Reply of Malaysia

INTERNATIONALCOURTOFJUSTICE

CASE CONCERNINGSOVEREIGNTYOVER

PULAULIGITANANDPULAUSIPADAN

REPLYOF

MALAYSIA

2 MARCH2001 TABLEOF CONTENTS

Parasauh numbers

Chapterl Introduction

Malaysia's Casefor Sovereigntyover the Islands
Indonesia'sCasefor Sovereigntyover the Islands

The Two Cases Compared
Structure of this Reply

Chapter 2 Malaysia'sCaseas Establishedby theEvidence

Overview
Concordanceof the Evidence supporting

Malaysia's Case
Conclusion

Chapter 3 LigitanandSipadandid not Belong toBulungan

Introduction 3.1
Bulungan wasa SmallLand-basedSultanate 3.2 - 3.4
The Dutch Contractswith Bulungandid not

Extend to Ligitanand Sipadan 3.5 - 3.9
Ligitan andSipadanwere never in disputebetween
the Netherlandsand Great Britain 3.10 - 3.17
3.18 - 3.19
No Map includesLigitan and SipadanwithinBulungan
OccasionalDutch Activities inthe Area didnot Involve
Exercises of Jurisdiction or Claims to the Islands 3.20 - 3.31
Conclusion 3.32 - 3.33

Chapter4 No Titleto theIslandscanbe basedon the 1891Boundary
Convention

The 1891 BoundaryConventionaddressesthe
Land Boundary inBorneo Exclusively 4.1- 4.6
No Maritime Boundary wasconsideredat the time
by the Parties 4.7- 4.21

No AllocationLine was drawnby the 1891
BoundaryConvention 4.22 - 4.33 D. The Interna1Dutch Map was not "Officially
Communicated" to the British Governmentnor
"Promulgated" by the Dutch Authorities: itwas

not an Agreement oran Instrument "acceptedby
the otherparty and related to the treaty"
E. Subsequent Conduct, Practiceand Agreements
confirm that the 1891Boundary Convention did not

address the Issuesof Maritime Delimitationand
Allocation of Distant Islands
F. Conclusion

PossessionandAdministrationof the Islands post-1891
Chapter5

A. TheTwo Strands of Malaysia's Case
B. The Facts relatingto Administration of the Islands

(1) Effectivo iféritainMalaysia
(2) Absence of Dutch and Indonesianeffectivités
Post-1969activitiesof the Parties
(3)
(4) The map evidence
The Legal Significanceof Long-extendedBritish
C.
and Malaysian Conduct
D. Conclusion

Submissions

List of Annexes Tableof Inserts

Insert Description Page

1, North Borneo Coast, Sulu Archipelago, 1878Sulu Grant
and Territorial Dispute with theNetherlands Opposite 7

2. Sketch Map No. 2 from G. Irwin,Nineteenth-CenturyBorneo.
A Study inDiplornaticRivalry,The Hague, 1955 24

3. Ethnical Map of Borneo ("Volkenkaart van Borneo ")by R.E.
Kaltofen, 1917.Scale 1:2.500.000. On file withRoyal Tropical
Institute, Amsterdam, ISN 5996 26

4. Small Islands belongingto Tarakan,Nunukan and Sebatik 28

5. Sketch Map of East Borneo. Bulungan. Scale 1:750.000.1930.
("Schetskaartvan OostBorneo.Boeloengan.Schaal1:750.00OY').
On file with Royal Tropical Institute, Amsterdam,ISN 6041 34

6. Boundary Lines referred to in letter CommanderNaval Forces,
9 August 1922 48

7. Map attached to the 1915Agreement (Extracts) 59

8. One of the maps annexed to the Convention of 26 June 1887
between China and France 61

9. 1916Gazette Map belongingto the 1915Agreement 63

10. Base Points 36, 36a, 36b, 37,38 and 39 of the IndonesianBaselines 80 Chapter 1

Introduction

1.1. This Reply is filed in accordancewith the order of the Court of
19 October 2000. It summarises Malaysia's case, and responds to the
arguments madeby Indonesiain its Counter-Memorial.

1.2. It is useful to begin with a brief summary and comparison of
the argumentsof the two parties.

A. Malaysia'sCasefor Sovereigntyover the Islands

1.3. Malaysia's sovereignty over the islands is clear and well
established. It follows from the following propositions, which- as will be
shown in detail in the following Chapters- Malaysia has demonstrated with
full referenceto the availableevidence.

(1) Like other islands off the east Coastof Borneo (Danawan, Si
Amil, Omadal, Mabul... ),Sipadan and Ligitan were part of the

dominions of the Sultanate of Sulu in the nineteenth century;
the people of these islandsowed allegianceto the Sultan, which
allegiance they transferredto the BNBC from 1878.

(2) After 1878the BNBC administeredthe two islands, along with
the rest of the Ligitan Group, even though they fell outside the
scopeof the Sulu grantof 1878.

(3) The BNBC's administration of the offshore islands was not
challenged by Spain or by the Netherlands. In particular, the
Netherlands specifically disclaimed any title to territory or
islands east of Batu Tinagat, in the negotiations for the 1891

BoundaryConvention and subsequently.
The BNBC's administration was recognised as a fact by the
(4)
United States when the USS Quiros claimed title to the islands
in 1903,and it was regularised asa continuing right of BNBC
administrationby the Exchangeof Notes of 1907. The BNBC's right of administration was converted into a full
(5)
right of British sovereignty as a result of the British-United
StatesTreaty of 1930.

(6) Malaysia succeededto British sovereignty overthe islands, and
its sovereignty continues uninterruptedto the present day. The
exercise of that sovereignty has taken a variety of forms,

including nature conservation, regulation of natural resources
and tourism, security and policing, and the construction and
maintenanceof lighthouses.

B. Indonesia's Casefor Sovereignty over the Islands

1.4. By contrast, Indonesia's case for sovereignty over the islands
depends on three propositions, each of which it has to establish in order to

succeed. These are:

(1) First, that the islands were part of the Sultanate of Bulungan
under Dutch sovereignty.

(2) Secondly, that theislands were allocated to the Netherlands by
the 1891 Boundary Convention, which according to Indonesia
"confirmed Dutch sovereignty overthe islands". '

(3) Thirdly, that that sovereignty subsists, despite the fact that the
BNBC, Britain and then Malaysia have continuously

administered the two islands since 1891, without the slightest
protest from the Netherlandsor (until 1969)from Indonesia.

If Indonesia fails to establish any one of these three propositions, its case fails
altogether. In fact it has failed to establish a single one of them. Its three-

legged case fails on each leg.

There is no evidencewhateverthat the two islands werepart ofBulungan

1.5. Indonesia repeatedly refers to a "presumption" that the two
islands were part of ~ulungan.~ There is no basis for such an argument.
Indonesia has to prove its case and it cannot rely on any self-proclaimed
"presumption". If any presumption is applicable here, it is thepresumption in

favour of long possession: quieta non movere. That presumption favours
Malaysia, not Indonesia.

2 IC-M,vol.1,p.42, para3.86.
IC-M,vol. 1,p.40, para. 2.2, p.5,3.81.1.6. Leaving presumptions to one side, there is no factual basis for
the assertion that the territory of Bulungan ever extended to the islands. As
shown in Malaysia's pleadings:

(1) No Dutch map ever depicted the islands as part of Bulungan.

(2) They were notincluded in the officia1Dutch descriptions of the
territory of Bulungan or in the Dutch contracts with Bulungan

of 1850, 1878and 1893.

(3) There is no evidence that the Sultan of Bulungan ever exercised
any jurisdiction over the two islands or any others in the
vicinity.

(4) The Dutch claim to territory in the period 1879-1891 was

expressly limited to territory to the Westof Batu Tinagat and
did not extend to any land or islandseastwardsof that point.

1.7. Indonesia's Counter-Memorialdoes not improve its case. No
new document is annexed showing any administrativeactivity by Bulungan or
the Netherlands over the two islands or any others nearby. No new map is

produced which showsthe two islands and attributesthem to the Netherlands.
Indonesia's sole evidenceof sovereigntyis the record of a few instances where
Dutch naval vesselssailedpast the islands, ormentionedthem in a neutral way

in dispatches. A State cannot establish sovereignty over islands (let alone
displace an existing, long-standing administration) without any evidence. A
State party to a Special Agreement before the Court cannot rely on a mere

presumption. It has to prove its case. Indonesia fails completelyto do so.'

There is no evidence that the islands were attributed to the Netherlands in
1891

1.8. There is no evidence of any kind that the islands were
recognised as Dutch territory by the Boundary Convention of 1891. That
Convention concernedno territory or islands to the east of Sebatik. As shown

inMalaysia's pleadings:

3 Indonesia attempts to bolster its case by adducing a self-serving declaration made by
"the present pretender to the Sultanate of Su30"April1997:IC-M, vol2, Annex 3.
Even if the declarant was "one of the claimants to the North Borneo Territory" (which he is
not), what probative value could possibly be attached to his mere assertions, made from the
Philippines, unsupported even by the pretence that he had sought to acquaint himself with the
underlying facts or by any trace of evidence? That Indonesia hast necessary to resort to
evidence of such poor quality is indicative of the weakness of its case. (1) The 1891 Convention was intended to resolve a dispute over
the land boundary "in Borneo". On the east coast, the only area

in dispute was that betweenBatu Tinagat and the Sibuko River,
including the inshore island of Sebatik.

(2) There was no intention to create an allocation line affecting
islands 40 miles to the east of Sebatik. The text of the
Convention is inconsistent with anysuch intention, and this is
confirmed both by the travaux préparatoires and by the

subsequentpractice of the parties.
(3) The interna1Dutch map of 1891 does not support Indonesia's

claim, and even if it did it was not opposable to Great Britain
and wasnever acceptedby it.

(4) Even if Britain had intended to grant sovereignty over the
islands to the Netherlands, it could not have done so because
they were more than 9 nautical miles from the coast, and thus
fell outside the terms of the Sulu grant of 1878. As was

confirmed in the Protocol of 1885, islands falling outside 9
nautical miles from thecoast belonged to Spain.

1.9. Indeed, even if the two islands had been part of Bulungan
before 1891, they would have been attributed to North Borneo by the

Convention. The Netherlands explicitly did not claim any part of Borneo to
the east of Batu Tinagat, and never subsequently asserted any claim to any
land territory or off-shore islandsto the east of the island ofatik.

The islands were never clairned or administered by the Netherlands or by
Indonesia, before the invention of thedispute in 1969

1.10. There is no evidence whatever of any claim to the islands, by

the Netherlands or by Indonesia, in the years 1891-1969. Nor is there any
evidence of any Dutch or Indonesian administrationof the two islands at any
stage,up to the present day. As showninMalaysia's pleadings:

(1) The Netherlands never claimed or administeredthe islands.

(2) Dutch practice and Dutch maps are quite inconsistent with any
Dutch claim to the islands.
Indonesia has never at anytime administeredthe islands, which
(3)
it only claimed24 years after independence.
Indonesian practice and Indonesian maps are quite inconsistent
(4)
with any claimto the islands.C. The TwoCasesCompared

1.11. Whereas Indonesia has to prove each and everyelement of its

case in order to succeed, Malaysia'scase is robust.

1.12. Even if (quod non) the islands were not part of Sulu, they are
now Malaysian, since Malaysia and its predecessors in title have administered

them for many years,and Malaysia continues todo so.

1.13. Even if (quod non) the islands had ever, even arguably, been
part of Bulungan, they are now Malaysian, because no claim was made to

them by the Netherlands in 1891or atany later time.

1.14. Even if (quod non) they had been notionally allocated to the
Netherlands in 1891,they are now Malaysian, because Britain could not have
granted sovereignty over them in 1891, and thus the 1891 Convention is

irrelevant as thebasis for Indonesia's case.

1.15. Even if (quod non) the islands were simply abandonedby the
United States after the USSQuiros laid claim to them in 1903,they would still

be Malaysian, because they have been administered as part of North Borneo
ever since.

1.16. Even if (quod non) the 1930 Treaty did not cover the islands,

they are Malaysian because they were not ceded to any State other than
Britain, which continued to administerthem.

1.17. Even if (quod non) the Indonesian argument as to the 1891
Convention were tenable, the islands would now be Malaysian, because

Britain and Malaysia subsequently consolidated theirtitle to them.

1.18. Even if (quod non) Indonesia inherited from the Netherlands
some vestige of historic title to them (which title the Netherlands never

claimed), the islands would now be Malaysian because they have been
administered by Malaysia and its predecessors for more than a century, andthat administration is what matters- not hitherto unformulated inferences

from an unpublished map.

D. Structureof thisReply

1.19. This Reply consists of four further Chapters. Chapter 2
summarises and restates Malaysia's case for the islands, with cross-references
to the documentary and other evidence. Chapter 3 refutes Indonesia's
arguments based on the "sovereignty" of Bulungan. Chapter 4 refutes its

arguments as to the 1891Convention. Chapter 5 refutes its arguments based
on eflectivitésince 1891. Malaysia's submissions follow. Chapter2

Malaysia'sCaseas EstablishedbytheEvidence

A. Overview

2.1. Given the complete lack of supporting evidence, Indonesia's
assertion that its case is "straightforward" is surprising.' Indonesia seeks to
bolster its case by attributing to Malaysia a series of arguments Malaysia does

not make and by misrepresenting the arguments Malaysia does make.2 It is
necessary, therefore, to summarize that case, referring at the same time to the
substantial documentary and other evidence adduced in the pleadings of both

parties.

2.2. As noted in paragraph 1.3 above, Malaysia's case is based upon
six basic propositions. Taken in historical and chronological order these are as
follows:

(1) Like other islands off the east coast of Borneo (Danawan, Si

Amil, Omadal, Mabul.. .),Sipadan and Ligitan were part of the
dominions of the Sultanate of Sulu in the nineteenth century;
the people of these islands owed allegiance to the Sultan, which

allegiance they transferred to the BNBC from 1878.

(2) After 1878the BNBC administered the two islands, along with
the rest of the Ligitan Group, even though they fell outside the
scope of the Sulu grant of 1878.

(3) The BNBC's administration of the offshore islands was not

challenged by Spain or by the Netherlands. In particular, the
Netherlands specifically disclaimed any title to territory or
islands east of Batu Tinagat, in the negotiations for the 1891

Boundary Convention and subsequently.

I IC-M, vol.1,p.5, para. 2.1.
7 To take just two examples, Malaysia has never suggested that the two islands in
dispute were ceded to the BNBC by the Sultan of Sulu (but see IC-M, vol.1, p.7, para. 2.101,
or that there was a single "Bajau entity" on the east coast of Borneo (but see IC-M, vol.1,
p.26, para. 3.41). Indonesia's extensive treatment of these "arguments" is off the point. (4) The BNBC's administration was recognised as a fact by the
United States when the USSQuiroc slaimed title to the islands

in 1903, and it was regularised as a continuing right of BNBC
administrationby the Exchange of Notes of 1907.

(5) The BNBC's right of administration was converted into a full
right of British sovereignty as a result of the British-United

StatesTreaty of 1930.

(6) Malaysia succeeded to British sovereignty over the islands, and
its sovereignty continuesunintenupted to the present day. The

exercise of that sovereignty has taken a variety of forms,
including nature conservation, regulation of natural resources
and tourism, security and policing, and the construction and

maintenanceof lighthouses.

2.3. Indonesia claims that the Malaysian case is "confused" and
"contradi~tor~".~ But there is nothing either confused or contradictory about
these propositions. They present a coherent picture, reflected in the

documentary record and consistent with the internationallaw of the time.

2.4. It is true that there were, at various stages, disagreements
between some of the actors. But these disagreements were resolved and the
picture that emerges is both clear and historically-attested. Three temporary

disagreements appear from the record, involving successively Spain, the
Netherlands and the United States. They were as follows:

The disagreement with Spain (1878-1885). Initially Spain did not
recognise the validity of the Sulu grant of 1878, and after the final

capitulation of the Sultanate later in that same year,4 it attempted to
seize Sandakan, the principal BNBC administrativecentre on the east

~oast.~But the Spanish claim was opposed by the local leaders and by
Britain, and its attempt failed.6 Subsequently, Spain expressly
recognised Britishauthorityover North Borneo,to the full extent of the

Sulu grant (Le.down to the SibukoRiver), by the Protocol of 1885.'

The disagreement with the Netherlands (1878-1891). The Netherlands
recognised BNBC authority over North Borneo but not to the full

3 IC-M, vol.1,p.1,para.1.2.
4 MM, vol.2, p.42, Annex 12 (referring to "al1the Archipelago of Sulu and the
dependencies thereof').
5 For the British protest at this attemMM,sevol. 3, p.21, Annex 37.
6 SeeMM, vol. 4 Annexes78 and 79.
7 MM, vol. 2 Annex 15. extent of the 1878 A dispute arose as to the territory between
the Sibuko River and Batu Tinagat, which was resolved by the 1891
Boundary Convention. The only islands affected by that dispute were
Sebatik and the immediately adjacent small islands or islets. There

was no Dutch claim to islands or mainland territory east of Batu
Tinagat.

The disagreement with the United States (1900-1907). Following its
acquisition of the Philippines in 1898-1900,the United States did not

recognise the right of the BNBC to administer islands beyond 9
nautical miles. Nor did it recognise the validity of the 1903
Confirmationby the ~ultan.~ The BNBCtried to argue on both points,
but Great Britain (which had authority in the matter under the

Protectorate of 1888) accepted the United States7 view of the legal
position. The matter was then regularised, first in the 1907Exchange
of Notes andthen in the 1930Convention.

These disagreements at the international level were well attested, were

precisely formulated by the parties concerned, and were clearly resolved by
the international agreements referred to, which were valid under the
international law of the time. None of these transactions affected the fact of

BNBC, British and later Malaysian administration of the islands, which has
continued for 120years.

B. Concordanceof the evidencesupportingMalaysia'scase

2.5. It is proposed to take each of the six propositions set out in

paragraph 2.2 above and toprovide a brief guide to the documentary and other
evidence in support of each, ascontained in the pleadings.

Proposition 1. Like other islands off the eastCoastof Borneo (Danawan, Si
Amil, Omadal, Mabul.. .).Sipadan and Linitan were part of
the dominions of the Sultanate of Sulu in the nineteenth
century; the people of these islands owed alleniance to the

Sultan. which alleniance they transferred to the BNBC from
1878.

2.6. In the mid-nineteenth century, the people inhabiting the coastal
areas of north east Borneo owed allegiance to the Sultan of Sulu, and were

8
See the Dutch Colonial Minister's stateme1879,specifying "Batoo Tinagat
9ock" as the border: MM, vo3,p.24, Annex 40.
MM. vol. 2 Annex 22.part of the procurement economy of the Sultanate. These people included the
Bajaus living on the islands around Darvel Bay, in particular Omadal and the

Ligitan Group (Danawan,Ligitan,Si Ami1and Sipadan).

2.7. It is clear from the evidence and from contemporary sources
that the leaders of the communities along the north east coast were appointed

by the Sultan and responded to his orders. Indeed after 1878 they often
became local officiais under the BNBC." The situation was one of

considerable persona1 continuity, and clear evidence of the succession to
leadership of these communities is contained in affidavits collected in the

1970s."

2.8. Indonesia tries to minimise the significance of these local

communities by presenting the Bajaus as a single group of sea gypsies,
wandering up and down the whole east coast and effectively beyond the

jurisdiction of any of the States in the region, includingthe Sultan of sulu.12 It
is true that there were Bajau communities along the coast, but these were

distinct groups, not a single wandering tribe of nomads. The Bajaus of Darvel
Bay had their own leaders and were based on the islands and reefs of the

locality. They had a cemetery at Omadal, which still exists.13 Local leaders
were appointed or confirmed by the Sultan of Sulu; they were often

themselves Sulu by birth. l4

O
For example Nakoda Gumbah was the "Agent of the Sultan of Sulu charged with the
superintendence of the trade on the north-east coast of Borneo" in 1875:MM, vol. 4, p.
Annex 76. In that capacity he was the channel for orders concerningthe prosecution of Bajaus
from Omadal who attacked an Austrian ship in May 1875:see also MM, vol. 4, p.3, Annex
77. He was one of the local chiefs who signed therotest againstthe attempted Spanish

occupation of Sandakan in 1878:MM, vol.4,p.4, Annex 78 ("the matter of the transfer of this
country to an English Company having been referred to us by the Sultan six months ago, we
have agreed to that transfer and are bound by it"). In 1882 he was appointed "Native
Magistrate of Darvel Bay, a positionequiring much tact in the management of the large
Bajau population". He died in 1886:for his obituary notice in theish North Borneo
Herald see MM, vol. 4, p.9, Annex 81.He is the first on the list of 34 "indigenous leaders of
the east coast of North Borneo", appointed by the BNBC in this period, inWarren, The

North Borneo Chartered Company'sAdministration of the Bajau, 1878-1909(Athens: Ohio
University Centre for International Studies,Papers in InternationalStudies, Southeast Asia
IIries No. 22, 1971), Appendix 1,reprinted in MM, vol. 4, p.27, Annex 90.
See the affidavits at MM, vo4, Annexes 117, p. 91; 118,p. 96; 119, p. 98; 120, p.
100. These indicate a degree of continuingallegiance to the Sultan of Sulupersonally, even
after 1878.Thus Abu Sari (appointed headman of Danawan around 1899) paid homage to the
Sultan and wasjailed by the BNBC for doing so: MM, vol. 4, pp.92-93, Annex 117;.101,

12nex 120.
13 IC-M, vol.1, p.26, para. 3.41 (referring to the Bajau "in their entirety").
See the photograph in MM, vol.1, p. 26, and for a description of "The Bajau's
Necropolis" see MM, vol. 3, p.23, Annex 88 (1903), recording a burial of a deceased person
from Danawan.
14 As in the case of Nakoda Gumbah: above, note 10.2.9. Sulu dominion over the east Coast of Bomeo and adjacent

islands was recognised by other States interested in the region, and in
particular by Spain and the Netherlands.

Spanish claims to supremacyover the Sulu Archipelago did not extend
(a)
to Borneo. Under the Spain-SuluTreaty of 1836,an express exception
was madefor "Sandakan and the other countries tributary to the Sultan

[of Sulu] on the continent of ~orneo".'~

(b) The Netherlands accepted Sulu authority over territory and islands in
the north-east of Borneo. The very limited extent of Dutch claims to

the east coast was made explicit in the 1846 Resolution of the
Governor-General of Netherlands 1ndia.I6 The 1850 Contract with

Bulungan claimed "the cape called Batu Tinagat and beyond the River
Tanwan [sic]", but accepted that beyondlay "the Zulu possessions on

the sea-shore".17 The 1878 Contract used similar language.I8 Dutch
maps of the period did not showthe islandsaspart of Bulungan; if they

were shown at al1it was as part of the dominions of sulu.19 Nor was
there any attempt by the Netherlands to exercise any territorial

jurisdiction over the islandseast of Batu ~ina~at."

2.10. Sulu dominion over the islands off-shore of Borneo was also
recognised by contemporarywriterson ~ulu.~'

2.11. The Sulu Grant of 22 January 1878 to the promoters of the

BNBC extended "as far as the Sibuku Riverin the south" and included"al1the
islands included therein within nine miles of the ~oast".~~

1s MM, vol. 2, p.1,Annex 1.The Additional Stipulations of 30 August 1850applies to
"the territory which forms thetent of islands situated within the limit of Spanish rights":

MM, vol. 2, p.4, Annex 2. The Renewed Act of Submission between Sulu and Spain of 19
April 1851did not mention Borneo: MM, vol. 2,p.8, Annex 4. In the Protocol of Sulu, 30
May 1877,Great Britain and Germany only recognised the rights of Spain to control and tax
trade inhose parts of the SuluArchipelagoactually occupied by Spain: see MM, vol. 2, p.12,
Annex 5.
16 IM, vol. 2, pp.59-60, Annex 10.
17 MM, vol. 2, p.5, Annex 3, Article II.
lx MM, vol. 2, p.41, Annex 11("Next the SolokhPossessions on sea the angle called
Batoe Tinagat, and then the River Tawan").
19
20 See MM, vol. 5, Map 3.
For Indonesia's claims based on the 1876 voyage HNLMS Admiraal van
Kinsbergen see below, paragraphs 3.23,4.9,5.29.
21 In his account of the Suluarchipelago in 1837,James Hunt specificallymentioned
Pu10Gaya and "Separan with abundance of green turtle": MM,vol. 3, p.15, Annex 34.
"Separan" or "Siparan" was the earlier form ofadan.
22 MM, vol. 2,p.31,Annex 9. For the accompanyingCommission to von Overbeck see
MM, vol. 2, p.35, Annex 10. The Commission instructed "al1the Dato's, Nobles GovernorsProposition 2. After 1878 the BNBC administered the two islands, alon-,
with the rest of the Ligitan Group, even thounh thev fell

outside the scopeof the Sulu grantof 1878.

2.12. The BNBC~~extended its administration to thewhole of the
east coast, including off-shoreislands beyond 9 nautical miles.

2.13. BNBC control was extended through a series of steps,

including the following:

Early punitive expeditions, where necessaryto deter or punish crimes
against settlements such as

The appointment of prominent local Sulu and Bajau persons as

magistrates and villageheadmen;'"

The foundation in 1887 of the new settlement of Semporna, which
became alocal administrative and trading centre;26

In 1896, Bajau communities living in the surrounding islands were

encouraged to move to a new boat settlement in Trusan Treacher, near
~ern~orna:~~ the settlement existsto this day;

In 1901 measures were introduced for the registration of al1 boats

including native canoesand sailingb~ats.~'

Chiefs and officials who have received powers from us in the said coast lands" to accept von
Overbeck and his successors "as supreme ruler over the said dominions".
23 The BNBC was incorporated by royal charter in 1881:MM, vol. 2, p.48, Annex 14.

The Charter recited the terms of the Sulu grant of 1878 ("as far as the Sibuco River with al1
the islands within three leagues of the coast belonging thereto"). In 1888the BNBC was
brought under British protection: see the Agreement of 12May 1888MM, vol. 2, p.68,
Annex 16.
24 E.g. the operations of HMSZephyr in 1886 against Omadal: MM, vol. 4 Annex 80, p.
7, described in theitish NorthBorneoHerald as "the last Bajow stronghold": MM, vol. 4,
p.12, Annex 82. For subsequentmeasures see MM, vol. 4, p.15,Annex 83 (Danawan, 1892);
MM, vol. 4, p.16, Annex 84 (Omadal, 1892).
25 MM, vol. 4 Annex 90, p. 27. The headman of Danawan was Panglima Abu Sari

(appointed Ca.1899). See the affidavit of his son, Tilaran Abdul Majid, made in 1975 when he
was 80: MM, vol. 4 Annex 117, p. 91. Indonesia concedes that "it would not have been
unusual for the Sultan of Suluto have appointed chiefs on the island of DinawanIC-M,
vol.1, p.30, par3.53.
26 MM, vol. 4, pp.12-13, 14, Annex 82. The first Native Chief of Semporna was
Panglima Udang, appointed in 1889: see MM, vol. 4,p.100, Annex 120.Hisjurisdiction
extended to Danawan, Omadan and Ligitan. Subsequently he acquired from the original
holders certain rights to collect turtle eggs on Sipadan: ibid.
27 MM, vol. 4, p.18,Annex 86; p.26, Annex 89.
28
MM, vol. 4,p. 19,Annex 87 and see MM, para. 6.5, note13.2.14. As far as Sipadan is concerned, this island was considered an

"appanage" of ~anawan,~~and as part of the Ligitan group of islands. The
term "Ligitan group"was applied at the time to the four islands, Danawan, Si

Amil, Ligitan and ~i~adan.~'It is not a Malaysian in~ention.~'Nor is it to be
confused - as Indonesia apparently confuses it32 - with the Ligitan reefs
(Terumbu Ligitan), further to the ea~t.~~The linkage between Danawan, Si

Ami1and Ligitan was obvious enough, because they were al1located on the
large star-shaped reef.34 The linkage between Sipadan and Danawan arose in

particular because residents of Danawan held the exclusive concession to
collect turtle eggson Sipadan, a concession originally grantedby the Sultan of

Sulu and subsequently reissuedand regulated by the BNBC. The headman of
Danawan had jurisdiction over the following islands and adjacent fishing
grounds: Danawan, Ligitan,Si Amil, Kapalai and siPadane3'

2.15. Steps taken by the BNBC to regulate turtle egg collection -

the principal activity carried out on Sipadan for many years - included the
following:

The resolution of disputes between the initial concession holders,

PanglimaBusari (Abu Sari) and Maharajah~ahrnud;~~

The earlier grant to collect turtle eggs on Sipadan was replaced by a
grant ("Surat Katrangan") issued at LahadDato on 6 May 1916by the

Acting ~esident;~~

29 MM, vol. 3, pp.145-146,Annex63.
30
See the clear description of the Ligitan groupin the authoritativeBritish sailing
directory of 1890:J.P.Maclear (comp.),EasternArchipelago,Part 1(EasternPart) (London,
Hydrographie Office,Admiralty, 1890)pp. 182-189;MC-M, ,vol. 2,annex 1,cited in MC-M,
para. 1.3.Sipadanis described as "the southernmostof the group".The account of the survey
voyage of HMS Egeria in the British North Borneo Herald in 1892refers to "a clear channel
established to the north of the Ligitan Groupup to Si-Ami1Island": MM, vol.4, Annex 85,p.
17;see also the fullaccount of the Darvel BaySurvey, whichis at IM, vol. 3 Annex 89,p.
232.
31 The phrase is used onDutch maps, for examplethe 1941map ofNorth Borneo,
where it clearly designatesLigitan,amiland Sipadan: seeMC-M, vol. 2, p.70 (Map 7).
32
33 IC-M, vol.1,p.127,para. 7.18.
CaptainField of the Egeriaclearlyappreciatedthe distinction. In his hand-written
notes of the Egeria's surveyof Darvel Bay, he treats Si Amil,Panawan [sic],Sipadan and an
unnamed "small isle" in the locationof Ligitander the headingof the "Ligitan Group",
before going on to deal with the Ligitan Reefs:IM, v3,pp. 240-242,Annex90. In the
attached sailing instructionshe gives the "small isle" the name "Ligitan Islet":ibid., p. 245.
34 See the satellitephotographs in MM, vol.1,pp. 16,20 and 23.
35 MM, vol.4, p.92, Annex 117.
36 See the letterfrom the AssistantDistrict Officer (Barrault),Sempornato the
Resident, East Coast, 26 June 1910:MM, vol. 4 Annex 91, p. 29. Both PanglimaBusari and
Maharajah Mahmudare listed as indigenousleadersresident on Danawan byWarren: MM,
vol. 4 Annex 90, p. 27; see also Annex 116,p. 90.The decisionof the AssistantDistrict

37ficer was approvedby the Resident:MM, vol. 4 Annex92, p. 31.
MM, vol.4, p.39, Annex96. The grant wasregistered in the Magistrates office: MM,
vol.4,p.36, Annex 95. The Turtle Preservation Ordinance 1917 established Sipadan as a
"native reserve for the collection of turtle eggs"; those entitled to

collect eggs on such reserves were however "subject to any rules
declared hereunder for the protection of the indust~y";~~

Subsequent agreementswith respect to turtle egg collection on Sipadan
were subject to approvalby the ~esident;~~

Trade in turtle eggs from Sipadan was listed as produce of British

North Borneo in officia1publications.40

2.16. Indonesia does not dispute the facts about turtle egg collection
by residents of ~anawan.~' Instead it seeks to explain them away as
"traditional usage" and as not involving the exercise of governmental

a~thorit~.~~But this is not the point. The resolution of disputes, the re-issue
of the permit, the management andconservationof the resource, the enactment
of legislation with respect to turtle egg collection on Sipadan, the registration

of succession and the approval of agreements, al1were carried out by BNBC
organs and officiais acting as such. These are clear acts of government carried

out jure imperii.

2.17. By implication if not expressly, Indonesia portrays Sipadan as
an isolated, waterless, uninhabited spot. True, it had and has no permanent
ground water supply. But turtle egg collection was carried out virtually every

night of the season by people from Danawan, who divided the nights between
them.4"oth Sipadan and Ligitan were the subject of a complex and regular
pattern of use by the local people, whose own affiliation was to Sulu and

(from 1878)to the BNBC.

Proposition 3. The BNBC's administration of the offshore islands was not
challennedbv Spain or bv the Netherlands. In particular, the
Netherlands svecifically disclaimed anv title to territory or

islands east of Batu Tinanat, in the nenotiationsfor the 1891
Boundary Convention and subsequentlv.

38
MM, vol. 4, p.40, Annex 97. For the meaning and effect of the Ordinance see MC-M,
39l.1, pp. 81-82, paras. 4.21-4.22.
See the Agreement made at Semporna on 29 August 1918:MM, vol.4, Annex 98, p.
403.
MM, vol. 4,p.47, Annex 99 (1922).
41 IC-M, vol.1,p.129, para. 7.24. The only Indonesian citizen put forward as having
collected turtle eggs there admits that he did so for two months at the request of a Malaysian
Badjau living in Semporna: IC-M, vol. 2 Annex 31.
42 IC-M, vol. 1,p.128,paras. 7.20-7.21, pp. 130-131,para. 7.28.
43 SeeMM, vol. 4, Annexes 98, 105.2.18. Spain. In 1885 Spain expressly recognised British rights in
Borneo under the Sulu grant of 1878, in return for British recognition of

Spanish sovereignty over the Sulu ~rchi~ela~o.~~ In accordance with the
definitions contained in Articles II and III of the Protocol of 1885, the Sulu

Archipelago included al1islands between Borneo and Mindanao except those
covered by the Sulu grant.45

2.19. However there is no evidence that Spain paid any attention to

the islands off the Borneo coast, whether within or outside the 9 nautical mile
line. Indeed al1the evidence is to the ~ontrar~.~~

2.20. The Netherlands. In accordance with the terms of the contracts
with Bulungan of 1850 and 1878, the Dutch claimed only "Terakkan,

Nenvoekkan andSebittikh,togetherwith the small islands [islets] belonging to
the~n".~~Dutch maps showed its claim as stopping at Batu ~ina~at;~ and the

most easterlypoint of Dutch occupation was the small base on the left bank of
the Tawao River. which wasestablishedin 1879.

2.21. The followingpoints may benoted:

44
Great Britain-Germany-Spain,Protocol of 7 March 1885:MM, vol. 2, p.64, Annex
15.
45 The "Sulu Archipelago" was defined in Art. II of the Protocol as including "al1the
islands which are found between the western extremity of the island of Mindanao..and the
continent of Borneo.. .with the exception of those which are indicated in Article III". Article
III referred to the "territories of the continent of Borneo, which belong, or which have

belonged in the part to the Sultan of Sul.as well as al1those [islands]comprised within a
zone of three maritime leaguesfrom the coast, and which form part of the territories
administered by the Companystyled the 'BritishNorth Borneo Company."' Thus the Protocol
expressly recognised BNBC administration and British claims of sovereignty over the temtory
covered by the Sulu grant of 1878, and it treated1other islands between Mindanao and
Borneo as part of the Sulu Archipelago, over which Britainrecognised Spanish sovereignty.
Indonesia's account (IC-M, vol.1, pp. 109-110,paras. 6.7-6.11)leaves out al1reference to

46ticle III of the Protocol and thus valueless.
See e.g. the BNBC's letter to the Foreign Office, 13July 1903: MM, vol. 3, p.132,
Annex 59 (paras. 11, 15). The Foreign Office's view is expressed in a memorandum of 10
March 1905:IM, vol. 3, p.420, Annex 109 ('The fact that the Spaniardsdid not interfere with
the Company's control over a few small islands lying within the limits of their possessions
does not seem to need much explanation.. .").
47 MM, vol. 2, p.5, Annex 3, Article II. The 1878 Contract used the same language:

MM, vol. 2, p.41, Annex 11.So too did the Dutch Minister for Foreign Affairs in his Note of
8 April 1881,referring to "Les Iles Terrakan,Manoekan, et Sibittikhavec les îlots adjacents":
MM, vol. 3. p.27 Annex 41.
48 For the portrayal of the Dutch claim see the maps at IM, Map Atlas, Map 2(1885),
Map 3 (1888) and the interna1Dutch map itself: ibid., Map 5. Malaysia has demonstrated the unreality of any Bulungan claim to

islands so far Indeed there is no evidence that the Sultan of
Bulungan had anymaritime capabilityat

The Dutch occupation of Batu Tinagat in 1879 was protested by

indigenous leaders as well as by the BNBC and the British
~overnment.~

The Dutch Note of 22 December 1888 specified Batu Tinagat as the

"point êxtreme à l'est".52This position was consistently maintained in
the subsequent negotiations, as further demonstrated in chapter 3

be10w.~"

The small Dutch base on the Tawao River was withdrawn following
the conclusion of 1891 on vent ion.^^

The effect of the 1891Convention was clearly reflected in two Dutch

officia1maps of 1913,~~as well as in al1 subsequent Dutch maps.56
None of these make any claim whatever to islands east of Sebatik. If

they show the two islands in dispute, they attribute them to North
Borneo.

In short, the effect of the 1891 Convention wasthe withdrawal of the Dutch

position southwards and westwards from Batu Tinagat, not its extension 40
miles eastwardsto the two islands, as Indonesianow claims.

49 See the expert report by Professor Houben,at MC-M, vo1,p.72, Appendix.
50 See the statement by Hageman(1855), cited in MC-M, para. 4.5.
51
See IC-M, vol. 2 Annex 15. Oneof thoseprotesting was "Pangeran Belantie of
52ardal": ibid.
IM, vol. 2 Annex 37,p. 329. Earlier notes wereto the sameeffect: e.g. Count de
Bylandt to Earl Granville, 12August 1882:IM, vol. 2 Annex 29, p. 271 ("la souveraineté
territoriale Néerlandaiàela côte nord orientale de Born.commence àla mer avec le
Batoe Finigal [sic]et s'étend d'abordvers le nord, puis versl'ouestjusqu'aux montagnes
centrales de Bornéo");ount de Bylandt to Earl Granville, 1December 1882:IM, vol. 2
Annex 31,p. 280 ("fort probable que la rivière désignéedans les Concessions soulse nom de

'Siboeboe' est situéàl'est de Batoe Tinigatet par conséquenten dehors du territoire
53erlandais").
See the Minutes of the three meetingsof the British-DutchJoint Commission in
1889:MM, vol. 3 Annexes44-46, especiallyAnnex45 at pp. 51-52 ("Admitting thatthe
statements of Mr. Treacher shouldbe correct in so far as the regions are concerned to the
eastward of Batoe Tinagat..")The Dutch ExplanatoryMemorandum of 25 July 1891
correctly described Batu Tinagat "as starting-point [ofthe Dutch claim] at the Eastern Coast":
MM, vol. 3 Annex 51, p. 93. See furtherbelow, paragraphs 3.10-3.17.
.54
Evidently the base did notamount to much.The two responsibleDutch Ministers told
the Dutch Parliament in 1891that"[o]ur authority in Muara Tawao is solely represented by a
native guard; we do not have verymuch there except for a small coal deposit": MM, 3ol.
Annex 52, p. 100.
55 For the Dutch East Indies map of 1913seeMM, vol. 5, Map 1. A less detailed map
of the same year, attached to theadministrativedecisionof 1February 1913determiningthe
administrative structure of Eastern Borneo isreproducedat MC-M,p. 104. The boundary
stops at the east Coastof Sebatik,and the two islandsnow indispute are not shown.
56 For an analysis of the Dutchmaps seMC-M, vol.1, pp.99-105, paras. 5.8-5.18.2.22. Informed Dutch opinion, both before5' and after58the 1891

Convention, doubted the validity of the Dutch claim to areas north of the
Sibuko River, and in particular to Sebatik. There is no hint of an opinion that

the territory of Bulungan extended to the coast of North Borneo and its islands
40-50 miles further east. As to actual administration of those islands by the

Netherlands, there is no trace ~hatever.~~

2.23. At no stage subsequent to the 1891 Convention did the

Netherlands ever make the slightest claim to islands east of Sebatik, nor did it
ever claim that the Treaty established an "allocation line" to the east of

Sebatik. In this regard the following maybe noted:

• The Delimitation Agreement of 17February 1913 and its annexed map
is inconsistent with any such

• So is the furtherBoundary Agreementof 28 September 1915.~'

•
The Dutch Resident's letter of 1923 stated, accurately, that beyond
Sebatik "there areno islands, onlythe open

• The Dutch discussions in the 1920son the drawing of a territorial sea

boundary east of Sebatik are inconsistent with a pre-existing treaty
limit along the 4'10'paralle1.63

57 See the opinion of M. Keuchenius in the Dutch parliamentary debate of 6 December
1881,that "the dominion of Holland did not extend to the territory which was the subject of
the concession to Mr. Dent": MM, vol. 3 Annex 42, p. 28. See also IC-M, vol. 2 Annex 6

(citing a Dutch article of 1882,according to whichthe area between the Sibuko and the Tarran
River was "a strip of land destitute of inhabitants, where there was hence not a single native
who desired Netherlands sovereignty").
58 See the opinion of the deputy assistantresident of Koetei, quoted with approval in the
Dutch Explanatory Memorandum of 25 July 1891:MM, vol. 3 Annex 51,p. 91. See also the

opinionsreported by Sir Horace Rumbold to the Marquis of Salisbury, 9 March 1892:IM, vol.
3, Annex 83, p. 158.
59 Indeed, in 1917 the Dutch Resident said that even the Tidoeng lands (attributed to
The Netherlands by the 1891Convention) "remain virtually excluded from the exercise of
authority": MM, vol. 3 Annex 69, p. 175.
60 For the text of the BoundaryDelimitationsee MM, vol. 2 Annex 25 p. 95. For the

annexed map see MM, vol. 5, Map 23. See also Sebatik Boundary Survey, Tawao, 6 May
1914:MM, vol. 2 Annex 26, p. 100.During this survey it was found that the existing pillars
were not on the4O10'line; the Parties agreed to use the pillars, not the parallel, without it
occurring to anyone that (if Indonesia's argument now isright) this could have consequences
further east.
61 See MM, vol. 2 Annex 27 p. 104.For the annexed map see MM, vol. 5 Map 23.
62
MM, vol. 3 Annex 73, p. 186. Resident van Kempen also notes that fishing on
Sebatik "is not in the hands of the indigenous population of Boeloengan" but is "performed by
the well-known Badjaus from the Solo archipelago". This confirms the position noted in the
Dutch Explanatory Memorandum of 1891 :MM, vol. 3 Annex 51,p. 91 ("the Bajaus who live
on the islands located at the North-Eastern coast of Borneo, which belong to the Sultanate of
Solok, still continuously collect forest products in the disputes area and show no concern

63atever for the Sultan van Boeloengan").
See MC-M, vol. 2 Annexes 4-8, and for discussionMC-M, vol.1,pp. 74-80, paras.
4.10-4.18.Proposition 4. The BNBC's administration was recognised as a fact by the

United States when the USS Ouiros claimed title to the
islands in 1903.and it was renularised as a continuinn right
of BNBC administrationbv the Exchanne of Notes of 1907.

2.24. Subsequent to 1891, the Dutch never challenged the BNBC's

administration of or right to the i~lands.~~The only challenge to the BNBC's
administration of the offshore islands came from the United States, as

successor to ~~ain,~'beginning in 1903. While acknowledging BNBC's de
facto administration of the islands beyond 9 nautical miles, the United States
claimed title to them.66 The United Kingdom recognised the United States'

title, but the BNBC was permitted to continue its administration of the islands
under the 1907Exchange of Notes.

2.25. These facts are evidenced by the following documents:

The voyage of the USS "Ouiros" and associated document^ F.^om

these documents the following points emerge:

(a) Whatever the position in point of title, the islands concerned
"have always been administered by us [SC.the BNBC] since
Ouradvent here".68

The islands in question included Sipadan and Ligitan, as well
(b)
as Danawan and Si Ami1 (Le. al1 the islands in the Ligitan
~rou~).69

6-1 The surveying voyage of the Dutch vesHNLMS Makasser in 1903 (MM, vol. 3
Annex 64, p. 165;IM, vol. 3 Annex 105p. 392) treated al1the points and islands mentioned as

part of British North Borneo, includingMabul, Danawan, Si, Ligitan and Sipadan. There
is no suggestion in the report that any of the islands mentioned were Dutch. Similarly with the
voyage of HMSLynx in 1921:MM, vol. 3 Annex 71, p. 178("armed sloop was sent to land
[Sipadan] for information", whichs not imply that Sipadan was considered Dutch
territory). Theller report in IM, vol. 4 Annex 120, p. 10 is no different. See further below,
paragraph 3.24.
65 Following the War of 1898, the United States acquired the Spanish territories in the
Philippines in two stages: first, by the Treaty of Paris, 10December 1898:MM, vol. 2 Annex
19,p. 74, and then as to al1additional islands by the Treaty of 7 November 1900: 2M, vol.
Annex 21, p. 85 ("any and al1islands of the Philippine archipelago lying outside of the lines
described in Article III of the Treaty of Peace"). In the meantime the United States concluded
an agreement with the Sultan of Sulu covering "the whole Archipelago of Jolo and its
dependencies": MM, vol. 2 Annex 20, p. 81,Art. 1.
66 See the analysis of the legal position by SecretaryHay, 3 April 1903:MM, vol. 3

67nex 55, p. 115.
68 See MM, vol. 3 Annexes56-63; IM, vol. 3 Annexes 97-103.
69 Resident, Lahad Dato to Lt. Boughter, 24 June 1903:MM, vol. 3 Annex 56, p. 128.
See MM, vol. 3 Annex 60 (Danawan, Si Amil); Annex 61 (Sipadan), Annex 63
(Danawan, Si Amil, Sipidan, Ligiran). (c) Sipadan was considered an "appanage" of Danawan, with

disputes over turtle egg collection being referredto the resident .
at Lahad~atu.~'

(d) Al1islands on which landings weremade (including Sipadan)
were claimed by the United States, and plates were affixed

recording thatclaim."

(e) There is no trace in these documents of any Dutch claim,
influence, controlor affiliation.

The Sulu "Confirmation" of 1903. This was obtained from the Sultan

by the BNBC, once it realised that its administrationof islands beyond
9 nautical miles was challenged by the United States. The

~onfirmation~~included by name, among others, Omadal, Si Amil,
Mabul and Danawan "and other islands near, or round, or lying

between the said islands named above". The United States and Great
Britain agreed that the "Confirmation"could have no legal effe~t.~~
But it is contemporary evidenceof the actualadministration of the off-

shore islandsby theBNBC.

The United States mav of 1903. Followingthe voyage of the Quiros,
the US Hydrographic Office prepared a map which showed

unequivocally the United States claim tothe islands beyond 9 nautical
miles, including Sipadan and ~i~itan.~~However the United States,

aware of the competingBNBC claim, took "no steps.. . toward making
good the title of the United States to those i~lands".~~In response,
Great Britain conceded the United States title but asked for some

"consideration for the fact that the North Bomeo 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~".~~This
was the basis for the conclusionof the 1907Exchange of Notes.

The 1907 Exchange of Notes. The Exchange of ~otes~~regularised

the BNBC's "temporary occupation" of islands beyond 9 nautical
miles from the Coast, as shown on the "Durand" map, prepared by the

70
71 MM, vol. 3 Annex 63, pp.145-146.
For Sipadan see IM, vol. 3 Annex 101, pp. 345 (transcription), 363 (original). The
log entry is dat22 July 1903. It was notified to theU.S. Naval Department by cablegram
dated 1August 1903:IM, vol. 3 Annex 103p. 377.
72 MM, vol. 2 Annex 22, p. 87.
73 For the Foreign Office view sIM, vol. 3 Annex 109 pp. 424-5.
74 MM, vol. 5 Map 5. See MC-M, para. 3.20.
75 Secretary Hay to the British Ambassador, 10December 1904: MM, vol. 3 Anne65
p. 167.See also IM, vol. 3 Annex 104,p. 382.
76 MM, vol. 3 Annex 66, p.169.See also Annex 67,p. 170.
77 MM, vol. 2 Annexes 23-24, pp.93, 94. BNBC and annexed to the Exchange of ~otes." There was no change
in the territorial status quo as a result of the Exchange of Notes. Al1
the islands administered by the BNBC continued to be administered by

them, including Sipadan and Ligitan.

Proposition 5. The BNBC's rinht of administration was converted into a
full right of British sovereinntv as a result of the British-
United StatesTreaty of 1930.

2.26. In 1930, the United States relinquished title to some of the
offshore islands covered by the 1907Exchange of Notes, includingthe islands

of the Ligitan Group, in favour of Great Britain. Sovereignty over and
administration of the islands was thereby reunited in the BNBC under British
protection.

2.27. The Boundary Convention of 2 January 1930~~established a

line "separating the islands belonging to the Philippine Archipelago on the one
hand and the islands belonging to the State of North Borneo which is under
British protection on the other hand". The line was depicted in an annexed

map.'' Article III provided that "al1islands to the south and Westof the said
line shall belong to the State of North Borneo". The islands of the Ligitan
group (including the two disputed islands), which were to the south and West

of the 1930 line, thereby passed in full sovereignty to North Borneo under
British protection.

2.28. In earlier memoranda both United States and British officials
had noted that the identification of the islands affected by the 9 nautical mile

line was a difficult matter." The question was considered in more detail in
preparing for the 1930 m on vent io nt.'as clearly noted that the United
States' proposal, which became the allocation line under the Convention,

would entai1that.. .

78 The first version of the map was attached to the BNBC's letter of 13July 1903(MM,
vol. 3, Annex 59), to which the map attached to the 1907 Exchange of Notes makes express
reference: MM, vol.,Map 6.
79 MM, vol. 2, p. 117,Annex 29.
80 MM, vol. 5 Map 25.
81 In his letter of 10December 1904(MM, vol. 3, p. 167,Annex 65), SecretaryHay
pointed tohe difficulties in tracing a9 nautical mile line from "the windings of an irregular
coast". For the British view see MM, 3,p. 182, Annex 72, ("In the absence of any precise
determination of this line it is impossibleto say exactly how many of the islands are
American sovereignty and how many are under North Bomeo sovereignty").
82 See the Admiralty memorandum of June 1927:IM, vol. 4 Annex 123, p. 62, analysed
in MC-M, vol.1, p.67, para. 3.26. "British North Borneo would receive Buaning, Lankayan,
Mantatuan, Mataking and the Ligitan

Islands, to none of which she has any
valid~lairn."'~

2.29. The clear effect of the 1930 Convention was to withdraw the

United States's claim to title over these islands in favour of m ri tain. F'^r
nearly four decades thereafter, no Statemade any claim to any of them.

Proposition 6. Malaysia succeeded to British sovereinntv over the islands,
and its sovereigntv continues uninterrupted to the present

dav. The exercise of that sovereinntvhas taken a variety of
forms, includinn nature conservation, renulation of natural
resources and tourism, security and policinn, and the

construction andmaintenanceof linhthouses.

2.30. The BNBC (1878-1946) and its successors, Britain (1 946-
1963)and Malaysia (1963-present)have adrninisteredthe islands as sovereign
territory, peacefully and withoutinterruption,ever since.

2.3 1. Evidence of such administrationincludesthe following:

Designation of Sipadan as a "Megapode Preserve7'under the Land
Ordinance 1930;'~

Issue and subsequent revocation of licenses to take turtles on Sipadan

and ~i~itan;'~

Approval of successionto the right to collectturtle eggs;"

Construction and maintenanceof lighthousesor light towers;"

83
84 MC-M, vol. 2, p. 18,Annex 3.
The United States was concerned thatno third Stateacquire any of the islands (cf.
IC-M, vol.2 Annex 30). The negotiationsfor the Treatyof 1930were conducted on the basis
that no third State had or claimed an interest in any of the islands concerned,includingthe
Ligitan group: seeMM, vol.3 , p. 182,Annex 72. In other words, theissue arose exclusively
between the United States and GreatBritain:see IM, vol.4, p. 51,Annex 123.
85 MM, vol. 4, p. 50, Annex 100;p. 51, Annex 101.
86 MM, vol. 4, p. 52, Annex 102.The license was modified after complaints from
Danawan: MM, vol. 4, p. 53, Annex 103;p.54, Annex 104.See also MM, vol. 4, p.75, Annex
112.
87 MM, vol. 4, p.55, Annex 105(1957).See also p.61, Annex 106.
88 Approved for Sipadan in 1960:MM, vol.4,p.69, Annex 108.The current turtle egg
licensee from Danawan protested againstthe proposed light(MM, vol. 4, p.70, Annex 109)
but the objection was overridden (MM, vo4,p.73, Annex 110).For the Notice to Mariners Regulation of to~rism;'~

Additional measures to regulate housinggO and to protect the
en~ironment.~'

These matters are discussedfurther in Chapter 5 below.

C. Conclusion

2.32. For these reasons, each of the six propositions put forward by

Malaysia is clearly established in the documentary record before the Court.
By contrast, Indonesia can only put forward doubts and quibbles and no
evidence - no evidence of any Dutchclaim to the islands, no evidence of any

Dutch or Indonesian administration, no evidence that any official at any time
before 1969 entertained the possibility that the two islands belonged to
Indonesia or its predecessors in title.

2.33. Yet Indonesia now claims only the two Malaysian islands
because they are below the parallel of 4" 10'N. It may be noted that it would

have been nonsensical for the Dutch in 1881 to have made any such claim.
The 4" 10'Nline derived from the decision taken in 1889to divide the area in
dispute by selecting a point on the coast, Broershoek, which happened to have

that latitude and from the subsequentdecision to divide Sebatik itself using the
4" 10'Nline. It is obvious that that compromise did not extend the area in
dispute further to the east. It settled a dispute, it did not create a new one. If

there had been a Dutch claim to Sipadan and Ligitan before 1889,this could
only have been aspart of a largerclaim to the coastline and to the whole group
of adjacent islands - in effect, to the Sempoma Peninsula itself and the

islands to the south of Darvel Bay. It is transparentfrom the record that such a
claim was never made.

2.34. Thus Indonesia's case is wholly lacking in any historical
foundation, quite apart from its many other deficiencies. To these, as further
manifested in Indonesia's Counter-Memorial,Malaysianow turns.

notifying the establishment of the light (1962), see MM, vol. 4, p.74, Annex 111.The
equivalent notice for Ligitan (1963) is at M4, p.76, Annex 113.See also MM, vol4,
8987, Annex 115.The lights are still operational:see MM, vol.1, pp.69-70, paras. 6.25-6.29.
90 SeeMM, vol.1, p.18 para. 3.19, p.71 paras. 6.30-6.31.
9I See MM, vol. 4, Annex 122.
SeeMM, vol. 4,Annex 123. Chapter3

Ligitan andSipadandid notBelong toBulungan

A. Introduction

3.1. A striking difference in emphasis can be noted between
Indonesia's Memorial and its Counter-Memorial as regards its reliance on
Bulungan as a basis for its claim. Whereas the Memorial included lengthy,

albeit inconclusive, chapters on the pre-1891 history, attempting to show that
the islands of Ligitan and Sipadan were under the sway of the Sultan of

~ulun~an,' Indonesia's Counter-Memorial admits there was uncertainty as to
the validity of such a claim."t is right to do so. As this Chapter will recount,

the Sultanate of Bulungan emerged only in the early 19'~century and it
remained a rather small, mainly land-based, entity in eastern Borneo. This
Chapter will also show that the Dutch involvement with Bulungan from the

mid- 19'~century up to the independence of Indonesia did not entai1any Dutch
claims east of Batu Tinagat, or to distant off-shore islands in north-eastern

Borneo. Neither can occasional Dutch naval activities be viewed as claims to
sovereignty or exercises of jurisdictian over the islands.

B. Bulungan was a Small, Land-Based Sultanate

3.2. In his expert study Professor Houben has described the

evolution of the European presence in the region of South-East Asia, with
particulai- reference to the Dutch colonial expansion, and at times retreat, in

the Indonesian archipelago.' As regards Borneo, he noted that
notwithstanding its considerable size the island had been an almost neglected
area so far as foreign powers were concerned. In the early part of the 191h

century the Dutch slowly developed their colonial rule over the southern and

I
2 See IM, vol. 1,pp. 55-60, paras. 4.55-4.72, pp. 61-78 paras. 5.2-5.33.
See e.g IC-M. vol. 1,p.4 1,para. 3.86: "Whatever may have been the pre-1891
situation..";p.47, para 4.1"...whatever ambiguities may have existed before 1891as io the
geographical scope of the territories belonging respectively to the Dutch. who succeeded to
the rights and interests of the Sultan of Boeloengan, and British North ."p.86, para.
5.69: "...the ownership of islands on either side of that line was at the ti..."ncertain
3 Professor Vincent J.H. Houben, "The Regional History of Northeast Borneo in the
Nineteenth Century with Special Reference to BulunganMC-M. vol.1,Appendix. SketchMapNo.2 from G. Irwin,Nineteenth-CenturyBorneo.
A Study irtDiplornaticRivalïy, The Hague, 1955

...NORTH BORNEO
. ,,.r-..-.-.--*.
DUTCH BORNEO

SOUTH AND
EASTERN DIVISION
Scale of Miles

5O O O 100

SARAWAK

WESTERN

DIVISIONwestern part of Bomeo. Yet, even in mid-century the Dutch seriously
contemplated selling their rights in Borneo to another European power.4

Active Dutch involvement with Borneowould always remainrather limited.5

3.3. As can be seen from Insert 2 opposite, Bulungan was initially
part of a bigger realm called Berau, which also included the areas of

Sambialung and Gunung Tabur. Around 1800 Bulungan emerged as an
independent political entity, ruled by its own Sultan. However, it always

remained a rather small sultanate on the eastem Coastof Bomeo. The Tidung
lands to the north of Bulungan were reputed to belong to it, but this was not
without contro~ers~.~

3.4. As depicted on the followingpage as Insert3, Bulungan had a

small, rnixed population, consisting of Malays, Dayak and ~u~is.~ It was
mainly centred on the banks of rivers and interaction with the outside world

was limited. Some barter trade took place between Bulungan and the Sulu
region, whereby inhabitantsfrom the latter traded slaves for forestry products
and other goods.8

C. The Dutch Contractsof Vassalage with Bulungan did not Pertain

to Ligitanand Sipadan

3.5. On 28 February 1846the Govemor-General of the Netherlands
East Indies issued the first substantiveadministrative decision regarding Dutch

Borneo, proclaiming the establishment of a centralised govemment for the
parts of Borneo which were under Dutch contr01.~ Although this attempt
failed,I0 it is noteworthy that the northern limit of the Dutch administrative

4
H. Martin, De Engelschen ende Nederlanders in den Indischen Archipel met
terugzigt op eene besproken vestigingder Belgenop Borneo,Amsterdam, 1866; C. Fasseur,
De weg naarhetparadijs enandereIndischegeschiedenissen,Amsterdam, 1995,p. 56.
5 Cf. P.J. Drooglever, "The NetherlandsColonialEmpire:Historical Outline and Some
Legal Aspects", in H.P.vanPanhuys et al., InternationalLawin TheNetherlands,1978,vol.
1,p.127 at pp156-157.
6 Seethe statementby Sir Philip Cume in Proceedingsof the First Meetingof the Joint
Commission, 16July 1889:MM, vol. 3, p. 40, Annex44.
7
See also J.G.A. Gallois, "Korte aantekeningengehoudengedurendeeene reis langs
de Oostkustvan Borneo verrigtop last van het NederlandsIndisch Gouvernement,door den
Residentder Zuid-en Oosterafdeelingvan Borneo", in Bijdragenrotde TaaLand-en
8olkenkundevanNederlands-Indië,vol.4 (1856),p. 253.
9 See also MM, vol. 1,p.74, para. 7.5.
Text in IM, vol. 2, p. 55, Annex 10.
IO G. Irwin, Nineteenth-CenturyBorneo. A Study in DiplornaticRivalry, The Hague,
Nijhoff, 1955,pp. 158-159.division was determined to be at approximately 3" ~o'N." Subsequently, on

27 August 1849, the Govemor-General established two independent
administrative areas on Borneo: the WesternDivision and the Southern and

Eastern Division. This Decree rather looselyincorporated Dutch claims from
"Berou together withthe realm of Banjermassin,up to the water - parting with

the basin of the Kapoeas and up to Soengei atas on the north eastern Coast,
including the whole basin of ~erou"." The Decreesdidnot refer toBulungan,
the Tidung lands or small islandsin their vicinity, letalone to off-shore islands

well away to the east.

3.6. Around the same time, the Govemment of the Netherlands East
Indies concluded or renewed contracts with local rulers. Their main purport

was to claim exclusive rights for the Dutch to establish themselves in the
region and to conduct trade,to the exclusionof other powers. With the Sultan

of Bulungan the first such contract was concluded on 12 November 1850.13
The northern boundary was determined as: "Towardsthe Zulu possessions on

the sea-shore, the cape called Batoe Tinagat and beyond the River Tanwan".
The Contract continues by specifying: "The following islands shall belong to

Boeloengan: Terakkan, Nenoekkan and Sebittikh, with the small islands
belonging thereto".14 The phrase "small islands belonging thereto" evidently
referred onlyto the small configurations in the vicinity of the named islands,

most notablythose betweenthe islandsof Sebatikand Nunukan andthe island
of Tarakan. Most of these islets carry a name. As can be seen from Insert 4,

on the following page, they include Bassan, Bukat, Ahus, Tembagan, Bani,
Tibi and Bunju. No islandmuch further to the north-east (Sipadan and Ligitan

are 40-50 nm to the east of Sebatik) could fa11within the scope of such a
phrase. l5

3.7. In a new Decree of the Governor-General of the Netherlands

East Indies, dated 2 February 1877, the geographical extent of Bulungan as
included in the 1850 Contractwas confirmedto extend to Batu ~ina~at.'~The
description of the boundary was repeatedin a new Contract of Vassalage dated

- --
1I
12 See also IM, vol.1,p. 12,para. 3.10.
Dutch Cabinet decision of 27 August 1849,No. 8.Text inStaatsblad,1849, No. 40;
reproduced in IM, vol2, p. 71, Annex 12.
13 Text in ARA, Min. of Colonies,2.10.03, inv. no. 10,reproduced MM, vol. 2,
Annex 3.
14 Full text in IM, vol. 2, p. 79, Annex 13.
15 Such an interpretation is in line with thedecision of the Arbitral Tribunal in the
GuinedGuinea Bissau: Dispute Concerning Delimitation otfhe Maritime Boundary, Award
of 14February 1985,p. 34, para. 61, iILM, 1986,vol. 25, p. 251.
16
Decree of the Governor-General of the Netherlands Indies amending the Territorial
Subdivision of the Residency Southern and Eastern Division of Borneo, 2 February 1877:
vol. 2. Annex 14.2 June 1878 between the Netherlands East Indies' Government and the new
Sultan of ~u1ungan.l' This Contractwas reported tothe Dutch Parliament.

3.8. Following ratification of the 1891 Boundary Convention, the
Dutch Government reported to Parliament in 1894 that the Convention had

made itnecessary to revise the description of the area of Bulungan appended
to the 1878 Contract, in order to bring it in line with the newly-agreed
boundary line. It submitted a supplementary agreement on the boundaries of

Bulungan and the islands belonging to it which, following consultations with
the administration of Bulungan, was concluded on 19 June 1893. This
replaced the 1878 description of the area. In straightforward terms the 1893

supplementary agreement provided:lg

"The Islands of Tarakan and Nanukan and that portion of the
island of Sebatik, situated to the south of the above boundary-
line, described in the 'Indisch Staatsblad' of 1892, no. 114,

belong to Boeloengan, as well as the small islands belonging to
the above islands, so far as they are situated to the south of the
boundary-linelast mentioned."

It should be noted that the agreement refersin clear-cut terms to the text of the

1891 Convention as published in the Officia1Gazette 1892of the Netherlands
East Indies, No. 114andin no way to the interna1Dutch map.

3.9. No further agreements relating to the geographical extent of
Bulungan were concluded between the Dutch colonial authorities and the

Sultan of ~u1un~an.l~

D. No Dutch Sovereignty was claimedeast of Batu Tinagat: Ligitan
and Sipadanwere neveraddressedin any Anglo-DutchDiplomatic
Correspondence

3.10. In essence, the Indonesian Counter-Memorial concedes that
there was never at any time any attempt by the Dutch negotiators to claim

territory east of Batu Tinagat or islandseastwardsof ~ebatik.~' Indonesia tries
to explain away such statementsby suggestingthat they should be seen in the

17 Text in ARA, Min. of Colonie2.10.03, inv. no. 10: reproduced in MM, vol. 2, p.39,
Annex 11;IM, vol.2,p. 119,Annex 19.
18 See "Description of the Boundaries of the Territory of Boeloengan and List of the
Islands Belonging Thereto",gned 19June 1893:iMM, vol. 3, p.114, Annex 54.
19 There is no mention of any further agreements in parliamentary papJ.s or in
EisenbergerKroniek der Zuider- en OosterafdeelingvanBorneBandjermasin, 1936.
20 IC-M, vol. 1, p. 84, p5.68.context of the negotiations, and in particular as responsesto the remarks of the
British Acting Consul-General relating to the Dent-Overbeck Grant of 1 878.21

The problem with this explanation - interalia - is that it does not cover the
many other instances of recognition by Dutch authorities of British
sovereignty east of Batu Tinagat. As early as 1879, the estimates for

Netherlands India for the financial year 1880 presented to the Second
Chamber of the States-General, note that "the Bato Tinagat Rock is the point
of demarcation". The govemmentstatement is quite explicit:

"In order to avoid possible misunderstandings, the Indian

Govemment has issued orders that the Netherlands flag shall be
hoisted at the point of demarcation (the Bato Tinagat Rock, at the
mouth of the Tawan River, which, accordingto the last survey, is

situated in north latitude 4O19'and east longitude 117" 31'),and
that for the present it shall be watchedby a cruizer, while it has,
moreover, addressed a request to the Sultan of Boulongan, to

whose territories the said point of demarcation belongs, to place
a Representative of his own in residence at that point."22

This officia1declaration is al1the more interesting in that it explicitly refers to

the "Sultan of Boulongan" and considers Batu Tinagat as the "point of
demarcation" of the Bulungan territories.

3.11. Spurred by the Dent-Overbeck grant and the officia1
recognition of the British North-Bomeo Companyas a chartered Company,the

Netherlands authorities sought to strengthen their claims north of the
Seboekoe river, in the Tidung lands. In 1879,the Assistant Resident of Koetei
was sent to this particular area, looking - sometimes in vain - for local

heads willing to swear and to sign written statements that they considered
themselves to be under the authorityof the Sultan of Bulungan. The Assistant
Resident reported that in the coastal area no such statements could be made

and no Dutch flags could be deli~ered.*~

3.12. Count de Bylandt refers to Batu Tinagat as the extreme eastern

claim of the Netherlands in his note dated 1 December 1882: "...la rivière
désignée...est située à l'est de Batoe Tinagat et par conséquenten dehors du

21 Ibid. For Treacher's remarks see MM, v3, p.19Annex 36.
22 IC-M, vol.2,Annex 16.
23 See extract from Mailreport dat23 June 1879 from Resident Meijer of Southern
and Eastern Division of Borneo to Governor-General of the Netherlands East, reporting
on a mission of the Assistant Resident at Koetei to the Eastern Coast of Borneo: A1,ex MR

below pp. 1-2.territoire ~éerlandais".~~In similar vein, Foreign Minister Hartsen did so as
many asfive times in his note of 22 December 1888toCount de ~~landt:~~

"La base que le Gouvernement Néerlandais désireraitfaire
admettre pour atteindre ce but et qui paraît d'ailleurs toute

indiquée,en partant du point extrême à l'ouest :TandjongDatoe,
jusqu'au point extrême à l'est:Batoe Tinagat"

"...Le Gouvernementdu Roi a cru devoir prendre comme limites

extrêmes à l'ouest : Tandjong Datoe, et à l'est: Batoe Tinagat,
étant donné que les droits de souveraineté des Pays-Bassur ces
deux points extrêmes del'le de Bornéo ne sauraient être

contestés..."

"I In est de même du point extrême àl'est :Batoe Tinagat"
"...le territoire de Boeloengan s'étendjusqu'au point Batoe

Tinagat"

"...le fait que les Pays-Bas exercent depuis longtemps desdroits
de souveraineté surla côte orientale de Bornéojusqu'à Batoe
Tinagat ne saurait plus être contestépar le Gouvernement

anglais."

3.13. The Joint Commission, set up by the British and Dutch
Governments to resolvethe boundary issue, had to determine the outer limits
of the territories of the Sultan of Sulu and the Sultan of Bulungan on the

eastern coast of Borneo. The British Govemment maintained that the Sultan
of Sulu claimed the territory of Tidung. The British delegate, Sir Philip
Currie, contended that "the Sultan of Bulungan had ceded to the Dutch what

he had no right to cede, Batoe Tinagat being to the north of Sibuco, and
therefore within the territory of the Sultan of SU~U".~~ In disagreement with

this, the Dutch delegate Count de Bylandt emphasized that the Tidung lands
did belong to Bulungan. During the course of the negotiations it was decided
to settle the boundary questionby wayof an arnicablecompromise. An initial

compromise proposa1by the British was to take Broershoek, lying at 4" IO'N,
as the boundary mark on the east coast, and to let the boundary run eastward
between the islands of Sebatik and East Nunukan." This proposa1to include

the whole of Sebatik within British North Bomeo was unacceptable to the
Dutch. Count de Bylandt also dismissedan informalBritish proposa1to allow

24 IM,vol.2, p.280,Annex 31.
25 IM,vol.2, p. 327Annex 37.
26 Proceedings of the Second Meeting, Joint Commiss19July1889,pp. 9-10: MM,
vol.3, pp.50-61Annex 45. See also Sir Philip Currie's and Sir Edward Hertslet's statements
at the First Meeting of the Joint Commi16iJuly1889,pp.2-6: MM, vol.3,pp.38-49
Annex 44.
27 Reproduced in MM, vol. 5, Map 2.the Dutch Batu Tinagat by way of an enclave, since "...an enclave of an
uninhabited and useless piece of ground can in future perhaps bring a hornets'

nests of al1sorts of difficulties and c~nflicts".~'Finally, the negotiatorsagreed
to split the island of Sebatik into two parts. This compromise was laid down
in Article 4 of the Boundary Convention of June 1891, which will be

addressed oncemore in the next Chapterof this Reply.

3.14. When tabling the draft law to approve the ratification of the
1891 Boundary Convention, the Dutch Ministers of Colonies and Foreign
Affairs frankly admitted that.. .

"the Dutch Government has never paid much attention to this

outpost of its territory on the east Coastof Borneo, which was
unknown to her and moreover totally uninhabited; that the rights
of the Sultan of Bulungan with regard to the disputed areacannot

be called totally indisputable and, finally, that insteadof a highly
uncertain boundary through an unknown and almost inaccessible

area, a very precisely described boundary has now beendefined,
which will dispense with al1 future difficulties, not only
concerning that part of Borneo connected with the border

dispute,but with regardto theentire i~land."~~

3.15. The intemal Dutch map attached to the Explanatory

Memorandum itself clearly depicted the Dutch claim as stopping at Batu
~inagat.~' The first draft of the internal map, as retrievedby Malaysia, does

the same." Indonesia fails to note that the boundary claimed by the
Netherlands and depicted on these maps stops at Batu~ina~at."

3.16. Furthermore, the interna1Dutch map does not show Sipadan at
all. Ligitan appears to be shown, but is unnamed and islocated to the north of
4" 10'N. Hence, there is no question of this map (whatever its status)

allocating the two islands to Bulungan or the Netherlands. Even the map
produced as Annex 1 of the Indonesian Counter-Memorial, showing the
territory alleged to have been relinquished by the Netherlands as a

consequence of "the 1892Convention", stops at Batu~ina~at.~~

28 Count de Bylandt to Minister Hartsen ofForeign Affairs,28 July 1889,extract in
MM, vol. 3,p. 66,Annex 47.
29 Memorandumof Explanation, ProceedingsStates-General 1890-1891,no. 187,no. 3,
p.1:MM, vol. 3,p.89, Annex 51.
30 MM, vol. 5, Map 2.
II MM, vol. 1,p.98.
32 See also IC-M, vol. 1,p.78, para. 5.48.
33 IC-M, vol. 2, Annex 1.3.17. In sum, it was wholly understandable thatthe Minister of
Foreign Affairs during the ratification debate noted that the claims of

Bulungan to Batu Tinagat "could not be proved and were in reality
imaginary".34Afortiori, the Dutch authorities neverpresented any claim as to
the islands around Darvel Bay. The Indonesian Counter-Memorial does not

come up with a shred of evidence to the contrary. It takes great pains to
explain that the 1891 Boundary Conventionconcemed islands as well as the

mainland. But it does not produce a single statement, either during the
negotiations or duringthe ratificationdebate, hinting at the extension of Dutch
sovereignty over any islands situatedoff the British NorthBomeo Coast.

E. NoMap includesLigitanor Sipadanwithin Bulungan

3.18. Malaysia has submitteda number of maps of the Bulungan area
prepared during the colonial era. These point unequivocally to the same

conclusion. No matter whether they were prepared or issued under Dutch
officia1auspices (e.g. the 1849Versteeg map,35the Island of Palmas Survey
Map of the Netherlands East Indies Archipelago, 1897-1904,~~ the

hydrographical map of 1905 and its update of 191.5~'and the 1913 officia1
Residence map38) or were published by private bodies,39 and no matter
whether they came before or after 1891, notone single map includes the two

islands as part of the Sultanateof Bulungan. This is small wonder in view of
the difficulties the sultanshad in maintainingtheir authorityover the mainland

of Bulungan and40n view of the merely latent interest of the Dutch in this
particular area.

3.19. Insert 5, on the following page, is a sketch map of Bulungan.
Prepared in 1930, it clearly shows the contraction of the Sultanate. This
confirms the weaknessof the authorityof the Sultans of Bulangan at the time.

The northern boundaries of Bulungan appear to be at the river Sesajab, just
north of the islands of Bani, Tarakan and Bunju, well south of Sebatik and the

international boundary. Against thisbackground, there could be no question
of inclusionof Sipadanand Ligitan withinthe realm of Bulungan.

34 MC-M, vol. 1,p. 15,para. 2.16.
35 MM, vol. 5, Map 3.
36 MC-M, vol. 2, p. 59,Map 1.
37 MC-M, vol. 2, pp. 60-63,Maps 2 an3.
38 MM, vol. 5, Map 1.
39 See e.g. the inaccurate 1901map in the Journal of theRoyal Netherlands
Geographical Society,IC-M, vol. 2, Annex 1.
40 See the expert studyof ProfessorHouben, appended to MC-M,vol. 1.F. Occasional Dutch Naval Activities in the Area did not involve
Exercisesof Jurisdiction orClaimsto theIslands

3.20. Although the Dutch colonial administration of Bulungan
spanned a period of nearly 100years, Indonesia has so far failed to provide a

single example of the actual exercises of jurisdiction by Dutch naval vessels
off the Coastof NortheastBorneo. Researchby Malaysia in the archives of the
Dutch ministries of Colonies, Navy and Foreign Affairs as well as in reports

by colonial officers and the annual Reports on the Colonies provides no
indication that any such activities actually took place. In view of the
comprehensiveness of the Dutch colonial archives and theirexcellent state of

preservation, any such exercise of jurisdiction would have been reported, and
any such report would have survived. The only possible inference is that no
relevant power in the region considered thispart of the Sulu region to be under

the Sultan of Bulungan or the Netherlands East Indies. Neither did the Dutch
themselves take that view.

In its Counter-Memorial Indonesia reports on its search for
3.21.
Dutch administration. Obviously, Bulungan forces and officials itself never
went out to sea since Bulungan was not a maritime power.4' As far as the
Netherlands is concerned, al1Indonesia can submit is a one-page list of ships

that cruised through this region during the period 1895-1928,as wellas a few
reports on instances of naval activitiesbefore thatperiod.42Passing through or
surveying a particular area, even if it is for the sake of combating piracyjure

gentium, must not be confusedwith the exerciseof territorial sovereignty. But
that is what Indonesia does. In the Island of Palmas case, Arbitrator Huber
succinctlystatedthat:

"Sovereignty in the relations between States signifies

independence. Independence in regard to a portion of the globe
is the right to exercise therein, to the exclusion of any other
State, the functions of a State... Territorial sovereignty involves
the exclusive rightto displaythe activitiesof a tat te."^^

Who could ever maintain that the occasional cruises of Dutch ships in this
particular region meet the classicalcriteriaof displayingexclusiveauthority?

41
J.Hageman, "Aantekeningen omtrenteen gedeelte der Oostkust van Borneo", in
Tijdschrifrvoor de Indische Taal-, Lund- en Volkenkunde4 (1855), p. 78 reported that
the Sultan of Bulungan did noteven have "praus", i.e. local boats. See alsMC-M,ben,
42l. 1,Appendix, pp. 13-14,para. 6.4.
43 SeeIC-M, vol.2,Annex 32.
Island of Palmacase,in Reports of International Arbitral Awards, vol. 2, p. 829.3.22. Scattered examples of a Dutch boat getting a view of Sipadan
(Ligitan is rarely mentioned) cannot be regarded as serious examples of

Bulungan's or forthat matter the Netherlands' title. What do these few cases
actually amountto?

3.23. Taking them in chronological order, the first was in 1876,when
the HNLMS Admiraal van Kinsbergen steamed through the area, occasionally

taking soundings and anchoring. The log does not more than mention that the
ship "steamed ESE below Poeloe Sipadan", with no implication that the island
was considered as part of ~ulun~an.~~ A landing took placeon Mabul, not on

Sipadan. Indonesia goes as far as to argue that this "shows that at the time the
Dutch considered that the island [Le., Mabul] belonged to the Sultan of
~oeloengan",~' but there is no suggestion in the record of this idea.

Indonesia's argument is hardly advanced by its presentation of the relevant
passage:

Original: "Admiraal van Kinsbergen in Solozee, van Sesajab naar
Kobong"

Indonesia7sversion: "Admiraal van Kinsbergen on patrol off the coast of

Boeloengan"

Correcttranslation: "Admiraaal van Kinsbergen in the Sulu sea, from
Sesajabto Kobong"

3.24. The next event was nearly three decades later and concerned
the surveying activities by HNLMS Macasser in 1903.~~ In its Counter-
Memorial Indonesia takes issue with "the Malaysian interpretation of the

report by the commanding officer, i.e. that he appeared to treat al1 islands
mentioned (including Sipadan and Ligitan) as being part of British North

~orneo".~~ However, Malaysia simply reports, asit did in the Admiraal van
Kinsbergen case, what is in the detailed report by Commanding Officer Van
Straaten on his activities in "British North-Borneo, 21-27 October 1903".~~

Indonesia notes that the survey of the Macasser resulted in the 1905map on
the "East Coast of Bomeo: Island of Tarakan up to Dutch-English Boundary".
Yet the Dutch-British boundaryline stops on this map in accordance with the

1891 Convention at the east coast of ~ebatik.~~The position is exactly the

44 IC-M, vol. 2, Annex 12.
45 IC-M, vol. 1,p.34, para. 3.67.
46 See MM, vol. 1,pp. 74-75, paras. 7.5-7.6; vol. 3, pp. 163-166, Annex 64.
47 IC-M, vol. 1,p.137,para. 7.50.
4s See MM, vol. 3, pp. 163-166, Annex 64.
49 As reported in MC-M, vol. 1, p. 103, para. 5.14.same on the 1915 updated version of the map, to which Indonesia refers in
rather general terms in its ~ounter-~emorial.~'

3.25. Indonesia also relies on a 1910patrol of the HNLMS Koeteiin

St. Lucia Bay. This ship indeed cruised south of Sipadan and caught sight of
the island on 30 September 1910.~' Indonesia fails to mention that when

reporting on its surveying activities in the neighbourhood of East Nunukan
and Sebitik on 27 September 1910, the logbook notes the ship's arriva1in the

waters "at boundary line", where the Koetei anchored and where it was
decided who would be in charge of the ~atch.~~ Subsequently, the Koetei
passed the Anglo-Dutch border and patrolledSt. Lucia Bay, includingthe area

near Sipadan, Mabul and Omadan on 30 September. On the very same day it
arrived at Lahad Datu where the logbook reports an "officia1visit of British

civil authorities" (whichIndonesia did not seefit to include in its translation of
the log of 30 September 1910).~~Obviously, the case of the Koeteiis another
example of confusing the patrolling and the surveying of an area with

exercisingStatejurisdiction.

3.26. The last event in the "series" is what Indonesia in its Counter-
Memorial depicts as "the highly significant Lynx expedition" of November

1921.54 The Lynx was engaged in combating piracy, and was pursuing a
suspect fleet of 30 praus. It put a boat ashore on Sipadan seeking information

of their whereabouts. Subsequently it went to Si Amil, where the praus could
be seen from a considerabledistance. But jurisdiction overpirates cannot be
exercised within territorial waters, hence it stayed outside the three mile limit.

This was no implied contrast with its conduct on Sipadan but a reflection of
the limits on its competence to arrest in British waters. In fact the British

authorities at Tawao were happy to help, offering to accompany the Lynx back
to Si ~mi1.~~But the Dutch authorities at Tarrakan thought it unnecessary to
pursue the matter further, the pirate fleet being so far from Dutch territ~r~.~~

The incident has nothing to do with Dutch territorial jurisdiction over any
islands whatever.

50 IC-M, para. 7.50. The 1905 map and its 1915 update are reproduced in MC-M, vol. 2,
60-63, Maps 2 and 3.
"' See the extract of the logbook and its translation in IC-M, vol. 2, Annex 33.
52 See Annex MR 2, below, pp. 3-5.
53 IC-M, vol. 2, Annex 33 includes this particular information on the last page, Folio
196, of thextract of the logbook ofKoete or 30 September 1910 atthe middle of the
page. In translation the relevant part reads: "Sea-watch of Friday 3 September 1910.2.30 hrs.

Peeling potatoes. Patching and sewing. 4 hrs. Fixing. 4.30. Tea water. Receivevisit
s4itish civil authorities.hrs. At sunset loweringthe flag."
55 IC-M, vol.1,pp. 81-82,para. 7.51.
56 See IM, vol. 4, p. 12,Annex 120.
Ibid., 11. The voyage did, however, give rise to extensive discussions
3.27.
amongthe Dutch authorities as to the existence of a maritimeboundary east of
~ebatik.~~The Dutch authoritieswere clearly of the view that none had been

established so far. Vice-AdmiralUmbgrove, Commander of the Naval Forces
and Head of the Department of Navy in the Netherlands Indies, reported on 4
January 1922that:

"In the convention concluded between the British and Dutch
Governments (see Decree of the Governor-General, included in

Staatsblad 1916No. 145)concerning the boundary line between
the Netherlands and the British protectorate on Borneo no
boundary line is set forth which separatesthe territorial sea of the

Netherlands and the protectorate in question."58

3.28. Out of caution, the Vice-Admira1 had instmcted the

Commander of the Lynxto "consider the prolonged land boundary to be the
northern boundary [in] the territorial sea of Sebatik, he subsequently
preferred a line perpendicularto the ~oast.'~Inhis letter of 10December 1922

to the Minister of Colonies, the Governor-General of the Netherlands East
Indies the Governor-General supported this solution as "the fairest and most
defen~ible".~'

3.29. The internal Dutch map of 1891 was also referred to in these
Dutch deliberations, but the Head of the Legal Department of the Netherlands'

Ministry of Foreign Affairs advised: "As far as 1 could ascertain, this map
does not result from actual consultation between the Netherlands and Great
ri tain".^ H'ence, in his view the Netherlands would be free to opt for a

perpendicular line, to be constructed on the eastern coast ofSebatik in a much
more northem direction. Not a single reference in these well-documented
five-year long Dutch internal deliberations were made to any impact on a

claim to Ligitan and Sipadan. This was simplybecause at the time the Dutch
made no such claim at dl. The fact is that the Dutch preferred a maritime
delimitation between Dutch and British waters according to a line

perpendicular to the coast line of Sebatik. Of an allocation line along the
4O10'N parallel there is no trace.

57
58 MM, vol. 1,pp. 81-82, paras. 7.15-7.16; MC-M, 1,pp. 73-80, paras. 4.8-4.18.
59 Text in ARA,Min. ofCol., 2.10.36.04, inv. No. 2495; AnnexMR4, below, pp. 9-12.
M) See MC-M, vol. 1,pp. 74-80.
61 MC-M, vol. 2,pp. 19-25,Annex4.
Memorandum withattachments, Legal Department, Netherlands' Ministry of Foreign
Affairs8August 1923:MC-M, vol. 2,pp. 27-43, Annex5.3.30. These few examples can be supplementedwith the information
which the logbooks of other ships provide. For example, when the Soembing
patrolled in October 1891 in Bulungan its Commanderreported that"with the
arriva1 at the passage between East Nanukan and Sebatik" the ship had

reached "the outer limit of our territoryV." Subsequently,the ship started its
returnjourney.

3.31. Intensive scrutiny of Dutch naval activities by both Indonesia
and Malaysia presents the Court with a mere half dozen instances of Dutch
ships patrolling off the Coastof North-East Borneo. None of these instances
amounts to a display of authority over territory or an exercise of territorial

jurisdiction. They provide no evidence for Indonesia's claim to sovereignty
over the two islands.

G. Conclusion

3.32. In sum, in al1the documents under review in this Chapter there

is not a single sentence, phrase or word whichinvolves a claim on the part of
the Sultan of Bulungan or the Dutch authoritiesto the east of Batu Tinagat or
to offshore islands off Darvel Bay. Nor is anything reported to thateffect in
the Dutch Annual Reports on the Colonies, in other officia1 colonial

documents such as mail reports or memoranda of transfer by local Residents,
or in travel accounts. The cupboard of Dutch claims to the islands is
completely bare.

3.33. For al1 these reasons, it can be conclusively stated that the
islands of Ligitan andSipadan were never under the authority of the Sultanate

of Bulungan and that the Netherlands atno time advancedclaims to territory
east of Batu Tinagat, or to off-shore islands of Borneo eastwardsof the island
of Sebatik.

67
Text in ARA,Min.of Navy, 2.12.01,inv. 2703, p. 11.See AnnexMR 3, below,pp.
6-8. Chapter4

No Titleto the Islandscan be based on the1891

BoundaryConvention

A. The 1891Boundary Conventionaddressesthe Land Boundaryin
BorneoExclusively

4.1. Indonesia still considers that the 1891 Boundary Convention
fixed a boundary allocating distant islands between the two Parties, even

though it does not now rely so heavily on the Boundary Convention as the sole
or even main basis of its title to Sipadan and Ligitan.' The Indonesian
Counter-Mernorial offers no newevidence to support the contention and reads

into the Convention words thatjust are not there.

4.2. The actual text of the Convention addresses the issue of the
land boundary, exclusively. Malaysia has already examined questions relating
to the interpretation of the text of the Boundary Convention and respectfully

refers the Court to its Memorial (vol. 1, Chapter 8, pp. 87-95) and Counter-
Memorial (vol. 1,Chapter 2,pp. 9-49).

4.3. The Indonesian Counter-Memorialcorrectlypoints out that:

"It is relevant that the original proposa1which led to the 1891

Convention was basedon agreement that, if the coastal boundary
point could be agreed,then the two Governments would:

1
IM, vol.1, p3,para. 1.1:". .the differences of opinion between the British and
Dutch authorities concerning theent of their respectivejurisdictions were resolved by the
1891Convention."; IM, vol.1p. 98, para. 5.69: "It follows that title to the islands now in
dispute was settled infavour of TheNetherlands, and now (by way of succession) in favour of
Indonesia, by virtue of the treaty settlement embodied in the 1891ConvenToobe"
compared with IC-M, vol. 1,. 5para.2.1:"The basis of Indonesia's sovereignty over Pulau
Ligitan and Pulauipadan is straightforward.Indonesia inherited its title from The
Netherlands, whosetitle over the islands was confirmedby the 1891 Anglo-Dutch
Convention." (Emphasis added.) 'proceed without delay to define, short of making an
actual survey, and marking the boundary on the spot, the
9992
inlandboundary-lines.. . .

Right from the inception of the agreement, it was agreed that the Boundary

Convention should address solely the issue of inland boundary-lines, as Sir
Philip Currie noted on 16 July 1889 at the first meeting of the Joint

~ommission.~

4.4. The text of the Conventionconfirmsthis initial agreement. The

Boundary Convention is designated as a "Convention between Great Britain
and The Netherlands defining Boundaries in ~orneo".~ The preamble states

that the two Parties, "being desirous of defining the boundaries between the
Netherland possessions in the Island of Borneo and the States in that island
which are under British protection, have resolved to conclude a Conventionto

that effect".'

4.5. Article 1 adds: "The boundary between the Netherland
possessions in Borneo and those of the British-protected States in the same

island, shall start from 4'10' north latitude on the east coast of ~omeo."~
Article IV states: "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 Borneo Company, and the portion

south of that parallel to the ~etherlands."~ As was previously explained, the
Island of Sebatik was specifically included in the delimitation in order to
ensure access to the rivers in mainland Borneo. Sebatik is little more than one

nautical mile off the mainland, well within the three-mile limit of territorial
waters then accepted by both Parties. The delimitation itself concerns

allocation of "portions" of the island to the two Parties. No mention is made
anywhere in the treaty of other islandsor of any maritime delimitation.

4.6. The Indonesian Counter-Memorial does try to contrast Article
IV with Article III, which stipulated a terminal point for the line by providing

that the boundary should follow a certain route "to Tandjong-Datoe on the
West coast of ~orneo".' It comments: "No equivalent terminal point was

2 IC-M,vol. 1,p.99,para.5.102 (emphasisadded).
3 IM, vol.1,p.70, para.5.18.
4 IM, vol. 3p. 107,Annex75 (emphasisadded).
S Emphasisadded.
6 Emphasisadded.
7 Emphasisadded.
8 IC-M, vol. 1p. 65,para.5.21.stipulated in Article IV for the eastward continuation of the lir~e".~ Malaysia
considers that the terms used by the boundary convention for the eastern end

of the boundary, i.e. "across the Island of Sebittik", are just as clear and
"terminal" as those used for the western coast. Moreover, the 1915Agreement
starts the boundary from the east coast of the island of Sebatik and describes

its course westward:

"(1) Traversing the island of Sibetik, the frontier line follows
the parallel o4" 10'northlatitude..."

A starting point is a terminal point in reverse.

B. NoMaritimeBoundarywasconsideredat thetimeby theParties

4.7. The Parties to the 1891 Boundary Convention never
contemplated any sort of maritime boundary or any prolongation of the 4" 10'
N parallel out to the sea. At the tum of the 19'~century, the distinction

between maritime boundaries and allocation lines was well established in
international law." Neither was proposed and agreed by the parties. The
Indonesian Counter-Memorial does not come up with any fresh evidence to

the contrary. The negotiations and parliamentary debate do not indicate any
awareness of a problem of that nature. The interna1Dutch map is the only
suggestion of a possibility of an extension of the boundary beyond the land

boundary of the islands of Borneo and Sebatik. Malaysia will return to that
specific issue later (see below, sectionD).

4.8. Maritime delimitation was not a usual clause in boundary
treaties at the time.The generally acceptedthree-mile limit ofterritorial waters
did not cal1for complex delimitation off shore. In case of adjacent territorial

waters, equidistance, i.e. in most cases the line perpendicular to the coast,
would generally solve any difficulties. And opposite stretches of land were
generally further apart than twice the breadth of territorial waters. The rare

maritime delimitation agreementsof the time concerned Europe, Americaand
Africa. None were signedin South-EastAsia."

4.9. The Indonesian Counter-Memorialdoes try to make something
out of a cruise of HNLMSAdmiraal van Kinsbergen in 1876in the vicinity of

9 Ibid.
O See below, paragraph4.22 and ff.
II Sang-MyonRhee, "Sea BoundaryDelimitationbetweenStates before WorldWar II",
A.J.I.L., 1982,vol. 76 pp. 555-588; D.W. Bowett.TheLegal Regimeof Iisand
International Law,1979, pp.300-1.the island of Mabul. The cruise is presented as an "incident". Ithas been
examined ab ove.'"^ the cruise went unnoticed by the British North-Bomeo

authorities, it hardly qualifies asn incident. It was partof the general effort
of both British and Dutch authorities to combat piracy in the region and can
certainly not be construed as a claim to sovereignty on Mabul or the other

islands in the vicinity. No mention of the Admiraal van Kinsbergen or of
Mabul appears in the lengthy negotiations and diplornaticcorrespondence that
led to the 1891Boundary Convention. If there had beenany incident, or any
claim to sovereignty,it would certainlyhave surfaced at that time.

4.10. The only new elements advanced in support of a maritime

delimitation are a certain number of sketches and maps which show a line
traced along the 4" 10'N parallel. They are completely misread by the
Indonesian Counter-Memorial. True,the line traced by Count de Bylandt does

show a pencil line running eastward along the 4" 10'N parallel out to the
rnargin of the map." Unfortunately for Indonesia's case, it also runs out
westward to the other margin of the map, and that never was a boundary

proposa1contemplatedby Count de Bylandt. The simple truth is that Count de
Bylandt used a pencil and ruler to trace the4" 10' Nparallel right across the
map. The same is true of the Dutch rnap reporting the proposal by Admira1

Mayne. Here again, the 4" 10' N lineextends eastward to the margin of the
map, but also westward deep into mainland Borneo, which never was a
boundary line contemplatedby the ~dmiral.'~

4.11. Indonesia places great stress upon the map attached by Lt.
Cmdr. R. Posthumus Meyjes to the paper published in 1901 in the Journal of

the Royal Netherlands Geographical ~ociet~." The "Grenslijn", indicated in
bold red, runs along the 4" 10' N parallel, to the edge of the map, which ends
well before reaching Sipadanor Ligitan. But hereagain, the red line runs West

as well as east, in clear contradiction withthe terms of the 1891 Boundary
Convention. Article II of the Convention Statesthat "The boundary line shall
be continued westward fromthe 4" 10'north latitude, andfollow a west-north-

Westdirection, between the Rivers Simengaris and ~oedan g..."'6 The line
clearly described by the Convention is in no way a parallel. In any event Lt.
Cmdr. Meyjes seems quite uncertain as to the 1891 Boundary Convention

itself. Onthe map, the legenddescribes the boundary in the following terms:

12
13 See above,para.3.23.
14 ThernapappearsinIC-M,vol. 1,p.87, para.5.70 andvol2,Annex22.
1s IC-M,vol. 1,p. 88,para.5.71 andvo2,Annex23.
16 IC-M,vol. 1,p.92,para.5.84 andvol2,Annex1.
Emphasisadded. "Boundary line (with landmarks) adoptedby the Convention of
1892 between The Netherlands and British North-East
b orne o.'"'

The confusion is patent. There never was any boundary convention dated
1892or signedby the Netherlands with British North-Borneo. The error as to

the description of the Grenslijn is more serious. Such a contradiction with the
terms of the Convention disqualifies the Map as an accurate depiction of the
189 1 boundary.

4.12. Maritime delimitation by prolongation of a land boundary was
not a feature of State practice at the time and has never since been considered

as a rule of international law.18 State practice is very variable.19 Courts and
arbitral tribunals have been reluctant to accept prolongation of the land

boundary. In the Grisbadarna case, the Permanent Court of Arbitration
refused to consider prolongation of the land boundary for the purpose of
maritime delimitation. It hinted at the possibilityof a line perpendicularto the
20
Coast. In the Continental Shelf (TunisidZibyan Arab Jamahiriya) case, the
Court rejected the Libyan argument of prolongation of the land boundary. It
stated:

"85. The Court regards the 1910 Conventionas important for
the consideration of the present case, because it definitively
established the land frontier between the two countries. The

Court is however not able to accept the suggestion based upon it
in the Libyan Memorial that the 'boundaryon the seaward side
of Ras Adjir would continue, or would be expected to continue'
in the northward direction ofthe landfr~ntier."~'

4.13. Asjudge ad hoc Evensen pointedout:

"Another difficulty encountered in attempts to project a land
boundary seawards in plainly apparentin the present case. What

segments of the land boundary shall have a bearing on the
direction of the seaward projection? Land boundaries are
frequently irregular for a number of reasons. A land boundary

17 IC-M, vol.2,Annex 1.The original text in Dutch reads: "Grenslijn (met
grensteekens) bij tractaat van 1892 aangenomen tusschen Nederlandsch en Britsch Noord-
Oost Borneo."
Is For a review of early practice by the Dutch authoritMC-M,sevol. 2, pp. 27-43,
Annex 5.
19 D. Bardonnet, "Frontièresterrestreset frontièresmaritiA.F.D.I.1989,pp. 22-
38.
R.I.A.A.vol.XI, pp. 147-166 at pp. 159, 160.
21 I.C.J.Reports 1982,p. 66, para. 85. has minor and major curvatures, often a host of different
directions along thevariousparts of the boundary. 1sit solelythe
last segment of the land boundary ending in the terminal point of
the Coastthat is relevant? How large must this segment be to

count in order to project a dividing line perhaps over very
extensive maritime areas? Or should such a projection be drawn
from the average direction of the whole border? It seems to
follow that at least in the present case as in a number of others,
the seaward projection of the land boundary would be a rather

haphazard element to introduce as a criterion for drawing the line
of delimitati~n."~~

4.14. In the Gulfof Mainecase, the Charnberof the Court declined to
grant any significance to political geography for the purpose of maritime
delimitation. It declared:

"Political geographyhas been employed solelyfor the purpose of
noting the locationwithin the area in question of the international
boundary terminus."23

The Chamber did not take into account the direction of the land boundary to
determinethe maritimedelimitation. Quiteto the contrary, it noted:

"it is hard to imagine a case less conducive to the application of
[the coastal perpendicular] method of delimitation than the Gulf

of Maine Case, in whichthe starting point of the line to be drawn
is situated in one of the angles of the rectangle in which the
delimitation is to be effe~ted."~~

4.15. The problem of delimitationeast of Sebatik is not without some
resemblance to the Gulf of Maine configuration, with a starting point situated

in the angle of a rectangle. Any maritime delimitation - the same is true of
an allocation line - departing from equitable considerations would certainly
cal1for a very explicit agreement between theParties, which is not the case

here.

4.16. The Dutch authorities themselves were convinced that there

was no rule of international law in the matter and that the 1891 Boundary
Convention did not extend out to the sea. The thorough interna1 Dutch
discussions of the 1920s on maritime delimitation off Sebatik certainly prove

22
23 ICJ Reports 1982, p. 309, para. 21.
24 ICJ Reports 1984,para. 42.
Ibid.the point. They have been examined at length in the Malaysian Counter-
~emorial.'~ But a recently discovered leiter sheds some new light on the

position of the Dutch authorities and, incidentally, on the cruise of the~~nx.'~

4.17. In 1922, the Dutch Navy called for a boundary line delimiting
territorialwaters east of Sebatik. All Dutch services concerned considered
that the boundary had not been delimited beyond the east Coast of Sebatik.

Vice-Admiral Umbgrove, Commander of the Naval Forces and Head of the
Department of Navy in the Netherlands Indies had given temporary

instructions to the Commander of the Lynx,in charge of control of the Dutch
territorial waters and search for Bajau fleets. Umbgrove decided that the
Commander should consider the prolonged land boundary to be the northern

boundary inthe territorial waters surrounding Sebatik.

4.18. Umbgrove fully realised that no boundary line had been set
forth by the 1891 Convention. He submitted the question to the Governor-

General in the following terms:

"May 1be allowed to raise in this context one other matter which
according to me deserves to be addressed. In the Convention
concluded between the British and Dutch Government (see

Decree of the Governor-General, included in Staatsblad 1916 No
145)concerning the boundary line between the Netherlands and
the British protectorate on Borneo no boundary line is set forth

which separates the territorial sea of the Netherlands and the
protectorate in question.

Wheii seaiching for Bajau fleets near Tarakan it was as a matter

of course necessary that the Commander of HM Lynx was
fainiliar with the course of the boundary. At that tiine 1 have
decided that he should consider the prolonged land boundary to

be the northern boundary [in] the territorial sea ofSebatik.

Yet itoccurs to nie that this matter which shows some similarity
with the question how the course of the boundary should be in
the Wielingen, should be settled in definite terms. Also in cases

of maintenance of neutrality an unsettled situation can not be
accepted in view of the great interest of St Lucia bay (petroleum
fields).

25
h MC-M. vol. 1,pp. 74-80. paras.4.10-4.1vol2. Annexes MCM-4-8, pp. 19-56.
IitdoncsiiirctCi-sto the leitcr in ihe hcadingof its Anncx. IM, vol. 4, p. 5. Anncx 120,
hui I'liilpi-oduccthc ic01tlic Icitcr. Hence 1may give your Excellency into considerationto propose
the supreme administration to take steps to supplement the treaty

in questionto that effect."*'

4.19. Subsequently the question was examined by the Navy, the

Govemor-General of the Netherlands East Indies, the Minister of Foreign
Affairs and the Minister of Colonies. The Navy was not in favour of a line

running out to sea for three miles following the 4" 10'N parallel (line A-B),
but in favour of a line perpendicular to the coast (line A-D), as shown as
Insert 6 ~~~osite.'~The Legal Department of the Ministry of Foreign Affairs

examined the doctrine and jurisprudence on the question. It considered that
both solutions were admissibleand that "it was not a question for international
law to decide".*' After careful consideration, the Ministerof Colonies decided

in 1926not topress the point with the British authorities. The matter could be
left inabeYance.'O

4.20. The Dutch authorities would not have risked jeopardising a
claim to Sipadan and Ligitan by pressing for a line perpendicular to the coast
of Sebatik Island if they had thought Dutch sovereigntyover the islands was at

stake. A perpendicular line delimiting territorial waters obviouslywould have
made more difficult a claim to a 4" 10'N parallel allocation line of distant
islands. The concerned Dutch authorities would at least have given careful

consideration to the matter on the basis of the report of the Lynxcruise, which
had been forwarded to the Vice-Admirai and to the Govemor-General. But
the issuejust was not consideredduringthe yearsof interna1Dutch debate.

4.21. The Dutch authorities thus clearly concluded in 1926 that no

maritime delimitationconceming territorial waters, let alone an allocation line,
had been decided between the Netherlands and Britain in 1891or later. They
further considered that no rule of international law called for prolongation of

the 4" 10'N land boundary beyond theeast coast of Sebatik and certainly did
not favour such an outcome, which they considered contrary to Dutch
interests. Finally, they concluded itwas not worthtaking up the issue with the

British authorities.

27 Letter of the Vice-Admira1to the Governor-General of the Netherlands Indies, 4
January 1922,AnnexMR 4, below, pp. 9-12.
28 MC-M, vol. 1,p.75, para. 4.12.
29 MC-M, vol. 2, pp. 27-43, Annex 5.
30 MC-M, vol. 2, pp. 51-55, Annex 8.C. No AllocationLinewasdrawnby the 1891BoundaryConvention

If maritime delimitation agreements were scarceat the end of
4.22.
the 19'~century, the notion of allocation lines was well known. As Mervyn
Jones defined them:

"Lines of allocation are delimited through the high seas or

unexplored areas for the purpose of allocating lands without
conveying sovereignty over the high~eas."~'

4.23. International law makes a clear distinction between maritime
delimitation and allocationlines. Boggs remarks:

"Most lines in water areas which are defined in treaties are not
boundaries between waters under the jurisdiction of the
contracting parties, but a cartographic device to simplify the
description of the land areas in~olved."~~

4.24. The distinction between maritime delimitation and allocation
lines was at the heart of the decisionof the Tribunal in GuinedGuinea Bissau:
Dispute Concerning Delimitation of the Maritime ~oundary.~~ In that case,

one of the major questions was whether an allocation line clearly set by the
relevant Convention was also considered to be a maritime delimitation. The
Tribunal considered that the Convention of 12 May 1886 was concerned

essentially with land possessions. As it noted:

"In another respect, it seems to the Tribunal that the main
purpose of the Convention was the distribution, cession (Art.
VI), exchange or eventual occupation (Art. IV) of territories, and

that delimitation wasbut one aspect or onemeans of distribution
of territories which were never mentioned as possibly being
maritime."34

4.25. Contemporary practice was well established in 1891. Britain

and the Netherlands were used to such a form of delimitation. Britain had

31
JM Jones,Boundary-Making.A Handbookfor Statesmen, Treaty Editors and
Boundaïy Commissioners,Washington, CarnegieEndowment for International Peace, 1945,
Pi149.
"Delimitation of Seaward Areas under National lurisdiction", A.ILL, 1951,vol. 45,
240, note.
34 ILM, 1986,vol. 25, pp. 251 and ff.
Ibid., para. p.279.drawn an allocation line separating its possession from those of the United
States in the sector of Passamaquoddy Bay as early as the lgthcentury by the
Treaty of Paris of 3 September 1783,Article It had, more recently, done

so with France by the Convention of 28 June 1882 delimiting the respective
possessions of the two Parties on the Westcoast of Africa, north of Sierra
~eone." In Southeast Asia, China and France signed a Boundary Convention

on 26 June 1887 delimiting their respective possessions between Tonkin and
China and drawing an allocation line relatingto the i~lands.~'

4.26. In the years following the 1891Boundary Convention, quite a
few conventions drawing allocation lines in south-east Asia were concluded.
China signed the Convention of 9 June 1898 with Britain extending Hong

Kong territ~r~.~~The United States signed the Treaty of Paris with Spain on
10 December 1898.~~And of course the United-Statesand Britain signed the
2 January 1930 Convention relating to the boundary between the Philippines

and North orneo o. ^x'amples abounded. Had the Parties so wished, they
could have drawn an allocation line. And they would have said they were
doing so.

4.27. Explicit allocation is therule. Al1the examples mentioned by
the Indonesian ~ounter-~emorial~' draw explicit allocation lines. Not one

simply suggests an allocation through prolongationof a land boundary.

4.28. The Indonesian Counter-Memorial cites the Sultan of Sulu's

gant to Dent and Overbeck on 22 January 1878. In fact this was not a case of
an actual line but rather a distance criterion for the allocation of territories.
For present purposes what matters is that the element of allocation was

explicit. The grant explicitlyincludes:

"... al1 the other territories and coast ands to the southward
thereof on the coast of Darvel Bay as far as the Sibuku River
together with al1the islands includedtherein within nine miles of

the coa~t."~~

De Martens, Recueildes TraitésIII,pp.553-559.
British &Foreign State Papers, 77 (1885-1886)pp. 1007-1012.
IC-M, vol.2,Annex 18.
U.S. Department of State, China-Hong-KongBoundaryno13,s April1962.
Martens,NRG, 2'"'série,vol32,p.74.
IM, vol.4, p.49Annex 123.
IC-M, vol. 1,pp62-63, paras5.12-5.14.
MM, vol. 2, p. 29, Annex 9.4.29. The Convention of 26 June 1887 between France and China
explicitlyprovides:

"2. .. The islands which are east of the Paris meridian of 105"
43'east (108"3' east of Greenwich),that is to Saythe north-south

line passing through the eastern pointof the island of Tch'a Kou
or Ouan-Chan (Tra-CO),which forms the boundary, are also
allocatedto China.The island of Gotho and other islands Westof
this meridian belong to ~nnam."~~

4.30. The Treaty of Paris of 10December 1898 between Spain and

the United States explicitlydeclares:

"Article III. Spain cedes to the United States the archipelago
known as the Philippine Islands, and comprehending the islands
lying within thefollowingline:

A line running from West to east along or near the twentieth
parallel of north latitude, and through the middle of the navigable
channel of Bachi..."

4.31. The Convention of 2 January 1930 between Britain and the

United States explicitldeclares:

"It is hereby agreed and declared that the line separating the
islands belonging to the Philippine Archipelago on the one hand
and the islands belonging to the State of North Borneo which is
under British protection on the other hand shall be and is here

established as follows:..."44

4.32. Likewise, the Convention of 12 May 1886 between France and
Portugal cited in the GuinealGuinea Bissau arbitration explicitly drew an
allocation line for purpose of determining territorial sovereignty over islands.

Article IV,paragraph 2 stated:

"Shall belong to Portugal al1 the islands located between the
Cape Roxo meridian, theCoastand the southern limit represented
by a line which will followthe thalweg of the Cajet river, and go

in a southwesterly direction through the Pilot's Pass to reach

43
44 IC-M,vol. 2,Annex 18.
MM, vol.2, p.116Annex 29, Art.1. 10°40' north latitude, which it willfollow up to the Cape Roxo
me ri dia^"^^

4.33. The point is that al1the treaties mentioned explicitlypurport to

apportion maritime areas or to allocate islands. If such had been the intention
of Great Britain and the Netherlands in 1891, no doubt they would have said
so. A specific delimitation of possessions was possible, but it would have

been qualified as such. No such delimitation wascontemplatedby the Parties
in 1891or the following years. They certainly did not consider allocation of
sovereignty over distant islands - beyond the area of the dispute - was one

of the purposes of the Boundary Convention. To read intothe 1891Boundary
Convention a clause comparable to the explicit clauses included in the
aforementionedtreaties is an act of mere imagination.

D. The Interna1Dutch Map was not "Officially Communicated" to

the British Government nor "Promulgated" by the Dutch
Authorities: it was not an Agreement or an Instrument "accepted
by the other partyand related to thetreaty"

4.34. Indonesia insists on communication of the interna1map by the
Dutch authorities to Britain. The Counter-Memorialrepeatedly declares that

map was officially communicatedto the British authorities:

"... a map that was forwarded toGreat Britain and which did not
provoke any adverserea~tion."~~

"This map ...was communicated to the British authorities who
raised no ~bjection."~~

"...it was officially known tothe British Government atthe time
in the context of the 1891 onv vent ion."^^

"The production of the Map as part of that process was thus an
officia1 and public act of the Dutch Govemment in the

application of the Convention,knownto and acquiesced inby the
British ~ovemment."~~

45 ILM, 1986,vol.25, p. 274, para. 45.
46 IC-M, vol.1,p. 1,para. 4.22.
47 IC-M, vol. 1p.145,para.7.73.
48 IC-M, vol.1,p.71, para. 5.32.
49 IC-M, vol. 1, p.7para. 5.48.4.35. Indonesia thus tries to convey the impression that the interna1
rnap was officially communicated to the British Government and was
acquiesced in by the British authorities. Again this is pure invention. There is

no trace, either in the British archives or in the Netherlands archives, of any
communication by the Dutch Government to the British Government of the
internal map. In the absence of any such officia1communication, the rnap did

not call for any particularreaction.

4.36. Moreover, the map did not indicate any allocation of Sipadan
and Ligitan to the Netherlands. The red line stops at "P. Maboel" and is not
drawn as far as Ligitan. Knowledge of the geography of the vicinity at the

time did not allow for any claim on the islands by the Netherlands. The
contemporarySailing Directory published in London in 1890shows Ligitan at
4" 12 ?hlN, well northof 4" 10'N parallel.50 As for Sipadan, it does not show

on the rnap at all. If the negotiators knew about the existence of Ligitan and
Sipadan, they could not imagine that they were affected by an eventual
maritime delimitation along the 4" 10'N parallel. The two islands could not

have been implicitly allocated to the Netherlands in these conditions, even if
the internalDutch rnap wasconsidered as having any legalrelevance.

4.37. Indonesia pretends the interna1mapannexed to the explanatory
memorandum was an agreement, "constituted by the officia1 and public
promulgation of the Explanatory Memorandum~a~".~' The expression used

is intriguing. "Promulgation" is a precise procedure of introduction of treaties
into domestic la^.^' It calls for a forma1act by or on behalf of the head of

State - generally a decree - and applies only to the text of the treaty as
agreed, certainly not to travaux préparatoires, explanatory memoranda,
parliamentary debates, etc.53 There is no indication whatsoever of the

promulgation, either by the Dutch or by the British authorities, of the intemal
map. In fact, the Dutch Constitutionas revised in 1887,applicable at the time
of the Boundary Convention, did not call for promulgation of treaties. Article

59 of the Constitution, provided that the King concluded and ratified al1
treaties, subject to approval by the States-General of treaties which entai1 a
change in the State territory, impose financial obligationsor contain any other

provision relating to legal rights. Only as from 1953 did the Dutch

50 MC-M, vol. 1,pp. 1-3.
51 IC-M, vol. 1, p. 77, para. 5.47.
52 C. Rousseau, Droit internationalpublic, t. 1,Paris, 197148,pp. 167-169;
Carréde Malberg,La loi, expression de la volontégéné, aris, 1931, pp. 166-173.
53 On the Dutch practice before 1950 see A.M. Stuyt, Formeel Tractatenrecht.
Overzicht aan de hand van de Nederlandse praktijk,ague, 1966, pp.133-138.constitution come to includeprovisions on the promulgation of treatie~.~~The
Indonesian Counter-Memorial gives no reference as to a procedure of
promulgation. The lax wording is probably used here to shore up the legal

importance Indonesia triesto bestow on the internalmap.

4.38. The play on the word "official" by the Indonesian Counter-
Memorial is quite misplaced. Sir Horace Rumbold and the British embassy
staff followed the Dutch parliamentary debatein their professional capacity

and reported to the Foreign Office in London. But it is not because the
"officiais" knew about the internal Dutch map that it was "communicated" to
the British Government or "officiallyknown" by the British authorities. At no

moment during the negotiations or after signature or ratification of the
Boundary Convention didany representative of the Netherlands officially cal1
the attentionof Great Britainto the intemal map, let alone formulate any claim

beyond the east Coastof Sebatik. There certainly was no obligation to react to
every piece of informationpickedup by a diplomat.

4.39. Indonesia quotes the Court in the Maritime Delimitation and
Territorial Questions between Qatar and Bahrain (Jurisdiction and

Aclmissibility)case-'"ut the Doha minutes were negotiatedby the respective
authorities of the two Parties. The internal Dutch map was never produced
during the negotiation with Great Britain or communicated for observations

after signatureof the Boundary Convention.

4.40. By no standardscan the interna1Dutch map be considered as an

"agreement relating to the treaty" in the sense of article 31 (2) (a) of the
Vienna Convention or as an instrument "accepted by the other parties as an
instrument related to the treaty" in the sense of article 31 (2) (b) of the

Convention, as alleged by Indonesia in its ~ounter-~emorial.'~ Oppenheim
notes:

"For this purpose [i.e. interpretation] the context of a treaty

includes not only its text, preamble and annexes, but also any
agreement relatingto the treaty and made between al1the parties

54 See Articles 65-66 of theDutchconstitution of 1953,revised in 1956. See on the
variouschanges in the constitutionalprovisions on promulgationof treaties,J.G. Brouwer,
VerdragsrechtinNederland. Een studienaarde verhoudingtusseninternationaalen
nationaalrechtin eenhistorischrspectief,Zwolle, 1992anH.H.M .ondaal,De
Nederlandse Verdragspraktijk,The Hague, 1986,pp. 203-221. See on thebackgroundand
contents of the current parliamentaryact of 1994on approvaland promulgationof treaties
E.W. Vierdag, HetNederlandse Verdragenrecht,Zwolle, 1995,pp. 98-102.
55 IC-M,vol. 1,pp. 69-70,para. 5.p.73, para. 5.39.
56 IC-M, vol. 1,pp. 70-72,paras. 5.31-5.36. in connection with the conclusion of the treaty, and any

instrument made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an
instrumentrelated to the treaty.""

4.41. The context must proceed from the consent of al1the parties
concerned, whatever the form and modalities of that consent.'' Acceptance by

al1parties is essential. As the International Law Commission remarked in its
report to the General Assembly:

"The principle on which this provision is based is that a
unilateral document cannot be regarded as forming part of the
"context" within the meaning of article 27 unless not only was it

made in connection with the conclusion of the treaty but its
relation to the treaty was accepted in the same manner by the
other parties."59

4.42. Indonesia does not produce the slightest evidence of British
consent to the map either as embodying an agreement relating to the treaty or

as an instrument related to the treaty. The interna1Dutch map certainly does
not qualify as part of the context of the 1891Boundary Convention.

4.43. The comparison with the Livre jaune map considered in the

LibyaKhad case does not resist examination. The Livre jaune map was
considered by the Parties as part and parce1of the treaty arrangements. Annex
1of the 1955Treaty between France and Libya considered "the Franco-Italian

agreements of 1902" as an internationalinstrument in force for the purpose of
delimiting the boundary. The exchange of letters constituting these

agreements Statesthat:

57
Oppenheim'sInternationalLaw, 9" edition, 1992, vo1,pp. 1273-4. See also
T.O.Elias,TheModernLaw of Treaties, 1974, p. 75: "In other words, for a document to be
reparded as forming part of the context of a treaty for the purpose of its interpretation,it must
be the result of anagreement by1the parties to the treaty, must have been made in
connection with the conclusion of the treaty and must be underasosuch by al1of them"; 1.
SinclairThe Vienna Conventionon theLaw of Treaties, 2"dedn, 1984, p. 129; M. Yasseen,
RCADI, 1976,III, vol. 151,p. 3P.Reuter et P. CahierIntroduction au droit des traités,3"
édition, 1995,p. 89-90,para. 144.
58 "Cependant, la Convention de Vienne traduit une conceptionextensive de la notion
de contexte,puisque, aux termes de son article 31, $2, celui-ci comprend outre l'ensemble du

texte du traité,le préambuleet les annexes ainsi que tout instrument 'ayant rapport au traité
accepté comme telpar l'ensembledesparties',ce qui inclut bien sûr les accordsinterprétatifs,
mais ne s'y limite pas." A. Pellet et P. DaDroit internationalpublic6' édition, 1999,p.
598, para. 169.
ILC Ybk., 1966, vol. II, pII, p221. "the limit to the French expansionin North Africa, as referred to
in the above mentioned letter ...dated 14December 1900,is to
be taken as correspondingto the frontier of Tripolitania as shown
on the rnap annexedto the Declarationof 21 March 1899."60

The Court concluded: "The rnapreferred to could only be the rnap inthe Livre
jaune which showed a pecked line indicatingthe frontier of ~ri~olitania."~' In

short, the Livre jaune rnap was explicitly referred to by the 1902agreements
and was thus considered by the Court as an instrument accepted by the parties
to the main agreement. It was incorporated as an instrumentum to the 1955

treaty. There is nothing of the sort in the 1891 Boundary Convention. One
can only conclude that:

"In view of the absence of any rnap officially reflecting the
intentions of the parties to the[1890]treaty and of any express or

tacit agreement between them or theirsuccessors concerning the
validity of a boundary depicted on a rnap ...the Court considers
itself unable to draw conclusions from the rnap evidence
submitted in this case."62

4.44. The Dutch authorities knew well that the intemal map had no
special authority and carried no legal weight. On 8 August 1923,the Minister
of Foreign Affairs wrote to theMinister of Colonies. He noted:

"Another circumstance in favour of extending the land border of
Sebetik into the sea is a map, submitted with the bill mentioned
above, on which the border between the areas under Dutch and
Britishjurisdiction on land and sea is extended along the parallel

4"lO'N. As far as I could ascertain,this rnapdoes not result from
actual consultation between the Netherlands and Great Britain;
however, 1regard it as not impossiblethat that this rnap is known
to the British ~ovemment."~"

4.45. The Minister thus clearly admitted thatthe map had never been
communicated to the British authorities. He went on to suggest the
Government drop the idea of seeking a delimitationof the territorial waters, so

as to avoid any "possible rebuff from the British ~overnment."~~ His view

60 ICJ Reports, 1994,para. 61.
61 Ibid.
62 ICJ Reports, 1999, KasikililSedudu, para. 87. In the present case, there is an officia1
map, annexed to the 1915 agreement, but none "officially reflectingthe intentions of the
parties" in 1891.
63 MC-M, vol.2,pp. 27-28, AnnexMCM5.
64 Ibid.was that the interna1map had not settled the matter of delimitation off Sebatik
and that there had been no agreement onthe map.

E. Subsequent Conduct, Practice and Agreementsconfirm that the
1891BoundaryConventiondid notaddress the Issues of Maritime

Delimitationand Allocationof Distant Islands

4.46. The negotiations leading to the 1915 Agreement and officia1

map certainly provjded the opportunityfor both Parties to clarify the situation
of the distant offshore islands if they had been of any concem. The state of
geographical knowledge had progressed considerably since 1891, both on

mainland Borneo and in chartering the surroundingwaters and i~lands.~~The
British, Dutch and American naval surveys off North Borneo had in particular
located very precisely the two islands of Pulau Sipadan and Pulau Ligitan,

ignored or mislocated before 1891. The negotiations leading to the 1915
Agreement presented a unique opportunity to allocate the islands to one or the
other Party if they so decided. Commissionershad been appointed. An officia1

map was prepared, signed by the four Commissioners and annexed to the
Agreement. It would have been quite simpleto draw the allocationline on the
map and to locate the islands in reference to the line. As pointed out by

Malaysia, not onlywas this not the case, but the terms of the 1915 Agreement
and the map annexed to it clearly show thatthe intention of the Parties was to
determine the boundaryup the east coast of Sebatik and no f~rther.~~

4.47. The Joint ~e~ort,~~ signed by Messrs. Schepers and Vreede for
the Netherlands and Bunbury and Kendell for Britain, determined by mutual

agreement the position of the boundary line. The Parties gave a free hand to
the Commissioners. The Commissioners did not hesitate to depart from the
strict text of the 1891 Boundary Convention if necessary and, for instance,
changed the boundary line in the channel between the Westcoast of Sebatik

and mainland Borneo, in order to reach the middle of the mouth of the river
Troesan Tarnboe.

4.48. The report determines the boundary as traversing the island of
Sibetik, following the parallel of 4" 10'north latitude, as already fixed by
Article4 of the Boundary Convention and marked on the east and Westcoast

by boundary pillars. There is no question of any extension of the boundary
line east out to sea, nor a referenceto a further delimitationas provided by the

65 IC-M, vol.1,p.99,para.5.101.
66
67 MC-M,vol. 1,pp. 42-48,paras2.67-2.78.
IC-M,vol. 2,Annex25. Insert 7

Map attached to the 1915Agreement(Extracts)

Western terminal point of the boundary-lineas agreed

Easternterminal point ofthe boundary-line as agreedBoundary Convention. On the other hand, the western end of the delimitation
by the Joint Commission is so described:

"(g). The last-named watershed, or series of watersheds (and,
if necessary, the watershed between the Sedalir and the Sesajap
Rivers), until they meet the main watershed described in Article
3 of the Treaty."

The reference here is to the continuation of the boundary line westward, as
provided by Article 3 of the Boundary Convention. If the Commissioners had

considered the boundary line was prolonged eastward, they would have said
SO.

4.49. The map annexed to the 1915 Agreement confirms that the
boundary line stopped at the east coast of Sebatik Island. Signed by the four

Commissioners, it is an instrunzentum of the 1915 agreement and binds the
Parties as such. It is explicit. The terminal point of the boundary line
eastwards is on the east coast of Sebatik. There is no sign of prolongation of

the line out to sea. On the other hand, the western terminal point of'the
boundary line, where the line meets "the main watershed described in Article
3 of the ~reat~",~'located on the map at Boekit Padas (a major summit on the

range of mountains), indicates a continuation due south, in accordance with
article 3 of the Boundary Convention. If the Commissioners had thought the
treaty provided for an extension of the boundary line eastwards by an

allocation line, they would have likewise indicated the beginning of such a
line in thesame way as they did westwards. They chose not to do so and to

indicate the end of the boundary line on the map by a red cross. The contrast
can be seen on Insert 7 on the preceding page.

4.50. Allocation lines were indicated on maps annexed to boundary
treaties at the time. Such a rnap showing the allocation line is annexed to the
Convention of 12May 1886delimiting the French and Portuguese possessions

inWest Africa. The map is explicitly referred to as Map no 1 in Article 1 of
the convention.") ~ikewise the Convention of 26 June 1887 between China

and France relating to the delimitation of the boundary between China and
Tonkin included as an annex three maps "in two copies, signed and sealed by
the two parties". On one of the maps, the allocation line in the Gulf of Tonkin

was "marked by a red line": this is shown as Insert 8 opposite.

68
69 Tawao Report, sub. ((g.)
Award of the Arbitral Tribunal, 45ra.4.51. The lessonis clear. If the Commissionershad thought that such
an allocation line existed to the east of Sebatik, they would have at least

indicated it on the map. If they had omitted to do so, the concerned foreign
ministries would have specified the boundary in the Agreement, given the
information availablein 1915.

4.52. The 1922-1926 interna1Dutch discussions certainly prove that,
in the view of al1the Dutch authorities, the 1891 Boundary Convention had
not settled the boundary beyond theeast coast of Sebatik Island. The Dutch

Navy was pressing for a delimitation. It was arguing against prolongation of
the 4" 10'N parallel throughthe territorial sea. It considered a boundary along
the parallel as contrary to Dutch defence interests. The Governor-General

concurred and considered such a proposa1 as "absurd". He agreed that a
delimitation perpendicular to the coast of Sebatik was the only reasonable
solution.

4.53. If the Dutch authorities had thought that the 1891 Boundary
Convention extended out to the sea to include Sipadan and Ligitan, they
obviously would have taken that element into consideration. They would

certainly not have considered a modification of the 4"lO' N line in the
territorial waters, thus riskingjeopardy of the allocation of the islands in the
diplomatic discussions to come. They would at least have examined the issue

with attention. They simplydid not envisage it.

4.54. By Decree of 27 January 1916of the Governor-General of the
Netherlands East Indies, the 1915Agreement, attached Report and Map, were

made publicly known and published in the Indisch Staatsblad, 1916, no 145.
This follows explicitly from the text of the Agreement as well as from the
Decree of the ~overnor-~eneral.~' There can be no doubt that the Map was

part of the agreed text and, as such, was the officia1 description of the
boundary. This can be seen from the map, which is shown as Insert 9 on the
following page. The statusof the 1913-15Map thus contrasts sharply with the
unilateral internal Dutch map of 1891, which never received such an officia1

endorsement. The latter map never was officially published in the Officia1
Gazette as an annex to the 1891Boundaryconvention."

70
71 MR, Annex 5, below, pp. 13-14.
See the text of the 1891Boundary Convention as published IndischStaatsblad,
1892,no. 114.4.55. To sum up the positions of Indonesia and Malaysia on the 28

September 1915 Agreement and official Map: (a) both Parties accept the
existence, status and authorityof the 1915Agreement and Map, signedby the
four Commissioners and embodied in the international agreement, as an

international obligation; (b) both Parties agree that the boundary determined
by the Agreement and Map stops (or starts) at the point where the 4" 10'N
parallel intersects with the east Coastof the island of Sebatik; and (c) both

agree that the 1915 Agreementand Map do not determine any boundary line
within territorial waters or allocation line beyond.

4.56. Where the Parties disagree is on the legal conclusions to be
drawn from the agreed facts. Indonesia arguesthat:

"Accordingly, the fact that the 1915 Agreement, and the 1913
Report incorporated into it, said nothing about the boundary
eastwards from the island of Sebatik, i.e. out to sea in the
direction of, and to the north of, Sipadan and Ligitan, carries
with it no implication that the 1891 Agreement did not make

provision forthe eastward course ofthe boundaryout to ~ea."~~

4.57. Malaysia considers that the 1915 Agreement and Map
constitute an authentic interpretationof the treaty. In fact, the Map is the only

officia1map relating to the area and annexed to the treaty settlement. The
Agreement and Map embody a "subsequent agreement between the Parties
regarding the interpretationof the treaty or the application of its provisions" in

the sense of article 31 (3) (a) of the Vienna Conventionand, as such, "override
general rules of interpretati~n"~~ if necessary. The 1915 Agreement andMap
were implemented by the Parties with no difficulty for more than fifty years.

Indonesia "has, for fifty years, enjoyed such benefits as the Treaty of [1915]
conferred upon her,if only the benefit of a stablefrontier.. .It is not now open
to [Indonesia], while continuing to claim and enjoy the benefits of the

settlement, to deny that shewas ever a consentingparty to it."74

4.58. The negotiations openedfor the second Agreementpursuant to
the 1891 Boundary Convention were concluded two yearslater, in 1928.~' If
the Government of the Netherlands had any doubts or second thoughts after

72 IC-M, vol. 1, p. 103,para. 5.111.
73 Oppenheim'sInternationalLaw, 9h edition, vol. 1,p. 1268,para. 630.
74 Templeof Preah Vihear(Cambodia v. Thailand),ICJ Reports, 1962, p. 32.
75 Indonesia rightly insists on the importance of the issue and states that Malaysia fails
to mention the 1928 Agreement "in this conteIC-M,vol. 1, para. 5.98, p. 98. But see MC-
M, vol. 1p.46, para.2.77.the lengthy intemal discussions about the issuesof maritime delimitation and
allocation of islands, the obvious opportunity was there. The Government

decided not to raise the issue and to staycontent with the Convention as it was
in the vicinity of Sebatik, with no extension to territorial waters or, indeed,
beyond.

F. Conclusion

4.59. In conclusion:

(a) The 1891Boundary Convention addressed theissue of the land
boundary in Borneo.

(b) No maritime delimitation was considered by the Parties during
the conclusion of the 1891BoundaryConvention.

(c) Allocation lines were a current practice in 1891 and the years
following. But there is no indication whatsoever that the
Parties considered drawingan allocation line concerning distant
islands off the coast of British North Borneo in 1891.

(d) The interna1Dutch map was never "officially communicated
to the British Government or "promulgated" by the

Netherlands. It neverconstituted an agreement or an instrument
accepted by the other Party in relation to the treaty in thense
of the Vienna Convention.

(e) Subsequent conduct, practice and agreements confirm that the
1891 Boundary Convention did not address the issue of
maritime delimitation beyond the coast of Sebatik, much less

the issue of allocationof distantislands. Chapter 5

Possessionand Administrationof theIslands post-1891

A. The Two Strands of Malaysia's Case

5.1. Chapter 6 of the Malaysian Memorial demonstratedin detail the

continuous peaceful possession and administration of the islands by Malaysia
and its predecessors in title. This was expressed to be "a second and parallel
basis for upholding Malaysia's title".' The first basis was that "title to the

islands was acquired by grant of the previous sovereign,a situation which was
recognised by and was opposable to al1relevant Statesin the region as a result
of published treaties". Malaysia emphasised that "each of these strands is by

itself sufficient to uphold Malaysia's position against ~ndonesia".~Malaysia's
sovereignty over the offshore islands of North Borneo (now Sabah) is thus

based on transactions with Sulu, Spain and the United States and on the
continuous administration and exercise of authority over the islands in
question, an administration goingback to the late nineteenth century.

5.2. As to the first strand, the title to the islands basedon the United
States grants of 1907 and 1930, the position has already been thoroughly

canvassed in earlier Malaysianpleadings.3 It is summarisedwith references to
the evidence in Chapter 2 ab~ve.~ On these issues, Indonesia has relatively
little toSayin its ~ounter-~emorial,' and what it does Sayis of little value. It

is accordingly not necessary to deal with these issues yet again in extenso.
Before turning to the secondstrand of Malaysia's case, onlya few remarks are
called for.

5.3. Indonesia seeks to argue that the 1885Protocol did not extend
to the islands, relying on later, purely geographical definitions of the Sulu

Archipaelago and without paying any regard to the diplomatic history, in

I MM, vol.1, p.60, para. 6.1.
2 MM, vol.1, p.29, para5.1.
3 See MM, vol.1, ch5; MC-M, ch.3.
4 See above, paragraphs 2.4, 2.24-2.29.
5 SeeIC-M, vol.1,ch. 6.particular Article III of the very same s roto col t^also seeks to rely on the
United States uncertainty about the position following the voyage of the

Quiros, and its non-distribution of the 1903Hydrographic Office map.7 But it
is clear both from the context and from the correspondencethat the uncertainty
about which islands were affected (an uncertainty whichBritain and the United

States shared) had nothing to do withputative Dutch territory or putative Dutch
claims. The difficuliy related to theproblem of drawing a 9 nautical mile line

along a complex coastline with many inshore islands. The issue was perfectly
clear: whatever islands did not belong to the North Borneo belonged to the
United ta tes.^ In this discussion the Netherlands, although aware of the

question of the outlying i~lands,~neither was nor sought to be an interlocutor.

5.4. More generally, Indonesia still fails to grapple with an essential

difficulty in its case. It denies that the Sultan of Sulu could have retained
authority over the islands in dispute.'' But it ignores thepoint that the Dutch

authorities in 1891 recognised the effect of the Sultan's grant so far as
concerned mainland and islands (includingSebatik itself) 40 miles further east.
How could the Sultanof Sulu have granted title to Darvel Bay and its islands,

to Batu Tinagat and to the territory of Bomeo as far West as the mainland
opposite Sebatik, and not have retained title over islands more than 9 miles
from Semporna? In 1878,no-one hadthe slightest idea about a4" 10'line. No

doubt Britain, if it had by 1890 acquired title to the islands beyond 9 nautical
miles (either by occupation of terra nullius or adverse possession) could have
ceded them to the Netherlands in 1891. But this is not Indonesia's case, and

understandably so, since - quite apart from other considerations - there was
no question in the negotiations in 1889-1891that Britain was ceding any of its

eastern islands to the Dutch. No more was it suggested that the Dutch were
ceding Omadal or Mabulto the British!

5.5. Faced with this fundamental lacuna in Indonesia's case (a case
based upon a title the origins of which are now entirely mysteriousl'), there is
nothing more to be said on the firststrand of Malaysia'scase at this stage. It is

however necessary to Say something more about the second strand of
Malaysia's case, based on its long-standing administrationof the islands in

6 IC-M, vol. 1,pp.109-110, paras. 6.7-6.11. In the circumstances the conclusion at para.
6.11is the merest assertion.
7 IC-M, vol. 1,pp113-115, paras. 6.23-6.28.
X See MC-M, vol.1, p.67, para. 3.26.
9 As shown in correspondence helpfully annexed by Indonesia: IC-M, vo2,Annexes
28-29.
IO IC-M, vol.1,p.52, para. 4.26.
II Indonesia now accepts that it is doubtful whether Bulungan had any title to the area in
dispute: seebove, paragraph 3.1 and references.question. To this issue Indonesia devotes Chapter VI1 of its Counter-
Memorial.

5.6. The evidence of the continuous possession and administration
of the islands by Malaysia and its predecessors was set out in Chapter 6 of the

Malaysian Memorial and summarised in Chapter 2 of this ~e~l~." That
evidence is compelling. Neither Indonesia's comments thereon, nor its
assertion of alleged countervailing manifestationsof title by the Netherlands, in

any way succeed in diminishing the legal forceof the conduct of Malaysia and
its predecessors.

B. The Factsrelatingto Administrationof the Islands

In section 2 of Chapter VI1of its Counter-Memorial, Indonesia
5.7.
purports to examine the acts identified by Malaysia as evidence of the
administration of the islands by the BNBC, the British colonial authorities or
itself. It beginsI3by referring to the opening paragraphsof the relevant section

of the Malaysian Memorial, in which Malaysia describes the administrative
structure of the region of which the islands are evidentlya part. The principal

points in this introductory description, namely, the demonstration of the
authority of North Borneo over the Bajau communities on the various islands
lying off-shore the Sempornapeninsula'4and the CO-option of the local leaders,

appear not to have been understood by Indonesia. For the principal response
made by Indonesia is that none of the acts concerned either Ligitan orSipadan
because they al1related to townsor islands locatednorth of the 4"10'line.15

5.8. Once again, this approach demonstrates Indonesia's inabilityto

adopt as a starting point of its argument anything other than the conclusion that
it must prove. Indonesiastarts from the proposition that the lineof 4" 10'isan
"allocation" line by which the 1891Convention allocated to Britain the places
north of the line. This "allocation" argument has been disposed of in Chapter

4.16 The 1891 Convention line was not an allocation line and nothing in it
attributed to the Netherlands those islands clearly associated with the
Sempornapeninsula that happened to lie south of that line.

12 See above, paragraphs 2.13-2.31.
13 IC-M, vol. 1, p.126, para. 7.16.
14 MM, vol. 1,pp.63-64, para. 6.6.
15 IC-M, vol. 1,pp.126-127, par7.17.
16 See above, paragraphs 4.22-4.33.5.9. Indonesia seeks to further its case by suggesting that the Bajau
"did not meekly accept the administration imposed by the BNBC".'~ That is

neither here nor there. The fact is that the BNBC asserted authority over the
Bajaus and subduedthem. That the latter mayon occasion have disobeyed that
authority does not diminish the legal significance of the authority thus

asserted." This is especially so since the BNBC7s authority over the local
people was consolidated and increasingly accepted, especially after the

foundation of Semporna in 1887. Increasingly, the BNBC assumed a
protective role, which was of special importance for outlying islands such as

those of the Ligitan ~rou~.'~

5.10. Indonesia comments on the reference madeby Malaysia to "the

CO-optionof local leaders" such as Panglima dan^.^ B'ut in suggesting that
Panglima Udang was merely "a high-ranking local to whom the inhabitants of
Semporna would turn in case of disputes concerning preciselythe gathering of

turtle eggs and nothing more",21Indonesia disregards (and therefore does not
deny) the fact" that "the Company appointed Panglima Udang... as the Native

Magistrate of Darvel Bay, that his jurisdiction included Sipadan and that he
visited these places every twoor three mon th^".^^

(1) Effectivo ifBérsitainMalaysia

5.11. It is now appropriate to turn to the discussion of the specific
eflectivités presented by Malaysia and on which Indonesia has sought to

comment.

(a) Collection of turtleenas

5.12. In its Memorial Malaysia set out the facts relating to the

collection of turtle eggs and specifically identifiedthe manner and extent of the

17
18 IC-M, vol. 1,p.127, para. 7.19.
19 See MM, vol. 1,p. 61-64, paras. 6.5-6.6.
See the attached documentsrelating to protective measures necessary because of raids
on SiAmi1and other Darvel Bay islands in 1962. As a result the people of Danawan
20titioned foreater protection, successfully. See MR, Annex 6, below, pp. 15-22.
21 MM, vol. 1,p.64,para. 6.7.
22 IC-M, vol.1,p.128, para. 7.20.
Clearly recorded in MM, vol. 1,p.64, para. 6.7, and eviintearliby the
Affidavits of Panglima Imam Malang, 23 January-1975, MM, vol. 4, Annex 116,p. 90, para.
14and of Tilaran Haji Adbul Majid, ibid. Annex 117, p. 92, para. 8, as well as the Affidavit of
his son, Datuk Panglima Abdullah:ibid, Annex 120, p. 100,para. 2.
73 Governor C.V. Creagh's patent appointing Panglima Udang was written in Maiay
using Arabic characters. An English translation appears as MR, Annex 7, below, pp. 23-24.
Not a11the words in the patent are legible.involvement of the British authorities in the East Coast Residency at Tawao
and ~em~orna.~~It was noted, moreover, that there was never any Dutch or

Indonesian involvementin the matter.25

5.13. Indonesia expressly states that it"does not contest these facts",
though it goes on to say that "Malaysia exaggeratesthese acts and gives them a
legal significance they do not de~erve".~~Neither of these criticisms can be

sustained.

5.14. There is no exaggeration in the statement of the facts.
Indonesia's assertion that "Malaysia ignores the fact that Indonesians tooused
to collect turtle eggs on Sipadan before the occupation of the island by

~ala~sia"" is not supportedby any evidence. Indonesia pretendsto find some
support in the affidavits attached to its Memorial which establish that

Indonesian fishermen alsoused to fis inhthe waters around~i~adan.~*But that
is certainly not evidence that Indonesia ever collected turtle eggs there. Nor
does the affidavit of Mr ~ara~~am~h ~elp Indonesia. It says only that "Circa

1960s 1 was asked by my relative, Haji Abdul Hamid, a Bajau Tribe from
Sampurna, Malaysia, to look after turtle eggs atSipadan Island, where 1stayed
for two months". On the basis of this affidavit, clearly dredged up by

Indonesia at the last moment (as it is dated 6 February 2000), Indonesia now
suggests that the collection of turtle eggs was a "Bajau matter which had

nothing to do with sovereignty over the i~land"~'. If it was a Bajau matter,
surely that is indicative of the absence of any Dutch or Indonesian authorityin
that region. In fact, however, the affidavit, for al1its vagueness about dates

and details, again shows that the title to collect turtle eggs on Sipadan came
from the Darvel Bay Badjau community, and not from Bulungan or the
Netherlandsor Indonesia.

5.15. More significantly, the Indonesian suggestion passes over in

total silencethe fact, set out in detailby Malaysia, that as early as 1914Britain
took steps to regulate and control the collectionof turtle eggs on Ligitan and

Sipadan and continued to deal officially with matters related thereto." And
then, as if to denigrate the significance of the evidence of British officia1
-
24
25 MM, vol. 1,pp.65-69, para. 6.9-6.23.
26 MM, vol. 1, p.65, para. 6.10.
77 IC-M, vol. 1,p.129,para. 7.24.
28 IC-M, vol. 1,p.129,para. 7.24.
IC-M, vol. 1,p.130,para. 7.28.
29 Ibid.
70 IC-M, vol. 1,p.131, para. 7.28.
3l See MM, vol. 1, pp.65-68, para. 6.10-6.20, and see the summary, above, paragraph
2.15 with reference to the documents.conduct, Indonesia pretends that the regulations issuedby Britain were merely

an extension of persona1 not territorial jurisdiction - a contention that is
manifestly not in accordancewith the facts.

5.16. Equally to be rejected is the following unparticularised
allegation by Indonesia: "It is true that Malaysia refers to various documents

that it misleadingly tries to use as proof that the British authorities acted as
though they considered that the islandof Sipadanbelonged to them. However,
this is not the ca~e."'~ It is clear on the face of the documents in question"

that, contrary to the Indonesian contention, they demonstrate the British view
that Sipadan was within British territorial jurisdiction. Why else would the

British Assistant District Officer of Semporna have concerned himself for
many years with the regulation of turtle egg collection on ~i~adan?~~Why
would Panglima Abu Sari, as reported in the same letter, have said he thought

that "it was a Government Order" that Panglima Udang should havea share in
the eggs? And on what basis would the British Assistant District Officer have
had authority tell Panglima Udang to stop collecting eggs onSipadan in the

absence of a licence? It is to be noted that in identifying the so-called
"misleading" documents, Indonesia mentions onlytwoi5 and omits to mention

those documents cited in other paragraphs of the same part of Malaysia's
~emorial .'6

5.17. Indonesia seeks to place an wholly unsupportable construction
on the terms of the British Turtle Preservation Ordinance 1917," pretending

that the mention of Ligitan and Sipadan as "native reserves" meant that they
were not subject to British sovereignty. The words of the Ordinance do not
support such a construction. Section2 of the Ordinance makes it clear that it

applies to the collection of turtle eggs "within the State or the territorial waters
thereof '. Section 3 is an exception clause relating to native reserves withinthe
State. Such a clause would have been entirely unnecessary if such reserves

had not been subject toBritishjurisdiction as part of the State. This is clearly
confirmed by the fact that the other native reserves listed in Schedule C of the
Ordinance, namely, the area from Nosong Pointin Kimanis Bay to Jesselton,

including Pulau Tiya and Gaya Island andKudat District, including the islands
therein, were and are incontrovertibly parts of the State far removed from any

area that could be the subject of territorial dispute. What matters about the

32 IC-M, vol. 1,p.131,para. 7.31.
33 MM, Annexes, vol. 4Annexes 91-99.
34 MM, Annexes, vol. 4Annex 91.
3.5 Those mentioned in MM, vol. 1, pp.65,67 paras. 6.11,6.16.
36 SeeMM, vo1.1,pp.66-68, paras. 6..13,6.14,6.15, 6.18,6.19, 6.20.
37 MM, vol.4,Annex 97.1917 Ordinance is that in identifying Sipadan Island as a native reserve, itis
treating it as part of British territory.

5.18. If any additional evidence is required of the fact that Britain
regarded the native reservesas subject to its sovereignty andjurisdiction, it is
to be found in the proviso that appearsin the last two lines of Section 3 of the

Ordinance:
"... provided that natives collecting turtleeggs in such areas shall
be subject to any rules declared hereunder for the protection of

the industry."

5.19. Indonesia attempts to denigrate the significanceof the mention
of Sipadan as one of "our islands" in the officia11922 report on "Commercial
Sea Products from the Coastof British Borneo", complaining that "no details

of the author ...are given nor are any details provided about who was involved
in the studyn." But the document on its face has an officia1provenance and
has obviously been carefully prepared on the basis of governmental records.

And the complaint that the report is"a one-off do~ument"'~really scrapes the
bottom of the barrel. What is wrong with a "one-off' document if its official
character is manifest, it evidences the understandingof the British authorities

regarding the extent of their territory in that year and was obviously not
prepared for the purposes of the present litigation?

5.20. Finally, Malaysia is bound to draw attention to Indonesia's
suggestion that the British authorities "lacked a clear idea as to who was the
owner of ~i~adan".~' This suggestion is totally contradicted by the hard

evidence of Britain's activitiesin relation toSipadan in respect of the principal
economic activity relevant to that islandat that time, namely, the collection of
turtle eggs. And the insufficiency of the Indonesian argument becomes the

plainer when one recalls that at no time and in no respect whatsoever did the
Netherlands give any indicationof its claim to title over Sipadan. The use of
the words "in fact" to introduce the Indonesian assertion that the local
inhabitants "were used togathering turtle eggs in full CO-operationwith local

Bajau inhabitants who were governed by the Dutch administration" isa totally
unfounded and unsupported invention. The local inhabitants who gathered
turtle eggs were from Danawan, one of the Ligitan Group. They looked to

Lahad Datu and Sempoma for assistance in the resolution of disputes and

38
39 IC-M,vol.1,p.132,para.7.34.
40 Ibid.
IC-M, vol.1, p.13para.7.35.confirmation of their rights.41Indonesia produces no evidence at al1to support
its suggestion that any of the inhabitants in that locality "were governedby the

Dutch administration".

(b) Bird Sanctuary
5.21. The next example given by Malaysia of British officia1activity

in relation to Sipadan was the action of the Conservator of the Forests at
Sandakan in proposing in 1932 the establishment of a megapode preserve on
Sipadan, and the subsequent implementationof the proposa1 ina notification in

the Officia1Gazette in 1933.~~Indonesia centres its comment on the 1935map
of the District of Lahad Datu which shows Sipadan as a "bird sanctuary".

Indonesia's commenton the map (which, of course, has nothing to do with the
legal significance of the actions taken by Britain in 1933) is that itdoes not
include Sipadan within the lines "which seem to demonstrate the extent of the

administrative b~undaries".~' Irrelevant as this comment is to the significance
of the British actions of 1933,it provides yet another example of Indonesia's
inclination to rest its contentions on a misdescription of the facts. The same

sentence in which Indonesia mentions the fact that Sipadan is not surrounded
by the lines which demarcate the extent of the administrative boundaries also

includes the statement that in this respect Sipadan is "unlike al1 the other
islands situated north of latitude 4'10'N". This statement, with its implication
that because Sipadan did not fa11within administrative boundary lines drawn

on the map, therefore it was not regarded as part of British North Borneo, is
simply wrong. Sipadan is net "unlike al1the other islands situated north of
latitude 4" 10' N". Moving from Westto east across the waters south of the

Semporna Peninsula, the map shows that the following islands, al1lying north
of the 4" 10' N line, are not included in the limits depicting Semporna:
Gusungan, Mabul, Kapalai, Danawan and Si Amil. There has been no

challenge to Malaysian title over these islands on the ground that they were
outside the limits of Semporna. There is no reason why Sipadan and Ligitan

should be regarded differently.

41 It may be noted that Malaysian concern for conservation of turtles nesting on Sipadan
continues to the present day. In 1993, on instruction of the Malaysian Government, the
companies which conduct tourist operations on Sipadan entered into an agreement with the two
Semporna residents who continue to have the right to collect turtle eggs on Under the
Agreement, an annual payment is made to these two persons, Alukan bin Kaneh and Munting
bin Pg. Abu Sari, and theyagree not to exercise their right to collect eggs on Sipadan. Both
parties to the Agreement "covenant that they shall endeavour toe that al1turtle eggs laid
shall remain in situ for the natural hatching and there shall be no remosame Save in
accordance with the instructions from the Department of Wildlife" (Clause 7) For the
Agreement see MR, Annex 8, below pp. 25-29.
42 MM, vol. 1, p.69, para. 6.24, supported by MM, vol. 4, Annexes 100, 101.
43 IC-M, vol. 1,p.133,para.7.37.5.22. Finally, in this connection, Indonesia contends that the actions
of the British authorities in relation to megapodes do "not amount to proof of

the colonial authorities'wishto behave à titre de souverain over ~i~adan".~~It
is difficult to know what content Indonesia would give to the concept of "à

titre de souverain" if it does not include governmental legislation and other
officia1actions implementing such legislation adopted as a matter of public
interest, namely the protection of the en~ironment.~~ As was said in the

Eritreaflemen case:

"Evidence of intentionto claim the Islands à titre de souverain is
an essential element in the consolidation of title. The intention
can be evidenced by showing a public claim of right or assertion
of sovereignty over the Islands as well as legislative acts openly

seekingto regulate activityon the ~slands."~~

(c) Constructionand maintenanceof li~hthouses

5.23. As further evidence of British/Malaysian governmental activity
in relation to Sipadan and Ligitan, Malaysia refers to the construction,

notification and maintenanceby the North Borneo Government of navigational
aids and lightson the islands from 1962~nwards.~'

5.24. Indonesia's response falls into two parts. The first purports to
be anexplanation of why Indonesia did not object to the construction of the

lights in 1962and 1963.~~But even if the excuses produced by Indonesia for
its silence in 1962and 1963were valid (and Malaysiasees no point in debating

the political conditions of that time or the then policy of Confrontation which
was the source of so many difficulties), Indonesia does not assert that they
extended beyond the first half of the 1960s. No explanation is offered by

Indonesia as to why it did notraise any objection to the lights after that time.

5.25. The second part of the Indonesian response draws upon two

cases - the Eritreah'emen case and the Minquiers and Ecrehos case - to
support the contention that the establishment of lights and buoys is not

normally taken as a test of sovereignty and does not constitute proof of
occupation à titre de souverain." It is true that in those two cases the Arbitral
Tribunal and this Court respectively did not find that the construction of the

44
45 IC-M, vol. 1,p.133,para.7.38.
46 See MM, vol. 4, Annex 101.
47 114International Law Reports, p. 69, p24a1.
See MM, vol. 1,pp.69-70, paras. 6.25-6.29. The supportinp evidence is in MM, vol.
4, Annexes108-1 11, 13.
4s IC-M, vol. 1,p.134,para. 7.39.
49 IC-M, vol. 1,pp.134-135, paras. 7.40-7.43.lights was sufficient evidence of the intention of the Government concerned to
act as sovereign over the territorial location of the lights. But that conclusion

was reached on the basis of the facts particular to each of the two cases, and
cannot be applied to thetwo islandshere.

5.26. The circumstances in which the Tribunal in the EritreaEemen
case made its remarks about the effect of the establishment of lighthouses are
peculiar to that case, whereas a reading of the whole of the relevant part of the

Award, and not merely the lifting of a line out of context, shows that the States
concerned did not, in their special situation, regard the construction of a
lighthouse with the knowledge and consent of the other interested States as

leading to the conclusion that theState constructing the light thereby intended
to act à titre de souverain in respect of the location of the light.'O In the

present case there was no such situation. There was no discussion between
BritainIMalaysia and Indonesia regarding the constructionof the lights. There
was no question of whether Indonesia might construct the lights instead of

Malaysia. The construction of the lights was a straightforwardreflection of the
sovereign authority of BritainJMalaysia. That authority was duly publicised
and was never challengedby Indonesia.

(d) Control of tourism

5.27. By way of indication of the continuity of the exercise of its
authority over Sipadan, Malaysia has described the development of Sipadan as

an attraction to tourists,especiallyscuba di ver^.^ Indonesia admitsthese facts,
but claims that it "has protested on many occasions about these
de~elo~ments".~' Examination of the passages to which the Indonesia refers

shows that Indonesia made no protest on this subject before May 1988;'~and
that the only subsequent Indonesian protests were made in 1992, 1993 and
1994. There is also an element of exaggeration in Indonesia's descriptionof its

protests. For example, it lists under what it calls its numerous "notes verbales"
a report of 1999which waspurely an interna1report of the Indonesian ~av~.'~

5.28. But the important point to be made about these protests is that
they did not begin until 1988, apart from the discussion between the two sides
in 1969. No protest of any kind was made by Indonesia until 1980~'and this

related not to tourism but to Malaysia's map of 1979 showing the limit of

50 See e.g. 114InternationalLaw Reports, at p. 66, para. 228.
S1 MM, vol. 1, pp.18,71, paras. 3.19, 6.30-6.31.
52 IC-M, vol. 1,p.135,para. 7.45.
53 IM, vol. 1,p.171, para. 8.71.
54 IM, vol. 4, p.461, Annex 182.
55 IM, vol. 4, p.235, Annex 140.Malaysia's territorial waters and continental shelf. As can be seen from the
annexes to Indonesia's own Memorial, eachof these protests was rejected by
~ala~sia.'~

(2) Absence of Dutch and Indonesianeffectivités

5.29. It is now necessary to turn to whatthe ICM calls "Dutch and
Indonesian activities relating to the Islands" - a description which is

remarkable having regard to the paucity of positive evidence that the section
contains. Once again the Court is treated to the spectacle of Indonesia
attempting to makea soufflé without eggs.

5.30. The opening substantive paragraph begins with the statement:
"After the entry into force of the 1891 Convention the Dutch activities
,957
continued... A footnote refers to the so-called pre-1891 activities.
Examination of this reference shows that only oneof the items in question even

alludes to Sipadan. "During the period from 1875 to 1877 the Dutch vesse1
HNLMS Admira1 van Kinsbergen conducted patrolling activities both around
the island of Sipadan and even around islands lying further to the north". The

only item of evidence adduced in support of this assertion is an extract from
the ship's log book, misleadingly described as"Extract from the log-book of
HNLMS Admira1 van Kinsbergen for 10 and 11June 1876 on patrol off the

coust of Boeloengaa" (emphasis s~~~lied).~*As has been shown, the original
manuscript text of the logbook in the Dutch language contains no mention of
the italicised words. Indeed, the general locationis described as "~olozee".'~

5.3 1. So much (or so little) then for "activity before 1891". What
about activity after 1891?

5.32. Taken in chronological order, Indonesia refers first to the

surveying activities of HNLMS Macasser in 1903. The "real significance"
attached by Indonesia to this survey "is that it shows Dutch activities in the
area, demonstrating that the Dutch had interests there".60 If isolated naval

surveying and cartographic activity is sufficientto establish an "interest" in an
area, and such display of interest is in its turn sufficient to evidence title to the

56 See IM, vol.4, Annexes 141, 146,148,149,150, 151,153,154,156, 157, 159, 165,
166, 167, 168, 171, 172, 174.
57 IC-M, vol. 1,p.136, para. 7.47,referring back to IC-M,para. 4.16.
58 IC-M, vol.2,Annex 12.
59 See above, paragraph 3.23.
60 IC-M, vol. 1p.137, para7.50.area surveyed, then it should be compared with the activity of the British Navy
which constantly surveyed and mapped the coasts of thousands of miles of
foreign territory without Britain seeking to assert title thereto on the basis of

such activity. If the surveys of the Macasser off British North Borneo had
revealed the existence of Dutch islands in the area, these would have been
shown in the Dutch chart of 1905 and its 1915 revision, which used the

Macasser's data. But of course they were not: no Dutch claim emerged from
this voyage.61

5.33. Indonesia next asserts in very general terrns that "the Dutch

Navy periodically patrolled the seas around islands located off the north-east
Borneo coast which were considered to be under Dutch ~overei~nt~".~~
Needless to say, mere patrolling off the coast of an island does not evidence

sovereignty over it.

5.34. But even the evidence of such patrolling provided by Indonesia

is flimsy in the extreme. Indonesia merely says thatthis patrolling "is shown
by the considerable number of warships listed in the Koloniale Verslagen
(Annual Report on the Colonies presented to Parliament by the Dutch

Government) which are shown to have been present off the coast of north-
eastern Borneo. The islands considered to be under Dutch sovereignty
included Sipadan and Ligitan, as is shown by the log-books of ships

conducting these patrols."63 The only material produced in support of these
rather large propositions consists of Annex 32,@entitled "List of ships of the
Royal Netherlands Navy present off the coast of Northeast Borneo during the

period 1895-1928".~' The source given for this list is the Koloniale Verslagen
just mentioned. The ICM provides no backing for this list, except in two cases,
the Lynx in 1921~~and HNLMS Koetei in 1910.~' The Annex produced in

support of the presence of the Koetei is merely an extract from its log-book
which does no more than give details of the course it pursued on 30 September
1910, a course which, it seems, involved passing by Sipadan with a
corresponding passing mention.@ No supporting details are given regarding

the other 29 instances listed in Annex 32. To these, therefore, no significance
at al1can be attached.

See the Dutch maps shown in MC-M, vol. 2, Maps 2 & 3.
IC-M,vol. 1,p.136, para.7.47.
Ibid.
IC-M, vol.,Annex 32.
Ibid.
See also MM, vol. 1,pp.81-82, paras.7.15-7.16; MC-M, vol. 1,pp.73-74, paras. 4.8-

See IC-M,vol.2,Annex 33.
See further above, paragr3.25.5.35. Even so, it may be noted that the "presence" said to have been
manifested by these ships was not a regular presencebut appearsto have rather

occasional and intermittent. This kind of intermittent "presence" proves
nothing except that the area was evidently of only limited and occasional
concern to the Netherlands Navy. Moreover, Indonesia provides no

information at al1on Dutch navalpractice (if any) after 1928.

5.36. Indonesia then passes once more to what it describes as the

"highly significant Lynxexpedition" of November 1921. There is no need for
Malaysia to repeat the comments that it has already made on this episode.69

The crucial question, as with the Makasser, is: what happened next? In the
case of the Makasser, the answer is: nothing. No claim was made on the
ensuing maps.70 The Lynxepisode led to interna1Dutch deliberations of 1922-

1926, described already.71 These indicate clearly that it did not occur to the
Dutch naval authorities at that time that the boundary extended seawardof the
territorial sea of Sebatik or that Sipadan fell within any area over which the

Netherlands possessed title. As the Vice-Admira1of the Netherlands Indies
and the Governor-General of the Netherlands Indies both said: "... it would

hence be absurd to take the - merely accidental - last course of the land
boundary as the determiningfactorfor the maritimebo~ndar~".~~

5.37. As regards the significance of the Indonesian Act of 16
February 1960,Malaysia has little to add to its earlier acco~nt.~~Indonesia
seeks in two ways to escape from the implications of its non-use in 1960 of

Sipadan and Ligitan in the process of drawingits archipelagicbase~ines.~~

5.38. The first is by stressing that international law does not require
States when establishing archipelagic waters to use al1permitted base points
permitted under international law. This is a highly questionable proposition.

The 1982 Convention on the Law of the Sea provides in article 47(1) that "an
archipelagic State may drawstraight baselinesjoining the outermost points of
the outermost islands and drying reefs of the archipelago" (emphasissupplied).

69 See MM, vol. 1,pp.81-82, paras.7.15-7.16;MC-M, vol.1, pp.73-74, paras.4.8-4.9, and
see above, paragraphs 3.26-3.29.
70 See above, paragraph 5.31.
71 See MC-M, vol. 1,pp.74-80, paras. 4.10-4.18, and see also above, paragraphs 3.26-
3.29.
72 See MC-M, vol. 1,pp. 74-75, paras. 4.11-4.12.
73 MC-M, vol. 1,pp.83-86,paras. 4.25-4.31.
74 See IC-M, vol. 1,pp.138.139, para.7.54-7.55."Outermost" means just what it says - o~termost.~~The assumption must be
that in the absence of an expressreservation, the islandsselected as base points

are in fact the outermost islands and that there are no more islands lying
beyond them that are claimed as part of the archipelago or as being subject to

sovereignty of the archipelagic State. Indonesia made no such reservation in
1960 and Malaysia was fully entitled, therefore, to believe that Sipadan and
Ligitan were not claimed as part of the Indonesiaarchipelago.

5.39. The second device Indonesia uses to avoid the implications of

its non-use of Sipadan and Ligitan is to compare Indonesiays failure to use
Sipadan and Ligitan as base points to Malaysia's alleged non-use of the same
islands in determining the extent of its territorial sea before 1969. But the two

situations were not the same. Malaysia had not - and still has not -
published a detailed map of its baselines. It has of course published its

continental shelf boundaries, in 1979,in a way which takes full account of the
two islands in question.76 In the meantime it relies on the rules of the 1awof
the sea relating to its land and islandterritories.

5.40. For Indonesia, by contrast, the task was one of implementing

new legislation that sought to represent al1the islands and the waters lying
between them as a single unit, to be treated as Indonesian national waters
subject to its sovereignty. The coverage of the legislation was intended to be

th~rou~h.~~

5.41. In stating that it could also have claimed Sipadan andLitigan as
base points, but did not do so, the onlyexplanation Indonesia offers is that the
1960 Act "was the result of injudicious haste in the legislative process" and

that the use of small-scale maps which were not able to depict certain
Indonesian i~lands.~' This is hardly plausible, especially having regard to the

fact, of which Indonesia makes no mention, that the 1960 Act was
foreshadowed on 14December 1957by a major announcementon the part of

75
There is no suggestion in the preparatory work of UNCLOS that "outermost" is used
otherthan in its ordinary meaning. See the Virginia Commentary on UNCLOS, 1982,vol. 2,
pp. 399-432.
76 See MM, vol.5 Map 19.
77 Indonesia has stated that certain islands not identified in the 1960 Act were
nonetheless accepted by Malaysia as basepoints in subsequent negotiations. These were the
islands of Pulan Tokoing Boro and Pulan Penjibu (in the SouthChina Sea) and Tandjing Parit
and Pulan Batu Mandi in the Malacca Strait. In fact they are so close to the Indonesian base
lines as drawn that they would fa11within the Indonesian territorial sea. Sipadan and Ligitan
do not lie in thee geographicalrelationship to the coasts of Indonesia as do the other
islands claimed by Indonesia in earlier negotiations.
78 Affidavit of Admira1Adi Sumardiman, IM, vol5,p.9, Annex B.the Council of Ministers stating that "al1 waters around, between and

connecting, the islands or parts of islands belonging to the Indonesian
archipelago irrespectiveof their widthor dimensions are natural appurtenances
of its land territory and therefore an integral part of the inland or national

waters subject to the absolute sovereignty of ~ndonesia".~~Can the product of
over two years preparation for the implementationof the 1957 announcement
be called "the result of injudicious haste"? In a matter of such national

importance, would the Indonesian authorities have worked on the basis of
small-scale maps?X"he truth of the matter is that the 1960Law was carefully
prepared over several years, was intendedby Indonesia to be highly significant

and was regarded internationallyas such. To pretend now that itwas prepared
carelessly and in haste is absurd.

5.42. Nor does Indonesia grapple with the consequences that would
have followed if Sipadan and Ligitanhad replaced point36b in the Indonesian
baseline. The point can be seen from Insert 10,on the preceding page. Where

would the line have run if Sipadan and Ligitan had been 36b and 36c
respectively? Would ithave run back to the present point37 or would ithave
run to 38 or 39? If such possibilities existedof thus significantly enlarging the

area of Indonesian national waters,does not the argument of injudicious haste
and the useof small-scale maps ring even more hollow? 1snot the morelikely
explanation thatbecause of the absolute lack of contact both then and in earlier

years betweenIndonesia and Sipadan and Ligitan, they werenot thought of as
belonging toIndonesia at all?

5.43. Indonesia seeks to compare the deficiencies of its 1960claim
with certain omissions from Malaysia's continental shelf maps. But the
coinparison is inexact. In contrast to Indonesia which was obliged to use its

"outermost islands", nosuch obligation restedupon Malaysia. Malaysia'stask
was a inuch more limited one. In any case, as noted, Malaysia has never
pi-oduceda base-line map and has, therefore, not made to Indonesia Lin?

representationcomparable to those made by Indonesia.

5.44. Turning to Indonesia'streatinent of the oil concessions granted

by itmention should be made of the misleading manner in whichthe subject is
introduced: "The oil concessions issued by Indonesia ctre the other i~zstctrzc~
ri~erztiorzedv Mc~laysia as allegedly showing an absence of administration by

7<J See Whiteman's Digest oj'lnrernatioh\v,vol. 4, p. 284.
XO The scheduletothe 1960Act (IM, vol. 4p.121,Annex 128)contains a list of 201
points with names and coordinates speciîItwas evidently prepared with care.Indonesia after independence".81 That is hardly the correct way of reflecting
Malaysia's general contention that Indonesia has not performed any acts of

administration of the islands after independence. It is not for Malaysia to
prove a negative. The expression of Indonesia's claims to its archipelagic

waters and its claim to potential oil-bearing areas are but two examples of
Indonesia's conduct, selected because in those contexts we might have
expected a more positive approach. But it is not necessary for Malaysia to list

a whole range of activities that Indonesia might have pursued and then point
out that Indonesia has not pursued any of them. Such limited items as
Indonesia has mentioned have already been dealt ~ith.~~ In its Counter-

Mernorial, Indonesiaprovides nothing more,nothingnew.

5.45. In short, Indonesia's pretensions to activity demonstrating

DutchIIndonesian authority over the islandsboil downto four episodes - one
in 1876, when the HNLMS Admiral van Kinsbergen sailed near Sipadan, but
not Ligitan; a second, in 1903, when HNLMS Macassar carried out some

surveys of the coastal areas in North Borneo waters but seems not to have
landed on the disputed islands; a third, in 1910, when HNLMS Koetei was

present in the area, and a fourth, in 1921,involving HNLMSLynx. This is not
evidence of the exercise of governmental activityin and in relation to Sipadan
and Ligitan indicative of any claim of title to the islands, let alone a claim that

compares with the significant and continuing administrative actsof Britain and
Malaysia relating toboth islands.

(3) Post-1969Activitiesof theParties

5.46. Malaysia notes Indonesia's acknowledgement that activitiesof
the Parties after "the critical date... may confirm the legal situation existing
when the dispute ~r~stallised".~'In fact in the present case Indonesia cites no

governmental activities of any kind after 1969, while it admits that Malaysia
has continued and intensified its administration of the islands (indeed, it
complains of the fact). Even on the relatively restricted view taken by

Indonesia of the scope of post-1969 activitie~,~~ it is the case that Malaysia's
activities stronglyconfirm the legal situation existing in 1969.

81
IC-M, vol. 1,p.139,para.7.56 (emphasisadded).
82 MC-M, vol. 1,pp.93-95,paras. 4.46-4.48.
84 IC-M, vol. 1, p.140,para.7.60.
However tribunals have taken a more expansiveview. In this connection,Malaysia
strongly prefers the approach of the TribunalPalena case, 38ILR,at pp 79-80. There
the President, Lord McNair, noted "that the Court has considered the notices of the critical date
to be of little value in the presention and has examined ail the evidence submitted to it
irrespective of the date of the acts to which such evidence relates".(4) Thernapevidence

5.47. There is only one officia1map reflecting the agreed viewsof the

two Parties: the rnap attached to the 1915 Agreement. On that map, the
terminal point of the boundary line is on the eastcoast of the island of Sebatik.
No continuation of the line out to sea is shown. The rnap is a vital indication

of how the Parties interpretedand applied the 1891Convention. Its importance
has been fully analysed in Chapter4.85

5.48. So far as the other maps are concerned, there appears tobe no
great difference between the Parties regardingthe value of rnap evidence. As
Indonesia has said: "...the rnap evidence is relevant in assessing what the

views of the interested parties were with respectto the territorial situation in
the area of c~ncern".~~ Subject to the observations which it has made in its
Counter-Mernorial, Malaysia is able to accept this tat te ment. ^u^t the

question remains: what do the maps actually show regarding the views of the
interested parties with respect to the territorial situationin the area of concern?

5.49. In this connection, five maps in particular may be recalled.
Each is an officia1rnap prepared by the government either in the Netherlands

or the Netherlands ~ndies.~~Their provenance, authenticity and effect cannot
be questioned. Each of these maps clearly contradicts the Indonesian thesis
and supports that of Malaysia. On each of the maps, the boundary line can

clearly be seen as crossing the island of Sebatik and terminating on its eastern
coast. In none of them does the boundary extend into the sea in such amanner
as to allocate or attributeSipadan and Ligitan to the Netherlands. The maps in
question are the following:

The Dutch "Survey Map of the Netherlands East Indies Archipelago",
(i)
prepared in 1897-1904by the Topographical Bureau at Batavia. This
was described in and attachedto the Malaysian ~ounter-~emorial.~~

85
86 See above, paragraphs4.46-4.57.
87 IC-M, vol. 1,p.143,para.7.71.
88 MC-M, vol. 1,pp.117-121,paras. 5.31-5.39.
Malaysia does not mean to disregardthe Dutch "ExplanatoryMemorandum" map,
prepared in 1891,whichappears to formthe basis of Indonesia's case.ButMalaysia has
commented on it at length (See MM, vol. 1,pp.96-99,paras. 9.3-9.9 andMC-M, vol. 1,
890,para. 5.8) and those comrnentsneed not be repeatedhere.
MC-M, vol. 1,p.103, para. 5.15,p.100, Insert 10andMC-M, vol. 2, p.59, Map 1.(ii) The Dutch rnap published in 1905by the Department of Hydrography
of the Dutch Ministry of the Navy. This too was described and

produced in Malaysia's ~ounter-~emorial.~'

(iii) The first officia1rnap of the Southern and Eastern Division of Borneo,
published in 1913.~'

(iv) The rnap of the Administrative Structure of the Southern and Eastern
BorneoResidence, 19 13.92

The 1905Dutch map, updated in 1915.93
(v)

5.50. The clarity of the position demonstratedon these maps, which

al1show the boundary terminatingat the east coast of Sebatik Island, cannot be
questioned. They stand as officia1 declarations of the Netherlands
Government. They constitute a total and comprehensive rejection of the

arguments founded by Indonesia as the basis of the 1891 Convention. The
Indonesian contention that the 1891 Explanatory Memorandum rnap is of
"considerable, if not dispositive,probative value"94simplycannot stand.

5.51. Compared to this impressive and consistent series of maps,

those introduced in the Indonesian Counter-Memorialas "Certain Keyaspects
of the Map ~vidence"~~provide no support for the Indonesian case. In
particular, it is difficult to understand why Indonesia should have wished to

give such prominence to one rnap that so clearly contradicts its own position.
It hangs a complex interpretationupon Stanford's 1903map.96 This is said to

be "highly pertinent" because it "depicted the southern limits of Elphinstone
Province as extending seaward from the Island of Sebatik along the 4O10'N
line of latitude to a point to the north and east of the islands of Sipadan and

~i~itan".~' However, what Indonesia haschosento overlook is the fact that the
heavy red line that depicts the agreed international boundaryclearly terminates

at the east coast of Sebatik Island. Whatever the rnap may show about the
administrativelimits of ElphinstoneProvince is of no importancewhen the line
that marks the international boundary is so clearly defined. Substantially the

same map, published by Stanford in 1906?* was used to illustrate the 1907

'>O
91 MC-M, vol. 1,p.103,para.5.14; vo1.2,p.60, Map 2.
92 MM, vol. 5, p.1, Map 1;see also MM, vol. 1,pp.4,108, paras. 2.6, 10.5.
93 MC-M, vol. 1,p.103,para.5.15 and Insert 11.
94 See MC-M, vol. 1,p.103, para.5.15 and MC-M, vol. 2, p.62, Map 3.
95 IC-M, vol. 1,p.144,para.7.73.
96 Ibid.
IC-M, p.145,para.7.74, For the rnapsee IM, vol. 1,rnap6.4, opposite p. 118;IC-M,
vol.1,rnap4.1, opposite p. 54.
97 IC-M, vol. 1,p.145,para.7.74 (a).
98 See MM, vol. 5, p.6, Ma6.Exchange of Notes between Britain andthe United tat tes,^a^nd once again it
showed the international boundary as ending on the east coast of Sebatik

Island. Moreover, this map, though clearly showing Elphinstone Province, as
in the 1903 map, does not show any southern limit to that Province drawn in
the sea.

5.52. Indonesia devotes considerable attention to one Malaysian map

which, in its view, "merits particular attention" - the map published by the
Malaysian Ministry of Lands and Mines in 1968.1°0 It claims to see in this
map, as well as in others, a representation of the seaward extension of the 4"

10'lineas the international boundary and maintains thatthese maps constitute
an admission against interest by the Malaysian ~overnment.'~' But this is a
highly generalised map whichdoes not show any islands south of Semporna at

all.lO' In any event, the important point to note is that Indonesia sees the
significance of these maps as showing that "Malaysia was of the view that a

line of territorial allocationexisted with Indonesia9,103he area and that that line
was the boundary fixed by the 1891Convention . Indonesia thus sees these
maps as contributing to the interpretation of the 1891Convention. It does not

see the Malaysian maps as introducing a modification of that Convention, nor
could it have done so. It is necessary, therefore, to weigh against each other
the interpretative value of the maps invoked by each side. Such a process of

weighing must lead, in Malaysia's submission,to the conclusion that the maps
cited by Malaysia - particularly the cardinal maps identified in paragraph
5.48 above - overwhelmingly support the position understoodby both Parties

to the 1891Convention, viz. that the boundaryline stopped at the east coast of
Sebatik Island and did not allocate to the Netherlands/Indonesia any islands

further east.

5.53. In conclusion, some comment is required in respect of

Indonesia's attemptto deny significance to the fact adduced by Malaysia that
so many maps show the 1891line as net extending out to sea. Indonesia's
position is that "these maps are entirely neutral with respect to the territorial

attribution of the islands of Sipadan or ~i~itan"."~ Malaysia finds it hard to
reconcile this statement with what follows only five paragraphs laterlo5where
Indonesia appears to be restating its fundamentalposition, namely, that "it was

no accident that the line was placed on key maps of the area. Its persistent

99 SeeMM, vol. 1, p.109,para.10.8.
100 IC-M, vol.1,p.146,para.7.76.
101 IC-M, vol.1,p.147,para.7.80.
102 As notedinMC-M, vol.1, pp.88-93,109,paras.4.37-4.45, 5.21.
IC-M, vol. 1p.148,para.7.84.
'04 IC-M, vol. 1p.149,para.7.88.
105 IC-M, vol. 1p.151,para.7.93.appearance...conclusively confirms Indonesia's sovereignty over the islandsof
9,106
Sipadan and Ligitan . Malaysia has always understood Indonesia's basic
argument to be that the boundary runs seaward along the line of 4" 10' N
because that was what was represented on the 1891Explanatory Memorandum

map. Are we now being told that the non-appearance of the boundary line
beyond theeast Coastof SebatikIsland does not matter?

C. The Legal Significance of Long-extended BritishMalaysian
Conduct

5.54. The facts of the matter are thus clear. Malaysia and its

predecessors in title have administered thetwo islands, as well as others in the
vicinity, since the late nineteenth century. Indonesia and its predecessors in
title have not done so, and until 1969 gave no appearance of even an abstract

claim to do so. What are thelegalconsequences to be drawn fromthese facts?

5.55. The first point to note, of course, is the conjunction of the facts
of long-standing Britain and Malaysian administrationof the islands and the

gant to Malaysia's predecessors, Britainand the BNBC, of title over them.
With the conclusion of the 1930 Convention, the only other State with any
claim to the islands, the United States, stepped out of the picture, and

BritishIMalaysianauthority over the islandswas notchallenged then for nearly
40 years.

5.56. But for the sake of argument, let us consider what the position
would be on a strictly bilateral basis, as between Britain and the Netherlands
or, now, as between Malaysia and Indonesia, leaving to one side al1

considerations of the significance of the transactions with the United States in
the period 1903-1931. Even on that (hypothetical) basis, British and now
Malaysian sovereignty over the islandswould beclearly established. The legal
significance of the presence in the islands of Malaysia and its predecessors

would derive from the now widely recognised concept of historical
consolidation of title.

5.57. Some remarks on the subject expressed by Sir Robert Jennings
in his authoritative work on The Acquisitionof Territory in InternationalLaw

may usefully be recalled at this point:

106
Ibid. "HISTORICAL CONSOLIDATIONOF TITLE

This ambiguity in actual cases based essentially on effective
possession suggests the question whether the various factors
contributing to building a title cannot usefully and instructively

be subsumed under the one heading of a process of
'conso1idation',and regarded as being for essential purposes al1
part of one legal process, or 'mode' of acquisition of territorial
sovereignty. This possibility has been advocated by Professor
Charles de Visscher, elaborating a formula used in the
Nonvegian Fisheries case... The passage is of such importance
that itmay beuseful to cite it at some length:

'4. Consolidation by Historic Titles. The
fundamental interest of the stability of territorial
situations from the point of view of order and peace

explains the place that consolidationby historic title
holds in intemational law and the suppleness with
which the principle is applied. It is for these
situations, especially, that arbitral decisions have
sanctionedthe principle quieta non movere, as much
out of consideration for the importance of these
situations in themselves in the relations of States as

for the political gravity of disputesconceming them.
This consolidation, which may have practical
importance for territories not yet finally organised
under a State regime as well as for certain stretches
of sea-like bays, is not subject to the conditions
specifically required in other modes of acquiring
territory.Proven long use, which is its foundation,

merely represents a complex of interests and
relations which in themselves have the effect of
attaching a territory or an expanse of sea to a given
State. It is these interests and relations, varying
from one case to another, and not the passage of a
fixed term, unknown in any event to international
law, that are taken into direct account by the judge

to decide in concreto on the existence or non-
existence of a consolidationby historictitles.'
... Thus, as Professor Johnson says, Professor de Visscher has
'embraced under a single heading the notion of straightforward

possession on the one hand and of adverse possession on the
other hand.. .' Under the single heading of 'consolidation' it is
now possible.. . to include both 'straightforward possession' and
'adverse possession'...

Now itmust be acknowledged at once that this passage from
Professor de Visscher's analysis is not just a suggestion de lege
ferenda; it is a penetrating and illuminating observation of the way Courts actually tackle questions of title to territorial
sovereignty. Thus it makes clear how recognition in varying
forms, and acquiescence, and estoppel perhaps are given an

important place in this scheme of things; and this is no doubt
right.

...itmust be emphasised that however importantal1these various
consolidating factors may beyit is still the factof possession that
is the foundation and the sine qua non of this process of

consolidation.
..It should be made quite clear, therefore, that the process of

consolidation cannot begin unless and until actual possession is
already an accomplished fact and that, although no time is laid
down, it remains true that it cannot be completed until after a
considerable periodof possession as ofa sovereign.

... the whole tendencyof consolidation is to make the origin of

the possession of ever-diminishing importance. No doubt this is
in a senserealistic.

... What is of decisive importance ...is not indirect
presumptions deduced from events in the Middle
Ages, but the evidence which relates directlyto the
possessionof the Ecrehos and Minquiers groups."107

5.58. A recent acknowledgementof the concept of consolidation is to

be found in the first Award of the eminent Arbitral Tribunal in the
Eritreanemen case.los There, the Tribunal said that "Evidence of intention to
claim the islands à titre de souverain is an essential element of the process of
7,109
consolidation of title . This passage relates back toan earlier one where the
Tribunal said:

"The modern internationallaw of the acquisition (or attribution)

of territory generally requires thatthere be an intentional display
of power and authority over the territory, by the exercise of
jurisdiction and State functions, on a continuous and peaceful

basis. The latter two criteria are tempered to suit thenature of the
territory and the size of its population,if any 9.II0

It is this concept which underliesMalaysia's reliance upon "long,peaceful and

undisputed administration"of the islands. ll1

107
The Acquisition of Territory in InrernatiLaw, Manchester, Manchester University
Prress, 1963,pp. 23-27. The concept has been more recently affirmed in Oppenheim's
'O8ernationalLaw (9~edition, by Jennings and Watts, 1992),pp. 709-710, para. 272.
109 114 ILR at p. 69, paras. 239-241.
110 Ibid., para. 241(emphasis added).
Ibid., para. 239.
III MM, vol.1, p.60, para. 6.3.5.59. Indonesia seeks to escape from the crippling impact of the
history of the islands by pretending that "the entire reasoning behind

Malaysia's argument is based on a fundamentally flawed premise: that
Indonesia lacks territorial title to theislands". It is true that Malaysia asserts,
in the first place, that Indonesia and before it the Netherlands not only lacks

title to the islands but also that neither of them ever possessed it. What
Malaysia does not accept is that this assertionby Malaysia is "fundamentally
flawed".

5.60. Another remarkable feature of Indonesia's argument is its

reservation of "its position on the question of whether a transfer of sovereignty
may result from a long period of undisputed occupation . 9' 112 This statement
amounts, in effect, to abandonmentof any responseby Indonesia to that aspect

of Malaysia's case based on long and undisputed occupation and
administration of the islands. It is a strange reservation to make in a pleading
which, if Indonesia's basic contentions regarding its sovereignty were correct,

should have been supported by detailed consideration of precisely this
question.

5.61. Indonesia seeks to introduce further confusioninto the case by
stating that "further discussion on this point [that is of the effect of acquisitive

prescription or the consequences of undisputed occupation] is of little
relevance given that Malaysia specifically dismisses this line of argument9'. Il3

Once again Indonesia significantly misstates Malaysia's argument. Far from
excluding recourse to prescription, Malaysia specifically asserts it as an
alternative argument.'l4 In a sentence that immediately followsthe one quoted

but disregarded by Indonesia, Malaysia expressly said: "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 asthe basis for

converting its longtime possession into a prescriptivetitle."115

5.62. In short, Malaysia has from the beginning made it clear that its

demonstration of Malaysian effectivitésover the islands servesa dual function:
first, it confirms Malaysia's titlewhich is independently based on a series of

valid legal instruments; second, even if - in a manner by no means clear or

II? IC-M, vol.1,p.122,para. 7.5.
113 IC-M, vol. 1,p.122, para7.5.
114 MM, vol. 1,pp.29,60, paras.5.1,6.1
115 MM, vol. 1,p.60, para.6.3.established - the Netherlands had at one time possessed title to the islands,

such title has beendisplacedby British/Malaysian effectivités over the years.

5.63. Indonesia goes so far as to express doubts about the validityof

the concept of acquisitive prescription in international law.lI6 The authorities

cited in support of this suggestion have been relegated by Indonesia to a
footnote, and Malaysia will respond to them in the same manner.'I7 The real

116
Ibid.
117 (i) Indonesia refers, first, to Judge Moreno Quintana's dissenting opinion in the
case concerning Rights of Passage over Indian Territov where he said that acquisitive
prescription was "a private law institution which 1 consider finds no place in international

law". However, it is clear from the context that in Judge Moreno Quintana's understanding the
majority of the Court did accept the concept of acquisitive prescription. On examining the
relevant paragraph in his dissenting opinion it may be observed that the sentence in question
follows his own statement that "there follows from the majority opinion a legal premise that 1

cannot accept". And he continued: "... it implies by definition a recognition that territorial
sovereignty can be acquired by prescription". This citation, far from strengthening Indonesia's
argument, serves only to weaken it.
(ii) The Kasikili case - Indonesia invokes the Court's allegedly "cautious approach" in
the Kasikili case as supporting Indonesia's doubts about the existence of the concept of

acquisitive prescription in international law. In truth, however, the Court expressed no view
about acquisitive prescription beyond saying that it "need not concern itself with the status of
that concept" since the conditions cited by Namibia itself were not satisfied in this case.
(iii) Nor is Indonesia assisted by the citation of "the careful consideration of the issue in

the edition of Oppenheim's International Law by Sir Robert Jennings and Sir Arthur Watts".
Nothing could be clearer than the followingstatement that appears at p. 706:
"... Again, others, whilst not requiring possession from time immemorial, held
that undisturbed continuous possession could under certain conditions produce

a title for the possessor, if the possession had lasted for some length of time.
This latter opinion seems to be in accordance with practice. There is no doubt
that, in international practice, a state has been considered to be the lawful
owner even of those parts of its territory of which originally it took possession
wrongfully, provided that the possessor has been in undisturbed possession for

so long as to create the general conviction that the present condition of things
is in conformity with internationalorder. Prescription in international law was
therefore defined in the previous edition of this work, as the acquisition of
sovereignty over a territory through continuous and undisturbed exercise of

sovereignty over it during such a period as is necessary to create under the
influence of historical development the general conviction that the present
condition of things is in conformity with international order." (Emphasis in
original)
In short, the view expressed in Oppenheim clearly favours the existence of the concept of

acquisitive prescription, though it acknowledges that no general mle can be laid down as
regards the length of time and other circumstances necessary to create such a title by
prescription. "Everything depended upon the individual case." (Oppenheim, p. 706, para. 270).
Malaysia will shortly review the activities of Britain and Malaysia against the conditions
mentioned in Oppenheim. This review will show that, in so far as prescription should need to

be claimed as an element in Malaysia's title (which is not admitted), the relevant conditions are
fully satisfied.
What has just been said about the acknowledgement of the existence of the concept of
acquisitive prescription is fully borne out by the references made by Indonesia in the same
footnote to the works of Professor Brownlie and Dr Kohen. Thus, so far as Professor Brownlie

is concerned, the denial of the existence of a doctrine of acquisitive prescriptionis essentially areason why Indonesia objects to the operation of prescription, and indeed of

any other assessment of title based on the conduct of Britain and Malaysia, is
that, quite simply, Indonesiahas nofacts that it can employ to counterthe legal

effects of the long administration by Britain and Malaysia of the islands in
question.

5.64. Malaysia does not consider it necessary to enter into a

discussion of whether its acts are of a nature to displace or to confirm an
existing title. Such a discussion, at any rate as presented by ~ndonesia,"~

assumes what it has to prove, namely, that Indonesia at a material time
possessed title to the two islands. But al1that matters for the purposes of the
present case are the facts of prolonged British and Malaysian conduct and of

the absence of any material Dutch or Indonesian conduct. Malaysia intends no
disrespect to the Court in submitting that the distinctions drawn by the

Chamber of the Court in the Frontier Dispute case between Burkina Faso and
~ali"~ do not assist in the present case. This is the more true when, in

identifying which of the four hypotheses suggestedby the Court is applicable
to this case, Indonesia takes as its starting point the very conclusion that it has

to reach, namely, that it is the holderof the legal title.

D. Conclusion

5.65. It remains only to recall the activities of Britain and the
Netherlands, as well as of the Parties themselves, that show that the
requirements for historical consolidation of title, no less than of prescription,

(insofar as this needs to be invoked) mentioned in ~~~enheiml~~have been

semantic objection, (he himself later adrnits that "the question ends as a matter of
terminology"), since he quite clearly accepts that rights comparable to acquisitive prescription

may be derived from acquiescence and estoppel. Indeed, he sets out a number of conditions for
acquisitive prescription. These are that possession must be exprestitre de souveraimust
be peaceful and uninterrupted, must be public, and must persist. As will be seen, al1 these
conditions are satisfied if the conduct of Britain and Malaysia needs be to viewed in terms of
acquisitive prescription.
Finally, Indonesiarefers to "the very comprehensive presentation of the whole problem" by Dr
Kohen. The reference scarcely supports Indonesia's attack upon the concept of acquisitive
prescription in a manner that is of any value to Indonesia. Although Dr Kohen objectively
describes the various points of view on the subject, the most important part of his presentation
is the section "La Jurisprudence" (pp. 60-68). This makes it clear that whatever words may
be used todescribe the process, international tribunals will accept the conduct of one State as

capable of defeating the title of another (if ever it existed) by reference to the nature of the
conduct, its duration, the attitude and behaviour of the other State concerned and the views of
118rd States.
119 As is suggested byIC-M, vol.1, p.122, para. 7.5.
IC-M, vol.1,p.123, para7.8.
120 See above, note 116(iii).satisfied. Britain, from before 1891,and Malaysia,since 1963,have exercised

sovereignty over the islandscontinuously,peacefully and withoutdisturbance.
The Netherlands and, more recently Indonesia, have never exercised any
degree of sovereignty over the islands. The period during which this
sovereignty has been exercisedhas endured forthe best part of a century even

before the year 1969whichIndonesia claims is the "critical" date.

5.66. There is no doubt that amongst the States most closely

concerned, particularly Spain andthe United States, there has been a general
conviction that the present condition of things is in conformity with
international order. Indeed, asthe Court will no doubt have remarked, during
the period since the taking in 2000 by terrorists of a number of hostages from

Sipadan, the episode has always been referredto in the world press as having
occurred on the Malaysian island of Sipadan. The evidence of this recognition
has been provided by Indonesia itself in a passage in which it mentions the

many protests that it has felt obliged to issue in relation to press reports in
France, Belgium, Thailand, Republic of Korea, Singapore, India and Saudi
~rabia'" which have uniformlydescribed Sipadan as Malaysian.

5.67. In short, the facts, in and of themselves, show conclusivelythat
Sipadan and Ligitan belong toMalaysia.

121
IC-M, vol. 1, p.142, para.7.69 and vol. 2, Annex 35. SUBMISSIONS

In the light of the considerations set outabove, Malaysia respectfully requests
the Court to adjudge anddeclare that sovereigntyover Pulau Ligitan and Pulau
Sipadan belongsto Malaysia.

Datuk Abdul Kadir Mohamad

Agent of Malaysia
Kuala Lumpur

2 March 2001 SUBMISSIONS

In the light of the considerations set out above, Malaysia respectfully requests
the Court to adjudge and declarethat sovereignty over Pulau Ligitan andPulau

Sipadan belongs to Malaysia.

Datuk Abdul Kadir Mohamad

Agent of Malaysia
Kuala Lumpur

2 March 2001 List of Annexes

Annex Description Page

1. Extract from mail report dated 23 June 1879fromResident
Meijer of Southern andEastern Divisionof Borneoto
Governor-General of the NetherlandsEast Indies,reporting
on a mission of the Assistant Resident at Koetei tothe Eastern
Coast of Borneo 1-2

2. Extract from the log-bookof HNLMSKoeteifor 27
September 1910 3- 5

3. Extract from log-bookof Soembingfor 16October 1891 6-8

4. Letter from Vice-Admira1Umbgroveto Governor-General

of the Netherlands East Indies,4 January 1922 9- 12

5. Decree of the Governor-GeneralNetherlandsEast Indies,
dated 27 January 1916,on promulgation 1915Agreement
with Tawao report andMap inIndischStaatsblad, 1916 13 - 14

6. Documents relating to protective measures necessarybecause
of raids on Si Ami1and other Darvel BayIslandsin 1962 15- 22

7. Governor C.V Creaghpatent appointingPanglimaUdang 23 -24

8. Agreement betweenBorneo Divers and Sea Sports (Sabah)
Sdn.Bhd., Pulau SipadanResort & Tours Sdn.Bhd. and

Sipadan Dive Centre Sdn. Bhd. Alukanbin Kaneh and
Munting bin Pg Abu SariANNEX1Extractfrom mail report dated23 June 1879from Resident Meijerof Southernand

Eastern Division of Borneo to Governor-Generalof the Netherlands East Indies,
reporting on a mission of the Assistant Residentat Koetei to the Eastern Coastof

Borneo

Source:ARA,Min. of Col.,Mail Reports 1879,Microfiche585,No. 400, [sheet no. 21

Extract of the text in Dutch:

"Uit verder ingewonnen informatiebleek, helaas, dat de kuststrook van Seboekoetot aan

den Batoe Tinagat geheel onbewoond is en zich slechtsdiep in het gebergteDaijaksche

stammen ophouden. Ook de bewoners van Seboekoe zouden dat eiland verlaten en zich

in de benoorden Gerbang gelegen kampong Sagangan gevestigd hebben, terwijl de
bevolking van het eiland Nanoekan zichnaar Boeloenganterug getrokken heeft.

Volgende dag verder reis naar Batoe Tinagat voortgezet met het doel om
plaatselijk te onderzoeken of die streek werkelijk onbewoond was .... De 24e werd met

een gewapende sloep de Tawaurivier opgevaren doch nergens enig spoor van een

nederzettingontdekt, zodat geen gevolg is kunnen worden gegeven aan hetverlangen der
Regering om verklaringen af te nemen van en Nederlandse vlaggen uitte reiken aan

hoofden van nederzettingen of kampongs ...."

Translationby Malaysia:

"From additional information gathered, it appearedunfortunately that the coastal area

from Sebuku up to Batu Tinagat is totally uninhabited and that only deep into the
mountain area there are Dayaktribes. Also the inhabitantsof Sebuku have reportedly left

this island and settled in the kampong Sagangan situated north of Gerbang, while the

population of the island of Nunukan has withdrawnto Bulungan. Next day we traveled on to Batu Tinagat in order to investigate on the spot

whether this region was indeed uninhabited ...On the 24thwe ascended the Tawau river
by armed sloop but failed to find any trace of a settlement, so that no effect could be

given to the wish of the Government to record declarations from the Chiefsof settlements

or kampongs and to issue Dutchflags to them ...."ANNEX 2Extractfromthe log-book ofHNLMSKoeteifor 27September1910
Source:ARA,Min. of Navy, 2.12.03, inv.No. 2336

Extract of text in Dutch reads:

"Houden peiling bestek van eilanden en omgeving St Lucia-baai. Stoomen op peiling

tusschen Oost-Noenoekanen Sibetik door. Zijn te 10u 30 dwars van Steenenhoek.Te 12
u van Deliberg. Houden lood aan S.B. gaande. Komen te 12u 45 ten anker voor 35 vm

B.B. in 10% vm water bij grenslijn.Bepalen zeewacht."

Translation provided by Malaysia:

"Determining the position of island and the surroundings of St. Lucia Bay. Steaming
onwards on bearing between East Nunukan and Sebatik. At 10.30 hrs a.m. athwart

Steenenhoek. At 12 hrs athwart Deliberg. Keeping the sounding-lead at starboard. At

12.45p.m. anchoring with 35 fathom abeam at portside in 10 114fathom water near the

boundary line.Fixing the watches.ANNEX3-Extractfrom reporton activitiespaddle steamerS.oembing,dated 16 October 1891
Source: ARA, Min. of Navy, 2.12.01, inv. No. 2703.

Relevant vart of the report in Dutch reads:

Folio 20 A: "De Sesaiab stoomde men den 19e neder af en daarna door de Moeara
Salindarin naar zee. Om de N. koersende bereikte men den volgenden dag de passage

tusschen Oost-Noenoekan en Sebetik op en alzoo de uiterste grens van ons gebied. Den

22' werd de terugtocht aangenomen, den 24e de Koetei-rivier ingestoomd en den

volgenden dag te Samarinde geankerd".

Translation provided bv Malavsia:

"On the lgth they steamed seawards down the Sesajab and subsequently through the

Moeara Salindarin. The next day, sailing north about they reached the passage between

East Nunukan and Sebatik and thus the outer limit of our territory. On the 22"d they

started on the return-journey, on the 24Ihthey steamed into tKoetei river and the next

day they anchored atSamarinda". i'. /"
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2 p:; ,...:L.-;:,.:. :,-& . TC- ,dk??z, 2- -- .. . -.-ANNEX 4Letterfrom Vice-AdmiralUmbgrove to Governor-GeneraN l etherlandsEastIndies,
dated4 January1922
Source: ARA,Min. of Col.2.10.36.04,inv. No. 2495.

Translation provided bv Malavsia:

Copv:
Department of Navy
in the NetherlandsEast Indies

Weltevreden, 4 January 1922

To H.E. the Governor-General
of the NetherlandsEast Indies

As afollow-up to my letters dated 8 December N. 12329lVII1, 1 December No.
12096lVIIIand 26 November No. 11934NII1,I have the honour respectfully tosend you

an extract from the report of the Commander of HMS Lynx with the account of the

controller of Bulunganbelonging to it.

When now considering this question, 1have the impression that the wording of

the second cable dated 15 November of the acting Resident at Bandjermasin in which

reference is made among other things to unreliable objectives, is causing the question to

look somewhat gloomy. Nevertheless,1learn that greatimportanceshould be attached to
the visitof HMSLynx with the aeroplaneto Tarakanand surroundingsas a demonstration

of authority. After taking note of these reports 1takethe view thatthere is every reason to

act upon this incident as1 thought 1had indicated in my letter dated8 December No.
2329lVIII.

1may be allowed to raise in this context one othermatter which accordingto me

deserves to be addressed. In the Conventionconcluded betweenthe British and Dutch
Governments (see Decree of the Governor-General, publishedin Staatsblad 1916 No.

145) concerning the boundary line between theNetherlands and the British protectorate

in Borneo no boundary line is set forth which separates the territorial seas of the

andthe protectorate in question. When searching for Bajau fleets near Tarakan it was naturally necessary for the

Commander of HMSLynx to be familiar with the course of the boundary. At that time 1

decided that he should consider a prolongation of the land boundary to be the northern
boundary of the territorial sea of Sebatik.

Yet itoccurs to me that this matter which shows some similarity to the question
how the course of the boundary shouldbe in the Wielingen, should be settled in definite

terms. Also in cases of maintenance of neutrality an unsettled situation cannot be

acceptedwith a view of the great interest of StLucia bay (petroleumfields).

Hence, 1 suggest that your Excellency should propose for government at the

highest level to take steps to supplement the Conventionin question to that effect.

The Vice Admira1
Commanderof the Naval Forces and Headof the
Departmentof the Navy in the Netherlands East
Indies
(signed)W.J.G. Umbgrove

for a similarcopy
the govemment's secretary(signed). ueparteuiaiit der hlarine

in ,ederl uidscti Indie.

:veltevreclen, den ,Iden januari if??.-

lk heb deber Uner ~xc?llentic ten v-rvnlsr op mijne
1) ?)
brievcn dd. 8 December NO. ~?~?~/vTIT, 1 Decemtj~r No. 39096/r111~
?.,)
eri 26 iiovember No. ~~~?Q/VTII hierbi j beliefd aan te I-i~dîn
'
ailrappp. extract ùit hct schrijven van den Commandant van Rr. 31s.
11/21;
ailrapp, "~ijnx" met bijbehoorend relaas opgemaaùt door den controleur
$7/21-- -
uailrap~. Yan Eo5lonfan.
1/21 al
ailr app. ileze aangtlegnntieid thans beschou7Tdr? krijg ik den
i/21.
indruk dot de bcwoordinjen van hat tyW9ede telegram dd. 16
4 1
i\'ovembcr J,l, van den fd. Resident te Eandjermasin waarin
-.L
o. m. ge& Forden van onbetrounharn bedoelingen, de zaak

Wei wat donker hebben veergegeven. Tocli vcrmcen ik dat aan het

kezoek van Hr. Ms. "Lijnxt met h9t viiegtuig am Tarakaii en

omgeving als gez agsdemontratie groot e waürde moet aordm toe-

dat er allc aaleiding bestaat ter z&e van het ~cheur-le te

handelen du iic in mijn brief dd. 8 Decenber j.1. NO.~???E)/VTTT

in overweging meende te moeten geven.

Het zij mi j vergund nog ecne aangclegenheid hi-rby

ter sprue tc brengen welke m. i. voorziening behoeft. In het

tract aat tusschen de Erit sche en de Fi?der1 andscte Regeering
,-.
gesloten (zie ~esluht van den Gouverneur Genraal, vcrvat in
T~
\ St aatsbl acl

A=

;ijne ~xcellentis den Gouverneur Generad

van ederl adsch lnùie. - Ytaatsblad 1918 No. 145) betreff ende de grcnsli jn tiisschcn

s ederland en liet Lritsch protectoraat op ï;onieo is nist ver-

meld de grenslijn die de terr. zcc van Nederland en lsedoeld

protectoraat scheidt.

hij het zocken naar de Zad,F;iuvloten nabi j Tarakan

vas het uiteraard nooiiig dat de Commandant van Hr. LIS. "~ijnx"

bekend Was met het beloop dior grens. Ik Iioh toen bepaald dat

hi j de verlengde landgrens a3s Noordgrens de tcrr. zee van

Sibetik had te beschouwen.

Ilet Nil mij echter vûorliornen dat deze aangelegenheid,

wclite eenige overeenkomst vertoont met de kWestir ho? de terr.

grens in de Nieiingen behoort te loopen, d5finitief mont 3ord.rn

gercgela. Ooii in gevallcn van neutr. handhaving km emn onqc-

regeldr toestrind met het oog op hrt groote kelar.5 ddpr St.Lucia

ba;ii (petroleum t erreirien) niet aorden aanvaard.

Iii moge Uwer Zxcellentir mitsdien in ov-rncgin!~ gcven

hct op~erbcstuur voor te stellcn stappen te doen on htt be-

wuste tractaüt in dien zin te doen aanvul1en.-

Ue Vice. ;idmiraal,

Commandant der Leernacht en ijüoTd v.an het De-

partement der Xarl.ne in xederl aildsch Indie.

Voor eensluid~nd aîschrif t:

4 Ue Gouvernements Secretaris,ANNEX5Decreeof theGovernor-Generalof the Netherlands EasI tndies,dated27 January
1916
Source: Oficial GazetteNetherlands East Indies 1916,No. 145.

Translation~rovidedbv Malaysia:

"OFFICIAL GAZETTE OF THE NETHERLANDSEASTINDES

1916No. 145.TREATIES. BOUNDARIES. BORNEO. Publication in the Officia1
Gazette of the Protocol signed inLondon on 28 September 1915, with accompanying
map, on the demarcation of the boundary between the Netherlands territory in the island

of Bomeo and British North-Borneo.

Decree of the Governor-General of the Netherlands EastIndies of 27 January 1916 No.
28.

Having read the official letter of the Ministerof Coloniesof 13November 1915,Dpt. A3,
No. 1712279 and appendix, it appears that by Protocol, signed at London on 28

September 1915,on behalf of the mutual Governments, approval has been given to the
official report, with accompanying map, of the Anglo-Dutch commission, based on
Article V of the Convention mentioned below charged with the demarcation of the
boundary line, as far as necessary, in the area referred to in the Convention concluded in
London on 20 June 1891 between the Netherlands and the United Kingdom of Great
Britain and.Ireland for the determination of the boundaries between the Netherlands
possessions and the States in that island which are under British protection (Officia1

Gazette of the Netherlands EastIndies 1892No.211)

It has been approved anditis understood that:

The above shall be taken into account and thatthe Protocol, with the accompanying map,
as referred toabove, shall be made public by publishing this Decree with the annexed
copies of the above-mentioned documents in the Official Gazette of the Netherlands East

Indies.

Copy etc.

On the order of the Governor-General of the NetherlandsEast Indies
The General Secretary,

HULSHOFF POL.

Issued 15February 1916.
The General Secretary
HUTdHOFF POL" STAATSBLAU VAm NEDERLANDSCH-INDG.
-
1916 No. 145. TRACTATEK. GRENZm. BORNEO. Plaatsing
in het Staatsbladvan het te Londen op 28 Septem-
ber 1915 onderteekend protocol met bijbelioorende
kaart. inzake de uitzetting van de grens tiisschen
liet Sederlandsch gebied op het eiland Eorneo en

BriFsch Soord-Borneo.

Besluit ran den Goii~erneur-Geileraal van Sederlaiidsch-Indië
rail 27 Januari 191G IT 28.

Gelezende missive van den 31inister van Iïoloniëil 1-13iSoveinber
1915, Afd. A< il? 17/1?'779e!i bijlage. rraariiii hlijkt bijprotocol,
onderteekend te Londen clen .?SSteSeptcinbcr 1913. ilaincns de 11-eder-
zijdsche Regeeringen is ooedgekeurcl liet proces-rerbaal. iliet bijbe-
hoorende lïaarr. ran cle '\eclerlandsch-Britsclie cominissie. ingevolge
artikelTr ran liet na te noeinen tractaat nangerrezeil tot iiitzctting op
het terrein T-.Z.Irail de grenslijn becloeld'iii (le20pJiiii;1591 te

Londen tusschen Sederland en liet Tereenigd hoiiinkrijl; Groot-Brit-
tannië en Ierlancl gesloter, o~creenkomst to: I-astsielling der grenzen
tusschen de Tederlandsche bezittingen op het eiland Borneo en de
staten op dat eiland die onder Britscli proreciorant sta:in (Indisch
Staatsblad 1893 il?211) ;
1s goedgeronden en rerstaan :

Van het vorenstaande aanteekening te houden en tc gciasien dat
het protocol. inet bijbeliooreilde kaart, liierboven bedoolcl. zullen
worden openbaar gemaakt door plaatsing van dit besluit incr dc claar-
aan gehechte afdrukken ran ~oormelde ctukken in het Staatshliid 1-an
Nederlandsch-Indië.

Afschrift enz.
Ter ordonnantie ran den Gouverileur-Generrid
ran Xederlandsch-Indie :

De Slgemeene Secretaris.
RÇLSHOFF POL.

Uitgegeven den vijftienden Februari 1916.
De Algemeene Secretaris.
HULSHOFF POL.ANNEX 6 .--oftheoriginalocumenl: l O.T. Haji Moham'mad NOOL Bin
n Osman,
Pulau Danawan,
.....................:......'........... Semporna.
NORAZMAH SI"I;HIÜAil 1
MataysianTruislacr:lti:- .3n
CIDewanBahas:OcPustLi~ 26 December 1962
50926KualzLuripr.

The Hon. District Officer,
Semporna District Office.

Appeal for Assistance

Dear Sir,

With full respect 1 am glad to present this letter which please

consider as words coming from Ourown heartsand mouths.

We hereby appeal for your consideration over the hardship we face
in confronting pirates in Our vicinity. We sincerely hope you would grant
Ourâppeal.

Initially we fervently request for a patrol service daily between

3.30 p.m, and 7.00 p.m. around Siamil-Danawan while considering other
kinds of assistance by the administration. We have managed to gather
1120 people at a meeting held at 10.00a.m. on the 25 December 1962which
proposed we appeal for your assistance immediately.

1, Haji Moham'mad Noor have made a survey and discovered that

90% of the villagers live in fear and are considering to rnove away, but 1
have advised them not to do so and that 1 would strongly appeal for
assistance from the government, with high hopes that itwould be granted.

The masses have given me their confidence provided they are
offered the above assistance.

Respectfully 1end this letter and pray for a favourable outcorne.

Yours sincerely,

(O.T. MOHAM'MAD NOOR) O. T.Hajie Moham'mod Noor 3in Oa~on,
Pulau Danaxan,

Sen30 =na.

26th Deçember 1962.

rua- 3.0. Diskzict Office,

'ua-.
Denzen hornal-n7a di-natalun4a2 kuoada tuan. Behue aura* ini io-laà

3s-bagsi gariti mulut karii berkata-kata df-hada?an tuan nemente2 pertinbangaa

:ezr;ie=ta 'a? kasi di-harap .aupaya di-benarkan.

Perztenta 'an kami di-waktu aingkat ini sabaz ~raktu jen puhl 3.30. pe tc2g

!inaga 7.000nalas petrol akan di-adakan di-siaail danavaz se belun oeventah

~esbari bertua2 yang lain dari pada iui, dan yang lain-lain. dan ini-la2

:e-nettingan kasi perlu kf- montah di-pertimbacgkan dengan chapat-nya,lcerarie

:3ai sudah metting pada 25/12/62. jam pukul 10.00,pegd yerg hadzil 1120rang

,ada raktu metting.

Sara Haji Mobamtraad Hooz audah fikir dan aiaaat 90% yazlg taht mahu
1
~erpenda, aaya chakap jikalau kamu turut pada aaya jangan berpenda. saya .

iokocg mentah naxkxk bectuan kapada perentah .aupaya di-benarkan perrïentatan

:ita oleh. perentah.

Suara ra'ytt terus mengaku pada pembichara'an saya asal di-edakan

a-~erti peraentatan kami yang terseb~t di-atas.

Sakian-lah dengan ho r~at-nya sa-mo ga berhaail. OFFICE OFDistrict Officer
Resident Tawau Sempoma

COLONY OFNORTHBORNE0

Date :27/12/62, 19

Ref 1 011

1enclose a letter from O.T. Haji Md. Noor indicating that the Kg. Dinawan people al1
wish toleave the Island.

A precipitate move could be disastrousat this stage,both for morale andbecause
the island is well set up with a good school, relatively good income from bearing
coconuts, and near-ness togood fishing grounds. Raids would tend toincrease once the
pirates realised they wererivingthe peoplefrom their homes.

1would be grateful if you will inform me asto what extra security measures will

be taken to protect this Islandso that 1can re-assure the 0.T and the people. May 1
suggestsomething on the following lines :-

1. The continuai use of Si-Ami1as a patrolling base for security forces. One
section "off" (i.e sentry duty on Dinawan and Si-Amil), the other section
on sea patrol, or one sectionsplit in this manner.

2. The training of a Si-Ami1Home Guard,equlpped with automatic weapons.
Dinawan people should be allowed to participate in the training, but 1
recommend thatarms be storedon Si-Amil.

3. The provision of an alarm on Dinawan toalert Si-Ami1in the event of a

silent raid on Dinawan. A boat for ferrying Home Guard would aiso be
necessary;perhaps the Company couldprovide this.

4. Improved radio communications Si-Amil/Semporna. The present system
of obtaining Si-Ami1 through Tawau is very unsatisfactory. A Si-Ami1
Bohey-Dulong link isalso vital.These measures wouldhave the following advantages :-

1. The sea patrols would act asan extension of Bohey-Dulong. Good radio
communications between Bohey-Dulong and Si-Ami1and patrolling craft,

would make Bohey-Dulong moreeffective. A point not to be overlooked
is that there are good harbour facilities at Si-Amil, with ship and
workshop.

2. The shore guard (security forces) could be withdrawn once the Home

Guard is trained and equipped.

< Signed >
District Officer
Semporna

SECRETCOLONY Or NORTHBORJiEO

Date , -,17 9 /Cq
, , 19- Thnnk y- Sm yQUIPlett4Cj I in tulleg~rpcith3r
with tho ~oarhaiotlxjfo13oulngdrewmmdatiaaa O.Toradh'bS
the Divi~i~~d. C0-e to tho CeS8i.m of Poliw r-

The fiahinn u0a~g~lyaU bllild*O
QUZPbu& houaoo aneon each
sideuf th ahari. have mady besn
amed rvith 42 riReo ond if la rmaoni;londsd
that they should be inrmod wlth a Aorther two
strm gtma, In oAditiozl, thmw me 8-
priwtcrly asmod shotgunie. Pur pm.oaf Polio8
poot, cornpri8ln8eitb~ PoUe OP froope riil
~ainants at$&A&U. bunhanâ to4 âmproln radiotwlp-L
I mmzfaaticol

2. A Uttle ove3io week ago 1 ha4 aafredfo~ a progreos
regart Ca the East coafit aecurlfg meammes vhi4h hPIb
bea ~Ped by O-f, b parfi-
ses trw& wauld bs made avalhbb, 1 bave sug~~etcd
to the Commissiw fhat if *ru & go* ta lm deïay in
~ouificatioxuioweawqdre,hasothaaueWU1 bbavs bo charter
tba noet suîkibïe lmai crdt on a pemanunt bis ad
Qw the CQB~~PmT/CR* (1)/63/ 4I. 4th J-s 63

C 0 NF 1fi EN T A L RESIDENTS OFFICE
TAWAU
REC 1 ED
lPheCammissloner of Pouce, (2)
Jeas-. ANSWERED

On 24th Deaember, 1962 at 0020 hours a report wae
lodged at SWOBNA Police Statiaa by an aaployee af TAMO
ïNDUSTBIES on Mau SWIL to the effeot that the iaiarun
hed been robbed by armed raiders on =rd DeoePibor, i962.
This emgloya8 bd arrived on a fiahing veaael tram the
immedfatelyclprooeeded.to theuacene rith athiu ossaerl,,
arrfvfng cm the ialand at 0545 hours.

2. ~t W~B th4 height or misrarturrs, or thb aagths
rather thatat 6800 hours on 23rd Deceaiber an army patrol
on a dred barter trads boat left SEliPOïUU for BWIIL, but
rmcho thengisldtrormtilt23 home t&terrnthepirates had left,

3. Investisti onsceveal that the pare oi a.&
raider8 landed on the island at a oint belorthehosgital
at 1615 houcs on 23rd Deaember. key lande& imobserwd,
and rere able to iniiltmts the inBtallation acea Bithout
sa-ouwerenwd aagvers,tin.spite of poliaeladvî06thto th8 th8
aontrary under lockand ksy and thus not rtadilg to hnnd,
The phles firad ahcta in the air, rnd iII the lnhabltants
of the aq aithcr ranofYto the Jungleor tookaowr undar
floors etu. A clerk in the offiae sounded the airan bufort,
fleelng, and the vireleas operator. tria to rai- Us cû'fiae
in Tawauaithout succese. Exactly what happened next 1s
carpanter, YUgICfa wIXXKAU,ppwaetahotaas hseatrier3toahideaa
under the mssing hut. Xe was klUed instantly sith gun-
ahot wouxaüain hfs Zeft lmer mapuLa region and in the back
or hie alatll, A Japaneee clerk, 33 ymu-01.d HUMHfaO YAWWU,
ranlnto one of the kami housa ~8st the nrsaaîng hut where
The raidershflredrathrouefrthe door, ehootingmYAUGUIinsi3etirne8
thFough the baak. They than anter- tha kongsi houes, and
bmrtaïly mtilated YUAûAüIr 8 3oüy - he mas/ have been kflled
instant- by the HuIighotvouada - wlth theIr O-. They
Pemained in the BXBB fg~ about 2& houra, plundering the
afPicea andkangsi houses of everythfng ofme. The loot
PWS made ug as rollm t-
Comgany gooda and ua& 14,682,OO
;lapaaiese workmen8 personal gooàs
anû aash - 6,850,lio
Xatioe ro.rknenTepersonal goods..
and aaah 2,369a5O4 On their :-;a7O:L~ oi' the iüland, tho ~xiideïo stop;&
three Bajau f iohinc bouts who oero on their vxiyhone to
Puinu DEuiifiJJ, SLWL' s "t-uit". Ail throe boat s rere potnerad
aith British 3~izani 4 hap. outboard enginee,which were al1
taen by the raiders. One ci theMahing boata ma al80
taken onay. The occupants of the flahing boats were able The
glve a fak. deocription 02 the piratas aïid Lleir veosel.
andtepmered 20nitht vhat Llooliod lue boat40 h.p.teoutboar6 enme.blua
It hd no super-atmcture nor the uual etb~ roofing. '211%
rcicers mere eround 13 in =aber, cird spoke in the Siligino
Sul& didect (Ehjau but) . LJey were al1 described ac be~g
ctressed i.ran olive green cnifozn, vzitflout irroignia OF any
Und. ztcr tü:;ing the outboard engines. ad one of the tah?eo
lion-liga, the ruiders left in tke direction of the Philippines.
TheIr speed vas said to be "not fast".

5 Thisquestion of "mirorned" raiders hns cro3;cd up
ovcr and over agnin, and rzy interpretation is that it is qute
probable that tlie soi-di8-t "'Xayor's Political ~ollce" (see
the report on tha recent liaison vielt to %:W-SATJ) are
Lavolved. In viem of this recentusaurge of' mmed raids, 1
necessapl toottry and otinulnteit sone form Phofipectivity,s andat
ixrlesa you order to tlle contlary I niIl mice arran,nements to
go in the imadiate future.

6. Asrt from police action Ï'rom 33POX.U os detailed
above, Pi, StwL4iT and 1I.U.S. BLL~~OSA left for the areafron
ZXY'IAUlmicdlatelg the reportms received, and the latter,
171th her hi& -8peed, mis able to patml ~nto the SI~UTU/
3I12,UlGiWI ma verj quickly. A xrumberof suepicious contact5
ivere made,but they mere unZortunately able to malce tireir
escsge tfmugh. the cor61 re&s into VI3ü'i'GIsland.
The camp at SXIL Io nm armeci with 12 rifles and 7
7.
PolicensEobileron3'oroesis engagedinyinbutraLningd Japaneseon in? tkk
use of their i'iremna. Clirystalo to bring the aang wisele~s
oet ont0 aie police netaork Love been ordered lram SUTCu"r301IE.

(S. S. ~eùlin.
Divi si/-al comfiaer. Tm

c.c. The Reeldcnt, T~VCDU~
The O,C.P.D,, 3enaorna, Your 1.2, is returned herevith.ANNEX7 -

That we, His Excellency C.V. Creagh, the Governor and highest officiai of

the Colony of Sabak, hereby proclaim with the powers conferred on me by

the officers of the British North Borneo Company, that we have bestowed
the title of 'chief' to our friend narned Udang who lives in Semporna for his

admirable assistance to the government, and in this respect we confirm

that he has been honoured with this title.

Written based on the ......Dayof June in the year .......

(signed)

(C.V. Creagh)

oftheoriginaclocu;r.cnt:

A !

NOR AZMAHSK!:",L;A,Y
M~laysiaTransl-:sr;z:.:ln
CIODewanBahsa &Pi;s'd
P.O.Box 10803
50926KualaLuqcr.
-ANNEX 8DATED TH18 DAY OF. 1993

BETWEEN

BORNE0DIVERS AND SEASPORTS (SABAH) SON. BHD.
PULAU SIPADAN RESORT 8 TOURSSDN. BHD.
and

SIPADAN DIVE CENTRE SDN. BHD.

-ND

ALUKAN BIN KANEH
and
HUNTfNG BZN PG ABU SARI

SALE 8 PURCHASEAGREEMENT

MESSRS LEE & THONG
ADVOCATES & SOLICITORS
COYHISSTONERS FOR OATHS
NOTARY PUBLIC
76, JALAN GAYA (ZN0 FLOOR)
88000 KOTA KTNABALU SABAH MALAYSIA

P. O. BOX NO. 11037
88811 KOTA KINABALUSABAH MALAYSIA

TELEPHONE NOS.: 53238 8 225127
FAX : 233634HETWEEN BORNE0 DIVERS AND SEA SPORTS (SABAH) SDN. BHD. of Roorns
n(31-409, 4th Floor, Wisma Sabah, Kota Kinahillu, Ija.bah, PULAU

SIPADANRESORT & TOURS SDN, BHD, of 1st Fioor, No. 484, Bandar

':tqt-lindo. Pet1 51.li'at 61120, 91021 Tawau, Sabah And STPADAN DIVE

CENTRE SDN. 8HO. of A1026, 10th Floor.., Nisrna Mer-deka, Ja1an
Hdiak, FIR(1QO Kota Kinabalu, Sabah Mal aysis. (hoi-e?riaft.cr

ci01 iect~veiy referred to as the 'Purchasers') of orie pàrt

-NC)
ALUKAN 6TN KANEH and HUNTING BZN PG ABU SAKI both of Yernporria,

7;:1.);it'Malaysia (hereinafterreferred to Ir, the 'Vendors' W~IICI~

cxpr'osuion sha 1 I where trie context so adni1 ts inc liide the? r.
.;;i.i!.cei;sol-rn tl tle and assigns) of the ottier- part.

NiITREA'~ the put-chasers are cvrnpanlcs iricor-jlor'atcsd in Mn??y$.~ ,3 and

liijv~rlcj their busirlesi; as dive and rezort operdtur'; on P~ilai~
C;i p3drln.

WHEREAS the V~ndol-7 are the acknowledgedt.radit,iorial t-urtle egg
L~JI Iectui-.s And havir.ty possessed the r ight tu col leit turtle éggs

cn Pulau 3ipadan and the rlght to dispose dnd sel l t.he ;am?.

l R A thè P~;rchasprs are 6?siro1~~ of p~.lr-chas irig 31 1 th?

r.141t.ii egg:; iài Li cjn Pu1 au S'i padan atld the Vendoi.c; 4i.P OC!.:.11-0u.3

:)f :~ll!ng the saive to the Purchaser.: i~pori the ter-r112 dr'lcj
i.uridI tiUI!S here iridf:tel- appearing.

NOW THlS AtiREEHENT WlTNESSETH as tollows :-
!, Tri c:ori.:,it.îeration of a year-ly .:um of Rlrigglt M~l+y-i? Flft:~

1:idc~r,nrrd iRM5UJ000.00) orlly. the '4endurs shcll l se l l and the

Fiir!t~ri::,!~r-i; xi~lipurchi3:;e 311 the t-ur-t1ricc;y -, 131:A o.n Pu1 au
5 i padan.

2. Upon sigriing of this Agreement the Purchasers rtiall pay to
the Vendors the sum of Ringglt Malaysia Fifty Thousand

(RMS0,000.00) only, the recelpt wbereof the Vendors tirreby

acknowledge.3, This Agreement shall rematn In torce for 4 yedr-s rrom tne

datc tiereoi anu shafl not be t.ermlnated hy the Vcndor?, save

wheri. thu Piircliaser:: fail tù pay the sdid kir-iggit fildliivsia ,

Fi fty r'hci~satld (R14517,OOC .i (.)) on +,PIF duc-! I.atc. .-ri,.!u~!an
explt-v if .riwr-ittc-ri notice 9f deindrici VI' r'iui: 1~23 thao 21

ciayr;,

4. T'ne r~cxt payment and siibsequent paympnt ::f :;,?id

Ringg:t. Ma! riyr>l J Fi f'ty Ttiou-and (i?iCr.'JO,OOU.00)shdi 1 be pa'id

on or befor-e the explry of 12 calencîar- rnonths fiofri th!: ddte

her-cof.

5. IJpon thc zl yning of this Agreement ttie 'Jeridüi-s shdll cease

irnrnedicitely al1 collectlonof turtfe eggs nn Pu1 au Ciipadan.

A ll egg.; dl rt-ady c.cileitc-d .;ridl1 be renioved in~irtediste ly out
of Pulau Sipadan.

b. Di.ir-.irigthe currency of th1 c; Agreement the Vendor--,, the i r.
fami 1Iris, +?nlp10yee~ or servantx anc assignc; 1 1 rtot

colléct, reitiove, dispose or ln any manner rfiit.iirt: any i\e~t.

or egg:; laid <;ri Pu'lau Sipadan.

The P!rrc-hase)-= ancf \/endors Soth ~ovtriùnt thdt t.tit?y zt)dll

erideav~~ur. to encure that al 1 turtle eggy la~d :h~! 1 remairi

ln zifi! for the nàtilrqal hatchirig srid thel-e stial1 be rlc)
reinov,il of the same Save ?n accordance w1t.h in:,t:-'~ctioni;

from t!-11.Dcpart.ment of Wi ldi iTe.

8. Thc Pur!:har;er; and Vendor*.; shal 1 assi l;L the Otpai-tiiierit of

Wi ldl lie Lo ensurr the ti~rt.le eggs nest are riot di~tur-becl.

5. In the event of' a dispute nr:sing out of thi: /\gr'(-*eirierit.it
shalf be referred to the Director of Wi ld1 ife Depar-tment

for arbi tration whose declslon on the mat.t.er shctll hc

flnal.IN WITNESS WHEREOF the Parties have hereunto set ttieir narius o~iu

5~?15 t,he day and yesr flrst above written.

5 igned hy for and on behalf )

of the said BORNE0 DIVERS AND )

SEA SPORTS (SABAH) SDN. BHD. )
in t,he presenc )

51yned for and on behalf )

of the raicl PULAU SIPAOAN 1

1
) .......................

/

3lgned Por and on behalf )
\
of' t.he 3, I ii SXPADAN Df VE )
CENTRE SDN. %HO. )

i r'ithe pi e;t?ri )

./.
..:SIGNED by the said 1

ABDUL RAUF BIN MAHhJUD

(NRIC. NO. H0434507) 1

for and on behalf of 1

ALUKIUI BIN KANEH 1

in the presence of :- ) ...

ABDUL RAUF BIN '~U-LAJUD

(RRIC. NO. HO4345071

d. PX - Mahkamah Anak Negeri
f.
Semporna Ref. No. 12/93

SIGNED by the said 1
MUNTING BIN PG ABU 8Uf 1

in the presence of :- 1 ........................