Counter-Memorial of Malaysia

TABLEOF CONTENTS

Paragraohnumbers

Chapter 1 Introduction 1.1 - 1.10

Chapter 2 The 1891Boundary Convention Did Not
Affect the Disputed Islands

The TerritorialTitle Alleged by Indonesia
Backgroundto the Boundary Convention
of 20 June 1891
The Negotiationsfor the 1891Convention
The Surveyby HMS Egeria, HMS Rattler

and HNLMSBanda, 30May -19June 1891
The Interpretationof the 1891 Boundary
Convention
The Ratificationof the Boundary Convention
and the Map
The Subsequent 1915Agreement

General Conclusions

Chapter 3 Malaysia'sRightto the Islands Based on Actual
AdministrationCombined with a Treaty Title

A. Introduction 3.1 - 3.4
B. The East Coast Islands of Borneo, Sulu and
Spain 3.5 - 3.16
C. Transactionsbetween Britain (on behalfof
North Borneo) and the United States 3.17 - 3.28
D. Conclusion 3.29Chapter 4 The Practice of the Parties and their Predecessors

Confirms Malaysia's Title

A. Introduction
B. Practice Relating to the Islands before 1963
C. Post-colonial Practice
D. General Conclusions

Officia1and other Maps Support Malaysia's Title
Chapter 5
to the Islands

A. Introduction 5.1 - 5.3
B. Indonesia'sArguments Basedon Various Maps 5.4 - 5.30
C. The Relevance of Maps in Determining Disputed
Boundaries 5.31 - 5.36
5.37 - 5.39
D. Conclusions from the Map Evidence as aWhole

Submissions

List of Annexes

Appendix 1 The Regional Historyof Northeast Bomeo

in the Nineteenth Century (with special
reference to Bulungan)by Prof. Dr. Vincent
J. H. Houben Table of Inserts

Insert Descri~tion page

1. North Borneo Coastand Sulu Archipelago
circa 1891 Opposite 1

2. Plan Showing the Result of the Determination

of Parallel o4" 10'N on East Coast Borneoand
Examination of Rivers in Vicinity, June 1891

3. Routes of HMS Egeria and HNLMS Banda,
1891and 1892

4. Map accompanying the 1915Agreement relating to
the Boundary betweenthe State of North Bomeo
and the Netherlands Possessionsin Bomeo (extract)

5. Boundary Linesreferredto in the letter of the
Commander of Naval Forces,9 August 1922

6. Sketch map showingBoundaryLines referredto
in the letter of CommanderNaval Forces,
9 August 1922

7. Map attachedto IndonesianAct No.
4 of 1960(extract)

8.
Map of PERMINAIJAPEXConcession 1966Insert Description page

Sheet Noord (North) A-50, "Oost Borneo"
(1935) (extract) Opposite 97

Survey Map of the Netherlands EastIndies
Archipelago (1897 - 1904) 101

Map showing the Administrative Division
of the Southern and Eastern Borneo Residence
(1913)(extract)

Map 25, Atlas of the Tropical Netherlands

(1938)(extract)

Sheet Noord (North) B-50 North Borneo
(1941)(extract)

Map of Kalimantan Utara (1965) (extract)

Map of Kalimantan Utara (1968)(extract)

Sheet NB 50 "Bandar Seri Begawan"
(1976) (extract)

Map of Kalimantan Utara (1992) (extract) Chapter1

INTRODUCTION

1.1. This is the Counter-Memorial of Malaysia in the present
proceedings, filed pursuant to the Order of the President made on 11

May 2000. It responds to the Memorial of the Republic of Indonesia
of 2 November 1999.

Thegeographical setting

1.2. Before turning to summarise the cases of the two parties as
presented in their respective memorials, it is useful to recall the

geographical setting of the dispute. Insert 1, opposite, shows that
setting, with key place names as they were (or were thought to be) at
about the time of the 1891 Anglo-Dutch Boundary Convention, on

which the Indonesian case bangs.' The case concerns two small
islands off the Coastof North Borneo, part of a group of small islands
and reefs surroundingthe SempornaPeninsula.

1.3. It is useful to review the European understanding of the
geography of the two islands at the time of the 1891 Boundary

Convention. Useful for this purpose are the contemporary sailing
directories or pilots, to which mariners and other Europeans
concerned with the region would have referred. Annex 1 to this

Counter-Memorial extracts the relevant pages from the directory
entitled Eastern Archipelago, Part I (Eastern Part), published in
London for the Hydrographic Office of the Admiralty in 1890.~

Under the general rubric of "Darvel Bay", it deals with a series of
locations (settlements, islands, reefs, etc.) running from north to
south. The entry for the Ligitan islandsreadsas follows:

I
2 For the 1891Boundary Convention see Annex MM 17, v2,p. 70.
J.P.Maclear (comp.), EastArchipelago,Part 1(Eastern Part) (London,
Hydrographic Office, Adrniralty, 1890) pp. 182-191; AnnexMCM 1, vol. 1-
11. "Ligitan is1ands.-Of this group, lying off the

north coast of Sibuko bay there is very little
information, but they appear to be surrounded by
dangers. Si Amil, the north-easternmost, appears by

the chart to be wedge-shaped, and 800 feet high;
Danawan, to the westwardof it, appearsto be low.

A small islet with a few shrubs on itlies in latitude
4" 12Y2' N., longitude 118" 54' E. From it, Si Ami1
island bears N. 5" W. Reefs extend 4 or 5 miles from

this islet in an easterly direction, and it appears to be
connected by a reef to Si Amil; this reef is dangerous,
as there are no symptoms except breakers about one

mile eastward of the islet.

Sipadan, the southemmost of the group, is 120 feet
high. Coming from the eastward Sipadan should be
kept to the northward of West,as the extent of the reefs

to the eastward of it has not been determined; they do
not appear to the southwardof the i~land."~

The directory then goes on to deal with Sibuko or St. Lucia Bay. It

refers inter aliato Batu Tinagat point, and notes "the entrance of the
little river Tawao, on the left bank of which the Dutch have a small
~ettlement",~as well as to Sebatik island and theSibuko river.

1.4. The passage is of considerable interest. It names three of the

four Ligitan islands (Si Amil, Danawan and Sipadan), but does not
name Ligitan itself, which from the description given and its bearing
to Si Ami1one can nonetheless identify as the "small islet". It treats

al1 four islands as part of the Ligitan group, and treats them in
conjunction with other islands and features associated with Darvel
~a~.' It notes that Si Ami1and the small islet (Ligitan) are physically
connected by a reef, but in other respects shows considerable

uncertainty about the geography and the navigational hazards: for
example it is unclear to the compiler whether there are reefsto the

3 Ibid., pp. 187-8.
4 Ibid., p190.
5 Commander Field of the Egeria drew heavily on these sailing directions in
his hand-written notes which are at Annex IM 90, vol. 3, p. 239.Sipadan is
treated as part of the Ligitan Group and Ligitan itself is not named: its position is
only given approximately.eastwards of Sipadan (in fact there are not, since Sipadan is an

oceanic pillar). Of particular note for present purposes is that it
locates Ligitan in the wrong longitude, though in approximately the
correct latitude. The position isas follows:

Coordinatesof Ligitan

1890Directorv Actual

Lat: 4" 12Y2N ' . lat: 4" 09'48" N

Long: 118"54' E. long: 118"53'04" E.

The coordinates of Sipadan are not given. The directory also notes
(as if by way ofexception) the existenceof a small Dutch settlement
on the left bank of the Tawao River at its entrance, and the
availability of information about Sebatik from Dutch charts.

Otherwise al1 references are to British vessels, settlements and
surveys.

The basis of theIndonesian case

1.5. As developed in its Memorial, the Indonesian case does not
differ from that disclosed in earlier negotiations,going back to 1969
when the Indonesian claim to the islands was first made. In its
essentials, Indonesia argues that:

(a) The islands were part of the dominions of the sultanate of
Bulungan under Dutch protectionand sovereignty;

(b) There was a dispute concerning the islands between the
Netherlands and Britain (on behalf of North Borneo) before
1891;

(c) The dispute was resolved in favour of the Netherlands by the
1891 Boundary Convention, because the Convention can be
seen (with the crucial aid of an internai Dutch map) to have
drawn not only a boundary but an allocation line, running

eastwards along the parallel of 4" 10'N, placing the islands
under Dutch sovereignty;(d) The Netherlands and subsequently Indonesia retained the

sovereignty attributed to them in 1891, despite the fact that
they never exercised administrative control or jurisdiction
over the islands.

1.6. This argument faces severe difficulties. They include the
following:

(a) There is no evidence whatever thatthe claims of the Sultan of
Bulungan extended to the islands or that he exercised the

slightest authority there;al1the evidence is to the contrary;

(b) Al1descriptions of the boundary dispute before 1891, whether
given by Dutch or British officials, make it clear that the
dispute concerned exclusively the areato the Westand south
of Batu Tinagat, and had nothing to do with islands further to

the east;

(c) The 1891Boundary Convention cannot bear the interpretation
Indonesia prefers, which is also flatly contradicted by the
Anglo-Dutch Agreement of 1915 and the attached, agreed

map;

(d) The intemal Dutch map, even if it did support that view (and
itis equivocal), is inadmissible as evidenceof the intention of
the parties, and even if it was admissible, it could not prevail

over the express terms of the Convention;

(e) The Netherlands cannot have gainedin 1891 sovereignty over
islands which then belonged to a third State (Spain) and which
were subsequently ceded to Great Britain withoutany protest
whatever by the Netherlands, or any action to sustain the

claim now made.The basis of theMalnysian case

1.7. By contrast, Malaysia's case is clear and unshaken by
anything argued ordisclosed in Indonesia's Memorial. It may be

summarisedas follows:

(a) The two islands were part of the dominions of Sulu before
1878,at the time the Sultan of Sulu granted to the promoters
of the British North BorneoCompany the right to administer

North Borneo and certain inshoreislands;

(b) There is a clear and unbroken chain of administration of the
islands by North Borneo, which began following the grant of
1878;

(c) After the UnitedStates acquired Spain's rights inthe region in
1900, the UnitedStates specifically claimed sovereignty over
the two islands,a claim whichBritain expressly recognised;

In tum, by Exchange of Notes of 1907 the United States
(d)
allowed North Borneo to continue to administer the islands;
then in 1930 the islands were ceded to North Bomeo by a
Treaty between Britain andthe United States;

(e) The islands have been continuously administeredby Malaysia
and its predecessorsin title ever since.

The task of the Court

1.8. Evidently, the taskof the Court faced with these conflicting
arguments is to reachits own conclusion, as providedfor in Article 2
of the Special Agreement concl'uded between Indonesia and Malaysia

on 31 May 1997.~ In a case brought by Special Agreement neither
party bears any formal onus of proof. Nonetheless, in the particular
circumstances of the present dispute, Indonesia most certainly does
have a substantialonus, since it is askingthe Court:

6
AnnexMM 33, vol. 2,p. 139.(a) to disturb the well-attested, uninterrupted possession and
administration of the islands by Malaysia and its predecessors

in title, dating back morethan a century;

(b) to do so on the basis of a unilateral interpretation of a
Convention of 1891 which has no textual foundation in the
Convention or in its travaux and is supported, if at all, onlyby

an interna1 map never officially communicated to the other
party and not opposableto it;

(c) to do so on the basis of an interpretation which the
Netherlands itself never placed on the Convention, and in

support of a claim whichthe Netherlandsnevermade;

(d) to do so on the basis of an interpretation whichs contradicted
by the subsequent practice of the parties to theConvention, as
well as of the parties tothis case;

(e) and to do al1this in circumstances where, even if the parties
had wanted to, they could not have affected sovereigntyover
the islands at the time of the 1891Convention, because they
then belonged to a third State, Spain.

The material presented by Indonesia does nothing to discharge that
onus. On the contrary, it confirms Malaysia's sovereignty over the
two islands. That sovereignty was acquired by a clear and well
attested chain of transactions, and in particular by the Boundary

Convention between Britain and the United States of 1930,at which
time sovereignty and administration of the islands were reunited in
the State of North Bomeo under British protection. But if there were

any doubt about this, the fact of the undisturbed administrationof the
islands by Malaysia and its predecessors in title formore than a
century must be decisive.

The structure of thi s ounter-Mernorial

1.9. Since Indonesia's case depends on the 1891 Boundary
Convention, in this Counter-Memorial Malaysia will first show that
none of the Indonesian arguments as to the effectof that Convention
has any weight (Chapter 2). It will then, so far as necessary in

response to Indonesia's Memorial, deal with the transactions whichclidconcern the two islands and which did involve administration
over them, in particular, the transactions betweenthe United States

and Britain in right of North Bomeo in 1907 and 1930 (Chapter 3).
The conduct of Indonesia and Malaysia and their predecessorsin title
in relation to the islands willthen be surveyed, and the Indonesian

account of that practice refuted. It will be shown that it clearly
supports Malaysia's title to the islands (Chapter4). Finally the map
evidence adduced by Indonesia will be discussed, and a number of
further Dutch and Indonesian maps reviewed. Taken together, the

map evidence provides useful supplementarysupport for Malaysia's
sovereignty over the two islands. In particular there is not a single
map which interms attributesthem to Indonesia(Chapter 5).

1.10. Appended toVolume 1 is a report by an authority onDutch
colonial history, Professor Houben, showing that the present
Indonesian claim via the Sultanate of Bulungan is lacking any

historical foundation.' Volume 2 contains certain additional
documents and maps referredto in this Counter-Memorial.

7 See below,Appendix1 Chapter2

THE1891BOUNDARY CONVENTION
DIDNOTAFFECTTHEDISPUTED ISLANDS

A. TheTerritorialTitle Allegedby Indonesia

2.1. Indonesia's claim to the islands of Ligitan and Sipadan

rests exclusively on the Boundary Convention of 20 June 1891
between Great Britain and the Netherlands. As the Indonesian
Memorial says:

"While for the reasons explained in Chapter IV there
were various uncertainties as to the exact location of
the boundarybetween Dutch and British possessions in
North Borneo, those uncertainties were brought to an

end by the conclusion of the Convention between
Great Britain and The Netherlands Defining
Boundaries in Bomeo of 20 June 1891.The terms of

that Convention, and its contemporaneous
interpretation by the Parties, leave no doubt as to the
inclusion of both Ligitan and Sipadan within the
colonial domainsof The ~etherlands."'

2.2. Malaysia's claim is based on acquisition by Spain of the
possessions of the Sultan of Sulu. The islands adjacent to North

Borneo which were situated beyond the three maritime league limit
of the 1878 Sulu grant, Ligitan and Sipadan among them, remained
under Spanish sovereignty. These possessions were transferred to
the United States by the Treaty of 7 November 1900. The United

States in turn transferred them to Great Britain by the Treaty of 2
January 1930.~

I IM,para.5.1.,p61.
2 See MM,ch. 5 & Chapte3 below.2.3. Given the importance of the 1891 Boundary Convention

for the Indonesian case, this Chapter will examine closely the
argument put forward in the Indonesian Memorial. Unfortunateiy
for Indonesia, neither the termsof the Boundary Convention,nor its
contemporaneous interpretation by the Parties .to the Convention,

support its conclusion.

B. Background to the Boundary Convention of 20 June

1891

2.4. The authority of the Sultan of Sulu on the coastal territory
of northeast Borneo in the middle of the 19'~century is not in
dispute between the Parties to the present proceedings.The effective

authority of the Sultan of Bulungan over the territory claimedby the
Netherlands in 1891 is much more questionable, contrary to the
assertions of the Indonesian ~emorial.~ The dependencies of the

Sultan of Sulu at the time of the 1878 concession overlappedin the
south with the Dutch claims to the Sultanate of Bulungan, but that
overlap never extended to the islands now claimed by Indonesia, as
the following accountwill show.

2.5. The grant by the Sultan of Sulu to Messrs. Overbeck and
Dent of 22January 1878was in the following terms:

". ..al1 the rights and powers belonging to us over al1
the territories and lands which are tributaryto us on the
mainland of the island of Borneo from the Pandasan
river on the west extending along al1the lands on the

east coast as far as the Sibuku river in the south and
including al1 the territories on the coast of the
Pandasan river and the coast lands of Paitan, Sugut,
Bonggaya, Labuk, Sandakan, Kinabatangan, Mumiang

and al1 the other territories and coast lands to the
southward thereof on the coast of Darvel Bay as far as

3 IM, paras.4.5ff.

10 the Sibuku River togetherwith al1the islands included
therein within nine miles of the ~oast."~

2.6. On 28 February 1846, the Govemor-General of the

Netherlands East Indies issued a resolution fixing the northem limit
of the Dutch administrative divisions at the 3" 20'north latitude, or
at the river Atas. The resolution declared:

"The parts of Bomeo on which Netherlands does not
exercise any influenceare:

(a) The States of the Sultan of Bruni or Bomeo
proper, extending from Tanjong Datu on the Westto

the River Kemanis on the east, situated on the north-
WestCoast.

(b) The State of the Sultan of the Sulu Islands,
having for boundaries on the west the River Kemanis,

the north and north-east coasts as far as 3" north
latitude, where itis bounded by the River Atas forming
the extreme frontier towards the north with the State of

Berou dependant on the Netherlands.

(c) Al1 the islands of the northem coasts of

orne o."^

The description is precise, given the geographical knowledgeof the

area at the time.6 The mouth of the Atas river was thought to be
located at 3' 20'N.~

4
Annex MM 9, vo1.2,p. 31. The first reference to the lirnit of this kind
seems to be in the Treaty of Friendship and Commerce of 27 May 1847 between
Britain and the Sultan of Borneo, AnnexIM 11, vol. 2, p69,ArticleX, which
refers to a 10geographical mile limit.
5 Annex IM 10,vol. 2, pp55 ff.
6 See above, paragraphs 1.21.3.
7 Itis shown in that locatibyIndonesia in its sketch mapIM, opposite
page 64. On modern maps no such river is shown, but rather a series of bays and
indentations.Some maps show a river by the name of Antjarn at about that

location: whether it is the River Atas of the documentary record is unclear.2.7. On 27 August 1849,the resolutionwas modified by decree.
The new text dropped the reference to the 3" 20'N parallel. It did

not pive any precision as to the locationof the northern bounda~~.~

2.8. The Contract between the Sultan of Bulungan and the
Government of the Netherlands East Indies of 12 November 1850
provided in article 2:

"The territory of Boeloengan is located within the
following boundaries:

...with the Sulu possessions: at sea the cape named
Batoe Tinagat, as well as theTawau River.

The following islands shall belong to Boeloengan:

Terakkan, Nenoekkan and Sebittikh, with the small
islands belonging theret~."~

2.9. But, contrary to the stipulations of the Treaty of 1824, the
Contract was never notified to the British Government, as the Dutch

Minister of Foreign Affairs admitted in the Second Chamber of the
States-General on 8 March 1892." There would have been no

reason for the British Government to protest in 1850, as it had no
way of knowing about the Contract. The first notification of the
Dutch claim was on 17 January 1880, after the 1878 Sulu

concession: only when the Contract with the Sultan of Bulungan
was renewed in 1878 was it communicated to the British
authorities. "

2.10. Reference to "the small islands belonging thereto" in the
Contracts of 1850 and 1878 obviously concerned the islets

immediately adjacent to the large islands mentioned there. Contrary
to the assertion of the Indonesian Memorial implying that theParties

8 AnnexIM 12,vol. 2, pp.71ff.
9 AnnexIM 13,vol. 2, pp.81 ff.
1O AnnexIM 84, vol. 3p.199.
II IM, para.3.22..p. 15.to the 1891Boundary Convention hadin mind"al1territorial issues
between them, including those concerning the neighbouring
islands"," the British and Dutch authorities at no time gave the

slightest indication that islands so far out at sea as Sipadan and
Ligitan were concerned by that boundary delimitation. Whenever

the Dutch authorities refer to islands, it is in the proximate sense.
For instance, Count de Bylandt affirms, in a letter dated 8 April
188 1,that the sovereigntyof the Netherlandsextends to:

"2. Les Iles Terrakan, Manoekan,et Sibittikh avec les
îlots adjacent^."'^

On 19June 1893the description of the territory ofBulungan in the

1878 Contract was amended to adapt the Contract to the 1891
Treaty. The new description was inthe followingterms:

"The Islands of Tarakan and Nanoekan and that
portion of the Island of Sebitik situated to the south of
the above boundary-line, described in the "Indisch

StaatsbIad" of 1892, No. 114, belong to Boeloengan,
as well as the small islands belonging to the above
islands, so far as they are situated to the south of the

boundary-linelast mentioned."14

2.11. The small islands referredto were "adjacent" or "belonging
to" the larger islands of Tarakan, Nanoekan orSebatik. They could
in no way designate Sipadan or Ligitan, which were certainly not

adjacent to or belonging to the larger islands mentioned. Sipadan is
42 nautical miles east of the island of Sebatik. Ligitan is some 15
nautical miles still further east.

2.12. The overlapping claims in the south were bound to create

conflict. To assert their perceived rights, the Netherlands hoistedthe
flag in 1879 at Batu Tinagat and occupied the nearby village of

12
13 IM, para. 4.72.,60.
J Annex MM4 1,vol. 3, p. 27 (emphasis added).
Annex MM 54, vol3, p.1 14(emphasis added).

13Tawau, whilst Dutch warshipsoccasionally patrolled the north-east
coast.

2.13. The cape of Batu Tinagat, on the northem coast of Sibuko
or St. Lucia Bay, was the extreme eastern claim of the Netherlands

on the east coast of Borneo and was consistently described as such.
As early as 1December 1882,the Dutch Minister in London, Count
de Bylandt, considered that any territory east of Batu Tinagat was

beyond Netherlands territory:

"La notice que j'ai l'honneur de remettre ci-prés à
votre Excellence contient un ensemble de faits qui

permettent de considérer comme fort probable quela
rivière désignéed.ans les Concessions sous le nom de
"Siboeboe" est située à l'est de Batoe Tinagat et par

conséquenten dehors du territoire Néerlandais.En ce
cas toute cette controverse tomberait d'elle-même; elle
n'aurait en réalijamais existe. ,715

2.14. The note sent by Count de Bylandt to the Marquis of
Salisbury on 22 December 1888 confirmed that Batu Tinagat was

the most eastern point of the Dutch possessions on the Island of
Borneo:

"Le Gouvernement du Roi a cru devoir prendre comme
limites extrêmes à l'ouest: Tandjong Datoe,et à l'est:
Batoe Tinagat, étant donné que les droits de

souveraineté des Pays-Bas sur ces deux points
extrêmes de 1'Ile de Bornéo ne sauraient être
contesté^.'"^

2.15. The Netherlands Delegates to the Joint Commission noted
at the second meeting, on 19July 1889:

15 Annex IM 31,vol. 2p.280 (emphasis added).
16 Annex IM 37, vol2, p329. "7. Admitting that the statements of Mr. Treacher

should be correct insofar as theregions are concemed
to the eastward of Batoe Tinagat, theycertainly are
incorrect as to the disputed district which was not

occupiedby the Suluchiefs."17

2.16. But, as the Minister of Foreign Affairs admitted in the
ratification debatein 1892, "...the claim of the Netherlands to fix
the boundary of its territoryon the east coast of Bomeo so far as the

Tawao river and Batoe Tinagat wasnot in reality indisputable",
adding that "...the claims of Boeloengan toBatoe Tinagat could not
be proved and were in reality imaginary."18 The hold of the

Netherlands on territory northof Sibuko Bay was shaky to Saythe
least, as the Indonesian Memorial concedes.19 The Explanatory
Memorandum submitted by the Dutch Government to the

Parliament admits:

"A local inspection carriedout by the deputy assistant

resident of Koetei revealed that theBajaus who live on
the islands located at the North Eastern coast of
Borneo, which belong tothe Sultanate of Solok, still

continuously collect forest products in the disputed
area and show no concem whatsoever for the Sultan
van ~oeloen~an."~~

It may be recalled that theBajaus, or sea gypsies, wereliving in the
vicinity of Sipadan and Ligitan, as they still do.21 They were

principally based on Danawan,the headmen of which had the right
(confirmed by the Sultan of Sulu) to collect turtleeggs on Sipadan.
They were consideredas a Sulu population. No single document so

far disclosed inthis case statesor even suggests that theywere under
the authorityof Bulungan and the Netherlands.

17 AnnexMM45, vol. 3, pp. 51-52(emphasis inoriginal).
1s AnnexIM84, vol.3, pp. 197-198,206.
19 IM,para.5.23.,p.73.
20 AnnexMM51, vol.3, p. 91.
21 MM,pp. 12-19.2.17. The history of the negotiations prior to the 1891 Treaty
confirms the views of the deputy assistant resident of Koetei. He
reported thatthe Sultan of Bulungan.. .

"was prepared to act unconditionally according to the
arrangements to be made by the Dutch and English
Governments, but would rather see that to the

population of Boeloengan for the term of 15 years be
given the right to collect forest products freeof tax in
the area between Broershoek and Batoe~ina~at."~~

2.18. That was so decided in the Treaty, Article VI. The
interesting point is that the Sultan of Bulungan at no time asked for

the right to collect products of the sea on islands east of Batu
Tinagat, which would have been turned over to British North
Borneo. Valuable commodities could be collected on the islands, in

particcilarturtle eggs. If the Sultan of Bulungan had considered the
islands east of Batu Tinagat as within his possessions, he wouldno
doubt have claimed the same rights for his people.

2.19. In 1888,Great Britain entered into agreementsestablishing
protectorates over Sarawak, Brunei and the territory of the British
North Borneo Company. The Dutch Foreign Minister was

"somewhat taken aback" by the news. But the Dutch Government
did seize the opportunity to propose anagreementon the boundaries
of Borneo. As the Explanatory Memorandum submitted to the

Dutch Parliament puts it, "the border dispute had become
automatically a matter for negotiation between the Dutch and British
~overnments."~~ In 1889, the Foreign Secretary, LordSalisbury,

agreed to refer the question for consideration and advice to a small
committee of representatives of the two States. Great Britain
appointed Sir Philip Currie, Permanent Under-Secretaryof State for

Foreign Affairs and Sir Edward Hertslet. The Netherlands
appointed the Count de Bylandt, Dutch Minister in London andMr.

77
-- Explanatory Memorandum, Annex MM 51,vol.3,p. 91
23 Ibid.p.90.A.H. Gysbert, officia1of the Netherlands Ministry ofthe
Negotiations could begin.

2.20. In relation to Ligitan andSipadan,the followingpoints may

be noted on the eve of the negotiations:

(a) The boundary dispute between Great Britain and the
Netherlands concentrated on the land boundary on the Island

of Borneo and, in particular on the point on the east coast
where the boundary would start.

(b) The "extreme" Dutch claim to the east was the cape of Batu
Tinagat. Al1 the territory east of that point was considered

British or Spanish territory by the Dutch authorities
themselves.

The only islands in the vicinity of the north coast of Sibuko
(c)
Bay mentioned in any documents, whether Contracts with the
Sultan of Bulungan, administrative Dutch delimitation or
diplomatic exchanges between thetwo Governments were the
islands of Tarakan, Nunukan and Sebatik and the "small

islands belonging thereto" or "adjacent" to those islands.

(d) The Sultan of Bulungan had little or no control on the area in
dispute, letalone over islands well to the east. He was only

too happy to secure the right for his people to collect forest
products free of tax for 15 years, but never advanced the
slightest claim to islands, or the product of islands, east of

Batu Tinagat. On the contrary, the Bajaupeople, living on the
coast of North Borneo, felt free to roam in the area, owing
allegiance to the Sultan of Sulu.

C. The Negotiationsfor the 1891Convention

2.21. The negotiations lasted for two years. The Joint
Commission held three meetings, on 16, 19 and 27 July 1889.

Diplornatic exchanges ironed the major issues which had been

24
MM,pp. 91-94;IM,pp.63-70.pointed out by the Joint Commission. The Boundary Convention

~t~risigned on 20 June 1891.

2.22. As Sir Edward Hertslet, the second British member of the

Joint Commission, had noted:

"...it may be well to cal1 attention to the great
importance of not allowing the Dutch to enjoy the sole

right of navigating theSibuco and the numerous other
rivers which flow from the interior of the Island of
Borneo into thesea, in the Sibuco or Sainte-Lucia Bay,

to the south of Batu Tinigat, as to admit such a claim
might have the effect of depriving the Company of a
large portion of their possessions, as the actual course

of the Sibuco is not known, and it might be found to
rise considerably to the north of Batu Tinigat, and to

flow through a vast extent of territory in the interior
belonging to the NorthBomeo Company.

The question of the navigation of these rivers, then, is
,925
reallythe only important pointin dispute.. .

2.23. Contrary to what is assertedby ~ndonesia,~t ~he Dutch were

not "on the retreat, yielding territory to which theyhad strong
claims" between Broershoek and Batu Tinagat. Rather, as the

Netherlands Govemment readily admitted in the Explanatory
Memorandum submitted to the ~arliament,~'they were seeking a
settlement which would give them "a quite correctly described

borderline which putsan end to al1difficulties in the future, not only
concerning that partof Borneo which was connected with the border
dispute but also concerning the whole i~land."~~ During the

Parliamentary debate in The Hague, the Ministers insisted, in the
words of Mr. Van Tienhoven, Ministerof Foreign Affairs,that.. .

25
76 Further Memorandum, 9 January 1889,AnnexMM 43, vol. 3, p. 35.
IM, para. 5.24, p.74. But see IM, para. 5.23, p.74: "The Dutch
Government regarded acceptance of the" 10'N line as not involving the lossof
27y possessions which were unquestionably Dutch."
18 Annex MM 51, vol. 3, pp. 91,93.
Ibid., p. 93. "... it cannot be said that we are now retracting and

givingup territory thatundoubtedly belongsto us."29

As the Explanatory Memorandum puts it, in the eyes of the
NetherlandsGovernment". ..the boundaryis much more favourable

for the Dutchthan the British de~ired."~'

2.24. The Joint Commission did propose that the boundary start
from a point about4" 10'north on the coast, then "pass between the
islands of Sebattick and East Nanoekan". This was a British

proposal, advanced by Sir Philip Currie to ensure access of British
ships to the estuary of the Sibuko River. It was related to the

overriding concern about navigation and was in no way "clearly
envisaged in principle as one which, starting on the coast, ran
eastwards ut sea for an indeterminate distance (although at least

between the two named islands), Le., out to the open sea", as
Indonesia incorrectlyputs it.31 If such had been the intention of the
British Government, Britain would have singled out the issue when

Count de Bylandt finallyrejected the proposal. In fact the ensuing
negotiation was exclusivelyconcerned with navigation and not with

a boundaryrunning out to the opensea.

2.25. The decision to adoptthe parallel of 4" 10'N latitude as the
starting point for the boundary, westward across the island of
Borneo and eastward across the island of Sebatik, was an obvious

compromise, roughly half way between the British proposa1of 4"
north and the location of Batu Tinagat, thought to be at about 4" 19'
no~-th.~'The choice of the parallel continued across Sebatik island

was a convenient way of ensuring equal access to theSibuko River.
Other alternatives (such as enclaving the little Dutch settlement on

29
30 Annex IM 84, vol. 3, p. 198.
I Annex MM 51,vol. 3, p. 93.
32 IM, para. 5.23., p. 73.
Annex MM 40, vol. 3, p. 24, Answer of the Colonial Minister to
Inquiries made by the Cornmittee ofthe Second Chamber in their Preliminary
Report on the Netherlandsndian Budget for 1880.the Tawau River) were toocomplex and would havecreated a future

.'hornetsnest", in Count de Bylandt's words."

2.26. The order in which the decisions were taken gives the key
to the structure of the Boundary Convention. The point is of
interest, given the elaborate Indonesian demonstration as to the

significance of the articlesof the on vent ion S.^E^dward Hertslet
noted, on the first meetingof the Joint Commission, "...in the event
of a satisfactory understanding being arrivedat with regard to the

disputed boundary.. .on the north-east coast, in the neighbourhood
of the Sibuco River, the British and NetherlandGovernments will
proceed without delay to define, short of making an actual survey,

and marking the boundary on the spot, the inland boundary-
lines...,935Thefirst step was to determine the starting point on the
east coast of mainland Borneo. As Sir Philip Currie remarked,

".. .until the boundary on the coast was settled, the question of the
frontier inland must remain in suspense.. ."36 At the third meeting,

SirPhilip proposed "That the boundary-line on thecoast should start
from the point cailed Broers Hoek, in about 4" 10' north
latitude.. ."" The Joint Commission agreed to the proposal. The

second step was the determination of the boundary inland, to the
West. On 2 February 1891, Count de Bylandt proposed to Lord
Salisbury the adapted watershed line between the rivers Simengaris

and Soedang, as finally written into the Boundary convention.''
The third step was the agreement to divide the Island of Sebatik by
following the 4" 10'parallel north from the Westcoast to the east

coast of the ~sland.~~That order of negotiation is reflected in the
order of the relevant articles of the Boundary Convention.

2.27. The only offshore islands that werementioned or thought
to be relevant were certain offshore islands, in the immediate

vicinity of the coast of Borneo. A member of the Dutch delegation,

33 Annex MM 47, vol. 3,p. 66.
3J IM, para.5.43. pp. 83-86.
35 Annex MM 44, vol. 3, p. 39.
36 Annex MM 46, vol. 3, p. 64.
37 Annex MM 46, vol. 3p.62
38 Annex MM 50,vol. 3pp. 85-88.
39 Ibid.Mr. Elias, mentioned that a decree of the Governor-General of

Netherlands East Indies dated 2ndFebruary 1877had specified that
"the Islands of Sibbitich,Nanoekkan and Tarakkan" belonged tothe
~etherlands.~' These islands were adjacent to the mainland coast,
well within the three-milelimit. In the GuinedGuinea Bissau case,

in somewhat comparable circumstances, the French Government
had mentioned during the ratification debate "les îles situéesle long
de la côte...de mêmeque celles qui se trouveront dans les eaux des
possessions françaises". The arbitral tribunal noted that "Il semble

que cela n'ait viséque les îles côtières,qui étaient indubitablement
situées dansles eaux territoriale^ T.he islands mentioned by Mr.
Elias were in the direct vicinity of the proposed boundarylines and
would necessarily be affected by the choice of the boundary. They

were part and parce1of the mainland boundary dispute. No other
islands were mentioned, either directly or indirectly, during the
negotiations. There was no question of any line running eastwards
at sea.

2.28. To sumup, in relation to the present dispute:

The negotiations were dominated by the issue of access to the
(a)
rivers on mainlandBorneo and freedom of navigationon these
rivers.

(b) The compromise proposa1 was a balanced one. The
Netherlands Government strongly denied it was yielding any

territory.

(c) The negotiatorssettled the startingpoint on the east Coastfirst,
then determined the course of the boundary westward across
mainland Borneo, then the course of the boundary eastward

across the Islandof Sebatik.

(d) The only islands mentioned during the negotiations were
Tarakan, Nunukan and, naturally, Sebatik. These islands,
adjacent to the coast of Borneo were necessarily affectedby

the mainlandboundarydispute.

40
41 Annex MM45, vol. 3,p.59.
Arbitralaward14 February1985,para.61.(e) There never was any question of a boundary-line running

eastwards out to the open sea.

D. The Survey by HMSEgeria, HMSRattler and HNLMS
Banda, 30 May - 19June1891

2.29. Indonesia underlines the importanceof the naval survey by
HMS Egeria, HMS Rattler and HNLMS Banda in June 1891.
Malaysia agrees this is a usefulelement for the understanding of the
present case. But the slight confusion noticeable in Indonesia's
presentation ofthe facts calls for clarification.

2.30. On 29 December 1890, Lord Salisbury requested the
British Minister in The Hague, Sir Horace Rumbold, to ask the
Netherlands Government:

"...whether, if Her Majesty's ship 'Egeria'should
proceed on a surveying cruise to the east coast of
Borneo early next year, they would consent to an
investigation being madeby the officersof that vessel,

with a view to ascertain the exact point where4" 10'
north latitude reaches the sea, on the clear
understanding that any mark which the British naval
officers may think it necessary to place is without

prejudice to the conflicting claims of the Netherlands
East India Government and the British NorthBorneo
Company with regard to the boundary of their
respective territorieson the east coastorneo o."^^

2.3 1. On 20 January 1891, the Dutch Foreign Minister, Mr.
Hartsen, accepted the request. He added:

"Eu égard,cependant, à la possibilitéque ce point (le
point sur la côte où se trouve le parallèle'latitude
sud [sic]soit adoptépar la suitecommepoint de départ

42
AnnexIM 63, vol3, p. 51.

22 de la limite entre les possessions Néerlandaiseset
Anglaises sur 1'Ilede Bornéo,le Gouvernement des
Pays-Bas est d'avis qu'il serait désirableque l'étude

dont il est question se fasse conjointement avec des
officiers d'un navirede lamarine~éerlandaise."~~

Hartsen proposed a combined expedition and suggested that the
purpose of the mission be extended to explore and determine the
course of the rivers Simengaris and Soedang, in the vicinity of

~roershoek~~.

2.32. In the meantime, the two governments agreed that the 4"

10' north parallel be considered as the boundaryon the Island of
Sebatik. The Dutch Minister proposed on 7 April 1891 to instruct
the combined expeditionto fix the exact points at which the parallel

crosses the coasts of the island and todraw up the necessary maps.
But there was no question of extending the scopeof the combined
expedition to any otheri~lands.~'

2.33. The report of the Dutch surveying vesse1 Banda is

precise.J6 The Banda arrived in St.Lucia Bay at 10 o'clock in the
morning on lStJune 1891. Buoys were put in their places on the
Coast,just north of Broershoek and onSebatik Island. The rivers

were explored as instructed. The Banda left on 21 June at 8:30
o'clock for the return voyage. The combined expedition was
concluded. Therewas never any questionof the Banda demarcating

a maritime boundary further east, let alone visiting Ligitan or
Sipadan.

2.34. As the Indonesian Memorialcorrectly points out, "a map,
entitled Plan shewing theResult of the Determination of Parallel of

4" 10' N on the East Coast of Bomeo, and Examination of the
Rivers in the Vicinity,June 1891 appearsto be the 'tracing'referred

43 Annex IM 65, vol3, p.59.
JJ Ibid.
45 Annex IM 69, vol. 3, pp.77-84.
46 Annex IM 80, Inclosure No. 3, vol. 3, pp. 138-140.to in the Admiralty letter of 24 September 1891 as illustrating the
combined work of the two British ves~els."~'The map is produced
as Map No. 6 in the Indonesian Atlas and as Map No. 12 in the

Malaysian Atlas: for the purposes of illustration it appears again in
photo-reduced form opposite, as Insert 2. Indonesia argues that,

because the 4" 10'N parallel is continued out to sea beyond the
Island of Sebatik, "it is therefore to be noted that one of the results
on which both Governmentshad expressed their agreement was this

tracing showing the relevant parallelextending out to ~ea."~~If the
point is to show that parallels run through land and sea alike, it is
quite evident. The more important point, however, is that the

parallel is considered on the map as a topographical feature and
certainly not as a boundary, extended in the same manner westward

towards inland Borneo and eastward out to sea. The beacons
erected on Sebatik Island arecorrectly located, but the boundarywas
not yet decided at the time of the survey. And even more important,

the map stops 12 miles off Sebatik. Any further maritime survey
was beyondthe province of thejoint expedition.

2.35. The joint expedition ended on 21 June 1891. But that is

not the end of the story. The Egeriadid visit Sipadan Island, but in
~a~.~~ It had arrived in March in the area and was instructed to
survey the coast and islands around Darvel Bay. No notice was

given to the Netherlands Government, no authorisation was called
for, no combined expedition was organised, as this was undoubtedly

British territ~r~.~'

47 IM, para. 5.38p.80.
AS Ibid.
-19 Annex IM 89, vol. 3p. 231.
io As the account of the Darvel Bay survey in theBritish North Borneo
Herald put it:

"The survey of the South coast of Darvel Bay extending from
Silam in the North-west to Richard's Reef..nceby the Eastern
side of Pu10 Gaya on to Si Ami1 Island and stretching to the
westward as far as Egeria shoal includingSipadan Island was
completed on 15thAugust.. ."

Annex IM 89,vol. 3, p. 233.2.36. According to the IndonesianMemorial:

"These references (in the report of the BritishNorth
borne^Herald)to Ligitan and Sipadan, an account of

survey conducted by British vessels in associationwith
a Dutch vessel at the time of the conclusion of the
1891 Convention, show that those islands were very
much in mind at the time, were hydrographically

significant, and were in waters which it was important
to survey properly in the general interests of
na~i~ation."~'

It appears that, due to the "almost totally unsurveyed condition of
this portion of theterritory under the rule of British North Borneo
Government", several vessels were grounded in the reef-bestrewn

waters.52 HMS Egeria was accordingly ordered to undertake the
survey and arrived at Sandakan on 14 March 1891. The Egeria
stayed in the area till 27 August, then returned to resume the survey
ofDarvel and St. Lucia Bays from 28March to 29August 1892.

2.37. The Egeria did survey Sipadan and Ligitan. Stations were
installed, in particular on Mabul and Sipadan. But al1 this took

place in the beginning of May and was a strictly British operation.
Contrary to what is implied by the Indonesian Memorial, the Dutch
vessel was in no way associated with the survey of the islands off

the Coastof British North Borneo

2.38. The Indonesian Memorial notes that "...the Dutch were

directly engaged in maritime activities in the area and were
unwilling to let British naval vessels carry out such activities on
their ~wn."'~ This is probably true as to the survey of territory

claimed by the Dutch and of the proposed boundary with British
North Borneo. It is not true for the territory and islands to the east,
which were administered by British North Borneo, includingLigitan
and Sipadan.

SI
52 IM.para.5.39P.81
53 BritishNorthBorneoHeraldAnnex IM 89. vol.p.230.
IM. para.5.36,p. 80.2.39. After havingsurveyed certain islands off the British North
Borneo coast, including Sipadan, between 13 and 19 May, the
Egeria met HMS Rattler and HNLMS Banda on 1 June close to

Broershoek for the combined expedition,to ascertain the pointsand
erect beacons on the 4" 10'N parallel on the east coast of mainland
Borneo and the east and Westcoasts of Sebatik. They also explored

the Simengaris River as instructed. British and Dutch officers
established a cordial relationship, hunted wild pigs together. The
Dutch report of the expedition noted that "the most agreeable
souvenirs will remain on both sides of the time passed by them in

the Bay of St. ~ucia."~~ The conversation was bound to have
touched upon the survey of the Egeria in the preceding weeks. But
the Dutch officers did not consider it worth mentioning in their

report, much less did they protest at what (according to Indonesia's
position now) would have been a unilateral British surveyof Dutch
islands and waters.

2.40. The Egeria returned the following year to complete the
survey of the islands off North Borneo. She visited Sipadan and
Ligitan during her cr~ise.~~They were obviously consideredas part

of the group of islands associated with the Ligitan reef, soundly
within British territory. The Egeria cruised on to the island of
Sebatik to check the boundary beaconsplacedthe yearbefore.

2.41. The visit of HMS Egeria to the area is instructive in a
number of ways.To summarise:

Great Britain and the Netherlands considered it necessary to
(a)
organise a combined expedition to survey the proposed
boundary before signing the 1891Treaty.

(b) The combined expedition was instructed to ascertain the
points where the 4" 10' N parallel met the east coast of the

island of Borneo. the east and West coast of the island of

54
55 Annex IM80, vol. 3, p. 138.
Annex IM 90,vol. 3, pp. 242,245. Sebatik, to explore the rivers Simengaris and Soedang and to

draw maps thereof. A map was drawn and communicated to
the Dutch authorities. It clearly was limited to the coast and
the vicinity of SebatikIsland.

(c) The Egeria was also instructed to survey the islands off the
coast of British North Bomeo, in the vicinity of Darvel Bay,
among which were included Ligitan and Sipadan. This was

done a few weeks before the combined expedition and was a
purely British venture.

(d) The Dutch authorities had insisted on the presence of a Dutch
vesse1to survey the boundary on the east coast of Bomeo.

They could not ignore the purely British survey of Sipadan
and Ligitan. They did not object to the activities of the Egeria
in an area under British sovereignty and,quite to the contrary,

congratulated the British authorities for "the good
iinderstanding with the Englishofficers".

2.42. Insert 3, opposite, is a sketch map of the voyages of the
Banda and the Egeria in the region in 1891and 1892. The focus of
the Egeria's voyages around Darvel Bay is obvious enough. The
limited focus of the Banda's voyage is equally obvious. The

contrast with the Indonesian vision of a "joint" operation is stark.
There was a joint operation, but it was limited to Sebatik and
inshore waters. So, evidently,was the 1891Convention.

E. TheInterpretationof the 1891Boundary Convention

"The ..clairnswere inrealiv imaginaryflS6

2.43. The claims were "imaginary". Mr.Van Dedem, the Dutch

Minister for Colonies, was talking aboutthe claims of the Sultan of
Bulungan to Batu Tinagat. The same can be said of Indonesia's

56
Mr. Van Dedem, Minister ofthe Colonies, Second Chamber of the
States-General, 8 March 1982,AnneIM 84, vol. p.206.interpretation of the Boundary Convention between Great Britain
and the Netherlands defining boundaries in Borneo, dated 20 June

1891. Whereas the natural and ordinary meaning of the Treaty is
straightforward, as Malaysia has demonstrated in its Memorial,
Indonesia writes into the Boundary Convention words that are not
there and traces an imaginary "boundary" line50 miles out to sea to

support its claim to Ligitan and Sipadan. Not a word in the 1891
Boundary Conventionsupports the Indonesianclaim.

2.44. The relevant termsof the Treaty arethe following:

"ARTICLE 1.

The boundary between the Netherland possessions in
Borneo and those of the British protected States in the

same island, shall start from 4" 10'north latitude on
the east coast of Borneo.

ARTICLE II.
The boundary-lineshall continue westwardfrom 4" 10'

north latitude, and follow in a west-north-west
direction, between the Rivers Simengaris and
Soedang.. .

From the summit of the range of mountainsmentioned

in Article II, to Tandjong-Datoe on the Westcoast of
Borneo, the boundary-line shall follow the watershed
of the rivers mnning ...

ARTICLEIV.

From 4" 10' north latitude on the east coast the
boundary-line shall be continued eastward dong that
parallel, across the Island of Sebittik: that portion of
the island situated to the north of that parallel shall
belong unreservedly to the British North Borneo

Company, and the portion south of that parallel to the
Netherlands. ARTICLEV.

The exact positionsof the boundary-line, asdescribed

in the four preceding Articles, shall be determined
hereafter by mutual agreement, at such times as the
Netherland and BritishGovernmentsmay think fit."57

2.45. Malaysia reads the Treaty, according to the natural and
ordinary meaning of its terms, as a land boundary treatyand not an
allocation treaty, purporting to divide islands fifty miles off the

coast. Indonesiaclaims the contrary.

2.46. The Boundary Convention is the exact reflection of the

negotiation process. Article1determines thestarting point on the
east coast of Borneo. Articles II and III describe the course of the

boundary westwards across mainland Borneo. Article IV describes
the course of the boundary eastwards, across Sebatik Island to the
east coast of the island and nofurther. Whatever ambiguity might

have resulted from such a description is eliminated by the more
precise descriptionof the subsequent agreementof 19 15, where the
starting point ison the east coastof Sebatik Island and the boundary

line runs WestacrossmainlandBorneo.

2.47. Indonesia advances thirteen arguments in support of its
~laim.~*There is no substancein any of them.

(a) First (accordirtg to Indonesia), Article I establishes the

boundary between "possessions" and would be providing for
territorial attribution of possessions to theNetherlands and to
Great Britain. Doing soby way of a straight line out to the sea

was a usual methodamong colonialpowers.

Unfortunatelyfor Indonesia, the text saysnothing of the sort.
The initial Britishproposa1refened to a "line". The Netherlands

insisted on a "b~undar~-line".~~The importance of the change
-
57 AnnexMM 17, vol.2, pp70-71.
58 IM, para.5.43pp. 83-86.
59 AnnexIM73, vol3,p. 101. should not be overlooked. This was not any delimitation, any
ordinary line drawn on a map. Insistent referenceto boundaries
does not indicate an allocation treaty,but a boundary treaty. The
"straight line" out to sea is a pure invention, as the text says
nothing of the sort, either for the eastcoast or for the Westcoast.

The "boundary-line" was necessarily a land boundary-line. At
most, itcould concern inland waters. But there was no way of
qualifying a line out in the open sea, far beyond the three-mile
limit, as a boundary-linen 1891.

(b) Second, Article IV provides that, from the starting point laid
down in Article I, the boundary line is to be "continued
eastward"; the notion of "continuation" would not embrace a
line of only limited extent ivith a nearby terminal point, but

rather a line of indeterminate extent.

But Article II uses the same notion of "continuation"
westward, i.e. inland, to a point specified in Article III,
Tandjong-Datoe on the Westcoast.

(c) Third, in the absence of any specified limit, the line should

divide al1 territorial possessions, in particular islands or
territories whose attribution might beproblematical.

But there is a specified limit, the island of Sebatik. The
whole purpose of Article IV was to divide the island so as to

ensure access by seato the mainlandto each Party.

(d) Fourth, given the Dutch belief that the territories of the Sultan
of Boeloengan included various islands, including certain
islands adjacent to the main islands of Tarakan, Nanoekan and

Sebatik, an interpretation which would leave open the question
of attribution of various small ofshore island would be
inconsistent with thisurpose.

But the Dutch belief could only concern the adjacent islands
mentioned in the official Dutch documents. Nothing in the text

of the Treaty or in the Dutch officia1documents implies such a
wild strike 50 nautical miles offshore, way beyond the limits of
the territorial sea. Such a provision would have beenexplicitly
mentioned in the text.(e) Fifth, the historyof thenegotiations show that the initial British
proposal wasfor a boundaryline running outfrom Broershoek,
through the channel between the islands of Sebatik and

Nanoekan; such a maritime line wo~ildinherently be a line
continuing outto the sea.

But Britain neverclaimeda line continuingout to the seaand
there was nothing "inherent" about the proposal. The British

North Borneo Company was anxious about accessto the rivers,
but never contemplateda line continuing out to the sea. In any
case, the line waschanged andcertainlydid not "run out to sea".

Cf) Sixth, the onlv indication given as the location of the line is that

it runs "along that parallel", i.e. th4" 10'parallel north. The
use of the term "along" would confirm a line of indeterminate
length.

But the end of the sentence qualifies the expression:
". ..along that parallel,acrossthe Islandof Sebittik".

(g) Seilenth, the words, "across the Island of Sebittik" are a
subordinate element; "not a limitingpart ofthe main clause,but
merely a subsidiary description ".

The attempt to strike out these words on the basis that they

are separated from the first part of the phrase by a comma is
pure fiction. There is nothing naturaland ordinary aboutsuch a
convoluted grammatical hypothesis.

(h) Eighth, the ordinary meaning of "across "conveys the meaning

of "through and beyond" or "crossingand continuing over" the
island of Sebatik.

But Indonesia simply strikesout the words after the semi-
colon "that portion of the island situated to the north of that
parallel shall belong unreservedly to the British North Borneo

Company, and the portion south of that parallel to The
Netherlands". The semi-colon indicates aclose grammaticaland
functional relation betweenthe two parts of the sentence. The
words mean that the line across the island isto divide the island

itself, nothing more, nothing less. Furthermore, there can be
little doubt that the word "across"(over in the Dutch text) in its
ordinary meaning means in such a context: "running along the surface, it extends until: going from one side to the other, with
the aim of reaching the other ide".^'

(i) Ninth, the fact that article IV mentions the island of Sebatik
vvouldshow that the boundary prescribed by the 1891 Treaty is
not limited to the main island of Borneo.

But Sebatik was mentioned principally because of the issue
of access to the rivers by both Parties. And because it was an
important island immediatelyadjacent to the main coast.

(j) Tenth,that clarification, in a subsidiary clause, should not place
a lirnit on the principal thrust of the text, which is that the
boundary continues eastward along the 4" 10'parallel north.

But the "principal thrust" is imaginary.The clarification says
what it says, i.e. that the boundary crosses the island of Sebatik,
dividing it into two.

(k) Eieventh, tlzere was no contemporaneous reason that the 4" IO'
north line should have been extended out to the high seas, other
than the attribution of islands to one Party or the other.

Indonesia is correct in that there was no reason,
contemporaneous or other, to extend the 4" 10'N line out to the
high seas. There were no disputed islands to allocate, as the

report of the Egeria, amongothers, clearly demonstrates.That is
why such a provision was not included inthe Treaty and why the
boundary-line stops on the east coast of Sebatik Island.

(1) Ttvertlt, continuation of the 4" IO' north line out to the sea
vvould have been consistent with the location of other Dutch
possessions to the east, south of the Philippines.

The 1891 Boundary Convention was not concluded with
Spain, but with Great Britain. The issue was not a neat
deiimitation of the Dutch and Spanish possessions, but the

60
See Woordenboek der Nederlandsche taal (Dictionary of the Dutch
lang~iage),volXI (ooit-ozonThe Haguekeiden: NijhoffISijthof1910,p. 1591.
Text inDutch: "F.Het begrip: boven langs de oppervlakre gaande, breidt zich uit
rotdnt van: gaarde van de eene zijde van iets naar de andere, met lzetdoel aan
den overkantte komen." fixing of the boundary on the island of Borneo between the
Netherlands possessionsand theBritish Protected States.

(ln)Thirteenth, the evident interest of both Parties to the access to
the estuary of the Sibuko riverand their contemporaneousjoint

maritime activities in the area, including Ligitan and Sipadan,
cvouldshow that theirconcerns did not stop at the eastern limit
of Sebatik but continued eastward intonavigationally significant

waters out to sea.

Freedom of navigation on Borneo rivers in the vicinity of
Sebatik certainly was a preoccupation and was dealt with in
Article VI of the Treaty. It was the principal reason why the

boundary crossed the islandof Sebatik. But it is simply not true
that the joint maritime activities of the Parties extended out to
sea. They were limited by instructions to the exploration of the

rivers concerned and to the east and Westcoast of the island of
Sebatik. Contraryto what Indonesia alleges, the reportsof HMS
Egeria and HNLMS Banda show that the Treaty boundary
stopped on the east coast of Sebatik and that the islands east of

that point wereconsideredby both Parties as lying withinBritish
sovereignty.

2.48. Malaysia maintains that the natural and ordinary sense of
the words used in the 1891Convention, its object and purpose, al1
point to boundary delimitation on the mainland of the island of

Borneo and the adjacent islandof Sebatik. No mention was made of
any delimitation out into the sea. As the arbitral tribunal in the
GuinedGuinea Bissau case pointed out,"Dans ce silence des textes,

il est fortement à présumer que les négociateurs n'ont jamais
envisagé autre chose que des frontières terrestres."" A A'boundary-
line" could in no way be drawn in the open seas, especially in 1891,
when maritime delimitation could not extend beyond territorial

waters. There is no indication whatsoever that the 4" 10'N parallel
would constitute a delimitation of the possessions of the Parties out
atsea. Ligitan and Sipadanare not mentioneddirectly or by any sort
of implication compatible with the rules of interpretation of

international treaties. Therest is "imaginary".

61 Arbitral award, 14 Februa1985,para. 79

35F. The Ratification of the Boundary Conventionand the
M~P

2.49. Indonesia's "trump card" is a map attached to the
Memorandum of Explanation submitted by the Netherlands
Government to the two Chambers of the States-General. Infact it is

quite a lonely card.

2.50. The main point is that there is no map. There is no map

attached to the Boundary Convention. There is no map mentioned
in the Boundary Convention. The Parties never agreed to a map.
True, there is an officia1map, but it is not the one mentioned by

Indonesia. Ttis not attached to the 1891 BoundaryConvention, but
to the 1915Agreement and willbe examined shortly. But given the
importance of the interna1domestic map for the Indonesiancase, it

will be first considered within itscontext, i.e. the ratificationdebate.
In that perspective, it is important to state the facts correctly before
analysing the legal consequences.

(1) The facts

2.51. The ratification procedure of the 1891 Boundary

Convention in the Netherlands started immediatelyafter the signing
of the 20 June Boundary Convention. The Dutch Government
drafted an Explanatory Memorandum (Mernorie van Toelichting),

dated 25 July 1891 to accompany the Bill of ratification, submitted
to the two Chambers of the tat tes-~enera lhe Commission of
Reporters reported to the Second Chamber of the States-Generalon

2 December 1891.63 The Government on 20 February 1892
siibmitted a Memorandum in Response, answering certain
parliamentary questions.64 The Second Chamber examined the

report on 8 March 1892.~~The Committee of Rapporteurs of the
First Chamber adopted its Final Report on 31 March 1892.~~ The

61
63 Annex MM 51, vol. 3pp.89-97.
Annex MM 53, vol. 3pp. 105-113.The order of the two Mernoranda is
64istakenly inverted in vo3of the Malaysian Mernorial.
6i Annex MM 52, vol. 3pp.98-104.
66 Annex IM 84, vol3, pp159-207.
Annex IM 85, vol3, pp209-211.First Charnber examined and adopted the Report on 1April 1892.~~
The Netherlands ratified the Boundary Convention on 20 May

1~92.~~Ratificationswereexchanged in Londonon 22 May 1892.~'

2.52. The 1891BoundaryConventionwasthe object of close and
careful scrutiny. The Explanatory Memorandum was discussed,
questions were asked, objections were voiced. Certain members

considered that the Dutch negotiators should have kept to the blue
line on the map and refused to cede Batu Tinagat. Others would
have preferred arbitration. The Government reaffirmed that itwas

not ceding any territory. The Minister of Foreign Affairs pointed at
the objective of a "satisfactory border on the entire width of the
island of Borneo." An arbitration could not have produced such a

result. The division of the islandof Sebatik would allow to "control
al1access to the deltas beyond" and exclude any danger of future
border issues.

2.53. No islands were mentioned otherthan Sebatik, except for a

fleeting reference in the Report to the First Chamber to
"neighbouring small islands". There certainly was no mention of
any line running out intothe open sea.

2.54. The internal Dutch map was attached to the Explanatory

~emorandum.~' It carries,among otherlines,one line coloured red,
which extends to the open sea for approximately50 miles (less than
ten miles in the first draft7'). It does not showthe islands in dispute,

but only P. Mabul. It was not an agreed map and was drawn
unilaterally by the Dutch Government after the conclusion of the

67
68 AnnexIM 86, vol. 3,pp. 213-218.
69 Annex IM88, vol. 3, pp. 223-225.
70 IM, para. 5.44.
AnnexesMM, vol.5, Map 2.
71 Malaysia produced the firstdraft of the internal mapin its Mernorial,
Insert 15,p.98. The existenceof an earlierdraft is hinted atin IM, para. 6.46, pp.
115-116,but the mapwasnot produced.Boundary on vent io nh.^^veryfirst draft was made by the Dutch
Ministryof Colonial Affairs on 23June 189173.

2.55. Why then the discrepancybetween the text of the Boundary
Convention and the Map? Why then the red line running out to the

sea? No question was asked by the members, no explanation was
given by the Ministers. As Malaysia pointedout in its Memorial, an
earlier draft of the map showed a shorter line eastward out to the

sea, slightly beyond Batu ~ina~at.'~ The map annexed to the
Memorandum of Explanation shows as the British Government
proposa1 a green line out to the sea, slightly beyond Sebatik and

Nunukan. But it shows no line out to sea at Batu Tinagat for the
initial Dutchclaim. Why was the redline lengthened between the
two drafts? To indicatethe course of the 4" 10'north parallel? Why

was it not continued out until it met the Spanish possessions? There
is no logictoal1this. Andnobodyseemed to care.

2.56. The Dutch Govemment does not seem to have attached
particular importance to the map, except to illustrate the proposed

land boundaries. The Commission of Reporters of the Second
Chamber asked for a declaration of the Govemment to the effect
that "al1that lies south of the new border should be recognised by

Great Britain as: 'the Netherland possessions in the Island of
Borneo . ,975 In its Memorandum in response, the Govemment

answeredthat:

"The Government need also have no hesitation in
making the desired declaration thatal1that lies south

of the border (as defined in' the agreement) be
acknowledged by the British as being: "the
Netherlands possessions inthe island of ~orneo."~~

72 MM, paras. 9.2-9.15, pp. 96- 102.
73 ARA, Minvan Kol.2.10.02, inv. No. 620MM, Inser15,p. 98.
74 MM, pp. 97-98.
75
76 Annex MM 53, vol. 3, p. 106.
Annex MM 52, vol. 3, p. 99 (emphasis added). The Government would certainly have referred to themap and not
, only to the agreementif it had intended tocontinue the boundary out
to sea, as nothing of the sort was "definedin the agreement".

2.57. The Government was criticisedby the opposition for giving

up Batu Tinagat. Nobody had ever pretended that territoryeast of
Batu Tinagat had beenunder Netherlands sovereigntyin the past,

quite to the ~ontrar~.~' If the Government had considered a
delimitation at sea as a compensation for acceptingthe 4" 10'north
parallel, it would have used the argument in the parliamentary

debate. Nobodypointed to the issue, because it wasa non-issue.

2.58. This also explains why the British Government did not
react to theMap. There is no evidence that the Map was officially
communicated by the Dutch Government to the British

~overnment,~~but it was available for consultation in the Dutch
Parliament and was to that extent "a matter of public knowledge"

for those ~oncerned.'~ The British Minister in The Hague, Sir
Horace Rumbold, did cail the attention of the Marquis of Salisbury
to the Map in his despatch of 26 January 1892.~' But he did not

single out the line mnning out to the open sea. Neither Sir Edward
Hertslet nor Lord Salisbury reacted, because it was a purely

indicative document for the DutchParliament, drawnfor illustrative
purposes. What interest Rumbold found in the Map was more
probably the land boundary as traced acrossthe island of Borneo

and the comparisonbetweenthe four proposals.

2.59. To sum up, in relation with the presentdispute:

77
78 See above, paragraph 2.16.
Despite a search of the files, noforma1note or letter of transmittal by the
Dutch to the British Government has been found, and none has been produced by
Indonesia. Rumbold's own letter implies that there was no formal
communication; he simply says that the map "has lately been published in the
officijournal": AnnexIM81, vol.3,p. 143.
79 IM,para. 5.54., 91
80 Annex IM 81,vol. 3, p. 143.(a) The Dutch Parliament scrutinised very closely the Boundary
Convention.

Neither the Government, nor the majority, nor the opposition
(b)
ever suggested that the boundary-line extended to the open
sea.

(c) The Map attached to the Explanatory Memorandumwas used
for illustrative purposes in the debate, but no one asked any

question or even seemed to notice the extensionof the 4" 10'
north red line 50 miles out at sea. When questioned about
Dutch possessions south of the boundary line, the government
referred to the text of the Boundary Convention andnot to the

Map.

(d) The British Government did not react to the Map, which was
an interna1Dutch documentused onlyfor illustrativepurposes

in the parliamentary debate.

(2) Legal consesuences of the ratification debate

2.60. The ratification debate gavean interesting indicationof the

view of the Netherlands Government and Parliament on the 1891
Boundary Convention. It certainly confirmed the opinion that the
Boundary Convention was only concerned with the land boundary

and the island of Sebatik. It added nothing to the text of the
Convention.

2.6 1. The Map attached to the Explanatory Memorandumdid not

appear as a "contemporary exposition by the Dutch Government of
the meaning of Article IV of the 1891 on vent ion ."ut'even if it
were so, it would be irrelevant for the interpretation of the 1891
Boundary Convention for the following reasons.

2.62. The Map cannot be considered as an element of the travaux
préparatoires. It was drawn unilaterally by one of the Parties and

81 IM, para5.5l., p88

40after the signature on 20 June 1891of the Convention. Itcan give
no indication as to the common intention of the Parties in the

drafting of the Convention.

2.63. The Map is certainly not anelement of the context within
the meaning of Article 31(2) (b) of the Vienna Convention on the
Law of Treaties. The Dutch Government or Parliament made no

attempt to incorporate it into the Treaty. The Dutch act of
ratification says nothingof the sort.8' The other Party did not accept
it as an instrumentrelatedto the treaty.

2.64. Indonesia's comparison with the Livre jaune rnap in the

TerritorialDispute (LibyanArab JamahiriyaKhad) casea3is not to
the point. The text of the Declaration of 1899 was "not free from
ambiguities.. .Different interpretationswere possible."" The Livre

jaune rnap was not annexed to the 1899 Franco-Britishdeclaration,
but the Parties repeatedly referred it to as if it had been annexed.
Speaking of the Franco-Italian exchange of letters of 1900, the

Court noted that "The rnapreferred to could only be the rnap in the
Livre jaune which showed a pecked line indicatingthe frontier of
~ri~olitania."~~ In the present instance, quite to the contrary, the

Parties never referred to the rnap after it was produced for the
purposes of the Dutch parliamentarydebate. Instead, they took the
opportunity of the first subsequent agreement to annex a very

different rnap illustrating their true common intention, as will be
shown.

2.65. There is no similarity with the ~ern~le'~ case either. The
interna1Dutch rnap was never the subject of negotiations between

the two Governments. The circumstances did not cal1 for any
particular reaction, as the rnap had not been mentioned in the

82
83 Annex IM 88, vol. 3, p. 225.
84 IM,para.5.52.,p. 90
85 I.C.JReports1994,p. 30 (para58).
I.C.JReports1994,p. 37 (para.61).
86 Temple of Preah VihearMerit I.,.JReports 1962,p. 6 at pp. 23, 32-
34.parliamentary debate and no one had noted the extension of the
boundary-line out to the sea. Moreover, the map wasnever used or
even referred to bythe Parties, either before ratificationof the treaty

or at a later stage, in the implementation and interpretation of the
Boundary Convention. The Parties, by their conduct, certainly did
not recognise the red lineon the interna1Dutch map as a boundary-
line. To the contrary, they forrnally agreed in 1915to a map which

showed that the boundary-line didnot run out to sea.

2.66. Indonesia insists on the considerations of stability and
finality as an important objective in boundary ~ettlernents.~'

Malaysia agrees. But there was no territorial dispute as to
sovereignty on islands beyond the land boundary in Borneo, either
westwards beyond Tanjong Datu with Sarawak or eastwards beyond

Sebatik with British North Borneo. No one could imagine a wild
claim fifty miles out at sea. The Boundary Convention, as drafted,
was considered by both Parties as a stable and final settlement and
proved so for nearly a century.

G. TheSubsequent1915Agreement

2.67. In Malaysia's opinion, the practice of the Parties to the

1891Boundary Convention does not qualify as subsequent practice
in the sense of Article 31 (3) (b) of the Vienna Convention on the
Law ofTreaties. That practice will be considered later. But Article
31 (3) (a) of the Vienna Convention considers that there shall be

taken into account, together with the context, "any subsequent
agreement between the Parties regarding the interpretationof the
treatyor the applicationof its provisions".

2.68. There is an important subsequent agreementthat must be
taken into consideration for interpretation of the 1891 Boundary
Convention: the 1915 Agreement. The Indonesian Memorial notes

that "Further clarifications of the line on mainland Borneo were
made by a subsequent Agreement of 1915 and by a 1928

87
IM, paras5.59ff.Convention between The Netherlands and Great Britain in

implementation of Article V of the 1891 onv vent ion."^^ The
Memorial adds: "Clearly, since the line had been determined by

reference to a parallel of latitude, its seawardextension did not cal1
for anyfurther precision, nor did circumstancesat sea allow for any

specific demar~ation."~~ In other words, it al1 but ignores the
subsequent agreement. But, contrary to what is asserted by

Indonesia, the 1915 Agreement alsoconcerns the boundary on the
Islandof Sebatik and eliminates anypossible misunderstandingas to

the meaning of Article nT of the 1891Convention.

2.69. Article V of the Boundary Conventioncalled for eventual
subsequent agreements to delimit the boundarybetween the Parties.

Britain and the Netherlands agreed that knowledge of Borneo was
scant in 1891 and that the boundaryshould be more fully explored

and determined by the Parties. ArticleV States:

"The exact positions of the boundary-line,as described
in the four preceding Articles, shall be determined

hereafter by mutual agreement, at such times as the
Netherland and British Governmentsmaythink fit."

2.70. Article V was used twice, in 1915 and 1928, to determine

the exact positions of the boundary-line. The first time was by the
Agreement signed in London on 28 September 1915 by Lord Grey

and R. de Marees van ~winderen.~' A problem had arisen in 1905
as to the interpretation of Article II of the Convention. The Dutch

Government disagreed with the BNBC as to the course of the
boundary inland from Broershoek. After investigation, the British
Government accepted the Dutch interpretation of Article 11.~'

Commissioners were later appointed to demarcatethe sector of the

- - --- -- - -
88 IM, para. 3.62., p. 28.
89 IM, para. 5.65., p. 97.
90
For the text of the Agreement, Annex IM 118, vol. 3, pp. 461-468
(without the rnap); Annex MM 27, vol.2, pp.104-108 (with the map); the map is
included in Annexes MM, vol. 5, Map 23.
91 Baron Gericke to Marquess of Lansdowne, 16 March 1905; Marquess of
Lansdowne to Baron Gericke, 18 October 1905. See Annex MCM 2,vol.2, pp.
13-10.boundary concerned. Astronomical observations and topographical

surveys were made, pillars were erected. The Commissioners
reported their agreed solutions in the Tawao Report of 1913; these
were incorporated in the 1915Agreement. The Agreementconcerns

the boundary-line between theState of British North Borneoand the
Netherlands possessions in the island, starting on the Westcoast of
the island of Sebatik and running inland on Borneo till it meets the

watershed between the Sedalir and the Sejasap rivers.

2.7 1. The Preamble of the Agreement states:

"His Britannic Majesty's Government and the
Government of Her Majesty the Queen of the
Netherlands have agreed in a spirit of mutual goodwill

to confirm the joint Report with the accompanying
map prepared by their respective Commissioners in
accordance with Article 5 of the Convention sipned at

London on the 2othJune 1891, for the delimitation of
the boundary line between the States in the Island of
Borneo which are under British protection and the

Netherland possessions in that island, and relating to
the boundary between the State of North Borneo and
the Netherland possessions in the island..."92

2.72. The Preamble is interesting in that it explicitly refers to
Article 5 of the 1891 Boundary Convention. It agrees on the joint

report with the accompanying map, which is an officia1 map,
annexed to the Agreement.

2.73. Paragraph 3 of the Tawao Report of 1913 concerns the
coastal boundary. It is ithe following terms:

"3. We have determined the boundary between the

Netherland territory and the State of British North
Borneo, as described in the Boundary Treaty

--
92 Annex IM 118,vol3, p. 464.

44 supplemented by the interpretation of Article 2 of the
Treaty mutuallyaccepted bythe Netherland and British
Governmentsin 1905astakingthe followingcourse:

Traversing the island of Sibetik, the frontier
(1)
line follows the parallel of 4" 10'north latitude, as
already fixed by Article 4 of the Boundary Treatyand
marked on the east and West coasts by boundary
pillars.

(2) Starting from the boundary pillar on the west
coast of the island of Sebetik, the boundaryfollows the
parallel of 4" 10' north latitude westward until it

reaches the middle of the channel, thence keeping a
mid-channel course until it reaches the middle of the
mouth of TroesanTamboe.

2.74. Paragraph 3 (1) confirms that the boundary line starts on
the east coast of the island of Sebatik, traversing the island

following the parallel of 4" 10' N. Whereas the 1891 Boundary
Convention line, for reasons analysed above, started on the east
coast at Broershoek andran both westwards,towards inlandBorneo,
and eastwards, across Sebatik Island, the 19 15 boundary-line more

logically starts with the eastemmost point, on the east coast of
Sebatik, and runs due west, through the Island of Sebatik, then
across to the coast and through mainland Bomeo. Nothing is said

about any continuation whatsoever of line eastwards into the open
sea. Reference to the "interpretation of Article 2 of the Treaty
mutually accepted by the Netherland and British Governments"
implicitly, but decisively, excludes any other mutually accepted

agreementin the vicinity. If the Netherlands had really believed that
such an agreementexisted in 1891to prolongthe line out to the sea,
that agreement would necessarily havebeenmentioned.

93 AnnexMM 25, vol. 2, pp. 95-96.

45 The rnap attachedto the 1915Agreement confirms that the
2.75.
boundary did not extend out to the open sea. It is an officia1map,
attached to the agreement and mentioned in the Preamble. It
represents the common intent of the Parties as to the exact location

of the boundary. The red dotted line representing the boundary
clearly starts from the east coast of the island of Sebatik and does
not extend to the sea. Beyond Sebatik, eastwards, the 4" 10'N
parallel is depicted by the same straight black lines as the other
parallels shown on the map. An extract from the officia1 rnap

attached to the 1915Agreement is shown on the following page, as
Insert4.

2.76. The importance of this rnap needhardly be underlined. It

certainly supersedes any alleged agreement to the intemal Dutch
rnap of 189 1. The text of the 1915Agreement and the officia1rnap
attached,in Malaysia's opinion, are conclusive.

2.77. Lfnecessary, the 1928 Boundary Convention confirms the
1915Agreement. Not that it adds anything to the text or themap. It
is only concerned with an inland sector of the boundary, from the
summits of Gunong Api to Gunong Raya. But itcertainly was
another opportunity, for the NetherlandsGovemment, if it had any

second thoughts, to correct the 1915 Map and Agreement, in
particular if it had considered the HNLMS Lynx cruise of 1921 as
calling for an affirmation of sovereignty east of Sebatik. But such
was not the case.

2.78. To sum up, the subsequent Agreementsof 1915 and 1928
are relevant to the issueof sovereignty over Ligitan andSipadan in
the following way:

The 1915 Agreement clearly interprets the 1891 Boundary
(a)
Convention as starting the boundary line on the east coast of
Sebatik Island and running Westalong the 4" 10' N parallel
with no extension east into theopen sea.(b) The officia1map attachedto the 1915Agreement, which is the
only officia1 map relevant to the case during the colonial
period, confirms that there is no boundary line beyond the

island of Sebatik.

(c) The 1928 Boundary Convention implicitly confirms the
conclusion, as the Netherlands did not take this opportunity to
raise any question as to the boundaryline so determined.

G. General Conclusions

2.79. The general conclusions regarding the 1891 Boundary
Convention can be summarised as follows.

(a) The boundary dispute between Great Britain and the
Netherlands concentrated on mainland Borneo and in
particular on the point on the east coast where the boundary-
line should start.

The only islands mentioned by the Parties before or during the
(b)
negotiations were the islands of Tarakan, Nunukan and
Sebatik and the "small islands belonging thereto" or
"adjacent", whichcould not by any standards refer to Sipadan
or Ligitan.

(c) The joint expedition by HMS Egeria, HMS Rattler and
HNLMS Banda in June 1891 was strictly limited by
instructions to survey of the rivers in the vicinity of
Broershoek and the Island of Sebatik, as shown by the reports

and the maps attached. Sipadanand Ligitan were surveyed,as
were other islands in the vicinity of Darvel Bay, but by a
strictly British operation beforehand.

(d) The natural and ordinary meaning of the 1891 Boundary
Convention clearly does not extend the boundary out to the

open seas.

(e) The ratification debate before the Netherlands States-General
at no point mentioned the disputed islands. The interna1
Dutch map attached to the Explanatory Memorandum was the object of no specificcomment during the debate and did not
cal1for anyparticular reaction.

(f) The subsequent Agreement of 28 September 1915 starts by
stating that the frontier line traverses the islandof Sebatik
following the parallel of 4" 10'N latitude markedon the east
and Westcoasts by boundary pillars, then follows the parallel

westward. The draftingis exclusive of anyprolongationof the
line eastward. The map referred to in the Preamble and
attached to the 1915 Agreement, which is the only officia1
map agreed by the Parties, confirms that the boundary-line

starts on the east coast of Sebatik Island anddoes not concern
Ligitanor Sipadan. Chapter 3

MALAYSIA'SRIGHTTOTHE ISLANDS

BASEDONACTUALADMINISTRATION

COMBINEDWITHA TREATYTITLE

A. Introduction

3.1. Chapter 7 of the IndonesianMemorial discusses the relations
between British North Bomeo, Spain and the United States. It seeks,

naturally enough in the context of the present dispute, to dismiss as
irrelevant such events as the voyageof the USS Quiro( sduring which
the United States expresslyclaimed sovereigntyover the two islands),

and such transactions as the 1878 Sulu grant, the 1907 Exchange of
Notes and the 1930 BoundaryConvention between Great Britain and
the United States. Malaysia's position on these transactions was set

out in Chapter 5 of itsMemorial, andmay beshortlysummarised:

(a) Before 1878, the Dutch Government expressly recognized "the
authority of Spain over the dependencies of Sulu in the north-

east portion of the island",' and an authoritative Dutch map of
the period clearly showed "Siparan" and "Legetan" as within
the dominion of ~ulu.~ This was a simple recognition of the

factual situation,since at no stage did the Netherlands nor its
vassal Bulungan exercise any authority to the east of Batu

Tinagat, and evensouth and westof BatuTinagat their authority
was largelyn~minal.~

(b) BNBC authorityover the territory covered by the Sulu grant of

1878 (extending down to the Sibuko River) was expressly
recognised by Spainin the Protocolof 7 March 1885.~

I Annex MM 40,vol. 3, 24.
2 MM, para. 5.8, p. 35 & Annex MM, vol. 5,3.ap
3 As the responsible DutchMinisters acknowlingthe Dutch Parliament:
MM, para. 5.8, p35& Annex MM 51,vol. 3, p. 8p.a91.
4 MM, para. 5.18 & Annex MM 15,vol2, p. 64.(c) The Sulu grant of 1878 did not extend to islands (such as
Sipadan and Ligitan) which were morethan 9 nautical miles
offshore, but in fact these islands were administered by the

BNBC and were occupied and used by Bajaus who transferred
their allegiance from the Sultanof Sulu to theBNBC.~

(d) Although Spain never insisted on the 9 nautical miles limitation
in the grant of 1878, the United States did so, and it laid claim
to the islands as successor to Spain after 1900, both by

performance of ceremonial acts on the i~lands,~by a map,' and
in diplornatic correspondence with ri tain.' United States

sovereignty was acknowledged by Britain in the Exchange of
Notes of 1907 and accompanying map,9 but the BNBC
continued to administer them with the agreementof the United

States.

(e) This situation continued until the Anglo-AmericanConvention

of 1930,which rectified theline dividing their respectiveisland
possessions, and retroceded to Britainal1the islands, covered
by the 1907 Exchange of Notes, which layto the Westand south

of the line drawn by that ~reat~." Sipadan and Ligitan lay to
the Westand south of that line.

(f) The BNBC, Britain and Malaysia have continued to administer
the islands ever since 1930. There was no protest from the
Netherlands or Indonesia to this administration until thedispute

suddenly broke outin 1969."

3.2. Nothing in the Indonesian Memorialcasts any doubt on these
conclusions. Relianceupon definitions of the Sulu Archipelago,in an
attempt to show that the sultan of Sulu had no claims to the two

5 MM, paras. 5.19, 5.28,5.31-5.34, 6.5-6&8documents therereferred to.
6 MM, paras. 5.24-5.29, pp. 43-48.
7 Annexes MM, vol. 5, Map 5.
8 Annexes MM 65-67, vol. 3, pp. 167-170;MM, paras. 5.36-5.38, pp.52-55.
9 Annexes MM, vol. 5, Map 6.
1O Annex MM 29, vol. 2, pp. 116-124;MM,paras. 5.34-5.44, pp. 51-58.
II MM, para. 4.3, p. 27; IM, Ch. VI11deals with the negotiations, and the
element of "surprise", at length. The impartial reader will observe (a) that it was

Malaysia's delegation which was surprised and unready to counter a new and
previously unheard of claim, and (b) that who was surprised by whom in 1969 no
longer matters.islands, ignores the fact that, in addition to his control over Sulu
itself, the Sultan claimed allegiance over a significant portion of the

north and east coasts of Borneo, at least down to the Sibuko River, as
well as the fact that the local people acknowledgedtheir allegianceto

the Sultan. In particular, Malaysia demonstratedin its Memorial the
allegiance of the Bajaus of Danawan and surrounding islands to
~ulu.'~ Individualson Danawan had andexercised the rightto collect

turtle eggs on sipadan.13 That right had beengranted and confirmed
by the Sultan of Sulu. Following the Sulu grant of 1878, and the
effective takeover of Sulu by Spain later in the same year, their

allegiance was transferred to theBNBC.'~ The east Coastsettlements
of the BNBC - including Sandakan, Lahad Datu, Semporna and,
after 1892, Tawao - became the new focus of the trade and

administration of the localBajaus. The captain of the Quiros noted in
1903that disputes over turtle egg collectionon Sipadan were taken to
the BNBC Resident at Lahad~atu."

3.3. Faced with detailed evidence of this kind, as well asevidence

of international transactions (specifically affecting the islands off
Semporna) between the BNBC under British protection, Sulu, Spain
and the United States, Indonesia's repeated reliance on the 1891

Boundary Convention is merelyconclusory. There is not the slightest
evidence that any of the actors (including the Netherlands itself)

considered that Convention to have any relevance to the islandsoff
Semporna, including the two islands in dispute. In the years after
1878,these were incontrovertibly partof the social and administrative

system of Darvel Bayand surroundingislands, including Si Ami1and
Danawan. The 1891 Boundary Convention was wholly irrelevant,
and remained so until it became the focus of the Indonesianclaim in

1969.

The Indonesiancounter-argumentswill bebrieflydealt with in
3.4.
this Chapter, first in relation to the SuluISpanishperiod before 1900,

-- -
12 MM, paras. 6.5-6.7, pp. 61-64.
13 MM, paras. 6.9-6.21,pp. 65-68.
14 MM, para. 5.7, pp. 33-34 & para. 6.5, pp. 61-63.
15 MM, para. 5.28, pp.47-48.then in the context of the relations between Britainon behalfof North

Borneo and the United States.

B. The East CoastIslandsof Borneo,Sulu and Spain

3.5. An initial point of agreement between the parties should be
noted. There is no suggestion that anyof the islands off the east coast
of Borneo were, or were ever treated as, terra n~llius.'~ They were

part of the socialsystemof the localpeople, andthere was at al1times
a social and political organization including those people, within the
meaning of that term as expressed by the Court in the WesternSahara

advisory opinion." Thus when the Sultan of Sulu granted to the
promoters of the BNBC al1 the islands within 9 nautical miles (3
marine leagues) of the coast, it was not because the islands outside

that line did not belong to him; on the contrary, they were formally
reserved from the grant.

3.6. The parties also agree thatSipadan and Ligitan fell outside the
terms of the Sulu grant of 1878 because they were outside the 9
nautical mile line.18 But these seem to be the only points of

agreement in the present case, and it is to the points of disagreement
that we must turn.

(i) The extent of the Sultanateof Sulu before 1878

3.7. It is not necessary for present purposes to discuss the earlier
acquisition by Sulu of its possessions on orneo o .'he fact of those

possessions was noted by Spain inthe Capitulations of 1836,~'and it
was also clearly recognised by the utc ch.^ The only point to note
here is that the controversy related to the competing claims of the

Sultan of Brunei: there is nowhere in any of the papers or records of

16 IM, para.4.1, p. 37.
17 ICJ Reports 1975p. 12.
18 IM, para.7.4, p.130;cf. MM, Insert 8, p. 39.
19 See IM, paras.4.29-4.30, pp.46-&7MM, para. 5.5, pp. 31-32.
20 AnnexMM 1, vol. 2, pp. 1-3.
21 MM, paras. 5.8& references.the time any suggestion that theSultan of Bulungan had anyclaim or
interest in islandsoff the Sempornapeninsula.

3.8. In 1878, the Sultan granted to the BNBC's promoters al1the
east coast of Borneo and offshore islands within9 miles, down to the

Sibuko River. The sketch map in the Indonesian Memorial is
misleading, since it only shows the 1878 grant extending down to

Sebatik, approximately at 4"10'~.~~This is an anachronism: in fact,
of course, the 1878grantextended considerablyfurther south. It was
in response to that grant and to the subsequent extension of BNBC

administration on the east coast that the Dutch laid claim to Batu
Tinagat. But the Dutch claim expressly did not extend anywhere to
the east of Batu Tinagat, and certainly not to islands off (what

became) ~em~orna.~~Dutch and British maps of this period, showing
the area in dispute, are entirelyconsistent and clearon this point.

3.9. Indonesia asserts, first, that the Sultanate of Sulu did not have

any claim to the i~lands,~~ and secondly, that those islands were part
of the (Dutch) Sultanateof ~ulun~an.~~

The first proposition is belied by the evidence of actual allegiance

of the local people (in particular the Bajaus of Si Ami1 and
Danawan) to SU~U,~ a~well as by Dutch mapsand statements2' It

should be noted that in 1891, the Netherlands accepted the effect
of the 1878 grant in relation to the northern half of Sebatik itself
and areas inland, and this was consistent with earlier Dutch

recognition of the Sulu dominions in northeast orneo o.^ Th^e
4" 10'Nline was only adopted after agreementhad been reachedon
Broershoek asthe place on the coast where the boundaryacrossthe

22 IM, Map 3.1, opposite p. 14. See, more accurately, MM, p. 39.
23 See MM, para. 7.3, p. 73.
24 See e.g. IM, para. 7.4, p. 130.
15 SeeIM, Map 4.2, opposite p.54 (though even thisis equivocal).
26 See MM, para. 5.7, pp. 33-34.
27 SeeMM, para. 5.8,pp. 34-36.
28 Indonesia argues (IM, para.7.36, p. 141) that the two islands in dispute do

not liebetween" Mindanao and Borneo within the meaning of Article IIof the
1885 Protocol. But ArticleIIhas to be read in its context, having regard to its
reference to the islands administered by the BNBC which were or had been part of
the Sultanate of Sulu. See below, paragraph 3.11. mainland could start. Picking on Broershoek was an obvious
compromise between overlapping claims: the British did not press
the BNBC claim between Broershoek and the Sibuko River; the

Dutch withdrew their earlier claim to territory between Broershoek
and Batu Tinagat. The 4'10'N line was a further compromise so
far as concerned Sebatik itself, in order to ensure that each party

had access by sea to their respectivecoasts behind Sebatik. None
of this had anythingto do with offshore islands much furtherto the
east, which the Dutch had earlier recognised, and continued to
recognise, as part of the dominions of Sulu/Spain, to the extent

that they were not partof North Borneo itself.

As to the second proposition, the Indonesian Memorial produces
no single item of evidence linking the two islands, or any other

island east of Sebatik, to Bulungan. No single person from, or
owing allegiance to, Bulungan is named in the Indonesian
Memorial as having had any association with these islands;

compare the many individual Bajaus named in the Malaysian
Memorial and referred to inthe annexes and in the literature. No
single document is cited which mentions the islands by name in
terms which indicate that they were claimed by Bulungan or the

Netherlands. For the crucial Dutch period, Indonesia confines
itself to the statement that Sipadan and Ligitan were among the
"small islands belonging thereto" (i.e. to Sebatik), referred to in

the Dutch contracts with Bulungan of 1850 and 1878.~' This is
mere assertion. Malaysia attaches to this Counter-Memorial a
report by a reputable Dutch historian of the Netherlands East

Indies, dealing with the status and extent of the Sultanate of
~ulun~an.~~ The report makes it clear that Bulungan in the
nineteenth centurywas a small land-based sultanate, with no claim
to effective control over the islands off the Semporna peninsula.

The same conclusion follows from the Dutch map of 1913, based
on an administrative decision establishing the boundaries of
districts in East Bomeo. The district based on Bulungan stops at

the east Coastof ~ebatik.~'

29 IM, para. 4.66, p. 58 &para, 4.70, p. 59.
30 See below, Appendix 1, Pr0f.dr.V.J.H. Houben, "The Regional History of
Northeast Borneo inthe NineteenthCentury (withspecial reference to Bulungan)".
31 See below,Insert 12,p. 106. 3.10. In its Memorial Indonesia relies on various definitions of the
"Sulu Archipelago" whichin its view exclude the disputed islands.
,
The argument proves too much, since it is clear that the Sulu
Archipelago as a geographical entity did not include Borneo or

adjacent islands, yet everyone at the time accepted the existence of
Sulu dominions there. Throughout the nineteenthcentury, the British
Government insisted on the distinction between theSulu Archipelago

itself and Sulu possessions on the island of Borneo, and made itclear
that, even ifit came to recognise Spanishclaims to the Archipelago, it

would not allow Spain to acquire any part of Borneo. This can be
seen by a brief examination of the documents and definitions on
which Indonesianow relies.

3.11. The first of these is the 1836 Capitulations of Peace,

Protection and Commerce between Spain and SU~U.~~Indonesia
remarks that the definition of Sulu given in Article 1related only to
North Borneo, and that the islands in dispute lie "well to the south

and West of any areas that could realistically be considered to lie
between Mindanao and the North Borneo mainla~~d".~~ But Article 1
of the Capitulations makes no reference to "North Bomeo" at all: it

would have been anachronistic to do so. Rather Article 1refers to
"the islands situated withinthe limits of the Spanish juri~diction"~~ as

including the area which extends, "...... from the western point of
Mindanao (Mangidanao) to Borneo.. ., with the exception of
Sandakan and the other countries tributary to the Sultan on the

continent of ~orneo"~'(emphasisadded). Nothing is said in Article 1
about how extensive these Borneo territories are, but they are al1

excepted from the scopeof the Capitulations. Indonesia also ignores
the contemporaryevidence of Hunt that at this time there was a Sulu
province of Tirun to the south of Mangidora, and also to the south of

the Sibuko ~iver.)~

32
33 Annex MM 1,vol. 2, pp. 1-3.
IM, para.7.24.p.136
34 Annex MM1, vol.2,p. 1.
3.5 Ibid.
36 See the passage from Hunt's account (1837), cited in MM, para. 5.4, p. 31
and for the complete account, AnnMM 34, vol. 3, 1.3.12. Secondly, Indonesia relies on Articles 1-3 of the 1885
Protocol to show that "Sipadan and Ligitan did not constitute part of

the Sulu ~rchi~ela~o"." Again this confuses the Sulu Archipelago as
a geographical entity and the extent of the dominions of Sulu. The
fact that the Sultan did not grant islands beyond 3 marine leagues to

the BNBC did not mean that he did not claim or own those islands, or
that the islands were partof the SuluArchipelago in the geographical
sense. There could have been, andwere, islandsadjacent to the Coast

of Borneo which were not granted to BNBC in 1878: Danawan itself
was in that category, yet no one has suggested that it was part of the
Sulu Archipelago. It should be stressed that Articles 1-3 of the 1885

Protocol constitute an express recognition by Spain of the extent of
the BNBC's territory in Borneo based on the Sulu grant of 1878. In
other words, Spain expressly recognised theBNBC's control down to

the Sibuko River. If BNBC territory extended so far south, no one
could possibly have arguedthat two small islands in Darvel Bay had
sornehow been reserved for the ut ch.

3.13. Thirdly, Indonesia relies on the limited definition of the Sulu
Archipelago in a Spanish encyclopediaof 1927.~~In accordance with

that definition, the Sulu Archipelago lay well to the east. Again the
definition seems to refer to the archipelagoas a geographical and not
a political entity, and it was certainly not concerned with the Sulu

provinces on Borneo 50 years earlier. Spain itself had no doubts that
the Sulu dominions extendedto Borneo, as witness its attempt to take
Sandakan in 1878.~~

3.14. The clear distinction drawn in the State practice and treaties
between the Sulu Archipelago and the Sulu possessions on Borneo is

in the end conceded even by Indonesia. It concludes by asserting that
"Sipadan and Ligitan... never forrned part of the Sulu Archipelago,
and they were not part of the Sultan of Sulu's Bornean dominions

eithe~."~' Malaysia agreeswith theformer proposition: it isclear that

37
IM, para. 7.29, pp. 138-139. For the 1885 Protocol see Annex MM 15,
38l.2, pp.64-66.
39 IM, para. 7.24. p. 136.
As to whichsee MM, para. 5.17, p40.
JO IM, para. 7.25, p. 136(emphasisadded).Sipadan and Ligitan, like Danawan, Si Ami1 and Omadal, were

corisideredat the time as appurtenantto Borneo and not as part of the
Sulu Archipelago it~elf.~' But the Indonesian Memorial does not

begin to demonstrate the latter proposition, andthe evidence adduced
by Malaysia clearly contradicts it.

(ii) The effect of the Grantof 1878and theConfirmationof 1903

3.15. As to the Sulu grantof 1878, Indonesia contents itself with
noting that the two islands in dispute fell outside the scope of that
grant, because they were more than 9 nautical miles offshore.42 It

goes on to stress the significanceof the administrative boundaries of
North Borneo, as shownon Stanford'smap of 1903.~~That map will

be dealt with in Chapter 5:44 for present purposes it is enough to note
that (despite Indonesia's claims to the contrary) the map shows
Ligitan as within the administrative boundary of Elphinstone

Province. It is true that Sipadan is shown as outside that boundary,
but it is not shown as Dutch, and in fact it was administered (as were

the islands in the Ligitan group) from the provincial administrative
centre, Lahad Datu. Later maps do not show the administrative
boundary of the Lahad Datu district with any form of southerly

closing line,45and Sipadanwas specifically includedin administrative
maps issued by North Bomeo for such relevant purposes as the

protection of turtles and wild life.46 It may also be noted that the
Dutch administrative map of 1913 shows the district of Bulungan as

stopping at the east coast of Sebatik, and makes no attempt to portray
the islands to the east around~em~orna.~~

41
The distinction is made by Hunt in his account of Sulu (1837) quoted in
MM, para. 5.4, p. 31; see Annex MM 34, vol. 3, p. 2. Hunt refers to the Sulu
province of Mangidora (including P. Gaya and P. Sipadan), and notes that the
province extends "towards the Su10Archipelago in a long namow point named
Unsang, or cape Misfortune" (emphasis added). See also the sketch map above,
opposite page 1.
42 IM, para. 7.10, pp. 131-132.
43 IM, paras. 7.13-7.14, pp. 132-133& Map 6.4, opposite p.118.
44 See below, paras. 5.10-5.11.
45 See below, paras. 5.21, (b), (d), (f).
46 See e.g. MM, Annexes, vol5,Maps 13 & 18.
47
See below, para. 5.15, and Insert 12,at p. 106.3.16. Indonesia also deals briefly with the Sultan of Sulu's

"~onfirmation" of 1903. It argues that it did not extend to Sipadan
and Ligitan since "al1of the islands mentioned in the confirmation lie
to the north of the4'10'N line of latitude".48 This of course begs the

question. The Confirmation made no mention of the 4'10' N line or
of the 1891Convention. It listed only inhabitedislands, includingthe
two in the Ligitan group, but it also referred to "the other islands that

are situated alongside,or round or between the islands that are above
mentioned". In fact the 1903 Confirmation (the legal validity of
which was not recognised by either the United States or the British
Government) coincided with the voyage of the Quiros and the express

United States' claim to, intea rlia, Sipadan and Ligitan, and it was .
one of the events leading to the 1907 Exchange of Notes. It was

explained in the letter of the BNBC Chairman to the Foreign Office
of 13 July 1903,~'which contained a plea to the United States "to
instruct their local officials to remove the flags and tablets they placed
on islands which, notwithstanding anything else, have been under

British jurisdiction for nearly a quarter of a century". The map
accompanying the Chairman's letter of 1903~'described the "red
line" which later appeared on the map annexed to the 1907Exchange

of ~otes.'' There can be no doubt from this series of events that the
1903 Confirmation - and much more importantly, the 1907
Exchange of Notes - was considered as covering Ligitan and

Sipadan.

C. Transactions between Britain(on behalf of NorthBorneo)
and the United States

3.17. Evidently, if Spain had no rights over Sipadan and Ligitan in

1898,there was nothing it could have transferred to the United States
by the Treaties of 1898 and 1900. Conversely, if Spain had such
rights, or if its earlier claims to the Bomeo islands beyond 9 nautical

miles had been lost by reason of the BNBC's uncontested

48 IM, paras. 7.16, p.134 & Map 7.1 opposite p. 134.milar effect, IM,
para. 7.58, p. 148.
49 Annex MM 59, vol. 3, pp. 131-133.
50 Malaysia has made extensive efforts to locate the 1903 map, without
success. It appears to havene missing from the relevant archive in the 1920s.
There is however no doubt as to its effect, due to the annotation on the map
accompanying the 1907Exchange of Notes, which makes express reference to it.
51 MM, Annexes, vol. 5, Ma6.administration of the islands after 1878,then any possible claim of
the'Netherlands was already doomed to failure. Nothing that has
happened since 1900 could possibly have strengthened a Dutch or

Indonesian claim to the two islands. Neither the Netherlands nor
Indonesia have ever administered the islands. Nor (priorto 1969)did
either government protest at their administration as part of North
Borneo and later Sabah. To that extent, itis possible for the Court to

dismiss the Indonesian claim without considering the relations
between the BNBC, Britainand the UnitedStates after 1900so far as
they concerned the two islands. In the first place, Indonesia's claim

to the islands depends on its showing (a) that the Netherlands had,
through Bulungan, a valid claim to the islands before 1891, and (b)
that the Netherlands retained sovereignty over themunder the 1891
Boundary on vent ion I.'^act it can show neither, for the reasons

already given,and itsclaim must accordinglyfail.

3.18. Nevertheless, the relations between the BNBC, Britainand the

United States are significant for the present case, and Indonesia
devotes considerable space to them in its ~emorial.~~ From
Malaysia's pointof view they are significant for two reasons:(a) they

provide excellent, detailed evidence of the continued actual
administration of the islands from North Borneo; and (b) in the event,
the title of Malaysia to sovereignty over the two islands arose as a
result of those transactions, and specifically the Treaty of 1930.

Correspondingly, Indonesia seeks to explain them away. In
particular, three general issues are contestedby Indonesia and require
to be dealt with.

52 Although it is necessary for Indonesia to establish these two propositions,
it is not sufficient for it to do so. Even if the Netherlands had maintained a claim to
the two islands before 1891, and that claim had survived theBoundary Convention,
it would in Malaysia's view have been lost as a result of the long-standing
acquiescence of the Netherlands and Indonesia at British and Malaysian
administration of the islands in the period from 1891 onwards. That administration
was not carried on by agreement or license from the Netherlands, and thus
constituted adverse possession.
53 See IM, paras. 3.63-3.70, 7.30-7.61.(i) The extent to which the United States succeeded to Spain
under the Treatiesof 1898and 1900

3.19. It is common ground that the allocation lines laid down in the
Treaty of Paris of 1898 did not include the North Borneo is~ands.'~
The deficiency was soon realised and addressed in the Treaty of 7

November 1900.~' Indonesia argues that the Treaty of 1900covered
only Cagayan Sulu and Sibutu and their dependencies.56 But this
clearly misdescribes the 1900Treaty, which applied "to any and al1

islands belonging to the Philippine Archipelago.. . and particularly to
the islands of Cagayan Sulu and Sibutu and their dependencies"57
(emphasis added). The intention of the 1900 Treaty was to mop up
al1the Spanish islands in the region which were not within the lines

laid down in the Treaty of Paris. For example, it intended to cover
the Turtle Islands, which were also administered by the BNBC and
which were alsonot mentionedby name in the Treaty of 1900.

3.20. Indonesia cites Secretary Hay's letter of 3 April 1903 as
showing that the US made no claim to other islands beyond Cagayan

Sulu and sibutu,'* but again this is not what the document says. It
correctly identifies Sibutu as "the most southwesterly of the Sulu
group proper" but notes that there were other islands, not part of "the

main Archipelago" which were also outside the 3 marine league line
from the coasts of Borneo and therefore remained subject to Spain
after 1885. After analysing the various 191hcentury treaties, it

concluded that Spain was cornpetentto, and did in fact, cede to the
United States "the whole of the Sulu Archipelago up to three marine
leagues of the mainland coasts of British North Borneo, with the

exception of the three named islands of Balambangan, Banguey and
Malawali". In referring to "the whole of the Sulu Archipelago" in
this passage, SecretaryHay was using the phrase in a broad sense, as
compared with "the Sulu group proper.. . the main Archipelago". He

thus agreed with the view of the Secretary of the Navy that "the

54 For the Treaty of Paris see Annex MM 19, vol.2, pp. 74-80. For a sketch
map showing the effect of the 1898line see MM, p.
55 For the Treaty of 1900see AnnexMM 21, vol. 2, pp. 85-86.
56 See IM, paras. 7.32-7.33, p.140.
57 Annex MM 21, p.86.
58 IM, paras. 7.34-7.36, p. 141. The letter is at Annex IM98, vol. 3, pp. 311-
329; also Annex MM 55, vol. 3, pp. 115-129. It is analysed in MM, para. 5.24, pp.
43-45.sovereigntv of the United States covers al1outlvina islands, islets and
reefs that lie more than three marine leanuesfrom the coast of British

North Borneo, except the islands of Balambangan, Banguev and
~alawali".~~ It was on this basis that the Navy's Hydrographic
Office in June 1903 prepared the map "NorthernShore of Sibuko
Bay", which clearly shows Danawan, Si Amil,Ligitan and Sipadanas

"under the sovereigntyof the United States of ~merica".~' Far from
showing, as Indonesia argues, thatSipadanand Ligitan, not beingpart

of the Sulu Archipelago,"could nothave passed to the United States"
under the Sole Article of the 1900 Treaty, the Hay letter shows
precisely the contrary. And whatever definition might begiven to the

"Sulu ~rchi~ela~o",~'the United States did in fact claim al1these
islands, as the 1903map shows.

3.21. Even if the various islands had not passed under the 1900
Treaty (because they should not have been considered as part of the
Philippine Archipelago even in the extended sense of the 1900

Treaty), the islands werenot relinquishedby the United States,which
was the territorial successor to the Philippines and had al1 rights
which Spain had as successor to the Sultan of Sulu. The Turtle

Islands are not part of the Sulu or Philippine Archipelagos in
geographical terms, yet they wereclearly treated ascoming within the
scope of the Treaty of 1900, and they ended up as part of the

Philippines. No islands in the vicinity were left to Spain, or became
terra nulliu in 1900. Moreover if the United States was to be

considered as having relinquished the islands by the treaties of 1898
and 1900 (which it did not, aswitness the voyage of the Quiros), the
islands would not have accnied to the Netherlands. The only relevant
later action by the Netherlands was the 1915 Agreement, which

confirrned that Dutch territory ended at the east coast of Sebatik. By
contrast the BNBC administered the islands,as did its successors in

title. They, not theNetherlands, wouldhavebeen the beneficiariesof
any relinquishment or abandonmentbythe United States.

59 Ibid., p115(underlining in original).
60 See MM, Map Annex,Map 5.
61 In fact the Treaty of 1900 did not use the phrase "Sulu Archipelago".
Ratherit referred to "any and al1islands belonging to the Philippine Archipelago,
lying outside the lines described inIII"of the Treaty of Paris.(ii) The voyape of the Quirosand the 1907Exchanne of Notes

3.22. Of course there was no relinquishment, but a vigorous
assertion of legal title on the part of the United States, which was
rapidly accepted and acknowledgedby Great Britain. Faced with this,

al1 that Indonesia can Say is that "[tlhe United States therefore
mistakenly claimed sovereignty over certain islands outside the three-

league limit from the Coastof British North ~orneo".~* The term
"mistakenly" is not explained. The United States acted on a
considered and entirely defensibleview of the legal position resulting

from the Treaty of 1900,and the only other State claiming an interest
in the matter, Great Britain, immediately agreedwith its vie^.^ ^ he
two States then took action, completed in 1907, to formalise the

administrative status quo. As Malaysia showed in its ~emorial,~~
these actions were made public at the time and elicited no protest
from the Netherlands. It is true that Britain and the United States did

not "evoke - as relevant to the discussions - the 1891 on vent ion".^^
There was absolutely no reasonwhythey should have done, and if the

Netherlands had thought the Convention relevant to the events
occurring well to the east of Sebatik, it should have said so. But it
remained silent.

3.23. As to the voyage of the Quiros, Indonesia is evasive. It

accepts that Lt. Boughter landed on and claimed Sipadan for the
United States, but suggests that there is no record of him actually

stopping on ~i~itan.~~Even if that may be true, the Quiros clearly
included Ligitan in the scope of its inquiries and described it in some
detail: it was expressly includedin the United States claim, as shown

by the log of the Quiros and the 1903 Hydrographic Office map.

62 IM, para. 7.39, p.142.
63 Indonesia states that "[e]ventually, the British Government came around to
the U.S.position..",referring to a British Memorandof10 March 1905 (Annex
IM 109, vol 3, p. 407).The Memorandum, however, makes it clear that Great
Britain recognised the validity of USe position "in the summer of 1903", i.e.
immediately following the voyage of Quiros There was nothing eventual about
it.
€4 MM, para. 5.41,~. 56.
65 IM, para. 7.43, p. 144.
66 IM, para. 7.40, p.142.Indonesia also admits that the BNBC "was informed of the Quiros'

visit to the Turtle islands and other islands off the port of Sandakhan
[sic] and protested..."67But of course the BNBCwas informed about
the visit to the islands around Darvel Bay, including Sipadan, and

protested those as we11.~~ The fact of the BNBC's actual possession
of the islands was disputed neither by Great Britain nor the United
States (and itis evident fromthe log of the Quiros itself9). What was

disputed was its having acquiredsovereigntyover islands beyond the
nine mile line, and on that point Britain sided with the United States,
not the BNBC. It is not for Indonesia now to assert that the views of

the relevant actors were "mistaken".

3.24. Indonesia has little to Sayabout the 1907 Exchange of Notes
itself, which is rather surprising given the clear purport of the
annexed map'' (especially when it is read against the Hydrographic

Office map of 1903~').Indonesia makes only twopoints:

m, it seeks to set against the 1903and 1907maps a large scale

1902 map of the Philippines, which was tendered by the United
States in evidence in the Island of Palmas case as showing the
extent of the Philippines administrativedepartments in that year.72

It is far fromclear what isto be drawn from the 1902United States
map. Neither the Turtle islands nor the Darvel Bay islands beyond
9 n.m. from the Coastare shown as falling within the Department

of South Philippines, but that is hardly surprising. In 1902 those
islands were administered as of right by the BNBC, and had been
for some years. It was only later that it seems to have occurred to

the United States that it had a claim to additional Bornean islands
beyond the 9 n.m. line. The Secretaryof the Navy only raisedthat
issue with the Secretary of State on 14 March 1903.'~ But

whatever the purport of the 1902 map, it cannot be considered as
affecting the actual transactions of the period 1903-1907, in
particular the Exchangeof Notes and its annexed, agreed,map.

67 IM, para. 7.44, p. 144.
68 See MM, paras. 5.3& 5.31, pp. 48-49 with references to relevantBNBC
protests.
69 See MM, paras. 5.27-5.29, pp. 47-48, AnnexM63,vol.3, p. 138.
70 MM, Annexes, vol.5, Map 6.
71 MM, Annexes, vol.5, Map 5.
72 IM, para. 7.46, p.145; the mapis in IM, Map Atlas, Map 8.
71 See AnnexMM 55, vol. 3, p. 115. Secondlv, Indonesia stresses the provisional character of the 1907
arrangement, and asserts that "any ambiguity concerning the

division of the territorial possessions of Great Britain and the
United States was definitively settled" by the 1930 onv vent ion.^^
But the 1907 Exchange of Notes is not to be ignored because it

was later replaced by a different and more permanent territorial
settlement. It showed, definitively, that the affected islands were
administered by the BNBC; it permitted themto continue to be so
administered. It resolved doubts about sovereignty over those

islands (even though precisely whichislands fell within the 9 n.m.
line remained uncertain). Its publicationcalled for a protest by the
Dutch, ifthey had claimed islands affected by it. And itprovides

an essential basis by which the final disposition of the islands in
1930 is to be understood. In al1 these respects it supports
Malaysia's claim tothe islands.

(iii) The 1930 Boundary Convention between the United States
and Great Britain

3.25. Finally there is the 1930Convention it~elf.~'Read in its own

terms, and against the background of the transactions of 1903-1907,
the Hydrographic Office Map of 1903and the agreedmap of 1907,its
effect is perfectly clear. It specified in ArticlII that "al1islands to
the south and west of the said line shall belong to the State of North

Borneo". Sipadan, Ligitan, Danawan, Si Ami1and Mabul (al1lying
outside 9 n.m. from the Coastof Borneo) were plainly affectedby it.
It is true, as Indonesia notes, that the southern-mostpoint on the 1930

line is well north of4" But this is because there were no islands
the United States wished to retain which fell south or Westof the
1930 line. If "there was no question of any possible claim of the
United States to the islands in issue in this case"," this was because

those islands, previously administered under license pursuant to the
1907 Exchange of Notes, were relinquished to North Borneo. In
1903, as we have seen, there was a clear and explicit claim by the

United States to those very islands.

74 IM, paras. 7.50-7.5 1,p.146.
75 See Annex MM 29, vol. 2, p. 116,and MM, paras. 5.43-5.44, pp. 56-58.
76 IM, para. 7.55, p. 147.
77 Ibid.3.26. The effect of the 1930line was wellunderstood at the time.
In an Admiralty memorandum of July 1927,the contemporary legal

situation was analysed, so far as relevant, in the following terms:
"under a strict application of the Madrid Protocol [of 18851,such
islands as Mantabuan, Puan, Boheian and the Ligitan Group would

fa11to America, while if such 'contiguous'islands as Bum-Bum are
accepted as the base of the 9 mile zone, the boundary would be
extended eastward to include Puan within Britishterritory, whilesuch

islands as Boheian and the Ligitan group would be of doubtful
ownership (asPu10Gaia would be in the previous case),the boundary
of the 9 mile zone passing through them"78. The negotiators of the

1930Convention soughtto resolve such ambiguities, with theUnited
States insisting on Great Bakkungaan and the Turtle Islands, and

leaving the smaller North Borneo islands (including Sipadan and
Ligitan) to Britain. It is significant that the author of the 1927
memorandum was inno doubt on two points: (a)that the sovereignty
over such islands as the Ligitan group was at stake; and (b) that the

only relevant parties were the United States and Great Britain: "any
territory which cannot be shown to be British is definitely
~merican".~~ Subsequently, the Admiralty notedthe effect of the

actual lineproposedfor the 1930Convention,in the followingterms:

"Even taking that interpretation of the 9 mile limit

which is most advantageous to theBritish North Bomeo
Company, the balance of gain and loss involved in
accepting thisline wouldbe as fo1lows:-

The United States would receive Great Bakkungaan
Island, which may be claimed as
belongingto British NorthBorneo,

but

British North Borneo would receive Buaning,
Lankayan, Mantabuan, Mataking and

Ligitan Islands, to none of which she
has anyvalid~laim."~'

78 See Annex IM 123,vol. 4, pp. 51-64 at p. 62.
79 Ibid. at 51. It may be noted that the chart cuttings used to illustrate the
1927 Admiralty memorandum show the 1891 boundary stopping at the east Coastof
Sebatik.
80 See vol. MCM Annex 3,p.18.3.27. In the light ofthese contemporary views, Indonesia's modem
sketch map illustrating the effect of the 1930 Convention is, again,

purely con~lusor~.~' Its Map 7.3 shows the 1930 line and what is
described as the "1891 Convention line", reaching as far as 119"E.
But there was of course no 1891 Convention line eastwards of
Sebatik; there was only a line on a Dutch internal map, not opposable

to the United Kingdom and (asfar as appears)completelyunknown to
the United States. Moreover the line on the Dutch intemal map is
considerably shorter than that shown on Map 7.3; if Indonesia wishes
to continue the 4"10'N line in aneasterly direction acrossthe sea, it is

far from clear why it should stop at 1lgOE,just after Ligitan. Such a
line is a pure post hoc construct, which formed no part of the
intentions of the parties to the 1930Convention (any morethan it did
for Britain and the Netherlands when they concluded the 1891

Convention).

3.28. The point may be tested in the following way. If Indonesia is

right, what are the consequences for the group of five islands
(Kapalai, Danawan, Si Amil, Ligitan and Sipadan) which lie to the
south of the 1930 Convention line, but more than 9 n.m. from the
Coastof Bomeo? According to Indonesia, the United States had no

claim to any of those islands, and did not intend to transfer
sovereignty over them to North Bomeo. It would follow, apparently,
that Kapalai, Danawan and Si Ami1were left as terra nullius. But if

those three, why not Ligitan and Sipadan? The United States had no
knowledge of the internal Dutch map, and no intention to cede any
islands to the Netherlands in a Convention to which the Netherlands
was not a Party. There is no basis in the 1930 Convention for

distinguishing three of these islands from the other two. The
Indonesian claim lacks al1logical and legalfoundation.

D. Conclusion

3.29. Indonesia's arguments in Chapter 7 as to the effect of the
various transactions between the BNBC and Britain, on the one hand,
and Sulu, Spain and the United States, on the other hand, depend in
the final analysis upon the proposition that the territory of Bulungan

81
IM, Map 7.3,opposite pag146.in 1890 extended to the islands off the Coast of the Sempoma

peninsula, including Sipadan and Ligitan. There is absolutely no
evidence that any of the actors at the time considered that possibility.
The Dutch claim which led to the 1891Convention repeatedly made

itclear that Batu Tinagat was "the extreme easternmost point" of its
~laim.~~Nor is there the slightestevidenceof any actual Bulungan or

Dutch administration of the two islands, or of any other islands in the
vicinity, before 1891. This is notjust the familiarquestion83whichof
two States has shown more evidenceof administrative and other acts

affecting a particular territory or island. There is no evidence
whatever of any administrative act by the Netherlands at any time
prior to 1903,affecting these islands, or of any claim or intentionon

the part of the Netherlands to acquire them. In the absence of such
evidence Indonesia's case lacks a coherent basis. If the Netherlands

did not already hold the two islands in 1890, the 1891 Boundary
Convention must be irrelevant. Britain could not have ceded to the
Netherlands in 1891islands which (Indonesiaagrees) were not part of

the territory covered by the Sultan's grant of 1878, recognised by
Spain as belonging to North Borneo in the Protocol of 1885. But if
the Netherlands did not hold the islands in 1890, how could it have

acquired them since? It exercised no administration over the islands
after 1891, and made no new claim to them. By contrast the

transactions between Britain and the United States in 1907and 1930
show a clear intention to cover al1 the offshore islands beyond 3
nautical miles and to resolve al1outstanding issues. The criterion

applied was simple. Before 1930,the positionwas that "the mainland
of British North Bomeo and a certain number of islands are British,
and any territory which cannot be shown to be British is definitely

~rnerican".~~ In 1930, the UnitedStates ceded to Britain "al1islands
to the south and west" of the line described in Article 1 of the

Boundary Treaty. Sipadan and Ligitan, which had previously been
claimed by the United States, lie to the south and west of that line.
The United States' claimto the islands, acknowledgedasjustified by

82
See the note of Dutch Foreign Minister Hartsento Count Bylandt, dated 22
December 1888, communicated to the Marquess of Salisbury on 3 January 1889:
IM,Annex 37, vol.2, p. 327. Hartsen repeatedly referred to Batu Tinagat as "[le]
point extrêmeà l'est", so faras the Dutch claim wasconcerned. Mr. Hartsen's note
is quoted and discussed fully by Sir Edward Hertslet in his Further Memorandum of
9January 1889: Annex MM 43, vol. 3, p. 30.
83 Cf. theMinquier & sEcrehoscase ICJ Reports 1953 p. 47.
84 See the confidential Admiralty Memorandum, "Boundary between British
North Borneo and the Philippines", July 1927, p. 1: Public Record Office, FO
371/12050; AnnexIM 123, vol.4, p. 51.Great Britain in the period 1903-1907, was thereby resolved. In

continuing to administer the islands after 1930 (to the exclusion of
any other claimant), the BNBC and its successors united sovereignty
and administration. Nothing said in Indonesia's Memorial as to these
transactionscasts any doubt on this conclusion. Chapter 4

THEPRACTICEOFTHEPARTIESANDTHEIR
PREDECESSORSCONFIRMM S ALAYSIA'STITLE

A. Introduction

4.1. Malaysia has demonstrated, in its Memorial, continua1
peaceful administration of the islands,since time immemorial and
certainly since the end of the 19'~Century, by the Sultanate of Sulu,
the BNBC, Britain and ~ala~sia.' It has also demonstrated Dutch

and Indonesian inactivity during that period.2 The present Chapter
will focus on practice of the parties and their predecessorsin the area,
and on possession and administration of the two islands of Ligitan

and Sipadan, in response to the arguments put forward in the
Indonesian Memorial.

B. Practice relating to theIslandsbefore1963

4.2. In discussing practice in the pre-independence period, five
points need to be mentioned. They are, firstly, the relationsbetween
the Netherlands and the Sultanate of Bulungan; secondly, the scope
and purpose of Dutch and British naval activities in the region;

thirdly, Dutch deliberationson a maritime boundary eastof Sebatik in
the 1920s, fourthly, the actual administration of the islands, and
fifthly, Indonesia'sown maritime boundary proclamationof 1960.

(i) Relations between the Netherlandsand the Sultanateof
Bulunnan

4.3. So far asMalaysia has been able to discoverfrom an extensive
review of the documents and literature, there is no trace whatsoever

of any activity of the Sultan of Bulungan on the two islands.
Certainly Indonesia produces none. The islands were far away from

I MM, Chapte6.
2 Ibid.Chapter7.Bulungan, and from any area the Sultan of Bulungan can be shown to
have contraHed. The Sultanatewas a small land-basedentity, with no

maritime activities worth mentioning. On the other hand, the
Sultanate of Sulu was a maritime State. Its mainland possessions
were annexes of the Sulu archipelago. The Bajaus, who in effect had

a monopoly on the adjacent islands,considered themselves and were
considered by others as under Sulu authority.

4.4. The Sultanate of Bulungan was in fact a rather weak political
entity and a tiny one compared with the Sultanates of Sulu and

Brunei. Contrary to what Indonesia assertsin Chapters III and IV of
its Memorial, the successive Sultans of Bulungan did notmanage to
exercise real power even within theirdominion on land, let alone in

maritime areas. The limited power of the Sultans of Bulungan is
described in the annexed report by Professor Houben, an
internationally recognised experton the region.3

4.5. During the nineteenth century the Dutch concluded various

contracts with the Sultan of Bulungan, although throughout most of
the nineteenth century they pursueda policy of abstention with regard
to Borneo. As documented in Professor Houben's report, the Dutch

interference with Bulungan was cursory, and mainly meant to assert
their territorial claims on the mainlandof Bomeo vis-à-vis the British.
Apart from piracy patrols and attempts to suppress the slave trade,

they took no particular interest in the sea areas of north-eastem
Borneo. Bulungan, for its part, was not a naval power and had not
even the capacity to do so. Trade with Bulungan was carried in

foreign ships, especially Sulupraus.4

3
See below, Appendix 1,Pr0f.dr.V.J.H. Houben, "The Regional History of
4ortheast Borneo in the Nineteenth Century (withspecial reference to Bulungan)".
Hageman reports that Bulungan andTidung had no praus of theirJ.wn:
Hageman, "Aanteekeningen omtrent een gedeelte der Oostkust van Borneo", in
Tijdschrlj?van de Indische Taal-, Land- en Volkenkund4,(1855) .p.71-106
at p. 78.(ii) Naval activitiesbv GreatBritainand the Netherlands

4.6. The first activities of the colonising powers were naval
activities: surveys and attempts to impose a minimum public order.

Sipadan and Ligitan were part of the islands included in the Darvel
Bay group. The islands were surveyedby Great Britain. The Egeria
cruise in 1891 is one of the first documents mentioning the islands.
As demonstrated above, it was an exclusively British activity, partof

the Darvel Bay s~rve~.~

4.7. Of the many hundreds of islands along the east coast of

Borneo, only a minority have permanent settlements. Given the
limited resources available, the colonialpowers weremore intent on
collaboration than on affirmation of respective sovereigntieson these

small and often featureless islands, as the HNLMS' Macassercruise
shows.6 Commander van Straaten'sreport focuses principally on the
exact location of Gusungan Island, estimated at 4" 18'55" N, much
further north than the 4" 10'N parallel and chosen as the third point

for his survey. He rejected Sipadan as too far out at sea for reliable
measurements. The Dutch navy had no qualms about sailing in
British waters and the British authorities did not complain.

Collaboration was necessary for a complete survey of the coast to
establish reliable navigationcharts, and relations between theofficers
were good.

4.8. Collaboration was also necessary to control banditry and the
slave trade. It is in that perspective that one must appreciate the only
Dutch activity mentioned by Indonesia to support its claim to the

islands: the incident of the Lynx:in 1921. The Indonesian Memorial
examines the incident under the title "Activities of the Netherlands
and Indonesia with Respect to the Islands. A. Dutch Activities". It

says:

"A highiy relevant example of such a practice following
the 1891 Convention is provided by the policing

5 See above, paragraphs 2.29-2.42.
6 Annex MM64, vol. 3, pp. 163-166. AnnexIM 105,vo3,pp. 385-394
translates a differentpart of the report, butis notcontradictory. activities carried out in the area by ships of the Royal

Netlierlands Navy ...A report by the commanding
officer ... provides a detailed account of one such
e~~edition."~

The problem is that it is not an example but the sole instance.
Moreover as an incident itproves nothing.

4.9. The Lynx incident certainly did not amount to a claim of
sovereignty on Pulau Sipadan. No flag was hoisted, no tablets were
fixed, unlike the cruise of the Quiros nearly twenty years earlier.

There was no reason for the British authorities to protest or even to
complain. Quite to the contrary, as the Dutch navy was giving a
helping hand in policing the pirate-infested waters.

Interna1 Dutch deliberations on a maritime boundary east of
(iii)
Sebatik

4.10. To judge from its Memorial, Indonesia is not aware of the
well-documented interna1Dutch deliberation during the 1920s of a

maritime boundary east of Sebatik, in the period subsequent to the
voyage of the ~~nx.~ It shows that the Dutch colonial officers
themselves did not at the time think a maritime boundary had been

established by the 1891Boundary Convention.

4.11. In a letter dated 9 August 1922to the Governor-Generalof the
Netherlands East Indies, the Vice-Admiral of the Netherlands-Indies
suggested three options for the boundary line delimiting the Dutch

and British territorial waters east of ~ebatik.~ He included a sketch
map with calculations of the course of the boundaryfor these options:

7
8 IM, para. 6.2, p. 101.
See MM, para. 7.15-7.16, pp.81-82;andcf. IM, paras. 6.2-6.5, pp.101-
9103.
Fully reported by the Governor-General of the NetherlandsEast Indies to
the Minister of Colonies, 10December 1922(translated fromDutch): see vol. 2,
Annex MCM 4, pp. 19-25.the original map, and a clearer version with text in English, are

included here as Inserts5 and 6,on the followingtwo pages.

4.12. According to the Vice-Admiral,the three options were:

a line whichis an extension of the land boundary
"a)
(ABon the map);
b) a line perpendicular to the coastai line at the

boundary point onthe beach (ADon the map);

C) a line from the boundary point on the beach to
the point of intersection of the territorial waters of the
Netherlands East Indies and British North Borneo (AC
on the map)."

In his view, option b) wouldmake the most sense. The Governor-
General concurred:

"...theostal watersbeing recognised as state territory,
not least for defence atsea, it would hencebe absurd to

take the- merely accidental - 1st course of the land
boundary as the determining factor for the maritime
boundary, and subsequently, as demonstrated by this
case, to leave the possibility open that an area of foreign

maritime waters is located in front of the land area of
another state.""

The 4" 10'N line would haveexactly this cut-offeffect. Thus in terms
as plain as could be, one of the highest marine officers of the
Netherlands East Indies expressed the view (a) that a maritime

boundary had not been established as at 1922; (b) thatone should be
established, and (c) that it shoulbe of limited length only. Not a
single reference was madeto the island of Sipadan,just visitedby the
Lynx, let alone to Ligitan or to the waters surrounding these two

islands. As the IndonesianMemorial pointsout," the Commander of
Naval Forces Netherlands EastIndies had beenfully informed by the
Commanderof theLynx ofthe cmise on4 January1922.

IO Ibid.(translatedfromDutch).
II IM.para.6.3, p. 101.4.13. In a memorandum submitted by the Legal Departmentof the
Netherlands' Ministryof Foreign Affairs, dated 8 August 1923, the
Head of the Department advised the Minister of Colonies to maintain
the continuation of the land boundary.'* He gave a number of reasons,

including:

(1) The adoption of the 1891Convention relating to the division of
Sebatik along the 4" 10' N. parallel, as elaborated in the

Explanatory Memorandum to Parliament:"By this divisionof the
island both the Netherlands and British North-Bomeowill have
that area of the islandin possession whichforms the shoreof the
waterwayalongwhicheach hasto reachthe coastal areaallocated

to them; this is fairand rationai";

(2) The map accompanyingthe ExplanatoryMemorandum on which
the boundary iscontinuedintothe sea alongthe 4" 10'N. parallel:

"As far as 1 could ascertain,this map does not result from actual
consultation between theNetherlands and England; however, 1
view itas not impossible that that map isknown to the British
Govemment."

These twocircumstanceswerenot, inhis view ...

"of such a nature that, should very significant Dutch
interestsbe damagedbya delirnitationof Dutch temtorial

waters east of Sibetik dong the parailel of 4" 10'N., an
attempt should not be ventured to seek recognition from
the British Govemment fora delirnitationof the temtorial

waters along the perpendicular line,erected at the eastem
coastal boundary pointof Sibetik at sea. However, so far
it does not appear that such great Dutch interests are at

stake as to risk a possible rebuff from the British
Govemment."

4.14. Like the Vice-Admiral, the Head of the Legal Department

evidently did not regard the 4" 10'N. line as an established maritime
boundary. Nor was itopposable toBritain. But he was concemedthat
itmight provide the Britishwith an argumentin favour of a maritime

12
Ministry of Foreign Affairs, Legal Departm, o.1252fl634, 8 August
1923 (translated from Dutch). The full text plus translation is set ou2,in vol.
AnnexMCM5, pp. 27-43.boundary(continuingthe land boundary)whichcut off the Dutchcoast

of Sebatik. At the same timehe confirmedthatthereasonfor the4" 10'
N linewastoprovideaccessby seatotherespectivecoastal areasto the
WestandnorthWestof Sebatik.

4.15. Thereupon,atthe request ofthe DutchMinisterof Colonies,the

Governor-General of the Netherlands East Indies consulted a wide
circle of authorities in the Netherlands East Indies on the issue,
includingtheResidentof the SouthandEastem DivisionofBomeo, the

Directorsof PublicWorksand HomeAffairs andthe Headof the Naval
Department.Al1concluded thatno particularDutch interestswould be
at stake in establishinga temtorial sea boundarydifferentto the line of

the land boundary, since among other reasons,in "this particular area
there are no islands;only the opensea".13Nevertheless, Vice-Admiral
Gooszen emphasized that it would be necessary to determine a

maritime boundary"whichcurrentlyisstillundeterminedand subject to
differentviews."14Ina letterof 5 April 1924,the Govemor-Generalof
the Netherlands East Indies transmitted al1these memoranda to the

Ministerof Coloniesandstatedthat theCouncilof theNetherlandsEast
Indiesand hewereof the view that"no particularDutch interests would

be violatedby extendingthe land boundarybut that determinationof a
boundary, whatever it would be, would be ne~essary".'~ On 13 May
1924 the Minister of Colonies sent al1 relevant documents to his

counterpart in Foreign Affairs and requested him to reconsider this
matter.

4.16. After further consultation, the Minister of Foreign Affairs
finallyadvisedthe Ministerof C,olonialAffairson 27 September 1926:

"...I cannot recommend raising with the British
Government the matter of the boundary between the
Dutch and British territorial waterontheEastemcoastof

the island of SIBETIK, because 1 do not consider it

13 See MM, para 7.16,p.82.
14 See vol2,Annex MCM 6, p. 45 (ernphasis in original; translated frorn
Dutch).
15 Text in ARA,Min.van Kol.,2.10.36.04, iNo. 2637, no. 11. Translated
frorn Dutch. desirable to raise a question without reason and itdoes

not appear that the British Government would object to
the perpendicularlineon the coast as theboundaryline in
this area. As this is the most evident solution, it seems
not unlikely tome thatthe British Governmentitself will

subscribeto it. The fact thatthis solutionis in accordance
with the principles of internationallaw most adhered to,
derives in my view from the recognitionof the right to

territorial waters in general, namely the desirability that
the water in FRONT of the coast falls under the sarne
agreementas the coast. In the case of deviation fromthe

perpendicular line, no justice is given to this principle.
However, a fully definitive rule in international law
cannot be given."'6

4.17. The final conclusion of the Dutch Minister of Colonies, in
October 1920, is therefore that a fixing of the boundary line between
the Dutch and British territorial watersis not urgent: "The matter can

hence be left in abeyance."" No furtherdeliberationson the maritime
boundary took place until the Dutch transferred sovereignty to
Indonesiaafterthe SecondWorld War.

4.18. In sum, notwithstanding extensive interna1Dutch deliberation
during the 1920s among a large number of Dutch officiais in The

Hague and in the NetherlandsEast Indies on the maritime boundaryin
the area, a carefully considered decision was taken by the Dutch
ininisters of Colonial Affairs and Foreign Affairsin 1926not to raise

the matter of a maritime boundary withGreat Britain. Itwas assumed
that the perpendicular line would apply, and this was indeed in
accordancewith the prevailinglaw of the sea at that time. The sketch
maps show that the Dutch were well aware of the fact that such a

maritime boundary would only be of limited length and wouldnot
extend in thedirectionof the islands ofSipadanandLigitan.

16 See vol. 2, Annex MCM 7,p. 47 (translated fromDutch).
17 See Decision of the Ministerof Colonies, 2 October 1926,inMin.,
van Kol., 2.10.36.04, inv. No. 2877, no. 4111191:vol. 2, Annex8,p. 51
(translated froni Dutch). (iv) British administration of the islands

4.19. The principal economic activity on Sipadan for the colonial
period was the collection of turtle eggs. Turtle eggs werea precious
commodity. The island was famous for its turtle. The activitywas a

monopoly of the Danawan people. The concession derived from the
,Sultan of Sulu and was inherited under local custom by successive
headmen of Danawan. The nature of the activity and the various

steps taken by the British administration to regulate that activityare
summed up in the Malaysian Memorial, vol. 1, pp. 65-69. Not a
singleequivalent act is cited by Indonesia.

4.20. The Indonesian Memorial does however drawattentionto the
Turtle PreservationOrdinance of 1June 1917. It notes the following:

"Significantly, Section 3 of the Ordinance specifically
excluded from this licensingrégime areas deemed to be
"native reserves", i.e., areas within which the collection

of turtle eggs was reserved to natives only.....As such,
the island of Sipadan was not deemed as falling within
the territory which wasconsideredto be part of the State

of North Bomeo for the purposesof this 0rdinance."18

4.21. The Indonesian interpretation of the 1917 Ordinance is

farfetched, indeed extraordinary. The Ordinance very specifically
concerns the territory of North Bomeo and only its territory.19
Section 2 provides:

"2. (i) No person shall searchfor, captureor destroy
turtles or search for or collect turtle eggs within the
Stateor the territorial watersthereofunlesshe shall have

obtained a licence in such behalf in a manner prescribed
hereunder."

18
19 IM, para.3.71p. 31.
Annex MM 97, vol4,pp. 40-41.

81Section 3 provides:

"3. The areas specifiedby the Govemor from time to
time in Schedule C shall be deemed to be native
reserves for the collection of turtle eggs, and nothing

contained in this Ordinanceshall be deemed to affect the
collection of turtle eggs by natives therein, and no
license or concession granted hereunder shallbe deemed
to include such areas: provided that natives collecting
turtle eggs in such areas shall be subject to any rules

declared hereunder for the protection of the industry."

Schedule C specifies as Native Reserves for the purposes of section
3...

"Al1 that area from Nosong Point in Kimanis Bay to
Jesselton, including Pulau Tiga and GayaIsland.

Sipadan Island.
Kudat District, includingthe islands therein."

4.22. The text of the Ordinance is quite clear. It applies to "the
State and territorial waters thereof'. Native reserves are under a
special régime,for well understood reasons. The British authorities

did not want to interfere with traditional Bajau activities. And they
certainly wanted to avoid confrontation between Bajaus and other
potential turtle egg collectors. Under the Ordinance it was an offence
for anyone not a native residentof North Borneo to collect turtle eggs

on Sipadan. But even the natives were potentially subject to
regulation under the Ordinance in their activities on the island, since
the Governor was authorised to make "rules for the protection of the
industry". Moreover, as is shown in the Malaysian Mernorial,
disputes over turtle egg collection on Sipadan were resolved by the

BNBC Administration, first as based in Lahad Dahu, later in
Semporna. The Ordinance is a clear manifestation of BNBC
authority over Sipadan. The island is specificallydesignated as lying
within the territory of North Borneo and is singled out for a special

administrative régime. The Netherlands authorities did not react to
the duly published Ordinance.4.23. Sipadan was also declared a bird sanctuary on lStFebruary
1933,followinga proposa1by the conservatorof forests of Sandakan,

implementing article 28 of the Land Ordinance 1928. Sipadan
became a megapodepreserve.20 Again, the Netherlands did not react
to the publicationin the Official Gazette. The sanctuary was renewed

by Ordinance No. 11of 28 June 1963.~' Indonesia did not react any
more than the Netherlandshad done in 1917.

4.24. Lighthouses were constructed and maintained on Sipadan and

Ligitan during the colonial period. The Malaysian Memorial gives
full details on this point.22

(v) Maritimedelimitation bv Indonesia:Act No.4 of 1960

4.25. Act No. 4 concerning Indonesian Waters, promulgated by the

President of the Republic of Indonesia on 18 February 1960, is an
important element of the practice of the Parties. It is one of the

founding acts of Indonesian sovereignty. Promulgated before the
formation of Malaysia (vide the Malaysia Act, 1963), it partakes of
the definition of utipossidetis so far as Indonesiais concerned.

4.26. The Djuanda Declaration, issued by the Govemment on 13

December 1957,formulated the Nusantara concept. The Indonesian
Govemment announced its decision to extend the breadth of its

territorial waters to 12nautical miles. It furtherdeclared that:

" ... al1 waters around, between and connecting the
islands or parts of islands, that make up the landmass of

the Indonesian Republic, disregarding their breadth, are
true parts of the regional area of the Republic of

Indonesia and therefore are parts of the interna1 or

- -
20 MM, para.6.24,p.69.
21 See vol.2,Annex MCM9, pp. 57-58.
22 MM, paras.6.25-6.29pp. 69-70. national territorial waters under the absolute sovereignty
of théState of the Republicof Ind~nesia."~~

4.27. Three years later, Act No. 4 of 18 February 1960enacted the

Djuanda Declaration. It defined the outer limits of the Indonesian
national waters by a list of baseline c~ordinates.~~The Indonesian
baselines for Kalimantan start at theeast Coastof Sebatik Island at the

point determined by the 1891 Boundary Convention, i.e. 4" 10'N.,
117" 53.7'E., point 36, denominated Tg. (tanjung) Saima in the Act.
The line then runs southwardto a point 4" 7.6' N.,117"55.3'E., point
36A on Sebatik Island. It then runs due south to point 36B at 4" 3.7'

N., 117" 55.5'E. It thenjoins point 37 at 3" 28.5'N., 117"52.5'E. at
Tg. Arang.

4.28. The Map attached to Act No. 4 confirms that the base line
runs due south from Sebatik Island, and this can be seen very clearly

from Insert 7, opposite, an enlargement of the relevant sectionof the
Indonesian map.25 When Indonesia was determined to extend its
territorial sovereignty to "the outermost points of the outermost

islands" (Section 1.2 of Act No. 4) - a considered decision on its
part which triggered a major international debate on the issue - the
baseline thus proclaimed stayedclear of Sipadan and Ligitan.

4.29. Act No. 4 was reiterated asIndonesia's internationalstance on
its territory many times and solemnly. It was referred to in

Indonesia's reservation attachedto the ratificationof the 1958Geneva
Convention on the High Seas. It was referred to in the Indonesian
Declaration on the Continental Shelf of 17 February 1969; in the

subsequent Act Concerning the Continental Shelf of 6 January 1973;
in the Declaration Concerning the Exclusive Economic Zone of 21
March 1980, and in the Act Concerning the Exclusive Economic

Zone of 18October 1983.

23 Mochtar Kusumaatmadja, The Conceptof theIndonesian Achipelago,The
Indonesian Quarterly, voX,no. 4, October 1982pp.12-26atp. 13.
24 Annex MM 107, vol. 4, pp. 62-67.
25 Annex MM vol. 5,Map 7.4.30. Act No. 4 was an important element in assessing the situation
of uti possidetisin 1963when Sabah became independent andjoined
the Federation of Malaysia. Indonesia correctly points out that the

existence of territorial title "must be analysed at the time when each
country attained independence (as per the principle of uti possidetis
juris) - another key date in al1 territorial disputes between States

which have had a colonial past -in order to establish what the
prevailing situation was at the time".26 On 16 September 1963, the
State of Sabah, as a new member of Malaysia, could rely on a
territory determined by the principle ofutipossidetis.

4.31. The situation in 1963 was very clear as to sovereignty over
Sipadan and Ligitan. The islands had been clearly identified at the
turn of the century, in particular by theQuiros expedition. They had

been ceded by the United States to Great Britain by the Treaty of 2
January 1930. British administration had been peaceful and
unchallenged al1through the period as a result, in particular, of the
exchange of letters with the United States of 1907. The Netherlands

never tried to assert their sovereigntyon the twoislands. It confirmed
in 1915 that thedelimitation of Dutch possessions with British North
Borneo stopped at Sebatik Island and did not continue out into the

open sea. It never voiced a concern, even less a protest, at the
numerous and public British acts of administration. Indonesia
followed the same policy and accepted British administration of the
islands. Three years before Sabah independence, the Indonesian

Government, by a solemn act, Act No. 4 of 1960,published baselines
which clearlyexcluded Sipadan and Ligitanfrom Indonesian territory.
The implications of utipossidetis juriscould notbe more clear.

C. Post-colonialpractice

4.32. Does post-colonial practice tell any different story? Or, more
exactly, does post-colonial practice establish an agreement between
the Parties to modify the boundary as it stood at the date of their

respective independence?

26 IM, para.8.27p.160.4.33. For the first 25 years of its independence, Indonesia showed
no interest in Sipadan and Ligitan. It did not manifest anypresence in

the area, did not try to administer the islands, enacted no legislation
and made no ordinances or regulationsconceming the two islands or

their surrounding waters. To Malaysia'sknowledge,Act No. 4 is the
first piece of legislation specifically mentioning the area beyond
Sebatik by extending the territorial waters to 12 nm off the eastern

coast: as noted, thatAct specificallydid not apply tothe two islands.

4.34. Sabah became independent and joined the Federation of

Malaysia in 1963. The IndonesianMemorialconsiders 18September
1969as the critical date and adds:

"Whatever the previous situation, it is therefore from

1969 that the respective claims of the Parties find
themselves in effect 'legally neutralised'. Whatever
either Party may door say after this date, these actions

are not relevant to the proceedings unless the Parties
agree otherwise."*'

Thus, on Indonesia's own account, it has to point to conduct in the
short period between 1963and 1969which issufficientto modifythe
established administrative and territorial arrangements. It has clearly

failed to adduce anyevidencecapable of dischargingthis burden.

4.35. Malaysia has shown, in the Memorial,how the administrative

activities continued after independence, in particular in relation to
navigational aid~,~*but also to the spectacular development of
tourisrn, starting in the mid-~eventies.~~The lighthouses erected by

the British were regularly maintained by Malaysian officials,
according to a report of 29 July 1970 by Major Sutoto, of the
Indonesian ~av~.~' The affidavits offered by Indonesian officials

confirm the existence of the lighthouses on the islands and do not

27 IM, paras. 8.2& 8.26,p. 158& p. 159respectively.
28 MM, para. 6.25-6.29, pp. 69-70.
29 MM, para. 3.19-3.20, p. 18.
30 Annex 1M 138,vol. 4,pp. 217-223.

87pretend Indonesia was maintaining them." Sipadan and Ligitan
became Protected Areas under the Protected Areas Order in 1997.

Access is limited today toprotect theen~ironment.~~

4.36. Indonesia failed to protest at the continuing administrative
action of Britain, then Malaysia, on the two islands. It did not object
to the construction of the light tower in 1960. It had no reason to, as

it had clearly represented, the same year, in Act No. 4, that Ligitan
and Sipadan lay far out of the officia1baselines communicated to the
world asembodying Indonesia'sterritorial and maritime position.

4.37. Indonesia seeks to rely on the petroleum concessions granted

by both Parties. It quotes the Court's judgment in the Continental
Shelf (Libya/Tunisia) case.33 In that case, the Court was not
concerned with territorial sovereigntybut with maritime delimitation,

which is quite a different matter. Petroleum concessions were
considered relevant because they were at the heart of the dispute. As
the Court noted:

"...the line was not intended as a delimitation of a
fisheries zone, or of a zone of surveillance. It was
drawn by each of the two States separately, Tunisia

being the first to do so, for purposes of delimiting the
eastward and westward boundaries of petroleum
concessions, a fact which, in view of the issues at the

heart of the dispute between Tunisia and Libya, has
great rele~ance."~~

4.38. The JAPEX concession can in no way be interpreted as a
territorial claim. It does not concern territorial rights,but exclusively

operations on the continental shelf, which is quite a distinct issue. It
defines the "Contract Area" as.. .

31
IM, vol. 5, Affidavits, AnnexD (Sailor 1"Class Ilyas, 1967),Annex H
32ergeant-Major Weku, 1968).
33 MM, para. 6.31,p.7 1.
34 IM, para. 6.29p. 109.
1.C.J.Reports 1982,p84 (para. 118). "the continental shelves within the statutory mining

territory of Indonesia coveredby the Authority to Mine
which is the subject of this Contract, which Contract

Areas are outlined and described in Exhibit A and B
attached hereto and made a part hereof. The Area as
shown in Exhibit A shall be designated'OffshoreBunje

Area' and the Area shown in exhibit B shall be
designated 'OffshoreNanakanArea'."35

Exhibit A-2 describes the perimeter of the Area by reference to

Greenwich coordinates and specificallyexcludes Tarakan Island and
Bunju Island from the ~rea.~~ The terms used are very similar to
those noted by the Arbitration Tribunal in Eritrea and Yemen

Territorial Sovereignty (PhaseOne). The Tribunalconcluded that the
concession there "was granted and implemented in exercise not of

Yemen's claims to sovereignty over the islands and their waters
within the contract area but in the exercise of its rights to the

continental shelf as they then ~ere."'~ The JAPEXPERMINA
concession likewise was grantedin the exercise of Indonesia's rights,
as perceived by the Indonesian authorities,to the continental shelf and

certainly not in relation to any claim to sovereigntyover the islands
and their waters withinthecontractarea, muchless beyond.

4.39. This does not mean that petroleumconcessions are of no help
in solving territorial disputes. It does mean they must be examined
with caution, as their object and purposeis not territorial delimitation,

still less territorial allocation, but rather granting rights over the
continental shelf. A priori, they cannot be considered as "a highly

relevant circum~tance".~~Moreover for a petroleum concession to
carry any weight in the contextof a disputeabout territorial title, there
must have been at least some degree of implementation,of activities

in the area, of effectivités. Otherwise,it standsas a mere paper claim.
In the Continental Shelf(Tunisia/Libya) case, both parties relied on

material activities within the disputed areaand objections thereto.
There a Danish supply ship had effected a series of soundings in the
disputed area.39 Libya had placed four buoys in view of drilling

- - -- -
35 Annex IM 129,vol.4, p. 144.
36 Ibid., p. 158.
37 114 I.L.R. at p. 102.
18 IM, para. 6.29, p.109.
39
1.C.J.Pleading Vsol. 1,Mernorialof Tunisia,p. 39, para. 1.22;Vol. II,
Couilter-Mernorial of Libya,pp. 167-8,para. 53.operations, which triggered a Tunisian protest.40 It completed the
drilling of a dry hole and installed oil wells in the area in 1971 and

1975-76." Tunisia placed three buoys in the disputed area. In 1976,
a rig operated by an Italian Companybegan drilling and prospecting
the area. Later another rig took over drilling in the disputed sector.

Both parties sent naval vessels, either to prevent or to protect the
petroleum a~tivities.~~ In the present case, no such efeectivitésare

alleged by Indonesia. There is no defacto line because there are no
facts.

4.40. Above all, to be of any significance as manifestations of
sovereignty, the petroleum concessions must clearly include the

disputed islands. As the Arbitration Tribunal in the Eritrea and
YemenTerritorial Sovereignty (Phase One) arbitration noted:

"In the view of the Tribunal, the Seismic Permit
Agreement of itself does not constitute a claim by
Yemen to sovereignty over the islands within its

contract area, nor does Eritrea's failure to protest the
agreement indicate acquiescence in any such claim.

However to some extent it presuppose some measure of
title to anyislands contained within the contract~irea."~~

And referring to anothercontract,the Tribunal added:

"Since the agreement area does not include any of the

islands in dispute, it is of limited interest for these
proceedings.. .,944

40
41 Ibid., Vol. 1,p. 41, para. 1.27.
A2 Ibid., Vol. II, Counter-Memorial of Libya, p. 167,para. 52.
Ibid., Vol. 1,Memorial of Tunisia, pp. 41-42, para. 127-134; Vol. II,
Counter-Memorial of Libya, pp. 168-170,para. 55-57.
43 114I.L.R. at pp. 104-105.
44 Ibid.,p.108.4.41. The two petroleumconcessionsmentioned in the Indonesian
Memorialdo not includethe twoislands. The Indonesian concession
to PerminalJapex starts some 20 nautical miles east of Sipadan and

mns east~ard.~"ndonesia wasattentiveto the inclusionorexclusion
of islandsfrom the areaconceded, as the PerrninaIJapexcontracto6
October 1966 shows, since it specifically excludes certain islands

from the contract area.46 Insert 8 shows the area covered by the
concession. The MalaysianTEISEKI concessionlies north of the
two islands. Neither agreementarea includesany of the islands in

dispute. They are thus of "limited interest for these proceedings".
Moreoverthe relevantmapsareon large scale.

4.42. Concessionsmaybe an occasionfor eflectivitésto developon
the islands, even if they are not included in the perimeter. The
Arbitration Tribunal in Eritrea and Yemen Territorial Sovereignty

(Phasz One) noted the construction of an airstrip by a petroleum
Companyon one of the disputed islandsand attributedsignificanceto
it.47 Nothing of the sorthappenedin regard to Sipadan and Ligitan,

so far is Indonesia is concerned. Nothing done pursuant to the
Indonesian concessions approached or affected the islands. There
was no construction on the islands, no drilling in their territorial

waters, or indeed anywhereclose to the islands which might have
drawn Malaysia's attention to the fact of a claim. None of this is
surprisingsince, as shownabove,the Indonesianconcessionsbore no

relationship to the islands. In any event, as it happened, the
concessionsdid not proveof anygeological interestand lapsed.

4.43. Indonesia seems to imply that the petroleum concessions
constitutedsomesortof animplicitagreement amongthe Partiesas to
the offshore territorial delimitation. But that calls for substantial

evidence, including evidence of practice following therant of the
concessions. In the Libyflunisia ContinentalSheZfcase, the Court
pointedout:

45
46 4"9'30 N.,117"32'30 E.
47 IMAnnex 129,vol4.,p.158.
114I.L. Rtp.109. "It should be made clear that the Court is not here
making a finding of tacit agreement betweenthe Parties

- which, in view of their more extensive and firmly
maintained claims, would not be possible - nor is it
holding that they are debarredby conduct from pressing

claims inconsistent with such conduct on some such
basis asest~~~el."~~

4.44. In the present case, it must be proved that the petroleum

concessions amounted to a complete reversa1 of the Indonesian
position, just a few years after publication of Act No. 4. And that
Malaysia entered an international agreement in total contradiction

with its consistent practice, beforeand since.

4.45. If considered to be subsequent practice of the Parties, the oil

concessions must at least meet the standard of subsequent practice
recently examined by this Court in the Kasikili/Sedudu case.49
Nothing of the sort appears from a close examination of the

concessions. The petroleum authorities that issued them had no
competence to determine or modify the international boundaries of
their respective States or to interpret international treaties on these
They did not purport to do so. The Indonesian authorities
issues.
issued concessions that lay far away from the disputed islands and in
no wayasserted anyclaim to sovereigntyor to economic rights in the
area around the islands. Neither Party proceeded on the basis that

they were implementing a general principle regarding a 4" 10'N
boundary out to sea. That was not the pointof the concessions.

4.46. As to the other activities, a perusal of the affidavits produced
by 1ndonesias0confirms that there were no significant activities in
terms of subsequent practice. There were occasional patrols by the

Indonesian Navy ships, but it was quite an exceptional practice
(Affidavits C to H) and the patrols seemed uneventful. As to the

48 I.C.JReports 1982,p. 84 (para118).
49 Judgment, 13December 1999,paras. 47-80.
50 See IM, vol5.Indonesian fishermen, a few would fish off Sipadan, generally
sleeping on their boats. They would take refuge on the island only in

case of bad weather (Affidavits 1to M). One fisherman witnessedthe
presence of huts occupied by people coming from "Derawan Island".
In 1992,according to Indonesia, a group of Indonesian scouts spotted
an old pier, an old house belonging to a Bajau and about 20 huts,

presumably occupied by Bajaus. It is not suggested in the affidavit
that the people observed on the island were not Malaysiancitizens.

4.47. From 1988 on, navy patrols and diplomatic protests became
frequent.'' For instance, on 6 June 1993, well after the critical date,
the Bulungan Regency sent out a strong Indonesian party of 66
persons to Sipadan. They must have astonished the tourists in the 50

tourist huts they counted along with the 60 tourist employees and the
786 turtles. They noted that the Bajau tribe had "governed theisland
since 1933" and that the tourist activity started in 1990. On the

island, there were a Malaysian wildlife guard and security officers
from three travel agencies. The Indonesian team declared it was
ready to defend the "sovereignty" of Indonesia, then left the island to

report to the Regency. They do not seem to have come ba~k.'~As to
the island of Ligitan, Haji ZaenuddinEffendy, a fisherman, is the only
one who mentions having been on the island when his boat drifted
and became stranded (Affidavit L).

4.48. No Indonesians, private citizens or otherwise, claim to have
occupied the island or to have had any economic activity on the

island. Whatever off-shore activity there was wascertainly far below
the minimum standards set by the Court to qualify as subsequent
practice in the sense of article 31, para. 3 (b) of the Vienna

Convention. In the case concerning Kasikili/Sedudu Island
(Botswana/narnibia), the Court noted that :

"To establish such a practice, at least two criteria would
have to be satisfied: first, that the occupation of the

Island by the Masubia was linked to a belief on the part
of the Caprivi authorities that the boundary laid downby

51
S? MM, para. 4.5, p. 28;IM, paras. 8.70-8.96, pp. 171-182.
AnnexIM 163, vol. pp. 351-354.

94 the 1890 Treaty followed the southern channel of the
Chobe; and, second, that the Bechuanaland authorities
were fully awareof and accepted this as a confirmation
of theTreaty bo~ndar~."~~

In that case, the Court considered that peaceful occupation,
agricultural and pastoral activities by the Masubia tribesmen for
nearly a century did not meet the standard of subsequent practice.

Occasional and incidental Indonesian activities on or around Sipadan
and Ligitan are a far cry from even that activity.

D. GeneralConclusions

4.49. To sum up the practice of the Parties, before and after
independence, as regards Sipadan andLigitan :

The Sultanate of Bulungan was a minor land-based polity.
(a)
The Sultan never exercised any authority on the islands off
mainland Borneo, contrary to the Sultan of Sulu, whose State
was a maritimeempire. There is no trace of anyactivityof the

Sultanate of Bulungan or of its inhabitants related, directly or
indirectly, to Ligitan and Sipadan during the pre-colonial
period.

The British North Borneo authorities administered the two
(b)
islands in a normal way, having regard to the particular
geographical circumstances. In particular, they regulated the
major economic activity, turtle egg collection, erected

lighthouses and declared Sipadan a bird sanctuary. Malaysia
continued this peacefuladministration.

(c) The Netherlands showed no interest, enacted no particular
legislation and never objected to British administration of the

islands.

(d) Independent Indonesia did not show anyinterest whatsoever
in the islandsfor over25 years.

53 Judgment, 12December 1999,para.74.(e) Indonesia formally proclaimed its base-lines and territorial
wate'rsby Act No. 4 in 1960. It excluded Sipadan and Ligitan
from its territory by fixing the easternmost base-line point in

the area on the east Coast of Sebatik and the limit of its
territorial waters 12miles out at sea, some 35 nautical miles
distant from Sipadan and evenfurther fromLigitan.

Petroleum concessions in the sixties did not concern territorial
(f)
delimitation and never included the two islands in conceded
perimeters. No activity pursuant to the Indonesian
concessions had anyrelation to the islands.

The affidavits provided by Indonesia prove that Indonesian
(g)
effectivitéscertainly did not qualify as subsequent practice, as
defined by the Court in the case concerning Kasikili/Sedudu
Island (Botswana/Namibia).

(h) When the first Indonesian claim to the islands was voiced in
1969,Malaysia immediatelychallenged it.

(i) The practice of the parties confirms the interpretation of the
1891, 1915 and 1930 treaties as stated in the preceding

Chapters. It does not indicate any subsequent agreement or
practice to the contrary. Chapter 5

OFFICIALANDOTHER MAPSSUPPORT
MALAYSIA'STITLETOTHE ISLANDS

A. Introduction

5.1. Never in the Court's history, itseems, has a sovereignty claimdepended
so exclusively and so much on a single map, as Indonesia's claim to the two

islands depends on the interna1Dutch map. The arguments based on that map
have already beencomprehensivelydealt with.

5.2. In addition, however,Indonesia relies ona number of other maps, Dutch
and British, Indonesian and Malaysian. Lnits view, the maps of both parties

"point consistently in the same direction as that which follows from the termsof
the 189 1convention".' Malaysia has alreadydealt with manyof these maps in
Chapter 10 of its Memorial, and it will not repeat the detailed account given

there. Asshown, the preponderanceof the mapevidence on both sides supports
the Malaysian position. Of particular significanceare two maps following upon
the 1891Treaty:

(1) The first detailed and officia1Dutch map of the Southern and Eastern
Division of Bomeo, publishedin Bataviain 1913, which shows the 189 1
boundary stoppingat the east coastof Sebatik and specifically attributes
the group of islands including Sipadan and Ligitan to the "Gouv' van

Britisch~oord-~orneo".~

(2) Even more important is the 1915 Map, signed by both parties and
annexed to the Agreement of 1915, which demarcated the boundary

across ~ebatik.~The red line on the agreed map clearly stops at the east
coast. As pointed out in Chapter 2, if there were any doubt atal1as to
the meaning of the 1891 BoundaryConvention, it is resolved by this

I IM, para. 6.37,112.
2 SeeSchetskaartvan de Residentie Zu-nOosterafdeelingvanBomeoTopografische
inrichting, Batavia, 1913:MM, Annexes5,Map 1.
3
See above, pa47. map, which constitutes an authoritative interpretation of the 1891
Convention by the parties to it. Moreover it is the only official, agreed
map representing the effect of the 1891Convention so far as Sebatik is
concerned. This gives it a unique status for the purposes of the present

case.

5.3. In an attempt to deny the effect of the 1915 Map, the Indonesian
Memorial invokes a selection of maps to show either that the two islands were

considered as belonging to Indonesia or at ieast that they were considered as
falling outside the limits of Malaysia. In this Chapter, Malaysiawill deal with
the maps invoked by Indonesia, especially those which were not discussed in
Chapter 10 of Malaysia's Memorial. Itwill also consider a number of further

maps of Dutch and Indonesian provenance. It will then turn to consider the
legal effects of maps, in accordance with the useful recent indicationsgiven by
the Court in the Case concerning Kasikili/Sedudu Island (Botswana/Namibia).
Finally, a brief summary will be given as to the conclusions to be drawn from

the map evidence taken as a whole.

B. Indonesia'sarguments basedon variousmaps

It is necessary to distinguish the maps placed by Indonesia before the
5.4.
Court by reference to their period aswell as their provenance.

(a) Maps before 1891

5.5. Indonesia asserts that:

"Dutch cartography prior to the signature of the 1891 Convention
shows that The Netherlands viewed the islands of Ligitan and
Sipadan as being subject to its s~verei~nt~."~

In support it cites a single map by De Sturler of 1881.~The map (which is non-

official) is on an extremely small scale, covering the whole of South-East Asia
from Burma to New Guinea. It says nothing at al1precise about boundaries in
any legal sense. Its depiction of north-east Borneo is highly approximate. It is

IM, paras. 6.41, p.113
IM, Map Atlas,Map 1.not clear that iteven depicts Sebatik, let alone smaller islands. It is useless as

evidence on anyquestion of detail.

5.6. Other Dutch maps are more helpful, as well as more accurate, in

depicting the area and Dutch claims toit. For example, the Dutch claim which
was the basis of the negotiations leading to the 1891Boundary Convention is
shown on the rnap reproduced at Indonesia'sMap Atlas, Map 2. It clearly did

not extend further east than Batu Tinagat and showed no allocation line of any
kind. The rnap does not actually show Sipadan and Ligitan, but it plainly
attributes al1the islands east of Batu Tinagat toNorthBorneo, including Mabul,

Si Ami1and Danawan. British maps depicting the Dutch claimat this time are
to similareffe~t.~

5.7. To summarise, to the extent that "Dutch cartography" before 1891
showedthe coast accuratelyand in detail, it depictedthe area whereSipadan and
Ligitan are located as within the sphereof Sulu and later, British North Bomeo.

Indeed, there is, so far as Malaysia is aware, no Dutch rnapof this period which
did show the islands and depicted them asbelonging to the Netherlands or to
Bulungan.

(b) Maps in the period 1891-1945

5.8. The first rnap in the period 1891-1945which requires noting is the
Dutch interna1map.' As to this, it has already been shown (a) that it was
produced after the 1891 Convention was signed; (b) that there is no record of
any officiai transmittal of the rnap to Great Britain,and (c) that Great Britain

never accepted that map, by words or conduct.* But for present purposes it is
worth recalling its defects as a rnap said to depict a claim to two islands never
mentioned in the negotiations. First of all, it does not show Sipadan at al]:

anyone looking at the rnap would have noway of knowing that Sipadan exists,
letalone that it fallsto the south of the line. Secondly,it does show an unnamed
island which from its position relative to "Danoean" and Si Ami1can only be

Ligitan, but (wrongly)shows it to the north (as well as to the east) of the line.

6 See the mapdrawn byStanford'sfor theBNBC in 1888:IM, Map Annex,Map 3. That
map does not show any ofthe smalleroffshore islandssouthof Bum Bum Island.
7 IM, Map Atlas,Maps 5 & 6.
R See above, paras. 2.49-2.59.Thirdly, its depiction of the local geography is highly inaccurate: Bum Bum

island is not shown, anda navigator usingthe rnapwould think it possibleto sail
between Danawan and the unnamed islandof Ligitan, whereasthe three features
are of course part of a large reef ~tructure.~No one looking at the rnap would

think itattributed Ligitan to the Netherlands. Nor does itsay anything about
Sipadan, because itdoes not show it. With their propensityfor gettingdetails of
this terrain wrong, who can know where the draftersof the interna1Dutch rnap

would have put Sipadan,had they beenaware of its existence?

5.9. Indonesia also produced anothersmall-scale map, from "The Century

Atlas", a commercial publication of 1897." This shows, as a "Boundary of
Dutch possessions", a curved line running lengthwise down Sebatik, then
turning to run eastwards for approximately700 miles. It is the sole "evidence of

general repute" producedby Indonesiafor this period. Again the rnap is useless
as evidence of anything in relation to a specific dispute concerning two small
isiands. Evidently the map-maker wasaware that there had been an agreement
dividing the island of Sebatik, but does not seem to have been aware of its

content. Sebatik is in the wrong place,and the dividing line at no stagefollows
the 4O10'N parallel. The rnap shows one unnamed island to the south of its
"Boundary": there is in fact no island in the position shown, but the island

shown is closer to the position of Ligitan ratherthan Sipadan. The rnap is very
inaccurately drawn at the level of detail. It also shows some coastal islands
south of the line (e.g. what appears to beNunukan) in the red colour designated

for British, not Dutch, territory.

5.10. Then there is Stanford's rnap of 1903, on which Indonesia places great

store." The rnap shows the 1891 land boundary, accurately drawna ,s a thick
red line. It also shows the provinces of British North Borneo by a red dotted
line. Those provincial boundariesextend well out to sea, not reflecting the 3

marine league limitof the Sulu Grantof 1878. Sipadan is shown to the south of
the dotted line depicting the BNBC Province of Elphinstone. (The settlement
shown as Port Elphinstone was later renamed Semporna.) The rnap does not
name Ligitan but shows whatcan only be Ligitanto the north of the provincial

line. It does not attributeSipadanto any other State.

9
O As shown in the aerialphotographwhichis at MM,p. 23.
II IM, para. 6.58, p. 119;IM, Map Atlas,Map 7.
IM, para. 6.52, p. &1Map 6.4, paras. 7.13-7.14, pp. 132-132,also IM,Map Atlas,
Map 9. Insert 10

Survey Map of the Netherlands East Indies Archipelago
(1897-1904)5.11. Indonesia argues12that in accordance with the 1903 Stanford's rnap

"[bloth islands were clearlyrecognised as belongingto Dutch Borneo". There is
no basis for that assertion. Ligitan (unnamed but recognisableby its relation to

Danawan and "Si Anal" (another misprint) ) lies within Elphinstone Province,
Sipadan lies outside it. The internationalboundary lineof 1891is not extended
out to sea. The rnap does not attribute Sipadan to any other State. At the time,

as has been shown, sovereignty over Sipadan was with the United States.
Indeed the rnap was produced in the year of the voyage of the Quiros w,hen
Sipadan was specifically claimed for the United States, a claim subsequently

recognised by Great Britain.

5.12. Quite contrary to the position taken by Indonesia in its Memorial, al1the
post-1891 Dutch maps that have beenfound in the course of research on the
present dispute either (a) show the 1891 boundarystopping at the east coast of

Sebatik, or (b) show a short projection of that boundary, in no case extending
m3re than a few nautical miles off-shore, and apparently representing a

territorial sea boundary. So far as Malaysia has been able to find, there is not a
single Dutch rnap that gives any credence whatever to the Indonesian claim.
The following maybe noted,by wayof example.

5.13. Malaysia has found in the Exhibits to the US Counter-Memorandum in
the Island of Palmas case an additional Dutch rnap composed during the years

1897-1904. It has the following title: "Survey Map of the Netherlands East
Indies Ar~hipelago"'~,with the following additional inscription: "Netherlands

East Indies,composed during the years 1897-1904by the Topographical Bureau
at Batavia, (remodeled edition of the Atlas by J.W. Stemfoort and J.J. ten
Siethoff) reproduced by the Topographical Service at The Hague during the

years 1898-1907under the directionof the DirectorC.A. Eckstein, published by
the order of the Department of Co10nies"'~A . photo-reduced copy of the rnap
appears opposite as Insert lOI5. The rnap thus appears to have an officia1

provenance or approval. It is on a scale of 1:6500 000. Although thisscale is

II
13 IM,para. 6.56, p. 119.
Translated from Dutch: "Overzichtskaart van den Nederlandsch Oost Indischen
A14hipel".
Translated from Dutch:" Nederlandsch Oost-lndië, Bij het topographisch Bureair te
Batavia samengesteld in dejaren 1897-1904 (omgewerkte uitgave van den Atlas van J. W.
Stenlfoort en J. J. ten Siethom, bij de topographische inrichting te 's Gravenhage
gereproduceerd in de jaren 1898-1907 onder leiding van den directeur C. A. Eckstein,
Uitgegeven op last van het Departement van Koloniën".
1.5 The fullsized rnapappears inMCM, vol.2, Map 1,p. 59.relatively small, the detail on the rnap is sufficiently clear to show the land
boundary coming in from the Westto cross the island of Sebatik and terminating

at its east coast. There is no extension seaward. The orange line represents the
district boundary. The small dots or crosses that appear in the sea just east of
Sebatik are sandbanks and reefs.The rnapcarries no suggestion of the existence

of any Dutch claim to sovereigntyoverany islandseast of Sebatik.

5.14. Following surveys in 1902-03 by the Macasser, the Department of

Hydrography of the Dutch Ministryof the Navypublished, in September 1905,a
large nautical rnap (scale, 1:200,000). It is entitled "East Coast of Bomeo:
Island of Tarakan up to Dutch-English ~oundar~".'~ On this rather detailed
rnap (reproduced in vol. 2 of this Counter-Memorial, Map 2), the maritime

boundary clearly stops on the east coast of Sebatik, while both Sipadan and
Ligitan are depicted on the rnap along many other islands in northern Bomeo.
There is also an updated 1915 version of this rnap with the indication that

extensive corrections were made, i.e. after the further 1915 Boundary
Agreement. The 1915rnapshows exactlythe samepicture as the 1905map: the
1891 boundary stops at the east coast of Sebatik (see vol. 2 of this Counter-

Memorial, Map 3).

5.15. By a forma1 decision of 1 February 1913, the Government of the

Netherlands East Indies determined the administrativestructure of the Southem
and Eastern Borneo Residence. In the rnap accompanying the decision, no
boundary east of Sebatik was shown, nor were the islands of Sipadan and

Ligitan included on the map.17 An extract from the rnap is shown opposite as
Insert 11.

5.16. Before the First World War, a project entitled "International Map of the
World" was inaugurated, using a scale of 1:1,000,000. Individual sheets
conformed to a standard size (4" of latitude by6" degrees longitude); they were
designated by a special sheet numbering system, and were produced by the

16 "Oostkust Borneo. Eiland Tarakan tot Nederlandsch-Engelse Grens", reported in
Critalogue of lndonesian Charts and Books, Batavia, 1954.
17 See Government Gazette (Staatsblad 1913)No. 199.national mapping organisationsof many countries, coordinated by a Central

Bureau. Sheet NA 50, "Oost Bomeo", was compiled and printed by the
TopografischéDienst,Batavia,in 1935. The particularsignificanceof this rnap
for the present case is that it shows the area of northernDutchBorneo in the

form of a "border break" beyondthe limiting 4"Nparallel; this is in order to
complete the coverage of Dutch temtory without publishing the next adjacent
sheetto the north. Thisrnapshows the border acrossSebatikbut notextending
into the sea eastwards. Most importantlythe "border break" is not extended

eastwardto embrace the islandsof Sipadanand Ligitan. A fold-out copyof part
of the rnapis shown as Insert 9 oppositepage 97 above,and thewhole rnap is
reproducedin volume2 asMap 5.

5.17. The well-known Atlasof the Tropical Netherlands was painstakingly
prepared by the Royal Geographical Society of the Netherlands in close
collaboration with theTopographicalService of the Netherlands East Indies

from 1915on. The Atlas was eventuaily publishedin 1938." Its Map 25 shows
Netherlands Borneo. Again, the state boundary (Rijksgrens)stops on the east
coastof Sebatik (see vol.2 of this Counter-Mernorial,Map 6). As will be seen
from the extract of the rnapset out onpage 106as Insert 12, far from showing

the area of the islands off Sempornaand claimingthem as Dutch, the rnap has
an insertof the town ofBalikpapan,which is locatedin southemBorneo.

Then there is Sheet Noord (North) B-50, "North Bomeo", produced
5.18.
hastilyby the TopografischeDienst,Batavia, in the emergencyof 1941. It is a
monochrome rnap bearingthe security classification GEHEIM(secret). In the
area of Dutch temtory towards the southern edge of the map, it incorporates

surveysthat were not availablewhenthe 1935Map,discussedin paragraph 5.16
above, was compiled. Again, the boundary crosses Sebatik and stops at its
eastem shore. Sipadanand Ligitanare shownon themap. As a detail, it may be
noted that the abbreviation"1." (island)is used forthem and for al1other North

Bomeo islands. For SebatikandEast Nunukan,the abbreviation"P." (pulau) is
used. It would not occur to anyone reading the rnap that the two islands
belongedto the Netherlands. A fold-outextract (Insert 13) from the 1941rnap
is on page 107, and the wholernap is reproducedin volume 2 of this Counter-

Memorialas Map 7.
--
l8 AriasvanTropischNederland,publishedbytheRoyalGeographicl ocietyof the
Netherlands icollaborationwiththeTopographilerviceoftheNetherlandEastIndies,
1938.(c) Maps coverin~the periodsince 1945

5.19. The first rnap mentioned by Indonesia in this period is the 1953 British
Colonial ~a~.'~ This is a very generalised rnap of the Colony, showing the
provincial boundaries. Indonesia cites it as an "interesting example" which
"gives no indication of there being any islandsat the locations of Sipadan and

Ligitan forming part of the British colony". The reason is quite simple: it shows
hardly anyof the dozensof offshore islandssouthof Bum Bum Island. The rnap
is interesting, however, for another reason. It shows the 1891 boundary line,

differently depicted from the provincial boundaries,stopping at the east Coastof
Sebatik. It also shows the 1930Treaty linewith the United States. But whatis
most significant is that it shows no closing lines for the provincial boundaries

around Darvel and Sibuko Bays. In other words, it contains no outer limit of
islands part of the Colony. Given that there are manyislands south of Bum
Bum Island, a reader of the rnap would infer that these (including Sipadan and
Ligitan) were part of the LahadDatu district ratherthan Tawau - as was indeed

the case. There is no indication whatever that theybelong to Indonesia. The
heading to this section of the Indonesian Memorial, "British Maps showing
Ligitan and Sipadan Islands as Part of the Dutch Possessions", is completely

belied by the map.

5.20. Then there is the BritishMinistry of Defence Tactical Planning Chart of

1973, which is said by Indonesia to depict "the 1891 line extending eastwards
from the island of ~ebatik".~' The rnap has a disclaimer (thoughIndonesiafails
to note this). It does show the 1891 lineextending approximately 3 nautical

miles out to sea. It maybe that the author of the rnap was inferringa territorial
sea boundary which continued theline of the land boundary, and indeedit has
already been seen that Dutch authoritiesin the 1920sentertained the same idea,

although they did not think the matter was determined for them by the 1891
Boundary convention." The rnap accurately shows Sipadan and Ligitan (both
unnamed) further to the east, unaffected by the line drawn offshore from
Sebatik. It does not support the Indonesian position,quite apart from the

disclaimer.

19
20 IM, Map Atlas, Map 10.
21 134,para. 6.65, p. 122. For the maIM,eMap Atlas, Map 19.
See above, paragraphs 4.-4.18.5.71. Indonesia relies on a number of Malaysian maps,8 in all, which in its

view show the islands "as falling outside of Malaysia'spossessions".22 One of
those listed is Map 21 in the Indonesian Map Atlas. This is the officia1
Malaysian rnap of 1979 showing its territorial waters and continental shelf,

which plainly shows the two islands as Malaysian and whichIndonesia strongly
criticises.'"he remaining 7 maybe briefly reviewed asfollows:

Map 11:Pulau Sebatik. This is a rnapproduced in 1960for the Director
(a)
of National Mapping, Malaysia. It contains a disclaimer. A "boundary"
is shown along the 4'10' N line but it extends only to the edge of the
map, approximately 2 nautical miles from the coast of Sebatik.

Although Indonesiaclaims that thisrnap is "[olf particular note",24it is
difficult to see why. The rnapstops in the immediate vicinityof Sebatik,
and quite apart from the disclaimer it tells us nothing at al1about the

status of islands well to theeast.

(b) Map 12:Sabah. This is a 1964rnapcompiled by the Sabah Department
of Lands and Surveys. It contains a disclaimer. It shows a red line

running along the 4"10' N parallel for some 30 miles to the east of
Sebatik. The line is represented as an international boundary until the
point where it joins the north-running Tawaudistrict boundary, where it

stops. Sipadan is not shown onthe map, but it is in fact to theeast of the
closing line; Ligitan is shown as part of the Semporna district. Neither
island is shown "as fallingoutside of Malaysia'spossessions".25

(c) Mau 13:Tawau. This is a 1965rnapproducedby the British Ministry of
Defence for the Director of National Mapping, Malaysia. It contains a

disclaimer. Acoloured line is shown as the international boundaryto the
east coast of Sebatik only. The 4'10' N line then continues as a black
dashed line to the edge of the rnap (not as far as Sipadan or Ligitan).

There is no indication of what that line represents. It is not the same as
the legend for districtboundaries. Indonesiadescribesthe rnapas "[a]lso
~i~nificant",~~ but it shows nothing at al1as to the status of islands not

represented on it.

27 IM,paras. 6.66-6.76, p. 122-126.
33
24 IM, paras. 8.59-8.63, pp. 168-169.
25 IM, para. 6.70, p. 124.
26 IM, p. 122(heading preceding para. 6.66).
IM, para. 6.7 1,p. 124.(cl) Map 14:Sabah. Thisis a black and white version of Map 12,discussed
in sub-paragraph (b)above. The samecomments applyto it.

Map 16:Oil ProspectinnLicenses andLeases. This is the Malaysianoil
(e)
concession map, which has already been disc~ssed.~~ It is highly
generalised and does not show eitherof the disputed islands.

(f) Map 18: Sabah. This is a reprint of Map 12,discussed in sub-paragraph

(b)above. The samecomments applyto it.

(g) Map 20: Sabah Population and Housinn Census. This small-scale map,
published by the Malaysian Department of Statistics in 1974, was
intended to show in general terms the distributionof population in

Sabah. It contains a disclaimer. It shows the international boundary
stopping within 3 miles east of Sebatik:an innominate 4"10'N line then
proceeds eastwards. It shows only a few of the islands off the coast and

does not showSipadan or Ligitan. It is highly generalised andevidently
of no value on any questionof detail,quiteapartfrom the disclaimer.

Thus of the seven remaining maps mentionedby Indonesia, three (Nos. 12, 14

and 18) are identical, so there are in effect five. Of these five, four contain
disclaimers. None of the five maps shows Sipadan. Only one shows Ligitan,
and then clearly a part of Sempoma district. To suggest that the mapsshow the
islands as not Malaysian is unsupportable.

5.22. Two other maps in Indonesia's Map Atlas should be mentioned. The
first isthe map showingcontinental shelf boundaries, whichwas annexed to the

1969Agreement regarding the Delimitationof the Continental Shelvesbetween
the Two ~ountries.~~ The map shows Sabah interna1provincial boundaries,
with Sipadan (unnamed) lying outside those boundaries. It does not show
Ligitan as such, but it does apparently showthe provincial boundaryas cutting

the star-shaped reef on which Ligitan is located. It usesa different setof marks
for international boundaries, and the international boundaryon Sebatik stops at
the east coast. The map contains a disclaimer. For the purposes of the present
caseit is neutral. This is hardly surprisingsincethe present dispute aroseduring

the negotiations for the 1969 Agreement, andat the time they signedthe map,
the representatives of Malaysia and Indonesia were fully awareof each other's
claims to the islands.

27 See above, paragraphs 4.37-4.45, pp. 88-93.
28 Annex IM 136, vol. 4, p. 2IM Map Atlas, Map 175.23. Secondly, there is the Malaysian rnap of Semporna, issued in 1968,
which shows "Treaty Limits of the Republic of the Philippines Province of

Sulu" (i.e., those resulting from the Treaty of 1930)as a red hatched line. The
east-west parallel line, at about 40201N,bears the annotation "Republic of
~ndonesia".~~The Map shows Ligitan andSipadan as well as the other islands

off Semporna. It contains a disclaimer. There are of course no islands in the
area to the south of the red hatched line,so the meaning of the phrase "Republic
of Indonesia" is quite unclear. If it was thought to reflect an allocation line,

there are no islands to thesouth for it to allocate.

5.24. The rnap does not show any boundary betweenMalaysia and Indonesia.
The only basis on which it might conceivablybe thought.to support Indonesia's

case (leaving to one side the effect of the disclaimer) would be if the red hatched
line at4O20'Nwere to be extended to the West,in which event it would attribute
to Indonesia not merelySipadan and Ligitan butalso Si Amil, Danawan, Mabul,

Kapilai and part of the mainland as well.

If some of the Malaysian maps on whichIndonesia relies are unclear, it
5.25.
remains the case that no single Indonesian map, so far as can be discovered,
supports the Indonesian claim (any more than do the pre-independence Dutch
maps). One importantofficia1Indonesian rnaphas already been fullydiscussed:

it is the rnap accompanying Indonesian Act No.4 on its maritime boundaries."
Among otherIndonesianmaps, the followingare illustrative.

5.26. The rnap "Kalimantan Utara", based on the "Internasional [sic]Map of
the World" series, is believedto be the first Indonesian publication of this sheet,
produced in Jakarta in 1965. It is clearly a copy of the 1941 rnap with some

amendments, particularly to thespelling of names. The (rather crudely-drawn)
border across Sebatik has been extended eastwards some 8 km across the sea.
Sipadan and Ligitan are not affected. An extract from the rnap is shown as
Insert 14, opposite. A photo-reduced copyof the entire rnap is in volume 2 of

this Counter-Memorial asMap 8.

'9
30 See IM Map Atlas, MapNo. 15.
See above for discussion, paragraphs 4.25-4.31, pp. 83-86.

1115.27. In 1968,a new Indonesian editionof the same sheet was published. The
even more crudely drawn boundary across P. Sebatik now extends only some 3

kms into the sea. An extract from the rnap is shown on the following page as
Insert 15. A photo-reduced copyof the entire rnap is in volume 2 of this
Counter-Memorialas Map 9.

5.28. The 1976edition of Sheet NB 50, "Bandar Seri Begawan",was printed
in 1977 in full colour and has bilingual marginal information (English and
Bahasa Indonesia). The boundary across Sebatik, drawn rather roughly as a
curving line, now stops at the eastern shore of the island. An extract from the
rnap is shown on page 115 as Insert 16. A photo-reduced copyof the entire

rnapis in volume 2of this Counter-MemorialasMap 10.

5.29. Then there is a rnap entitled "Sibatik. Land Systems and Land
Suitability". This monochrome 1:250,000 rnapwas producedjointly by UK and

Indonesian land evaluation authorities in 1987 (see volume 2 of thisCounter-
Memorial, Map 11). Unlike the earlier Indonesian maps referred to in this
section, itcarries a boundary disclaimer. The straight-line boundary across
Sebatik is extended some 12 to 13 kms across thesea. The islands offshore

NorthBorneo are not shown.

5.30. Kalimantan 1:1,500,000 is a large commercially produced generalrnap
of Kalimantan by PT Pembina, dated 199211993. This has a narrow red line
extending (but not due eastward) across the sea from the eastern end of the

boundary on P Sebatik. This line does not correspondto any boundary symbol
in the key to the map. Neither Sipadan nor Ligitan is shown, but they would
probably lie to thenorth of the narrow red line. An extract from the rnap is
shown on page 116as Insert 17. A photo-reduced copyof the entire rnap is in

volume 2 of this Counter-Memorialas Map 12.C. The relevanceof mapsin determiningdisputedboundaries

5.3 1. Before summarisingthe effects of the various maps in terms of the two
islands, some remarksare necessaryon the valueof rnapevidence.

5.32. In the first place, a vital distinction exists between, on the one hand,
agreed maps which areannexed to boundary treatiesor demarcation agreements

in order to depict their effect, and on the other hand, maps (whetherofficia1or
unofficial) which arenot agreed and do not form part of internationallybinding
instruments relating to a boundary. Maps in the first category areof great

importance and may be decisive. Maps in the second category are, at best,
evidence of repute, and they are not to be treated in any way as if they were
documents of title. The Court madethis clear in the Frontier Dispute (Burkina

Faso/Mali) Case, in a passagequoted in Malaysia's~emorial.~' It repeatedthe
point, with added emphasis, in its judgment of 13 December 1999in the Case
concenzing Kasikili/SeduduIsland (Botswana/Namibia).

5.33. In that case, as the Court noted,the rnapevidence on balancesupported

Namibia's claim to the island. Thus "early maps of the region placed the
boundary around KasikiliISedudu Island in the southern channel of the
~hobe",'~and the Court appears to have accepted Namibia's summationof the

rnap evidence, to the effect that "the majority of the maps submitted in these
proceedings, even thoseemanatingfrom Britishcolonial sourcesand intendedto
show the boundaries of Bechuanaland, tend to place the boundary around

KasikiliISedudu Island in the southern channel"." This was the case, in
particular, with a Britishrnap of 1933which was"in general use" in Botswana
for many years.34 Nonetheless the Court declined to accept that any legal

conclusion for the course of the boundary (based on the interpretation of a
boundary conventionof 1890to which no rnapwas annexed) flowed fromthese

facts. It said:

"In view of the absenceof any rnap officially reflecting the
intentions of the parties to the 1890 Treaty and of any

express ortacit agreementbetween themor their successors

3l
.2 ICJ Reports 1986, at p. 582, quoteMM,n para. 10.1, p. 107
33 Judgment of 13December 1999,para. 74.
14 Ibid., para. 76.
Ibid., para. 82. conce:rningthe validity of the boundary depicted in a rnap

(cf. Temple of Preah Vihear, Judgment, Merits, I.C.J.
Reports 1962,pp. 33-35), and in the lightof the uncertainty
and iiîconsistencyof the cartographic material submitted to
it, the Court considers itselfunable to draw conclusions

from the rnap evidence produced in this case. That
evidence cannot therefore 'endors[e]a conclusion at which
a couirthas arrived by other means unconnected with the
maps' (Frontier Dispute (Burkina Faso/Republic of Mali),

I.C.J. Reports 1986, p. 583, para. 56), nor can it alter the
results of the Court's textual interpretation of the 1890
~reat~."~~

Evidently, a very high standard of consistency, certainty and general acceptance

of the mapping historyof a disputed area has to be met if non-agreed maps are
to be relevantto title.

5.34. The Arbitral Tribunal in the first phaseof the Yemen-EritreaArbitration,
also considered the questionof maps in support of territorial claims, and reached

essentially the same conclusion. In reviewing the substantial rnap evidence
adduced in that case it stressed in particular its reluctance "without specific
direction from ithernap itself, to attribute meaning to dotted lines rather than to
colouration or itola belli^^ M^o"r.ge^nerally, it noted that even unequivocal

(but non-agreecl)maps adverse to one party or another were "as in al1cases of
maps, to be handled with great deli~ac~".~' Its conclusion as to the rnap
evidence overall was ratherdismissive:

"Then of course there are the maps.These islands are large enough

to finda place quite ofte- though by no means always - on even
relatively small-scale maps of the region. It is fair to assert that,
thanks to the efforts of counsel and especiallythose of Yemen, the
Tribunal will have seen more maps of every conceivable period

and prolvenancethan probably have ever been seen before, and
certainly a very much larger collection than will have been seen at
any time by any of the principal actors inthe Red Sea scene. In
fact, the:difficulty is not so much the interpretationof a plethora of

35 Ibid., pa87.
37 Award of9 October 1998,para. 382.
Ibid., para. 388. See generally ibidVI11for the review of the rnapevidence in
that case. maps of every kind andprovenance, as itis the absenceof anykind
of evidence that these actors tookverymuch notice of, or attached

very much importance to, any of them. The Tribunal is of the
opinion that in quite general termsYemen has a marginally better
case in terms of favourable mapsdiscovered,and lookedat in their

totality the mapsdo suggest a certain widespread repute that these
islands appertainto ~emen."'~

5.35. Indonesia as sert^ t^^t the officia1publicationof a map is anestoppel by
conduct. This is completely inconsistentwith the discussion of the status of
maps in the decisions of the International Courtand other tribunals in the cases

mentioned above, and is unsustainable in principle. Even if a map could be
considered a representationby the State concerned of a legal stateof affairs, for
itto constitute an estoppel it would be necessary (a) that it was unequivocal;(b)

that it was intendedto be reliedon; (c)that it was actually reliedon, and (d) that
the reliance caused detriment to the State so relying.40 None of those
prerequisites is met here, for a combination of the following reasons. First,

there is no pre-1948 British or post-independence Malaysian map which
attributes the islands to Indonesia; even if maps could constitute legal
representations none of these maps do. Secondly, mostof the Malaysian maps

contain disclaimers, indicating that they werenot intended to be relied on.
Thirdly, there is no evidence whatever that Indonesia reliedon any of the maps,
or that it suffered any detriment.

5.36. But as a matter of international law, maps as such (not signed or
endorsed by treaty or equivalent action by the States concerned) do not

constitute representations of law. If they did, the mapping authorities of States,
with their many and diverse interna1 functions, would have become the
unacknowledged legislators of mankind in the matter of boundaries. Under

international law they do not have such a role, and given the customaryconflicts
and inconsistencies in mapping in many parts of the world, itis inevitable that
they do not. A series of unequivocal mapsmay constitute evidence of general

38
39 Award of 9 October 1998,para. 490.
JO IM, paras. 6.67-6.69, p. 123.
For example, in thElSalvador-HondurasLand,Islandand MaritimeFrontierCase
(Applicationfor Permissionto Intervene),IReports 1990p.92 at p118 (para. 63), the
Chamber referred to the following "essential elements required by estoppel: a statementor
representation made by one party to another and reliance uponhat other party to his
detriment or to the advantage of the partyg it".iepute, but none of the maps relied on by Indonesiais unequivocal. By contrast,
the map annexeti to the 1915 Agreement, especially whenit is read with that

Agreement, is uriequivocal, andunlike anyof the maps reliedon byIndonesia, it
is an agreedmap focussing on the boundaryas such.

D. Conclusionsfromthe mapevidenceas a whole

5.37. Applying these legal standards to the maps tendered to theCourt, it will
be seen that the mapson which Indonesia relies fa11far short. As to Malaysia's
officia1maps, Indonesia assertsthat:

". .. Mala.ysianofficia1cartography consistentlydepictedthe extension of
the 4'10' N line of latitude out to sea as the southern limitof Malaysia's
territorial possessions in the a~-ea."~'

This is simply not the case. As in the case of British maps concerning
Bechuanaland/Blotswana,there was no complete consistency. But it has been
shown that none of the maps concerned attribute the islands to Indonesia.

Moreover whenever Malaysia produced maps focusing on local use of the
islands or actual regulation (e.g. in the context of its status as a native reserve
for turtles or subsequently as a conservation zone) the islands are clearly and

unequivocally shownas ~ala~sian.~~

5.38. Turning to the maps more generally, Indonesia asserts that themap

evidence is "corisistent and compelling", shows "remarkable consistency",and
is "clearly confirmatory of its title".43 This is a remarkable assertion,
considering that Indonesia has produced not a single Dutch or Indonesian map,

on any scale, wtiich shows the islands and attributes them to Indonesia. On the
contrary, the Dutch maps of 1897-1904 and of 1914 clearly show the boundary
terminating at thieeast Coastof Sebatik and thus attribute them to British North
Borneo. The Indonesian officia1archipelagic claim map of 1960 clearly does

not treat them as Indonesian, when it would havebeen verymuch in Indonesia's
interest to do so. Even Indonesian mapssince 1969 do not show theislands as
Indonesian. Moreover, of the comparatively few modernmaps which might be

interpreted in acontrarysense, each of them containsa disclaimer. Mostly these
maps do not show the islands at all, or (for the earlier maps) show them in the

4 I IM, para. 6.74, p. 12.5.
42 See e.g. MM, Annexes,vol.5, Maps 13& 18.
43 IM, paras. 6.77-6.79, p. 126-127.wrong place, and even if they arenot shown as Malaysian theyare not shown as

Indonesian either.

5.39. Malaysia's claimsto the islands depend on the chain of title by which
they were acquired from the United States as successor to Spain and from its
long, peaceful andunintermpted administration,extending back to the period of

the BNBC after 1878. It does not depend on maps. But the preponderanceof
the map evidence - and especiallythe 1915 map - supports Malaysia's case,
and this is in stark contrastto the fact thatno single Dutchor Indonesianmap, to
the present day, shows the islands as Indonesian. In fact, as we have seen, the

Dutch and Indonesian maps are unequivocalandentirelyconsistent;no readerof
those maps would think thetwo islands are claimedby Indonesia or are partof
Indonesian Kalimantan.In the iight of the considerations set out above, .Malaysia respectfully

requests the Court to adjudge and declare that sovereignty over Pulau

Lipitan andPulau Sipadan beiongs to Malaysia.

Datuk Abdul Kadir Mohamad
Agent of Malaysia

Kuala Lumpur

2August 2000 LISTOFANNEXES

Volume2

DiplomaticandOtherDocuments

Annex No. Pages

31CM 1 J.P.Maclear (comp.) Eastern Archipelago, 1-11

Part (Eastern Part)(London,Hydrographic
Office, Admiralty, 1890),pp. 182-189

MCM 2 Baron Gericke to Marquess of Lansdowne, 13- 16
16March 1905,Marquessof Lansdowneto
Baron Gericke,8October 1905

MCM 3 Letterfrom A. Flint, British Admiralty to
Under-Secretaryof State, ForeignOffice,
23 November 1927

MCM 4 Letterfrom Governor-Generalof the

Netherlands EastIndiesto Ministerof
Colonies,10December 1922

iMCM5 Memorandum with attachments,Legal
Department, Ministryof Foreign Affairs,

8 August 1923

MCM 6 Letter from Vice-AdmiralGooszento
Governor-Generalof the Netherlands East
Indies, 14February 1924

MCM 7 Letter from Ministerof Foreign Affairs to
Minister of Colonies, 27 September 1926

MCM 8 Decision otheMinister of Colonies,
2 October 1926.

MCM 9 North Borneo, FaunaConservation

Ordinance 1963>la0 No. Papes

1 SurveyMapof Netherlands EastIndies 59

Archipelago(1897 -1904)

East Coastof Borneo:IslandofTarakanup
to Dutch-EnglishBoundary(1905)

East Coastof Bomeo:IslandofTarakanup

to Dutch-EnglishBoundary(1915)

MapAccompanyingthe 1915Agreement
relating tothe Boundary between thetateof
North BorneoandThe Netherlands

PossessionsinBorneo

SheetNA-50"OostBorneo"(1935)

Map 25,Atlasof theTropical Netherlands

(1938)(extract)

SheetNoord(North)B-50"North
Bomeo" (1941)

Kalimantan Utara (1965)

Kalimantan Utara (1968)

SheetNB50 "BandarSeri
Begawan" (1976)

SibatikLandSystemsand Land
Suitabilit(1987)

Kalimantan (1992) -

APPENDIX 1

The RegionalHistory of NortheastBorneo in the

Nineteenth Century (with special referenceto Bulungan)

Prof. dr. Vincent J.H. Houben TheRegionalHistoryofNortheast Borneo intheNineteenthCentury

with special referenctoBulungan

Prof.dr.VincentJ.H.Houben

Pumose of thisRe~ort

1.1 As a professor of SoutheastAsian history,with a specialisationin nineteenth

century Indonesian history,1 have been asked by the Goverrunentof Malaysia to
providean independentexpert reporton theEastBomeoregionin thelatterpartof the

nineteenth century, commenting in particular on thestatus of Bulungan and its

relations with the maritimezone. To this end 1was givencopies of the Indonesian

and Malaysian Memorialson the Sipadan & Ligitan dispute. As these proved to
reflect only part of the historical material available, additional materials were

retrieved durkg research undertakenin the Dutch GeneralState Archives inThe

Hague. Also 1have reviewed additionalliteraturenot mentionedin theMemorialsof

both States (see the attached Bibliography). This report aims to providea balanced
insight into the regional history of East Borneo area in the period prior tothe

conclusion of the Boundary Convention of 1891, based on accepted methodsof

scholarlyhistoricalinterpretation.

1.2 For almost twenty years 1 have been involved in academic teaching and

researchconceming SoutheastAsian history,in particular Indonesia.DuringmyMA
studyatLeidenUniversity,which1startedin 1976,I specialisedin Indonesianhistory

including two of its major languages, Indonesianand Javanese. Between 1982 and

1987 1 wrote a doctoral dissertation at the same institution on the mid-nineteenth

century history of the indigenous states of Yogyzkartaand Surakarta. From 1986
until 1997 1was attached to Leiden University as a (senior) lecturer in Southeast

Asian history.in 1997 1 was appointed as ordinary professor of Southeast Asian

studies and head of Department at Passau University,Germany. Over the years 1published several books and numerousarticles in my field of specialisationand1 am
intemationally recognisedas a historianof Southeast Asia. Afull CV is aîtached to

this report.

2. General backmound: European Dresence in the region in the nineteenth

2.1 Europeanexpansionin islandSoutheastAsiawasa complexprocess involving

several Europeanactorsand a greatmultitudeof indigenous polities thatinteractedin

various manners in different locations. Dutch colonial expansion in the Indonesian

archipelagoin the nineteenthcenturywas built upontheexperiencesof the Dutch East
Indies Company (1602-1800),but cannot be viewed as a mere continuation of it.

From 1795 until 1814 a contractionof Dutch colonial power took place, as the

Netherlandswas incorporatedintothe French Napoleonicempireandthus becamethe

enemy of the English,whose navy was in control of the seas after the Anglo-Dutch
war of 1780-1784.In fact England annexed most of the Dutch possessions in Asia,

including its main power basein Java. Afterthe Conventionof London of 1814,the

Dutch were handed back most of their colonial tenitories in Asia, but Anglophobia
remained present among Dutchofficialsthroughoutthe nineteenthcentury. Effective

Dutch control was restoredin a nurnberof main portsoutsideJava, butthis proved to

be a tedious process necessitatingseveral military expeditions. In 1825, the Dutch

colonial possessions in the Indonesianarchipelago consisted of Java, the Moluccas,
Banka, Timor and a numberof coastal towns on the islandsof Sumatra, Borneoand

Celebes. In the islandof Javaa major Dutch-Javanesewar eruptedin 1825,whichthe

Dutch couldonly win with great difficulty in 1830.

2.2 After 1830 the Dutch concentratedon the economic exploitation of Java,

whereas in the Outer Islands the status quo had to be maintained. Abstention was

made a leadingprincipleofDutch policy,stronglysupportedby the ColonialOfficein
The Hague and the centreof administrationin the colony headedby the Govemor-

General ofthe Netherlands EastIndiesin Batavia. Local officialsin the OuterIslandswho broke this rule were even threatened with dismissal. CornmissioneG r ovemor
GeneralJ. vanden Bosch wrotein 1834:'

"Apart fromBanka, Banda and1think forthe timebeing alsoSumatra,al1the

otherpossessions aretroublespots (lastposten)[...] it is advisableto cut down
the infrastructureofthoseposts to the smallestsize and the slightest costs,to

liberalizealtogetherthe trade there forrcitizensand to makeeveryeffortto

exploitand protect Java, SumatraandBanka."

Only occasionally was thepolicyof abstention interrupted,particularlywhen foreign

intrusionsintothe Dutchsphereof influencewerefeared.

2.3 From 1894, the conquest of Lombok, until 1910 the Dutch made final

advances to the Outer Islands. This signalled the end of the officia1policy of

abstention,.whichsubsequentlybecarnereplacedby modem imperialism,a systematic

extension of forma1rule in al1the areas that were considered tobe part of the
NetherlandsEast Indies.The colonial boundariesdrawnat the end of the nineteenth

and early twentieth centuries are identical with the boundaries of present-day

Indonesia.

2.4 Colonial nile was exercised either through directnile by European colonial

officials or through a system of indirect ruleIn the latter case indigenous leaders

could retain their power, while at the same time being bound by contract to the
colonialState.This wastheruleinthe OuterIslands,sincethroughthissystemforma1

rule could be maintained in conjunction with the virtual absence of exercise of

effectiveDutch power, thusloweringadministrativeandmilitarycoststo a substantial
degree. At the sametimethe indigenousruler wasforbidden to act independently on

the international stage:al1 foreign relations wereto be conducted by the Dutch

themselves. Duringmostof the nineteenthcenturyeachindigenousrulerhad his own
individual Contract with the Dutch; amendrnentswere mostly made in case of a

succession. In 1898 a standard agreement, the so-called Short Declaration, was

introduced, by which.any givenindigenous ruler was compelled.to relinquish al1

'VandenBoschasquoted inColijnVol.I(l909-1914) 2-3.TransfiomDutch.

3rights in favourof the Dutch. This signifiedthat the Dutchwere willing and able to
dictate the tenns of their relationship with indigenous rulers, whereas earliruring

the nineteenthcenturythishad notbeenthe case.

3. Dutch riolicieswith respect to East Borneo

3.1 Bomeo had long beenan almostforgottenisland.The OuterIslandsas a whole
were peripheralto the Dutch, but Borneowas a periphery withinthe periphery. Its

status was unclear under the first Sumatra Treatyof 1824, it was not known as a

resource-rich region and its interior was unknown until the early decades of the
twentieth century.Dutch interference with Banjarmasinin the south dated fiom the

seventeenthcentury,but at the begiming of the nineteenth century nothingwas left of

this. As Kielstra,a Dutch expertduring the colonialera,pointed out:"the whole of

Borneo was independentaround 1810".2Regaining a footholdin Banjarmasinafter
the BritishInterregnumproved tobe farfiom easy:in 1817,a Contractwasconcluded

but afterwardstensions erupted with the Sultan,resultingin a situationin which the

Dutch Resident wasno more than a political agent: a"living coat of arms to protect
Dutch sovereigntytowards foreigner~".A majorwar eruptedin Banjarmasinin 1859,

which lasted until 1863. From the hinterlandresistancewas continuedeven up to

1905. The situation withregard to Pontianak and Sambas (West Bomeo)was not

muchbetter. Nominalsubjugationofthe Sultansinthearea could notpreventa major
military confrontation with Chinese mining comrnunities,which lastedfiom 1850

until 1855.

3.2 Abstentionwas the leadingprincipleof Dutch policy withregardto Bomeo. In

1843MinisterJ.C. Baudexpressedthis asfoll~ws:~

"With regardto Borneothe principlehas beenadoptedin the 1st fewyearsto

limit ourselves to the occupation of Sambas, Pontianakand Banjarmasin,

*Kielstra1920: 187.
'Kielstra,1920: 188.
BaudasquotedinDutchinColijnVo1.I(1907-1914) 31. without further attemptingto intervene directly in the administrationof the

interiornor tryingto expandourauthorityin theseregions."

As is clearfromthe standardworkof Irwin,Bomeo becarnea theatre ofAnglo-Dutch

rivalry.' In this respect itis veryimportant tonotethat there weretwoclearlymarked

periods of Dutch activityon Borneo, onein the mid-1840s and another from 1877

onwards. Both episodesof Dutch action, whichwere in clear deviation from the
officia1policy of abstention concemingthe Outer Islands,were essentiallyreactions

againstwhat was perceivedas an acute English threat.In WestBomeo,provokedby

the activitiesof James Brookein Serawakand on Labuan,the Dutch decided to peg

outtheir claims.Writingon the sequelto theseactivities,Fasseurnotesthatambitious

plans for the opening up of vat Bomeo weredeveloped,but that the Governrnentof
Bomeo as established in 1846remainedan "administrativecastle in the air" to be

silently abolished severalyears later.6 TheJournalde la Haye of 15February 1847

stated that Hollandcertainly did not claim the whole of Borneo, since it did not

develop rights on territoriesof the Sultanof Brunei,the Sultan of Sulu "and on al1

islandsalongsidetheNorthcoastof~orneo".'

3.3 The Brooke concession also gave rise to some Anglophobia in Dutch

govemmentalcircles.The administration soughtto barforeignadventurersfiom areas

that, although under Dutch sovereignty,were hardly known even off the coast. The

Minister of Colonies, J.C. Baud, deploredthat the Dutch did not even have an
accuratesurveyof the islandsandpeoples that couldbe consideredto be underDutch

rule. The Britishhad pressed theDutchfor such a survey in connection with action

by British naval shipsagainstseapiratesin coastalwaters, actionthat everynow and

then demandedpunitive expeditions againsttheir bases on land. Baud thought that
the Dutchcouldmake useof sucha complete surveyin order to fil1any existinggaps

in the sovereignty rightsacquired,but this shouldbe done silently and cheaply, for

instanceby the distributionofDutchflags and coatsof ms to indigenousrulers.'In

contracts with native rulers, in which these acknowledgedDutch sovereignty,the

largestpossible tenitory shouldbe defined.In the backgroundwas a hidden agenda:
--
Irwin 1955.
Fasseur1995:55-56,atp. 55.
'W.A. Baud1983, ~01.111:50-151.in private conversationswith King William II, Baud cherished the hope that a part of
the colonial possessionscouldon occasionbe sold to a European power,for instance

France or Belgium. This canbe compared withlaterplansof theMinisterof Colonies,

Mr. J. Loudon,in 1873tosel1thewesternpart ofNewGuineato Ital~.~

3.4 Pre-1890 activitiescloser to the North Bomeofiontier were essentiallyof a

reactive nature, like in the mid-19" century.The activitiesof Erskine Murray in the

Sultanateof Kutei, formally underDutch sovereigntysince 1825,raised alarmon the

Dutch side.In Berau, moreto thenorth,EdwardBelchertriedto get a foothold. Both
persons failedwhere Brookehad succeeded. However, theydidtriggera moreactive

Dutch policy inthe region, seekingto securenominaltitle by renewedcontractswith

the local Sultans. The situation on Bomeo's east coast was summarisedin a 1938

standardwork on Dutch colonial history.After a lengthyaccountof the disturbances

in the relationship between the Dutch and the Sultanate of Banjarmasin, E.S. de
Klerck stated:"

"In 1824,a treaty was concludedwith KotaWaringin,cededto the Company

in 1789bythe Sultanof Banjemasin, which treatywasto be renewedin 1878.
In 1825, permanent relations were entered into with Kutei, a former

prosperous Hindu colony. Murray's miscarried attempt to settle in that

Sultanatein 1844led to a militaryexpedition, which resultedin a treatywith

the above-mentionedstate. Sambiliung and GunungTabur, which formerly
formed one realm, called Berau, belonged to Banten up to 1788 and was

afterwardsceded to the East IndiaCompany.However,it was not before1834

that these petty states acknowledgedthe supremacyof the Govemment. In

1850 the relationsbetweenthe latter and these states were finally settled by
treaty. Bulungan, like the other statesovementioned playedno role of any

importance."

Fasseur1995:64.
Lindblad1989:3;onBelgium,see:Martin1866.
'ODe Klerck1938(reprint1975):309.3.5 The grantby the Sultanof Suluto Dentand Overbeckin 1878againprovoked

increasedactivity on thepart of the Dutch. A recent studyon the regionalhistory of
SoutheastKalimantan containsthe followingdescriptionof events:"

"The anival of British fortune huntersin Sabah in1878 formedthe second

chain of eventsthat called for a more vigorous policyI.t awakenedthe Dutch
governrnent to its self-assigned task in the scantily surveyed north-east.

Contracts were instantlyconcluded with thesultans of Bulungan, Gunung

Taburand Sarnbaliungandsoona small warshipcruisedthewatersof St Lucia

Bay, where the border between Dutch and British spheres of influence
supposedlyran.The officialrecognitionof the British North Borneoseulement

as a charteredCompanyin 1881motivated thepermanentstationingof a Dutch

districtofficer, in the border area. Geologists fiom the Bureau of Mines

traversed the sultanates,and before long the increasing attention thepart of
private capital called for a more impressive demonstrationof colonial

authority in these autocraticindigenous states.But the forest was thick and

land abundant and the Anglo-Dutchborder dispute remained unsettled for

years atlength."

3.6 Central Bomeo remained an area of little interest to the Dutch colonial

administration. As late as 1890the Dutch Assistant-Resident even suggested that the

Apo Kayan-area ought to be ceded to Serawak. Alann was raised when the Dutch

realised thatBrooke'sinfluence reachedbeyondthe bordersof Serawak. The need to
show the flag was the major reason behind the expeditionsof C. Nieuwenhuis of

1894, 1896-97, 1898-1900 to Central orne o.'* Only by 1909 were Bulungan,the

Tidungandotherlandsvisited regularly.13

3.7 In one particular area ofcolonial activity theDutch and English collaborated

ratherthan enteringinto competition:thiswas theproblemof seapiracy,which often

involvedthe slave tradeas well.Slaveryitselfwas forbiddenin theDutchEastIndies

since 1863,and the combatagainst sea pirateshad startedmuchearlier.It wasthe task

" Lindblad1988: 123.
IZNieuwenhuis1900.of the governmentalnavy (Gouvernementsrnarine) to patrol the archipelagoin order

to guarantee safe passage for western ships. B.H.M. Vlekke, author of another

standardsurveyhistoryofthe DutchEast Indies,wrote: l4

"Sea piracy regularly occurred on al1 seas of Indonesia. One punitive

expedition after another was directed againstthe pirates of Tobelo in the

Moluccas, againstthe radjas of Bomeo's Eastcoast, againstthe Acehneseand
even against theMorosof the Philippines, although these stoodunder Spanish

sovereign authority."

4. Bulunganas anindigenousSultanateontheEast Coast

4.1 The regional history of Bulungancan best be reconstnicted on the basisof

19' century European travel accounts (Hageman 1855V , on Dewall 1855), official
colonial documents (particularly the Memoranda of Transfer, made up by local

Residents, existent since 1877, and Mail reports), and literature on Malay state

formation.

4.2 The existing literatwe on Northeast Bomeo is unanimous in depicting

Bulungan as a small entity. Jerome Rousseau describes Bulungan as a pre-colonial

coastalstate,with limited interaction withthe inlandDayak peoplesof theKayan and

Pujungan rivers." The lower Kayan River itself was called ~u1ungan.l~Clifford
Sather definesBulungantogetherwithBerauas "pettykingdoms"on the eastcoastof

Kalimantan.''JamesWarrencircumscribedBulungan and Berau as "tiny realrns"."

4.3 From these denominationsit is clear that Bulungancannot be equated with

major neighbouring indigenous states such as the Sultanates of Brunei and Sulu.

Sulu, for instance, is characterisedin the specialist literatureas a segmentarystate,

" Rousseau1990:33-34.A closestudyof theMemoranda ofTransferandMailreportof thelate19'
andearly20"'centuryconfi this.
l4Vlekke 1947:341-342.TranslatiofromDutch.
l5Rousseau1990:10.
l6Rousseau1990:21.
l7Sather1997:30.
l8Warren1981:10.which involvesa duplicationof organisationalforms atdifferent state levels(central-

regional-local). Warren, the most importantexpert on Sulu history, writes on the
natureof this andsimilarindigenous polities: l9

"Temtorial dominion, a system of specialised offices, and a political

hierarchy exercisingsomecontrolover the use of forcein the areaof alleged
dominionwere implicit in the genesis of suchtraditional states (Sultanates)

as Sulu,Cotabato,Brunei, andKutai."

4.4 Bulungan,on the otherhand,was a smallMalaySultanate, analysedby A.C.
Milner inhis bookKerajaan (1982) as follows:

"Justas the Malaystatelacked govemmentalor legalstructures,so it differed

from Western statesin its geographicaldefinition.Temtonal borders were
oftenunknown [...The actual locationof the Malay state,in fact,appearsto

have beena matterof littleimportance.[...] The Malayword ofientranslated

loosely as 'govemment', 'state' or 'kingdom'was kerajaan.[...] kerajaan

connotateslittlemorethan 'beingin the conditionofhaving a Raja'."

In other words,the Malay Sultanateas a politicalentitywas very weak, exceptwhen
it developed intoa majorpolitylikeMalacca.

4.5 Sulu and Bulunganwere thereforeentitiesof a differentkind.It is clear that

in pure scale Bulungan was tiny compared to large entities like Sulu and Brunei.
Bulungan cannot be ranked as a segmentary state in the sense of a reduplicated

organisationofpersons butit did in fact develop particularterritorial claims. Crucial

is ultimately to what extent these claims could be validated by actual exercise of

power.The rangeof power of Bulunganwas very modest,as were the possibilitiesof
the local Sultanto exercisereal power.

''Warren1981: xxii.4.6 Before 1800Bulunganhadbeenpart of a biggerrealm calledBerau,that also

includedSarnbaliung,Gunung Tabur and, conquered bythe Malays,theTidung lands.

Around 1800 Bulunganbecameits ownpolity, separatefiom Berau. Onlyjustbefore

the conclusionof the firsttreatywiththe Dutchin 1850,Bulunganwas recognisedby
them as a separate Sultanate. The seat of the Sultanwas TanjungPalas at the left

bank of the Kajan River, which by 1849 housed 2,000 to 3,000 people.20On the

opposite bank of the river, at Tanjung Seilor, local Dutch officiais installed

themselves. Berau, Sarnbaliungand Bulunganconstituteddifferent political entities,

each under its own Sultan, with which the Dutch govemment concluded separate
treaties. The Tidunglands were supposed to belongto Bulungan, whereas Gunung

Taburand Sambaliungbelongedto Berau,situatedto thesouthof Buiungan.

4.7 The compositionof Bulungan society was complex. Besides Malays one

could find Dayak, Taosug (fiom the Sulu Archipelago) and Bugis (fiom South

Sulawesi). The last-mentioned interrnanied with prominent families and were
assimilated.*'

4.8 The coastal SultanatesofKalimantan, to whichBulunganbelonged, claimed

largerareasthan theycould effectivelycontrol. Accordingto Ro~sseau:~~

"While small and relatively weak,coastal sultanateshad the trappings of
states: they defined themselves as regionalpolities with a temtory which in

theory they controlledexclusively,and they had the right to impose taxes.

[...] In practice,Bomeo sultanateshad a coastal nucleus:the areas close to

the capital were under achial control of the Sultan and his followers, and

were taxed on a regular basis. The state also controlled and taxed thetrade
that passed through this area. These small principalitiesdid not effectively

control al1the temtory which they nominallyclaimed, and they wereoften

politicallyunstable."

21Dewall 1855:429.
Warren1981: 10. Taosug werea classof tradersfromthe Sulurealm.Bugismugineseconducted
maritimetradethroughoutthearchipelagoandcameoriginallyfiomSouthSulawesi.
22Rousseau1990:284.4.9 The extentof actual powerby the centre inBulunganwas largely dependent

on the individual capacities of each individual Sultan and was thereforesubject to
variation. In 1880,the Sultanof Bulungan wasdescnbedby the Dutch as a weak,old

man with almostno influence, wrestlingwith an elite connectedto slave trade.23In

1894, Resident Joekes noted that Sultan MoharnadAlimuddinwas an insignificant

personality, causing the nobilityto do as theyleased.~In 1916, ResidentRijkmans

observedthat the young Sultan of about 37 years old wasphysically unsuitedforhis
position and that the actualadministration wastaken care of by datu Mand~r.~*In

1921,the Sultanwas identifiedas someoneofDayak descent,a man who inthe delta

of the Bulungan river exercised someauthority and had made big money from the

Tarakan oilconcessions.

5. DutchinterferencewithBulungan

5.1 A close reading of theMemorialsof Transferby the local Residents clearly

shows that the Dutch presencein the area was limited throughout the nineteenth
century. In the Dutch Memorialof Transferof 1877, Bulunganwas classifiedas an

entityundercontractwith the Netherlands Eastindies. However,it did not belongto

those areas where the Dutch appointed the head of govement. Bulungan can

therefore be classified as an indirectly ruled area. The first Contract of 1850 was

followed by a second one in 1878, that was meant to Mer consolidate Dutch
prestigeandcontainedclausesregardingthepreventionof sea piracyanddebt slavery.

5.2 On land, local Dutch administrationwas arranged for in 1877, after the

Assistant Resident of Kutei & Eastcoast Borneo had undertaken a journey of
inspectionalong the East coast, to be followedby other journeyslateron. In 1879,

the AssistantResident of Kutei was sent northwards,looking - sometimesin vain -

for local heads fromwhomcouldtaken downwritten statementsthat they considered

to be under the authority ofBulungan. in 1882,a Dutchcontrollerwasstationedat

MuaraTawauin St. LuciaBay. Thisofficerwasthenmovedto Bulunganin 1889. A

''MOT2 March1880, ARA microfiche267-2.
24MOT 22 April1894ARA microfiche269-1.
25MOT 3 June1916,ARAmicrofiche271-1.major issue in the Dutchdocumentsat the time was the identificationof the northern

boundary of Bulungan, importantbecauseDutch and British claims,based on their
contracts with, respectively,Bulungan andSulu, overlapped. Nowherein the Dutch

colonial documents wasthe issueof a sea-boundarydiscussed.

5.3 Increasing Dutch interference wasnot entirely uncontested. In 1921 the

Sultan of Bulungan protested against the Short Declarationbeing forced uponhim,
even went to Holland to plead his case before the Ministerof Colonies and retained

his opposition untilhis death in October 1924.26In 1921Resident Hens madeclear

that the Dutch colonial authorities,intheircontactswithBulungan,had systematically

served their own needs against the English:"Norninally has the whole region,
nowadays calledthe Boeloenganregion,been considered tostand underthe authority

of the Sultan, notbecause he exercisedany butbecausewe had to proveOurclaims

againstthoseof BritishNorth BomeoandSerawak(bordertreat~)".~'

6. Bulunganrelationswith maritimeareas

Bulun~anauthoritvin the coastalstrip

6.1 No fixed boundaries existed between theSultanates bordering the coasts.

According to local indigenousnotions,a particularriver basin (up to the watershed)

constituted a political-economicunit. Between these basins ofien existed unclaimed

forestedor swarnpylands. Trading systems normally were configuredto riverbasins,

although political considerations could induce people to cross ~atersheds.~'
Disagreements about claimsof overlordship could, however,lead to tense relations

between neighbouringStates.

6.2 The existingprimary and secondarysourcesprovideno firm conclusionsas to
where Bulungan's power ended in northerly directionalong the coast. Bulungan

controlled principallythe lowerKayanRiverbasin. The statusof the Tidunglandsto

261924,SecretAppendixtoMOT192 1andsubsequent OTS.
''MOT1921, ARA microfiche273-1+/2.
28Rousseau1990:288.the north, whichcomprisedthebasinsof theSibukuandSimengarisRivers,was at the

time unsettled. The economyof the Sibuku areawas firmly linkedwith that of Sulu

and was controlledby Taosugand Bugistraders.Warrenwrote:"Thesetradecenters

were sometimestributaryto the Bugis,sometimesto the Taosug,and when occasion

permitted sometimes independent of the authority of their stronger o~erlord."~~

Bulungan and Berau as a whole seemedto have been until as late as 1830"distant
Bomean dependencies"of Sulu.30 This observationis confirmedby the statementof

Von Dewall in 1855that north of Berauthe coast was under Sulu rule, apparently a

gifl of Brunei for its help in an interna1~onflict.Later the status of Bulungan and

Berau vis-à-vis major statesin the areais unclear, but it can be assumed thatthey

acquiredamoreindependent status.

Trade relationsbetween Bulunganandthe maritimezone

6.3 Northeast Borneo wasthe core of the Sulu Sultanate'sprocurement trade.

Sulu daîus settled at river mouths,in bays and on coastal islandsalong the coast

stretching fiom Maruda Bay to ~ulungan.~* In this trade slaves were exchangedfor

tripang, bird's nests, wax and other forest products. Taosugand Bugis middlemen

who settled in thearea dominated thistrade. Yet,at the sametime Warrenadds that:
"On the Sibucco, Sambakong, and Bulungan river the Sultanate's [Le. Sulu]

hegemony and trade were still plainly visible."3After the middleof the lgh century

the trade, and thus Sulu's hegemony, declined: Warren states that until 1860

Bulungan's trade wasdominatedbytheSulu S~ltanate.~~

6.4 In the mid-19" centurydirect trade between Sulu andTidung fell off due to
several reasons. Directtrade was apparently forbidden and relegatedto Bulungan,

once the Spanisherected ablockadeof Joloin the SuluArchipelag~.~~ Also,afterthe

middle of the 19" centurywesternnaval presence in the region increased. Despite

this, lucrative trade relations existedbetweenBulungan andBajau people fiom the

29Warren1981:85.
Warren1981: xx.
3'VonDewall 1855:425.
32Warren1981:75.
33Warren1981:85.
34Warren198 1:87.
35VonDewall 1855:427.Sulu Archipelago,who regularly landed withtheir boats on the shore to exchange

slaves for forest products.Trade with the Bugis existed as well. The Bajau people

were experienced seamen, whereas, as local oral tradition confirmed,the people of
Beraunever dared to move out onto sea.Likewise Bulungan didnot possess itsown

perahus. During a famine in 1879several thousand slaves were apparentlytaken to

Bulungan fromthe Sulu Ar~hipelago.~I~n 1880 ResidentMeijer refers to the slave

trade of the northerly realms of Berau and Bulungan, where the trade with the

inhabitantsof the Sulu Archipelagoconsistedof exchangingproductsagainst robbed
humanbeings, that were beingsold in Dutch ter~itory.~T'hus Bulungan itselfstarted

to play a central role in the slavetradeof theregion.

6.5 No historical sourcesindicate anyrelationsbetween Bulunganand the islands
of Sipadan and Ligitan. DinawanIDanawan-islandin the Sempoma districtwas the

main centre from which relations betweenthe Bajau and the outside world were

maintained. This island liesearthe edgeof themain BajauLaut fishing grounds,i.e.

theLigitanreefs.VonDewallstated thatin 1849Bajauboats camefiomDinawan and

established themselves further down the coast, while 50 other boats settledin the

islands of Bera~.~' The Semporna BajauLaut oral tradition claims that theyhave
maderegular voyages until the 1920stothe areasof eastern Kalimantanreferredto by

Von Dewall. Semporna was developed as a market centre by the BNBC fiom the

mid-1880sonwards.

Conclusions

Themainpoints of this historicalreportmightbe surnrnarisedas follows:

i. From 1830 to 1894 the Dutch concentratedtheir colonial efforts on Java,
whereasin the Outer Islands apolicy of abstentionwas pursued.With regard to

Bomeo, the Dutch displayed sudden activity twice, reacting to the activitiesof

Brooke,Murray and Belcherin the 1840sandto the 1878Sulugant to Dent &

Overbeck. On those occasions theytried to assert their tenitonal claims with

36Warren1981:199-200.
" MOTMeijer2 March1880, ARA microfiche261+ and2.
VonDewall1855:445-447. regard to what they consideredto be their spheresof influence. Contracts with
local power holders were part and parce1of suchpolicy.

..
il. Dutch colonialinterestin the maritimezone was rather limited. Combatingsea

pirates and slave trade was the main issue, for which collaboration with the

English was sought.

111. The Sultanate of Bulungan was asmall Malay coastal Sultanate with limited

territorialreach. Untilthe middle of the nineteenthcentury,the Tidung landsto

the north of Bulunganseem to have been dominatedby Sulu andBugis traders.
AftenvardsBulungan seemedto have developed into the central slave market of

the region despite increased naval patrols by both the British and the Dutch.

Bajau from the Sempoma area played most likely a central role in this slave

trade.

Pr0f.dr.V.J.H.Houben

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unchangedreprintof the editionpublishedinRotterdam, 1938.
J.Th. Lindblad, Between Dayak and Dutch. The economic historyof Southeast
Kalimantan 1880-1 942.Dordrecht/Providence:Foris 1988.
J.Th. Lindblad, Het belang van de Buitengewesten: economische expansie en
koloniale staatsvormingin de buitengewesten vanNederlands-Indië, 1870-1942.
Amsterdam1989.
H. Martin, De Engelschen en de Nederlandersin den Indischen Archipelmet

terugzigt op eene besproken vestigingder Belgen op Borneo. Amsterdam: Blom
1866.
A.W. Nieuwenhuis, In CentraalBorneo: reis van Pontianak naar Samarinda.
Leiden 1900.
J.Rousseau,CentralBorneo.Ethnicidentiiyandsocial life in a stratfled socieiy.
Oxford 1990.

Clifford Sather,The Bajau Laut. Adaptation, history, andfate in a maritime
Jishingsocieiyofsouth-easternSabah.KualaLumpur1997.
B.M.H.Vlekke,GeschiedenisvandenIndischenArchipel.Roermond 1947.
J.Warren,TheSulu Zone,1768-1898.Thedynamicsof extemal trade,slaveryand
ethnicity in the transformationof a SoutheastAsian maritime state. Singapore
1981. CURRICULUMVITAE
Vincent J.H.Houben

Place anddateofbirth Amsterdam, 2-5-1957

Office: Departmentof SoutheastAsian Studies
UniversityofPassau
Innstrasse53, D-94032Passau
Tel.:++49-851-509-2740
Fax: -49-85 1-509-2742
Mail: vhouben@uni-~assau.de

Education: 1969-1976Gyrnnasium-Ain Haarlem
1976-1982StudyofHistoryat Leiden
Majorin modemhistory,minors
in IndonesianandJavanese
1987Ph.D.inHistory,LeidenUniversity

1982-1985Research assistantat Leiden
WorkExperience:
University
1986-1997 Lecturerof SoutheastAsian
historyatLeidenUniversity
- Review EditoroftheJournaloftheRoyal
Instituteof Linguisticsandthropology
(fiomJanuary1993to 1997)
- HeadofEducationof theFacultyofArts and
Humanities(March 1996-July 1997)

Professional: SinceOctober1, 1997, Head,Departmentof
SoutheastAsianStudies,Universityof
Passau

Memberships EUROSEAS(EuropeanAssociation for
South-EastAsianStudies)BoardMember
fortheperiod 1998-2001

FORAREA (Bayerischer Forschungsverbund
AreaStudies)Memberof the Executive
Board sinceOctober1997

German Association for Asian Studies
Member, Advisory Councilfor Southeast
Asia,sinceMay 1999

CurrentResearchTopics Indonesianeconomichistory;the historyof
Javaneselabourmigration;thepost-cnsisculture
ofreformin Southeast Asia

Current ResearchProjects 'EconomicCultureandBusiness
Cooperationin SoutheastAsia'
(FORAREAProjectMay2000 -April2002)Professor Dr. VincentJ. H. Houben
- List of Publication-

BOOKS

- Kraton and Kumpeni. Surakartaand Yogyakatta1830-1870. Leiden:KlTLV
Press 1994 [396 pp.; revisedtranslationof the unpublishedPh.D.thesis Leiden
University 19871
- Vankolonie tot eenheidsstaat. Indonesiëinde negentiendeen twintigste eeuw.
Semaian 16. Leiden: VakgroepTalenen Culturenvan ZuidoostAzië en Oceanië
1996.Xii + 287 pp.
- Together with Dr.J. Th. Lindblad,CoolieLabourin Colonial Indonesia.A Studyof
Labour Relationsin the OuterIslands,c. 1900-1940,Harrassowitz, Wiesbaden,
1999.

BOOKS (CO-)EDITED

- V.J.H. Houben, H.M.J. MaierandW.van der Molen(eds.),Looking in odd
mirrors: the Java sea. Semaian5 (Leiden:vakgroep Talenen Culturenvan
Zuidoost-Azië en Oceanië 1992)
- Bernhard Dahmand VincentJ. H. Houben(eds.), Vietnamese Villagesin
Transition.Passau ContributionstoSoutheast Asian Studies,Vol. 7, Passau
University 1999

ARTICLES

1- 'The Positionof the Mangkunagarawithin thePartitionedPoliticalStructureof
Central Java' in:C.D. Grijns& S.O. Robson(eds.), Cultural Contactand Textual
lnterpretation(VKI 115.Dordrecht/Cinnaminson1986) 178-189.
2- Together with P. Carey, 'Spirited Srikandhisand Sly Sumbadras:the Social,
Politicaland Economic Roleof Womenat the Central JavaneseCourts inthe 18th
and early 1gthCenturies'in: E. Locher-Scholten& A. Niehof(eds.), lndonesian
Womenin Focus (VKI 127.DordrechtIProvidence1987)12-42.
3- 'Native Statesinlndia and Indonesia:the NineteenthCentury'in: ltinerario
Special lssue 1987-1, pp. 107-134.
4- Together with D. Kolff, 'BetweenEmpireBuildingand State Formation.Official
Elitesin Java and MughalIndia'in: Itinerario Special lssue1988-1, 165-194.
5- 'History and Morality: East SumatranIncidentsas described byJan Breman'in:
ltinerarioXI1-2(1988) 97-100.
6- 'Economic Policyin CentralJava inthe NineteenthCentury' in:A Maddison& G.
Prince(eds.), Economic Growthin Indonesia,1820-1940(VKI 137.

Dordrecht/Providence1989) 185-202.
7- 'Surakarta. Cité héroïqueet florissante' in:Archipel(989) 19g721 8.
8- 'Balansvan de dekolonisatievan Indonesië', in: CivisMundi 29-2 (1989) 77-82.
9- 'De opkomst van het.Nederlandsekolonialesysteeminde Indonesischearchipel
in de negentiendeeeuw',in: W. van der Molen(red.), Indonesiana.Cultuurkunde.
van Indonesië (Leiden:vakgroepTalenen CulturenvanZuidoost-Azië en
Oceanië 1989) 107-116.10-'Java andthe Java Sea. Historical Perspectives'in: V. Houben& H. Maier (eds.),
Lookingon odd mirrors:the JavaSea.Semaian5. (Leiden1991)212-240.
11-'A Tale of Two Cities: Yogyakarta and Surabayai'n: BernhardDahrn(ed.),

Regionsand RegionalDevelopmentin the Malay-IndonesianWorld(Wiesbaden
1992) 143-1 57.
12-'De Indo-aristocratievan Midden Java: defamilie Dezentjé'in: WimWillems(ed.),
Sporenvan een lndisch verleden 1600-1942 (Leiden1992)39-50.
13-'Geschiedenisin discussie. Hetgebruikvan literaire bronnen bijde
geschiedschrijvingvan Indonesië', in: lndischeLetteren7-4 (december1992)
161-166.
14-'Privateestates in Java inthe nineteenthcentury;a reappraisal',J. Thomas

Lindblad (ed.),New challenges in the moderneconomichistoryof lndonesia
(Leiden: Programmeof lndonesianStudies1993)47-65.
15-'Colonial history revisited.Aresponseto Breman', in:tinerarioXVII-1 (1993)93-
97.
16-'Javanese Labour Migrationinto SoutheastAsia,the Pacificand Australia',in:
Paul Crook (ed.),Proceedingsof the Universityof QueenslandHistoryResearch
Groupno. 5 (1994) 16-30.

17-'Profitversus ethics. Governmententerprisesin the late colonialstate',in: R.
Cribb (ed.), TheLate ColonialStatein Indonesia.Politicaland economic
foundationsof the Netherlandslndies 1880-1942(Leiden:KlTLV Press1994)
191-211.
18-'Trade and state formation in CentralJava 1'h-19'century', in:G.J.Schutte(ed.),
Stateand trade in the lndonesianArchipelago(Leiden:KlTLV Press 1994)61-76.
19-'De betekenisvande kolonialetijd voor Indonesië', in: VGTE(Contactbladvan de

verenigingvoor de geschiedenisvan de twintigste eeuw) aflevering4 (1995)9-
14.
20-'Labourconditionson WesternFirms in Colonial Indonesia: Outlineof an
Approach', in: Jahrbuchfür Wirtschafisgeschichte1995-1(Weinheim:
Akademieverlag)93-105.
21-'Wachtenop een mentaledekolonisatie.Indonesië en de hedendaagse
Nederlandsemaatschappij'in: Ons Erfdeel39-1 (1996)81-91.
22-'The Labour lnspectorateand LabourConditionsinthe Outer Islandsand Java,

1900-1940', in: J.Th. Lindblad(ed.), Histoncalfoundationsof a nationaleconomy
in Indonesia, 1890s-1990s(Amsterdam/Oxford/NewYorkITokyo:Royal
NetherlandsAcadernyof Arts and Sciences 1996) 193-206.
23-'A Torn Soul:the Dutch Public Discussionon the Colonial Pastin 1995',in:
lndonesia 63 (April 1997)47-66.
24-'Die Niederlanderin Indonesien: Unbequeme Kolonialgeschichte'i,n: DAMALS -
11/97(November1997),DeutscheVerlagsanstalt (DVA)GmbH,Stuttgart 1997,
24-28

25-Roel de Neve en Vincent Houben,'Herenop het land.lndische
cultuurondernemers', in:W. Willems,R. Raben,E. Seriese,L.v.d.Linden,U.
Bosma(Herst.), Uit Indië geboren. Viereeuwenfamiliegeschiedenis(Zwolle:
Waanders 1997)51-63.
26-"Nyabrang/'overzeegaan'.Javaanseemigratietussen 1880en 1940',in: Piet
Emmeren HermanObdeijn(red.),Hetparadijsis aan de overrije. Internationale
grenzen en miyratie (Utrecht:Van Arkel 1998)51-65.
27-'L'assimilationaux Pays-Basdu passéindonésien',in: Septentrion 27-1 (1998)
59-6428-'The ChangingPaceof Life in SoutheastAsia', Conference report(19-22 Nov.

1997, Leiden) in: IlAs Newsletter 16 (summer1998) 27.
29-'PolitischeKultur und die WirtschaftskriseSüdostasiens',in:ASIEN Nr. 70 (Jan.
1999) 12-29.
30-'Economiccrisis and the cultureof reform in SoutheastAsia', in:European
Review, Vol. 7,no.4 (1999)487-496.
31-'The unmasteredpast:decolonizationand Dutchcollectivememory', in:
EuropeanReview,Vol. 8, no. 1 (2000)77-85.

32-'TimorEst. L'interventionoccidentale',in:AFRASEno. 50 (March2000) 20-21.
33-'Adat en Agama', in: BernardArps en Willemvan der Molen(eds.), Woorden
schrifi (Leiden2000) 33-52.
34-'Reaktionenin Südostasienauf dieGlobalisierung:Die Suchenach neuer
Legitimation',in: Günter Schucher (Hrsg.),Asien unter Globalisierungsdruck.
PolitischeKulturenzwischen TraditionundModerne(Hamburg2000)92-99.