Translation

INMA
CR 2002/29 (traduction)
CR 2002/29 (translation)
Mardi 4 juin 2002 à 10 heures
Tuesday 4 June 2002 at 10 a.m.
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Le PRESIDENT : Veuillez vous asseoir. L’audience est ouverte et je donne la parole à
M. Rodman R. Bundy au nom de la République d’Indonésie.
M. BUNDY : Merci, Monsieur le président.
Monsieur le président, Madame et Messieurs de la Cour, nous avons distribué quelques
documents supplémentaires pour votre dossier, qui vous seront présentés après la plaidoirie de
l’Indonésie ce matin, et vous trouverez sous le dernier onglet du dossier un résumé des exposés de
l’Indonésie.
65. Hier après-midi, j’ai expliqué que rien n’étayait l’affirmation de la Malaisie selon
laquelle le Sultan de Sulu ou l’Espagne auraient eu la souveraineté sur Sipadan et Ligitan. J’ai
aussi montré que les Etats-Unis n’ont revendiqué la souveraineté sur Ligitan et Sipadan ni en 1903,
ni par la suite. Cela étant, comme le montre la correspondance, les Etats-Unis reconnaissaient qu’il
était important, et même nécessaire, de conclure, à un moment donné, un traité de frontière définitif
avec la Grande-Bretagne. C’est de cela que je vais traiter ce matin.
d) L’échange de notes de 1907 n’est d’aucun secours pour la Malaisie en ce qui concerne la
question de la souveraineté
66. En 1907, les Etats-Unis et la Grande-Bretagne conclurent un arrangement temporaire sur
la question. La Grande-Bretagne savait qu’elle ne détenait pas de titre sur les îles situées à plus de
9 milles de la côte en vertu de la concession faite à Dent et Overbeck en 1878 et du protocole
de 1885. Toutefois, la BNBC administrait certaines îles situées à plus de 9 milles de la côte, dont
Ligitan et Sipadan ne faisaient cependant pas partie. La BNBC voulait poursuivre cette
administration, notamment pour mettre fin à la piraterie dans la région.
67. L’arrangement conclu avec les Etats-Unis a été consacré par un échange de notes entre
les deux gouvernements, plus précisément entre l’ambassadeur de Grande-Bretagne à Washington
et le secrétaire d’Etat par intérim des Etats-Unis, qui est reproduit sous l’onglet no
47 de votre
dossier (MI, annexes 113 et 114). Il prévoit que la BNBC pourra continuer comme auparavant à
administrer certaines îles situées à plus de 9 milles de la côte à l’ouest d’une ligne tracée
antérieurement par sir H. M. Durand, jusqu’à ce qu’un traité de frontière soit conclu entre les
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deux parties. Néanmoins, le deuxième paragraphe de l’échange de notes indique très clairement
qu’aucun droit territorial n’est associé à cette administration.
68. La carte jointe à l’échange de notes est projetée à l’écran. La ligne rouge — difficile à
voir : c’est la ligne qui descend ici — est celle qui résulte de la proposition de Durand. Mais cette
ligne n’a rien à voir avec les questions de souveraineté. La Malaisie soutient que, par l’échange de
notes, la Grande-Bretagne a reconnu la souveraineté des Etats-Unis sur les îles situées à plus de
3 lieues marines — 9 milles — à l’ouest de cette ligne rouge (MM, par. 5.39). Cela est faux.
L’échange de notes de 1907 est sans conséquence au regard de la souveraineté. Et même, le
cinquième paragraphe de l’arrangement reconnaît expressément qu’un traité de frontière doit
encore être conclu entre les Etats-Unis et la Grande-Bretagne, tandis que le deuxième paragraphe
dispose qu’une éventuelle administration n’emportera aucun droit territorial.
69. La Malaisie affirme également que l’échange de notes de 1907 montre que les îles en
question, Sipadan et Ligitan, étaient administrées par la Grande-Bretagne (CMM, par. 3.24). Cela
est également faux. L’échange de notes ne cite expressément aucune des îles situées à plus de
9 milles de la côte que la BNBC administrait alors. Et, comme M. Pellet l’expliquera tout à
l’heure, la BNBC n’administrait pas Sipadan et Ligitan en 1907 — et certainement pas en tant que
souverain. La Malaisie, en s’appuyant sur l’échange de notes de 1907 comme s’il «créait» une
administration britannique sur les îles en litige alors que cette administration n’existait pas, ne fait
que formuler une pétition de principe.
70. Qui plus est, des mémorandums internes ultérieurs et la correspondance diplomatique
échangée par la suite entre les Etats-Unis et la Grande-Bretagne, qui aboutit à la convention
de 1930, montrent clairement que les îles qui faisaient effectivement l’objet de l’échange de notes
de 1907 étaient les îles Turtle et les îles Mangsee, situées loin au nord.
71. En mai 1927, par exemple, M. Frank Kellogg, du département d’Etat, envoie une lettre
au président des Etats-Unis qui éclaire le point de vue des Etats-Unis sur la portée de l’échange de
notes de 1907 (RI, annexe 13). La partie pertinente de la lettre adressée au président par M. Kellog
se lit comme suit :
«Un accord provisoire passé en 1907 entre les Etats-Unis d'Amérique et la
Grande-Bretagne prévoyait que l’administration de certaines îles (connues sous le nom
de groupe des îles Turtle) situées près de la côte nord du Nord-Bornéo britannique
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serait laissée à la BNBC, jusqu’à ce que les Gouvernements aient délimité, par traité,
les frontières entre leurs territoires respectifs ... Cet accord a été conclu parce qu’il
était alors impossible de parvenir à un accord définitif concernant la frontière entre les
possessions des Etats-Unis d'Amérique et de la Grande-Bretagne dans cette région, et
également parce que le Gouvernement des Philippines n’était pas en mesure
d’assumer l’administration des îles en question, même si les parties avaient pu
s’entendre sur les îles qui seraient administrées comme relevant du groupe des
Philippines.»
72. Comme il ressort clairement de cette lettre, les îles Turtle sont les îles situées à plus de
9 milles de la côte temporairement administrées par la BNBC. Ce sont elles qui étaient l’objet de
l’échange de notes de 1907. Pourtant, comme on le voit sur la carte, les îles Turtle se trouvent bien
au nord de Ligitan et de Sipadan, et même au nord de l’île de Sibutu dont, vous vous en
souviendrez, le secrétaire d’Etat des Etats-Unis avait dit en octobre 1903 qu’elle constituait la
limite méridionale des possessions acquises de l’Espagne par les Etats-Unis. Les Etats-Unis
n’avaient aucune prétention sur des îles situées au sud de Sibutu comme Ligitan et Sipadan.
73. Il est intéressant de constater que le Gouvernement britannique adoptait la même
position. Dans le cadre de la correspondance échangée à l’époque de la signature de la convention
de 1930, l’ambassadeur de Grande-Bretagne à Washington écrit ce qui suit au secrétaire d’Etat
américain, Henry Stimson (RI, annexe 20) :
«[l]a convention conclue entre le président des Etats-Unis d’Amérique et Sa Majesté
britannique en vue de délimiter la frontière entre l’archipel des Philippines, d’une part,
et l’Etat de Bornéo du Nord [britannique] sous mandat britannique, d’autre part, a
formellement reconnu la souveraineté des Etats-Unis d’Amérique sur certaines îles qui
sont, depuis de nombreuses années, administrées par la «British North Borneo
Company». Ces îles, qui ont fait l’objet de l’arrangement conclu par un échange de
notes entre le gouvernement de Sa Majesté et le Gouvernement des Etats-Unis les 3
et 10 juillet 1907, sont les suivantes :
[le mémorandum énumère ensuite les îles]
1) Sibaung, Boaan, Lihiman, Langaan, Great Bakkungaan, Taganak et Baguan dans
le groupe d’îles connu sous le nom de Turtle Islands.
2) Les îles Mangsee.»
74. Voilà donc les îles qui faisaient l’objet de l’échange de notes de 1907 et, une fois de plus,
la carte est instructive. Les îles Turtle, comme je l’ai dit tout à l’heure, se trouvent ici. Les îles
Mangsee sont au nord.
75. Comme cette correspondance le montre, l’échange de notes de 1907 concernait les droits
des Etats-Unis sur les îles Turtle et les îles Mangsee, ainsi que l’administration de celles-ci par la
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BNBC. Il ne disait rien au sujet de Ligitan et de Sipadan pour la simple raison que les Etats-Unis
ne considéraient pas que ces îles relevaient des possessions qu’ils avaient héritées de l’Espagne.
En fait, comme l’a expliqué M. Soons, les Néerlandais avaient entre-temps pris des mesures pour
confirmer leur titre sur Sipadan et Ligitan par une manifestation concrète de la souveraineté
néerlandaise, en envoyant le Lynx et son hydravion dans les îles en 1921. Dans ces conditions, il
est parfaitement compréhensible, me semble-t-il, que les Etats-Unis ne se soient pas émus de la
visite du Lynx et n’aient pas émis de protestation.
4. La convention anglo-américaine de 1930 n’a pas emporté cession des îles à la
Grande-Bretagne
76. Le dernier maillon de la chaîne conventionnelle du titre invoquée par la Malaisie est la
convention anglo-américaine de 1930, reproduite à l’onglet n° 48 de votre dossier. La Malaisie
soutient que, par cet instrument, les Etats-Unis ont volontairement cédé Ligitan et Sipadan à la
Grande-Bretagne parce qu’ils ne souhaitaient plus conserver ni l’une ni l’autre, et que la
Grande-Bretagne a ainsi acquis sur ces îles la souveraineté qu’elle a par la suite transmise à la
Malaisie (CMM, par. 3.25).
77. Cette hypothèse présente deux défauts fondamentaux. En premier lieu, comme
l’Indonésie l’a montré et comme je l’ai expliqué hier après-midi, les Etats-Unis n’ont jamais détenu
de titre sur les îles en question. Celles-ci ne faisaient pas partie des anciennes possessions
espagnoles de la région acquises par les Etats-Unis dans la région, et les Etats-Unis ne les ont pas
revendiquées. On ne voit donc pas comment ils auraient pu les céder à la Grande-Bretagne. En
second lieu, la convention de 1930 n’était en aucune façon un traité de cession. A l’époque, le
Gouvernement naissant des Philippines faisait fortement pression sur les Etats-Unis pour qu’ils ne
renoncent à aucun titre sur aucun territoire sur lequel les Philippines avaient un droit historique.
Rien dans le contexte diplomatique de la convention de 1930 ne permet de penser que les
Etats-Unis étaient prêts à céder quoi que ce soit, et en particulier Ligitan et Sipadan.
78. Comme la correspondance que j’ai présentée le montre, les Etats-Unis avaient pour
objectif, en négociant la convention de 1930 avec la Grande-Bretagne, de confirmer leur propre
titre sur les îles Turtle et les île Mangsee par un accord de frontière définitif. La BNBC, qui
administrait les îles Turtle et qui avait construit un phare sur l’île de Taganak (l’une des îles
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Turtle), cherchait à obtenir l’appui du Gouvernement britannique pour persuader les Etats-Unis de
céder les îles Turtle à la Grande-Bretagne, ou tout au moins pour permettre à la BNBC de continuer
à les administrer pour une durée indéterminée (voir par exemple les annexes 15 et 19 ainsi que les
paragraphes 6.59-6.61 de la réplique de l’Indonésie).
79. Le Gouvernement britannique reconnaissait quant à lui que toute cession de la part des
Etats-Unis était hors de question. C’est ce qui ressort d’un mémorandum du 6 août 1929 envoyé à
Londres par l’ambassade britannique à Washington, dans lequel est exposée la position du
Gouvernement britannique (RI, par. 6.62 et annexe 18) :
«S’agissant des propositions contenues dans le mémorandum [la proposition de
cession des îles Turtle à la Grande-Bretagne], les délégués des Etats-Unis, tout en
reconnaissant qu’il est plus facile d’administrer les îles depuis Sandakan que depuis
Manille, ont estimé que la cession, la vente, voire la location des îles au Nord-Bornéo
poserait des difficultés insurmontables en raison de la position du Sénat des Etats-Unis
sur ces questions et également, comme nous avons été portés à le croire, de
l’opposition de la part du Gouvernement philippin.»
80. La ligne frontière définie par la convention de 1930 apparaît à l’écran en violet. Vous
trouverez aussi ce document sous l’onglet nº 48 de votre dossier. Cette ligne traduit la position
constante des Etats-Unis depuis la lettre du secrétaire d’Etat du 23 octobre 1903. Les îles Turtle et
les îles Mangsee situées à plus de 9 milles de la côte de Bornéo étaient reconnues comme
appartenant aux Etats-Unis. Au sud, les possessions américaines comprenaient l’île de Sibutu et
ses dépendances, mais aucune autre île au sud de celles-ci. Les Etats-Unis n’ont renoncé à aucun
territoire par cette convention et ils n’en ont cédé aucun. Ils n’ont fait valoir de prétentions ni sur
Ligitan, ni sur Sipadan, ni sur aucune autre île située au sud-ouest de Sibutu, parce qu’ils n’avaient
pas hérité ces îles de l’Espagne. De la même manière, la Grande-Bretagne n’a pas acquis Ligitan et
Sipadan auprès des Etats-Unis en vertu de la convention parce qu’il n’appartenait pas aux
Etats-Unis de les céder.
81. L’argument final de la Malaisie sur ce sujet est formulé comme une question rhétorique.
La Malaisie demande : «si l’Indonésie a raison, quelles conséquences cela a-t-il pour le groupe de
cinq îles (Kapalai, Danawan, Si Amil, Ligitan et Sipadan) qui se trouvent au sud de la ligne de la
convention de 1930, mais à plus de 9 milles marins de la côte de Bornéo ?» (CMM, par. 3.28.)
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82. La réponse à cette question est simple. Comme l’a expliqué sir Arthur Watts, la question
de l’appartenance de ces îles, qui n’ont jamais fait partie des possessions du sultan de Sulu, de
l’Espagne ou des Etats-Unis, a été réglée par la convention anglo-néerlandaise de 1891.
L’article IV de la convention était aussi favorable à la Grande-Bretagne qu’il l’était aux Pays-Bas.
Les îles situées au nord de la ligne de 4º 10’ de latitude nord, y compris Kapalai, Danawan et
Si Amil, étaient attribuées à la Grande-Bretagne précisément selon l’interprétation que fait
l’Indonésie de l’article IV de la convention. Quant aux îles situées au sud de cette ligne æ à savoir
Ligitan et Sipadan æ elles étaient attribuées aux Pays-Bas. La convention de 1930 n’a rien changé
à cette situation. Elle ne visait ni Ligitan, ni Sipadan et était, pour les Pays-Bas, res inter alios
acta.
C. Conclusion
83. Monsieur le président, Madame et Messieurs de la Cour, cela m’amène à la fin de mon
exposé et à la conclusion de l’Indonésie. Non seulement la Malaisie n’est pas parvenue à prouver
que, comme elle le soutient, chacun des maillons de sa chaîne conventionnelle du titre est valable,
mais les éléments de preuve font irrésistiblement penser le contraire.
84. Je remercie la Cour de son attention et vous prie, Monsieur le président, de bien vouloir
appeler à la barre M. Pellet, qui va poursuivre l’exposé de l’Indonésie.
Le PRESIDENT : Merci beaucoup, Monsieur Bundy. Je donne maintenant la parole à
M. Pellet.
The PRESIDENT: Thank you very much, Mr. Bundy. I now give the floor to
Professor Alain Pellet.
Mr. PELLET: Thank you very much.
THE ABSENCE OF A MALAYSIAN TITLE BASED ON EFFECTIVITÉS
Mr. President, Members of the Court,
1. It is my task this morning to show that, far from establishing the sovereignty of Malaysia
over Pulau Ligitan and Pulau Sipadan, the activities conducted on these two islands by the Parties
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and their predecessors confirm the title which Indonesia derives from the 1891 Convention. I shall
do so in two stages. In my first statement, after some general considerations on the role which
effectivités can play æ not in the abstract, but in the context of the present dispute æ I shall show
that the effectivités relied on by Malaysia certainly do not confer on it the territorial title which it
lacks in other respects. Mrs. Loretta Malintoppi will then take the floor in order to establish that
the same is true as regards the cartographical material. I shall then return in order to demonstrate
briefly that the respective activities of the Parties combine to confirm what is well and truly the title
which Indonesia claims.
I. The limited relevance of “effectivités” in the present dispute
2. I must however confess my hesitation, Mr. President — for after three and a half years and
three rounds of written pleadings, I have still not understood the role which our Malaysian friends
seek to attribute to the effectivités.
3. The Parties agree that the disputed islands were not res nullius at the time of the
colonization of Borneo by the Netherlands, and then by the United Kingdom. As Malaysia has
stated, “[t]here can be no suggestion that any [of the islands] is, or at any relevant time was, terra
nullius” (Memorial of Malaysia, p. 10, para. 3.1; see also Memorial of Indonesia, p. 37, para. 4.1
and Counter-Memorial of Indonesia, p. 11, para. 3.2). Without doubt the local peoples had a
sophisticated “social and political organization” (cf. Western Sahara, Advisory Opinion,
16 October 1975, I.C.J. Reports 1975, p. 39, para. 80) and the territorial conceptions of the local
sultans as presented by Indonesia in its Memorial that I referred to briefly yesterday (CR 2002/27,
pp. 41-42, para. 15) æ which went unquestioned æ show that they attributed only marginal
importance to the uninhabited island lying off the coasts over which they exercised their authority
even though they regarded those islands as their own (pp. 38-44, para. 4.3-4.19).
4. It has been said that “[the] connection with the terra nullius is pointed to as an important
point of distinction between effective occupation and acquisitive prescription” (I. Brownlie,
Principles of International Law, Clarendon Press, Oxford, 1998, pp. 136-137). If Pulau Ligitan
and Pulau Sipadan had been res nullius, we would have had a classic case of territorial acquisition
by occupation and the Court would have had to weigh up the respective manifestations of effective
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authority on the part of the two States or their predecessor(s). But this is not the case: although
they disagree about the proprietor of the title, the two Parties agree that a title did exist from the
beginning.
5. Now in law effectivités — colonial or post-colonial — can have only two functions:
æ either they confirm the pre-existing title;
æ or they displace it, assuming that to be possible, which is far from being evident.
6. In this respect it suffices to cite once again the dictum — justly famous (since it sets forth
the alternatives clearly and concisely) — of the Chamber of the Court in the Burkina Faso/Mali
Frontier Dispute:
“Where the act corresponds exactly to law, where effective administration is
additional to the uti possidetis juris, the only role of effectivité is to confirm the
exercise of the right derived from a legal title. Where the act does not correspond to
the law, where the territory which is the subject of the dispute is effectively
administered by a State other than the one possessing the legal title, preference should
be given to the holder of the title.” (Judgment of 22 December 1986, I.C.J. Reports
1986, pp. 586-587, para. 63.)
And the Court fully confirmed this approach in its Judgment of 3 February 1994 in the case
concerning the Territorial Dispute between Libya and Chad, where it expressed the view that,
where a treaty title exists, “the effectiveness of occupation of the relevant areas in the past, and the
question whether it was constant, peaceful and acknowledged, are not matters for determination in
this case” (I.C.J. Reports 1994, p. 38, para. 76).
7. Indonesia’s position is clear: under the 1891 Convention it holds a territorial title which,
as Sir Arthur Watts has demonstrated, is firmly established (and one which, moreover, confirms the
previous situation characterized by Boeloengan’s ownership of the disputed islands). Accordingly,
effectivités can only confirm this title, and the manifestations of authority relied on by Malaysia, as
far as they are concerned, can only be dismissed and regarded as usurpations of territorial
jurisdiction — easily explicable, what is more, in the light of the characteristics of the area
concerned.
8. The Malaysian argument æ it would be more appropriate to put this word in the plural æ
the Malaysian arguments are infinitely more convoluted and, as I said, I am not sure that I have
grasped all their ins and outs, particularly since they varied considerably during the various phases
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of the written proceedings and to a great extent contradict each other. Let us try and find our
bearings, though, by setting forth in succession the different arguments put forward by Malaysia æ
although in an attempt to simplify things I shall confine myself to the three arguments which
emerge from the Reply, to the exclusion of the Memorial and the Counter-Memorial.
9. Version 1: Malaysia, it says, succeeded to the original title of the Sultan of Sulu to the
disputed islands, whose inhabitants owed him allegiance (Reply of Malaysia, p. 1, para. 1.3 (1)) æ
sic: the islands in question were uninhabited; sic again, Malaysia cannot point to the slightest
manifestation of authority by Sulu or the BNBC over those islands before 1891; I shall come back
to this point. This title, Malaysia says, passed to it via the BNBC and the United States æ sic yet
again: Malaysia acknowledges, however, that the Sultan did not cede his title to the company
(Reply of Malaysia, p. 1, para. 1.3 (2)-(4) and p. 2, para. 1.3 (5)). And what about effectivités now,
Mr. President? They play a very large part, since Malaysia insists that the islands were effectively
administered by the BNBC from 1878 onwards. Did they shift the title from Sulu to the BNBC?
Certainly not, since, Malaysia admits at the same time that this title only passed to Great Britain by
virtue of the Treaty concluded by it with the United States in 1930. If there was any
administration, therefore, it was one which lacked title; in fact, it was in opposition to the title, and
all these pseudo-effectivités are devoid of any legal effect.
10. Version 2 of the Malaysian argument: in paragraph 1.17 of its Reply, Malaysia asserts:
“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 their title to
them.” (p. 5.) This is a singular “historical consolidation of title” (whatever one may think of the
theory itself): Malaysia, in one and the same breath, concedes (for the purposes of the discussion)
that it has no title but that this non-title was nonetheless “consolidated” by the effectivités “because
[the islands] have been administered by Malaysia and its predecessors for more than a century, and
that administration is what matters” (Reply of Malaysia, pp. 5-6, para. 1.18). This is no longer the
historical consolidation of a title (non-existent here), it is prescription contra legem.
11. Version 3 (which is intended, it seems, as an explanation of the previous version but
differs from it considerably): Malaysia asserts that its demonstration of effectivités over the two
islands
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“serves a dual function: first, it confirms Malaysia’s title which is independently
based on a series of valid legal instruments [this would be variant 1]; second, even
if æ in a manner by no means clear or established æ the Netherlands had at one time
possessed title to the islands, such title has been displaced by British/Malaysian
effectivités over the years” (Reply of Malaysia, pp. 89-90, para. 5.62),
which would correspond to version 2, but with a significant shift of emphasis, since this time
Malaysia no longer invokes the dubious theory of historical consolidation of title, but the theory æ
no less dubious in international law æ of acquisitive prescription (ibid., pp. 90-91, para. 5.63). At
all events this is totally irreconcilable with a position firmly expressed in Malaysia’s Memorial,
where it was stated that its reliance on continuous peaceful possession of the islands by Malaysia
and its predecessors “is not, it must be emphasized, one involving the assertion by Malaysia of a
prescriptive title against Indonesia” (Memorial of Malaysia, p. 60, para. 6.3).
12. But let us pause for a moment to consider this question of acquisitive prescription, which
academic writers continue to find so absorbing, although as far as I know it has never found a place
in the jurisprudence, as Professor Marcel Kohen observed in the conclusion to an exhaustive study
(Possession contestée et souveraineté territoriale [Disputed possession and territorial sovereignty],
PUF, Paris, 1997, p. 68; see also pp. 473-480).
13. Mr. President, I shall resist the temptation to discuss at length the question whether or not
this notion is accepted in international law. Let us say that at the very least this is doubtful (see
Counter-Memorial of Indonesia, p. 122, para. 7.5). In any case, even if international law did have a
place for acquisitive prescription, it would only be upon strict conditions and “[n]either practice nor
the jurisprudence . . . are a basis for asserting that mere evidence of the effective nature of
possession constitutes an adequate means of acquiring sovereignty over a given territory”
(M. Kohen, op. cit., p. 70), contrary to what appears to be the view of Malaysia, which backs away
from any discussion of this point (see Reply of Malaysia, p. 91, para. 5.64, note).
14. The Court has never determined what those conditions might be. However, in the
Kasikili/Sedudu Island case, although expressed no opinion on the possibility of acquisitive
prescription existing in international law (cf. Judgment of 13 December 1999, I.C.J. Reports 1999,
p. 1105, para. 97; see also the dissenting opinion of Judge Fleischauer, p. 1206, who expanded on
the Court’s Judgment in this respect), it did consider the question whether the conditions on which
the two Parties agreed were fulfilled in that case (ibid., p. 1103-1106, paras. 94-99). I shall do the
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same, Mr. President, although I would point out that Indonesia, for its part, continues to have
serious doubts about the applicability of prescription where territory is concerned and adheres to
the second of the alternatives which I mentioned just now: that possession cannot displace a
title — in the present instance, it cannot confer on Malaysia the sovereignty over Ligitan and
Sipadan which vests in Indonesia under the 1891 Convention and which, on a subsidiary basis, it
inherited from the Sultan of Boeloengan.
15. On an even more subsidiary level, therefore, may I ask whether the effectivités relied on
by Malaysia fulfil the conditions set out by Namibia in the Kasikili/Sedudu Island case, conditions
whose validity Botswana did not contest. The conditions were as follows — stated in the
indicative but I put them into the conditional because, I repeat, Indonesia for its part does not agree
that acquisitive prescription has an established place in international law; but, if such were the
case,
“four conditions [would have to] be fulfilled to enable possession by a State to mature
into a prescriptive title:
1. The possession of the . . . State [would have to] be exercised à titre de souverain.
2. The possession [would have to] be peaceful and uninterrupted.
3. The possession [would have to] be public.
4. The possession [would have to] endure for a certain length of time.” (I.C.J.
Reports 1999, p. 1103, para. 94.)
These conditions correspond moreover with those given in the ninth edition of Oppenheim’s
treatise, a work on which Malaysia (rightly) lays considerable stress (cf. Reply of Malaysia, p. 90,
n. 117 (iii) and pp. 91-92, para. 5.65), even though its authors, too, are careful not to take a
categorical position on the acceptance of the notion in international law (Sir Robert Jennings and
Sir Arthur Watts, Oppenheim’s International Law, Longman, London, 1992, Vol. I, pp. 705-708).
16. Let us therefore, Mr. President, compare the effectivités invoked by Malaysia with the
above conditions. This shows us clearly that:
- 13 -
II. The effectivités relied on by Malaysia could neither have created
nor displaced a territorial title
17. I shall say virtually nothing about the last condition, namely that the possession should
endure for “a certain length of time” — it is vague and obviously depends on the circumstances
involved. I do not in fact deny that if (I repeat, “if”) Malaysia or its predecessors had, à titre de
souverain, publicly, peacefully and uninterruptedly conducted activities on the two islands from the
middle of the nineteenth century onwards that condition would be fulfilled. But that is not the case
and at all events, Mr. President, none of the other three conditions are fulfilled.
(a) A deceptive list of effectivités
18. Out of curiosity we have prepared a list of the pre-colonial, colonial and post-colonial
effectivités relied on by Malaysia. This list is at tab 49 in the judges’ folders.
19. It strikes the eye immediately that although Malaysia has set great store by its
effectivités — increasingly so as the written pleadings progressed — they boil down to very little.
The list is long but only in appearances; when looked at more closely, it is all too obvious that, on
the most favourable construction for Malaysia, there are only three episodes, which even taken
together, are far from sufficient to create and a fortiori displace a territorial title.
20. Let us begin by eliminating everything which is irrelevant. There is much to do,
Mr. President! (All the documents which are clearly irrelevant, even prima facie, are in bold
characters in the list.)
21. First, whatever is subsequent to the critical date for the purposes of the present dispute,
namely the year 1969, can be regarded as irrelevant. I shall come back to this after the break. This
disposes of the Malaysian assertions represented by Nos. 43-46 in the list. The same holds good
for all the alleged “acts” and all the documents which do not concern, or do not mention, at least
one or other of the two islands. And those documents are legion.
22. All the documents relied on by Malaysia in regard to fisheries or navigation and relating
to the pre-colonial period are of that nature (List Nos. 1-8). Let us, for example, take Annex 40 to
the Malaysian Memorial (No. 5); this is an extract from the answer of the Dutch Minister of the
Colonies to enquiries made by the Budget Committee of the Second Chamber of Parliament; all it
does is to state a fact already mentioned by Malaysia (Memorial of Malaysia, p. 35, para. 5.8 (b)),
- 14 -
namely that portions of the island of Borneo were not part of the Dutch possessions, but it says
nothing about the extent of those portions and even less about the two islands we are concerned
with. Another example, Annex 76 to the Memorial of Malaysia (List No. 1), is no more relevant;
this is a statement by a person who is described as the Sultan of Sulu’s agent on the east coast of
Borneo; it says that the Bajau of Omadar (Omadal) took possession of a boat at Sibutee. Now not
only is Omadal situated to the south of Darwel Bay (the southernmost outpost of the reasonable
claims of Sulu) and Sibutee to the north-east of that point but also, as Indonesia has clearly
established with the support of detailed argument in its Counter-Memorial (pp. 19-37,
paras. 3.23-3.73), it is impossible to equate “Bajau Laut” with “Sulu” as Malaysia rather
off-handedly ventures to do. The facts are set out in documents Nos. 2, 6 and 7.
23. Moreover, a number of these documents tend clearly to contradict what Malaysia is
seeking to prove. I mention, but purely for the record, the refusal of the people of Sandakan to
hoist the Spanish flag (List Nos. 3 and 4): in any case we are far removed here from the disputed
frontiers, even if this refusal shows just how little these so called “Sandakan Sulus” felt themselves
to be “Sulu”. Document No. 8 is more interesting: although it mentions neither Ligitan nor
Sipadan, on reading it one has the very clear impression that Semporna, an adventitious foundation,
represented the southernmost outpost of the BNBC, and in any case the document confirms that the
territory which the latter administered did not go beyond Batoe Tinagat.
24. The picture remains the same after 1891. Thus the punitive expedition of the Petrel (in
1891) (List No. 9) was directed against Bajau Laut people of Dinawan and had nothing to do with
Ligitan and Sipadan; the same is true of the 1892 expedition, in this case against the Bajau of
Omadal (No. 10); and the southernmost island mentioned in documents Nos. 11, 12, 16, 17, 39
and 42, which relate to the Semporna and Dinawan areas, is Si Amil, to the “north of the Ligitan
Group” as document No. 11 states. The 1901 Boats and Fisheries Proclamation (List No. 13) is
extremely interesting, but not in the least, as Malaysia would wish us believe, because it concerns
our two islands æ of which there is no mention in the Proclamation æ but for a completely
different reason. What in fact does this Proclamation say? Among other things, that all British
North Borneo fishing boats must be registered and that the fishing licences must indicate the
districts to which the licence applies; so one would have thought that Malaysia would have
- 15 -
inundated us æ inundated yourselves æ with licences mentioning Sipadan or Ligitan (particularly
since those licences had to be renewed annually); but not at all! It has produced none whatsoever.
25. Instead of this (which would have constituted evidence of an effectivité, certainly not a
decisive one, but relevant), all we have received is a few affidavits (Nos. 45-49) which are worth
what they are worth æ that is to say, very little; they state that the inhabitants of Si-Amil fished or
collected turtle eggs around or on Ligitan or Sipadan; this is also true of fishermen from the
Indonesian coast (see Memorial of Indonesia, para. 6.9, p. 104 and Vol. 5, Anns. I, J, K, L and M
and Counter-Memorial of Indonesia, Ann. 31) and even from the Philippines (cf. the affidavit of
Panglima Nujum bin Panglima Abu Sari, No. 47, Memorial of Malaysia, Vol. 4, Ann. 118, p. 96,
para. 5); these documents are never specific about the date of the events which they recount and
some of them also tend to embellish the situation æ I am thinking, for example, of the nice little
story told by Tilaran Haji Abdul Majid about Sipadan, which got its name from the fact that
someone called Paran was found dead there! (No. 46, Memorial of Malaysia, Vol. 4, Ann. 117,
p. 93, para. 11); or the explanation of the development of Semporna given by Datuk Panglima
Abdullah Bin Panglima Uddang (No. 49, Memorial of Malaysia, Vol. 4, Ann. 120, p. 100, para. 3)
which differs totally from the real history of the foundation of the town of Semporna by the British.
26. In addition to the documents which I have just cited, other documents relied on by
Malaysia as evidence of its “effectivités” must be dismissed by virtue of the fact that they mention
neither Pulau Ligitan nor Pulau Sipadan. This is the case, for example, with the 1914 Proclamation
on Trade (List No. 20) or the Ordinance of 28 June 1963 on the proclamation of a bird sanctuary
(No. 40), which are very general in nature and make no mention of our two islands. Likewise,
Malaysia gives a list of the indigenous leaders of the east coast of North Borneo from 1878 to 1909
(No. 17); there is no name in this list of anyone who is a native of Ligitan or Sipadan æ and for
good reason! æ and this document proves absolutely nothing in regard to the territorial sovereignty
of our two islands.
27. The file of Malaysian effectivités is being whittled down, Mr. President: there remain
only three episodes concerning respectively (1) the collection of turtle eggs, (2) the creation of a
bird sanctuary and (3) the construction of light towers on the two islands æ because that is what
they come down to, the effectivités from which Malaysia would wish you, Members of the Court,
- 16 -
to conclude that it has a title to Ligitan and Sipadan. I will leave aside the Quiros episode (List
Nos. 14 and 15) since my colleague and friend Rodman Bundy has shown its irrelevance as support
for Malaysia’s claims. A few words now on the remainder.
(b) The collection of turtle eggs on Sipadan
28. Malaysia relies on 22 documents in this respect, but I leave aside the affidavits, which I
have already spoken about. The remaining 17 documents are enumerated in a list at tab 50 in the
judges’ folders, which is an extract from the previous list. I cannot deal with them individually, but
in any case it will probably suffice if I bring out the salient points.
29. According to Malaysia, these documents prove that “[b]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” (Reply of Malaysia, p. 14, para. 2.17). This is reading a lot
into them — more, certainly, than they actually say:
1. None of them mentions the name Ligitan.
2. The tortuous conclusion I have just quoted is revealing moreover: it is probably true that
Sipadan was used by certain inhabitants of Dinawan to collect turtle eggs and that this activity
caused disputes but:
æ they were not the only ones there (for example, in his account of the voyage of the Quiros
in 1903, Lt. Boughter relates that Bajau from other localities have been “poaching” there
and Indonesia has produced evidence establishing that some of them came from the
Indonesian island of Derawan for instance (No. 56));
æ Malaysia seeks to turn to advantage the fact that the author of this affidavit explains that
he spent two months on the island at the request of a Badjau living in Semporna (Reply of
Indonesia, p. 14, n. 41); this is true æ and proves only one thing: that the collection of
turtle eggs is a traditional matter involving ethnic and family ties, but is in no way a
question of sovereignty;
æ in any event, the intermittent presence on the island of peoples from Dinawan is certainly
not such as to establish the territorial claims of the British authorities, any more than the
presence of members of the Masubia tribe on the island of Kasikili/Sedudu proved
- 17 -
Namibia’s sovereignty over it (cf. Kasikili/Sedudu Island (Botswana/Namibia), Judgment
of 13 December 1999, I.C.J. Reports 1999, pp. 1094-1095, para. 74, and pp. 1105-1106,
paras. 98-99); in this connection, Malaysia must “show more than the use of the disputed
territory . . . for their private ends” (ibid., p. 1103, para. 94);
æ in fact, according to Malaysia itself (see Memorial of Malaysia, p. 65, para. 6.9; see also
Reply of Malaysia, p. 70, para. 5.14), this was Bajau Laut (Nos. 18, 21, 22, 23, 25, 32
and 45), whose links with the Sultanate of Sulu (as, moreover, with the Sultanates of
Boeloengan and Berou) and with the colonial powers do not warrant any definite
conclusion on the territorial appurtenance of the areas where they operated as, I repeat,
Indonesia has shown in its Counter-Memorial (pp. 19-37, paras. 3.23-3.73), without being
contradicted.
3. Above all, and with the exception of the Turtle Ordinance of 1917 (issued at a time when the
BNBC certainly had no title to Sipadan), these are exclusively documents settling disputes
between residents of Dinawan regarding the collection of eggs or granting them the right to
engage in this activity (Nos. 18 to 23, 25, 29 to 33, 38 and 51); here is the proof of the
personal jurisdiction exercised by the Company over the population of Dinawan, but certainly
not of its territorial jurisdiction over Sipadan; in the case concerning Kasikili/Sedudu Island
(Botswana/Namibia), Namibia was unable to convince the Court that the intermittent presence
of the Masubia “according to the seasons and their needs, for exclusively agricultural
purposes” constituted a manifestation of authority à titre de souverain (I.C.J. Reports 1999,
pp. 1105-1106, para. 98), whereas their establishment in the island was proven; the same
applies a fortiori to the occasional collecting of eggs referred to by Malaysia.
4. Further, documents on which Malaysia bases itself have clearly not been published and cannot
therefore serve as public evidence of the possession of the island by the BNBC, which,
however, would be indispensable to establishing acquisition of a title by prescription. Now, it
must be reiterated that, on Malaysia’s own admission, the BNBC had no title over Sipadan
until 1930 (cf. Memorial of Malaysia, p. 37, para. 5.12; Counter-Memorial of Malaysia, p. 54,
para. 3.6, and p. 69, para. 3.29; Reply of Malaysia, p. 1, para. 1.3 (2)) always assuming it had
acquired one on this date, which is not the case.
- 18 -
30. However, two of the documents relied on by Malaysia are public æ just two,
Mr. President; these are the Turtle Ordinance of 1917 (No. 24 in the list) and a document
presented by Malaysia as an official publication of the BNBC (see Reply of Malaysia, p. 14,
para. 2.15, and p. 72, para. 5.19) dating from 1922 and which mentions the production of turtle
eggs in Sipadan (No. 26). But if there were any publications it is highly unlikely that, especially in
1917 in the middle of the First World War, they came to the attention of the Dutch administrators
of the region, who were the only ones who could have been alerted to the ensuing violation of the
rights of the Netherlands.
31. Members of the Court, can it reasonably be deduced, solely from the Turtle Ordinance æ
the only document of any importance made public and adopted in the middle of a world war æ,
that the BNBC could have acquired a title, whereas the Parties are agreed in considering that it did
not have one, albeit for different reasons (Malaysia because, contrary to all reason, the title was
allegedly retained by Sulu; Indonesia because this title was granted to the Netherlands by the
1891 Convention)? Can the title claimed by Malaysia be inferred from a document which confines
itself to protecting the natural resources of the region by the creation, moreover, of a native
reserve æ which has more to do with local customs than with the colonial territorial division? The
reply to this question is patently, clearly, categorically: no. Perhaps it is an effectivité æ although
there may be some doubt about the fact that the BNBC acted “à titre de souverain”, and that it was
much more a matter of the preservation of commercial interests. But in any case, it is not enough
to displace a pre-existing title; nor even to establish it de novo æ but this second question does not
arise: Malaysia agrees, we are not here dealing with a terra nullius.
32. But there is something else: the only two public documents relied on in the Malaysian
written pleadings as effectivités date respectively from 1917 and 1922; once again at a time when
Malaysia recognizes that the BNBC had no title over the two islands æ because the BNBC had
apparently (still according to Malaysia) been acquired from the United States by Great Britain in
1930; further, in 1921, the Dutch had clearly reaffirmed their title to the two islands, as shown by
the important incident of the Lynx, of which Professor Soons has spoken. Moreover, it is
significant that the Sultan of Sulu who, according to Malaysia, still held the territorial title to the
two islands, did not protest more. Also, on that occasion, the Dutch had actually set foot on
- 19 -
Sipadan, whereas, for their part, the British had clearly never had the least effective presence there
on the ground; and, it should be stressed, Malaysia does not provide the least proof that the Turtle
Ordinance of 1917 even so much as began to be implemented on Sipadan.
(c) The proclamation of a bird sanctuary on Sipadan
33. The establishment of a bird sanctuary, or more precisely, a sanctuary for shore birds
(megapodes), on Sipadan leads to the same type of assertions. Three documents are concerned
here (Nos. 27, 28 and 40) listed under tab No. 51 in the judges’ folders, none of which, once again,
mentions Ligitan.
34. The first two date respectively from 19 December 1932 and 1 February 1933. The
upshot was that, following a proposal by the conservator of forests of Sandakan (No. 27), Sipadan
was “reserved for the purpose of bird sanctuaries” (No. 28). As for the 1963 Ordinance,
consolidating and amending the “law for the protection and conservation of certain species of wild
animals and birds” (No. 40), on the one hand it refers to a “law”, though there is nothing to say that
this is the Ordinance of 1913 (to which the two documents I have just quoted refer) and, on the
other hand, as Malaysia does not provide the complete text of this Ordinance, it is impossible to
verify that it does not give an exhaustive list of the areas and islands to which it applies æ but what
is certain is that this Ordinance does not mention Sipadan.
35. Yet this is not the most important point: Malaysia, which has nevertheless visibly
“combed” carefully through all the relevant archives, does not instance the slightest hint of
concrete implementation. In its Reply, it is indignant that Indonesia questioned the fact that the
1932 decision revealed an intention to act “à titre de souverain” (Reply of Indonesia, p. 74,
para. 5.22); yet this was indeed the case: the decision was not implemented on the ground; it had
no territorial effect; it is not “practice”; it remained, at best, a “virtual effectivité”.
36. Further, the map of Semporna district, annexed to the Malaysian Memorial, a
reproduction of which, Members of the Court, you will find in your folders under tab 52 and which
is being projected behind me, establishes that the British were aware that Ligitan and Sipadan did
not fall within their jurisdiction, the boundaries of which are clearly shown on the map. Malaysia
seeks to minimize the importance of this map (Reply of Malaysia, p. 73, para. 5.21) on the pretext
- 20 -
that other islands, which Indonesia does not regard as its own, are shown there outside the
administrative boundaries of Semporna district; this is true, but in no way detracts from the fact
that Sipadan, although mentioned as a “Bird Sanctuary”, is “outside British administration”; the
1933 decision therefore has the air of a kind of extraterritorial regulation; while this certainly
means that tribute should be paid to the far-sightedness of the British authorities, who were
endeavouring to protect the environment for the common good at a time when this was not a
normal concern, it certainly does not mean that this regulation should be regarded as an action “à
titre de souverain”. Indeed, as I have said, there is not the slightest trace of action.
(d) The construction and maintenance of the light towers
37. Lastly, Malaysia relies on the construction of lighthouses on the two islands æ
lighthouses is perhaps rather a grand word: reference to the photographs provided by Malaysia
(Memorial of Malaysia, pp. 22 and 25) shows that these are light metallic structures, with a lantern
on the top. Having said this, it is true that they were built by the British in 1962 and 1963
respectively and attracted a certain amount of publicity, as shown by the five documents produced
by Malaysia (Nos. 34 to 37, and 41 in the list); furthermore, the Indonesians have never claimed to
be unaware of their existence (as shown by documents Nos. 43, 54 and 55; see also Memorial of
Indonesia, Vol. 4, Ann. 142, p. 245). The list of relevant documents is found this time under tab 53
in the judges’ folders. These would appear to be the only true effectivités on which Malaysia can
rely. Yet they are of extremely limited scope.
38. In fact, it has been established by many legal decisions that the construction and
maintenance of lighthouses do not, in themselves, constitute proof of the desire to act “à titre de
souverain”. Malaysia does not dispute this, but asserts that the precedents quoted in the Indonesian
Counter-Memorial (pp. 134-135, paras. 7.40-7.43) are explained solely by the particular
circumstances of this case (Reply of Malaysia, pp. 74-75, paras. 5.25-5.26). This is not the view of
the Arbitral Tribunal, which settled the Eritrea/Yemen case and which held, in general (and not, as
Malaysia claims, in relation to the circumstances of the case), that “[t]he operation or maintenance
of lighthouses and navigational aids is normally connected to the preservation of safe navigation,
and not normally taken as a test of sovereignty” (First Stage, Award of 9 October 1998, p. 87,
- 21 -
para. 328); furthermore, the detailed history of the construction and maintenance of the lighthouses
in the Red Sea, related in Chapter VI of the Eritrea/Yemen Award (pp. 57-65, paras. 200-238),
shows that the question of sovereignty over the islands concerned was always dissociated,
voluntarily or de facto in the Eritrea/Yemen case, from the establishment and maintenance of the
lighthouses. Similarly, in the Minquiers and Ecrehos case, the Court found that the fact that the
French Government had “assumed the sole charge of the lighting and buoying of the Minquiers for
more than 75 years, without having encountered any objection from the United Kingdom
Government” did not prove that “France has a valid title to the Minquiers” and cannot be
considered “as involving a manifestation of State authority in respect of the islets” (Judgment of
17 November 1953, I.C.J. Reports 1953, pp. 70-71).
39. One of the reasons for this position lies in the fact that France had acted “to aid
navigation to and from French ports and protect shipping against the dangerous reefs of the
Minquiers” (ibid., p. 70). Precisely as in the case which concerns us, the British proceeded to
construct the “lights” at Ligitan and Sipadan in order “to assist navigation of vessels between
Tawau and Sandakan using the Alice Channel route between Tawau and Sandakan, [or] secondary
routes on the inshore channel for the Tawau/Semporna route” (document No. 34 in the list) æ
these maritime routes exclusively entailed internal coastal navigation in the colony of North
Borneo and now Malaysia.
40. This being so, there is no reason to be surprised that Indonesia did not protest against the
establishment of the two light towers on the uninhabited islands of no importance for local
Indonesians or international traffic. They were also constructed when Indonesia was experiencing
a difficult political situation. Moreover, I would add that, not only did Indonesia not protest, but it
expressly gave its consent to the maintenance of the two lighthouses (the one on Sipadan at any
rate) by Malaysia, as shown by the Note Verbale of 7 May 1988, by which the Indonesian Ministry
of Foreign Affairs strongly protested against the tourist invasion of Sipadan organized by Malaysia,
noting that, at the close of the 1969 negotiations,
“the two sides agreed to temporarily set aside the question [of ownership or title of the
islands of Sipadan and Ligitan] and to maintain the status quo on the islands (no
activities except for maintaining a lighthouse at the easternmost part of Sipadan)”
(Memorial of Indonesia, Vol. 4, Ann. 142, p. 245; emphasis added).
- 22 -
41. This situation is not unlike that of the lighthouse on the island of Taganak in the Turtle
Islands group referred to a moment ago by Mr. Bundy. This lighthouse was built by the BNBC “as
an aid to navigation” (Reply of Indonesia, Vol. 2, Ann. 16, p. 196; see also Ann. 18, pp. 236
and 182) at the beginning of the twentieth century, at a time when the British had no territorial
sovereignty over the island, as expressly acknowledged by them subsequently (cf. Reply of
Indonesia, Vol. 2, Ann. 13 or 16). As this precedent shows, building a lighthouse solely as an aid
to local navigation does not in any way, of itself, prejudge sovereignty; at the most it may give rise
to compensation inasmuch as it is a sort of international public service (cf. the Exchange of Notes
appended to the Convention of 2 January 1930, Memorial of Indonesia, Vol. 4, Ann. 126, p. 87).
(e) Provisional conclusion on the effectivités
42. In short, Mr. President, the possession relied on by Malaysia has not been exercised “à
titre de souverain”, or uninterruptedly, or publicly.
43. It has not been public. As explained by David Johnson in an authoritative article on
acquisitive prescription in international law, of which he is an advocate, “[p]ublicity is essential
because acquiescence is essential” (“Acquisitive Prescription in International Law”, BYBIL 1950,
p. 347; see also Ian Brownlie, Principles of International Law, Clarendon Press, Oxford, 1998,
p. 155). In other words, the effective presence of the State which relies on it must be sufficiently
overtly public for the States invoking a competing title to be able to protest. This is not the case of
any of the few “effectivités” relied on by Malaysia. And Indonesia had no reason to protest against
traditional fishing or egg collecting activities any more than against the construction of light towers
as an aid to Malaysian navigation in the region.
44. The possession Malaysia relies on has not been “à titre de souverain” either. The Turtle
Ordinance of 1917 and the “arbitrations” by the BNBC as between the contradictory claims of the
Bajau from Dinawan fall within the category of commercial and private activities and, at any event,
take place at a time when Malaysia itself does not dispute that the BNBC had no sovereignty over
Ligitan and Sipadan; it cannot therefore have acted “à titre de souverain”. The same applies to
the inclusion of Sipadan in a bird sanctuary for shore birds, a decision not followed up by any
- 23 -
concrete manifestation of authority on that island, or by the construction and maintenance of light
towers which, as such, do not constitute manifestations of sovereign authority.
45. And this claimed Malaysian possession æ which did not therefore take the form of any
effective presence on the islands until the end of the 1980s, after the birth of the present dispute æ
has not been uninterrupted either. Even supposing the few effectivités put forward with such
insistence by Malaysia are relevant, which none of them really is, as I think I have shown, they are
remarkably few and far between, as shown by document No. 49 in the judges’ folder.
46. Let me point out in this connection, Members of the Court, that we have included in that
list all the so-called proofs of effectivités relied on by Malaysia in all three volumes of its written
pleadings. And what do we find?
æ that none of the documents prior to 1903 mentions the two islands; as for the documents of
1903 (Nos. 14 and 15), they relate to the voyage of the Quiros and are based on an error
subsequently acknowledged by the American authorities, as Mr. Bundy showed yesterday;
æ we also find that Malaysia relies on a number of internal disputes relating to the collection of
turtle eggs between 1910 and 1917, the date of the Turtle Ordinance (Nos. 18 to 24 in the list);
two documents then relate to the years 1918 and 1922 (Nos. 25 and 26); and then
æ nothing further until 1931-1933, the date of the two documents relating to the bird sanctuary
(Nos. 27 and 28); and
æ once again a gap of over 20 years when, in 1954, there are again a few manifestations of
pseudo-effectivités between 1954 and 1963 (Nos. 29 to 42).
In other words, on Malaysia’s own admission, there is no manifestation of effectivité until 1910;
nothing new for some ten years between 1922 and 1931; and nothing again for over 20 years
between 1933 and 1954. Is it reasonable to speak of “continuous possession”?
47. More significant still: during the colonial period, from 1963 to 1969, Malaysia is not in a
position to rely on any effectivité until 1988 æ in other words, some 20 years after the dispute had
broken out publicly. From that point, on the other hand, it endeavours to concoct a possession æ
but it is, legally speaking, too late, as I shall show presently when I contrast the Indonesian
effectivités with the absence of serious Malaysian effectivités.
- 24 -
48. Mr. President, as far as I understand them, the Malaysian arguments, which are not
without a certain resemblance, mutatis mutandis, to those which Namibia sought to assert before
the Court in the case concerning Kasikili/Sedudu Island (Botswana/Namibia) (cf. Judgment of
13 December 1999, I.C.J. Reports 1999, p. 1092, para. 71), are very largely æ and in the case of
one of them, the main one apparently æ exclusively based on the effectivités on which Malaysia
relies. To understand their potential effects, it is helpful to refer again to what Malaysia, in its
Reply, presents as the two “strands” of its case (Reply of Malaysia, p. 66).
49. According to the first strand, the Sultan of Sulu had retained “sovereignty” over Pulau
Ligitan and Pulau Sipadan, which did not pass to Great Britain until the Anglo-American Treaty of
1930. For the Malaysian claim to be convincing, two conditions æ cumulative (not alternative) æ
must be met: on the one hand, Sulu’s “sovereignty” over the islands would have to be established
and, on the other hand, the 1930 Treaty would have to relate to the islands claimed by Malaysia.
We showed yesterday that neither of these hypotheses was valid. Consequently, the claimed
effectivités on which Malaysia relies do not have any legal significance unless they had displaced
the treaty title belonging to Indonesia by virtue of an acquisitive prescription which, assuming it
was accepted in international law æ which, I repeat, we do not think it would be æ supposes
manifestations of effective authority “à titre de souverain” which are much more convincing that
those relied on by Malaysia.
50. Our opponents encounter yet another difficulty, at least during the period prior to 1930,
since the claimed BNBC effectivités run counter to the so-called territorial title belonging to the
Sultan of Sulu. We would therefore be dealing with effectivités contra legem, which, on
Malaysia’s own admission (cf. Reply of Malaysia, p. 20, para. 2.26), did not displace the Sulu title.
The only two effectivités on which Malaysia relies during this period æ the collection of turtle eggs
on Sipadan by Bajau from Dinawan (an activity over which they had no monopoly moreover) and
the Turtle Ordinance of 1917 æ are therefore legally discredited.
51. So all that remains is the decision to include Sipadan in the bird sanctuary for shore birds
created by the 1930 Ordinance (which was never implemented in practice) and the construction of
the two light towers, which is certainly not enough to displace Indonesia’s title under the
1891 Convention, or to establish a title by occupation æ which corresponds to the second “strand”
- 25 -
of the Malaysian case (Reply of Malaysia, p. 68, para. 5.6), which, anyway, is not compatible with
the conviction, shared by the Parties, that the two islands were not terrae nullius.
Mr. President, I propose to speak presently, with your permission, about the effectivités and
the mutual conduct of the Parties which confirm the Indonesian title. Before that,
Mrs. Loretta Malintoppi will, if you would be so kind as to give her the floor, consider the maps
relied on by the two Parties and their legal significance. I think she is ready to begin now, or after
the break, as you will.
The PRESIDENT: Thank you, Professor Pellet. The sitting is suspended for ten minutes.
The Court adjourned from 11.25 a.m. to 11.35 a.m.
The PRESIDENT: Please be seated. The sitting is open again and I give the floor to
Mrs. Loretta Malintoppi.
Mrs. MALINTOPPI: Thank you, Mr. President.
THE IMPORTANCE OF THE CARTOGRAPHY IN THE INDONESIA/MALAYSIA CASE
I. Introduction
1. Mr. President, Members of the Court, it is a great honour for me to appear before you
today on behalf of the Government of the Republic of Indonesia.
2. The purpose of my statement is to examine the elements of cartographic evidence
produced by the two Parties in their written pleadings and to assess their importance in the legal
context of the present case. I shall be assisted in this task by Mr. Robert Rizzutti and
Mr. Charles Claypoole and I thank them for their services.
3. Before proceeding to a detailed description of the maps, I should like to draw attention to
a point on which there is no disagreement between the Parties: the fact that the cartography cannot
in itself constitute a territorial title. Maps, though, are undoubtedly one of the means whereby the
parties express their conviction as to the extent of a territorial title. To that extent they can help to
clarify the legal situation.
4. In the present case, Indonesia takes the view that the maps can confirm the territorial title
established by the 1891 Convention between Great Britain and Indonesia’s predecessor in title, the
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Netherlands. In the case in point the maps represent an aspect of the conduct of the Parties which
can, to borrow the words of the Chamber of the Court in the Frontier Dispute case, endorse “a
conclusion at which a court has arrived by other means” (Frontier Dispute, I.C.J. Reports 1986,
p. 583, para. 56).
5. From this point of view, the relevant cartography in this case is useful in several respect.
First, certain maps placed on the file by the Parties testify to the state of knowledge regarding the
limits of the sovereignty of the predecessor States in the area. According to those maps, the islands
which are the object of the present dispute formed part of the territorial possessions of the
Netherlands. Second, the cartographical elements in this case furnish evidence of the intentions of
the Parties regarding the line established by the 1891 Convention. Third, the cartography
subsequent to the signing of that Convention can serve as an element of proof of the subsequent
practice of the parties.
6. Finally, a very large number of official maps published by Malaysia after its independence
show a line which does not stop at the island of Sebatik, but extends out to sea from that island in
contradiction to Malaysia’s present position. These Malaysian maps constitute so many proofs of
the interpretation which Malaysia placed on the line defined by the 1891 Convention. They
therefore represent a whole series of assertions going against our opponents’ interests æ
admissions against interest, that is æ whereby Malaysia has acquiesced in the Indonesian position.
7. Doubtless that is why Malaysia treats the cartography somewhat disdainfully. It maintains
that the maps æ despite according them importance when, by an extraordinary chance, they can be
interpreted as supporting its argument æ are not decisive in the present case. Malaysia contends
that its claims are based on a “chain of title” — a series of successive titles æ, on the colonial
effectivités and on the fact that the islands were under Malaysian administration. It considers that
its claims are not based on cartographic elements of evidence, because, it says, these do not always
show the prolongation of the line beyond the island of Sebatik and æ in any event, according to
Malaysia æ they do not support the conclusion that the islands fall under the sovereignty of
Indonesia (Counter-Memorial of Malaysia, pp. 120-121, paras. 5.37-5.38).
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8. Yet, Mr. President, the importance of the cartography in the present case is undeniable: a
characteristic of the case is the presence, on a very large number of official maps from different
sources, of a line crossing the island of Sebatik and continuing eastwards out into the Celebes Sea.
9. The same line occurs from map to map from 1891 onwards, the date of the signing of the
Anglo-Dutch Convention. The recurrence of this line is one element in this case which Malaysia is
incapable of explaining. The only explanation it has ventured to give is that the line represents a
territorial sea boundary (Counter-Memorial of Malaysia, Vol. 1, p. 102, para. 5.12). This is a
particularly surprising assertion given that Malaysia does not take the trouble to justify it in any
way whatsoever.
10. Mr. President, we need not look very far in order to understand the origin of this line
which appears and reappears over the years æ and on the Malaysian maps even. It can only have
one source, and that is the 1891 Convention.
11. After this brief introduction I shall undertake a review of the maps. I do not of course,
Mr. President, intend to subject you again to the entire cartographic material which is appended to
the Parties’ written pleadings. I shall confine myself to commenting on the most significant maps
which confirm the territorial title inherited by Indonesia to the isles of Sipadan and Ligitan. In
regard to the maps which will not be discussed in this statement, may I ask the Court to be good
enough to refer to our written pleadings (Memorial of Indonesia, Atlas, maps 1, 2, 3, 4, 6, 7, 8, 9,
15, 21, 22, 23, 24; Counter-Memorial of Indonesia, maps 4-9).
12. I should like first to examine the relevant cartographic material chronologically, while
retaining the various headings under which Indonesia classes this material. I shall then briefly
consider the maps produced by Malaysia and I shall conclude with a few general remarks on the
Malaysian claims in regard to the cartography.
II. The maps which reflect the opinion of the signatories regarding the interpretation
of the 1891 Convention
(a) The maps prior to the 1891 Convention
13. Mr. President, Members of the Court, the genesis of the present case has already been put
to you. Thus we have seen how, in the negotiations which resulted in the conclusion of the
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1891 Convention, the Netherlands and Great Britain agreed that the dividing line between their
respective possessions should follow the parallel of latitude 4° 10’ N and should continue along
that parallel eastwards beyond the island of Sebatik.
14. Professor Pellet has drawn attention to the importance of the maps exchanged by the
parties during the negotiations. His statement bears eloquent testimony to the value which should
be attributed to this cartographic material legally and I shall add very little to that. May I simply
point out that these maps served to illustrate the respective positions of the States parties in
concluding the Convention. They therefore remove all doubt as to their intentions, namely that the
line of allocation of territory between them was to cross the island of Sebatik and continue beyond
it out to sea.
15. It is in fact obvious that, in the negotiations on the 1891 Convention, the British
negotiators envisaged a territorial dividing line extending beyond the mainland and well beyond the
island of Sebatik.
16. On their side, the Dutch negotiators had also prepared sketch-maps which expressed the
same notion of territorial division. These maps too confirm that the parties to the 1891 Convention
had obviously envisaged that the territorial allocation should extend beyond the island of Sebatik.
Thus, contrary to Malaysia’s contention, there is nothing “imaginary” about this idea æ it is
precisely what the parties agreed on in Article IV of the 1891 Convention and, as Sir Arthur Watts
demonstrated yesterday, precisely what was represented on the map attached to the Dutch
“Explanatory Memorandum”.
(b) The map attached to the Dutch “Explanatory Memorandum”
17. This map, now on the screen and at tab 8 in the judges’ folders (Memorial of Indonesia,
Atlas, map 5), is of particular importance for this case. It reflects clearly the shared intention of the
parties and the existence of a consensus between the two States concerned in regard to the course
of the line established by the 1891 Convention.
18. Like the map in the Livre Jaune in the Libya/Chad case, the map attached to the
“Explanatory Memorandum” testifies to the official, public and contemporary interpretation by the
Dutch authorities of the line established by the Convention.
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19. This brings to mind the well known passage in the Award in the Beagle Channel case
where the Court of Arbitration observed:
“Thus maps or charts in existence previous to the conclusion of the Treaty in
1881 might be relevant if, in the circumstances, they could (for instance) throw light
on the intentions of the Parties, or give graphic expression to a situation of fact
generally known at the time or within the actual, or to be presumed, knowledge of the
negotiators. Equally, maps published after the conclusion of the Treaty can throw
light on what the intentions of the Parties in respect of it were, and, in general, on how
it should be interpreted.” (Beagle Channel, ILR, Vol. 52, 1979, p. 202.)
20. The map attached to the “Explanatory Memorandum” therefore fits perfectly with the
reasoning followed by the Court of Arbitration in the Beagle Channel case, particularly because it
testifies æ as the Award put it æ to “the view which the one or the other Party took at the time . . .
concerning the settlement resulting from the Treaty”.
(c) The official maps published after the conclusion of the 1891 Convention
21. With regard to the maps published after the conclusion of the 1891 Convention æ and in
particular those of the British North Borneo Company’s official cartographer, Stanford æ they
confirm that the course of the line resulting from the Convention crosses the island of Sebatik and,
following parallel of latitude 4° 10’ N, continues out to sea from the east coast of Sebatik, whereas
the two disputed islands lie to the south of that parallel.
22. Professor Soons has made the point that the maps drawn up by Stanford in 1894, 1903
and 1904 show a dividing line between the Dutch and the British possessions; and that the line in
question crossed the island of Sebatik and continued seawards from the latter for several miles to
the east of the islands of Sipadan and Ligitan.
23. These maps show quite clearly that Stanford had taken account of the territorial
delimitation resulting from the conclusion of the Convention. They represent the point of view of
the administering entity on the extent of its territorial powers. The maps published by Stanford
contain no disclaimer suggesting that their publisher did not accept responsibility for the boundary
line. It is therefore clear that Stanford æ and therefore the BNBC æ considered that, according to
the 1891 Convention, the line represented by the 4° 10’ N parallel marked the limit of the territorial
possessions of the BNBC on the island of Borneo and in the Celebes Sea.
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24. Mr. President, I should like now to mention very rapidly three other maps of British
origin, all post-1891, which cannot be reconciled with Malaysia’s present position. The first is a
“Top Secret” map of North Borneo issued by the Geographical Section of the British General Staff
during the Second World War in 1944 (Counter-Memorial of Indonesia, map A.2). It is on the
screen and at tab 54 in the judges’ folders. Great Britain obviously considered that the course of
the boundary pursuant to the Convention did not stop at Sebatik. In that respect, the British point
of view, represented on this 1944 map, does not differ from that of Indonesia today.
25. It should also be noted that the line which appears on the top secret map of 1944 is far
from unique. For example, the map now on the screen æ and at tab 55 in your folders æ contains
the same graphic representation of the 1891 Convention line. This map was issued by the British
Ministry of Defence in 1973 under the title “Tactical Pilotage Chart” (Memorial of Indonesia,
Atlas, map 19).
26. As the Court can see, the line traced by the 1891 Convention crosses the island of
Sebatik and continues eastwards beyond the east coast of that island. This raises a number of
questions: where does this line come from? What does it mean? Why, if we follow the Malaysian
argument, does the line not stop at the east coast of Sebatik?
27. Malaysia is struck dumb on these points. In truth, there is only one explanation: the line
appearing on these maps confirms that the Indonesian interpretation of the 1891 line is the only
possible and only plausible interpretation, that it is æ in effect æ the only one which corresponds
to the truth.
28. The third British map which I should like to show you contains aspects which are
interesting from a different standpoint. It was drawn up by the Survey Department of the Colony
of North Borneo in 1953 (Memorial of Indonesia, Atlas, map 10). It is now on the screen and at
tab 56 in your folders. This map shows in yellow the territory of the British Colony of North
Borneo, both the mainland and the islands. The boundaries of the various provinces making up the
colony are marked by black lines of alternating dots and dashes. One of these lines stops at the east
coast of the island of Sebatik and another runs southward from a place called Kiraz and stops just
north of the islands of Sipadan and Ligitan at a latitude which can only correspond to parallel
4° 10’ N. Even though the line crossing the island of Sebatik does not continue beyond the latter,
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the map leaves no doubt about the fact that the British administration of North Borneo did not
extend to the territories situated to the south of the line drawn in 1891.
29. Before I finish with this map, I should like to make one comment: it is surprising, to say
the least, to see æ if one follows our opponents’ argument æ that the islands of Sipadan and
Ligitan simply do not appear on this map. They are not represented on it at all, unlike a number of
other islands, small or large, as being part of the Colony of North Borneo.
A third group of maps, all of Malaysian origin remains to be considered. These are:
III. The maps published by independent Malaysia which contradict its present position
30. After its independence in 1963, and even after 1969, the date on which the dispute arose,
Malaysia produced a large number of official maps showing a line which extends off the east coast
of the island of Sebatik. These maps date from the years 1964 to 1974. They reflect a consistent
practice which represents the point of view of the Malaysian Government as regards the line
established by the 1891 Convention.
31. This large-scale and consistent production of official maps emanating from the
Malaysian Government inevitably generates legal consequences.
32. The decision of the Boundary Commission in the Eritrea/Ethiopia case on 13 April last
discusses the question of official maps published by one of the parties to a boundary dispute. A
particular conclusion ensuing from the decision is that significant legal consequences are
attributable to a map produced by an official government agency of a party, and that the latter party
must suffer the adverse effects of the map if it has not disclaimed it (Decision Regarding
Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of
Ethiopia, p. 26, para. 3.21).
33. What is more, this Arbitral Award is not an isolated one. International judicial decisions
affirm that maps produced by one of the parties to a case are opposable to it as admissions against
interest where they contradict the position taken by that party during the dispute. It will suffice to
mention here the Minquiers and Ecrehos and Burkina Faso/Republic of Mali cases, as well as the
Island of Palmas, Labrador Frontier, Laguna del Desierto and Eritrea/Yemen arbitrations. The
conduct of Malaysia, as we have seen, furnishes proof of the existence of an agreement between the
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Parties within the meaning of Article 31, paragraph 3 (b) of the Vienna Convention on the Law of
Treaties as regards the scope of the 1891 Convention and in particular the location of the line
established by Article IV of the Convention.
34. What does Malaysia say in regard to these maps? Its argument is somewhat weak; it
contends that these maps are “generalized” or lacking in detail and that they contain “disclaimers”.
Although it is true that in some cases the maps contain disclaimers in regard to exact boundary
lines, it is also true that numerous maps contain no such qualification at all. Moreover, in any case
it is indisputable that the existence of such disclaimers would have no effect on the probative force
of these maps in support of the Malaysian position as regards the course of the line in a
“non-suspect” period, that is to say during the period which preceded the dispute.
35. The Boundary Commission in the Eritrea/Ethiopia case had occasion to comment on the
disclaimers in maps where certain features are unfavourable to the State having published them.
Here is what the Commission said in its decision on this subject:
“As regards the State adversely affected by the map, a disclaimer cannot be
assumed to relieve it of the need that might otherwise exist for it to protest against the
representation of the feature in question. The need for reaction will depend upon the
character of the map and the significance of the feature represented. The map still
stands as a statement of geographical fact, especially when the State adversely affected
itself produced and disseminated it, even against its own interest. The disclaimers
may influence the decision about the weight to be assigned to the map, but they do not
exclude its admissibility.” (Decision Regarding Delimitation of the Border between
the State of Eritrea and the Federal Democratic Republic of Ethiopia, p. 28,
para. 3.27.)
36. Also, and this seems to us the most important aspect here, Malaysia does not offer any
explanation for the presence on all these maps (covering a number of years) of a quite remarkable
common feature: the line which crosses the island of Sebatik extends well beyond this island
following parallel 4o
10’ of latitude.
37. For the time being, it is perhaps best to let the maps speak for themselves. The first
(No. 57 in your folders; Memorial of Indonesia, Atlas, map 11) was prepared in 1964 by the
Survey Department of the British Ministry of Defence for the Malaysian Directorate of National
Mapping — which is a Malaysian Government body. The map is called “Pulau Sebatik”. The
course of the 1891 line is here represented in the normal way, in other words, crossing the island of
Sebatik and continuing east along parallel 4o
10’ of latitude north. It should be noted that this map
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contains a disclaimer regarding the boundaries indicated on it. However, it remains important
showing as it does the interpretation given by the Malaysian Government in 1964 of the object of
the 1891 Convention, in other words, that the course of the line delimited the respective
possessions of the parties on land and at sea.
38. The map now being shown on the screen, and which is No. 58 in the judges’ folders, is
entitled “Tawau” and was also prepared by the British Ministry of Defence for the Malaysian
Directorate of National Mapping (Memorial of Indonesia, Atlas, map 13). Its date is 1965. Once
again, we find the line established by the Convention, running along parallel 4o
10’ of latitude
north, east of the island of Sebatik and into Saint Lucia Bay. Although this map contains a note
cautioning that it is not to be regarded as authoritative where the international boundaries are
concerned, it is nevertheless significant that, at the foot of the map, there is a sketch representing a
“boundary diagram”, which reproduces the course of the 1891 line.
39. Here is another example. This time it is from a map of the following year, 1966, also
published by the Malaysian Directorate of National Mapping. It is entitled “Malaysia, Singapurak,
Brunei; pemerentahan” (in French: Carte politique de la Malaisie, Singapour et Brunéi) and is
No. 59 in your folders (Counter-Memorial of Indonesia, map A.1). There is no disclaimer on this
map. Again, the boundary line is the same: the line is extended east of Sebatik and continues until,
off Celebes, it meets the line of the 1930 Convention between Great Britain and the United States.
40. I should now like to move on to a map which is of vital importance for the present case.
It is an official map prepared by the Malaysian Ministry of Lands and Mines and published in
1968 — in other words, a year before the date on which the dispute between the Parties crystallized
(Memorial of Indonesia, Atlas, map 16). This map is No. 60 in your folders. It was prepared by a
Malaysian government body in the context of a geological study of the region of North Borneo
conducted in 1967. At the time, Malaysia was starting to manifest keen interest in prospecting for
oil and gas in the region, which led the Malaysian Government to focus particular attention on the
area adjacent to the islands of Sipadan and Ligitan.
41. The map, which does not contain any disclaimer, represents the boundaries of Sabah by a
dotted line, underlined by a superimposed continuous red line. The line established by the
1891 Convention is represented as extending east of Sebatik. It joins the extension southwards of
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the line of the 1930 Convention between Great Britain and the United States. As you will be able
to check on the enlargement being shown on the screen, there is no mistake: as the international
boundary, the legend on the map indicates the dotted line reproducing the customary line of the
1891 Convention.
42. Professor Pellet will shortly discuss this map in greater detail and also the history of the
oil concessions in the region. For my part, I shall not dwell on it any further. Moreover, this map,
which represents the oil concessions of 1968, is only one of many examples. For there are many
official Malaysian maps which reproduce the characteristic course of the 1891 line. These maps
reveal the existence of an agreement between the Parties on the scope and significance of the
1891 Convention.
43. Here is yet another example.
44. The Agent of Indonesia noted that, in 1969, during the delimitation of the continental
shelf in the Malacca Strait and the South China Sea, Malaysia for the first time made claims on the
islands of Sipadan and Ligitan. The map now being shown on the screen (Memorial of Indonesia,
Atlas, map 17) — and which is No. 61 in your folders æ had been appended to the Agreement in
which the negotiations culminated. On this map there appears a dotted line extending east of
Sebatik. Malaysia obviously could not be unaware of the existence of this line at the time.
45. But the list of the official Malaysian maps showing the line established by the
Convention does not let matters rest there. On the contrary, the production of these maps
continues, even after the critical date.
46. Let us therefore take a look at this map, which is No. 64 in the judges’ folders. Prepared
by the Department of Lands and Surveys of the region of Sabah in 1964, this map was published by
the Malaysian Directorate of National Mapping in 1972. Its title is “Malaysia, Timor, Sabah”
(Memorial of Indonesia, Atlas, map 18). The line representing the course of the 1891 line
coincides with the boundary represented on the previous map. Hence, as the Court will note,
Malaysia’s point of view had still not changed in 1972. The location of the boundary was the same
in the 1966 and 1967 editions (Memorial of Indonesia, Atlas, maps 12 and 14) of the same map
published by the same Malaysian Directorate of Mapping (which are Nos. 62 and 63 in your
folders).
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47. It should be emphasized that the 1972 map is all the more important for having been
published by the Malaysian government body responsible for the production of maps three years
after the 1969 negotiations and after the first formulation by Malaysia of its claims to the disputed
islands.
48. In 1974, the Malaysian Department of Statistics published a map entitled “Negeri Sabah,
Population and Housing Census. Map Showing Distribution of Population” (Memorial of
Indonesia, Atlas, map 20; judges’ folders, No. 65). This map is accompanied by a disclaimer on
the boundaries but again contains a line extending beyond the island of Sebatik, in accordance with
the 1891 Convention.
49. Mr. President, Members of the Court, Professor Pellet will shortly explain how
Malaysia’s whole conduct reveals how its view coincides with Indonesia’s on the 1891 line. For
my part, I would point out that this map merits particular attention by the Court, constituting as it
does an element of proof of Malaysia’s subsequent practice with respect to the 1891 Convention.
50. In the case concerning Kasikili/Sedudu Island (Botswana/Namibia), the Court referred to
the subsequent practice of the States. Among other things, it instanced the commentary by the
International Law Commission on the draft Article 31, paragraph 3 (b), of the Vienna Convention
on the Law of Treaties. On this topic the Commission observed:
“The importance of such subsequent practice in the application of the treaty, as
an element of interpretation, is obvious; for it constitutes objective evidence of the
understanding of the parties as to the meaning of the treaty. Recourse to it as a means
of interpretation is well-established in the jurisprudence of international tribunals.”
(Yearbook of the International Law Commission 1966, Vol. II, pp. 221-222, para. 15.)
51. In this case, the fact that, on a very large number of official Malaysian maps, there is a
line crossing the island of Sebatik and continuing beyond it must have a raison d’être. This line
cannot have been reproduced there by chance, on one official map after the other. It can but be an
illustration of Malaysia’s agreement to the line resulting from the 1891 Convention. In any case,
the Malaysian maps produced after independence provide valuable pointers to the determination of
the boundary between the two States as viewed by Malaysia.
A final category of maps must also be carefully examined. These are:
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IV. The maps submitted to the Court by Malaysia
52. I cannot examine one by one all the maps produced by Malaysia in its voluminous
“Memorial Atlas” and its Counter-Memorial. I shall confine myself to a few examples and a few
general observations on these maps as a whole.
53. Certain maps produced by Malaysia are of Dutch and British origin and date from the
beginning of the last century, particularly the nautical maps and the maps prepared by the
Netherlands East Indies Topographical Office. They show only the boundaries on the island of
Borneo itself. As already noted in our written pleadings (Counter-Memorial, Vol. 1, Map Annex,
paras. A.4 and A.5 and Reply, Vol. 1, Map Annex, paras. 4 and 5), the purpose of these maps is to
provide technical information and they cannot be reliable sources for possible pointers regarding
territorial appurtenance. No attribution of sovereignty is indicated on them and, furthermore, we
have no way of knowing in what circumstances they were prepared. They are therefore not of any
great help in settling the question put to the Court.
54. Also, most of the maps produced by Malaysia cannot be used to support its territorial
claim to the islands which are the object of this dispute. Indeed, in no way do they prove that the
islands of Sipadan and Ligitan were subject to the sovereignty of Malaysia’s predecessor, Great
Britain. The most that is shown on these maps is a line which stops at the eastern coast of the
island of Sebatik. However, this does not seem to worry our opponents. In certain cases, the mere
indication of the disputed islands on a map is enough for Malaysia to characterize them as British
or Malaysian (Memorial of Malaysia, Vol. 5, maps 13 and 18). To accept this Malaysian position
would be a remarkable act of faith, but an act of faith is not proof.
55. Let us have a look, for example, at a map of British origin published in 1941 and entitled
“The State of North Borneo” (Memorial of Malaysia, Atlas, map 14). This map is now being
projected on the screen and is No. 67 in the judges’ folders. According to Malaysia, this map is
interesting as demonstrating “a clear understanding that Sipadan was part of the State of North
Borneo . . . and a deliberate intention to include it, since the island appears just beyond the bottom
line of the framework of the map” (Memorial of Malaysia, p. 110, para. 10.11).
56. Once again, there is nothing to warrant the assurance with which our opponents assert
that the disputed islands are here considered as forming part of the State of North Borneo. While
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they appear æ and then only just æ on either side of the framework of the map, part of the
southern section of the island of Sebatik, as well as the adjacent territory of the island of Borneo, is
also included on it. Surely Malaysia does not mean to suggest that these territories — indisputably
Dutch at the time — fell under the sovereignty of the State of North Borneo?
57. It should also be noted that this map contradicts the arguments based by Malaysia on the
presumption of successive titles or “chain of title” passing via Spain and the United States. Indeed,
the islands are clearly situated there south of a boundary line termed the “Boundary between the
Philippine Archipelago and the State of North Borneo”, in other words a boundary between the
Philippine Archipelago and the State of North Borneo.
58. The same argument applies to the following map, which is also a representation of the
colony of North Borneo, published by the Survey Department at Jesselton 11 years later, in 1952
(Memorial of Malaysia, Atlas, map 17). This map is No. 68 in the judges’ folders. Again, the line
delimiting the possessions of North Borneo and the Philippine Archipelago lies well to the north of
the islands of Sipadan and Ligitan.
59. As regards the other cartographic elements introduced into these proceedings by the
opposing Party, Malaysia itself admits that the maps contradict one another. On the one hand,
there are the maps on which the line stops at Sebatik, which is the case of the example being shown
on the screen and which is also in your folders as No. 69. This map, entitled “Tawau”, was
published in 1964 by the Malaysian Directorate of National Mapping (Memorial of Malaysia,
Atlas, map 15). As you can see, Members of the Court, the line represented on the map of Tawau
stops at the east coast of the island of Sebatik. For Malaysia, this is very significant. For
Indonesia, the fact that certain maps do not show any continuation beyond the island of Sebatik
does not mean much. What is significant is not the absence of this line; it is its presence.
60. On the other hand, there are also maps introduced into the case by Malaysia still showing
the characteristic line of the 1891 Treaty. Thus, for example, two Indonesian maps of 1965 and
1968, both entitled “Kalimantan Utara” (Counter-Memorial of Malaysia, Vol. 2, maps 8 and 9),
which are No. 70 in your folders and two enlargements of which showing the 1891 line are going
to be projected on the screen in succession. On the screen now is a map of British origin published
in 1978 under the title “Operational Navigation Chart L-11”(Memorial of Malaysia, Atlas,
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map 22). This map is No. 71 in your folders. And again, a map of the island of Sebatik from 1987,
which is being shown on the screen and which is No. 72 in your folders (Counter-Memorial of
Malaysia, Vol. 2, map 11). Lastly, a map of Kalimantan published by PT Pembina in 1992
(Counter-Memorial of Malaysia, Vol. 2, map 12), an enlargement of which is being shown on the
screen and is No. 73 in your folders. All these maps have one point in common: the boundary line
between Indonesia and Malaysia extends eastwards beyond the island of Sebatik.
61. For Malaysia, this line does not mean anything. What does it matter if it appears on a
large number of maps? On others it does not appear. Furthermore, it is explained to us,
cartographic proofs are often contradictory and in general not very decisive in territorial disputes,
unless they form part of an international treaty (Counter-Memorial of Malaysia, p. 117, para. 5.32).
Perhaps so, but from where does the extension of the boundary line come which in this case
appears on the vast majority of the maps of the region? Why is it there? What is it for?
62. Confronted with these maps, Malaysia has been quite incapable of providing any credible
explanation. This is why it has to resort to maps which do not show any extension of the line
beyond Sebatik, so that it can oppose them to the multitude of maps, where the line crosses the
island of Sebatik and continues beyond it. It is this line that Malaysia does not wish to explain and
whose importance it seeks to diminish as much as it can.
63. In reality, the only possible explanation, Mr. President, is that the line which follows
parallel 4° 10’ of latitude north off the island of Sebatik reproduces the line which is shown on the
map annexed to the Dutch “Explanatory Memorandum” and that it therefore represents the
boundary drawn by the 1891 Convention, in other words a line dividing territories, including
islands, as between Indonesia and Malaysia. This explanation æ of course æ does not particularly
appeal to our eminent opponents, as it patently confirms Indonesian sovereignty over the islands
claimed by Malaysia.
64. Mr. President, Members of the Court, I have now reached the end of my oral argument. I
thank you for your kind and patient attention and would ask you to give the floor to my friend and
colleague, Professor Pellet.
The PRESIDENT: Thank you, Maître. I now give the floor to Professor Alain Pellet.
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Confirmation of the Indonesian title by the conduct of the Parties
Mr. PELLET: Mr. President, Members of the Court,
1. I showed a few moments ago that the effectivités on which Malaysia relies were not such
as to establish any territorial title of that Party to Pulau Ligitan and Pulau Sipadan; in particular, it
seems that the collection of turtle eggs on Sipadan, by the Bajau Laut from Danawan among others,
had no particular bearing on the island’s appurtenance to one Party or the other. For his part,
Professor Soons established, yesterday afternoon, that, during the colonial period, the Netherlands
unequivocally manifested their conviction that the two islands belonged to the Dutch part of
Borneo. As Mrs. Loretta Malintoppi has just shown, the maps confirm the existence of the
Indonesian title based on the 1891 Convention. An examination of the conduct of the Parties leads
to the same conclusions: subject to the “tourist invasion” of Sipadan organized by Malaysia from
the end of the 1980s, the conduct of the two States confirms that they have held and continue to
hold parallel 4° 10” N as the limit of their respective possessions.
2. This results, among other things, from the petroleum concessions they granted, from the
navigational aids and naval patrols in the region. However, before coming to these three points, I
will show that two elements of which Malaysia makes such an issue are without relevance (I) and,
in any case, are not likely to weaken the conclusions resulting from a study of the mutual conduct
of the Parties (II).
I. The conduct relied on by Malaysia is without relevance
3. Malaysia relies on two arguments which, according to it, might establish its desire to act à
titre de souverain on Sipadan or, conversely, Indonesia’s recognition of its lack of title. These are
the control of tourist activity on Pulau Sipadan (a) and the fact that Indonesia allegedly did not take
the disputed islands into consideration when, in 1960, it drew the boundary of its archipelagic
waters (b). Although established, these two facts certainly do not have the legal significance
attached to them by Malaysia.
(a) The tourist invasion of Sipadan by Malaysia
4. In its Reply, Malaysia relies on the “regulation of tourism”, which allegedly establishes its
administration of the two islands (cf. p. 22, para. 2.31). The only proof of this it offers is the
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adoption, in 1997, of an Order, apparently not published, declaring the two islands protected areas
(Protected Areas Order æ Memorial of Malaysia, Vol. 4, Ann. 123). As such, this instrument is
hardly convincing: it is a regulation which has no more probative force than the proclamation by
the colonial authorities of a “Bird Sanctuary”, a matter I discussed a little while ago. However, in
the present case, it must be acknowledged that this proclamation corresponds to a reality on the
ground, which was not the case of the Megapode Preserve. As I said, from the end of the 1980s,
Malaysia methodically set in motion a veritable tourist invasion of the island of Sipadan.
5. Legally speaking, the important point is that the tourist invasion did not begin at the end of
the 1980s, in other words, as Indonesia explained in its Memorial, well after the critical date
(Memorial of Indonesia, pp. 152-160, paras. 8.5-8.28 and pp. 171-182, paras. 8.70-8.97).
According to the definition given by the recent Dictionnaire de droit international public,
published under Professor Jean Salmon, the critical date is the:
“date or relevant period for establishing the content of a legal situation, which must be
adopted for assessing the respective rights (usually territorial titles) of the parties and
with effect from which the unilateral actions of the parties are no longer able to
modify their respective rights” (Bruylant/AUF, Brussels, 2001, p. 293).
6. In this case, the two Parties agree that this date should be fixed at 18 September 1969, the
day they recognized the existence of the dispute relating to sovereignty over the two islands
(cf. Counter-Memorial of Indonesia, p. 9, para. 2.18). Nothing they have done since has altered the
existing legal situation. Here, two elements are added to the “natural” effects which, as a rule, are
associated with the critical date, namely:
æ first, the two States agree not to prejudice the status quo pending the settlement of the dispute;
and
æ second, Indonesia has constantly protested against the violations of its rights.
7. The Agent of Indonesia yesterday reminded us of the circumstances in which the status
quo agreement was concluded (CR2002/27, pp. 16-18, paras. 15-20; see also Memorial of
Indonesia, pp. 156-158, paras. 8.18-8.20); Malaysia did not dispute this point in the written
pleadings. The conclusion is that, by modifying the very substance of Sipidan, by making this
uninhabited island into a tourist factory æ Malaysia prides itself that over 115,000 tourists have
visited it over the last 15 years (Memorial of Malaysia, p. 18, para. 3.19) æ by building all kinds of
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tourist facilities there, Malaysia has violated the agreement of the two Parties agreeing to preserve
the status quo until the dispute is definitively settled, an agreement which, for its part, Indonesia
has scrupulously respected.
8. On the other hand, anxious as it is not to allow Malaysia to encroach upon its rights,
Indonesia has made a point of protesting against the various phases of this massive Malaysian
intrusion. This is a phenomenon which only manifested itself from 1988 onwards. On 7 May of
that year, the Indonesian Ministry of Foreign Affairs, in a Note Verbale which I quoted in part
during my first statement this morning, denounced the planting of about a hundred coconut trees,
the construction of a berth and the beginning of organized tourist activities:
“Such activities are clearly contrary to the understanding reached during the
negotiation on the delimitation of the continental shelf boundaries between Indonesia
and Malaysia, held in Kuala Lumpur in 1969. It was then clearly understood by the
Malaysian and the Indonesian delegations that, since no agreement could yet be
reached on the question of ownership or title of the islands of Sipadan and Ligitan the
two sides agreed to temporarily set aside the question and to maintain the status quo
on the islands (no activities except for maintaining a lighthouse at the easternmost part
of Sipadan) until a mutually acceptable solution could be reached and to postpone the
negotiation on the delimitation in the area.” (Memorial of Indonesia, Vol. 4,
Ann. 142, p. 245.)
Further protests of this kind were made on 15 April 1992 following the construction of some
40 bungalows and various hotel facilities (Memorial of Indonesia, Vol. 4, Ann. 147), on
17 June 1993 (ibid., Ann. 164), on 6 September 1994 (ibid., Ann. 176) and on 17 April 1995 (ibid.,
Ann. 180); or again on 22 November 1993 concerning a brochure distributed by the Malaysian
Ministry for Culture, Arts and Tourism, presenting Sipadan as “one of the scuba-diving resorts in
Malaysia” (ibid., Anns. 170 and 178).
9. Malaysia has only one comment on this: the Indonesian protests referring specifically to
Malaysia’s tourist activities on Sipadan only started in 1988 and ended in 1994 (Reply of Malaysia,
pp. 75-76, paras. 5.27-5.28). Quite true! But for rather obvious reasons, Mr. President: the
exploitation of the island for tourism only started at the end of the 1980s; and it would not have
been very sensible to lodge repeated protests with Malaysia against an occupation which still
continued æ especially as, in 1992, the Parties began high-level talks aimed at a definitive
settlement of the dispute and also as the head of the Malaysian delegation at the second session of
the Joint Working Group promised, in January 1994, that his country would henceforth refrain
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from stepping up its activities on Ligitan and Sipadan, a belated reiteration of the principle of the
status quo (cf. Memorial of Indonesia, Vol. 4, Ann. 176, p. 424).
10. But the fact remains: notwithstanding the status quo agreement of 1969, thus confirmed
in 1994, Malaysia organized the exploitation of Pulau Sipadan for tourism and Indonesia protested
against this development, which, in any case, did not begin until after the critical date and cannot
therefore strengthen Malaysia’s case in any way whatever. The same applies to another recurrent
argument in Malaysia’s written pleadings, which concerns:
(b) The 1960 boundary line of Indonesia’s archipelagic waters
11. The course of this boundary was effected by Act No. 4 of 18 February 1960 (Memorial
of Indonesia, Vol. 4, Ann. 128). Malaysia rightly points out that it does not take account of
Sipadan and Ligitan for establishing the archipelagic baselines then adopted (cf. Memorial of
Malaysia, pp. 84-85, paras. 7.20-7.21); but this fact does not have the legal implications it seeks to
draw from it.
12. In order to appreciate its scope, one must first refer to the contemporary context: in a
largely hostile environment, Indonesia was campaigning for recognition of the concept of
archipelagic waters. On the eve of the Second United Nations Conference on the Law of the Sea,
due to be held from 17 March to 26 April 1960, there was an urgent need to create a precedent, one
ideally not constituting such a radical break with the law of the sea then in force that it would have
acted as a deterrent to it. These two factors are more than adequate to explain why Sipadan and
Ligitan are not taken into consideration in the determination in Indonesia’s archipelagic waters:
æ regardless of what Malaysia writes (Reply of Malaysia, pp. 79-81, para. 5.41), the 1960 Act
was prepared in some haste, with the opening of the Second Conference of the Law of the Sea
on the horizon;
æ furthermore, Indonesia, anxious to obtain recognition of the notion of archipelagic waters,
sought, for the rest, to diverge as little as possible from the existing law of the sea.
13. One of the credos of that law, enunciated in 1951 by the International Court of Justice in
the Fisheries (United Kingdom v. Norway) case was that “the drawing of base-lines must not depart
to any appreciable extent from the general direction of the coast” (I.C.J. Reports 1951, p. 133), a
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principle enunciated in the same terms by Article 4, paragraph 2, of the Geneva Convention on the
Territorial Sea and the Contiguous Zone. Further, “the sea areas lying within the lines must be
sufficiently closely linked to the land domain to be subject to the regime of internal waters”.
Moreover, this is the principle enshrined by Article 47, paragraph 3, of the Montego Bay
Convention, under which the drawing of the archipelagic baselines “shall not depart to any
appreciable extent from the general configuration of the archipelago”.
14. Now this would have been the case if Indonesia had taken the two islands into
consideration in order to fix the line of its archipelagic waters, as shown by the sketch-map being
projected behind me, which is No. 74 in the judges’ folders. The vast seaward advance constituted
by the triangle running from point 36 to point 37 via Ligitan would certainly have departed
appreciably from the general direction of the Indonesian coast and, bearing in mind the effects
resulting from the archipelagic baselines, would have led to a substantial encroachment on
maritime areas on which the United Kingdom could have asserted claims.
15. Malaysia accuses Indonesia of not having respected Article 47, paragraph 1, of the
Convention on the Law of the Sea, which authorizes archipelagic States to “draw straight
archipelagic baselines joining the outermost points of the outermost islands . . . (cf. Reply of
Malaysia, pp. 78-79, para. 5.38). This objection is a curious one:
æ It is anachronistic because the Indonesian Act dates from 1960, and the Montego Bay
Convention, which enshrines the notion of archipelagic waters thanks to the efforts of a handful
of States, among which Indonesia was particularly active, dates from 1982;
æ Article 47 authorizes archipelagic States to include the outermost islands on certain conditions
(which will not definitely be fulfilled in this case) but does not in any way oblige them to do
so; in this respect, the contrast with the main islands is striking; indeed, paragraph 1 of this
provision continues by stipulating that this possibility is only open “provided that within such
baselines are included the main islands . . .” and it would take a great deal of imagination to
characterize Ligitan and Sipadan as “main islands”;
æ furthermore, as I pointed out, paragraph 3 of this Article lays down that the drawing of the
baselines must “not depart to any appreciable extent from the general configuration of the
archipelago”, which would be the case if the two islands were taken into account.
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16. Moreover, the case of Ligitan and Sipadan is anything but isolated: many other islands
within Indonesian sovereignty (and recognized as such by Malaysia in the 1969 negotiations)
remained outside Indonesia’s archipelagic waters. This is the case, for example, of a number of
islands or islets situated in the Malacca Strait or the China Sea, mentioned in the affidavit of one of
the principal Indonesian negotiators, Admiral Adi Sumardiman (Memorial of Malaysia, Vol. 5,
Ann. B; see also Memorial of Malaysia, p. 154, para. 8.12).
17. Further, it is very bad form of Malaysia to put forward such an argument: it itself
refrained from taking Ligitan and Sipadan into account when determining its territorial sea in 1969,
the very year when, for the first time, it claimed the two islands: three years later, the Malaysian
National Directorate of Mapping, which had played a decisive role in the failure of the
negotiations, again published the usual map leaving the two islands outside Malaysian jurisdiction,
as my friend Loretta Malintoppi so excellently explained a few moments ago (see map No. 64 in
the judges’ folders).
18. The conclusion, Mr. President, is: neither the tourist invasion of Sipadan organized by
Malaysia from the 1980s onwards, nor the exclusion of these two outlying islands from Indonesia’s
archipelagic waters constitute relevant arguments in support of Malaysia’s case. Indonesia, on the
other hand, is able to rely on the very marked coincidence between the practices of the two
countries with respect to the navigational aids and oil concessions, to which may be added the
regularity of Indonesian naval patrols in the region.
II. The coincidence between the conduct of the Parties along parallel 4º 10’ N
(a) The Indonesian naval patrols
19. Let us begin with the latter.
20. Malaysia asserts that Indonesia does not refer to any manifestation of effective authority
in the disputed islands during the key period between independence and the critical date (cf. Reply
of Malaysia, p. 82, para. 5.44). This is as true of Malaysia, which only began to put in an
appearance on Pulau Ligitan and Pulau Sipadan, or in their vicinity, from the 1980s onwards,
somewhat frenetically æ but not inconsistently, if only in the context of the maps, as
Mrs. Malintoppi has shown æ as it is inaccurate with respect to Indonesia.
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21. Professor Soons pointed out yesterday that the Dutch have constantly exercised maritime
police powers in these remote confines of the colonial empire. After independence, Indonesia
stepped up its naval presence in the region. As shown by a consistent series of detailed testimonies
from sailors having taken part in these operations, not only did the Indonesian Navy regularly
patrol the waters surrounding these two islands, but also, whenever necessary, conducted police
operations on the two islands. I would remind you that I am now speaking of after independence
and before the critical date. We have proof of this as regards, for example:
æ a patrol by a warship, the Kri Ular Sanca at Sipadan and in the surrounding waters in 1965
(Memorial of Indonesia, Vol. 5, Ann. F, p. 25);
æ another patrol in May 1967 off Sipadan (Memorial of Indonesia, Vol. 5, Ann. G, p. 31);
æ the action taken in December 1967 in response to a complaint by Nanoekhan fishermen who
had reported that inhabitants of Semporna had been fishing illegally around the two islands
(Memorial of Indonesia, Vol. 5, Ann. D, p. 17); and
æ a naval inspection at the end of 1968 (Memorial of Indonesia, Vol. 5, Ann. H, p. 37).
22. Nothing on the other hand, throughout this period, on the Malaysian side. Nor any
protest against these routine operations, which in particular showed that Sipadan was uninhabited
and that the light tower was poorly maintained and rusty (cf. Memorial of Indonesia, Vol. 5,
Ann. D, p. 17).
23. Indonesia did of course maintain its presence in the sea area concerned after 1969, while
Malaysia attempted to establish its own presence there. The result was a war of Notes Verbales
devoid of legal significance except in so far as they establish what each Party considered to be its
rights æ with an important exception however: the Indonesian actions are the continuation of
those I have just described, whereas Malaysia’s clearly appear to result from its sudden discovery
of alleged rights over the disputed islands, which it thought it opportune to seek to establish ex post
facto (here again, only from the end of the 1980s) in order to make up for its previous lack of
action.
24. One last remark on this point, however, Mr. President: despite the increasing tension
between the two countries, Indonesia, for its part, was always extremely careful not to encroach on
the 4º 10’ N parallel and not to exacerbate the situation. This is evident, for example, from the
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instructions given in 1990 by the Chief of the Armed Forces to the Commander of East Fleet
ordering him to strengthen the Indonesian naval presence in the area claimed by Malaysia but
requiring him “to avoid actions of a hostile character or that may worsen the situation” (Memorial
of Indonesia, Vol. 4, Ann. 144, p. 253). This concern is mentioned in an official note of
17 January 1992 which states that the limit for patrol activities is 4º 10’ N latitude (ibid., Ann. 145,
p. 257).
(b) Navigational aids
25. Apart from the question of the light towers which I talked about earlier this morning, and
which I would remind you are maintained by Malaysia with the agreement of Indonesia, the
activities of the Parties in regard to navigational aids also bear witness to their agreement to respect
the 4º 10’ N line.
26. Although Indonesia has referred to this subject on several occasions in its written
pleadings, it is interesting that Malaysia maintains an obstinate and embarrassed silence on this
aspect of the case. Nothing, not even a line, in this respect in the Malaysian written pleadings. The
mutual conduct of the Parties is nevertheless revealing; however, since our opponents have not
come up with any arguments, I shall confine myself to summarizing what we have written on this
point and would ask you, Members of the Court, to be good enough to refer to it (cf. Memorial of
Indonesia, pp. 163-164, paras. 8.41-8.45; Counter-Memorial of Indonesia, p. 140, para. 7.58; and
Reply of Indonesia, pp. 64-65, paras. 3.19-3.24).
27. Several elements are in fact relevant:
æ the waters situated on either side of the 4º 10’ line off the coasts of Kalimantan and Sabah are a
danger to navigation owing to the existence of numerous reefs and shallows; in particular, the
narrow passage between the “Alert Patches” or “Alert Reef” æ a significant name æ just
south of that parallel and Roach Reefs just to the north, which is used by local coastwise
shipping æ principally Malaysian æ and is a difficult channel; the map on the screen and at
tab 75 in the judges’ folders illustrates this situation;
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æ from 10 February to 12 March 1994 an Indonesian warship undertook surveys around Alert
Reef and, in conjunction with another Indonesian naval vessel, erected a buoy there (see
Memorial of Indonesia, Vol. 4, Ann. 181, p. 459);
æ this operation took place with the knowledge and in the presence of no less than three
Malaysian warships (ibid.) which took no action, nor did the operation evoke any official
reaction despite the war of Notes Verbales which was raging at the time;
æ this electrical battery buoy has been constantly and openly maintained and kept supplied by the
Indonesian Navy (cf. Memorial of Indonesia, Vol. 4, Ann. 179, pp. 443-452) without there
being any protest against that activity either; and, in particular,
æ Malaysia did the same that year on its side on the Roach Reefs.
28. As First Admiral Nicolas Ello, the person responsible for the operation on the Indonesian
side, observed, this could only imply that Malaysia had no doubt about the nature of the 4º 10’ line:
“It could be assumed that Malaysia respects the 04º 10’ 00 N line” (Memorial of Indonesia, Vol. 4,
Ann. 181, p. 459). The oil concessions granted by the two Parties lead to the same conclusion.
(c) The oil concessions
29. On this topic, Malaysia proves somewhat more loquacious but, in truth, equally
embarrassed. The fact is that here again the way in which the activities of the Parties coincide is
highly indicative of their conviction, before the critical date, that the 4° 10’ N line marked the limit
of their respective jurisdictions.
30. As Indonesia has explained in its Memorial (pp. 106-109, paras. 6.17-6.29), in the 1960s
both countries granted oil concessions, partly offshore, whose common feature is that they follow
almost exactly the 4° 10’ parallel:
æ In the case of Indonesia, the concession was the “Permina/Japex” concession of 6 October
1966 (cf. Memorial of Indonesia, Vol. 4, Ann. 129 and Memorial of Malaysia, Vol. 4,
Ann. 114), whose northern limit followed the parallel of 4° 9’ 30” N æ there is no need,
however, to dwell on this slight difference (amounting to less than 1 km), which represents an
habitual practice in the petroleum extraction industry, designed to avoid any encroachment on
the fields of a neighbouring country (see other examples in the Counter-Memorial of Indonesia,
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p. 139, n. 73); the relevant line is indicated by black dashes on map No. 75 in the judges’
folders.
æ In the case of Malaysia, the red line represents the southern limit of the concession granted in
1968 to the Teiseki Company (cf. Memorial of Indonesia, Vol. 4, Ann. 131). This too
coincides with the 4° 10’ N line æ with a difference of 30”, and for the same reasons. The
way in which each Party’s conduct matches and complements the other’s is quite remarkable.
31. The map now on the screen, No. 60 in the judges’ folders, which Mrs. Malintoppi also
displayed just now, is highly revealing as to Malaysia’s beliefs about the limits of its maritime
jurisdiction. It comes from the Malaysian Ministry of Lands and Mines and was published as an
annex to the Annual Report of the Geographical Survey, Borneo Region (cf. Memorial of
Indonesia, Vol. 4, Ann. 130). Figure 14 corresponds to the offshore portion of the Teiseki
concession and the red line to its outer limits. Bearing in mind the very small scale of the map, the
red line coincides with the “international boundary” which, as expressly indicated in the legend,
unaccompanied by a disclaimer, is represented by a broken line. To the east, at parallel 4° 23’ N, it
meets the Convention line between Great Britain and the United States and follows this in a very
precise fashion; to the south it follows the 1891 line, that is to say parallel 4° 10’ N, to the south of
which lie Ligitan and Sipadan.
32. In an attempt to limit the scope of these oil concessions, which are particularly
significant for having been granted just before the critical date and even so coincide very precisely,
Malaysia puts forward a number of remarkably spineless arguments:
æ First, the concessions, it says, were accorded “in the exercise of” the rights of the Parties as
they perceived them and not in relation to the dispute over the two islands (Counter-Memorial
of Malaysia, p. 89, para. 4.38) æ but that is precisely what gives them their substantial
probative force: they testify to the perception which the two Parties had of the extent of their
maritime jurisdiction (on the basis of the 1891 line) before Malaysia fabricated an artificial
claim to the two islands. It is significant in this respect to note that the Teiseki concession was
signed by the Minister of Natural Resources of the State of Sabah himself (Memorial of
Indonesia, Vol. 4, Ann. 131, p. 171).
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æ Second, Malaysia asserts that these are “paper claims” (I have been unable to find a French
translation for this), insignificant legally because they were not followed up by acts and effects
(Counter-Memorial of Malaysia, pp. 89-90, para. 4.39). I confess my ignorance of what the
situation was on the Malaysian side; as regards the Indonesian concession to Permina and
Japex (subsequently shared with other companies), however, it is precisely because prospection
in the region of the 4° 10’ N line proved unproductive that subsequent concessions related to
areas situated further south (cf. Memorial of Indonesia, p. 105, para. 6.16); contrary, therefore,
to what Malaysia maintains, oil prospection activities æ unrewarding as they were æ did
actually take place, at all events on the Indonesian side. Moreover, it is absurd to talk of “paper
claims” in this case; not only were there regular formalized concessions, carrying a financial
consideration, but also, for any discussion of “paper claims” to be possible, the claims of the
two Parties would in any case have had to have been contradictory; the line they adopted for
their respective concessions shows that, quite on the contrary, their claims fully coincided.
æ Third and last, Malaysia does its best to deny any significance to the Permina/Japex concession
on the pretext that it did not expressly include the two islands (Memorial of Malaysia, p. 85,
para. 7.21 and Counter-Memorial of Malaysia, pp. 90-92, paras. 4.40-4.42). This is true, but in
no way does it detract from the probative force of the facts: these demonstrate that the two
Parties, on the eve of the emergence of the dispute, considered the 1891 treaty line to be the
limit of their respective jurisdictions. Moreover, the Teiseki concession which, I repeat, stops
at the 4º 10’ N line, does not include Ligitan and Sipadan either æ and in any case it would
have been quite remarkable for it to have stopped at that line if Malaysia had believed that it
could exercise its jurisdiction further south. Limits of this kind are not fixed lightly.
33. I should like to point out, Mr. President, that this observation in no way contradicts the
hesitations of the Netherlands in regard to the boundary of their territorial sea off Sebatik at the
beginning of the 1920s. As Professor Soons showed very clearly yesterday afternoon:
æ the Dutch authorities hesitated about the line of the boundary and the 4º 10’ parallel was one of
the possibilities envisaged;
æ the Dutch took a formal decision not to raise the matter with the British; and,
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æ above all, the only issue capable of arising then (during the 1920s) concerned the territorial sea;
it would not have crossed anybody’s mind to talk about the continental shelf at that period.
34. At the beginning of the 1960s, however, the law of the sea had changed and the practice
of the Parties had changed with it. They could by then claim sovereign rights over the entire
maritime area with which we are concerned and the fact that the oil concessions granted by the two
countries coincided shows that thenceforth they considered that the 4º 10’ N line had de facto
become the limit of their respective maritime jurisdictions.
35. The oil practice of the Parties in the relevant area is particularly significant legally:
æ it constitutes an essential element of the subsequent practice of the successors to the parties to
the 1891 Convention and establishes the agreement of Indonesia and Malaysia in regard to its
interpretation as envisaged in Article 31, paragraph 3 (b) of the Vienna Convention on the Law
of Treaties (cf. Kasikili/Sedudu Island, I.C.J. Reports 1999, pp. 1075-1076, paras. 49-50 and
the numerous references cited); and
æ it testifies to their position as regards the extent of their respective jurisdictions immediately
before the critical date.
36. This, Mr. President, concludes the first round of Indonesia’s oral pleadings. May I
nevertheless, if you will permit, sum up in broad outline the position of Indonesia. It is simple and
in fact amounts to just a few words æ which seems to us in marked contrast to Malaysia’s
argument:
(1) the Convention of 20 June 1891 settled, fully and definitively, the dispute between Great
Britain and the Netherlands in regard to the limits of their respective possessions in North
Borneo;
(2) the choice of the parallel of 4º 10’ N represented a compromise solution which to some extent
disposed of the earlier disputes regarding the precise limit of the respective possessions of the
Sultans of Boeloengan and Sulu in the area concerned, even though the title of the former
(Boeloengan) seems markedly stronger than that claimed by the latter (Sulu);
(3) the wording of Article 4 of the 1891 treaty leaves no doubt about the parties’ intention to put
an end to any uncertainty, not only in the “continental” portion, if I may call it that, of Borneo,
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but also at sea: “From 4º 10’ north inwards latitude on the east coast the boundary-line shall
be continued eastward along that parallel, across the Island of Sebittik” (emphasis added);
(4) this is confirmed by the famous æ and indeed extremely important æ “Elucidation Map”
drawn up and published by the Dutch Government in connection with the parliamentary
debates on the ratification, a map which had been communicated to Great Britain and evoked
no protest on the latter’s part;
(5) likewise the two islands, which had certainly not been ceded by the Sultan of Sulu to Great
Britain (and could not be ceded for a number of reasons), are not concerned by the
1930 Convention between the latter and the United States, which relates to an area situated
considerably further north;
(6) the Parties’ predecessors showed no great practical interest in the two islands in the colonial
period; however, although all that Malaysia can rely on is a number of regulations, regarding
which there is nothing to prove that they were actually implemented (paper claims), the
Netherlands consistently demonstrated its effective presence in the area;
(7) the same is true of Indonesia in the period from its independence to the critical date; and
various important acts, beginning with the oil concessions that they granted in the 1960s, bear
witness to the Parties’ agreement as regards the parallel of 4º 10’N being the limit of their
respective possessions;
(8) in conclusion, the relevant cartographic material (which includes British and Malaysian
official maps) speak exclusively in favour of the Indonesian argument.
Mr. President, Members of the Court, on behalf of our entire team I thank you very warmly
for your attention.
The PRESIDENT: Thank you, Professor. This brings an end to this morning’s session and
the first round of oral pleadings of the Republic of Indonesia. The next sitting of the Court in the
present case will take place on Thursday 6 June at 3 p.m. and Malaysia will then begin its first
round of oral pleadings.
The Court rose at 1 p.m.
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