nrrERNATIONALCOURT OFJUSTICE
CASECONCERNLNG SOVEREIGNTY OVER PULALIGITAAND PULAUSIPADAN
(INDONESIAIMALASIA)
COUNTER-MEMORIAL
SUBMITTEDBY
THEGOVERNMENTOFTHEREPUBLICOFINDONESIA
Volume 1
2 AUGUST2000 1
TABLE OF CONTENTS
CHAPTER 1 INTRODUCTION ...................................................................
............
CHAPTERII SUMMARYOFINDONESIA'SANDMALAYSIA'SCASESAS
PRESENTED INTHE PARTIES'MEMORIALS ...............................
Section1. The StraightforwardNatureof Indonesia'sCase ......................
Section 2. Confusion and Inconsistencyin the Case Presented by
Malaysia. ..................................................6.........
Section3. Areasof Agreementbetweenthe Parties ................................
CHAPTER m THE FALLACIES UNDERLYINGMALAYSIA'S CLAIMED
ROOTSOFTITLE .................................................................
.........
Section1. Lack ofOriginalTemtorial TitleInheritedbyMalaysia ........
Section2. Malaysia's Argument Basedon the Presenceof the Bajau
Lautinthe DisputedArea. ..................................9
A. A "Bajau Laut" Entity Comprising Ligitan and
Sipadan? ..............................................2..................
.....
B. The SupposedlyExclusive Links between the Bajau
Lautand the Sultan ofSulu,the BNBC andthe British
Administration .........................................26
Section3. Conclusion: The Absenceof Malaysian"Original"Title .......
CHAPTER N THE ABSENCEOF TITLE OVER THE ISLANDS VESTWG
INTHEBNBCORBRITISHNORTHBORNE0 ..................4.3.........
Section1. Introduction ...............................................3...................
....
Section2. The Absence ofTitle Vesting in the BNBC and British
North Borneo ....................................................................
..
A. The 1878Grant to Dent and OverbeckExcluded the '
Disputed Island.........................................4......................
B. The 1885Protocol Confiied the Absenceof British
Titleoverthe Islands....................................1....................
C. The 1903 Confirmation Did Not Include the Islands
andWasof NoLegal Relevance ......................................CHAPTER V TITLEBASEDONTHE 1891 CONVENTION .....................7..........
Section 1. Introductio...........................................57..................
....
Section 2. The Termsofthe 1891Convention ........................9............
A . TheNatureofthe Convention .........................59...............
B . Interpretationof ArticleIVofthe 1891Convention .....6..
(i) TheImmediate TextualContext......................65............
(ii) The General Contextofthereaty'sConclusion .......69...
(iii)Agreementin Connection withthe Conclusionof the
1891Convention ...................................70....................
(iv) Instrument Acceptedas Being Related to the 1891
Convention........................................72.............................
(v) ObjectandPurposeofthe 1891Convention ............2....
(vi) SubsequentAgreementor Practice....................7..........
C . Alleged Spanish Sovereignty over Sipadan and
.............................................................
..........
Ligitan 79
Section3 . The 1891Convention: TravauxPréparatoires ..............2......
Section4 . Dutch Ratificationofthe 1891Convention.................9........
A . The Map Attachedto the 1891 Dutch Explanatory
Memorandum .......................................-90...........................
B . The ExplanatoryMemorandum ........................2............
C . TheDutch Actof 20May 1892 ........................7.............
D . Modification of the Boundaries of Boeloengan to
Conformtothe 1891Convention ......................97............
Section5 . The 1915 and 1928DemarcationAgreements ..............8......
A . Agreementof 28 September 1915 ....................10..........
B . Conventionof 26March 1928 ..........................................CHAPTER VI THEABSENCEOF TITLEOVER THE ISLANDSVESTING
INSPAINANDTHE UNITED STATES .....................................
Section . Introductio.................................................................
..
Section2. The Absence ofSpanishTitle overthe DisputedIslands...107
Section3. The Absence ofU.S. Title Followingthe 1898and 1900
Treaties..............................................................
.........
A. The 1898and 1900 Treaties Did Not IncludeLigitan
and Sipadan.......................................................................
B. U.S.Activitiesinthe RelevantAre.............................
C. The 1930ConventionConfirmedthat the IslandsDid
Not Belongto the UnitedStates.................................
Section4. Conclusions as to Malaysia's Arguments Based on
ConventionalTitleOverthe DisputedIslands...................
CI-IAPTER VI1 MALAYSIA'S ASSERTIONS OF POSSESSION AND
ADMINISTRATION OFTHE ISLANDS POST-1891 DO NOT
12 1
CONFIRM ANY MALAY SIANTITLE ...........................................
Section1. The LegalRole ofEgectivi itthe Case........................
Section2. Brief Comrnentary on the So-Called Acts of
Administration ReliedUponbyMalaysia ..................6.......
A. The Alleged Process of Establishing Effective
Administration over the Mainland and Adjacent
Islands.......................................126..................
...........
B. Collection ofTurtleEgg...........................................
C. Bird Sanctuary.....................................33....................
D . Construction and Maintenancof Lighthouses.........134....
E. Controlof Tourism..................................35..................
Section3. Dutch and IndonesianActivitiesRelatingto the Isla......6
Section4. Post 1969 Activities of the Parties and the Diplomatic
Historyofthe Case .....................................0...................
Section5. The MapEvidenceas an Element of the Conductof the
Partiesand TheirPredecessor.......................................... A. Certain Key Aspects of the Map Evidence
Demonstrating Dutch andIndonesian Title to the
DisputedIslands..............................144............................
B. The MapsIntroducedby MalaysiaDo Not SupportIts
Claimof Titleover the DisputedIs.....................
C. Conclusionsasto the Maps......................151...................
SUBMISSIONS
MAP ANNEX
CERTIFICATION
LIST OFANNEXES FacingPage
Map 3.1 Map of Sama-Bajau settlements taken fiom Lapian, A.B. and
Nagatsu, K., "Research on BajauCommunities:Maritime Peoplein
Southeast Asia", reprinted fiom Asian Research Trends: A
Humanitiesand SocialScienceReview,No. 6, 1996 .......................................
Map3.2 Toponymmap showing places,the names of which include "Bajau"
or "Bajo"..............................................................
......................................
Map4.1 Map of Borneo, preparedby Edward Stanford,London, 1903,with
enlargement............................................................54 ...................................
Map5.1 Kaart van een Gedeeltevan BorneometAanwijzingvan de Grens
tusschen het Nederlandsch Gebied en dut van het Britische
Protectoraat (Mapattachedto the ExplanatowMemorandum onthe
Ratificationof theglo-DutchConvention of1891) .....................................
Map6.1 Map showing the Philippine Islands as defmed by the Treaty of
Peace,1898andthe TreatybetweentheU.S.and Spain,1900 .......................
Map6.2 Map showing the 1930 Conventionline between the United States
andtheUnited Kingdom .................................................16...........
............
MapA.1 MapentitledMalaysia,Singapurak, Brunep i:emerentahan(Political
map of Malaysia,Singapore & Brunei), issuedby the Directorateof
NationalMapping of Malaysia, 1966
Map A.2 "Top Secret"map of Borneo issued by the GeographicalSectionof
the BritishGeneraltaffin 1944 INTRODUCTION
1.1 This Counter-Memorial is filedby the Republicof Indonesiapursuantto the Orderof
the Court dated 11 May2000 fixing 2 August 2000 as the the-limit for the submissionof
Counter-Memorialsbythe Parties.
1.2 Indonesia's Counter-Mernorial comprises seven chapters. After this Introduction,
Chapter IIwill summariseIndonesia's and Malaysia'c sases as presented in their respective
Memorials. Section 1 will highlight the essential elementsof Indonesia's case,which is
straightforwardin nature. Section2 will thereafter attempt to untangle Malaysia's alleged
chainsof title which, in contrastto Indonesia'sbrnissions,are confusedand contradictory.
Forthe convenienceofthe Court,Section 3 of ChapterIIwill brieflyset out certainimportant
areasof agreement betweenthe Parties.
Chapter Iü will then analyse in greater detail the fallacies underlying Malaysia's
1.3
claimedroots of title. This chapter willrst show that the Sultanof Sulu didnot possessan
originaltitle over Ligitan andSipadan. Thereafter,it will rebut Malaysia'sargumentsbased
on theallegedpresenceofthe BajauLautinthe disputedarea.
1.4 In Chapter IV, Indonesia will demonstrate that neitherthe British North Bomeo
Company (hereinafierthe "BNBC")nor BritishNorthBomeo everheldtitle over the disputed
islandsandthat Malaysia, consequently, could not havenheritedatitle fiom GreatBritain. In
this regard,ChapterIV will showthat thedisputedislandswere not includedin the following
legalinstrumentson which Malaysia relies:the Grantbythe Sultanof Suluof Territoriesand
Lands on the Mainiand of the Island of Bomeo in January 1878 to Messrs. Dent and
Overbeck;the 1885 Protocol recognisingthe sovereigntyof Spain over the Archipelagoof
Sulu; and the 1903 statement, or Confirmation,signed by the Sultan of Sulu concerning
islandslyingbeyondthree marineleagues off themainlandcoastwhich were not includedin
the 1878 grant.1.5 Chapter V will then reviewthebasis of Indonesia'stitle, namely the 1891 Convention
between GreatBritain and The ~etherlands', and rebutthe argumentsadvancedby Malaysia
in itsMemorialconcerningthe effectofthis Convention. Thefirsttwo sectionswilldealwith
the terms of the Convention andthe travauxpréparatoires,while the last two sectionswill
address the Dutch ratificationprocess andthe 1915 Agreement andthe 1928 Convention
between the United KingdomandTheNetherlands.
1.6 Chapter VI will showthatthe alternativechah of title advancedby Malaysia, namely
that title passed via Spainto the United Statesandthence to Great Britain, is unfoundedas
well. In particular, Indonesia willshow that the islands of Ligitan and Sipadan were not
consideredto be part of the SuluArchipelago cededby the Sultanof Sulu to Spain and that
the disputed islandswere not includedwithinthe territoriestransferredby Spainto the United
States under the 1898and 1900treaties, or by the United States to Great Britain under the
1930 Anglo-U.S.Convention.
1.7 ChapterVIi containsa rebuttalof Malaysia'sassertionthat its title is confmned by an
allegedpattern of possessionand administrationof the islands. In Section 1, Indonesia will
analysethe legalrole of efectivitésin the case, Sectio2 will then comment on the so-called
acts of administrationrelied onby Malaysia. Followingthis, Section 3 will review theDutch
and Indonesianactivities relatingto the islands which confirrnIndonesia'stitle. Section 4
charts the post-1969 activitiesof the Parties and the diplornatic history of the case and
cornmentson the legal relevance of these eventsfor the case. Finally,Section 5will address
the map evidence adduced by the Parties and will showthat this evidence overwhelmingly
confïrms the fact that the islands were deemed first to fa11under Dutch sovereignty and
thereafterasappertainingto Indonesiafollowingthe latter'sindependence.
' Malaysiarefers throughoutto the 1891 Conventias the "1891 Treaty". Its fui1title is the
"ConventionbetweenGreatBntainandThe NetherlandsdefïningBoundariesin Bomeo". See IM,
Annex75, Vol. 3 andMM,Annex 17,Vol. 2.LnthisCounter-MemonaIlndonesiawili, exceptwfiere
quotingfiomMalaysia'Memonal,continueto refertoasthe"1891 Convention".1.8 A Mer section hasbeen addedat the end of this Counter-Memorial,referred toas a
Map Annex. This Map Annex contains detailed cornments rebutting Malaysia'sposition
regardingthe map evidence.
1.9 There is one additionalvolume attachedto Indonesia'sCounter-Mernorialcontaining
Mer documentary evidence and other materials relied on by Indonesia, which has been
organisedinAnnexes nurnberedfrom 1to 38. An index of these Annexes may be found at
the end ofhis volume. SUMMARYOF INDONESIA'S AND MALAYSIA'SCASES
ASPRESENTED IN THE PARTIES' MEMORIALS
Section 1. The Straightforward Nature ofIndonesia's Case
2.1 The basis of Indonesia's sovereignty over Pulau Ligitan and Pulau Sipadan is
straightforward.Indonesiainheriteditstitle fiom TheNetherlandswhosetitle overthe islands
was confirmedbythe 1891Anglo-DutchConvention.
2.2 Prior to the 1891 Convention,uncertainty existed over the precise extent of the
temtories of the Sultan of Boeloengan,to which TheNetherlands had succeeded, and the
temtoriesformingpart ofthe BritishProtectorateofNorth Borneo, whichhad previouslybeen
grantedto the BNBC by the Sultans of Brunei and Sulu. However, a strongpresumption
existed at the time that the disputed islands formed part of the dominions of the Sultan of
Boeloengan. As Indonesia demonstratedinits Memorial, andwill showagain in ChapterV
hereto,the 1891Conventionresolved anyremaininguncertaintiesby delimitingtherespective
tenitories of TheNetherlandsandBritishNorthBomeo bothonthe mainlandandwith respect
to islandsituatedinthe relevantarea.
2.3 The subsequent activitiesof the interestedparties, including The Netherlands,Great
Britain, Indonesia and Malaysia,nfïrmedthat sovereigntyoverthe disputed islandsvested
first in The Netherlands and subsequently,byrtue of State succession, in Indonesia. In
particular,the mapattachedto the Dutch ExplanatoryMemorandumprepared in connection
with the ratification of the 1891 Convention andforwarded to the British Govement
confirmedthat the line establishedby the 1891 Conventionextendedeastwardfiom Sebatik,
resultinginthe islands in questionfallingonthe Dutchsideofthe boundary. Moreover, maps
issued by British sourceson behalf of the BNBC and byfficial agencies of the Malaysian
Govement confïxmedthe scope of the 1891 delimitation as did the activities of The
Netherlands in sending anaval vesse1to the islands following the signature of the 1891Convention andthe conduct of Indonesia and Malaysiain granting oil concessions and
erectingnavigationalaidsinthe relevant area'.
2.4 As for the activitiesof third Statesin theregion - notablySpainandthe United States
- they reveal that the disputed islands fell well outside of any areas that were deemedto
appertainto them. The islands did not fa11withinthe possessionsof the Sultanof Sulu and
were not consideredto be part of Spanishterritory that was transferredto the United States
pursuantto the 1898and 1900treaties. Moreover,the 1930 Conventionbetween the United
States and Great Britain confïrmedthat the United Stateshad no rights or interestsin areas
lyingas farsouthor westas Pulau Ligitan or PulauSipadan.
Section 2. Confusion and Inconsistency in the Case Presented by Malaysia
2.5 In contrastwith Indonesia's case which is basedon a clear conventionaltitle,the case
advancedbyMalaysiais founded ona seriesof complex andcontradictorytheories.
2.6 Although Malaysia's Memorialstates that Malaysia'ssovereignty over Ligitan and
Sipadanis based ontwo separate,albeit - in Malaysia's view - inter-dependentstrands2,in
reality Malaysiaappearsto be claimingsovereignty overthe disputed islandson the basis of
three distinct strands,as follows:
First, Malaysia, despiteadrnitîingthat thedisputedislands felloutsidethe scopeof the
1878 grant3, seeks to argue that title over the disputed islands was nonetheless
transferredby the Sultanof Suluto Messrs. Dent and Overbeckwith the 1878 grant,
subsequentlytransferredto the BNBC (Dent and Overbeck'ssuccessor),then to the
British Governmentin 1888with the agreementcreatingthe State of North Bomeo,
and finally,byvirtue ofStatesuccession,to Malaysia.
Second, Malaysia clairns, quite inconsistently with its first theory, that title was
transferredby the Sultanof Suluto Spain withthe Protocol confïrmingthe Bases of
' See,generally,ChapterVI of Indonesia'sMemonal(hereinafterIM).
Malaysia'sMemorial(hereinafterMM),para.5.1.
' Ibid.,para.5.19. Peace and Capitulation in 1878, then by Spain to the United States with the
Convention of1900 supplementingthe Treaty of Paris of 1898, subsequentlyby the
United Statesto the BritishGovemment pursuantto the 1930 Convention,and finally
to Malaysiaby Britain with the 1963 Agreement,under which North Borneo became
part of the Federationof Malaysia.
Third,Malaysiaassertsthat, in any event,the disputed islandshave been administered
by the BNBC, Great Britain and Malaysia itself. According to Malaysia, this
administrationwas challenged neitherby Spain,The Netherlands norby its successor
intitle,Indonesia.
2.7 The first obviousproblem with the casepresentedby Malaysiais that it rests on the
whollyunsubstantiated assertion thatthe Sultan of Sulu had title over the islandsof Ligitan
and Sipadan and was therefore in a position to conveythat title either to the BNBC or to
Spain. However, Malaysiahas failedto adduceany evidence demonstratingthat sovereignty
overeither islanddid indeed vestinthe Sultanof Suluatthe relevanttirne.
2.8 Malaysia attempts to brush aside this embarrassinglacuna by alleging that an inter-
connectionexistsamongstal1the islandsofthe areabyvirtueof human and economicfactors.
Pursuantto this argument,it issaidthat the allegianceto the Sultanof Suluof certainnomadic
tribes active in the area, i.e. the Bajau Laut, shows that these indigenous peoples, and the
islandsaroundwhichthey occasionally fished,wereunderthe controlofthe Sultan.
2.9 As Indonesiawill demonstrate in Chapter ID,Malaysia has failed to show that the
allegedlinksbetweenthe BajauLautandthe Sultanof Suluamountedto anythingmorethan
persona1and commercial relations. Nothing in the documentary evidence submitted by
Malaysiaeven remotely suggeststhat the islandsof Ligitanand Sipadanfell wiuiin the limits
of Sulujurisdiction.
2.10 Moreover, even admitting,arguendo, that the fkst step of Malaysia'sconstruction is
valid, i.e. that the Sultan of Sulu had title over the disputed islands, the logicof Malaysia's
two-headedarguments still remainsproblematic. Thedifferent strands of Malaysia's allegedtitle cannotal1be maintained atthe sarnetime: eitherthe Sultanof Suluceded histitleto Dent
and Overbeck orto Spain. Malaysia cannot haveitbothways.
2.11 If, on the one hand, title had beencededto Dent and Overbeck,then there can be no
chah of title passingthroughSpain,theUnitedStatesandthenceGreatBritain. Onthe other
hand, if title over Ligitan andpadanremainedwith Spain,then the BNBC could not have
acted,as Malaysiaargues,"onthe basis"that ithad control over the islands,and its so-called
actsof administrationonthe islandscouldnotdisplaceSpain'spre-existinglegaltitle.
2.12 In anyevent, Malaysiahas been unable to produce any evidence demonstrating that,
specifically,the islandsof Ligitan andipadanwere under the sovereigntyof the Sultanof
Sulu or that they were included in any of the relevant transactions and conventional
instruments vesting ultimatetitle in Great Britain and Malaysia.In each case, Malaysia's
arguments are built on unsupported and generaa lssertions which are contradictedby the
relevant treaties and conventions and ignore the settlement achieved with the 1891
Convention.
Section3. Areas of Agreementbetweenthe Parties
2.13 Unsurprisingly, the Parties' Memorials disagreeon a number of important issues,
includingthe interpretationof the conventional andactualhistory of the case. However,in
Indonesia's view, it is significant that the Parties' submissions contain some areas of
agreement oncertain key issues in the case. Forthe convenienceof the Court, this section
will sumrnarise the main points of agreement betweenthe Parties as evidenced in their
Memorials.
2.14 Althoughthe chahs of title invokedby the Partiesdiffer,they both agreethat, albeit
uninhabited,the islandsof Ligitan andSipadanwere never terrae nuIliusduringthe relevant
period4. As a result, the islandswerenot opento occupationby any State. Moreover, thefact
that the islands were not terrae nullius means that any alleged eHectivitésinvoked by
' Zbidpara.5.8(ca)dIM para.4.1.Malaysia mustbe consideredin their properlegalcontextand in the lightof the relevant legal
instruments.
2.15 Both Parties agreethat the disputedislandswere not coveredbythe 1878 grantbythe
Sultan of Sulu since they are situated more thanîhree marine leagues fiom the coast5.
Moreover,withrespectto the 1903 Con£ïrmationfiomthe Sultanof Suluto GreatBritain, the
Partiesconcurthat this documentdid not mentionthe disputed islandsas falling withinthat
cession6.
2.16 TheParties alsoagree onthe definitionofthe temtory relinquishedby Spain infavour
of GreatBritainpursuantto Article II If the 1885ProtocolbetweenSpain, GreatBritain and
Germany,andthey recognisethat the islandsof Ligitan andSipadanfell outsidethe termsof
ArticleII Ifthis roto col'.
2.17 In addition, there is agreement thatthe islands of Sipadan and Ligitan do not fa11
within the line drawn by the 1898 Treaty betweenthe United States and spain8. This, in
Indonesia'sview, conhs the fact thatneithertheSultan ofSulu nor Spainhad aclaimto the
disputedislands.
2.18 Finally,the Partiesagree thatthe disputecxystallisedin 1969during the negotiations
overtheir respectivemaritime boundaries9.In Indonesia'sview, this date has importantlegal
consequencesin the lightof whichthe subsequent conduct of the Partiesmustbe assessed.
2.19 As a concludingremark, Indonesia considersit importantto note its agreementwith
Malaysia's comment at para4 . .5 of its Memorialthat the diplomatic exchangesbetweenthe
Parties donot affectthe legal issuesbeforethe Court. Indonesianotes,however,that despite
this agreement, Malaysiahasrelied on certain arguments madeby Indonesiain the courseof
' ibid.para.5.19 andthelocationmapatIns8,tonp. 39 showingthe dispislandsoutsidetheband
of ninenauticalmilesfiomthecoseealsoIM,paras.3.28,7.3,7.4, andMap3.1 facingp. 14.
IM,paras.7.15-7.16anMM, paras.5.33-5.35.
SeeChapterVI1inIM in general,andinparticparas.7.28, 7.29, 7.34-7.39and7.58, asparas.
3.34and3.63 andMap5.1 opposite64;see alsoMM,paras.5.17-5.19.
SeeMM,para.5.22 andInsert9 onp44,andIM,paras.7.30-7.31andMap7.2 oppositep. 140.
SeeMM,para.2.4 andIMpara.8.3.diplomatic discussionssince 19691°,and has annexed to its Memorial the Joint Reporton
Discussionsbetween Dato'Seri Anwar Ibrahim,DeputyPrime Ministerof Malaysia and Mr.
Moerdiono,Minister,StateSecretaryofthe Republicof Indonesia, onthe Issueof Sovereignty
over PulauLigitanand Sipadanandtheir recommendationsl l.Becauseof the lackof its legal
relevance, Indonesiahas notdeemedit appropriateto referto this material.
2.20 The points outlined inthis section representthe most importantareas of agreement
betweenthe Parties. With respectto thernerousissueson whichthe Partiesdisagree,these
will be discussedas necessaryby Indonesiain subsequentchapters. Failureby Indonesiato
addressal1of the points raisedbyMalaysiain its Memorial,however, inno way signifiesthat
Indonesia agrees with Malaysia's account.
Io Ibid .ara2.8.
l1 Ibid .nnex75,Vol3.. CaAPTERIII
THEFALLACIESUNDERLYINGMALAYSIA'S
CLAIMEDROOTSOF TITLE
3.1 The purposeofthis chapter isto showthatMalaysiahas failedto establish inany way
the existenceofa territorialtitle over thedisputed islands,which itclaimsto have inherited in
one way or another fiom its predecessors (Section 1). In particular, the uncertain
interconnectionbetweenthe Bajau Laut and the Sultanof Sulu does not establishany such
territorialtitle (Section2). The absenceof any originaltitle belongingto the Sultanof Sulu
thus clearlyexcludesboth "strands"ofthe Malaysian argument(Section 3).
Section1. Lackof OriginalTerritorialTitleInheritedbyMalaysia
Amongthe points of agreement betweenthe parties1,there is at least one undisputed
3.2
issue which is of great importance. In Malaysia's words:"[tlhere can be no suggestion that
any [of the islands] is, or at any relevanttime was,erra nullid"'. This implies that the
Parties(andtheir predecessors)possessand have possessed at al1relevanttimes a title which
created orestablishedtheirterritorialvereignty3.
3.3 As alreadynoted inChapter IIMalaysia's argumenb t ecomesveryconfusedas soon as
it seekstodeterminepreciselyonwhichtitle itsterritorialclairnis founded.
3.4 Atpara. 5.1of its Memorial, Malaysiaexplainswithmoreclaritythanit generallyuses
onthis issuethat sovereigntyoverLigitanand Sipadanis:
"based on two independent but also intersecting strands.m, title to the
islands wasacquiredby grant ofthe previoussovereign, a situationwhich was
recognizedby andwas opposableto al1relevantStatesin the region as a result
of published treaties. Secondlv,followingfiom the 1878 grantto Baron von
Overbeck,the islandshave been peacefidlyand continuouslyadministeredby
Malaysia'spredecessorsintitle, and byala~sia"~.
1 SeeChapterïi Sectionabove.
3 MM,para.3.1. SeealsoMM, para.5.8andIM,para4.1.
4 Kohen,M.G. P,ossessioncontestée et souvererritoriaPUF,Paris1997,p. 148.
MM,para.5.1;seealsoparas.2.1-2.3.3.5 Thedecisionto followbothlinesof argumentsimdtaneously poses complexproblems
regardingthe intemal logic of the exercise. It is difficultto understand how Malaysia can
claimthat itstitle derivesfiomthe cessiongranted bythe Sultanof Suluto Spainofthe whole
of "the Archipelago ofSulu and the dependencies thereof'in 1878'while also claimingthat
its titlederives fiom the continuous administrationof the disputed islands by Malaysia's
"predecessors", namelythe BNBC(similarlysince 1878)andthen GreatBritain. Eitherway,
the same issue must be addressed: either Ligitan andSipadanwere cededto Spain, in which
case neither the BNBC nor Great Britain could have administeredthem "as sovereignM6 o,r
altemativelythey belongedexclusivelyto the BNBCandthen Great Britainas a result of the
1878grant in which case Malaysia cannotclaim a chah of title through Spain, followedby
the United States, followed by Great Britain upon the coming into force of the 1930
convention7.
3.6 In any event,what is significant is that,accordingto both hypotheses, the Sultanof
Suluheld originaltitle overthe islands8.Yetthereisno point inits Memorial where Malaysia
establishes, even in a tenuous manner, that the Sultan, as sovereign or otherwise, ever
exercisedany authority overLigitan and Sipadanor claimedthe islandsà titre de souverain.
3.7 Malaysia's argument merely consistsin assertingthat the Sulu Sultanateextended over
a section of the north-eastem coast of Bomeo, an area whichwas in fact the subject of a
competingclaim by the Sultanof ~runei'. In Indonesia'sopinion, this argument confms
Indonesia'sanalysisof "the Iegalnotionof territory as historicallyperceivedby localRulers"
as set out in Chapter IV, Section 2 of Indonesia's Memorial.Malaysia completelyfails to
establishinanyway theprecisesouthem extentofthe Sultanateof Suluand evenlessthat the
Sultanateincludedthe islandsof Ligitan and Sipadan,which, it shouldbe recalled, aresome
distancefiomthe coastand were uninhabited.
3.8 Inthis regard, a seriesof peremptoryassertionscannottake the place of evidence,al1
the more so since these aflhations are contradictedby the actual documents upon which
theyare apparentlybased.
5
6 Ibid.para5.13.
7 SeeLegalStatusofEastern Greenland,Judgment,1933,P.C.I.JSeriesAA3 No.53, p.22atp.46.
8 SeeMM,para. 5.43.
9 Ibid.paras5.3-5.8.
Ibid.para5.6.3.9 In describing the "Dependencies of the Sultanate of Sulu on the East Coast of
~orneo"'~,Malaysiaassertsthat: "TheSultanatewas a substantialmaritimepower,exercising
authority over a considerablenumber of islands lying betweenmainlandBorneo andthe
Philippines,as well as over the SuluArchipelagoitself"". It is, however,quite obviousthat
Sipadanand Ligitanlie to the southof what was then British NorthBomeo and Darvel Bay,
andto the southandwestofthe outermostislandsofthe SuluArchipelago. Itis impossibleto
seehow they can conceivablybe includedin a descriptionof "islandslyingbetweenmainland
Borneoandthe Philippines"or as part ofthe SuluArchipelagoitself. Forexample,MapNo.
7.2in Indonesia's Memorial, which isreproducedinthis Counter-Memorialas Map 6.1facing
page 112,showsboththe spatial relationship"between mainlandBomeo andthe Philippines"
and the location and extent of the Sulu Archipelago, which,for these purposes, may be
considered as extending no further than the importantisland of Sibutu. Similarly, a map
published in 1901 in the Journal of the Royal Netherlands Geographical Societyand
reproduced at Annex 1,showsthat the "formerlimit of Boeloengan" extendedup to Tinagat
as shown by the line of red crossesI2. The 1903 Stanford map of ~omeo", reproduced
oppositepage 54 as Map 4.1, again shows clearly thatSipadanand Ligitan are inthe north-
westernpart of the Sulawesi (Celebes) Sea,and can in no way be described as lying in the
SuluSea oras formingpart ofthe Sulu Archipelago.
3.10 By way of contrast,this sectionof Malaysia's Memorialmerely assumesthat Sipadan
and Ligitan are, as a matter of fact, part of the Sulu Archipelago and that they can be
described as "islands lying between mainland Bomeo and the Philippines". It goes on to
describethe "procurement stem" '^ed by the Sultanateof Sulu,underwhich "tradingin a
whole rangeof commodities(birds'nests, trepang, etc.) occurred viaSulu ,nd local people
madefiequentvisitsthere [presumably,to Sulu] forthis andotherpurposes"'5. Subsequently,
there is a descriptionby JamesHunt of the procurementsystemand the Mangidoradistrict in
the early part of the 19th century, presumably, intendedto identifj the Sulu dominionsas
including Sipadan:
10 Ibid.paras5.3-5.8.
11 Zbid.,par5.3.Emphasis added.
12 Forfurtherdiscussionofthismap,seepa5.85,below.
13 IM,MapNo. 6.4, facingp. 11andMapAtlas,MapNo. 9.
14 Fora descriptionof the"procuremstystem",seeReynolds,J.K.,TowarakanAccountofSuluand its
Borneo Dependencie- 1700-187 8,esis,MasterofArts(History),Universityof Wisconsin,1970,pp.
50-64.
15 MM, para5.3.Emphasis added. "Giongriver is situatedon the north-westpart of the bay of that name [Darvel
Bay];here are considerablequantitiesof blackish birds nests procurablePulo
Giya [P. Gaya], off this coast, aboundswith deer, & Separan [Sipadan] with
abundance of greenturtle. There is also a speciesof birds' nests like driven
snowfound onMo Giyaandmuchtripangis collectedaboutthe bay'16.
An examination of Insert 7 at p. 32 of Malaysia's~emorial" shows the locationsjust
identified. Presurnablythe north-westpart of the bay is marked by Silam and Lahad Datu,
althoughthe Giongriver is not shownon Insert 7. Silam,which is in the north-west partof
Darvel Bay is some56 milesfiomthe islandof Sipadanand some 61 milesfiom the islandof
Ligitan and Darvel Bayitself would appearto have no geographic relationto the islands
whatsoever.The island identifiedas "PuloGaya"is shownto the north-eastof Semporna and
alrnostdue west ofthe islandof Sibutu;again,it is manymiles awayfiom Ligitan (and even
Mer fiom Sipadan)andhasno comection witheitherisland.
3.11 The purpose of this "identifjhg" description thus seems to be to describe not the
extentof the dominionsof Sulu,which the wording ofthe section heading appearsto imply,
but rather the location and nature of the "very valuable articles for commerce" there
identified, such as "birds'nests [...], camphor, elephants, cattle" and the like. The first
paragraphof the quotationby JamesHunt at para. 5.4 of Malaysia'sMemorial showsthat the
geographical scope ofthe description covers an areafar removed fiom the disputed islands:
"Theprovinceof Mangidora forms the north easternpart of Bomeo, extending itself towards
the Su10Archipelago in a long narrow point named Unsang, or cape Misfortune [Taniung
Unsang]".Yet a mere glanceat Insert7 on p. 32 of Malaysia'sMemorial revealsthat Tanjung
Unsang lies on the north-eastem coast of the far easternpromontory of north-east Borneo,
across the Sulu Sea fiom Palawan, facing Sulu (Jolo) and, fUrtherafield, facing the south-
westerntip of MindanaoIslandwithinthe Philippine Archipelago.It is quiteclearthat Hunt's
descriptionof local produce and resources does not indicate the geographicalscope ofthe
"Dependencies of the Sultanate of Sulu", but was rather intended to indicate only the
commodities that could be obtained by "local people" and processed through the
"procurement system" quite obviously dominated,in those areas, by the Sultan of Sulu by
virtue of his maritimepower inthe region. This is, however,far fiom identifjhg "Separan
[Sipadan]" as forming a geographicalpart of the Sulu dominions, rather than being a
neighbouringisland with commoditiesthat were sought after by the local people fiom Sulu
l6 Ibid.,para.5.4.
17 SeealsoMapNo.9 inIndonesia's tlas.and elsewherel*. This is confïrmedby the title itself of Dalrymple'schart of these seas on
which this "description" is based, namely: A Map of part of Borneo and the Sooloo
~rchipela~o'~ andwhichdoesnot indicateanyterritoriallimitsfor any of the politicalentities
in theregion.
3.12 The subsequent paragraphsin Malaysia's Memorialadvance the matter no mer.
Indeed, the reference in para. 5.5 to the Renne1manuscript adds nothing. It locates the
"Dominions of Sooloo" as being, again, "between the Philippines and Bomeo", and as
including"a large part of the Coast of Bomeo",the islandof Palawan (farto the north),and
"theislandsthatformthe Straightof Balabar". Thelatter do not appearon Insert 7 sincethey
lie too far to the north: the "Straightof Balabar" is now called the"BalabacStrait",the far
westernentranceto the SuluSea, stretchingapproximatelyfkom116"30'to 11 8'E, 7"30' N,
between BalabacIsland (south-westof Palawan) andthe island of Banggi off the coast of
Sabah. It is somethree hundred milesfiom Sipadanand Ligitan.
3.13 Para. 5.7of Malaysia's Memorial detailsan1875 attackby BajausfkomOmadal on an
Austrian fiigate. Oma&l is to the north of Danawan andSi Amil, which are in tum to the
north of Ligitan. However, it is revealing that theletter of the British Acting Consul at
Labuanof 15July 1875onthe subjectofthis attacknotesthat:
"The Dutch also are unusually active on the east coast, extending their
influence fiom Coti over Berow and Bulungan, which they have long
neglected, and where the English merchants of Singapore have trading
Settlements. A vesse1underthat flagfkomMacassarrecentlyloadeda cargoof
pearl-shell at the TawiTawi Islands, andher captaincommunicatedwith Sulu
withoutbeing putto muchinconvenience bythe so-calledbl~ckade"~~.
Sincethe Tawi Tawi islandsbelongto the Sulu Archipelago,this makes it clear that at that
timethe Dutchwere present inthis area2'.
18
19 James Hunt'dsescriptionis alsoreferredtoatMM,para.3.14.
20 Annex2.
21 MM, hex 77,Vol.4, p.3.
Onthispoint,seeparas.3.66eseq.below.3.14 The next sectionof this part of Malaysia's Memorialdewith the 1870map by van
Carnbée and erst tee The^^ .p, however,showsvirtuailynothingof interest. Sipadanand
Ligitan- the latter of which is wrongly locat-dare not coloured in anyway that might
indicatethat they appertainto the "GebiedvanSoeloe ofSolokh"(territoryof Suluor Solok).
Thereis no visible differencebetweentheir depictionand that of "P. Sibalik"(Sebatik). It is
obvious that they are closeto a "boundary" between local powers,but that is not surprising.
Indeed, thelimitedusefulnessof this map is apparentfiom the very words used by Malaysia
in its Memorial:
"Tothe northandwellto the east of the boundary line depictedonthe map are
shown certain islandsclusteredaroundDawel Bay, including specifically'P.
Siparan'(Sipadan)and 'P.Legetan'(Ligitan). Thedepictionof the islandsand
coastlinehereis highlyinaccurate,by comparisonwith the areas furtherto the
southwherethe Dutchhad atthat timesome measureof contr01"~~.
3.15 No onedeniesthat SipadanandLigitanlie closeto the lineof territorial alloc-toon
be subsequentlydetennined in 1891between GreatBritain and TheNetherlands,and no one
deniesthat they lie closeto the notionalboundary, vaguethough itmay have been,separating
the respectivereasof overlappingclaimsofthe Sultanof Suluandthe Sultanof Boeloengan.
But toconcludeon the basis of a "highly inaccuratedepiction"that Sipadanand Ligitan fell
witb the Sultanateof Suluis impressionisticin the extreme,and even that vagueimpression
can be seen to have been corrected,precisely and to the minute, by the Anglo-Dutch
Conventionof 1891adopting the4" 10'N parallel as the line of latitudefor the of allocation
for offshoreterritories.
3.16 No more needsto be saidabout thequotationsgivenfiom the parliarnentaryquestions
in TheNetherlands conceniingthe 1878Sulugant to Dent andvon Overbeck. What useful
inferencecan be drawnfiom a statementas vague asthat given: "Wehave never disputedthe
authorityof Spain over the dependenciesof Sulu in the north-eastportion of the island [of
~orneo] "?24
3.17 Sirnilarly, at para.5.42,Malaysiamakesthe unsubstantiatedaffirmation:
22 Map3 inMalaysiaAtlas.
23 MM,para.5.8(a). Emphasis added.
24 Ibid,para. 5.8(b). Emphasisadded. Regardingthe Malaysianinterpretationof the Dutch
Memorandum inrelationtotheBajauLaut,seepara.3.54,below. "There is no doubt that a licensehad beenvalidly granted to the Company
[BNBC] to administerthe islandsto the west of the line drawn by the 1907
Exchange of Notes, which, for the reasons already given, clearly covered
Ligitanand Sipadan".
On the contrary,nothing could be less certain. In particular, Malaysia not only ornits any
referenceto the fact that the 1878 grant did notcover islands situatedbeyond "threemarine
leaguesofthe ~oast"~~ b,ut also seesit fitto includeonly a selectiveand rnisleadingquotation
fiomthe relevantprovision26w , henthe two islandsin dispute are situatedwelloutsideof this
description.
To sumrnarise, Malaysia'sown description of the Sultanate of Sulu is extremely
3.18
vague:the 1837descriptionby James Huntrelatesto the generalarea, and is quite imprecise
as to the geographiclocationof Sipadan,which is lurnpedtogether with disparateand distant
featuresand is clearly mentioned hereas a source of commoditiesfor Sulu rather than as a
possession of Sulu; the Renne1manuscript referenceis wholly off the point; and the 1875
account of the Bajau attack applies to islandsnoticeablyto the no& of Ligitan and indeed
confms the presenceof the Dutch in the regionnorth of the islands at that time2'. Finally,
the discussionof the vague and imprecise 1870 van Cambéeand Versteeg map and of the
BNBC grant is tendentiousand inconclusiveand merely shows the uncertaintysurrounding
thepre-1891situation.
3.19 In any event, Malaysia'sassertions are categorically rejectedby His Highness Datu
Bungso T. Amilusin,the pretenderto the throneof the Sultanateof Sulu,who madea forma1
declaration on 30 April 1997 in the context of thecurrent dispute, in which he solemnly
declared and acknowledged that:
Tawau residencyconsisting[ofJthe Islandof Sipadanandthe Islandof
"1)
Ligitanbelongsto the Sultanateof Bulungan.
"2) TheIslandof Sipadanandthe Islandof Ligitan,wereneverhavebeena
partofthe Sultanateof Sulu.
"3) The Letter of Grant of 22ndof January, 1878 and the Letter of
Confmnation of 22ndof April, 1903,signed by His Highness the late Sultan
Jamalul Adzam and the late SultanJamalulKiramAlhaj, did not include the
25 SeeIM,Vol.2,Annex 17.
26 SeeMM,para. 5.11.
27 Seealsopara3.67,below. Islandof Sipadanandthe Islandof Ligitanas thosetwo Island[s]belongto the
Sultanateof ~ulun~an"~'.
3.20 Indonesiarecognisesthat the islands in questionwere certainly not res nulliuswhen
Borneowas colonised by The Netherlands and Great Britain. As Indonesia hasdemonstrated
in its ~emorial~~and as is evidencedbythe solemndeclarationof the currentpretenderto the
Sultanateof Sulu referred to above, the islands fell under the sovereignty of the Sultan of
Boeloengan. At most, even if some confusionpersisted andeven if, in view of the special
characteristicsof the local rulers'relationship to their territorial possessions, onewere to
consider the situationprior to 1891as somewhatill-defined, any uncertaintywas removed
with theconclusionofthe 1891Convention.
3.21 Moreover, anyuncertaintiesthat didexisttendedto confhm that Sipadanand Ligitan
lay beyondthe limitsofthe possessionsof the Sultan of Sulu. Thus, it seemsthat theSultan of
Sulu acquired "legaltitle" (admittingthe conceptexisted at al1at that time in the relevant
area) over his possessionsin NorthBomeo as a result of a cession grantedby the Sultanof
Brunei in 1704.M.O. Ariff considersthat whathad been ceded bythe Sultanof Suluin 1763
to the East India Companywould havebeenthe land "whichhe had acquiredfiom the Sultan
of Brunei in 1704"~'.Accordingto L. Wright,"[ilndeed,the legitimacyof the Suluclaimto
the territory is in considerabledoubt [...] and onlythe weight of the Sulu tradition supports
the ~lairn"~'.Even thoughit maybe arguedthat the dateof 1704is not entirely reliable,there
can be no doubtthat the Sultanof Sulu's"title" (if any) over North Bomeo derives fiom a
cession fiom the Sultan of ~runei~~.As this cession is said to cover the mainland area
"together with al1the islands which liewithinMe milesfiom the coa~t"~~ , e Sultanof Sulu
28
29 Annex3.
30 IM,paras.4.55-4.72.
M.O. Ariff, The Philippines Claim to Sabah: Zts Historical, Legal and Political Implications,
Singapore, Oxford UniversityPress, p. 5. See also Dalrymple,A., A Full and Clear Proof that the
Spaniards Can HaveNo ClaimtoBalambangan,London, 1774,p. 31,citedby L. Wright,TheOrigins
ofNorthBorneo,HongKongUniversityPress, 1970,reprinted1988,atp. 35fh.22.
31 Zbid.,p. 35. L. Wrightalso notesthatin themid 1"most of [the localcbiefsinthenorthern partof
Brunei] consideredthemselvesindependent and wersorecognizedlater on whenthe BritishNorth
BomeoCompany commencedbuyingtheseenclavesand grantinpensionsto thruler sbi,.p.39.
32 See,for instance, "TheCase of NorthBomeo",CO 10301536, . 1,whichindicates 1850as thedate of
the cession See alsoKo SwaSik ,AsianTerritorialDisputes,withSpecialReferenceto theIslands of
Sipadan and Ligitan: Succession to Dutch and British TitleT.D.iGill and W.P. Heere (ed),
Reflectionson Principles and Practice of Znternation-lEssays in Honour of Leo J. Bouchez,
Nijhoff, The Hague, Boston, London, 2000,p. 116. The author dates the cessionat 1704, while
recognipng that there isuncertainty inthisrespect.However,in his very detailedstudyof the cession,
B.K. Shortgives 1704asthemostlikelydateforthe cession, see"Bnmei,Sulu andSabah.an Analysis
ofRivalClaims",BruneiMuseumJournal, Vol.1,No. 1,1969,pp. 133-134,Annex4.
33 See"TheCase of North Bomeo",op.cit.,p. 2.cannot have acquired title over Sipadan and Ligitan fiom the Brunei cession, and neither
island fellunderhis territorialjurisdiction. This conclusionhas been implicitlyconfirmedby
ProfessorsA.B. Lapian et N. Kanifurni, when they write that Sitang-kaiMau was "a tiny
island situated in the southwesternend of the Sulu Ar~hi~ela~o"~~. As this island,
representingthe south-westernend of the Sulu Archipelago,is situated wellto the east of
~i~itan~',it would appearthat neither Sipadan nor Ligitan could have formed part of the
Sultanof Sulu's possessions.
3.22 A Mer documentis revealinginthis respect.In an articlefirst publishedin theJava
Bode in February 1882and republishedin the SingaporeStraits Timesof 9 February 1882,
where it was reproducedas an enclosureto a letterfiom Sir Rutherford Alcock,Chairmanof
the North Bomeo Company to Earl Granville, it was reported that when the Assistant
Residentof Cotie "visitedthe districtsbeyondthe fiontier as it then stood,and inquiredof the
inhabitantswhetherthey owed allegianceto Bulungan orSulu",not onlythe inhabitantsofthe
districtsup to the SibukoRiver, but also those having emigratedfiom the north of the river
"declaredthat when they dwelt intheirprevious Settlementbeyondthat river they considered
themselvesas subjectsof ~ulon~an"~~.Sincethe mainiandcoastfell underthe sovereigntyof
the Sultan of Boeloengan,it follows that the islandsof Sipadan and Ligitan, lying off this
coast, would likewisefallunderthe Sultanof Boeloengan'ssovereignty.
Section2. Malaysia's Argument Basedon the Presenceof the BajauLaut in
the DisputedArea
3.23 Malaysiasimilarlyplaces great emphasison the relationshipthat existedbetweenthe
Sultanof Suluandthe Bajau Laut,whose presenceinthe disputed area allegedlyproves Sulu
sovereigntyoverLigitan and Sipadan.
3.24 At no point in its Memorialdoes Malaysiaspecificallyundertake a factual and legal
discussionregardingthe presenceof the Bajau Lauton the north-easterncoast of Borneoand
on the neighbouring islands. Nevertheless, Malaysia tries to make extensive use of this
alleged presence, especially in Chapters3, 5 and 6 of its Memorial. In this regard, two
distinctargumentscanbe discemed:
34
"Researchon BajauCommunities :MaritimePeople inSoutheastAsianAsian Research Trends:A
35 HumanitiesandSocialScienceReview,No. 6, 1996,p.5atAnnex 5.
36 Ibid m.apson p.47. SeealsoMap3.1reproducedfoiiowingp. 31.
Annex 6. (a) that the Bajau Laut allegedlywere atthe heart of the creationof a sort of self-
containedsetof islands,includingLigitan andSipadan;and
(b) that the Bajau wereallegedly subjectsof the Sultanof Sulu before becoming
subjectto British administration,whilstthey neverhad any ties withthe Dutch
authorities.
3.25 Thesetwo argumentsareinseparablein the sensethat it is only if one can speakof a
"Bajau Laut State" or "entity"which includedthe disputed islands and only if this State or
entity was under the sovereijpty of the Sultanof Sulu, and subsequentlyGreat Britain,that
the existence of an original Malaysiantitle over Ligitan and Sipadan inherited fiom its
predecessorscan be accepted. However,these two argumentsdo not stand up to scrutiny
eitherindividuallyor collectively.
A. A "BajauLaut"Entity ComprisingLigitanandSipadan?
3.26 The essential nature of the BajauLaut is the tribe'smaritime nomadism3',which is
indeed recognised by Malaysia whenit describes the Bajau Laut as "Sea l s si es"^^.
Consequently, Malaysia'suse of these Bajau settlements, which bytheir very nature were
temporary and shifting,in orderto establishthe existenceof anyterritorial title, ispeculiar39.
3.27 This is al1the more so sinceit is widely acknowledgedthat the Bajau Laut'spresence
stretchedover a verywide geographical zone. According to Clifford Satherfor exarnple:
37 The BajauLaut shouldnot beconfusedwith the BajauDarat, a land-basedtribe. See Sather,C., The
BajauLaut. Adaptation,History, and Fate in a MaritimeFishingSociety ofSouth-Eastern Sabah,
Oxford University Press,1997,p."'BajauLaut'mayalso be applied,not simplyto boatnomadsand
former nomads,but tol1coastal-dwelling'Bajau', as opto thosewholive inlandfkomthe sea for
whomthe Malaylabel 'BajauDarat',literally'inlandBajau',is sometimesused(Asmah, 1980). In this
as "sea people". They are also sometimes called BajauSamal(See Piper,M., "Settlementson Eight
38 SempornaIslands",SabahSocietyJournal,VolW (4),1984,pp. 305and317).
39 MM,para.3.7;seealsopara.3.45,below.
Seepara.3.47,below fora discussionof theWesternSaharacainthisregard. "the BajauLaut [...] lacked a single focus of settlement. Instead theywere
scatteredin smallenclavesthroughoutthe entire SuluArchipelago,and beyond
aswe~P',
an assertion whichhe con£îrmedovertwentyyearslater,by emphasisingthat:
"the nomadic BajauLaut [. ..], beinghighly mobile,were scatteredover much
ofthe Suluzone andbeyondW4'.
3.28 This zone not only covers the Sulu archipelago, but also the Philippines in their
presentform,Johore, Singapore,Celebes andthe whole ofthe eastem coastof Kalimantan,as
is confirmedin a recentstudyby Clifford Sather:
"the BajauLaut,the largest and mostwidelydispersedof these groups, [were]
living in the Sulu Archipelagoof the Philippines, easternBomeo, Sulawesi,
andthe islandsof eastem Indone~ia"~~.
Moreprecisely,CliffordSathernotes:
"If the identification of Dinawan is correct, Dewall's accountsuggests that
during the early nineteenth century,Sempoma may well have served as a
rendezvous and staging point fkom which the Bajau Laut fleets sailed
southwardinto Indonesian waters. This would corroborate local Bajau Laut
oral traditionwhich points to regular contacts in the ast between Sempoma
and BajauLautsettlementsinthe Straitsof~acassar"~ ,
andthat:
"In eastem hdonesia, the largest numbers of Sama-Bajau are found in the
smaller islandsand coastal districtsof Sulawesi [..]. Elsewhere, settlements
are reportedly presentnear Balikpapanin East Kalimantan,on Maratua, Pulau
Laut,and Kakaban,and inthe Balabalanganislandsoffthe easternKalimantan
coast [*]"45.
40 Sather,C., "Sulu'sPoliticalJurisdovertheBajauLaut",in SatherC.,(ed.), "Traditioltatesof
Bomeo and the SouthemPhilippines",Bomeo ResearchBulletin,Vol. 3, No. 2, December1971,
BomeoResearchCouncil,pp.58-62,atp.59. Emphasisadded.
41 Sather,C., TheBajauLaut. Adaptation,History, andFate in a Maritime FishingSociety of South-
EasternSabah,op.cit.,p.40. Emphasis added.
42 Ibid.,p.321.
43 Ibid.,p. 30.
44 Darmansjah,A.D.H. and Noor, B., Bahasa Bajau,Jakarta:hisat Pembinaan dan Pengembangan,
DepartmentPendidikandanKebudayaan,1979,pp. 7-10; Sather,C., "Bajau"inLevinson,D., (ed.),
Encyclopediaof WorZCultures,Vol.5,Emt and Southeast sia,G.K.Hall, Boston,1993,p.30.
45 SatherC., The Bajau Laut Adaptation,History and Fate in a Maritime FishingSociety of South-
EasternSabah, op.cit., 4. SeealsothemapatAnnex 7 whichshowsthatthe islandsof Maratuand
ofKakabanaresituatedveryfartothesouthof SipadanandLigitan.3.29 This presenceof the Bajau Laut on the eastem coast of Borneo is coupled, moreover,
with apresence onthe western~oast~~.
3.30 Traces oftheir activitiesin thesouthern-mostsectionofthe disputed area canbe found
dating backto the 18thcentmy. J.F.Warrenthusnotedthat:
"The reefs, islets, and bays ofthe southeastcoast of Bomeo have longbeen
places of rendezvous and encampment for the SamalBajau Laut. As early as
1773, Forrestencountered nomadic Samalfishermen alongthe southem edge
ofthe zonew4'.
3.31 Studiesof the mythicalorigins of the Bajau Laut confirmthis, in that theyare based
on the beliefthat the Bajau originated fiom Johore. This mythology seems to correspond
very muchwith the realityof the situation,since it is agreed upon bythe various BajauLaut
populations48.Accordingto A.B. Lapian and K. Nagatsu,their research intoBajau legends
permittedthemto concludethat:
"There are [...] good reasons to sug est that in former times the Bajau
occupiedamuchwiderareathantoday" H9.
Thispresencehad, moreover,beennoted by the Dutch andisrecordedin writings dating fiom
1682of RobertusPadbrugge,whowas theDutchEastIndiaCompany Governorof Malukuin
the 17' cenW0, and in the later writings fiom 1839of Vosmaer, a Dutch traders1. This
familiarity of the Dutch with the Bajau Laut dating as far back as the 18' century is
confïrmedbythe use oftheterm "Bajau"inDutchethnographicliteraturefiomthisperiod52.
- --
46 See, for example, Tregonning,K.G., A History of Modem Sabah (North Borneo1881-1963),
Universityof Malaysia Pre, 967,p.43.
47 Warren J.F.,TheSulu Zone1768-1898, SingaporeUniversity Press, 1p.69.
48 See Sather,C., TheBajauLaut. Adaptation,HistoryandFate in aMaritime Fishing Societyof South-
Eastern Sabah, op.ci?.,p. 17,andgenerallypp. 17-20. See Evans I.H.N., "NotesontheBajaus
and ûtherCoastalTribesof NorthBomeo",Journal of theMalayan Branch ofthe Royal Asiatic
49 Society,Vol. 25,No. 158, 1952,p.49.
Lapian,A.B. andNagatsu,K., "ResearchonBajauCommunities: MaritimePeoplein SoutheastAsia",
AsianResearchTrendF :A HumanitiesandSocialScienceReview,No. 6, 1996,pp.43- 70,atp.49;see
alsopp.46-47, andinparticulaMap1 atp. 47, whichconfinnsthepresenceof theBajauLautin the
50 south-eastof Bomeo,AM~X5.
Ibid.p.50.
51 Ibid.,p. 52.
52 See Sather,C.,TheBajauLaut. Adaptation, History aFate in aMaritime Fishing SociofSouth-
Eastern Sabah,op.i?.,pp.6-8.3.32 Furthemore, the Dutch familiarity with the Bajau Laut sometimes resultedin closer
links being forged. For example, in the writings of M. Piper, there are descriptionsof the
assistancethatthe Bajau Laut gaveto the Dutchauthorities inthe gatheringof information:
"Theywere reportedoff easternBomeo in 1779by Capt. T. Forrest [')] who
commented :'Thesepeople (Bajaus) are very useful to the Dutch East India
Co., in carrying intelligence speedily fiom place to place, and giving
informationof whateverhappens"'54.
3.33 Furtherjourneys, otherthanthose described in the originalmythsS5,subsequentlytook
place regularly:
"Untilthe 1920s,the SempomaSamaDilaut, who werethen still boat-living,
regularly sailedsouthward throughthe Straitsof Makassarto visitrelatedSarna
Dilaut communitiesalongthe eastem Coastof Kalimantan. From here, a few
sailedonto southemSulawe~i"~~.
3.34 Thesejourneys gaveconcrete expressionto the idea ofthe BajauLaut belongingto a
common "family". In fact,atthe startof the century:
"the Sempoma Bajau Laut continue[d] to regard those living in East
Kalimantan as, belonging like themselves, to a larger Sama Dilaut
population"s7.
3.35 Far fiom being occasional,îhesejourneys were consideredas normal. Accordingto
CliffordSather :
"In the past, the Bajau Laut moved easiZy between Sabah, the southem
Philippines,eastemKalimantan, and ~ulawesi"~~.
ThisauthorMer clarifies:
"Itwas not uncommonat the time for familiesto sail 48 kilometresto the east
and southeast of Bangau-Bangau,and some 24-32 kilometres to the north,
south,andwesF9.
53 Fn.10referstoCapt.T.Forrest:VoyagetoNewGuineaandtheMaluccasfiomBalambangan.1774 -
1776pub.1779
54 Piper,M.,"SettlementsnEightSernpoma islands", abahSocietyJournaVn (4)p.3 18.
55 Seepara.3.31,above.
56 Sather,C., TheBajauLaut. Adaptation,Histov and Fate in a MaritimeFishingSociey of South-
Eastern Sabahop.cri,p.87. Emphasis added.
57 Zbid.
Zbid., . 87. Emphasisadded.
59 Zbid., . 105.3.36 Indeed, it would appear thatthe emergenceof European colonisationin the area had
the effectof increasingthese migrations. A reviewof the worksof M. Yoshihikoreveals, for
example,that :
"as a consequence of European colonization of insular Southeast Asia,
migrating activities of the Bajau became more active, in order to avoid
c~lonization"~~.
3.37 The specialcaseofthe Baligninitribe,whowere a subgroupof the BajauLaut, is also
enlighteningin this regard. W.B. Pryer, in his study of 'Natives ofBritish North Borneo",
remarksthatthesepeople:
"used, as professional kidnappers,to harry the seas fiom Macassar, Batavia,
and Singapore onthe southto ManilaonthenorthW6'.
3.38 For T. Harrisson, farfiom being anecdotal,the wide-spreadmaritimepresenceof the
Bajau Laut,had significantconsequencesfortheregionconcerned:
"In the present writers'[sic] reading of Bornean history and prehistory, the
Bajaus - using the term broadly and withoutpedantry - have played a key
contact rolein the circulationnotonlyof theisland culturesbut of inter-human
relationsthroughoutthe region"62.
3.39 Although they were scattered in numerous groups, there is no doubt that the Bajau
Laut constitutedan importantgroupon the easterncoast of the Sempornadistrict, the subject
ofthe studywhichCliffordSather has devotedto them. Butthe legalimportanceofthis study
forthe present case should notbe over-estimated. As its title indicates, it relates exclusively
to the Semporna region,situatedin Sabah. Moreover,this is a comrnonfeatureof mostofthe
studiesdedicatedto this people. ProfessorLapianthusobservedin a recent studythat during
a 1995internationalconferenceonthe SamalBajau:
"the area coveredbythepaperswasmoreextensivethan everbefore. A lotof
papers dealtwith Sama-Bajaucommunitiesin Sulawesiandthe northwestem
coastof Sabah,in additionto thosein SuluandnortheastemSabah".
60
LapianA, .B.andNagatsu ,.,"Researc hnBajau Cornmunitie s:aritime PeopileSoutheastsia",
61 op. citp.58atAnnex5.
62 Pryer,W.B.,"On theNativesofBritisNorthBomeo" ,6J Roy. Anthrop.mt.,1887p,.230.
Hanisson T,., "ThBajaus:Theirûriginand WideImportance ",bahSocietyJournal VI(l)p. 39
atAnnex8.He concludedfiom this that researchon the BajauLaut was far fiom exhausted,and this led
himto drawup a list of new studiesto be ~udertalcen~~A . quickreview of this list is enough
to showthat: (i) the presenceof the BajauLaut is not confinedto the eastem coast of Sabah,
evenif existingstudiesareconfïnedto this area;(ii)therearestillmanygreyareasin the bank
of knowledgeaboutthispeople,whichencouragescaution inthe use of the availablesources.
T.Hanisson has furîhermorecriticisedthe "classical"studiesa~ailable~~.
3.40 The above facts can only lead to the following conclusion: even ifBajau Laut tribe
members fiom Dinawan canied out fishing, including possiblyin the waters surrounding
Ligitanand,perhaps,Sipadan,andcollectedseaturtle eggsonthe latter island:
(a) theywere not alonewithregardto the collectionof sea turtle eggs onSipadan.
This isreferredto, for example,at para.5.28of Malaysia's~emorial~';
(b) theywere not permanentlyestablished(if atall) anywhereotherthanin an area
clearlyto thenorthofthe disputedislands,sincethe southernmostlimitoftheir
settlement was the island of Dinawan. This is confïrmed by Annex 88 of
Malaysia's ~emorial~~,in which the following description of the "Bajau
country" is given:
"TheBajau countrymay be saidto lie withina square formed byLatitudes 4"
and 5" North and Longitudes 118" and 119"East. [. ..] the most easterlyand
southerly boundaryofthe Bajau countryis the islandof Danawan[. ..lu
Indonesia certainly does not challengethe fact that Bajau Laut were present in the region.
Nonetheless,neither fishingnor the collectionof turtle eggs by a fiercely independent and
nomadic groupofpeoplecanin anywaybe seenas a displayof territorialsovereignty6'.
63 Lapian,AB., andNagatsyK.,"Research onBajauCommunitiesM : aritimePeoplein SoutheastAsia",
op.cit.,p. 59atAnnex5.
64 SeeHarrisson, ., "TheBajaus:TheirOnginsandWideImportance" S,abahSocietyJournal,VI(l), in
particuipp.38-39 atAnnex8.
65 Thepassagecitedin thisparagraphshowsthatother BajauLautthanthoseresidingon the islandof
Dinawancollectedtheseeggs. Seealsopar7.28,below.
66
BriîisNorthBorneo Herald ,February1903 ,p.31-33.
67 Seeparas.7.14-7.22,below. B. The Supposedly Exclusive Links between the Baja Luaut
and the Sultan of Sulu, the BNBC and the British
Administration
3.41 Notwithstanding the above analysis, which showsthat the Bajau Laut were widely
dispersed inthe region,it is importantto notethat Malaysiahas not establishedthatthe Bajau
Laut, in their entirety,pledged allegianceto the Sultanof Sulu or to anybody else. To the
contrary,it appearsthat they were an uncontrollable people, whomaintainedcommercialties
not only with the Sultan of Sulu, the BNBC andthe British administration in the northof
Bomeo but also with the Sultansof Berou and Boeloengan andthe Dutch administrationin
the south,who collaborated withtheBritish in aconcertedeffortto suppresspiracy,whichthe
Bajau had tumed into a specialityoftheirs.
3.42 Withoutventuringto Sayso categorically,Malaysiaattemptsto createan "atmospheric
picture"by presenting theBajauLautas an ethnicgroupsubjectto the Sultanof Sulu. Thus,
Malaysiastates:
"Thelocal leaders,whowere ofkenSulu,were appointedb the Sultanof Sulu
andgivensuchtitlesasPanglima,Datu,Temengong,etc. i16,
"This control resulted fiom the allegiance of the local people and the
appointmentoftheirlocalchiefsbythe
"The Sultan of Sulu'sauthorityover north-eastemBomeo was recognizedby
otherStatesandisevidenced"bymany doc~ments'~.
3.43 Apartfiom the fact thatalmostal1ofthese generalisedassertionsarenot supported by
any convincing proof, it would not seem possibleto inferfiom them anythingrelatingto the
issue of territorial sovereigntyover the specificislands now in dispute. For example, it is
possiblethat the Sultanof Suluhad appointed atcertaintimes (and in orderfor ittohave any
probative value, this must have occurred before 1878,or, in any event, before 1891)the
leadersof certain groupsof Bajau Laut. However, onthe one hand,this is not attestedto by
68 MM, para3.7.
69 Ibid., pa5.7.
'O Ibid.,para.5.8.any contemporaneous evidencein Malaysia's~emorial~l and, on the other hand, there is
nothingto prove that anysuch appointmentsconcemed any groups settled in the irnmediate
vicinity of Ligitan orSipadan - the disputed islands themselves being uninhabited. In the
same way, the reasoningcontainedin para. 5.8 of Malaysia'sMemorial istoo generalto be
relevantto the islandsof sipadan andLigitan,al1the moreso sincethe logicused seemsto be
foundedon a questionable a contrario argument.
3.44 It is al1the more incongruousfor Malaysiato try to establishthe existenceof any sort
of territoriallink between the Sultan of Sulu and the disputed islands via the supposed
sovereignty (or suzerainty) of the Sultan over the Bajau Laut, since the latter not only
travelled over extensivetenitories wheretheywere scatteredn, butthey werecharacterisedby
their nomadicnature and bythe factthat they were resistantto any form of politicalor other
typeof control.
3.45 The term "gypsies of the seas" which is often attributed to the Bajau ~aut'~is
illustrative:like the gypsiesof Europe (andunlike the Bajau Darat, another branch of the
Bajau),they did not settle ina well-definedtenitory but rather leda nomadic existence (on
the seas)over vast areaswhich covereâ,as Indonesiahas shownab~ve~~m , any Statesin the
region. Theresultofthiswasthat:
"the sea nomads,distinguishthemselvesnotby the name of a particular island
group [...] but byidentificationwith the sea itself,as 'sea people'(a'a dilaut).
As a consequence, the nomadicSamapossessedthe most readilytransportable
identity of all, one capable of beingcarried in the past virtually anywhere
witb the entire vast archipelagic world inhabited by the Sama-Bajau
~~eakers''~*.
71 Malaysiaproducessome anidavits(see, for examplMM, para.6.7) wherethe authorsonly report
informatioashearsay.
R Seeparas.3.26 et seq.,above.
73 Sather,C., me B4jau Laut. Adaptation,History and Fate in a Maritime Fishing Society of South-
EasternSabah,op. cit.,p. 26, andSopher, TheSeaNomacis:A StudyBasedon theLiteratureof the
Maritime Boat Peopleof Southeastsia, Memoir of the NationalMuseum, No. 5, Singapore, 1965;
Pelras,C., "Notes sur quelquespopulations aquatide 1'ArchipelNusantarien",Archipel, No. 3,
1972,pp. 133-168and Reynolds,J.K. Towar& an Account of Sulu and its Borneo Dependenci-s
1700-1878,thesis,MasteroArt sHistory),Universityof Wisconsin,1970,pp.76-77.
74 Paras3.26-3.39,above.
75 Sather,C., The BajauLaut. Adaptation,Hktory and Fate in a Maritime Fishing Society of South-
EasternSabah,op.cit.,p. 36.3.46 This nomadic natureof the BajauLauthad an impact onthe way in whichthey were
perceived by other land-based peoples. Thus, the nomadic Tausug tribe of the Bajau Laut
was perceived as being "disconnected1f'rom theSuiuSuitanate:
"Without a territorial base of their own, they were perceived by their
neighboursaslivingoutside,and so onlytangentiallycomected to, the system
of persona1coalitions that came to define political and economic relationsin
Sulu. Reflecting this status of social and political exclusion, sea-nomadic
communitieswere identifiedby outsidersby pejorative terms,such aspala'au
or luwa'an,meaning,literally,'that whichis spator vomitedout'[ ] 76 117.
3.47 Even ifthe presenceof nomadsover a territorialareahas, without doubt, certainlegal
effects and excludes the possibility of the territory in question being considered terra
nulli~s~~s,uch a situation does not lend itself to the establishmentof a territorial title. In
reality, the situation bears similaritiesto some aspects of the WesternSahara case that the
Courttook an interestin:there mayhavebeenties of alliancebetweenthe Sultanof Suluand
some, but only some, Bajau Laut groups79(even though Malaysia's Mernorial does not
establish this);these ties, which are ofa persona1 nature,are not sufficientin any event to
establish territorial sovereigntyin the sense in which the expression is understood in
contemporaryinternational law80.
3.48 Further,asthe ArbitralTribunalnoted inthe firststageoftheEritreal Yemencase:
"Therecanbe no doubt that the conceptof historicaltitle has specialresonance
in situations that may exist even in the contemporary world, such as
determining the sovereignty over nomadic lands occupied during tirne
immemorial by given tribes who owed their allegiance to the ruler who
extended his socio-political power over that geographic area. A different
situation existswith regardto uninhabitedislandswhich are notclaimedto be
fallingwithinthe lirnitsofhistoriewatersN8'.
3.49 Furthermore,and heretoo, the similaritieswith the WesternSahara case are striking,
each BajauLautgroupwashighlyautonomous. As CliffordSatherobserved:
76 Keifer,T.M., "The TausugPolity and Sultanateof Sulu: A SegmentaryState in the Southeni
Philippines,uluStudies,No. 1, 1972,p. 22; Sather,C., "SeaandShorePeople:EthnicityandEthnic
InteractioinSoutheastemSabah"C, ontributionstoSoutheastAsianEthnography,1984,pp.12-13.
" Sather,C., TheBajauLaut. Adaptation,History and Fate in a MaritimeFishingSociety of South-
Eastern Sabah,op.cit.,p. 16. Emphasis added.
78 WesternSahara,AdvisoryOpinion,1.C.J Report1975, p12at p.39,para.81.
79 Zbid.,atp.49,para.107andp. 57,para.129.
80 SeeIM,paras.4.3-4.18.
81 Awardof9 October1998, TerritorialSovereigntyandScopeof theDispute,p. 35 atp. 123. "Bajausociety [was] geographicallydispersed [and]highly fiagmented,being
divided into a multitudeof distinct subgroups, al1 locally named and most
geographically interspersed with one another and with non-Sama-speaking
peoples as well [. ..] within the entire vast archipelagic world inhabited by
Sama-Bajauspeakers"82.
3.50 Thesameistrue in respectofthe BajauLautof Sempoma:
"The Bajau population of Sempoma,as of the Sulu Archipelagobeyond, is
fiagmented into a number of named subgroups, each associated with a
particular islandhomeland,placeof origin,or areaof local~ettlernent"~~.
3.51 The logical and inevitableconsequence ofthis fragmentation was the absenceof any
politicalunityovertheBajau Laut,as CliffordSatheremphasises:
"TheBajau haveneverconstitutedaunijiedpolitical entityhowever,andprior
to European penetration local comrnunities in Sabah and the southem
Philippineswere under the tenuousjurisdiction of the Sulu Sultanate,and in
eastem Indonesia, Buginese, Makassarese, and lessep rolitical units, most of
them dominatedbynon-Bajaurulersortheir localpoliticalagents"".
3.52 Thisdoesnot excludethe formation ofcertaingroupings, butthey cannotbe described
as "political". CliffordSathernotes in effectthat:
"Both at sea andin his home village, the Bajau Laut faces choice in his
permanent group affiliations and in forrning more ephemeral associations
amonghis kindredorthoserelated by localties or convergentinterestsW8'.
3.53 Without doubt there probably existed links - primarily of a linguistic natureg6 -
between the different Bajau Laut populations, betweenthe Bajau andthe local land-based
populations,and betweenthe Bajau andthe authoritiesupon whom they were on occasion
dependent. There is no doubt, for example, that in a temtory under the Sulu Sultanate's
authoritythe BajauLautrnaintainedrelations with the Sultanof Sulu,which could, in certain
cases,be relatively close,and even include allegiance. For example,it would not havebeen
82
SaîherC.,The Bajau Laut. Adaptation, History and Fate in a Maritime Fishing Societyof South-
83 Eastern Sabah,op. cit., p.36.
84 Ibid., p.30.
223 atAnnex 9. Emphasisadded.T.King(ed.), WorldWithin:TheEthnicGroups ofBorneo,pp.222-
85 Ibid.,p. 244.
86 See Sather,C, TheBajau Laut. Adaptation,Histos, and Fate in a MaritimeFishingSociety ofSouth-
EasternSabah, op.cit., pp.8-12.unusual for the Sultanof Suluto have appointed Bajauchiefs on the island of Dinawan, an
island which wassituatedonthe penphery ofthe Suluempire8' - however, Malaysiaprovides
no concreteevidencethatthiswasthe case.
3.54 Similarly, there is nothing surprishg about the fact that in the Explanatory
Memorandum to the Dutch Parliament which accompanied the 1891 Convention, the
ministersin questionpointed outthat:
"the Badjans pajau], who live on the islands off the north-east coast of
Borneo, which belongto the Sultanate of Sulu, still regularly gather forest
produce in the disputed area without taking the least notice of the Sultan of
~ulun~an"~~.
Contraryto Malaysia'sinterpretationof this ~emorandum~~,which does not specifj which
islands are referred to, there isno basisfor the assertionthatl1the islandswhere the Bajau
Lauthad settlementswere includedwithinthe Sultanof Sulu'spossessions.
3.55 In fact, the truth is that only when the islandin question belonged to the Sultan of
Sulu didthe Bajau considerthemselveslinkedto him, which is quite a differentmatter.The
point beingmade in the ExplanatoryMemorandumis preciselythat the Bajau linkedto the
Sultanof Suluignored - as wastypicalof Bajau behaviourgenerally -the rightsofthe Sultan
of Boeloengan on the parts of the mainland belonging to him: those rights nevertheless
existed, as was irnplicitlyaccepted by the recognitionof Boeloengantransitional rights to
collectjungle produce in ArticleVI1of the 1891Convention.Moreover, in this respect, the
Memorandumspecifies that, generally speaking,it is dealing with the border zone between
Boeloengan andSulu,wherethe boundarywasuncertain:
"In view of both this fact and the absence of any document concerningthe
delineationof the boundary betweenthe Suitanatesof Bulungan and Sulu, it
was considered verydifficuitto detenninethe precise extent of the domainof
the ~ulun~an"~.
87
CliffordSatherStatesthat,"theSempomadistric, hichtheislandof Dinawanis partof, is seenas
"lyingattheperipheryof theSuluzone",TheBajauLaut. Adaptation,Histos, andFate inaMaritime
88 FkhingSociewofSouth-EasternSabaho ,p. cit.,p.39.
89 IM,Annex77,Vol.3,p. 124.
90 SeeMM,para.5.8(c),seealsopara.9.11.
IM,Annex77,Vol.3,p. 124.Nor did the Dutch administrationhow the exact extent of ~oeloen~an~~w , hich, it must be
stressedagain,isno surprisesince, asrecalled in a recentstudy:
"The idea of detailed spatial delimitation by way of boundaries being
unfamiliarin the relationsbetweenthe regionalkingdomsand principalitiesof
the tirne, it was unavoidable andunderstandable that competing claims to
authority (or, for thattter, "sovereignty" or "ownership")over laf etracts of
landandtheirspane population werenotuncommonandpersistent" 2.
3.56 Moreover, as shown on Map 3.1 reproducedon the following page, far fiom being
confined to the islands and coasts controlled by the Sultan of Sulu, the Bajau Laut are
dispersed overa vast area including the entire east coast of Borneo, the whole island of
Sulawesi, the coasts of Komodo and Flores down to Roti. Regardless of the extent of
Malaysia's view ofthe Sultanateof Sulu, there cannot be the slightest doubt that it did not
exercise any kind of authority over those areas which are recognised as being under the
exclusive sovereigntyof Indonesia. Indeed,this map showsthe actual settlementsof Bajau
Laut. Moreover,toponym Map3.2 reproducedfollowingMap 3.1 shows a great numberof
places, the names of which include the term "bajau" or "bajo", and reveals that these
settlementsexisted in aremotepast.
3.57 This confirms the fact that, like the ties that united the nomadic tribes of Bilad
Chinguitiandthose of Western Sahara beforethe colonisationof thisterritoryby Spain,these
"were ties which knew no ffontier between the territories and were vital to the very
maintenanceof life inthe region"93.But suchties most certainlydo not sufficeto establish
the existenceof "anytie ofterritorial~overei~ntf"'betweenthetemtories in which the Bajau
Lautwerenomadsandthe Sultanateof Sulu.
3.58 To the contrary, theBajau Laut were resistantto authority in al1its forms, andthis
representedanotheroneoftheir characteristics. Thus, 1.Blackwrites:
"The blue-green watersof the JJ)arvel] bay were dotted with innumerable
islands,and a loosechah of islandsconnectedsouth-easternSabahwith Sulu,
91
92 Ibid.,paras.4.55, etseq.
KOSwanSik,"AsianTenitoridDisputes,withSpecialReferencetothe Islandsof SipandnLigitan:
Successionto Dutcand BritishTitlesinT.D.GillandW.P. Heere (ed.R),jlectionsonPrinciples
andPracticeofInternationl aw- fisays inHonourofLeoJ. Bouchez,Nijhoff,TheHague,Boston,
93 London,2000,p. 116.
WesternSahara,AdvhoryOpinionI.C.JReports,1975,p.12 atp.65,para.152;see dso pp66-67,
94 paras.158-159.
Ibid.,p.68at para.162. makingquiteartificialany politicalboundariesestablishedby the Company or
by the Spanishand the Dutch. Here, the Bajau peoplesremained elusive and
reluctantto acceptanypermanentsubjectionto the Company" (in the 1880s)~~.
Theauthorconcludesthatthe BajauLaut:
"do appearto have shareda characteristicallylimited sense of communityand
loosepoliticalleadershipflg6.
3.59 Indeed,the BajauLautwere describedinthe Handbook oB f ritishNorthBorneo, 1886,
as "atribethe mostdificult to manageintheterritory"".
3.60 Leigh R. Wright has interpretedthis situation as meaning that the Bajau Laut were
exercisingde facto controlovertheconcernedtemtories:
"Although recognizedas sovereign overthe Sulu Archipelagoit is not at al1
certain that the Sulu Sultansheld sovereignty over any partof North Borneo.
What is clear is that theynever helddefacto control there. Until 1878 power
along the coast of Northeast Borneo was in the hands of rapacious pirates,
mainlythe UlanunandBalagninibut includingsome~ulus"~~.
As LeighR. Wrightputs it:
"It is certain that the local chiefs consideredthemselves independentof Sulu
and acted accordingly [y just as the chiefs along the northwest coast
considered themselves independent of Brunei [...] that chaotic conditions
along the coasts and the weaknessof Brunei and Sulu prevented either state
fiom maintaining control overthe area; that rrates were the only effective
powerover largeareasofNorthBomeo [. ..]"'O.
3.61 This resistanceto political integrationappearsto form the very nature of the Bajau
Laut,resultingparticularlyfiomtheirnomadic life. Accordingto J. F.Warren,forexample:
"The Samal Bajau Laut possessed neither a territorial base nor the intemal
political structure necessary to weld localised kindred groups into viable
politicalcommunities [...]. The maritime nomadic fishermen had limited
95 Black, I., A GamblingSvle of Government. TheEvtablishmentof the CharteredCompany'sRule in
Sabah,1878-1915,OxfordUniversityF'ress,1983,p.66.
% Ibid.,pp.21-22.
97 HandbookofBritishNorthBomeo,London,WilliamClowes & SonsLimited,1886,p.21 atAnnex 10.
98 Wright,L.R, "Historil otesontheNorth Bomeo Dispute, ournalofAsiaStudies,Vol.xxv,No.3,
May 1966,p.471,seealsopp.480-481.
99 TreacherW,.H.,"BritishBomeo"inJRASSB N,o.21,Jme 1890,pp.48-55atAnnex 11.
100 Wright,L.R, op.cit.,p.481. Map 3.1
Map1.Sarna-BajaS uettlements Reported inFox1984
Lapian, A.B. and Nagatsu, K., "Researchon Bajau Communities: Maritime People in Southeast Asia",
reprinted from Asian ResearchTrends:Humanities and Social Science Review, N06, 1996, p. 47. scope for interactionwith the majority of the population, and played only a
marginal roleinthe lifeofthe ~one"'~'.
3.62 This opinionis sharedby CliffordSather,whostates:
"In contrastto other Bajau groups,the Bajau Laut lacked an interna1political
structurelinking separatevillages,and each settlement,as we have seen, was
joined directlyto a neighboringshore~ommunity~''~~.
3.63 In any case, it is a recognisedfact that the Bajau Laut not oniy maintainedrelations
with the Sultanof Sulu, the BNBC and the British colonial authorities,as Malaysia goesto
great lengths to showlo3but also, and to the same extent, with Berou, the Sultan of
Boeloengan andthe Dutch aclministrati~n'~.This is especially striking nom two points of
view. First, theBajau Lauttradedwiththe Dutch,and, second,TheNetherlands,in the sarne
way as Great Britain,tried to put an endto the acts of piracy in which the Bajau Laut were
accusedof engagingthroughoutthe region.
3.64 As regards the first point, numerous sources attest to the close and frequent
commercialrelationsbetweenthe Bajau Laut and the coastalregions of Kalimantanand the
Dutch administrative power'05.The document at Annex34 of Malaysia'sMemorial, entitled
"Some ParticularsRelatingto Sulu, in the Archipelagoof FeIicia",by J. Hunt, is relevantin
this respect, sinceit reads at page50:
"Capt. Caiteret mentionshaving seen a hundred sail of them fiom twelve to
twentytons burthenatBonthianunderDutch col or^"'^^.
- - -- - - - -
'O1
'O2 Warren,J.F., TheSuluZone1768-1898,op.ci?.,pp. 68-69.
Sather,C., "Sulu's PoliticalJurisdictionoverthe BajauLaut",in Sather,C., (ed.), "Traditional Statesof
'O3 Bomeoandthe SouthemPhilippines",op.ci?. ,p.61.
SeeMM,paras.6.5,etseq.
104 The sameapplies inparticularto the "Dinawancommunity"which Clifford Sather describes(seepara.
3.40, above). Withoutdwellig on it, the authorpointsout: "Inthe early nineteenthcentury,leadersof
the Dinawan communityare saidto have [thisexpressionshows,at the very least,muchcautionon the
part of this undisputedspecialistof theregion]held a concessiongrant fromthe Sultan of Sulugiving
them exclusiverights to collectand trade in sea-turtleeggs fromnearby SipadanIsland":but he adds
immediately: "In additionto Sulu,its leadershipmaintainedpoliticalconnectionswithBulungan",The
Bajau Laut.Adaptation,HistoryandFate inMaritimeFishingSocietyofSouth-EasternSabah, op.ci?.,
p. 29.
'O5 Given the indomitablecharacter ofthe Bajau Laut (see paras. 3.58 et seq., above), these "close and
frequent relations"ometimesdegeneratedin acts ofhostilityagainstthe Dutch. See, forexample,the
examplesof abductions of Dutchsubjectsmentionedby W.H. Treacherin "BritishBomeo: Sketchesof
Brunai,Sarawak,Labuanand NorthBomeo",op.ci?. ,p. 100atAnnex 11.
106 MM, Annex 34,Vol.3.3.65 Thistrade wasdirectedinparticulartowards:
(a) the birdsnests;it is forthisreasonthat CliffordSatherremarksthat:
"Inthepre-Companyperiod,themajority[ofediblebirds' nests] appear to have
been transhipped by wayof OmadalIsland to Maimbung and Jolo, the chief
market ports of Sulu, and to Bulungan and Berau in East Kalimantan. Being
beyond the sphere of Company control, the Sempoma district became,
followingthe establishmentof Sandakan,a refuge for those who continuedto
profit fiom this traditional procurement economy,including the birds' nest
trade"'
(b) orthe slavetrade;once againaccordingto CliffordSather:
"Slaves were a major trading commodity and moved fiom Sulu through
Omadalto Bulunganin eastem ali iman tan"'^^.
3.66 Malaysia emphasises the struggle led by the British authorities against thepirate
activities of the Bajau~aut"~. It is difficultto deduce fiom these attempts at suppressing
piracy that Great Britain duly derived analleged legal title over the islandswhich are now
claimed by Malaysia. Nonetheless,the British did not have a monopoly overthis policing
activity. As notedby 1.Black:
"TwoBritishnavalvessels hadappearedin the Sulu Sea inApril 1879, Dutch
shipsalsocruisedthe area,and laterinthe yearSpanishwarshipsarri~ed""~.
3.67 It is also worth noting that in 1875-1877a Dutch warship, HNLMS Admiraal van
Kinsbergen, intensivelypatrolled the coast of the Sultanate of Boeloengan because of the
threat of piracy conductedby the Bajau Laut in the region. The ship's logbook containsan
entryon 10June 1876whichrefersto cruisingaroundthe islandof Sipadan,andeven landing
armedsloopson the islandof Mabul (whichshowsthatat the the the Dutch consideredthat
the island belongedto the Sultanof~oeloen~an)" .
107 Sather,C.,TheBajauLaut. Adaptation,HistoryandFateinMaritimeFishingSocietyofSouth-Eastern
Sabah,op. cit.,p. 50.
108 Ibid.,p.45.
'O9 See MM,paras.6.5-6.6.
110 Black,I.,A GamblingStyle of Government. TheEstablishmentof theCharteredCompany'sRule in
Sabah,1878-1915,op.cit.,p.23.
"' Anextractfiomthe ship'logbookis includeinAnnex12.3.68 The presenceof Dutch ships, even northof the 4'10'N parallel, is confirmedby the
Handbook ofBritish NorthBorneo of 1886,whereit isnoted,for example,that :
"the Company, onthe 7' September, 1883,hoistedtheir flag on the southbank
of the Sibuku,while the Dutchhave erectedan obelisk on Batu Tinagat,and
keepa gunboatstationedat the Tawas river"ll2.
TheHandbookspecifiesthat :
"Between Batu Tinagat and the Sibuku River,the southernboundaryof British
North Borneo, is an extensivebay recently surveyedby the Dutch. [..] The
Dutchhavea gunboatstationedat theTawaoRiver,but there areno villagesto
be metwith,nor even boats, SaveoccasionallysomewanderingBajows
engaged in the bêche-de-mef rishery, which is capable of great development,
and onlyawaitsthe settlementofthe boundarydisputewithHolland[. .I""~.
Thiswasalsoconfirmedby W.H. Treacher:
"in September, 1883,in orderto practicallyassertthe Company'sclaims,1,as
their Governor, had a very pleasant trip in a very small steam launch and
stearningat full speed pasttwo Dutch gun-boatsat anchor,landed at the South
bank of the Sibuko,temporarilyhoistedthe North Borneo flag, fired a feu-de-
joie, blazeda tree, and returning,exchangedvisits with the Dutch gun-boats,
and entertainedthe Dutch Controlleur atdinner. Having carefully given the
Commander of one ofthe gun-boatsthe exact bearings of the blazed tree, he
proceeded in hot hasteto the spot, and, 1believe, exterminatedthe said tree.
The Dutch Government complainedof our violated Netherlands temtory, and
matters then resurnedtheir usual course,the Dutch stationat Batu Tinagat,or
rather atthe Tawas River, beingmaintaineduntothis day1'114.
3.69 Sirnilarly,Clifford Sather refersto a report written by a BNBC officia1who visited
Sempornawith Pryer inwhichhe notedthat the inhabitants:
"complainedof being hunteddown by the Dutch vessels of war, as pirates,
althoughthey Saytheyhaveneverbeenguiltyofpira~y""~.
HandbookofBritishNorthBorneo,London,WilliamClowe s SonsLimited 1886,p.20 atAnnex10.
"4 ibid.*.29.
TreacherW,.H.,"BritishBomeo:SketchesoBrunai, arawakLabuanand NorthBomeo" ,p.ci?.,p.
54 atAnnex 11.
Saîher, C., TheBqau Laut. Adaptation,History and Fate in a Maritime FishingSociety of South-
EavternSabah,op. cit.,p.51.3.70 The HNLMS Lynx incident,equally atteststo the control exercisedby the Dutchover
acts of piracy comfnittedby the Bajau Laut after 1891, depending on which side of the
4" 10'N paralleltheyocc~rred"~.
3.71 There is one particularincident inwhichpirateswere pursued by boththe Dutch and
the British authorities acting togetherwhich is of special interest. This incident was
summarisedas follows in theBritishNorthBorneoHeraldof 1May 1892:
"The Government Cruiser Petrel wasdespatchedto Silam on the 7~ April to
captureor punishsomepeoplewhohad raidedTambak[. ..]. They were traced
to Dinawan andas they could not be found [...]. The main body have been
traced to Dutch territo and we are informed that an application for their
rendition isbeing made" 17.
This incidentprovesthe existenceof a sortof task-sharingbetweenthe Britishandthe Dutch
with regardto the suppressionof piracy followingvery precise maritime limits. Moreover,
accordingto a note fkomthe BritishNorthBorneoHeraldin January 1895,the Governorof
BritishNorth Bomeohad suggestedto the Governor-Generalof Netherlands Indiathe "taking
of joint measures against piracy in the waters under their respective jurisdictiinsNorth
~orneo""~.
3.72 The relationsbetweenthe Bajau Laut and the Dutch colonial administrationwere not
only lirnited to the suppressionby the latter of the acts of piracy of the former; certain
exarnplesrevealthe age-oldsubmissionof the BajauLautto the DutchAuthorities. Thus,the
German ethnographervon Dewallmentions ina 1855reportthat eachfamilyof certainBajau
Lautlivingonthe south-westsideofthe islandofPulau Panjang:
"providedthe Sultanof Gunong Teburwith an annual tribute of 12 katis of
tripang and 100 dried fish, for which they received in return cloth and
agriculturalproduce. They bartered for rice in Berau. The Bajau also trade
with the peopleof Berauand Kutai, and withthe inhabitantsof the west coast
"6 SeeIM,ChapterVI,Setion 1.
Il7 MM,Annex83, Vol.4.
118 Annex13. ItmayalsobenotedthatotherincidentsconfirmtheDutchclaimsnorthof the Sibukoriver
before 189:see,forexample,theletterfiomSirAicocktoEarlGranville,dated20 December1883,at
Annex 14 concerningan incidentin 1883 and the letterfiom W.B. Pryerto the Captainof the
Netherlandsvesse1Arjeh,dated4 July 1880,atAnnex15, conceminga similarincidentin 1880. See
also Annex 16 whichreproducesthe &tirnatesfor NetherkmdrIndiafor the FinancialYear 1880,
whichincludesprovisionfacruiserto standwatchoveraNetherlandsflaghoistedatthemouthofthe
TawauRiver. of Sulawesi,whocometo Pulau Panjangto collectseaproducts fiom the area.
In earlier times, boats fiom Sulu came to Pulau Panjang to fight over these
products. Alsopiratesfiom Balangingi(zeeschuimersvan Blahnjiehnjeh)who
harried the Bajaus, so that they movedaway to Tondoniand Toli-Toli,on the
coast of Sulawesi,up until last year[1848],whenthey returnedagainto Pulau
Panjang. Herethey have notbeen disturbedsincethen. They fly a Dutch flag
to show that they have surrendered to the 'Company'and the panggawa
[penggawa]has an openletterfiomthe kingof Gowa, whichhe used as a kind
of passportor recommendation. Abouttwenty Bajau farniliesalso live in the
islands to the south of the Kuranriver (under Tanjung); their leaders areSri-
Bangsawan and~akassah"~ 19.
3.73 The globalpicture which emergesfiom this accountof the facts is the following: the
Bajau Laut, also known as the "seagypsies"(their life-style has largelyremained unchanged
up to the present day), never, as a whole, pledgedallegianceto a specific politicalpower.
Deprived ofa fixedterritorial base, theyscoured the seasof the region,andthe commercialor
other linkswhichthey maintainedwith the territorial sovereignswere dictatedby expediency
and did not implythe existenceof any "tieof territorial sovereignty"in the wordsusedby the
Court in the WesternSahara caseI2O.Afortiori, one cannot deduce fiom these ties the
existenceof anyterritorialtitle belongingto the Sultanof Suluoverthe territories overwhich
the Bajau Lautwere nomads,be that ovcr Pulau Ligitan,PulauSipadanor elsewhere.
Section 3. Conclusion:TheAbsenceofMalaysian"Original"Title
3.74 Indonesiahasconsideredit importantto reply in a fairly detailedmannerto Malaysia's
claims conceming the original temtorial status of the disputed islands as this issue is of
significancein discussingthetwo "strands"fonning part of Malaysia'ssubmissions. On the
one hand, Malaysia,not havingestablishedthat Ligitan and Sipadanwere possessionsof the
Sultanof Sulu, cannotconsequently claimthat it "inherited"the islandsviaone orotherofthe
chainsof alleged title.Onthe other hand,in the absenceof any original title,the allegedacts
of administration in which Malaysia pridesitself are insufficientto establish its sovereignty
overthe islands in question as theydonot fulfilthe criterianecessaryto establishatransferof
sovereignty.
Sather,C., TheBajau Laut.Adaptation,History and Fate in a Maritime Fishing Societyof South-
Eastern Sabah,op.cit.pp.29-30, in whichhe translH. vonDewall,"AanteekeningenOmtrentde
Noordoostkustvan Bomeo" ("Notesconcemingthe north-eastcoast of Borneo"inTQa3chrijïvoor
IndischeTaal-,Land-en Volkenkunde, eeN, 1855.
Seepara.3.57,above.3.75 In essence, Malaysia'sfirst claim consists in arguing that "title to the islands was
acquired by gant of the previous sovereign" (whichis supposedto have originated in the
Sultanof Sulu -which as Indonesiahas shownwas not the case)12'.This first claim is itself
splitintotwo distinctstrands. Onthe one hand, Malaysiaargues that it inheriteditstemtorial
titlehroughthe BNBCandthen Great Britain;onthe otherhand,Malaysiaalso contendsthat
it inherited itstitle via Spain,theUnited Statesandfinallyby Great Britainthroughthe 1930
Treaty between Great Britain andthe United States. Indonesiahas shown atpara. 3.5 that
these two claims are fundamentally incompatible andthat they cannot be presented
simultaneously.
3.76 In tmth, both claims are vitiated by a fundamental flaw: fiom the moment that
Malaysia failsto establishthatthe Sultan ofSuluheldterritorialtitle overLigitanand Sipadan
- a titlewhichthe currentpretenderto the Sultanateof Sulualsofonnally deniesthe existence
oe2* -title could not have been passed on to Malaysia by any rneans: nemoplus juris
transferrepotest quamhabet'23.
3.77 As Max Huber,the arbitratorintheIsland ofPalmas case, clearly explained:
"Titlesof acquisitionof territorial sovereigntyinresent-dayinternationallaw
[..] like cession, presuppose that theceding and the cessionaryPowers or at
least one of them, have the faculty of effectively disposing of the ceding
territ~ry"~~~.
3.78 Huber's Award continued:
"The title alleged by the United States of America as constituting the
immediate foundation of its claim is that of cession, brought about by the
Treatyof Paris,which cession transfened al1rightsof sovereigntywhich Spain
may have possessedin the regionindicatedin ArticleIII of the said Treatyand
12' See MM, para.5.1.
lZ2 Seepara.3.19, above.
123 Thismaximis consideredto be a generallegalprincipleinaccordancewithArticle38, paral(c)h
of the Statute of the InternationalCourt of Justice and has been largely supported in
authoritative/academicorks(see,forexamplSu RobertJenningandSu ArthurWatts,Oppenheim's
InternationalLaw,grned., Longman,London,Vol1,p.682;Malcolm Shaw(citingthe 1928Award),
InternationalLaw,4' ed., 1997, p. 339; see also the commentaryby the ILCof draftArticle11 on
124 Successionof StatesinRespectofTreaties,ILCYearbook,1974,Vol.II,p.210.
Awardof 4 Apnl 1926,M, Vol.II,p.829atp. 839. thereforealsothoseconcemingthe Islandof Palmas (or Miangas). It is evident
that Spaincouldnot transfermorerightsthan sheherselfpossessed"'25.
"The clairn of the United Statesto sovereignty over the Islandof Palmas (or
Miangas)is derivedfiom Spainby way ofcession under the Treaty of Paris.
The latter Treaty,oughit comprisesthe island in disputewithinthe lirnitsof
cession, and in spite of the absence of any reserves or protest by the
Netherlands asto these limits, has not created in favour of the United States
anytitle of sovereigntychaswasnot alreadyvestedin ~~ain"'~~.
3.79 The samesituationexists in thepresent caseIn otherwords:
(a) the Sultanof Sulucould nottransfermore rightsthan he himselfpossessed,be
that throughthe cessionrantedto the BNBCor through the 1878Treatywith
Spain;
(b) this is al1the moretrue giventhat, contraryto the factsin the Island of Palmas
case, neither the cession northe Treaty with Spaincomprised theislands in
disputewithin their geographic sphere. Indeed the first instrumentexpressly
excludedthemas the limit stipulatedasninenautical milesfiom the coast12',
whichconfïrmsthe declarationofthe currentpretenderto the throneof Sulu;
(c) the above remains true,in spite of the absenceof any reserves or protests by
The Netherlands, as thereis no evidence that the Dutchwere made aware of
the cessionat theimeof its conclusion;
(d) in any case,the Dutch Governmenthad no reasonto protest against a cession
which did notbearonthe islandsin dispute.
3.80 The Sultanof Sulu thereforecouldnot have cededanysovereigntitle to islands over
whichhe didnot exercise any exclusivesovereignty,eitherto the futureBNBC(whoreceived
theirgrantfiom Messrs. Dent and Overbeck)o ,rto Spain.
126 Ibidp.842.
'" Ibidp.,866.
SeeMM, Annex9,Vol.2.3.81 Malaysia'sentire case rests on the assumptionthat the Sultanof Sulu had a title over
the islands in disputebefore the colonisationby Great Britain. This assumption is clearly
erroneous. Not onlyhas Indonesia shownthatthe Sultanof Sulu'spossessionsdidnot extend
to the islands of Sipadan and Ligitan, but there is a strong presumption in supportof
Indonesia's argument that the Sultanof~oeloen~an'~* possessedexclusiveterritorialtitle over
the i~lands'~~as shown,in particular,by the 1850 and 1878 Contractsof ~assala~e'~~e ,ven
thoughthe pictureisnot entirelyclear.
3.82 This situation is not particularly surprising, given the significant uncertainties
prevalentat the time inthispart ofthe worldoverthe exact extentof the respectivetenitories
of different local rulers, whose notions regardingterritorial ties did not reflect modem
accepted noms of internationallaw,asIndonesiahas explainedin its~ernorial'~'.
3.83 It was precisely the border areabetweenBoeloengan andSulu that was the subjectof
the territorial disputebetween GreatBritain and TheNetherlands prior to the conclusionof
the 1891 Convention.The exact geographicalextent of the domainsof these two Sultansin
north-easternBorneo wasvery difficultto establish in practice,and this was reflectedin the
negotiationsbetween Great Britain and The Netherlands leadingto the 1891 on vent io nt'^^.
is important to recall that the 1891 Convention was enteredinto in order to resolve these
uncertainties,as is clear fiom the DutchExplanatory~emorandum'~~,which is quotedtwice
by This document also establishes the importance the negotiatorsplaced on
deterrniningthetwo States'respectivepossessionsovertheneighbouringislands.
128
It must be noted that Malaysiais clearlywrongto assertthat in the earlypart of the 19thcentury,the
southempart ofthe eastastof Bomeowas subjectto the Sultan of Boeloe(MM, para7.2):that
areawas,at the tirne, subjectto the Sultan ofBandjermasin(see IM,paraetseq.)it wasthe
centraiandorthempart ofthe eastCoastof Bomeo that belongedto the Sultan ofBoeloengan
lZ9 SeeIM,paras.4.55,etseq.
130 ïh4,Annexes 13and 19.SeeIM,paras.4.66-4.71It is to be notedthat Malaysiacontradictsitselfwhen
it States(at para.7.5)thatthe Contractof Vassa1878providedfor the firsttimethatthe tenitory
of the Sultan of Boeloengan extended inthe north-eastup to Batoe Tinagat, while, 7.3pita.
acknowledgesthat the lirnits of the Sultan'stenitory as defbed1850tContractwere fixed at
Batoe Tinagat.
131 SeeIM,ChapterN, Section2.
132 Even though Boeloenganwas not (andcould not have been)concerne4 it has to be recallin that,
addition, firihm confirmations ofthe extent of the domain of the Sultan of Suludepend on the
definition oflimitof theSpanishandUS possessionintheregion(seeChapterVI,below).
'33 Seepara.3.55above.
134 Seefk 90,above.3.84 Indonesia has clearly established the following in its ~emorial"': the 1891
Convention, byits objectand purpose,its terms, andits context - in particular as confirmed
bythe DutchExplanatoryMemorandumMap which wasimmediatelycornmunicatedto Great
Britain - established the 4" 10'N parallel of latitude as the dividing line between the
respective possessions of the Parties in the area. As a result of this, the situation was
considerablysimplified.
3.85 From this point onwards, and whatever theprevious uncertainties may have been
regarding the respective lirnits of the local Sultans'temtories, the boundary between The
Netherlands,on the one hand and Great Britain on the other, was no longer a contentious
issue. Just as was the case in the case concemingthe TerritorialDisputebetween Chad and
Libya,where the Court did not deem it relevantto examine "the historyof the 'Borderlands'
claimedby Libya onthe basisof title inheritedfiom the indigenouspeople"136 becauseof the
existenceof an internationalconventionresolvingthe matter (the 1955Treatybetween Libya
and France),so also in this case isthe Courtnot requiredto settlethe questionof whetherthe
Sultan of Sulu or the Sultan of Boeloengan heldtemtorial sovereignty over the disputed
islands because of the existenceof the 1891Convention. Asthe Arbitral Tribunalnoted in
the Rann of Kutchcase with respectto the argument put forward byPakistan regarding the
principleof reversionto the pre-colonialsituation:
"Whilethe principleof whichit is an illustrationis of interest, applicationof
such a principle would be dificult and would introduce an element of
instability inthe relationshipbetweennationswhich for a long tirnehave been
underforeigndo~nination"'~~.
3.86 Whatever may have been the pre-1891 situation, the agreementbetween the two
colonial powers "logically and legally adversely affects any pre-existing title"138. As
Indonesia will again demonstrate in Chapter V, the 1891 Convention constitutes the
136 SeeIM,ChapterV.
Territorial Dispute (LibyanAbarnahiri/uChad),Judgment,I.C.J.Reports1994, 3 Februa1994,
'37 p. 6 p.38,para.75.
Indo-PakistanWesternBoundary(RannofKutch)Case (Indiav. Pakistcm),ILR,Vol. 50,p471. See
also Brownlie,I., Principlesof Public InternationalLaw, Oxford,ClaPress,5&ed., 1998,p.
13' 671.
Award of 9 October1998,Eritredemen, TerritorialSovereigntyandScope ofthe Disputp. 35 at
para124.indisputable title119which confirmed Dutch sovereignty over the islands of Ligitan and
Sipadan,bothofwhichare situatedto the southofthe 4"10' N parallel.
3.87 This colonial title being fïrmiy established, it could only be overcome by another
superiortitle. However, Malaysiahas failedto demonstratethat the so-calledeffective actsof
administration,in which it prides itself, are sufficientto displaceDutch sovereigntyoverthe
islands in question as they do not fulfil the criteria necessary to produce a transfer of
sovereignty fiom the true title-holder. hdonesia will return to this aspect of the casein
ChapterVII.
139
Inaccordancewiththewellknowndefinitionproposedby SirRobertJennings,a title'listhevestitive
factswhichthelawrecognizesas creatinga rigTheAcquisition of Territory in InternLaw,nal
ManchesterUP, 1963,p.4. CRAPTER IV
THE ABSENCE OF TITLEOVERTHEISLANDSVESTINGIN THEBNBCOR
BRITISHNORTH BORNE0
Section1. Introduction
4.1 As previouslynoted', Malaysia's claimedroots of title over Ligitan andSipadan are
based on a confused and inherently contradictoryseries of propositions. In Chapter III,
Indonesia demonstrated how thepremiseunderlyingboth of Malaysia'sclaimedchainsof title
- that sovereignty over the islands originally vested in the Sultan of Sulu - is totally
unsupported. Notwithstandingthis fundamentalfiaw in its case, Malaysiaasserts at the very
outset of its Mernorialthat its predecessorsin title were, fiom 1878 (at thethne of the grant
from the Sultanof Sulu to Messrs. Dentand Overbeck),the BNBC and then Great Britain
itselffterit changedthe statusof NorthBorne0fiom a protectorateto a colony in 1946~. In
the sarnebreath,Malaysiaalso contendsthat its chah of title was passedfiom the Sultanof
Sulunot to the BNBC,but ratherto Spain, thento the UnitedStatesunderthe 1898and 1900
Conventions, thento GreatBritainbyvirtueof the 1930Anglo-U.S.Treaty.
4.2 The Court will appreciate thatthese two alleged chains of title are fundamentally
incompatible. While each originateswith the Sultan of Sulu, who is said to have held an
originaltitle to the islands3,Malaysia arguesthat the Sultaneffectivelycededthe islands
to the BNBCand to Spain. Obviously, bothchainscannotbe correct. The BNBCand Spain
(subsequentlythe United States from 1900to 1930) could not have possessed sovereignty
over the islands simultaneously. At least one of Malaysia'sstrands must, therefore, be
incorrect.
1
2 Para.3.3,above.
3 MM,para. 2.1.
Ibid.,para5.3-5.8.4.3 But the fact that one of these chains must, by Malaysia'sown reasoning, be wrong,
doesnot meanthat theotherchainis somehowvalidated. Inthis chapter,Indonesiawill show
that none of the international instruments on which Malaysia relies to establish its title
provides any support forthe BNBC and subsequently GreatBritain having avalid clairn of
sovereigntyover the islandsduringthe relevantperiod prior to Malaysia's independence.In
ChapterVI,Jndonesiawill demonstratethat the secondchah of title also doesnot standupto
scrutinyand that neither Spain northe United States ever enjoyed sovereigntitle over the
disputed islands which could have subsequently been passed onto Great Britainunder the
1930 Convention.
Section2. The AbsenceofTitleVesting intheBNBCandBritishNorth
Borneo
A. The 1878 Grant to Dent and Overbeck Excluded the
DisputedIslands
4.4 The 1878gant by the Sultan of Suluto Messrs. Dent and Overbeckis discussedin
paras.5.9to 5.16 of Malaysia's Memorial.Thisnarrativerefersby way of backgroundto the
1877Protocol between Germany,Great Britainand Spain,which establishedfiee trade and
commercein the SuluArchipelago for thecontractingparties,and then deals with the 1878
gant fiom the Sultan of Sulu and the simultaneous commissionappointing Baron von
OverbeckDato' Bendahara and Rajah of sandakhan4.
4.5 Malaysia's Memorial subsequently moves otn o discuss the 1878Capitulationof the
Sultan of Sulu to Spain, which allegedly confirmed Spanish sovereignty "over al1 the
Archipelagoof Sulu and the dependenciesthereof ". Followingthis, Malaysiarecountshow
Alfied Dent purchased Baron von Overbeck'isnterest in the 1878 Sulu grant and how this
interestwas in tuni acquired,afierthe issuanceof a RoyalGrantin 1881,bythe BritishNorth
Bomeo company6. This overviewis then concludedwitha mention ofthe 1888agreement
betweenthe BritishGovernrnentand theBNBCestablishingthe StateofNorth ~omeo~.
4
5 Ibid.,paras.5.9-5.12.
6 ibid., para.5.13.
7 ibid., para.5.14.
Ibid .ara.5.16.4.6 Significantly,the portionsof Malaysia's Memorialdealing withthe Sulugrantof 1878
and other pertinent conventional instruments donot contain any mention of the islands of
Ligitan and Sipadan.Thisis not surprisingsincethe disputedislandswerenot includedwithin
the scopeof anyof these instruments. The language ofthe 1878grant - in the versionquoted
in Malaysia's Memorial - clearly describes the extent of the territorial possessions that the
Sultanof Sulu intendedto transferto Dent and Overbeckagainstpaymentof an annual surnin
the followingterms:
"...al1the rights and powersbelongingto us over al1the territoriesand lands
which are tributary to us on the mainland of the island of Bomeo fiom the
PandasanRiver on the west extending along al1the lands on the east coast as
farasthe SibukuRiver inthe southand includingal1the territorieson the coast
of the PandasanRiver and the coast landsof Paitan, Sugut,Bonggaya, Labuk,
Sandakan, Kinabatangan,Mumiang,andal1the other territoriesand coast lands
to thesouthwardthereofon the coastof DarvelBay as far as the Sibuku River
togetherwithal1theislandsincludedthereinwithinninemilesofthe toast."*
4.7 Theterms of this gant lefino roomfor arnbiguity:islands lyingbeyondnine miles of
the coast of North Bomeo were notpart of the territories over which rightsand powers had
been acquiredby Dent and Overbeckby virtue ofthe 1878grant by the Sultanof Sulu. It is
commoncause betweenthe Partiesthat Ligitan andSipadanfa11more than nine miles from
the coast andthus were excluded fiom the terms of the grant. As Malaysia's Memorial
correctlypoints out:"Literallythey[PulauLigitan andPulau Sipadan]fell outsidethe termsof
the Sultan's grant ofanuary1878 ..."9.
4.8 The clear referencemade in the 1878 grantto islands lying within nine miles of the
coast (languagewhich hadalso been contained verbatimin the 1877 concessionto Dent and
Overbeckbythe SultanofBrunei) acquiresa greatersignificancein the lightofthe customary
lack of precisionin detenniningterritorial possessionsin the areawhich had been recognised
by the colonial powers themsel~es'~.It is evidentthat the Sultanof Sulu - by indicatinga
8
Ibid.,para.5.10. Emphasisadded. Indonesiahadalso annexeda copyof the grantenclosedin the
despatchfiomConsul-GeneraTlreachetotheEarlofDerby on22 January1878 asAnna 17, Vol.2 of
itsMernorial.Itshouidbe notedthatthatversionrefersto islandssituated"threemarineleaguesfiom
9 thecoast".
10 Ibid.para5.19.
SeeIM ChapterIV,inparticular,aras.4.20-4.45.measureof distancefiomthe coast -wantedto achieveaspreciseas possiblean identification
ofthe territorialpossessionswhich formedthe objectofthe grant.
4.9 This conclusion is consistent with the ternis of the commission cited by Malaysia
pursuant to which the Sultan of Sulu appointed Baron von Overbeck DatoB ' endahara and
Rajah of Sandakhan. The documentin questiondefinedthe territoryover which Baron von
Overbeck's authoritywas to be exercisedas including"al1the lands toward theeastwardon
the coast onthe islandofBomeo.. .togetherwithal1theislandrincludedtherein"". Thiswas
plainlya renvoi to the tems of the grant,whichlimitedvon Overbeck'soffshore authoriîyto
islandslyingninemilesoffthecoast.
4.10 The maps relied onby Malaysiato illustratethe geographicextent of the 1878grant
also confirmthe fact thatLigitan andSipadanfell outsideof the grant. Malaysia hasdrawna
dotted redline aroundthe coast of NorthBomeo on Insert 8 at page 39 of its Memorialto
showthe distanceof nine nautical milesfiom the coastindicated in thegrant ofthe Sultanof
Sulu. Since the map is purportecito depict only the localities mentioned in the grant, the
islands of Ligitan andSipadan are not shown. However, it is clear fiom the map that the
islandsare situatedwell beyondthe nint mile limit. Similarly,Map 4 of Malaysia's Atlas -
whichis a 1906map ofBritishNorth Borneo publishedbythe BNBC on which Malaysia has
added some colouringto show the localitiesceded by the Sultan of Sulu in 1878 - plainly
showsthat the islandsof Ligitan and Sipadanfell outsidethe scopeof the Suluconce~sion'~.
Thismuchis agreedbetweenthe Parties.
4.11 None of the subsequent events - either the capitulationof the Sultanof Suluto Spain
and the resulting Protocolof22 July 1878,the Royal Chartergrantedto the BNBC in 1881,
the 1885Protocolbetween Spain,Great Britainand Germany,the 1903Confirmation orthe
agreementcreating the Stateof North Bomeo - containedany languageexpandingor in any
way modifjing the territorialtermsofthe original1878grantso as to include eitherLigitan or
Sipadan. The geographicalextent of the region being administeredby Dent and Overbeck,
and subsequentlyby the BNBC andthe State of North Bomeo, remained as deried by the
11 MM,para.5.11. Emphasisadded.
12 Map4 ofMalaysia's tlas.original grant by the Sultan of Sulu which did not extend to islands, such as Ligitan and
Sipadan,situatedMer thanninenauticalmilesfiomthe coastl3.
4.12 It shouldbe noted, however,that the fact that the islandsof Ligitan andSipadanwere
excluded fiom the Sulu grant does not mean that they somehow remained within the
dominionsof the Sultanof Sulu and couldbe disposed ofby Spain, who succeededto the
Sultan'srights by a subsequent treaty. As Indonesia showedin the previous chapter,the
islands neverfellwithinthe Suludominionsinthefist place.
4.13 The correctposition, asIndonesiaexplained in its Memorial,was that the islands of
Ligitan and Sipadanwere partof the tenitory transferredto TheNetherlandsby the Sultanof
Boeloengan in the1850and 1878Contractsof vassalage14.Malaysiaarguesthatthe disputed
islands were not included withinthe scope of these instruments because the reference to
"small islands" containedthereindid notconcemthe islandsof Sipadanand Ligitan,but other
smallislandsinthe arealS.
4.14 Indonesia does not agree with this self-servingconclusion. Nonetheless, whatever
ambiguities may have existed before 1891as to the geographical scope of the territories
belongingrespectivelyto the Dutch,who succeededto the rightsand interestsof the Sultanof
Boeloengan, andBritish North Bomeo were removed by the territorial allocation agreed
between the British and Dutch Governments in the 1891 Convention and by the
Supplementary Contractbetweenthe Ruler of Boeloengan andthe Dutch Governmentof 19
June 1893, which brought the previous Contractsof Vassalage in conformity with the
settlementresultingfiomthe Convention.
4.15 Malaysia also alleges that when the Dutch Governmentwas informed of the 1878
gant bythe Sultanof Suluto Dent and Overbeck, "its reaction was a~~uiescent"'~.Malaysia
goeson to suggestthat the Dutch Govemment"recognisedthat the temtories on the coast of
North EastBorneo belongedto the Sultanof Sulu, andthat, for the most part at least,the
-- -- -
13
14 Theimplicationsofthe1903Confirmation arediscussedatparas.4.27-4.32,below.
15 IM, para^4.66-4.71.
MM,paras.7.3-7.5.
16 ibid ,ara.7.6.territorywhich was coveredby the 1878grant related to 'districtswhich are not under the
swayoftheNetherlands' "". Nothingintherecordsupportseitheroftheseassertions.
4.16 If anyîhing,the record showsthat The Netherlandstook appropriatestepsto protectits
interestsin thearea. The relevant Dutchactivitiesincludedthe following:
Dutchauthoritiesraisedthe nationalflagat BatoeTinagatin 1878to showthat
(a)
Dutchterritoriesextendedas farnorthasthat location;
(b) Duringthe period fiom 1875to 1877,the Dutchvesse1HNLMSAdmira1van
Kinsbergenconductedpatrolling activities botharound the island of Sipadan
and even aroundislands lying Mer to the north (seepara. 3.67,above and
Annex 12);
(c) When, in 1883,the first Govemorof North Bomeo hoisted theNorth Bomeo
flag on thesouth bank of the Sibuko riverand put a marker ona tree in the
vicinity,the Dutch complained of whatthey perceived as a violation of their
sovereigntyand destroyedthetree (seepara.3.68, above);
(d) In 1888, when the British Govemment concluded certain agreements
establishingProtectoratesover Sarawak,Brunei andthe territoryof the BNBC,
the DutchGovernrnent expressedits concemas to their territorial implications
and stressedtheimportance of reachingan agreementforthe final settlementof
theboundarydispute(seeIM,para.5.11);
(e) After the signatureof the 1891 Convention,the record shows that the Dutch
and the British cooperatedin a joint effortto combatpiracy in the area, with
the British and Dutch Govemments focusingtheir activitieson areas lyingto
the north and south of the 1891 Convention delimitation respectively.
Significantinthisrespect arethe reportspublishedbythe British NorthBorneo
Herald of 1 May 1892 and Jan- 1895 (recalled at para.3.71 above).
Another pertinent example of this task-sharing activity with regard to the
" Ibid.,para7.l(1). suppressionofpiracy isprovided bythe patrollingof the Dutchvesse1HNLMS
Lynx inthe area aroundSipadanandLigitanin 1921 (seeIM, paras.3.72-3.74).
4.17 T'us, the record showsthat the Dutch authorities, prior to 1891, were active in
monitoring the situation in the area in order to avoid any possible British territorial
encroachments and, after 1891, respectedthe limits of the British-Dutchjurisdictions as
defïnedin the 1891 Convention. The Dutch Government received repeatea dssurancesfiom
the BritishGovernmentthat the BNBCwas a purelyprivateventure and that Britain'spolicy
was to set up chartered commercialcompaniesthroughout the world "without any aim of
territorial acquisition". Britain alsoassured TheNetherlandsthat its goal was "notto set
anydominion,orto enter upon any controversy withrespectto territorial claims,but simply,if
we saw an opportunity,to promote the developmentof the resources of the countryunder
di~cussion"'~.In the light of these pledgesby Britain, the DutchGovernment wasnaturally
confidentthat the actionsby the BNBC did not involve a British attemptto encroachupon
The Netherlands'territorial possessionsinNorth Bomeo.
4.18 With respect to Malaysia's allegation of Dutch acquiescence, the Memorial of
Malaysia quotesfroma reply givenbythe DutchMinisterofthe Coloniesto a questionposed
in the Cornmitteeof the Second Chamberof Parliamentin 1879 in an effort to show that it
wasthe DutchGovemment's understanding that the Suluconcessiondidnot infïingeon Dutch
territ~ry'~.Malaysia fails to point out, however,that at the last meeting of the Joint
Commission on Bomeo on 27 July 1889, theDutch Minister to Great Britain, Count de
Bylandt, madeThe Netherlands'position very clear. His account is contained in his own
transcriptofthe Joint Commissionmeetinginthe followingtenns:
"In the protocol of our former meeting, SirPhilip Che is reported to have
said, that in 1879 the then Netherlands Minister for the Colonies (Baron de
Golstein)had assuredthe States Generalthat the concessionsgranted by the
Sultansof Sulu and Bruneito Messrs. Overbeckand Dent,did not infiingeon
Netherlands rights, or territory. This is not quite correct. With the official
record of that sittingin my hand 1can show that the Minister,replyingto an
interpellationof a Memberofthe House,simplysaidthat it did not avvearthat
our rights had been &ged by the concessions, and thatthis assumption
couldnot as yet be proved And whynot? Because,thoughthe Ministerwas
18
IM,Annex 24,Vol.2.pp.12-13.SeealsoIM,para.3.36.
l9 MM,para.7.6andAnnex38,Vol.3. aware that the concessions had been granted, he was at that time utterly
unacquainted withtheir contentsand could therefore not expectthat our rights
wouldbe infiingedbya fiiendlypower"20.
4.19 Count de Bylandt went onto saythat he had, on severaloccasions,askedthe British
Governmentto providehimwith a copyof the 1878grant,but had alwaysbeentold that "the
British Government could not dispose of private documents which were not their own
property". Althoughhe subsequentlyobtaineda copyofthe grant,Countde Bylandt remained
puzzled by the inexplicable reluctance shown by the British Government to "provide a
fiiendly governmentwith fair information ona subject in which political interestsof some
importance for my countrywere in~olved"~~.He Mer recalled that his Governmenthad
previouslyobjected stronglyto the termsof the Charter grantedto Messrs.Dent and Overbeck
in a notesentto EarlGranvilleon 8 April 188122.
4.20 Count de Bylandt's concludingremarks do nothing to conceal his displeasure at
Britain'sconduct:
"...we had repeatedly received,verbally and in writing, the most reassuring
declarationsthatwe had onlyto do with a private commercialundertaking,of
no political character whatever; thatthere was no question of the British
Government settlingin North Borneo, nor ofa British protectorate there,nor
even of the hoisting of the British flag. But al1 of these reassuring and
misleadingdeclarationshave been belied by subsequentfacts. We have been
al1along kept in the dark and placed,uninformed,before accomplished facts.
The draft of the Charter was no doubtcommunicatedto us by courtesy,a few
weeks beforeit was decidedupon, leavingus scarcely the time to consider it
and to present our objections. In fact, those objections reached me here in
London only the day before the meetingof the Privy Council inwhich thedraft
of the Charterhad to be considered and decided upon,so that this pro forma
courtesy, was practicallyquitevaluelessto us"23.
4.21 This is hardly the reaction of a country said tobe acquiescing in anothercountry's
behaviour. On the contrary,the Dutchauthoritieswere clearly concernedwith the protection
of The Netherlands' legitimatetemtorial rights and interests in the area and, suspectingthat
another fiiendly Government - despite its assurancesthat the BNBC'sactivities were of a
purely private and commercial nature - had surreptitiouslyencroached uponthese, were
20 Emphasisinthetext. SeeAnnex17,Vol.2,p. 1.
21 Ibid.
22 Fora copyofthenoteby deBylandttoEarlGranvill,eeMM,Amex 41, Vol.3.
23 Amex 17,Vol. 2,pp.1-2. Emphasisinthetext.anxious to obtain a forma1 settlement of the position. This explains the subsequent
negotiation and agreement ofthe 1891Convention.
4.22 Nothing in the diplomatic correspondencejustifies Malaysia's assertion that The
Netherlands recognisedthat Dutch claims didnot extend east of the coast of North Bomeo.
As will be seen in Chapter V, the documentaryand map evidence shows that, during the
negotiations of the 1891 Convention, the Dutch Government repeated their earlier claims
whichextended asfarnorth as Batoe Tinagat- wellto the northof the 4" 10'N latitude- and
which specifically mentioned offshore islands. Moreover,the sketch maps exchanged
betweenthe Dutch and British negotiatorsfurtherdemonstratethat the proposeddelimitation
was intendedto extendin a seawarddirectionso as to allocatebetweenthe parties islandsand
other offshore feature~~~.The fact thatPulau Ligitan and Puiau Sipadan were ultimately
deemed to belong to The Netherlands was confkmed by the 1891 Dutch Explanatory
MemorandumMap - a map whichwas forwardedto GreatBritainandwhich did not provoke
anyadversereaction.
B. The 1885Protocol Confirmed the Absenceof British Title
overtheIslands
4.23 Paras. 5.17-5.19 of Malaysia's Memorialdescribe how Spain, by virtue of the 1885
Protocol, relinquishedin favour of Great Britain al1claims of sovereigntyover the tenitory
coveredby the Sultanof Sulu'sgrantof 1878,including offshore islandssituatedwithinnine
nautical miles ofthe coast.
4.24 Malaysia correctlynotes that the islandsof Ligitan andSipadan,which lay morethan
nine nautical miles fiom the coast, fell "outside the terms of Spain's retrocessionor
recognition in Article II of the Protocol of 188~"~'. Although Indonesia agrees with the
generalconclusionthatthe disputedislandscouldnothavefallenwithinthe scopeofthe 1885
Protocol, it shouidbe notedthat Malaysia's referencto ArticleIIof the 1885Protocol as the
relevantprovision in this regard is incorrect. ArticleII of the Protocol contained a general
defrnitionof the Sulu Archipelagoin conformitywith the defultion provided in the 1836
24
25 See paras5.71-5.7below.
MM, para5.19.Treaty betweenSpain and the Sultan of Sulu. While these provisions will be dealt with in
greaterdetailin ChapteVI, it is appropriateto recall herethat bothofthem concemedislands
located wellto the northof Ligitan andpadan.
4.25 The relevant provision of the 1885 Protocolwith respect to the relinquishrnent of
territoryby Spaininfavourof Great BritainisArticlIIiwhichprovidedas follows:
"The Spanish Govemment relinquishes, as fa. as regards the British
Govemment, al1claims of sovereignty overthe temtory of the continent of
Bomeo,which belong or which have belonged in the past to the Sultanof Sulu
(Jolo), includingherein the neighbouringislands of Balambangan,Banguey
and Malawali, as well as al1those comprised within a zoneof threemarine
leagues [nine nauticalmiles] along the coasts, and whichform part of the
territories administeredby the company styled the 'BritishNorth Borneo
company
4.26 As can be seen,îhis provision wasentirelyconsistentwith the terms of the 1878grant
to Dentand Overbeckin lirnitingBritishrightsto islandslyingwithinthree marine leagues(or
nine nautical miles) of the coast. Moreover, the geographicreferences contained in this
provisionmentionspecificislandswhichare situatedwellto the north,andthe east,of Ligitan
and Sipadan. It can thereforebe concludedthat there could be no question of the disputed
islandseverhavingbeen transferredby eitherthe Sultanof Sulu or Spainto the BNBCor to
GreatBritain.
C. The 1903 ConfirmationDid Not Include the Islandsand
WasofNoLegal Relevance
4.27 As noted in Indonesia's Mernorial, on22 April 1903 the Sultan of Sulu signed a
statement referredto as a "Confirmation", approvedbythe British Govemorof North Bomeo
on 29 April, in whichthe Sultanspecifiedthe namesof certain isla-dsituatedbeyondnine
nautical milesfiomthe coastofBomeo - whichwere deemedto be includedin the 1878grant
to Dent and Overbeck. This document identifieda number of islands by narne, including
Omadal,SiAmil,Dinawan,Kapalaiand Mabul andmadea genericreferenceto "other islands
26 Emphasisadded.A copyof the1885ProtocolwithEnglishtranwastattachedIM atAnnex33,
Vol.2.near, or round,or lying betweenthe said i~lands''~'. Significantly,the islands Muliarigin
Kechil,Bilian,Tegaypil, LangKayenand Kapalaiare referredto by name in this instrument,
but Sipadanand Ligitanarenot, despitethe factthat they areof a similarsize. This omission
clearly indicates that neitherSipadannor Ligitan were intendedto be covered by the 1903
Confirmation.
4.28 Despite this rather glaring lacuna, Malaysiaalleges that the reference in the Sultan's
Cohation to "otherislands near, or round, or lying betweenthe said islands"must have
been a reference to Ligitan and Sipadan which were therefore included within this
document2*.This argumentis pure wishfûlthinkingwhichis supportedneitherbythe text of
the documentin questionnorbythe surroundingevents.
4.29 In the first place, it shouldbe noted that the Confirmation was anartificialdevice of
dubious legalitywhich was nothing more thana unilateral expansionof the original 1878
grant. As concededin a BritishForeignOfficeMemorandumof 10March 1905,"theSultan's
declaration cannotbe adducedin support of theCompany'sclaim,as the limits of sovereignty
in the SuluArchipelagohad alreadybeen furedby internationalagreement and no statement
on the part of His Highnesscouldpossiblyalterthem"". Indeed, evenMalaysia recognises
the weaknessof its argumentwhenit observesthat:
"the British Foreign Office evidently haddoubts about the legal effect ofthe
Sultan'scertificate,since whatever the position may have been in 1878,the
Sultanno longerhad anyinternational statuswhatever[....] Even the Company
itself came to realise that its title, as opposed to its right to administer the
islands based upon actual administration and control, might be open to
question"30.
4.30 Of equal importance,as discussedin Indonesia'sMemorialat para. 7.16, was the fact
that the 1903Confirmation onlydealtwith islandslyingnorth ofthe 4" 10'N parallelandthus
was fuily consistentwiththe 1891 Convention. A simplegeographicinspectionof Map 7.1
facingpage 134of Indonesia's Memorial revealt shat Sipadanand Ligitanare situatedto the
southofthis lineof latitudethathadbeenagreedinthe 1891Convention,unlikethe islandsof
27 A copyof thisdocumentis containeIM, Annex99, Vol. 3.
28 MM, para.5.34.
29 IM,Annex109,Vol. 3,pp.424-425.
30 MM, para.5.35.Omadal, Si Amil, Dinawan, Kapalai, Mabul and the other islands which were specifically
named in the Confimation, al1of which laynorth of the 4" 10' N latitude. Nor couldit be
said that Ligitan andSipadanwere round the named islands; again, they are to the south of
them and consequentlyfell under Dutch sovereigntypursuant to the terms of the 1891
Convention.
4.31 Finally,it is quite evidentfiom the map preparedby Stanford for theBNBC in 1903,
shortlyafterthe Confirmationwas signed, that neither Ligitan nor ipadanwere deemedto lie
betweenthose islands3'. For convenience, the Stanfordmap -which reflected theterritorial
extent of the BNBC after the Confirmationwas signed - is reproducedas Map 4.1 opposite
this page. As can be seen fiom the enlargement of the relevant area reproduced following
Map 4.1,both Ligitan and Sipadanlieto the southof the redlineappearingonthe map which
tracked the 1891 Convention line along the 4" 10'N latitude and which represented the
southem limits of British North Bomeo. Had the intention been to include Ligitanand
Sipadan within the Codhmation, it would have been a simple matter to refer to them by
narne. Giventhat theywere excludedfiomthat instrument andlieto the southof the limitsof
the BNBC as shownon the Stanfordmap, it is impossibleto give credenceto the statement
contained in Malaysia's Memorialthat "[tlhe reference in the Confirmation to the 'other
islands near, or round, or lying between the said islands narned above' was suEciently
extensiveto cover,and undoubtedly did cover, Ligitan and~i~adan"~~.
4.32 Obviously,if for purposesof argumentMalaysia'stheorythat the 1903Confirmation
coveredthe islands of Ligitan andSipadanwere to be accepted,this would mean that al1of
Malaysia'sargumentsbased on Spanishtitle must be rejected. In other words, to the extent
that Britain received codhmation fiom the Sultan ofSulu in 1903that the disputedislands
had beencededto Dent and Overbeckin 1878,they couldnot havebeen disposedof by Spain
in favourofthe United States withthe 1898and 1900Conventions.
4.33 Be that as it may, even supposing - which is denied - that the Sultan of Sulu had
sovereigntyover the islandsof Ligitan and Sipadan,the fact of the matter is that neitherthe
31 A copyof thismapappearsasMapNo. 9 inIndonesia's apAtlas. SeealsoIh4,paras.6.43-6.45and
paras.6.52-6.56
32 MM, para5.34.1878grantfiomthe Sultan of SulutoDentandOverbeckn ,orthe1885 Protocoln ,orthe1903
Confirmationprovideanyevidencesupporting Malaysia'csontentionthatthedisputedislands
wereever transferreorcededtotheBNBCorGreatBritain.Thisbeingso,Malaysia's first
chahoftitlemustinevitably fail. CHAPTER V
TITLEBASEDONTHE1891CONVENTION
Section1. Introduction
Indonesia setout its case on the significanceof the Anglo-DutchConvention of20
5.1
June 1891 principallyin ChapterV of its Memorial. At paras5.65-5. 7f0its Memorial
Indonesiasummarisedthispart of its caseas follows:
(a) Whateverdoubts theremighthavebeenup to the late 1880sas to the courseof
the dividinglinebetweenDutch andBritishpossessionsorth-eastemBomeo,
withthe conclusion andratification of theConventionof 201891ebetween
GreatBritainand TheNetherlandsanysuchdoubtswerefinallysetaside.
(b) TheConvention,byitsterms,its context,andits objectandpurpose,established
the 4"10'N parallel of latituas the dividing line between the parties'
respective possessionsin the area now in question. The islandspresently in
dispute- Ligitanand Sipadan- lie to the south of that parallel. It therefore
follows that under the Convention title to those islands vested in The
Netherlandsand nowvestsin Indonesia.
(c) By its conduct at thetirne, and in particular by virtue of the Explanatory
Memorandum Map and its variation of the Contract with the Sultan of
Boeloengan, the Dutch Govemment demonstrated its understanding of the
meaningto beattributedto ArticleIV of the1891Convention. It did so by
meanswhich were notonlypubliclcnowledgeat the tirne,but alsoby meansof
whichtheBritishGovemmentwereofficiallyinformed. GreatBritain'sfailureto
protest,oin any otherway to dissentfiom the DutchGovernment's viewof
whichit had suchpublicand officialknowledge, showedthat it acceptedthose
viewsasthe correctinterpretationof1891 Convention. As envisagedin ArticleV of the 1891Convention,further elaborationof parts
(d)
ofthe 1891boundary line wascontainedin lateragreementsconcludedin 1915
and 1928;but sincethe 1891linehad beendeterminedby a parallelof latitude
its seaward extension did not cal1 for any further precision, nor did
circumstancesat seaallowforanyspecificdemarcation.
5.2 Malaysiaset out its position onthe 1891 Conventionprincipallyin Chapters 8and 9,
SectionsB andC of its~emoriall. In itsMemorial Malaysiaadoptsthe followingpositions:
(a) Malaysia regardsthe 1891 Conventionas solely a treaty determiningthe
Anglo-Dutch boundary on land, and denies that it was intended to extend
seawardeastof sebatik2.
(b) Malaysia contendsthat in any event,since Ligitan and Sipadan belongedto
Spain,Great Britaincould notbythe 1891Convention have giventhemto The
~etherlands~.
(c) Malaysia regards the Explanatory Memorandum Map as a purely unilateral
intemal Dutch map, which depicteda line which was not opposableto Great
ri tain^.
(d) Malaysia regards the Explanatory Memorandum itself asonfirmingthat the
Anglo-Dutch dispute only concemed the mainland boundary, andmade no
mentionof anyallocationof offshore islands5.
(e) Malaysia regardsthe Dutch irnplementing statute of 1892as confirmingthat
the Dutch Government did notregard the Convention as affecting title to
Sipadanand~i~itan~.
1 Seealso,MM,paras2.5-2.8,5.20,7. 1nd7.113.
2 Ibidparas8.7 tseq.
3 Ibidp.ra.8.22.
4 Ibidparas9.3-9.9.
5 Ibidp.,ra9.10-9.15.
6 Ibidp.,ra9.16. Malaysia regardsthe modificationof Boeloengan'sboundariesbythe variation
(f)
ofthe "Contract of Vassalage"in1893 as givingno indicationof a Dutchview
that the Convention allocatedtitle to Sipadanand Ligitanto The Netherlands
orto the Sultanof ~oeloen~an'.
Malaysia regards the915Agreementas evidencethat the partiesintendedthe
(g)
1891Conventionto deal only with the land boundary andto go no further
eastwardthanthe eastcoast ofsebatik8.
5.3 Indonesia,forthe reasonsto be set out below,doesnot acceptthe Malaysianposition
surnmarisedintheprecedingparagraph.
Section2. TheTermsofthe 1891 Convention
A. The Natureofthe Convention
5.4 Thedirectlyrelevant provision of the1891Conventionis ArticleW. For convenience
itstermsareset outagainhere:
"From 4' 10' north latitude on the east coast the boundary line shall be
continued eastward along that parallel,across the island of Sebittik; that
portion of the island situated to the north of that parallel shall belong
unreservedlyto the British NorthBomeo Company,and the portion south of
that parallelto theNetherlands".
5.5 Malaysia contends that the 1891Convention "wasintended to be a land boundary
treay..T ..ereisnothinginthe Treatyto suggestthat itwas intendedto divideseaareasorto
allocatedistantoff-shoreslandsW9.
7 Ibidpara9.17.
8 Ibidparas9.18-9.20.
9 Ibidpara.8.8.5.6 Malaysia asserts that "[iln 1891 the distinctionbetween a boundary treaty and an
allocationtreatywas well kno~n"~~.Malaysiadoesnot offerany support forthis assertion -
an assertion which, Indonesia notes, nuis counter to the observations of the Court in the
Frontier Dispute casebetweenBurkina Faso and Mali1'. In that casethe Court treated the
distinction made by legal writers between "delimitationdisputes" and "disputes as to
attribution of territory" as more important in theory than in practice, and regarded such
classificationsas not decisive for theCourt'staskl2. Sotoo the alleged distinctiondrawnby
writers between an allocationtreatyand a boundarytreaty isin the presentcontextirrelevant:
both kindsoftreatiesattributeterritorialsovereigntyto one orotherofthe Statesconcerned.
5.7 Moreover, categoriessuch as "boundarytreaty" and "allocationtreaty" aresomewhat
artificial concepts, developedto rationalise and classifi separatelywhat were perceivedby
later commentatorsas treaties with differentpurposes. In reality, States donot pay much
regardto such rationalisations. Indonesiais unawareof any exampleof Statesconcludinga
treaty which is in substancean allocation treatyand referringto it in the treaty itselfas an
"allocationtreaty".
Indonesiais, however,aware of treatieswhich wouldclearlybe classifiedby writers
5.8
as allocation treatiesbut whichthe States concemedhave not onlynot called them suchbut
havein fact entitledthem "boundary"or "fiontier"treaties. One needlookno furtherthanthe
1930Anglo-U.S.Convention reliedon by Malaysia1).This Conventionwas, accordingto its
preamble, concluded forthe purpose of "delirnitingdefinitivelythe boundary between the
Philippine Archipelago ...and the State of North~omeo"". Article 1 identified a line
"separatingthe i~lands"~~ belonging to the one side or the other, allocating them under
Article IiIaccordingto their locationson one side of the prescribed lineor the other. Thus
this self-proclairned"boundary"treaty dealt with - indeed,dealt only with - the positionof
islandsand not at al1with landboundaries.
10 Ibid.,para.8.7.
11 FrontierDispute,Judgment,I.C.J.Reports1986,p.554.
12 Ibid.,atp. 564,para.18.
13 MM,para.5.43,andAnnex29,Vol.2;seealso iM, Annex126,Vol.4.
14
15 Emphasisadded.
Emphasis added.5.9 In fact,whatever designationmay be givento the treaties concemed, the attributionof
sovereigntyover islandsis fiequentlydone by way of their relationshipto prescribedlines.
As expressedbyOxman:
"It is not uncornmon for treaties dealing with cessionsor allocations of
sovereigntyoverislandsor othertemtory to definethe areascededor allocated
between those stateson the basis of linesdrawnat sea. The essentialpurpose
of those lines is to provide a convenient referencefor deterrnining which
islandsandtemtories areceded or allocatedto aparticularParty. Amongother
things,this approachavoidsthe needto identi6 preciselyal1islandsand other
tenitory ceded"16.
5.10 The fact that the Dutch Government contemporaneously with the 1891 Convention
regardedit as allocatingtitle tovarious islands situatedto the south of th4" 10'N line is
clearly shownby the terms of the variationmade by The Netherlandsto the "Contract of
Vassalage" in 1893 to give effect to the 1891 Convention. Those terms are quoted by
Malaysiain its ~emorial". In that variationthe majorislands of Tarakan,Nanoekhanand
the southern partof Sebatikare mentionedby name, while their unnarnedassociated"small
islands"are sirnplymentionedashavingbeenallocatedbyvirtuesoleIyoftheir locationsouth
of the4" 10'N line. This is entirelyconsistentwiththe "notuncornmon"practicereferredto
by Oxman.
5.11 This "allocation"aspectof the variationof the "Contractof Vassalage" wasknownto
the British Government,to whichthe te- of the variationwere officiallycommunicated":
the British Government,by its silence, acquiesced in this position. The consequential
absence of anyspecificmention ofsmallislands onthe Dutchside ofthe agreedlineno more
deniesDutch sovereignty overthem (if southof the agreedparallel)than the equivalentlack
of specificmentionof small islandson the Britishside of the linedeniesBritish sovereignty
over them. For it must be recalledthat,byvirtueof ArticleIV of the Convention,the British
Governmentwas similarlyentitledto treat al1islandslyingto the north of 4"e10'N lineas
havingbeenallocatedto BritishNorth Bomeo.
16 ûxman, B.H.,"PoliticStrategand HistoncaConsiderationi",Chamey,J.IandAlexander,LM,
(ed.),InternatiMl uritieoundarie(s1993),Vol.1,p.32.
17
18 Para.9.17seealsoIM,para.5.62.
ïM, para5.62.5.12 Malaysia's attempt to treat the 1891Convention asa "boundarytreaty"ratherthan an
"allocationtreaty" is not onlythus inconsistentwith State practiceand the behaviourof the
parties,but is in principlemisconceived. States do not consistentlyuse the term "boundary"
to refer onlyto landboundaries. Thus a treaty"demg the boundaries" betweentwo States'
territoriesis not necessarily solely concemed withtheir land boundary, andmay not even be
concemed withland boundaries at all. For example,the Conventionbetween France and
China of 26June 1887''dealt with both offshoreislandsand the land boundary,eventhough
in preambleit is referredto as a Conventionconcemingthe delimitationof the "boundary".
An evenclearerexampleis affordedbythe 1930Anglo-U.S.Conventionalsoalready referred
to para.5.8above. Similarly,Article 1ofthe 1968Iran-SaudiArabiaAgreement Conceming
the Sovereignty overthe Islands of Al-'Arabiyahand Farsi prescribes "a boundary line
separatingthe territorialeasof the twoi~lands'"~.
5.13 Rather than attemptingto rely on somewhatacadernicterrninologicalclassifications,
what mattersmost are the terms actuallyagreedby the parties. The1891Convention begins
(Article1)by prescribing the startingpoint "on the east coast of Bomeo" for the "boundary
betweenthe Netherlandpossessionsin Bomeoand those of the BritishprotectedStatesin the
same island":this languagedoes not differ in anymaterialrespect fiom the languageof the
preamblein which the parties recordedwhat they wishedto do. Articles IIand IIIdescribe
the courseof the boundary westwardsfiom that point; and ArticleIV describesthe course of
the boundary eastwards.
5.14 Fromtheseactualtermsofthe Conventionit is evidentthat:
(a) Malaysia isinerrorinstatingthat the1891Convention"hadtheexpres purpose
of delimiting the land boundary between NorthBomeo ...and the Dutch
territories on ~omeo"~':thne is no provision in the Conventionexpressly
refeningto its delimitationof onlya landboundary,and as just notedthe use of
the term"boundary" carrieswithitnonecessaryimplicationtothat effect 22.
19
Prescott,J.RV., Mapof MainlandAsia by Treaty,MelbourUniversity Pres,975,pp. 453-456,at
20 Annex18.
UnitedNationsTreatySeries,Vol. 696,p. 189; Chamey,J.I., andAlexander,L.M.,(ed.), op. cit.,
21 Vol.n, p. 1526. Emphasadded.
22 MM,para.2.5. Emphasisadded.
Seeparas.5.8and5.12,above. (b) The partieswereprescribinga lineto separatetheir "possessio-sa termasapt
for islandsasitisformainlandterritory.
(c) By referringin termsto the islandof Sebatik,the Conventionwas demonstrably
notlimitedtothemainlandterritoryofBomeo.
(d) Malaysia,in acknowledgingthat the Conventiondealt, "by implication,[with]
the narrow beltof water betweenSebatikand the main island of ~omeo"~~,
acceptsthat theConventionisnotevenlimitedto eithermainlandor insularland
territory.
(e) The references in the Conventionto Sebatik and (by implication) thewater
betweenBomeoand Sebatikshowthat the parties,inreferringto possessions"in
Borneo", werenot restrictingthemselvesto themainlandof thatmajor island. It
is, infact,bynomeansunusuat lo include adjacentislandswithinthe scopeof a
legal instrument dealingprimarily,and by narne, with a principal mainland
territory. A clear exampleis to handinthe Sultan of Sulu'sgant of January
1878to Dent and Overbeck. The text as givenby Malaysiais (in translation)
headed "Grantby SultanofSuluof Territoriesand Landson the Mainlandofthe
IslandofBomeo. Dated 22nd January,1878"24 y:etdespitethisexpressreference
to thegrantking of mainland territoriesand lands, the terms of thegrantcover
alsoal1islandswithin9milesof thecoast.
5.15 As regards that part ofthedefined boundaryline which is imrnediatelyrelevant to
sovereigntyover Sipadanand Ligitan,Article N prescribesthat, startingfkomthe identified
point on the east coast of themainland of Bomeo, "theboundaryline shall be continued
eastwardalongthat parallel[i.e4" 10'NI". Thisisthe mainclauseofthe sentence. Contrary
to Malaysia'sassertionthat thelineoesno furtherthanthe east coastof sebatik2: ~rticle IV
contains nothing which suggests thatthe line stops at the east coast of Sebatik: on the
23
24 MM, pam 8.9.
25 ZbidA.,na 9,Vol ..
Ibid .,ra8.11.contrary,the stipulation that the linewas to be "continued"eastward along the prescnbed
parallelrequiresaprolongation of thelineso faraswas necessaryto achievethe Convention's
purposes 26.
B. InterpretationofArticle IV ofthe 1891Convention
5.16 MalaysiaMer contendsthat the "plain andordinarymeaning"of the phrase "across
the island of Sebittik"is that the line crossesSebatikfiom the west coastto the east coast
"and goesno fuithertt2'.For the reasonsgivenin Indonesia's~emorial~~,Indonesiadoesnot
acceptthat that phrasehas sucha restricted meaning, whichIndonesia considersnot to be in
accordancewith the ordinary meaningof the words used in their contextand in the light of
the Convention'sobject and purpose.
5.17 The Courthas held that customary international law foundexpression in Article31of
the ViennaConventiononthe Lawof Treaties1969,andthat as a resultthe rules reflectedin
Article31ofthat Conventionmay beappliedbythe Court evenas betweenStateswhichwere
not partiesto the Convention andalso in respect of a treaty concluded beforethe Vienna
Convention entered into force (in casu a treaty concluded in 1890): case concerning
KarikiIi/SeduduIsland (~otrnanflamibia)~~.
5.18 ByvirîueofArticle 3 1oftheVienna Convention:
"1. A treaty shallbe interpretedin good faithin accordance withthe ordinary
meaningto be givento the terms of the treaty in their contextand in the light
of its object and purpose".
It ishusnotjust"the ordinarymeaning"of thetreaty'stem whichgovemstheirinterpretation,
but thatmeaning(i)intheircontextand (iiinthe lightofthetreaty'sobject andpurpose.
26 SeeIM,para.5.43(c).
27 MM,para.8.11.
28 M, para.5.43.
29 Kaikil/ SeduduIsland(Botswana/ Nomibia),Judgmenti.C.J, 13 December1999,atpara.18; see
dso TerritorialDispute(Li-ArabJamahiriya/ Cha9, Judgment1C.A Reports1994,p. 6 atpp.21-
22,para41. (i) TheImmediateTextualContext
5.19 The immediatetextual context of the phrase now in question ("across theisland of
Sebittik") is that it is subordinateto the main clause stipulatingthat the lineat a point
onthe mainlandcoastand is "continued"eastward. Thepurposeof that subordinatephraseis
to make it clearthat the linedoes indeed "continue"directly eastwardand crosses the island
of Sebatik,ratherthan, for example,goingroundthat islandbeforejoining up againwith the
4" 10'N parallelbeyondits eastemcoast, orleavingthe island subjectto somesort of shared
sovereignty. Apart fiom thusclarifjmg the course to be taken by the boundary line as it
crosses the island of Sebatik,that subordinatephrase contains no other limitation upon its
course.
5.20 In order to convey therestrictedsense of the phrase forwhich Malaysia contends,it
wouldbe necessaryto addto the texmsof the 1891Conventionwords whichdo not appearin
it,suchas "andgoesno Mer" or "toits easterncoast".Ifthat had beenthe intention ofthe
draftersof the Convention they coulhave easilymadeprovisionto that effect,as theydid in
relationto thewestwardextension oftheboundary,as noted inpara. 5.21,below. But inany
event, the negotiatorsclearlyhadin mind an extension outto sea (whichwas necessary in
order to put an endto al1Mer disputes over possessionsin the area), and any attemptto
stop the agreeddelimitationat theeast coast of Sebatikwould have beenobjectedto by the
Dutch.
5.21 Inthis respectthe terms of ArticleIV regardingthe eastward continuationof the line
may be contrasted withthe terms of ArticleIiI i,whichfor the westward extension of the
boundaryline the draftersdid stipulatea terminal point for the line. That Article provides
that the lineshall follow a certainroute "to Tandjong-Datoeon the west coast of Bomeo".
Thusthe westward line stopped there. No equivalent terminal point was stipulated in
ArticleIVforthe eastward continuationofthe line.5.22 Malaysia'sassertion that the meaning whichit aitributesto that subordinatephrase
"accords with the usual primary definition of "across" and, in Dutch, "over "iven in
dictionaries"is~nfounded~~.
(a) As regardsthe English language, in the context of ArticleIV and the phrase
"continued eastward ...across the island of Sebittik", the word "across" is,
grammaticaily,eithera prepositionexpressingthe relationbetweenthe 4"10'N
line and the island of Sebatik, or an adverb qualifjmg the verb "shall be
continued". In those roles dictionaries give the word "across" numerous
meanings3',no one of which can be singled out as the primary meaning:
everyîhingdependsontheword's grammaticarlole, andthe contextin which it is
used.
(i) There are perfectly nonnal meanings of the word which signi@,as
Indonesia submitsis the ordinary meaning of the word in its present context,
"throughand beyond" or"crossing andcontinuing~ver"~~.Most of the many
dictionarymeanhgs are consistent withcontinuationbeyondthe farside of the
objectbeing crossed. Thus the sentence "Across the river thereis a range of
mountains" signifiesin ordinaryusagethat somewhereon the other side of the
river and beyond it there is a range of mountains - not that the range of
mountains rises immediatelyon the far bank of the river. The use of the tenn
"across" isaccordinglyfullyconsistentwiththe continuation of the4" 10'N line
beyondSebatik'seastcoast.
(ii) It is thereforeevidentthat the word "across" does not solely oreven
primarily convey the meaning for which Malaysia contends, narnely that
whateveris doingthe crossing (inthis case,the agreedline) stopsat the farside
of the object being crossed(i.e. the island of Sebatik). The use of the terni
30
31 SeeMM,para. 8.11.
TheOxfordEnglishDictionary,2ndEd.,atAnnex19.
32 IM, para5.43@). "across"thereforedoesnot of itselfimplythat thelineterminates at thefar side
of Sebatik.
(b) As regardsthe Dutch language,the Dutchword "over"has many meanings,
accordingto theauthoritativeDutchdictionaryby Van ale^' T.hesemeanings
Varyaccordingto the context.In the presentcontext the meaningis defïnitely
notrestrictedto themeaningattributedto it byMalaysia. Itis alsobeyonddoubt
that themeaningattributedtothewordbyIndonesiais amongthosewhich inthe
present context the wordcan properly bear. Thus,in Dutch one says "De
evenaarlooptEr heteilandBorneo"(the translation ofwhichis: "The Equator
runsacrosstheislandof Bomeo"). Clearly,the Equatordoesnot stopwherethe
islandends,butcontinuesbeyondBomeo.
5.23 In any event, no purely grammatical or dictionary meaningf a term with as many
nuances as the word "across" is likely by itselffinitivelyto resolve questions asto the
proper interpretationof Article Indonesia'sview as to the interpretationof Article IV is
derived fiom the terms, context and purpose of Article IV, supported by the travaux
préparatoires and confïrmed by the post-signature conductof the Dutch and British
Governments. It is suficient for presentpurposesto notethat in both EnglishandDutchthe
ordinary grammatical and dictionarymeaning of "across"supports the interpretationwhich
Indonesiaattributesto ArticleV.
5.24 Malaysiaalso seeks support forits interpretationof the subordinatephrase in Article
IV fiom the terms of that part of the Articlewhich follow the colon34mid-waythrough its
text. That passage attributes the northem part of Sebatik to the British North Bomeo
Companyandthe southernpartto TheNetherlands. Malaysiaarguesthat this second partof
the Article"cm onlybe read as referringto the islandof Sebatikitself,andthat this supports
the understandingthat the referencesto the island the fist part are likewiselimitedto the
islanditself35.
33 VanDale GrootWoordenboekDerNederlandseTaal,lmEd.,aAnnex20.
34 Not asemi-colaos,tatby MalaysiinMM,para 8.12.
35 MM, para ..12.5.25 Indonesiaacceptsthat thesecondpart ofArticleIVrefers backto the islandof Sebatik
mentionedin the firstpart of the Article,and also that thereferen~e'~ to the islandof Sebatik
in the first part of the Article is limited to the island itself (althoughin both contextsthe
referenceto the island implicitlyincludesits territorialsea). That, however,is not the main
point, which is rather that, as explained above, the main clause of the Article is a simple
stipulationthatthe boundaryline "shallbe continuedeastward":the subordmatephraseabout
the line crossing Sebatikis added so as to clari@the courseto be taken by the line when it
meets sebatik)', and the second part of the Article, after the colon, Mer clarifies the
position by stating expressly,in relation tothat clarificatorysubordinate phrase,what the
consequence is of the boundary line crossing the island - namely, that it divides Dutch
territoryfiomBritishterritory.
5.26 Neither the subordinatephrase inthe firstpartoftheArticle, nor thesecond part of the
Article, assistMalaysia's argument that the line describedin the openingmain clause of the
Article goes no further than the east coast of Sebatik.
Indonesiaagrees with Malaysia that
Article IV describes the boundaryline as crossingthe island of Sebatik:it clearlydoes so.
But that admittedand obviouspropositiondoesnot touch upon the questionwhetherthe line
extends seawards beyond Sebatik. For the reasons given in Indonesia's~emorial~', the
correctinterpretationof ArticleIV, inthe contextofthe Convention andin the lightof al1the
surroundingcircumstances,is that the line prescribedby Article IV does extend seaward of
Sebatik.
5.27 Malaysiais incorrectin assertingthat ArticleIV "wasintroducedsolelyto dealwith
~ebatik"~~a ,nd was dealing only with the "problem posedby the presence of the islandof
Sebatik"without servingthe additionalpurposeof allocatingtitle in respect of islands lying
furthereast40.That ArticleIV did dealwith "the problem ofSebatik"is undoubted; andthat
problem was one of particular concem to the parties in the negotiations leading to the
conclusionof the convention41. But the fact that ArticleIV addressed a specificproblem
36 Inthesinguiar, otthpluraisstatebyMalaysia
37 Seepara.5.19,above.
38 Atpara.5.43.
39 SeeMM,para. 8.9.
40 ibid.para.8.8
41
SeeIM, paras.5.25-5.31.doesnotmeanthat itdidnot also coverothermatterswhere(ashere) itsterms are aptfor that
wider purpose.
5.28 Malaysia's suggestion that Sebatikwas dealtwith becauseit was in effect("virtually")
part ofthe islandof Bomeoby vimie of beingso closeto the coast of~omeo~~ is anattempt
by Malaysiato get roundthe undoubtedfacts that Sebatikis an island and is not part ofthe
main islandof Bomeo. Alongthe 4" 10' N parallel itis separatedfromthe east coast of the
mainiandof Bomeo by a belt of water some 4 miles wide, andfiom the south coast of the
mainland in the region of Tawau by a belt of water ofa width of some 3 miles. It is an
offshoreislandlikenurnerousothersinthearea. Itmeritedspecialmentionin the Convention
not becauseof its physicalclosenessto the mainlandof Bomeo but becauseof its size and its
significance for navigation rights and the interest shown in it by the parties in the
negotiations.
(ii) The General Context of the Treaty's Conclusion
5.29 It is not, however, sufficientto treat only the immediatetextual context of a treaty
provision in orderto arriveat itstrue interpretation.In the firstplace, the contextof a term of
a treaty "is not merelythe article or section ofthe treaty in which the term occurs, but the
treaty as a wh01e"'~. Moreover, account rnust also be taken of the general context of the
treaty'sconclusion. Thusin theAnglo-lranian Oil CompanyCase (~urisdiction)~~ t, e Court
lookedbeyondthe purely grammatical interpretation of the text before it and consideredthe
generalcircumstanceswhichhad givenrise to its preparation. Similarly,in the AegeanSea
ContinentalShelfcase the I.C.J. treatedthe circumstancessmounding the conclusionof an
agreementas relevantto its interpretation". Again,in MaritimeDelimitationand Territorial
Questions between Qatar and Bahrnin, Jurisdiction and ~dmissibilid~, the Court, having
held that what were referred to as "the Doha Minutes" constituted an international
43 MM,para. 8.8.
YearBook oftheInternationalLawCommission,1966, Vol.II,p. 221 (para.1oftheCommentarty o
drafarticl27onthelawoftreaties).
44 Anglo-IranianOilCo.,Preliminq Objection,Judgment,I.C.J.Reports1952,p. 9atpp.104-107.
45 Aegean Sea Continentalhelf;Judgment,I.C.J. Repo1978,p. 3atp. 23,para55.
46 MaritimeDelimitation and Territorial QuestionsbeteatarandBahrain,Jurisdiction and
Admissibility,Judgment,I.C.J.Reports1995,p.6.agreement4',hadrecouse tothe generalcircumstancessurroundingtheir adoption indeciding
uponthe correctinterpretationto be givento them4'.
5.30 In relation to the 1891 Convention this general context includes the following
elernents,al1of which affectthe interpretationto be given to Article IV, and supportthe
positionadoptedin thisrespectbyIndonesia andcontradictthatput forwardbyMalaysia:
(a) the clearclaimsof the Sultan of Boeloenganto inlandareasnorth of theTawau
coast and well to the north of4" 10'N, which were acknowledged by Great
Britainin agreeing,in ArticleVIIof the 1891Convention, to the Sultanhaving
certaincontinuingtransitionalrighttojungleproduce49;
(b) Dutchactivityin the areaevidencingDutchclaimsto sovereigntyextendingto
thenorthof the eventual4" 10'N lines0.
(c) theprevailinguncertaintyat the time as to the preciseextent of the temtories
belongingtothetwopartiess';
(d) the occurrenceof occasional Anglo-Dutchconfkontationsas a result of these
uncertainties;
(e) the desire to resolvethe uncertaintiesonce and for al1so asto avoid future
disputess2.
(iii) Agreement in Connection with thC e onclusionof the 1891Convention
5.31 Article 31.2 of the Vienna Convention provides that for the purpose of the
interpretationof a treaty itscontext includes:
47 MaritimeDelimitationandTerritorialQuestionsbetweQatarand Bahrain,Jurisdictionand
Admissibility,Judgment,I.C.J.Reports1994,p. atpp.126-127,para.41.
48 MaritimeDelimitationandTerritorialQuestionsbetweenQatarand Bahrain,Jurisdictionand
Admissibili&Judgment,I.C.J.Reports1995,p.atpp.17-21,paras.31-40.
49 See IM,para.5.22.
50
51 See para.4.16above.
52 SeeIM,paras5.3-5.4.
Ibid.,para5.56,5.58-5.60. "(a) any agreementrelating to the treaty which was made between al1the
partiesin connexion with the conclusion otfhetreaty".
5.32 In Indonesia's submission the interaction of thBeritish and Dutch Governmentsin
relationto the so-calledExplanatoryMemorandurn ~a~~~establishesan agreementbetween
the two governments regardingthe seaward course ofthe Anglo-Dutch boundary east of
Sebatik. Without prejudiceto the fuller statementof the position at paras. 5.48 et seq. of
Indonesia'sMemorial, Indonesia recallsthat the essentialsofthe positionconcerningthis map
arethat:
the map depicteda line extendingwell out to the east ofSebatikalong
(a)
the 4"10'N parallelof latitude;
(b) it was officiallypreparedby the Dutch Governmentirnrnediatelyafter
the conclusion of the 1891 Convention and inconnection with its
approvalby the Netherlands States-Generalas specificallyrequiredby
ArticleVIIIoftheConvention;
it was publicly anofficiallyavailableattheirne;
(c)
(d) it was officiallyknown to the BritishGovemrnentat the time in the
contextofthe 1891Convention;
(e) the British Government,in the face of its officia1knowledge ofthe
map, remained silent,neither expressing dissentEromit nor protesting
against it, and is therebyto be regardedas having assentedto it as an
accurate reflection of the intention and meaning of the 1891
Convention.
53
Ibid.,para5.48.5.33 For these reasonsS4Indonesia maintains that the circumstances constitute an
agreementrelatingto the 1891 Convention whichfom part of the contextof the Convention
withinthe meaningof Article 31.2(a)of the Vienna Convention.
5.34 Malaysia asserts that the Explanatory Memorandum Map was merely an intemal
Dutchmapandthatnothingestablishesthat the linedrawnonthe map andextendingseaward
of sebatik "was agreedbyor opposableto ri tain" " .laysiaappearsto havebeenunaware
of (at least, it did not in itsMemorialthe attentionof the Courtto) the full factsof the
situation as set out in Indonesia's Memorial,om which the British Government'sofficial
knowledgeof the map, andits silence(andthusacquiescence)in the faceof that knowledge,
is clear.
(iv) InstrumentAcceptedas Being Relatedto the 1891Convention
5.35 Article 31.2of the Vienna Conventionalsoprovidesthat forthe purposeof a treaty's
interpretationits contextincludes:
"(b) any instrument whichwas made by one or more of the parties in
connexion withthe conclusionofthetreaty andacceptedbythe otherparties as
aninstrumentrelatedto the treaty".
5.36 Withoutprejudiceto the preceding argumentthat the interactionbetween the Dutch
and British Govemmentsin relation to the Explanatory Memorandum Mapestablishes an
agreement betweenthem for purposesof Article31.2(a)of the Vienna Convention, Indonesia
submits additionally, as well as in the alternative, that for the reasons there set out that
interaction establishes the map as an instrument made by the Dutch Government in
connection withthe conclusionof the 1891Convention(particularlyits ArticlesIV and Vm)
and acceptedbythe BritishGovernmentas an instrumentrelatedto it.
Object and Purposeof the 1891Convention
(v)
5.37 Indonesia agreesthat theordinarymeaningof atermisto be determinedin the lightof
the object and purposeof the treaty. Malaysiaassertsthat "[ilt would not be in accord with
54 MorefullysetoutatIM,paras.5.48 etseq.
55 SeeMM,para.9.9, andparas.9.3seq.the manifestobjectandpurposeof the Treatyto interpretArticleIV as servingthe additional
purpose of allocatingtitle to the Netherlandsin respect ofislands south of a line in the sea
extendingindefinitelyeastwards ...dong the latitude of 4' 10' N"'~. Indonesia rejects the
conclusionthus advancedbyMalaysia. Malaysia's statemenc tallsfor severalcomments.
5.38 First, in the preamble to the 1891 Convention the parties stated that they were
"desirous of deag the boundaries" (in the plural) between the Dutch and British
possessionsin Bomeo. In itselfthat expressionof the parties'intentionwas as apt for island
territories as for themainiand (given that the words "boundaries" and "in the Island of
Bomeo" cannotbe givena purelymainiandmeaning - as discussedin paras. 5.12 and 5.14,
above). Moreover, the reference to the desire to define the boundaries between "the
Netherlandspossessions"in Bomeo and the BritishStates thereimplies,by the use of "the",
that it was the boundaries relatingtoal1the Dutchpossessions in thearea whichwereto be
settled.
5.39 Second,the preambleto the 1891 Convention merelydescribes whatthe partieswere
doing in concluding the Convention. It is, however, necessaryto look not only to the
preamble but also to the dealings between the parties leading up to the conclusion of the
Convention, fiom which their object and purpose may be discemed. In Maritime
Delimitationand TerritorialQuestionsbetween Qatarand Bahrain the Courtascertainedthe
object and purpose of the so-called"Doha Minutes" fiom an enqujry into the underlying
attitudes of the Parties at the time the Minutes were adopted5'.
Given the underlying
uncertainties over the extent of each party'sterritory and the consequential likelihood of
continuingdisputes8,thereasonwhythey wishedto definethe boundaries betweenDutchand
British possessions in the north-eastregion of Bomeo area was to resolve the uncertainties
once and for dls9. The uncertainties extendedto island territoriesas well as to mainland
territories,and the terms of ArticleIV were appropriatefor givingeffectto the Convention's
object and purposein relationto islandslyingeastwardof Sebatikand areto beunderstoodin
that sense. It is fullyin accordwith that object andpurposefor the Conventionto dealwith
56
57 Zbid.,para.8.8.
MaritimeDelimitationandTerritorialQuestionsbetweenQatarand Bahra,urisdictionand
58 Admissibility,JudgmentC.J Reports1995 ,.6atp. 19paras .5-36.
59 Seeparas.5.3(c)and(d),above.
SeeIM,paras.5.56,5.58-5.60.al1offshoreislands in theregion;equally,it is not in accordwith that object and purposeto
treat ArticleIV asdealingonly with the islandof Sebatik,thusleavingopen other potential
sourcesof territorialdifferences. Theallocationof title to offshore islandswas notjust an
"additional"purposeofthe Convention,but anintegralpart of its mainpurpose.
5.40 Third,the allocationof title by ArticleIV was not just a one-wayaction in favour of
TheNetherlands. Theallocationhad effectin relationto both parties - while islandsto the
southofthe linewouldnot be claimedbythe BritishNorthBomeo Company, equally islands
north of the linewould notbe claimedby The Netherlands. Thus it was made clearthat, for
example (and apart fiom the line'simpact upon Sipadan and Ligitan), there would be no
Dutch claimto Mabul orKapalai(botha similardistanceto the northofthe lineasSipadanis
south of it, and both aboutas far east of Sebatik,i.e. approximately45 miles) or tAmi1
(similarlyabout the same distance east of Sebatikas Ligitan, i.e. about 59 miles), and no
British claimto Nanoekhan or Tarakan, an island approximatelyas far fiom Sebatik as
Sipadan, and mentioned expresslyin the Dutch Government's1893 amendment to the
"Contract of Vassalage" which was quoted by ~ala~sia~'. Thus possible future disputes
about al1the many islands in the relevant waters wereto be avoided by an allocation of
sovereigntyover themto GreatBritain(throughthe BNBC) or The Netherlands,as the case
mightbe.
5.41 Fourth, althoughSipadanand Ligitanare the islandscurrentlyin dispute, it iswrong
to treat Article IV as relevant onlyto those islands (as does Malaysia in MM, para. 8.10,
treatingSipadanasthe first island eastof Sebatikto bereachedby the 4" 10'N line). Other
islandsin the area are equally affectedby the prescribedboundar-yline6',and some ofthem
are closerto SebatikthanSipadan(e.g. Kalurnpang,Silunganand Gusungan). Thatthere is
no dispute about them is precisely because both Parties (and their predecessors)have
acceptedthe stipulations ofArticle IV, and havenot questionedtheir attributionto the one
partyor the other inaccordance withthose stipulations:it is regrettablyotherwise inrelation
to Sipadanand Ligitan.
60 SeeMM,para.9.17;seealsoIM,para.5.62.
61 Seeprecedinparagraph.5.42 The situation is well illustrated by the incident in 1876 involving the activities at
Mabulislandofthe Dutchwarship HNLMSAdmira01van~insber~en~~.At that the Mabul,
whichliesto the northof the eventual4" 10'N line,was regardedas belongingto the Sultan
of Boeloengan, andTheNetherlands accordinglyfelt entitledto landarmedsloopson Mabul.
But after the 1891 Convention Mabul,along with other islands similarly to the north of
4" 10'N, was acceptedas being British,and whensubsequentlythe Dutch warshipHNLMS
Lynxhad occasionto patrol the same waters it observedthe limit of that line and made no
territorial incursionnorthoft63.
5.43 Fifi, the implication that thereis somethingwrong or unusual in prescribing a line
which extends eastwards "indefinitely''is unjustified. As alreadynoteda, the line extends
eastwardsso far as maybe necessaryforthe purposesof the Conventionto be achieved. The
line is extended"indefinitely"in that no end-pointis stipulated,buthis does not mean that
the lineisextendedendlessly:the limitto its eastwardextentisprovidedbythe contextof the
Convention, and in particularbythepurposewhich the Convention was intended to achieve-
the seulement,once andfor all,ofpossibleAnglo-Dutchterritorial differencesin the region.
5.44 It is notunusual forindefinitelinesto be stipulateThus:
(a) GarnbiafSenegaM l aritimeBoundaryAgreement1975": ArticlesOneand Two
of the Agreement identie a startingpoint for the maritimeboundaryat or near
thecoastandthenstipulatethat theseawardextension of theboundaryfiomthat
point "followsthe parallelof latitude13'35'36" or th" ^o:terminal pointis
givenordescribed.
@) Guinea-BissaulsenegalMaritimeBoundary1960~': the Agreement prescribed
an azimuthof 240"for the delimitation of the territorial aoundarya ,ndthen
providedthat beyondthe territorial sea"the delimitationwould consist of the
62 Para.3.67, above.
63 See IM,para.6.3.
64 Seepara.5.15above,andM, para.5.43(c).
65 See Charne y..,anAlexand erM, (ed.op.citVol. 1,p.854.
66 ArticleTwousesthesamelanguage, uttherelevantparis13"03'27"North
67 Ibid .,872. straightline extensionin the samedirectionof the territorialsea boundary":no
terminaipointisgivenordescribed.
CanadaIDenmarkAgreementrelating to the Delimitationof the Continental
(c)
Shelf1973": theAgreementprescribes a delimitationlinejoining 127identified
pointsand thenprovides,inArticle11.4:
"For the time being the Parties have not deemedit necessary to draw the
dividing line Mer north than point No. 127 or further south thanpoint
No. 1."
Thusthe partiesacknowledgedthat the dividing lineextendedat both ends beyondthe 127
specifiedpoints,but itstemiinalpointswereneithergivennor described.
(d) Numerousagreementsdonot givea terminal pointfora maritimeboundaryline
althoughtheydo describethe circumstanceswhichwill eventuallydetemine its
eventual termination. Examples include:(i) USA-USSRMaritimeBounday
Agreement1990", whichdefhes theboundarybyreferenceto an initialstarting
point fiom which "the maritime boundary extends north along [a specified]
meridianthroughtheBeringStraitandChukchiSeainto theArcticOceanasfar
aspermitted under internationallaw"; (ii) Colombia-Costa RicaMaritime
Boundary Agreement 1977~4Article 1 of which stipulates that "From the
intersection of [aspecifiedparalleland meridian]the boundaryshall continue
north dong the saidmeridianto wheredelimitationmust be made with a third
stateW7'.As with the 1891 Anglo-DutchConvention the context ofwhich
establishesthat the4" 10'N linecontinuesfor sofarasmaybenecessaryto fulfd
the purposes of the Convention,these agreementsdo not identiQ by precise
coordinates the temiad point of the prescribed line, but do indicate the
68
69 ibid, p.380;UnitedNatiomTreatySeries,Vol.950,p. 147.
70 SeeChamey,J.I.,andAlexander,L.M.(ed.o),.cit.,Vol.1,p.455.
71 Ibid, p.474.
SimilarprovisionwiUbefoundinthemaritimeboundw agreementc soncludede.g.betweenColombia-
DominicanRepublic1978, ArtII(Chamey,J.L,andAlexander,L.M. (ed), op. cit.,p. 488);Colombia-
Honduras1986, Art. 1(ibid, p. 517); Colombia-Panaa976,Art.IA.2 and B.2 (ibid, p. 532);
Dominican Republic-Venezuela979Art 2.1 (ib,p. 588);TrinidaandTobago-Venezuel1a989,Axt.
II(ibid.,672);USA-Venezuel1978,Art2 (ibid, p.701);Colombiosta Rica1984,Art.1.B (ibid, p.
806). considerationaccordingtowhichtheterminalpoint willbe determinedwhenitis
necessaryto doso.
(vi) SubsequentAgreementor Practice
5.45 In addition to the context of the 1891 Convention, Article 31.3 of the Viema
Conventionrequiresthattherebetakenintoaccount,togetherwiththe context:
"(a) any subsequent agreementbetween the partiesregardingthe interpretation
ofthe treatyorthe applicationof itsprovisions;
(b) any subsequent practice inthe applicationof the treatywhich establishes
the agreementoftheparties regardingits interpretation;.".
5.46 Without prejudice to the arguments set out above at paras. 5.31-5.36 that the
interaction between the Dutch and British Govemments in relation to the Explanatory
MemorandumMapestablishesan agreement betweenthem for purposesof Article 31.2(a)of
the Viema Conventionandtoran instrument for thepurposesof Article 31.2(b)of theViema
Convention, Indonesiasubmitsadditionally,as well as in the alternative, that for thereasons
set out inthose paragraphsthat interactionestablishesthe ExplanatoryMemorandumMapas
a subsequent agreement oras subsequent practicefor the purposesof Article 31.3(a)and (b)
ofthe ViennaConvention.
5.47 As regards the existence of a subsequent agreement, Indonesiasubrnits that the
interaction of the British and Dutch Govemments in relation to the Explanatory
Memorandum Map show on the following page as Map 5.1 establishes an agreement
between the two govemmentsregardingthe seaward course ofthe Anglo-Dutchboundary
eastof sebatik''. That agreement - constitutedbythe officia1andpublic promulgationofthe
Explanatory Memorandum Map, knowledgeof it by the British Govemment, and that
Govemment's acquiescence in its contents - related to the interpretation of the 1891
Conventionor the applicationof itsprovisions,inparticularArticleIV.
72
IM,para 5.48;andpara5.32,above.5.48 As regardsthe existenceof asubsequentpractice, the Mapwas produced imrnediately
afier the signature ofthe Convention, andas part of its ratification by The Netherlands.
Ratificationbythe StatesGeneral wasexpressly requiredby ArticleVm of the Convention.
The productionof the Mapas part ofthat process was thus an officia1and public act of the
Dutch Governmentin the applicationof the Convention, knownto and acquiescedin by the
British Govemment. By virtue of the conduct of thetwo Governments,their practice in
relation to the Explanatory Memorandum Map established their agreement regarding the
interpretationofthe 1891Convention, andinparticularArticle IV.
5.49 Indonesia recallsthat thebehaviour of the Dutch andBritishGovernments withregard
to the ExplanatoryMemorandumMap offers very close parallels with the circumstances
surroundingthe so-called"LivreJaune" mapprepared and publishedbyFranceat the time of
the conclusionof a Franco-British "Additional Declaration" o2 f1 March 1 89973.The Court
held that map, publicly available and unprotested by the British Govemment, to have
amountedto an authoritativeinterpretationofthe~eclaration~~.
5.50 Indonesiawould aiso recailthe map preparedin 1903by Edward Stanford. He was
effectivelythe officia1artographerfor theBNBCandin 1888had preparedfor theBNBCthe
base-mapused by both sidesduringthe 1889Joint Commission meetingsand the subsequent
1891Convention. In 1903he publisheda Mer map''showinga similarunderstandingto that
recordedin the ExplanatoryMemorandum Map,by markingthe southernoffshoreboundary of
NorthBomeo'sElphinstoneProvincebya line whichcoincideswiththe courseofthe 1891line
running seawardof Sebatikdong 4"lû'N parallelto a point lying to the north and east of
LigitanandSipadanislands.
n Ibid.,para.5.52.
74 TerritorialDdpute (LibyanArab Jamahi/iChad),Judgment,I.C.J.Reports1994,p.6atp. 18,para.
28,p.30,para58,p.33,para.61and34,paras.64-65.
'' Themap isreproducedinChapterIV aboveasMap4.1. See IM,paras.6.52-6.56,ith interleaved
copiesofMap6.4 andanenlargemeno tftherelevantarea Thismapis alsoinIndonesis apAtlas,
No. 9. C. AllegedSpanishSovereigntyoverSipadanandLigitan
5.51 Malaysia arguesthat in any event the 1891 Conventioncould not have allocated
Sipadanand Ligitanto The Netherlandssinceat that timethey belongedto ~~ain'~.As will
beexplainedbelowin Chapter VI,the islandsdidnotbelongto Spain in 1891. Consequently,
no question of Spanish title prevents the 1891 Conventionhaving the effect for which
Indonesiacontends.
5.52 Nevertheless,treatingthis Malaysian argument basedon Spanish sovereigntywitha
respect which it scarcelydesemes,Malaysia arguesthat Spain'stitle meant that "Britainhad
no title which it couldconveyto the Netherlandsin 1891"" andthat "Britaincouldnot have
agreedto cede [the islands]to the ~etherlands"'~. As explained,theprernisethat Spainhad
titleto the islands isnot acceptedbyIndonesia. Butinany event,Malaysia misrepresents the
effectof the 1891Convention. It did not involveanyBritish cessionof mainlandterritoryor
islandsto The Netherlands, orany equivalentcessionby The Netherlandsto Great Britain.
The disputed areas were, by defhition, not previouslyindisputablyunder the sovereigntyof
eitherpartyso asto enableitto cede them to the other,orto enablethat otherto acceptsucha
purportedcession: both parties no doubt consideredthat mainlandterritories and islands on
theirside of the agreed line were alreadytheirs, rather than that they had become theirs by
virtueof a treaty cession. The 1891Convention involved,in relationto disputedareas, lessa
cession oftenitory than a relinquishmentof claimsto mainlandterritory and islands on the
otherparty'sside of the agreedline and a recognitionof the otherparîy'stitle overtenitories
on that party'sside of the line. In effect, Great Britainwas, and Malaysiais now, precluded
both from asserting its own title to temtories south of the 4" 10'N line and fiom denying
Dutchtitleto suchtemtories.
5.53 Malaysiaassertsthat althoughin law the Sultanof Sulu had not transferredSipadan
and Ligitanto Dent and Overbeckby virtue of the 1878grant (for Malaysiaacknowledges
that they were more than 3 marine leagues fiom the Borneo coast at para. 5.19 of its
76
77 MM,paras.5.20(d)and8.22.
78 Zbid.,para.5.20(d).
Ibid ,ara.8.22.Mernorial), and althoughthereafter the islands had not been covered by Spain's 1885
relinquishmentof title in favour of GreatBntain (for Malaysiaequallyacknowledgesin the
same paragraph that for the same reason they fell outside the scope of that instrument),
nevertheless("Despite this")the BritishNorth Bomeo Company"went ahead and acted on
the basisthat ithad authorityover" them7g.Malaysiaoffersno evidenceof anysuchactivity
on the part of the BNBC in relationspecificallyto the islands of Sipadan and Ligitan in the
period between the making of the grant andthe conclusionof the 1891 Convention, and
Indonesia does not accept that anyauthoritywas exercisedby the BNBC over the islands.
However,if arguendothe BNBC was, as assertedby Malaysia,in actual possessionof the
islands at the time, that possession (which Malaysiais precluded fiom denying) was a
suficient basis for GreatBritain'sdisclaimerunderthe 1891Convention ofMer interestin
titleto the islands.
5.54 Itis furtherto be noted thatit is apparentfiom Malaysia'sversion of eventsthat the
islandsdidnot legally comewithinthe scopeoftheterritorieslaterplacedunderthe authority
of the BritishNorth Bomeo Company. The Company,says Malaysia,simply "went ahead
and acted onthe basis that it had authority overthose i~lands"*~.Thus if the facts asto the
Company'sexerciseof authorityover the islandswereas statedby Malaysia (which Indonesia
denies),the Companywas clearly acting unlawfûlly. fi injuriajus nonoritur.
5.55 Malaysia seeks to legitimisethis illegalityby asserting that "Spain appears to have
been quite indifferent to this and never opposed their administration fiom and by North
~omeo"~': in effect, therefore, Spain is alleged to have implicitly acquiesced in the
Company'susurpation of Spanish rights over the islands. But this attempt to justiw the
Company'sactivitiesis inadequate. Once again,Malaysiaoffersno evidencefor any Spanish
acquiescencein relation to Sipadanand Ligitan. First, no evidenceis given of anyactiviîy
on Sipadan and Ligitanin which Spain could havebeen said to have acquiesced; second,
Spainis not shownto have hadany knowledgeon the basis of which its acquiescence could
79
Ibid.,para.5.19.
80 Ibid.
81 Ibid.havebeen based. In anyevent,forthe reasonsgivenin paras.6.3-6.13,Spain's acquiescence,
even if it could be established,is legally irrelevantce title to the islands didnot vest in
Spainin theyearsleading upto 1891.
5.56 Malaysia assertsthat Britishsovereignty overthe islands wasdefinitivelyestablished
by eventual Spanish and U.S. renunciation of sovereignty in favour of Great Britain in
agreementsof 1885,1907and 1930~'.Indonesiadeniesthat those agreementshadthat effect.
But evenif it were to be supposed, solely for theposeof argument, that theycould have
hadthat effecttheresultwouldbedifferent fiomthatforwhich Malaysiacontends.
(a) AnySpanish renunciation of sovereignty infavour ofGreatBritainin 1885must
todaybe seenin the lightofthe subsequent1891Anglo-DutchConvention. By
that Convention Great Britain acknowledged, visà vis The Netherlands, that
temtoriessouthof the4" 10'N linewere Dutch.
(b) Asregards theAnglo-U.S.agreements of 1907and1930,the 1891Convention
was still in force in 1907 and 1930 between the United Kingdom and The
Netherlands. Ifthe agreementsof 1907and1930had had anyeffect inrelation
toSipadanand Ligitanin favour ofthe United Kingdom,then as againstThe
Netherlandsthe United Kingdomwas stillboundby its 1891relinquishmentof
claimsto mainlandterritoryand islandsto the south of the line agreed in the
1891Convention anditsrecognitionofDutchtitle southofthat line.
5.57 Accordingly, anytitle allegedly acquired by Great Britain as a result of the 1885,
1907and 1930agreements becameimmediatelynon-opposableto TheNetherlandsby virtue
of the provisions of the 1891 Convention. Any such title (which in any event Indonesia
denieswas everestablished)would therefore nowsimilarlybenon-opposableby Malaysiaas
against Indonesia.
82
Ibid.,paras.2.2,5.18,5.39-and5.43.5.58 For the reasons given in the preceding paragraphs, Malaysia's argumenb t ased on
alleged Spanishtitle to Sipadanand Ligitanin 1891is untenable,and Indonesiarejectsit. It
isto be notedthat nowherein therecords ofthe meetings of theJoint Commissionin1889,is
there any suggestionthat territoriesin theboundaryareas being discussedwere orrnightbe
subjectto anyother State's sovereignty.Thepartieswere satisfiedthat al1the possessions in
issueintheir negotiationswerenot terraenullius,and belongedto oneor otherofthemandto
no one else,andtheyproceededto settletheir differencesonceand for al1onthat basis. They
actedcorrectlyindoing so.
Section3. The 1891Convention:TravauxPréparatoires
5.59 Malaysia asserts that the travauxpréparatoiresof the 1891 Conventionconfum the
interpretationof Article IV for which Malaysiacontends - namely, that it is limited in its
scopeto the islandof Sebatik. Indonesiadisagrees.
5.60 Recourseto the travauxpréparatoiresof atreaty is oneofthe supplementarymeansof
interpretation,as provided forin Article 32 ofthe ViennaConventionon the Law of Treaties
1969. ThisArticle, likeArticle 3 1,maybetreatedasreflectingcustomaryinternationallaw.
5.61 Under Article 32 recourse to travauxpréparatoiresis permitted only in limited
circumstances:first, in orderto confirmthe meaningresultingfiom Article 31,and secondin
order to determine the meaning when interpretation according to Article 31 leaves the
meaning ambiguous or obscure, or leads to a result which is manifestly absurd or
unreasonable.
5.62 In submittingthat the generalrule of interpretationset out in Articl31of the Vienna
Conventionleads to Article IV of the 1891 Conventionbeing given the meaning that the
4" 10'N line stops at the east coast of Sebatik "and goes no further" (additionallanguage
addedbyMalaysia), Malaysia assertsgthatthat interpretationis neithermanifestlyabsurdnor
unreasonable. Indonesia forits part believes that its own interpretation of Article IV
(wherebythe 4" 10'N line is "continuedeastward", as stipulated in ArticleIV itself and
- --
83 Ibidp .ra.8.13.without the need for additional language) equallycannot be characterised as manifestly
absurd or unreasonable. While each Party rejects as incorrect the other'sinterpretation,
Indonesiaassumes thatthe questionof the manifestabsurdityor unreasonablenessof either
Party'sinterpretationofArticleIVisnot in issue.
5.63 Malaysiaalsoregardsthe meaning of ArticleIV as neitherambiguousnor obscurebut
as being clearw. Indonesia equally regardsthe meaningof Article IV as clear andas neither
ambiguousnor obscure. Neither Party, therefore, acknowledgetshat recoursemaybe had to
the travauxpréparatoireson the ground of arnbiguityor obscurity of the text. The two
Parties,however,differasto whatthe "clear"meaningofthe text is. Inthese - not unusual-
circumstances,recourseto the travauxpréparatoiresin orderto shedlight on the meaning of
ArticleIV seemsinescapable.
5.64 Under Article 32 of the Vienna Convention recoursemay be had to the travaux
préparatoires in order to confïrm the meaning whichresults fkomthe application of the
general rule of interpretatioinArticle31 of the ViennaConvention. The Partiesagree with
that statement ofprinciple,although, of course, theydiffer asto the meaning whichin their
respective viewsresultsfiomthe application ofthe generalde of interpretation.
5.65 In itsMemorialMalaysiastatesthat:
"Thequestion is whether the preparatoryworkof the 1891 Treaty revealed any
trace of a claimbythe Netherlandson behalfof the Sultanor Bulunganto the
island of Ligitan and Sipadanand an acknowledgement ofthat clairn by the
British ~ovemment"~~.
5.66 In Indonesia's subrnission, that formulation ot fhe question is inaccurate and
incomplete. A betterfodation is:
"The question is whether the preparatorywork of the 1891 Convention
revealed anytrace of a claim by the Netherlandsto the islandsof Ligitan and
Sipadanand an acknowledgement ofthat claimbythe British Govemment, or
any trace of a claim by the British Govemmentto the islands of Ligitan and
84
85 Ibid.
Ibid.,para8.15. Sipadan and an acknowledgement of îhat claim by The Netherlands
Government".
5.67 Malaysiahas advancedno suggestionthat the islandsof Ligitan and Sipadan were
specifically mentionedby either side during the negotiation of the 1891 Convention.
Indonesiafor its part hasoundno such specificmention ofthe now-disputedislands in the
travauxpréparatoires.Thus in terms of express referencesto the islands, neitParty can
deriveany benefitfiomthe travauxpréparatoires.
5.68 Instead both Parties have to rely on references in the travaux to surrounding
circumstances whichin their view indirectly confhn the interpretation for which they
respectively contend. Thus Malaysia seeks support for its view in the following
circumstances(in each case the statementof Malaysia'scontention is imrnediatelyfollowed
byIndonesia's comment on it,introducedbytheword "However"):
(a) Thenorthem 1st of Dutchclaimswas at BatoeTinagat,onthe northemshore
ofSibukoBay,just to the north ofSebatikanda few miles east ofTawau - and
more than 40nautical milesto thewestof sipadan".
However,this assertionis factuallyincorrect:the northemlimitof Dutchclaimswas wellnorth
ofBatoe Tinagat and extendedinlandevenfurthernorthto about4" 31'N. Moreover, wherever
thenorthernlimitmayhavebeen,it saysnothingabouttheeasterlylimit ofthoseclaims,i.e.to
the east ofSebatik. Andthe veryfactsthat evenBatoe Tinagatis locatedat roughly4"14'N
latitudeandthatDutch claims inlandextendedto about4" 31'N, demonstrateîhat theislandsof
Sipadanand Ligitan were wellto the south of Batoe Tinagatand the northern limit ofthe
mainlandareathen claimedby TheNetherlands. The factthat the Sultan ofBoeloenganhad
actuairights,or at leaststrongclaims,in areasto thenorthof BatoeTinagatwas acknowledged
by the BritishGovernmentin accordingthe Sultan certaintransitional rightsin thosareasin
ArticleVU of the 1891conventiong7.
86
87 Ibid.,par8.16.
Seepara5.30(a)above. The Netherlandsnever suggestedthat Sipadanor Ligitan orany otherislands
(b)
closetothe northemshoreof SibukoBayadheredtothemainlandtemtoryof the
SultanofBoeloenganorbelongedtothe utc ch'^.
However,asalreadynoted,thetravauxpréparatoirescontainno specificmention ofSipadanor
LigitanasbeingeitherDutchorBritish,andtheabsenceofany specificmentionofthemis thus
of neutralsignificance. Thatthe Sultan ofBoeloengandid have offshore possessionsis clear
fkomthe successiveContractsof vassalageg9.Theirextentmayhave been uncertain,likethat
of the offshore possessions of the Sultan ofulu (forequally,the travauxreveal no specific
mentionof Sipadanor Ligitanas beingamonghis possessions):it was this uncertaintythat the
1891 Conventionwas intendedto resolve once and for ail, and did so by providmgfor the
4" 10'N line"tobecontinuedeastward.
(c) The Dutchnegotiators admittedthat regionsto the eastof Batoe Tinagat were
underthe ruleofthe Sultan ofsulu90.
However,the statementofthe Dutch representative mustbe seenin its context. The statement
had norelevanceto islandsmore thannine milesfiom the coast (thusincludingthe islandsof
Sipadanand Ligitan). It was made in responseto a statementby the British ActingConsul-
GeneralTreacher which referred to Sulu nileoverthe territory mentionedin the grant madeto
Dent and Overbeck.Asnoted elsewhere9t'he territoriesmentioned inthe grantdidnot include
islandsbeyondnine miles fiom the coast. Sincethe islandsof Sipadanand Ligitanare well
beyondthat distancefiom the coast, neither Mr. Treacher'sremarksnor the response of the
Dutchrepresentativeto thoseremarks"insofarasthe regionsare concemedto the eastwardof
BatoeTinagat"referredto the islands nowin dispute. Apart fiom the fact that those islands
werenotbeing referredto byeithertheDutchor Britishrepresentatives,the term"regions"used
by Mr. Treacherand in the Dutch responsesuggeststhat in both cases it was oniymainiand
territorywhichwasunderdiscussion.
88 MM,para. 8.16.
89 SeeIM, paras5.2and5.62.
90 MM,para. 8.17.
91 See paras4.6etseq.above. (d) Considerationof the boundaryon thecoastneverextendedto cover islandseast
ofBatoe Tinagat,butwentnofbrtherthansebatikg2.
However,as is shownbytheincident in 1876 involvingHNLMSAdmiraalvanKinsbergenand
the islandof~abul~),whatevermayhaveken the position onthe mainlandcoast,Dutchand
Boeloenganassertions ofsovereignty extended to islandsellto the east of Sebatik,including
theislandofMabul whichlieshctionally furthereastof SebatikthandoesSipadan. Moreover,
demonstratingthat the1891 Convention did dealwith the islandof Sebatik,and in particular
divided itbyawest-eastlinedong the 4" 10'Nparailel,al lfwhichIndonesiaaccepts,doesnot
implythat that linewas not "continued eastward" in accordanwceith the terms of ArticIV so
as to deal with other islandswbichhad been ormight have becomethe sourceof territorial
disputes:thus,bytheadoptionof the4" 10'N line,theDutch gaveuptheirclaimsto Mabuland
the BritishacknowledgedDutch rightsoverSipadanandLigitan.
(e) The need for each sideto haveits ownaccessto the waterslyingon its sideof
the linebetweenSebatikandthe mainlandwas decisivein leadingto the island
of Sebatikbeingdividedg4.
However,this againmerely demonstrates (which isnot deniedbyIndonesia)that ArticleIVdid
dealwith theislandof Sebatik:what itdoesnotdoisshowthatthatwas theonlyislandaffected
byArticle IV or whythe terms ofArticleIV - "the lineshallbe continued eastward"- should
not beappliedastheystand.
5.69 In so far as Malaysia introducedthis last argumentby observing that the need for
accessto waters around Sebatikwas, "A relevant consideration inthe negotiations",so too
would Indonesia notethat, aspointed outin Indonesia's ~emorial~~,a relevantconsideration
wasthe desireto put an end once and foral1to Anglo-Dutchterritorial disputesin the whole
north-east Borneo area96. That considerationstronglyconfirmsIndonesia'sinterpretationof
ArticleIV as continuingthe 4" 10'N line eastwardso faras necessaryforthe purposesof the
92
93 MM,paras. 8.18-8.19.
94 Seepara.5.42andpara.3.67above.
95 MM,para. 8.20.
% IM,paras.5.56,5.58-5.60.
See,paras.5.30(e)an5.39above.Conventionto be achieved which,since the ownershipof islands on either side of that line
was at the time uncertain,involved its extension at leastas far east as to cover the islands
presentlyin dispute.
5.70 The position advancedby Indonesiaas to the continuation eastwardsof the 4" 10'N
line is confïrmedby papers foundin the Dutch archives. These include the papers ofthe
Dutch delegationinthe JointCommission meetings which led to agreement uponthe 4" 10'N
starting point on the est coast of ~orneo~'. The day after the conclusion of the Joint
Commission meetingsCount de Bylandtsent a reportto his ForeignMinister [Mr.Hartsen]
on 28 July 188g9'. Inthis reportCountdeBylandtrecordedthe proposa1madebythe British
~ovemment" and accornpaniedit with "a skeleton rnap that goes with it" (in fact the
Stanfordrnapof 1888,with additional markings)lw. In the northernpart of the rnapthere is
an indicationof the fiontier line assertedby the Dutch, running north fiom "Batu Tinagat"
(Batoe Tinagat) andthen curvinground to the west. On this rnap Count de Bylandtmarked
with a small blackcross a point "on about 4" 10'N"that would be the startingpoint forthe
fiontier.Countde Bylandtnotedthatthisproposa1would leaveEast and WestNanoekhanto
The Netherlandsbut would assign Sebatikto GreatBritain: i.e, the dividing linewould nin
through the channel between Sebatik and Nanoekhan - and indeedthe rnap enclosed with
Count de Bylandt's report shows pencillines marking this channel. Count de Bylandt
suggested an alternative to thisBritish proposal, in the form of a coastal startingpoint at
about 4" 17' N - a point he indicated on the rnap with "a small black dash". Count de
Bylandt also referredto "a serni-officia1or personal" suggestionby Admira1Mayne (of the
British delegation, and also a director of the BNBC) that the Dutch should keep Batoe
Tinagatas an enclave:the sketchrnap again shows pencillines indicatingsuch an enclave.
The sketchrnapalso shows apencil linewhich,startingfiom the pointmarked "X" by Count
de Bylandt(i.e. at about 4" 10'N), runs eastwardthrough and beyondthe island of Sebatik
and continuing alongthe 4" 10'N parallel outto the marginof the map (well beyondthe
locationof SipadanandLigitan. Whennegotiationsforthe 1891Conventionbeganthe effect
97 TheDutcharchivesreferenceisARABuZacode2.05.03,inv.134.
98 Annex21.
99 SeeIM,para.5.20.
'O0 Annex22. Anenlargemeno tftherelevantpartof themaphighlighttheadditionalmarkingisalso
includedinAnnex 22.upon Sebatik of the agreed 4" 10'N coastal starting point was a matter of considerable
interestforthe~arties"'.
5.71 Also in the Dutch archives102is a Mer relevant map'03. This is the copy of the
Kaart van het Noordelijk Gedeelte van het Eiland Borneoapparently used by Count de
Bylandtin thenegotiations. On it ismarkedinpencilthe 4" 10'N line,againextendingoutto
seabeyondSebatik(andbeyondSipadanandLigitan)and outto the marginof the map:in the
margin is a manuscript note, which appearto bein Countde Bylandt'shandwriting,whichin
translationlOreads "10'proposa1byAdmiralMayne".
5.72 The firstofthosemapsisnot onlyavailablein the Dutch archivesbut a similarrnapis
also available in the Sabah State~rchives'~~,having formerly formed partof the BNBC's
archives. Thisrnapalso showsa pencilline extendingalongthe 4" 10' N parallelout to the
margin of the map. This demonstrates that thecontinuation eastwardsof the 4" 10'N line
shown on the ExplanatoryMemorandum Mapwas no subsequentinvention by the Dutch
Government,but wasa reflection of an earlierunderstandingonthe partofthe negotiators.
5.73 Thesethree mapsneedto beseenalso inthe contextof the mapsalreadysubmittedby
Indonesiaas Maps Nos.3 and 4 of itsMapAtlas. MapNo. 3, using a basernappublishedin
1888 for the British North Borneo Company, was an illustration by the Company of a
proposal, eventually adopted by the British Governmentin the negotiations for the 1891
Convention. The significanceof this rnapis explainedin Indonesia'sMemorialat para. 6.44.
In brief, it illustrated by a manuscript dottedline coloured in green, a compromise line
runningfiom Broershoek on the Borneocoast(at 4" 10'N) and continuingat seabetweenthe
islands ofSebatikand Nanoekhan andextendingacrossSibukoBayand out to the margin of
the rnap (well beyond Sipadan and Ligitan) dong the 4" N parallel. Although this
"compromise"linewasnot in theeventthe lineagreed,it shows compellinglythatduringthe
negotiations the Britishalready envisagedthat the linedividingtheir possessions fiom the
Dutch wouldcontinuefor averyconsiderable distanceoffshore.
101 Seeïh4,paras.5.26-5.31.
102 The Dutcharchives referesARA BuZa code2.05.03,inv.134.
103 Annex23.Anenlargemeno tftherelevantpartofthernaphighligthemanuscripatnnotatiis also
includedin Annex23.
104
'O5 inDutch itreads:"10'voorstelvanAdm.Mayne".
TheSabaharchivesreferencsMapP51/94.5.74 The samepoint is to be made in relation to MapNo. 4. It too containsvarious lines
prepared by the British Government in the context of the negotiations for the 1891
conventionIM,one line going norihof Sebatikand the other goingto the south. Both lines
are continued outto sea well beyond the eastern coast of Sebatik along their respective
parallels of latitude.
5.75 Taken together the five maps refened to in the preceding paragraphs, al1of which
were used in the courseof the negotiations,showa consistentpatternof the lineof proposed
seulement,whereverit might finally run,being extended outto sea along a relevantparallel
of latitude.
5.76 Forthe foregoingreasons,it is impossibleto readintothe travauxpréparatoiresofthe
1891 Convention any confinnation of the interpretation of ArticleIV of that Convention
contendedfor by Malaysia. Onthe contrary, for those reasonsand for the reasons set outin
Indonesia's ~ernorial'~',the travaux préparatoiresconfum that, as contendedby Indonesia,
the ordinary meaning to be given to Article IV of the 1891 Convention, in particular its
centralstipulation that the "line shallbe continuedeastward",in accordance withthe general
rule of interpretationformingpart of custornaryinternational law,is that that line continues
eastward at least until it reaches and passes to the norih of Sipadan and Ligitan, thereby
establishingthattheybelongedto TheNetherlands, andnowto Indonesia.
Section4. DutchRatificationofthe 1891Convention
5.77 Malaysiacontendsthat the Dutchratification of the1891Conventionand subsequent
Dutchactions implementingthe ConventionconfimiMalaysia'sposition108.Indonesiarejects
this contention,both for the reasons already given in Indonesia's~emoriallO~and for the
reasons to begiven in the present section of this Counter-Mernorialin cornmentingon a
numberof specific pointsraisedby Malaysia in SectionB of Chapter9 of its ~emorial. In
106 MapNo.4 wasincludedwithinagroupofmapswiththehand-writtelegendon thecoversheet"Bomeo-
CopiesofMapshandedinattheJointCommissionJuly1889"PRO Ref.FO12/86.
107 ParticuiarIM,paras.5.2-5.33.
108
109 MM,Chapter 9.
IM,paras.5.44-5.64.short, Malaysihas misunderstood or misrepresentecertainkeyaspectsthe historicalrecord,
whichrather,when properly appreciated,fullysupporthdonesia's positionas to the meaning
to be givento the 181Convention.
A. The Map Attached to the 1891 Dutch Explanatory
Memorandum
5.78 As hdonesia stated inits Memorial,this mapwas prepared by the Dutch Government
to assist theDutch Parliamentin assessingthe contents ofthe 189on vent ion Th"^ .ap
was not a part of the Conventionasuch,but was annexedto the ExplanatoryMemorandurn
preparedbythe Governmentwhich accompaniedthe Bill for ratificationofthe Convention.
5.79 The map was based on a draft sketchprepared atthe Ministry of the Colonies. As
Malaysia pointed out, eventhis preliminary sketch already had a dotted line extending
seaward fiom the coastof Sebatikisland. Thispreciselyis the important point:the factthat
the line extendedbeyondthe coast, foranundetermineddistance offshore along the4" 10'N
parallel, emphasisesthat ithad alwaysbeen the intention ofthe parties that theConvention
lineshouldalso divideanyoutlyingtemtory (i.e. islands)whichmightbe presentin the area,
in order to settle once and foral1the territorial questions between GreatBritain and The
Netherlandswith respectto northem Bomeo. It is immaterialexactly how faroffshorethe
dotted lines extended onthe sketch and on the map subsequentlyproduced for the Dutch
Parliament. Forpresentpurposesit isthe extensionoffshoreas suchthat matters:it confhms
that the partieshad in mind also the attributionof sovereigntyover their respectiveoutlying
offshore possessions.
5.80 Both partiesduringthe negotiations usedsuchlines extendingoffshore"'. Therecan
be little doubtthat theynotedthese on their respectivemapsduringthe meetingsof the Joint
Commissionas for examplewiththe copyof the map personally usedby Count de Bylandt
duringthe negotiationswhichshowsthe 4" 10'N line drawnin pencileastwardfiorn Sebatik
110 Ibidpara.5.46.
111 Seeparas5.70-5.7above.islandright across St.LuciaBay,to the easternmarginof the map112.A copyof this map is
reproduced in Annex 23. As also notedin para.5.73 above,a similarrnapis available in the
Sabah StateArchives. Sincethese Archivescontainthe local papers fonnerly belongingto
the BNBC, it is thusevidentthat onthe Britishsidealso there wasan awarenessthat thelie
underdiscussionwas goingto continueoutto seato the east of Sebatik. OtherBritish maps
are to thesame effect, as noted in relationto the extendedlines on two copies of the 1888
Stanfordrnapmentioned in para.6.44 of Indonesia's Memorial(Map Atlas, Map Nos. 3 and
5.81 ThesevariousmapsMly supportIndonesia'sposition,namely:
(a) that theextensioneastwardand outto seaof whateverlinewas eventuallyto be
agreed was inthemin& of the partiesduringthe negotiations,and
(b) that the ExplanatoryMemorandum Map, far fiom being some unilateral
inventionbythe DutchGovernment,was fidlyconsistentwiththe course ofthe
negotiations.
5.82 It should alsobe stressedthat the rnapannexedto the ExplanatoryMemorandumwas
knownto the BritishGovernmentbeforeGreatBritainratifiedthe Convention. Instruments
of ratificationwere exchanged on22 May 1892. This was some 10months afterthe date of
the ExplanatoryMemorandumto whichthe rnapwas annexed. The British Govexnmenthad
had ample time and opportunityto conveyto the Dutch Governmentits views on this map,
should it have found any reasonto do so on the basis of the way in which the Dutch
Govemmenthad depictedits understandingofwhathadbeenagreedin theConvention.
5.83 It is alsoirnmaterialthat the rnapdid notshowthe islandsof Sipadanand Ligitan. In
St.Lucia Baythereweremanyotherisletsand reefs,on boththe BritishandDutchsideofthe
line, which were not shown on this map.
The base rnapon which various lines were
superimposedwas sirnplythe rnap regardedby the Dutch Governmentas the most suitable
base rnapto be usedforthe irnmediatepurpose. Giventhe "notuncornmon"practicereferred
Il2 Seepara.5.70above.
'13 Seeparas.5.73-5.7,bove.to earlier of drawing lines of allocation at sea114,there was no need for the Dutch
Governrnent's mapto identifyal1the manyindividualislands.
5.84 Theconsistencyofthe Dutchpositionasto the seawardextensionof the 4" 10'N line
isnot onlyborne outbythe 1893modificationofthe boundariesof Boeloenganto conformto
the 1891 on vent io bnutalso by a map publishedlater by a Dutchnaval officerwho had
beenthe Dutchsurveyoron board HNLMSBandaand who had in that capacityparticipated
in the surveywork undertakenin June 1891for the purposeof locating the 4" 10'N line on
the shoresof sebatik.'16 The officer- R. PosthurnusMeyjes(Lt. Cmdr.,RNLN) - afterhis
retirement prepareda paper which was publishedin the Journal of the Royal Netherlands
Geographical Society, Second Series,Part XWI, 1901. It was entitled"Deastronomische
plaatsbepalingenten dienste derhydrographiein Nederlandsch-Indie" ("The astronomical
position-findingfor the purposeof hydrographiesurveyingin the Netherlands Indies"). The
articlecontainsa technicalreview of relevantactivitiesfiom 1857,including amore detailed
account of the years 1891-1894. He attached to his paper a map a copy of which is
reproduced atAnnex 1. It shows a clear red line (describedin the Legendas the boundary
line("Grenslijn")w) hich continues eastwardfiom Sebatikalongthe4" 10'N parallelrightup
to the edgeofthe map, wellbeyond anynotionalterritorialsea.
B. TheExplanatoryMemorandum
5.85 Malaysia refersin its Memorialto a number of passagesin the Dutch Explanatory
Memorandum which are said by Malaysiato support its position117.Indonesiarejects any
such reading of the ExplanatoryMemorandum. Nothing in it lends any credence to the
argumentthat those islands were henceforthto be regardedas British (let alone Spanishas
Malaysiainconsistentlyalsoargues), orthat they were anyîhingother than attributedto The
Netherlands.
114
115 Seepara.5.9,above.
116 SeeIM para5.62;see, alparas5.95etseq.below.
117 Ibid .aras.5.34-5.39.
SeeMM,paras.9.10-9.15.5.86 Malaysia asserts that the Memorandum describes the dispute as concerning "the
disputed area between the Tawao and Siboekoe~ivers""~, and described the dispute
exclusively as a land boundary dispute: i.e. "a border arrangement whichshe [the Dutch
Government]had wished for the whole width ofBomeo fiom the Eastern to the Western
~oast''19.
5.87 The Explanatory Memorandum'sdescription of the nature of the dispute does not
excludethat offshore islandswouldalso be involved. Clearly,the main practicalconcerns -
and the matterwhichwas prirnarilyin the mindsof the membersof the Dutch legislatureto
whom the Memorandum was addressed - were with the land boundaryon the mainlandof
Borneo and navigation rights through the waters aroundSebatik, in the very heart of the
disputed area oforth-easternBorneo whereattentionwasfocussedatthe tirne. Butthat does
not demonstratethat thosewerethe parties'onlyconcerns. As Indonesiahasshown'", it was
alsointendedto put anendto disputes over theextentofthe parties'possessions in theareaas
a whole. As arnplydemonstrated alreadyby Indonesia,the continuationof the 4" 10'N line
seaward beyond Sebatik was fully consistentwith (indeed, was necessaryto achieve) that
overridingobjective,with theparties' understandingduringthe courseof the negotiationsas
shownby the maps which theywere using,withthe terms eventuallyagreedin ArticleIV of
the 1891 Convention, andwith the parties' subsequetctions connectedwith the ratification
and implernentationofthe Convention.
5.88 Malaysiaalso assertsthat no mentionis made of Ligitan or Sipadan, or indeed any
islandsMer eastthan sebatik12'.Thisis correct:but it doesnot establishthat those islands
werebeyondthe intended scopeofthe Convention.
(a) The fact that therewaseveranyspecifïcmention ofSipadanor Ligitanisnot at
allsurprisingin viewoftheirtiny size. The sameis tru ef the otherislandsin
the area,includingthoseto the north (Le.British)si& of th4" 10'N line,but
118
Ibid.,par9.1O.
120 Ibid para9.1(b).
IM,paras5. .56,5.58-5.60;andparas.5.3qe)and5.39,above.
lZ1 MM,para. 9.11(a). the £ailureto mention those islands does not cal1into question their British
attributi~n'~~.
(b) The small sue of these outer islands,taken together with theprincipal and
imrnediatepractical focus of the partiesking on the mainland area and on
navigation rightsaroundSebatik,is amplysufficientto explainthe lack of any
mention ofthem, especiallysincethe adoptionof a line of attributionmeant that
there was no need to name them individually: for reference to the "not
uncornmon"practiceof drawinglinesof attribution ofthis kind, see para. 5.9,
above.
(c) The Explanatory Memorandummade it clear that the aim of the Dutch
Govemment - whichhad beenachievedin the Convention - wasto put an end
toAnglo-DutchdisputesintheNorthBomeoareas. The Memorandumsaid:
"...thereisnow accepteda quiteconectlydescribedborderlinewhichmakesan
end to al1difficultiesin the future, not only conceming the part of Bomeo
which was connected with the borderdispute but also conceming the whole
islanc~'~~.
It wasthusclearÇom the Memorandumitselfthat "al1difficuitiesin the future"had beendealt
withand "not only [those]concerningthepart of Bomeowhichwas connectedwiththe border
dispute", whichnecessarilymeansthatthe questionof ownershipof al1possessionsin the area
had beenresolved, even in relationto islands(forto readthe referenceto the settlementving
covered"thewholeisland"as refenîngonlyto the mainlandwouldbe to ignorethe factthat it
demonstrably dealtexpresslyat leastwiththe islandof Sebatik). To readthe Memorandumas
in someway aclcnowledging thatcertain potentialdisputeshadbeenleft openfies inthe face of
thetermsoftheMemorandum andthe intentionsof thetwoGovemmentsto settlethematter.
lu Seeparas.5.40-5.41,above.
123 ThisisthetextquotedbyMalaysia, M,atpara.9.1l(c) onthebasi-oalthougslightlydiffefiom
- itsûanslationoftheJkplanatMernorandun M, M,Anna 51,Vol. 3,atp. 93. Thetextofthesame
passage,astranslabyIndonesiaiasfollows:
"..a very accuratelydelineatedbounbasnowbeenaccepted whichobviateailciiEcuitiinthe
futurenotonlywncemingthepartof Bomeoto*ch theboundarydispur tlatedbutalsoconcerning
thewholeisland.(IM,Annex77,Vol.3,atp. 126).5.89 Malaysiadrawsattentionto "theadmittedweaknessofthe Dutch claimto the disputed
area" andDutch uncertainties as to the extent of their territ~ries'~~.However, it must be
recalledthat therewas a disputebetweenthe Britishand the Dutch, andit is of the verynature
of such a circumstancethat the legalpositionsof both sides are lessthan watertight and are
irnbued with uncertainty. That is precisely why they sought to anive at a compromise
solution andnegotiatean agreementto settle the matter, and transform past uncertaintyinto
futurecertainty.
5.90 This is evident fiom the passages fiom the ExplanatoryMemorandum relied onby
Malaysia. Those passages make it clear that, as a matter of fact, certain Bajaus collected
forest products in the disputed area without regard to the position of the Sultan of
Boeloengan,that there was no documentstipulatingthe boundarybetweenthe Sultanatesof
Boeloengan andSulu, that it was difficultto determinethe extent of the area belongingto
Boeloengan, and that the Sultan of Boeloengan'srights in the disputed area were not
indisputable. Al1of this is precisely thesort of uncertaintywhich is an inherent part of a
dispute aboutterritorialpossessions. None of it suggeststhat the Sultanof Boeloenganhad
no rights in the area,or thatthe Sultanof Suludidhave clear rights there:both evidentlyhad
rights and claims - attendedby muchun~ertainty'~'.As the ExplanatoryMemorandum says
(in the second passage quotedby Malaysia), insteadof the previous uncertainty"thereis now
accepteda quite correctly described borderline which makes an entd o al1difficulties in the
future~126
5.91 Moreover, it is to be recalled that even though atthe end of the &y the Dutch
Govemment was ready to recognise the inherent, objective territorial uncertainty of the
situation in theNorth Borneo area, atthe time the Dutch Governmentnevertheless asserted,
and took the appropriate stepsto protect, what it conceivedof as its tenitorial rights: any
uncertaintywas farremovedfiom a renunciationof rightsor claims. Thus when in 1878the
Dutch Government heard that concessions awarded to Dent and Overbeck purported to
extendto the Sibuko~iver'~',it orderedthe hoistingof the Dutch flag at Batoe Tinagatto
124 MM,para. 9.11(c).
125 iM, para.5.2.
126 ForIndonesia'translatinfthispassag,eeh123, above.
127 SeeIM,para.3.28.showthat Dutch territories extendedas far north as that locationIz8. Again when, in 1879,
Dent and Overbeck soughtthe grant ofa Royal Charter(eventually granted in 1881 lZ9)the
Dutch Govermnentprotested at what they suspected might involve British encroachment
upon Dutch territorial rights,but were assured by the British Governmentthat this was a
purely private matter and did not involve any political aspirations by the British
~ovemmentl~'. Sirnilarly,when in September 1883 the first Govemor of North Bomeo
soughtto assertterritorial rightsby hoisting theNorth Bomeo flag on the south bank of the
Sibuko River and establishing a marker on an adjacent tree, the Dutch authorities
immediately chopped down the marker tree131. Again, when the British Government
established Protectorates over territories in northem Bomeo, the DutchGovernment was
quick to assert its concem at the possible territorial implications132. For other similar
examplesofDutch assertionsof sovereigntyintheyears before1891,seeaboveat para. 4.16.
5.92 Malaysia finally notes that the Explanatory Memorandum said nothing about any
supposedoffshore allocation line,and Malaysia quotesa passage describingwhat the Dutch
wanted (and what wasagreed) in relationto Sebatik,namely a partition alongthe 4" 10' N
line. That apassagereferringto the settlement reachedregardiig the island ofSebatikhad
nothingto say aboutthe settlementreached onmattersMer to the east shouldbe no cause
forsurprise,and should leadto the drawingofno adverseconclusions.
5.93 At the present tirne, when Indonesia and Malaysiaare in dispute about these two,
small anduninhabitedislands, it isperhaps easyto note the absenceof any mention ofthem
intheExplanatoryMemorandumand atthe sametimeto forgetthe natureandpurposeofthat
Memorandum. It waspreparedin orderto explainto membersof the Dutch legislaturethe
mainpurposesand achievementsofthe Convention,sothat theywouldknowwhat was being
proposedfor ratification. Itwasnotpreparedas a detailedtextual analysisof the Convention.
Thusit did not mentionthe possibilityof the later demarcation agreementsenvisaged in
Article V, nor the westwardextensionof the boundaryfiom the central mountain rangeto
Tandjong-Datoeas provided for in Article DI, or the exclusion fiom the "fiee navigation"
128 Ibidpara.3.38.
129 Ibidpara.3.44.
130 Ibid., paras.3.31-3.32,3.36-3.37and7.7.
131 Ibidpara.5.4.
132 Ibidpara.5.11.provision of Article VI of the transport of raw material. So far as concems the eastwards
extensionofthe 4' 10'N linebeyondSebatik,the silenceofthe Memorandurn onwhatwasat
that time (although not now) at best a secondary matter has to be set against the clear
indication in thetext of Article IV ain the accompanyingmap that the line did continue
eastwardsoutto sea.
C. TheDutchAct of20May 1892
5.94 The languageof the DutchAct bywhichthe 1891Conventionwas approveddoesnot
(contrary to what Malaysia appearsto suggest at para. 9.16 of its Memorial) imply any
limitation of the 1891 boundary to the mainiand of Bomeo. The Act approved the
on vent io nthus.gavethe Conventionbeing approved its correctforma1designation,i.e.
the Act simply copied the title of the Conventionitself (in Dutch). This title (in English,
"Conventionbetween Great Britain and The Netherlandsdefïning Boundaries in Bomeo"),
whether in the Convention or in the Act approving it, does not limit the scope of the
Convention in the way Malaysia suggestssincethe use of neither theterm "Boundaries" nor
theterm "inBomeo" sufficesto excludethe insularpossessionsoftheparties'34.
D. ModificationoftheBoundariesof Boeloengan
to Conformto the 1891Convention
5.95 Malaysia suggeststhat the variation ofthe definitionof the boundariesof Boeloengan
necessitatedby the 1891 Conventionis prejudicialto Netherlands sovereigntyover islands
withinthe domainofthe Sultanof~oeloen~an.'~~ Not onlyisthisnot so,but the ternisofthe
variation arepreciselyto the oppositeeffect,fïrmingthe positiontakenbyIndonesia.
5.96 The relevant partof the termsof the 1893variationto the earlier so-called "Contract
of Vassalage"readsas follows:
"..the islands of Tarakan and Nanoekan, and that portion of the island of
Sebitik,situated to the south of the above boundary-line descnbed in the
133 Ibid.,Annex88,Vol. 3,p.223.
134 Seeparas.5.14(band(e),above.
135 MM, para.9.17. IndischStaatsblad of 1892,No. 114, belongto Boeloengan, as well as the
small islandsbelongingto th11136veislands,so far as they are situatedto the
southoftheboundary-line ... .
Thisspecificreferenceto islandslocatedsouthof the4" 10'N lineas belongingto the Sultanof
Boeloengan,demonstratesclearly:
(a) the Dutch Governmentls(andthe Sultan's)contemporaryunderstandingthat the
4" 10'N lineextendedseawardeastwardsfiomSebatik,and
(b) the attributionto Boeloengan (andthusto TheNetherlands) ofal1islandslying
to the south of that line, andthusincluding Sipadan and Ligitan which are
locatedsouthof that line.
As already notedby Indonesia"', thetemisofthevariationof the "ContractofVassalage" were
officially cornrnunicatedto the British Government, whichby its silence on the matter
evidenceditsacquiescence.
Section5. The 1915and 1928DemarcationAgreements
5.97 Malaysiaargues"' that "the 191 5DemarcationAgreement ...definitivelyconfumsthe
conclusionthat the 1891Treatydid not establishanyallocation line in the seasto the east of
~ebatik""~. Indonesiadeniesthat any such conclusionis to be drawn fiom the adoptionof
the 1915Demarcation Agreement.
5.98 Rather, in Indonesia'ssubrnissionthe 1915Agreement,together withthe later 1928
Agreement (which Malaysia fails to mention in this c~ntext)'~~w , ere irrelevant to the
application of the 1891 Conventionto the islands of Sipadan and Ligitan. ArticleIV
136 IM,Annex91, Vol.3.
137 Ibidp.,ra.5.6a;ndpara.5.1above.
138 MM, paras.98-9.2 and9.22.
139 Ibidp.,ra.9.22.
140 Exceptfor apassingcommenttMM, page10, fi2,thatthe192agreemen tmendedpartofthe1915
agreemenitnanareadich wasnotrelevanttthepresencase.Whiletheareainquestiisnotrelevant
tothecase,thfacthatthe1928agreemenlti,kethe19agreemenct,overpedronlyoftheboundar s
relevantsdemonstratitgenon-comprehensicvearactorfbothofthem.prescribed a parallel of latitude as the line separating Britishand Dutch possessions.
Eastwardsoutto sea fiom the mainlandcoastalterminusof that lineat Broershoekthere was
no need for, nor anypossibilityof, any demarcationof that line- with the sole exceptionof
the island of Sebatik, which was the only island which the agreed line crossed. Beyond
Sebatik,the agreedparallel of latitudewas itself wholly sunicient as the agreed locationof
the lineand called fornothingmorein the wayof physicaldemarcationpursuantto ArticleV
ofthe 1891Convention.
5.99 In any event, the 1915 and 1928 Agreements weremanifestly only in partial
implementation ofthe 1891 Convention. Since therefore they did not purport to deal
comprehensively withthe boundary betweenthe Dutch andBritishtemtories as laid down in
the 1891Convention, the fact that they did not concernareasto the eastof Sebatikin no way
impliesthat thoseareaswere excludedfiomthe scopeofthat Convention.
5.100 It isnecessaryto lookmoreclosely attheseAgreements andthe backgroundto them.
5.101 Giventhe stateof howledge at the end of the 19~century,and the difnculties of the
terrainon the islandof Bomeo, the delimitationof the boundaryin that regionwas inevitably
complex. Even while the 1891 Convention was being negotiated,arrangements were being
made for a survey of the eastem parts of the region in June 1891by HMS Egeria, HMS
Rattlerandthe Dutch navalvesse1 an da'^'.
5.102 Itisrelevant thatthe originalproposa1which ledto the 1891Conventionwas basedon
agreementthat, if the coastal boundarypoint couldbe agreed, then the two Govemments
would:
"proceed without delay to define, short of making an actual14288ey, and
markingthe boundaryonthe spot,the inlandboundary-lines ... .
141
142 SeeIM,paras.5.34-5.39.
Ibid.para.5.18.Thus the partiesunderstoodthat, unencumberedby anyrealknowledgeof the terrainto which
their delimitationwas to apply,the delimitationwould essentiallylay down principlesto be
followed.
5.103 In the Conventionitself, the partiesaccordinglyrecognised fiom the outset that the
boundary described in the Conventionwould need further elaborationin detail. They made
provision accordingly. The starting point for the boundary having been established by
Article1ofthe 1891Conventiononthe eastcoastof Borneo,Articles IlandID delimited that
boundaryline in awestwardsdirection, andArticleIV delimited iteastwards. ArticleV then
provided:
"The exact positionsof the boundary-line,as describedin the four preceding
Articles,shall beeterminedhereafterby mutual agreement,at suchtirnes as
the Netherland andthe BritishGovernmentsmay thinkfit".
Two later agreements - of 1915 and 1928 - were concludedpursuant to this provision,in
relationto parts of the 1891Anglo-Dutchboundary line.
A. Agreementof 28 September1915
5.104 On 19 November 1910the Dutch Chargéd'Affaireslefi withthe Foreign Officean
aide mémoire") explaining that the Netherlands Minister for the Colonies thought it
advisableto proceed as soon as possible to the indicationon the ground of the fiontier, as
fixed inthe 1891 Convention. Al1that had beendone so far, he said, was the placing of
beaconsby an Anglo-Dutch Commissionon the pointswherethe parallelof 4" 10'N crossed
the eastcoastof Borneo near Broershoek and where it crossedthe west and east coastsof the
islandof Sebatik,andthe replacingofthosebeaconsby granite pales'". "BothGovemments
considerthese poles as fixing the exact positionof the line of the fiontier at the coast, as
meant in ArticleV of the Treaty." But, he continued,uncertaintyremainedas to the actual
course of the line of the fiontier described in Article, giving rise to various practical
problems along the course of themainlandfiontier between Dutch possessionsand BritishNorthBorneo. He thereforethought that thetirnehad cometo open the negotiationswiththe
British Govemment mentioned in the 1891 Convention,concerning the indication of the
fiontier between British North Borneo andthe Netherlandstemtory, and suggested thata
mixedCommissionbe appointed "toindicatethe fiontier on the ground,to describeit andto
prepare a mapof same".
5.105 In April andMay 1912the Dutch andBritish authorities appointedCommissionersto
delirnitonthe spotthe boundarybetweenThe Netherlands'possessions inBorneoandBritish
North Bomeo. The Boundary Cornmissioners - Messrs. Schepers and Vreede for The
Netherlands, and Bunbury and Keddell for GreatBritain - canied out their work "in the
neighbourhoodof the fiontier" fiom 8 June 1912to 30 January 191 3. They preparedand
jointly signedtheir Report(in Englishonly)at Tawau,British North Bomeo,on 17February
1913'~~.
5.106 So far as concems that part of the boundary now in question, paragraph 3 of the
Boundary Comrnissioners'Report statetd hattheyhad:
"determinedthe boundary betweenthe Netherlandterritory and the State of
British North Borneo,as described in the BoundaryTreaty supplementedby
the interpretationofArticle2 of thetreatymutuallyacceptedbytheNetherland
and BritishGovernmentsin 1905astakingthe followingcourse:
(1.) Traversingthe island of Sibetik,the fiontier line follows the parallelof
4" 10' north latitude,as alreadyfked byArticle4 of the Boundary Treaty and
markedonthe eastandwestcoastsbyboundarypillars'46.
(2.) Starting fiom the boundary pillar on the west Coastof the island of
Sibetik, the boundary follows the parallelof 4" 10' north latitudewestward
until it reachestheiddleofthe channel,thencekeepinga rnid-channelcourse
until itreachesthe rniddleofthemouthof TroesanTamboe.
145 Annex25.
146 Thesepillarshadbeenplacedpreviously(duringthe surveyvisHMSy EgeriaandRattlerandthe
DutchvesselBandain1891(IM, para.5.37)andi1901byHMS Watenvitchandthe Dutnavalvessel
Makasser (iM,para.5.40)andnot by the1912t191Boundar yommission;seeparagrap2 of the
Commission'seport.5.107 Thus the Boundary Commissioners(a)begantheirworkonthe eastcoast ofthe island
Sebatik;(b) next went westwardsacrossto the west Coastof the island;(c) then to the mid-
Channelof the waters lyingto the west of the island; (d)then along that mid-channelto the
mouth of the River Tamboe; and (e) thereafier by the route described into the island of
Bomeo. The line joining points (a)(b) and (c) was simply describedas "follow[ing]the
parallelof4" 10'northlatitude".
5.108 The Boundary Commissioners' Report, althoughclearlyprepared inthe contextof the
1891Convention, did not expressly Saythat theirworkhad been undertakenin the contextof
Article V of the Convention. The Report was submitted to the two Govermnents. On
28 September 1915 they signed an "Agreemenb tetween the United Kingdom and The
Netherlandsrelatingto the Boundarybetweenthe Stateof North Borneo and the Netherland
Possessionsin ~omeo""'. InthatAgreementthey recordedthatthey:
"agreed in a spirit ofutual goodwillto confinn the joint Report with the
accompanyingmappreparedbytheir respectiveCommissioners in accordance
with Article 5of the Convention signedat London onthe 20th June, 1891, ....
and relating to the boundarybetween the State of North Bomeo and the
Netherlandpossessions inthe island".
The two Governments"herebyconfirm[ed]the aforesaidjoint Report and map, as signedby
their CommissionersatTawauonthe 17th Febniary,1913",thetext ofwhichwas setout inthe
bodyof theAgreement.
5.109 That Agreement, andthe BoundaryCommissioners' Report and map incorporated into
it, bytheir termsrelatednlyto part ofthe boundarybetweenthe DutchandBritishterritories
in Bomeo - namely, the island of Sebatik and a particular area of the eastem part of the
mainlandof Kalimantan onthe islandof Bomeo. The reasonfor dealingwith Sebatikin this
way was simply that the island was shared - no such reason was relevant for any other
islands. Thesectorof the boundary dealt withis indicatedbythe blue line onthe sketchmap
at Annex 26. So far as their work on the island of Sebatikwas concemed,the Boundary
Cornmissionersof 1912-1913made no new contribution of substance,doing no more than
acknowledgethe pre-existing boundarymarkersand repeatthe 4" 10'N boundaryline; their
147 Ih4,AMex 118,Vol.3.substantivework thus only concerned partsof the mainland boundary, in respect of which
they confirmedthat theyhad agreedonthe surveyandthe establishmentof boundarymarkers
in somepartsofthe mainlandof Kalimantan,basedonthe generalmappingindicationsgiven
inthe 1891Convention.
5.110 Notbg in Article V of the 1891 Conventionprecluded partial specificationof the
boundary. Onthe contrary, it stipulatedthat the exact positions of the boundary lineas
describedin the Convention wasto be "detenninedhereafierby mutual agreement, atsuch
times as the Netherland andBritish Govemmentmay thin fit": the use of the plural "such
timess "hows that actioncould be taken under the Article at different times, in relationto
differentpartsof the boundary. Itwaslefito the discretionof the two Governrnentsto decide
whenandhowto implementArticle V: "atsuchtimesas [they] may thin kt".
5.111 Accordingly,the fact that the 1915Agreement, andthe 191 3 Reportincorporatedinto
it,saidnothingabout theboundaryeastwardsfiomthe islandof Sebatik,i.e. outto sea inthe
directionof, and to theorth of, Sipadanand Ligitan,carrieswith it no implication that the
1891Agreement did not makeprovisionfortheeastwardcourseofthe boundary outto sea.
5.112 Moreover,the natureof the 1891and 19 15 agreementscalled forno Mer actionto
the eastward of Sebatik by which the "exact positions of the boundary-line ...shall be
determined". Eastwardfiom the islandof Sebatikthe line was simplyto follow the parallel
of 4" 10'N latitude;since there were no islandsto the east which that parallel would cross,
therewas no needfor any Mer specificationofthe line,andthe stipulationthat itfollowed
a particular parallel of latitud(4" 10'N) removed any further need for more precise
delimitationor for demarcation. This is consistenwith the Dutch Chargéd'Affaires1initial
suggestionin 1910 for a demarcationof the boundary,when he referredto the then-existing
uncertainties as having given rise to various practicai problem148: no such "practical
problems"would arisein applyinga straightparallelof latitudeat sea.
148
Seepara.S.104above.5.113 Nor, giventhe maritime natureof the area, was there any practical opportunityfor
erectingboundarypillars at appropriate places.To the west of Sebatik,however, in Dutch
and Britishinterna1waters, therewas a practicalneed to specifj exactly the positionof the
boundary,and îhis was accordinglydoneby referenceto the mid-channelof the riverwaters
inthat area.
B. Conventionof26March1928
5.114 The parties acknowledgedthat partial, and successive,detailed delimitationsof the
boundaryset out in the 1891Convention were permitted by concluding,on 26 March 1928,a
further"Convention betweenHis Majestyin respectof the UnitedKingdomand Her Majesty
the QueenoftheNetherlands respecting the Delimitation otfhe Frontierbetweenthe Statesin
Bomeo underBritishProtection and Netherlands Territoryin that~sland"'~~T. he Convention
wassubjectto ratification:ratificationswere exchanged at The Haguon 6 August 1930.
5.115 In the Conventionthe partiesrecordedthat they were "desirousof further delimiting
part ofthe fiontier establishedin ArticIIIof the Conventionsignedat London onthe 20th
June, 189lW,and went on to agree that the boundary as defined in Article IIIof the
Convention wasto be Mer delimited betweenthe summitsof the Gunong Api and of the
GunongRaya. The sectorof the boundary dealtwithbythe 1928Conventionconcemed only
part of the boundary between Sarawak and Dutch Borneo, anid s indicatedby the red line on
the sketchmapatAnnex26.
5.116 Again,it is apparentthat the 1928Convention wasanother partial delimitationof the
fiontier establishedby the 1891 Convention. This is clear both fiom the substanceof the
Convention,but also fiom its terms which refer to the wish of the parties Mer to delimit
"partof the fiontier established in article III of the [1891] Convention".Like the 1915
Agreement,it in effect supplementedthe 1891 Conventionby givinggreater precisionto the
delimitationofpart ofthe boundaryexpressedin it: intheofficiallypublishedIndexofBritish
Treaties11 01-1968lS i0is listedashaving"supplemented"the 1891Convention.
149
150 ïM,Annex 125,Vol.4.
Annex27.5.117 Thus, as is evidentfiom the sketchmap at Annex 26, the 1915and 1928agreements
togetherdelimitonlypart ofthe boundary establishedbythe 1891 Convention. Theydo not
even demarcatethe whole of theland boundaryon the mainland of Bomeo, to the west of
Broershoek. That fact doesnot in anyway cal1into questionthe validity or effectivenessof
the mainlandland boundaryin those undemarcatedstretches;similarlythe fact that the two
Agreementsdo not in terms dealwith the dispositionof sovereigntyto the east of Sebatikis
no argumentfor denyingthe validityor effectivenessof the 1891 Convention in respect of
those eastem areas -maritime areas in which no Mer demarcation was necessary or
possiblebeyondthe straightforwardstipulationin the 1891Conventionthat therelevant line
followeda specifiedparallel of latitude,narnely10'N.
5.118 Theterritorial dispositionsnthe areasnot coveredbythe 1915 and 1928 Agreements
remain as determined by the 1891 Convention. In the area relevant to the present
proceedings, that boundary remains effectively along the parallel of 4" 10'N latitude,
eastward fiom the island of Sebatik, and thereforerunning to the north of the islands of
SipadanandLigitan. THEABSENCE OFTITLEOVERTHE ISLANDS VESTINGIN SPAINANDTHE
UNITED STATES
Section 1. Introduction
6.1 hdonesia has shown in ChapterIII that there is no evidence that the Sultan of Sulu
everpossessed an originaltitle to Ligitan orpadanwhich it could have passedon to either
the BNBC or to Spain. Followingfrom this, Indonesiahas also shown in Chapter IV that
Malaysia'sfirst chah of title, accordingto which sovereigntyover the islandsof Ligitan and
Sipadanwas acquiredby the BNBC underthe 1878 gant to Dent and Overbeck,cannot be
sustained.
6.2 h thisChapter,Indonesia willdemonstratethatMalaysia'salternativechah of title -
that the islandswere passed fromthe Sultanof Suluto Spain,thenceto the United Statesand
hally to GreatBritain in 1930- faresno better. Onceagain,noneofthe relevant instruments
even remotelysuggests that the islands formed part of the Sultan'sdominions or those of
Spain. SinceSpainneverpossessed sovereignty over the islands,it had notitle whichit could
have relinquishedto Britainunder the 1885 roto cool'subsequentlyhave passed onto the
United Statesunderthe 1898and 1900treaties. The UnitedStates,in turn had notitle over
the islands that couldhave been transferred to Great Britain under the 1930 Anglo-U.S.
Convention.
Section 2. TheAbsenceof SpanishTitleovertheDisputedIslands
Any Spanish title over the islands of Ligitan andSipadan would necessarily have
6.3
derived fi-oma previous title vested in the Sultan of Sulu. Malaysia arguesthat Spain
allegedly acquired title fi-omthe Sultan byvirtue of the Capitulations of Protection and
Commerce of 23 September 1836,the Convention of 19 April 1851 and the Protocol
I See,paras4.24-4.26.confKmingthe Basesof Peace andCapitulationof 22 July 1878~.Underthis thesis, Malaysia
contendsthat the 1891 Convention "couldnot havehad anyconsequencefor islandswhich at
thatthe belongedto spainM3.
6.4 With respect to the 1836 Capitulations,this document contained a descriptionof
sufficientclarityto showthat the islandsof Ligitan andSipadancouldnot havebeen included
in the temtories which were deemedto have been ceded to Spain by the Sultan. The
Capitulationsdescribedthe areaof Spanishrightsas extending:
"....fiom the western extremity of Mindanao to Borney and La Paragua
[Palawan], withthe exceptionof Sandacan andthe othertemtories tributaryto
the Sultanonthe mainlandof orne^''^.
6.5 A glance at Map 6.1 (a reproduction of Map7.2 facing page 140 of Indonesia's
Memorial)reproducedoppositepage 112shows thatthis definition couldnot have included
the islands of Ligitan and Sipadan which lie well to the south and west of the places
mentionedin the Capitulations. Indeed,the definitionincludedin the Capitulationsreferred
to the Sulu Archipelagoproper, which - accordingto an entry in the SpanishEnciclopedia
Universal nustradaEspasapublished in 1927 -was situatedbetweenthe islandof Mindanao
andNorth Borneo, approxirnately betweenthe latitudesof 4"40' N and 8"N~. The islands of
Ligitan and Sipadanfellwellto the southofthis area andthus couldnot havebeen considered
to form partof the temtories cededbythe Sultanof Suluto Spain. Moreover,as explainedin
Chapter III,there is absolutely no evidence thatthe Sultaneverheld sway overeitherLigitan
or Sipadan. Consequently,the alleged basis on whichSpain'stitle is said to have vestedis
defective attheoutset.
6.6 Moreover, neither the 1851 Conventionnor the 1878 Protocol supportMalaysia's
contentionthat Ligitan andSipadanwerepart ofthe temtories which Spainacquiredfiomthe
Sultanof Sulu. The 1851 Convention providedfor the incorporationof "the Islandof Sooloo
with al1its dependencies"withthe Crownof Spain(Article 0, and referredto "thetemtory of
Sooloo and its dependencies, as a part of the Archipelago belongingto the Spanish
2
3 MM, para.8.22.ocumentsmay befoundatIM,Annex9, Vol.2 andMM, AM~X~S 4 and12,Vol. 2.
4
J M, Annex9,Vol.2.
Ibid.,para.7.24 aAnnex 124,Vol. 4.Government"(Artic1e II),to the "Islandof Soolooand al1its dependencies,being incorporated
with the Crown of Spain" (Article Iil )nd to "The Island of Sooloo, and its dependencies,
being declaredan integralpart ofthe PhilippineArchipelagowhichbelongsto Spain"(Article
VI).
6.7 Bythe 1878Protocol, Sulu "declare[d]as beyonddiscussion the sovereignty ofSpain
over al1the Archipelagoof Sulu andthe dependenciesthereof' (Article1). Both thesetreaties
dealtwith Sulu(either the islandor the archipelagoof that name) and its dependencies. Such
languagedoes not establish that the particular islands ofSipadanand Ligitan were included
withinthe Sulu territories which were placedunder Spanish sovereignty;nor has Malaysia
produced anyevidenceleadingto that conclusion. Mereassertion isnot evidence.
6.8 As discussedin Chapter IV, in 1885a Protocol was concluded between GreaB t ritain,
Spainand Germany. Forpresent purposes,the relevantarticlesof the Protocolare Articles1
andIIwhich readas follows:
" 1.The Governmentsof GreatBritainand Germanyrecognizethe sovereignty
of Spainover the places effectivelyoccupiedas well as over those places not
yet so occupied,of the archipelagoof Sulu (Jolo'),whereof the boundariesare
determinedin Article II.
II.The Archipelagoof Sulu (Jolo), conformablyto the definitioncontained in
Article 1of the Treaty signedthe23rdof September1836,betweenthe Spanish
Government andthe Sultan ofSulu (Jol6) comprisesal1the islands which are
found betweenthewesternextremityoftheislandofMindanaoonthe one side,
andthecontinentof Borneo and theIslandofParagua(Palawan)ontheother
side,withexceptionofthosewhichare indicatedinArticleIII. It is understood
(entendu) that the island of Balabac and of Cagayan-Jol6 fonn part of the
~rchi~ela~o"~.
6.9 As can be seen from Map 6.1, this definition clearly concerned, and mentioned
specifically, islands whichwere located wellto the north and east of Ligitan and Sipadan.
Quite evidently,Spain did not considerthat either ofthe disputed islands formed part of its
domains.
6 Emphasisadded. Thistranslationof the Protocolwas preparedby the British Office.Itis
containedinIM, Annex33,Vol.2.6.10 At several junctures, Malaysia'sMemorial itself confïxms that Spain showed no
interestover the islands7. For example,Malaysiaclaimsthat Spain was quite indifferentto
alleged (but not demonstrated) British activities on Ligitan and siPadans. Elsewhere,
Malaysia asserts that, with respect to the question of which islands appertained to British
North Bomeo after 1878, Spain was not interested9. And Malaysia evengoes so far as to
quotefiom a 1903reportby a local officia1in North Bomeo whichstatedwith respectto the
islands that "the Spanishhavenever claimed or exercised anysovereign rights overthem as
faras 1kn~w"'~.
6.11 Spanish indifferenceto the islands of Ligitan andSipadan can be readily explained.
Spainwas under no illusion that itpossessed sovereigntyover either isla-dhence Spain's
lack of interest in the 1891 Convention whichsettled the territorial status of Ligitan and
Sipadanonce and foral1between TheNetherlands and GreatBritain.
6.12 If any further confirmationof the lackof Spanishtitle over the disputed islandsis
necessary,it is provided by exarniningthe tenitories that Spain ceded to the United States
following the Spanish-ArnericanWar. As the next section will show, neither island fell
withinthe scopeof the territorieswhich Spainrelinquishedto the United Statespursuantto
the 1898and 1900treaties.
6.13 h hdonesia's suhmission,the only possibleconclusionis that Spain's claims - and
presurned rights to islands off theoast of North Bomeo - only concemed the Philippine
Archipelago,while the islandsof Ligitan and Sipadanwere never part of the Spanish - or
Sulu - possessions; nor had they ever been so claimed. This is not suxprisingsince the
disputed islands fell under Dutch sovereignty. Naturally, ThNetherlands had not been a
party to the varioustreatiesregulatingSpanish andBritish possessions in theareabecauseits
rightsandinterestswere not concemed.
7 Wparas. 5.19,5.205 (c),nd5.30.
8 Ibid .,ra..19.
9 Ibid.para5.20(c).
IO Ibid,para5.30. Section3. TheAbsenceof U.S T.itleFollowingthe 1898and 1900Treaties
6.14 Malaysia's argument continuews itha section entitled"TheRecognitionby the United
States (as Successorto Spain) of British Rights to NorthBorneo, including the Disputed
~slands"". Inthis section,Malaysia abandonsits argumentthat title over Ligitanand Sipadan
was transferredby the Sultanof Suluto the BNBCand GreatBritain in favour of the thesis
that title remainedwithSpainup to the1898 and 1900 treatiesat whichtirneit was passedto
the United States. Malaysia tries to by-pass thenconsistenciesof its legal arguments by
assertingthat "there wasno discussionof whichislands fellon which side of the threemarine
league line as between Britain and Spain. Spain was evidently willing to allow the
administrativestatu quo in relationto the offshore islands to remain unchanged"12.Quite
apart fiom the fact that there was no British administration overthe disputed islandsat the
time,this last statementseemsto indicatethat Spain, which wastheegitimatesovereignover
the territory accordingto Malaysia'salternativeesis, accepted- for unspecifiedreasons-
that anothergovenimentcany outthe administrationofthatterritory.
A. The 1898 and 1900Treaties DidNot Include Ligitanand
Sipadan
6.15 The fact that, accordingto Malaysia, Spain retainedtitle over the disputed islands is
the necessarylinkto include theU.S. GovernmentwithinMalaysia'salternativechah of title.
Indonesia does not disputethat Spain cededthe Philippine Archipelagoto the United States
through the Peace Treatyof 10 December 1898, and that on 7 November 1900 the parties
signeda Mer treatyforthe cession of the islands lyoutsidethe boundaryline setforthin
ArticleIIIof the1898 Treaty. However,thereis no evidencethat the PhilippineArchipelago,
as definedin these treaties, extendedas farsouth so asto include the islandsof Ligitan and
Sipadan.
6.16 Malaysiaadrnitsthat the1898 Treatydid not includethe disputed islands. However,it
allegesthat "The 1900 Convention was understoodascoveringLigitan andSipadan,amongst
other islandslying betweenthe threenauticalmile limit andthe lineoriginallyestablishedby
I I Zbid.paras5.21-5.44.
12 Ibid.,par5.21.the 1898~reaty"'~.Quiteremarkably, Malaysiadoesnotproduceany evidenceto substantiate
thisambitiousassertion.
As will be recalled, the 1900 Treaty containedonly one provision, which read as
6.17
follows:
"SOLEARTICLE
Spain relinquishesto the United States al1title and claim of title, which she
may have had atthe time of the conclusionof the Treatyof Peace of Paris, to
any and al1islands belongingto the Philippine Archipelago,lyhg outsidethe
lines described in ArticleIIIof that Treatyand particularlyto the islands of
Cagayan Sulu and Sibutii and their dependencies, andagrees that al1 such
islands shallbe comprehendedin the cessionof the Archipelago as fully asif
theyhad beenexpressly included withinthose lines"".
6.18 The language of this provision is unarnbiguous:the 1900 Treaty only referredto
islands fonning part of the Philippine Archipelagolying outside of the line agreedto in the
1898Treaty. Inparticular, the 1900Treatyprovidedthat the islandsof CagayanSulu,Sibutu
and their dependencieswere arnongstthe territories ceded by Spain to the United States.
According to the plain and ordinary meaning of this provision, Ligitan and Sipadan were
patentlynot consideredpart of the Philippine Archipelago; noc rould they be viewed, given
their position,as "dependencies" ofCagayanSuluand Sibutuwhich layfarto thenorth.
6.19 Consequently, theofficialposition of the DutchMinistryof ForeignAffairs,recorded
in correspondence exchanged withthe Dutchenvoyin Spain,wasthat the 1900Treatydid not
concern the Netherlands East Indies'possessions, since the islands of Cagayan Sulu and
Sibutu were not located in proximity of the Dutchterritories, but were situated "between
BRITISH NORTH BORNE0 andthePHILIPPINES "15.
6.20 A mere glance atInsert9 onpage44 of Malaysia'sMemorialor at themap reproduced
opposite as Map 6.1, shows how fa away Ligitan and Sipadan lay fiom the islands of
CagayanSulu and Sibutu; certainlytoo far tbe conceivably referredto as being relatedto
them inanyway. Moreover,the fact that priorto the 1898and 1900treatiesSpainhad never
13
14 Ibid.,para.5.25.
1s IM, Annex94, Vol.3.
See letterfioVanWeedetotheDutchMinisterof ForeignMairs of 3 March1900,atAnnex28 and
letterfiom the Dutch Minisrf ForeignMairs to the Dutchenvoy in Madrid,19 April 1900, at
Annex29, Vol.2.indicated a. interest over either Ligitan or Sipadan provides Mer evidence that these
islandswerenot within the Spanishtenitories transferredto the United States.
6.21 As will beseen in the followingsections,this conclusionis supportedby subsequent
events. Althoughthe documentary evidence shows that U.S.fficialswereuncertainasto the
preciseextent of the U.S. possessions in thearea, andthat therefore different positionswere
tentatively advancedat different times,ese were subsequentlyamendedor withdrawn, and
finally resolvewith the 1930 Convention betweenthe United States and Great Britainby
fixingthe southem limits of the U.S. possessions along the4O23'N parallel oflatitude,i.e.
wellto thenorthofthe 4" 10'N lineof latitude establishedbythe 1891Convention.
B. U.S .ctivitiesin the RelevantArea
6.22 In 1903, the U.S. authorities sent one of their vessels to the area to monitor the
situation. The voyage ofthe U.S.S.Quirosin 1903and its related correspondence showthat
the U.S. Government was unclearas to the extent of the U.S. possessions in the Sulu
Archipelago andthat, contraryto Malaysia'sassertions,anyU.S. claimsover islandslyingoff
the north-eastem coast of Bomeo were subsequently retractedby the United States itself6.
With respectto the disputed islands,it willbe recalledthat, althoughalog bookdated24 June
1903 shows that the island of Sipadan had been visited by the Quiros,the documentary
evidenceproducedby Malaysia conhm that there is no recordthat the vesse1ever stopped
onthe islandofLigitan.
6.23 Whateverthe U.S. position in the summerof 1903,in October ofthe same year the
U.S. NavyDepartmentrecommendedthat the boundaryline shown oncertainU.S. chartsbe
omitted. Interestinglyenough,this recommendationconcemed in particular the chart of the
"NorthemShoreof SibukoBay" issuedby the U.S. HydrographieOffice in June 1903 - i.e.
&er thevoyageofthe Quiros - an extractof whichhasbeenreproducedbyMalaysiaas Insert
10 at page 46 of its Memorialand to which Malaysiaattaches considerableimportance. In
fact,this mapwas one of a number of maps which was withdrawnfiom distributionpending
16 IM,paras7.41-7.51.final resolution of the boundarysituation foiiowingthe instructionsof the U.S. ~avy". It
followsthat no evidentiaryvalue canbe attachedto it.
6.24 As alreadynoted in Indonesia'sMemorial,the correspondencebetweenthe U.S. State
Department andthe U.S. Secretaryof War followingthe voyageof the U.S.S. Quirosshows
that theU.S. Govemmenthad seriousdoubtsasto the soundnessof linesdrawnexparte18.In
particular, the U.S. Acting Secretaryof War, John Hay, in a letter which appears to refer
precisely to the chart issued by the U.S. Hydrographic Office which is reproduced in
Malaysia'sMemorial, notedas follows:
"Anyline drawnby eitherpart in interestfor itself alone would necessarilybe
tentativeunlessassentedto bythe otherparty''.
6.25 Thelettercontinued:
"Underthese circumstancesthis departmentis unableto eitherconfim or alter
the line drawn ex parte upon the chart you have received fiom the
Hydrographic Office oftheNavyDepartment. It maybe remarked, however:-
"1. The prolongation ofthe red tracing from the east-ward ofSibututo and
around SipadanIsland andthencenorth-wardlyto Darval Baywould probably
require to be supportedby evidencethat Sipadan and the included keys and
rocks had beenrecognisedas lyingwithinthe dominionsof Sulu describedin
the conventionsbetweenSpain onthe one hand andGreat Britainand Germany
on the other. Thisis a questionoffact whichthe departmentof state hasno
meansof determining and considering whichan opinionwouId be mainlyex
parte. Thetreaty of Nov. 7, 1900,by expressly including theIslandof Sibutu
mayhave intendedsuchinclusionas exceptionaland as a lirnitto the clairnsof
Spanishdominionto the south-westofthe Sulugro~~"'~.
6.26 It is thus clear that the 1903 Hydrographic OfficeChart, far from being a "public
assertion"of U.S. sovereignty, assuggestedby Malaysia, wasa tentative intemal position
which was subsequentlywithdrawnafter more carefulconsideration. As such, it cannot be
seen as an officia1 document which calledfor protest or any other reaction by The
17
The backof themapcamiesa numberof stampsincluding"1582615NAVY DEPT SECRETARYS
OFFICERec'dJUL 30 1903". Thisstampnumberis referredto in a letterfkomthePresidentof the
GeneralBoardtotheSecretaryoftheNavydated25 November1903toidentie oneof thechartswhere
the boundaryline shouldbe omittedpendingfinai agreementwith GreatBritain. The letterandthe
18 IM,epara.7.41.nofthebackfthemapareattachedasAnnex30,Vol.2.
19
ïM, Annex104,Vol. 3. Emphasisadded.Netherlands,particularlyin light of the fact that this chart was withdrawn shortly afier its
publication. At most,the line definedon the chartproves onlythat the U.S. authoritieswere
confusedasto the limitsofthe formerSulupossessions. It is also worthrecalling,as noted in
Indonesia's Memorialt,hat accordingto U.S. sources,theuncertaintyoverthe officia1position
to be taken by the U.S. Govemment regarding theboundarycontinuedat least until October
1906. In the meantime,the Secretary ofWarorderedthat al1officia1maps of the areacontain
a referenceto the 1885Protocol,the 1898PeaceTreaty andthe 1900~reafl.
6.27 The 1907U.S.-Britishexchangeofnotesdeservesa separatemention. As explainedin
Indonesia's Memorial,this exchange consisted of a temporary arrangement wherebythe
United Stateswaivedin favourof the BNBCthe administrationof certain islandslocated "to
the westward and southwestward of the line traced on themap which accompanied Sir H. M.
Durand'smemorandumof the 23rd of June, 1906"~~.Anysuchwaiver,however,was without
prejudiceto the issueof sovereignty.
6.28 The islandsof Ligitanand Sipadancould not havebeencoveredbythe 1907exchange
of notes,nor, for that matter,by anyotherpreviousarrangementor instrument,for the simple
reason that they forrnedpart of the territorialpossessionsattributed to The Netherlandsby
virtueof the 1891Convention.Afterthat date,the islandsand landterritorylyingsouthofthe
4" 10'N latitudewereunderDutch sovereignty.Again,no protestfiomthe DutchGovernment
was calledfor sinceits sovereignrightswere notinvolvedu.
6.29 As for the map attachedto the 1907Exchangeof Notes, it wasalso not opposableto
The Netherlands since the Dutch Governmentwas never aware of it and the map, in any
event,didnot purportto dealwithtemtorial limitsor sovereignty.
20
Ibid.,Annex111,Vol. 3.
21 Ibid.,Annex113,Vol. 3.
22 Itshould be notei, cidentallyt,hat,contowhatis stateinpara.5.41ofMalaysia's emorialt,he
1907exchangeofnoteswasnotpublished"atthetimenby theUnited StateasndBritain.Asstatedin
MM, para.5.41~ÏL42, theexchangof noteswasnotpublishedbytheUnited Statesntil1910.As to
GreatBritainVol.102 oftheBritishandForeignStatePapersreferrtoatMM, para.5.41fh43,was
not publisheuntil1913,i.e.6yearsaftertheexchangeofnotes. C. The 1930 ConventionConfirmedthat the IslandsDid Not
Belongtothe United States
6.30 As pointed outin Indonesia's Memorial, whateveruncertaintymighthave existedwith
regard to the respective U.S. and British possessions in the area, the Convention of
2 January1930between GreatBritainand the United States,and the resultingboundaryline,
resolvedthe situationonce and fordl.
6.31 The 1930 Convention confirmedthat the islandsfonning the subject matter of the
present dispute did not belongto the United States. Ascan be seen from Map 6.2 on the
oppositepage(a reproductionof Map7.3of Indonesia'sMemorial),the line resultingfrom the
1930 Conventionallocatedto the United States, as part ofthe former Spanishpossessions,
islandslyingwellto the northand eastof Ligitan andSipadan. It isthereforeobviousthat the
disputedislandswere not attributedto the UnitedStatesas a resultofthis Convention.
6.32 Malaysiaalleges,however,that, pursuantto the 1930 Convention, theUnited States
relinquishedsovereigntyoverislands lyingsouthand westofthe delimitationline infavourof
the Stateof North Bomeo. The implication is that Ligitan andSipadanare includedin these
islands so relinquished. Malaysiaalso attachessignificanceto the fact that the Convention
provokedno reaction fromThe Netherlands.
6.33 Article 1 of the Convention described theboundary line separating the islands
belongingto the United Statesto the islands belongingto British NorthBorneo. Article III
providedas follows:
"Al1islands to the north and east of the said line and al1islands and rocks
traversed by the said line, should there be any such, shall belong to the
PhilippineArchipelago, and al1islandsto the south and west of the said line
shallbelongto the StateofNorth ~orneo"*~.
6.34 Whileit is true that this provisionstatedthat al1islandssituatedsouthand west ofthe
line defïned in Article1 belonged to the State of North Borneo,this language cannot be
interpreted in isolation since it contained no geographicallimits to Britain'spossessions.
Y ïh4Anna 124,Vol.4.UnderMalaysia'sreadingofthe Convention, anyislands - whetherundisputedlyDutchor not
- lyingto the southandwestofthe Conventionlinebelongedto Great Britain. Thefactofthe
matteris that ArticlIIIof the1930 Convention mustbe interpreted withinthe contextof the
other international instrumentsthathad been concludedby the concemed parties in thearea,
inparticularthe 1891ConventionbetweenGreatBritainand TheNetherlands.
6.35 The provisionsof the 1930Convention werewithoutprejudiceto the positionof The
Netherlandsas to which the Conventionwas res interalia acta. The Convention could not
have disposedof islands which already belonged to another Stat- i.e. The Netherlands- by
virtue of a previous convention enteredinto by Great Britain. Asthe disputed islands had
been allocatedto TheNetherlandsas a resultof the 1891Convention,which fixed the limits
ofthe respectiveBritishand Dutchpossessionsalongthe 4" 10'N latitude eastof the islandof
Sebatik,neithertheUnitedStatesnor GreatBritainhad sovereigntyoverLigitan andSipadan.
6.36 In surnmingup the situation,it isappropriateto recallthe wordsof JudgeHuberin the
Islandof Palmascase. Indisposingof the argumentthat the United States had title to the
island in questionunder the Treaty ofParis of 1898, Judge Huberstated: "It is evident that
Spaincould not transfermorerightsthan sheherselfpossessed"24 (nemodutquodnonhabet).
The disputed islandsof Ligitanand Sipadancould not havebeen transferredby Spainto the
United States because Spainhad no title overthem. By the sarnereasoning,they could not
havebeentransfened bythe UnitedStatesto GreatBritainin1930.
Section4. Conclusions as to Malaysia's Arguments Based on Conventional
TitleOverthe DisputedIslands
6.37 In light of the foregoinganalysis,Malaysia's argumentsthat title over the islands of
Ligitan and Sipadan was acquired through a series of treaties and other conventional
instruments - whetherbased on a chainof title passingthroughthe BNBCand Great Britain
or on a chah of title passing through Spain,the United States and GreatBritain- must be
rejectedforthe followingreasons:(a) The 22January1878grantbythe Sultanof Suluto Messrs.Dent and Overbeck
was restricted to islands lyiwithi nine nautical miles fiom the coast of
North Bomeoand thus did not concem the disputed islandswhich lie beyond
this distancefiomthe coast;
(b) The Royal Charter grantedto the BNBC in November 1881 and the 12 May
1888 agreement institutingthe State of North Bomeo simply confïrmed the
geographic scopeof the 1878 gant of the Sultan of Sulu and thusdid not
includethe disputedislands;
ArticleIIIofthe Protocolsignedin March 1885by GreatBritain,Germanyand
(c)
Spain concemed the islands of the Sulu Archipelago and other islands
belongingto the Sultanof Sulu, includingosewhich lay withinnine nautical
milesfiomthe coastofNorth Bomeo. Thedisputed islands fa11morethannine
nautical miles fiom the coast andthe definitionof the Sulu Archipelagin
ArticleII of the Protocolconfhned the factthat the Sulu Archipelagodid not
compriseeitherLigitan orSipadan;
At no time did Spain ever claimthe disputedislandsor exhibit any interestin
(d)
them;
(e) The Treaty between the United States and Spain of 7 November 1900
concemedthe islandsof CagayanSuluand Sibutuand their dependencies and
therefore could not have included the disputed islaxids which were
geographicallyremotefiomthe areascoveredin theTreaty;
The statement by the Sultan of Sulu of 22 April 1903, notwithstandingthe
(f)
doubtsconcerningits legal validity,didnot identiQthe disputedislandsaspart
of the Sulupossessionswhich were deemedto be part of the 1878rantbythe
Sultan of Sulu andcannot be constnredin the sense of includingthe islands
withi those possessions. Al1 of the islands named in the Sultan's
Conhnation as formingpart ofthe original grant toDent andOverbeck layto
the north of the" 10'N line of latitudeagreedin the 1891 Convention. This position was confïrmedin the 1903Stanfordmap which depicted the eastem
limitsoftheBNBCastrackingthe seawardprolongationofthe 4" 10'N lineof
latitudeasprovidedfor inthe 1891Convention;
(g) The 1907 exchange of notes between the United States and Great Britain
focused on claims to former Spanish possessions in the Sulu Archipelago
situated Mer north than the disputedislands and thus bore no relation to
them. In any event, these exchanges wereres inter alios acta as far asThe
Netherlandswasconcemed;
(h) The Conventionof 2 January 1930betweenthe United States and the United
Kingdomconfïrmedthat the disputedislands were not part of U.S. temtorial
possessions. Furthermore,the disputedislands could not have been allocated
to Great Britain as a result of the 1930 Convention because they already
belongedto The Netherlandsby virtueofthe 1891Convention. CHAPTER VII
MALAYSIA'SASSERTIONSOFPOSSESSIONANDADMINISTRATIONOF THE
ISLANDS POST-1891DO NOT CONFIRMANYMALAYSIANTITLE
7.1 In Chapter 6 of its Memorial, Malaysia basesits clairn on "the continuouspeaceful
possession andadministrationof the islandsby Malaysia andits predecessors in title"in an
attemptto supportthe second"strand"of its argument1,accordingto which, even ifthe Sultan
of Suludid not haveoriginaltitleover Ligitanand Sipadan,this continuouspossessionwould
havesuffïcedto conferterritorialtitleover the disputedislandsto Malaysia.
7.2 Just as Malaysia ens in its interpretation of the 1891 Convention, so does it
misinterpretthelegalrole of eflectivitésin relationto the questionof title (Sec1).nIt fails
to establishits sovereigntythroughactsof effectiveadministrationby it or by its predecessors
(Section 2), while unjustifiablydownplayingthe scope of Dutch and Indonesianactivities
relatingto the islands (Section) and neglectsthe significanceof the 1969 negotiationsand
the diplomatichistoryof the case(Section4). Finally, Malaysia's Memoriam l isrepresentsthe
import of the map evidence in the case. Indonesia will thus show that the map evidence
constitutes an element of the conductof the Parties and their predecessors which must be
taken into consideration and which fully confhns Indonesia's title over the islands
(Section 5).
Section 1. The LegalRole ofEffectivi itthse Case
7.3 As has been noted2, the Parties agree îhat the disputed islands have never been
considered terraenulliur,at leastduringthe relevantperiod forthe purposesof this dispute3.
Nonetheless,Malaysia dismissesout of hand anypossibility îhat the notion of prescnptive
acquisitionappliesto the islands:
--
1
2 Seepara.5.1.
Seeparas.2.14and3.2above.
3 See IM,para.4.andMM, paras.3.and5.8. "This approach, founded upon long, peacefui anu dndisputed administration,is
not, it must be emphasised, one involving the assertion by Malaysia of a
prescriptivetitle against Indonesia. [...] Indonesia andthe Netherlandsnever
hadtitle to the islands; sothere isno questionof theirhavingbeen deprivedof
it byprescnption'~4.
7.4 The entire reasoningbehindMalaysia'sargumentis based ona fundamentallyflawed
On the one hand, as
premise:that Indonesia lacksterritorialtitle to the islandsin question.
Indonesia recalledin Section 1 of Chapter?Ii,there is every reason to believe that prier to
colonisationby The Netherlands, the Sultanof Boeloengan heldterritorialtitle over Ligitan
and Sipadan - a conclusionwhichis confimed bythe solemndeclarationmadebythe present
pretenderto the Sultanateof suluS. Moreover,to the extentthat there wasanyambiguityasto
the extent of the Sultan's possessions,the Anglo-Dutch Convention of 1891 settled the
question.
7.5 In the light of this, the administrativeacts, ofwhich Malaysiaboasts,must have been
of such a nature so as to displace an existingtitle and not merelyto conzrm it. Indonesia
reserves its position on the question of whethera transfer of sovereigntymay result fiom a
long period of undisputed occupation, be that through acquisitive prescription - a concept
whichis doubtfuiunderinternationallaw6 - or by any othermeans,without theconsentof the
dispossessedState. In any event, Mer discussionon this point is of little relevance given
that Malaysiaspecificallydismisses thisline of argument andthat the acts on whichit relies
are insuffïcientto establishits sovereigntyoverLigitan andSipadan,evenifthe situationwere
res nullius,whichit isnot.
--
4 MM,para.6.3.
5 Annex3.
6 Incaseof anydoubtsonthis point,see,inparticul,udgeMorenoQuintana'd sissentingopinioninthe
case concemingRightsof Passage overIndianTerritory,whichconsidersthat"prescriptiona,private
lawinstitution..] fin&noplacein internatiollw",RightsofPassageoverIndianTerritory,Merits,
Judgment,I.C.J. Reports1960,p.6 atp. 88. SeealsothecautiousapprofollowedbytheCourtinits
Judgmentof 13December1999in thecaseconcemingKasikiIiISedudu Island (Botswana/ Narnibia),
Judgment,I.C.J., para.97 andthe carelidconsiderationof the issue in Sir RobertJenningsandSir
ArthurWattseds., Oppenheim'sInternationalLaw, 9' ed, London,Longman,1992,Vol. 1,pp. 705-
708; See alsoBrode, I.,Principlesof Public InternationalLaw, 5' ed., OxfordUniversity Press,
1998, p. 156, and the very comprehensivepresentationof the whole problein Kohen,M. G.,
Possession incontestée et souveraineté terraleF,Paris,1997,pp. 17-34,49-56and60-71.7.6 In the case conceming the Territorial Dispute (LibyanArab JamahiriydChad), the
Court found that once it had established thatthe 1955 Treaty between Chad and Libya
providedit withan answerto the issue beforeit:
"the effectiveness of occupation of the relevant areas in the past, and the
question whether it was constant,peaceful andacknowledged, [were] ...not
mattersfor determinationinthis case"'.
The same solution must prevail in the present case because of the existence of the 1891
Convention. Despitethe importance givenby Malaysiato the alleged "continuouspeaceful
possession andadministrationof the islandsby Malaysia andits predecessorsin title118 t,his
doesnotcoincidewith theCourt's conclusion inthatcase.
#
7.7 The fact remains thateflectivitéscany a different weight andlegal significance,
depending on whetherthey areinvokedto replacea non-existenttitle, supportan existingone,
or overturnsovereigntybasedonan existingtitle.
These distinctionswere made clearlyby the Chamberof the Courtwhich decided the
7.8
Frontier Dispute case between Burkina Faso and Mali in 1986. After having defmed the
"colonialeflectivitésas "the conduct of theadministrativeauthorities asproof of the exercise
of temtorial jurisdiction intheregion during the colonialperiod", the Chamber went on to
state, "in generalterms, what legalrelationship existsbetween such acts" and "the relevant
titles". TheChamberheldthat:
"Forthispurpose,a distinctionmustbe drawnamongseveraleventualities.
(i) "Where the acts correspond exactly to law, where effective
administration is additional" to the title, "theonly role of efectivité is to
confïrmthe exerciseoftherightderived"fiomthis legaltitle;
7
TerritorialDispute(LibyanArabJamahiri/Chad),Judgment,I.C.J.Reports1994, p. 6 atp. 38,
8 para.76.See para3.85,above.
MM, Chapter6. (ii) "Where the act does not correspondto the law, where the territory
which is the subject ofthe disputeis effectivelyadministeredby a Stateother
than the one possessingthe legaltitle, preferenceshouldbegivento the holder
ofthe titleUg;
(iii) "In the eventthat the efectivitédoesnot CO-exisw t ith any legaltitle, it
mustinvariablybetakeninto consideration;
(iv) "Finally,there are caseswherethe legaltitle is not capableof showing
exactlytheterritorialexpanseto whichitrelates"lO.
7.9 Inthe presentcase,theselasttwohypothesesarenotrelevantgiventhat:
(a) there can be no doubtas to the "territorialexpanse"to which thetitle relates:
the allocationof tenitories betweenTheNetherlandsand the United Kingdom
was realisedby meansof the continuationof parallel4" 10'N eastwardacross
the islandof Sebatik,and seaward; and
(b) as Indonesia has already notedl', the Parties agree that the disputed islands
were neverterraenulliusduringthe relevantperiod'2.
7.10 Consequently,it is onlythe first twohypothesesdefinedby the Chamberof the Court
in 1994that shouldbe taken into consideration. In this regard, the effect of the principles
identifiedby the Courtdependson whether oneconsidersthe issuefkomthe perspectiveof a
Statethathas evidenceof territorial title,or fkomthe perspectiveof a Statethat contestssuch
a territorialtitle. In the first case (in the current dispute the hypothetical Statewould be
Indonesia orits predecessor in title, TheNetherlands),the efectivitésinvokedby a Statecan
have a confirmatoryrole and constitutean illustrativedepictionof its exerciseof sovereignty
(firsthypothesis). Alternatively,in the secondcase (the hypothetical Statebeing Malaysia),
9 One couid debate whether this wording allows for the acquisition of a prescriptiveatquestion
which is often disputedin internationallaw. However,since Malaysia expresslyStatesthat it does not
invoke such a tit(MM, para. 6.3), Jndonesiadoes not consider it necessaryto enter into îhis debate.
Nevertheless, Jndonesia deems it necessaryto poout that the supposed effectivitéswhich Malaysia
invokes would clearly not justiQ any such prescriptive acquisition, even if such a concept were
admissibleinintemationallaw,whichisnot thecase.
10 Frontier Dispute,Judgment,I.C.J.Reports 1986,p. 554 at pp. 586-587, para. 63. SeealsoLand, Island
and Maritime Frontier Dispute(El Salvador /Hondurar: Nicaragua intervening),Judgment,I.C.J.
Reports 1992,p. 351 atp. 436, para. 125.
11 See,for example,para. 7.3, above.
12 It is unclearwhetherthe Partiesagreeoverwhatconstitutesthe relevantperiod. However,îhis doesnot
detractfkomtheiragreement over theprinciplein question.according to the Chamber of the Court, a State cannot avail itself of its own possible
eflectivité(orthose of itspredecessor)inthe faceof a holderof legaltitle.
7.11 Theseprinciples are wellestablished andconhned by consistent caselaw. Thus,in
the case concerning the Temple of Preah Vihear, where title derived fiom Thailand's
acceptance ofa map,the Courtfoundit:
"difficuitto regardsuchlocalacts [Thailand'sacts on the ground]as ovemding
and negativing the consistent and undeviatingattitude of the central Siamese
authoritiesto the fiontier line asmapped"13.
Similarly,in the caseconcemingthe Land,Island and MaritimeFrontier Dispute, aChamber
of the Court also analysedthe 1986decision, making clear that in determiningthe fiontier
betweenEl Salvador and Hondurasin the contextof the utipossidetis situation,at the the of
thetwo States'respective independence,it couldnottake into considerationonly"thecolonial
effectivitésand not post-colonialactsof administrati~n'~.
7.12 It is in the lightof these principlesthat Malaysia's use and presentationof its alleged
effectivité(and those of itspredecessor), as wellas its claimconcerningthe allegedinactiviîy
of TheNetherlandsand Indonesiaoverthe disputedislands,shouldbe exarnined.
7.13 In the present case,as willbe seenin Section 2,below,it wouldbe extremeto consider
that the two disputed islandshad been "effectivelyadministered" by Malaysia before the
critical date (Le. before 1969). However,even if this had been the case, Malaysia cannot
validly claimthat its allegedeflectivitéprevailoverthe conventionaltitle of Indonesia.
7.14 Furthermoreand in any case,whether consideredin isolationor taken as a whole,the
acts relied upon by Malaysia do not establish the existence of a continuous peaceful
possession and administration of the islands capableof displacing Indonesia'stitle or of
creatinga territorialtitle ints favour.
13 TempleofPreahVihear,Merits,Judgment,I.C.J.Reports1962,p. 6 atp. 30.
l4 Land,Island and Maritime FrontDrkpute (ElSalvado/Hondurm:Nicaraguaintervenin&,
Judgment,I.C.J.Report1992 ,.351at pp.398-399 paras61-62. Section2. BriefCommentaryonthe So-CalledActsof AdministrationReiied
Upon by Malaysia
7.15 In paras. 6.5 to 6.31 of its Memorial, Malaysiadescribes a number of acts that it
atûibutes either to the BNBC, to the British colonial administrationor to itself, which
allegedlyestablishMalaysia'sacquisitionand retentionoferritorialtitle overthetwo disputed
islands15.For the sakeof convenience, Indoneswill examinethese acts in thesarneorderas
that usedbyMalaysia.
A. The Alleged Process of Establishing Effective
Administration overthe MainlandandAdjacentIslands
7.16 In the fkst instancevarious facts are setout, which, accordingto Malaysia,illustrate
the progressiveestablishmentofBritain'scolonial administrationinthe region. The principal
actsrelied uponbyMalaysiaarethe following:
(a) the establishmentof a BNBC Residency at Sandakhan(and subsequentlyin
LahadDatu)and ofvariousposts alongthe coast of the areathat is now called
Sabah,andthe creationof Sempoma;
(b) the repressive actscarried out against the native inhabitants, notably on
Tungku , madal and Dinawan, the imposition of a boat tax and the
resettlementof"remainingBajaus"near sempoma16;and
the nominationof localchiefsbythe BNBCat DarvelBay andOmadall'.
(c)
7.17 However, not oneof theseacts concemed either Ligitan or Sipadan. Al1of them,
without exception,related totowns or islandslocatednorth of the 4" 10N line of latitude.
The places on the mainland of Bomeo mentionedby Malaysia wereal1allocated to Great
Britain underthe 1891Convention andthe closestislandto the boundaryline - though still
15
16 SeeMM, para.6.32.
TheinitialpushtoregrotheBajausonTrusanTreachoccurrein1896.
" MM,paras.6.5-6.7.14.9 kilometres (8nautical miles)away - is Dinawan,which is situatedon the northemtip of
Ligitan reef, whereasPulauLigitanisonthe southerntip1*.
7.18 h this context it shouldalsobenotedthat in certainpassagesof its Memorial Malaysia
infersthe legal status of Ligitan islandfiom that of Ligitanreef; on a number of occasions,
Malaysiarelieson activitiesrelatingto the islandof Dinawanand allegesthat these examples
demonstrateactivitiesconcemingthe islandof Ligitanitself. At para. 6.6of its Memorial for
example,Malaysiaasserts:
"Actions such as those taken against [. ..] Danawan [. .] demonstratedthe
authority of North Bomeo over the Bajau Laut comrnunitieson the various
islands"19.
This assimilationis unacceptable andhas no foundation in law. It is furthermoreexpressly
contradicted in Chapter 3 ("The Geographical Setting") of Malaysia's~emorial~' where
Ligitanislandand Ligitan reefare carefullyand correctlydistinguished.
7.19 In the lightof this, Malaysia'sargumentsimplyprovesthat the British, aswell as the
Dutch, interpreted the 1891 Convention as having allocated bot. terrestrial and insular
possessions locatednorth of latitude 4' 10'N to Great Britain. It further illustrates that the
local inhabitants,notablythe Bajau, didnot meeklyacceptthe administrationimposedby the
BNBC. This is clearlyshownby the recurrent punitiveactions ledagainst them and the fact
that the customs clerk appointedin Omadal in 1884 was "subsequentlyexpelled by local
~ajaus"~',and evenbytheir forced resettlementto Tman Treacherin 1909~~. Moreover,the
incident of 24 September 1878 when a Spanishwarship retreated fiom Sandakanafter the
inhabitants refbsedto hoist the Spanishflag, relatedby ~ala~sia*~,is of such a nature as to
raise seriousdoubts about thesovereigntyof the Sultanof Sulu overthis part of the Bomeo
18 The distinctionis clearly made in Sather, C., The Bajau Laut. Adaptation, Histoly and Fate in a
Maritime Fishing Society of South-EasternSabah, op. cit., pp.105-106 and in a receby article
ProfessorKo Swan Sik ,AsianTerritorialDisputes,With SpeciaiReferenceto the Islands ofSipadan
andLigitan: SuccessiontDutch and British TitieinTerry D. Gilland Wybo P.Heere (ed),
Rejlectionson Principles and PractofInternational Law, Nijhoff, The Hague, Boston, London,
19 2000,p. 111.
20 SeealsoMM, para.6.7whichdealswiththe CO-optinflocal leaders.
21 MM,paras.3.9 and3.11;seeaisoMM, para.6.28andAnnex113,Vol.4.
22 Zbid.,para.6.5.
u Ibid., para.6.5.ol.4.coast. Contraryto the pictureMalaysiaseeksto present,this refusal of the Sandakhanchiefs
(who do notin anywayreferto thernselves as "Sulu") wasnot based on an attachmentto the
Sultanof Sulu,but onthe fact thatthey wishedto take "nopart in anywars betweenSpainor
SU~U~'~~.
7.20 Accordingto Malaysia,"A crucial aspect ofthe Companyadministrationwas its CO-
option of local leaders"25. Malaysia givesonly two "examples" of this: that of Nakoda
Gomba,in Sandakhan, andof PanglimaUdang, in Semporna. In the second case, Malaysia
relies on anaffidavit signedin 1975bythe son of the person ~oncerned~~ w,ho states that his
father'sjurisdiction includedSipadanandthat he usedto accompanyhis fatheron excursions
to gatherturtle eggs. Although the secondassertion has a plausible air aboutit2',the first
assertionleads oneto concludethat PanglimaUdang wasa high-rankinglocal to whom the
inhabitantsof Semporna would tuni in caseof disputesconcerningpreciselythe gatheringof
turtleeggs andnothingmore.
7.21 In its Award of 9 October 1998in the case betweenEritrea and Yemen,the Arbitral
Tribunal dealt with a similar problem. In this case, Yemen invoked the fact that local
fishermen had recourseto a "customary law system ofarbitrationof local disputesunderthe
authorityof an aq'il - 'apersonknownforwisdomand intelligence"'28 , hosedecisionswere
binding2'.However,the Tribunal consideredthat:
"the rules applied in the aq'ilsystemdo not find their origin in Yemeni law,
but are elementsof privatejustice derivedÇom and applicableto the conduct
ofthe tradeof fishing. Theyare alexpescatoriamaintainedon aregionalbasis
by thoseparticipatingin fishing (..). The factthatthis systemis recognized or
supportedbyYemen doesnotalterits essentiallyprivatecharacterW3O.
Thissameconclusionmust prevailinthepresent case.
24 Ibid., Annex78, Vol.4.
25 Ibid, para.6.7.
26 The annexes mentioned ithis document(MM,Annex 120, Vol. 4) arenot in factattached;their
consultationybeofacertain interest.
27 Seeparas.7.23etseq., below.
28 Award of theArbitral TribunalintheFirstStage oftheProceedings (TerritorialSovereigntyandScope
of theDispute), 9tober1998,p.89 atpara.337.
29 Ibid., p. 89 atpara.338.
30
Ibid.,pp.89-90atpara.340.7.22 None of these facts establishes the administrationof the islands in question by
Malaysia àtitre desouverain3'.
B. Collectionof Turtle Eggs
7.23 Malaysia devotes no less than four and a half pages to the "right to collect and to
controlthe collectionof turtle eggs on ~i~adan"~'. In these pages, Malaysiaretraces ahistory
leading backto "well before 1878"" and attempts to establish that the "local Bajauswho
acknowledgedthe authority of the Company [BNBC]" or "leading members ofthe Island
community inhabiting the Ligitan Group (esveciallv ~anawan)"~~had been granted a
exclusiverightto the gatheringofturtle eggs, and "thatthese entitlementswere recognisedby
North Bomeo officials,andthat disputes concemingcollectionof turtle eggs were referredto
NorthBomeo officialsto res01ve"~~.
7.24 Indonesiadoesnot contestthese facts,but notes once againthat Malaysia exaggerates
these acts and gives them a legal significancethat theydo not deserve. Moreover,Malaysia
ignores the fact that Indonesians too used to collect turtle eggs on Sipadan before the
occupationofthe islandbyMalaysia.
7.25 There is no doubt that some of the Bajau Laut based on the islands north of the
4"10'N parallel, and notablyon Dinawan,used to gatherturtle eggson Sipadan. However,
nothing regardingterritorial titleto the island can be inferred fiom this: the presence, be it
seasonal or pennanent, of foreign peoples operatingin a private capacitywithin a territory
doesnot usurpthe rightfulholder's sovereign title overtheterritoryinquestion.
7.26 A similarargumentto that put forwardbyMalaysia wasusedbyNamibiaand rejected
by the Courtin the recentkhikiliLSeduduIsland case. Inthis dispute,Namibia relied onthe
presence ofMasubia tribesmenon KasilcililSeduduIsland (whodepended on Narnibia). The
Courtrecognisedthe existenceof a"peacefiilandpublicuse of Kasikili/Sedudu,overa period
--
31 LegalStatusofEmern Greenland,Judgment,1933,P.C.Z.J.,SerieA/B No. 53,p. 22 atp.46.
32 MM,paras6.9-6.23.
33 Zbid.,para.6.9.
34 Zbid.,paras.6.9 and6.23.
35 Zbid.,para.6.23.of manyyears,byMasubiatribesmenfiomthe EasterncapriviWMb ;ut the Court consideredit
impossibleto inferfiom thisthat sucha presencecouldbe consideredeitheras a "subsequent
practice in the applicationof the [1890]treaty wit. the meaning of Article 3 1, paragraph
3@),of the Vienna Convention onthe Law of ~reaties"~',or "acts ofState authoritycapable
ofprovidingalternativejustification forprescriptive titleW3':
"even if links of allegiancemay have existed between the Masubia and the
Caprivi authorities, it hasnot been established that themembers ofthis tribe
occupiedthe Islandàtitre desouverain,i.e.that theywere exercisingfunctions
of State authoritythere on behalf of those authorities. Indeed, the evidence
showsthatthe Masubia usedthe Islandintermittently,accordi1139 the seasons
andtheirneeds,forexclusivelyagriculturalpurposes.. . .
7.27 Similarly,in the recent arbitrationbetweenEritrea and Yemen,the Arbitral Tribunal
foundthat:
"... althoughsubstantialevidenceof individualfishing practices in the record
may be taken as a different form of"eflectivité" - i.e., one expressiveof the
generally effectiveattitudeand practice of individualcitizens of Eritrea or of
Yemen - it is not indicativeas such of state activity supporting aclaim for
administrationand controlof the Islands. Thisvariedand interestingevidence,
on both sides, speaks eloquentlyconcerningthe apparent longattachmentof
the populationsof each Coastto the fisheries in and around the Islands (...).
However,it does not constituteevidenceof eflectivitésfor the simplereason
that noneofthesefunctionsare actsàtitre deso~verain"~~.
7.28 The same reasoning applies in the present case. The Bajau who were under the
administrationof the British authoritieshad gatheredturtle eggs in Sipadanfor many years;
however,they werenot the onlyonesto do so. Indonesiaannexedto its Memoriala nurnber
of affidavitswhich establishthat Indonesian fishermenalso usedto fish in the watersaround
Sipadan without being disturbed by the Malaysian authorities, whom they had never
encountered beforethis dispute arose4'. Moreover, as can be seen fiom the afndavit
36
37 Ibid.,para.75. TheTreatyof 1890wastheinsûumentwhichhadestablishedthelets ofthe spheres of
influenceofthetwopredecessor States, reatBritainandGennany.
38
39 Ibid.,para.99.
Ibid.,para.98.
Awmd of theArbitralTribunal intheFirstStage of theProceedings (Territlovereignqand Scope
41 of theDispute)9 October1998,pp.84-85atpara.315.
IM,Annexes1toM, Vol.5.attachedto the present Counter-Memorial, Indonesian nationalsalso usedto collectturtleeggs
in Sipadanbeforethe Malaysianoccupationofthe island inthe 1970s. Thus,Mr. Paraggam,a
Bajaufiom Derawanisland, testified:
"Circa 1960's1was askedby my relative, Haji Abdul Harnid, a Bajau Tribe
fiom Sampma, Malaysiato look der turtle eggs at Sipadan Island, where 1
stayedfor two months. During my stay onthe island 1have never faced any
problemsfiom anybody,eitherIndonesian or Malaysianpatrol"42.
This shows clearly that the collectionof turtle eggs on Sipadan was regarded as a "Bajau
matter"whichhadnothingto dowith sovereigntyovertheisland.
7.29 Theseactivitiesprovenothingasto the territorialtitle of this island. Toparaphrase the
decision of the Court in the Kasikili/SeduduIsland case: as far as The Netherlands, and
subsequently Indonesia were concemed,the intennittent presence of Bajau fiom British
Bomeo on the island did not trouble anyoneand wastolerated, not least because it did not
appearto be comected with anyinterpretationofthe 1891 onv vent ion^^.
7.30 The same is true for the regulationsissuedby the Britishand the rules established for
the resolutionof disputesbetweenMalaysian nationalswhich are described inthe Malaysian
Mernorial. Generally,they concemthe exerciseofpersonal andnot territorialjurisdiction. It
isnormal andlegitimatefor a Stateor a colonialpowerto concem itself with theregulationof
the activities of its nationals abroad and also with disputes that may arise between its
nationals, al1 the more so if one takes into account local circumstances (for example,
difficultiesof access, a spread-out population). Neither TheNetherlandsnor, subsequently,
Indonesia wereable to impose a strong presenceeither on the northem part of the coast of
Kalimantanor onthe surroundingisland~~~.
7.31 It is true that Malaysia refersto variousdocumentsthat it misleadinglytries to use as
proof that the British authorities actedas though they consideredthat the island of Sipadan
belongedto them4*.However,this isnotthe case.
42
43 Annex31.
44 KasikilüSedudIsland(Botswana/ Namibia),JudgmentC.J. 1,December 1999 ,ara.74.
45 SeeSection3,para.7,below.
SeeMM,paras. 6.1and 6.16.7.32 The 1917 ûrdinance on turtle preservation"6 distinguishes between two areas,
stipulatingdifferentniles accordingly. Inthe fkst area, licenses must be obtained fiom the
colonialadministration. Inthe secondarea,accordingto Section 3ofthe ûrdinance:
"The areasspecifiedbythe Govemorfiomthe to the in Schedule C shallbe
deemed to be native reserves for the collection of turtleeggs, and nothing
contained in this Ordinanceshall be deemedto affect the collectionof turtle
eggsbynatives therein,andno license orconcessiongrantedhereundershallbe
deemedto include such areas: provided that natives collecting turtleeggs in
suchareasshallbe subjectto anydes declaredhereunderforthe protectionof
the industry".
ScheduleCthusonlymentions Ligitan andSipadanas "nativereservesW4'.
7.33 Indeed,the BNBC'sCharterstipulatesapolicyof respectfor indigenouscustoms4*.It
doesnot followfiomthis regulationthat theBNBCdecisionto create"native reserves"canbe
regardedas an act à titre de souverain,but ratherthat theBNBCwas acting,within thelimits
of its commercialattributions,to protect the interestsof the native populationand their right
to collect turtle eggs. The Ordinanceof 1917 shows merelythat the British colonial
authoritiesendeavouredto regulatethe activitiesoftheir nationals inorderto avoidfiiction in
the indigenouscommunity andto resolvedisputes withinthat community.
7.34 On the otherhand, it istrue that the documentdated 1922reproducedin Annex 99 of
Malaysia'sMemorial and entitled "Commercial Sea Products fiom the Coast of British
Borneo" mentions Sipadan as one of "our islands". But no details of the author of what
appearsto be a descriptivestudy printedbythe GovernmentPrintingOfficeof British Bomeo
are given,nor are any detailsprovided aboutwho was involvedin the study. In any case, a
one-off document of this type does not constitute valuable proof of the existence of
sovereigntyand,stillless,of itsdisplacement.
46
47 Ibid.Annex 97,Vol.4.
Neitherthe1914Proclamatio(MM,Annex93,Vol.4),whichStates inaperfectlneutral aythatitis
applicable"withinBritishNorthBomeo"andto "theislandswithinthe State"nor the decisions
48 reproducedinMM,Annexes91,94-96,and102-106(Vol. 4) mentioLigitanorSipadan.
MM, Annex23,Vol.2, p.284,items8-10.7.35 Besides, and more generally,it is quite understandablethat the local inhabitantsand
eventhe localBritish authoritieslackeda clear idea as to who wasthe owner of Sipadan: in
fact, the former wereused to gathering turtle eggs in fui1 cooperation with local Bajau
inhabitantswhowere govemedbythe Dutchadministration(andthe sarnewastrue in relation
to fishit~~)~~.Moreover, it seems that this activity concemed essentially theBajau Laut,
whoserelationshipwith the temtory had nothingin commonwith the concept now accepted
in public internationallaw50.Giventhis situation, itis logical that the British administrators
did not ask questionsabout who held sovereigntyoverthe island and wereconcemed above
al1 with ensuring that order prevailed among the population under their administration.
However,nothing can be inferredfiom this soundadministrativelogicin relationto the issue
ofterritorialtitle overipadan.
C. BirdSanctuary
7.36 Malaysiadiscussesthecreation ofa "megapodepreserve onSipadan"proposedbythe
conservator of forests of sandakhan5',which was the subject of a notice in the Oflcial
Gazette of 1February 1933. Malaysiaaddsthat the island"isshownas a bird sanctuaryinthe
rnapat Annexes, vol.5,Map 13"~~.
7.37 This 1935 map is indeed interesting. It was drawn up on the basis of Survey and
Forest Department records. Sipadanis shown on themap, with the legend "Bird Sanctuary".
But, significantly,this island,nlikeal1the otherislandssituatednorth of latitude 4" 10'N, is
not surroundedby lineswhichare seenaroundthe otherislandsand which seemto demarcate
the extentof theadministrativeboundaries.
7.38 In anycase,the commendable ecologicalzeal on behalfof the SandakhanConservator
of Forests does not amount to proof of the colonial authorities'wish to behave à titre de
souverain overSipadan.
49
50 Seepara.7.28,above.
51 SeeChapterIII,inparticul,ara.3.47,above.
MM, Annex 100,Vol.4.
52 ibid., para.6.24. D. Construction and Maintenano ceLighthouses
7.39 It cannotbe consideredsurprisingthat Indonesiadid not objectto the constructionof
lighthouses on Sipadanin 1962and onLigitanayearlater:
(a) such activitieswere of generalinterest for navigation, even thoughIndonesia
did nothavethenecessary funcisto cany them out;
(b) the authorities in Jakarta, whether during Dutch colonisation or after
independence, have onlybeen ableto dealwiththis remote,sparselypopulated
and inaccessible region in accordancewith its special characteristics(which
contrastwiththe situationonthe othersideofthe border)53;
and the wholeof the firsthalf of the decadeof the 1960swas a dificult period
(c)
forIndonesia, markedby serioustensionswithMalaysiainparticular.
7.40 In anycase, the construction and maintenance of these lighthouses (which the
photographs appearing on pages 22 and 25 of Malaysia'sMemorial show as very light
structures,madeof metalbars)doesnot constituteproofof occupationàtitredesouverain.
7.41 Hereagainthe ArbitralAwardof 9 October1998in the caseof TerritorialSovereignîy
betweenEritreaand Yemenisrelevant. Inthiscase,the Tribunalclearlystated:
"Theoperationor maintenanceof lighthouses andnavigationalaids isnormally
connectedto the preservationof safe navigation,and not normally taken as a
test of~overei~ntf"'~.
7.42 This is in accordance with statements made by the Court in the Minquiers and
Ecrehoscasein 1953.Inthis case,theFrench Governmentcontended:
"that since 1861it has assumedthe sole chargeof the lightingand buoyingof
the Minquiers for more than 75 years, without having encountered any
objectionfiomthe UnitedKingdomGovernment"
53 SeeSection4,below.
" Awardofthe ArbitralTribunalintheFirstStageof theProceedings(TerritorialSovereign~,and Scope
of theDispute),October1998p,. 87apara328.and put forwardvarious other actions of the same nature. The Court-y dismissed its
claims:
"TheCourtdoesnot fhd thatthe facts,invokedbythe French Govermnent,are
sufncient to show that Francehas a valid title to the Minquiers. As to the
above-mentioned acts from the nineteenth and the twentieth centuries in
particular,including the buoyingoutsidethe reefs of the group, such acts can
hardlybe consideredas sficient evidenceof the intentionof that Government
to act as sovereignoverthe islets; nor arethose acts of suchcharacterthat they
can be consideredas involvinga manifestationof Stateauthorityin respect of
thei~lets"~~.
7.43 The sarne is true in this case. Just as France had established and maintainedbuoys
outsidethe reefs of the relevant group with thepurpose of "aid[ing]navigationto and from
French ports and protect shipping against the dangerous reefs of the Minquiers"56,here
Malaysiaset up the two lighthousesin questionwitha view "to assist navigationand vessels
betweenTawau and Sandankanusing the AliceChannelroutews7.
E. ControlofTourism
7.44 Malaysia refersto the fact that it has establisheda tourist complex onthe island of
sipadanS8andthat it declaredSipadanand Ligitanprotectedareasin 1997~~.
7.45 These recent facts are,unfortunately,onlytoo true. Indonesiahas protestedon many
occasions about these devel~~rnents~~w , hich constitute infringements of its territorial
sovereigntyand are sirnply voiesde fait(egregiously illegalacts), which occurred afier the
relevantdate. As such,theycannothave any legaleffect6' and arefurthemore contraryto the
cornmitment given by Malaysia in 1969 to uphold the existing status quo in existence
regardingthe two islands as has been shown in the Indonesian Memorial. Indonesia will
comebackbrieflyto thisaspectofthe caseinthe Section4below.
55 Minquiersand Ecrehos,Judgment,Z.C.J.Reports 1953,p.47atpp.70-71.
56 Ibid., p.47atp.70.
57 ColonyofNorthBorneo AnnualReport, 196, M,Annex108, Vol.4.
58 MM,paras 3.19,nd6.30.
59 Ibid.,para. 6.37.1.
60 SeeIM, paras8.71-8.76.
61 ibid., par8.71-8.a7ndpara.8.31. Section 3. Dutch and Indonesian ActivitiesRelating tothe Islands
7.46 In Chapter7of itsMemorial, MalaysiadealswithDutchandIndonesianactivitieswith
respectto Sipadanand Ligitan andsubmits that these are insunicient to uphold Indonesian
sovereigntyover the islands. In this section of the Counter-Memorial,Indonesia will deal
with these contentionsand will concludethat they are basedon erroneous interpretationsof
the facts. Rather,the Dutch and Indonesianactivities,as explainedbelow, confirm that the
islands were regarded as belonging to the Netherlands East Indies and, subsequently,
Indonesia.
7.47 Afterthe entry intoforce ofthe 1891Convention,the Dutchactivitiescontinued6*b , ut
restricted to the islandslying south of the 4'10' N allocation line stipulated in the 1891
Convention. Duringthe period of pirateactivity intheseareas(that isuntilthe lastexpedition
by HNLMS Lynx in 1921),the Dutch Navyperiodicallypatrolled the seas around islands
locatedoffthe north-eastBomeo coastwhichwereconsideredto be underDutch sovereignty.
This is shown by the considerablenurnber of warships listedin the Koloniale Verslagen
(AnnualReports on the Colonies,presentedto Parliamentby the Dutch Govemment)which
are shown to have been present off the coast of north-eastem ~omeo~~. The islands
consideredto be under Dutch sovereignty includedSipadanand Ligitan,as is shownby the
log-booksof shipsconducting thesepatrols. TheLynxexpeditionhas alreadybeenmentioned
in Indonesia's~emorial~~.Another case involvedHNLMSKoetei which was presentin the
area in 1910. This ship'slog-book contains an entry for 30 September 1910specifically
mentioningcruisingnear Sipadanand ~i~itan~'. The patrols by the Dutch Navy continued
even afterthe dangerofpirateactivityhadcea~ed~~.
7.48 This practice also confimis the interpretation submitted by 1ndonesia6'that the
definition of the territory of the Sultan of Boeloengan (as a self-governing part of the
NetherlandsEast Indies)annexedto the Contractof Vassalageof 1878,as amendedin 1893,
contraryto the contentionsof Malaysia, continuedto include Sipadanand Ligitan.
62 As fortheactivitiesbefo1891 eepara.4.16,above.
63 Annex 32.
64 IM,paras.3.72-3.7 nd 6.2-6.5.
65 Annex33.
66 SeethelistofwarshipatAnnex32.
67 SeeïM,paras.4.68-4.71 a5.62.7.49 Malaysia seemsto laysome stresson the factthat the NetherlandsIndies Government
did not exercise effective control over partsof the domainof the Sultanof Boeloenganuntil
early in the 2Othcentury6'. Even if that were correct,this certainly does not apply to the
maritime element ofthat domain. As shown above, the Dutch Navy patrolled these areas
effectivelyfiomthe 1870s. Thematerialsrelied uponbyMalaysiainthis part of its Memorial
(in particularAnnexes 39, 69 and 70) specificallyconcernthe land domain of the Sultanof
Boeloengan and Saynothingaboutthe effectivenessof the control exercisedby the Dutch in
theirmaritimedomain.
7.50 In para.7.14of its Memorial, Malaysia mentions the hydrographiesurveyingactivities
of HNLMS Macasserin 1903. Indonesiahas alsoreferredto these activitiesat para. 5.40of
itsMemorial. However, the Malaysian interpretationofthe reportbythe commandingoficer,
i.e. that he appearedto treat al1islands mentioned(includingSipadanand Ligitan)as being
part of BritishNorth Borneo,is unfounded. For surveyingpurposes it is normal to treat al1
maritime features in a purely geographical, andpolitically neutral, way. Rather, the real
significanceof this report is that it shows Dutch activities inthe area, demonstratingthat the
Dutch hadinterests there: theDutch ship was there becauseof the need to surveythe waters
surroundingDutch islands. Thissurveybythe Macasser resulted in the publication in1905of
chart No. 59 by the NetherlandsHydrographieOffice. Updatededitions of this chart have
subsequentlybeen issued severaltimes,basedon new datacollectedbythe Dutchnavy. This
shows that the Dutch Government continuedto regard it as its responsibilityto ensure the
safety ofnavigationinthis areabymaintaining updated nautical charts.
7.51 Para. 7.15of Malaysia's Memorial refertso theNovember 1921activitiesof the Dutch
destroyer HNLMS Lynx. Indonesia has already dealt with the highly significant Lynx
expeditioninits ~emorial~'andwilltherefore bebrief. Contraryto what Malaysiastates,the
activities of this Dutch warship are a crystal clear expression of the Dutch views on
sovereignty over the islands in this particular area. There can hardly be a clearer
demonstrationof sovereigntythan the exerciseof police activitiesas carried out by the Lynx
with respectto Sipadanand Ligitan. MalaysiadismissestheLynxactivitiesasjust an example
of cross-borderco-operationbytheDutch andBritishauthoritiesin the fightagainstpiracy. It
68
69 See MM,paras.7.5-7.6.
M, paras.3.72-3.74and6.2-6.5.is true that the Lynxactivities also demonstrate cross-border CO-operation b,ut Malaysia
misses an important pointin this particular case: the way these activities were conducted
demonstratesat the sametirnethe respectshownfor the territorialsovereigntyof both sides.
The commanderof the Lynxstayed outside the territorial seaof British islands, and went
ashore onlyonDutchislands.
7.52 There certainlywas no need for the NetherlandsIndies Govenunent to perform any
forma1acts with respectto Sipadanor Ligitan atthat the (as Malaysiaseems to suggest at
para.7.16 of its Memorial),sincethey were alreadyunder Dutch sovereignty. It shouldalso
be kept inmind herethat the nature andintensityof the control over territoryrequiredfiom a
State by internationallaw for it to uphold its sovereigntyin the face of possibly competing
claims varies accordingto the nature of the territory in question. Pronouncements to this
effectcan be found in a numberof internationalarbitralandjudicial de ci si on T^'^ . utch
activitiesith respectto these remote anduninhabitedislandsmust be consideredmorethan
sufficientforthispurpose.
7.53 Finally, in paras. 7.19-7.21 of its Memorial, Malaysiarefers to two instances fiom
whichthere could allegedlybe deduced an absence ofadministrationof the islandsof Sipadan
and LigitanbyIndonesiaafierit obtained independence.Both instancesareinelevant.
7.54 The first concems the drawingby Indonesiaof archipelagic baselines in 1960. It is
correctthat at that the Indonesia didnot include Sipadan or Ligitan as basepoints for the
purposeof drawingbaselinesand definingits archipelagicwaters and territorialsea, but this
cannotbe interpretedas demonstratingthat Indonesia regardedthe islands as notbelongingto
itstemtory. It shouldbe stressedherethat internationallaw neither requires States,whichare
entitledto do so,to establisharchipelagicwaters nor, whenestablishingsuchwaters,to use al1
basepointsperrnittedunder internationallaw. The archipelagicState has the discretionnot to
use particularbasepointswhich are allowed under internationallaw. Consequently, evenif
Indonesia would havebeen entitledto draw archipelagicbaselinesto SipadanandforLigitan
'O See, for example,the ArbitraiAwardin theIsland of PacaseRLQA,Vol. 2, p. 829 at p. 840;
ClippertonIsland Arbitrationof 19RUA, Vol. 2, p. 1110; Legal Status of Eastern Greenland,
Judgment,1933,P.C.I.JSerieAA3No. 53p. 22 atpp.46-47;andmorerecentiy,intheAwardofthe
Arbitral Tribunalted9 October1998, Eritrea/i"YmeTerritorialSovereigntyand Scope the
Dispute,para.452.there was no requirementto do so and also no requirementto explain in each and everycase
the reasonsfor not drawinga particularbaseline". The sameobservations applyto decisions
byIndonesia subsequentto 1960concerningitsarchipelagicbaselinesinthisparticularregion.
7.55 In this connection it is illustrative to note that, while Malaysia deals with the
Indonesian Act of1960 in an attemptto show that Indonesiadid not considerthe islands of
Sipadanand Ligitanas belongingto its temtory, Malaysiain its Mernorialdoes not mention
its own failureto use the islandsas basepointsfor deteminhg the extent of its temtorial sea
before 1969. It is onlyafierthe disputewith Indonesiaarosethat Malaysiastartedto use the
islandsfor thesepurposes.
7.56 The oil concessionsissuedby Indonesia arethe other instancernentionedby Malaysia
as allegedlyshowingan absence of administrationby Indonesiaafter independence. First it
shouldbe noted that the JAPEX concession mentionedby Malaysiaextendednot to 30'(30
minutes -approximately30 miles)southof the 4" 10'N parallel,as contendedby ~ala~sia'~,
but to only30"(30 seconds - i.e. approximatelyhalf a mile)south of that line. Indonesiahas
already dealtextensivelywith these oil concessionsat paras. 6.10-6.16 of its Mernorial, and
merely wishesto recall its conclusion here thatthe JAPEXITot.1licence demonstratesthat
Indonesia considered that its jurisdictional rights extended up to the 4" 10'N line and that
Malaysia did not object. Indonesia, in granting its concession, created a 0.5 mile "buffer
zone" south of the 1891 Convention line. Leavingthis kind of narrow bufTerzone is not
uncornmonpracticewhenoil concessionsfollowinternationalb~undaries'~.
7.57 It isgainquiteremarkablethat Malaysiapassesoverits ownoil concessionactivities.
AsIndonesiahas demonstratedin its ~emorial'~,Malaysiahas initspractice(inparticularthe
71
It should also be recalled that in the 1969 continental shelf delimitation negotiations,Malaysia
recognisedIndonesiansovereigntyover a numberof islanthatwere not specifïcallyincludedin the
72 1960Act. SeeMap AMex para.A.41.
MM,para. 7.21.
73 See the 1968 Iran-SaudiArabia Agreementdelimitingthe submarineareas between the two States,
which provided that neither party shouid drill within500 M. of either side of the boundary line,
Chamey, J.I., and Alexander,L.M., (eInternationaMlaritimeBoundaries (1993), Vol. p.1526.
ûther examplesof boundary agreemenprovidingfor "bufferzonesare:the 1974boundary agreement
between Iranand Dubai, Chamey, J.I.,and Alexander, L.M., (ed.)op. cit.p. 1538; the 1971
delimitationagreementbetweenIranand Bahrain, hamey,J.I., andAlexander,L.M.;(ed.), cit.p.
1487;andthedelimitationagreementbetweenIra and Oman ,hamey, J.I.and Alexander,L.M.,(ed.),
op.cit.p.1503.
74 IM,paras.6.17-6.27.Teiseki oil concession) also respected the 1891Convention'sallocation line by creating a
"buffer zone" equivalentto that established by Indonesia. Equally significant is the map
published in 1968by the Malaysian Ministry of Lands and Mines showing the 4"10' N
allocationline asthe internationalboundary. This is discussed in detail at paras. 7.74-7.83
below.
7.58 Malaysia's Memorial alsopassed overthe mutualpracticeof the maintenanceof buoys
inthe region. As Indonesiahas demonstratedin its Mernorial at paras.8.41-8.45,bothParties
have strictlyrespectedthe4"10'N line establishedin the 1891Convention,when placingand
maintainingnavigationalaids inthe area.
7.59 Apartfiomthe factthat the so-called "absencesof Indonesian administrativeactswith
respectto the islands"allegedby Malaysiatotallymisrepresentthe situation, asdemonstrated
in the precedingparagraphs, it is importantto stress that there have also been Indonesian
activities additionalto thees mentionedabove. Thesehave beendealt with inparas. 6.6-
6.9 of Indonesia's Memorial. In particular thenaval patrols to the islands of Sipadan and
Ligitanbetween 1965and 1968demonstrate that Indonesiaconsideredthese islands as falling
under its sovereigntybeforethe dispute arosein 1969. Also the traditional fishing activities
carriedoutbyIndonesianfishermenon andaroundthe islandsshouldbe recalled.
Section4. Post 1969Activitiesof thePartiesandthe DiplomaticHistoryof the
Case
7.60 As explained in Indonesia'sMemorial, the activities of the Partafterthe "critical
date"mut be consideredwithsomemeasureof ~aution'~.Whiletheycannotalteran existing
title, theymayconfïrmthe legal situation existingwhen the disputecrystallised. This is al1
the more so in the present casesincethe circumstancesin which the dispute arose areof no
particularsignificance.
7.61 In its Memorial, Malaysiaclaimsto set out "Thediplomatichistoryof the dispute" in
its shortChapter476.Malaysia'saccountis incomplete andpaints an inexactpicture. For its
part, Indonesihas alreadyrelatedin Section1of ChapterVIIIof its Mernorial,the detailsof
75 Ibid.,para8.46-8.51.
76 MM,paras.4.1-4.6.the emergenceof the disputein as completeamanner as possible and, in particular,the 1969
negotiations'7. Indonesiawill thereforenot repeat this accoimtin its Counter-Memorialbut
will ratherlimit itself to demonstratingto what extent Malaysia'spresentation of events is
faulty,onthe basisbothofthe commentsmadebyit andbywhatis leftunsaid.
7.62 Malaysia is however right in noting that in the present case, "the diplomatic
backgroundto the SpecialAgreementof 1997is relatively brief'". It was in fact onlytwenty
eightyearsearlier,duringbilateral negotiationsrelatingto the delimitationof their respective
continental shelves, thatIndonesia was suddenlymade aware of Malaysia'sclairns over the
disputed islands, which up to that point Indonesia had always considered to be under its
sovereignty, giventhat theyare situatedsouthofthe 4" 10'N parallel which was stipulatedin
the 1891Conventionasthe limitbetween the respectivepossessionsofthe two States.
7.63 In its Memorial, Malaysiafeignsastonishmentat the factthat at no point in time has
Indonesia,nor its predecessorin title, ever claimed "the nowdisputedi~lands"'~.This factis
far fiom surprising:neither The Netherlands nor Indonesia had any reason to make a claim
over theislands, whichbelongedto them by virtueof a properlyconcludedtreaty, andwhich
were situated off arather inaccessible region in Kalimantan andwhich, what is more, were
themselves uninhabited. Indeed, even if Great Britain,or Malaysiaitself, had occasionally
taken measuresrelatingto one orthe otherisland,Indonesia, whofor the most part paidlittle
attentionto thems0,did not, however have any particularreasonto wony about actswhich in
no shapeor form could be interpretedas evidenceof anyanimusoccupandi.
7.64 In truth,Indonesia could play Malaysia ai tts own gameand feign astonishmentitself:
until 1969, it considered itself the holder of an indisputable conventional title, which
established its sovereignty over the islands in question and it was only when the Parties
commenced negotiations for the purpose of the delimitation of their respective areas of
continentalshelfthatMalaysia,fortheÇst time, advanceda claimto the islands8'.
n
78 IM,pm. 8.5-8.28.
79 MM, para.4.1.
80 Ibid., para4.2-4.3.
81 Seepara.7.28above.
SeeMM, para4.3.7.65 Indonesiahas describedin its ~emorial" the precisecircumstancesinwhich Malaysia
first made known this unexpectedclaim. Indonesiadoes not believethere to be any useful
purposein discussingthis issueanew andwould ask the Courtto refer back to its Memoriai
forfurtherdetails.
7.66 With the benefit of hindsight,it is easierto understandMalaysia'ssudden interest in
the islands,which contraryto its declarations,had not been previously "administered",but
regardingwhich Great Britainandthen Malaysia hadtaken somemeasuresaimedexclusively
at regulatingthe sporadic activities carriedout by their respective nationalsin the area and
facilitatingnavigationto andfiom Tawau. Thiswasthe periodduringwhichtherewastalk of
potentialhydrocarbon wealthinthe continentalshelfofthe region.
7.67 Moreover, the development of an importanttourist project on Sipadan also explains
this lateMalaysianinterestin the island. Accordingto Malaysia,the tourist centreat Sipadan
has seenmore than115,000touristsover fifteenyears,but Malaysiaremainsremarkablycoy
on the subject in its~emorial'~;for a good reason:as stated above", its establishmentis in
total contraventionof the undertakingmade by the two Parties in 1969, whereby bothsides
agreednotto do anythingthat mightdisruptthe statw quo85.
7.68 Legallyspeaking,nothing can be inferredfiom this, giventhat the 1969 negotiations
represent the criticai date af&erwhich acts carried out by the Parties cannot alter the legal
situation in existence prior to this date". However, Malaysia'sactivities on the disputed
islands,and especiallyon Sipadan,the islandlyingfarthestfiom its coast,helpsto shed some
light, retrospectively, overthe circumstancesin which Malaysiasuddenly made public its
claimin 1969,whichhadneverbeenhinted at before.
7.69 Another recent dramatic event must be mentioned:the taking of hostages on Pulau
Sipadanby a groupof Philippineterrorists. Sincethe disputeconcerningsovereigntyoverthe
82
83 IM,paras.8.10-8.14.
84 SeeMM,paras.3.19and6.30.
Para.7.45,above.
85 SeeiM, para.8.20. Thisinterpretatnf the 1969agreemenis confirmede.g.byDavid,H., Tensions
Within ASM, Malaysia and ifs Neighbours, Monographson South-EastAsian Politics and
Internationalelations, 1,Dept.of South-Easî sianStudies,UniversityofHuii,1966,p. 71,Annex
34, orKo SwanSik,"AsianTerritonaiDisputes,WithSpeciaiReferencetotheIslandsof Sipadanand
Ligitan:SuccessiontDutch andBritishTitles?inTeny D. GillandWybo P.Heere eds.Reflections
onPrinciplesad PracticeofZnternationl aw,Nijhoff,The Hague, oston,London,2000,p. 113.
86 SeeIM, paras.8.23-8.27.island hadbeen submittedto the Court beforethis event took place, it is not a relevant fact
with regardto the settlementof the dispute. However,Indonesia wishesto stress that, since
newspapers havefiequentlyreferredto Sipadan as a "Malaysianisland" - an understandable
mistake since Malaysia illegally occupiesthe island - Indonesia carefullyrecalled that it
considers Sipadanaspartof its territoryand thatthe dispute isstillsubjudices7.
Section5. TheMap Evidenceas anElementof the Conductof thePartiesand
TheirPredecessors
7.70 In its Memorial, Indonesia reviewedthe considerable bodyof cartographieevidence
which, consistentlyover a period of some 80 years,confirmedthe fact that the linerunning
easîward fiom the Island of Sebatik dong the 4" 10'N parallel, establishedby the 1891
Convention, was viewedby al1the interestedparties as representing the respectivelirnitsof
Dutch (later Indonesian)and British (later Malaysian)territorial possessionsin the relevant
areas8. The repeatedappearanceof the 1891 line extending seaward of Sebatik on Dutch,
British,Indonesian and particularlyMalaysian mapsis an importantelementof the conductof
the Parties supportingtheconclusionthat both SipadanandLigitanbelongto Indonesia.
7.71 Thereappearsto be agreementbetweenthe Partiesthat themap evidenceisrelevantin
assessingwhat the views ofthe interested partieswerewith respectto the territorial situation
in the areaof concern. Indeed, Malaysiaitself hasattemptedto rely ona selectionof maps to
supportitsposition89,and Malaysiahas fiunishedthe Courtwith aMapAtlas (Volume 5to its
Memorial)setting fortha sarnpleofsuchmaps.
7.72 In the present section, Indonesia will, without recanvassingal1that was said in its
Memorial onthe subject,reviewsomeof themore importantaspectsof the map evidence. A
detailed analysis ofthe maps that havebeen suppliedby Malaysia in its Map Atlas may be
foundintheMapAnnexattachedto thispleading.
87
88 Annex 35.
SeeIM,paras.6.30-6.79.
89 MM,Chapter 10. A. Certain Key Aspectsof the Map EvidenceDemonstrating
Dutch andIndonesianTitletotheDisputedIslands
7.73 Any examination of the map evidence must necessarily start with the cartographic
materials that were preparedin connectionwith the negotiationand ratificationof the 1891
Convention since it is agreed between theParties that this instrument represents a crucial
element in the case. Indonesiahas discussedthe events surroundingthe conclusionof the
1891Conventionin Chapter V above*. Sufficeit to recallthree essential conclusionswhich
may be drawn fiom the cartographic materials that were either presented or exchanged
betweenthe Dutch andBritish inconnection withthe 1891Convention.
(a) First, it is apparent evenfiom British sketchmaps that were prepared during
the course ofthe negotiationof the Conventionthat the Britishenvisagedthat
the eventualboundaryline would continue outto sea. Indonesia presentedas
Map3 in its MapAtlas aBritishmappreparedin 1888showingaproposed line
of territorialallocationextendingout to sea, albeit passingto theouth of the
island ofsebatkg'. Whilcthe partiesultimately decided ona differentcourse
for theboundary,it is sipificant that the Britishdeemedit importantto extend
the line out to sea indefinitely, presumablyso as to deal with al1territorial
questionsin issue.
(b) Second,Indonesia has shownin ChapterV abovethat the Dutch negotiatorsof
the Conventionalso presented maps which showed the ultimateboundaryline
extending seaward of Sebatik, specifically along the 4" 10'N parallel of
latitudeg2.There is no evidence thatBritain objected to the extensionof the
boundary lineseawardof Sebatik.
(c) Third, and most importantly, the map attached to the Dutch Explanatory
Memorandum prepared in the course of the ratification processof the 1891
Conventionclearlyshowedthe boundaryline extendingseawardfiom Sebatik
90 Seeparas.5.77-5.94,above.
91 SeeIM, paras5.20and5.23(a).
92 Para.5.70,above. along the 4" 10'N line of latitude. This map, which Malaysia itself has
attachedas Map 2 to its Map Atlas (althoughthe rnap is misleadinglylabelled
there as an "Intemal Dutch Map (1891)"), was communicatedto the British
authoritieswho raised no objection. Assuch, the ExplanatoryMemorandum
Map is entitledto considerable,ifnot dispositive, probative value as reflecting
the agreed viewof Great Britain and TheNetherlands as to the scope ofthe
boundaryagreedin the 1891Convention (asdiscussedin paras. 5.32-5.33 and
para. 5.47above).
7.74 In August 1903, Stanford, which effectively acted as the officia1cartographer of the
BNBC,prepareda highly pertinentrnapwhich purportedto show the administrative limitsof
the various provinces comprisingthe BNBCtspossession in North ~orneo~~. The rnap is
importantin threekeyrespects.
First, inshowingthe administrative divisionsof the BNBC, the rnap clearly
(a)
depictedthe southem limitsof the ElphinstoneProvince as extendingseaward
fiom the Islandof Sebatikalong the 4" IO'N line of latitude to a point to the
north and east of the islands of Sipadan and Ligitan. There were no
disclaimers on the map. It follows that Stanford,and by implication the
BNBC, wereof the view thatthe southern limits of the possessions of the
BNBC were defîned by the precise line that had been agreedin the 1891
Convention. There could be no other conceivablereason whythe lirnits of
administrative divisions of the BNBC tracked the 4" 10'N parallel so
faithfully.Thenecessaryimplicationof the mapwas that islandslyingsouthof
this line-e.g.,Sipadanand Ligitan -appertainedto TheNetherlands.
(b) Second, Stanford'srnap was preparedjust four months after the April 1903
Confirmation ofCessionsignedby the Sultanof Sulu. It will be recalled that
this Confirmation,of dubious legal value94,identified a number of specific
islands fallingmore thanthree marine leagues (nine nautical miles)fiom the
coast which werebelatedlyconsideredby the Sultanto have been includedin
93
A copyof thismapwiththerelevant portionesnlargmay be foundoppositep. 118of indonesia's
94 Memoriai.ItaisoappearsasMap4.1 oppositep.54ofthisCounter-Memonai.
Seepara4.29,above. his original 1878grantto the BNBC. Al1of the islandsso namedwere located
to the north of the 4" 10'N line of latitude; hence, al1 were included on
Stanford'srnapas appertainingto the BNBC. In contrast, neitherSipadannor
Ligitan were includedin the 1903 Conthnation. Nor did they fa11withinthe
BNBC'spossessionsas conthned bythe map.
(c) Third,the Stanfordmapwas alsopreparedafterthe 1898and 1900Treatiesby
which Spainrelinquishedits possessions in the Sulu Archipelagoto the United
States. Malaysiahas suggested,as one of its alleged chains of title, that the
islandsbelongedto theUnitedStatesatthe theg5. However,the Stanfordrnap
showsthe southem extentof U.S.possessionsinthe areaas SibutuIsland, well
to the north and east ofipadanand Ligitan. Hence,the rnap also contradicts
any notionthat the disputedislandswere consideredto be U.S .ossessionsat
the the.
7.75 Given the fact that the 1903 Stanfordrnap runs so directly contrary to Malaysia's
version ofevents,it is not surprisingthat Malaysiadid not see fit to reproducethis rnapin its
Map Atlas. Nonetheless, thernap provides eloquent testimonyas to the contemporaneous
views of British expertsfamiliarwith the territorin question that Sipadanand Ligitanwere
recognisedas fonningpart of TheNetherlands' possessions.
7.76 Apart Itom Dutch and British maps such as these which confirm Indonesia's
subrnissions, there are a large nurnber of Malaysian maps whichthemselves show that
Malaysiaconsideredthe islands inquestionas belongingto Indonesia. Without reviewing al1
the exampleswhich were discussed atparas. 6.66-6.76of Indonesia'sMemorial, there isone
suchrnapwhichmeritsparticularattention.
7.77 Thiswasthe rnappublishedbythe Malaysian Ministryof Lands andMines in 1968,a
copy of which was attached following page 106 of Indonesia's Memorial and whichf ,or
convenience, isreproducedinAnnex36 hereto.
7.78 The rnap was prepared ata the when Malaysiawas taking an active interest in the
prospect ofoil and gasexploration in theoffshore areas lying in the vicinity of Ligitan and
- --
95 ThisaspectofMalaysia'sasehasbeenfullyrebuttinChapteVIabove.Sipadan and was thus examining the area carefully. It depicted the limits of various oil
prospectinglicencesin the area which were outlinedby red lines on the map. Of particular
interestarethe limitsof the licencegrantedto the Japaneseh, Teiseki, offshore Sempoma.
As can be seenfiom the map,the southem limitsof the licencereflectedthe 4" 10'N parallel
of latitudeM.
7.79 Whatis of evengreaterinterestisthat themap,whichit must berecalledwas prepared
by an officia1agency of the Malaysian Govemment,also depicted Malaysia'sinternational
boundariesaround Sabahby meansof a black,dashedline. Therewere no disclaimersonthe
map. It showed, very clearly,the intemationalboundarywithIndonesiaas extendingseaward
fiomthe Islandof Sebatikalongthe 4" 10'N latitudeto a point wellto the eastof Ligitan and
Sipadanwherethe boundarymetupwiththe prolongationsouthwardofthe boundary between
Malaysia andthe Philippinesagreed underthe 1930Anglo-U.S.Convention.
7.80 The rnapas suchmerits thehighest degreeof probative valueas an admissionagainst
interestbythe Malaysian Govemment.Itwas prepared beforethe emergence ofthe dispute in
1969. Moreover, it directly contradictsthebasicpremiseupon which Malaysia's case rests-
namely,the contentionthat the 1891Convention didnot establishthe 4" 10'N line of latitude
east ofSebatikas the limit of Dutch andBritish territorial possessions in thearea. Sipadan
and Ligitan do not appear onthe map, butthey bothlie to the south of the international
boundaryline depictedonthe rnapand thus ontheIndonesiansideofthe boundary.
7.81 Malaysiaconspicuouslyomiîtedreferringto this crucialrnapin its Memorial. Indeed,
as noted previouslyin thischapter9',Malaysiahas avoided anydiscussionof its own history
of granting oil concessions in thearea, a history which so strikingly confirms the fact that
Malaysia viewedthe 4" 10'N line as constitutingthe limitof itsjurisdiction inthe vicinityof
the disputedislands.
7.82 The 1968 Malaysian Ministryof Lands and Mines rnap is simply one of a large
number of officia1Malaysian maps which depictthe 4" 10'N line as the boundary ofthe
Parties' respective temtorial possessions lying offshore. In this respect, the Court is
%
As documentedinIndonesiaMemoridthesouthemlirnitsof theTeisekilicenseactualdong the
4" 1030"N iineof latituthuscreatinga 30"(approximathaiamile)bder zone tothenorthof
97 the1891Conventioniine.
Seepara.7.56,above.respectfullyreferredbackto the discussionof these maps whichappearat paras. 6.66to 6.79
of Indonesia's Memorial. What is more,Malaysiaitselfis forcedto concedethat a numberof
its officia1maps depictthe 4" 10'N line as representingthe boundarywith Indonesia eastof
Sebatikandit refersto two maps inparticular98.
7.83 Malaysiaseeksto escapefiom the adverse inferencesto be drawnfiom these mapsby
arguingthat some of the Malaysian maps showingthe 4" 10' N line included disclaimerson
them99.What Malaysiafailsto point out, however,isthat perhapsthe most relevantof al1the
maps - the 1968Ministryof Lands and Mines map - containedno suchdisclaimer;it showed
the international boundary with Indonesiaexactly as Indonesia has described it in its
pleadings.
7.84 In any event,the continuousappearanceof the 1891line extending eastof Sebatikon
Malaysian andothermaps wasnot an accident. Clearly, Malaysia was of the viewthat a line
of territorial allocation existedwith Indonesiain the area andthat that line was the boundary
fixedbythe 1891Convention. This lineappearedin the DutchExplanatoryMemorandumof
1891; it appearedin the 1903Stanfordmap showingthe administrativelimits of the BNBC's
territory;and it was consistentlydepicted on Malaysian mapsof the areafollowingMalaysia's
independencein 1963untilMalaysia self-servingly changed its position in 1979,well afterthe
critical date in the case. It also appeared on Indonesianmaps as, for exarnple, the 1953
Indonesianatlasmapwhich is attachedas Annex37hereto.
7.85 As pointed out inIndonesia's Memorial,even after the dispute over the status of the
islandsemergedin 1969, Malaysia continuedfor a time to depictthe 1891line as a boundary
line in the relevantarealo0. Moreover,the Parties also respected the 1891 line in practice
whenthey erectednavigation aidson Roach Reef andAlertReefs in 19941°'.
98 SeeMM,para.1 O.17andMaps 20 and21inMalaysia'MapAtlas.
99 Ibid.
'Oo SeeIM,paras.6.76and8.36-8.42.
'O1 IM,para.8.41-8.45andseepara.7.58,above. B. The Maps Introduced by Malaysia Do Not SupportIts
ClaimofTitleoverthe DisputedIslands
7.86 The maps introduced by Malaysia in no way detract fiom the fact that the rnap
evidence,taken as a whole,overwhelminglysupportsIndonesia'ssubmissionthat Sipadanand
Ligitanwere regardedas belonging,afterthe conclusionof the 1891 Convention,firstto The
Netherlands and subsequently to Indonesia.Whiledetailed commentson the MalaysianMap
Atlas are included in the Map Annex at the end of this pleading, a number of general
commentsmaybe offered hereto placethe matterinperspective.
7.87 Thefirstpointto makeisthatvirtuallynoneofthe maps reliedon byMalaysiaactually
showsthe islands asMalaysian possessions. Infact, the onlyrnapwhich depicts thedisputed
islands as Malaysianpossessions,by virtue of the fact that the islands fellwithin Malaysia's
continental shelfclairn,is a rnappreparedin 1979to illustrateMalaysia's clairn the area1O2.
Indonesiadiscussedthis rnap at paras. 8.59-8.69of its Memorial. The key pointto bear in
rnind in consideringthis rnap is that iwas published ten years after the dispute overthe
islandscrystallisedin 1969.Published, as it was, wellafter the critical date in the case,the
rnapwas entirelyself-servinginnature and was immediatelyprotestedbyIndonesia. As such,
the 1979rnapiswithoutlegal relevanceinthe case.
7.88 Secondly, Malaysiaalso purportsto rely ona numberof maps whichdo not depictthe
1891lineas extendingoutthe sea. Malaysia appearsto findthat this is significant. However,
the truepositionisthatthesemaps areentirelyneutraiwithrespectto the territorial attribution
of theislandsof Sipadanor Ligitan.
7.89 The 1891linewas not,atthe the it was agreed,a maritimedelimitationline. Indeed,
the conceptof the continental shelfdid notexist at the time. Rather,the purposeof the 1891
Convention wasto definethe respective Dutch andBritish territorial possessions in the'area.
The mere fact that maps may have been prepared which didnot show the 1891 line as
extendingeastof Sebatikin no waydemonstratesthat the islandsin questionwere deemedto
be British (orMalaysian). Consequently,thesemaps areofno assistanceto Malaysia's case.
'O2
Map 19in Malaysia's aAtlas. A good example of this practice concerm the various British AdmiraltyCharts that
7.90
Malaysia has discussedin its Memorial and atîachedto its Map ~tlas"~. These maps were
preciselywhat they purportedto be - maritimechartsproducedby the British Admiraltyfor
navigation purposes - not maps designedto depict sovereignty over the islands in question.
With respectto the disputedislands,theywere completelyneutral.
7.91 Another map, which Malaysia appearsto attach particular significanceto, is a rnap
preparedbyTheNetherlands in 1913inconnection wiîhthe 1915demarcation,on the land, of
the boundary established by the 1891 convention1". Therewas no need for this rnap to
includethe line extending eastwardofthe islandof Sebatikalongthe4" 10'N parallelsinceit
was concemed with the territorial situationon the mainland. Moreover,as Malaysia itself
points out, the rnap was a topographicalrnap prepared by The Netherlands Topographical
fic ce'^ ^tthusshowedthe topography ofthe mainland,but not of the islandswithwhich it
wasnot concerned. It followsthat thernaplendsno supportto Malaysia's case.
7.92 Malaysia's Memorialthen goeson to discuss a number of so-called "Other~a~s"'~~.
Thesemaps areaddressedindetailin the MapAmex. Sufficeit to saythat none of the maps
supportsMalaysia'scontentionsasto sovereignty overthe islands. Thisis in starkcontrastto
maps which Indonesiahas introducedwhich clearly show,whether by way of admissions
againstinterestby GreatRritainandMalaysia,or as evidenceof generalrepute,that the status
of the 1891 line separating the Parties'territorial possessions east of Sebatik was never
questioned until Malaysia'sstriking change of position in 1979. Indeed, as noted above,
Malaysia is forced to concede in its discussion of these maps that its officia1agencies
published maps which clearly contradict the position as to sovereignty now advanced in
Malaysia's ~emorial' 07.
'O3
'O4 See, para. 10.6maps 8,9,10and 11inMalaysiaM'sapAtlas.
Ibid.,paras.10.3-1andMap 1in Malaysia 'sapAtlas.
'OS MM, para10.9.
'O6 Ibid.paras10.7-10.19.
'O7 See paras7.82-8.8above. C. Conclusions as to theMaps
7.93 The fact of thematter remains that the 1891 line was repeatedly portrayedon both
British and Malaysian maps as having the status of a boundary separating the temtonal
possessions of the parties in the area of concem. Had one of the purposes of the 1891
Conventionnot beento dealwith Dutch and Britishinsulartenitories lyingeast of Sebatik,as
Malaysia maintains,then there would have beenno reason forthe extension ofthe 1891line
along the4" 10'N line of latitudeeast of Sebatikto appearat al1on the maps. But it was no
accident that the line was placed on key maps of the area. Its persistent appearance,
sometimes expresslylabelled as the internationalboundaryof Malaysia on Malaysian maps,
conclusivelyconfirmsIndonesia'ssovereigntyoverthe islandsof SipadanandLigitan. On the basis of the considerations set out in this Counter-Memonal, the Governent
of the Republic of Indonesia requests the Court toadjudge and declare that:
(a) sovereignty over Pulau Ligitan belongs to the Republic of Indonesia; and
(b) sovereigntyover Pulau Sipadanbelongs to the Republic of Indonesia.
Mr. Nugroho Wisnumurti
Agent ofthe Republic of Indonesia ÇERTIFICATION
1have the honour to certifi the accuracy of the translations into English made by
Indonesia which appear in theCounter-Memorial and its Annexes. 1also certifi that the
documents annexed are true copies and conform to the original documents.
Mr. Nugoho Wisnumurti
Agent of the Republic of Indonesia MAPANNEX
COMMENTSONMALAYSIA'SPOSITIONCONCERNINGMAP EVIDENCE
A.1 As is apparentfromtheir Memorials, bothPartiesattachlegal significanceto the map
evidence. Malaysia's main argumeno tn thecartographicevidence, developed inChapter 10
of its Memorial, is that the relevant minsthis case show either or both of the following
features:
that the boundary betweenBritish and Dutchpossessions did notextend into
(a)
the seaeastof Sebatik,and;
(b) that Ligitan and Sipadan were both regarded as being either British or
Malaysian islands.
A.2 In this Annex, Indonesia will review the maps considen Chapter 10of Malaysia's
Memorialto seewhether they supportMalaysia'sanalysisin thelightof the considerablemap
evidence which Indonesiahas introduced whichcontradictsMalaysia'sclairns.It should be
noted atthe outsetthat the 1891ExplanatoryMemorandumMap and the map attachedto the
1915Agreement havebeen discussedin detailin ChapterV of Indonesia's Counter-Memorial
andwill thereforenotbe reviewedfurtherinthisAnnex.
Section1. BritishAdmiralty Charts
A.3 Inreviewingfour British Admiraltycharts, drawn between 1881 and 1963, Malaysia
argues that,while depicting a land boundary"running fiom the east to the west coast of
Sebatik", these maps show no eastward projection of the land boundary. The mapsin
question are:
(a) Chart no. 1681, NorthernShoreof SibukoBay, (first drawn in 1891-92 and
subsequentlyconected to 1997),which appearsas Map 8 in Malaysia'sAtlas
and MapNo. 22 inIndonesia'sMapAtlas; (b) ChartNo. 2576, SuluArchipelagoand the NorthEast Coast of Borneofiom
BritishAdmiraltySurveysto 1892,jFom United States GovernmenC t hartsto
1934,fiom NetherlandsGovernmentChartsto 1936,which appearsas Map 9
in Malaysia's Atlas;
(c) ChartNo. 2660B,ChinaSea - SouthernPortion,(first drawn in 1881),which
appearsas Map 10 in Malaysia'sAtlas;and
(d) ChartNo. 1852,Tawauto Tarakan,(firstpublishedin 1960),whichappearsas
Map 11inMalaysia's Atlas.
A.4 It shouldbe recalled, as ageneral point,that theurpose of these chartswas to assist
navigation in the areas covered and notto reflect political boundaries. As notedin The
AmericanPractical NavigatorpublishedbytheU.S.DefenseMappingAgency (1995ed.),the
functionof a nauticalchartisto show:
"water depth, the shoreline of adjacent land, topographie features, aids to
navigation,and othernavigational informationI .t is a work areaon whichthe
navigator plotscourses,ascertainspositions,and viewsthe relationshipof the
ship to the surroundingarea. It assists the navigator in avoidingdangersand
arrivingsafely at hisdestination."'
A.5 Moreover, pursuant to the Chart Specificationsof the International Hydrographic
Organisation (1988 Edition), "Boundaries and limits of no significance to navigation or
fishingshouldbe ornittedfiomnavigationalcharts".
A.6 This is clearly illustratedby the first chart listed above, Map 8 in Malaysia's Atlas,
which showsno boundaries atall. Thisis not surprising,since its purposewas to depictthe
geographical features of the northem shore of Sibuko Bay. It was for this reason that
Indonesiareproducedit inthe Atlasannexedto itsMernorial,as an illustrativeand descriptive
aidto Chapter IIrelatingto the geographical description the area.
I At p.23. Emphasisadded.A.7 Regardingthe other three charts,Maps 9,10 and 11 in Malaysia's Atlas,it shouldbe
emphasisedthat they al1bearlegendsspecifjhg that the boundarybetweenNorth Borneo and
the Dutch tenitories is "approximate"only. In addition, it is significant that, although al1
these nautical charts show a number of offshorefeatures over which sovereigntyis clearly
undisputed such as islands of the Philippinesgroup,the sovereigntyof these features is not
indicated.
A.8 Finally, Malaysiaitself,at para. 10.17of its Memorial, downplaysthe significanceof
navigational charts regarding political boundaries. Malaysia'sposition is therefore
inconsistentto theextentit relieson suchchartsonlywhenthey appearto be in its favour.
A.9 For the reasonsmentionedabove,these maps bear absolutelyno weight regarding the
position of the boundary and cannot be viewed as a graphic depiction of the "British
understandingofthe situation"as Malaysiaargues2.
Section 2. OtherMaps
A.10 Under this heading, Malaysia groups some sixteen maps of various provenance
published between 1891 and1978which, it alleges,show either that theboundaryline does
not extend east of Sebatik island or that Ligitan andSipadan are to be regarded as being
Britishor Malaysian, orboth. Thesemapswill be reviewedin the orderused by Malaysia in
its Memorial.
2 MM, para10.6. A. Map 12 of Malaysia's Atlas: Plan Shewingthe Result ofthe
Determination of Parallel of 4O 10'Non East Coast Borneo
and fiamination ofRiversin Vicinity,June1891
A.ll The first of these maps was drawnup by the British Hydrographie Ofice and is
entitledPlan Shewing the Result of the Determinatio of theParallelof 4" 10'N. on East
Coast Borneo and Examination of Riversin Vicinity,June,1891. Malaysianotes that "the
4O10'N line is shown on the rnap as a parallel, but there is no indication that it is a
b0unda.r~''~ I.t shouldbe notedthat the4' 10'N line drawnon the rnapruns acrossboth land
and sea. If Malaysia's argument thatthe seawardextensionof this line is not aboundarywere
to be accepted,this would implythat the line traversing the landtemtory is similarlynot a
boundary.
A.12 Moreover,as observedby Indonesiain its Memorial,this rnap is significantfor this
disputeonlyif seenin itspropercontext4. In thisrespect,it shouldbe recalled that, priorto the
conclusion of the 1891 Convention, the British Government proposed to the Dutch
Governmentto conductajoint maritime surveyof the areato ascertainthe pointat whichthe
4O10'N latitude reaches the sea and to explore and determine the course of the rivers
Simengarisand Soedang,which flow into the sea near Broershoek. Thernap in question
appearsto illustrate the resultsof the surveyanied out by the ships HMS Egeria and HMS
~attler'. This map, also known as a "tracing",i.e. an original rnap traced ont0 partially
transparent paper,was transmittedbythe BritishMinisterin The Hagueto the DutchForeign
Minister, who repliedon 1December 1891 statingthat the resultsof the British survey were
consistentwith results obtainedby the Dutch officersand that his Government acceptedthe
resultsobtained6.
3 Ibid.para.10.7.
4 iM, paras5.34-5.40.
J
6 Ibid.para.5.38.ol.3.A.13 Thismap,anditsbackground,are thusimportantintwo respects:
(a) They show that the Dutch and British Govemments worked in close co-
operation in conducting the survey, showing evident concem for their
conflictingclaimsinthe areaextendingeast ofthe island ofSebatik,and
(b) Theseevents areevidenceof the fact thatthe tracing showingthe parallel of4"
10'N extendingoutto sea was one of the issues onwhich boththe Dutchand
British Govemments had expresslyagreed.
B. Map 6 of Malaysia's Atlas:Map of British North Borneo,
Stanford,1906
A.14 The second mapexaminedby Malaysia inits Memorial is the Map of BritishNorth
Borneoissuedby Stanfordin 1906andannexedbyMalaysiaasMap 6 of its Atlas.
A.15 Malaysiapointsto the fact that theboundarybetweenElphinstone ProvinceandDutch
territory depictedon this map runs across Sebatikbut does not extend eastwardinto the sea,
thus allegedly indicating that there is no extension of the line Sebatik. However,it
shouldbe noted that the purpose of this map appearsto be to portraythe intemal provincial
divisions of British NorthBomeo. This isdone by means of red lines drawn alongside the
bordersofthe differentprovinces,none of whichextendsseaward. Giventhe purposeof this
map, it can be assurnedthat the line running across the islandof Sebatik was intendedto
delirnitthe landboundariesof the administrativejurisdiction ofthe Elphinstone Provinceand,
as such,hadno relevanceforintemationalboundaries.
A.16 As regards the jurisdiction ofBritish NorthBomeo over offshorefeaturesin the.area,
this, ratherthanbeingdonewith iinesdrawnat sea,appearsto have beendoneonthis mapby
colour coding. Thus,the southempart of Sebatikand the islandof Nanoelchanare coloured
orange,as isthemainlandDutchterritory,whilst the northem partof Sebatikis colouredpink,
asis mainlandBritishNorth Bomeo. With regardto the disputedislands,a close inspection
of the map reveals that,whileslandsin SibukoBay, such as Si Amil, Dinawan,Mabul andKapalaiare colouredpink, indicatingBritishNorth Bomeo,Sipadanand Ligitanare coloured
neither pink nor orange. This can be readily seen by viewingthe enlargementof this map,
which IndonesiahasreproducedatAnnex 38.
A.17 This 1906rnapshouldbe comparedto an earliermap, also publishedby Stanfordand
dating fiom 1903,shortlyafter the Confirmationof Cession,which was consideredat some
lengthin Indonesia's~emorial'. Inthe 1903rnapthe boundariesofthe BNBC'sprovinces are
shown to extend seawardby dotted red lines8. In particular,the southem boundary of the
Elphinstone province is shown to run across the island of Sebatik, continuing seaward,
leavingthe islands of Ligitanand Sipadanoutsideof the BNBC'sterritory. Thesetwo maps
are thus consistent in showing, albeit through different graphic means (colour coding as
opposed to actual lines drawn) that the disputed islands did not fa11within the BNBC's
administrativedomain.
A.18 Malaysiaalso states that thesignificance ofthe 1906rnapis al1the greateras a result
of the hand-writtenlegend appearingon it9,which refers to the fact that this was the rnap
mentionedin "the thirdterm"of the agreement effectedbythe exchangeof notes between the
British Ambassador andU.S. Acting Secretary of State on 3 and 10 July 1907. The letter
fiom the BritishArnbassador dated3 July 1907referredto "theline traced onthe rnapwhich
accompanied Sir H. M. Durand'smemorandum of the 23rd of June, 1906 and which is
attachedto and deemedto form part ofthis ~ote"'~. A copy of the 1906 Stanford'srnap is
indeed attachedto the original copyof the U.S. Govemment'sforma1adherenceto the 1907
arrangementkeptinthe PublicRecord Office.
A.19 The red line drawn on Map 6 in Malaysia'sMemorial is accompanied by the
manuscript words:"Red line referredto in paragraph24 of despatch dated 13July 1903to
Foreign Office". That despatch has been exhibited by Indonesia as Annex 102 of its
Memorial. The despatch wassent by the Chairmanof the BNBC, Richard B. Martinto the
British Foreign Office and expressedthe Company'sconcem regardingthe visit that a U.S.
7 MapNo. 9 inIndonesia'sMapAtlas.
8 See,IM,paras.6.52-6.53.
P MM, para.10.8.
IO IM,Annex 113,Vol.3.vesse1had paidto islands "situatedofthe port of Sandakan", on which it "had fixed tablets
and flagsW". The despatch concludedthat the British Govemment shouldinform the U.S.
authoritiesthat the BNBChad been administeringthose islandsand requestthat theyremove
any flags and tablets placed on them. A map was attached to the despatch according to
para. 24 which reads:
"24. For the information ofthe Secretaryof State, 1have attached a Map,
showing clearlytherespectivespheresof Muence and ~ontml."'~
A.20 It should be noted that the BNBC did not refer in that paragraph to a particular
delimitation line,but simplyto "spheresof influence andcontrol" appearingon a map. The
purposeofthe map, readily understandable fiomthe contextof the despatch,wasto notiQ the
U.S. authoritiesof the limit of theNBC'sadministrationof islands in the northem part of
North Bomeo. The Dutch Govemment wasnot privyto these communicationssincethey did
nottouchupontheir possessionsortheir interests.
A.21 The line appearingon Map 6 of Malaysia'sMemonal, extending south of the land
boundary dividing British North Bomeo fiom the Dutch temtories, appears however to
include withinthe British sphereof influenceterritorieswhich wereindisputablyDutch. This
factaloneis sufficientto underminethe significanceof sucha line.
A.22 Moreover, thesouthem limitof this line appearsto be totally arbitrary,particularly if
one considers the nurnerous other maps published subsequently,some of which have also
been includedin Malaysia's Atlas, which show a similar line stoppingnorîh of the disputed
islands. Reference inthis respect shouldbe made to Maps 14,17, 19, 20, 21, 22 and 25 of
Malaysia'sAtlas and MapsNos. 8, 9, 10, 12, 14, 15, 16,18and 20 of Indonesia'sAtlas. Al1
these maps refiect the line described in Article 1 of the 1930 Convention between Great
Britain and the United States setting out the definitive division of temtorial possessions
betweenthe two Statesin the area, wellto thenorth of the 4'10'N latitudeestablishedbythe
1891Convention.
I I
12 Zbid .nnex 102Vol.3. Emphasisadded.
Ibid.A.23 Thus, withregardto thismap,it may be concludedas follows:
(a) The 1906 map was part of an arrangement betweenGreat Britain and the
United States concerningthe administrationof islands situated off the north-
eastem coastof the islandof Bomeo,wellto the north of the disputedislands.
In any event, this arrangement wasres inter alios as far as The Netherlands
was concemed;
(b) The length of the line is unprecedentedin the light of the rest of the map
evidence. Moreover,the line appearsto end arbitrarilyat the 4"N parallel of
latitude, wellsouth of the land boundary of British North Bomeo and it
inexplicablyextendsfurthersouthofwhatwasunquestionablyDutchtemtory.
C. Map 1 of Malaysia's Atlas:Schetskaart Van De Residentie
Zuider - En OosterafdeelingVanBorneo(Extract)
A.24 Malaysiathen considersaDutchmapreproducedas Map 1in Malaysia'sAtlas and as
Insert 2 at page 6 of Malaysia's Mernorial. Accordingto Malaysia,this map showsthat the
Dutch Government recognised that the 1891 Convention boundarystops at the east coast of
the island of Sebatik, and that it also shows that "the group of islands (Sipadan, Mabul
(Maboel), Kapalai, Ligitan, Danawan and Si Ami1(Siamil)) appertain to the 'Gouvtvan
Britisch~oord-~omeo""~.
A.25 It should be noted that Malaysiahas failedto provide any informationregardingthe
origin of this map other than that it was published in 1913 by the Netherlands Indies
Government Topographical Officet,husassertingthat it is "thefirst officia1map(on a scaleof
1:750,000)of the SouthemandEastem Divisionof~omeo"'~.
13 MM,para. 10.9.
14 Ibid.A.26 Asrecalled inpara.7.91above,thepupose ofthisrnapwasto provideatopographical
descriptionof the area and not to show attributionof sovereignty over territory. The rnap
offersno basisfor Malaysia'sallegationthatthe islandsof Sipadan,Ligitan,Mabul,Kapalai,
Dinawan andSi Ami1form a "group"of islandsor that they are attributedby this rnapto the
Governmentof BritishNorth Bomeo. No attributionof sovereigntyoverthe disputedislands
is given,y meansof colourcodingor otherwise.
A.27 In Indonesia'sview, amuch more significantfeatureof the rnap is the fact that,were
the linerunning across the island ofSebatikon this rnapto be extendedeastward,the islands
of Ligitan andSipadan,giventheir position,wouldfa11on the Dutch, nowIndonesian,side of
the line.
D. Map 13of Malaysia's Atlas: Plan of Semporna,District of
Lahad Datu,SurveyDepartment, Jesselton, 1935
A.28 Next in Malaysia's analysis is a rnapdated 1935entitledPlanof Semporna,Districtof
LahadDatu issued bythe Survey Department atJesselton. Accordingto Malaysia, themere
fact that the islands of Ligitan and Sipadan appear on the rnap is evidence of their
appurtenanceto Great Britain. However,a closer examinationof this rnap reveals that the
disputedislands,like other offshore featuressituatedin SibukoBay, are not depictedas part
of the District of LahadDatu which is identifiedas the territory included within the cross-
dashedboxes.
A.29 As to the significanceof the words"Bird Sanctuary"which appear onthe island of
Sipadan,it will be recalledthat, as notedin ChapterVI1of Indonesia's Counter-Mernorial, the
notice published in theOflcia lazetteof 1 February 1933 conceminga megapode reserve,
and sirnilarmeasures regarding thecollectionof turtle eggs, provides no evidence that the
British colonialauthoritiesactedas sovereign overthe islandofipadan''.
1s
Paras.7.36- 7.38 E. Map14ofMalaysia'sAtlas: TheState ofNorth Borneo, 1941
A.30 This is similarly the case regarding thenext rnap produced by Malaysia, whichis
entitled TheStateof NorthBorneoand was publishedin 1941. According to Malaysia,this
rnap demonstratesboth "a clear understandingthat Sipadan was part of the State of North
Borneo [..] anda deliberateintentionto includeit"withh the limitsofthat %tel6.
A.31 Malaysia'sassertion that the rnap demonstrates a "clear understanding"that Sipadan
was partof the StateofNorthBomeo ismisleadingand erroneous. Indonesiawouldpoint out
that the rnap shows a number of featuresand territorial possessions whichwere indisputably
notpart of the Stateof North Borneo,for example,the southempart of the islandof Sebatik
and the mainlandpart ofthe Dutch territory. Inthe light of this, the inclusionof Ligitanand
Sipadanin this rnaphas no significanceforpurposesof attributionof territory. In Indonesia's
view, much more relevantis the factthat this rnap shows a line labelled"Boundary between
the Philippine Archipelagoand the Stateof NorthBomeo", very similarto the line drawnon
Map6 discussed above,whichstopswellto the northofthe disputed islands, underminingthe
arguments madebyIndonesiaregardingthe"redline"markedonthe latter map.
F. Maps 15 and 16 of Malaysia'sAtlas: Tawau, Directorof
National Mapping, Malaysia, 1964; Pulau Sebatik, Director
ofNational Mapping,Malaysia, 1970
A.32 Malaysia then introduces two maps published in 1964 and 1970 by the Malaysian
Directorof NationalMapping, which,it alleges,showthat the "boundaryline clearly stopsat
the eastcoast"of sebatik". Onernapis entitledTawauand shows a small partof the eastem
portion ofSebatikwith a 4'10'line running acrossthe islandbut not extendingoffshore. The
rnap carriesthe disclaimer, "Thisrnapmustnot be consideredan authorityon the delimitation
of internationaloundariesanddoesnot in anyevent coverthe islandsin dispute".
16 MM,para. 10.11.
17 MM,para. 1O.12.A.33 The secondmap,which is dated 1970,is entitledPulau Sebatikand only includesthe
sectionof this islandnearestto the mainlandand is therefore totallyirrelevant. The rnapalso
carriesthe followingdisclaimer: "Thisrnapisnot anauthorityforboundaries".
A.34 It is worth noting, in this respect,that Indonesia includedtwo maps in its Memorial,
entitledPulau Sebatikand Tawauand dated 1964 and 1965respectively'*,which were both
preparedby the United KingdomMinistryof Defencefor the Director of National Mapping,
Malaysia, bothof which show an offshoreextension of the 4'10' N boundary line beyond
Pulau Sebatik. Even admitting,for the sake of argument,that the probative value ofthese
maps is diminishedby the fact that they carrysimilar disclaimersto those appearingon the
maps included in Indonesia'sAtlas, they undermineany relevanceof the maps presentedby
Malaysia.
G. Map 17 of Malaysia's Atlas:The Colony of North Borneo,
SurveyDepartment,Jesselton, 1952
A.35 The remaining maps introducedby Malaysia in Chapter 10 of its Memorial are
inconsistentin their portrayalof offshore boundaries. The 1952rnapof TheColonyofNorth
~orneo'~,compiled anddrawnby the SurveyDepartment,Jesselton, does show Ligitan and
Sipadan(the latteroutsidethe fiarneworkof the rnap),but it also shows thesouthernpart of
the island ofSebatikand the adjacentlandmass,which wereindisputably Dutchpossessions.
It should also be noted that, here too, the line portraying the limit of the Philippine
Archipelagostopswellto the northofthe islandsof SipadanandLigitan.
H. Map 18of Malaysia'sAtlas:LahadDatuPolice District,1958
A.36 Malaysiathen refersto a 1958 rnap of the LahadDatu Police ~istrict*', arguingthat
the disputedislands fellwithinthe police district,apparentlyon the basisthat they lieon one
side of what appearsto be an offshoredistrictboundaryline marked on the map. However,
18
19 MapsNo. 11and 13 inIndonesiaMapAtlas.
20 MM,para. 10.13.
Ibid., pa10.14.the provenanceof andjustification forthis line, which reflectsno other line depictedon any
othermaps submittedto the Court, arenot indicatedonthis rnapor elsewherebyMalaysia.
A.37 Indeed, noexplanation is given for the sourceof this rnap generally,and Malaysia's
referenceto the map'slegend, whichstates "Compiledfiom various sources and drawn by
S.M.Ross, LahadDatu, 1958",is unsatisfactory givenits generalnature and failureto make
referenceto any officia1source. Inthe light of the above,this map should be viewed as of
minimal relevance.
1. Map 19of Malaysia'sAtlas:Map Showing Territorial Waters
and Continental Shelf Boundaries of Malaysia,Director of
NationalMapping,Malaysia, 1979
A.38 The nextrnapin Malaysia'scollectionis entitled Map Showing Territorial Waters and
Continental ShelfBoundaries ofMalaysia, datesfiom 1979and waspublishedand printedby
the Director of National Mapping, ~ala~sia~'. This rnap has already been discussed by
Indonesiain its~emorial~~.It includesthe disputedislandswithinMalaysia's maritime zone,
but no referenceis made to any legislationto supportthis boundary line. If compared with
other Malaysian mapsdatingfiom 1963to 1974 al1of whichdepict the offshore extensionof
the line establishedby the 1891 on vent io h^i^, ap, prepared 10years afier the dispute
emergedin 1969, cannot be consideredas having anyprobative valueand merelyillustrates
the extent to which Malaysia'sclaims have been artificially constructed and represent an
encroachment uponthe agreed1891boundaryline.
A.39 Malaysia comparesthis 1979rnapwith the rnap annexedto Indonesia'sAct No.4 of
18February1960~~r,emarkingthat Sipadanwas not includedas a base-point. This issue has
been dealt with inIndonesia's ~emorial~',but for the convenienceof the Court,Indonesia's
positionwill be surnmarisedagainhere.
21
22 IM,,paras.8.59-8.69.aphadalsobeenreproduce dy IndonesiasMapNo. 21in itsMapAtlas.
u See,forexample,MapsNo. 11,12,13,14,16,18and20ofindonesia's apAtlas.
24 MapNo.7 inMalaysia's apAtlas.
z IM, para^8.11-8.13.A.40 This legislationwas drawn up in hasteat a time when Indonesia'sprioritywas to gain
recognitionforthe notionof archipelagicwatersat the SecondUnited NationsConference on
the Law of the ~ea~~.More concemed with that important issue, Indonesia did nomake a
detailed inventory ofthe approximately 17,000islandsmakingup the Indonesianarchipelago
andas aresultmanyofthemwere overlooked.
A.41 In this respect, it should be recalledthat Malaysia recognised Indonesian sovereignty
overa numberof islandsthatwere notspecificallyincludedinthe 1960~ct~'.
J. Maps 20, 21 and 22 of Malaysia's Atlas: Semporna,
Directorate of National Mapping, Malaysia, 1967; Malaysia
Timor Sabah, Directorate of National mapping Malaysia,
1972; OperationalNavigationChart L -11, U.K. Director of
Military Survey, 1978
A.42 The inconsistenciesin the maps presentedby Malaysia are recognised by Malaysia
itself inan attempttoustie two Malaysian maps which hadalsobeen includedin Indonesia's
Atlas asMapsNo. 15and 18,anda Mer mappublishedbythe BritishGovernmentin 1978,
which show a boundaryline between Indonesia and Malaysia extendingout to sea following
the lineresultingfiomthe 1891convention2*.
A.43 Malaysia dismisses these maps as insignificantbecause they al1 carry disclaimers.
Although Indonesia acknowledges the role of a disclaimerin evaluatingtheprobative weight
of map evidence, it hasto be recognisedthat the importanceof disclaimers such as those
appearingon the maps in question,is of diminishedeffectin the faceof a consistent pattern
delineating the boundary in a particular position. What is important is the fact that these
officia1maps representtheconsidered viewofthe MalaysianGovemment asto the outerlimit
of itsterritorialclaims.
26 See,ffidavit ofAdmiralSumardima,M,AnnexB,Vol. 5.
27 For example, PulauTokongBoro, PulauPengiby Tandjung Pariand Pdau Batu Mandi. IM,
para.8.12.
28 MM, paras.10.17-10.19.A.44 Indeed,the Malaysian maps mentionedinMalaysia'sMemorial depictingthe islandsof
SipadanandLigitanon the Indonesianside of the line are notunique. Theyare merely some
examplesof a number of maps issuedby Malaysianauthoritiesprior and subsequentto the
1969statusquoagreementshowingthe offshoreextensionof the line between Indonesia and
Malaysia runningthrough the island of Sebatik and into Sibuko Bay along the 4" 10'N
latitudeasprovided fornderthe 1891Convention. Thesemaps include:
- A map entitledPulauSebatikpublishedfor the Director of National Mapping
of Malaysia by the British Ministry of Defencein 1964 (Map No. 11 in
Indonesia'sAtlas);
- A map entitledMalaysiaTimorSabahdrawnby the Departmentof Landsand
Surveys of Sabah in 1964 and printed and published by the Malaysian
DirectorateofNational Mappingin 1966(MapNo. 12in Indonesia'sAtlas);
- A map entitled Tawaupublished forthe Director of National Mapping of
Malaysia by the British Ministry of Defence in 1965 (Map No. 13 in
Indonesia'sAtlas);
-
A map by the sarne title issued by the Malaysian Directorate of National
Mappingin 1967(MapNo. 14in Indonesia's MapAtlas);
-
A map entitled MetalliferousMinera1Prospecting Licenses issued by the
Malaysian Ministry ofLands and Mines in 1968 (Map No. 16 in Indonesia's
MapAtlas);
- A map calledMalaysia TimorSabahissued by the Malaysian Directorateof
NationalMappingin 1972(MapNo. 18in Indonesia'sMap Atlas);
- A map entitledNegeriSabah,Population andHousingCensus. Map Showing
Distribution of Population prepared and published by the Malaysian
departmentof Statisticsin1974(MapNo. 20 in Indonesia's Map Atlas); - A map entitledMalaysia,Singapura& Brunei:pemerentahan(Politicalmap
of Malaysia, Singapore & Brunei), issued by The Directorate of National
Mappingof Malaysia and dated 1966. This map, which is being reproduced
for thefirsttime by Indonesiaas Map A.l and can be viewed overleaf,shows
the 1891line runningthroughthe islandof Sebatikand extending in aseaward
direction29.
A.45 Similarly, there are examples of British maps attributing the disputed islands to
Indonesia. Map A.2, displayed after Map A.l, is a Top Secretrnap of the island of Borneo
issuedbythe GeographicalSectionofthe BritishGeneralStaff in 1944. As canbe seen,once
more, the 1891 line extends east of the island of Sebatik, showing unequivocallythat the
British view of the 1891 delimitation linewas that the boundary did not terminate on the
eastem-most pointofthe islandof Sebatik.
A.46 Another example of the British official position is a 1973 Tactical Planning Chart
(No.L 11-C) issuedby the BritishMinistryof Defence anda copyof whichis reproducedin
Indonesia's MapAtlas asNo. 19. As can be seenfiom the enlargementof this rnapcontained
in Indonesia'sAtlas, the rnap showsthe 4" 10'N latitude linerunning across Sebatikisland
andextendingintotheseain aneasterlydirection.
Section3. Conclusions
A.47 The cartographicmaterialdeployedby Malaysiais contradictoryand doesnot provide
any evidenceto supportMalaysia'sclaim to the disputed islands. In fact, Malaysiahas not
succeededin counteractingthe consistent cartographicpatternshownin Indonesia's Memorial
and by the Mer maps reproducedin this Counter-Memorialwhich confirmsthat the line
resulting fiom the 1891 Convention extended seaward fiom the island of Sebatik, thus
dividing the territorial possessionsof the Parties and leaving the islands of Ligitan and
SipadanunderDutchor Indonesiansovereignty.
29
Thernapcanbe found intheLibraryof theSchoolof OrientalanAfncanStudiesinLondon.The
LibraryholdsonlytheE.sheetofatwo-shemap.A.48 The British cartographic evidence presented by Malaysia is either irrelevant for
purposes of sovereignty - for example, the British nautical charts - or its importance is
underminedby the existence of other British maps showing Sipadan and Ligitan as Dutch
possessions or as falling on the Indonesian side of the line agreed upon in the 1891
Convention.
A.49 As regards Malaysia's officia1 cartography, Indonesia has shown that, since
independencein 1963,Malaysiahas consistentlyrepresentedthe disputed islandsas forming
part of Indonesia'spossessions. Similarly,anumberof Malaysianmaps createdprior to 1969
depictedthe 1891Convention lineas runningacrossthe islandof Sebatikand extending inan
easterlydirection alongthe 4" 10'N line of latitude. The positiontaken by Malaysiain those
years is particularly significant as it represents the consideredand objective view of that
Govermnentasto the extentof its territorialsovereignty.
A.50 After 1979,long afier the dispute arose, Malaysian maps changed in a self-serving
mannerto depictthe islands as fallingunder Malaysian sovereignty.However,as the award
in the Beagle Channea lrbitration demonstrates,suchtactical changes in officia1cartography
serve onlyto reinforcethe legalsignificanceto be attachedto the consistent patterndisplayed
inthe earliercart~gra~h~~.
30
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