Theme : UN
INTERNATIONAL COURT FINDS THAT SOVEREIGNTY OVER ISLANDS
OF LIGITAN AND SIPADAN BELONGS TO MALAYSIA
THE HAGUE, 17 December (ICJ) -- The International Court of Justice, 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 16 votes to 1, 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 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
Indonesian fishermen have traditionally used the waters around the islands.
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 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. 2002/39 bis. 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 3022336); Mrs. Laurence Blairon and Mr. Boris
Heim, Information Officers (tel.: +31 70302 2337); e-mail: information@icj-cij.org
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