Memorial of Malaysia

INTERNATIONALCOURT OF JUSTICE

CASECONCERNING SOVEREIGNTY OVER

PULAULIGITANANDPULAUSIPADAN

MEMORIALOF

MALAYSIA

VOLUME1

2 NOVEMBER1999 TABLEOFCONTENTS

Paragrauhnumbers

PART ONE

Chapter 1 Introduction

Chapter 2 The Core of Malaysia'sCase and the Scherne
of the Present Mernorial

A. Overviewof the Dispute andthe
Positions of the Parties

B. The Schemeof Malaysia'sMernorial

Chapter 3 The GeographicalSetting

A. The Macro-geographicalSetting

B. The Micro-geographicalSetting

Chapter 4 TheDiplornatic Historyof the Dispute
betweenIndonesiaandMalaysia

PARTTWO

Chapter 5 InternationalActs EstablishingMalaysia's Sovereignty
overthe Islands

A. Introduction
B. The Dependenciesof the Sultanatef
Sulu on the East Coastof Borneo
C. The Grantby the SultanofSulu of1878
and its Implementation
D. The Recognitionby Spain of British
Rights to NorthBorneo

E. The Recognitionbythe Netherlands of British Rightsto North Bomeo

F. The Recognitionbythe United States
(as Successorto Spain)of British
Rights to NorthBorneo, including
the Disputed Islands
G. The ConversionofNorth Bomeo from
British Protectorateto Colony

H. The Inclusionof North Borneoin Malaysia
1. Conclusion

Chapter 6 The ContinuousPeaceful Possession and Administration

of the IslandsbyMalaysia and its Predecessorsin Title

A. Introduction 6.1 - 6.4
B. Administration byMalaysia and its
PredecessorsinTitle, 1878to the Present 6.5 - 6.31
C. Conclusion 6.32

Chapter 7 Netherlands and Indonesian Inactivityin relation
to Ligitan andSipadan

A. Introduction
B. Absence of anyClaim by the Netherlands

to Ligitan andSipadan
C. Absence of Administrationof the Islands
by the Netherlands
D. Absence of Protestbythe Netherlands
in relation to British Administrative

Acts Concerning the Islands
E. Absence of Administrationof the Islands
by Indonesia after Independence
F. Absence of Protestby Indonesiain relation
to British and Malaysian Administrative
Acts Conceming the Islands

G. Conclusion PARTTHREE

Chapter 8 The 1891Boundary Treatydoes not Support
Indonesia's ClaimtoLigitanand Sipadan

A. Introduction
B. The Interpretationof the 1891Boundary
Treatyin Accordance withthe Applicable

Rules of Treaty Interpretation
C. The Travauxpréparatoires of the 1891
Boundary Treatyconfirmthe Literal and
ContextualInterpretationof ArticTV
D. In anyevent,the 1891Boundary Treaty
couldnot have had the effect of allocating

to the Netherlandsislandsbelonging
to Spain

Chapter 9 The Implementationof the 1891Treaty andthe
Demarcation Agreementof 1915Confirm
Malaysia's Position

A. Introduction
B. Dutch Ratificationof the 1891Treaty,the
Interna1Dutch Map andSubsequentDutch
ActionsimplementingtheTreaty
C. SubsequentAgreements betweenthe Partiea.

the 1915Demarcation Convention
D. Conclusion

PARTFOUR

Chapter 10 TheMap EvidenceSupportsMalaysia'sSovereignty

A. GeneralPrinciples
B. British AdmiraltyCharts
C. Other Maps
D. Conclusions In Relationto the
Map Evidence

Submissions
List of Annexes Table of Inserts

No. Description page

Location of Certain Islands relevant to the Dispute 5

Dutch Map of 1913showing the Effect of the 1891Treaty 6
Borneo Coast, Sulu Archipelago, etc
11
Map of the Sempoma District 14

Islands around Semporna,Sabah, Malaysia 16
Islands off the Sabah Coast and their relation to Sebatik

and its surroundingislands 20
North-East Coast of Borneo 32

Location Map of the 1878 Sulu Grant and 1903confirmation 39

Line described in the 1898Treaty of Paris 44
Northern Shore of Sibuko Bay 46

Map attached to the 1907Exchange of Notes opposite 55
Comparison of the 1898, 1907 and 1930Treaty Lines 57

Semporna Region 62

Area of Overlapping Dutch and British Claims 80
First Draft of the Interna1Dutch Map 98 PARTONE

Chapter 1

INTRODUCTION

1.1. This is the Memorial of the Government of
Malaysia (hereinafter called "Malaysia") filed pursuant to the Order

of the Court made on 10November 1998.

1.2. The case comes before the Court by virtue of a
Special Agreement concluded between Indonesia and Malaysia on 31

May 1997. Instruments of ratification were exchanged on 14 May
1998 and the Special Agreement entered into force on that date.' The
Special Agreement was registered with the United Nations on 29 July

1998 and was notified to the Registrar of the Court on 2 November
1998.

1.3. The Special Agreement places before the Court
a dispute between the Partiesrelating to sovereigntyover two islands,
Ligitan and Sipadan, lying a short distance south of the Semporna

Peninsula off the north-east Coast of the island of Borneo. The
question submitted to the Court is asollows:

"Article2. Subject of the Litigation

The Court is requested to determine on the basis of the
treaties, agreements and any other evidence furnished by
the Parties, whether sovereignty over Pulau Ligitan and

Pulau Sipadan belongs to Malaysia or to the Republic of
Indonesia."

The Parties have agreed in Article that:

"The principles and rules of international law applicable
to the dispute shall be those recognised in the provisions
of Article 38 of the Statute of the Court."

1
Annexes, vol2,annex MM33. Chapter 2

THE CORE OF MALAYSIA'S CASE AND THE SCHEME
OF THE PRESENTMEMORIAL

A. Overviewof the Disputeandthe Positionsof the Parties

2.1. The present case involves sovereignty over two small
islands, Ligitan and Sipadan within the State of Sabah, a constituent

part of Malaysia. The two islands are, and for many years have been,
in the possession and subject to the administration of Malaysia and of
its predecessors in title. Those predecessors in title were, from 1878,

the British North Borneo Company (hereinafter "the Company"),
which in 1889 came under the protection of Great Britain (hereinafter
"Britain") and then Britain itself, after it had changed the status of

North Borneo from a protectorate to a colony in 1946. (Inthe period
from 1889-1946, the tenitory now known as Sabah was officially
referred to as the State of North Bomeo.)

2.2. The reason for this long and uninterrupted possession and

administration of the islands, to the exclusion ofIndonesia and its
predecessors, is not far to seek. The fact is that a series of
agreements, made with States which at one time or another had

interests in thearea, establish and confirm Malaysia's sovereignty
over the islands.In particular, Malaysia can show that, in addition to
possessing and administering the islands in the locality appurtenant to

the east Coastof North Borneo, it has acquired sovereignty over them,
as a result of the following series of transactions:

In 1878: A grant to North Borneo by the Sultan of Sulu of certain

tenitory and islands, on the basis of which North Borneo
administered Ligitan andSipadan;

In 1885: The relinquishment by Spain, in its capacity as sovereign
of the Sultanate of Sulu, through a treaty with Britain, of

any claim to the territory of North Borneo and adjacent
islands;In 1907: Agreement by the United States (after it had acquired
sovereignty over the Spanish territories,including Sulu)
to North Borneo's continued administration of certain

islands not covered by the 1878 grant, including Ligitan
and Sipadan;

In 1930: Cession by the United States to Britain of the. islands

administered by North Borneo under the Agreement of
1907.

These transactions were openand public at the time.' The evidence

shows that the Netherlands accepted thatthe islands concemed were
part of the dominions of Sulu in the period before 1878, and that it
did nothingthereafterto challengethe transactions betweenSpain and

Britain, and later betweenthe United States and Britain, in relationto
the islands.

2.3. This being so, Malaysia's sovereigntyover the islands is

clearly established. But in any event, even if - hypothetically -
those transactions had never occurred, the fact of long and peaceful
possession and administration datingfrom as long ago as 1878 and

unchallengedby anyopposing conductof Indonesiaor its predecessor
in title, the Netherlands, must be decisive. That fact, even if it stood
alone, would be a quite sufficient basis for upholding Malaysia's

sovereigntyover the islandsas againstIndone~ia.~

2.4. The present dispute arose in 1969 when, in the course of
discussions between Malaysia and Indonesia over their respective

maritime boundaries off the east Coastof Borneo, Indonesia for the
first time asserted a claim to Ligitan and Sipadan. As a result, the

Parties were only able to agreeon a partial maritimedelimitation,not
covering the waters to theeast of orneo o.^

2.5. The present Indonesian claim was never advanced by the

Netherlands itself. As thus far made known to Malaysia, it is based
on Indonesia's interpretation of the language of Article IV of the
Boundary Treaty of 20 June 1891 between the Netherlands and
Britain (hereinafter"the 1891 Boundary ~reaty").~ That Treaty had

1
2 For details of these transactions see below,5.hapter
3 For details of these acts of administration see below6.Chapter
For the Agreement of 27 October 1969, see Annexes, vol. 2MMnne32.
4 Seefurther below, paragraph 4.4.
See Annexes, vo2,Annex MM 17.the express purpose of delimiting the land boundary between North

Bomeo (which is now the Malaysian State of Sabah) and the Dutch
territories on Bomeo (which is now the Tndonesian temtory of
Kalimantan). Indonesia argues that, in addition to its expressed

purpose of delimiting the land boundary, Article IV of the 1891
Treaty also allocated to the Netherlands two North Bomeo islands,
located more than 40 nautical miles away from the nearest Dutch

possessions. These islands, Ligitan and Sipadan, are the subject of
this dispute.

2.6. The land boundary delimited by the 1891Treaty can be seen
from the Sketch Map, Insert 1 on page 5, which also shows the

location of the offshore islands adjacent to the coast of the Dutch
temtory on Bomeo (Sebatik, Nunukan, Tarakan, etc.). Ligitan and
Sipadan are located considerably further to the east, adjacent to the

coast of North Bomeo. The sarne features also appear in the first
official Dutch map of the area published after the 1891 Boundary
Treaty. That map was published by the Netherlands Indies
Topographical Office in Batavia in 1913: and part of it, in reduced

form, appears as Insert2 on page 6.

2.7. Article 1 of the 1891 Treaty prescribed that the boundary
"shall start fro4" 10'north latitude on the east coast of Bomeo" and

proceed in a westerly direction dong a described course. However,
because an island, Sebatik,lies off the coast of Bomeo just east of the
starting point of the boundary on the mainland, Article IV of the
Treatyprovided as follows:

"From 4" 10' north latitude on the east coast the
boundary-line shall be continued eastward dong that
parallel, across the island of Sebittik. that portion of the

island situated to the north of that parallel shall belong
unreservedlyto the British North Bomeo Company, and
the portion south of that parallel to the Netherlands."

5
See Annexes,vol.5,Map1.2.8. In the course of diplomatic discussions since 1969,Indonesia

made the following arguments: (a) that the boundary along the 4" 10'
N parallel drawn by Article IV should be extended into and over the

sea eastwards of Sebatik; (b) that any islands to the south of that
parallel were accordingly Dutch, not British, after 1891; and (c) that
these now belonged to Indonesia and not Malaysia, irrespective of

their subsequent administration or of any subsequent dealings with
them. Indonesia relied in particular on a Dutch map, prepared by the
Netherlands immediately after the conclusion of the Treaty for

internaluse.6 That map showed the 4" 10' N parallel extending some
way to the east of Sebatik. Malaysia rejected that interpretation of
Article IV, as well as the argument based on the internal Dutch map.

It continues to do so today.

2.9. In short, as Malaysia sees the matter, there are at present only

two issues before the Court: (i) the confirmation of Malaysia's
sovereignty over the islands based upon long and effective possession
and administration, and on treaties with the other interested States

(Spain and the United States); and (ii) the rejection of Indonesia's
claim based upon its interpretation of the 1891 Boundary Treaty and
on the internal Dutch map.

2.10. It is no doubt possible that Indonesia may present its case in
such a way as to broaden the scope of the argument. Malaysia

reserves the right to respond to any such new developments in its
Counter-Mernorial.

B. The Scheme of Malaysia's Memorial

2.1 1. The scheme of this Volume 1 is as follows. In the rest of
this Part One, Malaysia will briefly describe the geographical setting
of this dispute (Chapter 3), and will give a brief account of its

diplomatic history (Chapter 4). It will then, in Part Two, analyze the
transactions by which its administration of and title to the islands
were recognized (Chapter 5), and will show that its title has been

accompanied, and is evidenced, by long and peaceful possession and
administration (Chapter 6). That long and peaceful possession and
administration will be contrasted with Netherlands and Indonesian

inactivity in relation to the Islands (Chapter 7). In Part Three,
Malaysia will show that the Indonesian claim is not supported either

6 See Annexes,vol. 5,Map2.by the 1891 Treaty itself (Chapter 8), or by the subsequent processes

of ratification and implementation of the Treaty and demarcation of
the boundary it established (Chapter 9). Finally, in Part Four,

Malaysia will review the map evidence, and will show that taken as a
whole it too strongly supports Malaysia's title (Chapter 10). The

Memorial concludes with Malaysia's submissions.

2.12. Attached to this volume are 4 volumes of annexes:

Volume 2 is the Treaty Annex, setting out in chronological
order relevant treaties, agreements, grants and other

instruments.

Volume 3 sets out in chronological order relevant diplomatic
and other documents.

Volume 4 sets out the documentary evidence of North

Borneo, British and Malaysian administration of the
islands since the late nineteenth century, also in

chronological ~rder.~

Volume5 is the Map Annex, reproducing relevant maps.

7 There exists substantial literature dealing with the relations of Borneo and
Sulu in the nineteenth century, the administration of NorthBorneo (including the

off-shore islands) after 1878, and with the Dutch administrationof Kalimantan. In
this Memorial, Malaysia will refer exclusively to the primary documents and
contemporary records and journals. However the story told in these various
secondary sources corroborates and supports the argument of this Memorial.
Nowhere in the secondary literature is it suggested that the disputed islands, or any
other part of North Borneo, was subject to Dutch sovereignty or was under the
control of the Sultan of Bulungan (from whom the Dutch Government derivedits

claim to the east Coastof Borneo). See, in particular:
Belcher,E,Narrative of the Voyage of HMS Samarang during the years 1843-4(2
vols, London, 1848);
Black, Ian,A Gambling Style of Government: The Establishment of Chartered

Company's Rule in Sabah, 1878-1915(Kuala Lumpur: OUP, 1983);
Black, Ian,ative Administration by the British North Borneo Chartered Company,
1878-1915 (Ph.D. thesis, ANU, 1970).
Hunt,J, "Some Particulars Relating to Sulo, in the Archipelago Felicia", in Moor,

JH (ed), Notices of the Indian Archipelago and Adjacent Countries
(London: Cass, 1968) (first published 1837),Appendix, pp.31-60;
Irwin, G, Nineteenth-Century Borneo. A Study in Diplomatic Rivalry (The Hague,
MartinusNijhoff, 1955);Majul, CA, "Political and Historical Notes on the Old Sulu Sultanate" (1965) 38 J
Malaysian Branch Royal Asiatic Society 23-42;

Martin, H, De Engelschen en de Nederlanders in den Indischen Archipel met terugzigt
op eene besproken vestiging der Belgen op Borneo (Amsterdam,G. Theod.

Born, 1866);
Maxwell, WG & Gibson, WS, Treaties and Engagements affecting the Malay

States and Bomeo (London, 1924);
Paulus, J (ed.), Encyclopaedia van Nederlands-Indië ('s-Gravenhagekiden:
NijhoffBrill, 2nd. ed., 1917);

Pryer, WB, "Notes on Northeastem Bomeo and the Sulu Islands" (1883) 5 RGS
Procs 91;

Pryer, WB, "On the Natives of British North Bomeo" (1887) 16 J Royal Anthrop
Inst 229-36;

Resink, GJ, Indonesia's History between the Myths. Essays in Legal History and
Historical Theory (TheHague, Van Hoeve, 1968);
Reynolds, John Keith, Towards an Account of Sulu and its Bomeo Dependencies

1700-1878 (MA Thesis, University of Wisconsin, 1970).
Rutter, O, British North Bomeo: an account of its history, resources and native

tribes(London, 1922);
Saleeby, NM, The History of Sulu (Manila, 1908,reprinted 1963);

Sather, C, "Sulu's PoliticalJurisdiction over the Bajau Laut" (1971) 3 (2) Borneo
Research Bulletin 58-62.
Sather, Clifford, The Bajau Laut. Adaptation, History and Fate in a Maritime

Fishing Society of South-eastern Sabah (Oxford University Press, Kuala
Lumpur, 1997);

Tarling, Nicholas, Sulu and Sabah. A Study of British policy towards the
Philippines and North Bomeo from the late eighteenth century (Oxford

UniversityPress, Kuala Lumpur, 1978);
Tregonning, KG, Under Chartered Company Rule: North Borneo, 1881-1946
(Singapore: University of MalayaPress, 1958);

von Dewall, H, "Aanteekingen Omtrent de Noordoostkust van Borneo" in (1855) 4
Tijdschrift voor Indische Taal-, Land- en Volkenkunde 423-458;

Warren, James F, The North Borneo Chartered Company's Administration of the
Bajau, 1878-1909. The Pacification of a Maritime, Nomadic People
(Athens: Ohio University Centre for International Studies, Papers in

International Studies,Southeast AsiaSeries No. 22, 1971);
Warren, JF, "The Sulu Zone: Commerce and the Evolution of a Multi-ethnic Polity,

1768-1898" (1979) 18Archipel 133-68;
Warren, JF, The Sulu Zone, 1768-1898 (Singapore: Singapore University Press,
1981);

Willi, J, The Early Relations of England with Bomeo to 1805 (Berne, Langensalza,
1922);

Wright, LR, The Origins of British Bomeo (Hong Kong University Press, Hong
Kong, 1970,reprinted 1988). Chapter3

THE GEOGRAPHICALSETTING

A. TheMacro-geographica Sletting

3.1. The tenitories of Malaysia fa11into two main geographical
areas: the Malay peninsula and the northem part of the island of
Bomeo, extending from the Westto the east coast. Associated with

each of those areas aremanyoffshore islands. So far as the east coast
of Bomeo is concemed, al1these islands are wellknown, have names
and are described in authoritative sailing guides and pilots.They are

also shown on maps of the 18" and 19'~century, with names which
are for the most part the same as or similar tothe names they have
today. Even those islands which were not permanentlyinhabited
were visited by fishermen and others and their resourcesharvested

(whether in the form of forest products, coconuts, shellfishor turtle
eggs) throughout the periodfor which recordsexist. They have long
been subject to administrative control by Malaysia and its

predecessors in title. Therecan be no suggestion that anyone of them
is, or at any relevanttime was,terra nullius.

3.2. Indonesia is an archipelago consisting of thousands of

islands of varyingsizesof which the principalones are Java, Sumatra,
Sulawesi (the Celebes), Maluku (the Moluccas) and Irian Jaya.
Indonesia also includes the southem part of the island of Bomeo,

under the name of Kalimantan.

3.3. Al1 boundaries between the two parties are maritime
boundaries, with the exception of the boundary onthe main island of

Bomeo and the adjacent island of Sebatik. Here the boundary was
laid down by their respective predecessors intitle, Britain and the
Netherlands, by the 1891 Boundary ~reat~.' The boundary was

formally demarcatedby a further treatyof 1915.2

1
2 Annexes, vol2,annex MM 17.
Annexes, vol2,annex MM 27. It was later amended in relation to an
area on the western part of Borneo (not relevant to the present case) by a
treaty of 1928 (Annexes,vol. 2, annex MM 28).3.4. To the north and east of the large island of Borneo are many

small islands stretching in the direction of the Philippines across the
Sulu Sea and the Celebes Sea. A particular feature of the region to
the east is the chain of islands still known as the Sulu Archipelago.

Its main town of Jolo was, from the eighteenth until the early
twentieth century, the seat of the Sultan of Sulu who held sway over

these islands and many others in the surrounding seas, up to and
includingthe north-eastcoast of Borneo itself.

B. TheMicro-geographicalSetting

3.5. The north-east coast of Borneo consists of a series of bays
and indentations interspersed with peninsulas, with associated

offshore i~lands.~ These bays and indentations include, from the
north, Teluk Paitan (known as Paitan Bay in the British period), Teluk
Labuk (Labuk Bay), Sandakan Harbour, Teluk Lahad Datu (Darvel

Bay), and, south of the Semporna Peninsula, Sibuko Bay, a large bay
formerly known as St. Lucia Bay. Within Sibuko Bay and north of
the island of Sebatik is Teluk Tawau (Cowie Bay). The north

shoreline of Cowie Bay is the site of Tawau (Tawao), the local
administrative centre and, slightly to the east of it, Batu Tinagat.
Sailing east from the island of Sebatik itself, there is nothingbut open

sea with some shoals until, 30 n.m. away, is encountered Terumbu
Ligitan (Ligitan Reefs). Sipadan and Ligitan are respectively 8.2 n.m.

and 19.5n.m. further to the south-east of Terumbu Ligitan.

3.6. These various features, islands and places are shown on the
sketch map which is Insert 3, opposite. Identified on that map are a

number of locations to which reference will be made in this
Memorial: these include Lahad Datu, Sempoma, Danawan and Si
Amil, Ligitan itself, Omadal and Sipadan.

3.7. In the nineteenth and twentieth century, the islands and reefs
along the north-east coast of Borneo have been inhabited and used by
the Bajaus, otherwise known as Bajau Laut or Sea Gypsies. They

lived mostly in boats, or in settlements of stilt houses above water,
and indeed many still do. There is a large settlement in Trusan

Treacher, near Sempoma, the result of the resettlement efforts of the
Company after 1906 (describedin Chapter 6). The Bajaus have their

3 In this Memorial, Pulau Ligitan and Pulau Sipadan will be referred to
simply as Ligitan and Sipadan. The word Pulau (abbreviation: P.) is Malay for
island.own language (Samaor Samal). Their occupation attimes relevant to

the present case was mostly fishing and the collection of forest
products. They were a key part of the "procurement system"operated

from Sulu until the 1880s, whereby goods such as edible birds nests,
trepang (bêche-de-mer), rattan etc. were collectedby them and traded
through the port of Jolo, especially with China. The role of Jolo was

largely taken over by the trading centre of Semporna after its
establishment by the Company in 1887. The local leaders, who were
often Sulu, were appointed by the Sultan of Sulu, and given such

titles as Panglima, Datu, Temengong, etc. The Company assumed
that prerogative after 1878 and confirmed in office or subsequently
appointed a number of local leaders who had previously held office

under the Sultan. The names of some of the indigenous leaders are
contained in a table, taken from J.F. Warren, The North Borneo
Chartered Company5 Administration of the Bajau, 1878-1909. The

Pacification of a Maritime, Nomadic People, which is reproduced in
Annexes, vol. 4, annex MM 90.~ The area around Semporna

inhabited by the Bajaus and administeredby the Company is shown
by Warren in the map reproduced as Insert4 on page 14.

3.8. In 1903 the British North Borneo Herald published an

interesting accountof the Bajau cemeteryon Omadal,referring also to
the Bajau settlementsat Silam, Danawan,and ~em~orna.~As will be
seen in Chapter 6,Bajaus from Danawanhave long held the license to

collect turtle eggs on Sipadan, granted initiallyby the Sultan of Sulu
and subsequentlyrecognized by North Borneo.

(i> Ligitan

3.9. Ligitan is the southern extremity of an extensive star-shaped
reef that extends southward from Danawan and Si Ami1 Islands,

4 Athens: Ohio University Centre for International Studies,Papers in
InternationalStudies, Southeast Asia Series No. 22, 1971,112. A more
recent anthropological accounthe Bajau, also valuable, is C. Sather, The Bajau
Laut. Adaptation, History and Fate in a Maritime Fishing SocieQ of South-eastern
Sabah (Oxford University Press, Kuala Lumpur, 1997). Coofthe works by
Warren and Sather have been lodged with the Court.
5 See Annexes, vo4, annex MM88. For a photograph of the cemetery see

page 26. Map of the SempornaDistrict

SEMPORNA

rJ" DARVEL BAY

.,<"..,,,(&a
SJJ

'.AlUIO*O
CIYll

J

SIIUKO BAY

LEGEND '""O
COAST -
ISLAND-
REIF - CELEBES SEA

Source: Warren, James F, The North Borneo Charrered Company's
Administration of the Bajau, 1878-1909. ThePaczfication of a Maritime,

Nomadic People (Athens: Ohio University Centrefor International Studies,
Papers in International Studies, SoutheastAsia Senes No. 22, 1971),p. 11.which are respectively 8.6 n.m. and 8.9 n.m. north of Ligitan. The

islands which form part of the reef structure are often referred to on
charts as the Ligitan Group: the Bajaus living on Danawan and Si
Ami1made useof the wholereef area for fishing, and of Ligitan itself

for drying fish andotherpurposes. Ligitan lies about 21.5 n.m. south
east of the nearest point on the coast (the foothill of Hood Hill), and
about 15.5 n.m. east of Sipadan. Most of the reef is submerged,
though it shows dry patches in irregular shapes of between 0.3 and

1.2m in height. In 1903the island was described in a United States
naval report as follows:

"This island is inaccessible to al1 except small boats
owing to its distancefrom the edge of the reef on which

it stands. It isuninhabited and coveredwith scrub bush
and a few trees ofno ~alue."~

At the northem tip of the reef, Danawan lies approximately 15.5n.m.
southeast of the Sempornapeninsula. Nearby, about 0.5 n.m. to the

north-east of Danawan, there is a separate island, Si Amil, on which
there is a lighthouse operatedby Malaysia. Thereis also a lighthouse
operated by Malaysia on Ligitan itself: its coordinates are 4" 09'48"

N, 118"53'04" E.

3.10. Ligitan is covered in rocks, wild grass and trees called
bilang-bilang. It isnot permanently inhabited, but until very recently
there were a number of huts on stilts which were intermittently

occupied. The island is often used to dry fish. Ligitan's name
originates in the fact that in Bajau "Ligit" means thoms; thus the
words "Pulau Ligitan" mean "island of thorns7'.

3.11. A satellite image of Ligitan, showing its relation to the star-

shapedreef and to Sipadan,is shown as Insert5 on page 16.

(ii) Sipadan

3.12. The island of Sipadan lies at lat.4" 06'39"N and long. 118"
37'56"E. It is 14.8 n.m. from the nearest point on the coast (Tanjung

Tutop) and 42.0 n.m. to the east of the island of Sebatik. The general
direction of the closest mainland coast line in Sibuko Bay is
eastwards alongthe Sempomapeninsula, terminatingat Pantau at the

6 SeeAnnexes, vol. 3annex MM 63.eastern end of Bum Bum Island. Sipadan is 42.0 n.m. from the island
of Sebatik; the nearest Indonesian island (Pulau Ahus) is 51.2 n.m.
away. Sipadan is neither geographically, ethnographically nor

economically associated with any part of Indonesia.

3.13. The following entry appears in the seventh edition of the

Eastern Archipelago Pilot (1963):

"Sipadan island (Lat. 4" 07' N, Long. 118" 38' E), 7%

miles southward of Mabul island, is wooded, and 165
feet (50m3) high to the tops of the trees; it lies on the

north-western side of a reef which is steepto. Turtle
frequent the island in considerable numbers. A light is
exhibited, at an elevation of 80 feet (24 m.), from a

white metal framework tower 72 feet (21 m.) in height
near the southem extremity of Sipadan island."'

3.14. The name "Sipadan" apparently derived from the fact that a
body of one "Paran" was found on the shore of the island. The prefix

"Si" means "Mr" and so the island came to be called "Siparan" and,
in due course, "~i~adan".~ In the description by Hunt given in 1837,

the author refers to the coast of the Bay of Giong (later renamed
Darvel Bay) and States that the island of "Pulo Giya, off this coast,
abounds with deer, & Separan with abundance of green t~rtle".~

3.15. In a United States naval report of 1903 Sipadan was
described as follows:

"This island is densely wooded with ta11timber and is the
resort of many turtles. There is no water and it is, in

consequence, uninhabited. It may be approached from the
Northwest but there is no anchorage."10

3.16. Sipadan is the oval-shaped peak of a seamount which rises
abruptly from a depth of about 600m. It has a low profile and a sandy

beach. The whole structure may be likened to a mushroom of which

7 EasternArchipelago Pilot, vol. I,7th ed., (1963)p. 189. The term "steep-
to" refers to the fact that the island drops steeply into deep water from the
fringing reef.
8
See the deposition of Haji Tilaran Abdul Majid, the son of Panglima Abu
9ari, 23 January 1975:Annexes, vo4,annex MM 117, para. (1).
10 Annexes, vol3, annex MM 34.
Annexes, vol3, annex MM 63; and see below, paragraph 5.28.the stem stands on the seabed andthe capprotrudes onlya few metres
above the surface. The outer edge of the cap is only about30 metres
from the low water line.

3.17. Sipadan was originally covered with thick jungle until the
time Panglima Abu Sari planted some coconut trees and some

maize." A well was dug on the island by Panglima Johan and
Panglima Nujum to provide fresh water on the occasions that they
spent nights on the island to collect turtle eggs. They also built a

semi-permanent wooden hut.12

3.18. Sipadan is part of the administrative district of Sempornain
Malaysia: earlier it was part of the district of Lahad ~atu.'~ Neither

the Netherlands nor Indonesia has ever exercised any authority over
it. The situation is fully set out inChapter6 below.

3.19. Because of its unusualstructureandunspoiled coral, Sipadan
is a very popular tourist centre, especiallyfor scuba divers.14 This
diving activity led to the development on the island of a number of

diving establishments and chalets. At its height there were 191
regular residents on the island (none of whom were Indonesian);the

number has now been substantially reduced in order to protect the
island from over-exploitation. The chalets anddiving companies are
registered with the Registrar of Companies, Domestic Trade and

Consumer Affairs Ministry,Sabah, with theexception of Pulau Bajau
Resort which is registered with the Semporna District Council.
About 100 visitors are present on the island on any given day. Over

the past 15 years, 115,053 tourists, mostlyforeign, have visited the
island.

3.20. The nearest inhabitedisland is Mabul, some 8 n.m. to the
north of Sipadan. About 90 people work atthe hotel complex called
Sipadan Water Village which was built in 1994. In additionthere is

11
See the deposition of Haji Tilaran Abdul M23January 1975:
12nexes, vol. 4, annex MM 117, para. (12).
See the deposition of Panglima Nujum, 24 January 1975: Annexes, vol. 4,
annex MM 118 para. (9). For the eventual fate of the hut see the Sabah High Court
judgment of 28 April 1995: Annexes, vol.nnex MM 122.
13 See Administrative Divisions Proclamation 1982,General Notification of
Sabah No.7 of 1982:Annexes, vol. 4, annex MM 121.
14 For a photographie guide to Sipadan and its marine life, seeMP Wong,
Sipadan.Bomeo's UnderwaterParadise (Odyssey Publishing, Singapore, 1991).
Copies of this book have been deposited with the Court.a settlement of about 1,000 people. Some are of Sulu and Philippine
origin who are now resident onthe island. Many of them live in

structures built on poles. There are about 40 sea Bajaus, who live
mainly in boats moored withina few metres of the shore and live by
fishing. A selection of photographs of these various features follows

at the end of this Chapter.

3.21. Sipadan is part of a group of small islands comprising
Mabul, Omadal,Kapalai,Danawan,Si Amil, Ligitan and Sipadan. In

the first edition of the EasterArchipelago Pilo tu,blished in 1890,
it is described as "the southernmost of the group", immediately
following a description of Si Amil, Danawan and Ligitan and before

the brief mention of ~abul.'' The geographical closeness of these
islandshas ledto constantmovement betweenthem al]. The extent to
which these islands were closely interconnected in thesubsistence

economy of those who lived there (principally fishing and turtle egg
collection)is vividly shownin the affidavitsattached as Annexes, vol.
4, annexes MM 116 - MM 120. Thus Haji Tilaran in his affidavitof
23 January 1975 referred to the fact that his father, Panglima Abu

Sari, was made Chiefof Pulau Danawan by the Sultan of Sulu and
that the islands under his control and jurisdiction were Ligitan,Si
Amil, Kapalai and sipadan.16 Panglima Abu Sari was responsiblefor

controllingthe collection of turtle eggs onSipadan and for control of
the fisheries inthe waters aroundthe islands. Further details of turtle
collection and associated activities on Pulau Sipadan are set out in

Chapter 6.

3.22. The location of Ligitan andSipadan, and their relation to the
other places mentioned here,can be seen from the satellite image of

theregion, which is Insert 6on page20.

15 JP Maclear (comp.), EasternArchipelago, I(Eastern Part)
(Hydrographie Office of the Admiralty,London, 1890) p. 188.
16 Deposition of Haji Tilaran Abdul Majid, 23 January 1975: Annexes, vol.
4,annex MM 117,para.(5). Chapter 4

THEDIPLOMATICHISTORYOFTHEDISPUTE
BETWEENINDONESIAANDMALAYSIA

4.1. Many territorial and boundary disputeshave a longhistoryof
diplomatic negotiations before being referred to judicial or arbitral
settlement. By contrast the diplomatic background'to the Special
Agreementof 1997is relatively brief.

4.2. As will be seen in more detail in Chapter 5, the islands of
Ligitan andSipadan have duringthe last two centuriesbeen under the
sovereignty, first, of the Sultan of Sulu,en of Spain, then of the
United States,then of Great Britain andnow of Malaysia. From1878

onwards,the only polity toexercise actualjurisdiction or control over
the two islands was North Borneo and itssuccessors in title. At no
time during that period was any adverse claim made to the now-
disputed islands by Indonesia or its predecessor in title, the

Netherlands or the Sultan of Bulungan. No public governmental act
or act of sovereigntywas carriedout on or in relationto the islandsby
the Netherlands or Indonesia. No native ruler on the east Coastof
Bomeo, other than the Sultan of Sulu, ever laid claim to Ligitan or

Sipadan as part of his possessions.

4.3. Until 1969, therefore, the effective possession and
administration of the islands by Britain and then by Malaysia had
remained unquestioned by Indonesia and its predecessor in title,the
Netherlands. Only when the parties commenced negotiationsin 1969

for the purpose of delimiting their respective areas of continental
shelf didIndonesiaforthe first time advancea claim to the islands.

4.4. Following those negotiations, a delimitation agreementwas
concluded on27 October 1969. It entered intoforce on 7 November

1969. But by reason of the disagreement thatthen arose over the two
islands, the maritime area it covered did notextend to the area lying
to the east of ~omeo.' An exchange of notes took place on 22

1
SeeAnnexes,vol. 2, annexMM32.September 1969, afterthe Agreement had beeninitialled but before it

was signed, in which both States recorded their "understanding that
both the negotiations and the Agreement are purely and wholly of a
technicalnat~re".~

4.5. Subsequently there have been exchanges of diplomatic
correspondencebetween the Parties. However, theydo not affectthe
legal issues now before the Court, and Malaysiadoes not propose to

burdenthe Court with a mere recitationof their content.

4.6. In October 1991,the two Parties agreedto establish a Joint

Working Group on the position of the islands. This Group held
several meetings in the period 1992-1994, exchanging written
memoranda and documentation. However, no agreement was
reached, and eventually thematter was referred to special envoys of

the two sides. In June 1996, they made a jointrecommendation that
the question should be placed before the International Court of

~ustice.~The SpecialAgreement was concluded on31 May 1997.

2
3 See Annexes,vol.3,annexMM 74.
See theJointReportof Discussionsdated21 June1996:Annexes,vol3,
annexMM75. PARTTWO

Chapter5

INTERNATIONALACTS ESTABLISHINGMALAYSIA'S
SOVEREIGNTYOVERTHEISLANDS

A. Introduction

5.1. As outlined in Chapter 2, Malaysia's sovereignty over

Ligitan and Sipadan is based on two independent but also intersecting
strands. mt, title to the islands was acquired by grant of the
previous sovereign, a situation which was recognized by and was

opposable to al1relevant States in the region as a result of published
treaties. Secondly, following from the 1878 grant to Baron von
Overbeck, the islands have been peacefully and continuously

administered by Malaysia's predecessors in title, and by Malaysia.
That administration was never contested by the Netherlands or (until
1969) by Indonesia, and it continues to the present day. Each ofese

strands is by itself sufficient to uphold Malaysia's position as against
Indonesia. Taken together they are decisive of this case.

5.2. This Chapter deals with the first of the strands identified in

the previous paragraph. Chapter 6 will deal with the second. The
sequence of events described in detail in this Chapter is presented in
summary form on the following page.

B. The Dependencies of the Sultanate of Sulu on the East
Coast of Borneo

5.3. In the lgth and throughout the 19~~century until 1878, the
coastal territory of north-east Borneo and its adjacent islands was a
dependency of the Sultanate of Sulu, and something needs to be said

accordingly about this Sultanate. The Sultanate was a substantial
maritime power, exercising authority over a considerable number of
islands lying between mainland Borneo and the Philippines, as well as

over the Sulu 'ArchipelagoitselfIn fact a great deal of the Sultan's
revenue came from the region of north-eastern Borneo under Chronologyof MainStepsin the Acquisitionof NorthBorneoand

Offshore Islands(includingLigitanandSipadan)

1 Date 1 Instrumentor Action 1 Annex 1

29 December 1877 Grants by Sultan of Brunei to Dentand Overbecvol. 2,
Territories on north West and north east coasAnnexesMM
Borneo, to SibukoRiver, withcertainislands
r

22January 1878 Territories on northst and north east coast offl. 2,
Borneo, to SibukoRiver, withcertainislands Annexes MM
9&MM 10-- --

Charter of British NorthBorneoCompany vol. 2,
AnnexMM 14

7 March 1885 Protocol, Article III: S&aGermany recognize vol. 2,
British administrationof territoriesin 1878Grantx MM 15

12May 1888 British Protectorateproclaimedover NorthBomevol. 2,
AnnexMM 16

Great Britain-Netherlands, Conventiondefininvol. 2,
boundariesin Borneo 1AnnexMM 17

10 December 1898- United Statesacquisitionof the Philippines(invol. 2,
7 November 1900 SuluArchipelago) AnnexesMM
19& 21

22 April 1903 Sultan of Sulu-British North Borneo Co., vol. 2,
Confirmationof Cession of Certain Islands Annex MM22

3& 10July 1907 Great Britain-United States, Exchange of Notevol. 2,
concerning the Administration and Lease of CAnnexMM 23
Small Islands on the North Borneo Coast by th&MM 24
BritishNorth Borneo Company

28 September 1915 Great Britain-NetherlandsAgreement approving vol. 2,
Joint Report of Commissionerssuant to ArticleAnnexMM 27
of the 1891 Convention (demarcating the 1891
boundary)
-- ~-~ - -
2 January 1930 United Kingdom-United States, Boundary vol. 2,
Convention recognizes offshore islandpartof AnnexMM 29
North Bomeo
r
26 June 1946 British North Bomeo Protectorate becomes a Brvol. 2,
colony AnnexMM 30

16September 1963 Malaysia Agreement of9 July 1963cornesinto fovol. 2,
incorporatingNorth Borneo (Sabah)in Malaysia AnnexMM 31the procurement system, being traded throughSulu with China,

Singapore and elsewhere. Under the procurement system, tradingin a
whole range of commodities (birds' nests, trepange,tc.) occurred via
Sulu, and local people made frequent visits there for this andother
purposes.

5.4. The position was described insome detail by James Hunt in

"Some Particulars relating to Sulo,in the Archipelagoof Felicia", first
published in 1837. His account readsin part asfollows (modem place
names are underlinedinbrackets):

"The provinceof Mangidora forms thenorth eastem part

of Bomeo, extendingitself towards theSu10Archipelago
in a longnarrowpoint namedUnsang,or cape Misfortune
[TaniunaUnsang]. The whole of this districtyieldsvery
valuable articles for commerce and in considerable

quantities, birds' nests, black and white in great
abundance, camphor, elephants, cattle,darnmer, wax,
lackawood, rattans,and great quantitiesof thepurestgold
in lumps and dustof a very soft pliabletexture like wax,

&c ...
Giongriveris situated onthe north-westpartof the bayof
that name [DarvelBay]; here are considerable quantities
of blackish birds nests procurablePu10 Giya [P. Gava],
off this coast, abounds with deer,& Separan [Sipadan]

with abundanceof greenturtle. There is also a speciesof
birds' nests like driven snow foundon Pu10Giya and
muchtripangis collected about thebay..."'

After refening to the Suluport of Sabahan,Hunt goes on to describe

points further south, including Tidong (where therewas in 1837 "a
small fort with seven or eight largeguns under Sulo"). Then, in "the
last province on Bomeo belonging to Sulo", which was named the
province of Tirun, he mentions the Sibuko river, followed by other

rivers dong the coast before arriving at Bulungan. The key places
mentionedhereare shown inInsert7, onthe followingpage.

5.5. The dependenciesof the Sultanateof Sulu from Marudu Bay
inthe north downto belowtheSibukoRiver were acknowledgedinthe

1 Annexes,vol.3,annex MM34.19' century,as this account shows. Theoriginsof Sulu authoritywere
said to go back to a gant of the Sultanof Brunei, given to Sulu in the

early 18' centuryinretum fortheirassistancein acivil conflict. Brunei
subsequently denied the existence of any such grant, but there is no
doubt that the effective authority was vested in the Sultan of Sulu.

Thusthe Renne1manuscriptof 1762-3notesthat:

"The Dominionsof Soolooare composedof about 140or
150islands situatedbetween thePhilippinesand Bomeo;

together with a large part of the Coast of Borneo; the
Islandof Paragoaor Palawan, & the islandsthat form the
Straightof ~alabar."~

5.6. The earlier history of Brunei sovereignty overthe coasts of
Bomeo was the reason why Baron von Overbeck in 1877-8 obtained
two grants covering exactly the same territory, onefrom Brunei, one

from ~ulu.~ But by the 1870s itwas agreedthat Brunei exercisedno
effective authority on the north-east coastand that the Sultanof Sulu
exercisedcontrolthere.

5.7. This control resultedfrom the allegianceof the localpeople
and the appointmentof their local chiefsby the Sultan. For example,
Nakoda Gomba was the Sultan's Agent on the north-east coastof

Borneo. When in 1875 a party from the Austrian corvetteFriedrich
was attackedin SibukoBaywhilecollectingwood,it was to the Sultan
of Sulu that Nakoda Gomba reported.4 In his statement Gombanotes

that he is "the agent of the Sultan of Sulu charged with the
superintendenceof the tradeon the north-east coastof Bomeo". As to
the attackon the Austrians,hereports that:

"The peoplewho attacked theboat of the Austrianfrigate
areBajowsof Omadar [Ornadal],a small islandnearPu10
Gaya... They mistook theflag of the frigateand thought
the shipbelonged to their enemies, the Spaniards. 1 have

written al1 the information 1can collect on the subjectto

2 T. Harrison,"TheUnpublishedRenne1Manuscript:A BomeoPhilippine
Journal, 1762-63" (1966)39urnalofthe Malaysian Brancofthe RoyalAsiatic
Societyp. 105.
3 SeeAnnexes,vol. 2, annexesMM 6-9,andfor a contemporaryexplanation
by Acting Consul-GeneralTreacherof this duplicationsee Annexes,vol.3, annex
MM35.
4 See Annexes, vo4, annex MM76. See also the commentby the British
Acting Consulat Labuan: Annexes, vol.4, annexMM 77. the Sultanof Sulu, and soonexpect to receive his orders.
1 think he will certainly order the apprehension and

executionoftwoof theChiefs."

Ttis significantthatGombawasoneof the Suluofficialswho continued

to hold officewhen the Company assumed governanceof the region,
being appointed native magistrateof DarvelBay in 1882.' He was also

one of the signatories of a "Protest of Chiefs of Sandakan against
Spanish Occupation" signedonthe occasionof anabortiveattemptbya
Spanish frigate to take over the settlementof Sandakan in September

1878,shortly after the Sultan's capitulation to spaim6 ~he signatories
state that "the matter of the transfer of this country to an English

Company havingbeen referred tous bythe Sultan six months ago, we
have agreedto that transferandareboundbyit".

5.8. The Sultan of Sulu's authority over north-eastern Borneo
was recognized by other States andis evidenced, for example, in the
following documents:

(a) In 1870 there was published inLeiden the second edition of
a "General Atlasof the NetherlandsIndies". Its fulltitle as shownon

the title page may be translated as follows: "General Atlas of the
Netherlands Indies compiled from officia1sourcesand with approval

of the Government. Second edition with improvedmaps". It was
edited by Baron Melvill van Carnbée and W.F. Versteeg, both
officers of the Government of the Netherlands ~ndies.~The map of

the east coast of Borneo shows a boundaryrunning westwards of an
island named "P. Sebalik" [sic]. To the north of that line is the

inscription "Gebied van Soeloe of Solokh" ("Dominion of Soeloe or
Solokh"). To the north and well to the east of the boundary line

5 SeeNorthBomeoHerald,1 July1886,pp. 121-2Annexes,vol.4, annex
MM 81.
6 See Annexes,vol4,annexMM 78,and the telegramby Treacher, Annexes,
vol., annex MM 79.
7 See Annexes, vol5,Map 3. The authors'titles are shownon the

frontispieceas:
P. Baron MELVILL VAN CARNBÉE, Knight of the Order of the
Netherlands' Lionand of the Legion of Honour, Commanderat Sea
and Secretary of the Commission for the Improvement of Indian
Nautical Chartsat Batavia,and
W.F. VERSTEEG,Knightof the MilitaryOrder ofWilliam and of
theOrder of the Netherlands'Lion, Officerof the Orderof the Crown
of Oak, formerLieutenant-colonelof the RoyalEngineersand Chief
of the Topographical BureauatBatavia.depicted on the map are shown certain islands clustered around

Darvel Bay, including specifically "P. Siparan" (Sipadan) and "P.
Legetan" (Ligitan). The depiction of the islands andcoastline here is
highly inaccurate,by comparison with theareas further to the south

where the Dutch had at that time some measure of control. But it is
plain from the map that the islands named andthe other territories to
the north of the depicted boundary were considered in 1870 as

belonging to Sulu, and were not claimed by the Netherlands in right
of Bulungan or otherwise.

Following the Sultan of Sulu's 1878 grant tovon Overbeck
(b)
and Dent, questions were raised in the Dutch Parliament on the
assertion of Dutchclaims to control overBorneo. In reply the Dutch
Minister of Coloniessaid:

"The north-eastand north-west portionsof Borneo have
never been under Our dominion. We have never
disputed the authorityof Spain over the dependenciesof
798
Sulu in the north-east portionof the island...

(CI This position was expressly reaffirmed inthe Explanatory
Memorandum to the Dutch Parliament which accompaniedthe 1891

Boundary~reat~.~The two relevant Ministers reported that:

"the Bajauswho live on the islands located at theNorth-
Eastern Coastof Borneo, which belong tothe Sultanate

of Solok,are still continuously collectingforest products
in the disputedarea and show no concern whatsoeverfor
the Sultan van Boeloengan. Because of this and also

because of the absence of any documentestablishing the
boundary between the Sultanates of Boeloengan and
Solok, it was considered very difficult indeed to

determinethe extent of the areaof Boeloengan."

This is a revealingpassage showinga numberof things relevant to the
present case. First, it shows a clear awareness on the part of the

Dutch Government that the Sultan of Bulungan (throughwhom that
Govemment itself claimed) had no control and no claims over "the

8 Extract from Answer of the Colonial Minister to Inquiriesmade by the
Cornmittee of the Second Charnber in their Preliminary Report on the Netherlands
Indian Budget for 1880:Annexes, vol. 3, annex MM 40.
9 Annexes, vol3,annex MM 51.islands located at the North-Eastem coast of Bomeo". Secondly, it
recognized that these islands belonged to the sultanate of Solok
(Sulu), were inhabited and werenot terra nullius. Thirdly, it shows
that the islands were not "the disputed area" for therposes of the

1891Treaty. Rather the areain dispute was exclusively the land area
on the East coast "between the Tawao and Siboekoe rivers".
Fourthly, it shows that even asto that area,the authorityof Bulungan
was not clearly established.

C. The Grant by the Sultanate of Sulu of 1878 and its

Implementation

5.9. For some time before 1878Spain had been trying toconquer
Sulu, but with very limited success. So far as Great Britain was
concemed, the position at that time was regulatedby a Convention of

1877 between Germany, Britain and spain.Io Under the Protocol of
1877,Spain accepted that"[c]ornmerceand direct tradingby ships and
subjects of Great Britain, Germany and other powers. .. shall be
absolutelyfree with the SuluArchipelagoand in al1parts thereof, as
well as the right of fishery" (Article 1). This was subject to certain

rights of regulation by Spain, butthese rights were limited to "the
places occupied by Spain in the archipelagoof Sulu ...while such
places areeffectivelyoccupied"(ArticleII Im,phasisadded).

5.10. On 22 January 1878, while the struggle between Spain and

Sulu was intensifying, the Sultan of Sulu granted to Baron von
Overbeck and Mr. Alfred Dent, as representatives of a British
Companyyet to be incorporated.. .

"together with their heirs associates successors and

representatives for ever al1 the rights and powers
belonging to us over al1the territories and lands which
are tributary to us on the mainland of the island of
Bomeo from the Pandasan River on the Westextending
dong al1the lands on the east coast as far as the Sibuku

River in the south and includingal1the territories on the
coast of the Pandasan River and the coast lands of
Paitan, Sugut, Bonggaya, Labuk, Sandakan,
Kinabatangan, Mumiang,and al1the other territoriesand

coast lands to the southward thereof on the coast of

10
Annexes, vol. 2, aMM 5. Darvel Bayas far as the Sibuku River together with al1
the islands included therein within nine miles of the

toast.' '"

The SibukoRiver is well south and westof Ligitan andSipadan.

5.1 1. On the same day the Sultan signed a commission appointing
Baron vonOverbeck...

"Dato' Bendahara and Rajah of Sandakan with the
fullest power of life and death overal1the inhabitants of

these countries and over al1matters that wereours ...
with the right of making laws ...as he may deemfit and
proper with al1powers properlyexercised by sovereign

rulers in general."'2

The territory over which this authority wasto be exercised was

defined in the followingterms:

"al1the lands towards the eastward on the coast on the

Island of Borneo from the Pandasan River includingal1
the territories on the coast of the Sibuku River and the

coast lands of Paitan, Sugut, Bonggaya, Labok,
Sandakan, Kinabatangan, andMumiang, and the other
lands and coast lands near Darvel Bay as far as the

Sibuku River together with al1 the islands included
therein.. .713

5.12. The approximate extent of the Sultan's grant of 1878, with
references to the locations mentionedabove, is shown in the sketch

11 See Annexes, vol. 2, annMM 9.
12 Annexes, vol2, annex MM 10.
13 The territorial extent of the Sultan's grant of 1878 was also explained in a
letter of Acting Consul-General Treacher, written from Sul22oJanuary 1878:
Annexes, vol3, annex MM 36. Treacher refers to a Sulu claim to the east coast as

farsouthas Balik Pappan, well south of the SibukoRiver, and not.sthat..
"a compromise was effected and the limits fixed from the Pandasan
River to theibuco River, the latter limit being, according to a Dutch
official chart, in the Baron's possession, the northem limit of Dutch
temtory on that coast, though,1have not with methe Treaty said to
exist with Holland confinings right to colonize in these seas within
certain limits,m unable to state whether they are justified in coming
sofar north on that coast."
The letteralso notes the revenuesobtained from the Sultanfromthe East coast, which
continuedto be considerablespite the difficultiescaused by the Spanishblockade.map (Insert8) on page 39. A more detailed map is at Annexes, vol.

5 Map4.

5.13. The final capitulationof the Sultanof Sulu to Spain occurred
later in the sameyear. Six monthsafterthe grantto von Overbeckand
Dent, Spain compelled the Sultan to sign a Protocol confirming the

Bases of Peace and Capitulation of 22 July 1878. Article 1 of the
Protocol of 22 July 1878 declared "as beyond discussion the
sovereignty of Spain over al1 the Archipelago of Sulu and the

dependenciesthereof 'l4

5.14. Subsequently Alfred Dent purchased the interests of Baron
von Overbeck in the 1878 Sulu grant, and establisheda "Provisional

Association" to which these rights were transferred, as envisaged by
the grant itself. The Association petitioned the British Govemment
for a Royal Charter to establish the British North Bomeo Company,
and on 1 November 1881 the Charter was granted.'5 It recited that

Dent's interests, including "his interests and powers in and over and
affecting territories, lands, and property in Bomeo and islands lying
near thereto, including Labuan", had in tum been acquired by the

Company. It also recited the terms of the grants from the Sultans of
Brunei and Sulu. The British Govemment was given substantial
powers of oversight over NorthBomeo.

5.15. In the meantime the process of extending the Company's
administration to the tenitory and islands of North Bomeo had
already begun. Details of the actual administrationof North Bomeo

and its adjoiningislands duringthis period are givenin Chapter 6.

5.16. On 12 May 1888 an agreement was concluded between the
British Govemment and the British North Borneocompany.16 This

acknowledged that the territories govemed by the Company were an
independentstate called "the Stateof North Borneo". The Agreement
provided that "the State of North Bomeo shall continue to be
governed and administered asan independentStateby the Company ...

under the protection of Great Britain". Underthe Agreement,it was

14 See Annexes,vol.2, annMM 12.
15 See Annexes,vol. 2, anneMM 14.
16 Annexes,vol.2, annexMM 16.provided that the relations between North Bomeo and al1 foreign
States were to be conducted by the British Govemment, and the
Government had substantial powers of oversight, including the

determination of the boundaries ofNorthBomeo.

D. The Recognition by Spain of British Rights to North
Borneo

5.17. Followingthe Spanishconquestof Sulu in June 1878and the

Protocol of 22 July 1878 between Sulu and Spain, and despite
repeated assurances given by Spain to Great Britain, Spanishofficers
in the Philippines sought to assert rights over North Bomeo. The

Sultan was required to write to von Overbeck revoking his grant of
January 1878,and in September 1878a Spanish wakhip attempted to
take control of the North Bomeo settlement of Sandakan, without
success. Britain protested at these attemptsl' and, after extensive

diplomatic correspondence, the matter was regulated by a further
treaty betweenBritain, Germanyand Spain.

This was the Protocol concluded on7 March 1885.18Under
5.18.
Article 1,Germany and Great Britain recognized Spanish sovereignty
over the whole of the Sulu Archipelago as defined, including over
islands not yet occupied by Spain. Article II defined the Archipelago

as including "al1 the islands which are found between the western
extremity of the Island of Mindanao on the oneside, and thecontinent
of Borneo and the Island of Paragua [Palawan]on the other side, with

the exception of those which are indicated in Article Dl". The
Archipelago wasdefined "conformably to the definition contained in
Article 1 of the treaty signed September 23rd 1836, between the

Spanish Govemment and the Sultan of Sulu7'.Article IIIof the 1885
Protocol provided as follows:

"The Spanish Govemment renounces, as faras regards

the British Govemment, al1claims of sovereignty over
the territory of the continent of Borneo,which belong,
or which have belonged in thepast to the Sultan of Sulu

17
18 Annexes, vol. 3, annex MM 37.
Annexes, vol2,annex MM 15. The Protocol of 1885 was confirmed
(with amendments not relevant for present puraofurther agreement
between the sarne three States on 30 March 1897:Annexes, volMM2,18.nex (Jolo), and which comprise the neighbouring islands of
Balambangan, Banguey and Malawali, as well as al1
those comprised within a zone of three maritime leagues

from the coast, and which form part of the tenitories
administered by the Company styled the 'British North
Borneo Company7 ."

By using the words in italics, the parties avoided taking any position
on the meaning or validity of the 1878grant. According to the British

view, the 1878 grant was valid because the Sultanate of Sulu had not
yet been effectively occupied by Spain. According to Spain that was
not the case, and the tenitories covered by the grant remained Sulu

territory subject to Spanish sovereignty. But whichever view was
taken, by the 1885 Protocol Spain relinquished "as far as regards the
British Government, al1claims of sovereignty" over tenitory covered

by the Sulu grant of 1878, including its offshore islands within three
marine leagues (nine nautical miles) of the coast. Whatever the
position may have been in 1878, the sovereignty of Spain over the

Sulu Archipelago was clearly established in 1885. Thus Spain was
competent in 1885to relinquish to Britain "al1claims of sovereignty"
over the territories covered by the Sulu grant of 1878.

5.19. The islands of Ligitan and Sipadan lie more than three
marineleagues (9 n.m.) from the coast of orneo o. L'terally they fell
outside the terms of the Sultan's grant of January 1878 and outside

the terms of Spain's retrocession or recognition in Article II of the
Protocol of 1885. Despite this, the Company went ahead and acted
on the basis that it had authority over those islands, and others

similarly situated (as will be seen in further detail in Chapter 6).
Spain appears to have been quite indifferent to this and never opposed
their administration from and by North Borneo. The issue was not

raised until the United States had acquired sovereignty over the
Philippines, following the Spanish-American War of 1898, by the
peace treaties of 1898and 1900.

19 Sipadan is 14.8 n.m. from the nearest point on the coast (Tanjong Tutop).
Ligitan 21.5n.m. from the nearest point on the coast (the foothill of Hood Hill).E. The Recognition by the Netherlandsof British Rights to
NorthBorneo

5.20. Shortly after the proclamation of the British protectorate
over North Bomeo in 1888,~'Great Britain and the Netherlands began

negotiations to resolve the sole remaining issue between them in
relation to Bomeo, viz. the location of the boundary between their
respective possessions. The 1891 Boundary Treaty is discussed in

Chapters 8 and 9 be10w.~' Only the following comments are called
for here.

(a) The Treaty gave express Dutch recognition to the British
protectorate over North Bomeo and expressly renounced Dutch
claims to territory on or adjacent to the coast of North Bomeo, with

the exception of the southem part of the island of Sebatik and the
irnrnediately adjacent islands.

(b) The Treaty did not refer to Ligitan or Sipadan. The
Netherlands made no claim to those islands, nor did it ever
subsequently assert any title to those or any other islands off the coast

of North Bomeo.

(c) So far as those islands were concerned, the remaining question

concerned the identification of which islands belonged to Britain
because they were within three marine leagues of the Bomeo coast,
and which belonged to Spain. The Netherlands had nothing whatever

to do with that question. But in fact that question was not raised even
by Spain; it was not until 1903that it was raised by the United States,

as successor to Spain, and during the period from 1878 to 1903 the
Company proceeded to establish an administration over al1 the
offshore islands, whether or not they were within three marine

leagues of the coast.

(d) Of course, in relation to any islands which belonged to Spain
after 1885, Britain had no title which it could convey to the

Netherlands in 1891. Thus, even if the 1891 Treaty had purported to
convey the islands to the Netherlands (which it did not), it could not
have had this effect as amatter of law.

20 See Annexes, vol2,annex MM 16.
21 For the text of the Treaty see Annexes, vol. MM 17.exF. The Recognition by the United States (as successor to

Spain)of BritishRights to NorthBorneo, includingthe Disputed
Islands

5.21. As noted above, there was no discussion of which islands

fell on which side of the three marine league line as between Britain
and Spain. Spain was evidently willing to allow the administrative
status quo in relation to the offshore islandsto remainunchanged.

5.22. In 1898, however, following the Spanish-American war,
Spain ceded to the United States "the archipelago known as the
Philippine Islands, and comprehending the islandslying within the

followingline.. .".22 The line drawn by the Treatyof Paris of 1898 is
shown in the sketch map which is Insert 9, on the following page.
Evidently,Ligitan and Sipadan did not fa11within that line. However

by a supplementary Convention of 7 November 1900,~~Spain
relinquishedto the United States.. .

"al1title and claim of title, which she may have had at

the time of the conclusion of the Treaty of Peace of
Paris, toany and al1islands belonging to the Philippine
Archipelago, lying outside the lines described in Article

III of that treaty and particularly to the islands of
CagayanSulu and Sibutfiandtheir dependencies".

In this context, the reference to islands "lying outside the lines

described" in Article ID was to islands lying west and south of the
1898Treaty line.

5.23. For his part the Sultan of Sulu expressly recognized United

States sovereignty "over the whole Archipelago of Jolo and its
dependencies"by an Agreementof 20 August 1899.24

5.24. Since the United States acquired over the Philippines only

the rights which Spain had previously had, Spain's relinquishment in
1885of anyclaims to territory coveredby the 1878grant was clearly
binding on the United States. The position was carefully analysed by

22
Treaty of Paris, 10 December 1898,Article III: Annexes, vol. 2, annex
MM19.
23 Annexes, vol. 2, annex MM 21.
24 187CTS 48 1:Annexes, vol. 2, annex MM 20. The Agreement of 20
August 1899 between the United States and the Sultan of Sulu was cancelled by the
United States in 1915,and the Sultanate itself was suppressed in 1936.Secretary of State Hay in a letter of 3 April 1903, in which he
concluded that:

"The Spanish Governmentwas, therefore, at thetime of
the signatureof the Treatyof Peace,December 10, 1898

fully seized of sovereignty over the wholeof the Sulu
Archipelagoup to three marine leaguesof the mainland
coasts of British North Borneo, with exception of the

three named islands of Balambangan, Banguey and
Malawali, as to which latter Spain had relinquished, so
far as Great Britain was concerned, al1 claim of

sovereignty,and was competent to cede, and did in fact
cede and relinquish tothe United States, by the Treaties
of 1898 and 1900 al1title and claim of title she then
possessed in andto the Sulu~rchi~ela~o."~~

5.25. The 1900 Convention was understood as covering Ligitan
and Sipadan, amongst other islandslying between the three nautical

mile limit and the line originally establishedby the 1.898Treaty. In
1903,in response to a directionfrom the Secretaryof the ~av~~t~ he
United States HydrographicOfficepublisheda chart of the "Northern

Shore of Sibuko Bay". This showed a line passing betweenthe Coast
of North Borneo and Mabul Island, on the one side, and, inter alia,
Ligitan and Sipadan on the other side. The line also separated those

two islands from Netherlands territory to the west and south. For
convenience an extract from the map is reproduced on page 46, as
Insert10:a copyof the completemap is inthe Map ~nnex.~~

5.26. The line shownon the map isdescribedas a "boundary line".
It is accompanied by this caption "The outlying islands, islets and
reefs of Borneo lyingoutside of the boundaryline - - .- - - .- are

under the sovereigntyof the United States of America". The method
observed in "delineating the S.W. boundary of the United States
possessions in the Philippines" was described in a United States

HydrographicOfficenote of 8 August 1903.~"t took into account the

25
26 Annexes, vol. 3annex MM 55.
27 Annexes, vol.3, annex MM 62.
Annexes,vol.5, Map 5.
28 Annexes,vol.3, annex MM62.3 marine leaguelimit, and explicitlyincluded, as islandsunder United
States sovereignty,al1the islands outside that limit, including Ligitan
and Sipadan. It is true that that line was not a "boundary line"in the

proper sense, and in fact these words are placedin inverted commas
in the note of 8 August 1903. It delimited the area within which lay
the islands and other territories claimedby the United States pursuant

to the 1900 Agreement. This map representeda public assertion by
the United Statesof its sovereigntyover the additional islands ceded
to it by the 1900 Treaty, an assertion which occasionedno reaction
from the Netherlands.

5.27. The United States claim to sovereignty over Ligitan and
Sipadan (and other similarly placed islands) wasdeveloped in the
course of 1903 as a result of the voyage to the area of the U.S.S.

Quiros. The Commander, Lieutenant Francis Boughter, provided
detailed reports of the islands visited by him. Their names were
included in a list of the islands "under the sovereigntyof the United

States lying off the coasts of British North Borneo". The report
entitled "Report of the Islands under the sovereignty of the United
States...", is anne~ed.~~ In a cablegram of July 1903, the
Commander-in-Chief of the U.S. Asiatic Fleet recorded that the

Quiros had visited and proclaimed sovereigntyover, inter alia,
Danawan and Si Ami1(islands in the Ligitan gro~p).30 In a further
cablegramof 1August 1903,thefollowingwas recorded:

"Notice of Sovereignty posted on additional Islands
North Mangsi South Mangsi Tambulian Tibbakan
Booan Langaan BaguanKapolai Sipidan by Quiros June

and J~ly."~'

(emphasisadded)

5.28. Having described his discussions with the Malayresidents of

Danawan and Si Ami1 (in the Ligitan group), Lieutenant Boughter
added:

"1 am informed thatthe island of Sipadan lying to the
Southward and Westward of Danawan has always been

understoodby the nativesas being appanageof the latter

29 Annexes,vol.3, annexMM 63.
30 Annexes,vol.3, annex MM 60.
31 Annexes,vol.3, annex MM 61. named island whose inhabitants, by native custom, have
enjoyed the monopoly of collecting the turtle eggs

deposited there. RecentlyBajaus from other localities
have been poaching andcomplaint has been lodged with
the resident at LahatDatu."

This passage is significantin that itconfirms:

(a) that Sipadanwas regardedby the local people as a dependency

or appurtenance ("appanage") of the Ligitan group, especially
Danawan;

(b) that it was regularly exploited by them in accordance with
native custom; and

(c) that problems arising in relation to Sipadan were referred to
the Govemment Resident at Lahad Datu on the mainland of
North Bomeo; the Resident was of course an agent of the

North Bomeo Govemment.

5.29. Although these reports were not themselves public
documents at the time, the assertion of United Statesrights wasmade
openly. In addition to the notice referred to above, a tablet was

placed on each of the islands visited. This notice and tablet may be
compared to the ones on which the French claim to the Clipperton
Islands was based and ~~held.~~

5.30. Certainly the voyage of the U.S.S. Quiros came to the
attention of the Company. On 24 June 1903 the Resident atLahad
Datu, in response to a letter from LieutenantBoughter informinghim
that the islands of Tatagan and Danawan were beyond the three

marine league line and were therefore under the sovereigntyof the
United States, responded that:

"These islands have always been administeredby us

since Our advent here and the Spanish have never
claimed or exercised any sovereign rights over themas
far as 1kn~w."~~

32 See (1932) 2 UNRIAA1105.
33 E.H. Barrault, Resident, Lahat Datoto Lieut. Boughter,Commanding
U.S.S.Quiros24 June 1903;Annexes, vol.3, annex MM56. See alsothe
telegram sent by the Residentto the Governor, apparentlyon the sameday:
Annexes, vol. 3, annex MM57.On the following day, the Governor wrote to the Chairman of the
British North Borneo Company,pointing outthat:

"though the Sultan of Sulu's agreement of 22nd January
1878 ceding certain islands refers to those that are
within three marine leaguesof the coast, his commission
dated the same day to Baron Overbeck in its preamble

recital omits that definition. It iscertain that under that
Commission the representative of the Chartered
Company has always administered the islands referred

The view of the Company was that the three marine league line did
not strictlylimit the islands under itsjurisdiction, and that Spain had
acquiesced in the Company's administration of the islands located
beyond three marine leagues from the coast. At any rate, itwas

"certain" that the Company was administering the islands to the
exclusionof al1others.

5.31. This letter was followed by further action on the part of the

Company. In a letter of 13 July 1903,~~the Chairman wrote to the
Foreign Office on behalf of the Court of Directors of the Company,
protesting against the actions of the U.S.S.Quiroasnd explainingthat
the various islands off North Bomeo had been peacefully

administered by the Company since 1881, without any opposition
from Spain. The letterread in part:

"10. Almost immediately after the forma1occupation

[in 18781 ...the Illunan pirates, who made a base of the
islands fringing the north-east coast, infested Sandakan
and other places on the coast, killing and capturing
many of the inhabitants, who appealed to Ourofficials

for protection. The appealwas, in view of Ourauthority
under the Commission [to Baron von Overbeck],
promptly responded to, and with the assistance of Mr
Cowie's steamer 'Far East,'which was subsidised by

the North Borneo Government, and acted as theirgun
vessel, the pirates were dispersed, and al1 their
abandoned island haunts, which from time imrnernorial
had politically and geographicallyformedpart of North

34 Annexes,vol. 3,annex MM58.
35 Annexes,vol.3,annexMM59. Borneo, were annexed, and have ever since been
administered by the North Borneo Government as an
integral portion of their tenitory.

11. And at no time, since the occupation of the

island by us, did the Spanish authorities ever object to
our occupation and control of them; nor, so far as the
Court are aware, have the American authorities,

previous to the action of which we have complained,
ever questioned Ourright of possession."

The letter went on to refer to recent discussions with the Sultan of

Sulu, before concluding as follows:

"23. ...T]he Court think that the American
Government, when placed by the Secretary of State in

possession of the foregoing facts, will readily agree to
instruct their local officiais to remove the flags and
tablets they placed on islands which, notwithstanding

anything else, have been under British jurisdiction for
nearly aquarter of a century.

24. For the information of the Secretary of State, 1
have attached a map, showing clearly the respective

spheres of influence and control.

25. Al1the islands and territory to the east of the red
line have since Our occupation of North Borneo been
under the suzerainty of Spain and the United States

respectively; while those to the west of it have been
administered by the Government of OurState."

5.32. As has been seen, Ligitan and Sipadan were among the

islands visited by the U.S.S. Quirosand which are referred to in
paragraph 23 of the Company's letter. They are to the Westof the line
on the map attached to that letter, and that line was in turn reproduced

and expressly referred to in the map attached to the 1907Exchange of
Notes, discussed in paragraphs 5.38-5.40 below and shown opposite
page 55 of this Memorial. The Company's letter is further evidence

of its administration of the islands in theriod after 1878.

5.33. At the same time the Company took steps to obtain
confirmation from the Sultan of Sulu of its authority over the off-

shore islands beyond three marine leagues. On 22 April 1903 theSultan of Sulu signed a certificate at Sandakan which providedas
follows:

"Whereas We, His Highness the Sultan Haji

Muhammad Jamalulkiram son of His Highness thelate
Sultan Jamaluladzam, who possess the throne of
sovereigntyof the State of Sulu andal1its dependencies
solemnly declare in this certificate that We have been

pleased tocede of Ourown free will to theGovemment
of British North Bomeo al1 the islands in the
neighbourhood of the mainland of North Bomeo from
the island of Banggi to Sibuku Bay. These are their

names:- Mulayangin. Mulayangin Kechil, Malawali,
Tigabu, Bilian, Tagapil, Langkayan, Boan, Lahiman,
Bakungan, Bakungan Kechil, Libaran, Taganak,
Baguan, Mantanbuan, Gaya, Omadal, Siamil, Mabul,

Kapalai, Dinawan, and other islands near, or round, or
lying betweenthe said islandsnamedabove.
The reason why the names of these islands were not
mentioned in the agreement made with Baron de

Overbeck andMr. (now Sir) Alfred Dent onthe 19&day
of Muharram A.H. 1295 corresponding to the 22nd
January, 1878, is because it was known and mutually
understood that these islands were included inthe grant

of the countries andislands mentionedin the agreement
above referredt~."~~

This declaration was approved by the Govemor of North Bomeo on
29 April 1903.

5.34. It should be noted that the two inhabited islands of the
Ligitan group,Si Ami1and Danawan,were mentionedby name in the
Sultan's Confirmationof 1903. Furthermore, thevaluable rights over
Sipadan belonged tothe local headmenof Danawan under an earlier

Sulu grant. The reference in the Confirmation tothe "other islands
near, or round, or lying between thsaid islands named above" was
sufficiently extensiveto cover, and undoubtedly did cover, Ligitan
and Sipadan.

36
SeeAnnexes,vol. 2, annex MM22.5.35. However, the British Foreign Officeevidently had doubts

about the legal effect of the Sultan's certificate, since whatever the
position may have been in 1878, the Sultan no longer had any
international status whatever, andcould not cede territory belonging

to the United States. Even the Company itselfcame to realize that its
title, as opposed to its right to administer the islands based upon
actual administration and control, might be open to question. When

the United Statespressed its claim to the additional islands under its
1900 Treaty with Spain, the British Govemment did not object, but
rather sought an arrangement with the United States that would

ensure the continuity of the Company's administration. The
Company itself rather reluctantly accepted thisposition, as indeed it
was bound to do under the terms of the 1881

5.36. The correspondence on this matter, between the British
Ambassador in Washington and theU.S. Secretaryof State, is set out
in Annexes, vol. 3, annexes 32-34. Onlythe key passages need be
referred to here. On 10 December 1904, the Secretary of State, Mr

Hay, respondedto the oral inquiryby the British Ambassador,"as to
the status of certain islands near thecoast of British North ~orneo".~*
In relevant respectsMr Hay'sletterreads as follows:

"The title of Spain to the Sulu Archipelago, of which
Cagayan and Subutu formed part, rests on historical
facts and repeated actof submission of the Sulu chiefs

to the Crown of Spain, and the territorial limits of
Spanishjurisdiction in that quarter are stated in general
terms in the protocols signed between Great Britain,

Germany, and Spain in 1877, 1885, and 1897, from
which it appears that Spain relinquished infavour of
Great Britain al1claim of sovereigntyover the territories

of the mainland of Bomeo which then belonged or had
belonged in the past to the Sultan of Sulu, including
therein the neighbouring islands of Balambangan,

Banguey, and Malawali, 'as well as al1 those islands
lying within a zoneof 3 marine leagues alongthe coast,
and which form part of the territories administered by

the Company styled British North Borneo Company,'
while as to the rest of the islandspertaining to her under

37 See Annexes, vol2,annex MM 14.
38 See Annexes, vol3,annex MM 65. The places mentioned here are shown
on Insert 8 at p39,and on a larger map in Annexes, 5Map 4.the Suluan capitulations and submissions Spain reserved
and was admitted to have sovereignty whether they were
effectively occupied by Spain or not.

1am not aware that at any time between the conclusion

of the protocols of 1877, 1885, and 1897, and the
conveyance by Spain to the United States in 1900,of al1
title and claim of title in that quarter, any effective

tracing of the 3-league water boundary along the North
Bornean coasts was made or attempted by Great Britain
and Spain. Both countries appear to have rested content

with the treaty definition and with the Spanish
reservation of sovereignty outside of the line so defined.
It is one of the common cases where a conventional

description of a boundary line has not been carried into
effect by a physical demarcation, and where the
coterminous sovereignties may at any time give effect

thereto by actually laying down the line as a proper
proceeding under their existing treaty rights.

The geographical features of the Bomean coast and the
adjacent islands are, however, such as would seem to

preclude an exact definition of the treaty line between its
land and water territories and those of the Sulu groups,
without positive knowledge upon which the two

Govemments could base an intelligent agreement. A
line traced 3 marine leagues seaward from the windings
of an irregular coast is necessarily somewhat arbitrary

and, al1 other things being equal, considerations of
mutual convenience may be taken into account, as for
instance, when an island other than those enumerated in

the existing protocols should be cut in two by the 3-
league line. Again, the protocols are silent as to the
points of the North Bomean coast where the 3-league

line begins and ends. As tothese matters 1see no reason
why they should interfere with the settlement of the
whole question by a mutually satisfactory agreement.

As a step toward that desirable end the Govemment of
the United States would be willing to come to an

understanding with His Majesty's Government whereby
a joint examination of the North Bornean
neighbourhood shall be made by two experts, one on behalf of each Govemment, under instructions to agree
if possible upon a tentative line which shall
conveniently and fairly represent the intention of the

parties to the protocol of 1885,making report thereof to
~heir respective Governments with statement of any

points upon which they may not be able to agree. Upon
receipt of these reports, the two Governments will be in
a position to determine upon a definitive settlement of

the matter in such way as shall be found appropriate.

If this proposa1 should be acceptable to His Majesty's
Government your reply to that effect will be regarded as
perfecting the agreement by exchange of notes."

5.37. The British Ambassador in reply suggested that the United
States might be prepared to relinquish title to the islands in question
"out of consideration for the fact that the North Borneo Company had

during many years carried on the administration of them under the
apparent belief that the islands formed part of the company's

territ~r~".~~Since the United States already accepted that the islands
within the 3 marine league line were part of British North Borneo, it
is clear from the context, and from the preceding events, that this was

a reference to islands lying outside the 3 marine league line which
were nonetheless administered by the Company.

5.38. The United States was, however, not prepared to cede these
additional islands to North Borneo. After considerable further
discussion, it was agreed, by an Exchange of Notes of 3 and 10 July

190740,that the Company would continue to administer them, subject
to certain conditions, and in particular subject to termination on one

year'snotice. The terms of the arrangement included the following:

"Firstly: that theaid Company is left undisturbed in the
administration of the islands in question without any

agreement specifying details, the United States
Government simply waiving in favour of the said
Company the right to such administration in the

meantime, in other words that the existing status be
continued indefinitely at the pleasure of the two
governments concerned.

39 See Annexes, vol3,annex MM 66.
40 See Annexes, vol2,annex MM 23-24. Secondly: that such privilege of administration shall not
cany with it territorial rights, such as those of making

grants or concessions in the islands in question to extend
beyond the temporary occupation of the company, and
any grant, concession or license, made by the company

shall cease upon the termination of the company's
occupation.

Thirdly: that the temporary waiver of the right of
administration on the part of the United States

Government shall cover al1the islands to the westward
and southwestward of the line traced on the map which

accompanied Sir H.M. Durand's memorandum of the
2nd of June, 1906, and which is annexed to and to be
deemed to form part of this Note."

The accompanying map (set out for convenience in a photo-reduced
copy as Insert 11 opposite) was based on information provided by the

Company to the Foreign Office in a despatch of 13 July 1903. It
contains a red line drawn alongside the east coast of Borneo down to
4" N, i.e. extending southwards beyond the latitudes of Ligitan and

Sipadan, which are clearly shown on the map.41

5.39. In the 1907 Exchange of Notes, Great Britain thus

recognized the continuing sovereignty of the United States, as
successor to Spain, over the islands beyond the 3 marine league line.
On the other hand the United States accepted that these islands had

been in fact administered by the British North Borneo Company and
agreed to allow that situation to continue, subject to termination on 12
months' notice.

5.40. It is clear from al1relevant sources that the islands covered
by the 1907 Exchange of Notes included al1 those adjacent to the

North Borneo coast beyond the three marine league line. These
sources include: (a) the correspondence associated with the voyage of
the U.S.S.Quiros; (b) the Sultan's certificate of 1903 which, whatever

its legal effect may have been, identified the islands affected and
confirmed that they were being administered by North Borneo; and

(c) the map attached to the 1907 Exchange of Notes. These sources
are fully consistent with each other, and it is clear that they covered,
inter alia, Ligitan andipadan.

41
For a larger version of the map see Annex5,Map 6.5.41. The 1907 Exchange of Notes was published at the time by
the United tat tes ^^d by ri tain.^It attractedno protest on the part

of the Netherlands Governrnent.

5.42. The legal position as between the United States and Britain
(acting on behalf of North Borneo) continued to be regulated by the

1907 Exchange of Notes for nearly 25 years. It was not without its
inconveniences,as noted in a Memorandumby a British official,W.J.
Worth on 14July 1922:

"In the absence of anyprecise determination ofthis [Le.
the three league] line it is impossibleto Sayexactly how
many of the islands areunder American sovereigntyand

how many are underNorth Borneo s~verei~nt~."~~

But this uncertainty was iimitedto the question of sovereignty. There
is no doubt that a license had been validly grantedto the Companyto

administer the islands to the West of the line drawn by the 1907
Exchange of Notes, which, for the reasons already given, clearly
covered Ligitan and Sipadan.

5.43. The matter was finally resolved by a treaty between the
United States and Britain of 2 January 1930 (hereinafter "the 1930
Treaty"), which came into force afterexchange of ratifications on 13
December 1932.~~ Under the 1930 Treaty it was agreed that the

islands of the Philippine Archipelagoand the islands belongingto the
State of North Borneo should be separated by a line joining 10
specified points. The 1930line was drawn so as to begin andend at

points on the 1898Treaty of Paris line: in other words, it allocatedin
sovereignty al1 of the islands, formerly belonging to Spain, which
were to the south and west of the 1898 line. Its effect, as compared

with the 1898 and 1907 lines, can be seen from Insert 12, on the
following page.

42 See Foreign Relationsof the UnitedSt1907 Part1p.543 (published
1910).
43 102British and ForeignStatePape636.
44 Annexes, vol. 3, annMM72.
45 Annexes, vol. 2, annMM 29.5.44. Under the 1930Treaty, al1islandsto thenorth and east of the
line were to belong to the Philippine Archipelagoand al1islands to
the south and Westwere to belong to the State of Borneo. Evidently,

Ligitan and Sipadan lie to the south and Westof the line, as can be
seen from Insert 12 on page 57, which compares the effect of the
,1898,1907and 1930 lines. The 1930Treaty was published by both
the United States and Britain and was published in the League of

Nations Treaty ~eries.~~ In consequence of the 1930 Treaty, the
United States relinquished sovereignty over its islands to theouth
and Westof the line (including many of those covered by the 1907

Exchange of Notes) to North Bomeo under British protection. The
Treaty evoked no reaction from the Netherlands, though one might
have been expected if the islands disposed of byitwere claimed by
the Netherlands.

G. The Conversion of North Borneo from British
Protectorateto Colony

5.45. The position of North Borneo as a separate protected State

came to an end in 1946. On 26 June 1946 an agreement was
concluded between the British Govemment and the Company by
which the latter ceded to the Crown al1its sovereign rights and its
assets in North a orne o. ^ ^e State of North Borneo thus ceased to

exist and was replaced by the British Colony of North Borneo. This
change had no effect on the extent of the territory belongingto North
Bomeo.

H. The Inclusionof North BorneoinMalaysia

5.46. On 9 July 1963, the Malaysia Agreement was signed
between the Governments of the Federation of Malaya, the United
Kingdom, North Borneo, Sarawak and Singapore. Pursuant to the

Agreement, which came into effect on 16 September 1963, North
Bomeo became a State within Malaysiaunderthe name of aba ah.^^

46 SeeLeague of Nations Treaty Series vol.293.-7p.
47 Annexes, vo2,annex MM 30.
48 Annexes, vo2,annex MM 31.1. Conclusion

5.47. The express recognition by the United Statesin 1907that the
islands in question would continue to be administered by the British

North Borneo Company, although belonging in sovereignty to the
United States, and the continued administration of the islands by the
Company under British protection without the least protest or attempt

on the part of the Netherlands to disturb this situation,are dispositive
of the present dispute. So too is the express retrocession of these

same islands by the United States to Britain by the 1930 Treaty.
These transactions show beyond a shadow of a doubt that none of the
States in the region contested the status quo, whether in terms of

peaceful administration or sovereignty. There is absolutely no
indication that any of those States ever entertained the idea that the

unexpressed effect of the 1891 Boundary Treaty was - as Indonesia
now, belatedly, argues - to transfer Ligitan and Sipadan to the
Netherlands. Chapter6

THECONTINUOUSPEACEFULPOSSESSIONAND

ADMINISTRATIONOFTHEISLANDSBYMALAYSIA
AND ITSPREDECESSORSIN TITLE

A. INTRODUCTION

6.1. As already indicated,' a second and parallel basis for
upholding Malaysia's title to the two islands, as against Indonesia, is
by reference to their continuous peaceful possession and

administration, without objection from Indonesia or its predecessors
in title.

6.2. It is hardly necessary to cite authority for the proposition
that, in the absence of agreement to the contrary, long and undisputed
possession and administration of territoryis sufficient to support the

peaceful occupier's title. The cases show that the relevant factual
ingredients include such activities as the adoption of legislation
relating to the area, the incorporation of the area in the administrative

districts of the State concemed, the extension of judicial and police
activities to the area, the maintenance of navigational aids and lights

in the area, reaction to foreign incursions and the absence of any
competing activity or opposition by the other claimant. See, inter
alia, the Clipperton Island arbitration (France v.~exico),~ the Island

of Palmas Case (Netherlands v. u.s.),~and the Minquiers and
Erechos Case (France v. u.K.).~ The manner in which the area has
been treated in maps is also relevant. The map evidence in this case

will be discussed in Chapter 10of this Memorial.

6.3. This approach, founded upon long, peaceful and undisputed

administration, is not, it must be emphasized, one involving the
assertion by Malaysia of a prescriptive title against Indonesia.To
invoke prescription would involve an implied acknowledgement that

1
2 See above, paragraph 5.1.
3 (1932)26AJZL390.
4 (1928)2UNRIAA 829.
ICJReports 1953, p. 47.at some time in the past Indonesia (or a predecessor in title) had

possessed sovereignty over the islands. That is not at al1the case
here, as has alreadybeen shown. Indonesia andthe Netherlandsnever
had title to the islands; so there is no question of their having been

deprived of it by prescription. Only if the Court should find that
somehow the Netherlands had acquired title to the islands at some
earlier stage, would Malaysianeed to invoke prescription as the basis
for convertingits long time possessioninto aprescriptivetitle.

6.4. The evidence of administrationof the islands successivelyby
the Company under British protection, by Britain and then by
Malaysia will now be reviewed.

B. ADMINISTRATION BY MALAYSIA AND ITS
PREDECESSORSIN TITLE, 1878TO THEPRESENT

6.5. In 1878,the Companyestablished three residenciesfor North

Bomeo, of which the one relevant for present purposes was the East
Coast Residencyat Sandakan. Settlements were established at Silam,
Lahad Datu, Semporna and later Tawau. (For the location of these

places, see the sketch mapwhich isInsert13,on the followingpage.)
Key steps in the process of establishing an effective administration
over the mainland and adjacent islands includedthe following:

11February1878: Company Resident William Pryer takes up
residenceatSandakanBay.

24 September1878: Spanish warship visits Sandakan but retreats
afterSandakanSulusrefuseto hoist Spanishflag.5

30 August 1879: Followingactionagainstpiratesettlementat Tungku,
Sulu and Bajauchiefs subrnitto Pryeron boardHMS

Kestrel.

July 1881: Company postestablishedatSilam, DarvelBay.
August 1881 : Following approval of Royal Charter, Treacher

installedasGovemor.
1882: Nakoda GombaappointedNative Magistrate, Darvel

~a~.~
1884: Usman appointed customs clerk at Omadal,

subsequentlyexpelledby localBajaus.

5 Annexesvol.4,annexMM79.
6 NBH, 1July1886,pp121-2;Annexesvol4, anneMM81.November 1885: CallaghanappointedAssistant Resident,DarvelBay.

24June 1886: hnitive actionby HMS Zephyragainst0madaL7

May 1887: Governor Treacher selects site of Semporna,

inauguratedJune 1887.'

1888: EastCoastResidency movedto LahadDatu.

April 1891: Punitive action againstDanawanby NBS~etrel.~
August 1892: Punitive action against Omadal, settlement

temporarilyclosed.1°

1892: Establishmentof Company postatTawau.

October1892: HMSEgeria charts Bajau Settlementsin Darvel Bay
includingDanawan, SiAmil. ''

1896: BajauboatsettlementinTrusanTreacher founded. l2

1901: Imposition of boat tax & system of jungle passes,
madeeffectiveinperiodto 1905. l3

1909: Resettlement of remaining Bajaus from islands
surrounding Darvel Bay to Trusan Treacher near

~ern~orna .4

6.6. Contemporary accounts of the administration of the islands
along the north-east Coastare included, for example, in the pages of

the British North Bomeo Herald and in the papers of the Company
now in the Public Record Office, London. There were initial
problems with some Bajau communities, especially on Omadal, and

repeatedpunitive expeditions proved necessary. An example is given
in a despatch by Lieutenant C.K. Hope, commander of H.M.S.

Zephyr, on 28 June 1886, in relation to an action taken against
Ornadal.ls Actions such as those taken against Tungku (1879),
Omadal (1886), Danawan (1891) and again Omadal (1892)

demonstrated the authority of North Bomeo over the Bajau

Annexes, vo4,annex MM 80.
NBH, 1June 1887,pp. 119-121;Annexes, vol.4,MMnn82.
NBH, 1May 1892,p.137;Annexes, vol.4, anMMx 83.
NBH, 1September 189p.285; Annexes,vol.4, annMM 84.
NBH, 1November 1892p.378; Annexes,vol.4, anMMx 85.
NBH, 16April1896p.133;Annexes,vol4,annexMM 86.
See Boats and Fisheries Proclamation 1901:Annexes, vol. 4, annex MM

87.
NBH, 16March 1909,p. 63; Annexes, vol.4,MMnn89.
Annexes,vol., anneMM 80.communities on the various islands. Three measures which were
important in extending the authorityof the Companyover the islands
were: the foundation of Semporna(1887); the relocation of the Bajau

encampments to Trusan Treacher (1896-1909); and the imposition of
a boat licensing system in 1901.16 Before 1878, the procurement
system had been focused on Sulu. Now it came to focus on

Semporna. Details of these developments are contained in the
contemporary reports cited in paragraph 6.5, and also in the
substantial literature about the Company administration of North

Borneo referred to in paragraph 2.12 above. The places mentionedin
the immediate locality of Semporna are shown on the sketch map
which is Insert 13 on page 62.

6.7. A crucial aspect of the Company administrationwas its CO-

option of local leaders. In the earlier years these tended to be Sulus
who had earlier served the Sultan: for exarnple, Nakoda (later Datu
Tumonggong) Gomba (also spelt Gumbah), the Native Magistrateof

Darvel Bay, has already been mentioned.17 In 1903, the Company
appointed Panglima Udang (also spelt Uddang), a Bajau, as the
Native Magistrate of Darvel Bay. He was based at Semporna. The
jurisdiction of Panglima Udang extended to al1 the kampongs in

Semporna and includedTetagan,Danawan, Omadal andSipadan. He
visited these places every two or three months. Datuk Panglima
Abdullah, the son of Panglima Udang, signed an affidavit with this

information on 25 January 1975,at a time when he was morethan 70
years old. He also stated that during his young days he used to
accompany his father to Sipadanto collect the turtle eggs which were

abundant there.18 Datuk Panglima Abdullah joined the Colonial
Service as a District/Native Clerk in 1924. In 1928he was promoted
to the position of Native Chief, Semporna. His last appointmentwas
as Deputy Assistant District Officer, Sempoma, until 1960,when he

retired.

6.8. As to Ligitan and Sipadan, at that time the islandswere not
permanentlyinhabited, but they werefrequently visitedand theywere

fully part of the marine economy of the Bajau. Officia1 interest took
such obvious and sufficientforms as control over the takingof turtles
and turtle eggs; settlement of disputes; the creation of a bird

16 For thedecreeof 1901seeAnnexes,vol.4, annexMM87.
17 See above,paragraph5.7.
18 Annexes,vol.4, annexMM120.sanctuary;the establishment of lighthouses and the licensing of boats
used to fishthe waters aroundthe islands.

(1> Collectionof turtle eags

6.9. The right to collect and to control the collection of turtle
eggs on Sipadan sheds significant light on the exercise of authority
over the island. Turtle eggs were for many yearsthe most significant
harvestable commodityon the island and the rightto collect them was
a valuable asset. The right to collect those eggs had been granted by

the Sultan of Sulu well before 1878, and wassubject to a license fee
payable in kind. Once granted, the right was treated as a heritable
right of the grantee and his heirs. The devolution of the right was a

matter regulated by customary law and passed by gift or inheritance
from person to person. The devolution of these rights in relation to
Sipadan is the subject of sub-section (2) below. As will be seen, the
ownership of the rights was at al1 material times vested in local
Bajaus who acknowledgedthe authorityof the Company. They alone

were entitledto collectthe eggs. No other persons were authorised so
to do. In so far as there were occasional interlopers, they appear
never to havecome from the area under Netherlandscontrol but were

either localsor Sulu immigrants.

6.10. So far as govemmental involvement in the subject is
concemed, that was always a matter for the British authorities in the
East Coast Residency at Tawau or, more locally, the District Officer

at Sempoma. There was never any Netherlands or Indonesian
involvementin the matter.

6.11. As early as 1914 Britain took steps to regulate and control
the collectionof turtle eggs on Ligitan andsipadan.19

6.12. The position is clearly illustratedby a letter dated26 June

1910from the Assistant District Officer at Sempoma to the Resident,
East Coast regarding the right to collect turtle eggs on ~i~adan.~'
There was a dispute between two local chiefs. As can be seen from
the letter,the District Officer had no doubt that the matter was one to

be resolved by the British administration. There is no hint that the
Netherlands authorities could have any concem with it. Nor was this
the first officia1 intervention in relation to turtle eggs on Sipadan

19
20 Annexes,vol.4, annex MM91.because the letter indicates that the District Commissioner had
himself settled an earlier problem in relation to ~i~adan.~~ The

resolution of the matter was approvedby the Resident, East Coast, on
2b June 1910and was notedby the District Officeron 21July 1910.~~

6.13. In a letter of 26January 1916from the ActingResident, East
Coast, to the Government Secretary, Jesselton, approval was sought
for a grant of the monopolyof collectingturtle eggson Sipadan. This

refers to a grant made by an earlier Resident in 1913.23 A minute
addressed to the Resident of the East Coast on 3 May 1916 is of
interest not only in relation to this episode but also as containing a
statement indicative of the long-standing involvement of the North

Bomeo authorities in disputesrelating to turtleeggs on Sipadan:

"When His Excellencywas Residentof the East Coast,a
claim was made by a relative of Panglima Kayen and

was dismissed by him as he followed a ruling of Mr.
Barrault who spent some years in settling such
claim~."~~

6.14. On 6 May 1916the then Acting Resident of the East Coast,
Mr. G.C. Irvingexecuted a SuratKatrangan(a letter of confirmation)
acknowledging that the Government of British North Bomeo

recognized the customary rights vested in Panglima Abu Sari and
Maharaja Mahmud and their heirs to collect turtle eggs from
s ipadan.25

6.15. On 18 August 1918 an agreement was executed before the
Native Chief of Semporna, Panglima Udang, finally settling the
respective shares of Panglima Abu Sari and the descendants of

Maharaja Mahmud. On 29 August 1918 G.C. Irving approved the
agreement.26 This document is referred to in a further document
dated 5 July 1957,signedby Panglima Abdullah, the sonof Panglima

dan^,^^ the person who signedthe affidavit of25 January 1975.~'

Annexes,vol. annexMM91.
Annexes,vol4, annexMM92.
Annexes,vol4, annexMM94.
Annexes,vol4, annexMM95.
Annexes,vol4, annexMM96.
Annexes,vol4, annexMM98.
Annexes,vol4, annexMM105.
Annexes,vol. annexMM 120.6.16. On 2 June 1919Sipadan was declared to be a native reserve
for the collection of turtle eggs, pursuant to section 3 of the Turtle

Preservation Ordinanceof 19 17.29 This provision was mentioned by
the Assistant District Officer,Sempoma, in a letter dated 20 October

1958 to the District Officer, Lahad Datu, in which he refers to
information given to him by Panglima Sanulki regarding the

ownershipand devolutionof rights to collectturtle eggs on ~i~adan.~'

6.17. In 1923the Governmentof British North Bomeo published a

document entitled "Commercial Sea Products from the coasts of
British North Bomeo". Reference is there madeto turtle eggs in the
followingterms:

"The sandy shores of some of Our islands, notably
Taganac off Sandakan,Turtle Island near Pulau Tiga on

the West Coast, and Sipadan Island in Sibuko Bay,
aboundwith turtle eggs ...971

This was a clear and public indication of the view of the North
Bomeo Govemment that Sipadanwas partof the Colony.

6.18. On 28 April 1954 the District Officer at Tawau issued a
licenseunder theTurtle Preservation Ordinance19 17 to take a limited

number of turtles (as opposed to turtle eggs) in an area which was
stated to include "the islands of Sipadan, Ligitan, Kapalat, Mabul,

Dinawan and si-~mil".~~ This led to complaints from residents of
Kampong Danawan whofeared that their right to collect turtle eggs
might be affected. Thecomplaints were made to the District Officer,

Lahad Datu and were passed by him on 27 August 1954 to the
District Officer, ~awau.~~ As a result, the latter wrote on 1

September 1954 to the General Manager, Bomeo Abaca Ltd., at

29
Annexes, vol4,annex MM 97. The Turtle Preservation Ordinance was
enacted on1June 1917. Itsterritorial ambit was "the State [Le.North Borneo] or
the territorial waters thereof'. Sectionhe Governor power to specify native
reserves for the collection of turtle eggs: in the absence ofthe
collection of turtle eggs was anoffence under the 1917Ordinance. Thus the
continuedexercise of the customary right to collectturtle eggs onepended
on a decision of the Governor of North Borneo.
30
31 Annexes,vol4,annex MM 106.
32 Annexes,vol4,annex MM 99.
Annexes,vol4, annexMM 102.
33 Annexes,vol4, annexMM 103.Tawau requesting him to give instructions that his Cocos Islanders

cease taking turtles at ~i~adan.~~

6.19. A document reaffirming the gift by Maharaja Mahmud and
Panglima Abu Sari of part of their share in the right to collect turtle

eggs on Sipadan was executed in 1957 by Panglima Nujum and
Kaneh in front of the Native Chief of Semporna, Datuk Panglima
~bdullah.~~

6.20. On 22 December 1962, Mr. Edge, the Resident of Tawau,
also wrote to the District Officer, Semporna in terms which indicate
that he clearly regardedSipadan as falling within hisjuri~diction.~~

6.21. These instances of the involvement of NorthBorneo officials
in disputes over the right to collect turtle eggs on Sipadan confirm a
pattern established long before. It will be recalled that when the

U.S.S. Quirosvisited the islands in 1903, Lieutenant Boughter
recorded that...

"1 am informed that the island of Sipadan lying to the
Southward and Westward of Danawan has always been
understood by the natives as being appanageof the latter

named island whose inhabitants, by native custom, have
enjoyed the monopoly of collecting the turtle eggs
deposited there. Recently Bajaus from other localities

have been poaching and complaint has been lodged with
the resident at Lahad~atu."~~

Devolution of the right to collectturtle ennson Sipadan
(2)

6.22. At the turn of the century, the rights to collect turtle eggs on
Sipadan were held by Panglima Abu He was appointed
headman of Danawan by the Company in 1899. Abu Sari gave

Maharaja Mahmud the rights to collect eggs for 5 nights in a season
(Maharaja Mahmud was himself appointed headman of Danawan in
1905). These rights then passed by succession to, in turn: Maharaja

Anggai, Kaneh, Maharaja Mahajud and Maharaja Alukan.

34 Annexes,vol.4, annexMM104 .
35
36 Annexes,vol.4,annexMM 119.
37 Annexes,vol.4,annexMM 112.
38 Annexes,vol.3, annexMM63.
He is referredto asPanglimaBasariin thelistof indigenousleadersin
Annexes,vol.4, annexMM90.Apparently a dispute between Abu Sari and Maharaja Mahmud was
settled through the mediation of Panglima Udang. In appreciation of
this, it isaid that Abu Sari and Mahmudeach gave Panglima Udang

5 nights of their share. The total of 10 nights was in due course
inherited by PanglimaUdang'sson, Datuk Panglima~bdullah.~~

6.23. The details are of limited concem. What matters for present
purposes is, again, that the valuable entitlement to collect turtle eggs
on Sipadan belonged to leading members of the Island community

inhabiting the Ligitan group (especially Danawan), that these
entitlements were recognized by North Bomeo officials, and that
disputes conceming collection of turtle eggs were referred to North

Borneo officialsto resolve.

(3) Bird Sanctuary

6.24. On 19 December 1932 the Conservator of Forests at
Sandakan fonvarded to the Government Secretary, Sandakan, a
proposa1 under section 28 of the Land Ordinance, 1930 for a

megapode preserve on The proposa1was implemented in
the form of a notificationin the Officia1Gazetteof 1February 1933.~'

Sipadan is shown as a bird sanctuary in the map at Annexes, vol. 5,
Map 13.

Constructionandmaintenanceof linhthouses
(4)

6.25. As regards lighthouses,the Colony of North Borneo Annual
Report 1960 referred to a grant for various navigational aids and

facilities "including the establishment of 15 mile lights at...
Sipadan ...42 The project met with some opposition from a resident
of Danawan who had the right to collect turtle eggs on Sipadan. He

complainedto the Assistant DistrictOfficer,Sempoma, who reported
the protest to the Resident at Tawau on 25 October 1961.~~

Nonetheless the lighthousewasbuilt.

39 Annexes, vol4,annex MM 120. For a slightly different version of the
story, see Annexes, vol.nnex MM 117.
40 Annexes, vol4,annexMM 100. Megapodes are large mound-building
birds.
41 Annexes, vol.4, annex MM 101.
42 Annexes, vol.4, annex MM 108.
43 Annexes, vol.4, annex MM 109.6.26. The Colony of North Bomeo Annual Report, 1961,refers to

the completion during the previous year of a "75 foot Light Tower at
Sipadan (Alice Channel), completedin October; 300 - mm light to be
established earlynext year".*

6.27. Publicity was given to this new construction by the
Govemment of North Bomeo. On 10July 1962a Notice to Mariners
(No.9 of 1962) was issued. It bore the heading "Colony of North

Borneo". The principal sub-heading was "Borneo - East Coast -
Sibuko Bay (Pu10Sipadan)". The notice contained information about
the location and operation of the light.45 It elicited no reaction from

Indonesia.

6.28. The same is true of a similar notice issued on 17 July 1963
(No.6 of 1963)in relation to a light "establishment on the small islet

in the south part of Ligitan ~eef'.~~The coordinates given are those
of Pulau Ligitan.

6.29. A letter of 2 August 1973 on behalf of the Director of

Marine (in Malay,Pengarah Laut) to the Director, Lands andSurveys
(Pengarah Tanah dan Ukur)at Kota Kinabalu, States:

"It is confirmed Light Towers are established on the

above islands, Sipadan constructed and completed in
July 1962 and Ligitan in July 1963. Correspondence
with Resident, Tawau and District Officer, Sempoma

dating back to 1961 on their proposa1was al1copied to
you at the time. These are unwatched Light Towers (in
other words, no lightkeepers) serviced at six monthly

intervals (AprilIOctober yearly) and in continuous
operationfor coastal navigation."47

These lights exist to this day. They are regularly maintained andfa11

within the administrative responsibility of the Sabah Marine
Department. Photographs of the lights maintained on the two islands
are shown at pages22 and 25 above.

44 Annexes,vol. 4, annexMM 110.
45 Annexes,vol. 4, annexMM1 11.
46 Annexes,vol. 4, annexMM 113.
47 Annexes,vol. 4, annexMM 115.(4) Control of tourism

6.30. The development of tourism on Sipadan was described in

Chapter 3.48 It has involved the Malaysian Govemment in extensive
officia1 action in relation to that island. Access to Sipadan is
exclusively via Malaysia,and except for visitors who are nationalsof

States with visa exemption arrangementswith Malaysia, visitors have
to applyfor Malaysian visas, statingtheirintended destination.

6.31. Effective from 25 September 1997, Sipadan and Ligitan

became protected areas under the Protected Areas Order 1997 (made
under the Protected Areas and Protected Places Act 1959).~~At the
same time action has been taken to enforce applicable planning and

building regulations. Inorder to limit the number of tourists visiting
Sipadan, special approval to visit has to be obtained from the Sabah
Office,National SecurityDivision, Prime Minister's Department.

C. CONCLUSION

6.32. The material presented above demonstrates very clearly the
continuous exercise by North Bomeo, Britain and Malaysia over the
islands around the Sempoma Peninsula, including Ligitan and

Sipadan. This activity has related to the principal aspects of life on
the islands with local importance. The satisfaction of the rules
relating to the acquisition and retention of title to territory, as laid

down in well-known jurisprudence of this Court and arbitral
tribunals, hasthus been fully demonstratedby Malaysia.

48 See above, paragraph 3.19.
49 Annexes, vo4, annexMM 123. Chapter7

NETHERLANDSANDINDONESIANINACTIVITYIN
RELATION TO LIGITANANDSIPADAN

A. Introduction

7.1. In contrast with the many acts of British and Malaysian
administration presented above, Malaysia has been able to trace only

rare and isolated examples of action taken by Indonesia or its
predecessors in relation to the islands, andone of it reflects a claim
of right based on evidence of title to the islands in dispute. The

failure of the Netherlands at any relevant time toassert any claim to
Ligitan or Sipadan is itself a significant fact in this case, to be

contrasted with the chain of title, and the positive evidence of
administration by the Company and by Britain, as set out in Chapters
5 and 6 above. So too is the failure of Indonesia to make such a claim

in relation to Britain or Malaysia until 1969, and the absence, before
and since, of any exercise by Indonesia of any administration or
control whatever over the two islands.

B. Absenceof any claim by the Netherlands toLigitan and
Sipadan

7.2. In the early part of the nineteenth century, the southern part
of the east Coast of Borneo was subject to the Sultan of Bulungan.
But Dutch maps of the period showed the islands offshore of North-

east Borneo as being part of the possessions of the Sultan of sulu,'
and contemporary statements of the responsible Dutch Ministers are
to the same effe~t.~ The "Contract of Vassalage" of 12 November

1850 between the Dutch East Indies Government and the Sultan of
Bulungan defined the latter's tenitory in the following words:

"The tenitory of Boeloengan lies within the following

1irnits:-

Towards Goenoeng Teboer: from the sea-shore inland,

I See above,paragraph 5.8 (a).
2 See above,paragraph 5.8 (b). the River Karanliegan, from its mouth to its source

beyond the Batoe-Bevekkierand the Palpakh Mountain;

Towards the Zulu possessions on the sea-shore, the cape

called Batoe Tinagat and beyondthe River Tanwan.

The following islands shall belong to Boeloengan,

namely, Terakkan, Nenoekkan, and Sebittikh, together
with the small islandsbelongingto them.

This determination of the frontiers is to be considered as
provisional, and they shall be revised in detail and fixed

afresh.""

7.3. None of the places identified in the Contract of 1850 as

belonging to Bulungan is anywhere near Ligitan or Sipadan. The
furthest limit of the territory of Bulungan, according to this rather

equivocal claim, was the mouth of the Tawau River and a
neighbouring point called Batu Tinagat. In fact there was little qr no

evidence of control or influence on the part of Bulungan so far north,
or even beyond the Sibuko River, which was the southemmost point
of the Sulu grant of 1878, and this weakness was candidly conceded

in the Explanatory Memorandum by the Dutch Government which
accompanied the proposal for Parliamentary approval of the 189 1

~reat~.~ In 1879,the Dutch flag was hoisted at Batu Tinagat, but the
Netherlands could not sustain its claim to so northerly a point, and in

the 1891Boundary Treaty the limit of the Dutch claim was reduced to
a point on the mainland coast, namely Broershoek, opposite the island

of Sebatik. Even as to that immediate offshore island, Dutch title was
accepted only as to its southem half. The town of Tawau, after its

3 Contract of 12November 1850:Annexes, vol.2, anneMM 3. The original

text in Dutch reads:
"Het gebied vanBoeloenganligt binnende volgendegrenzen:
met Goenoeng Teboer: van af het zeestrand naar binnen 's lands, de
rivier Karantiegan,van hare monding tot aanharen oorsprong, voorts
de Batoe-Beoekkieren de bergPalpakh;
met de Soloksebezittingen:aan zee de hoek genaamdBatoe Tinagat, en
voortsde rivierTauwan.
Tot Boeloengan zullen de volgende eilanden behooren Terakkan,
Nenoekkanen Sebittik,met toebehoorendeeilandjes.

Deze grensscheidingwordtals voorlopiggenomen,en zal nader
4 geheel wordennagegaanen op nieuwvastgesteld."
See above,paragraph 5.8(c);see alsobelow,parag9.11(c).establishment by the Company in 1892, became a North Bomeo
administrativecentre.

7.4. The Bulungan Contract of 1850 also referred to "Terrakan,
Nenuoekkan and Sebittik together with small islands belonging to
them" ("mettoebehoorende eilandjes"). But itis clear that this was a

reference to the small islands immediately surrounding and between
the three named islands, which can alsobe seenon the Sketchmap on
page 32 above. None of these islands was anywherenear Sipadan or
Ligitan. Two of the three named islands, Tarakan and Nunukan,

clearlylie to the south of th4" 10'N parallel. There are, in fact, two
islands of Nunukan, distinguished as East and West. Lying south of
them, and between them and Tarakan Island, are a number of small

islands very close inshore, such as Boekat, Espada, Mail, Schildred,
Tirens, Tibu, Sadow and mi10Bunju, and some others, even smaller.
These were evidently "the small islands belonging to them" referred

to in the Contract of 1850. There was certainly no reference to
islands much further to the north-east (some40-50 n.m. to the east of
Sebatik) and closely associated with the coast of the Sempoma

Peninsula.

7.5. A further contract of vassalage was concluded between the
Netherlands Indies and the Sultan of Bulungan on 2 June 1878.~ In
this contract it was providedfor the first time that the latter'sterritory

extendedin the north-east upto BatuTinagat (at 4" 20'N). But this is
not to saythat either theDutchor the Sultanof Bulunganexercisedany
control inthese northemterritories. For example,in 1880the Resident

of the Southem and Eastern Division of Bomeo reported that in
"Berouw and Boeloengan ..the trade with the inhabitants of the Sulu
archipelago consists mainly of exchanging tradegoods for kidnapped

people, who are sold in Ourterritory as slave^". There were trading
links between the Sulu Archipelago andits Bomeo dependenciesand
Bulungan,but no elementof politicalcontrol on the part of Bulungan.
And this situation did not change. As late as 1917the then Resident

reported that the Dutch administrative involvement onlyextended to
the coastal area and the lower stream area of the Kajan River. The
Tidoenglands andother areasforrningthe northem parts of Bulungan,

"remained virtuallyexcluded from the exercise of a~thority".~ The

5 SeeAnnexes,vol. 2, annexMM11.
6 Memorandum ofTransferby ResidentMeij, Mach 1880,microfiche
ARA 267 1+2:extractinAnnexes,vo3,annexMM 39.
7 Memorandum ofTransferby ResidentH.J.Grijzen,3 September1917, acquainted with the precise frontier-line of the

Netherlands territoryon the east coast of Borneo. With
a view to preventing possible misapprehensions,orders
have been issued for the Netherlands flag to be hoisted

on the border (at the Batoo Tinagat Rock, situated at the
mouth of the Tinagat River in 4" 19" north latitude and
117" 5 1" east longitude, accordingto the last survey) to

be placed for the present under the protection of a
cruizer, whilst the Sultan of Boloengau has been
requested to maintain a Representative at this point on

his side of the frontier-linein question."g

7.7. Subsequently, in relation to the proposed grant of the Royal

Charterto the Companyin 1881, the DutchMinister in London made
aforma1reservation of rights, inthe followingterms:

"It is with a view to avoiding any such

misunderstanding that the King's Government desires,
once for all, whilst abstaining from more detailed
observations, to point out that the sovereignty of the

Netherlands on the north-east of the Island of Borneo
extends-

1. Over the region which, situated on the left bank
of the Sibuco, constitute the territory of the ancient

districts of Tadang, depending in their turn on
Boelongan, a Statetributaryto the Netherlands;

2. Over the Islands of Tarrakan, Monockan [sicl,
and Sibittikh, with the lesser islands adjacent, and that
these various territories cannot, therefore, have been

ceded to Messrs. Overbeck and~ent.""

7.8. This reservation notwithstanding, when the Royal Charter
was granted in August 1881," it recited the original language of the

Sulu grant of 1878with its referenceto territories and islandsdown to
-
9
ExtractfromtheAnswerof theMinisterof ColoniestoInquiriesmadeby
the CornmittefortheSecond Charnberin theirPreliminaryReportonthe
NetherlandsIndianBudget for1880(emphasisadded).TheExtractwasattachedto
aletterfromMrStuart,BritishArnbassadototheNetherlandsto theMarquessof
10lisbury24October1879:Annexes,vol. 3,annex MM38.
Countde Bylandtto EarlGranville,8April1881:Annexes,vol.3,annex
1141.
Annexes, vol.2, annexMM 13.the River Sibuko. In the subsequent Dutch parliamentary debate,

members expressed a range of views. Mr van der Hoeven noted that
"to a great extent our establishments in Borneo are little more than
nominal" and Mr Keuchenius was reported as having made a "a long

speech in which, with reference to Borneo, he said that it was
certainly very doubtful whetherthe Netherlands had anyrights over
the northern part of that island, and that at any rate, as appearedby a

map executed some time since, the dominion of Holland did not
extend to the territory which wasthe subject of the concession to Mr.
~ent".'~ In reply the Minister of ForeignAffairs saidthat.. .

"He did not see how theNetherlands govemment could
do more, and in his opinion they would have incurredan
immense responsibility if they had provoked a

difference on a question on which, even here inHolland,
opinions differed so much, as appeared from the speech
of M. van der Hoeven, whose opinion on colonial
questions was so a~thoritative."'~

7.9. In the subsequent correspondence with Britain, the absence
of any Dutch claim to territoryto the east of Batu Tinagat was equally

clear. Reference maybe made, forexample, to a memorandumby Sir
Edward Hertslet dated 9 January 1889, relating to the boundary
dispute.I4 In that memorandum, Hertslet referredto a Dutch note of
22 December 1888,which fonnulatedthe Dutch claim as follows:

"En partant du point extrême à l'ouest, Tandjong Datoe,
jusqu'au point extrême à l'est, Batoe Tinigat, la chaîne

de Montagnes formant la ligne de faîte qui sépareles
eaux ayant leur embouchuresur le territoire Néerlandais
des eaux qui se déversentle territoire de Sarawak,
Brunei, et de la'BritishNorth Borneo Company,' entre

les deux points extrêmes s~smentionnés."'~

Hertslet stressed that "[tlhe real question in dispute is the right of the
Dutch to claim territory on the east coast as far north as Batoe

Tinigat", and he went on to Say:

12
13 Sittingof 6 December1881:Annexes,vol. 3, annex MM42.
14 Ibid.
15 PRO, FO88115822:Annexes,vol. 3, annexMM 43.
Ibid.p. 6. "The Netherlands Govemment have raisedthe question
as to the right of the Sultan[sic]of Brunei and Sulu, at
the date of the Cessions made to the North Bomeo

Company, to cede any territory situatedsouth and West
of Batu Tinigat, which theySaynow forms part of the
possessionsof the Kingof the Netherlands; butit will be

seen from what follows that in a Dutch Map published
in Breda in 1857, and to al1appearance under officia1
sanction and authority, the territory north of the Atas

River was stated to belong tothe Sultan of Sulu, whose
independence the Dutch Minister for Foreign Affairs
(Baron de Leyden) admitted on the 9th October, 1880

(after the grant of the Sulu Concessions) was fully
recognized by the Netherlands~overnment."'~

In fact the Dutch Government had subsequentlyextended its claim on
the east coast up to Batu Tinagat, and in this respect it no longer
adopted the position expressedin the map of 1857. But what matters

for present purposes is that the entire disputerelated to the area south
and West of Batu Tinagat, which was for the Dutch "[le] point
extrême à l'est", the extremeeasterlypoint of its claim. Therewas no

question of the Dutch claiming any territory furtherto the north and
east.

7.10. Subsequently, Britain offered to allow the Netherlands an

enclave around Batu Tinigat, but this wasrejected. As the Dutch
negotiator Count de Bylandt reported:"an enclave of an uninhabited
and uselesspiece of groundcan in futureperhapsbnng a hornets' nest

of al1sortsof difficulties and conflicts,to whichthe Netherlands' flag,
in my view, shouldnot be exposed without unavoidableneces~it~."'~
Again,there wasno question that territory or islands well to the easotf

Batu Tinagat wouldbe concededto theDutch.

7.11. From the correspondenceof this period, thefollowing points
emerge:

16
Ibid., p. 7 (emphasis added). On the accompanying map,the Atas River is
shown at approximately20'N, opposite the island of Tarakan. No such river is
17own on modern maps.
Letter of Count de Bylandtto Ministerof Foreign28fJuly1889,
ARA, Min.ofFor.Affairs, 2.05.03,inv no 134,no. 713 (iranslatedfrom Dutch):
Annexes, vol.annex MM 47.(1) The Dutch Government recognisedthat the territories on the
coast of North East Borneo belonged to the Sultan of Sulu, and that,

for the most part at least, the territorywhich was covered by the 1878
grant related to "districts which are not under the sway of the
Netherlands".

(2) There was, according to the Dutch view, an area of
overlappingclaims in the south,but this concerned onlythe coast, not
distant off-shore islands, and it related onlyto the region between the
Sibuko River and Batu Tinagat.

(3 The only islands mentioned in this regard were "Islands of

Tarrakan, Monockan hl, and Sibittikh, with the lesser islands
adjacent", which phrase clearly cannot includeislands 50 miles to the
east and north east, adjacentto a coast whichthe Dutch claim, even at
its most extreme,did not cover.

(4) Authoritative Dutch sources denied that they had any valid
claim to the disputed sector. In fact the eventual Boundary Treaty
conceded Batu Tinagat and the northernhalf of Sebatik to Britain: i.e.
it involved a withdrawa olthe Dutch claimin the north, not a further

extension well to the north east.

7.12. Insert 14 is a sketch map, on the following page showing
the area of overlapping claims, which area was divided by the
Boundary Treatyof 1891.

C. Absence of Administration of the Islands by the
Netherlands

7.13. There was never at any time any attempt by the Netherlands

to establish a territorial administration over any point on the coast
eastwards of Batu Tinagat, or to anyislandseastwards of Sebatik. On
the contrary, as will be seen inChapter 9, officialstatements of the
extent of Dutch territory in this sector were reduced following the
1891 Treaty, and the description of the territory of the Sultan of

Bulungan was adjusted acc~rdin~l~.'~

18
Seebelow,paragraph9.17.7.14. Admittedly, there were occasional Dutch naval activities
along the north-east coast of Bomeo. Perhaps the most notable
example of such activity was the voyage of the survey vesse1

Macasser in 1903. A manuscript report of its activitysurvives in the
Dutch General State ~rchives.'~ The annex to the report, written by
the commanderof the Macasser, is headed "Bearingstaken by H.M.S.
Macasser on British North Bomeo, 21-27 October 1903". Paragraph

2 focuses on the island of Sipadan and records various bearings in
relation to that island, taken from an inshore island. By contrast the
report notes that Ligitan and Danawan are located too far from the

coast to allowfor a reliable measurement. In referring to Ligitan and
Sipadan along with other localities in the region which were
unquestionably British, it would appear that the Commander of the

Macasser treated al1the islands mentioned as being part of British
North Bomeo.

7.15. Reference may also be made to the patrol of the Dutch

torpedo boatLynxin November 1921 .20 The inspectionof the areaby
Lynx included, among other islands, Ligitan and Sipadan. As the
report makes clear, the patrol was in direct responseto concems about

allegedsea piracyby Bajaus from the Philippines. There is nothing in
the report which indicates that Ligitan and Sipadan were considered
Dutch territory, or under Dutch jurisdiction. The Lynx visited

Sipadan seeking information about suspected "pirate" praus on Si
Amil, but found only turtle egg collectors and no information. There
are many instances in colonial history where the colonial powers

cooperated in cross-border operations to suppress "piracy" in their
border areas: the fact that the Commander of the Lynxcommunicated
with British authorities suggests that this was a further example of

cooperative action of this kind. The Dutch Commander was
instructed to take any seized native praus to the Dutch island of
Tarakan for investigation. The Lynx'smission triggered discussions
amongDutch authoritieson the territorial seaboundary between the

19
See letter from Commander van Straaten to Dutch Naval Commander,
Batavia,6 November 1903, ARA, 4.HYDR0.31, inv. 3, no. 108:
20 Annexes, vol. 3, anMM 64.
See the patrol report in Annexes, vol.MM71.nnexBritish North Borneo Company and the NetherlandsIndies off the
island of Sebatik. During these extensive discussions, no single

reference was madeto Ligitanor Sipadan.

7.16. There is no indication that the voyageof the Lynxinvolved

the lodging of a territorial claim to islands visited (analogous,for
example, to the forma1acts performedby LieutenantBoughter of the
~uiros).~' Nor was there any such follow up activity (e.g. the

publication of maps proclaiming sovereignty over the area or
diplomatic correspondence) as followed the voyage of the ~uiros.~~
On the contrary,the Dutch Residentof SouthandEastern Borneo,van

Kempen, confirmedin 1923 that according to the Batavian Petroleum
Company themineral wealth of Sibatik was of no particular interest.

Reporting on a recent missionto the northem part of the region, he
stated:

"The island itself is nearly uninhabited and the
fisherman's trade, conducteddong the shores, is not in

the hands of the indigenous population of Boeloengan.
When fishing takes place, it is performed by the well-
knownBadjausfromthe Soloar~hi~ela~o."~~

The Resident described thearea beyond the island of Sebatik in the

following words: "In this particular area thereare no islands; onlythe
open~ea".~~

21 See above,paragraph 5.31.
22 See above,paragraphs5.25,5.29 and 5.30.
23 Mr vanKempen,Residentof SouthandEastern Borneo,letterof24
November1923,inARA,Min. vaK nol.,penbaaV rerbaal19,01-1952,
2.10.36.06, inv.no. 2637, no.nexes,vol.3,annex MM73.
24 Ibid.D. Absence of Protest by the Netherlands in relation to

British Administrative Acts concerningthe Islands

7.17. In addition to the failure of the Netherlands to take any steps
itself to administer the islands, it did nothing to protest at their
administration by North Borneo. In particular, there was no protest or

other action taken by the Netherlands on a number of occasions when
it might have been expected to be aware of developments adversely

affecting its pretended interest in these islands.

7.18. For example, as far as the record shows, there was no protest

at any of the following transactions:

(a) The Protocol of 1885 between Britain, Germany and ~~ain;~'

(b) The Spain-United States Convention of 1900, ceding to the
United States islands which included the two islands in

dispute;26

(c) The voyage of the U.S.S. Quiros in 1903, and the publication
by the U.S. Hydrographic Office of the map "Northern Shore

of Sibuko ~a~";~'

The 1907 Exchange of Notes and the map attached theret~;~~
(d)

(e) Administrative acts by North Borneo affecting the islands in
the whole of the period following the grant of 1878,including

the licensing of boats frequenting the islands, the licensing of
turtle egg collection and the establishment of bird

san~tuaries;~~

25 See above, paragraph 5.18.
26 See above, paragraph 5.22.
27 See above, paragraphs 5.25,5.27.
28 See above, paragraph 5.38.
29 See above, paragraphs 6.6,6.11,6.24.(f) Such publications as the officia1 British report in 1923 on

"Commercial Sea Products from the Coast of British North
~orneo";~~

(g) The inclusion of Sipadan as a native reservefor the collection
of turtle eggs;31

The proclamation in 1933 of a bird sanctuaryon ~i~adan;~~
(h)
and

(i) The publication of Admiralty chart 2660B, showing the

boundary across Sebatik stopping at its east ~oast,~~ as well as
the other mapsreferredto in detail in Chapter 10.

E. Absence of Administration of the Islands by Indonesia
after Independence

7.19. On becoming independent, Indonesia succeeded to the
position of the ~etherlands.~~

7.20. lndonesia did not include Ligitan and Sipadan within the

area of its territorial and archipelagic waters asproclaimed in 1960.
By Act No. 4 of 18 February 1960,~'Indonesia identifiedthe location
of the points of baselines of Indonesian waters. Linesjoining these

points in the relevant area do not embrace Ligitan and Sipadan, nor
does the 12 nautical mile maritimebelt constructedupon those lines.

This can clearly be seen from the map referred to in Article 2 of the
Act and annexed to it.36The importanceof this Act asa statement of

30
31 See above, paragraph 6.17.
32 See above, paragraph 6.16.
See above, paragraph 6.24.
33 See below, paragrap10.6.
34 Indonesia proclaimed its independence on 17August 1945. The transfer
of sovereignty by the Netheriands is dated 27 December 1949.
35 Annexes, vol. 4, anneMM 107.
36 See Annexes, vol5,Map 7.Indonesia's claim to archipelagicand territorial waters and, hence, by

clear implication, as evidence of the absence of a claim to the islands
outside those waters, is indicated by the concluding sentence of the
Act: "In order that the Act be known to everybody whomsoever it is

instructed that this Act be promulgated by publication in the
GovernmentGazette".

7.21. So far as any pertinent Indonesianoil concession in the area

is concerned, the northern limit of the northem-most Indonesian
license of which Malaysia has any notice is 30'south of the 4" 10'N
line. That grant doesnot coverSipadansince the northernlimit of the

eastem boundary of the grant to JAPEX appears to lie West of
~i~adan.'~

F. Absence of Protestby Indonesia in relation to British and
MalaysianAdministrative Acts concerning the Islands

7.22. Like the Netherlands before it, Indonesia failed to protest at
the continuing administrationby Britain, and then by Malaysia, of the

islands it now claims. Indonesia remained silent at the time of the
construction of a light toweron Sipadan,publicity to which was given
both in the Colony of North Borneo Annual Reports for 1960 and

1961 and in Notices to Mariners in 1962 and 1963.~' Nor, for
example, was there any reservation of rights over the two islands at
the time of decolonization in 1963,when Sabah became a component

state of Malaysia.

G. Conclusion

7.23. The record demonstrates a complete absence of actual
administration or of any other acts, by the Netherlands or by
Indonesia, from the earliest times to 1969 or subsequently. The
record of the conduct of the parties is wholly inconsistent with the

Indonesianclaimto these islands. Further,the absenceof anyprotest,

37 See Annexes, vol4,annex MM 114.
38 See above,paragraphs6.27,6.28.either by the Netherlands or Indonesia, demonstrates their

acquiescence in British and Malaysian conductin relation to the
islands. That acquiescence is clearly inconsistent withthe claim to
sovereignty that Indonesianow makes. PART THREE

Chapter8

THE 1891BOUNDARY TREATY DOES NOT SUPPORT

INDONESIA'S CLAM TO LIGITAN AND SIPADAN

A. Introduction

8.1. It appears from the diplomatic negotiations mentioned
above1 that Indonesia founds its claim to the two islands primarily
upon the 1891 Boundary Treaty. Accordingly, Malaysia will offer

some observations on the Treaty, without prejudice to its position in
relation to such arguments as Indonesia may in due course develop in
the present proceedings.

8.2. It will be shown in this Chapter that nothing in the 1891
Boundary Treaty, or in thetravauxpréparatoires or in other materials
to which resort may be had in interpreting treaties, supports the

Indonesian claim. Rather, the ordinary and natural interpretation of
the Treaty, and relevant rules of law, plainly refute it. Moreover it
will be shown in Chapter 9 that neither the subsequent ratification

process of the Treaty nor its implementation (in particular through the
Demarcation Agreement of 1915) support the Indonesian claim.
Indeed, if the 1891 Boundary Treaty stands in need of interpretation

in this respect, the 195 Agreement is an authoritativeinterpretation
of ArticleIV in the contrary sense to that advocated by Indonesia.

8.3. The basic principle of treaty interpretation applicable to the

present case is that contained in Articles 31 and 32 of the Vienna
Convention on the Law of Treaties, which, though not formally
applicable to treaties made before 1982, have been accepted as
relevant to the interpretation of1treaties. In particular, as the Court

said in the Case Conceming the Territorial Dispute (LibyaKhad):

"Interpretation must be based above al1on the text of the
treaty.. [I]n accordance with customary international

1 See above, paragraph 4.6. law, reflected in Article 31 of the 1969 Vienna
Convention on the Law of Treaties, a treaty must be
interpretedin good faith in accordance with the ordinary

meaning to be given to its terms in their context and in
the light of its objectand purpose."2

Similarly, in the Case relating to theArbitralAward of 31July 1989

(Guinea-Bissau/Senegal)the Court said:

"The first duty of a tribunal which is called upon to
interpret and apply the provisions of a treaty, is to
endeavour to give effect to these in their natural and

ordinary meaning in the context in which they occur. If
the relevant words in their natural and ordinarymeaning
make sense in theircontext, that is an end of the matter.

If, on the hand, the words in their natural and ordinary
meaning are ambiguous or lead to an unreasonable
result,hen, and then only, mustthe Court resort to other
modes of interpretation, and seek to ascertain what the

partiesreally did mean when theyused these ~ords."~

B. TheInterpretationof the 1891BoundaryTreatyin

Accordancewiththe Applicable Rulesof TreatyInterpretation

8.4. Article IV of the 1891Boundary Treaty consists of a single
sentence, whichreads asfollows:

"From 4" 10' north latitude on the east coast the
boundary line shall be continued eastward dong that
parallel,across the island of Sebittik; that portion of the
island situated to the north of that parallel shall belong

unreservedly to the British North Bomeo Company, and
the portion south of that parallelto the ~etherlands."~

ln the equally authoritative Dutch text of the Treaty, the word
"across" in ArticleIV is renderedby its Dutch equivalent "over", and

not by the Dutch word "voorbiJ"("beyond").

2 I.C.J.Reports 1994,p. 22, para 41.
3 I.C.J. Reports 1991,p. 69, para 48.
4 Annexes,vol.2, annexMM 17(emphasisadded).8.5. Indonesia has hitherto contended that the boundary line
described in Article IV not only extends across the island of Sebatik,

in the sense of stretching from the island's west coast to its east coast,
but also stretches beyond the east coast seawards along that parallel of
latitude to an undefined point said to be at least some 50 miles

distant. Indonesia supports this interpretation of the text on the basis
of a Netherlands Government map of 1891, hereinafter referred to as
the "internal Dutch map".5

8.6. It should be stressed that the 1891 Boundary Treaty itself
refers to no map, and no map was annexed to it. The map has never
been printed in any treaty series as associated with the 1891 Boundary

Treaty, and no English-languageversion of the map is known to exist.
It is neither part of the text of the Treaty, nor of its travaux

préparatoires. Malaysia will accordingly deal, in this Chapter, with
the meaning of the words actually used in the Treaty and
subsequently, in Chapter 9, with the internal Dutch map.

8.7. The preamble to the Treaty states clearly its object and
purpose. The Parties declared themselves to be.. .

"Desirous of defining the boundaries between the
Netherlands possessions in the island of Borneo and the
States in that island which are under British protection,

have resolved to conclude a Convention to that effect."

In 1891 the distinction between a boundary treaty and an allocation
treaty was well known. A boundary treaty established a boundary line

between adjacent areas of land territory. An allocation treaty
described a line of division on the sea, not for theurpose of dividing
maritime areas, but for the purpose of allocating to one or the other

State sovereignty over islands on one or other side of the line.

8.8. It isuite clear, when the 1891Treaty is read as a whole, that

it was intended to be a land boundary treaty. This follows both from
the words of the Preamble, quoted above, and from the opening
words of Article 1: "The boundary between the Netherlands

possessions in Borneo and those of the British-protected Statesin the
same island.. ." There is nothing in the Treaty to suggest that it was
intended to divide sea areas or to allocate distant off-shore islands.

Article 1 provides that the boundary "shall start from 4" 10' north

5 Annexes, vol.5,Map 2.latitude on the east coast of Borneo", while Article III provides for the

extension of the line to Tanjung Datu on the West coast of Borneo.
The Treaty thus provides for the territorial division of the island of
Borneo from its east coast to its west coast. In addition, Article IV

deals with the problem posed by the presence of the island of Sebatik
which lies so close to the coast of Borneo as to be virtually part of it.
It would not be in accord with the manifest object and purpose of the

Treaty to interpret Article IV as serving the additional purpose of
allocating title to the Netherlands in respect of islands south of a line
in the sea extending indefinitely eastwards from the east coast of

Sebatik along the latitude of 4" 10'N.

8.9. Article IV provides that the boundary line shall continue
eastward along the parallel of 4" 10'N. This means that the extension

starts from the east coast of Borneo and runs eastward across Sebatik,
in contrast with the main part of the boundary line, which starts at the
same point, but runs westwards. Article IV is thus a unique provision

introduced solely to deal with Sebatik and, by implication, the narrow
belt of water between Sebatik and the main island of Borneo, which
could be assimilated (then and now) to interna1 waters. In this

context it should be recalled that at the relevant time neither Britain
nor the Netherlands claimed to exercise sovereignty beyond the three-
mile belt of territorial waters.

8.10. Specifically, Article IV provides that "...the boundary line
shall be continued eastward along that parallel, across the island of
Sebittik". Indonesia contends that the word "across" means that the

line crosses Sebatik on its way from the east coast of Borneo to some
more distant terminus in the sea, not specified in the Treaty but
alleged to be at least 50 miles to the east of Sebatik. Ifthe line was

much shorter, it would affect no islands at all, since none lie to the
east of Sebatik before Sipadan itself is reached.

8.11. This is not the plain and ordinary meaning of the words

"across the island of Sebittik. These words mean, in English and in
Dutch, a line that crossesSebatik from the west coast to the east coast
and goes no further. This meaning accords with the usual primary
definition of "across" and, in Dutch, "over"given in dictionaries.

8.12. This is clearly confirmed by the words following the semi-
colon after the words in question: "that portion of the island situated
to the north of that parallel shall belong unreservedly to the BritishNorth Borneo Company, and the portion south of that parallel to the
Netherlands". The fact that Article IV was drafted as a single
sentence divided into two parts only by a semi-colon indicates the

close grammatical and functional connection between the two parts.
The second part can only be read as referring to the island of Sebatik
itself, and this supports the understanding that the references to the

island in the first part are likewise limited to the island itself. A
contextual interpretation of Article IV produces exactly the same
result as the literal interpretation of the word "across" ("over"): that is

to Say,it is limited in its scope to the island itself.

C. The Travauxpréparatoires of the 1891 Boundary Treaty
confirmthe Literal and ContextualInterpretationof Article IV

8.13. In the circumstances set out above, resort to the preparatory

work leading up to the conclusion of the 1891 Treaty is not necessary.
The meaning of the text, as derived from the words used in their
context and in the light of their object and purpose, is quite clear. It is

impermissible to refer to the travaux préparatoires in order to support
any other meaning than that which emerges from the interpretation of
the text itself, since the language is neither "ambiguous" nor

"obscure" (Vienna Convention on the Law of Treaties, Article 32 (a)),
and the meaning derived from the interpretation of the text is certainly
neither "manifestly absurd nor "unreasonable" (Article 32 (b)).

However it is permissible to refer to the travaux préparatoires "in
order to confirm the meaning resulting from" textual and contextual
interpretation, and in fact the travaux préparatoires do provide such

confirmation.

8.14. The relevant negotiations between the British and Dutch
Governments took place principally during the period 1889-1891. At

that time the Dutch Government relied on the territorial claims of the
Sultan of Bulungan under the Contracts of 1850 and 1878.~ The
British Government represented the interests of the British North

Bomeo Company, which derived its rights from the Sultan of Sulu in
1878, as expressly recognised by Spain in 1885, and from its actual
administration of the islands adjacent to theast.

6 See above, paragraph 7.7.8.15. The question is whether the preparatory work of the 1891
Treaty revealed any trace of a claim by the Netherlands on behalf of

the Sultan of Bulungan to the island of Ligitan and Sipadan and an
acknowledgement of that claim by the British Government. The
answer is emphatically:No.

8.16. At the time of the negotiations, the Dutch Government took

the position that the northern limit of the territories of the Sultan of
Bulungan was at Batu Tinagat, a location on the northern shore of
Sibuko Bay, just to the north east of Sebatik Island and a few miles

east of Tawau (see Insert 14, above, page 80). This location was
more than 40 n.m. to the West of Sipadan and even further from
Ligitan. At that time there was no suggestionby the Netherlands that
those islands, or any othersclose to the northern shoreof Sibuko Bay,

adhered to the mainland territory of the Sultan of Bulungan, or that
they belonged, or should in future belong, to the NetherlandsIndies.

8.17. At the first meeting of the Joint British-Dutch Negotiating

Commission on 16 July 1889, the British delegates referred to the
following statement by its Acting Consul-General,Mr. Treacher:

"7. That, at the time of the Dent and Overbeck
Concessions, Acting Consul-General Treacher reported

that the territory mentioned in the grants made to them
was 'actually under Sulu rule, and occupied by Sulu
~hiefs'."~

In responsetheretothe Dutchdelegation saidon 19July 1889:

"7. 'Admitting that the statements of Mr. Treacher
should be correct in so far as the regions are concerned

to the eastward of Batoe Tinagat, they certainly are
incorrect as to the disputed district which was not
occupiedby Sulu~hiefs."'

The important part of this passage is the admission by the Dutch

representative that the regions to the eastward of Batu Tinagat were
actuallyunder Sulu rule - thereby excludingthe rule of the Sultan of
Bulungan, from which it necessarily followed that theDutch were not
claiming those eastern areason his behalf.

7 Annexes,vol.3, annex M 44.
8 Annexes,vol.3, annexMM45 (emphasis added).8.18. Consistent with this Dutch position the consideration of the
boundary on the coast never extended to cover the islands east of
Batu Tinagat. This appears clearly, forexample, from the records of

the meeting of 27 July 1889.' When, on 2 April 1890, the
Netherlands representative, Count Bylandt, indicated the Dutch

willingness to accept a compromise line"across the whole area of the
Island [of Bomeo] from a point to be established on the east coast
until Tandjong - Datoe on the Westcoast", the starting point on the

east coast of Bomeo was to be Broershoek, the point eventually
adopted by the 1891 Boundary Treaty for this purpose. The Dutch
also proposed at the same time, but in a separate paragraph, that "the

islandof Sebittikremains within theNetherlands".

8.19. The Court of Directors of the Company subrnitted its

comments on the Dutch proposa1on 22 July 1890. It proposed that
the whole of SebatikIsland be retainedby the Company:

"This seems to the Court a fair arrangement, as they

are of opinion that theIslandof Sebattick-forming as
it does one side of the channels into which al1 the

rivers between Broershoek and Batu Tinagat flow-
should be under their jurisdiction; but should it
unfortunately not meet with the consent of the

Netherland Govemment, they would be prepared to
accept a continuation of the parallel 4" 10' north
latitude across the island to the east corner, which

would give to each party al1the portion lying opposite
its own temt~ry".'~

Inadoptingand communicatingthese views to the Dutch Govemment
on 13 August 1890, the British Govemment stated the position in
relation to Sebatik asfollows:

"...the boundary-line shouldrun along the parallel of 4"
10'eastward, as well aswestward, from Broershoek,so

as to divide the island equally between themselves and
the Netherlands ~ovemment."'~

- - -- -
9 Annexes,vol.3, annex MM46.
10 FO 8811607 1,atp.56;Annexes,vol. 3,annex MM48 (emphasisadded).
11 Annexes,vol. 3,annex MM49.The proposa1madeby the Netherlands to the British Government on
2 February 1891took asimilarapproach.'2

8.20. A relevant consideration in the negotiations was that each

party should have its own means of access to the waters lyingon its
side of the line between Sebatik and the mainland. This was perhaps
the decisive factor which led to the island of Sebatik being divided
into two along the same line as the adjacent mainland. But that

consideration had nothing to do with any islands further to the east,
and the record of the discussions shows that no consideration
whateverwas given tothose islands.

8.21. For these reasons, it is impossible to read into this mention
of the equal division of Sebatik Island inthe travauxpréparatoiresof
the 1891 Boundary Treaty anyidea that the line so dividing it should
extend eastward into the seafor an indefinite distanceso as to allocate

Ligitan and Sipadanto the Netherlands. As the travauxpréparatoires
reveal,the line under discussion:

(1) was a boundary line, not an allocation line (and certairilynot
both);

(2) was adopted as a compromise only after the 4" 10' N line was
agreed as aboundaryline for the mainland ofBorneo; and

(3) related only to the island of Sebatik and not to other islands
well to the east.

The travaux préparatoiresthus confinn the interpretation of Article
IV which derives from the interpretation of the actual words
considered in their context and in the light of their object and
purpose.

12 Annexes,vol. 3, annex MM50.D. In any event, the 1891 Boundary Treaty could not have
had the effect of allocating to the Netherlands islands belonging

to Spain

8.22. Finally, even if (quod non) the 1891 Boundary Treaty had
purported to allocate to the Netherlands islands which were well to
the east of Sebatik, that bilateral allocation could not have had any

consequence for islands which at that time belonged to Spain.Nemo
dut quod non habet: Britain could not have agreed to cede to the
Netherlands islands which fell outside the three marine league line

contained in the 1878 Sulu grant, a line expressly and publicly
recognised by Britain and Spain in the Protocol of 1885. This is a
further reason for rejecting the Indonesian argument based on the

1891Boundary Treaty. Chapter9

THEIMPLEMENTATIONOF THE 1891TREATYAND
THEDEMARCATION AGREEMENT OF 1915 CONFIRM
MALAYSIA'SPOSITION

A. Introduction

9.1. In the period subsequent to the conclusion of the 1891
Boundary Treaty, two episodes need to be considered, for the light

they shed on the Indonesian contention that Article IV allocated
Ligitan and Sipadan to the Netherlands (and thus, eventually, to
Indonesia). They are:

(1) the process of ratification and implementation of the 1891

Boundary Treaty by the Netherlands, and in particular the internal
Dutch map; and

(2) the agreed demarcation of the boundary, which occurred in
1915.

B. Dutch Ratification of the 1891 Treaty, the Interna1Dutch
Map and Subsequent Dutch Actions implementing the Treaty

9.2. The 1891 Convention required ratification,and in

accordance with Dutch constitutional procedures it was submitted to
the Dutch Parliament for approval. A number of documents were
submitted to the Parliament in that context, and subsequently a

number of actions were taken by the Netherlands in the
implementation of the Treaty.

(1) The Interna1Dutch Map

9.3. The first item which falls to be considered is the internal

Dutch map. This was attached to the Government's "Explanatory
Memorandum No. 3",dated 25 July 1891, which was presented to the
Netherlands Parliamentduring the procedure for the ratification of the

1891Treaty. This map carries on it, among other lines, one colouredred which extends eastward into the sea for a distance of
approximately 50 miles from the point on the east coast of Sebatik
where it is reached by the parallel of 4O 10' N.' The rnap legend
describes the red line as the boundary line established in the 1891

Convention. In the bilateral discussions between Indonesia and
~ala~sia,' Indonesia has relied very heavily on this rnap as showing
the intention of the parties in 1891to allocate al1islands south of the
line to the Dutch East Indies. The rnap does not support such an

extravagant interpretation,interalia for the followingreasons.

9.4. m, and despite suggestions sometimes made to the
contrary, the rnapwas not attachedto the Treaty and is not referredto
either in the Treaty itself, or in the travaux. The rnap was an entirely

unilateral document prepared by the Netherlands Government for
illustrative purposesin the Netherlands parliamentaryproceedings.

9.5. In fact the veryfirst draft of the rnapexists. It is reproduced
on page 98 as Insert 15. This first hand-drawn version was

apparently prepared on 23 June 189 1,which was three days after the
signature of the 1891Boundary Treaty. Thus it is quite clear that the
map, which exists only in the Dutch language, was not an agreed
map, was never discussed between the parties, and was never

formally deliveredto the British negotiators. Indeed it was not even
in existence at the time of the conclusionof the Treaty.

9.6. The Treaty itself clearly indicates that no rnap was attached

or agreed, since the Parties expressly foresaw thatthe exact positions
of the boundaryline had still to be determined. ArticleV provided:

"The exact positions of the boundary line, as described
in the four preceding articles, shall be determined
hereafter by mutual agreement, at such time as the

Netherlands andBritish Governmentsmaythink fit."

The "four preceding articles" include Article IV relating to the line
across Sebatik. So it is evident that "the exact position" of the
boundary line prescribed in thatarticlehad still to be determined.

I
2 See above,paragrap4.6.2.9.7. Secondly, the original draft of the interna1 Dutch map does
not show the islands in dispute; neither does the final version attached
to the Explanatory Memorandum, which shows only P.Mabul to the

north of the line.

9.8. Thirdly, the 4' 10'N line, coloured blue on the hand-drawn
map shown on page 98 above, is drawn only a short distance into the

sea,just past the location of Batu Tinagat, which was the last point on
the coast claimed by the Netherlands. In other words, the original
version of the line was quite different, much shorter, and certainly did

not have the purpose now attributed to it. It was only in its printed
version that the line (coloured red) was so extended.

9.9. Nothing was said at the time to justify or explain the

extended line on the intemal Dutch map, let alone to establish that the
line so drawn was agreed by or opposable to Britain. On the contrary
the Explanatory Memorandum, to which the final version of the

intemal Dutch map was attached, contradicts the argument which is
now drawn from it.

(2) TheDutch ExplanatoryMemorandum

9.10. The text of the Explanatory Memorandum, in a translation
provided by Malaysia, is set out in Annexes,vol. 4, annex MM51.
The Explanatory Memorandum briefly recounts the history of British

acquisitions of "the Northern part of Borneo which was not under our
authority". It notes that the Dutch Government felt unable to resist
the proclamation of a British protectorate over North Borneo in 1888

"because no rights of the Dutch have been assaulted and no
stipulations of the treaty have been violated and to broach again the
interpretation of the treaty of 1824would surely not yield any result".

It notes further that the Sulu grant of 1878 extended to the Sibuko
River, whereas the Dutch boundary "according to the contract made
with the sultan of Boelongan at the coast is formed by the Batoe
Tinagat and further inland by the Tawao river". Thus the boundary

dispute is described - with complete accuracy - in the Explanatory
Memorandum as concerning "the disputed area between the Tawao
and Siboekoe Rivers".

9.11. The following additional points should be made about the
Explanatory Memorandum:(a> It made no mention of Ligitan and Sipadan, or indeed, any
islands at al1further east than Sebatik.

(b) It described the dispute exclusively as a land boundary

dispute: i.e. "a border arrangement which she [SC. the Dutch
Government] had wished for the whole width of Borneo from the
Eastern to the Western Coast".

(CI It candidly admitted the weakness of the Dutch claim to the
disputed area:

"A local inspection carried out by the deputy assistant

resident of Koetei revealed that theBajaus who live on
the islands located at the North-Eastern coast of Borneo,
which belong to the sultanate of Solok, are still

continuously collecting forest products in the disputed
area without being concerned about the Sultan of

Boeloengan whatsoever. Because of this and also
because of the absence of any document about the
stipulation of the boundary between the sultanates of

Boeloengan and Solok, it was considered very difficult
indeed to determine the extent of the area of
Boeloengan."

And, referring to the differentines shown on the interna1Dutch map,
it went on to Saythat:

"If a comparison of these different lines appears to give

the impression that the Dutch have given up a part of its
territory, we should not forget that before there was a
dispute about the boundary, the Dutch Government has

never paid much attention to her tenitory at the Eastern
coast of Borneo which was unknown to her and
moreover totally uninhabited; that the rights of the

Sultan of Boelongan on the disputed area cannot be
called indisputable and finally that instead of a highly
uncertain boundary through a stretch of mostly

inaccessible land which was unknown, there is now
accepted a quite correctly described borderline which
makes an end to al1difficulties in the future, not only

concerning the part of Borneo which was connected with the border dispute but also concerning the whole
island."

(d) As to the part of the line relating to Sebatik, the
Memorandum said nothing at al1 about any supposed off-shore
allocation line:

"Therefore from this side there is the preference to have
the island which is totally uninhabited parted in two
with the parallel of 4" 10'as the boundary betweenthe

two parts; because of this partition the Dutch and the
British North Borneo Company would have that partof
the island which consists of the bank of the fairway

along which either of them has to reachthe coastal area
theypossess; this is fair and rational."

9.12. To summarise, not only is the Explanatory Memorandum
totally silenton any questionof an allocationline or off-shore islands;

it is clearly and expressly concerned only with issues of the
determination of a land boundary on Borneo and onSebatik ("the
boundarythrough the disputed areaatthe Eastern coast").

9.13. Following the tabling of the Explanatory Memorandum, a
cornmitteeof five Members of the Parliament wasasked to look into
the issue. As regards the agreed boundary line on Sebatik, the

cornmitteereport read:

"The division of the island of Sebatik met with
resewations by some members of the committee. They

feared that as a consequencenew border disputes would
arise. But this opinion was contradicted by other
members, who, taking the nature of the island into
consideration,didnotfearborder disputes andwereof the

opinion that it could be important to keepat least part of
Sebatik, which by its location controls the accessto the
rivermouthsbehindit."3

9.14. A further "Memorandumin Response", submittedby the two
Ministers on 20 February 1892; again indicated their view that the

3 Handelingender Staten-Generaal, TweedeKamer.Bijlagen.1891-1no.,
43,no.3,2 December1891,p.3. Translatiprovided.SeeAnnexes,vol.3,annex
MM52.
4 Annexes,vol. 3, annexMM53.function of the line across Sebatik was limited to the "division of the

island." Their specific comment on Article V of the Treaty is also
pertinent:

"During the above-mentioned survey conducted on the
east coast of Bomeo by Dutch and British marine
officers, the border points at Broershoek and on both

shores of the island of Sebittik were indicated on the
territory bymeans of poles."

9.15. On 8 March 1892 the Second Chamber of the Dutch

parliament approved the Convention. Instruments of ratification were
exchanged on 11May 1892.

(3) The Dutch Statuteimplementingthe1891Treaty

9.16. In this context, note may be taken of the language of the
Netherlands statute of 20 May 1892, in which the Treaty was

described as "defining the borders separating Dutch possessions on
the island of Bomeo and the British Protectorate States on the said
island". Clearly, there was no thought here of the boundary affecting

title to islands lying morethan 40 n.m. seawards to the east, which
had never been claimed by the Netherlands and regarding which no

dispute existed.

(4) Modification of the boundaries of Bulungan to conform
to the 1891Boundary Treaty

9.17. Following the ratification of the 1891 Treaty, the claimed
boundaries of the Sultanate of Bulungan were amended to bring them
into line with the Treaty. The new official description of the

boundaries was signed on 19June 1893by the Dutch Resident of the
South and East Division of Bomeo and certified by the [Dutch]
Govemment Secretary and the Secretary-General of the Ministry of

the colonies.' It specifically includes within the territories of
Bulungan:

"The Islands of Tarakan and Nanoekan and that portion
of the Island of Sebitik situated to the south of the above
boundary-line, described in the 'Indisch Staatsblad' of

1892, no.114, belong to Boeloengan, as well as the

5 Annexes, vol. 3, annMM 54. small islands belonging to the above islands, so far as
they are situated to the south of the boundary-line last

mentioned."

The last phrase, referringto "the small islands belongingto the above
islands", reflects the same words used in the earlier agreements of
1850 and 1878, which have been considered in paragraphs 7.4-7.5

above. Again there is no indication at al1of a Dutch view that the
1891 Treaty allocatedLigitan and Sipadan to the Netherlands Indies
or to the Sultanateof Bulungan.

C. Subsequent Agreements between the Parties: the 1915
Demarcation Convention

9.18. As foreseen in Article V of the 1891 Treaty, the Parties in

due course began the process of reaching "mutual agreement" on "the
exact positions of the boundary-line". At some date prior to
December 1914(probably in 1901); beacons werefixed by an Anglo-

Dutch Commission on the points where the parallel of 4" 10' N
latitude northmet theWestand east coast of Sebatik. But in 1910the
Netherlands Govemment indicated that it wished to proceed as soon
as feasible to the indication on the ground of the agreed border. The

procedure got under way in 1912and the Commissionof two Dutch
and two British representatives reported on 17 February 1913.~ They
stated in paragraph 3 that they had "determined the boundary - as

described in the Boundary Treaty", and they then proceeded to
describe the boundary in detail "as taking the following course".
Theybegan atthe easternend:

"Traversing the island of Sibetik, the frontier line

follows the parallel of 4" 10' north latitude, as already
fixed by Article 4 of the Boundary Treaty and marked
on the east and Westcoastsby boundarypillars."

From these words alone it is clear that the termination of the
boundary on the east coast of Sebatik had already been marked by
pillars, the location of which was not questioned. There is no
mention at al1of any seaward projection eastwardof the line across

6 See the Dutchletterof 7 April 1914:Annexes3,annex MM68.
7 See Annexes, vol.2, annex MM25.Sebatik. Such a thought evidently never entered the heads of the

Commissioners, and this is confirmed by the line drawn on the map
accompanying their Report, which they al1 signed without
re~ervation.~As can readily beseen,the boundaryline marked on the

map starts on the east coast of Sebatik and runs westwards. The line
in the sea eastward of Sebatik is no morethan the line marking4" 10'
N. It is identical in character with the other lines marking 10'

intervals.

9.19. On 6 May 1914the Netherlandsand British Commissioners
formally agreed as follows:

"In accordance with instructions received from Our
respective Governmentswe have taken as the boundary

the straight line between the granite pillars on the East
and West of Sebatik Island, which were erectedin 1901
by a Commission consisting of H.M. Macassar and

H.M.S. Waterwitch and upon that line we have erected
16concretepillars."9

If it were possible for any doubt to remain regarding the use of the

word "across the Island of Sebittik" in Article IV, it must be
completely put to rest by the words "we have taken as the boundary
the straight line between the granite pillarson the East and West of

Sebatik Island".

9.20. The Report of the Commissioners and the accompanying
map were formally confirmed by an Agreement between the

Netherlands and British Governments signedon 28 September 19 15,
which was published.10 Attached to that Agreement is a signed rnap
of Sebatik and the adjacent coastal areas to the West," which clearly

shows that the boundary line stopsat the east coast of Sebatik. This
is entirely consistent with the language of the 1891 Treaty and with
the proceedingsof the DemarcationCommission.

8
9 See Annexes, vol. 2, annex MM25.
10 See Annexes, vol. 2, annex MM26.
11 See Annexes, vol2,annexMM 27.
See Annexes, vol5,Map 23.D. Conclusion

9.21. According to Article 31 of the Vienna Convention on the

Law of Treaties, in the interpretation of a treaty:

(3) There shall be taken into account, together with
the context:

(a) any subsequent agreement between the parties

regarding the interpretation of the treaty or the
application of its provisions;

(b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties
regarding its interpretation..

It is clear from Article 31 (3) that the only subsequent material which
can be taken into account in the interpretation of a treaty is that which
evidences an agreement between the parties as to the interpretation of

the treaty. Indeed such an agreement may be authoritative. On the
other hand purely unilateral or internal practice by one party to a
treaty is not opposable to the other party and may not be used to

support an interpretation adverse to that party, a fortiori if that
material cornes into existence after the conclusion of the treaty.

9.22. Thus, the 191 5 Demarcation Agreement is certainly relevant

in the interpretation of the 1891 Boundary Treaty and, as seen above,
it definitively confirms the conclusion that the 1891 Treaty did not

establish any allocation line in the seas to the east of Sebatik. By
contrast the internal documents and discussions within the Dutch
Government and Parliament do not have the same status. They were
not agreed documents. They do not constitute part of the travaux of

the 1891 Treaty. They were produced after the Treaty had been
concluded. In accordance with Article 31 (3) of the Vienna
Convention, they may not be referred to in the interpretation of that

Treaty.

9.23. Thus, even if the intemal Dutch documents and the internal
Dutch map established clearly that the Dutch Government thought

that the 1891 Treaty had established an allocation line 50 n.m. to the
east of Sebatik, the documents and map would not be admissible to
establish the interpretation of Article IV of the Convention in thatsense. Strictly speaking, they are legally irrelevant to the present
dispute.

9.24. But in fact (and for whatever the fact may be worth), the

interna1 documentation establishes that the Dutch Government and
Parliament were under no such rnisapprehension. On the contrary it
is clear from the materials that, like the British Govemment, they

were concemed only with the settlement of a land boundary dispute
concerning "the disputed area between the Tawao and Siboekoe
Rivers". It is that dispute which the 1891 Boundary Treaty settled,

leaving to British North Borneo al1areas to the north and east, and al1
off-shore islands except for the southem part of Sebatik and its
immediately adjacent small islands. That is the beginning, and the

end, of the story. PARTFOUR

Chapter 10

THEMAP EVIDENCESUPPORTSMALAYSIA'S
SOVEREIGNTY

A. General Principles

10.1. Malaysia now turns to examine the maps and charts pertinent

to the case. In this connection the following observations of this
Court in the Frontier Dispute (BurkinaFaso/Mali) Case are relevant:

"...maps merely constitute information which varies in

accuracy from case to case; of themselves and by virtue
solely of their existence, they cannot constitute a

territorial title that is a document endorsed by
international law with intrinsic legal force for the
purpose of establishing territorial right... Except in

this clearly defined case [where maps are annexed to an
official text of which they form an integral part] maps
are only extrinsic evidence of varying reliability or

unreliability which may be used, along with other
evidence of a circumstantial kind, to establish or
reconstitute the real facts."'

10.2. Two maps have already been considered in detail. The first
is the interna1 Dutch rnap of 1891, so heavily relied upon by

Indonesia. As has been demonstrated in Chapter 9, there is nothing in
this rnap that supports the Indonesian argument that this rnap shows
that the words "eastwards across the island ofSebatik" mean that the

boundary projects seaward for approximately 50 nautical miles.

10.3. The second rnap is that attached to the 1913 Boundary
Commission Report, approved and accepted as binding by both the

Netherlands and British in the 1915 ~~reement.~ This rnap illustrates
1
2 ICJReports 1986, at p. 582.
See above, paragraphs 9.18-9.20, and for the rnap annexed to the 1915
Agreement see Annexes, v5,.Map 23.the text of the Report and shows that the Commissioners were agreed
that the eastern terminus of the boundary was the point on the east
coast of Sebatik Island where it is met by the line 4" 1N. This map

clearly was legally binding on the predecessors in title of Indonesia
and Malaysia. It is binding on both the present parties.

10.4. The position thus shown on the 1913 Report map is fully
reflected in a series of other maps which show either or both of the
following two features:

(a) that the boundary line does not extend into the sea east of
Sebatik (hereinafter called "Feature (a)");

that Ligitan and Sipadan are both regarded as being British
(b)
or Malaysian islands (hereinafter called "Feature (b)").

10.5. These maps can most conveniently be presented in two

groups: first, a number of British Admiralty charts; secondly, other
maps.

B. British AdmiraltyCharts

10.6. On each of the following British Admiralty charts, the

boundary is marked running from the West to the east coast of
Sebatik. The boundary is not projected eastwards into the sea. The
dates of the charts are set out below against their numbers, and the

earlier editions have been checked to see when they were first
marked. It is evident that the British understanding of the situation

has been public since an early date and has elicited no adverse
reactions from the Netherlands or Indonesia.

(9 British Admiralty chart No. 1681, "Northem Shore of
Sibuko Bay" (first drawn 1891-92 and corrected many times between
1920 and 1963).~ This shows Ligitan and Sipadan, but does not
extend westwards to show Sebatik. However, it comes close to

Sebatik (118" 5' 55" E) and shows no seaward projection of the
boundary eastwards from the island, let alone one which could
suggest that Ligitan orSipadan belonged to the Netherlands Indies or

Indonesia (Feature (a)).

3
See Annexes,vol. 5, Map8.(ii) British Admiralty chart No. 2576, "Sulu Archipelago and the
North East Coast of Borneo from British Admiralty Surveys to 1892,

from United States Government Charts to 1934, from Netherlands
Govemment Charts to 1936".~ This shows Sebatik Island with the

boundary drawn across it from the West to the east coast, but not
projectingeastwardsinto the sea (Feature (a)).

(iii) British Admiralty chart No. 2660B, "China Sea - Southern
Portion" (first drawn in l88l).' New editions were published in
1882, 1900, 1901, and at intervals until 1954. This shows the

boundary clearly drawn on the main Borneo tenitory and also drawn
on Sebatik, but only between the west and east coast. There is no

extensioninto the sea eastwards of Sebatik (Feature (a)).

(iv) British Admiralty chart No. 1852, first published in 1960,

shows the same pattern (Feature (a)).6

C. OTHER MAPS

10.7. In June 1891 a plan was drawn up in the British

Hydrographic Office "shewing the result of the determination of
parallel of 4" 10'N. on East Coast Borneo, and examination of rivers

in vicinity, June 1891 - Black from preliminary surveys by British
officers, red from Dutch ch art^" .^he 4" 10'N line is shown on the
rnap as a parallel, but there is no indicationthat it is a boundary.

10.8. In 1906 the Company published a rnap of British North
Borneo on a scale of 1:633,600 (10 miles to the inch). It was

available for public purchase at Stanfords, the well-known rnap
publishers and sellers in London, for 2s.16d. The rnap shows clearly
the boundary between Elphinstone Province of British North Borneo

and Dutch tenitory passing across Sebatik Island but not extending
east of it (Feature (a)). The rnap bore an indication that it had been

compiled from British Admiralty charts and from surveys and
explorations of various named persons. A copy of this rnap was used

for thepurposes of the 1907 Exchange of ~otes,* and its significance

4 See Annexes,vol.5,Map9.
5 See Annexes,vol.5,Map 10.
6 See Annexes, vol5,Map Il.
7 See Annexes,vol.5,Map 12.
8 See Annexes,vol.5,Map 6.is the greater for carrying the endorsement: "This is the rnap
mentioned in the third term of the agreement respecting the

administration of certain islands on the East Coast of Borneo by the
British North Borneo Company, effected by exchange of notes on

July 3, 1907", and signed by th: relevant officiais. The endorsement
shows that the rnap had been seen by and acted on by both the British

and United States Govemments.

10.9. In 1913 the Netherlands Indies Govemment Topographical

Office published the first officia1rnap (ona scale of 1:750,000) of the
Southern and Eastem Division of Borneo. This shows clearly both that
the boundary drawn by the 1891 Treaty stops at the east Coast of

Sebatik (Feature(a)), and that that the groupof islands (Sipadan, Mabul
(Maboel), Kapalai, Ligitan, Danawan and Si Ami1 (Siamil)) appertain

to the "~ouv' van Britisch Noord-Borneo" (Feature (b)). The relevant
portion of that rnap is reproduced at page 6 above.9 '

10.10. On a rnap issued by the Survey Department at Jesselton in
September 1935entitled "Plan of Semporna,District of Lahad Datu",

both Ligitan and Sipadan appear specifically marked towards the
south-eastern limit of the rnap with the words "Bird Sanctuary"

attached to Sipadan (Feature (b)).1° These words reflect the
application to the island of the terms of section 28 of the Colony of
North Borneo Land Ordinance 1930, which has been described in

paragraph 6.24 above.

North Borneo G.S.G.S. No 4311 - 1941, Map of North
10.11.
Borneo, shows the East Coast ~esidenc~," on a scale 8 miles to an
inch. It was first published in 1941, bearing on its face the rubric

"Drawn and reproduced from printed copy of North Bomeo G.S.G.S.
No. 4311 (dated 1941), by L.H.Q. Cartographic Co. Aust. Survey

Corps. Oct. 44". The rnap is particularly interesting as demonstrating
a clear understanding that Sipadan was part of the State of North

Bomeo (Feature (b)) and a deliberate intention to include it, since the
island appears just beyond the bottom line of the framework of the
map. The same rnap also shows quite clearly that the international

boundary between North Bomeo and Netherlands territory along the

9 See Schetskaartvande ResidentieZuider-en Oosterafdeeling vanBomeo,
Topogafische InrichtinBatavia,1913:Annexes,vol.5, Map 1.
1O See Annexes, vol5, Map 13.
Il See Annexes, vol5, Map 14.parallel of 4" 10' N extends no further east than the east coast of

Sebatik (Feature (a)).

10.12. In 1964 the Director of National Mapping (Malaysia)

produced a pair of maps, headed respectively "Pulau Sebatik" and
"Tawau", showing the west and east coasts of Sebatik. The boundary

clearly stops at the east coast (Feature (a)).12

10.13. The same presentation appears on a slightly larger scale rnap
(6 miles to the inch) of "The Colony of North Borneo". This is

described as "Revised 1947 map": it is dated 1952 and contains the
statements "Compiled and drawn by the Survey Department,

Jesselton, Colony of North Borneo" and "Printed by the Survey Dept.
Federation of Malaya No. 71 - 1953" (Feature (a))."

10.14. A rnap of the Lahad Datu Police District drawn in 1958on a
scale of 3 miles to the inch shows the south-eastem trending western

boundary of the Police ~istrict.'~ Among the names of the islands in
the district are those of Ligitan and Sipadan. The rnap bears the
inscription "Compiled from various sources and drawn by S.M. Ross,

Lahad Datu, 1958" (Feature (b)).

10.15. In 1979 the Directorate of National Mapping of Malaysia
published a rnap of Malaysia's continental shelf boundaries inwhich
both Ligitan and Sipadan are drawn as lying well within the limits of

the Malaysian area (Feature (b)).15

10.16. Correspondingly, an Indonesian map, published in 1960 on a

scale of 1:14,250,000, shows the baselines of the Indonesian
archipelago in the 12-mile territorial sea constructed thereon.16 The

basepoint for the baseline at the northern extremity of Kalimantan is
the eastern end of Sebatik. If at the time the rnap was drawn
Indonesia had considered that Sipadan was Indonesian territory, the

base point chosen in this region would undoubtedly have been
Sipadan, thus extending Indonesia's claims some 40 miles seaward

into what are otherwise Malaysian waters (Feature (b)).

12
Ref. SeriesT735, sheets41117/15 and41117/16, edition3, GSGS:
Annexes,vol. 5, Maps 15, 16.
13 See Annexes,vol. 5, Map 17.
14 See Annexes,vol. 5, Map 18.
15 See Annexes,vol. 5, Map 19.
16 See Annexes,vol.5, Map7.10.17. As is not unusual with rnap evidence, the maps are not
completely consistent. There are two Malaysian maps and one British

rnap which represent the situation differently. A rnap produced by the
National Mapping of Malaysia in 1967 shows a so-called Malaysian-
Indonesian boundary with Sipadan, but not Ligitan, lying to the south

of it.I7 A further rnap published by Malaysia in 1972'~and one
published by the British Govemment in 1978'~also show a so-called

Indonesian-Malaysian maritime boundary with Ligitan lying on the
Malaysian side. Neither rnap actually shows Sipadan, but the

"maritime boundary" would apparently place Sipadan on the
Indonesian side. However any significance this might conceivably
have (and since Sipadan is not even shown on the maps that

significance would be minimal) is excluded entirely by the fact that,
in one form or another, each rnap carries a disclaimer. The Malaysian

charts carry the words: "This rnap is not an authority for international
boundaries". The British rnap was an operational navigational chart

and carries the words: "Charts produced under the direction of the
Director of Military Survey are not to be taken as necessarily

representing the view of the UK Govemment on boundaries or
political status".

10.18. The legal effect of a disclaimer has been described by a
leading authority in the following terms:

"The disclaimer will have the particular effect of
avoiding any assertion that the govemment publishing
the rnap has become bound to accept the alignments by

the virtue of legal concepts of estoppel, admission,
acquiescenceor re~ognition."~~

10.19. A more recent author has added the view that "a disclaimer
is an excellent waming to those consulting the rnap that certain issues

are uncertain or that they do not faIl within the scope of the map".21

17 See Annexes, vol.5, Map20.
18 See Annexes,vol.5, Map 21.
19
20 See Annexes, vol.5, Map 22.
21 1.Brownlie,African Boundaries(London, 1979),p. 5.
Akweenda,"The Legal Significanceof MapsinBoundaryQuestions,"60
British Yearbookof InternatioLaw205 at p. 211(1989).D. Conclusionsin Relation to theMap Evidence

10.20. In Malaysia's submission, the material presented in the

preceding chapters demonstrates fully and cogently that the 1891
Treaty did not have the effect of placing Ligitan and Sipadan under
the sovereignty of Indonesia. Malaysia's position is that its title to the

islands, derived from a series of transactions with Sulu, Spain and the
United States dating from 1878to 1930, is strongly supported by the
facts of use and administration of the islands by North Borneo,

Britain and Malaysia for more than a century, without any competing
activity by the Netherlands or Indonesia. That position remains
unaffected in any degree by the 1891 Treaty. It is supported by the

preponderance of map evidence, as reviewed in this Chapter. SUBMISSIONS

In the light of the considerations set out above, Malaysia respectfully
requests the Court to adjudge and declare that sovereignty over Pulau
Ligitan and Pulauipadan belongs to Malaysia.

Agent of Malaysia

Kuala Lumpur

2 November 1999 LISTOFANNEXES

Annexes, Volume2

Treaties, Agreements, Grantsand Other Instruments

No.

Treaty between SpainandSulu, September 23,1836.

Additional Capitulations between Spain and the Sultan of
Jolo, August 27, 1850.

Contract between the Netherlands and the Sultan of
Boeloengan,November 12, 1850.

Renewed Act of Submission between Jolo and Spain, April
19, 1851.

The Protocol of Sulu of 1877 between Spain, Germany and
GreatBritain, May 30, 1877.

Grant by Sultan of Brunei of Territory comprising Gaya Bay
and Sepanggar,December29, 1877.

Grant by Sultan of Brunei of Territories from Paitan to
Sibuku River,December29,1877.

Grant by Sultan ofBrunei of Territories from the Sulaman
River to the RiverPaitan,December29,1877.

Grant by Sultan of Sulu of Territories and Lands on the

Mainland of the Islandof Borneo, January 22, 1878.

Commission from Sultan of Sulu appointing Baron De
Overbeck, Dato' Bendahara and Rajah of Sandakan, January
22, 1878.Contract of Vassalage betweenthe Netherlands andthe Sultan
of Boeloengan,June 2, 1878.

Protocol between Spain and Sulu confirming the Bases of
Peace andCapitulation,July 22, 1878.

Granting of Royal Charter to the British North Borneo
Company,August 26, 1881.

Charter of Incorporation of the British North Borneo
Company,November 1,188 1.

Protocol between Britain, Germany and Spain, March 7,
1885.

Agreement between Her Majesty's Government and the

British North BorneoCompany, May 12, 1888.

Convention between Great Britain and the Netherlands
Defining the Boundaries in Borneo,June 20, 1891.

Agreement between Britain, Germany and Spain, March 30,
1897.

Treaty of Peace (Treaty of Paris) between Spain and the
United States, December 10, 1898.

Agreement between the United States and the Sultan of Sulu,
August 20, 1899.

Treaty between the United States and Spain, November 7,

1900.

confirmation by the Sultan of Sulu of Cession of Certain
Islands, April22, 1903.

Exchange of Notes Concerningthe Administration andLease
of Certain Small Islands on the North Bomeo Coast by the
British Govemment,July 3, 1907.Exchange of Notes conceming the Administration and Lease

of Certain Small Islands on the North Borneo Coast by the
US Government, July 10, 1907.

Boundary Delimitation between the Netherland Possessions
andthe State of British NorthBomeo, February 17, 1913.

SebatikBoundary Survey,May 6,1914.

Agreement betweenthe United Kingdom and the Netherlands
relating to the Boundary between the State Of North Borneo
and the Netherland Possessions in Bomeo, September 28,
1915.

Convention between His Majesty in respect of the United
Kingdom and Her Majesty the Queen of the Netherlands

respectingthe Delimitation of the Frontier between the States
in Bomeo under British Protection andNetherlands Territory
in that Island, March26, 1928.

Convention between Great Britain and the United States
regarding the Boundary between the Philippines and North
Bomeo,January2,1930.

Agreement for the Transfer of the Bomeo Sovereign Rights
and Assets from the British North Bomeo Company to the
Crown,June 26, 1946.

AgreementRelatingto Malaysia,July 9, 1963.

Agreement between the Govemment of Malaysia and the
Government of the Republic of Indonesia relating to the

Delimitation of the Continental Shelves between the Two
Countries,October27, 1969.

Special Agreement for Subrnissionto the International Court
of Justice of the Dispute between Indonesia and Malaysia
Concerning Sovereignty over Pulau Ligitan and Pulau
Sipadan,May 31, 1997. Annexes, Volume 3

Diplornatic andOther Documents

No.

James Hunt, 'Some Particulars Relating to Sulo', in The

Archipelago of Felicia (837).

Letter from Acting Consul-GeneralTreacherto the Earl of Derby,
January 2, 1878.

Letter from Acting Consul-GeneralTreacher to theEarl of Derby,

January 22, 1878.

Letter from The Marquisof Salisbury to Mr. West, October1,
1878.

Letter from Stuart, British Ambassador to the Netherlands to
Marquis of Salisbury, October24, 1879.

Extract from Memorandum of Transfer, Resident Meijer of the
Southern andEastern Divisionof Borneo, March 2, 1880.

Extract from Answer of the Colonial Minister to Inquiries made
by the Comrnittee of the Second Chamber in their Preliminary
Report on the Netherlands IndianBudget for 1880.

Letter from Count de Bylandtto Earl Granville, April8, 1881.

Summary ofDebate in the SecondChamberof the Netherlands
parliament, 6December, 1881.Further Memorandumby Sir.E. Hertslet onthe Disputed

Boundarybetweenthe North Company andthe Dutch
Possessionsor,the North-East Coast of that Island, January 9,
1889.

First Meetingof the Joint British-Dutch NegotiatingCommission,
July 16, 1889.

SecondMeeting of the Joint British-DutchNegotiating
Commission,July 19, 1889.

Third Meetingof the Joint British-DutchNegotiating
Commission,July 27, 1889.

Extract from Letterfrom Countde Bylandtto Mr. Hartsen,

Minister of Foreign Affairsof Netherlands, July28, 1889.

Letter fromBritish North Borneo Company toForeign Office,
July 22, 1890.

Letter from the British Foreign Officeto the DutchGovernment,
August 13, 1890.

Letter from Count de Bylandtto Lord Salisbury,Febmary 2,
1891.

ExplanatoryMemorandum No.3 of the DutchGovemment
submitted to the Dutch Parliament accompanying the 1891
Convention,on July 25, 1891.

Report of Dutch Parliamentary Committee to study the
govemment proposa1 to ratify the 1891 Boundary Agreement,
December2, 1891.

Memorandum in Response dated 20 February 1892, Ratification
of the Agreement concluded between the Netherlands and the
Great BritaintIreland on 20 June, 1891 and Defining the
Boundaries between the Dutch Possessions on the Island of
Borneo and the British Protectorate States on the said Island,

February 20,1892.Descriptionof the Boundariesof the Territory of Boeloengan and
List of the IslandsBelongingThereto SignedBetween Mohamad
Mimoedin Pangeran MangkoeDatoe Sahoedin and the Resident
of the Southem and Eastem Division of Borneo, June 19, 1893.

Letterfrom John Hay,US Secretaryof State to the Secretary of

The Navy,April 3,1903.

Letterfrom E.H. Barraut,Resident of East Coast of North
Borneoto LieutenantFrancis Boughter,June 24, 1903.

Telegramfrom E.H. Barrautto Govemor, June 24, 1903.

Letterfrom E.W. Birch tothe Chairmanof the British North
Bomeo Company,June 25, 1903.

Letterfrom the Chairman of the BritishNorth Borneo Company
to theForeign Office,July 13, 1903.

Cablegramto the US Secretaryof the Navy Regarding
Proclamationof Sovereigntyover CertainIslands off the Coast of

Bomeo, July 24, 1903.

Cablegramfrom Stirlingto the US Secretaryof the Navy
RegardingProclamationof Sovereigntyover Additional Islands,
August 1,1903.

HydrographicOfficeNote, August 8, 1903.

Reporton the Islands under the Sovereigntyof the United States
lyingoff the Coasts of British North Bomeo recently visited by
theU.S.S Quirosby LieutenantFrancisBoughter, November 10,
1903.

HMS Macasser Report,November 26, 1903.

Letterfrom John Hay to the British Ambassador,December 10,
1904. Annexes,Volume4

DocumentaryEvidence ofNorthBorneo,British andMalaysian
Administration oftheIslands

No.

Statement of Nakoda Gomba, the Sultan's Agent on the East

Coast of Borneo,July 12, 1875.

Letter from Acting Consul-General Hugh Low to the Earl of
Derby, July 15, 1875.

Protest of Chiefs of Sandakan against Spanish Occupation,

September7, 1878.

Telegram from Acting Consul-General Treacher to the Marquis
of Salisbury,September24, 1878.

Despatch by Lieutenant C.K. Hope, Commander of H.M.S

Zephyr in Relation to an action taken against Omadal, June 28,
1886.

British NorthBorneo Herald,July 1, 1886,pp. 121 -122.

BritishNorthBorneo Herald,June 1, 1887,pp. 119 -121.

BritishNorthBorneo Herald,May 1, 1892,p. 137.

BritishNorthBomeo Herald,September 1, 1892, p.285.

BritishNorthBorneo Herald,November 1, 1892,p.378.

BritishNorthBomeo Herald,April 16, 1896,p. 133.

Boats and Fisheries Proclamation 1901 (Proclamation XVIII of
1901 ).British North Borneo Herald, February 2, 1903,pp. 31-33.

British North Bomeo Herald,March 16, 1909,p. 63.

Chart Containing the Names of Indigenous Leaders of the East

Coast of North Borneo taken from J.F. Warren, The North
Bomeo Chartered Company'sAdministrationof the Baja y 1878
-1909.

Letter from the Assistant District Officer of Semporna to the
Resident of East Coast June 26, 1910.

Note from the Resident of East Coast to Assistant District Officer
of Sempoma, July 21, 1910.

Proclamation XXX,December21, 1914.

Letter from the Acting Resident of East Coast to the Govemment

Secretary, January 26, 1916.

Minute to Resident of East Coast, May3, 1916.

Surat Katrangan issued by G.C. Irving, Acting Resident of the
East Coast, May 6, 1916.

Turtle Preservation Ordinance,June 1, 1917.

Agreement executed between Panglima Abu Sari and
Descendants of Maharaja Mahmud, approved by G.C. Irving on
August 29, 1918.

Commercial Sea Products from the Coast of British North

Bomeo, 1922.

Letter from the Conservator of Forests, Sandakanto the Secretary
of North Bomeo, December 19, 1932.

Government Notification No. 69 issued under Section 28 of the
Land Ordinance 1930, February 1, 1933.Licence issuedby the District Officerof Tawau to take Turtle
under Section 2 of the Turtle Preservation Ordinance 1917,
Apri128, 1954.

Letter from the District Officer of Lahad Datu to the District
Officerof Tawau, August27, 1954.

Letter from the District Officer of Tawau to the General
Manager ofBomeo Abaca Ltd, September 1, 1954.

Extension of the 6 May 1916 Letter signed by O.K.K.
PanglimaAbdullahbin Panglima Uddang, July5, 1957.

Letter from the Assistant District,Officer of Sempoma to the
District Officerof Lahad Datu October20, 1958.

Act No. 4 concerning Indonesian Waters promulgatedby the
President of the Republic of Indonesia,ebniary 18, 1960.

ColonyofNorth Borneo AnnualReport 1960.

Letter from Assistant District Officer of Semporna to the

Residentof Tawau, October 25, 1961.

Colony ofNorth Borneo AnnualReport 1961.

Notice to Mariners No. 9 of 1962 issued by the Director of
Marine, July 10, 1962.

Letter from the Resident of Tawau to the District Officer of
Sempoma, December 22, 1962.

Notice toMariners No. 6 of 1963, issued by the Director of
Marine,July 17, 1963.

Chart of the Concession Block Granted to JAPEX by the
Governmentof Indonesia, January 19, 1967.

Letter from J. Walls to Director of Land and Surveys, Kota
Kinabalu, August 2, 1973.Affidavit of Panglima Imam Malang bin Panglima Imam
Jamlang,January 23, 1975.

Affidavit Of Tilara@ Haji Abdul Majid bin Panglima Abu
Sari,January 23,1975.

Affidavit of Panglima Nujum bin Panglima Abu Sari, January
24, 1975.

AffidavitofMaharaja Alukan binKaneh, January 24, 1975.

Affidavit of Datuk Panglima Abdullah BinPanglima Uddang,
January 25,1975.

Administrative Divisions Proclamation, 1982, Government
Notificationof SabahNo. 7 of 1982.

SabahHigh Court Judgrnent, April28, 1995.

ProtectedAreas Order 1997 Annexes, Volume5

Maps

No.

Map (on a scale of 1:750,000)of the Southem and
EasternDivisionofBomeo (1913)

InternalDutch Map(1891)
Versteeg Map (General Atlas of the Netherlands

Indies)(1849)
PlacesNamedin Sulu Grantof 1878 & Confirmation

of 1903
Chart of the Northern Shore of Sibuko Bay, US

Hydrographic Office(1903)
Map of BritishNorthBomeo (1906), attachedto 1907

ExchangeofNotes
Map annexedto IndonesianAct No. 4 of 18 February

1960
British Admiraltyhart No. 1681 (1893, as corrected

to 1972)
BritishAdrniraltyChartNo.2576 (1882)

BritishAdmiraltyChartNo.2660B(1881)
BritishdmiraltyChartNo. 1852(1960)

Plan Showing the Result of the Determination of
Parallel of 4" IO7N on East Coast Borneo and

Examination of Rivers in Vicinity (British
HydrographicOffice,June 1891)

Plan of Semporna,DistrictofLahadDatu(1935)
Map ofthe StateofNorthBorneo (1941)
TawauSenes T735Sheet41117/16(1964)

Pulau SebatikSenes T735Sheet41117115(1970)
Map oftheColonyofNorthBorneo(1952)Map of LahadDatu Police District (1958)
Map ShowingTerritorial Waters and Continental Shelf

Boundaries of Malaysia Sheet2 (1979)
Map of Sempoma (1967)

Map of MalaysiaTimur Sabah (1972)
Operational Navigation Chart L-11 1978 (Military

Survey,United Kingdom, 1978)
Map Accompanying the 1915 Agreement between the

United Kingdom and the Netherlands relating to the
Boundary between the State of North Bomeo and the

Netherlands Possessions in Bomeo
Chart No. 4720 published by the United States Coast

and GeodeticSurvey and attachedto the 1930Treaty
Chart No. 4707 published by the United States Coast

and Geodetic Survey and attachedto the 1930Treaty