[OPINION] Finality of the ICJ rulings: Can the ICJ decision on the Batu Puteh case be “appealed”?

Introduction

In an article published by The Star dated 9 December 2024, it stated that “Malaysia had strong grounds to appeal a 2008 world court decision that awarded the island to Singapore”, the contentious Batu Puteh (Pedra Branca) decided by the International Court of Justice (ICJ). In 2008, the ICJ awarded the island to Singapore, citing key evidence, among others, a 1953 letter from the Johor Acting State Secretary disclaiming ownership and Singapore’s long-standing administration of the territory.

Although Malaysia attempted to revisit the case in 2017 based on newly discovered documents, the review application was withdrawn in 2018. While Malaysia’s intent to protect its national interests and sovereignty over the Batu Puteh’s claim is commendable, the ICJ decision-making process is governed by strict legal criteria under Chapter III of the ICJ Statute, particularly Articles 60 and 61 of the Statute.

This article examines such statement through the lens of international law, focusing on the ICJ Statute and the famous and leading case of Temple of Preah Vihear between Cambodia and Thailand to clarify on the finality of the ICJ decision and whether such a decision can be revisited via an appeal under international law.

The Finality and Binding Nature of the ICJ Rulings

The ICJ is the principal judicial organ of the United Nations, tasked with resolving disputes between states based on international law. Two key principles governing its rulings: that its decision is binding between the parties concerned and its judgment is final and without appeal pursuant Articles 59 and 60 of the ICJ Statute.

These principles ensure, among others, its legal certainty, preventing endless disputes that could undermine the stability of international relations. States rely on the ICJ to resolve conflicts definitively, allowing them to move forward rather than revisiting resolved issues. The binding nature of ICJ judgments, meanwhile, reinforces the rule of law by requiring states to respect the decisions of the Court and adhere to its legal authority.

However, the only exception to the ICJ finality is provided under Article 61 of its Statute, whereby it allows for a “revision” of its judgments under strict conditions, but not to “appeal” for its judgments. A state seeking revision must present a new fact that was unknown to both the Court and the parties concerned at the time of the judgment, demonstrate that this fact is decisive enough to alter its outcome, and prove that it was not negligent in failing to bring this fact forward at the earliest.

Even if Malaysia’s intent to apply for revision of the ICJ decision on Batu Puteh met these criteria, such application for revision must be filed within six months after the discovery of the new fact(s) and must be filed within ten years after the judgment was made as legally required under Articles 61(4) and (5) of its Statute. Given that the ICJ’s decision on Batu Puteh was made in 2008, any revision application to be filed now exceeded the ten-year limit, making it inadmissible based on the above legal requirements.

These requirements ensure that the revision process is not misused to, among others, prolong disputes between the parties and undermine the ICJ’s credibility.

The Landmark Case of the Temple of Preah Vihear on the Finality of the ICJ Decision

The Temple of Preah Vihear case between Cambodia and Thailand is a landmark example of how the ICJ strictly adheres to the principles of finality and the binding nature of its judgments. In 1962, the ICJ ruled that Cambodia had sovereignty over the temple based on historical evidence and maps. This judgment settled a contentious dispute and was intended to provide lasting resolution.

However, decades later, Thailand contested the interpretation of the term “vicinity” in the ruling when it applied to the ICJ to revisit the ICJ decision made in 1962, reigniting disputes over land surrounding the temple. In 2013, the ICJ provided an interpretation of its 1962 judgment, affirming Cambodia’s sovereignty not just over the temple but also its surrounding promontory. Importantly, the ICJ rejected Thailand’s arguments to reinterpret the judgment more favorably to its claims.

The Court clarified that its decisions are not analogous to treaties, which can be influenced by subsequent state practices. Instead, ICJ judgments are final and definitive determinations of legal disputes, ensuring that the Court’s authority is preserved, and international stability is maintained.

This case is directly relevant to Malaysia’s potential appeal regarding Batu Puteh as it highlights two critical principles. First, ICJ judgments are final unless specific revision criteria under Article 61 of the ICJ Statute are met. For a revision to be considered, the appealing state must present a newly discovered fact unknown at the time of the original proceedings, which is significant enough to have altered the outcome. As for the Temple of Preah Vihear, Thailand’s failure to meet these criteria serves as a reminder of the strict standards required for revisiting ICJ rulings.

Second, the ICJ’s handling of the Preah Vihear case illustrates its commitment to protecting its judicial authority by discouraging frivolous challenges. The rejection of Thailand’s attempt to reopen the case underscores the ICJ’s role in ensuring the finality of legal decisions, fostering stability in international relations, and maintaining the rule of law.

For the general public, this case demonstrates the ICJ’s function as a decisive arbiter in resolving international disputes, ensuring clarity and stability. For academics and policymakers, it offers insight into the stringent legal standards governing ICJ to review its decisions.

Without new, decisive evidence and most importantly within the time limit, any revision application risks being dismissed outright, as seen with Thailand’s failed efforts to reinterpret the Preah Vihear rulings. In the context of Batu Puteh, the Preah Vihear case underscores the necessity of presenting a strong, evidence-backed legal basis for any application for revision.

It serves as a caution against pursuing cases driven by dissatisfaction rather than substantive legal grounds, emphasising that the ICJ prioritizes finality to uphold its credibility and the broader international legal order. Nonetheless, these must be made within the stipulated legal time framed.

Conclusions

Pursuing an ICJ revision of its rulings without clear legal grounds and within the time limit could have significant repercussions for any states. Revisiting a settled dispute might damage states’ reputation as responsible members of the international community, as it could undermine trust in the ICJ’s role in preserving legal certainty and international stability. Calls for revision over the Batu Puteh decision, although

it met the legal criteria but not within the stipulated time makes Malaysia’s application, if at all, be simply dismissed based on the finality principle of the ICJ rulings which surpassed the time limit.

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* The article is written by Nurul Azyani Zafirah Sabaruddin is a final year LL. B and Shariah student, Dr. Fareed Mohd Hassan and Assoc. Prof. Dr. Mohd Hazmi Mohd Rusli are Senior Lecturer and Associate Professor at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia.

** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.

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