INTERNATIONALCOURTOF JUSTICE
CASECONCERNING SOVEREIGNTYOVERPULAULIGITANAND PULAUSIPADAN
(INDONESIA/MALAYSIA)
MEMORIAL
SUBMITTEDBY
THE GOVERNMENTOF THE REPUBLICOF INDONESIA
Volume 1
2 NOVEMBER1999 .1.
TABLE OFCONTENTS
Paae
CHAPTER1 INTRODUCTION .........................................................
..
Section 1. TheBackgroundto the Case ............................................
Section2 . Overview of Indonesia's Case and Structure of the
Memorial ..................................................2......
..............
CHAPTERII GEOGRAPHICALDESCRIPTIONOFTHE AREA .............
Section 1.
Introduction .......................................................
......
Section2 . The GeneralSetting ........................................................
Section 3. PulauLigitan ...............................................6..........
.............
Section 4. PulauSipadan ..........................................................
...
CHAPTERIII A SUMMARYOF STATE RELATIONS INTHE AREA
(1824-1969).....................................................
...................
Section 1. Introduction ..........................................................
......
Section 2. Relations between the Local Sultanates and Extra-
RegionalPowers ............................................9...........................
A . The SultanatesontheIslandof Borneo ...........................
B . Settlementsbythe WesternPowersin Borneo ...............
Section 3. An Overviewof the Originsof the British North Borneo
Company ................................................1.........
.......
A . The Establishment of the Company and Its
Application fora RoyalCharter ...................................
B . Dutch and Spanish Reactions and British
Reassurances ..........................................................
C. The Administrative Divisions of the British North
BomeoCompany ......................................-..............
Section4 . Dutch-British Relations from 1882 to the Signature of
the 1891Convention ..................................................... Section5 . Further Relations Between the Relevant Powers
Concerning Their Possessions in and around Borneo
from 1891to 1930 .....................................................
A. Anglo-American Discussions Regarding Certain
Islandsoffthe Coast ofNorth Borneo .....................8.......2
B. DutchActivitiesintheArea:TheHNLMSLynx ............
Section 6. EventsLeadingup to andFollowingtheIndependenceof
IndonesiaandMalaysia ...................................-3..........
A. Indonesia ...............................................2......
......
B. Malaysia .......................................................
.....
C. Indonesia-Malaysia 1969 Discussions ..........................
CHAPTERIV THE PRE-1891 SITUATION ................................3...........
Section1 . Introduction...............................................7.......
....
Section2. The LegalNotion of Territoryas HistoricallyPerceived
by Local Rulers and ItsConsequencesas tothe Cessions
of Territorie............................................-.8.........
..
A . The Legal Notion of Territory in the Region before
the Colonial Period......................................9............
B . The UncertainExtent of the Cessions by the Local
Rulersto theColonial Powers ...........................4........
Section3 . Colonial AcquisitionbyTheNetherlands ...................5......
A . RelationsbetweenTheNetherlands and LocalRulers ....52
B . The Acquisitionof the Territory of Boeloengan by
TheNetherlandsandIts GeographicalExtent ............55......
CHAPTERV THE CONVENTION OF 20 JUNE 1891 BETWEEN
GREAT BRITAINANDTHENETHERLANDS ..............1...
Section1 . The Backgroundto. and Negotiation andTerms of. the
Conventionof 20June 1891 ................................1..........
A . Backgroundtothe Conventionof 20 June189 1..........6...
B . TheNegotiations forthe Conventionof 20 June1891 ....74 C . Survey by HMS Egeria. HMS Rattler and HNLMS
Banda.June 1891 .....................................-79.......................
Section2 . TheTermsofthe Conventionof20 June 1891 ...............2...
Section3 . Ratification ofthe Trea...............................................
Section4 . Conclusions .............................................98.......
.................
CHAPTERVI RESPECTOFTHE 1891LINEIN PRACTICE .............101.....
Section1 . Activities of The Netherlands and Indonesia with
Respect tothe Islands...................................101......................
A . Dutch Activities....................................101.......................
B . Indonesian Activities................................103....................
(i) NavalPatrolsto the Islands......................103............
(ii) TraditionalFishingActivities...................104...........
Section2 . The OilConcessionActivitiesof the Parties...............104.......
.................................
A . The IndonesianJAPEXConcession 104
B . Malaysia's Offshore OilConcessionsin theArea .........06
C. Conclusion .........................................108..........................
Section3 . Map Evidence .........................................109...........................
A. Introduction........................................109...........................
B. Maps Relied Upon by the Parties in the Context of the
..............................................................
1891Convention 113
(i) Dutch and British CartographieEvidence Prior
to the 1891Convention .........................113...............
(ii) The Map Attached to the 1891 Dutch
Explanatory Memorandum ....................115...........
C. Maps Reflecting the Offshore Extension of the
BoundaryDuringthe EarlyColonialPeriod ............11...
D. General Repute: Third Party Maps Showing the
OffshoreExtensionof the BoundaryLine ...............1..... E . MapsasAdmissions AgainstInterest ...................120.........
(i) British Maps Showing Ligitan and Sipadan
Islandsas Partofthe DutchPossessions ...........21..
(ii) Malaysian Maps Showing the Area Where
Ligitan and Sipadan Are Located As Falling
Outsideof Malaysia'sPossessions .................22..
F.. Conclusions .........................................126..........................
CHAPTERVI1 RELATIONS BETWEEN GREAT BRITAIN. SPAIN
ANDTHEUNITEDSTATES ...............................2........
Introduction................................................129......
..............
Section1 . The Positionof Great Britain...............................9....
A. TheDent andOverbeckConcessions ...................2.....
B. The Formationand AdministrativeBoundaries of the
BritishNorthBorneo Company ........................131.............
C. Conclusions As tothe PositionofGreat Britain .........1..4
Section2 . ThePositionof Spain ...................................1..............
Section3 . ThePositionofthe UnitedStates .........................13......
A . The United States' Acquisition of the Philippine
Islandsin 1898and 1900 ..............................13..........
B. Anglo-American Discussions regarding Certain
Islandsoffthe CoastofNorth Borneo ...................4.....
C . The Convention of 2 January 1930 between Great
Britainandthe UnitedStates ............................................
Section4. General Conclusions....................................-1............
CHAPTERVIII THE EMERGENCE OF THE DISPUTE AND ITS
AFTERMATH .............................................151.........
..............
Section1. The 1969Negotiations .................................152....................
A . The Developmentof the Negotiations ..................152.........
B . Contentand Scopeof the 1969Agreement .............1..6.. Section 2. The SubsequentConduct of the Parties..................160...........
A . Malaysia'sRecognition of Indonesian Title after 19...161
(i) The Limits of the Oil Concessions.............161........
(ii) The 1972MalaysianMap ......................1........
(iii) Maintenance of Buoys on Both Sides of the
4"10'NorthLine ..............................163....................
B . TheLegalSignificanceof Malaysia's Recognition......1.64
C . Indonesia'sReactions vis-à-vis Malaysia's Acti.....1.68
(i) The 1979MalaysianMap ......................168...............
(ii) Malaysia's Illegal Occupation of Ligitan and
Sipadansince 1980 ............................1..........
(iii) Indonesia'sProtests and Their Legal
Significance..................................175.......................
CHAPTERIX SUMMARY OF INDONESIA'S CASE AND
CONCLUSIONS ..........................................183.......
....................
SUBMISSIONS ....................................................
.....................................
CERTIFICATION
LISTOFANNEXES
MAPATLAS . v1.
MAPSANDPHOTOGRAPHS
Facingpage
Map 2.1 General Setting ........................................................
....................
Map 2.2 Location of PulauSipadanand Pulau Ligitan .......................................
Photographsof Pulau SipadanandPulau Ligitan ...................................
Map 3.1 Map ShowingThreeMarine Leaguesfiom the Coast of North Borneo ....14
Map 3.2 Extract from a Map of BritishNorthBorneo.Stanford. 1888.....................0
Map 4.1 European SettlementsandInfluenceinthe 18" Century(until 1786) .........
Map 4.2 South-East Asia from 1782until 1828 ...................................5..........
Map 5.1 Sketch Map Showingthe North-East Coast of Borneo c.1885 ...........6.....
Map 5.2 Explanatory Memorandum Map. 1891 .....................................8..........
Map 6.1 1966Permina/JAPEXConcession .....................................1.0.........
Map 6.2 Oil Prospecting Licencesand Leases. 1968 ...............................6.......
Map 6.3 Indonesianand MalaysianOil ConcessionActivity .....................1..8....
Map 6.4 Bomeo. Stanford.1903 ................................................1........
......
Map 7.1 Confirmationof Cession of Certain Islandsbythe Sultanof Sulu to
British NorthBorneo. 1903 ...........................................1...............
Map 7.2 The Philippine Islandsas definedbythe Treatyof Peace. 1898.and
the Treatybetween theU.S. and Spain. 1900 ............................1..0.......
Map 7.3 The 1930Convention .................................................1.4......
........ -vii-
SPELLINGOFPLACENAMES
It should be noted that the documentary and cartographie evidence concerning the
relevant area uses different spellinmany ofthe places mentionedin this Memorial.
Forthe sakeofclarity,the Republicof Indonesiahas adoptedthroughouttheMemorial
the followingspellingforthe places most frequentlymentionedtherein:
Balambangan
Banjermasin
BatoeTinagat
Berou
Boeloengan
Broershoek
Goenoengtaboer
IslandofNanoekhan
Island ofSebatik
Islandof Tarakan
LahadDatu
Sarnbalioeng
Sandakhan
SiAmil
Sibuko RiverandBay
Tawau
Tidoeng CHAPTER 1
INTRODUCTION
Section1. TheBackgroundto theCase
1.1 This case was brought beforethe International Courtof Justice pursuant to Article 40,
para. 1, of the Statute of the Court by joint notificationof a Special Agreement which was
signed by the Parties on 31 May 1997 at Kuala Lumpur and which entered into forceon
14May 1998'. Thenotificationwas filed withthe Registryon 2 November 1998.
1.2 Article 3, para. 2(a) of the Special Agreement provides that the Parties are
simultaneously toexchange Memorials 12 months after the Special Agreement's notification
to the Registry. This Memorial is therefore filedin accordance withthe Order of the Court
dated 10 November 1998 which fixed 2 November 1999as the date for the filing of the
Parties'Memorialsin accordancewiththe provisions ofthe SpecialAgreement.
1.3 Article2 of the SpecialAgreementprovides:
"The Court is requested to determine on the basis of the treaties,
agreements and other evidence furnished by the Parties, whether
sovereignty over Pulau Ligitan and Pulau Sipadan belongs to the
Republicof Indonesiaor to Malaysia."
1.4 Actingon that basis, the Court has been askedbythe Partiesto decidewhether it is the
Republic of Indonesia which has sovereignty over Pulau Ligitanor whether it is Malaysia
which has such sovereignty; and similarlyas regards Pulau Sipadan, the Court is asked
whether it is the Republic of Indonesia, or Malaysia, which has sovereignty over it. The
Parties are agreed in requestingthe Courtto decidethe questions of sovereignty overeach of
the two islands as between the two Parties alone, to the exclusion of any other State or
outcorne.
1 A copy of the SpecialAgreementmaybe foundinAnnex1,Vol.2.1.5 It is significantthat the Parties have requestedthe Court to decide their disputeon the
basis of treaties, agreements and other evidence furnishedby them. In this Memorial,
Indonesia will demonstrate that,following the delimitation of the respective territorial
possessions of The Netherlands and Great Britain provided forin the 1891 Anglo-Dutch
Convention andthe resulting line, title over the islands of Ligitan andpadanwas vestedin
TheNetherlands. Indonesia,TheNetherlands' successorin title, inheritedthe disputedislands
aspart ofthe territory belongingto the former colonyofthe NetherlandsEast Indies.
Section2. OverviewofIndonesia's Case and Structureofthe Memorial
1.6 Indonesiahas broughtthe present caseby special agreementwith Malaysiain orderto
seeka decisionfromthe InternationalCourtof Justicethat Indonesia,not Malaysia,possesses
sovereigntyover eachof the islandsof SipadanandLigitan.
1.7 This Memorial is divided intonine chapters. Afterthis Introduction,Chapter II will
set out a briefdescriptionofthe geographicsettingwherePulauLigitan and PulauSipadanare
situated. Theseislandslie at some distance offshorenorth-eastBorneo and formed partof the
territoriesof the NetherlandsEastIndies.
1.8 ChapterIII surnmarisesthe historyof Staterelationsin the region fiom the time when
western powers beganto establisha presenceinthe areato 1969whenthe disputebetweenthe
Partiescrystallised.
1.9 Having reviewed the general historical context, Chapter IV will analyse in greater
detail the situation existing in the area prior to the conclusion of the 1891 Anglo-Dutch
Convention delimiting Dutchand British possessions in Bomeo. Accordingly,after a brief
introduction, Chapter IV will discuss first, in Section 2, how the notion of territory was
perceived by the local rulers and then, in Section 3, the acquisition of territory by The
Netherlands.1.10 In taking up these matters, ChapterIV will show howthe pre-existing localcontext
concerning sovereignty overland territory was different fiom classical European models.
Subsequently,this chapter will describe the uncertainty involvedin identi@ingthe precise
extentof the territorialcessionsmadebythe localrulersto the colonial powersthus makingit
necessary forthe Dutch andBritishto delimit theseareasbytheir 1891Convention.
1.11 In Chapter V, Indonesia will addressthe legal significanceof the 1891Anglo-Dutch
Convention which settled territorial questions between TheNetherlands and Great Britain,
includingquestions of sovereignty over the twoislands. This chapterwill describe how the
differencesof opinion betweenthe BritishandDutchauthoritiesconcerningtheextentoftheir
respectivejurisdictionswereresolvedbythe 1891Convention.
1.12 Chapter V will analyse,in particular, the backgroundto and terrns of the 1891
Convention and willshow that the boundaryline delimiting the parties'respective territories
inthe area was not simply a boundary limitedto the mainland, but onethat extendedseaward,
across and eastwardof the island of Sebatik,thus placingthe islands of Ligitan and Sipadan
on the Dutch side of the line. This line was illustratedby a contemporaneouslyprepared
officia1Dutch map that was placedon file in the British archives,and has been reflectedin
subsequentmaps relatingto the activitiesof theBritish North Borneo Company (BNBC) and
Malaysiaitselfuntil 1979.
1.13 Chapter VI will demonstrate howthe subsequent practice of The Netherlands and
Great Britain- and later of Indonesia and Malaysia-confïrmedthat the boundary established
bythe 1891Conventionappliedbothto the mainlandandto the islands. Sections1and2 will
show how various activities undertaken in the area respected the temtorial determination
effectedby the 1891 line in practice. Section 3 willthen analysethe extensive cartographic
evidencethat supportsIndonesia'sclaims, and will demonstratehow the maps of the Parties,
as well asthose of third States,confirrnthe 1891boundarylineas a line attributingDutch,and
subsequently Indonesian, sovereigntyover the disputedislandsin thiscase.1.14 Chapter VI1will describe how the position of third States in the general area has no
bearingon the outcomeof thepresentcase. Section 1will reviewthe significanceof theDent
and Overbeckconcessions,the activities of theBNBC andof Great Britain to show that the
disputed islands were not included within thegrant to Dent and Overbeck and that Great
Britain did not have any sovereign rights overthe disputed islands.As for the position of
Spain, Section 2 will explain how Spain, and its predecessor the Sultan of Sulu, never
consideredthat Ligitan and Sipadanfell under their sovereignty. Finally, with respect to the
position of the United States, Section3 will showthat the conduct of the United States does
not indicatethat itever possessedtitle overthe disputedislands after it acquiredpossessionof
the PhilippineislandsfromSpain.
1.15 Chapter VI11focuseson the emergenceof the dispute in 1969and subsequentevents,
with Section 1 examining the 1969 negotiations betweenthe Parties, when the question of
sovereignty overthe islands first arose, and Sectionreviewingthe subsequent activitiesof
the Partiesafter 1969.
1.16 Finally,Chapter IX containsa summaryof Indonesia'scase. Indonesia'sSubmissions
arethereafterpresentedat theendofthe Memorial.
1.17 This Memorial is accompaniedby four additional volumes (Volumes 2, 3, 4 and 5)
containingthe documentaryevidencerelied uponby Indonesia. This documentary evidence
has been placed in Annexes and organised chronologicallyas follows: Volume 2 contains
Annexes 1 to 56, Volume 3 containsAnnexes 57to 118, while Volume 4 contains Annexes
119 to 183. Volume 5 contains a number of Affidavits which have been numbered as
AnnexesA to M.
1.18 The Republic of Indonesia also submits with this Memorial a Map Atlas containing
maps that are relevant to the dispute. Finally,in accordance withArticle 50, para. 2, of the
Rulesof Court,Indonesia has depositeda numberof documentswith the Court. CHAPTER II
GEOGRAPHICAL DESCRIPTIONOFTHE AREA
Section 1. Introduction
2.1 As notedin Chapter1,the dispute between Indonesia and Malaysia concernsterritorial
sovereignty over Pulau Ligitanand Pulau Sipadan. This chapter willfirst describe,in Section
2, the general setting of the portion of the Sulawesi (Celebes) Sea where the islands are
located and willthen, in Section3 and4, moveon to a briefdescriptionof Pulau Ligitanand
PulauSipadan.
Section2. TheGeneralSetting
2.2 The islandsof Ligitan andSipadanare situated dueeast of the islandof Sebatikoff the
north-eastcoast of the islandof Borneo. Theylie eastwardof the Indonesian provinceof East
Kalimantan and south-eastof the Malaysianstateof Sabah. Map2.1 facingpage 6 showsthe
relevantarea. The Malaysiancoast at the western endof SibukoBay is essentiallycomposed
of a series of river deltas, characterised by a nurnber of small islands separated by river
channels. Similarly,the coastof Indonesia presentssome indentationsand promontoriesand
is alsocharacterisedbythe presenceofnumerous islandsandislets.
2.3 One of the largest islands of the world (some 757,000square kilometres),Borneo is
located south-eastof the Malay Peninsula and is bounded by the South China Sea on the
north,the Sulu Sea, SulawesiSea and the MakassarStraitto the east and the Java Sea tothe
south.
2.4 The most extensive region of Borneo, Kalimantan,forms part of Indonesia. The
regionsof Sarawak and Sabahjoinedthe Malaysianfederation in 1963 and Brunei remains a
separate and independent State. Three quarters of the population of the island live in
Indonesianterritory.2.5 The Sulawesi Sea fills a steep-sidedand flat-bottomedbasin formed by downfaulting
of a tectonic block. The watersof the SulawesiSea are relatively warm and quite deep, the
greatest recordeddepth being 20,406 feet. Deep water enters the sea from the south of the
island of Mindanao, flowing south-westthroughthe Makassarstrait. The pattern is the sarne
for surfacecurrents. Weather in the SulawesiSea is tropical and controlledby monsoons,
which arefiequent.
2.6 Pulau Ligitanand Pulau Sipadanlie in the north-western portionof the SulawesiSea.
As can be seen from Map 2.1, the Sulawesi Sea is bordered on the north by the Sulu
Archipelago,the Sulu Sea and the island of Mindanao belonging tothe Philippines, on the
east bythe IndonesianSangiheislandschain,on the southby the islandof Sulawesi (Celebes)
andon the westbythe islandof Borneo.
2.7 Bothislandsare smalland are not associated withanyadjoininglandmass. Priorto the
emergenceof the disputebetweenthe Parties,the islandshave nothad a permanent population
or any established settlements. Navigational charts of the area show that lights have been
establishedon each of the islandsto assistnavigation1.
Section3. PulauLigitan
2.8 Map 2.2 showsPulau Ligitan,a very smallisland,borderedby reefs, and situatedon a
large coral formation. Pulau Ligitanis mostly sand, butit is permanentlyabove sea leveland
has a few low bushesand sometrees on it. The islandis located in the vicinity of a narrow
sandbank, whichdries up to 1.2 metres (4fi). That part of the island which is permanently
above water at high tide is located south of the 4" 10'N parallel of latitude with the
southernmosttip of the islandlocatedat 4' 9'35"N latitudeand 118"53'E longitude.
1
See,MapsNo.22,23 andNo.24 intheMapAtlas.2.9 The islandis situated about21 nautical miles from the nearestmainlandterritory,and
57.6 nautical miles from the eastcoastof Sebatik. Priorto the emergence ofthis dispute, and,
with the exception of seasonal settlements by fishermen, the island itself hasnever been
inhabited2. A photogmphof the island appearsfacingpage s3.
Section4. PulauSipadan
2.10 As illustrated on Map 2.2, Pulau Sipadan lies at 4' 06' 39" N latitude, and
11 8' 37'56"E longitude. The island ofSipadanis situated some 15 nautical miles from the
nearestmainland coast. As willbe explained in ChapterV below, the latitudinal location of
the island, as wellas of Pulau Ligitan,plays a crucialrole in confirming Indonesia's title.The
island of Sipadanis relatively small -approximately 0.13 square kilometres - and is densely
wooded. Pulau Sipadanis surroundedby deep water, extendingto over 500 metresin depth.
2.11 The island is of volcanic origin and it represents the top of a sea-mountain of
approximately 600-700 metersin heightonwhosepeaka coralatollhas formed. The islandis
uninhabitedandthere is freshwateron it. A photographof the island appears at the topof the
photograph facing page8.
-
3 See,the affidavits of fishermen discussedin Chapter VI and reproducedin Vol. 5.
The island of Ligitan is shown at the bottom of the page; Sipadan is at the top. The photographs date
fromNovember 1998and have beentaken fiom northto south. CHAPTERIII
A SUMMARYOF STATERELATIONSINTHEAREA (1824-1969)
Section1. Introduction
3.1 In this chapter,theGovemmentof Indonesiawill presentan historicaloverviewof the
situation on and around the island of Borneo from the mid-19th century, whenthe western
powersbegantojockey for a positionof predominancein the area, to 1969when the dispute
arosebetweenthe Parties.
3.2 The purpose of this chapteris to providethe Courtwith a brief factual account of the
general diplomatic and political historyof the area during this period. Subsequentchapters
will review discrete historical periods and focus on events which have a particular
significance forthe presentdispute.
Section2. RelationsbetweentheLocalSultanatesand Extra-RegionalPowers
A. The Sultanatesonthe Islandof Borneo
As will be reviewed in more detail in ChapterIV, in the lgthcentury, in the north of
3.3
the island of Borneo, Le., the region which is today known as "Sabah", the claims of the
Sultans of Sulu and Brunei overlappedl. The easternpart of North Borneo was nominally
under the control of the Sultanof Sulu,who also ruled overthe SuluArchipelago, today part
of the Philippines. The north-westernpart of the islandwas more or less under the controlof
1 The term "Bomeo" in th19& century was used to indicate both Brunei andBomeo proper and thus
wouldoften leadto misunderstandings. Sometirnes,treatiesconcludedby Great Britain withthe Sultan
of Brunei werereferred to as treaties with the Sultanateof "Bomeo"; for instance,the Treaty between
the UnitedKingdomand Brunei of27 May 1847wascalled atreaty with "Bomeo". See,Memorandum
on the Political, Strategical, and Commercial Advantages to Great Britain of the Northern Part of
Borneo; asell as on the Right ofHolland, Underthe Treatyof 1824, to oppose the Occupationof any
portion of that Territoryreat Britain,by Sir E. Hertslet,dated 4 November 1879,p. 2, Annex21,
Vol. 2.the Sultan of Brunei. In some instances, local rulers recognisedthe authority of either
sovereignas the situationdemanded. When European powersacquired territoriesin North
Borneoin the lgfhcentury they didso throughcessionsfiom both the Sultans ofBrunei and
Suluand,occasionally,fiom local rulers2
3.4 Theprecise boundariesof the Sultanates,particularlyin the interiorof the islandwhich
remained largely unexplored, wereto a greatextentunknown. In some instances,forexample
in the case of Brunei, the geography of north-west Borneo tendedto determine its
administrativedivisions,with riversrepresentingthe focusof the administrativedistricts3.
3.5 The Sultan of Banjermasinruled over large portionsof southemand easternBorneo -
i.e.,the area which presently formsthe East Kalimantan provinceof Indonesia. In particular,
the region known as Berou, which was composed of the States of Sambalioeng,
Goenoengtaboer and Boeloengan, was underthe controlof the Sultanof~anjermasin~.
B.
Settlementsby the WesternPowersin Borneo
3.6 During the first half of the 19~ century, a nurnber of European powers began to
harbour territorial ambitionstowards the island of Borneo. While Portugalhad limited its
interest in the area to sporadic trading expeditions, Spain claimed the Sulu Archipelago,
includingislandslyingin the vicinityof North Borneo,on the basis of a treatyof capitulation
that the Sultan of Sulu had signed at the end of a brief war against Spain in 18365. The
Spanishclaim was disputedby Britain,whicharguedthat the north of Borneohad beenceded
to Britainbythe Sultanof Suluundervarious 18" centurytreaties6. At the time, GreatBritain
had no irnmediateterritorial ambitions inBorneo, whichit simplyregarded as importantfor
its tradinginterests in Chinaand eastern Australia. Even wheni,n lateryears,the importance
- -
2 Brown,D. E.,Brunei: TheStructure and Historyof a Bornean Malay Sultanate, The StarPress, Brunei,
1970,p. 76-77.
3 Ibid., p. 79.
4 See,paras.4.55, etseq., below.
5 See,para. 7.23, below. See,also, TregonniK.G. , HistoryofModern Sabah, Universityof Malaya
Press, 1967,p. 22. Accordingto Tregonning, "in thedescription ofthe temtories of the Sultan in that
6 treatyal1mentionofNorth Borneowasexcluded ...".
For afulltext of thesetreaties,see,An2,xVol.2.of Borneo became greater for Britishinterests, British influence remained limitedto the
northern partofthe island.
3.7 Of al1 the European powers, only The Netherlands had successfully established
settlements in the western and southernpart ofthe island of Borneo, particularly alongthe
coast, as early as from the end ofthe 16* century7. The Dutch East India Companyheld a
commercial monopolyin the area dating fromthe endof the 17'~century. Withthe demiseof
the Dutch East India Company atthe end of the 18" century, the whole of its territorial
possessions,includingtheterritoryof the three StatesconstitutingBeroucededin 1787by the
Sultan of Banjermasinto the Company,were handedover to the Netherlands'~overnment~.
Prior to the French Revolution, The Netherlands had thus acquired extensive possessions in
South East Asia, including partsof Sumatra,Javaanda large portionof the islandof Borneo.
3.8 Duringthe Napoleonic wars, Dutch overseas territory fell briefly into the hands of the
British and, uponthe returnof peace, was restoredby Great Britain toThe Netherlandsby the
Treatyof 13 August 1814~. This Treaty was, however,not sufficientto reassure Britain that
The Netherlands would not re-introducein the area a regimeof commercial monopoly which
had existedprior tothe French Revolution.
3.9 As a result of negotiationsrelating tothe rights and interests of the two States in the
area, Britain and The Netherlands signeda new treaty on 17 March 1824". The Treaty
contained commercialandterritorial provisions. UnderArticleXII,GreatBritainagreedthat:
"...no British establishment shallbe made onthe CarimonIsles, or on
the Islands of Battam, Bintang, Lingin, or on any of the other islands
south of the Straits of Singapore, noranyTreatyconcludedby British
authoritywith theChiefsof thoseislands".
7 Irwin,G.,NineteenthCenturBorneo. A StudyinDiplornaticRivalry,MariinusNijhoff,1955,pp.4-7.
8 GeographicalHandbook Series, Netherlanh Easî Indies, Naval Intelligence Division, Vol. II,
November1944,p. 70.
9 Memorandum by SirE.Hertsletdated4 November1879,p. 2, Annex21, Vol. 2. Thetextof the 1814
TreatycanbefoundinBritishandForeignState PapersV, ol. 1,Part1(1812-1814)pp.370-378.
10 Fora copyofthe 1824Treaty,see,Annex5, Vol.2.3.10 In Britain'sview,the main purposeof this Treatywas to definethe state of theparties'
respectivejurisdictions in the area and to establishequalityof commercialtreatmentbetween
them.
3.11 Despite its commercial interests in the area, Great Britain had no established
settlementsin Borneo until the 1840s". At this time, the threat ofpiracy in the SouthChina
Sea and the growing danger for British subjects in the area impressed upon the British
Government the need to adopt measures for the protection of British commerce".
Accordingly,on 1November 1844Britain addressed aletterto the Sultan of Brunei and other
Rajahs of Borneo appointing Mr. James Brooke, a British citizen who had been engaged in
private trading in the region of Sarawak,as British Agent to ~orneol~. The letter described
Mr.Brooke's mandateas follows:
"The objectsof Her Majesty'sGovemmentwere statedto Mr. Brooke
to be the establishmentof a naval station at some point on the north-
west coast of Borneo, capableof affording shelter to Her Majesty's
ships of war and the trade in general, and possessing the necessary
facilitiesfor supplyingfuel forHerMajesty's steamers"14.
3.12 Mr. Brooke received instructions fromhis Governmentas to its interpretationof the
Anglo-Dutch Treaty of 1824, which includedthe view that the limitation to entering into
treatieswith nativerulers containedin the Treatydid not applyto Borneo. Thus, Brookewas
free to enter into agreementswith local rulersto the extent they were not subject to Dutch
rule.
3.13 Shortly thereafter, Brooke became interestedin the island of Labuan, which was
strategicallysituated in BruneiBay. The island, whichwas uninhabitedat the time,was under
the control of the Sultan ofBrunei. Brooke recognisedthat, given strategicposition,Labuan
11
Theonly Britishtradingpost establishedby the EastIndiaCompanywas onthe islandof Balambangan
off the northoast of Borneoin 1763. See, Leong, C., Sabah, the First 100 Years, KualaLumpur,
1982, p.36;see, also, Wright,L.R., "HistoricalNotes on the NorthBorneo Dispute",TheJournalof
Asian Studies,Vol. XXV,No. 3, pp.471-484.
12 Memorandum by SirE.Hertsletdated4 November1879,p. 12,Annex21, Vol. 2.
13 In 1842, the Sultanof Bruneihad investedBrooke withthe governmentof the districtof Sarawak,
bestowingupon himthetitleof Rajah.
14 Memorandum by SirE.Hertsletdated4 November1879, p.14, Annex21, Vol.2.could be used as a safe haven for commercial vesselson their way to China and to counter
piracy. On 24 December 1846, Labuan became a British colony and James Brooke was
appointedthe island's first ~overnor5.
3.14 The actionsof Great Britainin Borneo triggereda protest from the Dutch Governrnent
which viewed Britain'sactions as contrary to the 1824 Treaty. The British maintained the
position thatnothinginthe 1824Treatypreventedeitherpartyfrom establishingrelationswith
the chiefs of Borneo and that the limitation containedin the Treaty, which appliedto islands
lyingsouthof the Straitsof Singapore,did notencompassthe island of Borneo.
3.15 The Dutch Government's position was thatthe island of Borneo was not mentionedin
the 1824 Treaty because the treaty was basedon the principle that the Dutch and British
shouldnot jointly occupythe sameterritory. Given thatin 1824,the British were notpresent
in Borneo, the Dutch concluded thattheir future presencewas precluded. In the words of a
Dutchdiplomat,the Treatyhad established:
"cession en entier par l'un des deux à l'autrede toutes les parties de
territoire jusque-là possédéesen commun; renonciation réciproque à
toute communauté territoriale pourle futur ...si 1'Ilede Bornéo n'est
pas nommée dansle Traitéde 1824, cette omission ne prouve autre
chose sinon qu'à cette époque elle n'étaip t as le théâtre d'une
occupation commune" 16.
3.16 Britain'sreply tothe Dutchproposa1wasto the effectthat:
"nothing containedin the Treaty of 1824 precluded the formation of
British Settlementsinthat partof Borneoin whichthe Netherlandsdid
not possess acknowledged rightsM17.
15 Leong,op.cit.atfn.1,p.26.
16 Memorandurb nySirE.Hertslet datdNovember1879,p.20, Annex21, Vol.2.
" Ibid p.,3.3.17 Eventually,the Dutch Government chose not toopposethe establishmentby a private
British enterpriseofa presencein the northern reachesof Borneo since it did not believe that
these tenitories were under Dutch controlor representedan actual settlement in violation of
the terms of the 1824 ~reaty".
3.18 As willbe seenin Chapter IV, inthe courseofthe 1840sthe Dutch Govenimentissued
a series of decreesregarding its territorial possessionsin Borneo. On 28 February 1846, the
Governor-Generalof the Netherlands Indies issued a resolution which regulated the interna1
organisationof the Dutch possessionson the south,east and westcoasts of Borneoby uniting
the separate and independent acting Dutch authorities under the control of a central
govenunent19.
3.19 Although its purpose was not to fix political boundaries, the resolution fixed the
northernlimit of the Dutch administrativedivisions at the 3'20'north latitude, or at theriver
Atas. However, it should be noted that the document reserved any rights that the Dutch
Governmentmighthave overdistrictsand Statessituatedbeyond those specifiedtherein.
3.20 It laterbecarneevidentto theDutch Governmentthat the 3'20'N latitudementionedin
the resolution was not correctdue to the scant knowledgeof the geographyof the north-east
coastof Borneoat the time. As a result,the resolution was subsequently modifiedby a decree
of 27 August 184920.Further communicationsby the Dutch Minister of the Coloniesto the
Netherlands States-Generalin 1850, which were published, show that the Boeloengan
territories over which The Netherlands enjoyed sovereignrights extended as far north as the
4'20'N latitudein thevicinityof Batoe Tinagat, a locationthat can be seenon Map 3.1 facing
thispage21.
18 Extractfiom Answerof the ColonialMinisterto Inquiriesmade by theCornmitteeof the Second
ChamberintheirPrelirninaryeportontheNetherlands IndianBudgetfor 1880,Annex22, Vol.2.
19 Forthetextoftheresolution,see,Annex10,Vol.2.
20 Annex12.Vol.2.
21 See, Recordof the Proceedingsof the JointCommission Meetinon 19 July 1889, p. 2, Annex58,
Vol.3.3.21 On 12November 1850,the Sultan of Boeloenganand the Dutch Government entered
into a convention (or "Contract") renewingthe Sultan's recognitionof Dutch sovereignty.
Article 1of the Contractspecifically referred tothe original Actof Submissionby the Sultan
to Dutch authority whichhad been signed on 27 September 1834. Article II defined the
territoryof Boeloenganas lying:
"with Goenoeng-Teboer: from the seashore landwards, the
Karangtiegau River fromits mouth up to its origin; in addition, the
Batoe BeoekkierandMountPalpakh;
"with the Sulu possessions:at sea the cape narned Batoe Tinagat, as
well as the Tawau River".
ArticleIIfurtherprovidedthat:
"The following islands shall belong to Boeloengan: Terakkan,
Nenoekkan,and Sebittikhwiththesmall islands belonging theret~"~~.
3.22 On 2 February 1877,a decree was issued by the Netherlands Indies Governrnent
amending the decree of 1849 concerning the administrativedivisions of Borneo, which
specifically referredto Boeloengan, Tidoeng,andthe islands of Tarakan,Nanoekhan, Sebatik
and the small islandsadjacent thereto, aspart of DutchBomeo. A descriptionof the Stateof
Boeloengan,includingBatoe Tinagatand the Tawau River, wasalso contained in a Contract
of Vassalage signedon 2 June 1878bythe SultanofBoeloengan,a copyof whichwas sentto
the BritishGovernmenton 17January1880~'.
22 Annex 13,Vol. 2 (emphasis adde. ursuantto Article50, para.2, of theRulesof Court,a copyof the
originalDutch documentsbeen depositedintheRegisîry.
23
See, Further Memorandum on theDisputed Boundaty between the North Borneo Companyand the
Dutch Possessions on the North-EastCoast of that Island, E. Herstlet,dated9 January1889,
p.2, Annex38, Vol. 2. Section3. An Overviewof the Originsof the British North BorneoCompany
A. The Establishmentof the Company and Its Application for a
RoyalCharter
3.23 As notedin Section2, bythe mid-19~centurythe British Government,havingbecome
increasingly concerned aboutpiracyin north-west Borneo, soughtto find waysto protect local
Britishtrade. Meanwhile,in 1850the United Statesestablished aforma1presence in the area
with the signature of a treaty withthe Sultan of Brunei which providedfor freedom of trade
betweenthe two countries.
3.24 In July 1865,the United States'Consul for Borneo,Mr. Claude Lee Moses, obtained
from the Sultan of Brunei a concession which embracedmost of the territory later to be
administeredby the British North Borneo Company ("BNBC"). Mr.Moses was unable to
develop the concession himselfand ceded the grant to the "American Trading Company"
headed by the ArnericanJoseph Torrey withthe backing of two Chinese businessmen from
Hong on^^^.
3.25 With the financial situation of the company in a precarious situation, Mr. Torrey
sought to convince the U.S. Government to take over the concession. When this proved
unsuccessful, Mr. Torrey found new purchasers in the persons of the Consul-General of
Austria-Hungaryin Hong Kong, Baronvon Overbeck,and the brothers Alfied and Edward
Dent, two commercial agentswho had foundedthe British company "Dent & Co." operating
24
Thesitechosenfor theArnericsettlementwaslocatedby theKirnanisriver,northof Labuan,andwas
calledEllana;however,insufficientfundswerecollectedandthe settwas finallyabandonedin
1866. See, Saunders,G., A History of Brunei,Oxford UniPress, 1994,pp. 83-86. See, also,
ForeignOfficeemorandumRespecting Cessionsto Messrs. Dent and Overbeckby Sultans ofBrunei
and Suluof Territorieson the North-EastCoast ofBorneo, and Position ofHer Majesty'sGovernment
inRegard to SuchCessionsdated6 October1879,pp.288-289,Annex20, Vol.2.out of London and Shanghai. The new concession was an assignment of the original
concession tothe American cornpar#.
3.26 On 29 December 1877,the Sultan of Brunei agreedto issue three separate grants to
Messrs.Dent and Overbeck encompassing a large areaof North Borneo (some28,000 square
milesofterritory)in exchangefor a totalannualpaymentof $15,000~~.
3.27 Sincethis grant included a portionof territory alongthe east coast of Sabah whichwas
also claimedby the Sultanof Sulu,Baron vonOverbeck deemedit prudent to entera separate
agreement with that ruleras well. In the words of the British Acting Consul-Generalin
Labuan,Mr. Treacher:
"The Sultan of Brunei's territoryextends, at the utrnost, only to the
West side of Malludu Bay, though formerly the Brunei kingdom
extended as far as Cape Kaniungan, on the east coast, in latitude
1"north. The remaining territory mentionedin the grants is actually
under Sulurule, and occupiedby SuluChiefs,and it wasonlybecause
the districtswere mentionedin the original Americangrants that they
are again included, and Mr. Overbeck will now have to make a
separateagreement withthe Sultanof Sulufortl~em"~~.
3.28 On 22 January 1878,the Sultanof Suluagreed to transfer toDent and Overbeck foran
annualpaymentof $ 5,000 a concessionto theterritory describedas follows:
"...al1the territoriesand lands being tributaryto us on the mainland
of the Islandof Borneo, comrnencingfiom the Pandassan Riveron the
Westcoastto MaluduBay,andextendingalongthe whole east coastas
far as the Sibuco River in the south, comprising al1 the provinces
bordering on Maludu Bay, also the States of Pietan, Sugut, Bangaya,
Labuk,Sandakan,Kinabatangan, Marniang,andal1the otherterritories
and states to the southward thereof, borderingon Darvel Bay and as
far as theSibuco River, withal1the islands belonging thereto within
threemarine leaguesof the ~oast"~*.
25 Memorandurb nySirJ.Pauncefotedated7 May1878,p.130,Annex18,Vol.2.
26 See, Despatchfrom Acting Consul-GeneralTreacherto the Earl of Derby, with inclosure,dated
2 January1878,pp. 101-103,Annex16,Vol.2.
" Ibid.,p.lOl.
28 FortheoriginalAgreement,see, inclosure tothedespatchfromConsul-Genl reacherto theEarlof
Derby dated2Januar 1878,pp.108-109,Annex17,Vol.2.Map 3.1 facing page 14 illustrates the distance of three marine leagues (equivalentto nine
nautical miles) fiom the mainland coast of North Borneo in accordance with the 1879
concession.
3.29 Followingthese transfers,the Dent andOverbeck syndicateestablished a presence in
Sabah. In early 1878,two "residents"were establishedon the west coast on the Tempasuk
andPaparriversand oneonthe eastcoastat SandakhanBay.
3.30 The Dent brothersand Baron von Overbeckwere not farniliarwith the territory over
which their concession extendedand left the responsibilityof day-to-dayadministration of
their trade to theresidents. Theyintended to selltheir intereststo whomever was interestedin
their commercialor politicalvalue. The British Foreign Office,for its part, thoughnot willing
to establish a BritishProtectorate overthe territory, wasreluctantto see anotherpower obtain
possessionof the areaor exertinfluence over it29.
3.31 Unableto sell its concessions, theDent andOverbeckpartnershipbegan to assess the
practicability of developing them on a commercial basis. Accordingly,the Dent brothers
addresseda petitionto the BritishGovement for a Royal Charter to administer the tenitory
andexploititsresources.
B. Dutch andSpanishReactions and British Reassurances
3.32 The application for a Royal Charter triggeredprotests from the Dutch Govement
which sought, and obtained, reassurances, that Britain did not advance any claims of
sovereigntyoverthe area30.
3.33 As noted above, Spain also clairnedthe possessions of the Sultanof Sulu in North
Bomeo following a treaty concluded in 1851 with the Sultan of sulu3'.
Great Britain,
29 Notes on the North Borneo Charby Sir J.Pauncefote datedJanuary1882,p. 14,Annex24, Vol.2.
30 See,paras. 7.6-7.7,below.
31
See,para. 3.6,above.however, continued to reject Spanish claims to Sulu andits dependencies as "merely a
nominalclaim over a certainundeterminedpart of ~orneo"~~.
3.34 It was not until March 1885that Great Britain, Germanyand Spain signed aprotocol
pursuant to which the former two Statesrecognised Spanish sovereignty over the Sulu
Archipelago,in return for a renunciationby Spain of any claim over north-eastern~orneo)'.
Therelevantarticlesofthe 1885Protocol readas follows (in the original French):
"Art. 1". Les Gouvernements de l'Allemagne et de la Grande
Bretagne reconnaissent la souveraineté de l'Espagne sur les points
occupés effectivement, ainsique sur ceux qui ne le seraient pas
encore, de l'Archipelde Sulu (Jolo), dont les limites sont établies dans
l'article2.
"Art. 2. L'archipel de Sulu (Jolo), conformémen t la définition
contenue dans l'art.1".du Traité signé le 23 Septembre 1836entre le
Gouvernement Espagnol etle Sultan de Sulu(Jolo), comprend toutes
les îles qui se trouvent entre l'extremité occidentale de l'île de
Mindanao, d'une part,et lecontinent de Bornéo et l'île de Paragua, de
l'autre,à l'exceptiondecellesqui sont indiquéesdans l'art. 3.
"Il est entendu que les îles deBalabacet de Cagayan-Jolo font partie
de l'Archipel.
"Art. 3. Le Gouvernement Espagnol renonce vis-à-vis du
Gouvernement Brittanique, à toute prétention de souveraineté sur les
territoires du continent de Bornéoqui appartiennent, ou qui ont
32 See, Notes on the North Borneo Charterby Sir J. Pauncefote dated January 1882,p. 34, Annex 24,
Vol.2.
33 Tregonning,op. cit., at5, p. 22. Thetext ofthe 1885Protocolis containedin Annex33, Vol. 2. The
followingtranslationofthe Protocol,reproducedinthe sameannex,was preparedby the British Foreign
Office:
"Article1.The Govemment of GreatBritain and Germanyrecognize the sovereignty of Spain over the
places effectivelyoccupied aswell as overthose places not yet so occupied, of the archipelago ofSulu
(Jolo),whereofthe boundariesaredeterminedinArticleII.
Article II. The Archipelago ofSulu (Jolo), conformablyto the definition containedin Article 1 of the
Treaty signed the3rdof September 1836,between the Spanish Govemment and the Sultan of Sulu
(Jo16) comprises al1 the islands which are found between the western extremity of the island of
Mindanaoonthe oneside, andthe continentof Bomeo andthe Islandof Paragua (Palawan)onthe other
side,with exceptionof thosewhichare indicatedin Article III. It is understood (entendu)that theisland
of Balabacand of Cagayan-Jol6formpart oftheArchipelago.
Article III. The SpanishGovemmentrelinquishesas faras regards the British Govemment,al1clairnof
sovereigntyover thetemtories of the Continentof Bomeo whichbelong, orwhich have belongedin the
past to the Sultanof Sulu (Job), includingtherein the neighboring Islands of Balambangan,Banguey
and Malawali,as well asl1those islands lying within a Zoneof three marine leaguesalong the coasts
and which form part of the territories administered by the Company styled 'British North Bomeo
Company"'. Spanish rule over the Sulu Archipelagowas howevershort-lived,since, as we shall see in
paras. 7.30-7.37,followingthe Spanish-Americanwar,these islandsbecame apossession of the United
States. appartenu dansle passé, au Sultan de Sulu (Jolo),y comprises les îles
voisines de Balambangan, Banguey et Malawali, ainsi que toutes
celles comprises dans une zone de trois lieues maritimes le long des
côtes et qui font partiedes territoires administréspar la Compagnie
dite'BritishNorth Borneo Company'.
3.35 Duringthis period,the Dutchwere firmly established alongthe south Coastof Borneo.
Moreover,The Netherlandsalso advancedterritorialclaims in the northernpart of the island
up to Batoe ~ina~at~~M . apNo. 3.2on the oppositepageis a reproductionofa map published
by Stanfordfor the British North BorneoCompany in1888showing by means of a red line
the northern boundaryof the Dutch possessionsas claimedona Dutchofficia1map of 188535.
3.36 In diplomaticcorrespondence withthe Dutch, GreatBritain continuedto maintainthat
the 1824 Anglo-Dutch Treaty did not applyto the island of Borneo. In September 1878,
Count de Bylandt, the Dutch Minister in London, handed a noteto the Permanent Under
Secretaryof the Foreign Office, SirJulian Pauncefote, setting forth the legal rights of The
~etherlands~~.Pressed fürtherby Count de Bylandt with respectto the request for a Royal
Charterby Dent andOverbeck andasto Britain'sintentionsconcerningnorth-east Borneo,the
British Foreign Secretary,Lord Salisbury, replied thathis Government respectedthe rights of
the Sultansof Suluand Brunei anddid not intendto do anythingin derogationof those rights.
Lord Salisburyadded:
"Probably,even if our response to Messrs. Dent and Overbeckwas
favourable,Her Majesty'sGovernmentwould not go fürther than was
justified bythe precedentsof SirJamesBrookeat Sarawak,or of those
chartered commercial companieswhich in former times it had been
the policy of this country to establish in various parts of the world
without anyaimof territorial acquisition.
"The object of Her Majesty'sGovernment was not to set up any
dominion, or to enter upon controversy with respectto territorial
claims, but simply, if we saw an opportunity, to promote the
developmentof theresourcesof the countryunderdiscu~sion"~~.
34 See,para.5.9,below.
35 ThismapisalsoreproducedintheMapAtlasasMapNo. 3.
36 See, Recordof the Proceedingsof the JointCommission Meeton 19 July 1889, p. 4, Annex58,
Vol. 3.
37 Notes on the North Borneo Chabry SirJ.PauncefotedatedJanuary1882,pp. 12-13,Annex24, Vol.
2 (emphasis added).3.37 In anyevent,theNetherlands Governrnentwas notundulyconcernedby the company's
activitiesin North Borneo since,as the Dutch Colonial Minister notedin reply to an enquiry
raisedby the Parliamentin 1880,this was "simply a questionof the establishmentof a private
Company". Moreover,the Ministerfelt that the Dutchinterestshad not been affectedby the
grants. Asthe Minister observed:
"...there is, as it appears, little reason to apprehendany such danger
from the undertaking in question, and it would be difficult to prove
that Ourrights have been infringed by the concessions which have
beengranted"38.
3.38 Nonetheless,in orderto confirmthe limitsof Dutchpossessionsin the area, theDutch
flagwas hoisted in 1879at Batoe Tinagat to showthat Dutchterritoriesextendedas far north
as that location39.Upon an inquiryby Great Britain,the Dutch Colonial Minister explained
his Government'spositionas follows:
"As far as the Sulu concession is concerned it is not quite certain
whether the contracting partieswere well acquaintedwith the precise
frontier-lineof the Netherlands territoryon the east coast of Borneo.
With a view to preventing possible misapprehensions,orders have
been issued fortheNetherlandsflagto behoistedon the border (onthe
Batoo Tinagat Rock, situatedat the mouth of the Tinagat River in
4'19" north latitude and 117'51 " east longitude,accordingto the last
survey)to be placed forthe present under the protection of a cruizer,
whilst the Sultanof Boloengau [sic] has been requestedto maintain a
Representative at this point on his side of the frontier-line in
3.39 The exact location of Batoe Tinagat was a matter of some disagreement;the Dutch
placedit at 4'19'N latitude,whilethe British believed thatit was situatedat4'15'N.
38
Extractfi.om the Amer of the Colonial Minister to Inquiriesmade by the Committee of the Second
39 ChamberintheirPreliminary Reporton theNetherlandsIndianBudgetfor 1880,Annex22, Vol.2.
Letterfiom theBritishNorthBomeo Companyto theForeignOfficedated8 March1889,Annex46,
40 Vol.2. Forafurtherdiscussionofthispoint,see,para.5.4,below.
Extractfiom the Amer of the Colonial Minister to Inquiries made by the Committee of the Second
ChamberintheirPreliminaryReport ontheNetherlandsZndianBudgetfor 1880,hex 22, Vol.2.3.40 On 12 April 1880, Mr. Dentwrote to Lord Salisburystressing the importance of his
company'sactivitiesto promotethe developmentof the area and noting the progress thathad
been made since December 1877when the first agentswere establishedin Sabah. He added
that, if the territory could not be occupied by Britain, it should be adrninistered by his
companywith sovereigntitleremaining withthe localsultans4'.
3.41 In interna1communications,the Foreign Office recognised that Great Britain had no
sovereigntitle over the territory wherethe companywas establishedand thus could not grant
it governmentalorjurisdictionalpowers. As wasnotedbythe BritishForeignOffice:
"Inthe case of Bomeo, the Crownhas no dominion over the territory,
and would grant absolutely nothingbut incorporation. The grant of
the Charter, nevertheless,would be the forma1recognition of the title
of Mr. Dent andhis Association tothe territoriescededto him by the
3.42 It should be noted, incidentally, that the reference toa cession was not intended to
mean a full transfer of sovereign rightsfromthe Sultans to the Dent and Overbeck company,
sincethe interpretationof theForeign Officewasthat thelatterwould exercise itsjurisdiction
"in the name of the Sultans of Sulu and Brunei, under whose suzerainty they hold the
territ01-y"~I. otherwords,theForeign Office insisted that:
"...theterms of theproposed Charter will nothave the effect ofvesting
in Her Majestythe sovereignty overthe territoryin question, invirtue
of the rights thereby recognizedby her as acquiredby a Companyof
British subjectsfiom the Sultans of Brunei and Sulu; but that the
Sultans will remain Suzerains although they have delegated the
exerciseofauthority withinthoseterritoriesto the ~om~an~"~~.
41 Notes on theNorthBorneoCharterby SirJ.PauncefotedatedJanu1y882,p. 13,Annex24, Vol.2.
42 Ibid p.16(emphasisinthetext).
43 Ibid p.,15.
44 Ibid p.,18.3.43 Throughoutits discussionswith the Dutch Government,Britain also maintained that
the companywas a"privateundertaking" which:
"...promised to open up an importantfield to commercial enterprise,
to the manifest advantageof the native population, and certainly not
to the detriment of the neighbouring territories under Netherlands
ru~e'~~.
3.44 The Charterwas grantedto the company inNovember 1881~~.A few months earlier,
Dent had appointed Treacher as the first Governor of the company. As for Baron von
Overbeck,bythat timehehad given up al1ofhis rightsto, andrelinquishedanyinterestin, the
company which remained an exclusively British concern4'.In May 1882, the Chartered
company wasofficiallyformed underthe narneof BritishNorth Borneo Company ("BNBC")
and,in 1883,Treacher movedthe company'sheadquarters to sandakhan4*.
3.45 The BNBC's Charter stipulateda policy of respect of the local customs and interna1
affair~~~.Historical studies of the BNBC's administrationconfirm that the Residentswere
carefùl not to interfere in the life of the indigenous populations. Notably, judicial
administrationover the natives was exercisedby their own chiefs and headmen and carried
out by the village courts in accordance with local customs. Similarly,the collection of taxes
was carriedout by local chiefs and other native colle~tors~~.In anyevent, even if the BNBC
had wantedto carry outa different strategy,it lackedboththe staff and the financialresources
to administerproperlysucha vast anddiverseexpanseof land5'.
-- --
45
46 Ibid., p.30.
Forthetextof theRoyalChartersee, Extractfiom TheLondon Gazette, 8 November188 1,Annex23,
Vol.2.
47 Black,I., A Gambling Style of Government. TheEstablishmentof the Chartered Company'sRule in
Sabah, 1878-1915,OxfordUniversityPress, Oxford1,983,p.30.
48 Tregonningo , p. czt.h.t5,p.49.
49 Annex23, Vol.2, items8,9 and10.
50
Tregonningo , p. cit.h.a5,pp. 118-119.
Warren, J.F.,The SuluZone 1768-1898, SingaporeUniversity Press, Singapore,81,p.135. C. The AdministrativeDivisions of the British North Borneo
Company
3.46 Initially,the division ofNorth Borneo intotwo residencies,the West and East Coast
Residencies, introducedby Baron von Overbeck,was maintained.Overthe years,the number
of residencies rose tofive in the 1920s,(the West Coast, Kudat, Sandakhan, the East Coast
andthe Interior),then fellto fourin 1934, (Sandakhan,West Coast,Interiorand Tawau),and,
finally, shortly before World War II, to the original two (the East and West Coast
re~idencies)~~.
3.47 Each residency was internally divided into provinceasdministeredby District Officers.
The Headsof Departmentsresidedin Sandakhan,at the BNBC'sheadquarters,which became
the capital of British North Borneo, whilethe West Coast Residency wasbased inJesselton
(todayKotaKinabalu,thecapitalof aba ah)^^.
3.48 On 12May 1888,the BritishGovernmententeredintoan agreementwith the BNBCto
establish the State of North Borneo. The agreement madethe State of North Borneo, like
Brunei and Sarawak, a British protected State, with the British Government assuming
responsibility forits externalrelationswith foreigntat tes^ Th.e Agreement did notcontaina
specific description of the territories comprising the State of North Borneo, but simply
referredbackto the territorialdescription containedinthe RoyalCharter.
52
Leong, op. cit.,h.t11, pp.54-55. See, also, Rutter, O., British NorthBorneo. An Account of ifs
53 Histoty, Resources andNative Tribes,London,1p.6.
Tregonning, op. cit.fn.5, pp. 49 et seq. In the 1920s the provinces were replaced by seventeen
54 districts(Leong,op. cith. 11p. 55,h.52).
The textoftheAgreemen itatAnnex 34,Vol.2.3.49 Under the Agreement, the State of North Borneo was divided intonine provinces,
namely :
1.Province Alcock; 6. Province Keppel;
2. Province Cunliffe; 7.Province Martin;
3. Province Dent; 8.ProvinceMayne; and
4. ProvinceDewhurst; 9. Province ~~bur~h~~.
5. ProvinceElphinstone;
3.50 Map 6.4, with an enlargement of the relevant portion facing page 118, shows the
interna1divisions of the State of North Borneo intothe nine provinces listed above as of
1903~~.As can be seen from the enlargement,the southernmost limits of the Elphinstone
Province coincided witha line drawn seawardsfiom the islandof Sebatikalong the 4" 10'N
parallelof latitude- a linethat was establishedby the 1891Anglo-DutchConvention,as will
be discussedin Chapter V. The relevanceof this line forthe purposesof the present casewill
be addressed insubsequent chapters.
3.51 The political control of the State of North Borneo lay with the BNBC's Court of
Directorsin London. In practice,the Court of Directors delegatedits powers to a Governor
residingin Sandakhanwho was advised,fiom1912,by a Legislative councils7.
3.52 By an agreementof 26June 1946,the BNBC cededits rights and assets to the British
Crown and North Borneowas created as a British Colony. In November 1946, Edward
FrancisTwining was appointedfirst Governorof theBritishColonyofNorth~orneo~*.
55 Ibid.,Art.1. Theprovinceswerenarnedafterprominet NBCofficials.
56 ThismaphasalsobeenreproducedaM s apNo. 9 intheMapAtlas.
57 Forfurtherdetailsontheadministratiof theStateof NorthBomeo, see,Kahin, G. McT.,"TheState
of NorthBomeo, 1881-1946",TheFar EasternQuarterly,Vol. VII, November1947, pp. 43-65, at
pp.47-49.
58 Ibid., pp.62-65. Section4. Dutch-British Relations from 1882to the Signatureof the 1891
Convention
3.53 Chapter V will examine in detail the terms of, and background to, the 1891 Anglo-
Dutch Convention. Here, it will suffice to describe briefly from a factual perspective the
events leading tothe signatureofthe Convention.
3.54 As mentionedabove, in a nurnber of diplomaticcommunicationswith the British in
1882,the Dutch authoritieshad maintained the positionthat the northern limit of the Dutch
possessions on the island of Borneo was situated on the promontory of Batoe Tinagat, at
approximately 4'20' N latitude. The British, on the other hand, argued that the Dutch
boundary did not extend beyond the 3'20'N latitude refened to in the Dutch resolution of
28 February 1 84659.
3.55 The Dutchposition wasthat it was not correctto referto the Dutchresolution of 1846
as markingthe finalboundaryof the Dutch possessionsin Borneosincethat resolutionhad in
fact been subsequently modifiedin 1849 with a further decree suppressing the mentionof a
frontier at the 3" 20' northlatitude. To that effect, an announcementhad been madeby the
Dutch Colonial Minister to the Dutch Parliament on 18 June 1850 specifjing that the
resolutionof 1846hadbeenmodified6'.
3.56 Nonetheless, the differenceof opinionbetweenthe Dutch andBritish convinced both
Governrnents that it was necessary to open negotiations with a view to discussing the
boundaryquestion as a whole. Withthe establishmentof a British protected State in Borneo
in 1888,the need for asettlementof theboundary dispute became more urgent.
59
See, paras. 3.18-3.20, above. See, also, letter from British North Borneo Company to the Foreign
60 Office dated 8 March 1889,Annex46, Vol. 2.
Memorandumon theDutch Frontieron theNorth-eastCoast ofBorne0 by Sir E.Hertslet dated 20 June
1882,p. 1,Annex28, Vol. 2.3.57 Following a numberof exchangesand informa1meetings,the partiesagreedto set up a
Commission in London composedof an equal number of delegates fiom both countries to
discussthe fiontierbetween DutchterritoriesinBorneoand those underBritishprotection.
3.58 The Joint Commission met at the British Foreign Officein July 1889. The parties
rapidly reachedan agreementin principlethat the boundary wouldstart on the east coast fiom
a locationcalled Broershoek,at the 4" 10'N parallelof latitude6'. Theonly substantivepoint
of contention remained the issueof sovereignty over the islandof Sebatikwhich lay opposite
the coast at Broershoek. On that point it was finally agreed that the line should, fiom
Broershoek, continueits course acrossSebatikandthence eastwards(i.e., seaward) along that
parallel of latitude,dividingthe islandof Sebatikbetweenthe parties62.The Conventionwas
signedon 20 June 1891.
3.59 An officia1Dutch map reflecting theagreedboundary was attached tothe Explanatory
Memorandum(sometimesreferredto as the "Memorandumof Elucidation")presentedby the
Chamberof the Netherlands States-Generalas part of the
Dutch Governmentto the Second
ratificationprocess of the 1891 on vent ion T^hi.map, a copywhich appearsas MapNo. 5
in the Map Atlas and which is discussedat paras. 5.48-5.55, below, shows by a red line the
boundary agreedunder the 1891 Convention. This line extendedwell into SibukoBay along
the 4" 10'N latitude.
3.60 Moreover, as will also be explained in Chapter V, this map was never protested by
Britain at the time it was issued or at any time later despite the fact that it had been
communicatedto the Britishauthorities. Indeed, subsequent Britishand Malaysianmapswere
61 See, paras. 5.26-5.27, below. The BNBC also agreed to this position, as can be seen fiom the
Memorandum on the Southern Boundav of the Territory of the British North Borneo datedny
22 July 1890,Annex61,Vol. 3.
62 Despatchfiom Lord Salisburyto Countde Bylandtdated 13August 1890,p. 13,Annex62, Vol. 3.
63 Annex 77, Vol. 3. Pursuant to Article 50, para. 2, of the Rules of Court a copy of the original Dutch
document(as part of a completesetof Dutch parliamentarydocumentsrelatingto the ratification of the
Convention of 20 June 1891) has been deposited in the Registry. See, also, the despatch fiom Sir
Horace Rumbold to Lord Salisbury dated 26 January 1892, Annex 81, Vol. 3. The Convention was
ratified by the Dutcharliament on 9 April 1892; in this respect, see, Decree of 20 May 1892,
Annex88, Vol. 3; see, also, despatchfiom SirHoraceRumboldto Lord Salisburydated9 March 1892,
Annex83,Vol. 3.consistent with the map attached to the Explanatory Memorandum in showing a boundary
extending beyond Sebatik out to sea alongthe 4O10' N latitude64.
3.61 Article V ofthe 1891 Convention stipulatedthat:
"...[tlhe exact positions of the boundary-line, as described in the four
preceding Articles, shallbe determined hereafter by mutual agreement,
at such times as the Netherland and the British Governments may
think fitw6'.
3.62 In conformity with this Article, the two Governments proceeded to demarcate certain
parts of the boundary on the ground. A mixed Commission placed beacons on the point
where the 4" 10' N parallel crossed the east coast of Borneo near Broershoek and where it
crossed the east and west coasts of the island of Sebatik. These beacons were later replaced
by poles of granite66. Further clarifications of the line on mainland Borneo were made by a
subsequent Agreement of 1915and by a 1928Conventionbetween TheNetherlands and Great
Britain in implementation of Article V of the 1891Convention.
Section5. Further Relations Between the Relevant Powers ConcerningTheir
Possessionsin and around Borneo from 1891to 1930
A. Anglo-American DiscussionsRegardingCertainIslands off
the Coast of North Borneo
3.63 As has been seen in the previous Section, a certain division of territorial possessions
arnongstthe interested powers in North Borneo had taken shape by the end of the 19' century.
In 1885, Spain had renounced its claims to North Borneo, including to islands lying within
three marine leagues of the Borneo coast, in exchange for recognition by Germany and Great
Britainof its sovereignty over su1d7. Great Britain and TheNetherlands had agreed, with the
&4
See,paras.6.63-6.65below, andthemapsreproducedas MapsNo. 9, 11,12,13, 14, 16, 18, and 20
65 intheMapAtlas.
66 Annex75, Vol.3.
communicationbythe NetherlandsChargéd'affairesdated19 November 1910,Annex115, Vol.3.
67 See,para.3.34,above.1891 Convention,to delimit their respective possessionsin Borneo by a line following the
parallel4" 10'N latitudeand extendingto seabeyondthe islandof ~ebatik~~.
3.64 During the same period, in the northernmostregion of Borneo, further agreements
were being negotiatedand entered into toestablishcornrnonboundaries,notably between the
U.S. colonyofthe PhilippinesandBritishNorth Borneo.
3.65 Following its defeat in the Spanish-American War, Spain ceded the Philippine
Archipelago tothe United Statesthrough theTreatyof Peace signedin Paris on 10December
1898. Inrelevant part, ArticleIIIofthe Treatydefinedthe Philippineislandsas follows:
"ARTICLEIII
Spain cedes to the United States the archipelago known as the
Philippine Islands, and comprehendingthe islands lying within the
followingline:
A linerunningfiom westto east alongor nearthe twentiethparallel of
north latitude, and through the middle of the navigable channel of
Bachi,fiom the one hundredandeighteenth(118") to the one hundred
and twenty seventh (127") degree meridian of longitude east of
Greenwich, thence along the one hundredand twenty seventh (127")
degree meridianof longitude eastof Greenwichto the parallel of four
degreesand forty five minutes(4" 45')north latitude,thence alongthe
parallelof four degreesandfortyfiveminutes(4"45')north latitudeto
its intersection with the meridian of longitude one hundred and
nineteendegreesandthirty five minutes (119"35')east of Greenwich,
thence along the meridian of longitude one hundred andnineteen
degrees and thirty five minutes (119" 35')east of Greenwich to the
parallel of latitude seven degrees and forty minutes (7" 40') north,
thence dong the parallel of latitude seven degrees and forty minutes
(7" 40')north to its intersection with the one hundred and sixteenth
(116") degree meridian of longitude east of Greenwich,thence by a
directlineto theintersectionof the tenth(1") degree parallelof north
latitude with the one hundred and eighteenth (118") degree meridian
of longitudeeastof Greenwich, andthence alongthe one hundred and
eighteenth(118") degree meridian of longitudeeast of Greenwichto
the point ofeginningN6'.
68
69 Seeparas.3.58-3.6above.
Annex 93,Vol.3.3.66 Map 7.2 facingpage 140illustratesthe extent of the Philippine Islandsaccording to
the geographicdefinitioncontainedin ArticleIIIofthe 1898Treaty.
3.67 On 7 November 1900, the United States entered into a further Treaty with Spainfor
the cession of al1remaining Philippineislands lying outside the boundary line set out in
Article III of the 1898Treaty. The relevant portionof the 1900Treaty containedonly one
substantiveprovision,which readas follows:
"SOLEARTICLE
Spain relinquishes to the United States al1title and claim of title,
which shemayhavehad at the time of the conclusionof the Treatyof
Peace of Paris, to any and al1 islands belonging to the Philippine
Archipelago, lying outside the lines described in Article III of that
Treaty and particularlyto the islands of Cagayan Sulu andSibutuand
their dependencies, and agrees that al1 such islands shall be
comprehendedin the cessionof the Archipelagoas fully as if they had
beenexpresslyincluded within those linesW7O.
3.68 On 22 April 1903, the Sultan of Sulu entered into a"Confirmationof Cession" with
the BNBCin whichhe specifiedthe namesof a nurnberof islands -but not includingSipadan
or Ligitan- arguablylyingmorethanthreemarine leaguesfiom the coast whichwere deemed
to be includedin the original cession madeto Dent and Overbeckin 1878~'.The relevanceof
this agreementis discussedin ChapterVI1atparas 7.15-7.16.
3.69 The conclusion of this agreement prompted concem in U.S. quarters, since it
concernedislands which, by virtue of their being situatedbeyond three marine leaguesfrom
the coast,could potentially havebeen consideredto be U.S. possessions. Thisled to a visit to
the area of a U.S.navy vessel,the Quiros a,dto subsequentdiscussionsbetweenthe United
Statesand Great Britainregardingthe extentof theirpossessionsinthearea72.
70
71 Annex 94, Vol. 3.
72 Annex 99, Vol. 3.
Thesemattersarediscussemer inChapter VII. 3.70 The matter was ultimately resolved on 2 January 1930 with the conclusion of a
convention betweenthe United Statesand GreatBritainsettingoutthe boundary line separating
the islandsbelonging tothe United States from thosebelonging toBritishNorthBorneo.A map
depictingthe boundary line agreedin the 1930Convention appearsas Map 7.3facingpage 146.
The Convention was supplementedby an exchangeof notes73. Pursuantto the supplementary
exchange of notes, sovereignty overthe islands known as the Turtle islands and Mangsee
islands was transferredto the United States, while it was agreed that Great Britain should
continue toadminister theseislandsuntilthe United States gavenoticeto the contrary.
3.71 It shouldbe notedthat, on 1June 191 7,the StateofNorth Borneo, which,as it will be
recalled was at the time administeredby the BNBC, issued a Turtle PreservationOrdinance
regardingthe control of the collectionof turtle eggs withinthe State or its territorialrs74.
Accordingto the Ordinance,no person could searchor collect such turtle eggs unlesshe had
obtained a licence. Significantly, Section of the Ordinancespecificallyexcludedfrom this
licensing régimeareas deemed tobe "native reserves",i.e., areas within which the collection
of turtleeggs was reservedto natives only. Schedule C attachedto the Ordinancelisted Pulau
Sipadan as one of the "native reserves". Assuch, the island of Sipadan was not deemed as
falling within the territorywhich was considered tobe part of the State of North Borneo for
purposesof this Ordinance.
B. Dutch Activitiesin the Area:TheHNLMS Lynx
3.72 In the meantime, TheNetherlandshad also been active in asserting its sovereigntyin
the area. In 1921, the Dutch vesse1HNLMS Lynx and an accompanyingaircraft went on
varioustrips to patrolthe area for pirates offthe islandsofLigitanand Sipadan. In particular,
the Ship Commander reported thaton 26 November 1921,the Lynx sent an armed sloop to
Sipadan for informationabout pirate activitiesand then continued its tour of the area. The
73
74 Annex 126,Vol. 4; for a more detaileddiscussionof the Convention,7.52-7.5below.
Annex 119,Vol.4.Commander's reportstated, "there were some turtle fishermenon the island [Sipadan] ...
[who] ...had not seena piratefleet,andwhocouldnotprovideanyinf~rmation"~~.
3.73 The Lynx continued its search for the pirate fleet up to a distance of three nautical
miles fromSi Arnil,sincethis islandlaynorth of the 4" 10'N latitude and thus fell underthe
BNBC'sjurisdiction pursuantto the 1891 Convention. The British authoritieswere promptly
warnedthat a pirate fleetmayhavebeenabout to approachSi Amil. The Commander'sreport
reproduced the cablegram sent to the Resident of Banjermasin, "English authorities will be
warnedwithout delay"76.The Dutch Resident replied,"ifpirates outside Ourterritoryand no
threat tothe settlementsexpected,no furthermeasures fromLynxneeded"77.
3.74 The activities of the Lynx show that a certain amount of collaboration took place
between Dutch andBritish authoritiesin policingpiracyin the area. No protestwas raisedby
the BritishGovernrnentconcerningthese activities;indeed,no protestwas required,sinceThe
Netherlands did not encroachupontheterritoryof BritishNorth Borneo.
Section6. Events Leadingupto and Following theIndependenceofIndonesia
and Malaysia
A. Indonesia
3.75 Prior to 1946,the island of Borneo was dividedinto five separatepolitical units, one
being part of the Netherlands EastIndies and the others forming part of the British Empire.
The north-eastern partof the island constitutedthe Protected State of BritishNorth Borneo;
along the north-west coast of Borneo wasthe British ProtectedState of Sarawak,ruled by a
rajah of British nationality; alongthe coast to the north-east of Sarawak were the British
Protected State of Brunei andthe colonyof Labuan. The remainderof the island of Bomeo
constitutedpart of the NetherlandsEastIndies.
75
See, extract ffom a letter ffom the Commanding Officer of HNLMS Lynx dated 4 January 1922,
76 reproduced inAnnex 120,Vol. 4.
77 Ibid.
Ibid.3.76 In early 1942, after the outbreak of war in the Pacific, the Japanese took over the
administrationof the territory which had formed part ofthe Netherlands East Indies. The
Japanese military occupation ended in August 1945, and Indonesia proclaimed its
independence on 15 August 1945. The 1945 and 1949 Constitutionsof the Republic of
Indonesiadid not contain any detailed geographicaldescriptions of Indonesian territoryand
opted for a formulawhichsimply referredto the formerDutch colonyofthe EastIndies.
3.77 The federal Constitutionof Indonesia issuedin 1949was replacedon 17 August 1950
by an Interim UnitaryConstitution which established a unitary State and assigned aprimary
roleto the Presidentofthe Republic. ArticleIIof the 1950Constitution defined the territorial
extent of Indonesia as follows:"[tlhe Republicof Indonesia comprises the whole territoryof
Indonesia". Again,no specificgeographicaldescriptionwasmade in this document.
3.78 On 5 July 1959, the ConstituentAssembly wasdissolved and the 1945 Constitution
restored by Presidential decree. This Constitution is still in force today7! No fùrther
geographicalspecificationswere added inthis document.
B. Malaysia
3.79 The State of North Bomeobecamea Britishcolonyin 1946. Map No. 10in the Map
Atlas illustrates the divisionsof the colony of North Bomeo as of 1953. Interestingly, the
boundarybetween the districtsofDarvelBayand Tawaudoesnot extend southofthe 4" 10'N
latitude.
3.80 Malaya wasoccupiedby the Japanesefrom 1941until Japan's defeatin August 1945.
In September 1945, the Britishsuggested that al1the Malay states and the settlementsof
Penangand Melakabejoined in aMalayan Unionadministeredby a British Govemor. Malay
opposition led to the replacement of this British plan with a Federation of Malaya, which
maintainedthe sovereigntyof each Malaystate. The Federation ofMalaya was inaugurated
78
"Indonesia,Historyof', EncyclopaediaBritannica ,994-1999.on 1February 1948,but it was not until 1957,afteryearsof unrest,that Britainopted to grant
Malaya independen~e~~.
3.81 The transferof North Borneofiom the UnitedKingdomto the Federationof Malaysia
was effected throughthe Malaysia Agreementof 9 July 1963. Thisjoined the two British
colonies of Sarawak and North Borneo (nowSabah) and the State of Singaporeinto a
federationwithMalayato formtheFederationof Malaysiago.Article 1stated:"theColoniesof
North Borneoand Sarawakand the States of Singapore shallbe federatedwith the existing
States of the Federation of Malaya as the States of Sabah, Sarawak and Singaporein
accordance withthe constitutionalinstruments annexedto this Agreement andthe Federation
shall thereafterbe called 'Malaysia"'.
3.82 The 1963Agreement providedno descriptionof the territory whichhad been included
in the Malaysian Federationas the State of Sabah. TheConstitution of the State ofSabah,
attached tothe Malaysia Agreement,also provided scantdetail as to the extent of Sabah's
territory. Article1referred to the territory of Sabah as being the territory constituting the
regionof Sabah prior to Malaysian independenceL ,e.,before 16September 1963.
3.83 However,MapNo. 12in the Map Atlasmaybe of assistance in showingthe limitsof
Sabah'sterritoryat the time ofindependence. Thismap was preparedby Sabah'sDepartment
of Lands and Surveysin 1964, shortly after independence and printed by the Malaysian
Directorate of National Mappingin 1966. Significantly,the map shows the 1891 line
extending across the island ofSebatikand out to sea, thus leaving the islands ofLigitanand
Sipadanoutsidethe boundaryof Sabah andwithin Indonesianjurisdiction. This map, along
with othersproducedbyMalaysia,is discussedin furtherdetailin ChapterVI.
79
80 See,Kaur,A. andMetcalf,I., TheShapingof Malaysia,MacmillanPress,1999,100-105.
Ibid., pp. 9918. See, also, Tarling,N., A Concise History of Malaysia, FrederickA. Praeger
Publishers,1966,pp.87-295. The Stateof Bruneichosenot tojoin the federation,while Singapore
lefiion19 August1965. C. Indonesia-Malaysia1969Discussions
3.84 As will be discussed in Chapter VIII, discussions relatingto maritime boundariesin
the Malacca Strait, the South China Sea,and off the eastern partof Kalimantan were held
between the Governrnents of Indonesia and Malaysia in 1969. These culminated in the
signature of a delimitation agreement on 27 October 1969 with respect to the Strait of
Malaccaandthe SouthChinaSea. Unableto reachan agreementoffthe coastof Kalimantan,
the Parties decided to implementa status quo agreement with respect to the status of the
disputedislands. CHAPTER IV
THEPRE-1891 SITUATION
Section1. Introduction
4.1 The present States of Indonesia and Malaysia, as well as important parts of the
Philippines, are the distant successors of Moslem Sultans established in the region by the
14~century. Therefore, whenthe Europeans arrived and beganto colonise both the Malay
peninsula andthe Indonesian and Philippineislands - the Portuguesefirst (duringthe firsthalf
of the 16thcentury),rapidly followedby the Dutch and the Spaniards,then by the British -
these territories could,by no means, be definedas terrae nullius. As the International Court
ofJusticeputs it:
"Whatever differencesof opinion theremay have been among jurists,
the State practice of the relevant period indicates that territories
inhabited by tribes or peoples having a social and political
organizationwerenot regardedas terraenullius"'.
As elsewhereinAsia (aswellas inAfricaorArnerica):
"in the case of such territories the acquisitionof sovereigntywas not
generally consideredas effected unilaterallythrough 'occupation' of
terra nulliusby originaltitle but throughagreements concludedwith
localruler~"~.
This is precisely what happenedintherelevantregion.
1
WesternSahara,Advisory Opinion,I.C.J.Reports 1975,p. 12, at p. 39, para. 80. Here, the Courtwas
speaking of the period when Western Sahara was colonisedby Spain, i.e., the second p19~ of the
century; however, this can be transposed to this more remoteperiod, at least concerning this part of
2 Asia.
Ibid.4.2 As has been explainedin Chapter III, Great Britain'stitle over North Borneo derived
partly from the Sultan of Brunei and partly from the Sultan of sulu3. The purpose of the
presentchapter is to show that, for its part, The Netherlandsacquired its part of the island of
Borneo, now Kalimantan, from local rulers,in particular from the Sultan of Boeloengan
(Section3). In orderto makethis clearer, Indonesia willfirst describethe conceptof territory
as it was perceived by local rulers before the arriva1of the European powersin the region
(Section2).
Section 2. TheLegal NotionofTerritoryasHistorically Perceived byLocal
Rulers and Its Consequences ats otheCessionsof Territories
4.3 Inthe presentSection,Indonesia undertakesto describethe local Sultans'perceptionof
their legallinks to territory. Given the scarcityof documents fromthe pre-colonialperiod or
even fromthe colonial period itself expressly referringto Pulau Ligitan and PulauSipadan,
one can only be guided by inference when addressingthe question of whether, given the
nature of the two islands, the local rulers who controlled the neighbouring territories,
considered theseislandsas appertainingtothem.
4.4 Indiscussingthenotionof ownership,the generalnotion of territorialtitle accordingto
the local rulers will be taken into account - a notion which differs considerably from that
existing in contemporary international law -in a way similarto that followedby the Tribunal
in the first stageof theEritrealYemenkbitration4.
4.5 In the light of this caveat, Indonesia willbrieflyexamine the nature of the ties which
unitedthe Sultans of the regionto their territorial possessions. In particular,this Chapter will
consider the ties between the Sultan of Sulu, given that Malaysiaclaims to be its distant
successor, and the Sultan of Boeloengan, whose territory was incorporated into The
3 See,paras. 3.26-3.28, above.
4 EritreaIYemenArbitration, Award of the Arbitral Tribunal in the First Stage of the Proceedings,
9 October 1998,p. 34, para. 120. See, also, p. 37, paras. 130-131;p. 40, para. 143, and pp. 139-140,
para. 525.Netherlands'possessionsbefore becoming partof Indonesia, andtheir respectiveterritories. It
will then illustrate the consequences of this cornrnonperception of territorial authority in
relationto cessionsmadeto colonial powers.
A. The Legal Notionof Territoryin the Region before the
Colonial Period
4.6 As far as the Governrnent of Indonesia is aware, there exists no contemporary
document of local origins describingin a systematicway the legal ties that existed between
the Sultanswhohad authorityinthe region,andin particular overcertainparts of the islandof
Borneo,and their territories. It is thereforenecessaryto base areview of the situationon the
lateranalysesofhistoriansoranthropologists specialisedinthis part of the world.
4.7 According to the Western notion of Statehood, which has progressively taken hold
since the end of the Middle Ages and which has become an essential principle in
contemporary public international law, territoryconstitutes a "constituent element" of
Statehood. Consequently, withinthe boundarieswhich demarcate aState,the Stateenjoysfull
and exclusive territorial authority; respect for this territorial sovereignty has become an
essentialfoundationofinternational relations5.
4.8 However generalisedthis notionof Statehood hasbecomein modem times, thenotion
of a State'sties with its territoryis not inherentin al1political organisations. In Europe,this
concept only established itself progressively withthe advent of the modern State, as it is
understood today, andit was not generally adopted elsewhere untilmuch later. As the Court
noted in the WesternSaharacase, "legalties are normallyestablished in relationto people"6.
In non-European societies, inter-persona1ties were often stronger than the relationship
between rulers and their territory. This has been recently acknowledgedby the Award of
9 October 1998of the ArbitralTribunalconstituted betweenEritreaand Yemen, accordingto
which "classical Islamic law concepts ... practically ignored the principle of 'territorial
5
Island of Palmas case, P.C.A. Award of 4 April 1928, UNRiAA,Vol. II,839. See, also, Corfu
6 Channel,Merits,Judgmen-I.C.J.Reports1949,p. 4, atp35.
WesternSahara,AdvisoryOpinion,I.C.J.Reports1975,p.12,atp.41, para85.sovereigntylas it developed amongthe European powers and became a basicfeature of 19~
centurywestern internationallawM7.
4.9 Thuswas the situationin the Indonesian, Philippine and Malaysianareas underreview
prior tothe arriva1of the European powers . The politicalorganisationmight have differedin
detail,but the relationshipbetween political power and territorywas essentiallythe sarne,the
Islamic concept of power having never completely ousted local traditions. As one
cornmentatorhas stated, "[a] great deal of pre-Islamic institutions persisted alongside with
Islamicones, and it was preciselythese pre-Islamicelementsthatpreventedor obstructed the
full implementationof those prerogativesand powers normally associated withthe sultanate
inthe more orthodoxcentresof~slam"~.
4.10 Political power was wieldedby the Sultans(or Rajahs), and was characterisednot by
"sovereignty"in the usual sense of the word accordingto contemporaryinternationallaw, but
by the conceptof negeri, fromthe sanskritnegara, whichincludesbut surpassesthe notion of
city and designatesthe special relationship betweenthe Sultanand his kingdom9. The negeri
is characterisedbythe effectivepresence of the Sultan.
4.11 In every case, there was an important religious element included in the notion of
power. The Sultan was characterisedby his daulat, the "white blood"which ran throughhis
veins, and acted as intermediarybetween men andgod or variousdivinities (the Sultanof Sulu
proclaimed himself tobe a descendentof the Prophet Mohamed,the Sultans of Melaka and
Johore claimed to be descended fromthe mythical foundingfather of Palembang, Sri Tri
Buana).
7 EritreamemenArbitration,Awardof the Arbitral Tribunailn the First Stage of the Proceedin9s,
October1998,p. 37,para.130.
8 Cesar,A.M., "Politicaland HistoricalNotes on the Old SuluSultanate",Journal of theMalaysian
Branchof theRoyalAsiatic Socieîy,VolumeXKWIII, Singapore,1965, p. 27 ;see, also,TarlingN.,
Suluand Sabah - A Studyof BritishPolicy TowarlisthePhilippines and North Bornefoiom theLate
EighteenthCentury,O.U.P.,KualaLumpur,1978,p.2.
9 See,Gonda,J.,Sanskrit inIndonesia,Internatiol cademyof IndianCulture,Nagpur,1952,p.629.4.12 In every case, the territorial system was characterisedby a "local groupidentification
based not upon boundaries but ratherupon the vague spacewhich surroundsa center point",
where the Sultan resides, and described by Dr. Thomas Kieferas the distinctive trait of a
"segmentarystatedo. As emphasisedby Prof. Clifford Sather,in his analysisof this "shading
off ofjurisdictional control" in the context of relations betweenSulu and the nomadic sea
tribe of the Bajau Laut, "[aluthoritywas strongonly atthe center and diminished rapidlyas
one moved outward"". "Strictly speaking,the sultanate of Sulu was a multi-ethnic group
statewhichdidnot haveanyrecognisedboundaries"12.
4.13 Mutatis mutandis, this holds true for al1 other kingdoms in the region and, as
recognised by Dr. N. Tarling, "[iln North Bomeo, a somewhat similar situation apparently
prevailed, modifiedby the peculiar featuresof the territory andof its demographic pattern"13.
In Brunei,the rivers representedthe only means of penetration andcontrol and "the Bruneis
viewedtheir Bomean dominionsas a collectionof rivers andpeoples, the two frequently [but
not always] coinciding"14.
4.14 According to a pre-eminent scholarin traditional social andpolitical structures of the
Sultanate of Brunei: "[blefore the European partitioning of 19" century Brunei its precise
boundaries, especiallyin the interior, were unknown. Indeed, it is most unlikely that the
Bruneis possessed much knowledge of or worried much about their interior boundaries.. .
What mattered to the Bruneis was the control of rivers and the people living near them.
Where the rivers ended, and where the people faded off in the (to the Bruneis) forbidding
jungle interior, there any direct Brunei control ended ...In sum, no sharp geographical
boundariesof Bruneicontrol can be drawnfor the interior. In the absenceof adequatedata it
10 See, Kiefer,T.M., "The Sultanatof Sulu:Problemsin theAnalysisof a SegmentaryState",Borneo
ResearchBulletin,Vol.3,No. 2,December1971,p.47.
11 See, Sather,C., "Sulu'sPoliticalJurisdioverthe BajauLaut",ibid., pp.58-59.
12 Kiefer,quotedinTarling,op. cit., ath. 8, p. 5;thisapproachis alsoendorsedby Sather,C., TheBajau
Laut: Adaptation, History and Fate in a Maritime Fishing Sociev of South-Eastern Sabah, OUP,
13 KualaLumpur,1997,p.38.
14 Tarling,op. cit., ath. 8,p. 5.
Brown,D.E., "TheSocial Structureof NineteenthCenturyBrunei",The Brunei MuseumJournal,
Vol. 1,No. 1,Brunei,1969,p. 172;see, also,Tarling,op. cit., ath. 8, p.4, whodescribesthe Sultanate
ofBrunei,by thelate 18thcenturyas"a congeriesofrivers".can only be surmised that Brunei control diminishedas a function of distance from the
watenvays controlled by ~runei"''. "[Tlhe state, as Kiefer has pointed out, was definedby
referenceto its center,not its geographicalboundaries"16.
4.15 In sucha system, which hasbeen describedas "feudal"in nature,the (personal)ties of
allegiance were greatly significant and eclipsed notions of territorial possessions'7. The
"grantsof territory"by the Sultanwere of a persona1nature andtheir beneficiariesenjoyed a
measure of freedom which increasedthe further the distance was from the centre18. As N.
Tarling notes in connection with the prevailing situation in North Borneo, "to talk of
acquisitionand ofterritorial controlisperhapsto Europeanise whatoc~urred"'~.
4.16 It was evensometimesthe case thattenitory was claimedby two sultanatesorby none
at all. Thisis the situationdescribedby D.E. Brown with regardto the north of Borneoat the
end of the 19~c ~entury: "The Sultanateof Sulu, onetime vassal of Brunei ...claimed almost
the whole of what wasto becomethe modern state of Sabah. So did Brunei. To simpliQ a
complex state of affairs, Suluwas more or less in control fromthe tip of northernBorneoto
the east. Brunei was moreor less in control to the west of the tip. In some places local
authorities recognizing an overlordship of either Sulu or Brunei interdigitated. Some local
authoritiesperhaps recognized bothoverlordsas the situationdemanded fromtime to time, or
perhaps assertedtheir own autonomy and recognized neithero~erlord"~~. N. Tarling makes
the same point: "the acquisition of the Bomeo territorieshad given Sulu somethingBrunei
stillregardedsubstantiallyas its ownlt21.
l5 Brown D.E., Brunei: The Structure and Histoty of a Bornean Malay Sultanate, Star Press, Brunei,
1970,pp. 76-77.
l6 Sather,op. cit.,h.t11,p. 58; see, also,Ricklefs,M.C.,AHistory ofModernIndonesi:c.1300to the
Present, Basingstoke, Macmillan, 1,pp. 14,etseq.
17 See, Cheah Boon Kheng, "Feudalismin Pre-Colonial Malaya:The Past as a Colonial Discourse", 25
JSEAS1994,p. 2. See, also, e.g., Andaya,B.W. andL.Y.,AHistory ofMalaysia, Macmillan, London,
l8 1982,pp. 44, etseq.
See, Zainal Abidin bin Abdul Wahid, "Power and Authorityin the Melaka Sulta-aThe Traditional
View" in Sandhu,K.S., and WeatleyP., (eds.)Melak- TheTransformationof a Malay Capital, 1400-
l9 1980,ISEASIOUP,1983,p. 106.
Tarling,op. cit.,h.8, p. 4.
Brown,op. cit., h. 15,pp. 76-77(footnotes'omitted).
21 Tarling,op. cit.,at h.p.4.4.17 This situationrecalls the descriptiongiven by the Court regardingthe legal ties that
existed between Western Saharaand the Kingdom of Morocco at the time of Spanish
colonisation:
"Not infrequentlyonetribehad ties with another,either of dependence
or of alliance,whichwere essentially tribalrather than territorial, ties
of allegianceorvassalage".
" That the Sherifian State at the time of the Spanish colonization of
Western Saharawas a Stateof a special characteris certain. Its special
character consistedin the fact that it was founded on the common
religious bond of Islam existing among the peoples and on the
allegiance of various tribes to the Sultan, through their caids or
sheikhs,rather than onthenotionofterritory "22.
Following fromthis, the Court noted:
"In consequence, the legal régimeof Western Sahara, including its
legal relations with neighbouring territories, cannot properly be
appreciated without reference to these special char acte ris tic^"^^.
4.18 The sameis true of the presentsituationwhereit is impossiblesimplyto transpose the
conceptof territory according to modern international lawb ,e that with regardto rulesusedto
define boundaries - which were veryunclear betweenthe sultanates of the region -or to the
acquisition and cession of territorial possessions. This is particularly true regarding
uninhabited islands. As the Eritredemen Arbitration stated in a different but comparable
context :
"there is the problem of the sheer anachronism of attempting to
attribute to such a ... society the modern Western concept of a
sovereigntytitle, particularly with respectto uninhabited and barren
islandsusedonlyoccasionallyby local,traditionalfi~hermen"~~
22
(Emphasis added).See, also, pp. 57 and64 regardingthe legal ties existingbetweenWesternSahara95.
23 andthe"Mauritanianentity".
24 Ibid.,atp.41, para.87.
See, EritreaIYemenArbitratio, wardof the Arbitrl ribunalinthe FirstStageof the Proceedings,9
October1998,p. 118,para.446.4.19 This must also be kept in mind whenanalysing theterritorial cessionsmade by local
rulersto colonialpowers.
B. The UncertainExtentof the Cessionsbythe Local Rulers to
the ColonialPowers
4.20 The situationin existenceatthe timeof colonisationcanbe surnmarisedas follows:
-The local Sultansheldpower over territorythat wasnot clearlydelimited;
-Their authority wasal1the more uncertain the further the distance was
fromthe centrewhere theywereestablished;
-Their authority expressed itself throughterritorial administrators,linked to
the Sultanthroughties ofpersona1allegiance;
-It was not unusual forthese ties to overlap and forthe sameterritoryto be
claimed by various local rulers, who could probably contemporaneously
invokeanequallyjustifiabletitle overthe sarneland.
4.2 1 Not onlyarethesecharacteristics reflectedin the methodsof acquisitionandcessionof
territory betweenthe local Sultansbefore col~nisation~~ t,hey also explainthe peculiarities of
the cessions granted by the Sultans to the colonial powers in the region, Spain, The
Netherlandsor Great Britain, as well as the difficultiesthat these powers encounteredwhen
theydecided todefinethe boundariesoftheirrespectivepossessions.
4.22 Such was the case, in particular, during the colonialdivision of Borneo. A study of
documentscontemporaryto the period of colonisationby The Netherlands and Great Britain,
and, notably, a study of the treaties entered into by these powers and the local rulers,
2s See, par4.16,above.demonstratesthe uncertainty overthe exact scope of the cessions granted to the colonial
powers. MapNo. 4.1 shows the state of European settlements in North Bomeo in the 18"
centd6.
4.23 Whereas the Dutch had been settledin the southem part of the island since the 1~~
century, " [tlheEuropeanpartitioningof Bruneibeganin 1841 whenJames Brooke acquired a
govemorship in the district of Sarawak ...In generalterms the process can be said to have
begun (both in the south and the north) by Europeans acquiring something less than
'sovereign'rights to districtsthat were more or less remotefiom the capital,were recalcitrant
and were poorlycontrolledby Brunei. With that startthe Europeans steadilyacquiredmore
districts...In the North Bomeo Company's caseit was more amatter of absorbingthe non-
contiguous districts which had not been leased and which interdigitated with those that
had "27.
4.24 Nevertheless, the European powerswere careful to define the nature of their rights
overthe territoriesceded andthe exact limitsofthe sarne,in accordance withthe principlesof
"European public law", which were applied inter se in relations between the powers
themselves.
4.25 To this end, they reliedon the favoured legalinstrument of these relations, the treaty,
which the Portuguese had introduced to South-East Asia in the 16" century and which
constituted The Netherlands' favoured instrument in their acquisition of the Indonesian
archipelago,including~orneo~! In contrast, the Britishonlybeganto make useof treaties at
the end ofthe 1 8" century.
-
26 This map is containedin Pluvier,J.M.,(ed.), Historical Atlas of South-EastAsia, Brill Publishers,
Leiden,1995(Map 30).
27 Brown,op. cit., ath. 15,p.77.
28 See, Andaya,L., The Kingdom of Johor 1641-1728- Economic and Political DevelopmentsOUP,
KualaLumpur,1975, p.56.4.26 At the sarne time, the Europeans transposed tothis part of the world their own
concepts of territorial possessions. During this process, they encountered gravedifficulties,
not onlyin their relationswith the local rulers,but also, and by extension, in the definitionof
the extentof the territoriesbelonging to them giventhe lack of a common notionof territorial
possessionsbetween themandthe Sultansin the regionfrom whomtheir legal titleoriginated.
The differing starting points of the Dutch and British negotiatorsof the 1891 Convention
bearswitnessto this impediment.
4.27 The background to this Convention, which isof crucial importance in the current
dispute,is discussedin detailin ChapterV. Sufficeto note,at this point, that thebackground
to the Convention confirms the uncertain extent of pre-colonial territorial titles described
above.
4.28 In the first place, it is clear that the Sultans did not always intend to abdicate their
"sovereignty"(if the word can be used insuch a context)in favour of the colonialists. Thus,
the Britishmanuscriptnotesmade inpreparation forthe DraftAgreementfor the Anglo-Dutch
Joint Commissionestablishedin order to resolvethe boundary question emphasise "that the
territory cededto Mr. Dent by the Sultans of Brunei and Sulu was to be governed by the
Company underthe Suzeraintyof the Sultansto whoman annual sumwas ~ecured"~~ t,ereby
confinningthat this "cession" only transferred arightto administerand did not imply,at least
at the time, full territorialsovereigntybythe Dent andOverbeck company.
4.29 These notes also attest to the existenceof two concurrent pre-colonialtitles over the
territory "ceded"to the company,sincethis "cession"is attributedto both the SultanofBrunei
andthe Sultanof Sulu. Thesamemanuscriptnotescomebackto this point lateron:
"Not onlydid the Sultanof Sulu, beforethe grantswere made, claim
the territory as belonging tohim 'as far South as the Sibuco River',
but the Sultan of Brunei claimedthis territory also, and the British
29 Annex 56,Vol.2,atp. 117. North Borneo Company now pay annually $ 5000 to the former
Sultan, and$2000 to the latterforthe territorythen ceded.. .113.
4.30 Indeed,it is on the basis ofthese concurrent claimsof the Sultans of Brunei and Sulu
that one of the Dutch negotiatorsin the Joint Commission, Mr. Gysberts, contested Britain's
territorialclaim:
"...and he added as aproof of how little reliance couldbe placed on
the claims of native Chiefs, thatthe Sibuco had been ceded to the
North Bomeo Companyby the Sultans both of Brunei and Sulu, as
evidencedbythe Concessions "31.
4.31 This is not an isolated incident,as is clearfromthe letterof 22 May 1849from Mr.A.
von Dewall,the Dutch Civil Commanderof Koetei on the east coast of Bomeo, to the Dutch
Resident of the south and east coast of Borneo. Mr. Von Dewall, in recounting his
conversationswiththe SultansofBerouand Boeloengan,states:
"Both parties declare therein to be the legal Sovereigns of Tidoeng.
Boeloengan deniesalso everto havebeen dependentof Berou,which,
onthe contrary,the latter assureto have beenthe case";
although heconcludesphilosophically:
" It was indifferent tome in the presentcasewho of the two was right,
as my only objectwasto provebeyondthe possibilityof contradiction,
by an authenticdocument,that Tidoeng is aNetherlandpossession"32.
4.32 Giventhese comrnents,it is perhaps notan exaggerationto concludewiththe assertion
of one of the British drafters of the manuscriptnotes, referred to at para. 4.28, above, who
stated:
30 Annex56,Vol.2, pp. 125-126.
31 Proceedingsof the JointCommissionappointedby theBritishand NetherlandsGovemmentsfor
consideringtheQuestionof theBoundarybetweentheNetherlandsIndianPossessionsonthe Islandof
Bomeo and the Territory belonging to the British North Bomeo Company, Second Meeting,
32 19July1889,p.6,Annex58, Vol. 3.
This letteris integrally quoin the Proceedingsof the FirstMeeting of the JointCommission,
16 July1889,p.9,Annex57, Vol.3. - 48 -
"Nativerulers reallyknownothingof Boundary m in es"^^
and:
"The Sultan [of Sulu]himself definedhis territoryas extending to the
River Sibuco, and this seems to establish his claim at least as clearly
as any similar statement thatmay have beenmade by the Boeloengan
4.33 This ignorance,which may seem strangefiom a European State's perspectivewhere
the territorialfoundationsof a Stateare clearlyestablished,isnot so in realityin the contextof
the perceptionthat these native rulers had about their territory at that time. At anyrate, the
local rulers did notcare as much as the Europeans aboutthe precise extemal limits of their
possessions. As Sir J. Brooke noted as early as 1849(as a matter of fact, in order to oppose
the Dutch presencein Borneo):
"The geographyof Bomeo is so imperfect, andthe boundary-linesof
petty States so irregular,so vague, and of so little consequenceto the
nativeRulers... .35
4.34 Years later, the author of the British manuscript notesrelies on this opinion when he
writes:
"No Boundary Agreementhas ever been entered into behveen the
Sultans of Sulu, Bruneior Boelongan, and Sir J. Brooke pointed out
on the3rd October 1849 that the Sovereigntyof Borneo was imperfect,
the Boundary lines of petty states irregular and vague andof little
consequenceto thenative ~u1er.s"~~.
33 Annex 56,Vol.2, atp. 118.
34 Ibid.,atp.130.
35 Memorandum on the Dutch Frontier on the North-eat oast of Borneo, by Sir E. Hertslet,dated
20 June1882,p. 2, Annex28, Vol. 2.
36 Annex56,Vol. 2, atp. 122.4.35 Thus,one canhardly disagree withthe statement containedin the 1879Foreign Office
confidentialMemorandumon the Political,Strategical,and Commercial Advantagesto Great
Britain of the Northern Partof Borneo;as well as on the Rightof Holland, under the Treaty
of 1824,to oppose the Occupationof anyportion that Territoryby GreatBritain, accordingto
which:
"The territories in Borneo in the actual occupation of the Dutch, the
Sultanof Brunei,andthe SultanofSulu,arenot clearlydefir~ed"~~.
4.36 As was notedin theMemorandum respecting Cessions to Messrs. Dent and Overbeck
by Sultansof Brunei andSulu of Territories on the North-EastCoast of Borneo,andposition
ofHer Majesty S Governmentinregardtosuch Cessions,of 6 October1879:
"The question of the Sulu territoryin Borneo is a very complicated
one. The limitsoftheterritory areveryuncertain,andthe exactnature
of theauthorityexercised overit bythe Sultanof Suluis equallyso"".
4.37 This is also confirmedby the deliberations forthe gant of the North Borneo Royal
Charter,which revealedthat the boundariesof the tenitory which shouldbe includedin this
Charter as being under the dominion of the Chartered Companywere not clearly defined,
particularly withregardto theDutch claimsonthe south-east~oast~~.
4.38 In these circurnstances,the cessionsgrantedby the local Sultanscan no doubt offer
historical andeven legaljustification for the presence of colonial powers on the island of
Borneo. But this territorialtitlewasnot sufficient to determine, with the necessaryprecision,
the boundarydelimitations. Giventhe specialcharacteristicsof the Sultanatesin the region,
37 Annex21, Vol. 2atp.35.
38 Annex20, Vol. 2atp.291.
39 NotesontheNorthBorneoCharterby SirJ. PauncefotdeatedJanuar1882,p. 21,Annex 24, Vol.2.the ties between the Sultansand their territoryand the indeterminate spatial limits oftheir
authority,the end result was contrary to the plerumquefit, a situation where there was a
disassociationbetweenterritorialtitleand boundarytitle40.
4.39 Afortiori, the comrnentsmade aboveare alsovalid with regardto the islandslyingin
proximityof the mainland. Indeed, giventhe persona1and non-territorial natureof the local
Sultans'authority,the Sultansdid notpay particularattentionto uninhabited islands,and the
first treaties of cession entered into between locarlulers and Europeanpowers attest to some
indifferenceon thepart of the Sultansand their negotiatingpartners towards islandssituated
alongsidethe mainland territory that had beenceded4'. Thus, Article IIof the Treaty of 2
August 1824betweenthe Sultanand Tumungongof Johore, on the one hand, and theEnglish
East IndiaCompany,onthe other, statesinrather vagueterms:
"Their Highnesses ... herebycede in full sovereignty and propertyto
the Honourable the English East India Company, their heirs and
successors for ever, the Island of Singapore, ... together with the
adjacentseas, straits, and islets...14.
4.40 However, sometreatieswere moreprecisein that certain islandswerementioned,or a
certainmaritime area was referred to, includingislandswithin it. Thus, by the 1769 Grant to
the EnglishEast IndiaCompany,the Sultanof Suluceded :
"...al1[his] right andtitle to the northpart of Bomeofiom Kimanison
the west side, in a direct line to Townson Abai on the east side,
thereof, withal1the lands,places, and people,&c.,withinthose limits,
and also al1the islands to thenorthwardof the said island of Borneo,
as Balambangan, Palawan,Banguey,Balabac, Monnach,and al1other
islandsadjoining,as well on the northas east and west sides of those
partsofmy dominion^"^^.
40
41 See,Frontier Dispute, JudgmenI, .J.Reports1986,p.554.
Thereweresome exceptionss,uchasthecessionof theislandof Labuanto the GreatBritain.However,
thisuninhabited island wmuchbiggerthanLigitanor Sipadan,andwas situatedat a strategicplace.
42 See,Leong,C.,Sabah.TheFirst100 Years,Percetakan NanYangMudaSdn.Bhd.,1982,p.26.
Annex6, Vol. 2 (emphasis added).See, also,e.g., the Grantfiom the Sultanof Suluto the English
43 Companyin 1764,p. 210,Annex2, Vol.2.
Annex2, Vol.2.4.41 The sarnecan be said for the ArticleX of the Treaty ofFriendship and Commerceof
27 May 1847,behveen Great Britain and Borneo, whichindicatesthat the Sultan of Borneo
ceded:
"...the Island ofLabuan, situated on the north-west coast of Borneo,
together with the adjacent islets of Kuniman, Little Rusakan, Great
Rusakan, Da-at, and Malankasan, and al1the straits, islets, and seas
situatedhalf-way betweenthe fore-mentionedislets and the mainland
of ~orneo"~~.
4.42 The Dent and Overbeck concessionof 1877indicatesmore preciselythat the Sultanof
Brunei granted:
"...al1the territoriesbelongingto[him]fiom the SularnanRiveron the
north-west coastof Borneo unto the River Pietan on the north-east
coast of the island, containing twenty-oneStates, together with the
Islandof Bangueyand al1the other islands withinthreemarine leagues
of the coast,for their ownexclusiveuses and purposes"45.
4.43 In any event, Ligitan and Sipadanwere both ata greater distance than three marine
leagues (orninenauticalmiles) fiom the coastofBorneo.
4.44 This lack of precisionin determining territorialpossessions in the area wasthe source
of confusion arnong the colonial powers themselves. Thus, on several occasions, the U.S.
Departmentof State declaredits uncertaintyregardingthe ownership of certain islands in the
region:
"thisDepartmentis not possessedof any informationtending to show
whether the islands referred to are within the cession to the United
tat tes"^^;
"thatDepartment[theU.S.WarDepartment]possessesno information
tending to show whether the islands of Banguey, Balambanga and
44 Annex11,Vol. 2, atp217.
45 Despatchfiom ActingConsul-GeneralTreacherto the Earlof Derby, withinclosure,dated2 January
1878,p. 102,Annex16,Vol. 2.
46 Letterfiom U.S. ActingSecretaryof Warto U.S. Secretaryof Statedated15 October1901,Annex95,
Vol. 3. Mallawalliare included in the territory cededto this Governmentby
~~ain"~~.
4.45 These uncertainties explain why the European powers had to conclude treaties
delimitatingboundaries between themselves. Duringthe negotiationsleadingto thesetreaties,
the European powers soughtto gain advantage fromthe local cessionsthey had beengranted.
But, unable to find in the relevant pre-colonial rules any sufficiently clear directives to
determine the boundaries of their possessions,the European powers generally fixed these
boundaries on the basis of a mutually acceptable compromisein keeping with their own
notion of territorialsovereignty. Thisis preciselywhat TheNetherlandsand Great Britaindid
whenthey concludedthe 1891 on vent ion^^.
Section3. ColonialAcquisition byThe Netherlands
4.46 The acquisitionoflarge partsof the islandof Borneoby TheNetherlandsfollowed the
usual scheme of European colonisation of territories in South-East Asia: agreements were
concluded with localrulers (Sub-SectionA), and this equallyapplied to the part of the north-
eastern area of the large island which was ceded to the Dutch by the Sultan of Boeloengan
(Sub-SectionB).
A. RelationsbetweenThe Netherlands and Local Rulers
4.47 Until 1795,in South-EastAsiatheNetherlands EastIndiaCompany (VereenigdeOost-
Indische Compagnie) (the "Company") exercised publicrights under a Charter granted in
1602 to it by the Netherlands United Provinces. Article 35 of the Charter authorised the
Company "to conclude conventions with Princes andPowers" in the name of the States-
Generalof The ~etherlands~'. At first, these conventionsmainly involvedtrade issues, such
47
Letter fiom U.S. Secretaryof State to U.S. Secretaryof the Navy dated 21 October 1901,Annex 96,
48 Vol. 3.
49 See,ChapterV,below.
See, "The Statusof the East-IndiaCompanyConventionswith Native States",Annex 1to the Counter-
Memorandum submittedon 23 April 1926by TheNetherlandsinthe Island of Palmas case, Permanent
Court of Arbitration, p.49, Annex 122,Vol. 4. Onthe historyof the Netherlands EastIndia Company,
see, Drooglever,P.J., "TheNetherlands Colonial Empire:Historical Outline and Some Legal Aspects",
inInternational Lawin theNetherlands,Vol.1,1pp.,104-129, 139-142.as the establishmentof trade monopoliesor the creationof alliances between the Company
and localrulers. Later,they increasingly servedthe purposesof providing recognitionof the
settlementsestablishedbythe Company, ofacceptingthe suzeraintyof the Companyor of the
cessionof al1or part of theirterritories to theCompanybythe local rulers. Theseconventions
constitutedagreementsbetweensubjectsof international law. As notedbythe Court:
"..such agreements withlocalrulers,whetheror not consideredas an
actual 'cession'of the tenitory, were regarded as derivative roots of
title, and not originaltitles obtainedby occupationofterrae nulli~s"~~.
4.48 Once the suzerainty of the Company had been recognised, further conventions or
"Contracts" wereoften concluded specifyingthe degree of autonomy provided tothe local
rulers whose territories now could be regarded as "protected States" or as fiefs of the
~om~an~~'.
4.49 The policyof theNetherlands EastIndiaCompanyas far as the acquisitionof territory
is concerned wasto concludetreatiesof cession52.In exceptionalcases,when there seemedto
be noalternative,particular areaswereconquered and subsequentlyannexed.
4.50 In 1795, the Republic of the Netherlands United Provinces becarne the Batavian
Republic. Under Article 247 of the Constitution of the Batavian Republic, this Republic
succeededtoal1the possessionsofthe EastIndiaCompany,whichwas terminatedin 1799. In
1806,the BatavianRepublicbecamethe Kingdomof Holland. Afteran intervalof annexation
byFrance (181 O),the Kingdomof TheNetherlands was createdin 1813.
4.51 Duringthe FrenchannexationofHolland,the Dutchpossessions in the EastIndieshad
been occupiedby the British. AftertheNapoleonicwar, it was decidedthat these possessions
wouldbe returnedto The~etherlands~~.Specific arrangements forthis purposeweremadein
50
WesternSahara,Advisory OpinioI,.C.J.Reports1975,p. 12,atp.39,para.80.
51 See,Annex1"TheStatusof theEast-IndiaCompanyConventionswithNativeStates"to the Counter-
Memorandumsubmittedby the Netherlandsin the Island of Palmas case, PermanentCourtof
Arbitration, nnex122,Vol.4.
52 See,para.4.25,above.
53 DefinitiveTreatyof Peace and AmitybetweenHis BritannicMajesty andHis MostChristianMajesty
dated30May 18 14, BritiandForeign State PapeVsol1,Part1(1812-1814),pp. 15-170.the Treaty concluded in London between Great Britainand The Netherlands on 13 August
18 14~~.The interpretation of this Treaty 1edto a number of disputes which could not be
resolvedby two subsequentarrangements. Therefore,a new treaty was concluded in London
on 17March 1824".
4.52 After the return of the Dutch possessionsin the East Indies, the Governrnentof the
Netherlands East Indiescontinuedthe practiceof the East India Company. Someparts of the
East Indies were still consideredto be independentStates. The conventionsconcluded with
them, usually forthe purpose of establishing the suzeraintyof The Netherlands,were subject
to the forma1requirements for the conclusionof treaties under the Netherlands Constitution.
The lastoftheseconventionswas concludedinthe secondpartof the 19mcentury.
4.53 The agreementswith the local rulers which were already under the suzerainty of The
Netherlands were referredto as "Political Contracts" (or "Contractsof Vassalage")and could
be concludedby the Governor-General under the provisions of the Governrnent Regulations
fortheNetherlands Indies. Theywere often renewed withcertainchanges,usually concerning
the scopeof the autonomyof the local ruler. Also, eachtime a new ruler succeeded to office,
an act of confirmation ('YAkte van bevestiging")by the Netherlands Indies Government was
required for whichpurpose the new ruler signedan act of allegiance("AAevan verband'?.
TheseContractsand actswere cornrnunicatedto the Netherlands~arliament~~.
4.54 Al1these territorieswere ruledby the local rulers with varying degrees of autonomy.
By the end of the 19' century, approximately halfof the territory of the Netherlands East
Indiesconstituted"self-governingterritories". Therewere over 300 such territories. The rest
ofthe countrywas underdirectrule5'.
54 Convention betweenGreat Britain andtheNetherlands relativeto the Dutch Colonies, Tradewith the
East and Westndies,etc.,dated13August 114,BritishandForeignStatePapers,Vol.2 (1814-1819,
55 pp.370-378.
56 Treaty betweenGreatBritain andTheNetherlanh, signedatLondon,17March1824,Annex5, Vol.2.
On these Contracts,see entry"Contractenmet zelfbesturende landschappen"("Contractswith self-
govemingcountries")in theEncyclopedie van NederlandschIndië ("Encyclopeof theNetherlands
57 Indies"2nded.,Vol.1(1917),pp.525-530.
See,entry"Zelfbesturen(inlandsche)"("Self-government/nati)i,d, Vol.IV(1921),pp.826-831. B. The Acquisitionof the Territoryof BoeloenganbyThe
Netherlands and Its GeographicalExtent
4.55 When the Netherlands EastIndia Companyestablished its first contactswith Borneo
duringthe 17' and 18' centuries,the Sultan of Banjermasin(on the south coast of Borneo)
considered himself as having supreme authority over large partsof southern and eastern
Borneo. To the north,his territory borderedon that of the Sultans ofBrunei and of Sulu. On
the east coast, the territory under the supremacy of Banjermasin includedthe "realm" of
Berou,consistingof three "States": Sambalioeng, Goenoengtaboer and Boeloengan. Thleast-
mentioned state constituted the northeasternmost partof the areas subject to the Sultan of
~anjermasin~~.Map 4.2 illustratesthe territorial divisions in the area during the 1782-1828
period59.
4.56 The first treaties ("Contracts") withthe Sultanof Banjermasin were concludedby the
Company in 1635, 1733, 1747 and 1756. In 1787 the Sultan of Banjermasin cededthe
territory of the three states constituting Berou to the ~om~an~~'. However, in 1797 the
Companycededthe territoriesbackto the Sultan.
58
There exists little literature on the history of Boeloengan. Thispart of the Memorial is based on the
following materialsal1inDutch):
- Eisenberger,Dr. J., Kroniekder Zuider-enOosterafdelingvanBorneo("Chronicle ofthe Southem
and Eastern Divisionof Bomeo"), Banjermasin, 1936.
- "Boeloengan",EncyclopedievanNederlandschIndië,Vol. VII, 1935,pp. 94-97.
- Gallois, J.G.A., "Korteaante Keningen, gehoundengedurende eepe reis Iangs de oostkustvan
Borneo"("Short Notes kept during a journey along the eastem coast of Bomeo"), Bijdragen
Koninklijk,Instituut,Vol. IV (1856),pp. 221-263.
- van Nieuwkuijk, I., "Exploitatie door Nederlanders van de Noord-Oostkust van Borneo"
("Exploitation by Dutchmen of the Northeast coast of Bomeo"), Tijdschrifrvoor Nederlandsch
Indië 1882(II),pp. 121-142, 161-180and401-424.
- In 't Veld, S.G., "Aantekeningeomtrenthet rijk van Borneo"("Notes on the realrn of Bomeo"),
59 De IndischeGids,Vol. 6(1883),pp. 21-27.
This map is contained in Pluvier, J.M., (ed.),Historical Atlasof South-EastAsia, Brill Publishers,
Leiden, 1995 (Map 31). See, also, map entitled "Colonial South-East Asia: Administrative Divisions
60 c.193OW i, the sameAtlas, (Maps48 and49).
Dutch text in Stapel, F.W., (ed.), CorpusDiplomaticumNeerlando-lndicum,Volume VI (1753-1799),
TheHague 1955, pp. 596-614.4.57 Afierthe Britishoccupationof the NetherlandsIndies,a new Contractsupersedingal1
previousones was concluded withthe Sultanof Banjermasinon 3 January 181761. Article 5
ofthis Contractconfinned thecessionto TheNetherlands of,inter alia, "Barrau"(Berou)and
al1 its dependencies. On 13 September 1823, a supplementaryContract was concluded
arnending Article 5 of the contract of 181762. The reference to Berou ("Barouw") and
dependencies remained.
4.58 On 4 May 1826, a new Contractwas concluded to replaceal1previous contractsb3.
Article 4confinned the cessionto TheNetherlandsof Berou("Barouw") anddependencies.
4.59 It appears that sometime during the early yearsof the 19~century, Boeloenganhad
separated fiom ~erou~~. In a Contract of 27 September 1834, the Netherlands Indies
Government transferredthe territory of Berou to the Sultan of Goenoengtaboer in fief.
Boeloenganis not includedin the Contract. Onthe sarneoccasion,on 27 September1834,the
Sultan of Boeloengan forthe first time submitted himselfdirectly to the authority of the
Netherlands Indies ~overnment~~. This indicates that he had, by then, no hierarchical
relationship withthe SultanofGoenoengtaboerandthathis territorywas,at the time,regarded
as completely separatefromBerou.
4.60 Alsoduringthis period theterritoryof Tidoeng(the "Tidoengschelanden'?,consisting
of six districtslocated to the north of Boeloengan proper,became subject to the Sultan of
~oeloen~an~~. That area was henceforth regardedby the Dutch as a dependency of
Boeloengan and partof itsterritory6'.
61
Annex 3, Vol. 2. Pursuantto Article 50, para. 2, of the Rules of Court, a copy of the original Dutch
documenthas been depositedinthe Regisûy.
62 Annex 4, Vol. 2. Pursuant to Article 50, para. 2, of the Rules of Court, a copy of the original Dutch
documenthas been depositedinthe Registry.
63 Annex 7, Vol. 2. Pursuant to Article 50, para. 2, of the Rules ofacopy of the original Dutch
documenthasbeen depositedinthe Registry.
64 This historical backgroundis reviewed in the Nota van Toelichting(ExplanatoryMemorandum)to the
Contract between The Netherlands Govermnent and the Sultanof Boeloengan, dated 2 June 1878,
Annex 19,Vol.2.
65 Annex 8, Vol. 2. Pursuantto Article 50, para. 2, of the Rules of Court, a copy of the original Dutch
66 documenthas been depositedintheRegistry.
67 In 'tVeld, op. cith. 58, p. 23.
Gallois,op. cit.,h.58,p. 250.4.61 In 1844, the States of Sarnbalioeng, Goenoengtaboer and Boeloengan formerly
constituting Berou were each recognised as separate realms by the Netherlands Indies
Government. Theirchiefswereofficially grantedthe title of sultan6'.
4.62 In 1850,the NetherlandsIndies Government concluded"Contractsof Vassalage"with
the Sultansof each of the three realms in which the respectiveterritories of the realmswere
givento the Sultans as fiefs. The Contractwith the Sultan of Boeloengan was concludedon
12November 1 850~~.
4.63 Becausea new Sultan had succeeded tothe throne, anew Contract of Vassalage was
concludedon 2 June 1878, which was approvedand ratified by the Governor-Generalof the
NetherlandsIndieson 18 October 187~~'.It was fonvardedto the BritishGovernmenton 17
January 188071.
4.64 In reaction to the activities of the British North Borneo Company,the Netherlands
IndiesGovernment decidedin 1880to post someofficialsin Tawau, avillage at the mouth of
the river of thearnename,on the north-eastern borderof Boeloengan. A Dutch warshipwas
posted permanently in the area operating from Tarakan, an island off the coast of
~oeloen~an~~.
4.65 The firsttime that theNetherlandsIndiesGovernmentdefinedtheextentof itsterritory
in Borneo was in connection with the administrative division of Borneo. In an 1846
resolutionof the Governor-General, Borneo was dividedinto two residencies: Westerafdeling
(Western Division) and Zuider- en Oosterafdeling(Southern and Eastern Division). The
Notavan Toelichting(Explanaty emorandumo)p. cit.,fn .4, Annex19,Vol.2.
69 Annex13,Vol.2
70 See,Annex19,Vol.2.
71 See,Annex38,p.2, Vol.2 andpara.3.22,above.
72 Koloniaal Verslag van1880("Report onthe Coloniesfor 188O),p.15-16. oloniaal Verslag van
1881,p. 17.Koloniaal Verslagvan1883,p.16.Koloniaal Verslagvan1884,pp.21-22.territory of Berou was included in the Southern and Eastern ~ivision'~. The northern
boundaryof that residency was definedas the 3" 20' linewhichthe Dutch Governmentat that
time believed to be the northern extent of the territory of the Sultan of ~oeloen~an".
However,the last preambular paragraphof this resolution statedexplicitlythat the description
of the territories of thewo residencies "wouldnot affectthe claims which the Netherlands
may wish to exercise beyondthese territories",thus clearlyreserving al1rights over territory
not enurnerated. In 1849, a revised decree was issuedwhich did not mention this line but
referredto Berouasthe northernmostareaofthe re~idenc~~~.
4.66 A description of the geographical areaconstituting the Sultanateof Boeloenganwas
included forthe first time in the Contractof 12November 1850. Article 2 of this Contract
describestheterritoryof Boeloenganas follows:
"The territory of Boeloengan is located within the following
boundaries:with Goenoeng-Teboer:fiom the seashore landwards, the
KarangtiegauRiver from its mouth up to its origin; in addition, the
Batoe BeoekkierandMountPalpakh;
"with the Sulu possessions:at sea the cape narned Batoe Tinagat, as
well as theTawau River.
"The following islands shall belong to Boeloengan: Terakkan,
Nenoekkan and Sebittikh,withthesmallislands belonging thereto.
"Thisdelimitationis established provisionally,and shallbe completely
examinedand determined again"76.
4.67 In 1877, some changes were made to the administrative division of Borneo. The
decreeof 1849was amendedby a decree dated2 February 1877which divided the residency
Southern and Eastern Division of Borneo into six divisions7'. The sixth northernmost
73
Resolutionof 28 February1846, publishedin the JavascheCourant,7 March 1846, No. 19, with
74 ForeignOfficetranslation, Anx0,Vol.2.
Thelinedefinedinthe 1846resolutionasthenorthem boundaroyf theresidencyroughly corresponded
withthenorthemboundaryof Boelonganproper,thusleavingtheTidoengcountriestothenorthof this
line.
75 Decree bytheMinisterof State,Govemor-Generaolf theNetherlandsIndies,of 27 August1849,No.8;
publishedinStaatsblad vanNederlandsIndie1849,No. 40. Translation in Anx2,Vol.2.
76 Annex 13,Vol.2 (emphasisadded).
77 TheDecreewaspublished intheIndischStaatsblad1877No 31,Annex 14,Vol.2.divisionwas named "KoeteiandEast Coastof Borneo". Accordingto Article3 of this decree,
this divisionincluded "the feudalstatesof Boelongan(to which belongthe Tidoeng countries
and the islands of Terrakan, Nenoekan andSebittikh with the smaller islands belonging
thereto)...".
4.68 Article2 of the Contractof Vassalageof 1878describesthe territoryof Boeloenganas
follows:
"Thetenitory of the realm ofBoeloenganis deemedto be constituted
by the lands and islands as describedin the statement annexed tothis
on tract"^^.
4.69 The statementannexed to the Contractis identicalto Article 2 of the 1850Contract,
exceptforthe last sentence whichwasdeleted.
4.70 This statement was amendedin 1893to bring it in conformity withthe 1891Anglo-
Dutch on vent io nhe^.ew statement iswordedas follows:
"..the Islandsof Tarakanand Nanoekan, andthat portionof the Island
of Sebitik,situatedto thesouthof the aboveboundary-line, described
in theIndisch Staatsbladof 1892,No. 114, belongto Boeloengan,as
well as the small islands belongingto thebove islands,sofar as they
are situatedto thesouthof theboundary-line ..."(emphasisadded).
4.71 This statement,which was communicatedto the British Govemmenton 18 February
1895andwas receivedbythis Governmenton 26February 189580,was not protested81.
78
79 Annex 19,Vol.2.
Cornrnunicatdo theNetherlandsParliamenton 13 December1894. Publishedin PrintedRecordsof
the Second Charnber1894-1895, No. 110. Overeenkomstenmet inlandrchen vorsten in den Oost-
IndischenArchipel. Boeloengan.Gebiedsomschrijv. o. 15. Forthe English text,see Conventions
between the Government of The Netherlandr and Native Princes in the Eastn Archipelago,
80 communicatedbyBaronvanGoltstein,26 February1895,Annex91,Vol. 3.
81 Ibid.
See,para5.62,below.4.72 As will be discussed more fully in the next chapter, this confirms that, whatever might
have been the uncertainties deriving from the pre-colonial titles to tenitory, the 1891
Convention was interpreted by both parties as having solved al1 territorial issues between
them, including those concerningthe neighbouring islands. CHAPTERV
THECONVENTIONOF20JUNE 1891BETWEEN
GREAT BRITAINANDTHE NETHERLANDS
Section1. TheBackgroundto, andNegotiation andTermsof,the Convention
of20June 1891
5.1 Whileforthe reasonsexplained in ChapterIV therewere variousuncertaintiesas to the
exact locationof theboundarybetween Dutchand British possessionsin North Bomeo,those
uncertaintieswerebroughtto an endbythe conclusion ofthe Conventionbetween Great Britain
and The Netherlands Defining Boundariesin Bomeo of 20 June 1891'. The terms of that
Convention,and its contemporaneous interpretationby the Parties, leave no doubt as to the
inclusionofboth LigitanandSipadanwithinthecolonialdomainsofTheNetherlands.
A. Backgroundto the Conventionof 20 June 1891
5.2 As a consequenceof the developments recordedin ChapterIV,the territorialposition as
it stoodatthebeginning ofthe lastdecadeofthe 1gthcenturyincludedthe followingelements:
(i) the extentofthe domainsof the Sultan of Sulu andthe Sultanof Boeloenganon
themainlandofBomeo was impreciseb , ut:
(a) theirdomainsat leastmet(and probablyoverlapped)at ornearthe Sibuko
River (the precise locatandcourseofwhichwasitselfunclear);and
(b) the Sultan of Boeloengan'sdomains on the mainland extended to the
north of the4" 10'N parallel of latitude which waslater to become
relevant;
1
Annex 75,Vol.3. (ii)bothSultanswereacknowledgedtohaveoffshoredominions;
(iii)theextentoftheoffshoreislandsforming part oftheir respectivedominionswas also
imprecise,althoughthe Netherlands Govemmentandthe Sultanof Boeloengan maintainedthat
the Sultan's dominionsincludedthe islands of Tarakan, Nanoekhan and Sebatik,and the small
islandsbelongingthereto,as stated inthe "Contract" (the termusedby the Dutchfor agreements
with localrulers already subjectto their suzerainty;sometimesreferred to as a "Contract of
Vassalage") betweenThe Netherlandsandthe Sultanof Boeloengan of12November 1850and
reaffmed inthe Contractof2 June 1878;
(iv) althoughthe Sultansof Boeloenganand Sulueffectivelydispossessedthemselvesof
their Borneoterritoriesin favourof The Netherlands and (ultimately) Grea tritain, theprecise
limitsof their tenitories werenot comprehensively defined in any of the agreedtreaties,grants
ortransfers;
(v) the effect ofthe successivetransactionsby which this situationwas reachedwas to
leave GreatBritain and The Netherlands in undisputedcontrol of the north-eastern areas of
Borneo, but withoutany certainty as to the precise location of the boundary between their
respectiveterritoriesinthecoastalregionontheeastofBorneo.
5.3 In the late 1870sand early1880sthislackof certaintygaverise to fiction between The
Netherlands and GreatBritain. In 1850,the NetherlandsIndies Governmenthad concludeda
Contractwith the Sultanof Boeloengan,confirminghis subjectionto Dutchauthoritf. In that
2 Annex 13,Vol. 2. ThisContractwasnot communicatedto the BritishGovemmentat that tirnebecause
the Netherlands Government was of the opinion thatArticle 3, second paragraph, of the Treaty of
London of 17 March 1824 between Great Britain and The Netherlands did not require the
communicationof conventionswhich did not involve the acquisition of new territory. This provision
reads as follows: "Itis understoodthat,before theconclusionof the present Treaty,communication has
been made by each of the Contracting Parties to the otherof al1Treaties or engagements subsisting
between each of them respectively, and any native Power in the Eastem Seas; and that the like
communicationshallbe made of al1suchTreaties concludedby them respectivelyhereafter". TheDutch
Govemmentwas of the opinionthat theterritories ofthe sultanson the east coast of Bomeo had already
been cededto it bytheir suzerain,the Sultanof Banjermasin(see, ExplanatoryMemorandumto the Bill
for the ratification of the 1891 Convention, Annex77, Vol. 3). In 1855 the Netherlands Govemment
changed its position as to the meaning of the 1824Treaty and decided to communicateto the British
Govemment "political contracts"with local rulers alreadyunder its suzerainty. See, article"ContractenContractthe territory of Boeloengan was defined as including "BatoeTinagat, as well as the
Tawau River" (see, para. 4.66, above); this Contract was renewed by a fixther Contract
concluded in1878in (sofarasmaterial) thesameterms,andthis Contractwascornrnunicatedto
the British Government(see,para. 4.63, above). On the bais of their authorityso acquired, in
September1879theDutch hoisted theirflagat Batoe Tinagat,at parallel4' 20'N latitude.
In the early 1880s,Dutch officiais were stationedat the nearby village of Tawau,and
5.4
Dutch warships, baxd on Tarakan Island, patrolled the north-east coast3. The Dutch
Governmentwas of the view that on the eastcoastof Bomeothe northem boundary ofDutch
territory was formedby the Batoe Tinagat Riverand Mer inland by the Tawau River,these
being possessions ofthe Sultan of Tidoeng,a subject ofthe Sultanof Boeloengan,who had
cededhis territoriesto the Dutch Governmentlongbeforethe concessionswere grantedby the
Sultansof Sulu and Bruneito Dent andOverbeck: thus, the Sultan of Sulu had no right to
disposeof thoseterritories. TheBritish rejectedthis claim,contendinginstead that thisterritory
belongedto the Sultanof Suluwhose possessions extended as farsouthasthe SibukoRiverand
who hadgrantedthe lands inquestiontoDent andOverbeck, fromwhomit hadpassed onto the
BritishNorth BomeoCompany. Accordingly, inSeptember1883,the first Govemorof North
Bomeo, W. H. Treacher, soughtto asserthis territorialrightsby sailingin his officiallaunchto
the southbank of the SibukoRiverwhere hehoistedthe NorthBorneoflag,fired afeu dejoie,
hauledthe flagdown again,carvedthe symbol'BNB83'on an adjacenttree, and sailedaway:
the Dutch immediately chopped down his marker tree4. Thesignificantgeographicalfeatures
areillustratedonMap 5.1 facingpage 64.
5.5 The geographical essence ofthe difference betweenthe two Governmentswas that the
Dutch Government assertedthat Dutch territory extended at leasats far north as the 4'20' N
latitude (and possiblymer), while the British Government regardedthe limit of Dutch
territoryas extendingonlyas far northas 3"20'N latitudeasprescribedby a Dutchresolutionof
met zeljbesturende landrchappen"("Contractswith self-govemingcouniries")in Encyclopedie van
3 Nederlandrch Indië,l. 1,p. 526.
4 See,para.4.64,above.
See, Irwin,G., Nineteenth Century Borneo:A Study in DiplornaticRivalry, MariinusNijhoff, 1955,
p.206.28 Febniary 1846(whichhad beensupersededby a later decree in 184915.Within that basic
differenceof view, there was furtheruncertaintyasto the locationof the SibukoRiver which
was relied onbythe BritishGovernmentasthesouthemlimitofthe territorycededbythe Sultan
of Suluto MessrsDent and Overbeck: asCountde Bylandt(Netherlands Ministerin London)
observedin his Note of 1 December 1882to Earl Granville (BritishForeign Secretary),there
wereseveralriversflowingintoSt.LuciaBaywhichborethenamesibuko6.
5.6 As British and Dutch levels of activityincreased,the line separating theirrespective
possessions became increasinglyimportant. From exchanges of correspondence in 1882
betweentheDutchandBritish~overnments~,it becameapparentthat:
"...nopositiveinformationcouldbeproduced toshowwhat was really
intended tobe the exact position of that River [i.e. the SibukoRiver],
in the Deeds by which the [British North Borneo] Company became
possessed of territory on that part ofthe coast of Borneo, and it was
suggestedthatthe best wayof arrivingat a settlementofthe pointsin
disputewould be for the Britishand Netherland Governrnentseach to
nominate a Commissioner authorizedto examine into the questionon
the spot, with access to al1documentsand maps, andit was proposed
that aJoint Report should then be drawnup by the Commissionersfor
presentationto theirrespective Govts. It was furthersuggestedthat, in
the event of the adoptionof this course notresulting in an agreement
being cometo, recourse mightbe hadto arbitrationn8.
5.7 Thisproposa1was put to theDutch Govemment on13January 1883. No reply having
beenreceived,Sir Horace Rurnbold (British Ministeir n The Hague)was instructedon 9 March
1883"toproposeto theDutch Govt., as a compromiseof al1conflictingclaims, theacceptance
of the 4" of North latitude as the limit to be recognised on both sidesUg. But the Dutch
5 See,paras.3.18-3.20,above.
6 Annex 31, Vol. 2.
7 DespatchesfiomCountdeBylandttoEarlGranville dated 31May 1882and12August1882,Annexes
27 and29, Vol. 2;despatchfiomEarlGranvilleto Countde Bylandt da31August1882,Annex30,
Vol.2;despatchfiomCountdeBylandt toEarlGranvilledated1December1882,Annex31,Vol.2.
8 DraftMemorandum on the DisputedBoundarybetweenthe British North Borneo Company antdhe
DutchPossessionson theNorthEastCoastof thatIsland,y SirE.Hertslet,dated20 December1888,
Annex36, Vol.2. (emphasis added). Thsocumentis adraftofthe Memorandum: thfienal versionhas
notbeen traced,butthereis noreason tobelievethatit differedinsubstancefiomthedraft,which was
9 inthepresentcontextmerelysurnmarisingastdevelopments.
Ibid.Govemment rejectedthis proposal, whichthey saw as involvinga cessionof Dutchtemt~ry'~.
Countde Bylandt followed this up witha meeting with SirJulian Pauncefote (a seniorForeign
Officeofficial),which involveda firmrestatementbyeachsideof its position.
5.8 TherecorrespondencewiththeDutch Govemment rested foa r while,until on 24Januafy
1884the BritishGovemmentrenewedtheir proposa1for a joint survey,or a reference ofthe
dispute to arbitration.On 17March 1884, Countde Bylandtcornmunicatedto Lord Granville
the copyof a despatchhe had receivedfiom the Dutch Governmentin which theymaintained
that theirlairnhad been clearly establisheby Countde Bylandt's Notes of 1December 1882
and25March1883(which,they observed,had neverbeenanswered).No reply wasretumedto
thislatestcommunicationeither:
"...as it was thoughtto be useless to attemptto answer, seriatim,the
arguments put fonvard in the above mentioned notes, until
documentaryproofswere forthcoming showingthe exact limits of the
territory whichit was saidhad been cededby one nativeSultanto the
Companyandby another, to the utc ch"".
5.9 In 1885, the Dutch authorisedthe preparation ofa map on which was marked the
boundary whichthe Dutch ColonialAuthorities claimedas the limitof their possessionson the
north-eastcoastof Bomeo,anda copy wasofficiallycommunicatedto the BritishGovemment
on 18November 188512.The mapmarkedthe boundaryas startingfiom BatoeTinagat, tothe
northof the SibukoRiver, and proceeded almostdue north forabout 17miles, andthen swept
round frrstin awesterly, andthenin a south-westerlydirection. A copyof anextractfiomwhat
isprobablythe Dutch 1885mapisMapNo. 2intheMap Atlas.
5.10 At thisthe the BritishNorthBomeoCompanywasactivein North Bomeosimply asa
Britishompanyconductingits businessin thatterritory. The British Govemmentthoughtthat
there couldbe advantagefor them in their dealingswiththe Dutchover theboundaryif North
Bomeo were to be placed formally under British protection. The boundary question was
thereforeleftatrestuntila decisiononthismatterhadbeenmade.
'O DespatchfiomCountdeBylandttoForeignOfficedated25March1883,Annex32,Vol.2.
11 DraftMemorandum bS yirE.Hertsletdated20 December1888,Annex36, Vol.2.
12 Ibid.p.2.5.11 In 1888, Great Britain concluded agreementsestablishing British protectoratesover
Sarawak, Bruneiand the territory of the British North Borneo~om~an~'~. The time had
"therefore, now arrived for entering into negotiations with the Dutch Government for a
settlement of the boundary dispute on equitable terms"14. In November 1888, the British
Governrnent informedthe Dutch Government "that agreementh sad been formally concluded by
whichBritishprotectionwas established"over these territ~ries'~.The Dutch Foreign Minister
(Mr.Hartsen)was "somewhattaken aback by this news, but hopedthat stepswould soonbe
takento determineboundaries: he"observedhow desirable it was thatthe two Powerswho were
interested in Borneo should cometo a complete understanding whichwould notleaveroom for
anythird Powerto stepin at anytirne and claim territorythere as being res n~llius":'~he also
drew attention to the factthat in a map of the British North Borneo Company'ts erritories
recently publishedby Stanford (apparentlya referenceto the 1888 Stanfordmap which appears
as MapNo. 3 in the Map Atlasand is discussed belowat paras. 6.44-6.45),Batoe Tinagatand
the Tawau River were included in theBNBCterritory, whereas they were both mentioneid nthe
Contractof 2 June 1878 betweenthe Dutch and the Sultanof Boeloenganas belongingto the
su1tan17.
-
13
The text of these agreementscan be found in British and Foreign StatePapers, vol. 79 (1887-1888),
pp. 237, 238 and 240. Al1three agreements refer to the territory in question as "continuing to be
govemed [by]. ..as an independentStateunderthe protectionof Great Britain".
It has to be noted that at this tirne British practice, strictly speaking, distinguished between
"protectorates"and "protected States". The distinctionwasrimarily relevant to British constitutional
concems. In both cases the foreignterritory in question cameder British protection,and in general
diplomatic contexts the terms 'protectorate'and 'protected State' wereused almost interchangeablyto
convey the existenceof British protection over the foreign territory, without tooregard for the
strict constitutionaland legalnicetiesofthe terminology used.
Although in manytexts the BritishNorth BomeoCompany is referredto as if it were a State,thiswas a
matter of convenienceand did not reflect the strict legal position. The British Govemment stated,in
answer toa questionasked in the Houseof Commons on25 February 1889,that "[tlhe Company isnot
recognized as an 'independent State', bts administeringthe government of the independent State of
Sabah, under powers and authorities derived from the Sultanof Sulu and the Sultan of Brunei, in
consideration of an annual tribute". ParliamentaryDebates (Commons), 1889: Question askedin the
14 House of Commons, 25 February1889,Annex44, Vol.2.
l5 DraflMemorandumby SirE.Hertsletdated 20December 1888,Annex36,Vol. 2.
Despatch from Su H. Rurnbold (British Ministerat The Hague) to Lord Salisbury (British Foreign
Secretary),dated 19November 1888,Annex35, Vol.2.
16 Ibid.
17 Drafl Memorandumby Sir E. Hertslet dated 20 December 1888,Annex 36, Vol. 2. It should be noted
that Hertslet refers to the Contractof 2 June 1878as "the Treaty of 18 October 1878" (this datebeing
that on which the Contract was approved by the Dutch Govemor General rather than that of its
conclusion). Calling acontract a treaty in this context, although not literally correct, would not have
been improper.5.12 In fact, the Dutch Government consideredthat the establishmentof the British
protectorates offeran opportuniiyforreachingagreementwiththe BritishGovernment on the
boundariesof Borneo between Dutch territory and the terrirf theBritish protectoratesso as
to avoid future disputes.In particular,asexplained in the DutchGovernment'sMemorie van
Toelichting (i.e. Explanatory Memorandum,sometimes referred to as "Memorandum of
3, of 25July 1891, submitted to theStates-
Elucidation") 1890-1891 Session, No1 .87, No.
Generalin connectionwith theratification oftheglo-DutchConventionof 20June 1891 18,a
boundaryagreementwouldput an endto the thencurrentdispute over theboundary onthe east
coast of Borneo between Dutch temtory and that of the British North BomeoCompany.
h4r H.artsenaddressed adespatch of 22 December188819which was communicatedto Lord
Salisburyby CountdeBylandton3January1889. h4r .artsenisrecordedashaving statedthat:
"...the Boundaryquestionbetweenthe Dutch partof Borneoand that
where an EnglishProtectorate wouldbe established shouldbe clearly
definedbeforetheBritishProtectoratewasproclaimed"20.
The BritishMinisterinTheHague (Sir Horace Rurnbold )asinstructedto rejectthatrequest,as
the three protectorateagreements wereal1signed and oughtto be published notlaterthan the
forthcomingmeeting of ~arliarneni?- a rejection which Mr.Hartsen seemed reluctantto
a~ce~t~~.
5.13 Mr. Hartsen's despatch of 22 December 18a8lso set outin considerabledetailthebasis
for TheNetherlands' claimsto sovereigntydong the coast asfar northas Batoe Tinagat, and
summarisedthe differentarguments advanced by TheNetherlandsand GreatBritainat various
tirnes during the 1880s. SirEdward Hertslet commented uponthese in some detail in his
Further Memorandum ontheDisputed Boundarb yetweentheNorth BorneoCompanyandthe
1s Annex77,Vol.3. See,para.5.46,below.
19 Annex37, Vol.2.
InternaminutefromSir E. Hertslet toSir J. Pauncefotedated25 January1889, Annex39, Vol. 2.
(Emphasisin thetext).
'' DespatchfromSirH. Rumboldto LordSalisburydated11February1889, enclosingMemorabyum
'' British Legati, heHague,datedFebruary1889,Annex41, Vol.2.
DespatchfromSirH.RumboldtoLordSalisbury da18Febmary1889,Annex42, Vol.2.Dutch Possessions on the North-East Coast of that Island, 9 January 1889~~. This
Memorandum formedthe bais for LordSalisbury'slengthydespatchof 5 February 1889to Sir
Horace Rumbold, respondingto Mr. Hartsen'sdespatch of 22 December 1888~~. Both Sir
Edward Hertslet's Memorandum and LordSalisbury's despatch focussed almostexclusively on
themid-19' centuryhistoryofDutchandBritishclaimstosovereigntyalongthe eastcoastofthe
mainlandofBorneo.
5.14 Count de Bylandt approached the Foreign Office on 23 February 1889 to state that,
before replyingto the last British communication on the boundary question, the Dutch
Governmentwould like a map showing thelimits of the territory officially recognisedby the
British Government as belongingto the BritishNorth Borneo Company. Sir JulianPauncefote
replied:
"...thatwe haveno officia1map, & that the territoriescomprisedin the
concessions granted to the Coy [Company] are assumed to belong to
them untilthe contraryis shown. For that reasonHMG have reserved
to themselves in the Charter of the Coy the right of ascertaining,in
case of a difference with a foreignStateas to Boundaries,whetherthe
title of the Coyto theterritoryin disputeisinvalid,and ...of imposing
onthem their de~ision"~'.
It was thought that the BNBC would probably havea map showing the precise limitsof the
territorieswhichthey claimed, andtheBNBCwasasked fora ~0~9~.
5.15 TheBNBCdulyprovided:
"...two copies of a Map carefùllypreparedunder the directionof the
Court of Directors, showing,so far as this is possible in the present
23 Annex38, Vol.2.
24 Annex40, Vol.2.
25
Memorandumby Sir J. Pauncefotedated23 February1889, Annex 43, Vol. 2. As noted below,
para..11, SirJulianPauncefoteexplanationclearlydemonstrashatboththeBNBCandtheBritish
Governmentacknowledgedthat thelimitsof theterritories tclaimedwere questionable,including
26 thereforethesouthem limitsinthe adisputed witheDutch.
Letterfiom Sir J. Pauncefoteto BritishNorthBomeo Company date28 February1889, Annex45,
Vol.2. state of geographical knowledge, the limits which they claim in
~orneo"~'.
TheBNBCalso noted thattheboundaries in question were necessarily subjetc otfinal settlement
on Mer andmore precise knowledge of the physicalfeaturesofthe country orothenvise,and
continued:
"...unless, in the absence of such data - only to be acquired by
scientific exploration - it should be deemed desirable by the two
Govemments of Great Britain and the Netherlands, to prevent
protracted delay in the negotiations, and other reasons, to adopt a
parallel of latitude to be mutually agreed upon as a preferable
b~undary"~~.
The map was sent to the British Minister inThe Hague for passing on to the Netherlands
~ovemment~~.Itdid notimpresstheDutch~overnment~~.
5.16 Inresponse toLordSalisbury'slengthydespatch of5 February1889(above,para. 5.13),
the Dutch Foreign Minister(Mr.Hartsen)sent an equallylengthyreply dated19March 1889",
whichwas deliveredtothe ForeignSecretary(Lord Salisbury)bytheDutchMinisterin London,
Countde Bylandt, ata meeting on27March 1889.LordSalisbury recordedthat at the meeting
Countde Bylandt expressed theopinion:
"...that it was not likely thatany satisfactoryissue would be reached
by the exchange of arguments in despatches, and asked whether 1
would consent to remit the question [i.e. of the boundary] for
considerationand adviceto a small Cornmittee [ofrepresentatives of
the two tat tes]"^^.
27
LetterfromBritishNorthBorneoCompanytotheForeignOfficedated8 March1889,Annex46, Vol.
2. Presumablthe map referreodinthis correspondencetse map prepared Sytanfordin 1888(see,
MapsNo. 3 andNo. 4 intheMapAtlas).
28 Ibid.
29 DespatchfromLordSalisburyto SuH.Rumbold date2 d3 March1889,Annex48, Vol.2.
30 DespatchfromLordSalisbury to Sir.Rumbolddated3 (orpossibly8)April1889,Annex50, Vol.2.
31 Annex47, Vol.2.
32 Drafldespatcfiom LordSalisbury tSirH.Rumbold date2d7 March1889,Annex49, Vol.2.CountdeBylandt'soralproposalwasconfïrmedinwritingon6April1889~~.Thisproposalwas
acceptedby Lord salisbu#, afterit had been clarifiedthat the discussionswould notexclude
any mattersin disputeand that theoutcomeof the discussionswould notbind the partiesbut
wouldsimplyestablisha startingpoint fora definitiveagreement35.
5.17 Discussionsbegan in Londonon 16July1889. GreatBritainappointed SirPhilipCurrie,
Permanent Under-Secretaryof State for Foreign Affairs, andSir Edward Hertslet, as the
delegates fortheBritish~ovemment~~t;hedelegatesappointedtoactfor theDutch Govemment
were Count de Bylandt, Dutch Minister in London a,ndMr. A. H. Gysberts,official of the
NetherlandsMinistry of the Colonies. In preparing for the meetings, SirEdward Hertslet
(Foreign Office Librariana,nd at that tirnealso used by the ForeignOfficeas its legal adviser
before ithadapermanent legalstaff),wroteapapersettingout certainissues which he suggested
shouldbe addressedby thejoint ~omrnittee~~I.n it he notedthat the Dutchclairnswent asfa
north asabout latitude 4"19', which "ifadmitted,would overlap a portion ofthe territory
claimedbytheBritishNorthBorneo Company,who maintaintheirrightto territoryasfar south
astheSibukoRiver, innorthlatitude about4"10' ...- apparentlya first mentionofthatparticular
latitude inthepapersrelatingto thenegotiations.
5.18 The Minutesof the Proceedings ofthe Joint Commission,whichmet on 16, 19and 27
July 1889,are atAnnexes57, 58 and59 hereto. At the outset,the agreedbais on which the
Joint Commissionwasmeeting was set outby Sir P.Currie, for Great ri tain^ H^.noted that
the Commissionshoulddeterminecertainparticularmatters(ineffect, thosepreviously recorded
bySir EdwardHertslet),andthatit hadbeenagreed:
"..further, that, in the event of a satisfactoryunderstanding being
arrived at with regard to the disputed boundary between the
Netherland Indian Govemment and the British North Borneo
33 Annex51,Vol.2.
34 DespatchfiomLordSalisburytoCountdeBylandt date28 June1889,Annex55, Vol.2.
35 DespatchfiomLordSalisburyto CountdeBylandt date20 May1889,Annex52, Vol. 2, anddespatch
fiomCountdeBylandttoLordSalisbury date3 June1889,Annex53, Vol.2.
36 DespatchfromLordSalisburytoCountdeBylandt date28 June1889,Annex55,Vol.2.
37 Memorandumrespectingproposed Basesfor a Joint Commission on the North BorneoBoundary,by
SirE.Hertsletdated 19June1889,Annex54, Vol.2.
38 Recordof the Proceedingsof the JointCommission Meeton 16 July 1889, at pp. 1-3,Annex57,
Vol.3. Company,on the north-east coast,in the neighbourhoodof the Sibuco
River, the British and Netherland Governments will proceed without
delay to define, short of making an actual survey, and marking the
boundary of the spot, the inland boundary-lineswhich separate the
Netherland possessionsin Borneofiom the territoriesbelongingto the
States of Sarawak, Brunei,and the British North Borneo Company
respectively."
Thus,the boundaryon the coast wasthe firstmatterto be decided,and ifthat couldbe agreed
the two Governments would rapidly settle theboundaryinland - an approachconfïrmedat the
endofthethirdmeetingon27July 188g3'.
5.19 In the discussionsboth parties rehearsed in some detailtheir existing positions. At the
end of the second meetingCountde Bylandt notedthat the questionat issue was reallyone of
prestige:it was impossibleforthe Dutchto withdrawfiom territorywithout a lossof dignityin
the eyes of the natives,but the Dutch Government could grant to the British NorthBorneo
Company absolute fieedom of navigation onal1rivers in the disputed terx-itory.For Great
Britain,SirP. Cunie notedthat England's prestige had alsoto be considered:but he appreciated
CountdeBylandt'sconciliatory languagea ,ndwondered whetherthe mattermightnotbe settled
byan arnicablecompromise.He:
"...inquired whether the Dutch Governrnent wouldbe prepared to
considerthe questionof anarrangementon the basis of a compromise
of the territorial claimson the coast-line,with free navigation of the
riversrunningthroughthe disputedterrit~ry?"~~
5.20 This suggestionfor a compromise (repeatingthe earlier proposa1of 1883, para. 5.7,
above) was approved in principleby the Dutch Government,subject to whatever the actual
proposa1for a compromise settlement might prove to be4'. The British Governmentthen
subrnitteda proposal,themainelementsof which were:
39
Recordof the Proceedingsof the JointCommission Meetion 27 July 1889,at pp. 2-3, Annex59,
40 Vol.3.
Recordof the Proceedingsof the JointCommission Meetinon 19July 1889, at p. 11, Annex58,
41 Vol. 3.
Ibid.,atpp. 11-12,andRecordof theProceedingsof theJointCommission Meeton27 July1889,at
p.1,Annex 59,Vol.3. (a) "the boundary-lineon the coast [i.e. the east coast] should start
from the point called Broers Hoek,in about 4"10' northlatitude, and
shouldpass betweenthe Islandsof Sebattik andEast-Nanockhan";and
(b) therewouldbefreedom of shippingonal1riversinthedisputedarea
lying between 3'20'and 4'20'northlatitude42.
Theproposa1that theline should pass between Sebatikand Nanoekhan reflected proposalsmade
earlierby the British NorthBorneoCompanyto the British Government, illustrated on a map
preparedby Stanfordin 1888showingsucha line withits continuationoutto ~ea~~.
5.21 The Dutch Government neededto consult the Sultanof Boeloengan about these
proposed arrangements,but Countde Bylandtdid not anticipateany difficultysincethe Dutch
authoritieshad influence over l~im~~ M; er, any agreement would"requirethe sanctionof the
States-General[Le.TheNetherlands'legislature],over whomhis Governrnenthad no control"".
Since the inland boundary was dependent upon the boundaryon the coast being settled, Sir
P.Cunie wantedto know how longthe referenceto the States-General wouldtake46.Countde
Bylandt saidthat the States-Generalwouldmeetin September, butthat it was impossibleto Say
when the Dutch Government wouldbe in a position to lay the matter before the States-
~eneral~'.
5.22 The Sultan of Boeloengan's response wasthat he was content with the proposed
arrangements,although hesought forthe populationof Boeloengana 15year tax-freeright to
collectforestproductsinthe areabetween Broershoek and Batoe ~ina~at~*.
42 Ibid.,atpp. 1-2.
43 MapNo. 3 intheMapAtlas.
44
45 RecordoftheProceedingsofthe JointCommissionMeetinogn27 July1889,atp. 3,Annex59, Vol.3.
46 Ibid.
47 Ibid.
48 Ibid.
ExplanatoryMemorandumon theRatificationof theAnglo-Dutch Convention 20 June1891,atp.4,
Annex77,Vol.3.5.23 Threepointsmay benoted aboutthecourse of thediscussionsintheJoint Commission.
(a) First, the provisional agreementreached by the Joint Commissionwas for the
boundaryon the coast to"startfiom"the point at "about4"10'north latitude",and shouldthen
"pass betweenthe Islands of Sebattikand EastNanockhan". In other words,the boundary was
clearly envisaged in principleas one which, starting onthe coast,ran eastwards at sea for an
indeteminate distance (although at least betweet nhe two named islands),i.e., out to theopen
sea.
(b) It is not clear from the available records hy the parallel of4"10' Nlatitude was
chosenasthe linewhich,where it crossedthe coast,wouldserve asthe coastalboundary. It is,
however, noteworthy that (i)it wasapproximatelythelatitude at whichthe SibukoRiver (which
was claimedbythe Britishtohavebeenthesouthemlimit ofthe Sultanof Sulu'sterritories, and
thus of the territoriesadrninisteredby the British North Borneo Companyw ) as thoughtto run
intothe sea (para. 5.17,above);(ii) it was almost exactlymid-waybetweenthe originalBritish
offer of a boundary at4"N (para. 5.7, above) and the Dutch claims of a boundaryat Batoe
Tinagat (lying at about 4'19' N - para. 5.13,above); and (iii) since the Dutch Government
regardedacceptanceof the4"10'N lineas not involvingthe lossof anypossessionswhichwere
unquestionablyDutch, while acknowledgingthat their more northerlyclaimed areas were not
indisputable,thatline metthe essentialDutch requirement for keeping as Dutchal1possessions
to thesouthofthat lir~e~~ I.nshort,the4 "10'N parallel appearsto have beenconsistentwiththe
essentialterritorial interesof al1concemed,andthusto have represented amutuallyacceptable
compromise(in line withSirP. Currie'soriginal suggestion:paras5 ..19-5.20,above).
(c) Third,while intheir discussionsof the boundarydispute attentionwas focussedon
the problems inland and on the coast, offshore islands were not ignored.Apart from the
foregoing referenceto islands in the context of the proposed coastalstarting point for the
49
Ibid., atp. 6;see, also,despatchfromSirH. Rumboldto LordSalisbury9 March1892,Annex83,
Vol. 2 andstatementby theDutch Foreign Minin theratificationdebateon 8 March1892,atpp.32
etseq.Annex84, Vol. 3. Pursuantto Article50, para.2, of theRulesof Court,a copyof the original
DutchtextoftheParliamentarPapers referrto inthischapterhasbeen depositedintheRegistry.boundaryline,at the meeting on 16 July 1889 the statementof Mr. von Dewall referredto "the
Tidoeng Islands, Tarrakkan,Nanoekkan,and sebittikhN5O and at the meetingon 19 July 1889
reference was madeto the decreeof the Govemor-General ofNetherlands India of 2 Februaq
1877,whichhad specified "the Islands ofSibittich,Nanoekkan, andTarakkanas belongingto
the ~etherlands"~'.
B. The Negotiationsforthe Conventionof 20June 1891
5.24 In assessingthe present legal significance otfhe agreementeventuallyreached,it is very
relevantthat throughoutthe second half ofthe 19" centurythe history ofthe north-easternarea
of Bomeo saw asteady increase inthe territorialextentof British authorityat the expenseof the
Dutch: in effecttheDutchwereontheretreat, yieldingtenitoryto whichtheyhad strongclaims.
They were accordingly atpains to limit the extent of any concessionsto be agreed inthe
negotiationswith theBritish. The eventual1891Anglo-DutchConventionhasto be seeninthat
light.
5.25 The boundary atthe coast having effectivelybeen settled in the earlier discussionsas
being at parallel4"10' N,from this stage onwardsthe negotiations focussedprimarilyon the
boundary running westwards fiom this point, i.e. inland into the mainland of the island of
Bomeo. Thisoccupiedthe attentionof the negotiators for severalimportantreasons:the inland
boundary wasverylongandranthroughexceedinglydifficultterrain, withmanymountainsand
thickforest;it was unexplored;the localSultans(ofBrunei, andSarawak)andthe BritishNorth
Bomeo Companyhad no clear idea asto the inlandlimits to their territories (see,paras. 4.13-
4.16, 4.32-4.39,above);the interiorof Bomeo containedmany rivers and, while their coastal
outletswere generallyknown,theirinlandcourses,andtheir sources,wereobscure;andmanyof
these rivers were important trading waterwaysm , aking navigation rights important. By
comparison,the eastwardboundary outto seawas relativelystraightfonvard,DutchandBritish
practicalrequirementscenteringmainlyon problems associated with securerightsof navigation
50 Annex57,Vol. 3, at 11.
51 Annex58,Vol. 3, atp. 10.betweenthe openseaandthemainlandriversin the vicinityof 4"10'N, particularly around the
island ofSebatikwhichlayastridethe principal navigation routesin the irnrnediateapproaches
to theSibukoriver.
5.26 Sofaraspresently relevant it was recorded ianDutch memorandumof2 April 1890that
atthemeetingsofthe JointCommissionin July 1889 "Broershoeki,n parallel4" 1O'[was]fixed
[Le.bythe Joint Commission] asthestartingpoint oftheboundary ontheeasterncoast",andthe
Dutch proposedthat Sebatik should remain ut ch^ *.and, the Dutch proposedthat the
boundary shouldbe at the watershed of certain river^^ T^.ey also asked whetherthe British
Governmentwas willingto acceptthe linesof boundary which separated Sarawak B,runeiand
North BorneofiomtheDutch possessions in Borneo a,sefmedina Dutchofficia1map54.
5.27 The BritishGovernment consulted the British North Borneo Company whicih n reply
prepareda Memorandum ontheSouthernBoundaryof the Territoryof the British NorthBorneo
Company, dated22 July 1890~~. TheBritishGovernmentresponded to theDutchGovernment's
request inLordSalisbury'sdespatch of13August1890to Countde ~~landt~~. Lord Salisbury
expressedthe BritishGovernment's readiness "to accept Broershoetk h,e point on the coast
wheretheparallel of 4"10'north latitudmeetsthesea", andto giveupanyclaims toterritoryon
the coast south of that pointprovidedthe Dutch gaveup any claims to territory to thenorth.
Giventhe stateof ignoranceas to the geography inland,the BritishGovernmentalsoproposed
that the 4'10' N parallel shouldbe followed inland until it reached a range of mountains
separatingthe Dutch possessionsfiom those of Brunei:this was thoughtto be equallyfair to
both parties, "inasmuch asit is absolutelyamatter of conjecture where therivers rise which
emptythemselvesintotheseato thenorth or southofBroershoekat 4O 10'north latitude".Ifthe
Dutch could acceptthis, the BritishGovernment "would be prepared to recognizethe dividing
lines,alreadymarkedontheDutchOfficialMap [Le.themap previously referred to]...leaving
52
53 Annex 60,Vol. 3.
As summarisedin the despatchfkomLord Salisburyto Count de Bylandt dated13August 1890,
54 Annex 62, Vol. 3.
55 MapNo. 3, intheMapAtlas.
56 Annex61,Vol. 3.
Annex62, Vol. 3.any differences whichmight possibly hereafterarise with regardto the actual positionof any
particular localityto be settled by mutual agreement betweenthe British and Netherland
Governments". Furthermore,the British Govemment proposed that Sebatik shouldbe within
the boundariesof the BritishNorth Borneo Company, "or that the boundary-line should run
alongthe parallel of4" 10'eastward,as well as westward,fiom Broershoek,so as to dividethe
island equallybetweenthemselvesand the Netherland Govemment". A further alternative (a
Dutch lease ofthe northempart of the islandto the Company inperpetuity for anominalrent)
wasalsomentionedasapossibility.
5.28 Thus,whilethe BritishGovemmentat firstwantedthe wholeislandof Sebatikto belong
to the British North Borneo Company,the Dutch Govemment rejectedthis. The British
Governmentthen proposed thatthe whole island should be Dutchb ,ut that the northernpart be
givento the Companyon long or indefiniteleaseon nominal payment;the Dutchrejectedthis
too. Instead, the Dutch Government preferredthat the island (which was uninhabited)be
divided,withtheparallel of4 O10'N astheboundarybetweenthetwo parts:
".. as a result of this partition theNetherlands andthe British North
Borneo Company will each possess that partof the island which
constitutes the shore of thenavigationchannelalong which they must
reachthe coastal areaallocatedto them;this is fairandrati~nal"~~.
5.29 The Dutch response wasgivenin Countde Bylandt'sNote of 2 February 1891to Lord
salisbur$'. Count de Bylandt notedthat therewere onlytwo points outstanding -the British
proposa1thatthe 4"10'N line should formthe fiontierfiomthe coastto the range of mountains
referredto, andthe proposals forthe islandof Sebatik. Onthe formerquestion,the Dutch made
a counter-proposal. On the latter, the Dutch were readyto accornrnodatethe wishes of the
BritishNorthBorneo Companyby "lui cédans tansrestrictionlapartiede cetteîle situéeaunord
du degré 4'10' latitude nord", providedthat the British Government accepted the Dutch
57 Explanato?yMemorandumon theRatificationof theAnglo-DutchConventionof 20 June 1891, 5,p.
Annex77, Vol. 3.
58 Annex67,Vol.3.proposals for theboundary inland. It may be noted that, in using the term "lui cédant" (i.e.,
"cedingto it"),the Dutch impliedthat sovereigntyoverSebatikvestedin TheNetherlands:there
isno recordof anyBritishrejection ofthisnecessaryimplication.
5.30 In commenting, on21 February 1891, uponthe Dutch counter-proposal,the British
North Bomeo Company,whoseprincipalobjectwas to have undertheirjurisdictionboth sides
ofthe bayintowhichthe Kalabacking Riverflowsandwhoseunderstandingwasthatthis object
would "besecured by following the parallel of 4'10' across the island",were willing onthis
pointto accept theproposa1of the Netherlands~overnment~~.
5.31 TheForeign Office, however,had not waitedforthis expressionof the company's views.
On 11 February 1891Lord Salisbury addresseda despatch to Count de ~~landt~'. Lord
Salisburyset out his understanding of theDutchproposa1as being(so far as now relevant) that
the Dutch Governmentwas willing "to continuethe parallel of 4"10'eastwardacross theIsland
of Sebattick,and givethe northempart of that islandunreservedlyto the Company providedthe
aboveproposal[regardingthe inlandboundary]be accepted". He continued:
"1have nowthe honourto inforrnyou that Her Majesty'sGovemment
arepreparedto accept theboundary-linethus described ....
"1avail myselfof this opportunityto transmitto you the headings of a
draft Agreement embodying the resultof our several communications
on the subjectof the boundariesin Borneo betweenthe possessions of
the Netherlands and those of the British North Borneo Company,
Sarawakand Brunei respectively, which 1trust may coincide with the
viewsof theNetherlands Government."
5.32 The enclosed "Headings ofDraft Agreement betweenthe British and Netherlands
Governments" were(sofarasnow relevant) inthe followingterms:
"ARTICLE1. Theboundarybetweenthe Netherlandspossessionsand
those of the British North Bomeo Company shall start from 4"lû'
north latitudeonthe north-eastCoastof Borneo.
59 DespatchfiomB. Kindersley,Secretaryof theBritishNorthBorneoCompany,to ForeignOfficedated
21February1891,Annex70, Vol.3.
60 Annex68, Vol.3. "Art.2. The line shallbe continuedwestward from 4 O10' andfollow
..[i.e.the inlandboundary]
"Art.4. From4"10'north latitudeon the north-eastcoastthe line shall
be continued eastward along that parallel across the Island of
Sebittick;thatportionofthe island situatedto the north of that parallel
shall belong unreservedlyto the Company, and the portion south of
that parallel totheNetherlands.
"Art. 7. The boundary betweenthe Netherlands possessions and the
States of Brunei and Sarawak shallbe defined by the respective
watersheds, ...leavingthe exact positionsto be determined hereafter
by mutualagreementwhenthe countryis moredevelopedM6'.
5.33 Count de Bylandt repliedto Lord Salisbury's despatch by a Note dated 2 May 1891,
makingcertain counterproposals,but moreof formthanof substance62.Thesewere acceptable
to the British Govemment,andLordSalisbury so informed Countde Bylandton 25 May 1891,
at the same time sending him a draft Convention incorporatingthe various amendrnents
suggestedby the Dutch ~ovemment~~.On 9 June 1891,Count de Bylandt proposeda small
numberof clraftingchangesto thedraft Convention of which the onlyoneto affect theterms of
the articlespresently relevant wathereplacementinArticleIVoftheword "line"by "boundary-
line"". These amendrnentswere acceptedby Lord Salisburyin his note of 12 c une^ T^.e
Convention, amended accordingly, wassignedon20June 189166.
61 Emphasisinthetext.
62 Annex71, Vol.3.
63 Annex72, Vol.3.
64 Annex73, Vol.3.
65 Annex74, Vol.3.
66 Text of the ConventionbetweenGreatBritainandThe NetherlandsDefiningBoundariesin Bomeo
dated20June 1891,Annex75, Vol.3. C. Survey by HMS Egeria, HMS Rattler and HNLMSBanda,
June 1891
5.34 Meanwhile, on 29 December 1890 the British Governmenitnstructed Sir Horace
Rurnboldto proposeto theDutch Government thatit wouldbe usefuliftherewerea visitto the
areabyone ofHMships"toascertaintheexact point where4 O10'northlatitudereachesthe sea,
ontheclear understanding thatany markwhichthe British naval officersmaythinkit necessary
to place is withoutprejudice to theconflictingclairnsof the NetherlandsEast India Company
andtheBritishNorth BorneoCompanywithregardto theboundaryoftheir respectiveterritories
ontheeast coastof~orneo"~~.TheDutch Governmenh t adno objections,but suggestedthat the
visit shouldbe undertaken in conjunction withofficersfiom a Dutch navalvessel,and thatthe
purposeshouldbe extendedso asto exploreanddeterminethe courseof the RiversSimengaris
andSoedang,whichfall intothesea near~roershoek~~.
5.35 In the event,HMS Egeria and HMS Rattler visited the area to perform this task,to
which was added, atthe suggestion of the Dutch Government in April 1891, the fixingof the
positionsof 4"10'north latitudeon both coastsof the islandof ~ebatik~~.DuringJune 1891,
HMSRattlerandHMSEgeria carriedouttheirappointedtasks(together with theDutch vessel
HNLMSBanda), and submitted reportson, respectively, 23June 1891 and 30 June 189l7',
copies of which wereofficiallytransmittedto the Dutch Government;the HNLMSBanda's
67 DespatchfiomLord Salisburyto SirH. Rumbolddated29 December 1890,Annex63, Vol. 3; see, also,
despatch fiom SirP. Currie to Admiraltydated 28 January 1891 anddespatch fiom Mr. Green, British
Chargéd'Affairesat The Hague,to Lord Salisburydated4 January 1891,Annexes66 and 64, Vol. 3.
68 Despatch fiom Mr. Hartsen to Mr. Greene, British Chargé d'Affat The Hague, dated 20 January
1891,Annex65, Vol. 3.
69
See, despatch fiom E. MacGregor,Admiralty,to the Foreign Office dated 20 Febmary 1891;despatch
fiom Lord Salisbury to Sir G. Bonham dated 25 February 1891; despatch fiom E. MacGregor,
Admiralty, to the Foreign Office dated 25ebruary 1891; despatch fiom Sir G. Bonham to Lord
Salisbury dated 27 February 1891,enclosing despatch£tom SG. Bonham to Mr. M. Hartsen dated
27 Febmary 1891; despatch fiom SirH. Rumbold to Lord Salisbury dated 8 April 1891, enclosing
despatch fiom Mr. M. Hartsen to Sir H. Rumbold dated 7 April 1891; despatchfiom Sir P. Currie,
Foreign Ofice, to Admiraltydated 10April 1891;despatch fiom Lord Salisburyto Sir C. Smithdated
17 April 1891;despatch fiom E. MacGregor, Admiralty,to the Foreign Office dated 15 April ;891
despatchfiom Lord Salisburyto SirH. Rumbolddated 17April 1891and despatch fiom Lord Salisbury
to SirC. Smithdated 18April 1891,Annex69, Vol.3.
70 Despatch fiom E. MacGregor, Admiralty,to the Foreign Office dated 24 September 1891, enclosing
despatch fiom Lieutenant-CommanderJ.Heugh to Vice-Admira1Sir W. Richards dated 23 June 1891
anddespatch fiomCommanderA. MostynFieldto theAdrniraltydated 30 June 1891,Annex78, Vol.3.report was submittedto the Governor-General ofthe NetherlandsIndieson 27 July 1891,and
wassubsequently officially transmittetd o theBritish ~overnment~'.
5.36 It is thus apparentthat in the period immediately preceding, and also contemporaneous
with, the conclusionof the 1891 Convention,the Dutch were directly engaged in maritime
activitiesin the areaand were unwillingto let Britishnavalvessels carryout such activitieson
theirown.
5.37 In addition tohis formalreport,the Commander of HMSEgeriaalso subrnitteda letter
to the Hydrographer ofthe Royal Navy describingthe erection of beacons on the 4'10' N
parallel onthe mainlandof Borneo,and on the west andeast coasts of ~ebatik~~(.As to the
subsequent replacement of thesebeacons, see, para.5.40,below.)
5.38 A map,entitledPlan ShowingtheResultoftheDeterminationofParallelof 4 "1O'N on
East Coast of Borneo, and Examinatioo nf Rivers in Vicinity,June 1891 appears to be the
"tracing" referredto in the Adrniraltyletterof 24 September 1891as illustrating thecombined
workof the two British ve~sels'~.On 27 October1891,the British Ministerin The Hague was
instructedto conveythe tracingto the Dutch Foreign~inister~~. The ForeignMinister (now
Mr.van Tienhoven)repliedon 1 December 1891to Sir G. Bonhamat the British Legation in
The Hague, sayingthat as the report ofthe British officerswas consistentin al1essentialswith
thosebythe Dutchofficersconcemed(copies ofwhichhe enclosed),"mon Gouvernementn'a.. .
aucuneobjectiona accepter les résultats obtenus"75.Thetracing showsthe parallel of4'10'N
runningacrosstheisland ofSebatikandcontinuingeastwards,andit isthereforeto benoted that
71
Despatchfiom Sir G. Bonharnto Lord Salisburydated4 December 1891, enclosing despatch fiomE.
van Tienhovento Sir H. Rumbold dated 1 December 1891,translation of despatch fiom Vice-Admiral
Roellto the Govemor-Generalof NetherlandsIndiadated27 July 1891and Reportof Dutch Surveying-
72 vesse1HNLMSBandaof 30 Mayand 11July 1891,Annex80,Vol. 3.
ObservationsonSpot near North PointofEast NenokongIsland,by CommanderA. MosîynField dated
73 1July 1891,Annex76, Vol. 3.
Inthe late 19" centurythe principalmethod usedfor copyingmapswas tohave the originalstraced ont0
partiallytransparent paper. The resulting copieswere known as 'tracings'. The map referredto above
appearsas MapNo. 6 inthe MapAtlas.
74 Annex79, Vol. 3.
75 Despatch fiom Sir G. Bonharnto Lord Salisburydate4December 1891,enclosing despatch fiom E.
Van Tienhovento Sir.H. Rurnbolddated 1December.1891,Annex80, Vol.3.one of theresultson which both Governmenth sad expressedtheir agreementwas this tracing
showingtherelevantparallelextending outto sea.
5.39 In addition to theofficial reports ofthis survey expedition,an account by "A.M.F."
(apparently Commander A.M. Field, ofHMS Egeria) also appearedin The British North
BorneoHerald, on 1November 1892~~.So faras directlyconcems the Sipadanand Ligitan
islands,the followingreferencesinthat accountmay benoted:
- a referenceto survey observationstationson Pulau Gaya, Si Arnil, Sandi Islet and
MabulIsland"andanotheron SipadanIsland completed the chain of maisntations...(at p. 377,
col. 1):uterislandswerethusclearly in peoples' minds a tte time;
- the erectionofmarker beacons on the4"10'Nline(atp. 377, col.2 - p. 378, col.1);
- "The survey ofthe South coast ofDarvelbayextendingfiom Silamin theNorth-west
to Richard's Reef...thencebytheEasternsideofPu10Gayaonto SiAmi1Island and stretching
to the westwardas far as Egeria shoal includingSipadanIsland was completedon the 15"
August ...(atp. 379, col. 2);
Thesereferencesto Ligitan andSipadan,in an account ofa survey conductedby Britishvessels
in associationwith a Dutchvesse1at the the of the conclusionof the 1891Convention,show
that those islandswere verymuch in mind at the time, werehydrographicallysignificant,and
wereinwaters which itwas importantto surveyproperlyinthegeneralinterestsofnavigation.
5.40 For completenessit shouldbe addedthat, although beaconshad been erectedby HMS
Egeria onthe east and westcoastsof Sebatik,it appearsfiom correspondencein 1914,arising
out ofa surveyby HMS Merlin in1910"inthe vicinityof the boundary between British and
Dutch tenitoryontheeastcoastof Bomeo"thatnewmarkerswere erectedin 1899bytheDutch
76 Annex 89,Vol.3.naval vesselHNLMSFlores, and that of thethree suchmarkerstwo - on the east coast ofthe
Bomeo mainland,andon the west coast of Sebatik- had beenreplacedby woodentripods,and
these tripodswere marginallyfurtherto the souththan the true locationof the 4'10' N line77.
However, whenthe BritishGovernment raisedthe matterwiththe Dutch Govemment,thelatter
explainedthat the tripodswere now strictly irrelevantto theboundaryline,sincethey had been
replaced as boundary markers by granite posts erected in1901 under the supervisionof the
Dutch naval vesselHNLMSMakasser and the British vessel HMSWaterwitch. The frontier
was thereupon marked not by the beacons or tripods but by the granite posts, the two
Govemmentsagreeing in correspondence in 190t2 hat the postscorrectly markedthe line of the
frontier between Dutch and British territoriesin Bomeo,as indicatedin ArticleV of the 1891
Convention, insofarasthat line crossedtheeast coast ofBomeoandthe east andWestcoastsof
Sebatik.Dutchnaval activity inthe areawasindeeda featureofthe years aroundthe turn ofthe
century.During the period 1897-1903,a comprehensive hydrographic surveying project was
undertakenby the DutchNavyoffthe eastem coastof Bomeo. In October and November 1903
the Dutch hydrographicsurveyingvessel HNLMS Makasser completedthe last part of this
projectinthe area eastof Sebatikisland.Detailedmeasurements were madecoveringthis entire
area, including in the general area of the islands of Sipadan and ~i~itan~~A . nurnber of
correctionswere madeto the data obtained in 1891by the Britishvessel HMS Egeria. The
resulting Dutch chart(No. 59)was published in1905~~I.t is thus apparentthat Dutch activity in
the areacontinuedafterthe conclusionofthe 1891Convention.
Section2. TheTermsof the Conventionof 20June1891
5.41 The purposeof the Convention,as statedin its preamble, wasto define "theboundaries
betweentheNetherlandspossessionsin the Islandof Bomeoandthe Statesin that island which
areunderBritishprotection".
77
DespatchfiomAdmiraltyto Under Secretaryof State,ForeignOffice dated5 March 1914and despatch
fiom SecretaryGeneralof Dutch Ministryof ForeignAffairsto Su. A. Johnstone, ForeignOffice,dated
78 7 April 1914,Annexes 116and 117,Vol.4.
Seereportbythe CommanderofHNLMSMakasser to the CommanderNavalForcesNetherlandsIndies
79 dated 26November 1903,Annex 105,Vol.3.
Memorandurn onHydrographieSurveyingActivitiesbythe Dutch Navyin the NetherlandsIndies,dated
16February 1948,Annex 127,Vol.4. (a) The Convention, concluded for thaturpose,provided,inArticle1:
5.42
"The boundary between the Netherlandpossessions in Borneo and
those of the British-protectedStatesinthe sameisland, shallstartfrom
4O10'northlatitudeonthe east coastof Borneo."
(b) Articles IIand III delimitedthe boundarywestward across the island ofBorneo.
Most ofthe Convention, infact,dealtwith theboundaryrunninginlandandwestwards fiomthe
eastcoastof Borneo, andisnot directlyrelevant to the matterspresently inissue.
(c) As regards theboundaryrunning eastwards from the easc toastof Borneo,there
had been much debate: seeparas. 5.26and 5.27,above. In the event, ArticleIV delimitedthe
boundaryeastwardsfiomthepoint onthecoast identified in Article 1,and provided asfollows:
"From 4 O10'north latitudeon the east coastthe boundary-line shallbe
continued eastward along that parallel,across the Island of Sebittik:
that portion of the island situated tothe north of that parallel shall
belong unreservedlyto the British North Borneo Company, andthe
portion southof thatparallel totheNetherlands."
5.43 It is evident that,takingas a startingpoint theeast coast of Borneoat latitude4"10'N,
Article IV continues theboundary line eastwards along that parallelof latitude. Severalthings
arenoteworthy abouttheseterritorialdispositions.
(a) First, Article1establishesthat the boundaryis to be between"possessions";i.e. the
boundaryisto be a line providing fortheterritorialattributionofpossessionsto TheNetherlands
andto GreatBritainrespectively on either sideof the line laiddownin the Convention. Doing
so by way of adopting a straight line extendingacross maritimeareas was a usual method,
adopted particularlyby colonialpowers, ofidentifjmg sovereignty over amyriadsmall islands,
knownandunknown,spread over large seaareas:the alternativeswouldbeto ignore them orto
nameeachand everyone,neitherofwhichwouldbesafeorpracticableforthe Statesconcerned.
(b) Second,ArticleIV providesthat, fiom the startingpointlaid down in Article1,the
boundary lineis tobe "continuedeastward";the notion of "continuation"doesnot embracea line
ofonlylimitedextentwith anearbyterminal point, but rathearlineofindeterminateextent. (c) Third,in the absence ofany specifiedlimitto the continuedeastwardextent of the
boundaryline, its implied limit is derived fiom the context of the Convention,which was to
divide territorial possessionsand to settledefinitivelythe whole problem ofthe limits of the
British and Dutch possessions in the areat:he line thereforecontinuedso far as necessaryto
divide islands or territorieswhose attributionmight be problematical and was thereforeto be
determined.
(d) Fourth,giventhe Dutch beliefthat the territoriesof the Sultanof Boeloenganhad
includedvariousislands,includingcertainsmall islandsadjacentto the mainislandsof Tarakan,
Nanoekhan and Sebatik,andthe desireon bothsidesto settletheboundaryproblemonceand for
al1(as to which see, also, paras.5.56-5.59, below), aninterpretationof ArticleIV of the 1891
Convention which would leave the attributionof the varioussmall offshore islandsundecided
must be rejected as inconsistentwith this purpose. The 4'10' N line, continued eastward,
decidestheir attributionconsistentlywiththatpurpose,inthe lightofwhichthe Conventionisto
be interpretedgO.
(e) Fifth,the history of the negotiations shows that e initial Britishproposa1was fora
boundary lineto run eastward fiom Broershoek (at4'10' N) and then through the channel
betweenthe islandsof Sebatikand Nanoekhan(see,e.g.,paras.5.20and5.23(a),above):sucha
maritimeline isinherentlya linecontinuingoutto sea,sincethereis no territorial limitat which
it might be pretended that it should cease. The displacementof that line in the eventual
agreementto amorenortherlycourse, whollydong the 4" 10'Nparallel,withnothingmoresaid
aboutitsterminalpoint, similarly, and consistentlwyith the courseofthe negotiations,resultsin
aline whichcontinuesto run out tosea.
(f) Sixth, the only indicationgiven asto the locationof the line is that it was to be
continued "alongthat parallel",i.e. the4" 10'N parallel. The use of the term "along",which
connotespassagethroughthe lengthof something,in conjunctionwith "continued"confms the
meaningofthat termasindicatinga lineof indeterminate length.
- - -
80 ViennaConvention ontheLawof Treaties1969,Article31.1, 155UNTS331,reprintedin 8 ILM679
(1969). (g) Seventh,the main part ofthe sentenceprovidesthatthe boundaryline shallcontinue
eastward dong thenamedparallel of latitude,anditsmeaningcannotberestrictedbyconstruing
the followingsubordinatephrase ("acrossthe Island ofSebittik) asa territorial limitupon the
extensioneastwardsofthe boundaryline fixedat 4"10'N. Theplacementof a commabetween
the main clause andits subordinate element shows thatthe subordinateelementis not a limiting
part ofthe main clause,but is merelya subsidiary description,for purposesof clarification,of
the coursetaken by the overallboundaryline prescribedby the main clause in relationto the
principal islandong itscourse.
(h) Eighth, the ordinary meaning of theword "across", inthe context of the phrase
"acrossthe island ofSebittick"in ArticleIV, conveysthe sense of "throughand beyond", or
"crossing andcontinuingover",the island ofSebatik. Theordinary meaning ofthe word inthat
contextis not suchasto conveythe senseofthe boundarycrossingthe islandandthen stopping
atitseastcoast.
(i) Ninth,the factthat ArticleIVtakesthe boundaryacrossthe islandof Sebatikshows
thattheboundary prescribedinthe 1891Conventionisnot limitedto the main islandof Bomeo.
The general boundary lineat parallel 4" 10'N latitudeis related inparticular to theisland of
Sebatikbecauseofthatisland'ssizeandlocation.
(j) Tenth, moreover, the need to make specialmention of the island of Sebatik is
explainedby the negotiatinghistoryof the Convention, in which the attributionof the island
featuredprominently(see,paras.5.25etseq.,above). Inprescribinga continuousboundary line
eastwardsdong the parallel4"10'N it was necessaryto make clear that thatmeant following
that parallel across the island, thereby demonstratingthat neither of the other two options
(Sebatik to be wholly British, or wholly Dutch) was beingadopted: that clarification,in a
subsidiaryclause,doesnot servetoplacea limitontheprincipalthrustofthe text, whichis that
theboundarycontinueseastwardsdong the 4 "10'N parallel. (k) Eleventh,there wasno contemporaneous reasonwhy the 4"10'N lineshould have
extendedout tothe high seasfor anyreason otherthanthe attributionof islandsto onepartyor
the other.
(1) Twelfth, continuationof the 4" 10'N line outto seawas consistentwiththe location
of other Dutchpossessionsto the east, to thesouthof the Philippines;this is readily apparently
fiomthe map which appearedasExhibit11tothe Memorandumsubmittedbythe UnitedStates
intheIslandofPalmas arbitration8'.
(m) Finally,the evidentinterestof both partiesto the Conventionin maritimerights of
accessto the estuaryof the SibukoRiver (e.g. para. 5.25,above) and their contemporaneous
joint maritimeactivities in the area, includingLigitan and Sipadan (e.g. paras. 5.34 et seq.,
above), show that their concemsdid not stop at the eastem limit of Sebatik but continued
eastwardsinto navigationally significant waters outt sea.
Section 3. Ratificationof theTreaty
5.44 ArticleVI11ofthe Convention provided that it watso be ratified,andthat it wasto come
intoforceaftertheexchangeofratificationswhich wasto:
"...take place at London one month, or sooner if possible, after the
said Convention shall have receivedthe approval of the Netherland
States-General".
Instruments ofratificationwere duly exchanged in London on22May 1892.
5.45 It is significant(see, para. 5.51,below)that specialmention wasmade ofthe need for
approval by the States-General ofThe Netherlands. Under the constitutional law of The
Netherlands atthe time, atreatyof the kind now in questionhad to be approvedby the States-
General before itcouldbe ratifiedbythe Crownof TheNetherlands,andthe importanceof this
approvalwas accordinglyaffirmedin ArticleVIII. So far as concemedGreatBritain,however,
81
MapNo. 8 intheMapAtlas.the treatydid not,accordingto British constitutionalpractice atthe time, requireanyequivalent
parliamentaryapproval,andratificationwasa processleftentirelyto the discretionof the Crown
(ineffect,the Govemmentof theday).
5.46 In order to secure the approval of the States-General, the Dutch Govemment,in
accordance with the constitutional requirements, submitted to the States-General a Bill,
accompanied by a Memorie van Toelichting (i.e. Explanatory Memorandum) 1890 1-891
Session,No. 187,No. 3, of 25July 1891~~.Thepurposeof sucha Memorandumwas toexplain
to the States-General the significance ofproposedtreaty, andwhy its conclusionwas in the
interests of TheNetherlands.
5.47 TheMemorandumstated(atp. 5)thatthe Government hadconcludedthat:
"The result of the negotiationson the boundary through the disputed
area on the eastern coast is thaton the basis of thestarting point, as
proposed by the British Government,at a latitude of 4"10'North at
Broershoekon the coast the boundaryis much more favourablethan
what had been desiredby the British. This can be seen from the map
attachedto thisMemorandum ...".
5.48 A copy of the map referredto (the "ExplanatoryMemorandumMap") appearsfacing
page88 as Map5.283.It showsfourdifferentboundarylines:
-a blueline:theboundary claimedbyTheNetherlands;
- a yellowline:theboundaryclaimedbythe BritishNorth
BomeoCompany;
- a greenline:theboundary suggested bythe British
Government;
-a redline:theboundarylineagreedinthe Conventionof
20June 1891.
82
83 Annex77, Vol.3.
Themapis alsoreproduceasMapNo.5intheMapAtlas.5.49 Apparentlysensitive to possible criticisms that theDutch Governmenthad conceded
territorytotheBritish,theMemorandum continued:
"Although comparisonof these different boundarylines may give the
impression that the Netherlands has givenup part of its territory, it
should notbe forgotten that before adisputeaboutthe boundary arose
the Netherlands Governmenthad never paid much attention to its
territoryon the eastern coastof Borneo, whichwas unknownto it and
also completely uninhabited, that the rightsof the Sultan of Bulungan
to the disputed area are not totally unchallengeableand, finally, that
instead of a highly uncertainboundarythrough a stretch of unknown
and inaccessible country avery accurately delineated boundary has
now been accepted which obviatesal1difficultiesin the futurenot only
concerningthe part of Borneo to whichthe boundary dispute related
but also concemingthe whole i~land"'~.
5.50 The Explanatory Memorandum map, and in particularthe red line drawn on it, shows
that theboundary lineas agreed followedthe parallelof latitude4"10'N startingat theeastem
coast of Borneo,crossing the watersat the mouth of the estuaryof the River Sibukoand the
island ofSebatik,andthencontinuing eastwardsbeyond that islandand outto seain a direction
running to the north of Pulau Sipadan and Pulau Ligitan. It thus clearly shows that Pulau
Sipadanand Pulau Ligitan fall ontheDutchsideoftheboundarylineagreedinthe Convention.
5.51 The map is a contemporaryexpositionby the Dutch Government ofthe meaning of
Article IV ofthe 1891Convention. In particular:
(a) Themapwas anintegralpartoftheprocessof ratificationof the Convention,
requiredby the terms of ArticleVI11of the Convention. As the Court said in the Ambatielos
case:
"The ratification of a treaty which provides for ratification.. is an
indispensable condition for bringing it into operation. It is not,
therefore,a mere forma1act, butanact of vital
84
85 Annex77, Vol.3,atp. 6.
Ambatielos, Preliminary ObjecJ,udgment,I.C.J.Reports195p.28, atp.43.Particular andspecificsignificancewas attachedin ArticleVIIIto the need for the approval of
the States-General.
(b) Themap is clear evidence ofthe intentionof the Dutch Government atthe
time of the conclusionof the 1891 Convention,and of its understandingof the effect of Article
IVinparticular .
(c) It is also clear evidence ofthe bais on which the States-Generalgave its
approval ofthe Convention,as requiredby Article VI11as an express preconditionfor theentry
into forceofthe Convention.
(d) It demonstrates themeaning attributedto Article IV by The Netherlands
when subsequently exchanging instruments orfatificationwith Great Bntain on 22 May 1892.
Moreover, notonly doesit showthat theDutch Government understood that in the easternpart
of Borneothe Conventionestablisheda boundaryline betweenpossessions offshore aswell as
onthe mainland, but @ycomparison withthe delineation ofthe boundaryat the westernend of
theland boundary) it alsoshowsthatwasintentional.
(e) Themap wasapublicly available document, and was published tih neofficial
records oftheDutch parliamentdong withtheExplanatory Memorandum itse1e6.
(f) The map wasknownto the British Government atthe timein the contextof
the 1891Convention (para.5.54,below). Giventhe absence ofprotest on the part of Great
Britain(para. 5.63,below), Great Britain acceptedthe interpretationof the Conventionreflected
bythe map.
(g) Moreover,the map is thus also an "instrumentwhich was made by one ..
part[y]in connectionwith the conclusionof the treaty and acceptedby the other part[y]as an
instrumentrelatedto thetreaty"withinthemeaningofArticle31.2(b)ofthe ViennaConvention
on the Law of Treaties 1969 - a provision whichcorresponds to the position in customary
86
See, paras.5.53-5.54low.internationallaw; assuch the rnap forms part ofthe contextof the treaty,for purposes of its
interpretation.
5.52 The circumstancessurroundingthepreparation,publicationandcommunicationtoGreat
Britain of the Explanatory Memorandumrnap are similar to those surroundingthe so-called
Livrejaunernapwhich wasacceptedbythe Courtasplayingan importantpartinthe Territorial
Dispute (Libyan Arab JamahiriydChad)caseg7.A Franco-British"AdditionalDeclaration"had
been adopted on 21 March 1899: it defineda boundaryline by descriptionin the text, but no
rnap was attached to the Declaration.A few days after its adoption the FrenchMinistry of
Foreign Affairspublishedthe text ofthe Declaration,withan annexed map,in a "Livre jaune".
Thisrnapwasalsoannexedtothe officia1text oftheDeclarationkeptinthe Ministry'sArchives.
The same rnap was attached to the exposédes motifs which accompaniedthe draft law
authorisingratificationof the Declaration before boththe Frenchhamberof Deputiesand the
Senateon 27 March 1899.Thernap hadalsobeen published inthe French press.Despitesuch
clear andcontemporaneouspublicawarenessofthe map, noprotestor other dissentfrom it was
madebythe BritishGovernment.Although,infact,thernapdifferedin certainrespectsfromthe
descriptionofthe boundary giveninthe textofthe Franco-BritishDeclaration,theCourt treated
thernapas an authoritativeinterpretationof that~eclaration~~.
5.53 The Explanatory Memorandum map,afterbeingsubmittedto the States-Generalas part
of the Explanatory Memorandum, hasbeen keptas partof the Netherlands' State archiveat the
"Algemeen Rijksarchiej"inTheHague.
On the British side, the BritishGovernment,through its Legation inThe Hague,were
5.54
informedofthe ExplanatoryMemorandurnandthernapannexedto it. Aspartof GreatBritain's
normalobservationof events inTheNetherlands whichaffectedBritish interests, theLegation
followedthedevelopmentsinthe States-Generalrelating to theapprovalofthe 1891Convention
87 TerritorialDispute (LibyanArabJamahiriya/, udgment,I.C.J.Reports1994,p.6.
88 Ibid.,atp. 18,para.28,p.30,para.58,p.37,para.61, andp. 34,paras.64-65.- amatterof publicknowledge at thetime, and an important matterofobviousand directinterest
to GreatBritain(as evidencedby the regular andfull diplomaticreportingof developmentsin
the Dutch Parliament, includingthe preparationof full translations of the debateg9). The
Legation reported thesedevelopmentsbackto London,accompanyingits reports with copies of
relevantdocuments. In his despatchNo. 9 of26 January1892~'Sir Horace Rumbold sentback
totheForeignSecretary:
"...two copiesof a Mapwhich haslately beenpublished in theofficia1
journal showing the boundary-line as agreed upon under the late
Convention, togetherwith the boundaries whichhad been previously
proposed.
"Thisrnapforms partof a Report presentedto the Second Chamberof
the States-General by a Cornmittee appointed to examine the
Agreement concluded last year by the Governrnentsof Great Britain
andthe ~etherlands"~'.
Themap'ssignificancewas notedby SirHorace Rumboldin adding that it "seems to bethe only
interestingfeatureof a documentwhichdoesnotothenvisecal1forspecialcomment".
5.55 Moreover, acopy of the Explanatory Memorandum rnap is held at the British Public
Record Office, Kew (catalogueref. FO925 No. 2541). That map, althoughnot formallyan
integralpartofthe Convention,isfiled togetherwiththe Convention,presumablyas a result ofit
having been concurrentlyreported backto the ForeignOffice by the British Legation in The
Hague,and forgeneralconvenience.It at leastappears,fiom theletterof 29 July 1994fiomthe
British Chargé d'Affaires in Jakarta,that the Conventionand rnap were placedin the British
archivesatthe sametime 103yearsearlier,i.e.,in 1891g2.
--
89
90 See,para.5.57,below.
91 Annex81, Vol.3.
IncertainrespectsSir HoraceRumboldmisreportedtheDutchParliamentarp yrocesses. Thernapwas
submittedby theGovemmenttotheSecondChamber aspartof theprocedure foobtainingapprovalof
the Convention. The Second Chamberreferred themap,alongwith the Explanatory Memorandum
whichit accompanied,to aCornmitteefor examination.Themap,as well asthe Memorandumw , as
publishedintheofficia1recordsoftheParliamen,utnotin theOfficia1Journ(Staatsblad).
92 Annex175,Vol.4.5.56 Followingthe second Chamber's comments in its Voorlopig Verslag[i.e. Preliminary
Report],the Government responded in itsMemorievanAnîwoord[i.e.Memorandum of Reply].
Inthis theGovernmentrepliedto theCommittee's comments, and explained:
"...the advantages of the arrangement come to, as settling for good
and al1 the entire question of the boundaries between Dutchand
British protected territoryin Borneo, everything situatedto the South
of the line of demarcation agreed upon being now expressly
recognisedas 'the Netherlands possessions inthe islandof ~orneo"'~~.
5.57 On 8 March 1892, the Second Chamber of the States-General approved the1891
Conventionunanimo~sl~~~S . ir Horace Rumboldlater sent a copy of a full translationof the
debatewhich took place inthe SecondChamberof the tat tes-~eneral~~.
5.58 During the course of the debate, Mr. van Tienhoven (Minister for Foreign Affairs)
emphasisedthe benefit to The Netherlands of having definitively settled the British-Dutch
boundaries in Borneo and so avoidingthe possibility offuture disputes,especiallywhen it was
borne in mind that none of the boundaries was clearly defined before,with disputesconstantly
arising:
"LitesJinireoportet is as applicableto public as to private claims, and
after the long continued dispute aboutthe fixing of the boundary line
of our territory in Borneo and our attitude in that island as regards
England the solution now arrived at may be designated as a very
desirableone...
"Thedisputeswhich have arisenare now terminated, andthose which
might othenvise arise in the future are as far as practicable
prevented....
"The dispute will be terminated by the ratification of this treaty and
difficultiesin the futurewillbeprevented"96.
93
94 DespatchfromSirH.Rumboldto LordSalisburydated 23 February1892,Annex82, Vol. 3.
95 DespatchfromSirH.Rumboldto LordSalisburydated9 March1892,Annex83, Vol. 3.
96 DespatchfromSirH. Rumboldto LordSalisburydated18 March1892,Annex84, Vol. 3.
Ibid.,atpp.33,34and42.Thus the Foreign Minister - consistently withhis predecessor'swish in 1888 that theparties
shouldcometo a "complete" understanding (para.5.11,above) -was atpains to emphasisethe
belief of TheNetherlands that anend had beenputto al1disputesabouttheAnglo-DutchBomeo
boundary,fiom which itfollowsthat no known territorialquestion - such as that conceming
offshoreislands -had beenleft unresolved.
5.59 The importance of stability and finality as importaont jectivesin boundarysettlements
was notedbythe Court inthe Temple of Preah Vihearcase. The wordsofthe Court in that case
apply, mutatismutandis,with equivalent force to the presentsituation;theCourtsaid:
"Variousfactorssupportthe viewthat the primaryobjectofthe Parties
in the frontier settlementsof 1904-1908was to achieve certaintyand
finality. From the evidence furnished tothe Court, and fiom the
statements of the Parties themselves, it is clear that, the whole
questionof Siam's very long frontierswith French Indo-Chinahad, in
the period prior to 1904, been a cause of uncertainty, trouble and
friction, engendering what was described in one contemporary
document placed beforethe Courtas a state of 'growingtension' in the
relations between Siamand France. The Court thinks it legitimateto
conclude that an important, not to Say a pararnount object of the
settlements of the 1904-1908 period (which brought about a
comprehensive regulation of al1 outstanding fiontier questions
betweenthe two countries),was to put an end to this state of tension
andto achievefiontierstabilityon a basisof certaintyand finali~"~~.
5.60 Inthis respect,the Courtwasfollowing earlierpronouncementsin whichthe importance
of the finalityand completeness ofsettlementsof disputedboundarieswas relied on as a basis
for their interpretation. its AdvisoryOpinion onInterpretation of Article 3, Paragraph2, of
theTreaty ofLausanne(1925)thePermanent Courtnotedthat:
"It is..natural that any article designedto fix a frontier should, if
possible, be so interpreted that the result of the application of its
provisions in their entirety shouldbe the establishment of a precise,
completeanddefinitive fr~ntier"~~.
97
98 TempleofPreah Vihear,Merits, Judgment,I.C.J.Reports 1962atpp.34-35.
Interpretation of Article3, Paragraph 2, of the Treaiyof Lausanne,Advisory Opinion, 1925, P.C.I.J.,
SeriesB,No. 12atp.20.To similareffectwas the observationof theCourtin Sovereignîyover CertainFrontier Land,
that:
"Anyinterpretationunderwhichthe BoundaryConventionis regarded
as leaving in suspense and abandoning for asubsequent appreciation
of the status quo the determination of the right of one State or the
other to the disputed plotswould be incompatiblewith that common
intention",
namely,the comrnonintentionexpressedin the preambleto "fixand regulateal1that relatesto
the demarcationof the fr~ntier"~~ T.he equivalentpreambularlanguage inthe 1891Convention
(which is entitled"Convention... definingboundaries in Borneo") records thatthe partieswere
"desirous ofdefiningtheboundariesbetweentheNetherlandpossessionsin theIslandofBorneo
andthe Statesinthat islandwhich are underBritishprotection"100.
5.61 The ratificationof the Convention also requiredthe approvalof the Bill by the First
Charnber of the States-General. This was quickly forthcorning. It is significant that the
Government, inresponse toan assurnption expressedin the Final Reportof the Cornmitteeof
Rapporteursadoptedon 31March18921°', gavethereassurancethat theGovernment recognised
that itsdutywas to ensurethat "therightsin relationto localrulersboth inBomeo itselfandon
theneighbouringsmallerislandsare regulated insucha waythat dificulties with other Powers
need never be feared with regard totheir respective ~laims"~".This removes any possible
ambiguityover the interpretationof the 1891 Conventionand the fact that it way meant to
resolve al1territorialissuesonceandfordl.
5.62 Followingon the ratificationandentryintoforceof the 1891Convention,the definition
of the territorialxtent of Boeloengan agreedin the Contractsof vassalageof 1850and 1878
99
100 Sovereignw over CertainFrontierLand,Judgment,I.C.J. Reports 1959,p. 209, at pp. 221-222.
101 Annex 75, Vol. 3.
'O2 Annex85, Vol. 3.
Proceedings of theFirst ChamberoftheStates-General,1891-18915~ meeting ,April 1892,speech
by Mr Van Dedem,Ministerforthe Colonies(unofficialEnglitranslation)t p. 3, Annex86, Vol. 3.
(Emphasisadded).(paras. 4.68, 4.70 and 4.71, above) was amended to bring it into conformity with the
Convention.Thenewtext,in relevant part, read:
"...theislandsof TarakanandNanoekan,and that portion of the Island
of Sebitik,situated tothe south of the above boundary-line described
in the Indisch Staatsbladof 1892,No. 114,belong to Boeloengan,as
well as the small islands belongingto the aboveislands,sofar as they
are situatedto thesouthof the boundary-line.. .110.
This new textwas communicatedto the BritishGovernmenton 26 February1895. Thefinal 12
words ofthis text show thatthe Dutch Government continued to regard- and so informedthe
British Government -the effect ofthe 1891Convention as being to establish aline ofterritorial
attribution extendingout to sea,thus reinforcingthe equivalentinterpretationevidencedby the
Explanatory Memorandum map. Thisnew textremovesanydoubtwhichthere couldothenvise
be regardingthe ownershipof Ligitan and Sipadan. Taken together with the circumstances
surrounding the Explanatory Memorandum map, it shows that imrnediatelyfollowing the
conclusion and entry into force ofthe 1891 Convention,The Netherlandswas firmly of the
opinion that - in keepingwith the previous situation - the islandslying south of the 4" 10'N
parallel belongedto it, and this was not challengedby the British Government whichwas
officiallynotifiedofthis interpretation.
5.63 The significance of the British Government'ssilence in the face of official
communicationstoit of mapsandtextsdemonstratingthe DutchGovernment'sinterpretation of
the 1891Convention can scarcelybe overstated. Despitethe BritishGovernment's knowledge
of the Explanatory Memorandum map - drawnto its attentionat the highest level(bydespatch
to the Foreign Secretary)- no recordhasbeen found,eitherin Britishor Dutch sources,of any
dissenton Great Britain's partfiom the delineation ofthe boundarydepictedon the map or of
any British protest againstthe map or the relevant parts ofthe Memorandumto which itwas
annexed. Thisknowledge, coupled with lackof protestor otherdissent,impliesGreatBritain's
103
Annex91,Vol. 3.(Emphasi sdded).assentto the contentof the map, andthus to itsdepiction ofa boundaryline in a positionsuch
that PulauSipadanand Pulau Ligitan form part of The Netherlands' territory. GrB eattain,by
its implied agreementto the interpretation of ArticIV of the Conventionas understoodby the
Dutch Governrnent,andthus its acceptanceof the rnapas an accuratereflectionof the intention
and meaning of the 1891 Convention, is thus legally comrnitted to the Explanatory
Memorandum map, which accordingly represent he parties' agreementon the matter. This
situation having arisen asa direct part ofthe process surrounding the conclusion of the
Convention,the partiescanbe saidto have adoptedthernapas part of theirtreatysettlement,as
theiragreedinterpretationofArticle IV ofthe 1891 Convention.
5.64 In this respectthe situationbears considerablesimilaritiesto that whichobtainedin the
Temple ofPreahVihearcase. There,a rnap(referredto as "the Annex1map") representing the
workof a demarcationcommission whichhad the task of demarcatinga boundary set outin an
earlier treaty of 1904 was communicatedto the Siamese authorities (the forerunnersof the
present-dayThai authorities): the rnap delineated a line which was argued not to be in al1
respects identicalwith the line ofthe watershed adoptedby the termsof the treaty. The Court
concludedthat:
"the circumstances were such ascalled for some reaction,
(i)
within a reasonable period,on the part of the Siamese authorities, if
they wishedto disagree withthe rnap or had any serious question to
raise in regardto it. Theydid not doso, eitherthen or for manyyears,
and thereby mustbe held to have acquiesced Qui tacet consentire
videtursi loquidebuisset acpotuisset."
(ii) "Evenif there were any doubts asto Siam's acceptance of the
rnap in 1908, and henceof the fiontier indicated thereon, the Court
would consider,in the light of the subsequent courseof events, that
Thailandis now precludedby her conductfiom assertingthat shedid
not acceptit."
(iii) "Both Parties, by their conduct, recognisedthe [Annex Il line
andtherebyin effectagreed toregardit as beingthe frontierline."
(iv) "The Court considers that the acceptanceof the Annex 1rnap
by the Parties caused the rnap to enter the treaty settlement and to
become an integral part of it. It cannot be said that this process involved a departure from, and even a violationof, the terms of the
Treaty of 1904,whereverthe rnap line diverged fromthe line of the
watershed, for, as the Court sees the matter, the rnap (whether in al1
respects accurate by reference to thetrue watershed line or not) was
acceptedby the Partiesin 1908andthereafteras constitutingtheresult
of the interpretation givenbythe two Governmentsto the delimitation
which the Treaty itself required. In other words, the Parties at that
time adopted an interpretationof the treaty settlement which caused
the rnap line, in sofar as it may have departed fromthe line of the
104II
watershed,to prevail overtherelevant clauseof the treaty .
In the present case, the Parties' predecessorsin title can be seento have agreed uponthe line
shown in the Explanatory Memorandumrnap as the correct interpretation of the 1891
Convention,as part of their treaty settlementof the disputed boundary between themin the
Borneo region. Moreover, in the present case, the line shown in the Explanatory
Memorandummap, unlike the rnap in the Templecase, does not depart fiom the line of the
1891Convention.
5.65 In the Convention itself, theparties recognised fromthe outset that the boundary
described inthe Convention wouldneed further elaborationin detail. They made provision
accordingly.ArticleVprovided:
"The exact positionsof the boundary-line,as described in the four
preceding Articles, shallbe determinedhereafterby mutualagreement,
at such times as the Netherland and the British Governments may
thinkfit."
By two lateragreements - concluded in1915 and 19281°5 -effectwas givento this provisionin
relation to parts of the 1891 Anglo-Dutchboundary line. Clearly, since the line had been
determinedbyreferenceto aparallelof latitude,itsseawardextensiondidnot cal1foranyfurther
precision,nor didcircumstancesat sea allowforanyspecific demarcation.
104 Templeof Preah Vihear,Meri, udgment,C.J Reports 1962,p.6, atpp.23 and32-34.
105 Annex118,Vol. 3,andAnnex125,Vol.4. PursuanttoArticle50,para.2, of theRulesof Court,copies
ofthemaps attached ttoherespectiveagreements havenepositedintheRegistry. Section4. Conclusions
5.66 The facts and argumentsdeployedin this chapter demonstrate that,whatever doubts
there might havebeen upto the late 1880s asto the courseof the dividing linebetweenDutch
and British possessions innorth-easternBorneo, withthe conclusionand ratificationof the
Conventionof 20 June 1891between Great Britain and TheNetherlandsany suchdoubtswere
finally setaside.
5.67 The Convention,by its terms, its context,and itsobjectand purpose,established the4"
10'N parallel oflatitudeas the dividing line betweenthe parties' respectivpossessionsin the
areanowinquestion. The islandspresently in dispute - Ligitan andSipadan - lieto the southof
that parallel. It thereforefollows thatunderthe Conventiontitle tothose islandsvested in The
Netherlands, andnow vestsin Indonesia.
5.68 By its conduct atthe time, and inparticularby virtueof the ExplanatoryMemorandum
map and its variationof the Contractwith the Sultanof Boeloengan, theDutch Government
demonstrated its understanding ofthe meaning to be attributed to Article IV of the 1891
Convention. It did soby meanswhichwerenot only public knowledgeat the time,but alsoby
means of which the British Government were officiallyinformed. Great Britain'sfailure to
protest,or in anyotherwayto dissentfiomthe DutchGovement's viewsof whichit had such
public andofficialknowledge, showedthat it acceptedthoseviews as the correct interpretation
ofthe 1891Convention.
5.69 It follows that title to the islands now in dispute was settled in favour of The
Netherlands,and now (by wayof succession)in favour ofIndonesia,by virtue of the treaty
settlementembodied inthe 1891Convention.5.70 Inturn i,furtherfollows(as decidedbya Chamberof the Court inthe FrontierDispute
caselo6),that, while subsequentefeectivitésw , hether inthe form of officia1maps or of other
evidence of State activitycan (if they are in accordance withthe legaltitle establishedbytreaty)
serveto confirmthat legaltitle,theycannot(iftheyare contraryto that legaltitle) serve so asto
overthrowthe legaltitlederivedfkomandbasedon the Convention.
5.71 It is within this fiamework that,in the followingchapters of this Memorial,Indonesia
will considerthe activitiesof the Partiesto this dispute,and ofotherrelevantStates,whichmay
havea bearingonIndonesia'stitleasestablishedbythe 1891Convention.
106
FrontierDispute, Judgme I.t.JReports 1986,p.554,atpp.586-587,para 63. CHAPTERVI
RESPECTOFTHE 1891LINEIN PFUCTICE
6.1 In this part of the Memorial,Indonesia willdemonstratethat, followingthe conclusion
of the 1891Treaty, both The Netherlandsand GreatBritain and, subsequently,Indonesiaand
Malaysia,in practice treated the 1891 Treatyline as one allocating sovereigntyover offshore
islands eastwardof SebatikIsland with both ofthe disputed islands in this casebeing treated
asDutch and,later,Indonesianterritory.
Section1. Activitiesof The Netherlands and Indonesiawith Respectto the
Islands
A. Dutch Activities
6.2 A highlyrelevantexampleof suchpracticefollowingthe 1891Convention isprovided
bythe policing activitiesrriedout in the areaby shipsof the RoyalNetherlandsNavy forthe
purpose of protecting the coastalpopulation against acts of piracy and robberyby the Bajau
Laut tribe originating from the SuluArchipelago.A report by the commanding officer of a
Dutch naval vesse1 present in the area in 1921 provides a detailed account of one such
expedition.
6.3 The HNLMS destroyer Lynx, carrying a seaplane on board, patrolled the area in
November andDecember 1921.Fromthe excerptof the report submittedby its commanderto
the Commander NavalForces Netherlands Indies, who had provided the instructions to the
commander,it can be seenthat the Dutch authoritiesconsideredboth Pulau Ligitanand Pulau
Sipadan to be islands under Dutch sovereignty, whereasother islands situated north of the1891line (e.g., Si Amil)were consideredto be ~ritish'. This is demonstratedby the fact that
the commanderof theLynxsailed within theterritorialsea ofSipadanand sent an armedsloop
to the island for theurpose of checkingif there were any pirates present,but stayedoutside
the 3 nautical mile territorial sea limitof islands such as Si Ami1lying north of the 4" 10'N
line of latitude. The commanderof the Lynxhad a number of wireless contactswith the
British officia1in Tawau who was kept informedof the Lynx'songoing policing activities.
The CommanderNaval Forces NetherlandsIndies also directly informed the BritishConsul-
General inBatavia (Jakarta)ofthe voyage of theLynx. The British raisedno protestsover the
Lynx'sactivities.
6.4 More specifically,thereportshowsthaton 24 November 1921a seaplane launchedby
the Lynxstayedjust outsidethe three-mile limitof Si Amil, where reportshad been received
as to pirate activity, to interview a numberof Bajau Laut present there on small boats. On
26November, anarmed sloopwas sent from theLynxto Sipadanon which were found a few
itinerant fishermen. The sarnedaythe seaplanemadea furtherreconnaissancetrip toSi Amil,
once again stayingthree milesfrom theisland. Instructionsreceivedby the commanderlater
that day specificallyreferto arrestingpirate boatsoutsideBritish territorial watersand to the
fact that the British authoritieswere being notified accordingly. On 28 November, the
seaplane again landed and stayed just outside the three mile limit of Si Amil. On
30November and 1December,the Lynxsailed closeto Sipadan,stayingoutsidethe territorial
sea of SiAmi1in the process,afterwhich itproceededto the vicinityof Ligitan. The seaplane
made a tour of Ligitanto the west,navigating throughthe airspace of the islandssouth of the
1891line.
6.5 In short, the report demonstrates that the commander of theLynx, following his
instructions, scrupulously respectedthe 1891 Treatyline as allocating territorialsovereignty
over the offshore islandsin the area (and, consequently,the territorial seaareas generatedby
1
A copy of the relevantextractsfrornthe Report attached toa letter dated 4 January 1922(with English
translation) is attached as120,Vol.4.such islands). In particular, the landing on Sipadan of armed Dutch naval personnel and the
visit to the vicinity of Ligitanconstituted actspar excellenceof the exercise of governmental
authority with respect to the islands. Moreover, the report reveals that suspicious vessels
suspected of piracy were warned to stay clear of Dutch territorial waters. As a result, Pulau
Ligitan andPulau Sipadanwere treated as Dutch islands.
B. Indonesian Activities
(i) Naval Patrols to the Islands
6.6 Prior to the emergence of the dispute in 1969,the Indonesian Navy was also active in
the area, visiting Sipadan on several occasions. Attached as Annexes D, F, G and H are four
affidavitsprepared by Indonesian naval personnel whoparticipatedin a number of visits to the
islands between 1965and 1968.
6.7 These visits are significant in three respects. First, they demonstrate that Indonesia
considered the islands to fa11under its sovereignty. At no time were any Indonesian naval
patrols authorised to visit any islands lying north of the 4" 10' N latitude belonging to
Malaysia. The patrols were limitedto Sipadan and Ligitan and other Indonesian islands lying
in the vicinity of Sebatik. Second, it is clear from each of the reports that, at the time, both
Sipadan and Ligitan were uninhabited. Third, at least one of the patrols was prompted by a
report that foreign fisherrnen had been spotted poaching sea resources from the islands. In
responseto these reports, an Indonesian naval unitwas sent to Sipadan in December 1967,but
reported "there was no signor indicationthat there was any person living on that islandM2.No
protests were forthcoming fi-omMalaysia regarding anyof these visits.
6.8 After 1969, the Indonesian Navy continued to undertake periodic visits to the islands.
These activitiesare discussed further in ChapterVIII~.
2 See,the afidavit of Sail1" Class Ilyas regarding a visit to the is1967sattached at AnneD,
Vol. 5.
3 See, para8.92,below. (ii) Traditional FishingActivities
6.9 Indonesian fishermenhave also traditionally plied theirtrade around the islands of
Sipadan and Ligitan. In Annexes 1, J, K, L and M, the Court will find a series of five
affidavitswhichprovideexarnplesof the kinds of traditional fishing activities thatIndonesian
fishermen carriedout on and aroundthe islands. Thesestatementsrecord visits to the islands
dating back to the late 1950s and early 1960s. They also show that Indonesian fishermen
continued to fish around the islands, sometimesstaying overnight on Sipadan, in the early
1970safterthe disputehad emerged.
Section2. TheOilConcessionActivitiesofthe Parties
6.10 During the 1960s, both Indonesia and Malaysia started granting offshore oil
prospecting licenses eastof Sebatikisland. It is highly significant that, incarryingout these
activities,both Parties respectedthe 4" 10'N latitude as forming the limit of their respective
jurisdictions. Indeed,in 1967 the Malaysian Government publishedan officia1map which
depicted the Malaysian concessions aslying north of the 4" 10'N line and showing the4"
10'N line itself as constitutingthe internationalboundary between Indonesia andMalaysia
stretchingfrom Sebatikislandwell to the east of Sipadanand ~i~itan~.As such,the offshore
petroleurnactivities of the Partiesconfirmthat both Indonesia and Malaysiaregarded the4"
10' N latitude establishedby the 1891 Convention as defining the limits of theirsovereign
rights.
A. TheIndonesian JAPEX Concession
6.11 The first petroleumlicence grantedby Indonesiato a foreign companyin the relevant
area was a Production SharingAgreement enteredinto on 6 October 1966between the
Indonesian State-ownedcompany,P.N. PertarnbanganMinjak Nasional ("PERMINA"),and
4
A copy of this map faces 106of this Memorial andisreproducedintheMapAtlas as Map No.16.the Japan Petroleum Exploration Co.,Ltd ("JAPEx")'. The contract covered two different
areas,the limits of whichwereset out inExhibitsA andB to the agreement.
6.12 The firstpreambular clause of the agreementprovidedas follows:
"PERMINAhas an exclusive 'Authority to Mine' for minera1oil and
gas in and throughout the areas described inExhibit A and B attached
hereto andmade apart hereof."
6.13 For purposes of the present case,it is the offshorecontract area described in Exhibit
A -2 which is of particular relevance. Ascan be seenfrom Map 6.1,the northern limits of the
contract area extended from the eastcoast of Sebatik island due east along the4" 9' 30"N
parallel of latitude to a distance of some 27 nautical miles offshore. This latitude was
carefully chosen so as to respect the 4" 10' N line, stopping30 seconds of latitude - or
approximately 900 metres - south of that line soas to ensurethat petroleum operationswould
not encroach upon areas lyingnorth of that line appertainingto Malaysia. The licencedid not
giverise to anyobjections from the Governmentof Malaysia.
6.14 On 25 July1970,the Total OilCompanyof Franceobtained a 50 percent participation
interest in the contract area along with JAPEX. Further participating interests in the licence
were subsequently awardedto Calasiatic Oil Company and TOPCOin October 1975,and to
the German oil CompanyDeminexin December 1979.
6.15 In the event, the exploration activities ofthese companies were unsuccessful,and the
contract was terminated on 5 August 1981, well after the dispute had arisen between the
Parties concerning sovereigntyover Pulau Sipadanand Pulau Ligitan.
6.16
From 1970 to the present, Indonesia has licensed other offshore blocks east of
Kalimantanto companies suchas BP, ShellandARCO,but due to the unprospective nature of
the area along the4" 10'N latitudethese blocks fellsouthof the areaof concern in the present
case. Nonetheless,it is clear from theJAPEXITotallicence that Indonesia considered that its
jurisdictional rights extendedup to the4" 10'N lineandthat Malaysia didnot object.
5 Acopy oftheProduction SharingAgreementisattachedatAnnex129,Vol.4. B. Malaysia's Offshore Oil Concessions in the Area
6.17 Malaysia's petroleum activitiesin the area commenced on16 July 1964 with the
signatureof a concession agreement withthe Japanese Company,Sabah Teiseki Oil Company
("~eiseki")~.The initial concession area was limitedto an onshoreblock lyingto the north of
the 1891 boundaryand henceof limited relevance tothe present dispute.
6.18 In 1968,the Malaysian Ministry of Lands and Mines published its 1967 AnnualReport
on geologicalsurveyingwork that was being carried out in the Borneoregion of the country7.
The Report referred to the fact that Teiseki already held an onshore oil prospecting licence
over 137 square miles in the Sebatik area. This was a referenceto the original 1964
concession agreement. The Report went on to statte hat:
"..duringthe year an applicationby the Company fora further 7,346
square miles covering muchof the Dent and Semporna Peninsulas and
adjacent marine areaswas approved(13and 14in fig.s)"~.
6.19 The Report containedan officia1map of Malaysia's concessionareas in Sabah which
appearedas Figure 8in the Report. A copy of thismap is in the Map Atlasas Map No. 16.
Foreaseof reference,the map has been reproducedasMap6.2 facingthis page.
6.20 Appearingas it did in anofficia1publication of the Malaysian Ministry of Lands and
Mines, the map is of particular significance. Ascan be seen, the limits of the various oil
prospecting licenses grantedby Malaysia were outlinedin red on the map. AreasNos. 12-14
were listed as having been grantedto Teiseki. Area 12 correspondedto the original 1964
onshore Teiseki concession northof Sebatik. Areas 13 and 14 covered, respectively, the
onshoreDent/Sempomablock andthe offshore marine block.
6
7 The coordinatesof Teiseki's concessionareasare attached asAnnex 131,Vol.4.
8 A copy of the relevantextractfiom the 1967AnnualReport is attached as Annex130,Vol.4.
Ibid.,at p. 30.6.21 It is clear from the map, which indicates at the bottom right that license areas are
"correct of 1st January 1968 including approved applications", that Block No. 14 - the
offshore concession -coincidedvery closelywith the extension of the4" 10'N line of latitude
from the islandof Sebatikto a point lying well eastward of Sipadan and Ligitan. Aswill be
seen below9,the actual coordinates of this block show that Malaysia limited the southern
limits of the offshore Teiseki concessionto the 4" 10'30"N latitude,thus creating a "buffer"
zone equivalentto that establishedby Indonesia in its licenceto JAPEX. It was thus apparent
that Malaysia, just as Indonesia,fullyrespected the4" 10'N line of latitude establishedby the
1891Conventionin awarding its offshoreoil contracts.
6.22 Equally significant is the fact that the legend appearing in the top lefi corner of the
Malaysianrnap refers to the international boundaries of Sabahas being depictedon the rnap
by a dashed black line. If reference is made to the area lying eastof the island of Sebatik,
includingthe area whereSipadanand Ligitanare located,it will be seenthat Malaysia showed
the internationalboundarywith Indonesiaas correspondingto the 1891 line extending outto
sea. As with the limits of Malaysian Block No. 14; the international boundary extends to a
point lyingwell tothe east of the two islands leaving the islands on the Indonesiansideof the
line.
6.23 If referenceis made backto the 1903 Stanfordrnapwhich depicted the offshore limits
of the BNBC in the area (thernap can be found facing page 118of this Memorial), it will be
seen that the internationalboundary depicted on the 1968 Malaysian Ministryof Lands and
Mines rnap coincided with the limitsof the BNBC'sadministrative boundaries appearing on
the 1903 map. The 1903 map, in turn, reflected the agreement thathad been reached in the
1891 Convention. Thus, Malaysia's position in depicting its international boundarywith
Indonesia and in granting oil concessionsin 1968 was entirely consistent with the BNBC's
views 65 years earlieras to the extentof itsjurisdiction.
9 See,para.6.26,below.6.24 It ishus apparent thatas of January 1968- in other words,one yearbeforethe dispute
emergedbetween the Parties - the Malaysian Governmentwas clearly of the view that the
limitofitsjurisdictionvis-à-vis Indonesiainthe areain which SipadanandLigitanare located
correspondedto the4" 10' N parallel. Therewere nodisclaimerson themap.
6.25 While the Teiseki offshorelicence application appearsto have been approvedby the
Malaysianauthoritiesby 1 January 1968,the actualdate of signatureof the agreementwas 1
July 1968. Thiscan be seenfromthe detailsof the concession furnishedas Annex 131to this
Memorial.
6.26 The area covered by the offshore Teiseki concessionis depicted on Map 6.3. The
southernlimitsof the concessionareawerefixedby a line connectingtwo points - Point 7 and
Point 7a - east of the Island of Sebatik. As the concession documentmakes clear, this line
trackedthe 4" 10'30" N line of latitude. Just as Indonesiahad limited the northern extent of
its 1966permitto JAPEXto a lineof latitudefalling 30 secondsof latitudebelowthe 4" 10'N
line, so also did Malaysialimit the southernextent of its own concessionto Teiseki to a line
of latitudefalling30 seconds above,orto the north of, the4" 10'N line.
6.27 According to the information availableto Indonesia, the Teiseki concession was
terminated in 1978,ten yearsafter it had been granted, and nine years after the dispute first
emerged betweenthe Parties over the ownership of Sipadan and Ligitan. Just as Malaysia
never protested Indonesia's licenseto JAPEX, so also Indonesiahad no reason to protest the
Teiseki concession. At no time during this period did Malaysia grant any concessions
extendingsouthof the 4" 10'N lineof latitude.
C. Conclusion
6.28 It is abundantly clear that, in granting offshore oil licenses, both Indonesia and
Malaysia respected the4" 10'N line of latitude establishedby the 1891 Convention as the
limit of their respective activities. As noted in Chapter II, both PulauSipadan and PulauLigitan liesouth of the 4" 10' N line. Thus, the clear implication ofthe Parties' conduct in
granting offshore petroleum permits was that each of the islands appertained to Indonesia.
Moreover, as will be discussedin Chapter VIII, the subsequent activitiesof the Parties in
establishing navigational aids the areaalso showed amutualrespectforthe 1891linelo.
6.29 The Parties'mutual respect for the 1891 line inthe grant of oil concessions and in
undertakingother activities recallsthe Court'sdecision in thLibya-Tunis caae wherethe
existence of a defacto line separating the parties' respective offshore oil concessiwsas
deemedby the Court tobe a highly relevant circumstance in the delimitation ofthe maritime
boundary between theml'. While that case involved maritime delimitation,not a
determinationof sovereignty,the case is still apposite in underscoringthe importance of a
consistent patternof conduct by the interested parties forpurposes of ascertaining what the
parties themselves considered tobe the boundary situation. Inthe present case,the Parties'
conduct not only evidences their mutual recognition of a line separating each Party's
jurisdiction, but also their respect for the treaty-based line establishedby the 1891
Convention.
Section3. MapEvidence
A. Introduction
6.30 Chapter V of Indonesia's Memorial established that The Netherlands and Great Britain
agreed in their Convention of 20 June 1891 that the boundary between their respective
possessionsin the areanow in question followed the parallel 4" 10'N latitude, and that this
boundary continued eastwardsalong that parallel across the islaof Sebatikand out to sea
through Sibuko Bay. The boundary running along that parallel leavesthe islands of Ligitan
and Sipadanonthe southern,i.e.,Indonesian,sideofthe boundary.
IO See,paras.8.41-8.45, below.
II ContinentalShelf (Tunisia/LibyanArab Jamahiriya),Judgment,I.C.J. Reports 1982, 84,18, at p.
paras. 117-118.6.31 This Section reviews the relevant mapevidence, from both official and non-official
sources, covering the period from 1881to the early 1970sjust after the disputehad emerged.
As will be seen, this evidence confirms the foregoingreading of the 1891 Convention. In
particular,maps preparedby British sourceson behalf ofthe BNBC, andby officia1Malaysian
governmental agenciesbefore the dispute arose in 1969 (and even some produced after that
date), are consistent in depicting theboundary line as extending offshore to the northof the
known locations of the islands of Ligitan andSipadan,thus leaving them on what is now the
Indonesian sideof the line.
6.32 The legal relevance of mapshas been discussed in a number of judicial precedents.
For example, the Chamber of the Court in the Frontier Disputeobserved that the "actual
weight to be attributed to maps as evidencedepends on a large number of cons ide ration^"'^.
Whilethe Chambernoted that maps do not, in and ofthemselves, constitute a territorial title,
mapsmay still have suchlegal force where they:
"fa11into the category of physicalexpressions of the will of theState
or States c~ncerned"'~.
6.33 As will be seen, in the present case there are a large number of Dutch, Britishand
Malaysianmaps which indeedfa11into the categoryof the "physicalexpressions of thewill of
the State or the States concerned". While these maps do not constitute a territorial title by
themselves, they cornrnandsignificantweight inthe light of their consistent depiction ofthe
1891Treatyline as separatingthe territorialpossessions,includingthe islands, ofthe Parties.
6.34 Even in other circumstances,mapsmay have corroborative or confirmatory character.
Thus,the Charnberof the Court in theFrontier Disputestatedthat:
"...maps . .. have no greater legal valuethan that of corroborative
evidence endorsing a conclusionat which a court has arrived by other
means unconnectedwith the maps. In consequence, except when the
maps arein the category ofa physicalexpressionofthe will ofa State,
they cannot in themselves alone be treated as evidence of a frontier,
l2
13 Frontier Dispute,Judgment,I.C.J.Reports 1986,p. atp.582, para55.
Ibid.para.54. since in that event they would form an irrebutable presumption,
tantarnount in fact to legal title. The only value they possess is as
1114
evidence of an auxiliary or confirmatorykind.. . .
6.35 Moreover, the Arbitral Tribunal in the Eritrea-YemenArbitration adopted a similar
position statingthat:
"...since the Tribunal has arrived at its legal conclusions about the
status of the Islands on the basis of the diplomatic record and
agreements entered into between 1923 and 1939, the map evidence -
whilst supportive of and consistent withthe conclusions reached - is
not itself determinative. Were there no other evidence in the record
concerning the attitude and intentions of Italy, this evidence wouldbe
of greater importance"15.
6.36 Other decisions of internationaljudicial and arbitral tribunals have acknowledged that
maps can be relevant in a nurnber of ways to questions of boundary delimitation even where
the boundary itself is determined by the terms of a particular treaty. The question of the
relative weight to be given to a map and a treaty text is, as Judge Fitzmaurice noted in his
Separate Opinion in the Templecase, "one that must alwaysdepend on the interpretation of
the treaty settlement, consideredas a whole, in the light of the circumstances in which it was
arrived at"16.The diplomatic circumstances whichled to the settlement embodied inthe 1891
Convention have been explained in ChapterV of this Memorial. In the context of the present
dispute maps are, against that background, relevant inthe following main ways:
(i) as a physical expression of the parties' intentions and expectations in entering
into the negotiations leadingto the boundary Convention concludedby them on
20 June 1891;
(ii) as an officia1and contemporaneous physical expression oftheir interpretation
of the terms of that Convention;
14 Ibid., at p. 583, para. 56.
15 EritreaIYemen Arbitration, Award of the Arbitral Tribunal in the Fust Stage of the Proceedings,
9 October 1998,p. 96, para. 375.
16 Temple of Preah Vihear, Merits, Judgment, I.C.J. Reports 1962, p. 6, Separate Opinion of Sir Gerald
Fitzmaurice,pp.65-66. (iii) as evidenceof their attitudesin the yearsirnmediatelyfollowing the conclusion
of the Conventionas to itsterritorialeffect;
(iv) as evidenceof generalreputeasto the territorial effectsofthe conclusionofthe
Convention;
(v) as admissionsagainst interest by States publishingofficia1maps, and thus as
evidenceof itsassumedwill.
6.37 Given that no map was includedin the 1891Convention as an integral part of the
Convention, it is the terms of the Convention which determine the delimitationof the
boundary agreedin it and thus title to territory on either side of the agreed boundaryline.
Maps, generally speaking, can throw light on the meaningto be attributed to a treaty's terms,
and can confirm the meaningalreadyapparentfrom its terms. Where, as in thepresent case,
theypoint consistentlyin the samedirectionasthat whichfollows from the terms of the1891
convention", they (to borrow from the PermanentCourt's decision in the Jaworzina case:
see, para. 6.51, below)"confirm ina singularlyconvincing manner" the conclusionsdrawn
fiomthe languageof the Convention.
6.38 A preliminary point needsto be madeconceming the depiction on maps of the islands
of Ligitan and Sipadan. As already noted in ChapterII, these two islands are very small.
Although Ligitan and Sipadan are shown on some maps, it is not to be expected that
geographical features of the size of these small islands would be shown on al1 maps,
particularly small scalemaps. Nevertheless, the islands exist, and have at al1material times
existed at geographical locationswhose coordinates are known. The cartographic evidence
confirmsthat theboundaryline between Indonesian andMalaysianpossessions as established
by the 1891Convention follows the 4" 10'N latitude. Thatis sufficientcartographic support
for the conclusion that Ligitan and Sipadan are under the sovereignty of the State (i.e.,
formerlyThe Netherlands,and now Indonesia) whosepossessions lie on thatside of the line,
evenif individual small islands arenotshow on someparticularmap.
17
At leaup to thebeginningof the present disputein 1969,andeventhereafter. B. Maps Relied Upon by the Parties in the Context of the 1891
Convention
6.39 It is well established that maps can be instrumental in revealing the intention of the
parties. Although maps producedby the parties in connection with a boundary treatydo not
have the same character as maps forming an integral part of such a treaty, they are
nevertheless highly relevant in illustrating whatthe parties to a boundary treaty had in mind
when negotiating their boundary line.
6.40 In the present case, the cartographic evidence of both Great Britain and The
Netherlands relating to the negotiation of the 1891 Convention shows that the parties'
common intent was to extend offshore the dividing line of their territorial possessions in
Borneo,thus including the disputed islands within the scope of their territorial settlement.
Dutch and British cartographic Evidence Prior to the 1891
(i)
Convention
6.41 Dutch cartography prior to the signature of the 1891 Convention shows that The
Netherlands viewedthe islands of Ligitan and Sipadanas being subject to its sovereignty. For
instance, in 1881, the Dutch scholar De Sturler published a doctoral dissertation entitledHet
Grondgebied van Nederlandsch Oost-Indie in Verband met de Tractaten met Spanje,
Engelanden Portugal ("The Territory of the Netherlands East Indies in Connection with the
Treaties with Spain, England and Portugal"). This publication contains a map of the
Netherlands East Indies (MapNo. 1in the Map Atlas) indicating sovereigntyby colour coding
and showing conventional boundaries drawn into the sea. The Netherlands East Indies are
coloured in brown while the territories designatedas Spanish are coloured green; in addition,
a green line encircles the Philippine Archipelago and a brown line encirclesthe Dutch
possessions.6.42 It is noteworthythat this map showsDutch territoryon the mainland extendingwell to
the north of the Sibukoriver andrunningalongpart of thecoast to the north of, and eastwards
beyond,the locationof the island of Sebatik. Althoughthe islands of Ligitan andSipadando
not appear on the map because of their small size, the location of the boundary, running
eastwards from the Dutch mainland boundary well north of the Sibuko river and Sebatik,
makes it clear that the disputed islands were regarded by the Dutch as being part of their
possessions. Moreover, the green line encircling Spanish possessions equallyclearly shows
that the disputed islandswere not partof any Spanishpossessions.
6.43 Subsequently, British maps inthe period leading up to the 1891 Convention provide
evidence of Britain's negotiating positionconcerning the location of the boundary line. In
particular, British maps are consistentwith Dutchmaps in indicating that the parties did not
simply intend to fix their boundaryon the mainland of Borneo,but also that they intendedto
attribute sovereigntyovertheir respective possessions offshore. In this connection its to be
noted that severalof the mapsto be referredto in the followingparagraphswere publishedby
the Edward Stanford Companyin London. Stanford wasa highly regarded cartographic
publisher of the period, and the foremost cartographicestablishment in Great Britain at the
time, with a world-wide reputation forproducing authoritative maps. Of particular relevance
in the present context isthe factthat it is apparentfroma nurnberof sourcesthat Stanfordwas
in effect used by the British North Borneo Companyas its officia1cartographer (see, paras.
6.54-6.58, below). This lends the Stanford maps of the region now in question a special
degreeof authority.
6.44 Of particular interest in this regard are two extracts fiom a map of British North
Borneopublishedby Edward Stanfordforthe BNBCin 1888. The first of these maps, which
appearsas MapNo. 3 in the Map Atlas,marks witha yellowline the "ApproximateBoundary
of N. Borneo Co. as marked on Stanford'smap of 1888",and with a red line the "Northern
Boundary of Dutch Possessions as claimed on Dutch Government map of 1885" (showingDutch territory extending well tothe north of the Sibuko river andalong the coast north and
east ofSebatik island). In addition, a manuscript dotted line coloured in green was addedto
showthe "Proposed line dividingthe territory ofthe British NorthBomeo Co. from that of the
Netherlands Govt". This line runs acrossthe mainland of Borneojust above the Simengaris
river, continues at sea between the islands of Sebatik and Nanoekhan and extends across
Sibuko~a~'*.
6.45 It should be noted that this rnap purported to illustrate a compromise position
advanced by the BNBC during the British Government's negotiations withthe Dutch
Government for what wasto becomethe 1891 Convention. As such, it must be viewed in the
context of these negotiations. As described in ChapterV, above, the diplomatic record
indicates that Great Britain initially preferred not todivide Sebatik island. This explains why
the proposed boundary line drawnon this rnaptakes a southerly direction betweenSebatikand
Nanoekhan islands. This does not detract from the fact that the rnap provides compelling
evidence that the British already envisaged that the line dividing their possessions from the
Dutch would continue offshore.
(ii) The Map Attached to the 1891 Dutch Explanatory
Memorandum
6.46 As explained in Chapter V, the Dutch Government prepared an Explanatory
Memorandum describing the terms of the 1891 Convention to be usedin the course of
parliamentary discussions relating tothe ratification of theonv vent ion A tt.ched to the
Memorandurn was a rnap prepared by the Dutch Governmentto illustrate the boundary line
dividing Dutch and British possessions in Borneo resultingfrom the 1891 Convention. This
rnap (the "Explanatory Memorandurn Map") has been reproducedas Map 5.2 facing page 88;
a copy of the rnap also appears as No. 5 in the Map Atlas. This rnap was based on a sketch
drawn upat the Ministryof the Colonies and sent tothe Ministryof Foreign Affairs.
18
On another copy of the sarnemap, Map No. 4 in the Map Atlas, other manuscript lines, al1extending
19 offshore, wereadded to depictdifferent proposals.
See,paras.5.46-5. ab9,e.6.47 The Explanatory Memorandum Map shows four different lines: a blue line indicating
the boundary originally claimed by the Dutch Government, a yellow line indicating the
boundary claimed by the BNBC, a green line showing the line proposed by the British
Govemment and, finally, a red line marking the boundary agreed upon in the Convention.
The red line shows the agreed boundary line as following the parallel of latitude 4' 10'N
starting at the eastern coast of Borneo, crossing the waters at the mouth of the estuaryldeltaof
the River Sibuko and the island of Sebatik, and then continuing eastwards beyond that island
and out to sea in a directionunning to the north of Ligitanand Sipadan. As shown in Chapter
V, it thus clearly shows that the Dutch Government understood at the time that those two
islands fell on the Dutch side of the boundary line agreed in the Convention. It also shows
that the Dutch Government understood the Conventionas delimiting the extent of the parties'
territorial sovereignty over their possessions in the eastern part of Borneo not only on the
mainland but also offshore.
6.48 As explained in Chapter V (paras. 5.51, et seq.), the Explanatory Memorandum Map
was publicly available at the time, and was, at a high level, officially brought to the
knowledge of the British Government in the context of the process leading to the entry into
force of the Convention. No British protest at the map'scontent, nor any British dissent from
it, is recorded. Ithus representsthe parties' contemporaneousagreed interpretation of Article
IV of the Convention,adopted as part of the treaty settlementof their Borneoboundaries.
6.49 Both the jurisprudence and doctrine consistently acknowledge that maps have a
significant probative value when they represent evidence of the parties' will or intent. The
classic example is that of maps annexed to a treaty ormaps on which the parties have relied in
drafting a treaty. In theaworzin case, the PermanentCourt had to consider the significance
of maps attached to, but not made an integral part of, the decision of the Conference of
~rnbassadors~~. The Court noted that maps can be particularly helpfùl when the terms of a
20
Jaworzina,Advisoty Opinion,1923,P.C.I.J.SeriesB,No. 8.treaty are unclear. In stating that the text of the treaty should prevail over a map, the
Permanent Court observed that inthe case before it there was no conflict between the map and
the legal instrument to which it was attached. As the Court wenton to Say:
"It is true that the maps and their tablesof explanatory signs cannot be
regarded as conclusive proof, independently of the text of the treaties
and decisions; but in the present case they confirm in a singularly
convincing manner the conclusions drawn from the documents and
from a legal analysis of them; and they are certainly not contradicted
by any d~cument"~'.
6.50 In the present case, as in the Jaworzinacase, there is no conflict between the 1891
Convention and the maps prepared in the courseof the conclusion of that Convention. The
words ofthe Permanent Court arethus particularly apposite.
6.51 In subsequent decisions the Court has continued to affirm that officia1 maps are
relevant evidence of a party's views at the time. In the Minquiers and Ecrehos case, for
example, French officia1cartographicevidence transmitted tothe British Foreign Officein the
course of negotiations showingthe disputed islands within British territory were considered as
evidence of the French view at the In théSovereignty overCertainFrontierLand
case, a military map drafted by Belgium in which the disputed plots were shown as Belgian
territory was also relied upon by the Court as evidence in favour of the position of ~e1~iw-n~~.
In the Territorial Disputecase between Libya andChad, the Court held that the map annexed
to the French Livre Jaune - a document prepared in view of the ratification of the 1899
Franco-British Additional Declaration was an authoritative interpretation of that
~eclaration~~.
21
22 Ibid., p. 33.
23 Minquiers and Ecrehos, Judgment,I.C.J. Reports 1953,p. 47, atp. 71.
24 Sovereignty OverCertainFrontier Land, Judgment,I.C.J.Reports 1959,p. 20atp. 227.
TerritorialDispute, Judgment,I.C.J.Reports 19p.5,at pp.30-31. C. Maps Reflecting the Offshore Extension of the Boundary
Duringthe EarlyColonialPeriod
6.52 Further confirmation that the British viewed the 1891 lineas extending offshore
leaving Pulau Ligitanand Pulau Sipadanon the Dutch and, subsequently, Indonesianside of
the boundaryis provided by an officia1map entitledBorneopublished by Stanford in 1903.
As can be seen fiom Map 6.4 facing this page, the legendof the map explains that the
provincesof the BNBCare separatedby red lines on the map. Examiningthe reproduction of
the relevant portion of the map, the boundariesof the BNBC'sprovinces canbe seento extend
seaward, thus including various offshore i~lands~~. In particular, the southem offshore
boundaryof the Elphinstone province continues into the sea and coincides with the course of
the 1891line, leaving the islands of Pulau Ligitanand Pulau Sipadanto the south - i.e., on the
Indonesianside - of the boundary. While Ligitanis too small to be separately depicted on the
map, Sipadanis clearlyshownto lieoutsideof the BNBC'sterritory .
6.53 The 1903 Stanford mapis direct evidence of what the BNBC considered tobe the
limits of its territory following the conclusion of the 1891 Convention. Stanford's statua ss
effectivelythe officialcartographerfor theBNBCunderscoresthe important evidentiary value
of the map.
6.54 As discussedabove, in 1888 Stanfordhad already publishedtwo maps of the BNBC's
tenitory specifically forthe Company. These maps were used by the British in formulating
their positions advanced duringthe negotiation of the1891Convention.
6.55 Following the conclusionof the 1891 Convention, Britisharchiva1sources show that
Stanford's Geographical Establishment continuedto act as the official cartographer of the
BNBC. On 26 April 1892,for example, the Governor's Officeof the BNBC in Sandakhan
sent correspondenceto London enclosing two sets of plans regarding the mappingof portions
25
A copy of the 1903Stanfordrnap with anenlargementof the relevant area is also attached as Map No.9
intheMapAtlas.of the BNBC with the request that these plans be forwarded to Stanford for their maps26. On
8 July 1898,the BNBC'sComrnissionerof Land inSandakhan sent further correspondence to
Londonindicatingthe results of fùrther surveysofthe BNBC'sterritory. As theletter noted:
"1hope these 3 tracings and map will be sent to Stanford to place the
details on our Territorial~a~"~~.
6.56 It follows that the BNBC lookedto Stanford for the preparation of officia1maps of the
Company's territory. The 1903 Stanford map thus represented the contemporaneous view of
what the BNBC itself considered to be the limits of its territorial possessions. The map
clearly shows that the BNBC recognised that the southern limits of its territory east of the
island of Sebatik coincided with the prolongation of the 4" 10' N parallel of latitude
established by the 1891 Convention to a point lying well to the east of Pulau Ligitan and
Pulau Sipadan. Both islands were clearlyrecognised as belongingto Dutch Borneo.
D. General Repute: Third Party Maps Showing the Offshore
Extensionof the Boundary Line
6.57 In the Frontier Disputea Charnberof the Court, while treating maps with considerable
caution and emphasising that in principle they had only an essentially auxiliary and
confinnatory role, acknowledged that a map produced by an authoritative and impartial body
external to the parties in dispute would, in certain circumstances (e.g., where other evidence is
lackingor is not sufficientto show an exact line),have a probative value which would become
"decisi~e"~~.
6.58 The U.S. Library of Congress contains a number of maps which were filed by the
United States in 1925 during the Islandof Palmasarbitration between The Netherlands and
the United States. A map entitled "East India Islands (Malaysiaand Melanesia)" is a coloured
26 Annex87,Vol. 3.
27 Annex92, Vol. 3.
28 Frontier Dispute,Judgment,I.C.J. Reports 1986, p. 554, at p. 586; see, also, Jennings, Sir R., and
Watts,SirA.,(eds.), Oppenheim'sInternatiol aw,9" ed., Longmans, London, 199, . 664.facsimile of Plate 116contained in The Century Atlasof 1897. This map is reproduced as
Map No. 7 in the Map Atlas. Accordingto the U.S. Memorandum in the Island ofPalmas
case, The CenturyAtlas was part of The Century Dictionarywhich itself was described as, "a
monumental Arnericanpublication, a dictionary expandedto encyclopedic proportions. The
most competentscholarscontributedto itspreparation"29.
6.59 The map identifies the Dutch, British, Spanishand Portuguese possessionsby means
of colourcoding. In particular, abroken blackline drawnrunning across the island ofSebatik
into St. Lucia Bay and continuing south-eastof Mindanao Island isdesignated "Boundary of
Dutch Possessions", and a furtherbroken blackline running north of that line to the seaward
of British North Borneo is marked "British"and "Spanish" on the separate sides of the line.
Although the coordinates of these lines are not preciselydefined, this map provides evidence
that the United Statesviewedthe limitsof the Dutch andBritish possessions as extendingout
to sea eastwardsfrom Sebatik,and the limits of Spanish possessions at sea being well to the
east of the locationsofSipadanand Ligitan.
E. Maps as AdmissionsAgainst Interest
6.60 Maps issued by an officia1governmental department of a State or recognised by a
government have a high degree of probative value, particularly when they constitute
admissions against interest or depict a position inconsistent with a position subsequently
advancedby that State. This is particularlyimportant in the present case where both British
and Malaysianmaps depictthedisputedislandsas fallingoutside of the territoryof the BNBC
and, subsequently,Malaysia.
6.61 In the Island ofPalmas case, Judge Huber indicated a preference for such officia1
maps, especially when they, "do not assert the sovereignty of the country of which the
Governmenthascaused themto be i~sued"~'.
29 See,Island ofPalmas case,United States Memorandp,.39.
30 Island of Palmas Arbitration,P.C.A.Awof4 April 1928,UNRIAAV , ol.II,p.852.6.62 Further authority on point is provided by the Eritrea/Yemen arbitration where Eritrea
advanced the argument that Italy, fiom which Ethiopia and subsequently Eritrea ultimately
inheritedsovereignty,had claimed sovereignty overthe disputed islands in the case duringthe
period irnrnediately precedingthe Second World War. Yemen introduced into evidence
officia1maps issuedby the ItalianGovernmentduringthe relevantperiod showingthat Italy in
fact had never considered itself sovereign over the disputed islands and that officia1Italian
cartography did not depict the disputed islands as Italian. The Tribunal stressed the
importance of the map evidence as admissions against interest in this respect in upholding
Yemen'scontentions. In the Tribunal'swords:
"To the extent that these may beviewed asadmissions against interest
from officia1Italian sources, which are not controverted by Eritrean
evidence, they have relevance to the Eritrean claim that Italy
considered herself sovereign over the Islandsat the outbreak of the
Second World War. The best interpretation of this evidence appears
to be thatofficia1Italian cartography did notwish formally to portray
the Islands as beingunder Italian sovereignty inthe inter-war period -
and even went so far as to assign the Islandsto Yemen. On balance,
the evidence seems to establish that Italy, in the interbellum period,
did not consider the Islands to be under Italian sovereignty or at least
does not establish that Italy in that period did consider the Islands to
be under Italiansovereigntyn3'.
(i) British Maps Showing Ligitan and Sipadan Islands as Part
of the DutchPossessions
6.63 The importance of the 1903 Stanford map showing the southern boundary of the
BNBC as limited by the extensionof the 4" 10'N line of latitude drawn seaward from Sebatik
has been discussed in paras. 6.52-6.56, above. A number of other officia1maps from British
sourcesalso showthe islandsof Ligitan and Sipadanwithin the limits of Dutch possessions.
31 EritredYemen ArbitrationAward of the Arbitral Tribunal in the First Stage of the Proceedings,
9 October 1998,p. 96, para. 374.6.64 One interesting example is provided by a rnap entitled "Colony of North Borneo"
whichwas publishedin the Colonial Reportsof North Borneoof 1953~~.This rnap showsthe
districtboundariesof the colonyofNorth Borneoas well as the boundaryof Dutch and British
possessions. Thelatter is representedby a dotted line running across the island of Sebatikat
approximatelythe 4'10' N latitude.This line stops on the east coastof Sebatik. However,
another dottedline marking the boundary of two districts of the British colony -presurnably
LahadDatu and Tawau - continues southwards out to seaand stops at the4" 10'paralleljust
north of the location wherethe disputed islandslie. Although the twolines do not meet, the
fact that the British districtboundary stops at approximately the 4'10' N latitude is an
indication thatthe rnap wasintended to reflectthe offshorepossessions of the colonyof North
Borneo as extending only as far south as the 1891line, so leaving the islands of Ligitan and
Sipadan within Dutch territory. Certainly,the rnap gives no indication of there being any
islandsat the locationsofSipadanandLigitan formingpart ofthe Britishcolony.
6.65 A further interestingrnap is a 1973Tactical Planning Chart (No. L-11C)produced by
the British Ministryof Defence in 1973. A copy ofthis rnap is reproduced as Map No. 19 in
the Map Atlas. This rnap also depicts the 1891 line extendingeastwards from the island of
Sebatikin conformity withthe 1891Convention.
(ii) Malaysian Maps Showing the Area Where Ligitan and
Sipadan Are Located As Falling Outside of Malaysia's
Possessions
6.66 Of particular significanceis the fact that, following Malaysia'sindependencein 1963
and even afier the dispute arose in 1969, Malaysia published aseries of maps depicting the
offshoreextensionof the line establishedbythe 1891Convention whichallocatesthe disputed
islandsto Indonesia. Copiesof suchmaps may befound in the Map Atlas as Nos. 11, 12, 13,
14, 16, 18,20 and 21.
32 MapNo. 10inthe MapAtlas.6.67 Internationalprecedents have consistentlyheld that the publication of a map is part of
State conduct and when a State has depicted its territory as having a certain extent, it cannot,
subsequentlyand for self-serving purposes, contradictits own conduct by a claim in excess of
what is show on its own maps.
6.68 Moreover,maps emanating fromthe parties as "official"maps prepared by governrnent
agencies,although not formingpart of a treaty, may betaken as reflecting the considered view
of that party as to its territorial claims. Accordingly, when a party publishes a map or
acquiesces in its use as a description of a boundary, that party may be precluded from
challengingthe map.
6.69 In the Beagle Channelcase, the Tribunal has made the point that, in a boundary
litigation,maps published by one Statewhich supportthe claim of another State are entitledto
a greater weight than maps published to buttress its own claim. This principle has been
describedby Hyde as follows:
"Thecartographer officially employedto portray the political limits of
a particular State is usually cognizant of their scope. His map may,
therefore, be taken as the embodiment of the full extent of its
territorial pretensions.Thus a map published by a State, or under its
auspices, or purporting to reflect its position, and which it has been
disposed to utilize as a means of publicly revealing its position, may
be fairly accepted as establishingthat when issued it represented what
that State deemed the limits of itsomain. Moreover, when a series of
maps of such a kind, appearing within a few decades, tell the same
story and depict substantially the same limits, the conclusion is
justified that they mark a frontier beyond which the interested State
cannot go without some fresh and definite and respectable process of
acquisition, such as one embodied ina treaty of accession. Thus in the
course of a boundary arbitration the most obvious function of an
officia1map issued under the auspices of a particular litigant may be
that of holdingthat litigantin lea~h"~~.
33 Hyde, C.C., InternationalLaw,Chieflyas lnterpreted andApplied by the UnitedStates (3 Vols.), (2nd
rev.ed., 1947),p.496.As shallbe seenbelow, this reasoningisparticularlyappositeto thepresentdispute.
6.70 Of particular noteis arnappublishedin 1964by the SurveyDepartment of theBritish
Ministry ofDefence for the Directorof National Mappingof ~ala~sia~~.The rnapis entitled
PulauSebatikand shows the internationalboundary betweenIndonesia andMalaysia running
across the islandof Sebatikat the 4'10'N latitudeand extending east into thesea. The map,
prepared as it was for the Malaysian Govemment MappingAgency, confirms that Malaysia
was of the view that the 4" 10'N line east of Sebatik constituted the southernlimit of its
sovereignpossessions.
6.71 Also significantis a rnappublished in 1965by the SurveyDepartmentof the British
Ministryof Defence for the MalaysianDirectorof National~a~~in~~~T . he rnap is entitled
Tawauand marks the internationalboundary with Indonesia asrunningacrossSebatikisland
at 4'10'N, with a line continuingin due easterlydirection across SibukoBay along the same
parallel. Althoughthe islandsof Ligitan andSipadando not appearon the map, theirposition
inrelationto the course of the line ischthat,were theyto beplotted on the map,theywould
be shownto the southof the lineandthus asIndonesian possessions.
6.72 A number of other Malaysian maps issuedby the Directorate of NationalMapping
show the offshore extension of theboundary line between Indonesia and Malaysia, cutting
across Sebatikisland and runninginto SibukoBay along the 4" 10'N latitude in conformity
with the 1891 Convention. Theseincludea rnapentitledMalaysia TimorSabah compiledby
the Department of Landsand Surveys ofSabah in 1964 and printed andpublished by the
Malaysian Directorate of National Mapping in1966. This rnap also shows the District
boundary betweenSempornaand Tawau extending southwards into the sea,but no further
south than the 4O10'Nparallel. Two subsequentmaps bearing the same title issued by the
MalaysianDirectorateofNationalMapping in1967and 1972depictthesamesituation36.
34 MapNo. 11intheMapAtlas.
35 MapNo. 13intheMapAtlas.
36 MapsNo. 12, 14and 18intheMapAtlas. 6.73 As discussed in paras. 6.18-6.22, above, in 1968 Malaysia's Ministry of Landsand
Mines published an officia1rnap which depicted both the offshore limits of Malaysia's oil
concessionsand the internationalboundarywith Indonesia in the relevant area37. Once again,
that boundary coincided with the 1891 line as extended out to sea,thus leaving the disputed
islands unquestionablyon Indonesia'ssideof the boundary.
6.74 Thus, well before the dispute over Pulau Ligitanand Pulau Sipadan emerged between
the Parties in 1969, Malaysian officia1cartography consistently depicted the extension of the
4" 10'N line of latitude outto sea as the southern limit of Malaysia's territorial possessions in
the area. These maps are fùlly consistent with the BNBC'searlier portrayal of its territorial
limitsas depicted, inter alia, in the 1903Stanfordmap, and with the 1891Convention itself.
6.75 In 1969, Indonesia and Malaysia delimited their continental shelf in the Strait of
Malacca and the South China Sea. It was during the negotiation of this agreement that
Malaysia first raised a claimto the disputed island~~~.While the issue of sovereignty over
Pulau Ligitan and Pulau Sipadan was reserved for fùrther discussion, the Parties did attach a
rnap to their 1969 continental shelf agreementwhich depicted a dashed line extending due
east alongthe 4" 10'N latitude fromthe island ofsebatid9.
6.76 Even after the dispute arose in 1969,Malaysia continued to print and publish maps
showing a boundary running along the 4'10' N parallel of latitude and continuing seaward
from Sebatik island. One such rnap was published in 1972~'. Similarly, another Malaysian
rnap of the State of Sabah,prepared andpublished by the Malaysian Department of Statistics
in 1974 and entitled Negeri Sabah, Population and Housing Census. Map Showing
Distribution of Population, depicts the international boundary between Indonesia and
' 37 Map 6.2 and MapNo. 16inthe Map Atlas.
38 See, para. 8.10,below.
39 The 1969negotiations are examinedin detailatparas. 8.5-8.17, below.
40 Thisrnapappears asMapNo. 18inthe Map Atlas.Malaysia as lying at the 4'10' N latitude across and beyond Sebatik Island, with a further
dotted line continuing and extending that parallel offshore until the meridian of 119' E
latitude4'. Althoughthe disputed islandsarenot specificallymarkedon the map, the courseof
the boundaryline indicates that, were the islandsof Ligitan andSipadanto be plotted on the
map,they wouldbe foundto lieon the Indonesiansideof the boundary.
F. Conclusions
6.77 This review of the cartographic evidence dating back to the late century is
consistent and compelling. This impressive collectionof maps, including British,Dutch and
U.S. maps, confirms that the line resulting from the 1891 Convention extended offshore
across Sebatik island into SibukoBay thus dividing the territorial possessionsof the Parties.
Pulau Ligitan and Pulau Sipadan both fa11on Indonesia'sside of the line. Following its
independence in 1963,Malaysia'smaps also consistently show an offshore linerunning at
4'10'N Latitude into the sea,leavingthe islands as part of Indonesia'sterritorial possessions.
It was onlyin 1979,well afterthe disputehad arisen,that Malaysia'smapsbegun to change in
a self-servingfashion. This aspectof the case istakenup in ChapterVIII,below.
6.78 Since the dispute only began in 1969, none of the maps published before that year
were preparedfor purposesof the litigationwhich is now in progress:those maps arethus all,
for the purposes of the present case, litigation-neutral, and constitute an objective
representation of the territorial position asseen by those preparing them. Moreover, that
representationis of remarkableconsistency in showingthe 1891Convention line as extending
eastwardsand seawardsfromthe island of Sebatik. As the Court ofArbitration in the Beagle
ChannelArbitration (Argentina v. Chile)(1977)remarked:
"Wherethere is adefinitepreponderanceon the one side - particularly
if it is a very marked preponderance - and while of course every map
must be assessedon its own merits - the cumulative impactof a large
number of maps, relevant for the particular case, that tell the sarne
41
MapNo.20 intheMapAtlas. story - especially where some of them emanatefrom the opposite
Party, or from third countries - cannot but be considerable, either as
indications of general orat least widespreadrepute or belief, or else as
confirmatory of conclusions reached, as in the present case,
independently ofthe maps"42.
6.79 That sarne Court of Arbitration also remarked upon the unrealityof expecting there to
be concordance between al1maps relating to a disputed territory: what was requiredi,t noted,
was not concordance but preponderance43.A similar attitude was adopted more recently,by
the Arbitration Tribunal inthe EritrecuYemen case, when "on balance" it reached certain
conclusions, including attaching weight tothe fact that "by and large"officia1Italian maps
were to a certain effect, that "the general trend"of maps reliedon by one party was superior,
and that "lookedat in their totality" the map evidence supported one Onwhichever of
the foregoing terminological basesis adopted,the "generaltrend"of the map evidenceis at the
least "preponderantly","by and large" and "inits totality" - in a word, is overall - in the sense
presented by Indonesia. Indonesia submits that thecartographie evidence it has adducedis
clearly confirmatory ofits title to Ligitan andSipadanas establishedby the 1891'convention.
42 UNM, XXI,p. 53, atp. 166(footnotes omitted).
43 Ibid.
44 EritreaIYemenArbitration, Award of the Arbitration Tribunalin the First Stage of the Proceedings,
9 October 1998,at p. 99, para.388. CHAPTERVI1
RELATIONSBETWEEN GREAT BRITAIN, SPAIN AND THE UNITED STATES
Introduction
7.1 In the foregoing chapters, Indonesia has setout the legal basis of its title to the islands of
Sipadan and Ligitan. In order to complete the picture, it is appropriate to examine the colonial
activities of Great Britain, Spain and the United States in the areasince a review of the conduct of
each of these States confirms the fact that Indonesia possessed sovereignty over the disputed
islands.
7.2 The position of Great Britain was of course highly significant inthe history of North
Borneo even though, as will be seen, itsjurisdiction and control never extended as far so-tor
as far offshore- as the islands of Sipadan and Ligitan, and it is therefore with a review of the
position of Great Britain that this chapter will begin.
Section1. The PositionofGreatBritain
A. TheDent and OverbeckConcessions
7.3 As discussed in Chapter III, on9 December 1877,the Sultan of Brunei agreed to accord
three separate grants to Messrs. Dent and Overbeck encompassing a large areaof North ~orneo'.
Since the grant included a portion of territory along the east coast of Sabah which was also
claimed by the Sultan of Sulu, Baron von Overbeck entered into aseparate agreement with that
1
See, para.3.26, above.ruler as well. On 22 January 1878,the Sultanof Sulu agreedto transfer for an annualpayment of
$ 5,000 theconcessionsto the territory describedas:
"... al1the territories and lands being tributary to us on the mainland of
the Island of Borneo, comrnencing fromthe Pandassan River on the west
coast to Maludu Bay, and extending along the whole east coast as far as
the Sibuco River in the south, comprising al1the provinces bordering on
Maludu Bay, also the Statesof Pietan, Sugut,Bangaya, Labuk, Sandakan,
Kinabatangan, Marniang, and al1the other territories and states to the
southward thereof, bordering on Darvel Bay and as far as the Sibuco
River, with al1the islands belonging thereto within three marine leagues
ofthe coastM2.
7.4 As can be seen from Map 3.1 facing page 14, the islands of Ligitan and Sipadan are
located more than three marine leagues (nine nautical miles) from the coast and therefore could
not have been included in the grant even if they had formed part of the Sultan of Sulu's
possessionswhich, as will be explained furtheron, they did not3.
7.5 Following this transfer, the Dent brothers addressed a petition to the British Government
for a Royal Charterto administerthe territory.
7.6 Meanwhile, the grant to Overbeck and Dent in North Borneo raised concerns in Dutch
circles. In diplomatic correspondence with the Dutch, Great Britain continued to maintain that
the 1824 Anglo-Dutch Treaty discussed inparas. 3.9-3.17, did not apply to the island of Borneo.
Britain did go so far as to concede however, in both interna1reports and in its correspondence
with the Dutch that the object of Her Majesty's Govenunent was not to set up any territorial
dominion overthe area or to become engagedin a controversyover territorial claims4.
7.7 During the deliberations for the grant of the Royal Charter, it becarne apparent that the
boundaries of the territory which should be included in the Charter as being under the dominion
of the Companywere not clearly defined, particularly with regard to the Dutch claims on the
2 Fortheoriginal Agreements,ee, InclosureNo. 142tothedespatchfi-omActing Consul-General Treachetro
theEarlof Derbydated22 January1878,Annex17,Vol.2.
3 See,paras.7.22-7.29,below.
4 See,para.3.36.south-east coast5. Although the Dutch authorities were reassured that the Dent and Overbeck
company was a genuinely private concern, they continued to monitor the situation in order to
ensure that the British enterprise did not acquire a political character and take the guise of a
protectorate.
B. The Formation and Administrative Boundariesof the British North
Borneo Company
7.8 In May 1882, the chartered company was officially formed under the name of British
North Borneo Company. To the extent that the final text of the Charter contained any description
of the tenitory controlled by the BNBC, it referred to the three separate territorial concessions
made by the Sultan of Brunei on 29 December 1877and to the grant made by the Sultan of Sulu
on 22 January 1878.
7.9
The first concession of the Sultan of Brunei concerned the west coast of Borneo, and the
second the territories "from the Sulaman River on the north-west coast of Borneo unto the River
Paitan on the north-east coast of the island containing twenty-one states together with the island
of Banguey and al1the other islands within three marine leagues of the coastf16.The third grant
comprised "the States of Paitan, Sugut, Bungaya, Labuk, Sandakan, Kina Batangan, Mumiang,
and al1the territories as far as the SibucoRiver with al1the islands within three marine leagues of
the coastM7.With respect to the grant made by the Sultan of Sulu, it encompassed the territories
"comrnencingfrom the Pandassan River on the north-west coast and extending along the whole
east coast as far as the Sibuco River ... with al1the islands within three marine leagues of the
coast'l8.
7.10 As can be seen, pursuant to these grants, the coastal territories of the BNBC only
extended out to a distance of three marine leagues from the coast, thus encompassing al1islands
5
6 Notes on the North Borneo Chartby SirJ. Pauncefote dated January1882,p. 21,Annex24, Vol.2.
7 See,the Royal Charter reproducedinAnnex23, Vol.2.
8 Ibid.
Ibid .,2.that fell within that distance. The BNBC enjoyed no jurisdiction over any islands, such as
Sipadanand Ligitan,lying furtheroutto sea.
7.11 As noted in Chapter III, on 12 May 1888 the British Government entered into an
agreement withthe BNBCto establishthe StateofNorth Borneo. The agreementmade the State
ofNorth Borneo,like Brunei and Sarawak,a British protectedState,with the British Govemment
assurningresponsibility for its extemal relations with foreign states9. As for the extent of the
territories comprising the State of North Borneo, the agreement simply referred back to the
territorial descriptioncontainedin the Royal Charter. In this respect, it is significantthat Clause
16of the Charter provided that,if the British Secretaryof State saw fit to object to the exercise
by the BNBC of any authority withinany part of its territories on the grounds that there was an
adverse claim,the Companywould defer to that objection. It was thus clearly envisagedthat the
territorial claims of the Sultans of Brunei and Sulu, on which the BNBC's grants were based,
might be too extremeand thus subject to adverse claimsby third parties which would then fa11to
be resolved by the Government. As noted in para. 5.14, above, this was what led Sir Julian
Pauncefoteto observein 1889that:
"HMG have reservedto themselvesin the Charter of the Coy [Company]
the right of ascertaining,in case of a differencewith a foreign State as to
Boundaries, whether the title of the Coy to the territory in dispute is
invalid,and ...of imposingon themtheir deci~ion"'~.
7.12 The establishment of North Borneo as a British protected State did, in fact, trigger
negotiations betweenthe Dutch and British Governments toresolve the boundary between their
respective territorial possessions in the area. These negotiations culminated in the signature of
the Conventionof 20 June 1891settlingthe boundaryissue.
7.13 At that time, the State of North Borneo was divided intonine provinces as established by
the 1888 Agreement betweenthe British Government andthe BNBC. Map 6.4, facing p. 118,
shows the interna1 division of the State of North Borneo into these provinces, with an
9 Thetextof theAgreementis containedinAnnex34, Vol.2.
10 Memorandum by SiJ.Pauncefotedated23 Febniary1889,Annex43, Vol.2.enlargement of the relevant portion of the map". It should be noted that this map, which was
published by Stanford in August 1903, shows that the limits of the BNBC's administrative
districts encompassed islands lying off the coast of North Borneo. Significantly, the
southernmost limits of the Elphinstone Province coincided with the 1891 line drawn seaward
fromthe island of Sebatik.
7.14 The relevance of this line has been discussed in connection withthe 1891 Convention in
Chapters V and VI above. Given Stanford's roleas the officia1cartographer for the BNBC, the
rnaprepresented an authoritative depictionof the limits of the BNBC's territory. As can be seen,
Sipadan island clearly lies to the south of the southernmost limits of the Elphinstone Province.
Ligitan is too small to be show on the map, but it too lies south of the 1891 line. As such, the
Stanford'srnap is compelling evidence that the islands of Sipadan and Ligitan were not viewed
by the BNBC as falling withinthe its territories.
7.15 On 22 April 1903,the British Government entered into a "Confirmation of Cession of
Certain Islands" with the Sultan of sulu12. By this instrument, the Sultan of Sulu confirmed that
a number of islands lying beyond three marine leaguesfrom the mainland coast of North Borneo
were deemed to be within the scope of the Sultan's original grant to the Govemment of British
North Borneo. These islands were identifiedas follows: Muliangin, Muliangin Kechil, Malawali,
Tegabu, Bilian, Tegaypil, Lang Kayen, Boan, Lehiman, Bakungan, Bakungan Kechil, Libaran,
Taganack, Beguan, Mantanbuan, Gaya, Omadal, SiAmil, Mabol, Kepalai, Dinawan, and "the
other islands that are situated alongside, or round or between the islands that are above
mentioned". The Confirmation of Cession went on to indicatethat:
"This is done because the narnes of the islands were not mentioned inthe
agreement made with Baron de Overbeck andMr. Alfred Dent on the 19'~
Mahararn 1295, corresponding withthe 22ndJanuary 1878. It was known
and understood betweenthe two parties that the islands were included in
the cession of the districts and islands mentioned in the above stated
Agreement".
II ThisrnapalsoappearsintheMapAtlas asrnapNo. 9.
12 Annex99, Vol. 3.7.16 Map 7.1, facing this page, shows the location of the islands referred to in the
Confirmation of Cession. It can be seen that al1of the islands mentioned in the confirmation lie
to the north of the4" 10'N line of latitude establishedby the 1891 Convention as the boundary
between the territorial possessions of The Netherlands and Great Britain. This explains why the
officia1Stanford map of the administrative divisions of North Borneo, which was published four
months after the Confirmation of Cession, includes the islands mentioned in the Confirmation as
falling within the provinces of British North Borneo while depicting the southernrnost limits of
the provinces as coinciding with the 1891line.
C. ConclusionsAs to the Position of Great Britain
7.17 From the foregoing discussion, it can be seen that the Dent and Overbeck concessions
obtained fiom the Sultans of Brunei and Sulu did not include the islands of Sipadan and Ligitan.
The islands lay beyond three marine leagues from the coast of Bomeo and south of any area
claimed by Britain. In contrast, in the February 1877 decree of the Netherlands Indies
Government,the territories claimed to be Dutch included "Sebatik and the small islands adjacent
thereto", and the description of the State of Boeloengan went as far north as Batoe Tinagat, well
to the north of the island ofebatik13.
7.18 The southem territorial boundaries between British North Borneo and Dutch possessions
in the area were subsequently fixed by the 1891 Convention. As noted in Chapter V, following
the signature of the Convention the Dutch, in 1893, agreed an amendment of the territorial
description of Boeloengan so as to read:
"...The islands of Tarakan and Nanoekan, and that portion of the Island
of Sebatik, situated to the south of the above boundary-line described in the Indisch Staatblad of 1892,No. 114 belongto Boeloengan, aswell as
the small islandsbelongingto the aboveislands, so far as they are situated
to the southof the boundary-line... .
7.19 The Dutch informed the British Government of this amendment in 1895. Just asthe
British Governmentdid not object to the Dutch map attachedto the ExplanatoryMemorandum
which showedthe territorialboundaryextending outto sea to the north of sipadan'', so too the
British Government did not protest, or dissent from, this amended description of Dutch
possessions.
7.20 The 1903Confirmation ofCession specifieda number of islands lying beyondthe three
marineleague limitthat werealso deemedto appertainto British NorthBorneo. Neither Sipadan
nor Ligitan were included in the Confirmation. Indeed, al1 of the islands specified in the
Confirmation were situated north of the 4" 10' N latitude. Consistent withboth the 1891
Conventionandthe Confirmationof Cession,the 1903StanfordMap of theBNBC also depicted
the southernlimits of BritishNorth Borneoas coincidingwith the 4" 10'N latitude.
7.21 In sum,the record shows thatneither Sipadannor Ligitan were consideredby the British
Governmentor the BNBC as falling withinthe concessionsgrantedto Dent and Overbeckor to
appertainto BritishNorth Borneo. Theislandswereconsistentlytreated asDutchpossessions.
Section 2. The Position of Spain
7.22 In the light of the Spanishpresence inthe Philippines during the last half of the 19~~
century,it is appropriate at this pointto review Spain's relations with Great Britainwith respect
to the relevant area. As will be seen, there is no evidence that Sipadan or Ligitan were ever
considered to be Spanish possessions or,by virtue of Spain's protectorate overthe Sultan of
Sulu's domains,as formingpart of the Sultan'sterritories.
14 See, para.5.62,above.
15 See, para.5.63,above.7.23 As noted in ChapterIII,in 1851the Sultan ofSuluenteredinto anAct ofSubmissionwith
Spainby which the territories of Suluwere annexedto the Spanish crown16. As for theextentof
the Sultanof Sulu'sterritoriesannexedby Spain, thesehad been identifiedin the Capitulationsof
Protection and Commercebetween Spain and the Sultan of 23 September 1836 where Spain
guaranteedprotectionto the Sultan:
"...throughout thewholeextentof the islands which lie within the limits
of Spanish right and, which stretch from the western extremity of
Mindanao to Bomey and La Paragua [Palawan] with exception of
Sandacanand the other territories tributaryto the Sultan on themainland
of orne^"'^.
7.24 While this definition lacked geographic precision, a glanceat a map reveals that the
islandsof Sipadanand Ligitanlay well to the southand westof any areas that could realistically
be consideredto lie between Mindanao andthe North Borneo mainland. It is also instructivein
this connection to refer tothe Spanish view as to the limitations on the definition of the "Sulu
Archipelago" proper, set out in a 1927 entry in the Enciclopedia UniversalIlustrada Espasa,
publishedafierthe signingofthe Treaty ofParis, indicatingthat the SuluArchipelago:
"...is situatedbetween4" 40'and 8"north latitude and 119"8'and 122'
22' of east longitude eastof GreenwichMeridian; the extreme points are
the atolls of the Sibutu group to the south-west .... The Archipelago is
boundedin the northby the Sulu Sea,to thesouth by the Celebes Sea, to
the north-eastby the BasilanChannel,whichseparatesit from Mindanao,
and to the south-west by the Sibutu Channel, which separates it from
~orneo"'~.
7.25 Sipadanand Ligitan thereforenever formedpart of the Sulu Archipelago, andthey were
not part of the Sultan of Sulu's Bomean dominions either. This is confirmed by an examination
ofthe territories that Spaincededto the United States afterthe Spanish-AmericanWar - a matter
which istakenup inthe next section.
16 See, para.3.33, above. A usefùl surnmaryof Spain'srelations withthe Sultanof Suluappearsin a letter
writtenbytheU.S. Secretaryof Stateto theSecretaryoftheNavyon 3April1903,Annex98, Vol. 3.
17 Annex9, Vol. 2.
18 Annex 124,Vol.4.7.26 On 11 March 1877, one year before the grant to Dent and Overbeck, Spain signed a
Protocol with Great Britain and Germany in order to resolve a trade dispute that had arisen in
connection with Spanish interference with British and German vessels trading with the Sulu
~rchi~ela~o'~. Declaration 1 of the Protocol provided that commerce, fishing and navigation
were to be "absolutely free" for the vessels and subjects of Great Britain and Germany "in the
Archipelago of Sulu (Jolo), and in al1parts thereto" without prejudice to the rights of Spain in the
area. Thereafter, discussions arnong the colonial powers (not including The Netherlands)
continued, attempting to clarify the scope of the sovereignty of the Sultanate of Sulu and hence
the authority of spainz0.
7.27 Great Britain, in turn, rejected al1 Spanish claims to Sulu and its dependencies as "a
merely nominal claim over a certain undeterminedpart of ~orneo"~'. Britain thereafter suggested
that the definition should "include the mainland that is subject to the dominion of the Sultan of
Sulu, the adjacent islands of Balambangam, Baguey and Malawali and al1 islands and islets
within three maritime leagues of the coast", but this was rejected initially by the Spanish
negotiators on the ground that the zone of three maritime leagues did "not correspond to the
jurisdictional limits which have up to now been accepted by other Nations" and that "the
innovation would put our cruisers in a difficult position as regards policing those seas which are
so important for us to patrol"22.
19
Annex 15,Vol. 2.
20 Among the Parliamentary Documents prepared for presentation before the Spanish Parliamentduring the
legislative session of 1885 on the questions of Sulu and Borneo there was reproduced a letter of 22 March
1882, addressed bythe Plenipotentiary Ministerof theeen in London to the Minister of State, indicating
what the British understandingat the time was of the extent of the Sulu Archipelagedefined by Article
1of the Treaty of836between Spain andthe Sultan of Sulu-and including within its scope the islandsof
Balabas and Cagayan Sulu.The letter specifies further that: 'Zaparte correspondiente6 Borneo ... abraza
la tierrafirme tributaria del Sultandeolci,las islas adyacentes de Balambangam, Baguey,Malawallyy
todas las islasé islotes comprendidos dentrode tres leguas maritimas de la costa''."The part [of the
territory ofthe Sultan of Solo] relatingto Bom...includesthe mainland that is subjectto the dominionof
the Sultan of Sulu, the adjacent islandsof Balambangam, Baguey and Malawali andal1islands and islets
21 within three maritime leaguesof the coast". Annex25, Vol. 2.
22 Notes on theNorth Borneo Charterby Sir J.Pauncefote dated January 1882,p.34, Annex 24, Vol. 2.
Letter fiom the Minister of Stateto the Plenipotentiary Ministerin London 31March 1882,Annex26,
Vol. 2. The original Spanish text read as follows: "Esteziltimopunto esde la mayor importancia,porque
esta zona no corresponde cilos limitesjurisdiccionales hasta ahora aceptados por otras Nacionesy, la
innovacion colocaria a nuestros cruceros en una situacion ine$caz para ejercer la policia de aquellos
mares quetantonos interesavigilar".7.28 On 7 March 1885, tripartite discussions between Spain, Great Britain and Germany
resultedin the signature in Madridof a furtherProtocolamong the three signatoriesof the 1877
Protocol. In its original French,the1885Protocol providedas follows:
"Art. le'. Les Gouvernements de l'Allemagne et de la Grande Bretagne
reconnaissent la souverainetéde l'Espagne sur les points occupés
effectivement, ainsi que sur ceux qui ne le seraient pas encore, de
l'Archipel de Sulu (Jolo),dontles limites sontétablies dans 1'article2.
"Art. 2. L'archipelde Sulu (Jolo), conformémen t la définition contenue
dans l'art. 1". du Traité signéle 23 Septembre 1836 entre le
GouvernementEspagnolet le Sultan de Sulu (Jolo), comprend toutesles
îles qui se trouvent entre I'extremitéoccidentale de l'île de Mindanao,
d'une part, et le continentde Bornéoet l'île de Paragua, de l'autre, à
l'exceptionde cellesqui sontindiquées dansl'art. 3.
"Il est entenduque les îles de Balabac et deCagayan-Jolo font partie de
l'Archipel.
"Art. 3.Le GouvernementEspagnolrenonce vis-à-vis du Gouvernement
Brittanique, à toute prétention de souveraineté sur les territoired se
Bornéoqui appartiennent, ouqui ont appartenu dans le passé,au Sultan
de Sulu (Jolo), y comprises les îles voisinesde Balambangan, Banguey et
Malawali, ainsi que toutescelles comprises dansunezone de trois lieues
maritimesle long des côtes et quifontpartie des territoires administrés
par la Compagniedite"BritishNorthBorneo ~om~an~"~'~~.
7.29 It can thus be seen that Sipadan and Ligitan did not constitute part of the Sulu
Archipelago. Nor were they part of the cession to Great Britain under the 1885Protocol,which
was consistentwith the 1878Dent andOverbeckconcession in limiting British offshore rightsto
islands that fell within three marine leagues of thecoast. By parity of reasoningthey also could
23 Annex 33, Vol. 2. The followingtranslationof the Protocol reproduced in the same annex was preparedby
the British ForeignOffice:
"1.The Government of Great Britain and Germany recognize the sovereignty of Spain over the places
effectively occupied as well as over places not yet so occupied, of the archipelago of Sulu (Jolo),
whereof the boundariesare determinedinArticleII.
II. The Archipelagoof Sulu (Jolo), conformablyto the definitioncontained in Article 1of the Treaty signed
the 231dof September 1836,between the Spanish Govemment and the Sultan of Sulu (Jo16)comprises al1
the islanakwhich arefound between the westernextremityof the island of Mindanao onside, and
the continent of Borneo andthe Island of Paragua (Palawan) on the other side, with exception of those
which are indicatedinArticle III.It is understood(entendu)that the island of Balabac and of Cagayan-Jolo
formpart of the Archipelago.
III. The SpanishGovemment relinquishesas far as regardsthe British Government,al1claim of sovereignty
over the territories of the Continent of Bomeo which.belong, or which have belonged in the past to the
Sultanof SuluJolb), includingthereinthe neighboringIslandsof Balambangan,Banguey and Malawali, asnot have formed part of the cession to the United States after the Spanish-American War - a
matter which is confirmed by examining the extent of the territories ceded by Spain in 1898 and
1900. They were, clearly, not considered as Spanish (or Sulu) possessions. They were actually
Dutch possessions, and The Netherlands had remained outside of these discussions - for good
reason,as her presence was not required and her interestsnot directlyat stake.
Section3. ThePosition oftheUnited States
A. TheUnited States' Acquisitionof the Philippine Islandsin 1898
and 1900
7.30 Following its defeat in the Spanish-Arnerican War, Spain ceded the Philippine
archipelago to the United States through the Treaty of Peace signed in Paris on 10 December
1898. Article III of the Treaty is of particularrelevance. It definedthe Philippines as follows:
"ARTICLEIII
"Spain cedes to the United Statesthe archipelago known as the Philippine
Islands, and comprehendingthe islands lying withinthe followingline:
A line running from Westto east along or near the twentieth parallel of
north latitude, and through the middle of the navigable channel of Bachi,
from the one hundred and eighteenth (1lgth) to the one hundred and
twenty seventh (127~) degree meridian of longitude east of Greenwich,
thence along the one hundred and twenty seventh (127~) degree meridian
of longitude east of Greenwich to the parallel of four degrees and forty
five minutes (4" 45') north latitude, thence along the parallel of four
degrees and forty five minutes (4' 45') north latitude to its intersection
with the meridian of longitude one hundred and nineteen degrees and
thirty five minutes (119" 35') east of Greenwich, thence along the
meridian of longitude one hundred and nineteen degrees and thirty five
minutes (119" 35')east of Greenwich to the parallel of latitude seven
degrees and forty minutes (7' 40') north, thence along the parallel of
latitude seven degrees and forty minutes (7' 40') north to its intersection
with the one hundred and sixteenth (116th)degree meridian of longitude
well as al1those islandslying withina Zoneof three marineleagues alongthe coasts and whichform part
oftheterritories administeredby theCompanystyled 'BritishNorth Borneo Co(Emphasisadded). east of Greenwich,thence by a direct line to the intersection of the tenth
(10") degree parallel of north latitude with the one hundred and
eighteenth (118") degree meridian of longitude east of Greenwich, and
thence along the one hundred and eighteenth (11 8th) degree meridian of
longitudeeast of Greenwichto thepointof beginning"24.
7.31 Map 7.2, facing this page, illustratesthe extentof the Philippine islands accordingto this
geographicdefinitionin Article IIIof the 1898Treaty. As can be seen from the map, theislands
of Ligitan and Sipadan are situated well outside of the line surrounding the Philippine
Archipelagothus further confirmingthe fact that neither Spain nor the Sultan of Sulu couldbe
regardedas everhavinga claim overthem.
7.32 On 7 November 1900,the United States entered intoa further treaty with Spain for the
cession of certain remaining Philippine islands,i.e., islands lyingoutside the boundary line set
out in Article IIIof the 1898Treaty. The 1900Treaty containedonly one substantiveprovision,
whichread as follows:
"SOLE ARTICLE
"Spainrelinquishesto the UnitedStates al1title and claim of title, which
she may have had at the time of the conclusionof the Treaty of Peace of
Paris, to any and al1 islands belonging tothe Philippine Archipelago,
lying outside the lines described in Article III of that Treaty and
particularly to the islands of Cagayan Sulu and Sibutu and their
dependencies,and agrees that al1such islands shall be comprehendedin
the cession of the Archipelago as fully as if they had been expressly
included withinthoselinesM2'.
7.33 As can be seen from Map 7.2,on which the two additional islandscovered by the 1900
Treaty have been highlighted,the Philippine Archipelagoas defined in both of these treaties
taken together never reached as far south as to include thearea where Ligitan and Sipadanare
located.
24 Annex93,Vol.3.
25 Annex94,Vol. 3.7.34 A contemporaneousview as to the extent of the territory of the Sulu archipelago, referred
to above, may be found in archiva1records in the United States. Some 25 years after the 1877
Protocol, Secretary of State Hay wrote a letter to the Secretary of the ~av~~~.In that letter the
Secretary of State noted that the Protocol "does not contain any definition of the Spanish
territorial claim which was general as to the whole of Sul6 and its dependencies"27. Secretary
Hay's letter then referred to the subsequent 7 March 1885 Protocol among the same parties,
cornrnentingthat this "contain[s]aprecise defnition of the territorialclaims of Spain in the Sulu
~rchi~ela~o"~~.
7.35 Article II of the Protocol is cited at page 12of SecretaryHay's letter. As will be recalled,
this articleprovidedthat:
"The Archipelago of Sulu (Jol6) ...comprises al1the islands which are found
between the western extremity of the Island of Mindanao on the one side, and
the continent of Borneo and the Island of Paragua (Palawan) on the other side,
with exceptionof those which are indicated inArticle 111"~~.
7.36 This reflects, of course, the understanding that was expressed in the 1885 Protocol.
Sipadan and Ligitan were clearly outside this area since it is not possible to argue that they lie
"betweenthe western extremity of the Island of Mindanao ...and the continent of Bomeo and the
Island of Palawan". Given that Sipadanand Ligitan werenot within the Article II definition, they
could not in that sensehave been a part of the "territorialclaim of Spain in the Sulu Archipelago"
any more than they were part of the Philippines.
7.37 Given that neither the Sultan of Sulu, nor Spain, nor the United States were of the view
that Sipadan and Ligitan were part of the Sulu Archipelago, and, therefore, could not be part of
the Philippine islands, they could not have passedto the United States under the Treaty of Paris
or the Sole Article of the 1900Treaty. This conclusion is, of course, entirely consistent with the
26 Letterof 3 April1903,Annex98,Vol.3.
27 Ibid.,p.lO.
28 Ibid.,pp.11-12(emphasisadded).
29 Emphasisadded.Translation inSecretaryHay'sletter.1891Convention between The Netherlands and Great Britain, which had attributed the islands to
The Netherlands. It is also consistent with the 1930 Convention between Great Britain and the
United States, which is discussed at paras. 7.52-7.56,below.
B. Anglo-AmericanDiscussionsregardingCertain Islands off the
Coast ofNorthBorneo
7.38 Despite the treaties with Spain, some confusion remained as between the United States
and Great Britain concerning the precise extent of the Spanish possessions and the definition of
the SuluArchipelago to which the United Statescould lay claim.
7.39 The United States argued that, according to the 1885 Protocol between Spain, Great
Britain and Gerrnany, Spain had relinquished its claim to North Borneo and al1islands within 3
marine leagues (or nine nautical miles) from the coast in return for recognition of its rights in
Sulu, but had maintained its claim to islands situated beyond three leagues from the coast. On
the basis of that Protocol, coupled with the 1898and 1900treaties with Spain, the United States
therefore mistakenly claimed sovereignty over certain islands outside the three-league limit from
the coast of British North Borneo. The disputed islands included mostly those located in
Sandakhan Bay, such as the Turtle islands, including Sibaung, Boaan, Lihiman, Langaan, Little
and Great Bakkunggaan, Taganak and Baguan, and others such as the Mangsee islands, Tatagan,
Dinawan, Gaya, Silingan,Langavan, Boaan and Gulisan.
7.40 As noted previously, on 22 April 1903the Sultan of Sulu entered into an agreement with
Great Britain in which he specified the narnes of certain additional islands lying more than three
marine leagues from the coast which were deemed to have been included in the original cession
made to Dent and Overbeck in 187830.The conclusion of this Agreement caused some alarrn in
30 Annex 99, Vol3.U.S. quarters since it concerned islandswhich, by virtue of being situatedbeyond three marine
leagues from the coast, could hypotheticallyhave been included within the U.S. possessions.
Subsequently,the United Statesdecidedto sendone of its vessels to the area toassert its rights3'.
In June 1903,the gunboat U.S.S.Quiros was sent on a trip around some of the islands off the
coastof North Borneo,duringwhich flagsandtabletswere erected". Accordingto the Captain's
log bookfiom 27November 1902to 23 June 1903,Ligitanand Sipadanwere not visited and no
flag or sovereigntytablet was erected on either i~land~~.However, a later log book shows that,
on 24 June 1903,the islandof Sipadanhad beenvisitedby the Quiros and a U.S. flagposted on
it34.There isno record ofthe vesse1actuallystoppingonLigitan.
7.41 The exchanges between the U.S. State Department and the U.S. Secretary of War
subsequent to the Quiros'trip indicate thatthe State Department remainedfar from certainthat
the disputed islands fell within the dominionsof the Sultanof Sulu. A letter sent by John Hayto
the U.S. Acting Secretary of War on 23 October 1903commented on a line "drawnex parte" on
the basisof a chartreceivedfiom theNavy'sHydrographicOffice,andnoted as follows:
"1. The prolongation of thered tracing from the east-wardof Sibuty to
and around SipidanIslandand thencenorth-wardlyto Darval Bay would
probably require to be supported by evidence that Sipidan and the
included keys and rocks had been recognized as lying within the
dominionsof Suludescribed inthe conventionsbetween Spain on theone
hand andGreat Britainand Germany onthe other. This is a question of
fact which the Department of State has no means of determining and
considering whichan opinion would be mainly exparte. The treaty of
Nov. 7, 1900, by expressly including the Island of Sibutu may have
intended such inclusion as exceptionaland as a limit to the claims of
Spanishdominionto the South-west ofthe Sulu group"35.
31 See, ForeignOfficenote entitledAdministration by British North BorneoCompany of certain UnitedStates
islanh dated23 November1922,Annex 121,Vol. 4. See, also,letterfiom BritishNorthBomeo Company
to ForeignOfficedated 13July1903,Annex102,Vol.3.
32 CorrespondencefiomtheCaptainof U.S.S.Quirosdated19and24 June1903,Annex 100,Vol. 3.
33 LogbookofU.S.S. Quirosdated27 November1902to23 June1903,Annex97, Vol. 3.
34 See, log bookof U.S.S. Quiros dated24 June1903to 13January1904,Annex 101,Vol. 3, andU.S. cable
of 1August1903,Annex103,Vol. 3.
35 Emphasisadded. See,Annex104,Vol. 3.7.42 On 15 December 1903, the U.S. Secretary of War asked the State Department which
islands it considered to be included in the description "any and al1 islands belonging to the
Philippine Archipelago, lying inside of the line described in Article 3 of that treaty (the treaty of
Paris) contained in the treaty with Spain, signed Nov. 7th, 1900"~~.The State Department not
having replied to this request, the War Department asked that, until the State Department had
taken an officia1position regarding the boundary, al1officia1maps contain a reference to the
relevant treaties (the 1885Protocol, 1898 Peace Treaty and the 1900Treaty). According to U.S.
sources, as of October 1906 the State Departmenthad not "yet laid down the official position of
the boundary line"37.
7.43 Whatever the reasons behind the U.S.S. Quiros'visit, the exchanges of correspondence
between the British and U.S. authorities regarding that episode do not mention the islands of
Ligitanand Sipadan nor dothey evoke - as relevant to the discussions -the 1891convention3'.
7.44 The BNBC was informedof the Quiros'visit to the Turtle islands and other islands off the
port of Sandakhan and protested its activities as it considered these islands part of British
possessions in the area39. The British Government argued, on behalf of the BNBC, that the
islands had been administered first by the CharteredCompany, since 1881,and then by the North
Borneo Government as an integral part oftheir territory under British rule. British administration
of these islands had never been contested by the Spanish or the U.S. Governments until the visit
ofthe Quirosin 1903~'.
7.45 By March 1904, any significance that might have been attributed to the voyage of the
Quiroshad been even further diluted. SecretaryHay wrote to the Secretaryof the Navy with the
suggestion "thatperhaps it might be as well for you to give an order to Ournaval officers in those
36 See, letter fiom the Director of Coast Suweys dated 13October 1906,Annex 111,3.l.
37 Ibid.
38 For a description of the British position, see, Foreign Office note entitledAdministration byBritish North
Borneo Companyof certain UnitedStates islandsdated 23 November 1922, Annex 121, Vol.4. See, also,
letter fiom British North Bomeo Companyto Foreign Office dated 13July 1903,Annex 102,Vo3.
39 Amex 102,Vol. 3.
40 Ibid.paras. 11and 14.waters to abstain from any assertion of our sovereignty or any act of possession of these islands
while the subjectis under discu~sion"~'.
7.46 Some years later, in the IslandofPalmasArbitration,the U.S. Memorandum referredto a
1902map, stating that "[tlhe map indicates by a black dashed line, reinforced in color, the limits
of sovereignty of the United States of America in the waters adjacent to the Philippine Islands",
but excluding the area around Sipadanand Ligitanfromthe area of the dashed line~~~.
7.47 Eventually, the British Government came around to theU.S. position and concluded that,
since the treaties entered into by the Sultan of Sulu with the BNBC concerned only the islands
within three marine leagues from the coast of North Borneo,the U.S. claims to islands lying
beyond that limit might have some f~undation~~. Britain therefore sought to reach an
accommodation with the U.S. Government whereby the Government of British North Borneo
continued to administer the islands and supervisethe policing of smuggling and pirate activities
whilst recognising U.S. rights tothe i~lands~~.
7.48 On 23 June 1906,the British Ambassadorin .WashingtonSirMortimer Durand, addressed
a Memorandurn to the U.S. Secretary of State Elihu Root suggesting a solution to the dispute45.
While he noted that the BNBC did not intend to prepare a map showing the line dividing North
Borneo from U.S.territory, he did offerthe following proposal:
"2. The Company would like to be left undisturbed in the
administration of the islands without any detailed agreement,the United
41 Leîîer fi-omU.S. Secretaryof State to Secretaryof the Navy dated 2 March 1904,Annex 106,V3..
42 Island of Palmas case, U.S. Memorandum,p. 46. The map referred to is Map No. 8 in the Map Atlas. The
map is overprinted with "S Doc 280 57 1" in the lower right, indicating that it was taken fiom A
Pronouncing Gazetteer and GeographicalDictionary of the Philippine Islands (Washington, D.C.,U.S.
Govemment Printing Office, 1902), U.S. Senate Doc. 280, 57"Congress, 1''Session and that it had been
43 submittedto the United StatesSenate.
See, Foreign Office Memorandum, entitled The claim of the British North Borneo Company to certain
islands lyingoff the coast of Borneo which wereformally taken possession of by the American warship
"Quiros" in1903(communicated to the British NorthBomeo Company) dated 10March 1905,Annex 109,
Vol. 3.
44 Foreign Office Memorandum entitledAdministration by British North Borneo Company of certain United
States island dated 23 November 1922,p. 228, Anne121,Vol. 4.
45 Annex 110,Vol. 3. StatesGovernment simplywaivingin favor of the company theirright to
administer...".
7.49 TheU.S. Secretaryof Stateacceptedthisproposa1in the followingterms:
"...narnely,that the companybe left undisturbedin the administrationof
the islands, without any detailed agreement, the United States
Government simply waiving infavor of the company their right to such
an administrationin the meantime ... .It might beagreed that such an
understanding shallbe with the British Government, acting onbehalf of
the interests of British subjects; that it shall not carry with it territorial
rights (such as those of grants and concessions), that the waiver shall
coverthe islands to thewestward andsouthwestwardof the line traced on
the map whichaccompaniedyour memorandumof June23.. .14.
7.50 Finally,the parties agreed,withan exchangeof notes whichtook placein July 1907,to an
arrangement reflecting the Durand proposa1described above4'. According to the arrangement,
the BNBC wouldcontinue its defacto administrationof certain islands situatedbeyondthe three
marine league limit. The arrangement was without prejudice to a final delimitation of the
boundaryand couldbeterminatedat ayear's noticeby eitherparty.
7.51 While it is importantto understandthe historicalbackgroundof these exchanges toplace
the issue in context,anyambiguity concerningthe division of the territorial possessions of Great
Britain and the United Stateswas definitively settled in 1930 when the two Statessigned a
Conventiondividing their respectivejurisdictionsinthe area.
C. The Convention of 2 January 1930between Great Britain and
the United States
7.52 In 1922,the United States,whichhad undertakentograntautonomyto the Philippines"as
soon as a stable Governmentcould beestablished", startedto press theBNBCto hand over tothe
46
47 Letter fromU.S. Secretaryof Stateto the British Ambassador dated19December 1906,Annex 112,Vol.3.
Letter fiom the British Ambassadorin Washington to the U.S. Secretary of State dated 3 July 1907 and
Vol. 3.iom the U.S. Secretaryof Stateto the British Ambassador dated10July 1907, Annexes 113and114,Philippines the administration of the Turtle Islands gro~p48. Discussions ensued between the
British and U.S. Governrnents on how to measure the three marine league limit, whether to
include contiguous islands as part of the mainland, how to deal with islands that intersected the
three marine league limit such as Little and Great Bakkungaan, andhow to safeguard the proper
maintenanceof important structuressuch asthe lighthouseon ~a~anak~~.
7.53 The discussions led to the signature on 2 January 1930 of a convention between Great
Britain and the United States setting out the definitive boundary line separatingthe islands
belonging to the United States from those belonging to British North Borneo. The Convention
was supplementedby an exchange of notes5'.
7.54 The line described in Article 1of the Convention appearson Map 7.3. It is also indicated
on chartsNos. 4707 and 4720 publishedby the U.S. Coast and Geodetic Survey.
7.55 As can be seen from the map, under the 1930 Convention the southern limits of U.S.
possessions lay along the 4" 23' N parallel of latitude, well tothe north of Sipadan and Ligitan
and to the north of the 4" 10'N line of latitude establishedby the 1891 Convention. The western
limits of U.S. jurisdiction also fell to the north and east of the islands. Consequently, there was
no question of any possible claim ofthe United Statesto the islands in issue in this case.
7.56 Map 7.3 also shows the situation between The Netherlands and Great Britain resulting
from the 1891 Convention. The limitsof each party's possessions had been fixedas lying along
the 4" 10'N latitude east of the island of Sebatik. Based on the treaty history, therefore, both
Sipadanand Ligitan were clearly deemedto fa11under Dutch sovereignty.
48 The Turtle islands were Boaan, Lihiman, Langaan, Great Bakkungaan, Little Bakkungaan, Taganak and
Baguan. See, ForeignOffice Memorandum entitledBoundary between British NorthBorneo and the
Philippines,ithmap, dated July 1927,p. 7, Annex 123,Vol.4.
49 Ibid.,pp. 7, 10and 11.
50 For a copy of the Convention, Supplementaryexchange of notes and attachedCharts Nos. 4707 and 4720,
published by the United States Coastand Geodetic Survey, correctedto July 24 1929, depicting the
boundary line agreedinthe Convention,see, Annex 126,Vol.4. Section 4. General Conclusions
7.57 The general conclusions concerning the practice of Great Britain, Spain and the United
Statesinthe region can thus be summarised as follows.
7.58 With respect to Great Britain, Sipadan and Ligitan did not fa11within the grant to
Overbeck and Dent in the light of the fact that they were morethan three marine leagues from the
Bomeo coast. They similarly did not fa11within the 1885Protocol which applied to islands only
if they were within three marine leagues of the coast. Nor did they fa11within the scope of the
1903 Confirmation of Cession which was limited to islands lying north of the 4" 10' north
parallel of latitude.
7.59 With respect to the Sultan of Sulu and Spain,the former did not consider islands such as
Sipadan and Ligitan to be within his domain, either as part of the Sulu Archipelagoor as part of
his Bomean claim. Nor had Spain the slightest pretension to claim featuresso far south and west
ofthe SuluArchipelago.
7.60 The 1891 Convention settled the matter of territorial possessions between The
Netherlands and Great Britain with islands lying to the south of the 4" 10' N latitude being
attributed to The Netherlands. The Dutch map attached to the Explanatory Memorandum -
transmiîted to the British who did not protest- depicted the line dividing territorial possessions
running offshore along the 4" 10' N line to a point north of Sipadan. Moreover, the 1903
Stanford's map depicting the administrative divisions of the BNBC reflected not only the
situation created by the 1903 Confirmation of Cession, but also theBNBC'srespect for the 1891
line which left Sipadan and Ligitan onthe Dutch side of the boundary.
7.61 As for the United States, it is evident from the 1898 and 1900treaties between Spain and
the United Statesthat neitherSipadannor Ligitan were consideredto form part of the possessions
owned by Spain and transferred to the United States. Despite sporadic discussions with GreatBritain inthe earlypart of this century, that ultimatelywas thepositionof the United States when
it signedthe 1930Convention with Great Britain fixing the southern limio tsf its possessionswell
to the north of the 4" 10'N latitude. The islands remainedon the Dutch side of the line dividing
territorial possessions that had been established in 1891. CHAPTERVI11
THEEMERGENCEOFTHE DISPUTE ANDITS AFTERMATH
8.1 As ChapterIIIof this Memorialdemonstrates,Sipadanand Ligitan islandswere never
the subject of any dispute between The Netherlands and Great Britain during the colonial
period, or between Indonesia and Malaysiafollowing independence. Both colonial powers
carried out neighbouring activities,but at no stage didBritain or Malaysia claim sovereignty
overthe islands,andthe extensionof the 1891linewas alwaysconsideredto have divided the
respectiveAnglo-Dutchpossessionsin theregion.
8.2 This is further evidenced by the oil concessionsgranted by Malaysia to the Japanese
company, Teiseki, in 1968and by Indonesiato another Japanese company, JAPEX, in 1966.
Boththese concessionsscrupulouslyrespectedthe 4" 10'N parallel line1.
8.3 It was only during the negotiations held in 1969concerning the delimitation of the
respective continental shelves of the two States that Malaysia evoked an alleged title of
sovereignty over the islands of Sipadan and Ligitan. These negotiations are of particular
importance as it was at this date that the dispute crystallised, with fundamental legal
consequences, in the light of which the subsequentbehaviour of the Parties should be
reviewed.
8.4 In the present chapter, Indonesia willfirst set out the development,purpose and legal
significanceof the 1969negotiations (Section l), and then describe the subsequent activities
of the Parties in relationto the two islands (Section
1
See,paras.6.10-6.27,above. -152 -
Section1. The 1969Negotiations
8.5 From 9 to 22 September 1969, Indonesia and Malaysia entered into negotiations in
Kuala Lumpur regardingthe delimitation oftheir respective continentalshelves. It was during
these discussions that, for the first time, Malaysia claimed sovereignty over Sipadan and
Ligitan. At the end of the negotiations the two Parties undertook to respect theatus quo and
to refiain fiom doinganythingwhich might aggravatethe dispute that had arisen as a result of
the new Malaysian claims.
A. The Developmentof the Negotiations
8.6 Intent on putting to good use the natural resources of their respective continental
shelves,the two States set about delimiting the same in the followingfour maritime zones of
interest to them:
the Straitof Malacca;
the western sector of the South China Sea (off the eastem coast of
Malaysia);
the eastern sector of the South China Sea (along the eastern coast of
Kalimantan and the Malaysian stateof Sarawak), and
the Sulawesi sea (Celebes), along the eastern part of Kalimantan and
Sabah.
8.7 With regard to the firsthree zones,the negotiations culminated, on 27 October 1969,
in the Agreement between the Government of the Republic of Indonesia and the Governent
of Malaysia Relating to the Delimitation of the Continental Shelves between the Two
countries2. This was supplemented, with regard to the delimitation of the territorial sea
between the two States, by the Treaty Relating to the Delimitation of the Territorial Seas of
the Two Countries in the Straitof Malacca,dated 17March 1970.
2
A copyofthis AgreementisattachedinAnnex136,Vol.4.8.8 It is worth noting that these agreements are favourable to the Malaysian side,
especially the sections relating to the delimitationof the continental shelves in the eastern
sectorofthe South ChinaSea where thelineof delimitationveers quiteconsiderablyfrom the
line of equidistancein favour of ~ala~sia~. This concession on the partof Indonesia was
consentedto in orderto take into accounta pre-existingoil concessiongrantedby the British
Administration to Shellbefore the adoption of the 1958 Geneva Conventions; it shows the
climateof understandingexistingbetween theparticipantstothe negotiations4.
8.9 However,the negotiationsfailedwith respectto the fourthmaritime zone to the eastof
Kalimantan and Sabah. It should be noted that the Indonesian delegation did not have
instructionson this point andhad onlyacceptedthat the matter be discusseduponthe express
request of the Malaysian side5. The reason why these negotiations failed was precisely
becauseofthe Malaysianside'sclaimsover Ligitan andSipadan.
8.10 The Malaysianclaimsover theislandswere notmade immediatelyat the beginning of
the conference,whichcommenced on9 September1969. Quiteto the contrary, at theoutset
of the negotiations, both the Indonesian and Malaysianparticipants used the sarne 1967
Britishmap which clearly showedthat the islands,whosepossessionwould laterbe contested
betweenthe Parties, were markedas being includedwithin Indonesian sovereignty6.It was
onlyon 18 Septemberthat theMalaysian mappingexpertsput forwardAct No. 4 concerning
Indonesian waters of 18Febmary 1960 to contest the delimitation line proposedby their
Indonesiancounterpartsonthe basis of the 1967map7.
3 See, the map contained in Charney, J.I., and Alexander, L.M., International MaritimeBoundaries,
Vol. 1,ASILlNijhoff, 1991,p. 1024,Annex 136,Vol. 4.
4 See,Afidavit of Admira1Sumardiman,AnnexB, Vol. 5.
5 Report of the Delegation of the Republic of Indonesiato the Meeting Concerning Delimitation of the
ContinentalShelf Boundary Between Indonesia and Malaysia, Held in Kuala Lumpur from 9 to
22 September 1969,(unofficialtranslation), Annex 132,Vol.4.
6
7 See,Affidavit of Prof. MochtarKusumaatrnadja,AnnexA, Vol. 5.
Act No. 4 concerning Indonesian waters of 18 February 1960, in the State Gaze1960, No. 22,
Annex 128,Vol.4.8.11 It is correct that this lawdid not take into considerationthe two islandswhen plotting
Indonesia'sinitial archipelagicbase-lines. As the affidavitof Admira1Sumardiman explains8,
this was due to the fact thatthe law was drawn up in haste: Indonesia was, at thatmoment in
time, concerned with gaining recognition for the notionof archipelagic waters at the Second
United Nations Conference on the Law of the Sea, and the drafters of Act No. 4 did not
preoccupy themselves particularly with ensuring that al1 the islands forrning part of the
Indonesian archipelago - an archipelagowhich comprises more than 17,000 islands - were
included; the fundamental point was to establish the concept in law. Moreover, Indonesian
technicians used a small scale map which did not depictSipadan or Ligitan or, indeed, a
number of other Indonesianislands.
8.12 Furthemore, Malaysia,which had upheld the Indonesianposition on this matter at the
Second andThird United Nations Conferenceson the Law of the sea9, was not of the view
that Act No. 4 of 1960 could be opposed to Indonesia when the matter in hand was the
delimitationof the continental shelvesof thetwo Statesin the eastern part of the China Seain
the Malacca Strait. Malaysia recognised Indonesiansovereignty over various islands in the
South China Sea,notably Pulau Tokong Boro andPulau Pengibu, as well as Tandjung Parit
and PulauBatu Mandi in the MalaccaStrait,even thoughthese islands were not mentionedin
the 1960lawlo. Moreover,as the Court recalledin the case concerning the ContinentalShelf
(TunisidLibyanArab Jamahiriya), "themere indication on the map of the linein question is
not sufficienteven forthemerepurposeof defininga forma1claim at the level of international
relationsto a maritimeor continentalshelf boundary"".
8
9 See,Affidavitof Admira1Surnardiman,AnnexB, Vol. 5.
See, e.g., Statementby the Honourable Tan Sri DatoHaji Abdul Kadir Bin Yusof, Attorney-Generalof
Malaysia, to the Plenary Session of the Third United Nations Conference onthe Law of the Sea at
Caracas on 10July 1974,Annex 139,Vol.4.
10 See, Affidavit ofAdmira1Surnardiman,Annex B, Vol.5.
Il ContinentalShelf(Tunisia/LibyaArab Jamahiriyah)J,udgment,I.C.J.Reports,1982,p. 18,at p. 69.8.13 Furthermore, Malaysia reacted in exactly thesame way with regard to the islands of
Ligitanand Sipadan,which:
- do not appear amongstthe islands belongingto Malaysia in any officia1
map until 1979,in particularthe maps of 1966and 196712,
- are not mentioned in the Malaysian Ordinance NO7of 2 August 1969,
which described a map depicting Malaysia's territorial waters
(Article5)13,
-
are not includedas Malaysianpossessions in the officia1Malaysianmap
of 1972whichseemsto have been adoptedpursuant to the provisions in
the above-mentioned 0rdinance14;indeed, Sipadan is not even shown
onthe map; and
- are not included within the thirty-eight marine parks in Malaysian
territory,recordedin the Business Timesin December 1994".
8.14 The position taken by the Malaysian technicalexperts on 18 September was relayed,
on the same day, by the acting head of the Malaysiandelegation,Dato Mohammed Saleh bin
Abas, who, during the plenary session, stated that the two islands belonged to Malaysia and
announcedthat he would produce evidenceof this fact after a pause in the session. Once the
session reopened, Mr. Mahyuddin, who had replaced him as the head of the Malaysian
delegation,reaffirmedthe position ofhis country,whilst at the same time stating that he was
not in aposition to supplythe evidence -as earlierpromised - but that this evidencewould be
put togetherduringthe weekend16.
12 Map entitled Malaysia Timor Sabah, published and printed by the Directorateof National Mapping,
Malaysia, 1966, Map No. 12 in the Map Atlas; map entitled Semporna, produced by the Survey
Department, Malaysia, 1967,MapNo. 15inthe Map Atlas. See, also, para.6.72, above.
13 Annex 137,Vol.4.
14 Map entitled Malaysia Timor Sabah, reprinted by the Directorate of National Mapping, N060, 1972,
MapNo. 18inthe Map Atlas.
15 Annex 177,Vol.4.
16 These eventsare discussedinthe affidavitsof Prof. MochtarKusurnaatmadjaand Admira1Sumardiman,
Annexes A andB, Vol. 5.8.15 The conference, which wasdue to end on Fridaythe 18', was therefore extendeduntil
Monday21 September. But, when thenegotiations resumed,the Malaysian side was still not
able to presentanyevidence whatsoeverin supportof its new claims.
8.16 It was thereforedecided thatthe Heads of the two delegationswould initial thepart of
the Agreement relating to the delimitation of the Malacca Strait and the South China Sea
whilst, in deference to the express request of the Malaysian delegation, the negotiations
concerningthe delimitationbetweenthe two continental shelves in the Sulawesi Sea were to
be suspended and resumedat a later stage.
8.17 No joint officia1record of the 1969negotiationsexists except for a Press Statementof
22 September which simplystates the results achieved,speciQing that "[tlhe negotiationwas
carried out in a friendly and cordialanner" and that "[bloth delegationswere guided,in the
course of the negotiation by the need to seek an equitable, fair and reasonable basis for
agreementM". The above cornrnentaryis based on first hand accounts of participants at the
Conference, confirmedinthe affidavits annexedto this ~emoriall*.
B. Content and Scopeof the1969Agreement
8.18 The Press Statementof 22 September 1969invokesthe failureof the negotiationswith
regardto the delimitationof the continental shelfin the Sulawesi Sea only by inference. The
followingcomment was, however, added:
"Both delegations also recognised the need for their Govemments to
discuss related problems of territorial sea boundariesand the use of
theseasbetween their twoco~ntries"'~.
17 Annex 133,Vol.4.
18 Affidavitsof Prof.MochtarKusumaatmadjaandAdmiralSumardiman,Annexes A andB, Vol. 5.
19
Annex 133,Vol.4.8.19 In conjunction with these public declarations, the Heads of the two delegations,
Professor Mochtar Kusumaatmadjafor Indonesia and Mr. Enche Mahyuddin bin Haji
MohammedZain for Malaysia,proceededto complementaryconsultationswhich, by means
of an exchange of letters on 22 September 1969, led them to state their common
understanding:
"...that boththe negotiationandthe Agreementare purely andwholly
of a technicalatureM2'.
8.20 This understanding reflects the agreementbetween the two Parties that the 1969
negotiationsdid not entai1any recognition of sovereignty over theislands and the bilateral
undertakingthat neitherPartyshould carryout anyactswhich mightalterthestatus quo. This
is confirmedby the annexedaffidavitof Professor Mochtar Kusumaatmadja,who headed the
Indonesian delegationand who was subsequently Indonesia's Minister for Foreign Affairs
fiom 1978to 1988~'.As hewrites:
"As the head ofthe Indonesian delegation, 1noted at this sessionthat
each side held different views on the legal status of Sipadan and
Ligitan islands and that, either country was expected not to take any
"tindakanpemilikan" (measures of ownership) which might be
prejudicial to theother.Thus,it was agreedthat thestatusquo will be
held, pendingfurtherstudyonthe issuesbyboth sides.. ."
"...Thepurposeofthis understandingwasto underscorethe technical,
as opposedto political, natureof the discussionsthat had taken place.
In particular,as 1havenotedabove,therewas adesirenot to prejudice
political issues relating eitherto the legal statusofSipadanand Ligitan
Islandsorthe positionofthe Philippineswith respectto their claimsin
Sabah.
It was therefore during the 1969 negotiations that the question of
sovereignty over Sipadan and Ligitan was first raised between the
Parties and a claim put fonvard on behalf of Malaysia. Both
delegationsultimately decidedto deferthis issue so as not to impede
20
21 Annex134,Vol.4, see,also,Annex135,Vol.4.
AnnexA, Vol. 5. the signing of a continental shelfboundaryagreement inother areas,
and thereby agreed to maintain the status quo on the issue pending
furtherdiscussionanda resolutionof thematter"22.
8.21 Even independentlyof thismutualundertaking -that Malaysiahas not respected(see,
paras. 8.58-8.80,below) - the 1969negotiationsare extremelyimportant from a legalpoint of
view. They markthe beginning ofthe dispute: until this date, Indonesia was completely
unawareof any Malaysianclaimsto Pulau Ligitan andPulau Sipadan. It was only duringthe
course of these discussions that Malaysia madethese claims known, for the first time, and
without adducingany evidencein supportof their claims, despite the promises made in this
regard; this resulted in a forty-eight hour delayto the conclusion of the negotiations.
Moreover,as explainedabove,at the beginningof these negotiations, Malaysiawas actingon
the basis of a map (of 1967)clearly showingthat Sipadan and Ligitan belongto Indonesia,
thus recognisingpositivelyIndonesia'stitle.
8.22 It is also of interestto note that the Partiesdid attach a mapto their 1969 continental
shelf agreement, which depicteda dashed line extending due east along the4" 10'N latitude
fromthe island of~ebatik~~.
8.23 For the purpose of this dispute, 1969(and, more precisely,18 September 1969)must
thereforebe consideredto be the "criticaldate"whenthe disputewas definitively crystallised,
"the dateafter which the actionsof thepartiescannot affectthelegal ~ituation"~~.
8.24 This concept isof particular importancein disputes ofa territorial nature. Asthe sole
arbitrator in the Island of Palmas case, Max Huber, noted, "it must also be shown that the
territorial sovereignty...did exist at themomentwhich forthedecisionof the disputemustbe
22
Ibid.
23 MapNo. 17 inthe Map Atlas. See, also,para. 6.75, above.
24 Johnson, D.H.N., "AcquisitivePrescription in International Law", 27 B1950,fn.4, p. 342; see,
also, Basdevant, J., (ed.),ionnaire de la terminologie du droit international,Paris, Sirey, 1960,
p. 186;Goldie, L.F.E., "The Critical Date", 12I1963,p.1251, or Jennings, Sir R., and Watts, Su
A.,Oppenheim'sInternationalLaw,9" ed., Longmans,London,pp. 710-711.considered as ~ritical"~~.Sir Gerald Fitmaurice masterfully explained the consequences of
the critical date in his pleading in the caserelatingto Minquiers and Ecrehos:
"... the theory of the critical date involves ...that whatever was the
position at the date determined to be the critical date, such is still the
position now. Whatever were the rights of the Parties, those are still
the rights of the Parties now. If one of them then had sovereignty, it
has it now, or is deemed to have it. ... The whole point, the whole
raison d'être, of the critical date rule is, in effect, that time is deemed
to stop at that date. Nothing that happens aftenvards can operate to
changethe situation that then existed. Whateverthat situation was, it
is deemed in law still to exist; and the rights of the Parties are
governedby
8.25 In keeping with a well established and consistentjurisprudence, this date must be fixed
at the moment when one of the parties makes it knownthat it has a claim which is at variance
with the existing state of affairs or at the moment when the parties become aware of the
existenceof a di~a~reernent~~.
8.26 Whatever the previous situation, it is therefore from 1969that the respective claims of
the Parties find themselves in effect "legallyneutralised". Whatever either Party may do or
Sayafier this date, these actions are not relevant to the proceedings unless the Parties agree
othenvise. As the Parties have not entered into any such agreement, it is up to the Court to
determinewhether sovereigntyover Pulau Ligitanand Pulau Sipadan belongs to the Republic
of Indonesiaor to Malaysia on the basis of the territorial title to the islands in existence as of
1969.
8.27 However, while acknowledgingits undeniable relevance, it is Indonesia's opinionthat
the importance of this date should not be exaggerated. If 1969 is considered to be the date
when the dispute emerged, given that this is the first time that Malaysia made known its
25 P.C.A. Awardof 4 April1928, UNRIAA,Vol. II,p. 830, atp. 839.
26 I.C.J.Pleadings,MinquiersandEcrehos,Vol. IIp. 64.
27 See,SovereignS over Certain FrontierLand,Judgment,I.C.J.Reports 1959, p. 209, atpp.227-228 or
RightofPassage overIndianTerritory,Merits,Judgment,1.C.J Reports 1960,p. 6, atpp.28-29.claims over the islands, the only resultis to exclude fiom evidenceal1self-servingacts after
this date in connection withthe disputed islands (subject tothe reservationsmade at paras.
8.46-8.57, below). This date, however, does not by itself serve to determineconclusively the
existence of a sovereigntitle in favour of either Party. The existence of this title must be
analysed at the time when each countryattained independence (as per the principle of uti
possidetisjuris) -another key-datein al1territorialdisputesbetween States whichhave had a
colonial past- in orderto establishwhattheprevailingsituationwas atthat time.
8.28 In other partsof its Memorial,the Republicof Indonesiahas reviewedthe importance
of thesedifferentdatesto thecaseandthe wayin whichtheyinteract.
Section2. TheSubsequentConduct ofthe Parties
8.29 The critical date has the effect of fieezing the territorialtitles of the Parties. Neither
Indonesia, nor Malaysiacan invoke later activities on the disputed islands as evidenceor as
actsof consolidationoftitle. Indeed,theseactivitieswould not beof atitle-generatingnature.
8.30 This is al1the more relevantin the present instance given that the Parties agreed,in
1969,to maintainthe status quoas seenabove.
8.31 This doesnot implythat the subsequentactivitiesof the Partiesrelatingto Ligitanand
Sipadanlackal1legal significance.Theymaybe legallysignificantintwo situations:
- on the one hand, if they constitutethe recognitionby one of the Parties
of theterritorial sovereigntyof the other;or
- on the other hand,if they can be describedas an agreementto transfer
the territorialtitle inexistenceat thetime of theriticaldate.8.32 In the present case,not only hasno such an agreement beenentered into, but, what is
more,Indonesiahasclearlytaken stepsto protectits rightsby systematicallyprotestingagainst
the breaches of thestatus quo and the activitiesof Malaysiaon the disputed i~lands~~.These
activities have become particularlyintensive since the beginning of the 1990s;they are in
direct contrast with the initial attitude taken by Malaysia which, in the years following the
1969 negotiations,reconfirmedby its conduct its recognitionof Indonesian sovereigntyover
Ligitanand Sipadan.
A. Malaysia'sRecognition of IndonesianTitle after 1969
8.33 As Indonesia has demonstrated in Chapter VI,the United Kingdom and subsequently
Malaysia have, on many occasions, recognised Indonesia's sovereignty overthe disputed
islands, essentiallythrough maps issued by officia1 cartographic services and by the oil
concessions granted to oil companies priorto 1969, which have consistently respectedthe
1891 line. It is also significant that these acts of recognition continued after 1969, even
though, by this date, Malaysia had advanced for the first time its claims of territorial
sovereigntyover LigitanandSipadan.
(i) The Limits of the Oil Concessions
8.34 In paras. 6.10-6.29,above,Indonesiahas set out the legalsignificance of the limitsof
the oil concessions in determining the maritime boundary between the two States. By
refraining from granting concessionswhich extended south of the 4" 10'N parallel line,
Malaysiademonstrated in a concrete fashion itsbelief that it did not possess territorial rights
beyond that limit. Moreover, the coincidence between the limits of the Indonesian oil
concessions on one side and the Malaysian concessions on the other was clearly not
fortuitous;the Parties' conductinthis respect atteststo the commonlysharedconvictionof the
28 See, par8.58,below.two Parties regardingtheir respect forthe 1891line. It demonstrates that Malaysia,just as
Indonesia, was convinced, before its claimswere advanced during the 1969 negotiations
concerningthe continental shelf, thatits maritime and insular territory did notxtend beyond
the 4" 10'N lineof latitude.
8.35 This situation continued afier Malaysia'sterritorial claim was advanced for the first
time during the 1969 negotiations. Apparently, Malaysiahas not granted new concessions
afier the partial failure of the 1969 negotiationson the delimitation of the continental shelf.
However,it maintained the 1968Teiseki concessionwhich respected the 1891line.
(ii) The1972MalaysianMap
8.36 The cartographicmaterial available constitutesanother decisive piece of evidence in
supportofthis conclusion.
8.37 Although in 1969 Malaysiahad laid claimto Pulau Ligitan and PulauSipadan (see,
Section 1, above),the map publishedby the Directorateof National Mapping of Malaysiain
1972 reproduces purely and simply the courseof the line shown on previous maps (see,
Chapter VI, above) and does not include Ligitan andSipadan within Malaysia's maritime
boundaries2'.Indeed,Sipadanis not evenshownonthemap.
8.38 This fact isl1the more significant giventhat, at the time of the 1969negotiations, the
civil servantsof the National Mapping Directorateplayed an active part in the negotiations.
Al1threeMalaysianexpertsworkedinthis office:
- Hadji Mohamad Yatim,DirectorofNationalMappingofMalaysia,
- Mr.Kok SweeKok, Assistant Director, and
- Mr. Tamakbin Hamzah,chief ~arto~ra~her~~.
29
30 MapNo. 18inthe MapAtlas.
Annex132,Vol.4. See, also,AffidavitofAdmiralSumardimaAnnexB, Vol.5.Itwas preciselyduringthe discussionsbetweenthe cartographicexpertsof the twoParties that
Malaysia, for the first time, contested Indonesia's territorial sovereignty over Ligitannd
sipadan3'.
8.39 It is therefore unthinkable thatthese high ranking officiais, who were responsible for
the elaboration or, in any event, the publication of the 1972 map, and who had playeda
fundamental role in the presentation of the Malaysian claims in 1969, could have
inadvertently allowed a mapto be printed, three years later, which was incompatiblewith
these claims. The publication of this map constitutes clear recognition of the absence of
Malaysian sovereigntyoverthe two disputedislands.
8.40 It must also be notedthat the 1972map was in keeping withthe map attached to the
1969 Agreement, whichalso depicts a straight dashed line extending east of Sebatik, in
conformitywiththe 1891Convention.
Maintenance of Buoys on Both Sides of the 4O10' North Line
(iii)
8.41 Another notable aspectof Malaysia's behaviouris relatedto the maintenanceof safety
buoysin theregion.
8.42 A navigationalbuoy on the Alert Reefs,which are also referred to on some maps as
the Alert Patches and which,as can be seen fiom the enlargementof the hydrographicchart
attachedas Map No. 23 in the Map Atlas, is situatedjust south of the 4" 10'N parallel, was
erectedbythe IndonesianshipsKRIJalanidhiandKNBimaSaktiin 1994~~.It seemsthat the
sarneyear Malaysiabeganto undertakeactivitieson Roach Reefs locatedjust to the north of
the 4" 10'N line. The Alert Reefs are situatedat approximately4O09'30" N, 118"16'00" E
while Roach Reeflaysat 4O11'30" N; 118°16'00"E.
31 Annex 132,Vol.4, atpara.II 5 e, and AffidavitofAdmira1Sumardiman,AnnexB, Vol.5.
32 See, Description of Alert Reef preparedby the Headof Hydro-OceanographyServices, A1,ex 18
Vol.4.8.43 The electricalbatteryon Alert Reef is maintainedby the Navigation District Class of
Tarakanas shownbythe annexed~e~orts~~.Forits part, the electricalbatterybuoy on Roach
Reefis maintainedbythe MalaysianNavy.
8.44 The interesting point here is that both Parties strictly respected the 4'10' line in
carryingout theseactivities: while Indonesiais in chargeof the buoy at Alert Reef-lyingsouth
of the line, Malaysia undertakesactivities in Roach Reef, lyingnorth of the line. It must be
noted that Malaysiahas no more protested against Indonesian's actions in the area it claims,
than Indonesiahas protested against Malaysia'sbehaviourw , hich it recognises astakingplace
in Malaysianwaters.
8.45 Moreover, forthe purposeof checkingthe shallownessand ofupdating data onwaters
around AlertReef, anIndonesianNavy Ship, KRI Jalanidhi, surveyed and mapped AlertReef
from February 10to March 12, 1994, in accordance with the Armed Forces Survey and
Mapping Program of 1993194and based on Operational Plan No 26-93 on Archipelagic
SealanesII. During the Survey,three Malaysianships, namely 3144-KD SriSabah, 46-KD
Rentahx and 161-KD Marikh were seen surrounding the area and watching the survey
activities. TheMalaysianfleet didnot tryto prevent the survey and mappingactivitiesand,as
First Admira1 Nicolas P. Ello, the Head of the Hydro-Oceanography Services of the
IndonesianNavy concludedinhis reporton this survey:
"Itcouldbe assumed that Malaysiarespectsthe 04O10'00 line"34.
B. The Legal Significance of Malaysia'sRecognition
8.46 Whilst the parties cannot, unilaterally,modi@the legal situation in existence at the
time the dispute arose,atereventsmayhaveconfirmatoryvaluein corroboratingtheevidence
that existsrelatingto the earlierterritorialtitle. As Sir GeraldFitzmauricehas observed:
33 Reports of Electrical Battery Buoy Maintenance, produced by the Department of Transportation,
Tarakan,Annex 179,Vol.4.
34 Description ofAlert Reefpreparedbythe Headof Hydro-Oceanography Services, Annex181,Vol.4. "Just as the subsequent practice of parties to a treaty,in relation to it,
cannot alterthe meaningof the treaty, but may yetbe evidence of what
that meaning is,or of what the partieshad in mind in concluding it,so
equally events occurring after the critical date in a dispute about
territory cannot operateto alterthe position as it stood at that date, but
may nevertheless be evidence of, and throw light on, what that
position wasM3'.
8.47 As Sir Gerald has also explained, the actions, post-criticaldate, of the parties cannot:
"be admitted to consideration in such a way as to affect or change the
legal position as it stood at thecritical date- for, if that were the case,
it would nullifi the critical date, and cause it to be advanced to the
date of the latest act of the parties so admitted; and what would ensue
would be a deterrnination of the legalposition as to sovereigntyat that
later date. The true position is that if the post-critical date acts are of
'non improvement' character, they willbe evidence tending to show
the existence of sovereigntyat that date: and if not, n~t''~~.
8.48 Case law has consistently appliedthese principles. In the Island ofPalmas case, Judge
Max Huber, having detennined the critical date aftèr which the facts adducedby the parties
could no longerbe usedto establish territorial title, added that these events:
"are however indirectly of a certain interest, owing to the light they
might throw on the period immediately preceding"37
8.49 In the Tabacase, the Arbitral Tribunal alsocommentedthat:
"events subsequent to the critical period [that of the British Mandate
over Palestine] can ... be relevant, not in terms of a change of the
situation, but only to the extent that they may reveal or illustrate the
understanding of the situationas it was duringthe critical period"38.
35
Sir GeraldFitzmaurice'spleadingsin theMinquiersandEcrehoscase,I.C.J Pleadings, Minquiersand
Ecrehos, Vol. II, p. 94; italicsin originaltext; see, also, the separateopinion of Judge Sir Gerald
Fitmaurice in Temple ofPreah Vihear,Merits,Judgment,I.C.J.Reports 1962,p. 6, atp. 61.
36 Fitzmaurice,SirG., "TheLaw andProcedureof the International Couo rftJustice, 1951-1954",BYBIL
1955-56, p.44.
37 PCAAwardof 4 April1928,UNlUAA,Vol. II,p. 866.
38 ArbitralAward,29 September1988,27 ILM1988,p. 1469,para.175;see, also, the Beagle Channel
Arbitration,Awardof 18February1977,UNRIAA,XXI, p.53, atSectionIV,pp.66 et seq., paras.112
etseq.8.50 The Court has alço adhered to this view, when, at various times, it has found that
actions occurring after the critical date serve to confirm the situation in existence at that
date39.
8.51 The oil concessions maintained by Malaysia after the partial failure of the 1969
negotiationson the delimitationof the continental shelf andthe publication of the 1972map
bythe DirectorateofNational Mappingof Malaysia are includedin this categoryof actionsas
well as therespectof the 4" 10'Nlineby both Partiesin relation tothe maintenanceof buoys.
Although they donot modi@the situationexistingin 1969,theydo confirmthe situationin al1
its respects andremoveanydoubts there mighthavebeenabout Malaysia'sviewthat as of the
criticaldate,Malaysiahadno territorial sovereigntyoverthe islandsofLigitan andSipadan.
8.52 Twoelementsfurtherreinforcetheprobative valueof theseactions.
8.53 First of all, these actions occurred "in the period irnrnediatelyafter" the critical date.
That is to say very "shortly after" the dispute began, at a time when one would expect
Malaysia to be particularly careful about establishing anddefending its territorial claims.
"Claimsthen made, andthe reaction -or lack ofreaction - to them may throw light on the
contemporaryappreciationofwhatwasthe situation"atthecriticaldate4'.
8.54 Second, the evidentiary valueof the actions analysed above is increased by the fact
that theyconstitute a recognitionof facts which are unfavourableto the Party responsiblefor
them -in otherwords,as admissions against interest. Asthe Courthas stated:
"Interpretations placedupon legalinstrumentsby the parties to them,
though not conclusive as to their meaning, have considerable
39 See,Judgmentof 15June1962, Temple ofPreah Vihear,Merits,Judgment,I.C.J.Reports 1962,p. 6 at
pp. 16 and35 or Judgmentof 11 September1992, Land, Island and Maritime Frontier Dispute,(El
Salvador/Honduras:Nicaragua intervening),Judgment,I.C.J.Reports 1992, p. 351, atpp.524 or559;
see, also, JudgeBasdevant'sindividualopinionin Minquiers and Ecrehos, Judgment, I.C.J. Reports
1953,p.47, atpp.82-83.
40 See, Judgment of 11 September 1992, Land, Island and Maritime Frontier Dispute, (El
Salvador/Honduras:Nicaragua intervening),Judgment,I.C.J. Rep1992, p. 351atpp.429-430 and
559. probative value when theycontain recognition by a party of its own
obligationsunder an instrumentM4'.
8.55 The same is true when dealing with actions which are unfavourable to theirauthor in
the context of a territorial question. Thus it was, a contrario, in the WalvisBay case, where
the arbitratorJ.F.Prida noted, in relation to actionscarriedout afterthe critical date, that:
"...the value of [evidence]. .. in favour of the High Party which
invokes it, shouldbe weighed more carefullythan is necessary whenit
is unfavourableto that
8.56 This is especiallytrue with regardto the map evidence:
"Clearly, a map emanating from Party X showing certain territoryas
belonging to Party Y is of far greater evidential valuein support of Y's
claim tothat territorythan a map emanating from Y itself showing the
samething"43.
In the present case,it is indeed Party X, Malaysia, which recognises,by the actions described
above,in particularthe 1972map originating fromits officia1mapping service, thatit doesnot
have any title over Ligitan and Sipadan, although it protested Party Y's - in this case
Indonesia's - sovereignty over thesarne.
8.57 The only conclusion to be reached from this factual and legal analysisis that,
irnmediately after the critical date, the date when the present dispute began because of
Malaysia's new claims over Ligitan and Sipadan, Malaysia has, by means of actions of a
totally unambiguous nature, recognised that it didnot have territorial sovereignty over the
disputed islands. This legal admission, whichconfirms Indonesian title originating fromthe
Anglo-Dutch Convention of 1891, is of great probative value even though the actions
occurredafterthe critical date and were unfavourableto the Party carrying them out.
41 Advisory Opinion1,1 July 1950, International Statusof South WestAfrica, Advisory Opinion,I.C.J.
Reports 1950,p. 128,atpp.135-136.
42 WalvisBay case,Arbitral wardof23May1911, UNRIAA,Vol.XI,p.302.
43 Beagle ChannelArbitration,Awardof 18February1977, UNRIAA, XXI,p. 53,p.85, atpara.142. C. Indonesia's Reactionsvis-à-vis Malaysia's Actions
8.58 As Indonesia has shown in the previous paragraphs, in the years irnmediately
followingthe 1969negotiations,Malaysia notonly respectedthe status quo,but indeedwent a
step furtherand carried outactionsby which it recognisedthe lack of substanceto its claims.
Matters startedto change in 1979, however,when the Directorate of National Mappingof
Malaysia publisheda map refiecting Malaysia'sclaims over Ligitan andSipadan. After this
date, Malaysia carried outaseriesof actionsclearly aimedat improvingitslegal position with
respectto thetwo islands. Theseactionslackal1legaleffect,especiallygiventhat Indonesia, -
which itself has beencarefulto respect the 1969 agreement - has refrained from undertaking
similar actions which could modi@the status quo whilst actively and consistently protesting
against Malaysia'sactivities.
(i) The 1979Malaysian Map
8.59 It was only in 1979 that the Directorateof National Mappingof Malaysia published,
for thefirst time, a map which included Ligitanaid Sipadanwithin the Malaysian maritime
zone.
8.60 A mere glance at this map, which appearsas No. 21 in the Map Atlas, shows the
strikingcontrastwithpreviousmaps originating fromthe samesource. It is thus clearto what
extentMalaysia'sclaimsareartificial and representan encroachmentuponthe 1891line.
8.61 Apart fromthis, the 1979map hasno legal relevancefor the resolution of the current
dispute and is not admissible evidence for determining which Party has sovereignty over
Pulau Ligitan and PulauSipadan. Prepared for the purpose of assisting Malaysia in this
dispute, this map is notably in contrast with almostal1the previous cartographic material,
including maps producedby Malaysiaitself,describedin Chapter VI of this Memorial.8.62 As has been seen, prior to 1979, Malaysia maps were consistent with maps
originatingfrom third States and independentcartographic institutions in depicting the1891
line separatingthe territorialpossessionsofthe Partiesextendingeastof theislandof Sebatik.
8.63 Withrespectto the lackof legal relevanceof sucha radicaland self-servingchange of
cartography, the Arbitral Tribunal inthe Beagle Channelcase, in examining "[tlhe
cartography of the case considered as corr~borative"~~,discarded the Argentine maps
producedafter the criticaldate (fixedat the time of the 1908Treaty, when "the existenceof a
latent controversy .. had become evidentMP5w ),hich depicted the Picton islands,Nueva and
Lennox (the "PLN group") as belonging to Argentina, unlike earlier maps. Notable
exceptions were those maps issued imrnediatelyafier the critical date, and which were
consistentwith theusualcartographyP6.Inthis regard,the ArbitralTribunalnotedthat:
"... the quasi-uniformityof Argentinian cartography inthe immediate
post-Treaty period, and its concordance with Chilean officia1
cartographyin the sense that the PLN group was Chilean, continued
on the basis, not of a complete,but of a 'substantial' concordance of
official Argentine maps up to 1908, apart from certain 'doubtful
exceptions"t47.
8.64 The exact sarne question arisesin the present case and must be decided in the same
way. Just as Argentina,Malaysia'sofficia1cartographic authorities published at leasttwo
maps irnrnediatelyafter the criticaldate which recognisedthat Malaysiahas no title over the
disputed islands. Thesemaps were therebyconsistentwith the "substantial"(in realityquasi-
totality)majorityof earliermapsP8.As did Argentina, Malaysiathereafter modifiedits officia1
cartography in order to make sure it complied withits new claims. In both cases, this
completechange in policylacksal1legalsignificance.
44 BeagleChannelArbitrationA, wardof 18Febniary1977,UNRIAAX , XI,p. 53,atp. 163.
45 Ibid.,para. 1,p. 90.
46 See,paras.8.48and8.55,above.
47 Ibid.,para.151,p.90.
48 See,MapAtlas,MapsNo. 18 and20.8.65 This is as a consequenceof a more generaland well establishedprinciple,sometimes
known as the "improvementof position principle"or the "test of non-improvementof legal
position", accordingto whichactionsof thepartiesafterthe criticaldate, and carriedout with
the soleaim ofimprovingor supportingtheirposition,iack legalrele~ance~~.
8.66 Thistestbeing recognised, the Arbitral Tribunai ln the Beagle Channel casedecidedto
discardthe maps that Argentinahad apparently publishedonly in order to improve its legal
position,just asMalaysia hasdoneinthe currentsituation.
8.67 The International Courtof Justice has applied this general principle various times,
notably in the Minquiers and Ecrehos case, where the Court accepted, subject to certain
conditions (for a discussionof these conditions, see, paras.8.46-8.56, above), the probative
value of actionsthat occurredafter the criticaldate, "in view of the special circumstancesof
the case":
"...unlessthe measurein question wastaken with a view to improving
the legal positionofthe Partycon~erned"~~
8.68
Similarly,in the case concerningthe Land, Island and Maritime Frontier Dispute,the
Court admitted onepiece of evidence introducedby El Salvador,whichpost-datedthe critical
date,because,as the Court noted:
"...it has not been suggested that [this] title was issued in order to
strengthenthe territorial claimofthe Republicof El ~alvador"~'
Onecan inferfromthis, a contrario, that the title in questionwould not have been acceptedif
this condition,which couldbe describedas a "conditionof innocence",had notbeen fulfilled.
49 Fitzmaurice, SirG., "The Law and Procedure of the International Court of Justice, 1951-1954", BYBIL
1955-56,pp.40-41.
Minquiersand Ecrehos,Judgment,I.C.J.Reports 1953,p. 47, at p. 59.
51 Land, Island and Maritime Frontier Dispute, (El Salvador/Honduras: Nicaragua Intervening),
Judgment,I.C.J.Reports 1992,p. 351,at p. 430.8.69 This condition is not fulfilled in the current case. The 1979 map was deliberately
published by the same officia1Malaysian institution whose personnel included the mapping
experts who brought up the question of sovereigntyover the islands in 1969 and who did not
hesitate to publish again, three years later, a map which was more consistent with the legal
situationin fact. Moreover,the publication of the 1979mapset in motion a number of actions
which in fact provoked the rupture of the status quo in favour of Malaysia in contravention of
the undertakings made by it in 1969. It must be underlined that Indonesia irnmediately
protested againstthis map by a note verbaleon 8 February 198oS2.
(ii) Malaysia's Illegal Occupation of Ligitan andSipadansince 1980
8.70 At the end ofthe 1980s,Indonesia became awareof Malaysia'sactions in breach ofthe
obligations undertaken in 1969.
8.71 Therefore, by means of a note verbale dated 7 May 1988,the Indonesian Ministry for
Foreign Affairs, referring to the 1969 "understandingconcerning the islands of Sipadan and
Ligitan, off the Eastern Coast of Kalimantan", denounced the intensive settlement activities
being carried out by Malaysia, interalia:
"1. a wooden berth of 16meter in length and 3 meter in width, and
connecting bridge of 36 meter in length and 2 meter in width have
been built in the northernrnostsectionof the island;
"2. approximately 110coconut trees have been planted inthe area
under the management of Haji Hamid, resident Simpurna, East
Malaysia;
"3. a house owned by Haji Hamid is used as a shelter for
Malaysianfishermen who fish along Sipadan'sseashore;
"4. marine tourist activities to the island have been organized by
Borneo Divers Co., a travel bureau from Simpurna,East Malaysia. A
ship owned by that Companyflying Malaysian flag was spotted on 18
February 1988 carrying 17 foreign tourists of British, New Zealand
and U.S. nati~nalities"'~.
52 Annex 140,Vol.4.
53 Annex142,Vol.4.8.72 Despitethis protest,Malaysia continued to expandits installationson Sipadanin order
to maximise its unilateral exploitation of tourism on the island. By means of a new note
verbale on 15 April 1992, Indonesia'sMinistryfor Foreign Affairstherefore protested again
with regard to the construction of 40 cabins, 8 cafeterias, 3 houses, a pier and sports and
recreation facilities, al1 under an impressive police protection force of 20 armed men,
equipped with four speedboatsS4. Far from contesting these facts, Malaysia stubbornly
insisted that they are consistent withits claim of "sovereignty andjurisdiction over Pulau
Sipadanand Pulau~i~itan"'~.
8.73 On the basis of this erroneous premise, Malaysiahas continued to buildup its tourism
installationson Sipadan(see,the Indonesian noteof protest dated 2 April 1993,which "notes
with grave concern the continued unilateral acts and activities of Malaysia, such as the
occupation,the promotionoftourism inPulau Sipadan"andthe recognitionof these activities
by Malaysia'snote of 12May 1993) 56.
8.74 These unilateral actions carried out since the end of the 1980s clearly had as their
object that of presenting the Indonesian authorities with a fait accompli which is totally
incompatible withthe spirit of the 1969 statusquo agreement. And, indeed,the occupationof
Sipadanand the constructionof tourist installations,denouncedby Indonesia, haveled to the
creation of a centre for deep sea diving whichis farnous worldwide and which is being
intensivelyexploited by Malaysian tour operators. Proof of this can be seen by the official
Malaysian publication, at the end of 1993, of a brochure entitled, Malaysia: Fascinating
Adventures and a booklet entitled, Visit Malaysia Year '94 - The Traveller's Guideto
Malaysia's FascinatingTreasures,with an introductorystatementby the Malaysian Minister
of Culture, Arts and Tourism, widely and officially distributed by the Government of
Malaysia, in which Sipadan is described as one of the scuba diving resorts in ~ala~sia~~.
54 Annex 147,Vol.4.
55 Note Verbaleof19 May 1992,Annex 149,Vol.4.
56 Annexes 158and 161,Vol. 4.
57 Annexes 152and 178,Vol. 4.Indonesia has actively protested against thisfait accompli (and these publications), namely
through a diplomaticnote on 23 November 1993 inwhich Indonesia contested theunilateral
actions taken by Malaysia, statingthat they were contraryto the 1969status quo agreements8.
In 1997,Malaysiapublishedpublicityspots for the islands on the internets9. Most notably, it
is stated that "theisland is in the care of Wildlife Departmentunder the Ministry of Tourism
and EnvironmentalDevelopment" .
8.75 By a note of 6 September 1994, Indonesia's Ministry for ForeignAffairs drew the
attention of the Malaysian Embassy inJakarta to "Malaysia'sescalation of illegal activitiesin
Pulau Sipadan and Ligitan as well as in the surrounding sea in the form of deployment of
armed forces on Pulau Sipadan,the continuationof tourist promotions on Pulau Sipadan as
well as the series of intrusions by Malaysian Govemrnent vessels and aircrafts in the
1160
Indonesian territory Southof the parallel 4'10' North latitude.. . . Similar illegal activities
took placeat Ligitan where Malaysia encouraged Malaysian fisherrnento build smallhuts on
the islandatthe beginning of1995or, in anyevent,let themdo so unimpeded6'.
8.76 This recent occupationof Sipadanand Ligitanislands is not the only manifestationof
Malaysia's policyto present Indonesiawith afait accompli. At the same time as Malaysia
tried - successfully, in view of the responsible policy of restraint and moderation that
Indonesiahad kept to in accordancewith the 1969status quo agreement,later reconfirmedat
the highest levelbythe respectiveHeadsof Stateof each Party(see, SectionC, below) - to get
a foothold on the two islands,Malaysia hascarriedout an active policy, arguablyan "activist"
policy ofestablishinga militarypresence, bothbymaritimeand aerialmeans, in the vicinityof
the Indonesianislandsof Ligitan andSipadan.
58 Annex170,Vol. 4.
59 Bomeo Divers'Website,Annex 183,Vol. 4.
60 Annex176,Vol. 4.
61 See, Indonesianote verbale,236/PO/IV/95/29,dated17 April1995, Annex180,Vol. 4.8.77 This activism is attested to by Indonesia's nurnerous notes verbales concerning
incidents which have occurred in theadjacent watersof the two islands regardingillegal
Malaysianpatrolsinthesewatersor illegalflightsoverthe islands. Bywayof examples:
- a confidential report from the Directorate ofSecurity of the IndonesianNavy
Headquartersenumeratesthe incidentsduringthe year 1991 62;
- the noteverbaleof 19December 1992lists the main incidentsthat occurredbetween
20November 1992and 11March 199263;
- the note of 5 May 1993concernsthe intrusions of Malaysian vessels intoIndonesian
waters duringthe first fewmonthsof 1993~~;
- the note of 17June 1993bringsto the attentionof the MalaysianEmbassyin Jakarta
the naval and aerial incidentswhich haveoccuned in March and April of the sarne
- the noteof 25 January 1994listsMalaysianintrusionsat the endof 199366;
- another long list,nurnberingat least 61 incidents, of Malaysiannaval intrusionsinto
Indonesian tenitory between January andJune 1994 isannexedto anotherIndonesian
noteverbaleof 6 September 199467.
62 Note R/49/LWII/l992/DITPAM, Annex 182, Vol. 4. See, also, Report by Chief of Staff of Navy
Forces conceming Developmentof the border matters ofthe Sipadan and Ligitan Islands and Navy
ships namedKALMahakam,No. R/745B(I/1990 of 19 November 1990 conceming an incident which
occurred on 21Juiy 1990,Annex 143,Vol. 4.
63 Annex 155,Vol. 4.
64 Annex 160,Vol.4.
65 Annex 164,Vol.4.
66 Annex 173,Vol.4.
67
Annex 176,Vol. 4.8.78 It would be understandable, if Malaysia'sclaim had been made in good faith, that
Malaysiadid not want to remain entirely absent fromthe claimed area. However,this military
presence, both navaland aerial,is very much in excess of what would be reasonable to use in
a syrnboliccapacity and contrasts markedlywith the lack of any Malaysian military presence,
be it naval or aerial,in the regionbeforethe criticaldate. These actions can only be explained
by Malaysia's recent decision to justifi a posteriori the territorial claims which it had
expressed for the first time in 1969. These actions therefore both run counter to the "non-
improvement of legal position principle"68and, quite simply, to the critical date principle
itself, whichexcludesthe taking into considerationof al1actions occurringafter the date when
the dispute ~rystallised~~.
8.79 Indonesia has commented on thisfait accomplipolicy, used by Malaysia on the two
disputed islands, for two reasons. In the first place, it is clear evidence of Malaysia's
deliberate policy to occupy Ligitan and Sipadan and, at the same time, it shows a contrario
that this policy was not in place before the end ofthe 1980s. Second,the Malaysian strategy
has put Indonesiaon the defensivein the sensethat, apart fiom reacting with force and thereby
creating serious tensions in the region, Indonesia could only protest verbally against the
violations of the status quoagreement,without having themeansto re-establishit.
(iii) Indonesia'sProtests and Their Legal Significance
8.80 Even though theactionsof Malaysiaon the two islandsand in the adjacent watersor in
the air space above the islands post-1969 could not modifi the situation to the advantage of
Malaysia, Indonesia'sprotests are not without legal effect. Theyconfirrn the consistency of
the Indonesian position and preclude Malaysia from seeking to establish title by acquisitive
prescriptionat some future date.
68 See, paras8.65-8.67 ,bove.
69 See, paras8.21-8.22,above.8.81 In the Fisheries case, the Court consideredthat the straight base-lines system upheld
byNonvay, couldbe enforcedagainstthe UnitedKingdomsincethe latterhad "refiainedfrom
fomulating reservati~ns"~~.Inthe sarnecase,Judge Read notedthat there existed:
"...cases where coastal States have made extensive claims, but have
not maintainedtheir claimsby the actual assertion of sovereigntyover
trespassing foreign ships. Such claims may be important as starting
points, which, if not challenged, may ripen into historic title in the
courseof time.
"The only convincing evidence of State practice is to be found in
seizures,wherethe coastal Stateasserts its sovereigntyover the waters
in questionby arrestinga foreign ship and by maintaining its position
in the courseof diplomaticnegotiationand internationalarbitration.
"Here,it is necessaryto mle out seizuresmade in Nonvay at and since
the commencementof the dispute. They met with immediate protest
bythe UnitedKingdom,andmust, therefore,be disregardedH71.
8.82 Mutatis mutandis,the factsof the present case are comparablewith the reservation that
the seizure of Malaysianvessels in the watersadjacent to Ligitanand Sipadan islands would
have increased excessively the tensionin the area and would not have been in keeping with
the spirit of the1969status quo agreementand the undertakingby the two Parties to resolve
their differences peacefully. On the other hand, it was normal, and legally necessary,for
Indonesiato:
(i) protest againstMalaysia'sincursionsintothese waters; and
maintain a presence at an equivalent degree to that in existence before
(ii)
Malaysia'sclaims surfaced,evento reinforceits political responseto Malaysia's
fait accomplipolicy. This is whatIndonesiahasdone.
70 Fisheries, Judgment,I.C.J. Reports 1951, p. 116,atp. 139;see, also,Temple of Preah V, erits,
Judgment,I.C.J.Reports 1962, p. 6, atpp.30-31 and32-33 and,a contrario, P.C.I.J.,Legal Status of
EasternGreenland,SeriesA/B,No. 53,p.22,atpp.62-63.
71 DissentingOpinionof JudgeRead,Fisheriescase,Judgment,I.C.J. Reports 1951p.116,atp. 191.8.83 As soonas the Indonesian authoritieslearnedaboutthe publication of the 1979map by
the Directorate of National Mapping of Malaysia, Indonesia'sMinistry for Foreign Affairs
addressed a note verbale on 8 February 1980to the Malaysian Embassy in Jakarta, in protest
againstthis unilateral action, statingthat it was:
"...clearly contrary to the understanding reached during the
negotiations between Indonesia and Malaysia on the delimitation of
the continental shelf boundaries between the two countries, held at
Kuala Lumpur in 1969. It was then clearly understood by the
Malaysian Delegation and the Indonesian Delegation that, since no
agreement could yet be reached on the question of ownership or title
of the islands of Sipadan and Ligitan, the two delegations agreed to
temporarily set aside the problem of delimitation in the area. This
implied that it was expected that no continental shelf boundary in the
area would be drawn before an acceptable solution on the legal status
of the two islands could be reached by the two countries";
Emphasisingthat Malaysia'sposition was contraryto the principles of the new law of the sea,
the note concludedas follows:
"The Indonesian Govemment therefore rejects the legality of
Malaysia'sclaim of sovereigntyandjurisdiction as shown on the maps
referred to above, including the claim of sovereignty over the
Indonesian islands of Sipadan and Ligitan. Such claim, as far as
Indonesia is concerned, has no legal effect whatsoever. The
Indonesian Government, therefore, does not accept the maritime
boundary lines as claimed by Malaysia as the basis for future
negotiationsbetween Indonesia and ~ala~sia"'~.
8.84 Malaysia rejected "theclaim of the Indonesian Governmentthat the islands of Sipadan
and Ligitan belong to Indonesia" in its note verbale of 27 March 1980'~. The result was in
effecta kind of "returnto the legalstatus quo" as it was in 1969:the two States taking note of
their disagreement once again, while thefait accomplipolicy that Malaysia wished to set up
had not produced any legal effect whatsoever.
72 Annex 140,Vol.4.
73 Annex 141,Vol.4.8.85 Subsequently, on nurnerous occasions, Indonesiahad to protest against Malaysian
activitiesin the area, activitiesthat wereurreptitiousat first, then increasinglyopen. First,
Indonesia protestedagainstMalaysia's illegal occupation of the two islandsand the intensive
tourismexploitationof ~i~adan~~.
8.86 Malaysia, probably anxious to create evidence to support its claims, rejected
Indonesia'sprotests by means of various notes verbales, on the following dates: 19 May
199275,11 August 199276,4 December 1992 (No. AT 176192)", 7 January 199378,12 May
1993(No.AT 31193)~~ 2,3 June 1993 (No.AT 40193)'O,28 July 1993", 3 January 1994(No.
AT 2/94)82,22February1994g3.
8.87 At the sarne time, Malaysia began to denounce,by means of notes verbales, what it
considered to be Indonesian intrusions into the maritime zonearound Ligitan and Sipadan
claimedby ~ala~sia~~.
8.88 These notes verbales, which arenot worth analysingin any detail here, demonstratea
nurnberof points.
8.89 First, Malaysia,fterhaving recognised thelack offoundationof its claimsin the years
following the critical dateg5,sought to undo this recognition and to preserve its alleged
"rights" by protesting against Indonesia's presencein the disputed area. These belated
manifestations lackal1legal significance:
See, paras. 8.70-8.78,above.
Annex 149,Vol. 4.
Annex 150,Vol.4.
Annex 154,Vol.4.
Annex 156, Vol.4.
Annex 161,Vol.4.
Annex 165, Vol.4.
Annex 167,Vol.4.
Annex 172,Vol.4.
Annex 174,Vol.4.
See, namely, Malaysiannotesverbales:AT29/92 dated24 March 1992;AT 42/92 dated 21April 1992;
139192dated 21 September 1992;AT175192dated 4 December 1992; AT20193dated 12March 1993;
AT 23/93 dated 8 April 1993; AT 32/93 dated 12 May 1993 (erroneouslyd2 March 1993); AT
41/93 dated23 June 1993; A81/93 dated23 August 1993; AT 1/94dated 3 January 1994, Annexes
146,148, 151, 153,157, 159, 162, 166,168ad171,Vol.4.
See, paras. 8.33-8.39,above. -
they run counter to the veryprinciple ofthe critical date;
- having occurred many years after thisdate, they lackthe probative value
of actions undertaken immediately after the dispute has crystallised,
which shed light on the true intentions of the Parties at the time of the
critical dateg6;and
-
unlike the actions analysed above, they were custom-made for the
situation and therefore fa11fou1 of the principle according to which
actions aimed at improvingthe position of the party from which such
actions originate, arenul1and voidg7.
8.90 Second, Malaysia's notes verbales are evidence of the constant and continuing
presence of Indonesia's navy and airforce in the region. Indonesia does not by this seek to
gain any real advantage, given that Indonesia is aware that these numerous and constant
actions also occurred after the 1969 critical date when Malaysia'sclaims first surfaced. This
presence does however show that Indonesia, which had consistently protested against
Malaysia's illegal occupation ofSipadan and, to a lesser extent, Ligitan, never acquiesced,
even implicitly,to Malaysia's activism.
8.91 At most, Indonesia's actionsconfirm the earlier situation: unlike Malaysia's activities,
Indonesia's activitiesdo not contradictthe previously established title, they support it. Thisis
so for the routine patrols conducted aroundthe islands waters by the Indonesian East Naval
fleets and Naval aircrafts and for the visits paid from time to time by Indonesian civil or
military authorities as has been the casein:
- 1970 - visit to Sipadan by Major (Navy)Basuki from the Headquarters
of the Indonesian Navy, escorted by Sailor 1" Class Ilyas; on this
86 See, paras. 8.47-1,above.
87 See,paras. 8.54-8.and 8.65-8.a 6b8ve. occasion, they met two peoplecoming from the Bugis tribe and the
Timor Flores,whowerethere just intransitss;
- 1987and 1988 - patrolsconductedto Sipadanand Ligitan islandsby lSt
SergeantMd1HarlinHarahap(retiredlS9;
- 1989 - air patrol using a Nomad Aircraft with the destination of
SipadanandLigitanislands,conductedby the OperationalCommandant
of TarakanNaval Base, LieutenantColonel(Navy)Alyas~uhammad~';
-
December 1990 - increasein patrol activities and of peacefulpresence
of Indonesian naval vessels in Sipadan waters decided by the
Commander of Military AreaVI~'.
-
1992 - visit of a groupof approximately 120people tosipadang2;
- June 1992 - air patrol conductedby the Operational Commandantof
Tarakan,Lieutenant (Navy) M. ~oe~iarto~~;
-
1995 - survey conducted inSipadanby the Observation MarinePost of
the Pancang River, with Sergeant-Major (Marines) Gito (retired) in
charge94;
- November 1995 - the Secretary-General ofthe National Board of
Defenceand Security visitedthe borderaround Sipadanand Ligitanin a
helicopterbelongingto pertarninag5e;tc.
8.92 Similarly, Indonesian fishermenhave continuedtheir fishing activitiesmainly around
Ligitan where they usedto staytemporarily fromtime totime96.
8.93 Contraryto Malaysia, Indonesiahasalways beencarefùlto preserve the statusquo as
witnessed,e.g.,by an officialnote dated17January 1992from the Assistant for Operation to
See, the Military Survey Report prepared by the Indonesian Navy regarding visitsin 1970 to Sipadan
and Ligitan, dated29 July 1970, Annex 138, Vol. 4 and Affidavit of Sailor 1" Class Ilyas, AnnexD,
Vol. 5.
Affidavitof Sgt.-MajorWeku, AnnexH,Vol. 5.
Ibid.
Telegraphic Message from Chief ofArmed Forces to Commander of East Fleet, dated3 December
1990,Annex 144,Vol.4.
Affidavitof Marine Chief Corporal Sabichoen,Annex E, Vol.
Affidavitof Sgt.-MajorWeku, AnnexH, Vol. 5.
Affidavitof Sgt.-MajorGito, AnnexC, Vol. 5.
Ibid.
See, the affidavitsof Haji Junuddin and IdrisSaid,AnnexesK andM, Vol. 5.the General Chief of Staff regarding contact betweenthe Indonesian andthe Malaysiannavies
in the vicinity ofSipadanand Ligitanislands. It states:
"3. The Indonesian Naval Fleet, in conducting patrol in the waters
surrounding Sipadan and Ligitan Islands, is to be guided by the
followings:
"a. To hold the Chief of Staff of the Arrned Force's telegram No
TW107611990dated 3 December 1990regarding the need tointensi*
patrol activities withinSebatikwaters and to keep avoidingany action
which canbe consideredhostileor whichcan worsen the situation.
"b. While the issueon the title of sovereigntyoverSipadanand Ligitan
Islands is being handled by the Department of Foreign Affairs,
territorial claim of Indonesiaremains at'10'North Latitude.
"c. The limit for Patrol activitiesis 4O10'North Latitude,taking into
account the content ofChiefof Staff of theArmedForces' telegramNo
TW107611990.
"4. To avoidanypossible conflictduringpatrols conductedby the two
sides, this matter will be taken up in the agenda of General Border
Cornmittee fornecessaryarrangementssuch as possible establishment
of ajoint or coordinatedpatrol"97.
8.94 Finally, the dates of Indonesia's protests and Malaysia's counter-protests are not
without relevance. For themost part, they date from 1992 to 1994 -Le., the period during
which Malaysia built a scuba-diving centreon Sipadanand substantially modified the natural
environment of the island. Indonesia's firm protests exclude the possibility that the illegal
occupationof the island couldbe opposableto Indonesia.
8.95 In Indonesia'sview, itis importantto place in context the legal scope of thearof the
diplomatic notes" that both Statesengaged in. As the Department of Foreign Affairs of the
Republic of Indonesia cornrnentedin its note verbale of 24 August 1993 addressed to the
MalaysianEmbassyin Jakarta:
"What the Government of Indonesia wishes to hear atthis stage is an
official, legallyustified observation or remarks from the Malaysian
Government side to the Indonesian Government's Replyand not
97
Annex145,Vol.4. merely repetitions of statementsof sovereignty claims or statement of
political readiness to negotiate through a series of diplomatic notes
without, however, exercising self-restraint or maintaining the status
quo with regards to the two islands but instead continuing unilateral
actions and occupation of these i~lands"~~.
8.96 These cornrnents are just as relevant today: unlike Malaysia, which occupied the two
disputed islands in breach of the status quo agreement, Indonesia has consistently sought to
act with the greatest restraint inorder to avoid poisoning the dispute further and aggravating
the tension.
8.97 In conclusion, it is clearthat:
(i) Malaysia'sactivism which began with the publication of the 1979 map, followed by
the occupation of Pulau Sipadan, could not modi@the legal situation at the critical date when
the dispute submitted to the Court arose - i.e., 1969 - when Malaysia, for the first time,
advanced its territorial claims concerning the two islands;
the legal situation is based on the conventional title represented by the Anglo-Dutch
(ii)
Convention of 1891, which established a boundary line between the respective territorial
possessions of The Netherlands and Great Britain, extending along the 4'10'N parallel out to
sea;
(iii) this legal situation was recognised by Malaysia itself during the period which
immediatelyfollowedthe statement of its claims in 1969;
the legal situation has not been altered by the occupation of the two islands from the
(iv)
end of the 1980s;and
(v) whilst respecting its undertaking to abide by the status quo agreement and resolve the
dispute peacefully, Indonesia has consistently maintained its territorial title and has never
acquiesced in Malaysia'sillegalactivitiesin the disputed area. CHAPTERIX
SUMMARYOFINDONESIA'S CASE ANDCONCLUSIONS
9.1 In conformity with the directives given by the court', the Republic of Indonesia
presentsinthis chapter asummaryof itsreasoninginthepresentcase.
9.2 In Indonesia's opinion, eachof the two disputedislands belong to it by virtue of the
territorialtitle inheritedfrom The Netherlands,its colonial predecessor. This title is based on
the Anglo-DutchConventionof 20June 1891.
9.3 This instrumentrepresented a compromiseand eliminated al1existing doubts as to the
precise extent of the respectiveterritoriesof the Sultan of Boeloengan (to whose rights The
Netherlands,then Indonesia,have succeeded),on the one hand, and those of the Sultans of
Brunei andSulu(thepredecessorsof Great Britain and Malaysia),onthe otherhand.
9.4 Accordingto Articles 1andIVofthe 1891Convention, duly ratifiedbyboth States:
"The boundarybetween the Netherlands possessionsin Borneo and
those of theBritish-protectedStatesin the sarneisland shall start from
4" 10'north latitudeonthe east coastofBomeo"
and
"From 4'10'north latitudeon the east coastthe boundary-lineshallbe
continued eastward dong that parallel, across the Island of Sebittik:
that portion of the island situatedto the north of that parallel shall
belong unreservedlyto the British North Borneo Company,and the
portionsouthofthat parallel totheNetherlands".
1 Para.3(B) oftheAnnexto PrCommunique9!8/14.9.5 This last provision clearlyestablishesthat the parties intendedto delimit completely
and definitivelytheir respective possessions including those lying to the east of Sebatik on
either side of the 4" 10'N parallel. In conformity with the text of the Convention, this
interpretationis confirmed fùrtherby the practice of the parties at the time of its conclusion
and inthe period imrnediatelyfollowingit.
9.6 Threefactsare particularly importantinthisrespect:
- First, during the month of June 1891, two Britishvessels (HMS Egeria and HMS
Rattler)and a Dutchvesse1(the HNLMSBanda)undertookjointly the naval survey
of the region and reconnoitredal1the neighbouringislands, including Sipadan and
Ligitan;
- Second, the Bill submitted to the States-Generalby the Dutch Government with a
view to securing the ratification of the Convention was accompaniedby an
"Explanatory Memorandum", which contained a map that showed the line of the
parallel 4" 10'N extending seaward,beyond sebatik2; this map did not raise any
protestfromthe Britishauthorities to whichit hadbeentransmitted;
-Finally, the Contract of 1878, as arnendedin order to speciQ the extent of Dutch
possessionsin Bomeoin accordancewiththe Convention,indicates:
"...the Islands of Tarakan and Nanoekan, and that portion of the
Island of Sebitik, situated to the south of the above boundary-line,
described in the Indisch Staatsblad of 1892, No. 114, belong to
Boeloengan, as well as the small islands belonging to the above
islands, so far as they are situated to the south of the boundary-
line...";
2
MapNo. 5 intheMap Atlas.It is clear fiom the abovethat the purpose of the line defined by the 1891Conventionwas not
only that of delimiting the mainland territory belonging to each party, but also that of
allocatingthe islands on either side of this line. Moreover,the British Governrnent,to which
the text of this amendmenthad been cornrnunicated in1895,did not raise the least objection
regardingthis interpretation.
9.7 The 4" 10' N parallel has always beento the south of claims made by Spain. The
United States showed, in the period following its succession to Spain, a rather indecisive
attitude,one notable example of which was theexpeditionof the U.S.S. Quirois n 1903which
extended its reconnoitringexercise as far asSipadan. However, inthis same year, the United
States showed great caution regarding the extent of its possessions in the region and, from
1904,renounced al1claims as extreme as the example mentioned above. Moreover, in 1930
the United Statesentered into a Conventionwhich limitedtheir possessionsto areas lying well
to the north ofthetwo islands.
9.8 The two islands of Ligitan and Sipadan were uninhabited and presented limited
economic interest. However, The Netherlands and GreatBritain did, occasionally, show some
interest in Sipadanand Ligitan. Notably,a verymeaningfulepisode concerning sovereigntyin
the area dates from 1921, namely the HNMLS Lynx expedition. This Dutch vesse1 was
engaged in the pursuit of pirates. It visited Sipadan but did not enter areas under British
jurisdiction lyingnorth of the4"10'latitude.
9.9 In more generalterms, in practice,the two successorStatesto the parties which signed
the 1891 Convention have respected the areas which they have respectively recognised as
appertainingto each other with regard to both maritime patrolling activities in the region and
the oil concessions which they have granted. Similarly,the maps issued by the parties or by
third States are clear confirmatoryevidence that the line resulting fiom the 1891 Convention
dividedthe parties'respectivepossessionsboth onthe mainland and at sea.9.10 In any event, in conformity witha well establishedprinciple of internationallaw, the
territorial encroachrnents whichboth sides may have effected cannot put in question a valid
and clear territorial title. The same reasoning applies to the map evidence, which can only
confirmsucha title.
9.11 This reasoningappliesequally, afortiori,to the cartographicactivitiesor the activities
on the ground followingthe critical date constitutedby the emergenceof the dispute during
the 1969 negotiations concerningthe delimitationof the respective continental shelvesand
which culminatedin an agreement settlingthis problem in part. However, on this occasion,
the Partiesnoted their differenceof views as to the appurtenanceof the disputed islands and
decided to leave the question pending but to abstain from undermining the status quo
situation Malaysia did not respect the agreementon this point and this led to systematic
protestsfiom Indonesia.
9.12 It is al1the more significantthat, even afier this date, Malaysi-and, more precisely,
the samecartographicauthoritiesthat had instigatedthis country'sclaims in1969 - published
in 1972an officia1map reproducingthe 4'10'N parallel line andextending it seawardswell
beyond the island of Sebatik. It is also particularly revealingthat, during the 1990s, both
Statesestablishedand maintainedbuoysto assistnavigationin the region - buoyswhich were
situated preciselyon eithersideofthe line. Similarly,the two Partieshave notput in question
the existingoil concessions,which respectthe 1891line.
9.13 Theseelementstaken as a whole, together withal1the factswhich havebeendescribed
in a more detailed fashionin the preceding chapters ofthisMemorial,clearly establishthat al1
the islandssituatedto thesouthofthe parallel4' 10'N belongto Indonesia. Pulau Ligitanand
Pulau Sipadanlie to the southof that paralleland sovereignty overeach of them thus belongs
to Indonesia. -187 -
SUBMISSIONS
1. On the basis ofthe considerationsset out in this Memorial,the Republicof Indonesia
requeststhe Court to adjudge and declarethat:
(a) sovereignty over Pulau Ligitanbelongsto the Republicof Indonesia; and
(b) sovereignty over PulauSipadanbelongs tothe Republicof Indonesia.
..............................
NugrohoWisnurnurti
Agent of the Republic of Indonesia CERTIFICATION
1 have the honour to certifj the accuracy of the translations into English made by
Indonesia which appear in the Memorialand its Annexes. 1also certifi that the documents
annexed aretme copies and conformto the original documents.
Mr.Nugroho Wisnumurti
Agent ofthe Republic of Indonesia LIST OFANNEXES
(Volume2)
Special Agreement for Submissionto the International Court of Justice of the Dispute
between Indonesia and Malaysia concerning sovereigntyover Pulau Ligitan and Pulau
Sipadan,betweenthe Governmentofthe Republic of Indonesia and the Government of
Malaysia,dated 3 1May 1997
Treaties betweenthe EastIndia Companyand the Sultanof Sulu in 1761-1769
Contract between the Sultan of Banjermasin and the Government of the Netherlands
East Indies dated 3 January 1817(extractfrom Dutch version and English translation)
Contract between the the Sultan of Banjermasin and the Government of the
Netherlands East Indies dated 13 September 1823 (extract from Dutch version and
English translation)
Treaty between Great Britain and TheNetherlands signed at London, 17March 1824
Treaty between the English East India Companyand the Sultan and the Turnungongof
Johore dated 2 August 1824
Contract between the Sultan of Banjerrnasin and the Government of the Netherlands
East Indies dated 4 May 1826(extract from Dutch version and English translation)
Contract between the Sultan of Boeloengan and the Government of the Netherlands
East Indies dated 27 September 1834(Dutchversion and English translation)
Capitulations of peace, protection and commerce between the Government of Her
Catholic Majesty and the Sultanand Dattos of Sulu dated 23 September 1836(Spanish
version and Englishtranslation)
Resolution of the Governor-General of Netherlands India regarding the Dutch
Possessions in Borneo dated 28 February 1846(Dutchversion and English translation)
Treaty of Friendship and Commerce between Her Majesty and the Sultan of Borneo
dated 27 May 1847
Decree by the Minister of State, Governor-General of the Netherlands Indies, of
27 August 1849,No. 8 (Dutchversion and Englishtranslation)
Contract between the Sultan of Boeloengan and the Governrnent of Netherlands East
Indies dated 12November 1850(extractof Dutchversion and English translation)Decree of the Governor-General of theNetherlands Indies amending the Territorial
Subdivision of the Residency Southern and Eastern Division of Borneo, dated
2 February 1877(Dutchversionand Englishtranslation)
Protocol between Spain, Gerrnanyand Great Britain dated 11 March 1877 (Spanish
version and Englishtranslation)
Despatch fi-omActing Consul-General Treacherto the Earl of Derby, with inclosure,
dated 2 January 1878
Despatch from Acting Consul-General Treacherto the Earl of Derby, with inclosure,
dated 22January 1878
Memorandumby Sir J. Pauncefotedated7 May 1878
Ratification of Contractof Vassalage betweenthe NetherlandsIndies Governmentand
the Sultan of Boeloengan, 2 June 1878,published in Printed Records of the Second
Charnber 1879-1880, No. 86. Overeenkomsten met inlandsche vorstenin den Oost-
Indischen Archipel.Boeloengan. Acten vanverband en van bevestiging en contract.
No. 21,and ExplanatoryMemorandum (Dutchversion and English translation)
Memorandum Respecting Cessions toMessrs. Dent and OverbeckbySultansof Brunei
and Sulu of Territories on the North-East Coast of Borneo, and positionof Her
Majesty's Governmentinregardto such Cessions,dated 6 October 1879
Memorandum on the Political, Strategical, and Commercial Advantages to Great
Britain of the Northern Partof Borneo;as well as on the Right of Holland,nderthe
Treaty of 1824, to oppose the Occupationof anyportion of that Territory by Great
Britain,by SirE. Hertslet,dated4 November 1879
Extract fi-omthe Answer ofthe ColonialMinisterto Inquiries madeby the Cornmittee
of the Second Charnber in theirPreliminaryReport on the Netherlands Indian Budget
for 1880(Englishtranslation)
Extract from The LondonGazette,8November 1881,containingthe text ofthe BNBC
Royal Charter
Notes ontheNorthBorneo Charterby SirJ. Pauncefotedated January 1882
Despatch from His Majesty'sPlenipotentiary Minister in Londonto the Minister of
State dated22 March 1882(Spanishversionand Englishtranslation)
Despatch from the Minister of State to His Majesty'sPlenipotentiary Minister in
London dated 31March 1882(Spanish version andEnglish translation)
Despatchfi-omCountde Bylandtto Earl Granvilledated31May 1882
Memorandum on the Dutch Frontier on the North-east Coast of Borneo by Sir
E.Hertslet dated 20 June 1882Despatchfiom Countde Bylandt to Earl Granvilledated12August 1882
Despatchfrom EarlGranvilleto CountdeBylandt dated31August 1882
Despatch from Countde Bylandtto Earl Granvilledated 1December 1882
Despatch fromCountde Bylandt toForeign Office dated25 March 1883
Protocol recognizing the sovereigntyof Spain in the Archipelago ofJolo (Sulu), dated
7March 1885(Frenchversion with F.O. Englishtranslation)
Agreement between Her Majesty's Governrnent and the British North Bomeo
Companydated 12May 1888
Despatch from SirH. Rumbold toLordSalisburydated19November 1888
Draft Memorandum on the Disputed Boundary between the British North Borneo
Company and the Dutch Possessions on the North-EastCoast of that Island, by Sir
E. Hertslet, dated20 December 1888
Despatch from Mr. HartsentoCountBylandtdated 22 December 1888
Further Memorandum on the Disputed Boundary between the North BorneC oompany
and the Dutch Possessions onthe North-East Coast of thatIsland,by SirE. Hertslet,
dated 9 January 1889 .
Memorandum from SirE. Hertsletto SirJ. Pauncefote dated 25 January 1889
Despatch fromLord SalisburytoSirH.Rumbold dated 5 February 1889
Despatch from SirH. Rumbold to Lord Salisbury dated 11 February 1889 enclosing
MemorandumbyBritish Legation,TheHague,dated 10February1889
Despatch from Sir H. Rumbold toLord Salisburydated 18February 1889
Memorandumby SirJ. Pauncefotedated23February 1889
Parliamentary Debates (Commons) 1889 :Question askedin the House of Commons,
25February 1889
Letter fiom Sir J. Pauncefote to British North Bomeo Company dated 28February
1889
Letterfiom British North Bomeo Companyto Foreign Office, dated 8 March 1889
Despatch from Mr. Hartsento Countde Bylandtdated 19March 1889
Despatch fromLord Salisburyto Sir H. Rumbold dated 23 March 1889DraftdespatchfromLord Salisburyto SirH.Rumbold dated27 March 1889
DespatchfromLord Salisburyto SirH. Rumbolddated3 [8?]April 1889
DespatchfromCountdeBylandtto Lord Salisburydated6 April 1889
Despatchfrom LordSalisburytoCountde Bylandtdated20 May 1889
DespatchfromCountde Bylandtto LordSalisburydated 3 June 1889
Memorandum respectingproposed Basfeo sr a JointCommissionon the North Borneo
Boundary by SirE.Hertsletdated 19June 1889
Despatch fromLord Salisburyto Countde Bylandtdated28 June 1889
Foreign Office manuscript notes made in preparation for Anglo-Dutch Joint
Commissionto resolvetheboundaryquestion,undated LISTOF ANNEXES
(Volume3)
Proceedings of the Joint Commission appointedby the British and Netherlands
Governments for considering the Question of the Boundary between the Netherland
IndianPossessions on theIsland of Borneo and the Tenitory belongingto the British
North Borneo Company,First Meeting,16July 1889
Proceedings of the Joint Commission appointedby the British and Netherlands
Governments for considering the Question of the Boundary between the Netherland
IndianPossessionson the Islandof Borneo andthe Territory belongingto the British
North Borneo Company, SecondMeeting, 19July, 1889
Proceedings of the Joint Commission appointedby the British and Netherlands
Governments for considering the Questionof the Boundary between the Netherland
IndianPossessions on the Island of Borneoand the Territory belongingto the British
North Borneo Company,Third Meeting, 27 July 1889
Memorandum from CountBylandtto LordSalisburydated 2 April 1890
Memorandumon the Southern Boundary ofthe Territoryof the British North Borneo
Company, enclosing map, by B. Kindersley, Secretary of the British North Borneo
Company, dated 22July 1890
Despatch fromLordSalisburyto CountdeBylandtdated 13August 1890
Despatchfiom LordSalisburyto Sir H.Rurnbolddated 29 December 1890
Despatch from Mr. GreenetoLordSalisburydated4 January 1891
Despatch from Mr. Hartsento Mr. Greenedated20 January 1891
Despatch from SirP.Currieto the Admiraltydated28 January 1891
Despatch from CountBylandtto LordSalisburydated 2 February 1891
Despatchfiom LordSalisburytoCountBylandtdated 11February 1891
Despatch from E. MacGregor, Admiralty, to the Foreign Office dated20 February
1891
Despatchfiom LordSalisburyto Sir G.Bonhamdated 25 February 1891
Despatch fiom E. MacGregor, Admiralty, to the Foreign Office dated25 February
1891Despatch fiom Sir G. Bonham to Lord Salisbury dated 27 February 1891, enclosing
letterfiom Sir G. Bonham to Mr. M. Hartsen dated 27 February 1891
Despatch from SirH. Rumboldto Lord Salisbury dated 8 April 1891, enclosingletter
from Mr. M. Hartsento SirH.Rumbold dated 7 April 1891
Despatchfiom SirP. Currie,Foreign Office,to Admiralty dated10April 1891
Despatch fromLordSalisburytoSirC. Smith dated 17April 1891
Despatch fromE. MacGregor,Admiralty,to the Foreign Office dated15April 1891
Despatchfiom Lord Salisburyto SirH.Rumbold dated 17April 1891
Despatchfiom Lord Salisburyto SirC. Smith dated 18April 1891
Letter from B. Kindersley, Secretary, British North Bomeo Company, to theForeign
Office dated21February 1891
Despatch fromCountBylandtto Lord Salisburydated 2May 1891
Despatch fromLord Salisburyto CountBylandtdated 25May 1891
Despatchfiom Countde BylandttoLord Salisburydated 9 June 1891
Despatch fromLordSalisburyto Countde Bylandtdated 12June 1891
Convention between Great Britain and The Netherlands defining Boundaries in
Bomeo dated20 June 1891
Observations on Spot near North Pointof East Nonokong Islandby Commander
A. Mostyn Field dated 1July 1891
ExplanatoryMemorandumontheRatiJicationof the ConventionconcludedinLondon
on 20June1891 betweenTheNetherlands andGreatBritain andIrelandto deJinethe
boundaries betweenthepossessionsoftheNetherlandsinthe islandofBorneo andthe
States in that island which areunderBritishprotection, date25 July 1891, Second
Charnberof the States GeneralOfficia1Records, 1890-1891 Session, No. 187 (English
translation)
Letterfrom E. MacGregor,Admiralty,to the Foreign Office dated24 September 1891,
enclosing letter fiom Lieutenant-Commander J Heugh to Vice-Admira1 Sir W.
Richards dated 23 June 1891and letter fiom Commander A. Mostyn Field to the
Admiraltydated30 June 1891
Despatch fromLord Salisburyto Sir H.Rumbold dated27 October 1891
Letter fiom Sir G. Bonham toLord Salisburydated4 December 1891,enclosingletter
fiom E. van Tienhoven to Sir H. Rumbold dated 1December 1891,translation ofetterfrom Vice-Admira1Roellto the Governor-Generalof Netherlands India dated 27 July
1891and Reportof Dutch Surveying-vesse1Banda of 30 Mayand 11July 1891
Despatch from SirH. Rumboldto Lord Salisburydated26 January 1892
Despatch from SirH.Rumboldto Lord Salisburydated 23 February 1892
Despatch from SirH.Rumbold toLord Salisburydated9 March 1892
Despatchfrom Sir H. Rumbold toLord Salisburydated 18March 1892,enclosingfull
translation of the debate that took place in the SecondChamber of the States General
on 8 March 1892 entitled Ratificatioof the Convention concluded in Londonon the
20th June 1891 between the Netherlands and Great Britain andIrelandfor Jixing the
boundaries between the Netherlands possessions in the Island of Borneo and the
States inthat Island whichareundertheprotection ofGreatBritain
Final Report of the Committee of Rapporteurs on the Bill to ratijj the Agreement
concluded between the Netherlands and Great Britain and Ireland to jx the
boundaries betweenthepossessions of the Netherlands on the islandof Borneo and
the States on that island which are under British protection, adopted on 31 March
1892(English translation)
Proceedingsof 15th meeting of the FirstChamber of the States General, 1891-1892,
1April 1892(Englishtranslation)
Letter from Governor's Office British NorthBorneo Company, Sandakhan, to British
North Borneo Company,London,dated 26 April 1892
Dutch Decree of ratification of the Anglo-Dutch Conventioof 20 May 1892(English
translation)
SurveybyH.M.S.Egeria, TheBritishNorth BorneoHerald, 1November 1892
Notes madebythe Captainof theEgeria duringSurveyin 1892
Conventions between the Governrnent of the Netherlands East Indies and Native
Princes in the East Indian Archipelago comrnunicated by Baron van Goltstein 26
February 1895(English translation)
Letter from Cornrnissionerof Land British North Borneo Company, Sandakhan, to
BritishNorth Borneo Company,London,dated 8July 1898
Treaty of Peace betweenthe United StatesofArnericaandthe Kingdomof Spaindated
10December 1898
Treaty between the United Statesand Spain for the Cession to the United States ofany
and al1islands of the Philippine Archipelagolying outside of the lines described in
ArticleIIIof the Treaty ofPeaceof December10,1898 dated 7November 1900Letterfiom U.S. Acting Secretary ofWarto U.S. Secretaryof State dated15 October
1901
Letter from U.S. Secretary ofState to U.S. Secretaryof the Navy dated 21 October
1901
Log book of U.S.S.Quirosdated 27 November 1902 to 23 June 1903
Letterfiom the U.S.Secretaryof Stateto the Secretary oftheNavy,dated 3 April 1903
Agreement between the Sultanof Sulu and the British North Borneo Companydated
22 April 1903(Englishtranslation)
Correspondencefiom the CaptainofU.S.S.Quirosdated 19and24 June 1903
Logbook ofU.S.S. Quiros dated24 June 1903to 13January 1904
Letterfiom BritishNorth Borneo Companyto ForeignOffice dated 13July 1903
Cableto U.S.Naval Department dated1August 1903
Letterfrom U.S.Secretaryof StatetoActing Secretaryof Wardated23 October 1903
Reportby Commanderof the HydrographicSurveyingvesse1HNLMSMakasser dated
26 November 1903(Dutchversion andEnglishtranslation)
Letterfiom U.S. Secretary ofStateto Secretary of the Navydated 2 March1904
Letter from Secretary ofthe Navy to Commander-in-Chief,U.S. Asiatic Fleet,dated
11March 1904
Letter from Commander-in-Chief, U.S.Asiatic Fleet,to Secretaryof the Navy, dated
24 April1904
Foreign Office Memorandum, entitled The claim of the British North Borneo
Company to certain islandsIying off the coast of Borneo which were formally taken
possession of by theAmericanwarshipQuiros in1903,dated 10March 1905
Memorandumfrom BritishAmbassador,Washington,toU.S. Secretaryof State,dated
23June1906
Letterfrom theDirectorof Coast Surveysdated 13October 1906
Letter fiom U.S. Secretary of State to British Ambassador, Washingtondated
19December 1906
Letterfrom BritishAmbassadorto U.S.Secretary ofStatedated 3July 1907114. Letterfrom U.S. Secretaryof Stateto British Arnbassador dad0July 1907
115. CommunicationbytheNetherlands Chargé d'affairesated 19November 19 10
116. LetterfromtheAdmiralty toUnderSecretaryof State, Foreign Office,5March 19 14
117. Letter from the Secretary Generalof the Dutch Ministryof Foreign Affairsto Sir
A. Johnstone, Foreign Office, dat7April 1914
118. Agreement between the United Kingdom and The Netherlands relating to the
Boundary betweenthe State of North Bomeo and The Netherland Possessions in
Bomeosigned in London on 28 September 11 95 LIST OFANNEXES
(Volume 4)
Turtle PreservationOrdinance of1June 1917
Extract from a letter from the Comrnanding Officer ofHMS Lynx dated 4 January
1922(Dutchversionand Englishtranslation)
Foreign Office Memorandum entitled Administration by British North Borneo
Companyof certain UnitedStates islands dated23November 1922
Counter-Memorandum submittedby The Netherlands in the Island of Palmas case,
Permanent Court of Arbitration, 1926, Annex 1, "The Status of the East-India
CompanyConventionswith NativeStates"
ForeignOfficeMemorandumentitledBoundary between British North Borneo and the
Philippines,with map,dated July 1927
Enciclopedia UniversalIlustrada Espasa,Madrid, 1927,pp. 794-795 (Spanishversion
with Englishtranslation)
Convention between HisMajesty in respect of the United Kingdom and Her Majesty
the Queen of the Netherlandsrespecting theDelimitation of the Frontier between the
States in Borneounder British ProtectionandNetherlands territory in thatIsland dated
26 March 1928
Convention between the United States of Arnerica and Great Britain delimiting
boundary between the Philippine Archipelago and the State of North Borneo and
exchanges of notes regarding certain islands off theast of Borneo dated 2 January
1930, and attached ChartsNos. 4707 and 4720, published by the United States Coast
and Geodetic Survey,correctedtoJuly 24 1929,depicting the boundaryline agreed in
the Convention
Memorandum on HydrographicSurveyingActivities by the Royal Netherlands Navy
in the Netherlands Indies, dated 16 February 1948 (Dutch version and English
translation)
Act No. 4 concerning Indonesian waters of 18 February 1960, in the State Gazette
1960,No. 22 (Indonesianversion and Englishtranslation)
Production Sharing Contract between P.N. PertarnbanganMinjak Nasional and Japan
Petroleum Exploration Co.,Ltd.dated 6 October 1966
Ministry of Lands and Mines, Annual Report of the Geological Survey, Borneo
Region,Malaysia, 1967,p. 30Oil Prospecting Licence issuedby the Minister ofNatural Resources of the State of
Sabahto SabahTeisekiOilCompanySDN.BHD. dated 1July 1968
Report of the Delegationof the Republic of Indonesia to the Meeting Conceming
Delimitation of the Continental ShelfBoundary Between Indonesia and Malaysia,
Heldin KualaLumpurfrom 9 to22 September 1969(English translation)
Press Statementby the Indonesianand Malaysian Delegationsto the Talks on the
Delimitation of the Continental Shelves between Malaysia and the Republio cf
Indonesia, Kuala Lumpur,dated 22 September 1969
Letter fiom Prof. Mahyuddin bin Haji Mohd. Zain, Secretary, Ministry of Landa snd
Mines, Malaysia, to ProfessorDr. Mochtar Kusumaatmadja, Leader of the Indonesian
Delegation to the Malaysian/Indonesian Negotiation on the Continental Shelf
Boundaries, dated 22 September 1969
Letter fiom Professor Dr. Mochtar Kusurnaatmadja, Leaderof the Indonesian
Delegation to Prof. Mahyuddinbin Haji Mohd. Zain, J.S.M., Secretary,Ministry of
Lands and Mines, Malaysia,Kuala Lumpur,dated 22 September 1969
Agreement between the Governmentof the Republic of Indonesiaandthe Government
of Malaysia Relating to the Delimitationof the Continental Shelves between the Two
Countries, dated 27 October 1969, including map entitled "Continental Shelafnd
Territorial Sea Boundaries, Indonesia-Malaysia, oundaryReport 5-9(1)",in Chamey,
J.I., and Alexander, L.M.,International MaritimeBoundaries, Vol. 1,ASILNijhoff,
1991,pp. 1019-1024
Malaysia'sEmergency (Essential Powers) Ordinance No. 7, 1969, as arnended in
1969,UN LegislativeSeries,STlLEGlSER.Bl16
SurveyReportbyMajor (Navy) Sutotodated29July 1970
Statement by the Honourable Tan Sri DatoHaji Abdul Kadir Bin Yusof, Attorney-
General of Malaysia, to thePlenary Sessionof the Third United Nations Conference
onthe Lawof the Sea at Caracas on lothJuly 1974
Indonesiannote verbale,D 0118180129d ,ated 8 February 1980
Malaysiannote verbale,AT 114180,dated 27 March 1980
Indonesiannote verbale,D 386188/29,dated 7May 1988
ReportNo. R/745/XI/1990by Chiefof Staff of Navy Forces concerningDevelopment
of the border matters ofthe Sipadan and Ligitan Islands andNavy Ships narnedKAL
Mahakam. dated 19November 1990
Telegraphic message fromChief of ArrnedForces (Indonesia) to Commander ofEast
Fleet dated3 December 1990(Indonesianversion and English translation)Officia1Note from the Assistant For Operation to the General Chief of Staff to the
General Chiefof Staff,Affairs of Armed Forces, NoteNo. B/ND/035/L/92lOPS,dated
17January 1992
Malaysiannote verbale,AT 29/92,dated24 March 1992
Indonesiannoteverbale,D 24111992104d ,ated 15April 1992
Malaysiannoteverbale,AT 42/92,dated2 1April 1992
Malaysiannoteverbale,AT 68/92,dated 19May 1992
Malaysiannoteverbale,ES 110192,dated 11August 1992
Malaysiannoteverbale, 139192,dated21September1992
BrochureentitledMalaysia: Fascinating Adventures,dated September 1992
Malaysiannote verbale,AT 175192,dated4 December 1992
Malaysiannote verbale,AT 176192,dated4 December 1992
Indonesiannoteverbale,PO 846192129d ,ated 19December 1992
Malaysiannote verbale,AT 1193,dated7 January 1993
Malaysiannoteverbale,AT 20193,dated 12March 1993
Indonesiannoteverbale,PO 247193129d ,ated2 April 1993
Malaysiannoteverbale,AT 23193,dated 8April 1993
Indonesiannoteverbale,PO 345193129d ,ated 5May 1993
Malaysiannoteverbale,AT 31/93,dated 12May 1993
Malaysian note verbale,AT 32193,dated 12 May 1993 [erroneouslydated 12March
19931
Resume of a Site Visit to Sipadan Island as a report to Head of Bulungan Regency,
dated 6 June 1993
Indonesiannote verbale,302193129d ,ated 17June 1993
Malaysiannoteverbale,AT 40193,dated23 June 1993
Malaysiannoteverbale,AT 41/93,dated23 June 1993
Malaysiannoteverbale,AT 64/93,dated28 July 1993Malaysian noteverbale,AT 81193,dated 23 August1993
Indonesiannote verbale, PO 698193129d,ated 24 August1993
Indonesiannote verbale, PO962193124d , ated 23November 1993
Malaysiannote verbale, AT 1/94, dated3 January 1994
Malaysian noteverbale, AT 2/94,dated 3 January1994
Indonesian noteverbale, PO 041194129d,ated25 January 1994
Malaysiannote verbale,AT 13/94,dated 22 February1994
Letter from J.C.R. Gray, Chargéd'Affaires, British Embassy in Jakarta, to Bpk
Kusnadi Pudjiwinarto, Director,Asia and AfricaAffairs [Governmentof Indonesia]
dated29 July 1994
Indonesiannoteverbale, 503194129d ,ated6 September 1994
BusinessTimes, 15December1994,"38MarineParks gazetted"by MaryZachariah
Booklet entitled Visit Malaysia Year 1994 - The Traveller's Guide to Malaysia's
Fascinating Treasures
Reports of Electrical Battery Buoy Maintenance, produced by the Department of
Transportation, Tarakan,dated 20 March 1995,23 February 1995, 31 May 1996, 27
June 1997,14 March 1998,
Indonesian note verbale,36/POAV/95/29,dated 17April 1995
Description ofAlert Reefpreparedbythe Headof Hydro-OceanographyServices
Note R/49/LWII/1992/DITPAM,SpecialReportfiom Headquarters, IndonesianNavy,
Directorateof Security, Defense andSecuriîyDivision, on Marine Security,Sipadan,
LigitanandSebatikWaters
BorneoDivers'Web sitepage LISTOFANNEXES
(Volume 5)
Affidavitof Professor Mochtar Kusumaatmadjadated19July 1999.
AffidavitofAdmira1Adi Sumardiman dated8October1999.
Affidavit of Sergeant-Major Gito (Indonesian versionwith English translation)dated
3 August 1999.
Affidavitof Sailor 1" ClassIlyas (Indonesianversion withEnglishtranslation)da3ed
August 1999.
Affidavit of Marine Chief Corporal Sabichoen (Indonesian version with English
translation)dated August 1999.
Affidavit of Sergeant-Major Soekardi (Indonesianversion with English translation)
dated 3August 1999.
Affidavitof Sergeant-MajorSurnarjono(Indonesianversionwith Englishtranslation)
dated 3August 1999.
Affidavitof Sergeant-MajorWeku(Indonesianversion withEnglish translation)dated
3 August 1999.
Affidavit of Haji Adam Beddu (Indonesian version with Englishtranslation) dated
10September 1999.
Affidavit of HajiBustani bin Musa (Indonesian version with English translation)
dated 10September1999.
Affidavit of Haji Junuddin (Indonesian version with Englishtranslation) dated
10September 1999.
Affidavit of Haji Zaenuddin Effendy (Indonesian version withEnglish translation)
dated 10September 1999.
Affidavit of Idris Said (Indonesian version with English translation) dated
10September 1999.
Memorial of the Republic of Indonesia