains a major challenge for Malaysia.

“While the Malaysia’s new document might chip away the reasoning of Singapore in the Pedra Branca case, it remains that there is a correspondence from Sultan of Johor saying that they do not claim the sovereignty of Singapore,” Chesterman said.

Chesterman said the problem that Malaysia faces before the ICJ is that the court would attribute different weight to the two pieces of evidence: the correspondence between the two governments about the sovereignty of Pedra Branca versus the internal Singapore-British correspondence that is the 1958 telegram.

“I think it is much more likely that countries put their minds to the sovereignty determination in exchanging letters between parties as opposed to internal correspondence like the telegram,” Chesterman explained.

For Tan, the key challenge for Malaysia is to explain away the 1953 letter by a Johor official stating that the Johor government did not claim ownership of Pedra Branca.

Political strategy

Even if Malaysia succeeds, it is not likely to win the hearts and minds of Malaysians.

The Pedra Branca issue comes conveniently at time where the country is going to hold its General Elections in 2018.

Dr Mustafa Izzuddin, a researcher at the Institute of Southeast Asian Studies-Yusof Ishak Institute specialising in Malaysia’s politic mentioned that while this matter might rally the Malaysians together, not everyone would see this as an issue that directly impacts them.

However, Mustafa notes that it might secure support of a few.

“But certainly if you are a nationalist, someone in Johor in particular, the government’s concerted effort to fight the evidence will resonate in the rural Malays,” he said.

 

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