Malaysia vs Indonesia

On 2 November 1998, the Republic of Indonesia and Malaysia jointly notified the Court
of a Special Agreement between the two States, signed at Kuala Lumpur on 31 May
1997 and having entered into force on 14 May 1998. In accordance with that Special
Agreement, they requested the Court to determine, on the basis of the treaties,
agreements and any other evidence furnished by them, to which of the two States
sovereignty over Pulau Ligitan and Pulau Sipadan belonged.

Shortly after the filing by the Parties of the Memorials, Counter-Memorials and Replies,
the Philippines, on 13 March 2001, requested permission to intervene in the case. In its
Application, the Philippines indicated that the object of its request was to

“preserve and safeguard the historical and legal rights [of its Government] arising from
its claim to dominion and sovereignty over the territory of North Borneo, to the extent
that those rights [were] affected, or [might] be affected, by a determination of the Court
of the question of sovereignty over Pulau Ligitan and Pulau Sipadan”.

The Philippines specified that it was not seeking to become a party in the case. Further,
the Philippines specified that “[its] Constitution . . . as well as its legislation ha[d] laid
claim to dominion and sovereignty over North Borneo”. The Application for permission
to intervene drew objections from Indonesia and Malaysia. Among other things,
Indonesia stated that the Application should be rejected on the ground that it had not
been filed in time and that the Philippines had not shown that it had an interest of a legal
nature at issue in the case. Meanwhile, Malaysia added that the object of the
Application was inadequate. The Court therefore decided to hold public sittings to hear
the Philippines, Indonesia and Malaysia, before ruling on whether to grant the
Application for permission to intervene. Following those sittings, the Court, on 23
October 2001, delivered a Judgment by which it rejected the Application by the
Philippines for permission to intervene.

After the holding of public sittings in June 2002, the Court delivered its Judgment on the
merits on 17 December 2002. In that Judgment, it began by recalling the complex
historical background of the dispute between the Parties. It then examined the titles
invoked by them. Indonesia asserted that its claim to sovereignty over the islands was
based primarily on a conventional title, the 1891 Convention between Great Britain and
the Netherlands.

After examining the 1891 Convention, the Court found that, when read in the context
and in the light of its object and purpose, that instrument could not be interpreted as
establishing an allocation line determining sovereignty over the islands out to sea, to the
east of the island of Sebatik, and that as a result the Convention did not constitute a title
on which Indonesia could found its claim to Ligitan and Sipadan. The Court stated that
that conclusion was confirmed both by the travaux préparatoires and by the subsequent
conduct of the parties to the Convention. The Court further held that the cartographic
material submitted by the Parties in the case did not contradict that conclusion.

Having rejected that argument by Indonesia, the Court turned to consideration of the
other titles on which Indonesia and Malaysia claimed to found their sovereignty over the
islands of Ligitan and Sipadan. The Court sought to determine whether Indonesia or
Malaysia obtained a title to the islands by succession. In that connection, it did not
accept Indonesia’s contention that it retained title to the islands as successor to the
Netherlands, which had allegedly acquired it through contracts concluded with the
Sultan of Bulungan, the original title-holder. Nor did the Court accept Malaysia’s
contention that it had acquired sovereignty over the islands of Ligitan and Sipadan
following 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, to the United
States, to Great Britain on behalf of the State of North Borneo, to the United Kingdom
and finally to Malaysia.

Having found that neither of the Parties had a treaty-based title to Ligitan and Sipadan,
the Court next considered the question whether Indonesia or Malaysia could hold title to
the disputed islands by virtue of the effectivités cited by them. In that regard, the Court
determined whether the Parties’ claims to sovereignty were based on activities
evidencing an actual, continued exercise of authority over the islands, i.e., the intention
and will to act as sovereign.

In that connection, Indonesia cited a continuous presence of the Dutch and Indonesian
navies in the vicinity of Ligitan and Sipadan. It added that the waters around the islands
had traditionally been used by Indonesian fishermen. In respect of the first of those
arguments, it was the opinion of the Court that from the facts relied upon in the case “it
[could] not be deduced . . . 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 considered that “activities by private
persons [could] not be seen as effectivités if they [did] not take place on the basis of
official regulations or under governmental authority”.

Having rejected Indonesia’s arguments based on its effectivités, the Court turned to the
consideration of the effectivités relied on by Malaysia. As evidence of its effective
administration of the islands, Malaysia cited 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 relied on
the Turtle Preservation Ordinance of 1917 and maintained that the Ordinance “[had
been] applied until the 1950s at least” in the area of the two disputed islands. It further
invoked the fact that the authorities of the colony of North Borneo had constructed a
lighthouse on Sipadan in 1962 and another on Ligitan in 1963, that those lighthouses
still existed and that they had been maintained by Malaysian authorities since its
independence. The Court noted that

“the activities relied upon by Malaysia . . . [we]re modest in number but . . . they [we]re
diverse in character and include[d] legislative, administrative and quasi-judicial acts.
They cover[ed] a considerable period of time and show[ed] 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 stated that “at the time when these activities were carried out, neither
Indonesia nor its predecessor, the Netherlands, [had] ever expressed its disagreement
or protest”.

The Court concluded, on the basis of the above-mentioned effectivités, that sovereignty

over Pulau Ligitan and Pulau Sipadan belonged to Malaysia.