the court observed that the nlat 4d10m idmy boundary
terminates at the east end of sebatik
& is not even allocational beyond that
& the ligitan & sipadan group lies 40nm eastward from there
hence well beyond the 12nm territorial seas projected from there
by both countries
though incidentally much closer to malaysian territory elsewhere
than to anywhere in indonesia
& the malaysian territorial sea projected from these islands
actually joins the malaysian territorial sea projected from sabah
to form a continuous belt of territorial sea
since their coasts are less than 24nm apart
hence no claves of any kind here
--- In
BoundaryPoint@yahoogroups.com, "L. A. Nadybal"
<lnadybal@c...> wrote:
> 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@i...