By Jing Zhi Wong
The sovereignty over ‘South Ledge’, ‘Pedra Branca’ and ‘Middle Rocks’ were the bones of contention in a dispute referred to the International Court of Justice (ICJ) by Singapore and Malaysia in 2003 by way of Special Agreement. In 2008, while Pedra Branca was awarded to Singapore and Middle Rocks to Malaysia, the Court refrained from ruling on the sovereignty over South Ledge. The Court, recalling in the Special Agreement that it had not been mandated to delimit the territorial waters of both States in the area, ruled that South Ledge – a low-tide elevation – belongs to the State in the territorial waters of which it is located as per Article 13 of the United Nations Convention on the Law of the Sea (UNCLOS), and observations in Qatar v. Bahrain.
Nine years on, both nations have yet to address the delimitation of maritime boundaries between the territorial waters and the sovereignty over South Ledge, despite the establishment of a Joint Technical Committee to resolve these issues. The impasse is due to a complex puzzle of apparent overlapping territorial waters generated by the mainland of Malaysia, Pedra Branca (Singapore) and Middle Rocks (Malaysia). Cambodia’s recent success in the Temple case has led to Malaysia requesting of the ICJ an interpretation of the meaning and scope of parts of the 2008 judgment which Malaysia claims both nations cannot agree on – namely the sovereignty over South Ledge, and the waters surrounding Pedra Branca respectively.
The Court must be satisfied that the request is not in effect an appeal or review of the 2008 judgment, and there must be between the parties a ‘divergence or opposite views on the meaning and scope of the judgment’. Malaysia seeks a determination of sovereignty over South Ledge and surrounding waters. Seeking such a determination when the Court deliberately refrained from doing so seems like an attempt to question the findings of the original judgment, which could lead to it being rejected per the res judicata principle.
Alternatively, suppose that the Court agreed to an interpretation or that both parties agreed to refer this impasse ex aequo et bono to the ICJ. Until then, developments in the region surrounding the area in contention could affect the outcome of the rulings. The 2008 judgment is binding on the parties to the case. As a result, activity in the region seems to be an attempt to safeguard Malaysia’s interests, and possibly influence the rulings (if any) in their favour.
It is in every nation’s interest to safeguard their territorial sovereignty and dispute lost territory, especially if they have had a historical interest in that particular territory. In the 2008 judgement, the Court ruled that the Crawfurd Treaty of 1824 meant the Sultan of Johor (predecessor of Malaysia) ceded the island of Singapore and islets to extent of ten miles from the island of Singapore to the East India Company (predecessor of UK and Singapore), but this did not include the islands of Pedra Branca and Middle Rocks. However with time, the title to Pedra Branca passed over to the UK (and Singapore) by virtue of the Sultan of Johor having acquiesced to the UK’s conduct à titre de souverain. The exercise of sovereignty by the UK on Pedra Branca in the construction and operation of a lighthouse on the island from 1844 and the apparent lack of formal protest from the Sultan of Johor estopped Malaysia from counterclaiming against Singapore.
Post-judgment, Malaysia appears to have learnt from history and increases its military presence in the area. In August 2017, Malaysia built a military facility on Middle Rocks, allowing them to monitor traffic in the area. This not only safeguards Malaysia’s interests in Middle Rocks, but strengthens their case. The active assertion of sovereignty on Middle Rocks and surrounding waters prevents the derogation and intrusion on territory by foreign nations, preventing further territory being lost through acquiescence. This act also circumvents Article 121(3) of the UNCLOS. By maintaining a garrison and sustaining human habitation on Middle Rocks, Malaysia is able to counter propositions, such as in Philippines v China, that such rocks do not have an exclusive economic zone of its own.
International law is fluid and influenced by political pressures and circumstances of the day. In disputes over territorial sovereignty, it is often the conduct of nations in respect of the territory in question that determines ownership of title, similar to concepts of Adverse Possession in domestic law. Incursions onto disputed territory with intent of acquiring a better claim to them may lead to escalating tensions in the region, especially in situations pending a ruling from the ICJ. Perhaps it is in the interest of friendship and peace that both parties maintain the status quo, reach a compromise and consider holding these maritime features in condominia.
Jing-Zhi (Benjamin) Wong majors in Engineering Science and Law and Society at the University of Western Australia. He has also written a follow up article on the merits of Malaysia’s Pedra Branca judgment ICJ review application.
 Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore) (Judgement) (International Court of Justice, General List No 130, 23 May 2008) arts -
 Ibid,  – .
 Ibid,  – .
 Ibid, .
 Temple of Preah Vihear (Cambodia v Thailand) (Judgement) (International Court of Justice, General List No 151, 11 November 2013).
 Malaysia v. Singapore – Request for interpretation of the judgement of 23 May 2008 in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (Malaysia v. Singapore) (International Court of Justice, General List No 170, 30 June 2017)  – ,  – . http://www.icj-cij.org/files/case-related/170/170-20170630-APP-01-00-EN.pdf; Statute of the International Court of Justice art 60.
 Andreas Kulick, ‘Article 60 ICJ Statute, Interpretation Proceedings, and the Competing Concepts of Res Judicata’ (2015) 28 Leiden Journal of International Law 73, 75-7.
 A case already decided should not be reopened.
 Statute of the International Court of Justice art 59.
 Justin Ong, ‘Malaysia throwing ‘the kitchen sink’ with second pedra branca challenge, says experts’, Channel NewsAsia (online), 24 July 2017 < http://www.channelnewsasia.com/news/singapore/malaysia-throwing-the-kitchen-sink-with-second-pedra-branca-9059270?cid=FBcna>.
 Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore) (Judgement) (International Court of Justice, General List No 130, 23 May 2008) , .
 Ibid,  – .
 Estoppel by acquiescence; Ian Brownlie, Principles of Public International Law (Oxford University Press, 7th ed, 2008) 151-4.
 Malaysia, ‘Malaysia opens new maritime base at Middle Rocks, near Pedra Branca’, Channel NewsAsia (online), 5 August 2017 < http://www.channelnewsasia.com/news/singapore/malaysia-opens-new-maritime-base-at-middle-rocks-near-pedra-9094606 >. Military activity is seen to be conduct à titre de souverain by the Court in Pedra Branca/Pulau Batu Puteh.
 South China Sea Arbitration (Philippines v China) (Award) (UNCLOS Arbitral Tribunal, 12 July 2016) .