034. Case Concerning Sovereignty over Pulau Ligitan and Pulau Sigatan (Indonesia v. Malaysia) Dec.

17, 2002 Guillame, President. Recit-Ready Version: Malaysia and Indonesia dispute sovereignty over the islands of Ligitan and Sigatan. While both presented treaty and conventional evidence, both were not able to definitively define sovereignty, leading the court to decide based on effective occupation. Malaysias evidence, based on turtle egg gathering, fishing boat licensing, bird sanctuaries and scuba diving, won sovereignty over them. (Disclaimer: Both Karichi and the passed down reviewer say that Sir only wants the evidence presented to support the claim of effective occupation. So thats what this digest will focus on. Facts: Malaysia and Indonesia submitted a dispute on sovereignty over the islands of Pulau Ligitan and Pulau Sipadan to the ICJ. Both parties prayed that the said islands be adjudged and declared to be under the sovereignty of the respective nations. Special mention should probably be made that when both countries chose to have judges to sit ad hoc in the case, Indonesia chose Mr. Mohamed Shahabuddeen and Malysia chose the immortal Mr. Gregory Weeramantry. Also of special mention, the Philippines filed a motion to intervene, but was denied, though the petition for intervention was passed upon in a separate ICJ case. The islands of Ligitan and Sipadan, Pulau meaning island, obviously, lie off the north east coast of Borneo in the Celebes Sea. Maps would be a lot more helpful than text descriptions, you say? Well, fine:

It would be helpful in establishing the claims to look at the history of the dispute: Spain 1. In the 16th century, Spain established itself in the Philippines and sought to extend its influence to the islands lying further to the south. Towards the end of that century it began to exercise its influence over the Sulatanate of Sulu. 2. In 1836, Spain concluded capitulations of peace, protection and commerce with the Sultan of Sulu, whereby Spain guaranteed its protection to the Sultan of Sulu, in any of the islands which extend from the western point of Mindanao (Maguindanao) to Borneo and Paragua (Palawan), with the exception of Sandakan and the other territories tributary to the Sultan on the island of Borneo. 3. In 1851, Spain and the Sultan of Sulu concluded an Act of Re-Submission whereby the island of Sulu and its dependencies were annexed by the Spanish Crown, as confirmed in an 1878 Protocol whereby the Sultan recognized as beyond discussion the sovereignty of Spain over all the Archipelago of Sulu and the dependencies thereof. The Netherlands, and by extension Indonesia 4. In the 17th century, the Netherlands, through the Netherlands East India Company, established itself on the island of Borneo. The NEIC held considerable commercial interests in the region and exercised public rights in Southeast Asia under a charter granted to it in 1602 by the Netherlands United Provinces. By the charter, NEIC was authorized to conclude conventions with Princes and Powers of the region in the name of the States-General of the Netherlands. The conventions mainly involved trade issues, but they also provided for the acceptance of the Companys suzerainty, or even a cession of territory. 5. The NEIC established itself on Borneo in the 17th-18th centuries, when the Sultan of Berjamasin exercised influence over large points of southern and eastern Borneo, while the Sultans of Brunei and Sulu exercised influence over northern Borneo.

6. The NEICs demise led to the transfer of its territorial possessions were transferred to the Netherlands United Provinces. 7. During the Napoleonic wars, Great Britain took control of the Dutch possessions in Asia, only to give most of them back in the London Convention of 1814. 8. A contract was entered into by the Netherlands and the Sultan of Banjermasin in 1817. Article 5 of the contract provided for the cession of Berou and all its dependencies to the Netherlands. The cession was reconfirmed in 1826 9. Over the following years, the three territories forming the Kingdom of Berou, namely Sambaliung, Gunungtabur and Bulungan were separated. 10. In 1834, the Sultan of Bulungan submitted to the authority of the Netherlands East Indies Government. 11. In the 1850, the Government of the Netherlands East Indies concluded contracts of vassalage with the sultans of the three kingdoms, under which the territory of the respective kingdoms was granted to them as a fief. A new contract of vassalage was concluded in 1878, and approved and ratified by the governor-general of the Netherlands East Indies. The contracts included a long textual description of the territories. Great Britain, and by extension Malaysia 12. Great Britain possessed commercial interests in the area, but had not established settlements on Borneo until the 19th century. 13. After the Anglo-Dutch Convention of 1814, the commercial and territorial disputes between GB and the Netherlands was settled in a new treaty in 1824. 14. In 1877 the Sultan of Brunei granted Mr. Alfred Dent and Baron von Overbeck a large are of North Borneo. They also entered into similar agreements with the Sultan of Sulu, who ceded them lands and territories. Treaties and Statehood 15. There were various treaties over the area, including: a. 1877 and 1885-Spain, Germany, GB b. 1888-GB creates State of North Borneo c. 1891 Convention between Netherlands and Great Britain. (really important for the claims) d. Treaty of Paris between Spain and America e. 1903 Confirmation of Cession by Sultan of Sulu f. 1915 Agreement GB and the Netherlands, followed by a 1928 agreement g. 1930-USA and GB convention defining boundary between Philippines and North Borneo 16. In 1946, the British North Borneo Company ceded its interests to the British Crown. 17. In 1963, North Borneo became federated with the States of Malaya as Sabah 18. In the 1960s, both Indonesia and Malaysia began granting oil prospecting licenses off Borneo to foreign companies. The current dispute 19. In 1969, a delimitation agreement regarding the respective continental shelves was reached between Indonesia and Malaysia. It did not cover the area lying to the east of Borneo

20. In 1991, a joint working group was set up to study the situation of Ligitan and Sipadan. However, an agreement was not reached and the issue was referred to the ICJ. And here we are. Issues: Do the islands belong to Indonesia or Malaysia? (Malaysia) Ratio: Apparently skippable claims (just including a summary in case) Indonesias claim in based on the 1891 convention between GB and the Netherlands. It also relied on effectivites, both Dutch and Indonesian, which it claims confirms its conventional title. It also said that it could claim sovereignty as successor of the Sultan of Bulungan. Malaysia claimed that it acquired sovereignty via a chain of transmissions of the title originally held by the Sultan of Sulu, from Spain to the US to Great Britain to Malaysia. It likewise presented effectivites over the islands. In sum, 1. The 1891 agreement relied upon by Indonesia cant give them sovereignty because of the disagreements as to interpreting the boundaries defined by it, as well as the map made in relation to it. It can only define the territory of the parties up to the eastern extremity of Sebatik Island and not further along, i.e. Ligitan and Sipadan are not included. 2. The alleged uninterrupted chain of transactions concerning the Sultan of Sulu was not proven. It was also not proven that the Sultan of Sulu held sovereignty over the disputed islands in the first place ***************EVIDENCE OF EFFECTIVE OCCUPATION************** Having debunked both of the claims, the ICJ moved on to considering the evidence of effectivits presented by both parties. Preliminarily, citing Burkina Faso v. Mali, a distinction must be drawn among several eventualitiesin the event that the effectivite does no co-exist with any legal title, it must invariably be taken into consideration. Both parties claimed that the effectivites merely confirm a treaty based title. Malaysia also claims that it acquired title to Ligitan and Sipadan by virtue of continuous peaceful possession and administration without objection from Indonesia or its predecessors in title. First, the parties disputed whether effectivites could be presented if they happened after the critical date in 1969 when the dispute began. To resolve this, the ICJ quoted the Eastern Greenland case as saying a claim to sovereignty based not upon some particular act or title but merely upon continued display of authority, involves two elements: the intention and will to act as sovereign, and some actual exercise or display of such authority. The extent to which the sovereignty is also claimed by some other power must also be taken into account.

The ICJ cannot take into consideration acts that have taken place after the critical date when the dispute crystallized, unless such acts are a normal continuation of prior acts and have not been undertaken for the purpose of improving the legal position of the party relying on them. Indonesia: Indonesia presented the ff. as effectivites: 1. Patrols in the area by vessels of the Dutch Royal Navy, from 1895-1928, particularly the presence of the Dutch destroyer Lynx in Nov-Dec., 1921. 2. The patrol team of the Lynx went ashore on Sipadan, and a plane carried onboard traversed its airspace and its waters, while the 3-mile zones of Si Amil and other islands under British Authority were respected. 3. They also submitted the report by the Commander of the Lynx to show that Dutch authorities considered the disputed islands to be under Dutch sovereignty, while other islands to the North were considered as being under British sovereignty. 4. Hydrographic surveys carried out by the Dutch, particularly the surveying carried out by the vessel Macasser in Oct. and November 1903. 5. Activity of the Indonesian Navy before the dispute started in 1969. 6. The traditional fishing activities of Indonesian fishermen around the islands. 7. Affidavits which provide a record of occasional visits to the islands in the 1950s early 1970s. The court ruled that none of these is of a legislative or regulatory character. Also, the court could not ignore the fact that Indonesian Act no. 4 did not include Ligitan or Sipadan. It also said that the visit of the Lynx was only there as part of a joint British-Dutch force to combat piray, and it could not deduced from the visit or from the captains log that the Dutch considered Lgiitan and Sipadan as part of the sovereignty of the Netherlands or Indonesia. Finally, the private persons, i.e. fishermen, could not be considered effectivite. Indonesia loses. Malaysia: 1. Claimed that for the first 25 years of its independence, Malaysia showed no interest in Ligitan and Sipadan. 2. Act no. 4 of Indonesia, enacted on Feb. 18, 1960, defining its outer limits of national waters, did not use the islands as reference points for the baselines, and the attached map did not include the islands as part of the territory of Indonesia. 3. Malaysia presented the taking of turtles and collection of turtle eggs on Sipadan as an important economic activity. As early as 1914, GB took steps to regulate and control it. 4. A licensing system for boats that fished around the island. 5. The 1933 construction of a bird sanctuary on Sipadan

6. Lighthouses built on Ligitan and Sipadan in the early 1960s by British North Borneo authorities. 7. Malaysian Government regulation of tourism, notably scuba diving. 8. The fact that the islands are protected areas under Malaysias Protected Areas Order of 1997. The court found that after the USA relinquished any claim it had over Ligitan and Sipadan in 1930, no other state asserted its sovereignty over them except North Borneo. As to the other effectivites, the Court said that the measures taken to regulate and control the collecting of turtle eggs and the establishment of a bird sanctuary must be seen as regulatory and administrative assertions of authority over territory specified by name. However, the building of lighthouses, in line with the doctrine on them, could not be a basis for asserting sovereignty. The activities relied upon by Malaysia, both in its own name and as successor State of Great Britain, are modest in number but that they are diverse in character and include legislative, administrative and quasijudicial 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. Moreover, at the time when these activities were carried out, neither Indonesia nor the Netherlands, ever expressed its disagreement or protest. In 1962 and 1963 the Indonesian authorities did not even remind the authorities of the colony of North Borneo, or Malaysia after its independence, that the construction of the lighthouses at those times had taken place on territory which they considered Indonesian; even if they regarded these lighthouses as merely destined for safe navigation in an area which was of particular importance for navigation in the waters off North Borneo, such behaviour is unusual. Malaysia has sovereignty. Gabe.