Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) - The Court finds that sovereignty over the islands of Ligitan and Sipadan belongs to Malaysia

INTERNATIONAL COURT OF WSTICE

Peace Palace, 2517 KJ The Hague. Tel: +31 (0)70 302 23 23. Cables: Intercourt,
The Hague. Fax: +31 (0)70 364 99 28. Telex: 32323. E-mail address:

[email protected]. Internet address: http://www.icj-cij.org.

Press Release
Unofficial

No. 2002/39
17 December 2002

Sovereignty over Pulau Ligitan and Pulau Sipadan
Œndonesia/Malaysia)

The Court finds that sovereignty over the islands of Ligitan and Sipadan
belongs to Malaysia

THE HAGUE, 17 December 2002. The International Court of Justice (ICJ), principal
judicial organof the United Nations, has today given Judgment in the case concerning Sovereignty
over Pulau Ligitan and Pulau Sipadan (Indonesia!Malaysia).

In its Judgment, which is final, without appeal and binding for the Parties, the Court finds,
by sixteen votes to one, that "sovereignty over Pulau Ligitan and Pulau Sipadan belongs to
Malaysia". Ligitan and Sipadan are two very small islands located in the Celebes Sea, off the
north-east coastof the island ofBorneo.

Reasoning of the Court

The Court begins by recalling the complex historical background of the dispute between the
Parties. It then examines the titles invoked by them. Indonesia's daim to sovereignty over the
islands is based primarily on a conventional title, the 1891 Convention between Great Britain and

the Netherlands. Indonesia thus maintains that that Convention established the° 10'north parallel
of latitude as the dividing line between the British and Duteh possessions in the area where Ligitan
and Sipadan are situated. As the disputed islands lie to the southof that parallel, "[i]t therefore
follows that under the Convention title to those islands vested in The Netherlands, and now vests in
Indonesia". Malaysia, for its part, asserts that the 1891 Convention, when seen as a whole, clearly

shows that Great Britain and the Netherlands sought by the Convention solely to clarify the
boundary between their respective land possessions on the islands Borneo and Sebatik, since the
lineof delimitation stops at the easternmost point of the latter island.

After examining the 1891 Convention, the Court finds that the Convention, when read in

context and in the light its abject and purpose, cannat be interpreted as establishing an allocation
line determining sovereignty over the islands out sea, to the east of the island of Sebatik, and as a
result the Convention does not constitute a title on which Indonesia can found its claim to Ligitan
and Sipadan. The Court states that this conclusion is confirmed both by the travaux préparatoires
and by the subsequent conduct of the parties to the Convention. The Court further considers that

the cartographie material submitted by the Parties in the case does not contradict that conclusion. -2-

Having rejected this argument by Indonesia, the Court turns to consideration of the other
titles on which Indonesia and Malaysia claim to found their sovereignty over the islands of Ligitan

and Sipadan. The Court determines whether Indonesia or Malaysia obtained a title to the islands
by succession. The Court begins in this connection by observing that, while the Parties both
maintain that the islands of Ligitan and Sipadan were not terrae nullius during the period in
question in the present case, they do so on the basis of diametrically opposed reasoning, each of
them claiming to hold title to those islands. The Court does not accept Indonesia's contentionthat
it retained title to the islands as successor to the Netherlands, which allegedly acquired it through
contracts concluded with the Sultan of Bulungan, the original title-holder. Nor does the Court

accept Malaysia's contention that it acquired sovereignty over the islands of Ligitan and Sipadan
further to a series of alleged transfers of the title originally held by the former sovereign, the Sultan
of Sulu, that title having allegedly passed in turn to Spain, the United States, Great Britain on
behalf ofthe State of North Bomeo, the United Kingdom of Great Britain and Northem Irelandand
finallyto Malaysia.

Having found that neither of the Parties has a treaty-based title to Ligitan and Sipadan, the
Court next considers the question whether Indonesia or Malaysia could hold title to the disputed

islands by virtue of the effectivitéscited by them. In this regard, the Court determines whether the
Parties' claims to sovereignty are based on activities evidencing an actual, continued exercise of
authority over the islands, i.e., the intention andwill to act as sovereign.

Indonesia cites in this regard a continuous presence of the Dutch and Indonesian navies in
the vicinityof Ligitan and Sipadan. It adds that the waters around the islands have traditionally
been used by Indonesian fishermen. In respect of the frrst of these arguments, it is the opinion of

the Court that "it cannot be deduced [from the facts relied upon in the present proceedings] that the
naval authorities concemed considered Ligitan and Sipadan and the surroundingwaters to be under
the sovereignty of the Netherlands or Indonesia". As for the second argument, the Court considers
that"activities by private persons cannot be seen as effectivitésif they do not take place on the
basis of official regulations or under govemmental authority".

Having rejected Indonesia's arguments based on its effectivités, the Court turns to
consideration of the effectivitésrelied on by Malaysia. As evidence of its effective administration

of the islands, Malaysia cites inter alia the measures taken by the North Bomeo authorities to
regulate and control the collecting of turtle eggs on Ligitan and Sipadan, an activity of sorne
economie significance in the area at the time. It relies on the Turtle Preservation Ordinance
of 1917 and maintains that the Ordinance "was applied until the 1950s at least" in the area of the
two disputed islands. It further invokes the fact that the authorities of the colony of North Bomeo
constructed a lighthouse on Sipadan in 1962and another on Ligitan in 1963,that those lighthouses
exist to this day and that they have been maintained by Malaysian authorities since its

independence. The Court notes that "the activities relied upon by Malaysia . . . are modest in
number but . . . they are diverse in character and include legislative, administrative and
quasi-judicial acts. They cover a considerable period of time and show a pattern revealing an
intention to exercise State functions in respect of the two islands in the context of the
administration of a wider range of islands". The Court further states that "at the time when these
activities were carried out, neither Indonesianor its predecessor,the Netherlands, ever expressedits
disagreement or protest".

The Court concludes, on the basis of the effectivitésreferred to above, that "sovereignty over
Pulau Ligitan and Pulau Sipadanbelongs to Malaysia". - 3-

Composition of the Court

The Court was composed as follows: President Guillaume; Vice-President Shi; Judges Oda,

Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,
Rezek, Al-Khasawneh, Buergenthal and Elaraby; Judges ad hoc Weeramantry and Franck;
Registrar Couvreur.

Judge Oda appends a declaration to the Judgment of the Court; Judge ad hoc Franck
appends a dissenting opinion to the Judgment of the Court.

A fuller summary of the Judgment will subsequently be given in Press Communiqué

No. 2002/39bis. The full text of the Judgment, Judge Oda's declaration and Judge ad hoc Franck's
opinion, together with the Press Communiqués, is available on the Court's Internet site
(www.icj-cij.org).

Information Department:
Mr. Arthur Th. Witteveen, First Secretaryof the Court (tel.: +31 70 302 2336)
Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers (tel.:+31 70 302 2337)
E-mail address: [email protected]