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Sipadan and Ligitan Case 2002

Sipadan and Ligitan Case 2002

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Published by: Andiaz Saputra on Apr 19, 2013
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In its Judgment in the case concerning Sovereignty overPulau Ligitan and Pulau Sipadan (IndonesiaIMalaysia), theCourt fbund, by sixteen votes to one, that "sovere:ignty overPulau Ligitan and Pulau Sipadan belongs to Malaysia".Ligitan and Sipadan are two very small islands located inthe Celebes Sea, off the north-east coast of the: island ofBorneo.The: Court was composed as follows: PresidentGuillaume; Vice-President Shi; Judges Oda, Ranjeva,Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins,Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,Buergenthal and Elaraby; Jutlges ad hoc Weerarnantry andFranck; Registrar Couvreur.Judge Oda appended a declaration to the Judgment ofthe Court; Judge ad hoc F'ranck appended a dissentingopinion to the Judgment of the Court.The full text of the operative paragraph of the: Judgmentreads as follows:For these reasons,"THE COURT,By sixteen votes to one,Finds that sovereignty over Pulau Ligitan and PulauSipadan belongs to Malaysia.
FAVOUR: President Guillaume; Vice-presidentShi; Judges Oda, Ranjeva, Herczegh, FL:ischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek, Al-Khasawneh,
uergenthal,Elaraby; Judge ad hoc Waeramantry;AGAINST: Judge ad lloc Franck."Histoty oj'the proceedings and c1airtl.s ofthe Parties(paras. 1 13)On 2 November 1998 Indonesia and Malaysia notified tothe Registrar of the Court a Special Agreement between thetwo States, signed at Kuala Lumpur on 31May 1997 andhaving entered into force on 14 May 1998. In that SpecialAgreement they requested the Court to determine on thebasis of the treaties, agreements and any other evidencefurnished by the Parties, whether sovereignty over PulauLigitan and Pulau Sipadan belongs to the Republic ofIndonesia or to Malaysia.Each of tlie Parties duly filed a Memorial, Counter-Memorial and Reply within the time limits fixed by theCourt.Since the Court included upon the Bench no judge of thenationality of either of the Parties, each Party proceeded tochoose a judge ad hoc to sit in the case: Indonesia chose Mr.Mohamed Shahabuddeen and Malaysia Mr. ChristopherGregory Weeramantry. After Mr. Shahabuddeen hadresigned, Indonesia chose Mr. Thomas Franck to replacehim.On
March 2001, the Republic of the Philippines filedin the Registry of the Court an Application for permission tointervene in the case, invoking Article 62 of the Statute ofthe Court. By a Judgment rendered on 23 October 2001, theCourt found that the Application of the Philippines couldnot be granted.Public hearings were held from 3 to 12 June 2002.At the oral proceedings, the following submissions werepresented by the Parties:On behrrlfoj'the Goverrzttlettt ofIt~dotlesia,"On the basis of the facts and legal considerationspresented in Indonesia's written pleadings and in its oralpresentation, the Government of the Republic ofIndonesia respectfully requests the Court to adjudge anddeclare that:(i) sovereigilty over Pulau Ligitan belongs to theRepublic of Indonesia; and(ii) sovereignty over Pulau Sipadan belongs to theRepublic of Indonesia."
beltalfoj'the Gove~-nmentfMalaysin,"The Govermnent of Malaysia respectfully requests theCourt to adjudge and declare that sovereignty over PulauLigitan and Pulau Sipadan belongs to Malaysia."Geographical cotztext(para. 14)The Court first describes the geographical context of thedispute as follows:The islands of Ligitan and Sipadan (Pulau Ligitan andPulau Sipadan) are both located in the Celebes Sea, off thenorth-east coast of the island of Borneo, and lieapproximately 15.5 nautical miles apart. Ligitan is a verysmall island lying at the southern extremity of a large star-shaped reef extending southwards from the islands ofDanawan and Si Amil. Its coordinates are 4'09' latitudenorth and 118'53' longitude east. The island is situated some21 nautical miles from Tanjulig Tutop,
the Semporna
Summaries of Judgments, Advisory Opinions and Orders of the International Court of JusticeNot an official document
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.
Historical background
(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.
The Court observes that Indonesia does not dispute thatthese are the applicable rules.
The text
(paras. 39-43)With respect to the terms of Article IV, Indonesiamainta.ins that this Article contains nothing to suggest thatthe line stops at the east coast of Sebatik Island. Accordingto Malaysia, the plain and ordinary meaning of the words"acrosc; the Island of Sebittik"' is to describe, "in English andin Dutch, a line that crosses Sebatik from the we:st coast tothe east coast and goes no further".The Court notes that the Parties differ as t~ how thepreposition "across" (in the English) or
in theDutch) in the first sentence of Article IV of the 1891Conveiltion should be interpreted. It acknowledges that theword is not devoid of ambiguity and is capable of bearingeither of the meanings given to it by the Parties. A lineestablished by treaty may indeed pass "across" an island andterminate on the shores of such island or continue beyond it.Thr: Parties also disagree on the interpretation of the partof the same sentence which reads "the boundary-line shallbe continued eastward along that parallel [4'10f north]". Inthe Court's view, the phrase "'shall be continued" is also notdevoid of ambiguity. Article I of the Convention defines thestarting point of the boundary between the two States, whilstArticles I1 and I11 describe how that boundaly continuesfrom one part to the next. Therefore, when Article IVprovides that "the boundary-line shall be continued" againfrom the east coast of Borneo along the 4'10' N parallel andacross the island of Sebatik, this does not, contrary toIndonesia's contention, necessarily mean that the linecontini.ies as an allocation line beyond Sebatik.The Court moreover considers that the difference inpunctu.ation in the two versions of Article IV of the 1891Convention does not as such. help elucidate the meaning ofthe tex.t with respect to a possible extension of the line out tosea, to the east of Sebatik Island.The Court observes that any ambiguity could. have beenavoided had the Conventio~lexpressly stipulated that the4'10' N parallel constituted, beyond the east coast ofSebatik, the line separating the islands untfer Britishsovereignty from those under Dutch sovereignty. In thesecircunlstances, the silence in the text cannot be ignored. Itsuppo:rts the position of Mahysia.
The context
(paras. 44-48)Having summarized the Parties' arguments concerningthe context of the 1891 Convention, the Court considers thatFirst, the Memorandum refers to the fact that, in thecourse of the prior negotiations, the British delegation hadproposed that the boundary line should run eastwards fromthe east coast of North Borneo, passing between the islandsof Sebatik and East Nanukan. As regards Sebatik, theMemorandum explains that the island's partition had beenagreed following a proposal by the Dutch Government andwas considered necessary in order to provide access to thecoastal regions allocated to each party. The Memorandumcontains no reference to the disposition of other islandslying further to the east, and in particular there is nomention of Ligitan or Sipadan.As regards the map appended to the ExplanatoryMemorandum, the Court notes that this shows fourdifferently coloured lines, the boundary eventually agreedbeing represented by a red line. On the map, the red linecontinues out to the sea along parallel 4'10'
to the southof Mabul Island, such an extension out to sea having notbeen cotninented in the Memorandum, nor discussed ia theDutch Parliament. It also notes that this map shows only anumber of islands situated to the north of parallel 4'10';apart from a few reefs, no island is shown to the south ofthat line. It further notes that there is nothing in the case fileeither to suggest that Ligitan and Sipadan, or other islandssuch as Mabul, were territories disputed between GreatBritain and the Netherlands at the time when the Conventionwas concluded. The Court cannot therefore accept theargument of Indonesia that the red line on the map wasextended in order to settle any dispute in the waters beyondSebatik, with the consequence that Ligitan and Sipadanwere attributed to the Netherlands.Nor does the Court accept Indonesia's argumentregarding the legal value of the map appended to theExplanatory Memorandum. The Court observes that theExplanatory Menlorandun1 and map were never transmittedby the Dutch Governinent to the British Government, butwere simply forwarded to the latter by its diplomatic agentin The Hague. The British Governinent did not react to thisinternal transmission. The Court then notes that such a lackof reaction to the line on the map appended to theMemorandum cannot be deemed to constitute acquiescencein this line. The Court concludes from the foregoing that themap cannot be considered either an "agreement relating to[a] treaty which was inade between all the parties inconnection with the conclusion of the treaty", within themeaning of Article 31, paragraph
(a), of the ViennaConvention, or an "instrument which was made by [a]part[y] in connectioil with the coilclusion of the treaty andaccepted by the other parties as an instrument related to thattreaty", within the meaning oFArticle 31, paragraph
ofthe Vienna Convention.the Dutch Explanatory Memorandum appended to the draft
object aildpzirpose of the
Law submitted to the Netherlands States-General with a(paras. 49-5 1)view 'to ratification of the Convention, the only documentrelating to the Convention to have been publisheif during theHaving examined the arguments of Indonesia andperiod when the latter wits concluded, provides usefulMalaysia, the Court considers that the object and purpose of
on a certain number of points.the 1891 Convention was the delimitation of boundariesbetween the parties' possessions within the island of Borneo

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