Audience publique tenue le mercredi 12 juin 2002, à 10 heures, au Palais de la Paix, sous la présidence de M. Guillaume, président

CR 2002/35
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2002
Public sitting
held on Wednesday 12 June 2002, at 10 a.m., at the Peace Palace,
President Guillaume presiding,
in the case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia)
____________________
VERBATIM RECORD
____________________
ANNÉE 2002
Audience publique
tenue le mercredi 12 juin 2002, à 10 heures, au Palais de la Paix,
sous la présidence de M. Guillaume, président,
en l’affaire relative à la Souveraineté sur Pulau Ligitan et Pulau Sipadan
(Indonésie/Malaisie)
________________
COMPTE RENDU
________________
- 2 -
Present: President Guillaume
Vice-President Shi
Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Judges ad hoc Weeramantry
Franck
Registrar Couvreur
¾¾¾¾¾¾
- 3 -
Présents : M. Guillaume, président
M. Shi, vice-président
MM Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby, juges
MM. Weeramantry
Franck, juges ad hoc
M. Couvreur, greffier
¾¾¾¾¾¾
- 4 -
The Government of the Republic of Indonesia is represented by:
H. E. Dr. N. Hassan Wirajuda, Minister for Foreign Affairs,
as Agent;
H. E. Mr. Abdul Irsan, Ambassador of Indonesia to the Kingdom of the Netherlands,
as Co-Agent;
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, Member and former Chairman of
the International Law Commission,
Mr. Alfred H. A. Soons, Professor of Public International Law, Utrecht University,
Sir Arthur Watts, K.C.M.G., Q.C., Member of the English Bar, Member of the Institute of
International Law,
Mr. Rodman R. Bundy, avocat à la Cour d'appel de Paris, Member of the New York Bar, Frere
Cholmeley/Eversheds, Paris,
Ms Loretta Malintoppi, avocat à la Cour d'appel de Paris, Member of the Rome Bar, Frere
Cholmeley/Eversheds, Paris
as Counsel and Advocates;
Mr. Charles Claypoole, Solicitor of the Supreme Court of England and Wales, Frere
Cholmeley/Eversheds, Paris,
Mr. Mathias Forteau, Lecturer and Researcher at the University of Paris X-Nanterre, Researcher at
CEDIN ¾ Paris X (Nanterre)
as Counsel;
Mr. Hasyim Saleh, Deputy Chief of Mission, Embassy of the Republic of Indonesia, The Hague,
Dr. Rachmat Soedibyo, Director General for Oil & Natural Resources, Department of Energy &
Mining,
Major General S. N. Suwisma, Territorial Assistance to Chief of Staff for General Affairs,
Indonesian Armed Forces Headquarters,
Mr. Donnilo Anwar, Director for International Treaties for Politics, Security & Territorial Affairs,
Department of Foreign Affairs,
Mr. Eddy Pratomo, Director for International Treaties for Economic, Social & Cultural Affairs,
Department of Foreign Affairs,
Mr. Bey M. Rana, Director for Territorial Defence, Department of Defence,
- 5 -
Le Gouvernement de la République d’Indonésie est représenté par :
S. Exc. M. Hassan Wirajuda, ministre des affaires étrangères,
comme agent;
S. Exc. M. Abdul Irsan, ambassadeur d’Indonésie aux Pays-Bas,
comme coagent;
M. Alain Pellet, professeur à l’Université de Paris X-Nanterre, membre et ancien président de la
Commission du droit international,
M. Alfred H. A. Soons, professeur de droit international public à l’Université d’Utrecht,
Sir Arthur Watts, K.C.M.G., Q.C., membre du barreau anglais, membre de l’Institut de droit
international,
M. Rodman R. Bundy, avocat à la cour d’appel de Paris, membre du barreau de New York, cabinet
Frere Cholmeley/Eversheds, Paris,
Mme Loretta Malintoppi, avocat à la cour d’appel de Paris, membre du barreau de Rome, cabinet
Frere Cholmeley/Eversheds, Paris,
comme conseils et avocats;
M. Charles Claypoole, Solicitor à la Cour suprême d’Angleterre et du Pays de Galles, cabinet Frere
Cholmeley/Eversheds, Paris,
M. Mathias Forteau, chargé de cours et chercheur à l’Université de Paris X-Nanterre, chercheur au
au Centre de droit international de l’Université de Paris X-Nanterre (CEDIN),
comme conseils;
M. Hasyim Saleh, chef de mission adjoint à l’ambassade d’Indonésie à La Haye,
M. Rachmat Soedibyo, directeur général pour les ressources pétrolières et naturelles, ministère de
l’énergie et des mines,
Le général de division S. N. Suwisma, assistant pour les questions territoriales auprès du chef
d’état-major pour les affaires générales, quartier général des forces armées indonésiennes,
M. Donnilo Anwar, directeur des traités internationaux pour les questions de politique, de sécurité
et de territoire au ministère des affaires étrangères,
M. Eddy Pratomo, directeur des traités internationaux pour les questions économiques, sociales et
culturelles au ministère des affaires étrangères,
M. Bey M. Rana, directeur de la défense territoriale, ministère de la défense,
- 6 -
Mr. Suwarno, Director for Boundary Affairs, Department of Internal Affairs,
Mr. Subyianto, Director for Exploration & Exploitation, Department of Energy & Mining,
Mr. A. B. Lapian, Expert on Borneo History,
Mr. Kria Fahmi Pasaribu, Minister Counsellor, Embassy of the Republic of Indonesia, The Hague,
Mr. Moenir Ari Soenanda, Minister Counsellor, Embassy of the Republic of Indonesia, Paris,
Mr. Rachmat Budiman, Department of Foreign Affairs,
Mr. Abdul Havied Achmad, Head of District, East Kalimantan Province,
Mr. Adam Mulawarman T., Department of Foreign Affairs,
Mr. Ibnu Wahyutomo, Department of Foreign Affairs,
Capt. Wahyudi, Indonesian Armed Forces Headquarters,
Capt. Fanani Tedjakusuma, Indonesian Armed Forces Headquarters,
Group Capt. Arief Budiman, Survey & Mapping, Indonesian Armed Forces Headquarters,
Mr. Abdulkadir Jaelani, Second Secretary, Embassy of the Republic of Indonesia, The Hague,
Mr. Daniel T. Simandjuntak, Third Secretary, Embassy of the Republic of Indonesia, The Hague,
Mr. Soleman B. Ponto, Military Attaché, Embassy of the Republic of Indonesia, The Hague
Mr. Ishak Latuconsina, Member of the House of Representatives of the Republic of Indonesia,
Mr. Amris Hasan, Member of the House of Representatives of the Republic of Indonesia,
as Advisers;
Mr. Martin Pratt, International Boundaries Research Unit, University of Durham,
Mr. Robert C. Rizzutti, Senior Mapping Specialist, International Mapping Associates,
Mr. Thomas Frogh, Cartographer, International Mapping Associates
as Technical Advisers.
The Government of Malaysia is represented by:
H. E. Tan Sri Abdul Kadir Mohamad, Ambassador-at-Large, Ministry of Foreign Affairs
as Agent;
- 7 -
M. Suwarno, directeur des affaires frontalières, ministère de l’intérieur,
M. Subiyanto, directeur de l’exploration et de l’exploitation, ministère de l’énergie et des mines,
M. A. B. Lapian, expert sur l’histoire de Bornéo,
M. Kria Fahmi Pasaribu, ministre conseiller à l’ambassade d’Indonésie à La Haye,
M. Moenir Ari Soenanda, ministre conseiller à l’ambassade d’Indonésie à Paris,
M. Rachmat Budiman, ministère des affaires étrangères,
M. Abdul Havied Achmad, chef de district, province de Kalimantan est,
M. Adam Mulawarman T., ministère des affaires étrangères,
M. Ibnu Wahyutomo, ministère des affaires étrangères,
Le capitaine Wahyudi, quartier général des forces armées indonésiennes,
Le capitaine Fanani Tedjakusuma, quartier général des forces armées indonésiennes,
Le colonel Arief Budiman, département de la topographie et de la cartographie, quartier général des
forces armées indonésiennes,
M. Abdulkadir Jaelani, deuxième secrétaire à l’ambassade d’Indonésie à La Haye,
M. Daniel T. Simandjuntak, troisième secrétaire à l’ambassade d’Indonésie à La Haye,
M. Soleman B. Ponto, attaché militaire à l’ambassade d’Indonésie à la Haye,
M. Ishak Latuconsina, Membre de la Chambre des Représentants de la République d’Indonésie,
M. Amris Hasan, Membre de la Chambre des Représentants de la République d’Indonésie,
comme conseillers;
M. Martin Pratt, unité de recherche sur les frontières internationales de l’Université de Duhram,
M. Robert C. Rizzutti, cartographe principal, International Mapping Associates,
M. Thomas Frogh, cartographe, International Mapping Associates,
comme conseillers techniques.
Le Gouvernement de la Malaisie est représenté par :
S. Exc. M. Tan Sri Abdul Kadir Mohamad, ambassadeur en mission extraordinaire, ministère des
affaires étrangères,
comme agent;
- 8 -
H. E. Dato’ Noor Farida Ariffin, Ambassador of Malaysia to the Kingdom of the Netherlands
as Co-Agent;
Sir Elihu Lauterpacht, Q.C., C.B.E., Honorary Professor of International Law, University of
Cambridge, Member of the Institut de Droit International,
Mr. Jean-Pierre Cot, Emeritus Professor, University of Paris-I (Panthéon-Sorbonne), Former
Minister,
Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the English and Australian Bars, Member of the Institute of
International Law,
Mr. Nico Schrijver, Professor of International Law, Free University, Amsterdam and Institute of
Social Studies, The Hague; Member of the Permanent Court of Arbitration
as Counsel and Advocates;
Dato’ Zaitun Zawiyah Puteh, Solicitor-General of Malaysia,
Mrs. Halima Hj. Nawab Khan, Senior Legal Officer, Sabah State Attorney-General’s Chambers,
Mr. Athmat Hassan, Legal Officer, Sabah State Attorney-General’s Chambers,
Mrs. Farahana Rabidin, Federal Counsel, Attorney-General’s Chambers
as Counsel;
Datuk Dr. Nik Mohd. Zain Hj. Nik Yusof, Secretary General, Ministry of Land and Co-operative
Development,
Datuk Jaafar Ismail, Director-General, National Security Division, Prime Minister’s Department,
H. E. Ambassador Hussin Nayan, Under-Secretary, Territorial and Maritime Affairs Division,
Ministry of Foreign Affairs,
Mr. Ab. Rahim Hussin, Director, Maritime Security Policy, National Security Division, Prime
Minister’s Department,
Mr. Raja Aznam Nazrin, Principal Assistant Secretary, Territorial and Maritime Affairs Division,
Ministry of Foreign Affairs,
Mr. Zulkifli Adnan, Counsellor of the Embassy of Malaysia in the Netherlands,
Ms Haznah Md. Hashim, Assistant Secretary, Territorial and Maritime Affairs Division, Ministry
of Foreign Affairs,
Mr. Azfar Mohamad Mustafar, Assistant Secretary, Territorial and Maritime Affairs Division,
Ministry of Foreign Affairs
as Advisers;
- 9 -
S. Exc. Mme Dato’ Noor Farida Ariffin, ambassadeur de la Malaisie auprès du Royaume des
Pays-Bas,
comme coagent;
Sir Elihu Lauterpacht, Q.C., C.B.E., professeur honoraire de droit international à l’Université de
Cambridge, membre de l’Institut de droit international,
M. Jean-Pierre Cot, professeur émérite à l’Université de Paris 1 (Panthéon-Sorbonne), ancien
ministre,
M. James Crawford, S.C., F.B.A., professeur de droit international à l'Université de Cambridge,
titulaire de la chaire Whewell, membre des barreaux anglais et australien, membre de l’Institut
de droit international,
M. Nico Schrijver, professeur de droit international à l’Université libre d’Amsterdam et à l’Institut
d’études sociales de La Haye, membre de la Cour permanente d’arbitrage,
comme conseils et avocats;
Mme Dato’ Zaitun Zawiyah Puteh, Solicitor General de la Malaisie,
Mme Halima Hj. Nawab Khan, juriste principale au cabinet de l’Attorney-General de l’Etat du
Sabah,
M. Athmat Hassan, juriste au cabinet de l’Attorney-General de l’Etat du Sabah,
Mme Farahana Rabidin, conseil fédéral au cabinet de l’Attorney-General,
comme conseils;
M. Datuk Dr. Nik Mohd. Zain Hj. Nik Yusof, secrétaire général du ministère de l’aménagement du
territoire et du développement coopératif,
M. Datuk Jaafar Ismail, directeur général du département de la sécurité nationale, services du
premier ministre,
S. Exc. M. Hussin Nayan, ambassadeur, sous-secrétaire au département des affaires territoriales et
maritimes du ministère des affaires étrangères,
M. Ab. Rahim Hussin, directeur de la politique de sécurité maritime, département de la sécurité
nationale, cabinet du premier ministre,
M. Raja Aznam Nazrin, secrétaire adjoint principal au département des affaires territoriales et
maritimes du ministère des affaires étrangères,
M. Zulkifli Adnan, conseiller de l’ambassade de la Malaisie aux Pays-Bas,
Mme Haznah Md. Hashim, secrétaire adjointe au département des affaires territoriales et maritimes
du ministère des affaires étrangères,
M. Azfar Mohamad Mustafar, secrétaire adjoint au département des affaires territoriales et
maritimes du ministère des affaires étrangères,
comme conseillers;
- 10 -
Mr. Hasan Jamil, Director of Survey, Geodetic Survey Division, Department of Survey and
Mapping,
Mr. Tan Ah Bah, Principal Assistant Director of Survey, Boundary Affairs, Department of Survey
and Mapping,
Mr. Hasnan Hussin, Senior Technical Assistant, Boundary Affairs, Department of Survey and
Mapping
as Technical Advisers.
- 11 -
M. Hasan Jamil, directeur de la topographie, service des levés géodésiques, département de la
topographie et de la cartographie,
M. Tan Ah Bah, sous-directeur principal de la topographie, service des frontières, département de
la topographie et de la cartographie,
M. Hasnan Hussin, assistant technique principal du service des frontières, département de la
topographie et de la cartographie,
comme conseillers techniques.
- 12 -
Le PRESIDENT : Veuillez vous asseoir. La séance est ouverte et nous allons entendre le
second tour de plaidoiries pour la Malaisie. Je donne immédiatement la parole au professeur
Jean-Pierre Cot.
M. COT :
LA CONVENTION DU 20 JUIN 1891
Monsieur le président, Madame et Messieurs de la Cour,
1. Il me revient l’honneur d’ouvrir ce second tour de plaidoiries au nom de la Malaisie. Dans
ma plaidoirie, j’examinerai les arguments présentés au nom de l’Indonésie par ses conseils lundi au
sujet du traité de 1891. Le professeur Schrijver qui me succèdera reviendra sur les positions du
gouvernement de La Haye. Le professeur Crawford abordera les problèmes posés par la succession
au titre territorial et les cartes. Sir Eli Lauterpacht examinera pour sa part les effectivités. Enfin
Son Excellence Tan Sri Kadir conclura ce second tour. Nous pensons Monsieur le président
pouvoir exposer nos thèses en une matinée, répondant ainsi à votre souhait de brièveté et de
concision.
2. Monsieur le président, les trois tours de procédure écrite et les deux tours de procédure
orale ont permis de décanter cette affaire, sinon de rapprocher les positions des Parties. Nous
avons ainsi pu écarter les faux problèmes, rectifier les erreurs, grandes ou petites.
3. Le professeur Soons a bien fait de me reprendre sur l’inexcusable confusion entre Batavia
et Surabaya. Je confirme décidément le cliché : les Français ne connaissent pas leur géographie !
4. Plus significatif peut-être, sir Arthur, dans sa talentueuse plaidoirie, a nuancé pour sa part
les affirmations de l’Indonésie sur deux points importants : 1) il n’y a jamais eu de proposition
britannique de périmètre d’allocation soumise à la partie néerlandaise; 2)la carte du
«Mémorandum explicatif n° 3», n’a jamais été communiquée aux autorités britanniques. Ces
précisions sont de nature à aider la Cour à trancher le litige qui lui est soumis, je vais tenter de le
démontrer.
- 13 -
I. Il n’y a jamais eu de proposition britannique de périmètre d’attribution
5. Le Gouvernement britannique n’a jamais soumis aux Pays-Bas la proposition de tracer
une ligne en haute mer jusqu’au méridien 118° 44’ 30” de longitude est. Il n’a jamais soumis à son
partenaire lors des négociations officielles une carte portant prolongation en haute mer du
parallèle 4° 10’ ou d’un parallèle quelconque. Dont acte.
6. Mais il faut aller plus loin, j’en conviens volontier. Sir Arthur Watts a expliqué que,
fasciné par le tour de magie, je n’avais pas saisi l’essentiel : les négociateurs britanniques avaient
bien en tête un périmètre d’attribution, comme le montrent les croquis et notes conservés dans les
archives britanniques1
. Mais Monsieur le président, si cela était si évident, pourquoi ne l’a-t-on pas
dit ? Dans le texte ou au cours des longues négociations préalables.
7. Reprenons le texte de l’article IV de la convention de 1891. D’après mon éminent
contradicteur, le texte est clair : la ligne du parallèle 4° 10’, d’après ces dispositions, continue de
courir, «across», donc «beyond» l’île de Sebatik. D’après nous, d’après la Malaisie, le texte est
clair : la frontière traverse l’île de Sebatik de part en part, afin ¾ seconde partie de la phrase ¾ de
partager l’île entre les deux parties. Et chacun de part et d’autre de la barre, d’invoquer à l’appui
de son texte clair les arguments sémantiques et les références linguistiques qui s’imposent.
8. Monsieur le président, supposons un instant ¾ ce n’est pas la thèse de la Malaisie, vous
l’avez compris ¾, supposons un instant, dis-je, que le texte n’est pas clair. Que ces deux
interprétations, aussi évidentes l’une que l’autre, indiquent une ambiguïté, une polysémie. Il faut
alors poursuivre le processus d’interprétation par recours aux travaux préparatoires.
9. Ah non ! s’exclame mon contradicteur. Impossible, puisque le texte est clair. Et de
verrouiller ainsi le processus d’interprétation en posant le préalable de l’irrecevabilité du recours
aux travaux préparatoires2
.
10. Sir Arthur précise que, si les parties ont clairement formulé leur volonté, il ne faut pas
détricoter le résultat par un recours imprudent aux travaux préparatoires3
. La Partie indonésienne,
Madame et Messieurs de la Cour, cherche ainsi à enfermer la Cour dans la pétition de principe.

1
CR 2002/33, p. 18, par. 31 (Watts).
2
CR 2002/33, p. 18, par. 29-30 (Watts).
3
CR 2002/33, p. 18, par. 29 (Watts).
- 14 -
Pourquoi ? Parce que nos adversaires savent pertinemment que rien, dans les travaux préparatoires,
ne confirme en quoi que ce soit leurs dires. Rien.
11. Pour notre part, Monsieur le président, nous croyons légitime dans le cas présent le
recours aux travaux préparatoires. Voyons s’ils confirment la thèse du texte clair avancé par l’une
ou par l’autre Partie. Vous le rappeliez dans l’affaire du Différend territorial (Jamahiriya arabe
Libyenne/Tchad) :
«La Cour ne considère pas nécessaire de recourir aux travaux préparatoires pour
élucider le contenu du traité de 1955; toutefois, comme dans d’autres affaires, elle
estime pouvoir, en se référant à ces travaux, confirmer la lecture qu’elle fait du texte
du traité…»4
12. Ce recours aux travaux préparatoires me paraît d’autant plus s’imposer ici qu’il s’agit ou
non de déterminer un périmètre d’attribution. Or mon éminent contradicteur a admis que la plupart
des périmètres d’attribution sont explicitement définis, même si le langage peut varier. Il n’a pas
trouvé d’exemple contraire de périmètre implicite. Il a sans doute ajouté que la convention de 1891
constituait un exemple de «variation», une exception pour tout dire5
. Peut-être. C’est possible.
Encore faut-il alors prouver que les parties ont entendu déroger à la pratique commune en matière
de périmètres d’attribution.
13. Car Monsieur le président, on en revient toujours à la même question. Si les Parties ont
entendu tracer un périmètre d’attribution, pourquoi ne l’ont-elles pas dit ? Pourquoi une formule
ambiguë ? Pourquoi ce silence de la correspondance diplomatique ? Pourquoi ce mutisme des
commissaires tant britanniques que néerlandais lors des trois réunions de la commission jointe ?
Cette question là fondamentale à mes yeux, sir Arthur Watts s’est bien gardé d’y répondre. Parce
qu’il n’a pas la réponse.
II. La carte du «Mémorandum explicatif n° 3» n’a pas été communiquée
au Gouvernement britannique
14. Mon contradicteur qui réfute le recours aux travaux préparatoires, nous venons de le voir,
ne peut s’opposer de la même manière à l’examen de la procédure de ratification de la convention
de 1891 par les états généraux, parce qu’il a désespérément besoin de la carte annexée au

4 C.I.J. Recueil 1994, p. 27, par. 55.
5
CR 2002/33, p. 23, par. 48 (Watts).
- 15 -
«Mémorandum explicatif n° 3». Or les travaux approfondis des états généraux sont tout aussi
silencieux sur un hypothétique périmètre d’attribution. Nous l’avons constaté vendredi dernier; je
n’y reviens pas6
.
15. Venons-en maintenant directement à la carte. «The map was not officially
communicated», sir Arthur ne peut pas le contester7
. Mais c’est pour ajouter aussitôt que j’élève le
pédantisme et le formalisme à un niveau absurde. Permettez-moi, Monsieur le président, de faire
ici l’éloge, sinon du pédantisme, du moins d’un minimum de formalisme. Je sais bien que le droit
international n’attache pas aux formes la même importance que le droit interne. Mais à trop
méconnaître les formes, c’est la sécurité des transactions juridiques que l’on menace. Il vous
appartient, Madame et Messieurs de la Cour, dans la présente affaire, d’établir le juste équilibre
entre l’absence de formalisme et la sécurité juridique qui doit permettre de s’assurer de la réalité du
consentement de l’Etat. Et plus précisément, en l’instance présente, la vérification du
consentement britannique à l’établissement d’un périmètre d’attribution. La Cour l’a rappelé dans
l’affaire du Temple de Préah Vihéar : «le droit international insiste particulièrement sur les
intentions des parties, lorsque la loi ne prescrit pas de forme particulière, les parties sont libres de
choisir celle qui leur plait, pourvu que leur intention en ressorte clairement»8
.
16. Si la carte avait été officiellement communiquée aux autorités britanniques, elle aurait
sans doute provoqué une obligation de réaction. Mais tel n’a pas été le cas. Dès lors, nous entrons
dans la zone plus imprécise de l’acquiescement, voire de l’estoppel.
17. Comme le notait Paul Reuter à cette même barre et dans la même affaire du Temple de
Préah Vihéar :
«Sans avoir à entrer ici dans toutes les finesses, qui sont grandes, de l’analyse
juridique anglo-saxonne, il faut simplement relever que dans les relations
internationales la doctrine fait de l’estoppel un mécanisme répondant au principe
général de la bonne foi et au besoin de sécurité qui régit les sociétés humaines.»9

6
CR 2002/31, p. 31-34, par. 80-90 (Cot).
7
CR 2002/33, p. 27, par. 71 (Watts). Voir cependant Loretta Malintoppi pour qui la carte annexée fut
«communiquée à leurs interlocuteurs britanniques qui ne l’ont nullement contestée» (CR2002/34, p. 14).
8 C.I.J. Recueil 1961, p. 31.
9
Cité par Jennings, «The Acquisition of Territory in International Law», p. 41, note 3.
- 16 -
Ce sont en effet le principe général de la bonne foi et le besoin de sécurité qui éclairent votre
jurisprudence en la matière. Et qui conduisent notamment à ne pas conclure hâtivement à
l’existence d’un estoppel ou d’un acquiescement là où il n’y en a pas.
18. Or je ne relève dans notre affaire aucune trace d’acquiescement, aucun indice du
consentement du Gouvernement britannique à la carte annexée au «Mémorandum explicatif n° 3».
Je relève encore moins d’acquiescement plus précis à la prolongation de la ligne rouge en haute
mer. Le Gouvernement britannique n’a jamais indiqué, par un mot, par un geste, par un
comportement, son acquiescement à un tel tracé. Dans ces conditions, admettre la carte comme
une expression des vues du Gouvernement néerlandais, soit. L’admettre comme preuve du
consentement britannique, non. Nous le savons, une signature sur un coin de table par une
personne habilitée à engager l’Etat sur le plan international suffit sans doute. Mais là, il n’y a
même pas signature, communiqué, déclaration, acte juridique, acte matériel. La règle de base en la
matière reste le consentement, quelle qu’en soit la forme. C’est ce consentement qui fait défaut.
19. J’ajoute qu’il n’y a pas eu, par la suite, la moindre utilisation de la carte, la moindre
occasion de réagir, le moindre comportement de nature à créer une pratique ultérieure dans
l’application du traité à ce propos. S’agissant d’une affaire aussi sérieuse qu’une délimitation
territoriale, Monsieur le président, la diplomatie des arrière-pensées ou des froncements de sourcils
ne suffit pas.
20. Enfin, les conditions de l’estoppel ne sont évidemment pas réunies. On ne voit pas où se
trouve le changement de position d’une partie et moins encore le préjudice subi par l’autre. Au
demeurant, substituer à l’exigence d’un consentement clair une attitude ou un silence lors d’une
négociation ou d’un échange diplomatique est hasardeux pour le moins.
21. La Cour a eu l’occasion de le relever dans l’affaire Elletronica Sicula S.p.A. :
«[B]ien qu’on ne puisse exclure qu’un estoppel puisse, dans certaines
circonstances, découler d’un silence, lorsqu’il aurait fallu dire quelque chose, il est
évidemment difficile de déduire l’existence d’un estoppel du simple fait de n’avoir pas
mentionné une question à un moment donné au cours d’échanges diplomatiques assez
intermittents.»10

10 C.I.J. Recueil 1989, p. 44.
- 17 -
22. Ici, nous sommes très en deçà de l’hypothèse envisagée par la Cour dans l’affaire ELSI,
puisque la carte annexée au «Mémorandum explicatif no
3» ne s’intégrait même pas à des
«échanges diplomatiques intermittents». Déduire l’expression d’un consentement, qu’on l’appelle
acquiescement ou estoppel, du silence britannique face à la production d’une carte dans un débat
parlementaire interne me paraît constituer une extrapolation de l’expression de la volonté au-delà
de toute raison.
23. En somme la carte annexée au «Mémorandum explicatif n° 3» me paraît appelée au
même destin que le rapport Eason dans l’affaire de l’Ile de Kasikili/Sedudu. Dans son arrêt, la
Cour :
«relève en effet que ledit rapport semble n’avoir jamais été communiqué à
l’Allemagne et avoir toujours conservé un caractère interne. Par ailleurs, la Cour
observe que le Gouvernement britannique lui-même n’a jamais donné de suite à ce
rapport, ni après son établissement … ni ultérieurement…»11
24. Comme le rapport Eason, la carte du «Mémorandum explicatif nº 3» a toujours conservé
un caractère interne. Le Gouvernement néerlandais ne lui a jamais donné suite, ni après son
établissement, ni ultérieurement.
25. Monsieur le président, sir Arthur Watts a repris l’analogie entre la carte du
«Mémorandum explicatif n° 3» et la carte du Livre jaune, qui avait été analysée par la Cour dans
l’affaire du Différend territorial (Jamahiriya arabe libyenne/Tchad) certains s’en souviendront. Je
crois que ce rapport commet un contre-sens. Il analyse en effet la carte du Livre jaune comme une
interprétation authentique de l’accord conclu entre la France et la Grande-Bretagne le 21 mars
1899.
26. Mais la Cour ne s’est jamais prononcée sur ce point, car ce n’était pas la question qui lui
était posée. La question lui était soumise était de savoir à quelle carte la France et l’Italie
¾ l’Italie, non la Grande-Bretagne ¾ faisaient référence dans l’échange de lettres des 1er et
2 novembre 1902 lorsque les parties précisaient :
«Il a été expliqué à cette occasion que, par la limite de l’expansion française en
Afrique septentrionale … on entend bien la frontière de la Tripolitaine indiquée par la
carte annexée à la déclaration du 21 mars 1899, additionnelle à la convention
franco-anglaise du 14 juin 1898.»12

11 C.I.J. Recueil 1999, p. 1078, par. 55.
12 Mémoire du Tchad, livre I, p. 174-175 et livre II, annexes 78-80.
- 18 -
27. Dans son arrêt, la Cour constate que : «La carte ainsi mentionnée ne pouvait être que
celle du Livre jaune sur laquelle figurait une ligne en pointillé indiquant la frontière de la
Tripolitaine»13
.
28. En d’autres termes, et dans cette affaire, il s’agissait pour la Cour d’identifier la carte
intégrée dans le règlement conventionnel de 1902 entre la France et l’Italie, non pas d’apprécier la
portée juridique entre la France et la Grande-Bretagne, de la carte publiée par la France dans le
Livre jaune au lendemain de la conclusion de l’accord de 1899. Dans la présente affaire, la carte
du «Mémorandum explicatif n° 3» n’a jamais été, que je sache, intégrée à un règlement
conventionnel ultérieur. J’ajoute que l’Italie s’est prévalue de la carte du Livre jaune dans des
négociations ultérieures14 à propos de l’affaire Libye/Tchad. Tandis qu’ici, ni la Grande-Bretagne,
ni les Pays-Bas, n’ont fait la moindre référence à la carte du «Mémorandum explicatif» par la suite.
La carte du «Mémorandum explicatif n° 3» est ainsi restée enterrée dans les archives
parlementaires néerlandaises et, pour information, dans les archives du Foreign Office.
29. J’en viens à l’accord de Tawao et à l’accord de 1915 qui lui a conféré valeur
conventionnelle. Mon contradicteur propose en effet une lecture nouvelle, innovante,
révolutionnaire de l’accord15
. Il s’agit en l’espèce, ni plus ni moins, de supprimer l’alinéa 1), celui
qui déclare : «(1) Traversing the island of Sebitik, the frontier line follows the parallel of 4° 10’
north latitude, as already fixed by the Boundary Treaty and marked on the east and west coasts by
boundary pillars.»
30. Je comprends que cet alinéa 1) embarrasse la partie indonésienne. Dans le rapport la
frontière est décrite d’est en ouest. L’alinéa 1) précise d’où vient la frontière. Elle vient de la côte
orientale de l’île de Sebatik, pas de plus loin. Pour nos amis indonésiens -- et c’est toute la
virtuosité de ce rapport qui a été ainsi mis a contribution -- il vaut donc mieux ignorer la
disposition, la réputer non-écrite. Notons, cette manie curieuse qu’a l’Indonésie d’élaguer les
textes. L’Indonésie avait déjà proposé, vous vous en souvenez, de supprimer le second alinéa de

13 Arrêt du 3 février 1994, C.I.J. Recueil 1994, p. 33, par. 61.
14 Réplique du Tchad, livre I, p. 54.
15 CR 2002/33, p. 30-32, par. 84-94 (Watts). Les écrits de l’Indonésie et la première intervention de sir Arthur
étaient plus classiques. Cf. mémoire de l’Indonésie, vol. 1, p. 97, par. 5.65; contre-mémoire, vol. 1, p. 100-104,
par. 5.104-5.113; réplique, vol. 1, p. 48-52, par. 2.42-2.47.
- 19 -
l’article IV de la convention de 1891. Cela devient comme un réflexe, comme une manie, un peu
comme ces jardiniers français qui se croient obligés d’élaguer systématiquement les arbres pour les
mettre en conformité avec la perspective souhaitée : l’école de Le Nôtre de Versailles. Je préfère
pour ma part, Monsieur le président, les jardins à l’anglaise, surtout en matière d’interprétation des
traités.
31. Notons le préambule de l’article 3 du rapport :
«We have determined the boundary between the Netherland territory and the
State of British North Borneo, as described in the Boundary Treaty supplemented by
the interpretation of Article 2 of the Treaty mutually accepted by the Netherland and
British Governments in 1905, as taking the following course.»
32. Nulle restriction dans tout cela. Nulle volonté des commissaires de limiter leurs travaux
à une stricte opération de démarcation terrestre. Je vous engage à jeter un coup d’ œil sur cet
accord, que nous avons inclus pour votre commodité dans votre dossier sous la cote 76. On y
retrouve cette perspective d’une délimitation ou d’une détermination de la frontière ¾ les deux
termes sont employés, à l’exclusion de celui de «démarcation»¾ dans le préambule de l’accord,
proprement dit, signé par le secrétaire au Foreign Office et l’ambassadeur des Pays-Bas.
33. Revenons au texte de l’accord : «Taking the following course», la frontière traverse l’île
de Sebatik d’est en ouest en suivant le parallèle 4° 10’, puis, à partir de la borne posée sur la rive
occidentale de l’île, elle suit le parallèle vers l’occident jusqu’au milieu du chenal… Et la carte,
nous l’avons vu la semaine dernière, confirme cette interprétation. La frontière commence bien à
l’East Corner de Sebatik. Elle ne vient pas du grand large. C’est ce que nous vous demandons de
dire et juger.
34. Au terme de cette plaidoirie, Monsieur le président, je prends congé de la Cour.
Monsieur le président, Madame, Messieurs de la Cour, je vous remercie pour votre attention.
Monsieur le Président, je vous prie maintenant de donner la parole à mon collègue, le professeur
Nico Schrijver.
Le PRESIDENT : Je vous remercie, Monsieur le professeur. Je donne maintenant la parole
au professeur Nico Schrijver.
- 20 -
Mr. SCHRIJVER: Thank you.
DUTCH CLAIMS AND PRACTICE WITH RESPECT TO NORTH-EAST BORNEO
AND THE ISLANDS IN DISPUTE
Introduction
1. Mr. President, Members of the Court. I shall briefly respond to issues raised by counsel of
Indonesia with respect to, firstly, the Sultanate of Bulungan; secondly, Dutch claims of
sovereignty east of Batu Tinagat and to the islands of Ligitan and Sipadan; and, thirdly, the
internal Dutch deliberations during the 1920s on the absence of a maritime boundary.
I. The Sultanate of Bulungan did not hold any title to the islands
2. As regards the Sultanate of Bulungan, Malaysia still finds difficulty in grasping what in
fact the position of Indonesia is. In the written pleadings we could note a waning interest in
Bulungan as a basis of Indonesia’s claim to the two islands, to the extent that Indonesia in its Reply
stated that the pre-1891 history was “an irrelevance”16. In our first round we noted that Sir Arthur
Watts advised the Court that there was no need for it to consider the rival claims of the Sultan of
Bulungan and the Sultan of Sulu17. Indonesia plainly admitted that too many uncertainties and
ambiguities existed. However, in the second round of these hearings Professor Soons steadfastly
maintained, despite all the evidence to the contrary, that “through contracts with the Sultan of
Boeloengan, the Netherlands acquired title to Sipidan and Ligitan”18. In a similar vein,
Professor Pellet summarized, that should the Court not accept Indonesia’s title to the islands based
on the 1891 Boundary Convention, its sovereignty could alternatively still be vested on its
succession to the title of the Sultan of Bulungan19
.
3. However, it is a clear matter of reading black and white that the 1850 and the 1878
contracts between the Sultan and the Netherlands as well as the 1893 updated official “Description
of the Territory of Boeloengan and List of Islands Belonging Thereto” show this simply was not
the case. The 1878 and 1893 documents state that the islands belonging to Bulungan are Sebatik,

16See Reply of Indonesia, p. 9, para. 1.5, and p. 101, para. 5.40 (f).
17CR 2002/30, p. 38, para. 4 (Mr. Schrijver).
18CR 2002/33, p. 33, para. 2.
19CR 2002/34, p. 37, para 3.
- 21 -
Nunukan and Tarakan as well as the small islands belonging thereto20. Apart from the literal
meaning of this text, any reasonable interpretation cannot bring islands some dozens of miles from
the coast within the scope of the phrase “islets belonging thereto”. Indonesia chose to ignore these
facts ¾ for obvious reasons.
4. Furthermore, the Ligitan group of islands did not fall within the area disputed by the
Dutch and British during the 1880s, between the Sibuku River and Batu Tinagat. This consisted of
a part of the mainland of East Borneo and the islands on the coast, most notably Sebatik and
Nunukan, as can even be noted from the Dutch internal map attached to the Explanatory
Memorandum.
5. Professor Soons discussed some of the features of the Sultanate of Bulungan. Let me
make clear for the record that Malaysia never did assert that Bulungan was a “purely land-based
Sultanate”, as Professor Soons claimed on Monday21. Here I just would like to refer the Court to
the expert report by Professor Houben, identifying Bulungan as “a small coastal Sultanate with
limited territorial reach”22. By contrast, Sulu was of course a typical maritime Sultanate.
6. [Project ethnographic map, insert 3, MR] Professor Soons also referred to the fact that the
coastal population, particularly Bugis, participated in fishing and maritime trading. Malaysia
already recorded this in its Memorial and its Reply23. Reportedly, during the nineteenth century
they bartered forestry products for slaves from the Sulu region. Yet, the Bugis in Bulungan were
small in number24. This can also be demonstrated ¾ and please excuse me if I allow myself to be
carried away for a moment ¾ in the beautifully produced and probably first ethnographic map of
Borneo, made in 1917, now on the screen and included in your folders under tab 78, from the
archives of the Royal Tropical Institute in Amsterdam25. As you can see from the pink coloured
areas, the Bugis, originating in South Sulawesi, lived mainly along the coast in south-eastern and
western Borneo rather than in north-eastern Borneo.

20See Memorial of Malaysia, Vol. 2, Ann. 11, p. 41 and Vol. 3, Ann. 54.
21CR 2002/33, p. 33, para. 5.
22See Ann. to Counter-Memorial of Malaysia, p. 15.
23Counter-Memorial of Malaysia, p. 25, para. 3.4; Reply of Malaysia, p. 25, para. 3.4.
24See literature referred to in written pleadings, particularly the articles by Von Dewall (1855) and Gallois (1856)
and the books by Lindblad (1988), Sather (1997) and Warren (1981).
25See Reply of Malaysia, insert 3, p. 26.
- 22 -
7. Mr. President, by the end of this case we will all have become specialists on Bulungan.
[End of graphic] And there is no evidence that the Sultan of that Bulungan ever exercised the
slightest authority over islands far off the coast; as a matter of fact, all the evidence is to the
contrary.
II. Supposed Dutch claims to east of Batu Tinagat and the islands
8. I would now like to turn to the supposed Dutch claims to the islands. The Dutch colonial
administration over the area spanned nearly a century. There can be little doubt that this particular
area of Borneo was really on the fringes of the Dutch colonial area, as was repeatedly admitted by
the Dutch Ministers of Colonies and Foreign Affairs in their discussions with Parliament.
9. Furthermore, as we noted in the first round, the period from 1830 until approximately
1890 is viewed within recent Dutch historiography as being marked by self-restraint and a policy of
“abstention” towards the outer islands. Indonesia did not respond to this observation in its second
round.
10. Nevertheless, Indonesia saw fit to argue that in the pre-1891 period the Dutch claims
extended to various islands of the Ligitan Group, including even Mabul. These claims were never
recorded or reported in any diplomatic contacts, diplomatic correspondence or parliamentary
proceedings. All that Professor Soons mentions with respect to evidence of these supposed Dutch
claims, are two incidents concerning a native boat on Mabul, incidents which indeed raised concern
among BNBC officials in 188326. In the relevant document which Malaysia has also included in
the judges’ folders under tab 79, there is an explicit reference to the fact that “the Dutch
men-of-war are cruising in our [namely British] waters, north of the boundary they themselves
claim”27
.
11. Furthermore, the document of W. H. Treacher, the first Governor of British North
Borneo, makes once again perfectly clear that the Dutch and British were co-operating in
combating piracy and slavery. As Governor Treacher put it in his letter: “I should be the last to
underrate the good work done by the Dutch cruisers in suppressing piracy and slavery on their east

26CR 2002/33, p. 34, paras. 6 and 9.
27See Reply of Indonesia, Vol. 2, Ann. 2.
- 23 -
coast; but the people I refer to are not pirates or slave-dealers, and the boat in question was seized
in North Borneo and not in Dutch waters.”28
12. Apart from suppressing piracy and the slave trade in co-operation with the British, some
Dutch ships were also involved in surveying. As we can read from the relevant logbooks these
surveying activities included British North Borneo, including the coastline of, and islands and reefs
off the coast of British North Borneo. Yet, this is not to say that such activities and the publication
of nautical charts are to be interpreted as evidence of sovereignty and the exclusive right to display
the activities of a State, as determined by Judge Huber in the Island of Palmas case29. The
activities of Dutch ships cannot be interpreted as meeting the classical criteria of displaying
exclusive authority. They were simply not exercises of defence of territory, let alone of territorial
jurisdiction.
13. Mr. President, the Parties have debated the availability of reports in archives and in other
sources. Of course, we assume that Indonesia is the best-informed authority on what is, and what is
no longer available in Indonesia, and, if available, where the archives are now located. All
Malaysia wanted to emphasize is that the Public Record Office in London and the General State
Archives in The Hague still contain a wealth of relevant materials, including lists of movements of
Dutch ships in the area, an uninterrupted chronological survey of destinations of naval vessels and
reports of surveying activities in the Netherlands East Indies for the period 1894-1956, as well as a
considerable number of logbooks. But both Parties have not been able to find any relevant reports,
above the few reported in the pleadings.
14. Regarding archives on regional administrative centres: Malaysia also regrets that those
of the local Dutch administration in Tarakan are no longer available. But, with due respect, these
would not have been very important for our case. Highly relevant to our case are the archives of
the Residency of the Southern and Eastern Division of Borneo, most notably the Memoranda of
Transfer of the Residents and the mail reports on the region. Fortunately, nearly all of them are
available in large quantity and can be found on microfiche in the General State Archives in
The Hague. And these mail reports — these Memoranda of Transfer —provide us with an accurate

28Ibidem.
29Island of Palmas (The Netherlands v. the United States), 2 RIAA (1928), p. 829.
- 24 -
picture of Dutch presence in, and administration of, the region of Bulungan. Hence, it is very
significant that none of these Memoranda of Transfer and mail reports refer to the islands of
Ligitan and Sipadan. Nor do the Dutch Annual Reports on the Colonies and parliamentary
proceedings .
III. Internal Dutch deliberations in the 1920s on the absence of a maritime boundary
15. Mr. President, Members of the Court, I would now like to proceed to my next and last
item: the internal Dutch deliberations in the 1920s. First of all, we have some difference of
opinion with Indonesia as to what triggered this discussion on the absence of a maritime boundary
east of Sebatik. There can be little doubt that it all started as a result of uncertainty with regard to
the line to be adopted as the border between the Dutch and British and maritime areas near the
island of Sebatik for the purpose of anti-piracy control.
16. As the Vice-Admiral stated in his letter dated 4 January 1922, which you find in its
original form and in English translation under tab 80: “In the Agreement . . . concerning the
boundary line between the Netherlands and the British protectorate in Borneo, no boundary line is
set forth which separates the territorial seas of the Netherlands and the protectorate in question.”30

Obviously, the Vice-Admiral makes reference to the 1915 Agreement, with the accompanying
treaty map, which was made public by official decree in the Netherlands East Indies in 1916, which
you find under tab 81 of your folders31
.
17. Second, we have some difference of opinion with respect to the relevance of the fact that
the Commander of the Naval Forces of the Netherlands East Indies initially opted for a boundary
line perpendicular to the coast out of the three options under discussion ¾ and not two as
Professor Soons mistakenly said (para. 41). While we know from the Awards by the Tribunals in
the Guinea/Guinea-Bissau case and Eritrea/Yemen case, as discussed by Professor Cot last
Friday32, that a maritime boundary line does not necessarily correspond with an allocation line,
Malaysia continues to find it highly significant that during the extensive deliberations, none of the

30Reply of Malaysia, Ann. 4.
31Reply of Malaysia, Ann. 5.
32CR 2002/31, pp. 19-20.
- 25 -
officers involved in the Netherlands East Indies or The Hague ever referred to the existence of a
maritime boundary or an allocation line east of Sebatik along the 4° 10’ N parallel.
18. Thirdly, in response to my question why the Resident of the Southern and Eastern
Division of Borneo repeatedly stated that in this particular area “there are no islands; only the open
sea”, Indonesia has nothing more to offer than that the Resident was stationed 900 km away and
that he was not well informed33. By implication, this also applies to the Assistant Resident
stationed much closer in Samarinda in Koetei. However, both of them should have known had the
Dutch any claims to the islands of Ligitan and Sipadan, let alone had they been exercising actual
sovereignty there .
19. Lastly, I would like to refer the Court to the Memorandum of the Legal Department of the
Netherlands Ministry of Foreign Affairs, dated 8 August 1923. This Memorandum, included under
tab 82 of your folders, is an extensive paper, well documented and with references to various
handbooks on international law and the law of the sea, which show the tools of an Office of Legal
Affairs at the time34. Whereas the Navy preferred a line perpendicular to the coast, the Legal
Adviser advised the Ministers to maintain the continuation of the land boundary. His main reason
for adopting the parallel of 4° 10’ N is shown in his quotation from the 1891 Explanatory
Memorandum to Parliament:
“By this division of the island both the Netherlands and British North-Borneo
will have that area of the island in possession which forms the shore of the waterway
along which each has to reach the coastal area allocated to them; this is fair and
rational.”35
It confirms once more that the main concern was the access to their respective areas of the
mainland of Borneo west and north-west of Sebatik.
20. Obviously, the various Dutch authorities did not regard the 4° 10’ N line as an
established maritime boundary. After receiving the report of the Lynx cruise, they would have
certainly not jeopardized a claim to Sipadan and Ligitan by pressing for a boundary line
perpendicular to the coast of Sebatik Island if they had thought Dutch sovereignty over the islands

33CR 2002/33, p. 43, para. 43.
34Counter-Memorial of Malaysia, Vol. 2, Ann. 5, pp. 27-43. See also Reply of Malaysia, para. 4.13.
35Memorial of Malaysia, Vol. 3, Ann. 51.
- 26 -
to the east of the coast of Sebatik was at stake. But the issue was just not considered during these
lengthy and well documented internal Dutch deliberations spanning a period of five years.
21. Finally, Mr. President, there was a conspicuous silence on the part of Indonesia in
response to Professor Crawford’s list of 15 maps which showed conclusively that the islands of
Sipadan and Ligitan were not considered to belong to the Sultanate of Bulungan or the Netherlands
East Indies. In conclusion, the Sultan of Bulungan did not hold title to the islands in dispute, and
neither did the Dutch in law or in practice. The internal Dutch deliberations in the 1920s provide
evidence on the absence of a maritime boundary east of Sebatik.
22. Mr. President, distinguished Members of the Court, this concludes my intervention on
the Dutch position with respect to the Sultanate of Bulungan and the islands. May I now invite you
to call on Professor Crawford who will deal with Malaysia’s title to the islands in dispute. Thank
you, Mr. President, Members of the Court.
Le PRESIDENT : Je vous remercie, Monsieur le professeur. Je donne maintenant la parole
au professeur Crawford.
Mr. CRAWFORD:
Malaysia’s title to the islands in dispute
Introduction
1. Mr. President, Members of the Court, Professors Cot and Schrijver have shown,
respectively, that the 1891 Convention does not sustain Indonesia’s case, and that neither the
Netherlands nor Indonesia (before 1969) ever made any claim to the two islands. That is, as it
were, the case against Indonesia. I turn to deal with those aspects of the case for Malaysia which I
discussed on Monday. As far as they concern, first, the legal basis of title itself, and secondly and
secondarily, the map evidence. In short I will deal first with the legal case and then with the
geographical or map case, in so far as this is necessary to respond to what Indonesia has said in its
second round. Sir Elihu Lauterpacht will follow me and deal, on the same basis, with the aspect of
the case for Malaysia which concerns administration.
- 27 -
A. Malaysia’s title to the islands
2. I turn then to the documents and transactions which establish Malaysia’s title to the
islands. I need to address four topics.
(1) The 1885 Protocol and the nemo dat argument
3. On Monday both Sir Arthur Watts and Mr. Bundy dealt with the issues surrounding the
1885 Protocol, which I discussed in the first round. Mr. Bundy sought to show that neither the
Convention nor any other evidence established Sulu or Spanish title to the islands36; Sir Arthur
sought to refute the nemo dat argument37. Let me deal with them in that order.
4. As to the 1885 Protocol, Mr. Bundy complained that I had not taken you to its Article I
38
.
You can see it on the screen, and the whole text of the Protocol is in your folders at tab 83.
Article I says quite simply:
“The Governments of Great Britain and of Germany recognise the sovereignty
of Spain over the places effectively occupied, as well as over those places not yet
occupied, of the Archipelago of Sulu (Jolo), of which the limits are laid down in
Article II.”
Thus ¾ unlike the situation with the previous Protocol of 187739 between the same three States ¾
Spanish sovereignty is now recognized over all places, whether or not they are actually occupied.
The only exception is the areas covered by the Sulu grant of 1877, including islands within
9 nautical miles, and that is set out in Article III. This is all perfectly clear, and it has nothing to do
with any requirement of Spanish notification. Sovereignty is vested by Articles I to III without any
requirement, either of notification or of occupation. And in both respects you can contrast this with
the Protocol of 1877. That was the basis for the legal advice of both the United States40 and Great
Britain41 after 1900. Both items of legal advice were based upon the 1885 Protocol, unfortunately
Mr. Bundy failed to discuss that legal advice on Monday. I commend those legal opinions to you
again, both for their clear analysis of the situation, and for the evident absence of the slightest

36CR 2002/33, p. 45, para. 4, p. 46, paras. 8-11 (Mr. Bundy).
37CR 2002/33, pp. 24-26, paras. 51-60 (Sir Arthur Watts).
38CR 2002/33, p. 47, para. 9 (Mr. Bundy).
39Memorial of Malaysia, Vol. 2, Ann. 5.
40Memorial of Malaysia, Vol. 3, Ann. 55.
41Memorial of Indonesia, Vol. 3, Ann. 109.
- 28 -
inkling that the Dutch might entertain claims to two of the islands. In this respect the facts
underpinning the documents are as significant as the legal analysis they contain.
5. Mr. Bundy sought to discredit the evidence of Sulu control over the islands off the coast of
North Borneo in the latter part of the nineteenth century42, but he failed to heed Professor Pellet’s
newly adopted slogan, “some facts are better than no facts”. Perhaps most striking was
Mr. Bundy’s dismissal of the ¾ what he described as ¾ private map, taken from the second
edition of the General Atlas of the Netherlands Indies. As you will recall, this map of 1870 clearly
showed the two islands, by name, as part of the dominions of Sulu43. Mr. Bundy complained that
the two responsible Dutch officials who produced that map got their geography distorted44. This,
he seemed to conclude, was evidence of Dutch control over the islands through Bulungan. It was
as if, because these Dutch officials could not accurately depict the region, north-east of Sebatik,
therefore the Dutch controlled the region. The logic was not easy to follow; but in any event there
is no doubt that the map depicts the two islands as lying beyond the proclaimed horizon of Dutch
interest and activity and as part of the dominions of Sulu off the north-east coast of Borneo.
6. Of course, from a forensic point of view, Mr. Bundy had to try to trash ¾ if I can use an
unattractive modern word ¾ all the pre-1878 evidence of Sulu control, just as Professor Pellet had
to do for the BNBC period. For Indonesia now argues, subsidiarily and in the alternative45, that the
two islands actually belonged to the Sultan of Bulungan, who has to that limited extent come back
to life after his earlier disappearance ¾ it is a sort of existence in the alternative. The sequel to
Agatha Christie’s “The Strange Case of the Disappearing Sultan” is, we find, “The Sudden Return
of the Sultan”. But Inspector Schrijver, aided by his expert witness Professor Houben, has
definitively excluded the possibility of a sequel. Some facts are better than no facts, and there are
no facts supporting Bulungan’s title to the islands.
7. Mr. Bundy also asserted once more that if Malaysia failed to demonstrate Sulu authority
over the offshore islands, our case fails. But that, of course, is not true. What the 1885 Convention

42CR 2002/33, pp. 44-46, paras. 3-5 (Mr. Bundy).
43Memorial of Malaysia, Vol. 5, map 3.
44CR 2002/33, p. 45, para. 4 (4) (Mr. Bundy).
45CR 2002/34, 10 June 2002, p. 37, para. 3 (Professor Pellet).
- 29 -
shows perfectly clearly is that the British claim to North Borneo went no further that 9 nautical
miles from the coast and that it did not include these islands. Indeed, from this point of view, it
doesn’t really matter so much whether the islands were Sulu or not. They were not British and
therefore Britain could not, and could not have intended, silently to confer on the Dutch a treaty
title to them.
8. Mr. President, Malaysia made the nemo dat argument in each round of our written
pleadings46, and last week47. Now for the first time Indonesia through Sir Arthur Watts has
attempted to reply to it48. I am grateful to him.
9. What he said, on Monday, was that title to the two islands was uncertain, and that the
Treaty produced certainty. But of course that does not work. Two things were certain about the
position in 1890: (1) that the Sulu grant extended out to only 9 nautical miles (and thus did not
include the islands), (2) that the Dutch did not claim areas or islands east of Batu Tinagat. Those
things were certain, and they add up to an incapacity on the part of Britain to give the Dutch a
treaty title or to recognize in the Dutch actual authority over the islands. It also demonstrates the
absence of intention to do either of those things. It is true, there was great uncertainty inland, but
there was no uncertainty in this respect as to the offshore islands beyond 9 nautical miles. It is
clear from the Sulu Grant itself of 187849, from the Royal Charter of 188150, from the Protocol of
188551 and from the Protectorate Agreement of 188852
.
10. Then there was a more subtle argument, which was at least hinted at by several of
Indonesia’s counsel53. It seems to run as follows: even if British North Borneo did not include the
islands in 1891, it was open to Britain to promise that if in future it would acquire the islands, these
would be passed on to the Dutch. In effect, Britain would become a sort of clearing agent for the

46Memorial of Malaysia, para. 8.22; Counter-Memorial of Malaysia, para. 3.29; Reply of Malaysia,
paras. 1.8 (4), 1.14.
47CR 2002/30, p. 16, para. 14 (Tan Sri Abdul Kadir Mohamed); pp. 49-50, paras. 11-12, 59, paras. 33 (6), 34;
p. 35, para. 45, p. 40, para. 63 (2) (Professor Crawford).
48CR 2002/33, pp. 24-26, paras. 51-60 (Sir Arthur Watts).
49Memorial of Malaysia, Vol. 2, Ann. 9.
50Memorial of Malaysia, Vol. 2, Ann. 13.
51Memorial of Malaysia, Vol. 2, Ann. 15.
52Memorial of Malaysia, Vol. 2, Ann. 16.
53See, e.g., CR 2002/33, p. 26, para. 59 (Sir Arthur Watts).
- 30 -
islands, pursuant to the 1891 Convention. Britain, it is said, could have promised in 1891 that any
future acquisitions of territory south of 4° 10’ would be handed over to Dutch Borneo. On that
basis there would have been no nemo dat problem. After all, someone can promise to give what
they will get in the future to another, even if they do not have it now.
11. But the Court will immediately see that this alternative argument ¾ if it was made and it
was only hinted at ¾ is absolutely hopeless. Although in theory a State could promise to hand
over future-acquired territory to another State, it is obvious that such a promise would have to be
explicit and would have to be discussed, and that it cannot be inferred from a boundary agreement
which deals with existing territory, existing territorial claims and a boundary immediately created
and effective immediately upon ratification. There is not a trace of a suggestion in the written
record of any such promise as to the future. Moreover, such an interpretation would contradict the
object and purpose of the 1891 Convention, which was, we agree, finally to settle the dispute
concerning the area of overlapping claims. It was not the purpose of the Convention to create the
possibility of later claims to still further, after-acquired islands, beyond that area and further to the
east.
12. I should make one final point. Assume, for the sake of argument, not only that Malaysia
is wrong about Sulu titles but that the Ligitan islands belonged in 1891 exclusively to the
indigenous inhabitants and not to any State or Sultan. That is what you held to be the case for the
Western Sahara prior to Spanish colonization54. On that assumption, no doubt, the Ligitan islands
were not terra nullius. But they would not have been the subject of any State’s sovereignty, not
Spain, not the Netherlands, not the State of North Borneo under British protection. I note that the
convergent legal analyses of the situation made in 1903 by Secretary of State Hay55 and in 1905 by
the British Foreign Office56 both implicitly reject that possibility. Let us however assume that they
were wrong to do so and that the islands were never Spanish. It would follow that the islands in the
Ligitan Group were excluded from the scope of the 1907 Exchange of Notes and the 1930 Treaty.
But they would still now be part of British North Borneo, that is to say, of Malaysia, because the

54I.C.J. Reports 1975, p. 16.
55Memorial of Malaysia, Vol. 3, Ann. 55.
56Memorial of Malaysia, Vol. 3, Ann. 66.
- 31 -
indigenous inhabitants of the Ligitan Group came to owe their allegiance to the BNBC and its
successors in title, and to this day they owe it to Malaysia. They clearly have never owed any
allegiance to Indonesia. The well-attested social facts associated with the islands ¾ which
Indonesia does not deny; not even Professor Pellet, with all his capacity for denial, denies those
social facts ¾ would have combined with BNBC, British and Malaysian effectivités to give the
islands to Malaysia.
13. For these reasons, Mr. President, Members of the Court, Sir Arthur’s attempt to deal with
the nemo dat argument is, with respect, wholly unconvincing. In fact I do not think it convinced
Professor Pellet. Why else would he have attempted the heroic and hopeless task of trying to prove
that Indonesian effectivités over these islands were greater than Malaysian? On the theory of the
case adopted by Indonesia and by Professor Pellet in the first round, there was no need to do so.
Instead counsel for Indonesia could and did rely on the rules concerning prescription, with their
very high standard of proof on the State seeking to displace a pre-existing title. You heard
Professor Pellet discuss it at length last week. By contrast I do not think that counsel for Indonesia
used the word “prescription” on Monday. It has disappeared from the Indonesian vocabulary. Its
disappearance is a tacit acknowledgment of the force of the two words “nemo dat”. Instead you
had, from Professor Pellet: “some facts are better than no facts . . .”. Mr. President, that is not a
rule relevant to prescription.
(2) The 1900 Convention
14. Mr. President, Members of the Court, I turn to my second point, the 1900 Convention. I
can be much briefer in relation to that Convention. Mr. Bundy accused me of trying to hide from it
and of being embarrassed by it. In fact what there was to say about it we said. The
1900 Convention between Spain and the United States covered “any and all” Spanish islands
beyond the 1898 Treaty of Paris lines. It was not limited to the islands of Cagayan Sulú and Sibutú
which were particularly mentioned. If it had been so limited, it would not have covered the Turtle
Islands and the Mangsee Islands, yet it is clear ¾ and we agree ¾ that it did cover them. The
Court may recall my argument about liking cheeses, particularly camembert and gorgonzola ¾ but
I apologize, Mr. President, my liking for cheeses is causing me to repeat myself.
- 32 -
15. In any event, Secretary Hay’s legal opinion of 1903 is quite clear on the point. I am
sorry Mr. Bundy could not discuss it on Monday.
(3) The events of 1900-1907
16. I turn equally briefly to the events of 1903 to 1907. There are only two points that need
clarification. Apart from these I leave the Court to read through the documents chronologically
listed in tab 35 of our judges’ folders for last week.
17. The first question of fact is this. Did the parties consider that only islands to the north of
Sibutu were affected by the 1907 Exchange of Notes? The BNBC clearly did not think so; their
memorandum and their map covered all the islands visited by the Quiros including Danawan ¾
and they knew that Danawan was visited by the Quiros. So did the Durand map, which became the
map annexed to the 1907 Exchange of Notes. The Sultan’s Confirmation of 1903 ¾ even though it
was plainly invalid as a matter of law ¾ also covered islands to the south-east of Sibutu, including
all the inhabited islands in the Ligitan Group. All the facts point the same way.
18. The second question of fact is this. Did the United States spontaneously change its
position as reflected in the 1903 Hydrographic Office map, which expressed a claim to all the
islands of the Ligitan Group; or did they change their position ¾ or rather stay their hand ¾
because of British concerns, prompted by the BNBC? Mr. Bundy suggested on Monday that the
decision was spontaneous and internal. Secretary Hay realized, perhaps in the middle of the night,
that he had made a legal mistake. He had blundered and he spontaneously went back on his
previous, apparently considered view, disowning the poor Lt. Boughter in the process. Probably
not much turns on it, but as I read the record ¾ admittedly not complete ¾ it seems to me that the
United States position changed because of discussions to be held with the British. If you refer back
to the chronological list of documents, which is our tab 35, you will see that the crucial date is
23 October 1903, when instructions were given not to mark the boundary line on the map “until a
mutual agreement has been arrived at between the United States and British governments”57. All
subsequent internal correspondence presents the British negotiations as the reason for putting the

57See Memorial of Malaysia, Vol. 3, Ann. 63; Memorial of Indonesia, Vol. 3, Ann. 104.
- 33 -
issue on hold. There is no suggestion that the United States change of position ¾ if that is what it
was ¾ was due to the Dutch, no suggestion at all.
19. I emphasize these facts because, quite apart from their legal significance, which I will not
repeat, the whole transaction is a vivid testimony as to the factual situation in relation to precisely
these islands. Mr. Bundy seemed to think that because the first edition of the Hydrographic Office
map was put on hold, therefore nothing Lt. Boughter saw or said or reported can be relevant. But
that is obviously not the case, and Sir Elihu will return to it shortly.
(4) The 1930 Convention
20. [Tab 84 ¾ tab 39 of Malaysia’s first round] Fourthly and finally I should say something
about the 1930 Convention. Mr. Bundy repeated the trick of asserting there was no evidence for a
proposition, while ignoring the evidence Malaysia had tendered. In this case Mr. Bundy’s
proposition was that the 1930 Convention did not affect the islands. He said that we had produced
no evidence that the 1930 Convention affected the islands58. In fact, as you will recall, we did
produce such evidence. It was of two kinds.
21. The first is the logical connection between the 1907 Exchange of Notes, the temporary
arrangement for the administration of the offshore islands, and the 1930 Convention. Because the
1930 Convention made permanent, with certain important variations, what had previously been
regulated by the 1907 Exchange of Notes and its annexed map, by definition, therefore, the scope
of the two treaties was connected. The temporary arrangement became permanent, but with
variations. All the islands, administered under the 1907 Exchange of Notes, all the islands — the
phrase comes from the Exchange of Notes — which were not resumed by the United States in 1930
became permanently and for all purposes part of British North Borneo. Thus the annexed map of
1907, the Durand map, with its line down to 4° N, was by definition part of the 1930 arrangements,
since it defined the basis upon which the 1930 Convention operated. Mr. Bundy virtually ignored
that clear logical connection on Monday.
22. The second kind of evidence we produced was documentary: it is the evidence that the
British Admiralty, at least, gave clear and close consideration to the scope of the 1930 Convention

58CR 2002/33, p. 54, para. 42 (Mr. Bundy).
- 34 -
prior to its conclusion, and that British officials considered unequivocally that it affected the
offshore islands south of Semporna. The map on your screen —tab 84 in your folders — is our
re-showing of the lines that were attached to the first of the two Admiralty memoranda of 1927,
annexed to your folders in the first round59. That map, and the original which is also annexed, is
clear evidence of the fact — the two Admiralty memoranda themselves are equally clear evidence
of it. Mr. Bundy made no reference to them whatsoever. Let me, if I can interpolate a repetition,
recall the conclusion, reached by the Admiralty in 1927, that under the proposed Treaty: “British
North Borneo [this is under the 1930 Treaty] would receive Buaning, Lankayan, Mantatuan,
Mataking and the Ligitan Islands, to none of which she has any valid claim.”60 Indonesia has
chosen not to respond to this evidence.
23. It does not matter for this purpose whether the 1930 Convention is interpreted as a treaty
of cession, or as a mere relinquishment of a claim to small islands which the United States never
actually administered. What is clear from the record is that the BNBC had administered them and
was continuing to do so, and that the issues were of concern exclusively to the United States and
Great Britain. Whether the transaction is analysed as a relinquishment or a cession does not matter,
its legal effect is precisely the same.
24. Mr. President, Members of the Court, to summarize briefly, the islands south of
Semporna were Sulu islands. Those beyond 9 nautical miles from the coast were not granted to the
BNBC by the Sultan in 1878, but the BNBC for practical reasons gradually extended its control
over them, without any protest or action on behalf of Spain or the Netherlands. Nonetheless, their
Spanish character was expressly acknowledged by the British in 1885, and they passed to the
United States in 1900, as both the United States and Great Britain agreed. They were administered
by the BNBC under the 1907 Exchange of Notes until 1932, when the 1930 Convention came into
force. At that point, sovereignty over the islands lying to the west and south of the line on the
1930 Convention map firmly and finally vested in British North Borneo under British protection, in
the absence of any claim or action by any interested third party. The Dutch never having claimed

59CR 2002/31, 7 June 2002, pp. 50-53, citing Memorial of Indonesia, Vol. 4, Ann. 123; Counter-Memorial of
Malaysia, Vol. 2, Ann. 3.
60Counter-Memorial of Malaysia, Vol. 2, Ann. 3, p. 18.
- 35 -
the islands, Indonesia lacks any trace of title over them. But even if the islands had not been Sulu,
even if they had not been Spanish, even if they had not been American, they would now be
Malaysian because Malaysia’s predecessors claimed and administered them and no one else did.
Mr. President, that would be a convenient moment for a break.
Le PRESIDENT : Je vous remercie, Monsieur le professeur. La séance de la Court est
suspendue pour une dizaine de minutes.
L’audience est suspendue de 11 h 25 à 11 h 35.
Le PRESIDENT : Veuillez vous asseoir. La séance est reprise et je donne la parole au
professeur Crawford.
Mr. CRAWFORD: Mr. President, Members of the Court.
B. The map evidence
25. I turn now to deal with the map evidence. Let me start with two preliminary points
concerning the geography and the maps.
(1) The “Ligitan Group” is not a concocted potion
26. This preliminary point concerns what Professor Pellet was pleased to describe as our
invented reference to the “Ligitan Group”: he called it “soi-disant”, a concocted potion uniquely
invented for the purposes of the case61. So worried was Sir Arthur Watts about this concocted
potion that he spent a quarter of his speech, which should have been on the 1891 Convention,
talking about the Ligitan Group instead62. So let me show you that it was not a concocted potion
but part of the original recipe and the original reality.
27. [Show MC-M, map 7, detail] I attach, at tab 85 in your folders, a list of maps in the
record which use the phrase “Ligitan Group”. You will see there are 14 maps that do so, ranging
from 1881 to 1997. In the time available since Monday we have not been able to find all of the

61CR 2002/34, p. 31, para. 33 (Professor Pellet).
62CR 2002/33, pp. 12-17, paras. 2-24 (Sir Arthur Watts).
- 36 -
references in the documentary annexes to the Ligitan Group, but there are certainly some. Let me
mention two items, one map and one document.
28. The first item is the map which is tab 86 in your folders and is on the screen: you have
seen it before. It is the map published in Batavia in 194163, which I showed you last Friday. It
shows the words “Ligitan Group” between the star-shaped reef and Sipadan Island. In case you
were wondering, the number “(51)” in brackets next to Sipadan is a reference to the height of the
top of the trees on Sipadan, and is there to aid mariners. Incidentally, we know the name of the
BNBC subject who planted trees on Sipadan. Indonesia has not told us the name of any Dutch or
Indonesian person who spent more than half an hour on the island at any time before 1969, let
alone someone who planted trees.
29. The second document is the 1890 British Sailing Directory for “Borneo: North-East
Coast”, which you will find in your folders as tab 8764. The entry for the Ligitan islands cover
Si Amil, Danawan, a small unnamed islet ¾ which is actually Ligitan ¾, Sipadan and Mabul; the
Directory then moves on to Sibuko Bay. This chapter covers everything down to the Sibuko River,
the end of the 1878 Grant, and then it stops.
30. Indonesia argues that the second edition of the Sailing Directory does not list Sipadan as
part of the Ligitan Islands65. It is true that there are significant changes between the 1890 and the
1904 editions of the Sailing Directory, no doubt as a result of new information arising from such
voyages as that of the Egeria. Under the entry for Ligitan Islands, in the second edition, are
covered everything from Si Amil to Mabul Islands; Ligitan islet is now mentioned by name, as is
Kapalai; then Ligitan Channel to the north and Sipadan to the south of Mabul ¾ it is only
8 nautical miles away. It is unclear from the text whether the Ligitan Islands entry include Sipadan
but it is perfectly clear that Sipadan is still treated as part of “Borneo; North-East Coast”. Later the
Directory discusses Sebatik and it mentions the boundary pillars now placed there. There is no
suggestion that any of the islands discussed under Ligitan Islands are not part of British North
Borneo. [End MC-M, map 7, detail.]

63Counter-Memorial of Malaysia, Vol. 2, map 8.
64Counter-Memorial of Malaysia, Vol. 2, Ann. 1.
65For the second edition (1904) see Reply of Indonesia, Ann. 4.
- 37 -
31. These references entirely dispose of Professor Pellet’s notion that the Ligitan Islands or
the Ligitan Group are some sort of invented potion or poison pill being foisted on Indonesia. The
term has been current for a long time. Of course, Sipadan is not physically part of the star-shaped
reef; it is principally now serviced from Mabul, but historically its connection was, as we know,
with Danawan.
(2) The classification of map evidence
32. My second preliminary point concerns the classification of the map evidence which I
presented last week. You will remember category 1, the treaty maps ¾ the great maps;
category 2, the maps put forward as reflecting claims or even informal agreements or
understandings at the inter-State level; and then the residual category 3. Ms Malintoppi suggested
that this classification is too rigid, but a map is either annexed to a treaty or it is not. The internal
Dutch map was not so annexed, and all attempts by Indonesia to turn it into a category 2 map have
failed, as Professor Cot has shown you. In the result, Indonesia did not deny that all the maps I
listed as category 1 or category 2 maps support Malaysia. None of them support Indonesia. In this
context it is significant that there was no discussion from Indonesia on Monday of the 1888 Dutch
map, or of the very many related statements made by the Dutch that they did not claim any territory
east of Batu Tinagat, nor of the map annexed to the 1907 Exchange of Notes.
(3) Ms Malintoppi’s 24 maps
33. With these preliminaries out of the way, let me turn to the maps alleged to support
Indonesia’s case. On Monday, Ms Malintoppi helpfully gave us ¾ their tab 12, which was a list of
24 maps which, she said, support Indonesia’s claims to the islands66. We have re-presented that list
of 24 maps as tab 88 in our folder, with annotations. Ms Malintoppi is responsible for the
identification of the maps, I am responsible for the annotations. The annotations show, first,
whether the two disputed islands appear on the map, and secondly, if they do, how they are shown
relative to any line on the map. I will take you to a few of the maps shortly, but let us look at the
overall picture.

66CR 2002/34, pp. 19-21, paras. 33-36 (Ms Malintoppi).
- 38 -
34. [Show Malaysia Timor Sabah; no need to put in folders] First, the island of Sipadan
does not appear on 15 of her 24 maps. It is not shown. Those maps accordingly can say nothing
precise or specific as to its status.
35. Of the nine maps on the list on which the island of Sipadan appears, the island is shown
to the south of a line drawn on the map in some, but not others. On five maps Sipadan is shown to
the south of a line. Now, three of these are the early Stanford maps ¾ they are Nos. 2, 5 and 6 on
the list, which is tab 88. The Stanford maps show what appears to be a BNBC administrative
boundary. On each of these maps Sipadan is shown to the south of the boundary and Ligitan to the
north. At this time, as we know, neither island was actually part of British North Borneo, although
by 1903 there is independent evidence that the BNBC was resolving disputes over turtle egg
collection on Sipadan, an activity which continued and was later reinforced by legislation
specifically applied to the island. These three administrative boundary maps do not actually
attribute Sipadan to British North Borneo, but neither do they attribute it to the Netherlands, it is
simply to the south of an administrative boundary. I should say that those maps were later replaced
by administrative maps which showed a closed administrative boundary of Tawau, where there
were no islands further to the east. That closed administrative boundary stopped well short of the
islands, and then there was an open administrative district of Semporna which obviously includes
the islands. Three of those maps showing the open administrative district of Semporna, Nos. 13, 14
and 19, are on Ms Malintoppi’s list: and one of them you can see now on the screen. It seems to
me obvious that these maps do not support Indonesia’s case. But, of course, it is for you to decide.
36. I turn now to Ligitan. The island of Ligitan appears on 12 of the 24 maps listed by
Ms Malintoppi. So its strike rate is higher, it is 50 percent, though quite often it is not named. But
there is not a single map in the record which shows Ligitan, named or unnamed, south of any line
on the map. You can check that for yourselves by looking at the 24 maps. Not a single one shows
Ligitan to the south of the line. Not even the Explanatory Memorandum map, as I showed last
week67 and as Indonesia does not dispute. Of course the Explanatory Memorandum map did not
have a line extending as far east as Ligitan. But if that line had been extended, it would have

67CR 2002/32, pp. 29-30, paras. 26-27.
- 39 -
shown Ligitan to the north of the line. And the fact is, whenever a map shows a line extending so
far east, and shows Ligitan, it shows Ligitan to the north of the line, without exception.
37. So of Ms Malintoppi’s maps, the number of maps which directly support a claim to
Ligitan is zero; the number which can be read as supporting a claim to Sipadan is five, if you count
the early Stanford maps; two, if you do not. I remind you that there are 77 maps of the region in
the record. We could have multiplied editions of maps showing the line stopping at Sebatik, but
maps are not to be unnecessarily multiplied, as William of Occam, the medieval philosopher, might
have said if he’d been a lawyer.
38. Of course, Ms Malintoppi seeks to put the point in another way. She argues that maps
showing lines in the sea south of Sebatik are evidence of the existence of an allocation line along
the parallel of 4° 10’ N pursuant to the 1891 Convention, even if the lines on the maps stop short of
the islands (as most of them do), and even if they are not expressed to be allocation lines or
international boundaries (almost all of them are not so expressed)68. In other words, she does not
appear to argue that the maps are evidence of Indonesian sovereignty as such. Rather they are
evidence of a cartographic practice which supports Indonesia’s treaty claim.
39. [Tab 89 -- Century Atlas map] This argument calls for three comments. First, it
disqualifies altogether those among her 24 maps which do not show a line along the parallel of
4° 10’ N but show some other line. Let me give one example which Indonesia stressed on
Monday, the Century Atlas map of 1897, a commercial map which you can see on the screen once
more: it is No. 4 on Ms Malintoppi’s list69. It shows something called a “Boundary of Dutch
Possessions”, but at no stage does it follow the 4° 10’ N line, as you can see on the screen. Rather,
it swings somewhat north so as to attribute Karakelong Island and other islands to the Netherlands.
Moreover, if you look at it in detail, as now on the screen, you will see that the islands to the south
of the line (none of which are in the right place to be the islands in dispute and none of which are
named) are actually coloured red: they are British, they are not orange or Dutch. There seems to
be a discontinuity between the very large lines showing so-called boundaries and the specific
situation of the islands off Borneo, and that discontinuity is a feature of certain other maps in the

68CR 2002/34, pp. 16-17, paras. 20-21 (Ms Malintoppi).
69See Memorial of Indonesia Map Atlas, map 7 with enlargement.
- 40 -
record. But in any event, if the map record is inconsistent (which it is), this commercial map
achieves the singular distinction of being inconsistent with itself!
40. Thus the Century Atlas map does not actually support Ms Malintoppi’s main
argument ¾ because it manifestly does not show a 4° 10’ line, and because it pictures islands to
the south of the line as British. Nonetheless, Mr. Bundy, making a welcome return, sought to
reinforce its status by emphasizing that it had been exhibited by the United States in the Island of
Palmas arbitration70. Well, there were about 50 maps in that arbitration ¾ the only complete set of
maps appears to be in your library ¾, the Century Atlas map was one. Mr. Bundy did not bother to
tell us what Arbitrator Huber said about that map. The Arbitrator noted that several maps, in
particular the Century Atlas map, showed an island, Mata Island, which almost certainly did not
exist. He noted that Mata Island was not shown on the only large-scale map “directly based on
researches on the spot”, which was one of the British Admiralty charts. He concluded that “only
with the greatest caution use can be made of maps as indications of the existence of sovereignty
over Palmas”71. In other words, he dismissed the Century Atlas map, which showed the Island of
Palmas and specifically showed it to be American, not Dutch. The Century Atlas map was better
evidence of United States sovereignty over Palmas than any Dutch or Indonesian map in the record
of this case in respect of Sipadan and Ligitan, and yet it was dismissed, and of course the United
States lost the case. So much for the authority of the Century Atlas map.
41. The second comment on Ms Malintoppi’s argument is that, if she wishes to extend the
4° 10’ line east, beyond that shown on maps, she has to explain why it stops short of Karakelong
Island. The Century Atlas map line, on which she relies, goes well past it. On Friday I showed you
that the 4° 10’ line cuts through Karakelong Island72. We project a line along the 4° 10’ parallel,
giving land areas to the north to the British and to the south to the Dutch, then the British get the
northern half of Karakelong Island, just as they got the northern half of Sebatik. Ms Malintoppi on
Monday did not bother to say why the line should stop east of Ligitan and west of Karakelong
Island. More importantly, perhaps, neither she nor other counsel for Indonesia have managed to

70CR 2002/33, pp. 49-50, paras. 20-22 (Mr. Bundy).
71(1928) 2 UNRIAA at p. 853.
72CR 2002/32, p. 39, para. 61.
- 41 -
explain why, if the parties in 1891 thought they were drawing an allocation line, they never
discussed its length, its extent or its legal effect. [End tab 89]
42. And the third comment on Ms Malintoppi’s argument, is that subsequent mapping
practice could only be very, very secondary evidence of the interpretation of a treaty and, if so, the
practice would have to be consistent on both sides. Here it is completely inconsistent. In
particular, there is not a single Dutch or Indonesian map which shows an allocation line of the same
character or length as the Dutch internal map does. Ms Malintoppi made no comment on the list of
22 Dutch and Indonesian maps I gave you last Friday73. To summarize, as support for an argument
based on the interpretation of the 1891 Convention, the maps are feeble evidence indeed.
43. While I am on the Island of Palmas case, I should add that that particular dispute has
nothing to do with our case. It concerned an island which was covered by the 1898 Treaty of Paris,
not the Additional Convention of 1900, as Mr. Bundy appeared to imply74. That is not to say,
however, that the Award is not useful as an example of method. It is very useful ¾ in its distrust
of what I have called category 3 maps75, in its disdain for inchoate or merely theoretical titles76, and
in its robust support for possessory titles based on actual allegiance and contact with the indigenous
people of a disputed island77. In these three respects, it provides something of a model, and also
Mr. President, in respect of its brevity. In particular, I note Judge Huber’s statement that:
“If the Arbitrator is satisfied as to the existence of legally relevant facts which
contradict the statements of cartographers whose sources of information are not
known, he can attach no weight to the maps, however numerous and generally
appreciated they may be.”78
A fortiori he can attach no weight to the maps if there are hardly any of them that support the claim.
44. Now, of the 24 maps on Ms Malintoppi’s list, only two remain to be mentioned: these
are Nos. 15 and 22 on her list. One is Malaysian and one is British. I will not be like Mr. Pellet
and pretend that there is no evidence against my side, as it were: these two maps are problematic.

73CR 2002/32, p. 31, para. 31; Malaysian judges’ folders, tab 64.
74CR 2002/33, p. 49, para. 21 (Mr. Bundy), p. 50, para. 24 (Mr. Bundy).
75(1928) 2 UNRIAA at p. 852.
76Ibid., pp. 846, 869.
77Ibid., pp. 851, 858, 862-866.
78Ibid., p. 853.
- 42 -
Both have disclaimers. Both are contained in Malaysia’s Map Atlas, in its Memorial and are
discussed in the pleadings. Curiously, neither has of them has actually been discussed by Indonesia
in the hearings, although Ms Malintoppi quickly showed both of them to you on Monday79. For the
sake of completeness, let me deal with them.
45. [Tab 90 ¾ Semporna (1967)] The first is the map which you can now see on the screen,
and is tab 90 in your folders80. It is a Malaysian Ministry of National Mapping map of 1967,
entitled simply “Semporna”. It shows the 1930 Treaty line ¾ to the right of the map ¾ as a treaty
line between the Philippines and Indonesia, despite the fact that the Treaty was between Britain and
the United States. It shows Pulau Ligitan apparently above the dashed line entitled “Malaysia
(Sabah)/Republic of Indonesia”, which if that line represents the 4° 10’ N parallel is wrong: it
should be beneath the line. So there are a number of errors on the map. The map shows Sipadan as
below that line. Overall it is wrong and misleading. It may even have misled Indonesia, since it
was not long after the publication of that map in 1967 that Indonesia first made its claim to the
islands. Helen’s face is alleged to have started a war: it may be this map started a case. On the
other hand, Malaysia was not misled for long. As soon as Malaysia learned of the Indonesian
claim it rejected that claim and it has done so consistently since. This map has never been repeated
by Malaysia nor adopted cartographically by Indonesia. [End map]
46. Ms Malintoppi argued in effect that this map is an admission against interest on the part
of Malaysia, but there are three obvious answers to that. The first is that the map contains a
disclaimer and is therefore, quite simply, not an admission. If I make a statement and at the same
time say that my statement cannot be relied on, I have made no admission; if I tell you the time
that suggests my clock may be wrong, I have not told you the accurate time, you are not entitled to
rely on it. That is perfectly simple. Secondly, as the Court has made clear on several occasions,
even official maps are not admissions against interest; they are simply evidence to be taken into
account. The common law rules of admission against interest ¾ part of the common law of
evidence ¾ are not to be imported into the international law of territorial title, any more than you
allowed it to be imported into the law of maritime delimitation in respect of the Hoffman letter in

79CR 2002/34, p. 20, para. 34 (Ms Malintoppi).
80Memorial of Malaysia, Vol. 5, map 20.
- 43 -
the Gulf of Maine case. No doubt deliberate admissions by foreign ministers may be binding, but
they do not carry disclaimers; and, anyway, cartographers are not foreign ministers. Cartographers
are not immune from making mistakes, whatever immunities foreign ministers may have!
47. This map was produced by the central mapping authority only a few years after Sabah
joined Malaysia. The mistake has not been repeated.
48. [Tab 91: operational navigational chart (1978)] I turn to the second map, a British map
of 1978, which is tab 91 in your folders. It shows an allocation line proceeding east, then turning
south-east ¾ you can see it shown on the screen ¾ leaving Ligitan clearly to Malaysia and Sipidan
apparently to Indonesia. The map contains a disclaimer. It was produced after the critical date. It
was obviously not relied on at any stage by Indonesia, which by 1978 was fully aware of
Malaysia’s claim to both islands. Nor is it opposable to Malaysia, which had nothing to do with its
production. It is completely lacking in any legal or cartographic basis. It is completely isolated
among the 77 maps of the disputed area which are in this case. Moreover it does not reflect the
view or the legal position taken in this case by either Party. After five rounds of written pleadings
in this case, both parties agree that either the two islands both belong to Malaysia, or that the two
island belong to Indonesia. There is no middle position: either the 1891 Convention as interpreted
in light of the internal map and the subsequent practice of the parties contained an allocation line
along the 4° 10’ parallel, or it did not. No other map or document has ever suggested that such a
line, if it existed, could suddenly bend, or why it should do so at any particular point. Lacking any
articulated rationale and any foundation in the legal positions taken repeatedly and deliberately by
both Parties before the Court, this British map can, simply and safely, be ignored.
49. Mr. President, Members of the Court:, at the end of her speech on Monday,
Ms Malintoppi showed you a series of 15 maps which, she said, supported Indonesia’s claim. You
may have been struck, as you watched them, by the diversity of the maps: some showed lines
extending a few miles to the east of Sebatik, some further; some showed the islands, or at least one
of them, many showed neither; some showed islands in the wrong place, and so on. Overall they
were an extraordinary mixture, and only by a deliberate, I might say wilful, act of the imagination
could they all be represented to show the same thing.
- 44 -
50. You may consider the following sample of 15 different maps as being rather clearer and
more consistent, both with each other and with the historical and legal record. You will find these
maps successively under tab 92 of your folders.
51. [Tab 92: Succession of 15 maps] First, we have the Dutch map, “East Coast of Borneo:
Island of Tarakan up to Dutch-English Boundary” dated 1905, with the 4° 10’ N line stopping at
the east coast of Sebatik81
.
52. Then we have ¾ by now you will be familiar with it ¾ the map of British North Borneo
(a Stanfords map, incidentally: a category A map), annexed to the 1907 Exchange of Notes. It
shows the 4° 10’ N line stopping at the east coast of Sebatik82. It was published officially.
53. Then, the 1913 Dutch map showing the administrative structure of the Southern and
Eastern Borneo Residence. Sebatik, Nanukan, Tarakan and the small islands belonging thereto are
shown. But not Sipadan and Ligitan. The 4° 10’ N line stops at the east coast of Sebatik83
.
54. Then we have another Dutch map of the same year, showing the Southern and Eastern
Division of Borneo in 1913, with the 4° 10’ N line stopping at the east coast of Sebatik. This time
the two islands in dispute are shown and named, but there is no indication of their being Dutch84
.
55. Then we have the map accompanying the 1915 Boundary Agreement ¾ another
category A map ¾ with the 4° 10’ N line stopping at the east coast of Sebatik85
.
56. Now we have the portrayal of the 1915 boundary line in the 1916 Dutch Colonial
Gazette, showing of course exactly the same thing though in more polished and attractive form86
.
57. This map by the Dutch official, Kaltofen, is a hard-drawn ethnographic map of Borneo,
dated 191787. It has been suggested that the First World War prevented the Dutch from focusing on
what was going on, that they had a sort of four-year period of collective amnesia, and that they
failed to observe the administration of the peoples of British North Borneo. But this Dutch official

81Counter-Memorial of Malaysia, Vol. 2, map 2.
82Memorial of Malaysia, Vol. 5, map 6.
83Counter-Memorial of Malaysia, Vol. 1, insert 11.
84Memorial of Malaysia, Vol. 5, map 1.
85Memorial of Malaysia, Vol. 5, map 23.
86Reply of Malaysia, insert 9.
87Reply of Malaysia, insert 3.
- 45 -
certainly seems to have been rather observant. And he did not think that any line went out in the
sea east of Sebatik, or that any of the people of the east were Dutch.
58. Now a 1935 map of East Borneo, in which, as you can see, the northern areas of Dutch
East Borneo are actually projected above the margin of the map in order to get them to fit88
.
Whoever made this beautiful map evidently did not think there were tiny bits of Dutch East Borneo
off the map in an east-north-easterly direction.
59. And here we have the cartographer of the prestigious Atlas of the Tropical Netherlands
in 1938 who stopped the 4o
10’ line at the east coast of Sebatik, and then superimposed on the
Ligitan islands a town map of the southerly town of Balikpapan. It did not show the islands at all89
.
How careless of him!
60. And once again the 1941 map sheet North Borneo, which reflects the legal position at the
time with complete accuracy and honesty90. Sipadan Island — you notice the abbreviation “I” —
belongs to North Borneo. So does Ligitan Island — you have seen the words Ligitan Group
already. The 4o
10’ line stops at the east coast.
61. In 1952, turning from Dutch to British maps, what is now the Colony of North Borneo
produces this map. You will see that Sipadan — if we go back to the full map, please — is actually
shown below the map border. The island of Sipadan is located below the border and a specific
attempt is made to show it. You will see also that the boundary stops at the east coast of Sebatik.
The only reason for depicting Sipadan in that way must have been that it was considered to be part
of British North Borneo91
.
62. The next year the colony shows its administrative districts, in a schematic map with no
offshore islands. There is no line east of Sebatik. You can see that the administrative boundary of
the Semporna district is open92. That there was an administrative boundary in precisely this

88Counter-Memorial of Malaysia, Vol. 2, map 5.
89Counter-Memorial of Malaysia, Vol. 1, Insert 12.
90Counter-Memorial of Malaysia, Vol. 2, map 7.
91Memorial of Malaysia, Vol. 5, map 17.
92Memorial of Indonesia, Map Atlas, map 10.
- 46 -
location is also shown on the map of the Semporna police district of 1958, by S. M. Ross, which
you have already been shown93
.
63. Contrast Indonesia’s continental shelf map of 1960 — a category B map — disclaiming
any interest in the two islands94
.
64. And now the British Admiralty chart “Tawau to Tarakan” of 1960: no line east of
Sebatik95
.
65. And finally the Malaysian map, “Bandar Seri Begawan” of 1976, which seems entirely
clear in its portrayal of Malaysia’s sovereignty over the Ligitan Group96
.
Conclusion
66. Mr. President, Members of the Court, summarizing variable and inconsistent maps
falling within category 3 is not easy. That is what Ms Malintoppi had to do with her 15 maps, and I
am sure she will agree that it was a thankless task. By contrast the maps I have just shown you are
come in all three categories: Category A, treaty maps, category B, maps put forward as expressing
the international claim of a State, as well as some category C maps. They include all of those
three; they are completely consistent. I could have shown others, but I will not try your patience
more.
67. Mr. President, Members of the Court, thank you for your careful attention throughout.
May I ask you, Mr. President, to call on Sir Elihu Lauterpacht who will address Malaysia’s
effectivités.
The PRESIDENT: Thank you, Professor Crawford. J’appelle maintenant à la barre
sir Elihu Lauterpacht.

93Memorial of Malaysia, Vol. 5, map 18.
94Memorial of Malaysia, Vol. 5, map 7.
95Memorial of Malaysia, Vol. 5, map 11.
96Counter-Memorial of Malaysia, Vol. 2, map 10.
- 47 -
Sir Elihu LAUTERPACHT: Mr. President and Members of the Court.
EFFECTIVITÉS
1. My task is to reply on the question of effectivités as dealt with by counsel for Indonesia in
their second-round speeches.
2. There are some preliminary points to be made.
3. The first relates to the critical date. The position of Indonesia appears to have undergone
some significant change. In his first speech, Sir Arthur Watts was absolutely clear on this subject:
“the dispute now before the Court crystallized in 1969. For the purpose of admitting and assessing
evidence of . . . State sovereignty, any conduct occurring after that date is to be disregarded”97
.
This limitation was imposed by Indonesia for the purpose principally of excluding evidence of the
development since 1969 of the tourist facilities on Sipadan and especially the continuous presence
there of scuba-diving facilities. All these activities have evidently been carried on with the
authority, and under the sovereign control of Malaysia. Indonesia has not manifested its presence
or supported its claim to status in any way. And so it is understandable that Indonesia has been
concerned to exclude these post-1969 activities from consideration by the Court.
4. Professor Pellet, on the other hand, was not slow to introduce into his speech references to
facts occurring after 1969. Thus he spoke of the Indonesian Note Verbale of 7 May 1988 as “the
first of the long series of Notes protesting against the establishment of tourist equipment at
Sipadan”. He adhered also to Indonesia’s reliance upon the ex post facto agreement in May 1988
to the construction of the light towers on Sipadan and Ligitan, a mere 26 years of after they had
been built and had begun operations98
.
5. Now, Malaysia is not troubled by this change of position by Indonesia. Malaysia merely
points to a following fact: so starved is Indonesia of examples of its own effectivités in respect of
the islands prior to 1969 that it has been forced to have recourse to diplomatic assertions
subsequent to that date, not as part of the diplomatic history of the dispute but as denial of the

97CR 2002/27, p. 23, para. 28.
98CR 2002/34, p. 24, para. 11 (Mr. Pellet): “Il tient à ce que l’Indonésie a formellement donné son accord à
l’entretien des deux lanternes. Il résulte en effet d’une note verbale indonésienne du 7 mai 1988.”
- 48 -
relevance of the continuity of Malaysian conduct during the past three decades. Anyway, for its
part, Malaysia still adheres to its position that its title was fully established before 1969.
6. My second preliminary observation relates to the character of conduct that can properly be
taken into account as effectivités. Professor Pellet took exception to one phrase in the definition of
effectivités that I offered. I had spoken of effectivités as consisting of “conduct attributable to a
State which evidences its authority in, or in relation to, the disputed territory”99. In using the
expression “in relation to” the disputed territory I was doing no more than echoing the words used
by this Court in the Minquiers and Ecrehos case when the Court said: “The Court further finds that
the British authorities during the greater part of the nineteenth century and in the twentieth century
have exercised State functions in respect of the group [that is the Ecrehos group].”100 “In respect
of,” not on. That was the concept and the expression that I reflected in the use of the phrase “in
relation to”. The conduct does not have to occur physically on the territory in question, but it must
evidently relate to it ¾ as do the principal effectivités that I shall presently recall.
7. Because some of these principal pertinent effectivités took the form of legislation, my
learned friend, Professor Pellet, was understandably anxious to diminish their significance. So he
introduced a reference to the decision of the Permanent Court of International Justice in the Lotus
case101 in support of his suggestion, echoing the words of the Lotus, that “nothing in the world
prohibited the BNBC or the British administration from extending its laws and jurisdiction to
persons, things or acts outside its territory” [Translation by Malaysia]102. Professor Pellet’s
objective was clear. It was to suggest that the fact that a State might legislatively seek to regulate
certain matters did not mean that the area within which those matters occurred lay within its
territory. His argument appears to have been: because a State may legislate extraterritorially, the
fact that the BNBC legislated for Sipadan did not mean that Sipadan was part of the territory of the
BNBC. But the example that he gave quite undermined the argument that he was seeking to
promote:

99CR 2002/34, p. 22, para. 2 (Mr. Pellet).
100I.C.J. Reports 1953, p. 67; emphasis added.
101P.C.I.J., Series A, No. 10, p. 19.
102CR 2002/34, p. 26, para. 19.
- 49 -
“All countries do it [that is, legislate to regulate matters outside their territory].
France does not permit its nationals to bring back in their baggage rare or protected
specimens captured in Amazonian forests or in a reserve in Sierra Leone or on the
high plateau of Madagascar ¾ and without doubt likewise turtle eggs from
Sipadan . . . it does not follow that these parts of Brazil, of Sierra Leone or of
Madagascar ¾ not even of Sipadan ¾ are French or are claimed by the Republic.”
[Translation by Malaysia.]
8. What Professor Pellet appears to have overlooked is that the kind of legislation he is
describing is quite different from the legislative acts of the BNBC that are pertinent here. For one
thing, the legislation here in question was clearly intended to be territorial in its operation ¾ to
apply within the State of Borneo ¾ the legislation actually said so, as we shall see; for another
thing, the French legislation about which Professor Pellet theorizes is manifestly not extraterritorial
in its operation. Note, please, the manner in which the legislation was described. It prohibits
French nationals from bringing the protected specimens back in their baggage: that is the way that
Professor Pellet described it. Thus the connecting link between the legislation and the prohibited
conduct is, first, via French nationals, a nationality (as he put it, “ses nationaux”) and second,
through the fact that the prohibited conduct takes place in French territory. The prohibited conduct
is not the collection of the protected species aboard, that is a matter for the law of the country
concerned. The conduct prohibited by French law is bringing it back into France in the collector’s
baggage. It is quite clear from the manner in which Professor Pellet described the French
legislation that it did not take effect upon French nationals in Brazil, Sierra Leone or Madagascar,
but only when they returned to France103. This citation of the “Lotus” principle is quite out of
place in the present context. The question of extraterritorial legislation has nothing to do with the
case now before this Court.
9. Turning to another aspect of Professor Pellet’s argument. I do not dispute his observation
that an essential element in effectivités is “the intention and the wish to act in the capacity of
sovereign”. I did not omit reference to this element out of any desire to conceal it, but only
because my concern in that part of my argument was to speak of actual conduct. Of course, the
intention to act à titre de souverain is an essential ingredient of effectivités, but a statement of such
intention does not have to appear in every act of the State constituting effectivités. It is enough that
the act in question is clearly an exercise of sovereign authority related to the territory in question

103CR 2002/34, p. 26, para. 19.
- 50 -
and carried out in pursuance of that sovereign authority. Legislation which refers to the territory in
question, whether specifically or by implication, clearly falls into that category. To this I shall
return in a moment.
10. In the same vein, counsel for Indonesia has tried to drive a wedge in respect of conduct
on the islands between, on the one hand, actual presence and behaviour of private persons, whether
the Bajau turtle egg collectors or fishermen, and, on the other hand, the sovereign authority and
conduct of the State, whether the Sultan of Sulu, the BNBC, Britain or Malaysia. To this end
Indonesia has, for example, asserted that the BNBC should be regarded as a private company
engaged in commercial activity, whose conduct and administration could therefore not be regarded
as of a public or sovereign nature. The falsity of this assertion is readily shown by recalling the
terms of the Agreement of 1946 between the Company and the British Crown for the transfer to the
Crown of what were there described as the sovereign rights of the Company over and to the
territory of the State of North Borneo104. From 1881 to 1946, the Company was in law and in fact
the Government of North Borneo, exercising therein normal powers of government. It was a rather
unusual position for a company. But it was the position. It was not a unique position, for similar
powers were exercised by other great overseas trading companies, in various parts of the world
from the seventeenth century onwards.
11. What is more, when one speaks of “effectivités” in relation to the islands one is speaking
of effective control and authority by this governmental entity. We are not speaking of the conduct
of the Bajau Laut as such, the people who were subject to the authority of the Company. Indonesia
has repeatedly referred to the Kasikili case in an attempt to liken the position of the Bajau Laut to
that of the Masubia people who made use of Kasikili Island for agricultural purposes and whose
conduct this Court found not to be à titre de souverain. But there is a major and significant
difference between the two situations. In the Kasikili case there was no supportive legislation of
the Mandatory Authority expressly referring to Kasikili as if it were part of South West Africa.
Here, as I shall presently respectfully remind the Court, the position has been quite different.

104Memorial of Malaysia, Vol. 2, Ann. 30.
- 51 -
12. There is one other brief preliminary observation to be made, before I turn to the
effectivités themselves. This relates to the unity of the island group of which Ligitan and Sipadan
form a part. Evidently, counsel for Indonesia are troubled by this aspect of the case. They realize,
no doubt, that if Ligitan and Sipadan are closely linked to their neighbouring islands which are
unquestionably Malaysian, this strengthens the inference that Ligitan and Sipadan share the same
national character as those other islands. Proximity and appurtenance, when associated with
conduct on the ground, are major factors in identifying or establishing national sovereignty.
13. It may be helpful to mention here the passage in the Judgment of the Chamber of this
Court in the El Salvador/Honduras case in 1992105. There, mention is made of the characteristics
of Meanguerita as a “dependency” of Meanguera. The Chamber also referred to the Minquiers and
Ecrehos case which acknowledged the position of the Minquiers group as a dependency of the
Channel Islands106
.
14. Sir Arthur Watts argued at some length in his reply speech that there is no geological or
geographical unity between Ligitan, Sipadan and their neighbours. What goes on under the waters
is, I suggest, irrelevant for this case: What matters is what goes on above the surface. It is to be
noted that Sir Arthur’s contention that the islands do not form a geological or geographical unity
did not extend in the case of Sipadan to a denial of their social or economic unity with the others in
the group. As to Ligitan, he said only that the visits of fishermen from the neighbouring islands
“do not make separate territories a ‘unity’”107. He even observed in passing that “the Court has
been supplied with no detailed statistical evidence as to their social or economic significance”.
Now, with all respect, it hardly lies in the mouth of Indonesia to regret a lack of “detailed statistical
evidence” when its own pleadings are replete with unsubstantiated assertions of fishing and of the
collection of turtle eggs by unnamed persons from Indonesia at unspecified times. It can
reasonably be submitted on behalf of Malaysia that the video shown in the course of
Ambassador Ariffin’s speech provides cogent testimony of the presence and activity on Ligitan of
the local Bajau fishermen. However, they did not in that film look like people who would be

105I.C.J. Reports 1992, p. 570.
106I.C.J. Reports 1953, p. 71.
107CR 2002/23, p. 16, para. 23.
- 52 -
zealously compiling statistics of their daily catch to satisfy Indonesia’s demands for more specific
evidence of their presence. It is an inescapable fact that the islands in question are linked
economically and socially to those islands over which Malaysian title is not disputed. Indonesia
has not denied that the right to collect turtle eggs was vested in the people of Danawan and that the
economic interest in the value of those eggs is still vested in them. Moreover, if the
accommodation available in Sipadan itself for the visiting tourist is deemed to be too simple, there
is a fine and picturesque hotel at Mabul, indisputably Malaysian, which survives largely by
providing accommodation to visitors to Sipadan.
15. In contrast with this, Indonesia neither claims nor provides any evidence of any physical
presence of its own on the islands. Such evidence as it has produced of conduct “in relation to” the
islands, I shall come back to later.
16. With your permission, Mr. President and Members of the Court, I shall now focus more
closely on four of the specific effectivités adduced by Malaysia in support of its position. The
criterion for my selection of these four items is that they are undoubted acts of governmental
authority by Malaysia that specifically refer to Ligitan and Sipadan and have a continuing
operation. I am, I must say, too old-fashioned to make liberal use of excerpts on the screen behind
me. I venture, therefore, generally in this connection, instead, respectfully to commend to your
special perusal Volume 4 of the Malaysian Memorial. This contains the documentary evidence of
BNBC, British and Malaysian administration of the islands. It is very difficult, indeed impossible,
as one turns the 111 pages of this volume, to escape the impact of the image provided by these
documents of Malaysian presence in, and with respect to, the islands from 1878 to the present day.
After that, turn, if you will, to the Indonesian pleadings. Where is there anything comparable? The
answer, as I shall presently elaborate, is: nowhere. The Court will no doubt bear this in mind when
recalling Professor Pellet’s truly remarkable assertion on Monday that while Indonesia can invoke
some effectivités, Malaysia can invoke none
108! The manifest extravagance of such a contention
can only cast doubt upon the credibility of all else that comes from that same source.

108CR 2002/34, p. 21, para. 1.
- 53 -
17. Let us look first at Proclamation XXX of 1914, made by the Governor of the State of
North Borneo109. It is called “The Monopolies Proclamation”. It authorizes the grant by licence of
exclusive rights for any purpose. Admittedly, the Ordinance does not on its face state that it
applies to Sipadan or Ligitan. It does, however, refer to monopolies “in the State” ¾ that is, the
State of North Borneo. Its territorial application ¾ to Sipadan and Ligitan ¾ is confirmed beyond
doubt when, in 1916, the Acting Resident of the East Coast of British North Borneo sought the
Governor’s approval for a grant of the monopoly of collecting turtle eggs from Sipadan Island.
The Acting Resident expressly referred to Ordinance XXX, enclosing in typed form a licence under
Schedule II of the Ordinance. In fact, the Governor did not authorize the issue of the licence under
the Ordinance because the right in question was, he considered, one “under customary native tenure
and they have been allowed to exercise it for many years”. Note, allowed to exercise it, words
which clearly imply that the power existed also not to allow it. So, no licence was required under
the Monopolies Ordinance. The Acting Resident was directed to issue a document, to be registered
in the Magistrate’s Office, in which the Government acknowledges the claims to the sole right to
collect turtle eggs on Sipadan. At the bottom of the Governor’s letter is an endorsement: “The
necessary document is being issued.”110 The next Annex111 contains a copy of the document, called
a “Surat”. Now, I make the point again: this is not just an isolated act that has to be treated as an
effectivité of 1914. It is an event that is part of the continuing operation of the act, so that it extends
over time. The act is merely the starting point of that particular effectivité.
18. We come then to the Turtle Preservation Ordinance of 1917112. This is an important
document because it deals with the principal economic activity in Sipadan. It thus has the same
kind of local significance that a petroleum law would have in an oil-producing country. This
Ordinance expressly states, in Section 2, that no person shall without a licence take turtles or
collect turtle eggs “within the State or the territorial waters thereof”. The specific link with
Sipadan comes in Section 3. This provides that areas specified in Schedule C shall be deemed to

109Memorial of Malaysia, Vol. 4, Ann. 93.
110Memorial of Malaysia, Vol. 4, Ann. 95, p. 35.
111No. 98.
112Memorial of Malaysia, Vol. 4, Ann. 97.
- 54 -
be “native reserves” and the Ordinance is not to apply to the collection of turtle eggs by natives
therein. There then follows a proviso: “provided that natives collecting turtle eggs in such areas
shall be subject to any rules declared hereunder for the protection of the industry”. Schedule C
names three native reserves. One of them is Sipadan Island.
19. Malaysia has previously had occasion to explain that the identification of a native reserve
does not evidence the exclusion of the reserve from the Borneo territory. Indeed, it is clear from
the proviso that I have just read, regarding the applicability of “any rules declared hereunder”, that
it was foreseen that Borneo legislation could apply to the native reserves, including Sipadan.
20. Annex 102 in the same volume contains a licence granted in 1954 under the same
Ordinance to the Cocos Islander Headman of Balung Estate, a company in Tawau, to take turtles
“within the following limits; that is to say Cowie Harbour and adjacent coastal waters north of the
territorial boundary to a line drawn due east from Tanjong Nagos”. There then follows a statement
of particular relevance here: “this area includes the islands of Sipadan, Ligitan, Kapalai, Mabul,
Dinawan and Si Amil”. So we have here three indications of importance: the first is that the
Ordinance applies to both Sipadan and Ligitan; the second is that they were regarded as north of
the territorial boundary; and the third is that they form part of a group of islands, the names of
which I have just read. This licence is, moreover, a document which bears the heading “Colony of
North Borneo”, as well as the subheading “Turtle Preservation Ordinance, 1917” and is signed by
the District Officer, Tawau. The fact that the Balung Estate was subject to the authority of the
District Officer at Tawau is further evidenced by Annex 103 in the same volume, which is a letter
from the District Officer at Lahad Datu conveying a complaint that the Cocos islanders were
catching turtles in the vicinity of Sipadan. The follow-up to this can be seen in Annex 104.
21. I turn next to another clear illustration of legislative activity applicable to Sipadan,
namely, the establishment of the Megapode Preserves. This was done pursuant to the North
Borneo Land Ordinance of 1930. In 1933 a Notice made under Section 28 of the Ordinance was
published in the Official Gazette of North Borneo113. “The islands in Lahad Datu District described in
the schedule hereto are reserved for the purposes of bird sanctuaries.” Sipadan Island and one

113Memorial of Malaysia, Vol. 4, Ann. 101.
- 55 -
other are then described. Also the acreage of Sipadan is specifically mentioned: 7.68 acres. Now
the establishment of so precise a figure must surely be an indication that the island had been
surveyed. Therefore, it must have been visited by a surveyor. Who could he have been, other than
a North Borneo government official, for no one else in the area — certainly not the Bajau Laut —
would have had the necessary surveying skills or a reason to carry out such a survey? So there we
have another item of effectivités on the ground.
22. Now a word about the light towers. There is no need to enter into a semantic dispute
about the correct description of structures that are undoubtedly in place and perform a nightly
function of helping passing mariners. Lighthouse, light tower, lantern, meccano structure: it
matters not. What does matter is that lights were constructed by Malaysia on both Sipadan and
Ligitan and have been maintained continuously by Malaysia. Mention was made of the Sipadan
light in the Colony of North Borneo Annual Report for 1960114. The Sipadan light was the subject
of an official public and widely available notice to mariners in 1962. It was described as being
“exhibited on a steel lattice tower 72 feet high painted white”. A similar notice in 1963 announced
the establishment of the Ligitan light115
.
23. Professor Pellet mocked these lights saying “after their construction they were hardly the
object of attention on the part of an independent Malaysia”. And for his information he relied on
one of the several Indonesia’s litigation-generated affidavits all sworn in 1999. The particular
affidavit was by Sergeant Major Ilyas. He surmised that the faded paint of the “lighthouse” —
Indonesia’s word, not mine! — was “due to lack of maintenance”. But a moment’s thought might
have led Sergeant Major Ilyas to have realized that it is not paint that demonstrates the maintenance
of a lighthouse, but fuel. The lights were built at a period before the emergence of solar powered
batteries. Who did the Sergeant Major think regularly replenished the source of power for the
lights? Certainly, it was not the Indonesians, otherwise they would no doubt have told us. The
answer is in a letter dated 2 August 1973 from Mr. Walls of something called Pengarah
Laut ¾which is the Director of Marine ¾, to the Director of Land and Surveys at Kota Kinabalu:
“These are unwatched Light Towers . . . serviced at six monthly intervals — April/October

114Memorial of Malaysia, Vol. 4, Ann. 111.
115Memorial of Malaysia, Vol. 4, Ann. 113, p. 76.
- 56 -
yearly — and in continuous operation for coastal navigation.”116 Unwatched, means unmanned,
not unmonitored. The lights continue to work ¾ as we saw in the video last Thursday. Is this not
evidence not merely of official Malaysian activity in relation to the islands but also of official
Malaysian activity on the islands? Activity regularly carried out?
24. Finally, on the subject of evidence of Malaysian administration, a very brief word is
called for about a much earlier episode, the evidence derived from the visit of the USS Quiros
in 1903. I mention here Lt. Boughter’s report, not in relation to the question of the chain of title ¾
this matter has been dealt with by Professor Crawford. Rather, Lt. Boughter’s report regarding the
administration of the islands by the BNBC is pertinent as evidence of the fact of British
administration. It is an objective acknowledgement of the factual situation at that time in 1903,
coming not from either party but from a third party with an interest in accurate observation. As
such, its value must be recognized.
25. Enough has been said, I suggest, to meet the principal points of criticism by Indonesia of
Malaysia’s effectivités. If I do not go over all the other aspects of that activity, it is only out of
respect for your admonition, Mr. President, to be restrained in this second round. But I am bound
to affirm that Malaysia adheres to all that it has said on effectivités in its written pleadings and in
the first round of these hearings.
26. I come, lastly, to contrast with the evidence of Malaysian activities the paltry evidence of
Indonesian activity. I shall be brief because there is now so little left still to be said about so little.
I have no intention of reminding the Court in any detail of the greatness that Indonesia has thrust
upon the Lynx and its seaplane of sometimes unpredictable performance. The paucity of
Indonesian evidence speaks for itself. But one feature of Netherlands and Indonesian activity (or
inactivity) may properly be recalled in the form of two brief citations from the Judgment of the
Chamber of this Court in the El Salvador/Honduras case. Both relate to the importance of protest
and the significance of silence in relation to effectivités. The quotations appear in the part of the
Judgment dealing with title to the island of Meanguera which was in the possession of El Salvador
but to which Honduras laid claim.

116Memorial of Malaysia, Vol. 4, Ann. 115.
- 57 -
27. The first quotation is this:
“Throughout the whole period covered by the documentation produced by
El Salvador concerning Meanguera, there is no record of any protest made by
Honduras to El Salvador, with the exception of one recent event, to which reference is
made below.”117
The second quotation relates to the recent event that the Chamber had in mind ¾ a protest made by
Honduras on 23 January 1991:
“The Chamber considers that this protest of Honduras, coming after a long
history of acts of sovereignty by El Salvador in Meanguera, was made too late to
affect the presumption of acquiescence on the part of Honduras. The conduct of
Honduras vis-à-vis earlier effectivités reveals an admission, recognition, acquiescence
or other form of tacit consent to the situation. Furthermore, Honduras has laid before
the Chamber a bulky and impressive list of material relied on to show Honduran
effectivités relating to the whole of the area in litigation, but fails in that material to
advance any proof of its presence on the island of Meanguera.”118
28. Is that not an almost exact description of the situation here? Indonesia has produced a lot
of paper ¾ see, for example, Volume 4 of its Counter-Memorial. But it has not produced one
protest during the important, pre-critical date period, from 1891 to 1969, and not one proof of its
presence on the islands. Is that not, to use the words of the Chamber, “an admission, recognition,
acquiescence or other form of tacit consent to the situation”?
29. So, Mr. President and Members of the Court, I come to my last question ¾ a mercifully
short one. The question is simply this: need I say anymore? I provide you with an immediate
answer. I shall conclude my argument forthwith.
But before I resume my seat, there is one point of a personal nature that requires to be made.
Not personal to me, but to my eminent friend, Professor Jean-Pierre Cot. He has been elected a
judge of the International Tribunal on the Law of the Sea and will soon take his place there. This
means that he will no longer be able to appear in this Court. His departure will be a grave loss to
international advocacy. He is too modest to have brought this event to your notice, but I venture to
do so and to express our collective congratulations and good wishes to him on his elevation to the
judicial ranks.

117I.C.J. Reports 1992, p. 574, para. 361.
118I.C.J. Reports 1992, p. 577, para. 364.
- 58 -
May I ask you now, Mr. President, notwithstanding the fact that we are so close to one
o’clock, kindly to call upon the distinguished Agent of Malaysia, Tan Sri Kadir, to make his final
and relatively brief submission. Thank you very much, Mr. President.
Le PRESIDENT : Je vous remercie, sir Elihu. Je donne maintenant la parole à
S. Exc. M. l’agent de la Malaisie.
Mr. MOHAMAD:
1. Mr. President and distinguished Members of the Court, the delegation of Malaysia values
greatly the opportunity it has had in these two weeks to explain to you Malaysia’s stand that
sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia.
2. Malaysia is looking forward to the Court’s decision on this case, which will settle the
dispute over the two islands, because it will be a peaceful and friendly settlement of the question.
3. It will be a matter of pride and satisfaction for us that in one episode in the diplomatic
history of relations between Malaysia and Indonesia, the International Court of Justice has an
important part to play. We hope that the Court’s role in this matter will contribute to the
maintenance of peace and stability in south-east Asia, both in the particular decision you give and
in its example for the future settlement of boundary and territorial disputes.
4. Mr. President, Members of the Court, let me summarize the issues Malaysia has sought to
show. First, that it has, and for many years has had, a good title over Ligitan and Sipadan while
Indonesia has none. Second, and at the same time, that Ligitan and Sipadan have been in the
possession and subject to the actual administration of Malaysia and its predecessors in title, while it
was impossible for Indonesia to assert the same. Third, that the claim that the 1891 Convention
created an allocation line east of Sebatik, and thereby silently gave these two small islands to the
Netherlands, has no foundation in law or fact. In its written pleadings and during the course of
these hearings, Malaysia has demonstrated each of these three things.
5. Indonesia has maintained primarily that it acquired a clear treaty title from the 1891
Boundary Convention, that this was its basis of claim. On this point, Malaysia has conclusively
shown that the Convention had no relevance to the islands of Ligitan and Sipadan. It has shown
that the language of the Convention did not have the meaning attributed to it by Indonesia; that the
- 59 -
internal Dutch map does not have the effect Indonesia asserts, and that anyway the 1891
Convention could not have produced any effect because the two islands certainly did not belong to
British North Borneo at that time.
6. Then, on the final day of its pleadings we heard our opponents state in the alternative and
as a subsidiary argument that, if the Court were to find the 1891 Boundary Convention incapable of
conferring sovereignty over Ligitan and Sipadan to the Netherlands, their sovereignty over the two
islands could equally be established as successor in title from the Sultan of Bulungan119. But, as
you have seen, there is no evidence whatever of Bulungan having any authority over the Ligitan
Group. Malaysia produced expert evidence on the point which Indonesia did not reply to and
which it has not been able to refute. The Dutch Government before 1891 was quite clear as to the
extent of its claims, which did not extend to the islands. The various contracts between the
Netherlands and the Sultan identified specific islands as belonging to Bulungan. These never
included Ligitan and Sipadan which were, respectively, some 42 and 55 nautical miles away from
the land-based Sultanate of Bulungan. The same was true of the supplementary contract of 1891,
which replaced the 1878 definition of the boundaries of Bulungan and the islands belonging to it.
7. Although the different Malaysian arguments all point the same way, I do particularly wish
to emphasize the element of long and uninterrupted possession, going back to the years after the
grant of 1878. Indonesia’s Agent emphasized that, no doubt unintentionally, when he said in his
final remarks on Monday that Indonesia, if it won this case, would respect any rights over the
islands duly acquired under Indonesian law120. But that is precisely the point: no rights have ever
been acquired over the islands under Indonesian law, which has never mentioned the islands and
has never been applied there. The rights which people have over the islands have been acquired
under Malaysian law, not Indonesian law. The Court has always respected the principles of
stability and continuity in territorial administration, and I respectfully call on you now to do so. If
an Asian State can come along, 80 years after a boundary treaty was concluded, and claim islands
in the peaceful possession of another Asian State on the basis of an argument about the

119CR 2002/34, p. 37, para. 3 (Professor Pellet).
120CR 2002/34, p. 40, para. 5 (Mr. Wirajuda).
- 60 -
interpretation of the Treaty which has never before been made, then I fear that this case will be a
source of serious instability, with implications reaching far beyond these two islands.
8. Accordingly, since Malaysia has administered Ligitan and Sipadan and Indonesia has not,
the position in 1969, and now, is that Malaysia has sovereignty over the islands and Indonesia has
not. The events between Great Britain and the United States after 1903 show clearly what the
status quo was on the islands, and they show the Dutch had no interest in them. They further show
how the United States eventually relinquished its earlier claim to the islands by reason of the
1907 Exchange of Notes and the 1930 Convention.
9. Mr. President, that leaves me with one final point to deal with. At the end of its pleadings,
Indonesia alluded again to the so-called understanding of 1969. In order to refrain from repeating
the explanation I have already given in my opening remarks last week, let me just say that the text
of the 1969 Exchange of Letters made no reference to the disputed islands, that it is not a
“standstill” agreement and that it has no relevance to the present case121. Indonesia made reference
to an affidavit of Professor Mochtar Kusumaatmadja made in 1999, some 30 years after the 1969
negotiations between Indonesia and Malaysia and well after the present case came before the Court.
May I just point out that whatever Professor Mochtar said in the affidavit was entirely his own
recollections only. There is no record which can confirm what he said, and his recollections do not
coincide with those on the Malaysian side. Of course the two States were obliged to settle their
disputes peacefully, but there was no agreement that Malaysia would not maintain and extend its
authority over the islands, and Indonesia’s claims in that regard are entirely without foundation.
10. Mr. President, distinguished Members of the Court, on behalf of the Government of
Malaysia, counsel for Malaysia, the Co-Agent and myself as Agent, I would like to thank the Court
for the patience with which it has heard Malaysia’s presentation of its case. I would also like to
thank the members of the Indonesian delegation for the courtesy they have shown to us during the
course of the pleadings. We also thank the staff of the Registry and the Court interpreters.
11. Mr. President, may I respectfully request the Court to confirm Malaysia’s sovereignty
over Ligitan and Sipadan, and second, to reject Indonesia’s claim based upon its interpretation of

121CR 2002/30, p. 17, paras. 15-19 (Mr. Mohamad).
- 61 -
the 1891 Boundary Convention between the Dutch and the British, or its subsidiary and alternative
claim as successor-in-title from the Sultan of Bulungan. On that basis I reaffirm Malaysia’s
submissions as set out in its written pleadings, as follows:
The Government of Malaysia respectfully requests the Court to adjudge and declare that
sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia.
Mr. President, distinguished Members of the Court, I thank you.
Le PRESIDENT : Je vous remercie, Monsieur l’agent de la Malaisie. La Cour prend acte
des conclusions finales dont vous avez donné lecture au nom de la Malaisie, comme elle l’a fait le
10 juin pour les conclusions finales présentées par M. l’agent de la République d’Indonésie.
Ceci nous amène à la fin de cette semaine et demie d’audiences.
Je tiens à adresser mes remerciements, pour leurs interventions, aux agents, conseils et
avocats des deux Parties pour la qualité de leurs plaidoiries et pour la courtoisie qui a régné
pendant ces audiences.
Conformément à la pratique, je prierai les agents de rester à la disposition de la Cour pour
tous renseignements complémentaires dont elle pourrait avoir besoin. Sous cette réserve, je déclare
close la procédure orale en l’affaire relative à la Souveraineté sur Pulau Ligitan et Pulau Sipadan
(Indonésie/Malaisie).
La Cour va maintenant se retirer pour délibérer. Les agents des Parties seront avisés en
temps utile de la date à laquelle la Cour rendra son arrêt.
La Cour n’est saisie d’aucune autre question aujourd’hui et ceci met donc un terme à
l’audience de ce jour. Je rappellerai simplement que des audiences se tiendront demain, à
10 heures, en l’affaire des Activités armées sur le territoire du Congo (nouvelle requête : 2002)
(République démocratique du Congo c. Rwanda), aux fins d’entendre les observations des Parties
au sujet de la demande en indication de mesures conservatoires présentée par la République
démocratique du Congo le 28 mai dernier.
L’audience est levée à 13 h 20.
___________