Please see the decision of the international court of justice below
six months ago. The following question arises:
Q: That these two islands apparently lie south of a line in the sea
at 4'10" and are declared by the court to be under the sovereignty of
the nation to the north (Malaysia), does that mean they form enclaves
inside Indonesian territorial waters?
--
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 Justice (ICJ),
principal judicial organ of the United Nations, has today given
Judgment in the case concerning Sovereignty over Pulau Ligitan and
Pulau Sipadan (Indonesia/Malaysia).
In its Judgment, which is final, without appeal and binding for the
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 Celebes Sea, off the
north-east coast of the island of Borneo.
Reasoning of the Court
The Court begins by recalling the complex historical background of the
dispute between the Parties. It then examines the titles invoked by
them. Indonesia's claim to sovereignty over the islands is based
primarily on a conventional title, the 1891 Convention between Great
Britain and the Netherlands. Indonesia thus maintains that that
Convention established the 4° 10' north parallel of latitude as the
dividing line between the British and Dutch possessions in the area
where Ligitan and Sipadan are situated. As the disputed islands lie to
the south of that parallel, "[i]t therefore follows that under the
Convention title to those islands vested in The Netherlands, and now
vests in Indonesia". Malaysia, for its part, asserts that the 1891
Convention, when seen as a whole, clearly shows that Great Britain and
the Netherlands sought by the Convention solely to clarify the
boundary between their respective land possessions on the islands of
Borneo and Sebatik, since the line of delimitation stops at the
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 and
purpose, cannot be interpreted as establishing an allocation line
determining sovereignty over the islands out to sea, to the east of
the island of Sebatik, and as a result the Convention does not
constitute a title on which Indonesia can found its claim to Ligitan
and Sipadan. The Court states that this conclusion is confirmed both
by the travaux préparatoires and by the subsequent conduct of the
parties to the Convention. The Court further considers that the
cartographic material submitted by the Parties in the case does not
contradict that conclusion.
Having rejected this argument by Indonesia, the Court turns to
consideration of the other titles on which Indonesia and Malaysia
claim to found their sovereignty over the islands of Ligitan and
Sipadan. The Court determines whether Indonesia or Malaysia obtained a
title to the islands by succession. The Court begins in this
connection by observing that, while the Parties both maintain that the
islands of Ligitan and Sipadan were not terrae nullius during the
period in question in the present case, they do so on the basis of
diametrically opposed reasoning, each of them claiming to hold title
to those islands. The Court does not accept Indonesia's contention
that it retained title to the islands as successor to the Netherlands,
which allegedly acquired it through contracts concluded with the
Sultan of Bulungan, the original title-holder. Nor does the Court
accept Malaysia's contention that it acquired sovereignty over the
islands of Ligitan and Sipadan further to a series of alleged
transfers of the title originally held by the former sovereign, the
Sultan of Sulu, that title having allegedly passed in turn to Spain,
the United States, Great Britain on behalf of the State of North
Borneo, the United Kingdom of Great Britain and Northern Ireland and
finally to Malaysia.
Having found that neither of the Parties has a treaty-based title to
Ligitan and Sipadan, the Court next considers the question whether
Indonesia or Malaysia could hold title to the disputed islands by
virtue of the effectivités cited by them. In this regard, the Court
determines whether the Parties' claims to sovereignty are based on
activities evidencing an actual, continued exercise of authority over
the islands, i.e., the intention and will to act as sovereign.
Indonesia cites in this regard a continuous presence of the Dutch and
Indonesian navies in the vicinity of Ligitan and Sipadan. It adds that
the waters around the islands have traditionally been used by
Indonesian fishermen. In respect of the first of these arguments, it
is the opinion of the Court that "it cannot be deduced [from the facts
relied upon in the present proceedings] that the naval authorities
concerned considered Ligitan and Sipadan and the surrounding waters to
be under the sovereignty of the Netherlands or Indonesia". As for the
second argument, the Court considers that "activities by private
persons cannot be seen as effectivités if they do not take place on
the basis of official regulations or under governmental authority".
Having rejected Indonesia's arguments based on its effectivités, the
Court turns to consideration of the effectivités relied on by
Malaysia. As evidence of its effective administration of the islands,
Malaysia cites inter alia the measures taken by the North Borneo
authorities to regulate and control the collecting of turtle eggs on
Ligitan and Sipadan, an activity of some economic significance in the
area at the time. It relies on the Turtle Preservation Ordinance of
1917 and maintains that the Ordinance "was applied until the 1950s at
least" in the area of the two disputed islands. It further invokes the
fact that the authorities of the colony of North Borneo constructed a
lighthouse on Sipadan in 1962 and another on Ligitan in 1963, that
those lighthouses exist to this day and that they have been maintained
by Malaysian authorities since its independence. The Court notes that
"the activities relied upon by Malaysia . . . are modest in number but
. . . they are diverse in character and include legislative,
administrative and quasi-judicial acts. They cover a considerable
period of time and show a pattern revealing an intention to exercise
State functions in respect of the two islands in the context of the
administration of a wider range of islands". The Court further states
that "at the time when these activities were carried out, neither
Indonesia nor its predecessor, the Netherlands, ever expressed its
disagreement or protest".
The Court concludes, on the basis of the effectivités referred to
above, that "sovereignty over Pulau Ligitan and Pulau Sipadan belongs
to Malaysia".
Composition of the Court
The Court was composed as follows: President Guillaume; Vice-President
Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek,
Al-Khasawneh, Buergenthal and Elaraby; Judges ad hoc Weeramantry and
Franck; Registrar Couvreur.
Judge Oda appends a declaration to the Judgment of the Court; Judge ad
hoc Franck appends a dissenting opinion to the Judgment of the Court.
___________
A fuller summary of the Judgment will subsequently be given in Press
Communiqué No. 2002/39bis. The full text of the Judgment, Judge Oda's
declaration and Judge ad hoc Franck's opinion, together with the Press
Communiqués, is available on the Court's Internet site (www.icj-cij.org).
___________
Information Department:
Mr. Arthur Th. Witteveen, First Secretary of the Court (tel.: +31 70
302 2336)
Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers (tel.:
+31 70 302 2337)
E-mail address:
information@...