Subject: Re: Two new enclaves??
Date: Jun 18, 2003 @ 13:14
Author: acroorca2002 ("acroorca2002" <orc@...>)
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> Please see the decision of the international court of justicebelow
> six months ago. The following question arises:sea
>
> Q: That these two islands apparently lie south of a line in the
> at 4'10" and are declared by the court to be under thesovereignty of
> the nation to the north (Malaysia), does that mean they formenclaves
> inside Indonesian territorial waters?Justice (ICJ),
>
>
>
> --
> DECISION SYNOPSIS
>
> 17 December 2002
>
> Sovereignty over Pulau Ligitan and Pulau Sipadan
> (Indonesia/Malaysia)
>
> The Court finds that sovereignty over the islands of Ligitan and
> Sipadan belongs to Malaysia
>
> THE HAGUE, 17 December 2002. The International Court of
> principal judicial organ of the United Nations, has today givenLigitan and
> Judgment in the case concerning Sovereignty over Pulau
> Pulau Sipadan (Indonesia/Malaysia).the
>
> In its Judgment, which is final, without appeal and binding for
> Parties, the Court finds, by sixteen votes to one, that"sovereignty
> over Pulau Ligitan and Pulau Sipadan belongs to Malaysia".Ligitan and
> Sipadan are two very small islands located in the CelebesSea, off the
> north-east coast of the island of Borneo.background of the
>
> Reasoning of the Court
>
> The Court begins by recalling the complex historical
> dispute between the Parties. It then examines the titles invokedby
> them. Indonesia's claim to sovereignty over the islands isbased
> primarily on a conventional title, the 1891 Convention betweenGreat
> Britain and the Netherlands. Indonesia thus maintains that thatthe
> Convention established the 4° 10' north parallel of latitude as
> dividing line between the British and Dutch possessions in thearea
> where Ligitan and Sipadan are situated. As the disputedislands lie to
> the south of that parallel, "[i]t therefore follows that under theand now
> Convention title to those islands vested in The Netherlands,
> vests in Indonesia". Malaysia, for its part, asserts that the 1891Britain and
> Convention, when seen as a whole, clearly shows that Great
> the Netherlands sought by the Convention solely to clarify theislands of
> boundary between their respective land possessions on the
> Borneo and Sebatik, since the line of delimitation stops at theand
> easternmost point of the latter island.
>
> After examining the 1891 Convention, the Court finds that the
> Convention, when read in context and in the light of its object
> purpose, cannot be interpreted as establishing an allocationline
> determining sovereignty over the islands out to sea, to the eastof
> the island of Sebatik, and as a result the Convention does notLigitan
> constitute a title on which Indonesia can found its claim to
> and Sipadan. The Court states that this conclusion isconfirmed both
> by the travaux préparatoires and by the subsequent conduct ofthe
> parties to the Convention. The Court further considers that thedoes not
> cartographic material submitted by the Parties in the case
> contradict that conclusion.Malaysia
>
> Having rejected this argument by Indonesia, the Court turns to
> consideration of the other titles on which Indonesia and
> claim to found their sovereignty over the islands of Ligitan andobtained a
> Sipadan. The Court determines whether Indonesia or Malaysia
> title to the islands by succession. The Court begins in thisthat the
> connection by observing that, while the Parties both maintain
> islands of Ligitan and Sipadan were not terrae nullius duringthe
> period in question in the present case, they do so on the basisof
> diametrically opposed reasoning, each of them claiming tohold title
> to those islands. The Court does not accept Indonesia'scontention
> that it retained title to the islands as successor to theNetherlands,
> which allegedly acquired it through contracts concluded withthe
> Sultan of Bulungan, the original title-holder. Nor does the Courtthe
> accept Malaysia's contention that it acquired sovereignty over
> islands of Ligitan and Sipadan further to a series of allegedSpain,
> transfers of the title originally held by the former sovereign, the
> Sultan of Sulu, that title having allegedly passed in turn to
> the United States, Great Britain on behalf of the State of NorthIreland and
> Borneo, the United Kingdom of Great Britain and Northern
> finally to Malaysia.to
>
> Having found that neither of the Parties has a treaty-based title
> Ligitan and Sipadan, the Court next considers the questionwhether
> Indonesia or Malaysia could hold title to the disputed islandsby
> virtue of the effectivités cited by them. In this regard, the Courtbased on
> determines whether the Parties' claims to sovereignty are
> activities evidencing an actual, continued exercise of authorityover
> the islands, i.e., the intention and will to act as sovereign.Dutch and
>
> Indonesia cites in this regard a continuous presence of the
> Indonesian navies in the vicinity of Ligitan and Sipadan. It addsthat
> the waters around the islands have traditionally been used byarguments, it
> Indonesian fishermen. In respect of the first of these
> is the opinion of the Court that "it cannot be deduced [from thefacts
> relied upon in the present proceedings] that the navalauthorities
> concerned considered Ligitan and Sipadan and thesurrounding waters to
> be under the sovereignty of the Netherlands or Indonesia". Asfor the
> second argument, the Court considers that "activities by privateon
> persons cannot be seen as effectivités if they do not take place
> the basis of official regulations or under governmentalauthority".
>effectivités, the
> Having rejected Indonesia's arguments based on its
> Court turns to consideration of the effectivités relied on byislands,
> Malaysia. As evidence of its effective administration of the
> Malaysia cites inter alia the measures taken by the NorthBorneo
> authorities to regulate and control the collecting of turtle eggson
> Ligitan and Sipadan, an activity of some economic significancein the
> area at the time. It relies on the Turtle Preservation Ordinanceof
> 1917 and maintains that the Ordinance "was applied until the1950s at
> least" in the area of the two disputed islands. It further invokesthe
> fact that the authorities of the colony of North Borneoconstructed a
> lighthouse on Sipadan in 1962 and another on Ligitan in 1963,that
> those lighthouses exist to this day and that they have beenmaintained
> by Malaysian authorities since its independence. The Courtnotes that
> "the activities relied upon by Malaysia . . . are modest innumber but
> . . . they are diverse in character and include legislative,considerable
> administrative and quasi-judicial acts. They cover a
> period of time and show a pattern revealing an intention toexercise
> State functions in respect of the two islands in the context ofthe
> administration of a wider range of islands". The Court furtherstates
> that "at the time when these activities were carried out, neitherexpressed its
> Indonesia nor its predecessor, the Netherlands, ever
> disagreement or protest".belongs
>
> The Court concludes, on the basis of the effectivités referred to
> above, that "sovereignty over Pulau Ligitan and Pulau Sipadan
> to Malaysia".Vice-President
>
> Composition of the Court
>
> The Court was composed as follows: President Guillaume;
> Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma,Weeramantry and
> Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek,
> Al-Khasawneh, Buergenthal and Elaraby; Judges ad hoc
> Franck; Registrar Couvreur.Court; Judge ad
>
> Judge Oda appends a declaration to the Judgment of the
> hoc Franck appends a dissenting opinion to the Judgment ofthe Court.
>Press
> ___________
>
> A fuller summary of the Judgment will subsequently be given in
> Communiqué No. 2002/39bis. The full text of the Judgment,Judge Oda's
> declaration and Judge ad hoc Franck's opinion, together withthe Press
> Communiqués, is available on the Court's Internet site(www.icj-cij.org).
>70
> ___________
>
> Information Department:
> Mr. Arthur Th. Witteveen, First Secretary of the Court (tel.: +31
> 302 2336)(tel.:
> Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers
> +31 70 302 2337)
> E-mail address: information@i...