Peninsula, the nearest area on Borneo. Permanently abovesea level and mostly sand, Ligitan is an island with low-lying vegetation and some trees. It is not permanentlyinhabited.Although bigger than Ligitan,Sipadan is also a smallisland, having an area of approximately 0.13 sq. km. Itscoordinates are 4'06' latitude north and 118O37' longitudeeast. It is situated some 15 nautical miles from TanjungTutop, and 42 nautical miles from the east coast of theisland of Sebatik. Sipadan is a densely wooded island ofvolcanic origin and the top of a submarine mountain some600 to 700 m in height, around which a coral atoll hasformed. It was not inhabited on a permanent basis until the1980s, when it was developed into a tourist resort for scuba-diving.
(paras. 15-3 1The Court then gives an overview of the complexhistorical background of the dispute between the Parties.
Bases of the Purties
(paras. 32 and 33)The Court notes that Indonesia's claim to sovereigntyover the islands of Ligitan and Sipadan rests primarily onthe Convention which Great Britain and the Netherlandsconcluded on 20 June 1891 for the purpose of "defining theboundaries between the Netherland possessions in the Islandof Borneo and the States in that Island which [were] underBritish protection". Indonesia also relies on a series of
both Dutch and Indonesian, which it claimsconfirm its conventional title. At the oral proceedingsIndonesia further contended, by way of alternativeargument, that if the Court were to reject its title based onthe 1891 Convention, it could still claim sovereignty overthe disputed islands as successor to the Sultan of Bulungan,because he had possessed authority over the islands.For its part, Malaysia contends that it acquiredsovereignty over the islands of Ligitan and Sipadanfollowing a series of alleged transmissions of the titleoriginally held by the former sovereign, the Sultan of Sulu.Malaysia claims that the title subsequently passed, insuccession, to Spain, to the United States, to Great Britainon behalf of the State of North Borneo, to the UnitedKingdom of Great Britain and Northern Ireland, and finallyto Malaysia itself. It argues that its title. based on this seriesof legal instruments, is confirmed by a certain number ofBritish and Malaysian
over the islands. It arguesin the alternative that, if the Court were to conclude that thedisputed islands had originally belonged to the Netherlands,its
would in any event have displaced any suchNetherlands title.
The 1891 Cont~ention etweeiz Great Britaiiz uildthe Netherlands
(paras. 34-92)'The Court notes that Indonesia's main claim is thatsovereignty over the islands of Ligitan and Sipadan belongsto it by virtue of the 1891 Convention. Indonesia maintainsthat "[tlhe Convention, by its terms, its context, and itsobject and purpose, established the 4O10' N parallel oflatitude as the dividing line between the Parties' respectivepossessions in the area now in question". It states in thisconrlection that its position is not that "the 1891 Conventionline was from the outset intended also to be, or in effectwas! a maritime boundary
east of Sebatik island" but that"the line must be considered an allocation line: land areas,including islands located to the north of 4O10' N latitudewere
considered to be British, and those lying to the southwen: Dutch". As the disputed islands lie to the south of thatparallel,"[ilt therefore follows that under the Conventiontitle to those islands vested in The Netherlands, and nowvests in Indonesia".Indonesia relies essentially on Article IV of the 1891Convention in support of its claim to the islands of Ligitanand Sipadan. That provision reads as follows:"From 4'10' north latitude on the east coast theboundary-line shall be continued eastward along thatparallel, across the Island of Sebittik: that portion of theisland situated to the north of that parallel shall belongunreservedly to the British North Borneo Company, andthe portion south of that parallel to the Netherlands."The Parties disagree over the interpretation to be givento that provision.
Interpretation of tlte 1891 Conveiltion
(paras. 37-92)The Court notes that Indonesia is not a party to theVienna Convention of 23 May 1969 on the Law of Treaties;the Court would nevertheless recall that, in accordance withcustomary international law, reflected in Articles 3
and 32of that Convention:"a treaty must be interpreted in good faith in accordancewith the ordinary meaning to be given to its terms intheir context and in the light of its object and purpose.Interpretation must be based above all upon the text ofthe treaty. As a supplementary measure recourse may behad to means of interpretation such as the preparatorywork of the treaty and the circumstances of itsconclusion."It further recalls that, with respect to Article 31,paragraph 3, it has had occasion to state that this provisionalso reflects customary law, stipulating that there shall betaken into account, together with the context, the subsequentconduct of the parties to the treaty, i.e., "any subsequentagreement" (subpara.
and "any subsequent practice"(subpara.