INTERNATIONALCOURT OF JUSTICE
CASE CONCERNING SOVEREIGNTY OVER PULAUIGITAN AND PULAU SIPADAN
(INDONESIAIMALAYSIA)
REPLY
SUBMITTED BY
THE GOVERNMENT OFTHE REPUBLICOF INDONESIA
Volume 1
2 MARCH 2001 1
TABLEOF CONTENTS
Page
INTRODUCTION ..................................................
.................1..........................
PART1 INDONESIA'STITLETO SIPADANANDLIGITAN .................................
CHAPTERI THE OBJECT AND PURPOSE OF THE 1891
CONVENTION .................................................7
.....................
Section 1. Introduction....................................................
..........7
Section2. The Background to the1891Convention........................
Section 3. Negotiations for the 1891Convention .................15..........
Section4. The Naval Surveyof May-June 1891 ..................24...........
Section 5. Conclusion ..........................................31............................
CHAPTERII INTERPRETATION OF THE 1891 CONVENTION IN
THE LIGHT OF THE SUBSEQUENT PRACTICE .................
Section 1. The Terms of the Convention ...................................
Section2. The Explanatory MemorandumMap ..................4.......
Section 3. The Irrelevanceof the 1915 and 1928Agreements .......7.
A . The 1915Agreement..........................................
B . The 1928Convention ...........................52.................
Section4 . Interna1 Dutch Deliberations on a Maritime
Boundary Eastof Sebatik............................................5
Section 5. Conclusion ...........................................56...........................
CHAPTERIII THE SUBSEQUENT CONDUCTOFTHE PARTIES
CONFIRMING INDONESIA'STITLETO THE ISLANDS .......
Section 1. The Visit of the Dutch Naval Vessel. Lynx. to
Sipadan and Ligitan in 192.....................................
Section2 . The Oil Concession History Supports Indonesia's
Title................................................60....
................. Section 3. Navigational Aids Erected by the Parties on Either
Side of the4" 10'N Line.............................................6
Section 4. Indonesian Naval Patrols andFishing Activities ..........5.6
Section 5. The Map Evidence Supports Indonesia'sPosition as
to Sovereignty ..........................................66.....................
PART 2 THE ABSENCE OF ANYMALAYSIAN TITLE TO THE ISLANDS...........7 .5
CHAPTER IV THE RE-ORIENTATION OF MALAYSIA'S POSITION ..........75
CHAPTER V NON-EXISTENCE OR UNCERTAINTY OF PRE-
COLONIAL TITLES .............................................................
.
Section 1. The Malaysian Errors and Approximations
Conceming the Southem Extension of the Sultan of
Sulu'sPossessions .....................................8................
Section 2. The Erroneous ConsequencesDrawn by Malaysia on
the Probable Northem Boundaryof the Sultanate of
Boeloengan ............................................................
Section 3. The Malaysian Errors and Extrapolations
Conceming the Ownership of the Disputed Islands
before 1891 ...........................................................
Section4. Conclusion ...........................................10...........
CHAPTER VI THE ABSENCE OF MALAYSIAN SOVEREIGNTY OVER
THE ISLANDS BASED ON A CHAIN OF TITLE
PASSING FROM SPAIN TO THE UNITED STATES TO
GREAT BRITAIN ..............................................10........
..
Section 1. Introduction ..........................................03............
Section2. Sipadan and Ligitan Did Not Fa11Within Spain's
Possessions in the Area............................................1
A. The 1836 Capitulations and the 1851 Act of
Submission ................................................
B. The 1877and 1885Protocols ...................1.......
Section 3. The United States Did Not Consider that it Had
Sovereigntyover Sipadanor Ligitan ..................1......
A. The 1898and 1900Spanish-U.S. Treaties...........1 .11 B. The Events of 1903........................................113
...............................
C. The 1907Exchange ofNotes .121
D. The Effects of the 1930 Anglo-American
Convention. ....................................124...................
Section4. Conclusion...............................................................1
CHAPTERVI1 THE ABSENCE OFANY DE FACTOTITLE ACQUIRED
BY MALAYSIA. ...............................................131...
..................
Section 1. Introduction .........................................131........................
Section 2. The Legal Impossibility of Acquiring a De Facto
Titleby Malaysia ....................................132.....................
Section 3. The Practice Alleged by Malaysia Lacks the
Required Characteristics..............................135...............
A. The So-Called "British Administration of the
Islands".........................................135.....................
B. The Irrelevance of Maritime Claims in the
Area ............................................140.......................
C. The Maps Invoked byMalaysia ..................142......
SUBMISSIONS
MAP ANNEX
CERTIFICATION
LIST OFANNEXES MAPS
FacingPage
Map 1 Illustrative map showing British Proposa1during the Negotiation of
the 1891Convention. ..........................................................2
...................
Map 2 Illustrative map showing the Teiseki and PerminaIJAPEX
concessions, along withRoach Reefs and Alert Patches, plotted ont0
a nautical chart of the areain question..................................................................
Map 3 Map entitled Oil Prospecting Licencesand Leases, from the Annual
Report of the Geological Survey, BorneoRegion, Malaysia 1967,
Malaysian Ministryof Lands and Mines, 1968. .................................6........
Map 4 Enlargement of map of Borneo from Stanford's London Atlasof
Universal Geography, 1887. ...........................................................
.........
Map 5 Enlargement of map of Borneo from Stanford's London Atlas of
Universal Geography, 1894. ....................................................-......
.........
Map 6 Enlargement of map of Borneo from Stanford's London Atlas of
Universal Geography, 1904. ....................................................8.......
..........
Map 7 Chart of the Northern Shore of Sibuko Bay published by the U.S.
HydrographicOffice, H.O. Chart2117(first edition). .........................1........
Map 8 Chart of the Northern Shore of Sibuko Bay published by the U.S.
HydrographicOffice,H.O. Chart 2117(section edition). ......................1.......
Map 9 Chart of the Philippines published by the U.S. Hydrographic Office,
H.O. Chart 529. .........................................................
...1...................
Map 10 Illustrative map showingextent of U.S. possessions inthe Sulu Sea. ..........1..0 INTRODUCTION
1. Indonesia'sReply is submittedpursuant to the Court'sOrder of 19 October 2000fixing
2 March 2001 as the time-limit for the submission of the Parties' Replies in the case. In
accordance with Article 49(3) of the Rules of Court, Indonesia will not in this Reply attempt
to recanvass al1of the issues in the case. Indonesia will instead concentrate on the principal
.
issueswhich, at this stageof the proceedings,continue to dividethe Parties.
2. Indonesia'sposition onthe issueof sovereigntyis straightfonvard. Indonesiaconsiders
that it possesses sovereignty over both islands on the basis of a clear treaty title agreed by the
Parties'colonial predecessors, The Netherlands and Great Britain, in the 1891 Anglo-Dutch
Convention.
3. Prior to the 1891Convention,the limits of the respectiveterritorial possessions of The
Netherlands and Great Britain (the latter on behalf of North Borneo) in the area were
uncertain. Both had acquired their possessions on the basis of grants from the local rulers -
the Sultanof Boeloengan in the case of TheNetherlands and the Sultansof Brunei and Sulu in
the case of Great Britain. However,the precise extent of these rulers'domains were uncertain.
4. The 1891 Convention was inspired by the cornrnon desire of The Netherlands and
Great Britain to resolve this uncertainty once and for al1so as to avoid further controversy.
The intention to conclude a convention settling territorial questions both on the Borneo
mainland and with respect to offshore islands was made clear during the negotiations leading
up to the signature of the Convention and inthe proposalswhich were exchanged betweenthe
parties.
Contrary to what Malaysia says in its Counter-Memorial, Indonesia does not Saythat
5.
there was a specific dispute concerning the islands between The Netherlands and Britain
before 1891'. Nor does Indonesia maintain that this dispute was resolved in favour of The
1 MCM,para. 1.5(b).Netherlands by virtue of the 1891 convention2. Indonesia's position, whichis supported by
the terms and context of the Convention itself, the travauxpréparatoires, the Explanatory
Memorandum Map presented to the Dutch Parliament in the course of the Convention's
ratification a map which was known to and acquiesced inby the higher levels of the British
Government - and the subsequent conduct of the Parties, is that the 1891 Convention
represented a compromise solutionbehveenthe positions ofthe Dutch and British bothon the
mainland and with respect to insular possessions. Certain islands, Sipadan and Ligitan
included, were determinedto be Dutch by virtue of their locationto the south of the 4" 10'N
parallel of latitude; others islands lyingrth of the 4" 10'N line were deemed to be British.
As such,the 1891Convention "favoured"neither oneparty northe other.
6. There is a wide array of evidence drawnffom the post-1891 Convention period which
confirms Indonesia's position. Malaysia has systematically neglected or attempted to
downplay the significance of this evidence, but the evidence is of considerable, if not
dispositive, value inthe case. In addition to the important Explanatory MemorandumMap, it
includes a consistent pattern of conduct on the part of the Parties and their colonial
predecessors respecting the 4" 10' N line in practice as separating their possessions in the
relevant area. In particular, the visit in 1921 of the Dutch warship,theLynx, to Sipadan and
Ligitan constituted a clear expression of Dutch sovereignty overthe islands. In addition, the
conduct of the Parties in granting petroleum licences seaward ofthe Island of Sebatik, their
mutual respect forthe 4" 10'N line in erectingnavigational aids, and numerous maps prepared
by the highly respected cartographicinstitute, Stanford, on behalfof the BNBC as well as by
officia1Malaysian mapping agencies al1attest to their respect for the line established by the
189 1 Convention.
7. In its Counter-Memorial, Malaysia has suggested that Indonesia somehow bearsan
enhanced burden of proof in the case3. There is no justification for such a plea which is in
reality no more than a self-serving argument introduced forpurposes of colouringthe issues in
the case. Indeed,it could be argued with greater conviction that it is Malaysia whichbearsthe
burden of proving that the legal title acquiredby Indonesia under the 1891 Convention was
2 Ibidp .,ra..5(c).
3 Ibidp .,ra1..8.subsequently displaced by Great Britain or Malaysia. But this is mere question begging. In
the final analysis it is both Parties which bear the burden of demonstrating that they have the
better title to the islands in question. Indonesia isconfident that it has moren satisfiedthis
burden while Malaysiahas not.
8. The issues that divide the Parties on these points are taken up in Part 1 of this Reply.
Chapter 1addresses the relevant background to the Convention and its object and purpose.
Chapter IIthen turns to the interpretation of the Convention in the light of its terms and the
subsequent practice of The Netherlands and Great Britain, including the Explanatory
Memorandum Map and the 1915 and 1928 Agreements. Chapter III ends this part with a
discussion of the numerous elements which confirm Indonesia's interpretation of the
Convention and Indonesia'stitleto the islands.
9. In contrast, Malaysia's arguments on the issue of sovereignty are confused and
inconsistent. In its Mernorial, Malaysia arguedthat its title was based on three separate, but
mutually inconsistent, chains of title. First, Malaysia alleged that Great Britain, or more
properly the BNBC, acquired title to the islands pursuant to the 1878grants fiom the Sultans
of Brunei and Sulu to Messrs. Dent and Overbeck and the 1903 Confirmation of Cession
signed unilaterally by the Sultan of Sulu. Second, Malaysia argued that title to the islands as
of 1878did not vest inthe BNBC, but rather in Spain which had succeededto the rights ofthe
Sultan of Sulu in the Sulu Archipelago. That title is said to have been subsequently
transferred to the United States in 1900 and then ceded to Great Britain in the 1930 Anglo-
U.S. Convention. Third, Malaysia asserted that whatever the status of the legal title, Great
Britain administeredthe islands fiom 1878onwards.
10. Clearly,there are serious difficulties in reconcilingthese positions. How, for example,
could legaltitle vest simultaneouslyin Great Britainand Spainor, after 1900,in Great Britain
and the United States? This perhaps explains why Malaysia has re-oriented its position in its
Counter-Memorial. No longer does Malaysia assert that Great Britain (on behalf of the
BNBC) acquired a legaltitle to the islands between 1878and 1930. Instead,title is allegedto
have vested in Spain up to 1900 and in the United States up to 1930. At the same time,
Malaysia continues to maintain that Great Britain administered Sipadan and Ligitan despite
the existence of a so-called legaltitle lyingelsewhere.11. In Part 2 of this Reply, Indonesia will focus on the fundamental defects which
undermine Malaysia's theory ofthe case. In Chapter IV, Malaysia's re-orientation of its case
away from the argument that Great Britain acquired alegaltitle to the islands in 1878will be
addressed. Chapter V then surnrnarises the problems which Malaysia faces in trying to
demonstrate that the Sultanof Sulu, fiom whom Malaysia's title allegedly derives, possessed
an original title to the islands.uite simply, there isno evidence of a Sulutitle to the islands
based on the historic record.
12. In Chapter VI, Indonesia will turn to the newly-formed core of Malaysia's case - that
sovereignty over the two islands was passed to Spain in the mid-19th century, thence to the
United Statesunder the 1900Treatybetweenthe United States and Spain, andthence to Great
Britain under the 1930Anglo-U.S. Convention. As Indonesia will show, at each stage of this
purported chain of title Malaysia's argumentsbreak down on the facts. Malaysia has not and
cannot show that Spain ever considered that it had title to Sipadan or Ligitan. As for the
assertion of a U.S. title from 1900 to 1930, Malaysia has simply neglected to address the
evidence that exists proving that the United Statesnever advanced a claim to the islands and
that it expressly withdrew the 1903 map on which Malaysia'scase so heavily depends.
Indonesia will address this crucial evidence in Chapter VI. And with respect to the 1930
Convention, Indonesia will also show that this instrument cannot in any waybe considered to
have resulted in a cession ofthe islandsto GreatBritain.
13. Finally, in Chapter VII, Indonesia will return to the flaws inherent in Malaysia's
argumentthat, whateverthe status of titleto the islands, Great Britain administeredthe islands
from 1878 onwards. It will there be shown that there is no evidence ofsuch administration
duringthe 40 year period from 1878to 1917,and that even in 1917,when Great Britain issued
aturtle egg ordinance with respectto Sipadan,this not only could not have displaced thelegal
title which The Netherlands had acquired overthe islands under the 1891 Convention, but
also any such activities are outweighed by the physical manifestation of Dutch sovereignty
evidencedbythe 1921visit ofthe Lynx to the islands.14. This Reply comprises two volumes. Volume 1 constitutes the Reply proper while
Volume 2 includes further documentary evidence adduced by Indonesia in support of the
argumentsit makes inthis Reply. PART1
INDONESIA'STITLETO SIPADANANDLIGITAN
CHAPTERI
THE OBJECTANDPURPOSEOFTHE 1891CONVENTION
Section 1. Introduction
1.1 It is Indonesia'scontention that the 1891 Convention had the result that Sipadan and
Ligitan were acknowledged by Great Britain as belonging to The Netherlands. In developing
this argument in its Memorial (principallyin ChapterV)and Counter Memorial (principallyin
Chapter V) Indonesia set out its argument onthe significanceof the Anglo-Dutch Convention
of 20 June 1891. At paragraphs 5.65-5.70of its Memorial Indonesia surnrnarisedthis part of
its case as follows:
(a) Whatever doubtsthere might have been up to the late 1880sas to the course of
the dividing line between Dutch and British possessions in north-eastern
Borneo,with the conclusion and ratificationof the Conventionof 20 June 1891
between Great Britain and TheNetherlands any such doubts were finally set
aside.
(b) The Convention, by its terms, its context, and its object and purpose,
established the 4" 10'N parallel of latitude as the dividing line between the
parties' respective possessions in the area now in question. The islands
presently in disput- Ligitan and Sipadan -lie to the south of that parallel. It
therefore follows that under the Conventiontitle to those islands vested in The
Netherlands andnow vests in Indonesia.
(c) By its conduct at the time, and in particular by virtue of the Explanatory
Memorandum Map and its contemporaneousvariation of the Contract with the
Sultan of Boeloengan, the Dutch Governmentdemonstrated its understanding of the meaning to be attributedto Article IV of the 1891 Convention. It did so
by means which were not only public knowledge atthe time, but also by means
of which the British Government were officially informed. Great Britain's
failure to protest, or in any other way to dissent fiom the Dutch Government's
views of which it had such public and officia1 knowledge, showed that it
accepted those views asthe correct interpretationof the 1891Convention.
(d) As envisaged in ArticleV of the 1891 Convention,fùrther elaboration of parts
of the 1891boundary line was contained in later agreements concludedin 1915
and 1928;but since the 1891line had been determinedby a parallel of latitude
its seaward extension did not cal1 for any further precision, nor did
circumstancesat sea allow for any specific demarcation.
1.2 In its Counter-Memorial Malaysia argues againstthe position adopted by Indonesia, in
the following contexts:
(1) the background tothe convention';
(2) the negotiations for theconvention2;
(3) the naval surveyof May-June 18913;
(4) the interpretation of theconvention4;
the ratification of the Convention, andthe Explanatory Memorandum ~a~';
(5)
(6) the 1915~~reement~.
1.3 In this Chapter Indonesia will consider the first three of these contexts; the last three
will be considered in ChapterII.
I
2 Ibidp.aras.2.21-2.28.
3 Ibidp.aras.2.29-2.42.
J Ibidp.aras.2.43-2.48.
5 Ibidp.aras.2.49-2.59.
6 Ibidp.aras.2.67-2.78. Section2. The Backgroundto the 1891Convention
1.4 Indonesia hasdemonstratedin its Memorial (at Chapters TV and V),that:
before 1891 there were various uncertainties as to the exact location of the
(a)
boundary between Dutch and British possessions in North Bomeo (which
means that the extent and validity of claims and title to territory in the area
were uncertain),but
those uncertainties were brought to an end by the conclusion of the 1891
(b)
Convention.
1.5 In other words, the existenceof valid claims (whether by The Netherlands through the
Sultan of Boeloengan, or by the British through the Sultan of Sulu) was in principle an
irrelevance. Nevertheless Malaysia devotes much effort to seeking to establish that before
1891the Sultan of Sulu had title to Sipadanand Ligitan,and that any claimswhich the Sultan
of Boeloenganhad to those islands could not be sustained.
1.6 However, Malaysia's apparent beliefthat Indonesia's case depends in part upon the
validity ofthe Sultanof Boeloengan'sclaimsto the two islands is not true either as a matter of
abstract law or as a statement of Indonesia'sposition. Malaysia has misunderstood the thrust
of Indonesia's argument,and Malaysia'sconcentrationon the extent of pre-1891 local titles is
misplaced.
1.7 Moreover, Malaysia has wrongly surnrnarised Indonesiafs argument as being that
"[tlhere was a dispute concerningthe islands between TheNetherlands and Britain [...before
1891" and that "[tlhe dispute was resolved in favour of The Netherlands by the 1891
Boundary conventionn7. But Indonesiahas not suggested that there was any specific Anglo-
Dutch disputeabout the islands, and neither Indonesia norMalaysia has adduced any evidence
7
Ibidp.ara1.5(band (c).that Sipadanand Ligitan werespecificallymentionedby either side during the negotiations for
the 1891convention8. There was, rather, a generaluncertaintyabout territorial possessions in
the area, involving both mainlandpossessions and manyinsular possessions (including but by
no means limited to Sipadan and Ligitan), and it was that general uncertainty which was
resolved bythe 1891Convention - a resolutionwhich was in Great Britain's favour inrespect
of territories to the north of the agreedterrestrial boundary line and al1islands to the north of
the 4'10'N line, and in The Netherlands' favour in respect of al1 territories and islands
(including Sipadanand Ligitan)to the south ofthose lines.
1.8 Although Indonesia's title to Sipadan and Ligitan does not depend on the Sultan of
Boeloengan having title to them, Malaysia for its part acknowledges that its case entirely
depends on the alleged rights of the Sultan of Sulu over the disputed islands, which would
have been ceded to Spain, then by Spain to the United States and, eventually by the United
States to Britain to which Malaysia is the territorial successor. This "chain of title" is
describedby Malaysiain the following terms:
"Malaysia'sclaimis based onthe acquisition by Spain of thepossessions of the Sultan
of Sulu. The islands adjacent to North Borneo which were situated beyond the three
maritime league limit of the 1878 Sulu gant, Ligitan and Sipadan among them,
remained under Spanish sovereignty.Thesepossessions were transferred to the United
Statesby the Treatyof 7November 1900.The United States inturn transferred them to
Great Britain bythe Treatyof 2 January 1930"~.
1.9 Consequently, if Sulu had no title over Ligitan and Sipadan, neither Spain, the United
States, Great Britain nor Malaysiaitself could have inherited any such rights over the islands.
As Malaysiaputs it:
"Evidently if [Sulu then] 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 1898and
1900"'~.
8 ICM, paras5.67,5.68(b )nd5.88.
9 MCM, para.2.2. Emphasisadded.
10 Ibid., para.3.17.1.10 As Indonesia will show in ChapterV of this Reply, Sulu had no right to the islands in
dispute; they were outside the reach of its effective aswell as its "theoretical" sovereignty and
Malaysia has not shown any trace of administration or presence of Sulu in respect of either
Ligitan or Sipadan.
1.11 But there is something more. Even if Malaysia could establish that the islands had
belonged to the Sultan of Sulu before 1891,quod non, as to which, see Chapter V below, this
would be irrelevant: whatever the previous state of affairs, the 1891 Convention would have
created a new situation, in accordance with the international law prevailing at the time in
mattersconcerningcolonialacquisitions.
1.12 For this same fundamental reason, there is no ground for the assertion repeated by
Malaysia accordingto which:
"Indonesia'sclaimto 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 overthem underthe 1891Boundary onv vent ion"".
Altematively put:
"Indonesia'sarguments [...] depend in the final analysis upon the proposition that the
territory of Bulungan in 1890 extended to the islands off the coast of the Semporna
peninsula, including Sipadan and Ligitan [..] If the Netherlands did not already hold
the islands in 1890,the 1891BoundaryConventionmust be irrele~ant"'~.
1.13 These allegations are fundamentally flawed since they rest on a serious
misinterpretationof the 1891Convention. Its aim and purpose was not to cede territories that
both Parties could have claimed for negotiation purposes (while acknowledging that
ownership or sovereignty over them was uncertain - as to which, see Chapter VI, Section 3,
below), neither was it to recognise mutually the pre-existing territorial situation: the 1891
Conventionwas a sharing of non-Europeanterritories betweentwo powers which barely cared
Il
12 Ibidp.,ra.3.17.mphasisadded.
Ibidp.,ra3.29.about the pre-colonial situation (even though theyused treaties or contracts concluded with
local rulers as the basis for arguments in their negotiations), whichwas conducted in such a
way asto put an end to their territorial disputes inthe region.
1.14 It is apparent fiom -several cases decided by this Court and international arbitral
tribunals that the pre-colonial situationhas no bearing on the colonial and post-colonial legal
status of a territory or its border. Thus, in the case conceming the Frontier Dispute the
Chamber of the Court recognised that, at first sight, the principle of uti possidetis, which
consolidatedthe colonial situation to the detrimentof the unity of peoples, "conflicts outright
with another one, the right of peoples to self-determination", but it acknowledged that, for
good reason, "the principleof utipossidetis has kept its place amongthe most important legal
principles"13. As this same Chamber said, "the principle applies to the [new] State as it is,
Le.,to the 'photograph' ofthe territorial situationthen existing. The principle of utipossidetis
freezes the territorial title; it stops the clock but does not put back the hands"14. This holds
true forthe colonial period and,afortiori, for the pre-colonial period.
1.15 Again, in the case concerning the Territorial Dispute, the Court decided that its
conclusion "that the Treaty[of 1955 between France andLibya] contains an agreed boundary
renders it unnecessary to consider the history of the 'Borderlands' claimedby Libya on the
basis of title inherited from the indigenous people, the SenoussiOrder, the Ottoman Empire
and ~tal~"'~.The Court added:
"Likewise, the effectiveness of occupation of the relevant areas in the past, and the
question whether it was constant, peaceful and acknowledged, are not matters for
determination in thiscase"16.
1.16 At a more general level, in its Award of 9 October 1998,the Arbitral Tribunal in the
dispute between Eritrea and Yemen rejectedthe doctrineof "reversion" and statedthat:
13
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, ICJ Reports 1986, p. 556, at p. 567,
14 paras. 25-26.
Ibid., at p. 568, para. 30. Emphasis in the original.
15 Territorial Dispute (LibyanArab Jamahiriya/Chad), Judgment, ICJ Reports 1994, p. 6 at p. 38, para.
75.
16 Ibid., p38,para. 76. "Whatever may have been the links between the coastal lands and the islands in
question [before 19231,the relinquishrnentby the Ottoman Empire of its sovereignty
over the islands by virtue of Article 16 of the 1923 Treaty of Lausanne [...] logically
and legallyaffects anypre-existing title"I7.
1.17 Consequently, Malaysia'sefforts in seeking to establish that the Sultan of Boeloengan
had no claims to Ligitan and Sipadan, or that any such claims as he might have had cannot be
sustained, are misplaced. There can be no doubt that before 1891there was great uncertainty
as to the exact location of the boundary between local sultanates in northern Borneo (and, by
way of consequence, between the Dutch and British possessions, since, at the time, both
parties relied upon their arrangements with local rulers), which means that both the extent and
validity of claims and titles to territoryin the area were uncertain. However, it was precisely
this uncertaintywhich was broughtto an end bythe conclusionof the 1891Convention. This
is precisely what Indonesia wrote in its Memorial (at paragraph 5.1),as correctly quoted by
Malaysia in its Counter-Memorial (at paragraph 2.1), which then goes on to misinterpret and
distort Indonesia's argument. The conclusion that the 1891 Convention put an end to al1
territorial disputes in the region "renders it unnecessary to consider the [pre-colonial history]
onthe basis of title inherited fiom the indigenouspeople"'8.
1.18 In other words, the existenceof valid claims (whether by The Netherlands through the
Sultan of Boeloengan, or by the British through the Sultan of Sulu) is in the event an
irrelevance: claims overlapped; the validity oftitles was arguable;the significance of acts on
the ground was debatable;there were, in short,uncertainties,to which Indonesia will revert in
Chapter V, and these uncertainties concerned both the landterritory and, probably to ltgreater
extent,the surroundingislands. Theseuncertainties werethe very reason forthe conclusion of
a Convention in 1891, and they were set ut rest by that Convention, even if it was under a
different form as regards the mainland (and Sebatik) on the one hand, and the islands on the
other. In the first case (land delimitation)the Conventionresulted in a boundary line, in the
second (attribution of islands) it resulted in an allocation of territories on either side of the
line.
17
YemerdEritrea,Award of the Arbitral Tribunal in the First Stage ofthe Proceedings (Territorial
18 Sovereignryand Scopeofthe Dispute),9October 1998,para.124.
See the case concemingthe Territorial Dispute (LibyanArab Jamahiriya/Chad),op. cit., at p. 38,
para.75.1.19 There is nothing strange orunusual in a single instrument operating both ways. As the
Chamber of the Court noted in the case concerning the Frontier Disputebetween Burkina
Faso and Mali:
"It is not without interestthat certain recentcodifjing conventions haveused forrnulae
such as a treaty which 'establishes a boundary' or a 'boundary established by a treatty o'
cover both delimitation treaties and treaties ceding or attributing territory (cf. Vienna
Convention on the Law of Treaties, Art. 62; Vienna Conventionon Succession of
States in respectof Treaties,Art. 11). In both cases, a clarificationis made of a given
situation with declaratory effect from the dateof the legaltitle[...]"19.
1.20 Moreover, in the present case,the historyofthe negotiations showsthat:
(a) both The Netherlands and Great Britain invoked pre-colonialtitles allegedly
ceded to them by local rulers;
(b) both acknowledged thatthose titles and their preciseextent were uncertain;
(c) this did not however impede them in concluding a treaty,the aim of which was
clearlyto put a final endto their territorial disputes intherea.
1.21 Malaysia has made much of the arrangements made inthe years before 1891by the
Dutch regardingthe territorial extent of Dutch influence inthis part of Borneo. These have to
be seen in their context. Thus statements (e.g., in the 1846 Resolution of the Governor-
General) renouncing influence overareas north of the River Atas and al1 islands of the
northern coasts of Borneo were made at a timeof steady European expansion in the region;
even if Sipadan and Ligitan are(despitethe local geography)to be treated as being islandsof
the "northern coasts"of Borneo, limitsof influence asserted in 1846have little bearingon the
extent of sovereignty or even influence half a centurylater, as demonstrated by successive
later contracts with the Sultanof Boeloengan.
19
FrontierDispute(BurkinaFaso/Republi ocfMali),op.citatp. 563,para.17.1.22 Those later Contracts are more significant than Malaysia suggests; or rather the
absence of any British protest against them is significant. Even if the 1850 Contract was not
formally notified to the British Government, such forma1notification is not the only basis for
the making of a protest: a Government which has actually acquired knowledge of a matter
calling for protest, or which as a reasonably prudent governmentought to have known of it, is
equally required to protest or have its failure to protest held against it. The later Contract of
1878was, in fact, formally notified to the British Government on 17January 1 88020,but there
is no record of any British protest having been made againstit.
1.23 In surnmary, for the purposes of these present proceedings, the pre-1891 situation is
relevant onlyas background, showingthe uncertaintiesto which overlapping claims gave rise.
Even a soundly based and recognisedtitle to territory on the 'wrong'side of the line agreed in
the 1891Convention would now be of no avail to the title-holder; while a soundly based and
recognised title to territory on the 'right'side of that line would now be of historical interest
only, confirmed as it would be bythe terms of the Convention which constitute the present
basis for title. The Convention disposed of the question of British and Dutch territorial
possessions in North East Borneo once and for all, and afier 1891 the question of territorial
sovereigntywas definitively and comprehensivelydeterminedbythe terms of the Convention.
Section3. Negotiationsforthe 1891Convention
1.24 Indonesia has describedthe course of the negotiationsleading to the 1891Convention
in its ~emorial'' and ~ounter-~emorial~'. Without prejudice to the more detailed exposition
given in those paragraphs, Indonesia there showed that, starting Fom the original uncertainty
as to the extent of both parties'possessionsinthe area:
(a) the parties first accepted as the starting point for the line to separate their
possessions the place at which the 4" 10'N parallel of latitude met the coast,
i.e. at Broershoek;
20
21 IM, para.4.63;MCM,para. 2.9.
22 IM, paras.5.24-5.33.
ICM,paras.5.59-5.76. (b) thereafier their practical concerns focussed mainly onthe land boundary inland
into the mainland of Borneo, and the treatment to be accorded the island of
Sebatikand navigation rightsaroundit;
(c) their final agreement, motivatedby a wish to put an end once and for al1to their
territorial problems in the area, was that, seawards from the coastal starting
point at Broershoek, the line dividing their territorial possessions was the
4'10'N line "continued eastward along that parallel" - a line which, passing to
the north of Sipadan and Ligitan, established that they belonged to The
Netherlands (and now to Indonesia).
1.25 In paragraph 2.22 of its Counter-Memorial Malaysia quotes a comment by Sir Edward
Hertslet, to the effect that "the only important pointin dispute" wasthe question of navigation
on the Sibuco and numerous other rivers which flow from the interior of Borneo into the sea
in SibucoBay. It is difficultto seethe significanceof this observation in the present context.
(a) In the first place, it was written in a Memorandum dated 9 January 1989, i.e.,
six months beforethe first meeting of the Joint Commission which was held on
16 July that year and nearly 2% years before the conclusion of the 1891
on vent ion I^ca.nnot therefore be a statement of what the negotiations -
which had not then seriouslybegun - involved.
(b) Second,it is apparentthat although SirEdward Hertslet consideredthis issue as
the only important point in dispute, what he was really doing was identifjing
the "only important point" of substance fiom the point of view of British
negotiating aims: his comment followed and was consequential upon his
calling attention, in the preceding paragraph, "tothe great importance of not
23 The memorandum isatMM, Vol. 3, Annex 43. allowing the Dutch to enjoy the sole right of navigating the Sibuco and the
numerous other rivers [...], as to admit such a claim might have the effect of
depriving the Company of a large portion of their possessions [...lu.Sir
Edward Hertslet wasnot -and couldnot have been - describing what had inthe
event proved to have been the "only important point" in the negotiations
themselves.
(c) Third, Sir Edward's Januaryprognosis was proved wrong,in that the two major
points actually to occasion considerable dispute in the negotiations were the
starting point on the coast for the land boundary, and rights of navigation
around the island of Sebatik.
(d) Fourth, whatever British aims might have been, Dutch aims need also to be
taken into account; and the fact is that the parties did not directly and
specifically address the aims of either party but rather set out,as the preamble
to the Convention states, to establish a boundary between Dutch possessions
and British North Borneo.
Fifih, if Malaysia'spurpose in quoting Sir Edward Hertslet's prematureand
(e)
erroneous observations was to suggest that -the British side was not really
interested in off-shore islandssince he did not mention them as an "important
point", it should equally follow that al1the other matters not mentioned in Sir
Edward's quoted observation were not important forthe British Government;
but this was manifestly not so. Moreover, whatever implications theremay be
for the British Government's attitude, therecan be none whatsoever as to the
attitude and interests of the other party to the negotiations, the Netherlands
Governrnent. Malaysia cannot use a British statement of the limited point of
importance attachedby GreatBritainto the negotiations which were at the time
yet to begin as if itwere an objective statement ofthe "only important point" of
dispute which aroseduringthe negotiations.1.26 Malaysia's reference to Dutch attitudes to the outcome of the negotiations is
~onfused~~.Malaysia disagrees with Indonesia'sassertion that the Dutch were on the retreat,
yielding territory to which they had strong claims, at least as regards the area between
Broershoek and Batoe Tinagat. Malaysiahas taken Indonesia'sassertion out of its context. It
was made in the opening paragraph ofthat part of Indonesia's Memorialwhich dealt with the
negotiations for the 1891 Convention. There, Indonesia was making the background point
that throughout the second half of the 19th century the history of north-eastern Borneo was
characterisedby British territorial expansion at the expense of the Dutch. It was in this sense
that Indonesia observed that in effect the Dutch wereon the retreat, even yielding territoryto
which they had strong claims, and that the eventual 1891Conventionhad to be seen against
that general background.
1.27 Lndonesiastands by its brief, general characterisation ofthe history of the late 19th
century in the north-eastern Borneo area: and indeed, Malaysia does not deny Indonesia's
generalproposition.
1.28 What Malaysia does seek to deny is the particular application of the general
proposition to the area between Batoe Tinagat and Broershoek - an application, it is to be
noted, which Indonesia did not itself make. Although Malaysia is not specific about the
nature of its denial, it appears to be possibly two-fold: first, that The Netherlands was not on
the retreat in the area between Batoe Tinagat and Broershoek, and second, that The
Netherlandsdid not have strongclaimsto that area. Onboth counts Malaysia iswrong.
(a) As to the first, it is demonstrablythe case thatin falling back fiom a claimed
position on the coast at Batoe Tinagat (and further north inland) to the
eventually agreed position on the coast where it is crossed by the 4'10'N
parallel of latitude, The Netherlands was 'retreating'.
24 InMCM, para.2.23. (b) As to the second, it is equally undeniable thatthe Dutch had claimsto the area
up to at least Batoe Tinagat on the coast (and considerably further north
inland), and considered them to be strongZ5 - certainly strong enough to be put
to the British as a clear claim line on an official map. Nothing said in the
Dutch Explanatory Memorandum or in Parliament contradicts that state of
affairs.
1.29 Malaysia relies on three passages: none of them serves to contradict the existence of
strong Dutch claimsinthe region in question.
The first passage, from the Explanatory Memorandum, says that the Dutch
(a)
were seeking a settlement which would provide a correctly described
borderline: that is true (and shows that a principal Dutch aim in the
negotiations did indeed differ from that set outby Sir Edward Hertslet for the
British - see paragraph 1.25, above), but has nothing at al1 to do with the
strength or otherwise of Dutch claims to the area between Batoe Tinagat and
Broershoek (but, incidentally, Indonesia notes with satisfactionthat Malaysia
has drawn attention to the important statement in the Explanatory
Memorandum that the Dutch aim was to settle a borderline which "puts anend
to al1difficulties in the future": as to the significance of this statement, see
paragraphs 5.56, 5.58to 5.60 of Indonesia's Memorial, and paragraphs 5.30(e),
5.39, 5.69 and 5.88(c)of its Counter-Memorial, and below, paragraph 2.10).
The second passage was from words spokenby the Dutch Minister of Foreign
(b)
Affairs, that the Dutch were not "giving up territory that undoubtedly belongs
to us". The Minister was here reassuring Parliament that undoubtedly Dutch
territory still belongedto The Netherlands; i.e., what was being given up was
only territory to which the Dutch had claims, and claims which the Dutch
25
See IM, para.5.9. acknowledged were arguable. It is thus incorrect for Malaysia to Say,in its
summary at paragraph 2.28(b), that "the Netherlands Government strongly
denied that it was yielding any territory": it was acknowledged that some
claimed territory was being given up, and it was only "undoubtedly" Dutch
territory whichhad not beenyielded.
(c) The third passage, from the Explanatory Memorandum, was thatthe agreed
boundary was more favourable for the Dutch than the British desired. This
neither denies that the Dutch were, in general or even inthe specific Batoe
Tinagat-Broershoek area, on the retreat, nor does it Say anything about the
strength of Dutch claims in that area: al1it indicates is that the British wanted
to push the Dutch even further south, but that the Dutch negotiators had been
ableto resist them.
1.30 At paragraph 2.24 of its Counter-Mernorial, Malaysia dissents from Indonesia'sview
that the Joint Commission'sproposa1for the boundaryto pass between the islands of Sebatik
and East Nanoekan "clearly envisaged [the boundary]in principle as one which, starting on
the coast, ran eastwards at sea for an indeterminate distance, [...i.e. out to the open ~ea"~~.
Malaysia states that theproposa1was British, madeby Sir Philip Currie: but that in itself is no
reason why the effect of the proposa1 was not as Indbnesia has described it. Malaysia,
however, adds that had it been the intention ofthe British Government that the boundary
should continue outto the open sea, "Britainwould have singled outthe issue when Count de
Bylandt finally rejectedthe proposal". Malaysia givesno grounds at al1for such an assertion,
which in any event is (a) anon sequitur,and (b) pure speculation. In fact, the consistent view
of the negotiators that the eventual line would continueout to sea has been clearly show by
the further material in Indonesia's Counter-Memorial, at paragraphs5.70 to 5.75. Malaysia's
summary of its position on this point, at paragraph 2.28(e) of its Counter-Memorial, that there
was never any question of a line running eastwardsoutto the open sea,is thus incorrect.
26
At ibid., para. 5.23.1.31 Its incorrectness is further demonstratedbythe interna1minuting in the British Foreign
Office in preparing the proposa1 eventually put fonvard in the negotiations for the 1891
Convention and referred to at paragraphs 5.73-5.74 of Indonesia's Counter-Memorial. This
minute2',clearlypursuingthe British proposa1that the matter be settled by a compromise and
Dutch acceptance in principle of that idea2', set out the prospective British compromise as
follows:
"StartingEastward from a point A on the coast near Broers Hoek on parallel4' 10' of
North Latitude, the line should follow that parallel until it is intersected by the
Meridian of 117'39'East Longitude, oppositethe Northernmost point of the Island of
East Noenoekan, at the point marked B;it would then follow in a straight line midway
between the Islands of Sebatik and East Noenoekan in a SouthEastern direction to the
point of the intersectionof the 4th Parallel withthe Meridian 117'50'East Longitude,
opposite the Southernmost point of the Island of Sebatik at the point marked C. The
line would continue thence in an Easterly direction along the 4th parallel, until it
should meet the point of intersection ofthe meridian of 118'44'30"marked D"~~.
The British line is plotted on the sketch map overleaf as well as on Map 4 in Indonesia'sMap
Atlas, an historical map preparedby Stanfordto illustratethe proposals being exchanged. It is
readily apparentthat points C and D are both off-shore,and that point D in particular extends
well to the east of Sipadan. Although this particular proposa1(which adopted 4" N as the
latitudinal line to be followed) was not that which in the event was agreed, it shows
compellingly that on the British side during the negotiations it was envisaged that the line
dividingBritish and Dutch possessions should followa line of latitude for a very considerable
distance out to sea (see also below, paragraph 2.15). Moreover it shows that a British
proposa1which would have lefi Sipadan on the British side of the then-envisaged 4' N line
was dropped in favourof the line eventually agreedat 4' 1O'N, so leavingboth islandsnow in
dispute to The Netherlands.
27 See ibid.,Vol. 2, Annex 56,at pp. 474-475, reflecting thelanguagereferred to in the next following
footnote.
28 See ibid.paras. 5.19-5.20andIM,Vol.3,Annex59,atp.458.
29 Ibid.,Vol.2,Annex 56, at pp. 475-477. It shouldbe noted that, unfortunately, thesere have been
reproducedin the incorrectorder:theyshouldberead in theorder475-477-476.1.32 At paragraph 2.26 Malaysia makes much of the order in which the negotiations dealt
with the three issues of the coastal starting point ofthe boundary, its westward extensionand
its eastward extension. That order of treatment was simply a matter of negotiating
convenience, although fixingthe coastal starting point atthe .outsethad a certain logic to it.
Apart from its negotiating convenience, the orderof treatment has absolutely no implications
for the substance of what was eventually agreed: whetherthe eastward continuation of the
4" 10'N line was dealt with before, orafter,the westward continuationofthe land boundary is
wholly without significance for the question whether or not that line continued eastwards
beyondthe east coast of Sebatik. That point of substancecan only be deterrninedby the terms
ofthe 1891Convention.
1.33 At paragraph 2.27Malaysia seeks support for its position in certain observationsmade
in the Award in the Guinea-GuineaBissau case. While Malaysia asserts some similarity
between the circumstances there under consideration and those of the present case, in reality
no such similarity exists.
(a) Malaysia refers to something which "the French Government had mentioned
during the ratification debate" (i.e., the ratification debate of a French-
Portuguese Convention concluded in 1886):but in fact,the words in question
were not those of the Government nor were they made during the debate, but
merely appeared in "aninterna1note of the French Ministry of Foreign Affairs
dated 12June 1887,concerningdiscussionof the ratification ofthe Convention
by parliamentU3O.
(b) The arbitration concerned a different issue from that presently under
discussion. Article 1of the 1886convention3' had provided that "the boundary
separatingthe Portuguesepossessionsfiom the French possessions will follow"
30 Award of 14 February 1985, Guinea-Guinea (Bissau)Maritime DelimitatCase (1985) LR 77,p.636
at pp666-7 ,ara. 61 (Englishtext).
31 The text ofthe Convention as ratisset ouinpara.45 ofthe Award, ibid.,pp.659-660. a course prescribed in detail in the Article;this course included a course at sea
establishing what became known as the 'southern limit'. The question at issue
was whether Article 1 established the maritime boundary between the
respective possessions of France and Portugal in West Africa. The Tribunal
answered this question in the negative3'. That question is different fiom the
question of territorial sovereignty over insular possessions which is at issue in
the present case.
(c) The observation inthe French Foreign Ministry'sinternalnote which is cited by
Malaysia was referredto in the Award as a possible exception to the Tribunal's
findingthat:
"none of the documents presented by the Parties has proven to the
Tribunal that in the course of the colonial period France and Portugal
considered the "southem limit" referred to in the final paragraph of
Article 1of the 1886Conventionas a general maritime boundary between
their possessions"33.
The Tribunal concluded that the internal note, although referring to "islands
situated along the coast" (but without naming them), seemed only to allude to
"thecoastal islands, indubitablysituated in territorial waters". In its contextthe
Award was merely stating that the reference in the French internal note to
islands within territorial waters could not be taken as indicating that the lines
established by Article 1of the Conventionwere treated by France as providing
for a general maritime boundary. The Tribunalwas not asserting, as Malaysia
appears to suggest,that agreement upon a line extending out to sea only affects
coastal islands clearlysituatedinterritorialwaters.
(d) It may be noted that Article 1of the 1886 Convention constituted what might
nowadays be referredto as an 'allocationtreaty': it prescribeda line - referredto
as a "boundary" - "separating the Portuguese possessions from the French
possessions", and it did so by reference to parallels of latitude or meridians of
32
33 Ibid.,atpp. 668,674,paras.67,84.
Ibid.,ap.666,para.61. longitude. No question as to territorial sovereigntyof islands lying on one side
or the other of those lines was in issue in the arbitration, the only question
being, as stated above,the determinationof a maritime boundary.
Section4. TheNavalSurveyof May-June1891
1.34 Indonesia has explained the circumstances of this survey of areas relevant to the
present dispute by two British naval vessels (HMSEgeria and HMS Rattler) and one Dutch
naval vesse1(HNLMSBanda) in mid-1891~~.
1.35 The main elements wereas follows:
(i) The proposa1for the survey was raised with the Dutch Government following
instructions sent by the British Foreign Office on 29 December 1890 to the
British Minister in The~a~ue~*;
(ii) the Dutch Governrnent had no objections, but were unwilling to let British
vessels carry outthe survey on their own: they wished to be associated with it
and made their own proposals as to the tasksto be ~ndertaken~~;
(iii) HMS Egeria arrived in the area in March 1891, arriving at Sandakan on
14March 1891, and was instructed to survey the coast and islands around
Darvel ~a~~';
(iv) HMS Egeria surveyed Sipadan and Ligitan, and established stations on Mabul
and Sipadan,during May 189138;
34
3s Ibidpr.ara. 5.34.40.
36 Ibid.,paras. 5.34-5.36.
37 MCM, paras. 2.35-2.36.
38
IM, para. 5.39; MCM, paras. 2.37, 2.39. (v) on 1 June the Egeria met up with the Rattler and Banda near Broershoek, to
erect beacons onthe 4" 10'N parallel where it crossedthe coast of Borneo and
the west and east coasts of Sebatik,and to explore the Simengaris~iver~~;
(vi) on 27 June the Egeria returned to Sandakan,.and afier2 weeks rest continued
her survey activities4';
(vii) the Egeria stayedinthe areauntil27 August 1891";
(viii) the Egeria returned to resume the survey of Darvel and St. Lucia Bays from
28 March to 29 August visiting Ligitan during her cruise, although
despite Malaysia's assertionto the contrary, there is no mention of a visit to
Sipadan either in Commander Field's accountin the British North Borneo
~erald~ or in the Notes at Annex 90of Indonesia's~emorial~~.
1.36 The reason why it was proposed that the survey should be undertaken whenit was
(May-June 1891) was that the British Admiralty considered thatthe healthy season in the
region ended at the end of July and it was necessary (if the survey wasto be undertaken in
1891)that it be undertaken beforethen as thereafierno British naval vesselswould be in those
waters4'.
1.37 As Malaysia notes46,and as Indonesia stated inits ~emorial", the original initiative
for the Egeria'ssurvey came in December 1890 fromthe British side, although it was limited
to the fixing of the4" 10'N point on the mainland coast: the suggestion for also exploringthe
Rivers Simengaris and Soedang came from the Dutch, on 28 January 18914', as did the
IM, paras. 5.35, 5.38; MCM, para. 2.39.
IM, Vol. 3, Annex 89, p. 232.
MCM, para. 2.36.
As to the limited,non-landingnature of the"visit"see below, para. 1.44.
IM, Vol. 3, Annex 89, pp. 233-235.
Ibid., Vol. 3, Annex 90, at p. 246; see IM, para. 5.39 and MCM, paras. 2.36 and 2.40.
Letter of 25 February 1891 fMr. MacGregor (Admiralty)to the Foreign Office: IM, Vol. 3, Annex 69.
at p. 79.
MCM, para.2.30.
IM, para. 5.34.
Ibid., para. 5.34.suggestion for fixing the 4" 10' N points on the west and east coasts of Sebatik, on 7 April
1891~~. Thus it is apparent that this whole exercise was conceived well beforethe 1891
Convention was concludedon 20 June 1891,and also beforethe 4" 10'N line had beenfinally
agreed as the limit for British and Dutch possessions in Borneo: identifying thevarious
locations on the 4" 10'N line was auseful contingencyexercise, giventhe possibility that that
line might subsequentlybe agreed to be the boundary. The Dutch Foreign Minister'sletter of
20 January 1891had referredto "lapossibilité que ce point[lepoint sur la côteoù se trouve le
parallèle 4" 10' latitude sud[sics ]o]it adopté par la suite comme pointde départ de la limite
entre les possessions Néerlandaises et ~n~laises ..."'OMalaysia itself acknowledges that "the
boundary was not yet decided at the time of the ~urve~"~'. The British initiative had
accordingly been correctly expressedto be "without prejudice" to the conflicting British and
Dutch ~laims'~,the resolution of which had not, at thattime, been achieved.
1.38 Malaysia notes that "there was no questionof extending the scope of the combined
expeditionto any other islands [i.e. other than ~ebatik]"~~.The reason is simple: the principal
purpose of the survey was to establish where the 4" 10'N line met relevant coasts, and no
other islands (andinparticular Sipadanand Ligitan) were crossedbythat parallel.
1.39 Malaysia further notes that the joint survey ended with the departure of HNLMS
Banda on 21 June, and that "There was never any question of the Banda demarcating a
maritime boundary fùrther east, let alone visiting Ligitan or ~i~adan"'~.Indonesia must recall
that:
(a) the survey did not have the purpose of "demarcating a maritime boundary"at
all;
49
50 MCM,para. 2.32.
51 IM, Vol.3,Annex65.
51 MCM, para. 2.34.
53 IM,para.5.34.
MCM,para. 2.32.
54 Ibid .ara.2.33. (b) in anycase, "demarcation"of a line inthe open sea was notphysicallypossible;
(c) indeed, no maritime boundary in the high seas existed at that time and
therefore no boundary "demarcation" would have been perrnissible even if
possible;
(d) at the time of the survey no line dividing British and Dutch possessions in the
area had been agreed, and therefore any purported "demarcation" would not
only have been inappropriatebut would also have beenpremature;
(e) nor was any physical identification of a line necessary, since the line then in
mind, and subsequently agreed upon, followed a defined parallel of latitude,
which was al1that was needed;
(f) the survey's purpose did not cal1 for any visit to Ligitan or Sipadan, since
neither was crossedbythe 4" 10'N line; and
(g) the limitation of the Banda's survey activities to the coastal areas of the
mainland and the east andwest coasts of Sebatik at or near the 4" 10'N parallel
in no way means that the 1891 Convention was similarly limited, as suggested
by ~ala~sia~~.The surveywas limited to that area because that was the limit
of the specific task given the survey vessels, which as explained was al1that
was necessary or appropriate: that task was given to them on a contingency
basis before the 4" 10'N line had been agreed andthe Conventionconcluded in
June 1891. It is impossibleto use such a surveyas a basis forthe interpretation
of a text which was only negotiatedand agreedlater.
1.40 Malaysia notes that the Egeria visited Sipadan in May 1891 (on its way to the
rendezvouswith the Rattler and Banda), and that theBritish gaveno notice to the Netherlands
Government as this was undoubtedly British territory. That might indeed have been the
55
Ibid para.2.42.British view, for at that stage in the negotiations, before the 4" 10'N line had been agreed,
Great Britain would no doubthave acted in accordance with its view of the situation -just as
the Dutch, in establishing their station at Batoe Tinagat in September 1~79'~,acted in
accordance with their view of the situation on land without seeking permission from the
British authorities. Sueh British actions, of which there is no record that the Dutch had any
knowledge and were therefore in no position to protest, do not establish Dutch acquiescence
in British authority over Sipadan. In any event, such actions of the two States before June
1891Saynothing aboutthe scopeof the agreement luter reached inthe 1891Convention:they ,
were actions taken in pursuit of asserted rights which werestill being maintained at the times
in question,the conflicts in relation to which were only later resolved by agreement upon the
Conventionline.
1.41 Malaysia acknowledges (as Indonesia had already noted at paragraph 5.36 of its
Memorial) 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 ownS7. Malaysia,
however, seeks to limit the truth of this statement to the survey of territory claimed by the
Dutch and ofthe proposed boundarywith British North Borneo, and denies its correctness for
territory and islands to the east, which were said by Malaysia to be administered by British
North Borneo, including Ligitan and Sipadan. That Malaysian attempted limitation lacks
weight: inthe first place, it onceagain involves a mere assertionthat at that time Sipadan and
Ligitan were actually being administeredbythe BNBC - such bare assertions, unsupported by
any evidence of administration of those two islands by the BNBC, is characteristic of
Malaysia's arguments in this case; and second, the incident in 1876 involving HNLMS
Admiraal van Kinsbergen and the island of ~abu1~~(north of Sipadan) shows that Dutch
maritime activities in the area were by no means limited to the kind of in-shore areas
suggested by Malaysia. Similarly, Sir Rutherford Alcock (BNBC) wrote to Sir Julian
Pauncefote (Foreign Office) on 11 January 1884, complaining that "Dutch men-of-war are
cruizing in Ourwaters, north of the boundary they themselves claim, viz. Batu ~ina~at"'~.A
56 IM,para.5.3.
57 MCM,para.2.38.
58 ICM,para.5.42.
59 Annex2tothisReply.glance at a map ofthe area shows that this is a reference to the waters off the south coast of
Semporna and thus north of Sipadan and Ligitan. These demonstrations of Dutch maritime
activity are consistent with the observation in the Admiralty Pilot (1890 editionl6' that. as
regards Sebatik, "Theonly information we have of this locality isfiom the Dutch chart".
1.42 In paragraph 2.39 of its Counter-Memorial Malaysia suggests that during the joint
activities of the Egeria, Rattler, and Banda, the British and Dutch officers were, in
conversation, "boundto have touched uponthe survey of the Egeria in the preceding weeks",
and that the Dutch officers "did not consider it worth mentioning intheir report" or protesting
at such a unilateral British surveyof Dutch islands and waters. Indonesia would observe that:
(a) the premise on which this argument rests (that there was "boundto have been"
discussion of the Egeria's previous surveywork) is, again,pure speculation;
(b) if the fact of such discussion was not mentionedin the Dutch report, it was also
not mentioned inthe reports submittedby either the Egeria or the Rattler, who
must similarly have regarded thematter as of no importance (or as something
about which it was betterto keep quiet);
(c) in the absence of any evidence of knowledge on the part of the Dutch crew of
the Banda that there had been a British surveyof Dutch-claimed waters around
Sipadan (and it has to be borne in mind that the normal route to the rendez-
vous point would in any event have taken the Egeria past Sipadan), no
significancecanbe attachedto any absenceof Dutch protest;
(d) similarly, in the absence of any evidence of Dutch knowledge of British
transgressions into Dutch-claimed waters,the general cordial relations between
the British and Dutch vessels is no matter for surprise;
60
MCM,Vol.2, Annex 1,ap. 190. in any event, at the time the situation in this area regarding sovereignty was
(e)
essentially one of competing claims, withoutthe certainty which would later
follow after the conclusion of the Convention, and attitudesof naval personnel
on the spot wouldbe likelyto havetaken that into account; and
(f) any lack of complaintby the Dutch naval authorities (had any complaintbased
on knowledge been called for, which it was not) is mirrored by the lack of
British complaint when HNLMS Macasser sailed into British waters in 1903:
as Malaysia explains, "Collaboration was necessary for a complete suwey of
the coast to establish reliable navigation charts, and relations between the
officerswere good"61.
1.43 In assessing the significance ofthese naval survey operations one general pointmust
be borne in mind. This is that "Given the limited resources available,the colonial powers
were more intent on collaboration than on affirmation of respective sovereignties on these
small and often featureless islands". Those words are Malaysia's: at paragraph 4.7of its
Counter-Memorial. Moreover, as with the erection of lighthouses, naval surveying is more a
matter of the promotion ofthe safetyof navigationthan of a manifestation of s~vereignt~~~.
1.44 The return journey of HMS Egeria in 1892during which she visited Ligitan although
probably not ~i~adan~~ has to be seen in that light - particularly since, from the evidence
relied on by ~ala~sia~~,the "visit"does not appearto have involved any landing on the island
but rather just navigation in their vicinity. There is no evidence that the Dutch authorities
knew of this voyage, which in any event was undertaken en route tolfrom checking the
beacons on Sebatik. Such a survey voyage cannot be seen as evidence in support of
Malaysia's contention that British sovereigntyextendedto the islandsnow in dispute.
61 MCM, para. 4.7.
62 See ICM, paras. 7.41-7.42.
6; See above, paragraph 1.35(viii).
64 Narnely,IM, Vol. 3Annex90, pp. 242,245. Section 5. Conclusion
1.45 As shown inthis Chapter,
(a) the uncertainties as to the limits of British and Dutch territorial possessions in
theregion were settledbythe 1891Convention;
(b) the parties wantedbythe Conventionto settle al1their differences in the area;
(c) for the offshore area they didso by adoptingthe 4" 10'N line. CHAPTERII
INTERPRETATIONOFTHE 1891CONVENTIONIN THE LIGHTOF THE
SUBSEOUENTPRACTICE
Section 1. TheTermsof the Convention
2.1 Malaysia devotes paragraphs 2.43-2.48 of its Counter-Memorial to the interpretation
of the Convention, attemptingto discredit Indonesia's interpretation advancedits Memorial.
2.2 Indonesia reads the 1891 Convention, according to the natural and ordinary meaning
of its termsin their context and in the light of the object andpurpose of the Convention,as
dividing British and Dutch possessions along the boundary delimited in the Convention
according to the terms of which, from the stipulated point on the east coast of mainland
Borneo, it is "continued eastward" along the4"lO'N parallel in such a way as to attribute
islands to the north of that line to Great Britain and islandsto the south of that line (including
Sipadan and Ligitan) to The Netherlands. Malaysia claims that the agreed boundary stops at
the east coastofSebatik.
2.3 The foregoing statementof the Parties'positions mirrors that put fonvard by Malaysia
at paragraph 2.45 of its Counter-Memorial: the passages emphasised above are relevant
phrases omitted from Malaysia's summary statement of the Parties' essentialpositions. Their
omission is revealing as to aspects of Indonesia's argument withwhich Malaysia feels
uncornfortable (indeed, Malaysia elsewhere has also, byan omission from a quoted passage,
sought to disregard the relevance of the Parties' aim inconcluding the Convention - see
below, paragraphs 2.8-2.10).
2.4 Malaysia, at paragraph 2.46 of its Counter-Memorial, repeatsits earlier argument that
the order in which the negotiating process dealt with theboundary was reflected in the order
of Articles 1to IV of the Convention, and that thatsomehow affects the meaning of those
Articles (andof Article IV in particular). Itdoes not: see above,paragraph 1.32.2.5 Malaysia seeks to show that because the Convention refers to a "boundary" line, it
must belimited only to a boundary on land, excluding any continuation outto sea 1. Indonesia
has shownthat use ofthe term "boundary"is not limitedto landterritoj.
2.6 Malaysia seeks to show that because the Convention uses the word "continue" in
relation to the westward boundary (which does not extend out to sea), the use of the same
word in Article IV similarly excludes continuation out to sea3. But Malaysia misses the
important point (explained at paragraph 5.20 of Indonesia's Counter-Memorial) that the
westward Article (ArticleII) stipulates that the westward boundary "continues" westwardto a
speczfiedpoint, whereas Article IV contains no such terminal point: the reason is that at the
western end of the land boundary there were no islands nearthe shore, and the more distant
islands (the South Natuna islands) were indisputably Dutch. This difference between
Articles IIand IV is clearly illustrated on the Explanatory MemorandumMap.
2.7 Malaysia seeks to deny the extension of the 4'10'N line eastward of Sebatik by
asserting that the island ofSebatik is the limit of the line's eastward continuation4. But this is
to assert what has to be proved. That ArticleIV did deal with the island of Sebatik is not in
dispute: that it dealt only with that island, and with no other islands north orsouth of the
agreed line, is atthe heart ofthe dispute. Assertionis not even argument, letalone proof.
2.8 Malaysia's representationof Indonesia'sfourth argument, at paragraph 2.47(d) of its
Counter-Mernorial, is simply wrong because it is incomplete, and as a result Malaysia has
wholly misunderstood Indonesia's argument. Malaysia statesthe Indonesian argument in the
following way:
"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 offshore islands would be inconsistent with
that purpose".
I MCM, para. 2.47(a).
2 ICM, paras.5.8, 5.12;nd seealsoparagraph1.33(d)above,
3 MCM, para.2.47(b).
4 Ibid.para.2.47(c).That purported statement is meaningless, since the last two words ("that purpose") have
nothing to refer back to. It is also incomplete, although Malaysia gives no indication that
words have been omitted fiom the quotation.
2.9 The correct statement of Indonesia's argument, as put inits Memorial at paragraph
5.43(d), is as follows(withthe words omittedfiom the Malaysianversion in italics):
"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, and the desire on both sides to settle the boundary
problem once andfor al1 (as to which see, also, paras. 5.56-5.59, below), an
interpretation which would leave open the question of attribution of various small
offshoreislands would be inconsistent with thatpurpose".
2.10 Thus the crucial point in the Indonesian argument is notjust that the Dutch believed
that they had good claims to various islands, but also that it was the cornrnon intention to
settleal1such problems for the futures. The importance of a main purpose of the Convention
beingto put an endto al1futureterritorial disputes in this area cannot be underestimated when
seekingto interpret its terrns: it is a purpose shared by Great Britain, whose early proposa1for
a seulement was for "a compromise of al1conflicting claimsw6. In addition to the wish to
avoid future disputes, there was also concern as to the possible future complications fiom
other States. As the Dutch Foreign Minister observed in .discussionwith the British Minister
at The Hague, it was:
"desirable [...]that the two Powers [...] should come to a complete understanding
which would not leave room for any third Power to step in at any time and claim
territorythere as being res nullius. We had, he said, in Ournegotiations with Spain for
the surrender of her claims on the Northern part ofthe Island, sufficient experience of
the difficulties we might have to dealwith"'.
5
6 IM,paras.5.43(d),5.56-5.59;ICM,para. 5.39.
7 IM,para. 5.7. Emphasisadded.
Sir H. Rumbold'sdespatchof 19 November 1888 to Lord Salisbury,IM, Vol. 2, Annex35, p. 299, at
pp. 304-305. Emphasisadded.An interpretation which would leave the status ofvarious claimed islands (both north and
south of the agreed line) unclear would not be consistent with that manifest purpose
underlyingthe settlement achievedbythe Convention.
2.1 1 The obvious political intention to settlethese North Borneo territorial matters onceand
for al1is fully consistent with views expressedby the Court. In several cases involving the
application of boundary agreements where no extraneous questions of validityor applicability
have been in issue, the Court has affirmed a general presumption that boundary settlements
are intended to be both comprehensive and final.
2.12 The observations of the Court in the case concerning Sovereignty over Certain
Frontier Land have been noted previously by 1ndonesia8,as have those of the Permanent
Court in its 1925 Advisory Opinion on the Interpretation of Article 3, Paragraph 2 of the
Treatyof lausanne9.
2.13 To similar effect the present Court,inthe TempleofPreah Vihear,noted that:
"Ingeneral, when two countries establish a fiontier between them, one of the primary
objects isto achieve stabilityandfinality"'O.
Again, in the case concerning the Territorial Dispute(LibyanArab Jamahiriya/Chad),the
Court considered that the Treaty before it - the 1955Treaty between Libya and France - "was
aimed at settling al1 the fiontier questions, not just some of them"". In reaching that
conclusionthe Court observed that
"Inthe expression [in Article 31'the fiontiers betweenthe territories ...'the use of the
definite article is to be explained by the intention to refer to al1the frontiers between
Libya and those neighbouring territories for whose international relations Francewas
then re~~onsible"'~.
8 IM, para.5.60atp.94.
9 Ibid.
1O TempleofPreah Vihear,Merits,Judgment,I.C.J.Reports1962,p.6 atp.34. Seealso IM,para.5.59.
11 TerritorialDispute (LibyanArabJamahiriya/Chad),Judgment,1C.J Reports1994,p. 6atp. 24,para.48.
I? Ibid.The use of the definite article in the preamble to the 1891 Convention ("defining the
boundaries between theNetherlandspossessions inthe Island of Bomeo and the States in that
island which are under British protection":emphasisadded) similarly reveals the intention of
the parties to allocatel1the territories inthe area, notjust some oftheml3.
2.14 Malaysia nevertheless appears to suggest that an interpretation of Article IV which
would put on the Dutch side of the line islands whichwere some 50 miles offshore is in some
way "wild"and not to be countenancedl4. Yet, to take two other well-known treaties applying
to the same region, both the U.S.-Spain Peace Treatyof 1898,and the Anglo-U.S. Convention
of 1930,both of which are relied on in other contexts by Malaysia,attribute to the one party or
the other small islands falling within the scope of the treaty even though they are in several
instances 50 miles or more away fromthe nearest mainland or even large island, and do so by
the use of "boundary" lines attributing islands in accordance with which side of the line the
islands lie on.
2.15 Malaysia challengesIndonesia'sassertionthat the initial British proposa1was for a line
running out from Broershoek through the channel between Sebatik and Nanoekan, and that
such a line would inherently be a line running out to sea15. For the reasons given in
paragraph 1.31 above, including in particular the maps used in the negotiations and to which
attention is there drawn, Indonesia sees no reason to depart fiom the position it has adopted.
As will be shown below (paragraph 2.27), Malaysia acknowledges16 that the Dutch
Explanatory Memorandum Map showedthe British proposa1(i.e. the line coloured green)as a
line extending out to sea.
2.16 Malaysia dissents fiom Indonesia's assertion that the use in Article IV of the term
"along"(i.e. "alongthat parallel") confirmsthat a line of indeterminate length was intendedl7.
Malaysia'sresponse,that the sentencecontinues with the words "acrossthe island of Sebatik"
does not advance the argument in any way. If by those additional words Malaysia seeks to
show that the island of Sebatik constitutes the terminal point for the line, then once again
13 See also ICM, para.5.38.
14 MCM, paras.2.47(d) and 2.66.
15 Ibid.para. 2.47(e).
16 Ibid pa,a. 2.55.
17 Ibid pa,a. 2.47(f).Malaysia is substituting self-serving assertion forargument. That the line continues "along"
the 4"10'N line is clear;that it continues "acrossthe island ofSebatik" is equallyclear; that it
stops there, as Malaysia contends, is not clear, and no amount of mere assertion by Malaysia
will make it so.
2.17 Malaysia seeks to dismiss Indonesia's grammaticalanalysis of Article IV as "pure
fiction", and as a "convoluted grammatical hypothesis", and claims that Indonesia is
attempting to strike out the reference to the island ofebatik'*. As to that latter point, it is
patently absurd: nowhere does Indonesia suggest that the reference to Sebatik should be
treated as if it were not there: on the contrary, Indonesiaexpresslystatedthat it did play a role,
"as a subsidiarydescription, for purposes of clarification",and recognised its consequences in
paragraphs 5.43(i) and (j) of its Memorial. Malaysia may disagree with Indonesia's
interpretation of the text in relation to the mention of Sebatik, which in Indonesia's view
follows clearly from the structure of the sentence. If Malaysia disagrees with Indonesia's
analysisof the tems of the Convention, Malaysia should not only Sayso (as it has, at least by
implication) but should Saywhy it does so. Unfortunately for Malaysia, grammar is essential
to the attribution of meaning to language. Impatient dismissal of an inconvenient argument
inspiresno confidence in the merits ofthat dismissal. In the absence of any argument offered
by Malaysia, Indonesia sees no reason to reconsider its grammatical analysis of Article IV,
which supportsIndonesia'sviewthatthe main clauseofthe Article is indisputablythat the line
"continueseastwardalongthat parallel".
2.18 Astonishingly, Malaysia itself goes on immediately to invoke the grammatical
significance ofa semi-colon(actually a colon) in seeking to refute the meaning attributed by
Indonesia to the word "acro~s"'~. Instead of following Malaysia in impatiently dismissing
such a grammaticalargument,Indonesiapoints outthat:
(a) Malaysia'sview ofthe meaning of the word "across"is at odds with Indonesia's
view, as to which see not only paragraph 5.43(h) of Indonesia'sMemorial but
also now paragraphs 5.22-5.23 ofits Counter-Memorial;and
18
19 Ibidp.,ra.2.47(g).
Ibid p.,ra.2.47(h). Malaysia'sassertionthat Indonesia was simply striking out the words after the
(b)
colon, and its argument about the significanceof the colon, are fully dealt with
in Indonesia's Counter-Mernorial,at paragraphs 5.24-5.25.
2.19 Malaysia seeks to deny that the principal thrust of Article IV is that the 4" 10'N line
"continues eastward along that parallel", and calls such a view Yet again,
Malaysia, in the absence of good arguments,resorts to impatient dismissal. The reason why
the principal thrust of Article IV is as Indonesia says it is, is simplythat that is, as a matter of
elementary grarnrnar,the main clause of the sentence. Indonesia notes that Malaysia accepts
that the "clarification says what it says, i.e. that the boundary crosses the island of Sebatik,
dividing it in two": Indonesia agrees(particularlywith Malaysia'sacceptance of the reference
to Sebatik as merely a "clarification"),but must add that that says nothing about the matter at
issue, namely whether the line stops at the point at which 4'10'N crosses the east coast of
Sebatik or whether, as the main clause ofthe Article says, it "continues eastward along that
parallel".
2.20 Malaysia purports to misunderstand Indonesia's assertion that, apart from the
attribution of islands to one Party or the other, there was no contemporary reason that the
4"10'N line should have extended outto the high seas2'. Indonesia did not Say,as Malaysia
suggests,that there was no reason to extend the line out to-the high seas: Indonesia said that
there was no reason to do so "otherthan the attribution of islandsto one Party or the other".
Malaysia is wrong in saying that there were no disputed islands to allocate: Indonesia has
shown, in its Memorial and also in its Counter-Memorial,that there was uncertainty about the
maritime extent of territorial claims in the region, and that those claims - however
insubstantialone side or the other might have consideredthem to be - which might have been
the source of future discord, were put to rest by the 1891Convention. Contrary to Malaysia's
assertion,that is why under the 1891Conventionthe 4"10'N line did notstop at the east coast
of Sebatik but, as Article IV stipulated, "continuedeastwardalongthat parallel".
20 Ibid.,para.2.47Cj).
21 Ibid.,para.2.47(k).2.21 Malaysia makes a wholly irrelevant riposte to Indonesia's statement that the
continuation out to sea ofthe Convention linewas consistent withthe location of other Dutch
possessions to the east, south of the Malaysiapoints out that the issue was not a
neat delimitation of Dutch and Spanish possessions, but was rather the fixing of an Anglo-
Dutch boundary in north-eastBorneo. That is true - but does not in any way undermine the
assertion, which remains correct and uncontradicted by Malaysia, that that Anglo-Dutch
Borneo settlementwas consistent withthe location of other Dutchpossessions inthe area.
2.22 Malaysia'sattempt to discount Indonesia's argumentthat the parties' concerns did not
stop at the eastern limit of Sebatik but continued eastward into navigationally significant
waters out to sea lacks al1substance23.The scope of thejoint naval survey in May and June
1891,and its significance,has been discussed at paragraphs 1.35-1.44above. That the survey
stayed close to Sebatik was the result of the limited instructions given to the survey vessels,
and had no implications for the meaning of thelater ArticleIV ofthe Convention:their survey
was not carried out in pursuance of any provision in the Convention, and was carried out
before (and on the basis of instructions given well before) agreement was reached on the
4"10'N line and text of the Convention was adopted.
2.23 Malaysia's reliance ona dictum of the Tribunal inthe Guinea-GuineaBissau case24is
misplaced. The issue before the Tribunal arose out of the terms of Article 1of the Franco-
PortugueseConventionof 188625,and concernedthe question whether those terms established
a maritime boundary betweenthe parties'possessions. The Tribunal answeredthat question in
the negative. In doingso it noted:
"that there was no question of territorial waters, either in the other negotiation
protocols or in the officia1dispatches, notes or documents irnrnediately prior to or
following these negotiations, with the single exception of the interna1 note of the
French Ministry of Foreign Affairs rnentioned in paragraph 61 ab ove^^^ Th.us an
essentialcondition requiredto determinea maritime boundarydidnot e~ist"~~.
22 Ibid., para. 2.47(1).
23 Ibid.,para. 2.47(m).
24 Ibid., para. 2.48.
25 Seeabove,para. 1.33, inparticularsub-para.(b)for asurnmaryofthe effectof Article1.
26 Seeabove,para. 1.33(a).
27 Guinea-Guinea(Bissau) Maritime Delimitatinase(1985),ILR 77,p. 636 atp. 673,para.79. Emphasis
added.It was inthat context that the Tribunal went onto observethat:
"In the absence of any textual evidence, there is every reason to presume that the
negotiators never envisaged anythingbut the land boundaries112'.
This situation was very different fiom that of the 1891 Anglo-Dutch Convention. Not only
were the issues quite different(maritime boundaries,not territorial sovereignty) but in relation
to the 1891 Convention there was documentary evidence, both before, in, and after the
conclusion of the Convention, showing that the negotiators intended that the line which they
were layingdown shouldcontinueeastwards outto sea alongthe 4"10'N parallel of latitude.
2.24 As to Malaysia's final point in paragraph 2.48 ofits Counter-Memorialthat, especially
in 1891, a "boundary" could in no way be drawn in the open sea beyond territorial waters,
Malaysiaappearsto have forgotten:
(a) that in the area in question the line was a line dividing possessions of the two
Parties, and was, at sea, a line of attribution;
(b) that the use of the term "boundary" is not uncornrnonlyused in relation to such
maritime lines of attribution (and was so used in the Anglo-U.S. Convention of
1930~~,and in Article 1of the Franco-Portuguese Convention of 1886 which
was the subjectofthe Guinea-Guinea Bissau arbitration30.
Section 2. The Explanatory Memorandum Map
2.25 As explained in paragraphs 5.44-5.45 of IndonesialsMemorial, and paragraphs 5.82
and 5.94 of its Counter-Memorial, The Netherlands ratified the 1891 Convention. This was
expressly provided for in Article VIUof the Convention. As part of that ratification process,
the Netherlands Government formally submitted to its Parliament a Map illustrating the
28
29 Ibid.
30 See furtherICM, paras.5.8 and 5.12.
Seeabove,para.1.33(d).outcome of the convention3'. That Map showed in red the line agreed in the Convention
extending out to sea eastwards of Sebatik: the legend described that red line as the "line set
out in Convention". The BritishGovernrnentknew of and acquiesced in that Map.
2.26 Malaysia deals with these matters in its Counter-Memorial principally at
paragraphs 2.49-2.59, and in passing inseveralplaces but inparticular at paragraph 5.8.
2.27 At paragraph 2.55 of its Counter-Memorial Malaysia poses a number of questions,
intended to show that there was no rhyme or reason in the depiction of the agreed line as
continuing out to sea for some 50 miles. Malaysia no doubt intended its questions to be
merely rhetorical. But in fact al1are capable of straightforward answers, which show that
there was reason (ifnot rhyme) in the depictions onthe Explanatory Memorandum Map.
(a) There was no discrepancy between the Convention and the Explanatory
Memorandum Map,as implied by Malaysia: Article IV provided forthe line to
be "continued eastward", and the Map showedjust that - it illustrates with
abundant clarity exactlywhat was intendedbythe terms of Article IV.
Malaysia goes on to ask why the red line (i.e., the agreed Convention line)ran
(b)
out to sea: asjust noted, it did so because such a 'continuation eastwardsl was
what ArticleIV required.
(c) Malaysia professesto find it odd that the green line (Le.,the British proposal)
ran out to sea: but it did so because that was exactly what the British proposa1
envisaged3'.
(d) Malaysia asks why the red line lengthened between its first draft on 23 June
and the final version submitted with theExplanatory Memorandum on 25 July
1891 :first because it is in the nature of drafis that they are subject to change,
and second (if one is looking for a possible reason for this particular change)it
could lie in the wish to show more clearlythe effect of Article IV - the first
3l
32 SeeMapNo. 5inthe MapAtlassubmittedwithIndonesialsMernorial.
Seeabove, paras.1.31and 2.15. draft showed unrnistakablythat the line continued eastwards out to sea, but an
even clearer depiction of that result was shown in the final version (perhaps
inspired by the eastward extent of the British proposa1 - see above,
paragraph 1.31 - which went approximatelythe same distance out to sea). It
thus shows an intentional rendering of what Article IV provided, rather than
some accidentalcarelessness.
(e) And finally, why was the line not continued out until it met the Spanish
possessions? - becausethe purpose of the Convention, and the line agreed in it,
was nothing to do with the delimitation of Dutch-Spanishinterests: as Malaysia
itself put it, "The 1891 Boundary Convention was not concluded with Spain,
but with Great Britain. The issue was not a neat delimitation of the Dutch and
Spanishpossessions [...] "33.
Far from there being, as Malaysiaputs it, "no logicto al1this", there is in fact abundant logic,
andthe whole picture fits together extremelywell inthe manner suggestedby Indonesia.
2.28 Inparagraph 2.56Malaysiaprofessesto see in the Netherlands Government's replyto a
question put to it, and in particular the absence of any mention in that reply of the Map in
relation to the continuation of the line out to sea, some sort of acknowledgement that the
Convention did not provide for a line going out to sea. Several points are called for in
response to this argument:
(a) The Govemment'sreply was related to the question put to it: it was asked to
give a particulardeclaration,and it did so. It is quite usual for Governrnents,in
such circumstances,not to volunteer answersgoing beyondthe questionput.
(b) The Govemment's reference to "al1that lies to the south of the border (as
defined inthe agreement)"includes,of course,Article IV, and the 'continuation
eastwards'oftheagreedline was "defined inthe agreement".
33 MCM,para. 2.47(1). (c) The reference in the question, and in the reply, to possessions "in the island of
Bomeo" does not exclude off-shore islands where, as here, the text of the
Convention was apt to cover them: see paragraph 5.14(e) of Indonesia's
Counter-Memorial.
(d) The Government had no need to refer specifically to the Map: it was before
Parliament, and Members of Parliament were to be taken to be familiar with
documentsplaced in front of them.
2.29 Malaysia, in a different part of its Counter-Memorial, criticises the accuracy of the
Map, and in particular its omission to show Sipadan or to narne ~i~itan". In doing so
Malaysia misses the point. First, many islands and similar features were not shown or
identified on the Map: thus, a comparison betweenthe Map (see Map No. 5 (Enlargement) in
the Indonesian Map Atlas) and Map No. 23 (Enlargement) in the same Atlas shows that the
former gives a very simplified representation of maritime features and in particular does not,
for example, indicate P. Kapalai, Ligitan Reefs, Friedrich Reef, Roach Reefs, Alert Patches,
P. Kumpung, Heel Reef, or Hand Rock, al1of which are shown and named on Map No. 23
(Enlargement). But second, and more importantly, so long as the Map correctly shows the
agreed 4"10'N line which separatesDutch and British possessions in the area (which it does),
the attribution of small island-and both sidesagreethat the two islands now in issue, as well
as many on the northern (i.e., British) side of the line, are very sma-lfollows automatically
from their location in relation to that agreed line, and is not dependent upon their visibility on
a map.
2.30 Malaysia's attempt, at paragraph 2.58 of its Counter-Memorial, to avoid the
consequencesof the British Government'sactualknowledgeof the Map and its failure to react
against it in any way(it reactednfavour of it byputting it in its officia1archives) is singularly
unconvincing. Malaysia does not deny that the Map was a matter of public knowledge for
those concerned; Malaysia cannot deny that the British Government was among "those
concemed"; Malaysia accepts that the British Minister in The Hague called the attention of
Lord Salisbury to the Map - and it is to be noted that Sir Horace Rumbold's Despatch
34
MCM,para.5.8.expressly described it as a map "showing the boundary-line as agreed upon under the late
Convention"and drewspecificattention to the Map as "the onlyinterestingfeature"".
2.31 There can therefore be absolutely no question but that the British Government, at the
highest levels, was aware of the Map, and thus of al1the lines on it, including the red line
showing - as the legend on the Map clearly stated -what had been agreed inthe Convention.
The British Minister in The Haguehad no need to single out for attention the line running out
to sea: it will havecome as no surprise to him since, as he put it in his Despatch, it was the
map showingthe boundary-line "as agreed inthe Convention". Similarly,.thefact that neither
Lord Salisbury, nor Sir Edward Hertslet who had been one of the chief British negotiators,
reacted against the Map shows that there was nothing in it to cause them concern as being
inconsistent with the Convention. The interna1Foreign Office receipt slip for Sir Horace
Rumbold's despatch affords clear evidence that the despatch was received in the Foreign
~ffice'~,that copies of the Map were with it, that it was marked to Sir Edward Hertslet to see,
and that, by virtue of the tick against his name and his initials below it, he did in fact see it. It
is pure speculation, backed by no evidence whatsoever, to suggest that the British would
"probably" have been more interested in the land boundary as traced across the island of
Borneo andthe comparison between the fourproposals: but even if this speculationis taken as
correct, it would at the same level of speculationbe scarcely imaginable that senior officials
familiar with the course and outcome of the negotiations would have looked with interest at
the land-related parts of the lines and then simply not noticed that one of them - the crucial
line depicting what was agreed - continued outto sea.
2.32 In short, the British Government knew of the Map and had a copy in their possession
contemporaneously with the Dutch ratification process and well before instruments of
ratification were exchangedon 22 May 1892;and the British Government failed in any wayto
object to its depiction of the line agreed in the Convention. The British Government
acquiescedin that Map - correctlyso, for it simply depictedthe line 'continuing eastwards'as
stipulated in the Convention: to use the language in which Sir Horace Rumbold reported the
35
36 IM,Vol.3,Annex81. Emphasisadded.
A copy is at Annex 3.Map back to Lord Salisbury,it was the Map "showingthe boundary-lineas agreed upon under
the late conventionw3'.
2.33 Contrary, therefore, to what Malaysia says3',the British Government did accept the
Map as an instrument related to the treaty. Its acquiescence in the Map involves its
acceptance of it; and the British Government knew that it had been prepared in connection
with the conclusion (i.e., ratification) of the treaty and depicted the line agreed in -t i.e., it
was demonstrably an instrument related to the treaty,as required by Article 31.2(b) of the
Vienna Convention.
2.34 Malaysia's attempt to distinguish the Livre Jaune rnap in the Territorial Dispute
(LibyanArabJarnahiriya/Chad)case is unc~nvincin~~~.To argue, as does Malaysia, that in
that case (but,by implication, not inthe present case)the relevant treatytext was not fkeefrom
ambiguities and made different interpretations possible, isto fly in the face of reality. The
whole issue in this case, as the pleadings have amply demonstrated, showsthat different
interpretations of Article IV are being put forward by the two Parties, and the Explanatory
MemorandumMap - like the Livre Jaunernap - showsthe line agreed inthe Convention and
acquiesced inbythe other Partyas a correct delineationofthe agreed line.
2.35 For Malaysia to go on to argue that the parties, far fiom agreeing to the Explanatory
Memorandum Map, agreedto a different rnap in 1915is wilfully to confuse a Map drawnby
one Party and acquiesced in by the other, depicting the line agreed inthe 1891 Convention,
with a rnaplimitedto illustrating onlythe smallportion ofthe boundary which was the subject
of the 191 5 Agreement (see further, paragraph 2.47 below). In no way can the very limited
1915 rnap be compared with, let alone prevail over, the Explanatory Memorandum Map,
except in respect of the limited stretch of boundary dealt with inthe 1915 Agreement: the
1915rnapis wholly irrelevantto any other stretches ofthe boundary, whetherto the west or to
the east of the limited stretch to which it referred.
37 IM, Vol. 3, Annex 81.
38 MCM,para.2.63.
39 Ibid.,para.2.64.2.36 As to Malaysia's cursorydismissal of the significance ofthe Court's statementsin the
Templecase, it too lacks convi~tion~~.It cannot be said, as Malaysia does in relation to the
circumstances surrounding the Explanatory Memorandum Map, that the "circumstances did
not call for any particular reaction". Where a State which has just concluded an important
boundary treaty, and is made aware through officia1 channels and as a matter of public
knowledge,that the other Partyis, in an officia1and public document,maintaining a particular
view of the meaning of the treaty, it stays silent at its peril. The fact, so far as it may be true,
that nobody mentionedthe Map inthe debates in the NetherlandsParliament or drew attention
to the line's continuationout to sea, is nojustification for the directly concerned other Party
not to look carefùlly at what is put before it: there was nothing reticent about the depiction of
the (agreed) red line on the Map, and its existence and purport were manifest at even the
quickest glance - the Map's legend expressly described the red line as the "line set out in
Convention". If the Party disagrees it must sayso, and if it does not Sayso, it will be taken to
have acquiesced. In this instance, Great Britain'sacquiescenceis not only evident as a matter
of law, but is readily understandable as a matter of fact, since the depiction of the red line
conformed to what Article IV said and will have come as no surprise to the British
Government.
Section3. TheIrrelevanceof the 1915and 1928 Agreements
2.37 In its Memoria14'and ~ounter-~emorial~~Indonesia submitted that the agreements
concluded in 1915 and 1928were irrelevantto the application of the 1891 Convention to the
islands of Sipadan and Ligitan. Although Article V of the Convention envisaged that the
boundary described in the Convention would need further elaboration in detail, and that the
1915 and 1928 agreements were concluded pursuant to that provision in relation to certain
limited parts of the agreed line, the seaward extension of that line did not call for any fùrther
precision since it was determined by reference to a parallel of latitude, and circumstances at
sea didnot allow for any specificdemarcation.
40
41 Ibid.,para. 2.65.
42 SeeIM,para. 5.65.
SeeICM,paras. 5.97-5.118.2.38 Malaysia, on the other hand, places great store by the conclusion of the 1915
Agreement, and the map attached to it43. Malaysia's belief in the significance of this
Agreement and map is misplaced.
2.39 Indonesia agrees with Malaysia that Article 31(3)(a) of the Vienna Convention
requires that "any subsequent agreement between the parties [to a treaty] regarding the
interpretationof the treaty or the application of its provisions" hasto be ("shall be") taken into
account, together withthe context of the treaty.
2.40 The significanceof this provision must be properly understood. Article 31 laysdown
the generalrule of interpretationof treaties. Paragraph 1requires (so far as here relevant) that
"A treaty shall be interpreted in good faith in accordance withthe ordinary meaning to be
given to the terms of the treaty in their context[...lu.Paragraph 2 stipulates what is to be
regarded as the context of a treaty for the purpose of its interpretation. Paragraph 3 then
requires that any subsequent agreements of the kind referredto are to be "taken into account,
together withthe context".
2.41 Two points about paragraph 3 shouldbe mentioned. The subsequent agreements are
only to be "taken into account": they are not necessarily decisive. And in particular thereis
nothing in Article 31 which suggests that a treaty delimiting in detail a small part of a
boundary already delimited in general terms in some waygoverns the delimitation of the rest
of the boundary. In so far as a subsequent agreementisto be taken into account, it is only for
the purpose of serving, alongsidethe context ofthe original treaty, as a relevant consideration
in establishingthe ordinary meaning of thattreaty'stems - for that is the only purpose under
Article 31for whichthe context of a treatyis relevant.
A. The 1915Agreement
2.42 The 191 5Agreement was an agreement between the partiesto the 1891Convention in
application of its provisions. In particular, it was concluded in application of ArticleV of the
1891Convention. That Article provides:
43 MCM, paras.2.67-2.78,2.79(f). "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 Netherlands
and British Governmentsmaythink fit".
In effect, therefore, the parties agreed in 1891that there would be a later demarcation on the
ground ofthe boundary delimited inthe 1891Convention.
2.43 An occasion for such a demarcation arose in 1910. The circumstances were recounted
in Indonesia's Counter-Memorial,at paragraph 5.104, et seq. It is apparent from paragraph 4
of the letter of 11 March 1913 to the BNBC from the Governor of British North Borneo
reporting the completion of the work of the demarcation commission that the demarcation
owed much to uncertainties about the proper limits of tax collectors'acti~ities'~. The interna1
report of 24 February 1913 submitted by the two British ~ommissioners'~ when formally
submitting to their authorities the Joint Report of the British-Netherlands Commissioners of
17 February 191346sets out in paragraphs 4 and 6 respectively the terms of the Commission
givento the British Commissionersand of the instructions givento the Dutch Commissioners:
these instruments add nothing of significance to the purpose of the Commissioners' work,
otherthan that they were instructedto demarcatethe boundaryto the extent necessary.
2.44 The result was a boundary demarcation carried out on the spot by representatives of
the two Governments. They started their work on the east coast of Sebatik, and worked their
way westwards into the mainland of Borneo -but by no means the whole way along the
mainland Anglo-Dutch boundary. In fact, as the sketch map at Annex 26 of Indonesia's
Counter-Memorial shows,the demarcation only went a relatively short distance into mainland
Borneo, covering only approximately 20% of the mainlandboundary.
2.45 Malaysia attaches significance to the fact that the Cornmissioners started their
demarcation work at the point on the east coast of Sebatik where it is crossed by the 4"10'N
line of latitude. Malaysia seeks to draw from this the conclusion that the line prescribed by
the 1891Convention did not extend fùrther eastthan the coast of Sebatik.
44
45 Annex 11.
46 Annex 10.
ICM,Vol. 2, Annex25.2.46 Sucha conclusion is wholly unjustified.
(a) The task of the Commissioners wasto "demarcate"the boundary. Demarcation
at sea is neither possible nornecessa$'.
(b) The task of the Commissioners was to demarcate the "boundary". In the
absence of any islands eastof Sebatikwhich the 4"10'N line crossed, there was
no "boundary"to demarcate.
(c) The fact that the Commissioners' work started at the east coast of Sebatik does
not mean that the Convention linestarted there (any morethan the fact that the
Commissioners' work ended only some 20% alongthe boundary meant that the
boundary ended there). It is in fact noteworthy that paragraph 3(1) of the
Commissioners' Report does not Say (as Malaysia's Counter-Memorial
suggests, at paragraph 2.74; also 2.78(a)) that the boundary starts on the east
coast of Sebatik. The Report actually saysonly:
"(1) Traversingthe island of Sibetik,the fiontier line follows the parallel
of 4"10'north latitude [..."48.
This is perfectly consistent withthe Convention line having begun further east
and then, when it reaches Sebatik fiom the east, continuing across that island.
It is only Malaysia which seeksto interpret the word "Traversing"as meaning
"starting" - which it manifestly does not - indeed, if anything the word
"traversing" suggests not that the line started at the first point mentioned but
that it was alreadyin existence out to the eastwards andthen, upon reachingthe
island of Sebatik,crossed that island along the stated parallel of latitude.
47 ICM, paras.5.112 and 5.117.
48 MM, Vol. 2, Annex25,p. 96. (d) The fact that the Commissioners'Report refersto the interpretation of Article 2
of the Treatymutually acceptedby the Netherlands and British Governments in
1905does not, contraryto what is said by Malaysia, "implicitly,but decisively,
exclude any other mutuallyacceptedagreementin the ~icinity"'~.
(i) Given that the Commissioners'task was to demarcate the boundary, it
was entirelynatural for them to identifi their task by reference not only
to the terrns of the original treaty (the 1891Convention) but also to the
terms of a subsequentagreed interpretationof those terms.
(ii) The implicit parallel between the 1905 agreed interpretation and some
"other mutually accepted agreement in the vicinity" is fallacious, if by
such "other" agreement Malaysia means an agreement about the
seaward extension of the 4"10'N line. That seaward extension was not
the result of some "other" agreement, but was an integral part of the
189 1Conventionitself.
(iii) Since the task of the Commissioners was to demarcate the boundary,
which could not be done on the open sea, there was no reason
whatsoever for The Netherlands to mention the fact that the 1891
Convention embodied an agreementthat the line it prescribed continued
out to sea. Such seaward continuation of the line was irrelevant to the
purpose of the Cornmissioners'task.
2.47 The map attached to the Commissioners' Reportdoes not have the significance given
to it by Malaysia at paragraphs 2.75, 2.76 and 2.78(b) of its Counter-Memorial. That map
appears to have accompanied the Commissioners'Report:it is so referred to in the preamble
to the 1915Agreement (althoughthe Report itself makes no reference to the map) and the two
Governments confirmed it. But it does not purport to be a map of the whole length of the
49
MCM,para. 2.74.1891Convention line:it is merely a map of thatpart of the line demarcated onthe spot by the
Cornmissioners. Just as their work covered only a limited part of the boundary, so did their
map. Its failure to include other parts of the Convention line, whetherto the west or the east,
implies absolutely nothing about such continuations of the Convention line, other than that
those continuedparts ofthe line werenot dealt with bythe work of the Cornmissioners.
B. The 1928Convention
2.48 Malaysia's invocationof the 1928 Convention in this context is even more misplaced
than its reliance on the 1915Agreement. The conclusion of the 1928 Conventionis saidS0to
have been "another" opportunity for the Netherlands Governrnent, if it had had second
thoughts, to correctthe 1915map and agreement.
2.49 As explained, the conclusion of the 1915 Agreementwas irrelevant to the continuation
of the 1891 Convention line east of Sebatik. The conclusion of the 1928 Convention was
even fùrther removed from any relevanceto that matter. As is vividly shown on the sketch
map at Annex 26 of Indonesia's Counter-Memorial,the 1928 Convention dealt only with a
tiny sector of the inland boundary on the mainland of Borneo, well over towards the western
end of that boundary, i.e. almost at the opposite end of the boundary from Sebatik and the
continuationof the Convention line eastwardsbeyondthat island.
2.50 Not only was the subject matter of the 1928 Convention far removed from the area of
any pretended Indonesian concern with the demarcation and map of 191311 915, but in fact
Indonesia has no problems with that demarcation andmap. As respectively a demarcation of
a particular section of the boundary,and as a map recording the extent of that demarcation,
The Netherlands accepted them,as does Indonesia now: but they are simply irrelevantto the
point at issue, namely whether the line prescribed by the 1891 Convention continued
eastwards alongthe 4" 10'N parallel of latitudebeyond the east coast of Sebatik. Thus, The
Netherlands had no need to look for "another opportunity"to "correct" the 1915 Agreement
and map.
50
Ibid para.2.77. Section4. Interna1Dutch Deliberations ona MaritimeBoundary East of Sebatik
2.51 In Chapter 4 of its Counter-Memorial (paragraphs 4.10-4.18), Malaysia deals
extensivelywith internal discussions within the Dutch administration during the years 1922-
1926concerningthe desirability of raising the issue ofthe delimitationof the territorial sea off
the east Coastof the island of Sebatik with the British Government. Indonesia was of course
fully aware of these discussions, but has not previously dealt with them simply because they
are totally irrelevant. By raising this matter, Malaysia is confüsing the question of
delimitation of the territorial sea (which is not the subject of the present dispute) with the
question of title to territory.
2.52 Contrary to what Malaysia seems to imply, Indonesia has never suggested that the
1891 Convention line was from the outset intended also to be, or in effect was, a maritime
boundary in the sea area east of Sebatik island. Rather, as submitted by Indonesia in its
~emorial~' and ~ounter-~emorial~~, the line must be considered an allocation line: land
areas, including islands located to the north of4" 10'N latitude were henceforth consideredto
be British, and those lying to the south were Dutch. That such land tenitory and islands
generatea territorial seawhich may require delimitationis another matter.
2.53 At the time of the conclusion of the 1891 Convention and the internal Dutch
discussions during the 1920ts,the only maritime jurisdictional zone that was generated by
sovereignty over land was the territorial sea, extending to a maximum breadth of three
nautical miles measured from the baseline of the coastal State. In cases of adjacent coastal
States, and of opposite coastal States where the distance between their respective coasts was
less than six miles, a delimitation of the respective territorial seas would, in principle, be
called for. This was the case in the area east ofSebatik Island, where, as a result of the 1891
Convention, the land boundary terminated on the eastern shore of the island and thus the
question arosehow exactlythe territorial sea boundary east ofthat point should be drawn. In
addition, depending upon the course of this boundary,the delimitation with the territorial sea
of the opposite mainland (Batoe Tinagat) might have come into play since Cowie Bay is less
than six mileswide.
51
52 See,for example,IM, paras. 5.67,6.1 and 9.13.
See,for example,ICM,para. 5.10.2.54 The internal Dutch discussions, as accurately described in Malaysia's Counter-
Mernorial, focused on the various options available in these particular circumstances. One
option was to consider the 1891 Convention as also constituting offshore (Le., up to three
miles from the coast) a territorial sea boundary. The other option was to use the solution
provided undèr the applicable rule of general international law - i.e., a line drawn
perpendicular to the coast at the terminus of the land boundarys3. The internal Dutch
discussions reveal that differing views were expressed by various government officiaison the
preferred option, but the final view expressed in September 1926by the Minister of Foreign
Affairs (who has the final authority in such matters) was that the perpendicular line should
applyand that it was not opportuneto raise the matter with the British Government. And so it
was decided. The matterwas neverraised with the British bythe Dutch Government.
2.55 According to Malaysia, the discussions during 1922-1926 show "that the Dutch
colonial officers themselves did not at the time think a maritime boundary had been
established by the 1891 onv vent ion Th"at'.onclusion is correct, and is entirely consistent
with Indonesia's view that the 1891 Convention line, extending to the east of Sebatik Island,
was an allocation line and not a maritime boundary. It should be stressed here again that any
maritime boundary at the time could only have beena territorial sea boundary extending no
more that three miles from the coast. But the 1891 line east of Sebatik had a different
purpose. It represented a line separating territorial possessions, and because there were no
insular possessions lying within three miles of the coast of Sebatik, the 1891 line (of
attribution) was represented as a straight line along the 4" 10'N parallel of latitude.
Consequently,there is nothing incompatiblebetweenthe 1891Convention line and the Dutch
internal discussions as Malaysiatries in vain to imply.
2.56 It is also important to point out that the internal Dutch discussions of 1922-1926were
entirely restricted to the territorial sea boundary off Sebatik Island and did not involve the
islands of Sipadan and Ligitan. This can easily be explained by the fact that in the cases of
those two islands no territorial sea delimitation questions arose since they are located at
distancesof more than six miles fiom the nearest BNBC islands of Kapalai and Dinawan.
53 Seethemaps at MCM,pp. 76 and 77.
54 Ibid.para. 4.10.2.57 What isalso of interestisthe factthatwhen, in 1968,Malaysiagrantedan offshore oil
prospecting licenseto the Japanese Company,Teiseki, the limits of Teiseki's concessionjust
off the east coast of Sebatikfollowedthe sameperpendicularline that had been discussedby
the Dutch in the 1920s. This can be seen from examining Map 2 which appears facing
page 60of this Reply. Thereafier,as Indonesiahas explainedin its ~emorial", the southern
limits of the Teiseki concessiontrackedthe 4" 10'N lineof latitude leaving a 30"buffer zone
between those limits and the 4"IO'N line just as Indonesia had done with its own
concessions.
2.58 Finally, it should be noted that the authorities of the Netherlands East Indies have,
subsequentto the 1920'sdiscussions,on occasionstreated the 1891 Convention line as also
constituting a territorial sea delimitation. Thiscan be concluded from a map published in
1939 which shows the territorial sea off the coast of the sub-division of ~arakan~~. The
northern boundary of the territorial sea (with British North Borneo), east of Sebatik Island,
followsthe 1891Convention line. Thismap is a so-called "MiningLegislation Map"(based
on the MiningAct of the NetherlandsEast Indies),showingthe areas reserved for mining and
the concessionsgranted and appliedfor. The interesting aspect of this map is that it shows
that, notwithstanding the 1920'sinterna1discussions, the Dutch authorities during the 1930's
had already begun to respect the line in practice (i.e., for the purpose of granting oil
concessions). Indonesia will elaborate further on the significance of the treatment by both
Partiesof the 1891Conventionlineinpracticeinthe next chapter.
55
56 IM,paras.6.11-6.27.
Annex28 to this Reply. Section 5. Conclusion
2.59 It is apparent, for the reasons set out in this and the preceding Chapters (in
amplificationof those already given in ChapterV of Indonesia'sMemorial and Chapter V of
its Counter-Memorial),that:
(a) the parties' intentionthat the 10'N line extended eastwards from Sebatik is
substantiated by the Explanatory Memorandum Map, in which Great Britain
acquiesced;
(b) the 1915and 1928Agreementsdo not contradictthis conclusionas to the effect
of the 1891Convention;
(c) the intemal D,utch territorial sea discussions are irrelevant as regards
sovereigntyover Sipadanand Ligitan.
2.60 Further, as will be shown in ChapterIII s,bsequent maps (starting with the Stanford
map of 1894) specificallydelineate a line at4' 10'N, and such a line, which must have its
roots somewhere,can onlyhave been basedonthe 1891Convention.
2.61 It follows that The Netherlands' (and now Indonesia's)sovereignty over Sipadan and
Ligitan was acknowledgedby the 1891Convention,in particular its Article IV, which for the
future rendered that title unchallengeableat least by Great Britain and its successors in title.
Subsequentevents have not displacedthat treaty-basedtitle. CHAPTERIII
THE SUBSEOUENTCONDUCTOF THE PARTIES
CONFIRMINGINDONESIA'STITLE TOTHE ISLANDS
3.1
In this Chapter, Indonesia will review the various elements of the conduct of the
Parties and their colonial predecessors which confirrnsIndonesia'sinterpretationof the object
and purpose of the 1891 Convention and hence Indonesia's title to Sipadan and Ligitan
islands. Malaysia has preferred to give a very cursory treatment to these elements in its
pleadings since they fundamentally contradict Malaysia'sthesis of the case. But the evidence
adduced by Indonesia cannot be so easily dismissed. The striking aspect of this conduct is
that it reflects the mutualviews of the Parties that the 4" 10'N line established by Article IV
of the 1891 Convention extended to the east of the Island of Sebatik in conformity with the
Dutch Explanatory Memorandum Map which was prepared in connectionwith the conclusion
of the Convention.
Section1. TheVisit of the DutchNavalVessel,Lynx,to Sipadanand Ligitan in1921
3.2 Throughout the early years of the 20th century, Dutch naval vessels were active in
patrolling theareas east of Sebatik includingaround Sipadan and Ligitan. The Court will find
a list of such voyages annexed to Indonesia's Counter-Memorialas well as a report of a visit
ofthe HNLMS Koetei in September 1910to the vicinity of sipadan'.
3.3 In November and December 1921,the HNLMSLynx,a Dutch destroyer operating in
tandem with a seaplane, made severalvisits to Sipadan and Ligitan in a clear display of Dutch
sovereignty over both islands. The Lynx's mission was to patrol for pirates in territorial
waters and insular possessions that belonged to The Netherlands. Throughout this voyage,
which is discussed at paragraphs 6.3-6.5 of Indonesia'sMemorial, the Lynxcarefully avoided
venturing within the three-mile territorial sea limit of British islands,such as Si Amil,
1
ICM, Vol. 2, Annexes 32 and 33.which laynorth of the 4" 10'N line. BecauseSipadanand Ligitan both layto the south of that
line, the Lynx and the seaplane did visit them. Moreover, the activities of the Lynx were
irnmediatelyreportedto British authorities who raised no objection.
3.4 In response to this important voyage, Malaysia's Counter-Memorial does no more than
to assert, in a wholly self-servingfashion, that "as an incidentit proves nothing" and that, "the
Lynxincident certainly did notamountto a claim of sovereigntyon Pulau sipaday2.
3.5 Suchan attempt at rebuttal is hardly convincing. The detailed reportofthe Lynx'svisit
to the region prepared by its commanding officer clearly demonstrates thatthe captain of the
Lym considered both Sipadan and Ligitan to fa11under Dutch sovereignty. This was in stark
contrast to the island of Si Amil, which, because it lay north of the 4" 10'N linewas deemed
to be Britis Ihi. usefùl to recall some ofthe salient comments contained inthe commander's
report which bear this conclusion out. The report itself may be found in Annex 120 of
Indonesia's Memorial.
3.6 The report containsthe followinghighlyrelevant entries:
November 25, 1921: "HNLMS Lynx then weighed anchor at 18:OOhrs. and
(i)
steamed away. After passing the lightship the lights were doused and we set
sail for the island of Sipadan. We did not meet anyproas during the night of 25
to 26 November and arrived at Sipadan at 0600 hrs. Sipadan lies
approximately 20 miles from Si Amil. An armed sloop was sent ashore for
information, but returnedempty-handed".
"The plane was launched at 1000hrs. and took off easily. The plane flew via
(ii)
Sipadanto the 3-mile limit off SiAmil".
(iii) "On Sunday, 27 November at 1830 hrs. 1 received your encoded wireless
telegram sent on 25 November at 0940 hrs. which reads after decoding: 'With
reference to your wireless telegram, English authorities willbe warned without
delay. Keep fleetunder surveillance. As soon as they leave English territorial
waters, seize them and takethe Raja'sprau to Tarakan for investigation ofthe
incident responsible forLynx'spresence' [..]"
2
MCM,paras.4.8-4.9. (iv) 28 November 1921 :"Lynx left the roads of Tarakan to sail to Si Ami1to try to
catch Raja Panglina Djumang of Sulu outside British territorialwaters".
"The plane made another flight to Si Ami1that afiernoon, where it discovered
(v)
the pirate fleet of 40 proas under the leadership of Raja Panglina Djuwang.
The plane landed outsidethe 3-milelimit".
30 November 1921: "Weighed anchor at 2330 hrs., and steamed to Sipadan
(vi)
where no proas were seen. Sailedfiom there on 1 Decemberto the 3-mile limit
on the east side of Si Amil, where we found 40 proas fishing on the reef. It is
gradually becoming clear that they have formed a settlement on Si Amil.
Steamed away fiom Si Ami1 again in a southerly direction and sailed from
Ligitanto South Sibetik."
(vii) "We launchedthe plane on 1 Decemberat 0900 hrs., after which it made a tour
to Ligitanheading to south Sibetik [...]"
(viii) "The plane then flew on from Ahus to the east of Mandul and from there
directly to the island ofSipadan and the nearby Si Amil, where the fleet of 40
proas were still fishing. Received a wireless telegram at 1100 hrs through
Tarakan fiom the Resident of Bandjermasin as follows: 'Regardingyour signal
yesterday, if pirates outside Ourterritory and no threat to settlements expected,
no further measures fiom Lynxneeded"'.
3.7 These reports make it abundantly clear that Sipadan and Ligitan, together with their
territorial waters, were considered to be under Dutch sovereignty. Si Ami1 was not so
considered, and hence the Lynx and its seaplane were always careful not to approach closer
than three miles fiom this island. The British authorities were made aware of the Lynx's
activities and never once protested or suggested that the Lynx was operating in British
controlled areas. As such, the Lynx episode provides the clearest possible confirmation in
physical terms - Le., actual acts on the islands and within their territorial seas - that
sovereigntyover Sipadan and Ligitan vested with TheNetherlandswithout any objectionfiom
Great ri tain^.
3 Malaysia's attemptto distinguishthe Lynxvisit to the islandswith that of the U.S. Quiros, ine
1903 is totally unavailing (MCM, para. 4.9). As will be seen in Chapter VI, below, the voyage of the
Quiros to the region did not result inU.S.clairn of sovereignty over the islandstheocontrary,
U.S. vessels were expressly instructed not to make any such claims; see IM, Vol. 3, Anne107 106,
and 108. Section2. The Oil ConcessionHistory SupportsIndonesia's Title
3.8 In its previous pleadings4, Indonesia dealt fully with the fact that, in awarding oil
concessions in the area prior to the emergence of the dispute in 1969, both Indonesiaand
Malaysia studiously respected the 4" 10'N parallel as representingthe limit of their respective
jurisdictions. The Teiseki concessions (awardedby Malaysia) and the JAPEX concession
(awardedby Indonesia) havebeen plotted, inred and green respectively, on a nauticalchart of
the area which appears oppositeas Map 2.
3.9 As Indonesia showed,the Parties'mutual respect for the 1891 Convention line (each
side's concessions stop 30 seconds - approximately half a mile - short of the 4" IO'N
parallel), is highly relevant5. Suchmutual conduct bringsto mind the practice ofthe parties in
the Tunisia/Lic basawhere the existence of adefacto line separatingthe parties' respective
offshore oil concessions constituted a highly relevant circumstance inthe delimitation of their
maritime boundary6. Although this case does not involve maritime delimitation, the Court's
observation in the Tunisia/Lic aseathat, "it is evident that the Court must take into account
whatever indicia are available of the line or lines which the Parties themselves may have
considered equitable or acted upon as such" is equally apposite in the present case7. In short,
the Parties to this case respected theprecisl eineestablished by the 1891 Convention in the
granting of their offshore concessions. There is no other wayto view the Parties' adoptionof
the 4" 10'N line forthe limit of their petroleum activities than as a reflection of the 1891
Convention.
3.10 In its ~ounter-~emorial', Malaysia quotes Article 2.1 of the JAPEX concession, in
which "Contract Areas" are defined as "the continental shelves withinthe statutory mining
4 IM, paras. 6.10-6.29; ICM, paras. 7.56-7.57.
5 IM, para.6.29.
6 Continental Shelf (TunisidLibyan Arab Jamahiriya), Judgment,I.C.J. Reports 1982, p. 18 at p. 84,
paras. 117-118.
7 Ibid., p. 84, para. 118. Moreover,it is the Parties'mutualrespect for the 1891 line which distinguishes
the present case fromtheEritreaIYemencasewhereno suchmutualconduct existed.
8 MCM, para. 4.38.territoryof Indonesia[. .]" and notes that Tarakan Islandand Bunju Island are excluded fiom
the ContractArea outlinedin ExhibitA-2. However, Malaysia'sfails to acknowledgethat the
preamble of the contract provides that Permina (a State enterprise) had "an exclusive
'Authorityto Mine'for minera1oil and gas in andthroughoutthe areas describedin Exhibit A
and Bu,and that althoughTarakanand Bunju islands are excluded fiom the scope ofExhibit
A (undoubtedly for contractualreasons), numerousother islands are not. Consequently, the
contract clearly presupposed thatthe area described in Exhibit A fell within Indonesia's
sovereignty.
3.11 In any event, since the concession area did not extend so far east as to encompass
either of the islands in dispute, Malaysia's argument is irrelevant. What is important is that
the northern boundaryof the concession trackedthe 4"10'N parallel (albeit leaving a small
'bufferstrip'). Thispractice reflecteda clear understandingthat the 1891 Convention line
extended outto sea.
3.12 With regardto the Teiseki concessions, Malaysiais strikingly reticent in its Counter-
Memorial. Malaysia simply notes that the Teiseki concessions did not include either of the
islands in dispute (which is self-evident and fùlly supportive of Indonesia's case), and
concludesthatthe concessionis thus of "lirnitedinterestforthese proceedings"9.
3.13 Nothing could be further fiom the truth. The coordinatesof the Teiseki concessions
are of great interest sincethey clearly reflect an understanding onthe part of Malaysia thatthe
1891 Convention line extended offshoreeastward of Sipadanand Ligitan, and that Malaysia
respectedthis line in awarding its concessions. Malaysiahas provided no other explanation
for why its concessions so faithfully took intoaccountthe 1891 Convention line and why it
failedto objectto Indonesia'sown concessionswhichfollowedthe same line.
9
Ibid., par4.41.3.14 It is also astonishing thatMalaysiapasses over in silencethe officia1rnapproduced by
the Malaysian Ministry of Lands and Mines in 1968 depicting the limits of Malaysia's
offshore oil concessions in the relevant area and Malaysia's international boundariesI0. For
the convenience ofthe Court,this rnapis reproduced oppositeas Map 3".
3.15 With respectto the map, Indonesiawould recallthe following:
The rnap was prepared by the Ministry of Lands and Mines of the Malaysian
(i)
Government and thus represented the officia1 view of the Malaysian
Government asof 1968,oneyearbeforethe dispute betweenthe Parties arose;
(ii) The rnapcontainsno disclaimerasto boundaries;
(iii) Becausepetroleum operations arekey issues for any government, thernapmust
be viewed as reflecting the careful and considered views of the Malaysian
Government on the question of concession limits and their implication for
boundaries inthe relevant area;
(iv) The rnap clearly shows the southern limits of the 1968 Teiseki concession
extending east ofthe Island of Sebatikalong, or very closeto, the 4" 10'N line
of latitude. In fact,hese limits layalongthe 4" 10'30"N line of latitude;
The rnap also specifically depicts "international boundaries", withthe 4" 10'N
(v)
line shown as such a boundary with Indonesia extendingto a point well to the
east of Sipadanand Ligitan;
10
At para. 5.21(g) of its Counter-Memorial, Malaysia states that this rnapis discussed atpp. 88-93 of the
Malaysian Counter-Memorial. But the Court can search these pages of Malaysia's pleadingin vain for
any mention of this map. Quite simply, Malaysia has opted to ignore this key rnap which is so
1I devastatingto its case.
The Court will alsofind this rnap facing page106of Indonesia's Memorial and attachedas Annex 36 to
Indonesia's Counter-Memonal. (vi) Similarly,the map shows that to the east the Teiseki concession followed the
precise limits of the 1930 boundary agreed between Great Britain and the
United States. It is thus clear that Malaysia's intention was to grant a
concession to Teiseki up to the limits of its jurisdiction and possessions. As
noted above;this was the 4" 10'N line inthe south;
(vii) There is no other explanation forthe depiction of 4" 10'N line as Malaysia's
"international boundary" on thisofficial map other than the fact that the map
reflected Malaysia's contemporaneous viewthat the boundary line separating
each State's possessions did, as Indonesia has maintained, fa11along the
4" 10'N parallel established bythe 1891Convention;
(viii) It follows that Malaysia'sassertion that "The 1891 Boundary Convention was
wholly irrelevant, and remained so until it became the focus of the Indonesian
claim in 1969"'~is flatly contradictedbyMalaysia'sown conduct.
3.16 The practice of the Parties in awarding concessions which respected the 4" 10'N
parallel represents "subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation". This practice, Indonesiaespectfully
submits, should be taken into account by the Court as a key element inthe case in accordance
with Article31,paragraph 3 (b) ofthe 1969Vienna Convention on the Law of Treaties.
3.17 In the case concerning Kasikili/Sed Isdlan(d~otswana/~arnib wiai)'~Malaysia
cites14,the Court stressed the importance of such "subsequentpractice" with reference to the
International Law Commission's comrnentary on the relevantarticle of the draft Convention.
The Court stated:
1?
13 MCM,para.3.3.
14 Judgment, 13December 1999.
MCM, para.4.48. "The importance of such subsequent practice in the application of the treaty, as an
element of interpretation, is obvious; for it constitutes objective evidence of the
understanding of the parties as to the meaningof the treaty. Recourse to it as a means
of interpretation is well-establishedinthejurisprudence of international tribun al^"'^.
3.18 It is Indonesia's submission thatthe Parties' clear and consistent practicein awarding
oil concessions reflected a common understanding that the 1891 Convention line extended
eastwards,beyond Sipadan and Ligitan, and that consequently,in accordance with established
jurisprudence, the Court should have recourse to it as an aid inits interpretation of the
conventionI6.
Section3. Navigational Aids Erected bythe Parties on EitherSideof the
4O 10'NLine
3.19 This is another important element which Malaysia has ignored in its pleadings.
Without repeating the facts set forth in Indonesia's Memorial relatingto the navigational aids
established by the Parties on their respective sides of the 4" 10'N line", Indonesia would
recall the following.
3.20 Lying to the west of Sipadan and Ligitan are two series of partially submerged reefs
called Alert Patches and Roach Reefs. The locationof these features may be identified on
Map 2, facing page 60.
3.21 In 1994, Malaysia erected a series of navigational buoys on Roach Reefs locatedjust
to the north of the 4" 10'N line. That same year, Indonesia erected a light beacon and buoys
15
Yearbook of the InternationLaw Commission, 1966,Vol. II, p. 241, para. 15,quoted in the Judgment
inKasikili/Sedudu Island (Botswana/Namibia), ipara. 49.
16 It was oniy on 3 October 2000 that Malaysia, for the first time, protested Indonesia's concessions inthe
area. It is significant that this protest, which came more than 30 years after Indonesia first granted
concessions in the area, was oniy submitted after Indonesia had raised the concessions history in its
Memorial. Indonesia responded to this protest by letter dated 21 November 2000. A cofythis
correspondencemay be found inAnnex 23.
17 See IM, paras. 8.41-8.45.on Alert Patches which are located just to the south of the 4" 10'N line at latitude
4" 09'33" NI*.
3.22 Malaysia was fully aware of Indonesia's activitiesin this regard but raised no protest.
Indeed,an Indonesian naval-reportattached as Annex 181to Indonesia's Memorial records the
fact that three Malaysian naval vessels observedthe Indonesian authorities set up the buoys
but did nothing to interfere.
3.23 In canying out these activities, it is clear that the Parties were scrupulous in their
respect for the 4" 10'N line. Indonesia respected Malaysia'sright to erect navigational aids
north of the4" 10'N line; Malaysia didthe same with respectto Indonesia's activitiessouth of
that line.
3.24 This conduct, once again of a mutual nature, provides fùrther confirmation as to how
in practice the Parties interpreted ArticleIV of the 1891 Convention. Had the 4" 10'N
parallel not been viewed as constituting an allocation line, these incidents would have given
rise to protests. The fact that noprotests were forthcomingis eloquent testimony tothe agreed
status ofthe 4" 1O'N line as extending well to the east ofthe Island of Sebatik.
Section4. IndonesianNavalPatrols and Fishing Activities
3.25 Indonesia's understanding that the 4" 10'N parallel represented the limit to its
jurisdiction is confirmed by the activities of the Indonesian navy and of fishermen from the
Kalimantan coast duringthe period fiom Indonesia's independenceuntil 1969.
3.26 These activities were setout at paragraphs 6.6 to 6.9 of Indonesia's Memorial, and are
supportedby the affidavits attachedto the Memorialas Annexes D, F, G and H (regarding the
naval patrols) and Annexes1,J, K, L and M (regarding fishing activities).
18
For details,the Courtis referredto IM,Vol.4, Annexes179 and 181.3.27 As regards the affidavits concerning the Indonesian naval patrols, Malaysia can Say
nothing more than that such patrols were "quite an exceptional practice" and that they
"seemed une~entful"'~. As rebuttal, these comments are unsubstantiated and entirely
inadequate. The fact, uncomfortable as it is for Malaysia, remains: the Indonesian navy did
patrol the areas encompassing Sipadan and Ligitan afier independence, and the patrols'
"uneventful" nature (i.e., that they were not protested by Malaysia) merely supports
Indonesia'sentitlementto patrol inthese areas.
3.28 Malaysia'scomments regardingthe traditional practice of Indonesianfishermen to fish
around the islands of Sipadan and Ligitan, where they would take refuge should the need
arise, are similarlybrief and dismissive2'. The fact of the matter remains that fishermen fiom
the Kalimantan coast have traditionally fished on and aroundthe islands, a fact that Indonesia
has supported with affidavit evidence and which Malaysia has failed to rebut. This thus
constitutesfbrther evidencethat Indonesia considereditself aspossessing sovereignty overthe
islands consistentwith the terms ofthe 1891Convention.
Section5. TheMap Evidence SupportsIndonesia'sPosition as to Sovereignty
3.29 The Parties have presented a significant body of cartographyin these proceedings and
both have argued that the preponderance of the map evidence supports their respective
positions21.
3.30 Despite the amount of cartographicalevidenceproduced and relied upon by Malaysia,
it is curious to note the defensive shifi of position adopted in Malaysia'sCounter-Memorial
where Malaysiaattemptsto downplaythe relevanceof maps in the determinationof boundary
disputes22. Indonesia can only surmise that Malaysia realises that the maps, particularly the
relevantBritishand Malaysian cartography, support Indonesia'scase.
19 MCM,para. 4.46.
20 Ibid.
21 See, forexarnpleIM, paras6.77-6.79;ICM, para.7.93and Map Annex; MCM, paras. 5.37-5.39.
22 MCM, paras. 5.31-5.39.3.31 In this section, Indonesia will reviewthe cartographic evidence in the case which so
clearly showsthe existence of a line extending along the 4"10'N parallel east of the Island of
Sebatik, thus confirrningthat Great Britain and The Netherlands (subsequently, Malaysiaand
Indonesia) understood that the 4" 10'N line established by the 1891 Convention separated
their respective possessions off the east coast of Borneo. Moreover, the record includes an
impressive number of officia1maps - published both prior and subsequentto the emergence
of the disputein 1969 - which represent admissions againstinterest by ~ala~sia~~.
3.32 Malaysia's Counter-Memorial attemptsto distinguish two categories of cartographical
evidence: (a) maps annexed to boundary treaties or demarcation agreements; and(b) maps not
agreed by the Parties, and which do not forrn part of internationally binding instruments
relating to a bounda~-$~. Malaysia asserts that maps in the first category "are of great
importance and may be decisive", while maps in the second category "are not to be treated in
anyway as if they were documents of titleW2'.
3.33 While it is undisputed that the probative value of maps in boundary disputes varies
depending on a number of factors, Indonesia submits that the classification adopted by
Malaysia is overly simplistic and fails to take into account the fact that maps produced in
connection with the conclusion of a boundary treaty - the 1891 Dutch Explanatory
Memorandum Map being a prime example - can be "decisive". Moreover, Malaysia alsofails
to acknowledge that other maps produced by one of the Parties, or its colonial predecessor,
which show a boundary inconsistent with the positionnow espoused by that Party can also be
highly relevant.
3.34 An objective appraisal of the cartographic evidence which is relevant in the present
dispute leadsto the identification of a number of important maps which can be distinguished
as follows:
23 In Section 3C of ChapteVI1 andin the Map Annex attachedtothis Reply, Indonesia will analyse the
maps submitted by Malaysia with its Counter-Mernorial.
24 MCM, para. 5.32.
25 Ibid. maps which represent the parties' intentionswith regard to the boundary line
(i)
expressed during the course of the negotiations leading upto the conclusion of
the 1891Convention;
(ii) maps reflecting the contemporaneous viewof the parties' interpretation of the
terms ofthe Conventionand its implications;
maps which confirm the parties' interpretationof the line resulting fiom the
(iii)
Convention in theyearsfollowing itsconcl~sion~~a ;nd
(iv) maps which can be viewed as admissions against interest, i.e., which "do not
assertthe sovereigntyof the countrywhichthe Government has caused themto
be issuedM2'.
3.35 Maps falling within the first category have already been addressedby Indonesia in
Chapter 1. Indonesia has shown that a number ofsuch maps were produced and exchangedby
the signatories to the Convention. These maps show that The Netherlands and Great Britain
both intended the boundary line to extend out to sea beyond the east coast of the Island of
sebatik2'.
3.36 With respect to maps constituting the contemporaneousview of the parties as to the
object and intent of the 1891 Convention, Indonesia has shown thatthe Dutch Explanatory
Memorandum Map is particularly relevant. Suffice it to recall that the map was presented to
the Dutch Parliament in connection with The Netherlands' ratification ofthe Convention and
it was available to, and examined atthe highest levels of,the British Government. Indeed,it
was Sir Horace Rumbold who, even before instruments of ratification were exchanged,
described the map to the Foreign Office as "showing the boundary line as agreed upon under
26 SeeIM, para.6.36.
27 Island ofPalmas,2R.I.A.A.(4April1928),p. 829at p. 852.
28 Seeparas. 1.30-1.31,above;see alsoICM,paras. 5.70-5.75.the late l on vent ion" The map so described drew no protest or dissent from the British
Government .
3.37 In Indonesia's submission, the Explanatory Memorandum Map - seen also in the
context of the proposals exchanged between the parties priorto the conclusion of the 1891
Convention - must be regarded asa mutually agreeddepictionof the terms of the treaty.
3.38 As for the third category of maps, both Indonesia and Malaysia have submitted an
extensive selection of officia1 maps published after the 1891 Convention was concluded
which show the international boundary extending across Sebatik Island and then continuing
seawards along the 4" 10'N paralle130. Of particular significance is the fact that a large
number of British (particularly those prepared by Stanford for the BNBC) and Malaysian
maps depict the 4" 10'Nline in this manner. The only possible conclusion is that these maps
reflected the parties' views asto the impact ofthe 1891Convention,includingthe fact that the
boundary line did not stop at the east coast of the Island of Sebatik as Malaysia contends.
Malaysia has provided no alternative explanation for why its own maps, and those of
Stanford, repeatedly depicted the 4" 10'N line in this manner if its own interpretation of the
Convention is correct.
3.39 Maps published following the conclusion of the 1891 Convention reflecting such
officia1intent include, in the period immediatelyfollowing the signature of the Convention,
the following:
(i) Stanford'smap of Borneo dated 1894.
(ii) Stanford'smap of Borneo dated 1903.
(iii) Stanford'smap of Borneo dated 1904.
79
30 See paras. 2.30-2.31, above.
Indonesia would also draw the Court's attention to a cornmerciallyproduced Dutch map prepared in
1894. shortly after the conclusion of the91 Convention,which likewise shows the 4" 10'N
Convention line continuing eashvards from SAbcopy is at Anne27.3.40 The 1903 Stanford map was included in Lndonesia'sMemorial facing page 118. The
other two maps (as well as an 1887 Stanford's map) havebeen inserted in the following
Chapter where they are discussed in more detail. Their relevance for purposes of this case
rests on the following:
The 1887 map, which pre-dated the 1891 Convention, does not show any
boundary line extending out to sea from the Borneo mainland. This reflected
the fact that there was no agreed boundaryat that time.
Subsequent Stanford's maps issued after the Convention entered into force
consistently show the southern limit of the BNBC'sprovinces as lying along
the 4" 10'N parallel of latitudeextendingout to sea fromthe Island of Sebatik.
This line did not just appearout of nothing. The only possible explanation for
its appearance on the maps is that it reflected Stanford's understanding - and
hence the BNBC's understanding as wellsince Stanford acted as the BNBC's
officia1cartographer - of the terms and effectof the 1891Convention.
Islands lying south of the 4" 10'N line depicted on the map must have been
deemed to be Dutch. The line arose as a result of the 1891 Convention
between The Netherlands andGreat Britain. TheUnited States, as will be seen
in Chapter VI, had no interests to the south of the line. In fact, the Stanford
maps al1show the limit of U.S. possessions in the area as lying in the vicinity
of SibutuIsland whichis well to the northeast ofthe 4" 10'N line.
3.41 The same 4" 10'N line appears with regularity on Malaysia's ownmaps of the area.
While some of these maps contain a disclaimer as to the boundaries depicted, others do not.
What is significantis the repeated appearance ofthe line onthe maps. Once again,there is no
explanation for the line other than the fact that it reflected the 1891 Convention. In this
respect,the following maps meritparticular attention. (i) Pulau Sebatik,Ministry of Defence of the UnitedKingdom (for the Directorate
of National Mapping, Malaysia), 1964~'. Malaysia still has not explained why
the boundary line extends due east of the Island of Sebatik along the 4" 10'N
parallel if notbased onthe 1891Convention.
(ii) Tawau, Ministry of Defence of the United Kingdom (for the Directorate of
National Mapping, Malaysia), 1965~~. The map again clearly depicts the
4" 10'N boundaryextendingoutto sea.
(iii) Malaysia, Singapura, Brunei: Pemerentahan (Political map of Malaysia
Singapore & Brunei), Directorate of National Mapping of Malaysia, 1966~~.
The boundary, as to which there is no disclaimer, clearly follows the 4" 10'N
parallel.
(iv) Malaysia Timor Sabah, Malaysian Department of Land and Surveys, Sabah,
1964, printed by the Malaysian Directorate of National Mapping, 1966)'.
While the map contains a gap in the 4" 10'N line, it also shows that line
extending east of Sebatik. Malaysia has failed to explain why the 4" 10'N line
was extended so far out to sea ifnot in accordancewith the 1891Convention.
(v) Malaysia Timor Sabah, Malaysian Department of Land and Surveys, Sabah,
1964,printed by the Malaysian Directorate of National Mapping, 1967~~.The
same commentappliesas forthe map discussedunder (iv) above.
Oil Prospecting Licencesand Leases, Malaysian Ministry of Lands and Mines,
(vi)
196~~~.This highly relevant map shows the "international boundary" very
clearly as the 4" 10'N line extending to the east of the disputed islands. There
is no disclaimer on the map. Malaysia has not even attempted to explain why
31 IM,MapAtlas,MapNo. 11.
32 Ibid.MapNo. 13.
33 ICM,MapAnnex,MapA.1.
34 IM,MapAtlas,MapNo. 12.
35 Ibid.MapNo. 14.
36 Ibid.MapNo. 16. an officia1Ministryofthe Malaysian Government depictedthe boundary in this
fashion if not as a reflection of the 1891Convention.
(vii) Continental Shelj" Boundaries Between Indonesiaand the Republic of
Malaysia, Annexure "A1' to Agreement, ..Jabatanarah Pemetaan Negara,
Malaysia,No. 30, 1969~'.Onceagain,the 4" 10' N line appearson this map.
(viii) Malaysia Timor Sabah, Malaysian Department of Land and Surveys, Sabah,
1964,printed by the Malaysian Directorate of National Mapping,197238. This
map is similar to the maps discussed under (iv) and (v) above despite the fact
that it was printed after the 1969 negotiations between the Parties had taken
place.
(ix) Negeri Sabah, Population and HousingCensus,Map Showing Distributionof
Population, 1970, Malaysian Department of Statistics, 197439. This map
contains a disclaimer as to boundaries, but still depicts the 4" 10'N line
extendingto the east of Sipadanand Ligitan.
3.42 As noted above, it is significant that, even afterthe dispute arose in 1969, Malaysia
continued to publish maps showinga line extending seaward from the island ofSebatik along
the 4" 10'N parallel of latitude. The endorsement of this line in practice was also
corroborated by the activities of Malaysia and Indonesia in licensing petroleum activities in
the area before 1969 and in erecting navigational aids on Roach Reefs and Alert Patches in
199440.
3.43 The striking fact about this substantialbody of cartographic material is the consistent
appearance, particularly on the BNBC (Stanford) and Malaysian official maps, of a line
extending offshore from the east coast of the island of Sebatik. While Malaysia has failed to
give any reason for the line's presenceon these maps, the only possible explanation is that the
37
Ibid.Map No. 17.
38 Ibid., Map No18;MM,Map Atlas,Map No. 21.
39 IM,Map Atlas, Map No. 20.
10 IM, paras. 8.41-8.45; see also Sections2 and 3, above.4' 10'N line reflected the understanding of al1relevant parties that the 1891 Convention line
continued beyond the east coast of Sebatik. The repeated depiction of this line on official
Malaysian cartography is a clear admission against Malaysia's interest and represents
compelling evidence that Malaysia itself viewed the line of separation between it and
Indonesia as following the .4" 10'N parallel beyond Sebatik Island such that Sipadan and
Ligitan fell on the Indonesiaside ofthe line. PART2
THE ABSENCEOFANY MALAYSIAN TITLETOTHE ISLANDS
CHAPTER IV
THERE-ORIENTATION OF MALAYSIA'S POSITION
4.1 In its Memorial, Malaysia advanced a confùsed and inherently contradictory position
with respect to the chain of title by which it allegedlyacquired sovereignty over the islands of
Sipadan and Ligitan. Malaysia's principal positionwas expressed in the very first paragraph
of its submission on the question oftitlender the rubric "TheCore of Malaysia's Case". That
position was as follows:
"Those [i.e., Malaysia's] predecessors in title were, from 1878, the British North
Borneo Company (hereinafter "the Company"), which in 1889 came under the
protection of Great Britain (hereinafter "Britain") and then Britain itself, after it had
changedthe status ofNorth Borneo from a protectorateto a colony in 1946"'.
4.2 The Court will note that there was no suggestionof any Spanish or United States chain
of title in this proposition. Title was alleged to have vested in the BNBC in 1878by virtue of
the grant from the Sultan of Sulu to Messrs. Dent and Overbeck. Sincethis grant only related
to islands situated within nine miles of the north Borneo coast - and Malaysia admits that
Sipadan and Ligitan lie more than nine miles fiom the coast - Malaysia tried to buttress its
arguments by asserting that the 1903 Confirmation ofCession fiom the Sultan of Sulu to the
BNBC, which Malaysia admits was not viewed as legally valid by the British Government,
covered Sipadan and Ligitan even though that instrument did not refer to these two islands,
and the islands that were named in the Confirmation al1 lay to the north of the 4" 10'N
latitude2.
I h4M,para.2.1.
7 Indonesia demonstrated that the 1903 Confirmation,whatever its legal effect, did not relate to Sipadan
and Ligitan at paras. 4.27-4.37 of its Counter-Mernorial.4.3 Malaysia also advanced a second theory in its Memorial regarding its alleged chain of
title. Accordingto this secondtheory:
"the islands of Ligitan and Sipadan have during the last two centuries been under the
sovereignty, first, of the Sultan of Sulu, then of Spain, then of the United States, then
of Great Britain andnow of ~ala~sia"~.
4.4 Clearly, as Indonesia pointed out in its Counter-Mernorial, both of Malaysia's
arguments cannot be correct. If title to the islands is said to have vested in the BNBC after
1878, then it cannot logicallybe maintained that sovereignty restedsimultaneouslywith Spain
or, after the 1900U.S.-Spain Treaty, with the United states4. In point of fact, Indonesia has
shown in its Counter-Memorialthat both chains of title are fatally flawed. Nonetheless, the
contradiction in Malaysia's Memorial was glaring and servedto undermine the overall
credibilityof Malaysia'scase as a whole.
4.5 In Malaysia's Counter-Memorialthe position has changed. Although Malaysia does
not expressly abandon its contention that the BNBC acquired title to the disputed islands in
1878, it is clear that Malaysia appreciatesthe difficulty of its position and thus now argues
that it is the chain of title passingthrough Spain, thence to the United States, and thence to
Great Britain(subsequentlyMalaysia)upon which its caseprincipally rests.
4.6 This change of position is evidenced by the following statement which appears at
paragraph 2.2of Malaysia's Counter-Memorial:
"Malaysia'sclaim 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. Thesepossessions were transferred to the United
States by the Treaty of 7 November 1900. The United States in turn transferred them
to GreatBritain bythe Treaty of 2 January 1930"'.
3 MM, para. 4.2.
J SeeICM, paras. 2.10-2.11,3.5 and 4.1-4.3.
5 Elsewhere in its Counter-Mernorial,specificallyat p3.18and 3.29,Malaysia confirms that the key
element of its claimis the 1930lo-U.S.Conventionin which, it is alleged, the United States "ceded
to Britain" the islands ofSipadanand Ligitan.4.7 There is no room in this formulation for any CO-existingBritish claim of sovereignty
overthe islands. In 1878,the islands were saidto be Spanish. In 1900,they were saidto have
been transferred to the United States. And in 1930,they were claimed to have been cededto
Great Britain.
4.8 The only vestige of Malaysia's assertion of title passing through the BNBC is in
Chapter 3 of its ~ounter-~emorial~. There, Malaysia makes a half-hearted attempt to keep
the disavowed 1903Confirmationof Cession in play by assertingthat the Confirmation "was
consideredas covering Ligitan and sipadanW7.
4.9 As Indonesia demonstrated in its Memorial and Counter-Memorial, the 1903
Confirmation did nothing of the sort8. Malaysia accuses Indonesiaof "question begging", but
the situation is straightfonvard.
(i) It is a fact that the 1903 Confirmation was viewed as legally invalid by the
British Government.
(ii) It is a factthat the Confirmationdid not name either Sipadan or Ligitan when it
would have been perfectly possible to do so since other islands of a similar
small size were so named9.
(iii) It is a fact that al1of the islands listed in the Confirmation lay to the north of
the 4" 10'N latitude which had been agreed as separating Dutch and British
possessions in the 1891Convention.
(iv) And it is a fact that the Stanford Company, which acted as the BNBC'sofficial
cartographer, published a map just four months after the Confirmation was
issued which depicted the offshore limits of the BNBC'sterritorial possessions
6
MCM, paras. 3.15 and 3.16.
7 Ibid.para. 3.16.
8 IM, paras. 7.15-7.16; ICM, paras. 4.27-4.33.
9 Malaysia asserts that the reason why Sipadan and Ligitan were not listed in the 1903 Confimation was
because the Confirmation only named inhabited islands (MCM, para. 3.16). Suffice it to note that
Malaysiahas failed to introduce any evidenceto supportthis assertion. as including al1 of the islands named in the 1903 Confirmation, but which
expressly adopted the 4" 10'N lineof latitude as the southern limit of those
possessions thus excluding Sipadan and Ligitan, both of which lie to thesouth
of this line.
4.10 Stanford's maps of British North Borneo during the relevant period areof considerable
interest. While reference hasbeen made to the rnapprepared by Stanford in August 1903 - a
reproduction of which may be found opposite page 54 of Indonesia's Counter-Memorialand
as Map No. 9 in Indonesia's Map Atlas - there are a number of additional maps which show
with great clarity that the BNBC recognisedthe 1891 Convention boundary as extending out
to sea along the 4" 10'N parallel of latitude. These maps have been taken fiom successive
editions of Stanford's London Atlas of Universal Geography.
4.11 Map 4, facing this page, is a reproductionof a rnap taken fiom Stanford'sLondon
Atlas of Universal Geography published in 1887 - in other words, four years before the 1891
Convention was con~luded'~. On this map, the southern limits of British North Borneo are
shown as extending roughly along the Sibuku River south of the Island of Sebatik. This was
in conformity with the BNBC's views at the time of the limits of its possessions.
Significantly,the southern boundary is not extended out to sea, although there is acurved red
line in the Sulu Sea which ostensibly depicts the limitsof what were thought to be Spanish
possessions in the area. Contrary to Malaysia'scurrent assertions, the rnap shows that Spain
was not viewed as having any territorial pretensions lyingsouth or west of Sibutu Island and
its irnrnediatedependencies.
4.12 In the 1894edition of the atlas, Stanfordpublished anotherrnap of the same region. It
has been reproduced following Map 4 as Map 5". Since this rnap post-dated the 1891
Convention, it depicted the boundary between Dutch and British possessions agreedin that
Convention. What is significantis that the southern limits of British North Borneo can now
be seen to extend out to sea fiom the Island of Sebatik along the 4" 10'N line of latitude to a
IO
II The fullrnapand atlasfront-sheetareatAnnex24.
The fullrnapand atlasfront-sheet areatAnnex25.point well to the east of Sipadan and Ligitan. There can be no other explanation for this
southern limit than the fact that it reflected the territorial boundary between British North
Borneo and Dutch possessions agreed upon in the 1891Convention. Britishpossessions were
clearly seento be limitedto areas lyingto the north of 4" 10'N latitude.
4.13 The next map, displayedoverleaf as Map 6, is a similar Stanford rnap published in the
1904 edition - Le., one year after the 1903 Stanford rnap which Indonesia produced in its
earlier pleadings'2. For al1intents and purposes, it is thesame as the 1903map. The southern
limits of British North Borneo still track the 4" 10'N line of latitude. Indeed, on the 1903
Stanfordmap,the red lines extendingout to sea are specificallyidentified as the boundaries of
the BNBC provinces.
4.14 In its Counter-Memorial, Malaysiaconcedesthat Sipadan is outside of the boundary of
British North Borneo as shown on the 1903 Stanfordmap. Paradoxically,however, Malaysia
claims that "the rnap shows Ligitan as within the administrative boundary of Elphinstone
~rovince"'~. This is simply not true. Both the 1903 and the 1904 Stanford maps label
"LigitanReef' in such a way as to straddlethe 4" 10'N line. But Ligitan Island is too smallto
appear independently on the map. Nonetheless, it must be recalled that Malaysia itself has
identifiedLigitanas lying onthe 4" 09'48"N parallel of latitude - in other words, south of the
4" 10'N lineI4. Sincethe dashed red line appearingonthe rnapas the southern limit of British
North Borneo extends eastwards from Sebatik along what can only be the 4" 10'N parallel,
Ligitan must lieto the south ofthat line.
4.15 With respect to Sipadan,Malaysia argues that itis not shown as Dutch. But what else
could it be? Sipadanwas not deemedto be part ofBritish North Borneo because it lay outside
the red line boundary which, as on the mainland, constitutedthe boundary between Dutch and
British possessions. Nor was it deemed to form part of Spanish or, subsequently, U.S.
possessions in the region. The 1887, 1894, 1903 and 1904 Stanford maps al1label Sibutu
Island and its irnrnediate dependencies as belonging either to Spain or, post-1900, to the
1:! The full 1904rnap and atlas front-sheetare at An26.
13 MCM, para. 3.15.
14 Ibid.para.1.4.These sameCO-ordinatesfor Ligitanare recorded at para. 3.9 of Malaysia'sMernorial.United States. But Sipadanand Ligitan are notsimilarlylabelled. Since they layto the south
of the line agreed in the 1891 Convention depicted on the map, the only conclusion is that
they were deemedto be Dutch just as mainlandterritories south ofthe line were also Dutch.
4.16 Given the re-orientationof Malaysia's caseaway from a chain of title passing fiom the
BNBC,to Britain and thence to Malaysia,it is unnecessaryat this stageto comment further on
Malaysia's assertionsin this respect. Malaysia'sprincipal claimnow appears to centre on the
allegationthat Spain originallypossessed title to the islandsin question and that this title was
inherited bythe United States in 1900and then cededto GreatBritain in 1930. Indonesiawill
exposethe fallacies in this line of argument in ChapterVI.
4.17 Malaysia also continues to assert that it administered both Sipadan and Ligitan
notwithstanding the existence of a so-called Spanish or U.S. title over them. These
contentions which, if anything,are given greaterprominence in Malaysia's Counter-Memorial
due to the weakness of Malaysia's arguments based on a treaty title, are dealt with in
Chapter VII. Suffice it to note here that any such administration - and there was none on
Sipadan and Ligitan at least prior to the 1917 Turtle Ordinance - could not displace a legal
title lyingelsewhere. CHAPTER V
NON-EXISTENCEOR UNCERTAINTYOF PRE-COLONIAL TITLES
5.1 In its Counter-Memorial, Malaysia revisits the pre-1891 situation at length, especially
when it claims to describe the "Background to the Boundary Convention of 20 June 1891 "'
and when it describes "Theextent of the Sultanateof Sulu before 1~78"~.The purpose of this
chapter is to show that the extent of the possessions of the Sultanate of Sulu south of the
4" 10'N parallel was, to Say the least, uncertain and that, in any case, Malaysia has not
provided the slightest evidence of any presence of Sulu on the disputed islands, and that this
excludes the existence of any pre-colonial title and, at the same time, the existence of the
"chainof title" alleged by Malaysia.
5.2 In any event, as Indonesiahas show above3,the pre-1891 situation is not decisive in
the present case: whateverthe territorial situation might have been at the time, it was clarified
and set up on a new basis by the 1891 Convention which put "an end to al1difficulties in the
futureM4.Therefore, it is onlyto add surplus legal arguments and to avoid leaving any aspect
of this case, however artificial, in any uncertainty that Indonesia will respond briefly to
Malaysia'sarguments.
5.3 Lnfact, it follows fiom Malaysia'sown description of the territorial situation in this
region that it was characterisedby numerousuncertainties. In particular:
uncertainties concerning the extension to the south of the Sultan of Sulu's
possessions, in respect of which Malaysia gives a very misleading description
(Section 1);
uncertainties, acknowledged by Indonesia, concerning the exact extension to
the north of the Sultan of Boeloengan'spossessions, even though there is no
1
2 MCM, paras. 2.4-2.20.
3 Ibid.paras.3.7-3.14.
4 See paras. 1.23, 1.29(a) and 2.8-2.11.
See the Dutch Explanatory Memorandum,IM, Vo1.3,Annex77, p.6. doubt that, at the relevant time (1891), the possessions of the Sultan extended
at least to Batoe Tinagatand the River Tawau (Section 2);
uncertainties concerning the nature of the relations which may have existed
betweenthe local rulers and the inhabited islandsin the region, which Malaysia
fails to mention, and, afortiori, the legal status of the disputed islands at that
time, which hasbeen entirely fabricatedby Malaysia (Section 3).
Al1these uncertainties only goto confirrn Indonesia'ssubmission that to attempt to draw any
consequences of a legal nature fiom the pre-1891situation is useless forthe seulement of this
dispute (Section4).
Section 1. The Malaysian Errors and Approximations Concerning the Southern
Extension of the Sultan of Sulu's Possessions
5.4 Malaysia asserts correctly that "[tlhe authority of the Sultan of Sulu on the coastal
territory of northeast Borneo in the middle of the 19th century isnot in dispute between the
Parties to the present proceedings"5. However, this begs the question: it is not a matter of
knowing whether the Sultan of Sulu exercised rights over possessionson the north-east coast
of Borneo, which is certain, but rather of knowing-the-locationof the southern boundary of
these possessions and how the question was in fact resolved in regions where uncertainties
existed.
5.5 Malaysia does not respond to this question clearly. It simply assertsthat "the Sultan
[of Sulu] claimed allegiance overa significant portion of the north and east coasts of Borneo,
at least down to the Sibuko lXiverV6t,hat the northern boundaries of the Sultanate of
Boeloengan were uncertain (which is probably true, but does not entai1the consequences
drawn by Malaysia - as to which, see Section 2, below), and that "[tlhe cape of Batu Tinagat
[...] was the extreme eastern claim of The Netherlandson the east coast of ~orneo"~. Al1this
5 MCM,para. 2.4.
6 Ibid.,para.3.2.
7 Ibid.,para.2.13.is repeated a number of times8 and Malaysia draws the followingconsequences from these
assertions:
(i) "Al1the territory eastof that point was considered British or Spanish territory
by the.Dutch authoritiesthem~elves"~;and
the islands "were incontrovertibly partof the social and administrative system
(ii)
of Darvel Bay and surrounding i~lands"'~,which fell under the authorityof the
Sultan of Sulu,to whom, it allegedly follows, Ligitan andSipadanbelonged.
5.6 The only argument put fonvard by Malaysia tojustify its assertion that the sovereignty
(or suzerainty) of the Sultan of Sulu extended "at least down tothe Sibuko river" seems to be
based on the grant by the Sultan of Sulu to Messrs. Dent andOverbeck of 22January 1878to
whom he granted al1his rights to and powers over the tributary tenitories and lands "to the
southwardthereof, bordering on Darvel Bay, as far as theSibuco River [...]"".
5.7 As interpreted by ~ala~sial*, the grant is based upon an erroneous understanding of
the local geography:the Sibuko (or Sibuco) River does not flow into Darvel Bay but south of
Nanoekhan into Sibuko Bay, and it is probable that in reality the 1878grant was intended to
refer to not "Sibuco River" but "Subakun River", which-actually.flows into Darvel Bay, as
Count de Bylandt noted in hisletter to Earl Granvilleof 1December 1882:
"La notice que j'ai l'honneur de remettre ci-près à votre Excellence contient un
ensemble de faits qui permettent de considérercomme fort probable que la rivière
désignée dansles Concessions sous le nom de 'Siboehoe' estsituée à l'est de Batoe
Tinagat et par conséquenten dehors du territoirenéerlandais"13.
8
9 See, forexample, ibid, paras. 2.18,2.20(b), 3.l(a), 3.8 and 3.9.
1O Ibid., para. 2.20(b).
II Ibid., para. 3.3; see also, para. 3.5.
12 See IM, Vol. 2, Annex 17.
As, it must be said, Great Britain had earlier: see the Proceedings of the Joint Commission, First
Meeting, 16 July 1889(IM, Vol. 3, Annex 57,p. 4), in which the British Govemment maintained that
"the Sibuco River mentioned in the Dent and Overbeck Grants was that situated in abou4"4'north
latitude, and was not the 'Sibuco'incorrectly marked on theAdmiralty Chart about that date as being
near Tawao Riverbefore any surveyhadbeen made".
13 IM, Vol. 2, Annex 31,p.12, quotedin MCM, para.2.14.5.8 Moreover, the British Governmentitself seemed at this time to harbour certain doubts
asto the exact location of this river, whichallowed Count de Bylandt to conclude in this letter
that this uncertainty:
"[...] est trop grande pour que le fait qu'elle est mentionnée comme limite des
Concessions, puisse infirmer les données positives à l'égard de la frontière
Néerlandaise telle qu'enpremier lieu le contrat avec Boelonganla définit"I4.
5.9 Furthermore, as said above, The Netherlands immediately protested this claim.
Hence, in his letter to Earl Granville, Count de Bylandt, while maintaining very strongly the
Dutch view that the border was fixed, and should remain to be fixed, at Batoe Tinagat,
indicated in diplomatic but firm terms that the river "Siboehoe" was located east of Batoe
Tinagat, and consequently outside Dutch territoryI5. In a despatch to Count de Bylandt dated
22December 1888which wascommunicatedto Lord Salisburyon 3 January of that year, Mr.
Hartsen, the Dutch Minister of Foreign Affairs, reiterated that "les droits de souveraineté des
Pays-Bas [sur Batoe Tinagat ..] ne sauraientêtre contesté^ "'^,in a further despatch dated
19 March 1889 (communicated to Lord Salisbury on 27 March) he insisted that "il est
constaté quela Rivière Siboekoe sejette dansla mer prèsde l'île de Nanokong" and that the
Netherlands Governrnent"n'apas eu lamoindre incertitude sur la situation de cette rivièreM1'.
5.10 It is in this context that Great Britain was notified of-the Contract renewed in 1878
between The Netherlands and the Sultan of Boeloengan, to which Malaysia refers in
paragraph 2.9 of its Counter-Memorial. Inthis respect,two points should be noted:
Firstly, even if the 1850 contract was not notified to Great Britain, the same
cannot be said of the 1878 contract, which was notified to Great Britain on
17January 1880~~. Thus, as frorn that date the British Government was
informed of the Dutch claims, and could not claim that there had been a breach
ofthe 1824 Treaty;
14
Ibid.
15 Ibid.
16 IM,Vol. 2, Annex 37.
17 Ibid A.,nex 47,p. 1; see also IM, Vol. 3, Annp.3.8,
18 Inthis respect, IM, paras. 3.22 and 4.63 andE.Hertslet'sFurther Memorandumonthe Disputed
Boundary dated9January 1889 aIM, Vol. 2, Annex 38. Second, Great Britain did not protest this notification, which must be
interpreted as an acquiescence, a fortiori since on several occasions the
Netherlands Government re-stated this to the British Government, which did
not respond for several years - see, for example, Mr. Hartsen's despatch to
Count de Bylandt of 22 December 1888: "le Gouvernement de Sa Majesté
britannique n'ajamais fait le moindre obstacle ni la moindre observation quant
au contenu du Contrat Politique du 2 juin, 1878, avec le Sultan de
~oeloen~an"'~.
5.11 Moreover, whilst Malaysia in its ~emorial~' revisits at length the alleged acts of
administration of Sulu over Semporna and the Bajau population of Dinawan (which are
scarcely more than sporadic demonstrationsof allegiancefor pure expediency, which as such
cannot "prevail against a legal titleW2')i,t has not, either in its Memorial or in its Counter-
Memorial, provided the slightest prima facie evidence of any Sulu presence south or west of
Batoe Tinagat, and has not even gone so far as to allege any such presence22. To the contrary,
in its Memorial Malaysia reinforcesIndonesia'sthesis, as it appears in Annex 88 to Malaysia's
Memorial (the British NorthBorneoHerald article dated 2 February 1903), that Dinawan is
the southernmost island of the "Bajau country"; this phrase designating, according to
Malaysia, not the area where the Bajau Laut were present, but the area in which Malaysia
attributes influence to the Sultan of Sulu over these populations and not ~overeignt~~~.The
article states in relevant part that: "The [Sulu] Bajau country may be said to lie within a
square formed by Latitude 4" and 5" N and Longitudes 118" and 119" E [..]. The most
easterly and southerly boundary of the Bajau country is the island of Danawan". This island
is north of Batoe Tinagat and north of Ligitan and Sipadan. Indonesia has previously shown
that the presence of those Bajau Laut was not limitedto this area24.Ttwould thus follow from
Malaysia's own reasoning that the influence of the Sultan of Sulu was limited to the Bajau
19 IM, Vol. 2, Annex37.
?O SeeMM,paras.3.7, 5.7 etseq. and6.5 etseq.
21 See Dubai/Sharjah Border, Award, 19 October 1981, ILR 91, p. 543 at p. 650, para 210; ICM,
paras.3.41etseq.
-- See also Section3, below.
23 See ICM,para.3.57.
24 Ibid.,paras.3.26 etseq.Laut who were living inthis more northern area, which amountsto an acknowledgement that
the Sultanof Sulu had no influenceoutsidethat area.
5.12 A preliminary conclusioncan thus be drawn: the presence of Sulu, however virtualor
theoretical it may have been in the Sempoma peninsula, in Dinawan or in Si Amil, never
extended south of that area. Malaysia acknowledgesthis implicitly in stating,"[tlhe east coast
settlements of the BNBC [whichit describes as being the successor to the Sultan of Sulu] -
including Sandakan, LahadDatu, Semporna and after 1892, Tawao - became the new focus
of the trade and administration of the local~ajaus"~~. It is only after the 1891 Convention
was concluded that the BNBC was able tomove into the southem areas and establish a long-
term presence at Tawau, at themouth of the river of that name. Prior to that date neitherthe
BNBC nor Sulu hadbeen established there.
5.13 Had the situation been different and the Sultanate of Sulu actually been established
south of Batoe Tinagat, or, simply stated, hadthe Sultanate of Sulu had any claims over that
area, no consequences could be drawn fiom this fiom a legal point of view: the only
consequence would have been that the claims of Sulu (and Great Britain) on the one hand,
and of Boeloengan (andTheNetherlands) on the other, wouldhave overlapped, and Indonesia
has shown in its ~emorial~~that such a phenomenon fiequently occurred in that part of the
world at that time. Moreover, Malaysiaacknowledges~thiselsewhere in its pleadings: "[Tlhe
overlapping claims in the south were bound to create ~onflict"~'. Furthermore, afier having
referred to Milner's book,Kerajaan(1982 - no page indicated) in which it is explained that
"[tlerritorial borders [of Malay States] were ofien unknown [. ..]. The actual location of the
Malay state, in fact, appearsto have been of little importancen2*,Professor V.J.H. Houben, in
his short study attached to Malaysia's Counter-Memorial as Appendix 1, explained that
"Dutch and British claims, based on their contracts with respectively, Boeloengan and Sulu,
o~erla~~ed"~~.Overlaps certainly do not create good legal title - but they do give rise to
uncertainties, which needto be resolved if conflict isto be avoided.
25 MCM, para. 3.2, p.53. Emphasis added.
26 IM, paras. 4.20-4.45.
27 SeeMCM,para. 2.12; see also para. 2.4.
28 Ibid A.,pendix 1para. 4.4.
29 Ibid .ara. 5.2. Section2. TheErroneous Consequences Drawn by Malaysia on the Probable
NorthernBoundaryof the Sultanateof Boeloengan
5.14 Indonesia does not dispute the fact that as from 1850 The Netherlands admitted that
the territory of Boeloengan did not extend beyond the cape of Batoe ~ina~at~',and Count de
Bylandt confirmed this position in his letters of 1882 and 1888, referred to above, although
the Sultan of Boeloengan had in certain circumstances affirmed that his influence extended
further to the north3'. However, Malaysia presents the consequences of this admission in a
very deceptive way: on the one hand, it devotes itself to attempting to cast doubts on the
reality of this extension; on the other, it draws erroneousconclusions fromthis situation.
5.15 Despite the doubts stated by ~ala~sia~~,it is indisputable that, while the 1891
Convention was being negotiated, The Netherlands were actually established in Batoe
Tinagat. This follows fromthe chronologypresented in the Malaysian Counter-Memorial:
at the outset, The Netherlands had provisionally set at 3' 20' N the outer
boundary ofthe parts of Borneo over which it exercised influence3';
in 1849,TheNetherlands madeno reference to a northern b~undar~~~;
in 1850,The Netherlands concluded a contract with the Sultan of Boeloengan,
recognising that the boundaries of theSultanateextended "at seauup to a "cape
narnedBatoe Tinagat,as well asthe Tawau ~iver"~~;
30
See the Contract between the Governmentof the Netherlands EastIndies and the Sultan of Boeloengan
of 12November 1850,IM, Vol. 2, Annex 13.
31 See the "Notesconceming the North-East Coast of Borneo" by H. von Dewall published in Tijdschrift
voor Indische Taal-, Land- en Volkenkunde,Deel IV, Niewe Serie, Deel 1, 1855, which state at p. 423
(in translation): "There was a sentiment in 1849 tofix this point [the most northern point of the
boundary of the Dutch possessions on the easternCoastof Borneo] at 5" 40'(the bay of Sandakan),or
indeedat 6" 25'(bay of Paitan or the river Soegoet)",atAnnex 1of this Reply.
32
33 See, for example,MCM,paras. 2.4and 2.12.
Resolution of the Governor-General of The Netherlands EastIndies of 28 February 1846, IM, Vol. 2,
Annex 10,quoted atMCM, para. 2.6.
34 SeeIM, Vol. 2, Annex 12.
35 Ibid., Annex 13,quotedat MCM,para. 2.8. throughout the negotiations leading up to the 1891 Convention, The
Netherlands stuckto this b~undar~~~.
5.16 This development must be considered in its context. In this region, the middle of the
19th century was a period of steady and intensive European expansion. Consequently,it is
not surprising that the Dutch promptly modified their territorial claimsin order to thwart those
of the Spanish and British who were becominga threat, and at the same time to clari@their
relations with the Sultan of Boeloengan. Furthermore, there is nothing surprising about the
fact that the Dutch Government admitted before Parliament thattheir claims were "not in
reality indi~~utable"~~(which does not mean that they were unsustainable). It was
undoubtedly the case that the respective claims of al1the local rulers were "not in reality
indi~~utable"~~a,nd once again, these Dutch admissions must be considered in their proper
context: the Dutch Government was trying tojustiQ to Parliament their withdrawalfiom their
northerly positions to the 4" 10'N parallel. A perfectly understandable and politically natural
way of doing so was to explain that those northerly claims were, in any event, rather weak or
"imaginary" and that theyhad not really givenup anything of substance.
5.17 In any event, and despite this political prudence, atthe time the British-Dutch rivalry
intensified in the area the Dutch were actually present in Batoe Tinagat and Tawau. This
appears very clearly in a document which Malaysia would have difficulty contesting,since it
is the report drafted by Professor V. J. H. Houben upon Malaysia's request, entitled"The
Regional History of Northeast Borneo in the Nineteenth Century(with special reference to
Bulungan)", reproduced as an appendix to the Malaysian Counter-Mernorial. Theauthor,
who insists that "abstention", was "a leading principle of Dutch policy in the region"39,
strongly qualifies what he says:"Inthis respect it is very importantto note that there weretwo
clearly marked periods of Dutch activity on Borneo, one inthe mid-1840s and another from
1877onwards. Both episodesof Dutch action, whichwere in clear deviationfromthe official
policy of abstention concerning theOuter Islands, were essentially reactions against what was
perceived as an acute English threatW4OM . oreover, Professor Houben acknowledges that a
36 See IM, paras. 5.1-5.23, andIM,Vol. 2, Annexes 27, 29 and 40.
37 Ibid.Vol. 3, Annex 84; see MCM, para. 2.16.
38 SeeIM,paras. 4.20 et seqand ICM,paras. 3.81-3.83.
39 MCM, Appendix 1,para. 2.2; see also para. 3.2.
JO Ibid., para. 3.2; see also paras. 3.3-3.5.Dutch controller was stationed atMuara Tawau from 1882 to 188g4'. However, he fails to
mention other significant facts such as:
the Dutch naval patrols in thearea42;
in particular, the voyage of HNLMSAdmiraal van Kinsbergen, the log book of
which refersto cruising around Sipadanand landing armed sloops onthe island
of Mabul (which liesfurtherto the north)";
a letter from Sir Rutherford Alcockto Sir Julian Paunceforte dated 11January
1884 referring to Dutch men-of-war cruising "north of the boundary they
themselves claim, viz., Batu ~ina~at"~~.As a glance at a map of the area
shows, this must be a reference to the waters off the south coast of the
Semporna peninsula, well to the north of Sipadan and Ligitan, and the same
area as that in whichthe Admiraal van Kinsbergen was cruising; and
the fact that the British Admiralty pilots state that, in 1890, the only
information the British Admiralty had on Sebatik Island "is from the Dutch
~hart"~~w , hich shows, at least, thatthe Dutch were active inthe region, whilst
the British had to rely on Dutch information (seealso the advertisement to the
1902 edition of that same document: "many scientific expeditions havebeen
sent bythe Dutch ~overnment"~~).
5.18 Moreover, it is interesting to note that ProfessorHouben shows that contemporaneous
with the renewed activityof the Dutch, the Sultan of Sulu's influence inthe region weakened
(which had been exercised over "Bulungan's trade", not over Boeloegan's territory)" and the
4I
42 Ibid .ara. 5.2; seealso IM, paras. 4.64and 5.4 and MCM, para. 2.12.
13 See,for example,ICM, paras. 3.67-3.68.
44 Seeibid V.,l. 2,Annex 12.
45 Annex 2 tothis Reply.
MCM,Vol. 2, Annex 1,p. 190.
16 Annex4 to this Reply. Emphasisadded.
47 SeeMCM, Appendix1,para. 6.3, see alsopara. 7.iii."Sulu's hegemony de~lined"~~. He also shows that during that period, "Bulungan itself
startedto play a central role inthe slavetrade ofthe region"49like the Sempoma Bajau ~aut~',
which showsthat there were at leastrelations betweenthem.
5.19 Malaysia gives few concrete and precise arguments to illustrate its assertions
accordingto which Boeloengan did not controlthe northern area claimed by The Netherlands.
The few details it gives in this respect are nothing but misleading approximations. Namely:
The administrators of the BNBC did not venture so far south until 1891,
whereas the Dutch were already present in Tawau during the years preceding
the signature of the 1891 Convention, and, as admitted by Malaysia, it was
only after 1892that the BNBC establisheda settlement in ~awau";
In no way can The Netherlands be said to have accepted in 1891 "the effect of
the 1878 grant in relation to the northern half of Sebatik itself and areas
ir~land"~~.They did - which is completely different - accept a compromise
which in no way implied any "acceptance" of the interpretation of the 1878
grant then given by Great Britain and fully incompatible with the wording
usedS3;
it is difficultto seehow the Dutch map of 1913,to which Malaysia refers at the
end of paragraph 3.9 of its Counter-Memorial,could in any way be interpreted
to showthe situationexistingprior to 189 1(or even 1878)that it is supposedto
illustrate.
5.20 Moreover, Malaysia ignores a number of important elements. Some have been
explained in the Indonesian ~emorial'~ and ~ounter-~emorial'~. Others deserve to be
mentionedhere. For example:
Ibidp .ara.6.3.
Ibidp .ara.6.4.
Ibidp .,ras.6.3 and7.iii.
Ibidp .,ra.3.2.
Ibidp .ara.3.9.
Seepara.5.9,above.
IM,paras.4.47-4.71.
ICM, paras.3.66-3.73and5.42. as early as 1850 the Dutch Minister of Finance announced before the Second
Chamber of the Dutch Parliament that: "les demières enquêtesont appris que
des Chefs Boelongans sont établis sur les territoires riverains de quelques
petites rivièresjusqu'au4" 20'de latitudenord"56;
again, in 1879, the Dutch Minister of the Colonies in a parliamentary reply
concemingthe 1878 grant, indicated:
"As far as the Sulu concession is concerned it is not quite certain whether the
contracting parties were well acquainted with the precise Fontier-line of the
Netherlands territory on the east Coastof Borneo. With a view to preventing
possible misapprehensions,ordershave been issued for the Netherlands flag to
be hoisted on the border (at the Batoo Tinagat Rock, situated at the mouth of
the Tinagat River in 4" 19" north latitude and 117" 51" east longitude,
accordingto the last survey)to be placed for the present under the protection of
a cruizer, whilst the Sultan of Boloengau has been requested to maintain a
Representative atthis point on his side of the frontier-line in question"57.
similarly, during the Anglo-Dutch negotiations in July 1889, Count de Bylandt
remarked that :
"a distinct proof of the fact that Tidoeng.did not belong to Sulu was the fact
that the population paid taxes to the Sultan of Boelongan; that they had often
claimed protection from the Netherland authorities; and had themselves denied
that they had any relations with ~ulu"~~.
furthermore, it is most interesting to note that, in 1895, four years after the
Dutch-British Convention establishing a new boundary, it was reported in the
BritishNorthBorneo Heraldthat:
"The British North Borneo Government drew the attention of the Governor-
General to the fact that the authoritiesof Bulongan, a Netherlands India vassal
State, had been levying taxes on territory in the neighbourhood, which had
56 Quoted in Memorandum on the Dutch Frontier on the North-east Coast of Bomeo by Sir E.Hertslet,
20 June 1882, IM,Vol. 2, Annex 28, p. 4.
57 MM, Vol.3, Annex 40,quoted atMM, para.7.6.
58 IM, Vol. 3, Annex57,p. 7. been ceded by the Dutch Govemment to the British North Borneo Company in
1892. The Netherlands India Government warned the Sultan of Bulongan
against doing anything of the kind in future, upon which the Sultan apologised
to the authoritiesat Sandakanfor his officials'tran~~ression"~~.
5.21 This last incident is extremelyrevealing. It showsthat:
the British North Borneo press clearly considered that the territory north of the
4"10'N parallel had been cededby the Dutch to the British;
the Sultan of Boeloengan wasstill active in this region long after the cession -
which would also indicatethat his officialshad been present there before; and
• Boeloengan was not as deprived of governrnental structures as Professor
Houben tends to show in his note6'.
5.22 Severalthings can be learned fiom the situation existing prior to the conclusion of the
1891Convention,namely:
•
the Sultan of Sulu had never exerted any physical presence south of Darvel
Bay; any presence that he had was only manifested as a form of commercial
influence,which in any eventwas receding;
• despite its so-called policy of abstention, The Netherlands had strengthened
their presence inthe region;
whateverthe real orsupposedborders of the Sultanateof Boeloengan were (the
territorialborders of the Malay and Borneo States were unclear, as Professor
Houben insists in his report), the Dutch were nonetheless established at Batoe
Tinagat and Tawau.
59 ICM, Vol. 2, Annex 13.
60 MCM,Appendix1,paras.4.1-4.9.5.23 The conclusion Malaysia draws fromthis situation (Le.,that which is described in the
Malaysian Counter-Memorialand in its Appendix, whichforms almost the only source for the
above description) is very questionable: namely that it follows that al1territory located "east
of Batu Tinagat" belongs to Malaysia. To draw such a conclusion would be reckless. It is
true that this expression has been used once (in French: "à l'est deBatoe Tinagat") by Count
de Bylandt in 1~82~',and possibly twice ifthe reference by the Dutch delegation to the Joint
Commission of 19 July 1889 is also ~ounted~~b ,ut it certainly does not justi6 the leitmotiv
which it is accorded in the Malaysian ~ounter-~ernorial~~,the only purpose of which appears
to be to give the impressionthat TheNetherlands had givenup al1claims and al1presence east
ofthat point.
5.24 Of course, it is nothingof the sort. The use ofthe expression "à l'est de BatoeTinagat"
must be interpreted in the light of its context, i.e., of a discussion relating entirely to the
"north-south": the aim for Count de Bylandt had been to clarifj the southern limit of the
concession granted bythe Sultan of Sulu, and at the sametime the northern limit ofthe Dutch
expansion. This is confirmed by the statement of Count de Bylandt cited by Malaysia at
paragraph 2.14 of its Counter-Memorial:
"Le Gouvernement du Roi a cru devoir prendre comme limites extrêmes à l'ouest:
Tandjong Datoe, et à l'est:Batoe Tinagat, étant donnéque les droits de souveraineté
des Pays-Bas sur ces deux points extrêmes de 1'Ilede Bornéo ne sauraient être
contesté^^^^‘'.
If the Sultan and The Netherlands had wanted to draw a line from east to west, the purpose
would have been to establish clearly the limit between the territories located to the north and
south of this line. And it is clear that the area locatednorth of this line was that which The
Netherlands considered to fa11beyond Dutchterritory.
6 1 See paras. 5and 5.9, above.
62 MCM, para. 2.15.
63 See paras. 5.5 et seq. above.
64 IM, Vol. 2Annex 37. Section 3. TheMalaysian Errors and Extrapolations Concerning the Ownershio pf
theDisputed Islands before 1891
5.25 The islands of Ligitan and Sipadancertainly lie "tothe east" of Batoe Tinagat; but they
are also - and particularly for the purposes of the present case- to the south of the northern
limit of the territory claimed by The Netherlands in the name of the Sultan of Boeloengan.
This territory was effectively occupied by them just as the Anglo-Dutch rivalry which
preceded the conclusion of the 1891Convention was at its height. They also lie to the south
of the boundary formed by the parallel4" 10'N, as fixed by the 1891Convention. Moreover,
at that time the Dutch clearly considered that Mabul Island, which is to the north of the two
disputed islands and to the east ofBatoe Tinagat,belongedto the Sultan of Boeloengan, from
whom they had obtainedtheir title6'.
5.26 Malaysia, which appears to attach importance only to the "east-west" dimension,
despite the fact that the territorial dispute between Great Britain and The Netherlands over
Bomeo was clearly "north-south"based, goes to great lengths to try to substantiate the theory
that the disputed islands belongedto the Sultanateof Sulu.These arguments are as follows:
(a) there was no indication "that islands so far at sea asipadan and Ligitan were
concemed by that boundary delimitati~n"~~t;he only relevant islands "werethe
islands of Tarakan, Nunukan and Sebatik and the 'small islands belonging
thereto' or'adjacent'to those i~lands"~';
the Sultan of Boeloengan, who was concerned to preserve the rights of his
(b)
subjects to collect forest products between Broershoek and Batoe Tinagat, "at
no time asked for the right to collectproducts of the sea on islands east of Batu
~ina~at"~';
65 ICM, para. 3.67.
66 MCM, para. 2.10; see alsopara.3.9.
67 Ibid para. 2.20(c).
68 Ibid para.2.18. the Bajau Laut "principally based on Danawan,the headmen of which had the
(c)
right (confirmed by the Sultan of Sulu) to collect turtle eggs on Sipadan",
"were considered as a Sulu population" and were not "under the authority of
Bulungan and The~etherlands"~~;
(d) in fact, islandssuch as Sipadan and Ligitan [...] were administered by the
BNBC and were occupied andused by Bajaus who transferred their allegiance
fromthe Sultan of Suluto theBNBC"~';
(e) they "were part of the social system ofthe localeople"7',that is, apparently,
"the social and administrative system of Darvel Bay and surrounding
island~''~~;
Boeloengan was "a small land-based sultanate [which had] no claim to
(0
effective control overthe islands off the Sempoma peninsula Even if
the islands did not form part ofthe "Sulu archipelago",these "two small islands
in Darvel Bay [sic]belongedto "thedominionsof SU~U"~~.
5.27 The confusions in terminology in these last two citations are certainly not fortuitous.
The same may be said ofthe systematic use of the expression!'eastof Batu ~ina~at"~*a tactic
designed to create an erroneous impression in the mind of the reader that the islands in
question belonged to much larger entities whose legal statusthey automatically followed. In
speaking of "islands off the Sempoma peninsula" or "off ~em~orna"~~o,r "in Darvel Bay" or
of the "system of Darvel Bay",or of the "social system ofthe local people", or, slightly more
subtly, of the "Ligitanro~p"77or "the group of islands associated with Ligitan reef'", the
object is to deceive the reader into believing that, since we are concemed with a single entity,
al1 of its "components" must have the same status: since Sempoma clearly belongs to
Ibid .ra. 2.16;see also para. 3.2.
Ibid .ra. 3.l(c); see also paras. 3.2and 3.9.
Ibid .ra. 3.5.
Ibid .ra. 3.3.
Ibid .ra. 3.9.
Ibid .ras. 3.12and 3.14.
Seeparas. 5.5et seq., and 5.23-5.24,above.
MCM, paras. 3.3 and 3.8.
Ibid .ras. 1.4,3.5, 3.15,3.26 and 3.28.
Zbid .,ra. 2.40.Malaysia, the same must go for "the islands off Semporna";since the authority of the Sultan
of Boeloengan without doubt did not stretch to Darvel Bay, neither did it stretch to the
"islandsin Darvel Bay", etc.
5.28 Beyond these tactics, the problem is that Malaysia's assertionsdo not correspond to
legal reality, or even, for the most part, to geographical reality (except as concerns the
appurtenance of Ligitanto "Ligitanreef'): neither Ligitan nor Sipadan are situated in Darvel
Bay; Sipadan does not belong to "Ligitanreef' or "group"; and ifthe two islands are indeed
"off Semporna",they are not "adjacent" anddo not "belongto it" in the sense Malaysia gives
to these e~~ressions'~.Furthermore,the islandsdisplay the characteristics of being situatedto
the south of, on the one hand, Batoe ~ina~at" and, on the other, the 4" 10'N parallel -
contrasting in both casesto SiAmi1and Dinawan,to which Malaysia assimilatesthe disputed
islands with disconcertingease8'.
5.29 Moreover, another striking characteristic of Malaysia's style of argumentis that ut no
time has Malaysia provided the slightest proof of any Sulu presence whatsoever on either
Ligitan or Sipadanbefore 1891 :
• In apparently referring to Ligitan and Sipadan (the reasoning is convoluted),
Malaysia writes that "in fact these islands.were administered bythe BNBCand
used by Bajaus who transferred their allegiancefiom the Sultan of Sulu to the
BNBC"'~. This is pure speculation. Furthermore,the references made in the
Counter-Memorial to the Memorial ("paras. 5.19, 5.28, 5.31-5.34, 6.5-6.8 &
documents there referred to") are deceptive: this supposedproof generally does
not concern the islandsin dispute but at best relates to Dinawan or SiAmi1and
in any event is al1 post-1891, as Indonesia established in its Counter-
~emorial'~ where it was also show that the Bajau in no way transferred their
allegiance from the Sultan of Sulu tothe BNBC~~: the very idea of allegiance
was completely alien to them.
80 Ibid.,paras.2.10-2.11.
81 Seepara. 5.24,above.
See alsoICM, para.7.18.
82 MCM,para. 3.l(c).
83 ICM, paras.7.16 etseq.
84 Ibid.paras.3.23-3.73. Similarly, when Malaysia affirms that the Bajau headmen who were
established on Dinawan "had the right (confirmedby the Sultan of Sulu) to
collect turtle eggs on sipadan"*', it offers no pre-1891 evidence to support this
assertion, and provides nothing that does not already appear in its Memorial
(see, for example, paragraph 6.9 of Malaysia's Memorial, where Malaysia
alleges that "the ownership of the rights was at al1material times vested in
local Bajaus who acknowledged the authority of the Company. They alone
were entitled to collect the eggs". However,no evidence of this assertion is
referred to in the subsequent paragraphs). In any event, as Indonesia has
shown, the collection of turtle eggs is no proof of the exercise of territorial
so~erei~nt~*~.
5.30 Moreover, even though, in contrast to its Memorial, Malaysia's Counter-Memorial
does not stress the Bajau Laut's supposed control over thedisputed islands, it nevertheless
seriously ignores the nomadic and "non-tenitory oriented" character of the Bajau. As Clifford
Satherputs it:
"Without a territorial base of their own, they were perceived by their neighbours as
living outside, and so only tangentially connected to, the system of persona1 and
economic relations in Sulu. Reflecting this status of social and political exclusion,
sea-nomadic communities were identified by outsiders by pejorative terms, such as
pala'au or luwa'an,meaning, literally, 'that whichis spat or vomited out"'".
5.31 In any case, it is far from true that the Bajau Laut had exclusive links, whatever their
nature, with Sulu: "In addition to Sulu, [the 'DinawanCommunity's] leadership maintained
political connections with ~ulun~an"~~.And in 1855 the German ethnographer and Dutch
official, Hermann von Dewall, noted that the "Bajaus" in Pulau Panjang (a small island near
Tanjung Batu, off the east coast of Kalimantan) "fly a Dutch flag to show that they have
surrenderedto the 'Company' andthepanggawa [penggawa] has an open letter from the king
85 MCM, para. 2.16.
8(i See ICM, paras. 7.23-7.29.
87 The Bajau Laut,Oxford University Press, 1997,p. 16.
88 Ibid.p. 29.of Gowa [located on south Sulawesi, then part of the Dutch East Indies], which is used as a
kind ofpassport or re~ommendation"~~.
5.32 Malaysia boasts that Indonesiahas not been ableto demonstrate any effective presence
of Boeloengan on the disputed islands, or to prove the forma1claims of either the Boeloengan
Sultanate or The Netherlands. This is partially true. However, despite Malaysia's numerous
assertions to the contrary, the situation is exactly the same for Malaysia. Neither the
Sultanate of Sulu, the BNBC in the period 1878-1891,nor the British negotiators during the
discussions which led to the conclusion of the 1891 Convention, ever made any reference to
either Ligitan or Sipadan. None ofthe documents furnishedby the Parties to the present case,
and none of the documents which Indonesia has been able to consult, gives any indication of
any act of administration overthe disputed islandsby either of Malaysia's predecessors in title
prior to 1891.
5.33 Moreover, it is certainlynot the casethat Boeloengan, in contrast to Sulu, was "a small
land-based ~ultanate"~~ with no maritime connection. Indeed, Boeloengan considered itself as
both a land and a maritime territory as witnessed, for example, by the very terms of the
Contract between the Sultan and the Government of the Netherlands East Indies of
12November 1850:
"The following islands belong to Boeloengan: Terakkan, Nenoekkan and Sebittik,
with the small islands belongingtheretoW9'.
5.34 As recognised by Professor Houben in his report, "[tlhe composition of Bulungan
society was complex. Besides Malays one could find Dayak, Taosug (from the Sulu
Archipelago) and Bugis (from South ~ulawesi)"~~,of which the latter two were maritime
peoplepar excellence. In his well documented book, The Sulu Zone 1768-189893,Dr. James
Warren stressesthe presence of Bugis and Taosug in Boeloengan and explains the importance
of their trade in spices and slaves with Sulu (and ~akassar)~~.Professor Victor T. King also
refers to "Bugis merchants who were based on the east coast of Borneo in the Sultanate of
89
90 See ibid.pp.29-30.
91 MCM, para.3.9.
92 IM, Vol. 2Annex 13.
MCM, Appendix 1,para.4.7.
93 SingaporeUniversity Press198 1.
94 See, for example,pp.10-13and 84-87.Kutei and in the small realms of Berau and Bulungan andwho connected up Sulu commerce
with the eastern Indonesian spice tradeM9'.And, as is also conceded by Professor Houben,
intense "trade relations existed between Bulungan and Bajau people from the Sulu
Archipelago [...]Trade with the Bugis existed as ~e11"~~.Similarly,the 1917 edition of the
Encyclopaedievan Nederlandsch-Indieindicated that the Bugis "are especially distinguished
by their suitability and predilection for the shippingtrade, which is even now [...]lively and
of importance",and that "[clenturies agothey were known as good navigators".
5.35 The 1891 Convention put an end to this uncertainty: the 4" 10'N.paralle1 cut across
the rival claims of the parties. This clearly establishes an argument to which Malaysia seems
to attach a certain weight but which in reality fully supports Indonesia's position. According
to Malaysia, it is significant that at the time of the conclusion of the 1891 Convention the
Sultan of Boeloengan only requestedthat certainrights to land between Broershoek and Batoe
Tinagat be preserved, but not the right to collect produce on the islands9'. Malaysia thus
concludesthat: "[ilf the Sultanof Bulungan had consideredthe islands east of Batu Tinagat as
within his possessions,he would no doubt have ~laimed"~'this right for his people.
5.36 In reality the Sultanof Boeloengan'srequest provestwo discrete but equally important
things:
Firstly, it establishes that the Sultan clearly considered that he had rights with
regard to the territory between Broershoek and Batoe Tinagat, which sits
uncomfortablywith the Malaysianargumentthat he had no claims to this area;
Second, it would indicate that, so far as turtle eggs on Sipadan and Ligitan
were concerned,the Sultan had no need to seek the continuation of such rights
since they had been preserved to The Netherlands (and the Sultan of
Boeloengan) by the 1891Convention.
95 The Peoples of Borneo,Blackwell, Oxford,1993,p. 139.
96
97 MCM,Appparas.2.17-2.18.6.4.
98
Ibid.,para.2.18. Section4. Conclusion
5.37 At paragraph 3.5 of its Counter-Memorial, Malaysia notes that the Parties agree on
one point: "Thereis no suggestion that any ofthe islands offthe east coast of Borneo were, or
were ever treated as, terra nullius". Thisis true, providedthat two points are clarified.
5.38 On the one hand, Indonesia took care to point out at several places in its Counter-
~emorial~~,that this was true "at al1relevant times", i.e., afier 1891. Before that date, the
only possible inference that can be drawn from an impartial examination of the situation is
that the status of both islands was, at best, uncertain: they wereuninhabited, and neither Party
has been able to provide any evidence that they were administeredby the local rulers before
1891.
5.39 On the other hand, Indonesia can accept that the islands were considered as
appertaining to the local coastal Ruler. However, while Malaysiahas failed to provide any
evidence of a pre-1891 Sulu title over them, Indonesia has established thatal1the territory
south of Batoe Tinagat was under the control of Boeloengan. Thus, there is support for the
contention that prior to the colonial conquest the disputed islands were notterrae nullius, if
the situation is considered not from the perspective-of contemporary international law, but
from that of conceptions of territory existing in that part of the world at that time. As
Indonesia showed at lengthin its ~emorial'~~ - and not denied by Malaysia, which has failed
to make any mention of this important point in its Counter-Memorial - the idea the local
rulers had of their relations to territory was very different from that heldby European States.
This idea entailed consequencesin respect of islands located off their mainland territorylO':in
this area, which comprised hundreds of islands, many of which were uninhabited, the
effectiveness of power did not have any particular importance, but it was inconceivable that
these islands could be considered to be res nullius in the European or contemporary sense of
the expression.
99 ICM, paras. 2.14, 3.2, 7.3 and7.9(b).
1O0 IM, paras. 4.3et seq.
101 See ibid.paras. 4.8and 4.39-4.45.5.40 The general conclusions regarding the pre-1891situationare thus as follows:
(a) even if, inview of ideas concemingterritory prevalent at that time, Ligitan and
Sipadan-cannot be considered to be terrae nullius, neither Malaysia nor
Indonesia have been able to provide any forma1evidence that these islands
were possessions ofthe Sultan of Sulu or the Sultanof Boeloengan;
(b) al1the alleged demonstrationsof authority on which Malaysia relies took place
after 1891anddo not concem the disputed islands directly,nor were they made
à titre de souverain;
(c) the Bajau Laut were not subject to any durable political control, and their
activities cannot bestow a real territorial title on either Party. Moreover,
Malaysia has not adduced any evidencethat the Bajau Laut had any connection
with the islands prior to 1891;
whilst the BNBC did not carry out any activities south of Semporna before the
(d)
conclusion of the 1891 Convention, it has been proven (and acknowledged by
Malaysia and Professor Houben) that the-Dut& were established in Tawau and
in the region of the cape of Batoe Tinagatprior to 1891 ;
(e) this situation was challengedby Great Britain on the tenuous basis of the 1878
grant, the wording of which, however, would seemto imply that the Sultan of
Sulu considered that histerritory on the north-eastcoast of Bomeo extended as
far as Darvel Bay but not further south. The uncertainty conceming the
position of the "Sibuco River" was created entirely expost facto by the British
in the framework oftheir negotiations with the Dutch;
(f) in any case, the 1891 Convention was intended to and did remove al1
ambiguity in this respect and, as Indonesia has shown in Chapter 1 of this
Reply, the pre-1891 situation is irrelevant forthis dispute except in so far as it
shows the northward reach of Dutch claims and, generally, the uncertainties
regardingthe extent of British and Dutchpossessions inthe area. CHAPTERVI
THE ABSENCE OF MALAYSIAN SOVEREIGNTYOVER THEISLANDS BASED
ON A CHAINOFTITLE PASSINGFROMSPAINTO THEUNITED STATES TO
-GREATBRITAIN
Section 1. Introduction
6.1 Malaysia'sprincipal claim is that it inherited sovereignty overthe islands of Sipadan
and Ligitan as a result of a series of international agreements involving Spain, the United
States and Great Britain. The foundation for this so-called "treatytitle" lies in the following
chain of events'.
(i) Spain is said to have acquired title to the disputed islands fiom the Sultan of
Suluon the basis ofthe 1836Capitulationsand the 1851Act of Submission.
In the 1885 Protocol with Great Britain and Germany, Spain relinquished al1
(ii)
title to the Sultan's territories on North Borneo, including islands lying within
three marine leaguesofthe North Borneocoast.
(iii) While Spain never thereafter claimed sovereigntyover al1of the islands lying
more than three marine leagues from the coast - its claim being restricted to
islands which it actually occupied in the Sulu Archipelago - the United States
allegedly did advance such a claim after it acquired Spain's territorial
possessions under the 1898and 1900treaties.
(iv) Specifically,the United States isaidto have claimed both Sipadan and Ligitan
in diplomatic correspondence with Great Britain in the early 19001s,by virtue
1
See generallyMCM, para. 3.1. of the voyage of the U.S.S.Quiros in 1903,and by the issuance of a map in the
sameyear 2.
(v) Great Britain allegedly acknowledged United States sovereignty over the
islands in an Exchange of Notes in 1907, but the BNBC is said to have
continuedto administer the islandsanyway.
This situation continued until the conclusion of the 1930 Anglo-American
(vi)
Convention pursuant to which, according to Malaysia's theory, Sipadan and
Ligitan were cededbythe United Statesto Great Britain.
6.2 This chapter will demonstrate that each ofthese propositions is contradicted by the
historical record. Given that there is no evidence thatthe Sultan of Sulu ever possessed title
to Sipadan or Ligitan in the first place3, this chapter will focus on the series of relevant
transactions involving Spain, the United States and Great Britain. To assist the Court in
identifjing the various locations and lines referred to in this chapter, Indonesia has provideda
fold-out map following page 130at the end of this chapter. Indonesia is confident that a
review of the evidence before the Court regarding these events supports the following
conclusions:
Malaysia has introduced no evidence showing that Spain consideredit had title
(i)
to either Sipadan or Ligitan. Nor is there any evidence that Spain occupied the
islands or carried out any acts of administration onthem. While the 1877 and
1885 Protocols provided that Spain could expand its presence in the Sulu
Archipelago to islandsnot yet occupied, this was subjectto the condition that it
notifi Great Britain and Germany accordingly. Spainnever did so with respect
to Sipadan or Ligitan. It follows that Spain cannot be deemed ever to have
acquired sovereigntyoverthe two disputed islands.
2
3 This map is Map 5 in Malaysia'sMap Atlas.
See ChapterV above andICM, ChapterIII. (ii) The fact that Spanish sovereignty didnot extend to Sipadan or Ligitan is also
evidenced by examining the scope of the territories that Spain relinquished to
the United States under the 1898 and 1900Treaties. These instruments show
that the southwesternmost limits of the possessions over which the United
States acquired sovereignty were Sibutu Island and its irnmediate
dependencies. These islands are located well to the north and east of Sipadan
and Ligitan.
(iii) Although a United States vessel, the Quiros visited Sipadan in 1903, the
United States never claimed sovereignty overthe islands. Moreover, the 1903
U.S. map, which tentatively depicted the two islands as falling within U.S.
territories and to which Malaysia attaches so much importance, was expressly
revoked by the United States later that year and the boundary line depicted on
the map was removed from subsequentversionsof the map4.
In 1907, Great Britain and the United States reached an understanding which
(iv)
permitted Great Britain to continue to administer certain islands lying more
than three marine leagues fromthe Coastof North Borneo without prejudice to
the question of sovereignty. While Malaysia asserts that Sipadan and Ligitan
were two of the islands then being administered by the British, there is no
evidence to support this contention. To the contrary, correspondence
exchanged between the United States and Great Britain shows without any
doubtthat the islandsthat were intendedto be covered by the 1907agreement -
i.e., that were actually being administeredby the British at that time- were the
Turtle and Mangsee Islands. Thesetwo groups laywell to the north of Sipadan
and Ligitan and had nothing to do with them. Nowhere is there any evidence
that the 1907 Exchange of Notes was intended to include Sipadan or Ligitan
and there was no British "administration"of any kind on these islands at the
time.
4 See paras.6.38-6.40,below. (v) In the discussions leading up to the 1930 Anglo-American Convention, the
United States advanced specific claimsto the Turtle and Mangsee Islands,both
of which groups lay more than three marine leagues from the North Borneo
coast. These islands were ultimately recognised as belonging to the United
States in the 1930 Convention. But the United States raised no such claim to
Sipadan and Ligitan and the Convention did not coverthem. In sum, both
islands lay farbeyondanything ever claimedbythe United States.
6.3 It follows from the abovethat Spain never had anytitle to Sipadan or Ligitan whichit
could have passed on to the United States (nemodat quod non habet). Nor did the United
States ever consider itself as possessing sovereignty over the islands. Consequently, there
could be no question of the United States "ceding"the islands back to Great Britain in 1930;
the 1930Conventionwas in no way a treaty of cession. Both Sipadan and Ligitan were Dutch
possessions pursuant to the 1891 Convention andthe Dutch went so far as to send a naval
vesse1 - the Lynx - to them in 1921 in a physical demonstrationof its sovereignty. Nothing
that Spain, the United States or Great Britain didin the region ever even remotely displaced
that title.
Section2. Sipadan and Ligitan Did NotFa11Within Spain'sPossessionsin the Area
A. The 1836Capitulations and the1851Act of Submission
6.4 The Parties agree thatthe starting point for assessingthe extent of Spanishpossessions
in the Sulu Archipelago lies in the 1836 Capitulations and the 1851 Act of Submission
between Spain and the Sultan of Sulu. By the former instrument, Spain acquired seigniory
and protection overthe Sultan's possessions inthe Sulu ~rchi~ela~o~. By the latter, Spanish
rights ripened into full sovereignty6. However,the Parties differas to the geographic limitsof
5 IM,Vol. 2, Annex9.
6 MM, Vol. 2, Annex4.the possessions thus falling under Spanish control. As a result, it is necessary to revisit briefly
both ofthese instruments.
6.5 Inprevious submissions, Indonesiapointed out that Article 1of the 1836Capitulations
definedthe extent of Spanishprotection provided to the Sultanof Sulu as extending "fiom the
western extremityof Mindanaoto Borney [Borneo]and La Paragua [Palawan],with exception
of Sandacan and the other tenitories tributary to the Sultan on the mainland of orne^"^.
Though loosely worded, an examination of the map of the area shows that this definition
could not reasonably have includedeither Sipadan or ~i~itan'. Both islands lie well to the
south and west of the Sulu Archipelago in its proper sense, particularly bearing in mind that
the Spanish rights in the area were defined by reference to the "western point of Mindanao".
Moreover, Sipadan and Ligitan could not have formed part of the Sultan of Sulu'sBorneo
possessions since these were subsequently defined as only encompassing islands falling
within three marine leagues of the mainland coast. On the face of it, therefore, the 1836
Capitulations did not cover either Sipadanor Ligitan.
6.6 In the 1851Act of Submission, Spain acquired sovereignty over "the Island of Sooloo
with al1its dependenciesn9. Geographically, neitherSipadan nor Ligitan can be considered to
form part of the dependencies of the Island of Sulu which lies over 100 nautical miles to the
north and east of Ligitan, the nearest of the two disputed islands. Moreover, Malaysia has
introduced no evidence to show that Spain ever deemed Sipadan or Ligitan to fa11within its
possessions. In Malaysia'sown words, Spain was "indifferent" and not interested in either
islandlO.
B. The 1877 and 1885 Protocols
6.7 The 1877Protocol was concludedin orderto settle diffïculties which had grown out of
Spanishinterferencewith British and Germanvesselstrading with the Sulu Archipelago. The
Protocol accorded to ships of Great Britain and Germany fieedom of commerce within the
7 IM,Vol. 2, Annex 9.
8 SeeICM,paras. 6.4-6.5,and Map6.1.
Y SeeArt.1 ofthe 1851Actof Subrnission,MM,Vol. 2,Annex4.
1O MM,paras. 5.19,5.20(cand 5.30.SuluArchipelago with respectto islands already occupiedand administered by Spain. Article
IIIof the Protocol went onto provide:
"In case Spain should occupy effectively other places inthe archipelago of Sulu, and
provide thereat the offices and employees necessary to meet the requirements of
commerce, the Governments of Great Britain and Germany shall not object to the
applicationof the rules already stipulated for placesoccupied at present. But, in order
to avoid the possibility of new claims due to the uncertaintyof business men in regard
to the places which are occupied and subject to regulations and tariffs, the Spanish
Government shall,whenever a place is occupied in the Sulu archipelago, communicate
the fact to the Governments of Great Britain and Germany, and inform commerceat
large by means of a notification which shall be published in the official journals of
Madrid and ~anila"~ l.
6.8 Prior to the 1877 Protocol, Spain never occupied Sipadan or Ligitan. After 1877,
Spain never notified Britain or Germanythat it had undertaken a new occupation of either
island. It may be concluded,therefore, that Spain did not consider that either of these islands
fell within its dominions either before or afier the 1877 Protocol. Certainly, Malaysia has
introducednothing in the recordto suggest othenvise.
6.9 In its Counter-Mernorial, Malaysiaclaimsthat, before 1878,a so-called "authoritative"
Dutch map of the area showed Sipadan and Ligitan as falling within the dominions of Sulu
and hence of spainI2. This argument is misplaced. The map which .Malaysiarefers to is a
rather rudimentary map first published in 1849 and revised in 1870, well before the 1877
Protocol, the 1878 grant to Dent and Overbeck and the 1891 Convention were concluded.
The map actually shows the territories of Boeloengan and Tidoeng, which were under Dutch
control, as extending to thenorth of Sebatik Island- Le.,north of the 4" 10'N latitude which
was ultimately agreed in the 1891 Convention. Sipadan is labelled on the map, but its
geographic location is inaccurately depicted and it is not shown to belong to Sulu. As
Indonesia has repeatedly shown, it was precisely in order to remove any ambiguities as to the
extent of the respective territories of Boeloengan and Sulu that The Netherlands and Great
Britain agreed on the 4" 10'N line as separating their territorial possessions in the 1891
Convention.
II
12 Ibid V.,l.2,Annex5.
MCM, para.3.1(a)refeningto Map3 inMalaysia'sMapAtlas.6.10 Turning to the 1885 Protocol, in Article 1 the Governments of Great Britain and
Germany recognised Spanish sovereignty "over the places effectively occupied, as well as
over those places not yet so occupied [by Spain],of the Archipelago of Sulu (Jolo)". Article
II, inturn, repeatedthe formula that had appeared inthe 1836 Capitulations- namely, that the
SuluArchipelago:
"comprises al1the islands which are found betweenthe western extremity of the island
of Mindanao on the one side and the continent of Borneo and the Island of Paragua
[Palawan] on the other side, with the exception of those which are indicated in
Article III"13.
In Article III, Spain relinquished in favour of Great Britain al1claims of sovereignty over the
territories of Borneo which then belonged, or had belongedin the past, to the Sultan of Sulu
and which comprised the islands of Balambangan, Banguey and Malawali as well as other
islands that were administered by the BNBC falling within three marine leagues of the coast.
Article IV then went on to repeat the provisions appearing in the 1877 Protocol to the effect
that if Spain were to occupy other islands in the archipelago, it would inform Great Britain
and Germany who, presumably, wouldthen recognise Spanishsovereigntyover such islands.
6.11 As previously indicated, Spain never occupied Sipadan or Ligitan and thus no
notification was ever issued. The circumstances both before and after the conclusion of the
1885 Protocol thus confirm that Spain did not possess sovereignty overeither of the disputed
islands at the time.
6.12 Despite the clear terms of the 1885 Protocol, Malaysia argues that there was a
distinction between the Sulu Archipelago as a geographical entity and the extent of the
dominionsof Sulu. In Malaysia'swords:
13 MM, Vol. 2, Annex15. "The fact that the Sultan did not gant islands beyond 3 marine leaguesto the BNBC
did not meanthat he did not claim or ownthose islands, or that the islands were partof
the SuluArchipelago in the geographical sense"14.
Malaysia goes on to suggestthat there could have been other islands situatedmore than three
marine leagues (nine miles) from the coast of North Borneo, such as Dinawan, which no one
consideredto be part ofthe SuluArchipelago in the geographic sense''.
6.13 Malaysia's argument misses the point. Undoubtedlyt,here were islands situated more
than nine miles from the coast which were not grantedto the BNBC pursuant to the 1878
grant to Dent 'and Overbeck orthe 1885 Protocol. Dinawan mayhave been one of these;
Sipadan and Ligitan were others. But thatdoes not mean that these islands belonged to the
Sultan of Sulu. What is important is the fact that Spain never considered that it had title to
these islands as partof the possessions it acquired fiom the Sultan of Sulu, and neither did the
United States, as shall be presently seen. Nonetheless, to the extent that there were
uncertainties as to the respective limits of the possessions which had been granted to the
BNBC and those acquired byThe Netherlands, the 1891Convention settled these issues once
and for all. It adopted the 4" 10'N parallel of latitude as a practical compromise separating
each side'sterritorial possessions.
6.14 In the light of the relevant treaty instruments, thereare no grounds for Malaysia's
assertion that Sipadan and Ligitan formed part of Spain'spossessions prior to the Spanish-
American War. Not once did Spain claim or even suggest that the islands belonged to it. Nor
did the Sultanof Sulu express any interest over them. An essential link in Malaysia's alleged
chain of title ishus missing. As Malaysia itself concedes, "Evidently if Spain hadno rights
over Sipadan and Ligitan in 1898, therewas nothing it could have transferred to the United
Statesbythe Treaties of 1898and 1900"'~.
14 MCM, para. 3.12.
15 Ibid.
16
Ibid .,ra.3.17. Section3. The United StatesDid NotConsiderthat itHad Sovereignty over Sipadan
or Ligitan
A. The 1898and 1900Spanish-U.S. Treaties
6.15 With respect to the 1898 Treaty, the Parties are in complete agreement". This
agreement identified the southern limit of the Spanish possessions acquired by the United
States as falling along the 4" 45'N parallel of latitude. Clearly, as can be seen on Map 10 at
the end of this chapter, this limit was well to the north of Sipadan and Ligitan and thus
excludedthem.
6.16 However, the Parties differ as to the scope of the 1900 Treaty. That Treaty extended
the geographic scope of the 1898 Treaty so as to include amongst the islands relinquished by
Spain "any and al1 islands belonging to the Philippine Archipelago, lying outside the lines
described in Article III of that [the 18981Treaty and particularly to the islands of Cagayan
Sulu and Sibutu and their dependencies"'8.
6.17 Indonesia's position is that, according to the plain and ordinary meaning of the 1900
Treaty, the southern limit of U.S. possessions acquired fiom Spain included Sibutu and its
dependencies, but not Sipadan or Ligitan which lay much fùrther south and west and which
were not part of the Philippine Archipelago. Certainly on geographic grounds, neither
Sipadan nor Ligitan can be considered as constitutingdependenciesof Sibutu, and Malaysia,
quite correctly,does not argue asmuch.
6.18 Malaysia'sposition appears to be that the language of the 1900Treaty - "particularly
to the islands of Cagayan Sulu and Sibutu and their dependencies" - was broad enough so as
to include other islands, not namedin the Treaty, withinthe rubric of its terms. Malaysia cites
17
18 ICM, para. 6.16; MCM, para. 3.19.
IM, Vol. 3Annex 94.as an example the Turtle Islands, which were being administered by the BNBC in 1900,but
which were not mentioned by name inthe ~reaty'~.
6.19 Malaysia'sreference to the Turtle Islands is particularly appropriate. Geographically,
the Turtle Islands lay in the vicinity of the island of Cagayan Sulu and thus could have been
considered to be dependencies of that island. More important, however, is the fact that the
United States subsequently did claim title to the Turtle Islands - a claim which was
recognised as valid by Great Britain in the 1930 Convention. At the same time, the United
Statesdid not similarlyclaim Sipadanor Ligitan which layto the south of anyU.S. interestsin
the area. This difference in conduct reinforces the fundamental distinction that the United
States drew between islands lying to the north of Sibutu and those lying to the south. With
respect to the former, the United States raisedspecific claims wherever the islands in question
laymore than three marine leaguesfiom the mainland coast. But with respect to the latter, the
United States raised no such claims because they lay beyond the territories that the United
Statesconsidered it had inherited fiom Spain.
6.20 There is an important piece of evidence which corroboratesthis conclusion but which
has been ignored by Malaysia. This is the letter of 23 October 1903fiom the U.S. Secretary
of Stateto the Secretaryof War. Inrelevant part, it read:
"The treaty of Nov. 7, 1900, by expressly including the Island of Sibutu may have
intended such inclusion as exceptional and as a lirnit to the claims of Spanish
dominion to thesouthwest of the Sulu
6.21 As will be seen, it was because the State Department viewed Sibutu and its
dependencies as the limit of Spanish possessions in the area that (i) the United States never
claimed sovereignty over Sipadan or Ligitan; (ii) maps showing U.S. possessions extending
to these two islands were ordered to be withdrawn; (iii) the question of sovereignty over
Sipadan and Ligitan never arose in the discussions between the United States and Great
19 MCM, para.3.19.
70
IM, Vol. 3, Annex 104. Emphasis added.Britain leading up to the 1930 Anglo-American Convention; and (iv) the ultimate boundary
line agreedinthat Convention did not extend southof Sibutu and its dependencies.
B. The Events of 1903
6.22 According to Malaysia, 1903was an important year in the development of the United
States'position. The problem is that Malaysiahas onlytold half of the story. Many important
documents and maps dating from 1903,which fùndamentallycontradict Malaysia'sthesis, are
simply ignored or miscited thus producing a decidedlymisleadingpicture of events.
6.23 To give a sample of the difficulties created by Malaysia'sselective treatment of the
evidence,the following may be mentioned:
(i) Malaysia fails to point out that the U.S. State Department, which was
responsible for boundary issues affecting the Philippines, did not concur with
the Navy Department's earlier view that the United States possessed
sovereigntyover al1islands lying morethat three marine leagues fiom the coast
of North Borneo, including those lying south of Sibutu Island and its
dependencies. The State Department'sview was very different in maintaining
that effectively U.S. possessions were limited in the south to Sibutu and its
dependencies.
(ii) The StateDepartment didnot endorsethe voyage in 1903of the Quiroa snd did
not claim sovereignty over Sipadanor Ligitanas a result of this voyage.
The boundary line onthe 1903 U.S. map (H.O. Chart 2117), repeatedly relied
(iii)
on by Malaysia as showing the disputed islands as U.S. possessions, was
revoked on the express orders of the State Department later in 1903. The map
was subsequently reissued without the boundary line, a fact which Malaysia
studiouslyignores. (iv) Instead, other maps, left unrnentionedby Malaysia, were issued by the United
States showingthat the United States had no claim as far south as Sipadan and
Ligitan.
6.24 It is undisputed that the State Department hadthe final Sayin deciding which islands
the United States laid claim to2'. On 3 April 1903,the Secretaryof State wrote a letter to the
Secretary of the Navy in which Sibutu was clearly identified as constituting "the most
southwesterly of the Sulu Group proper"22. Malaysia contends that the Secretary of State
made a distinction between "the whole of the Sulu Archipelago" and "the Sulu Group
proper.. . The main Archipelago"when he wrote this letter23. Though not specifically stated,
the implication of this argument is that Sipadan and Ligitan might somehow have been
consideredto form part of "thewhole ofthe SuluArchipelago"in its broad sense, and thus not
excluded from the scope of the 1900 Treaty, even though they were not part of "the Sulu
Groupproper".
6.25 In the first place, Malaysia miscites the letter. Malaysia claims that the Secretary of
State agreed with the Secretaryof the Navy'sview that "the sovereignty of the United States
covers al1outlying islands, islets and reefs that lie more than three marine leagues from the
coast of British North Borneo, except the islands of Balambangan, Banguey and ~alawali"'~.
But this is not what the letter says. In reciting the words quoted above, the Secretaryof State
was reflecting the position of the Secretary of the Navy, not the State Department's own
position. Malaysia simplyomitsthe precedingline ofthe letter in which the Secretaryof State
saysthat "it is your [i.e.,the Secretaryof the Navy's]understandingthat the sovereigntyof the
United States covers.. .".
6.26 In point of fact,the StateDepartment'sviews were very different. Far fiom concurring
that the sovereignty of the United States extended to al1 islands lying more than three marine
leagues from the coast of British North Borneo, the Secretary of State indicated that U.S.
21 See, for exarnple,letter from Major E.R.Hills, War Departmentto the Cornmanding General, Division
of the Philippines dated12May 1903.Annex 6 to this Reply.
22 IM, Vol.3, Annex 98, p. 2 of the letter.
23
24 MCM, para. 3.20.
Ibid.,para. 3.20, citingfi-omthe Secretaryof State'sLetter of 3 April 1903to the Secretary of theNavy.
Emphasisadded.sovereigntyextended to "the whole of the SuluArchipelagoup to three marine leagues of the
mainland coasts of BritishNorth ~orneo"~~.It is inthis contextthat the letter concludes:
"The Protocol of 1885 between the same Powers (a) expressly recognized the
sovereignty of Spain over al1parts of the Sulu Archipelago then or thereafter to be
effectively occupied by Spain; (b) defined the limits of the Archipelago as extending
from Mindanao to Borneo and Palawanand includingBalabacand ~a~a~an-~olo"~~.
Hence it was acknowledged by the Secretary of State that Spain had only exercised
sovereigntyover territories within the Sulu Archipelago asdefined in (b) and which had been
effectivelyoccupied by Spain,neither of whichconditions applied with respect to Sipadan and
Ligitan.
6.27 This difference - the emphasis on the "SuluArchipelago"as opposed to "al1islands" -
is important for a proper understandingof the United States'position. Subsequentdocuments
reveal unequivocally that the State Department did not accept the view that the Sulu
Archipelagoextended as far south as Sipadan and Ligitan. As alreadynoted, the Secretary of
State'spositionwas that Sibutu Island and its dependenciesrepresentedthe southwesternmost
limitto United Statespossessions in the region.
6.28 Malaysia asserts that it was on the basis of the 3 April letter that the U.S. Navy's
Hydrographic Office prepared in June 1903a map labelled "Northern Shore of Sibuko Bay".
This map appeared to show Dinawan, Si Amil, Ligitan and Sipadan as "under the sovereignty
of the United States of ~rnerica"~'. Not surprisingly, the map comrnands a special place in
Malaysia'scase. It is repeatedly referred to both in Malaysia's Memorialand its Counter-
Memorial to support the proposition that the United States claimed sovereigntyover Sipadan
and Ligitan in 1903. But the facts are othenvise.
6.29 First of all, Malaysia is confùsed as to the source of the map. At paragraph 5.25 of its
Memorial, Malaysia states: "In 1903, in response to a direction from the Secretary of the
Navy, the United States Hydrographic Office published a chart of the 'Northern Shore of
75 Ibid Emphasisadded.
26 IM, Vol. 3, Annex98,p.15 ofthe letter.
17 MCM, para.3.20.Sibuko Bay"'. However, the documentreferred to as authority for this statement is actuallya
memorandum drafied bythe Acting Hydrographerof the U.S.Navy dated 8 August 1903~'.It
states:
"Inaccordance with instructions fiom the Chiefof.Bureauof Equipment, the following
method will be observed in delineating the S.W. boundary of the United States
possessions inthe Philippines forthe Comrnissionerof the General Land Office: -
The line will follow the "boundary line" as laid downon Hydrogra~hicOffice charts
Nos. 2116,2117,2118,2119,2121,2122, and 1709 ...".
6.30 On the bottom right hand corner of the June 1903 map, which is reproduced for
convenience facing this page,it can be seen that it is in fact H.O. Chart No. 2117, one of the
maps to be used as guidance according to the 8 August 1903 memorandum, and not the
consequence or "response"to this memorandum as Malaysia maintains.
6.31 Malaysia has thus failed to explain the true origin of the June 1903 map. The
memorandum in question citedby Malaysia appearsto have resulted inthe placing of various
boundary lines on a quite different map,but that map has not been produced.
6.32 While Malaysia thus gets off on the wrong foot, it is only aftenvards that Malaysia's
version of events completely breaks down. For Malaysia has failed to point out that, on
20 October 1903,the Acting Secretaryof War fonvardedto the Secretaryof Statethe map that
appears to have been prepared using H.O. Chart 2117 as "guidance" and asked the State
Department to confirm that the boundary line depicted onthe map was the correct ~ine~~T . he
Secretary of State repliedby letter dated 23 October 1903to which reference has alreadybeen
made. Despite the fact that Indonesia drew attentionto this letter in its Memorial and annexed
a copy thereto3',Malaysia failed to address the point in its Counter-Memorial. Regrettably,
therefore, it is necessaryto recall what the Secretaryof Statehad to Sayabout the matter.
28 MM, Vol. 3, Annex 62.
29 A copy of this letter is attached as Annex 8. Although it bears the date of 23 October 1903, ftom the
Secretaryof State'sresponse it appears that the letter was actuallydated 20 October 1903.
30 SeeIM, Vol.3,Annex 104.6.33 After referring back to his letter of 3 April 1903, the Secretary of State offered the
followingremarks:
"This department- did-not undertake to trace the line demarking the respective
jurisdictions of Great Britain and Spain, to which latter the United States has
succeeded in toto.We are not in a position to apply on the charts the line described in
general terms by the conventions entered into by Spain and Great Britain and
Germany. Any line drawnby either part in interest for itself alone would necessarily
be tentative unless assentedto bythe otherparty".
The Secretarycontinued:
"Underthese circumstancesthis department is unable to either confirm or alter the line
drawn ex parte upon the chart you have received from the Hydrographie Office of the
Navy Department".
6.34 From this it can be seenthat the drawingof boundary lines such as those appearing on
the June 1903 map relied on by Malaysia was not endorsed by the U.S. State Department.
The Secretary went so far asto add the followinghighlypertinent observation:
"The prolongation of the red tracing from the eastward of Sibutu to and around
Sipadan Island and thence northwardly to Darvel.Bay would-probably require to be
supported by evidence that Sipadan and the included keys and rocks had been
recognised as lyingwithin the dominionsof Suludescribed in the conventions between
Spain on the one hand and Great Britain and Germanyon the other. This is a question
of fact which the department of state has no means of deterrnining and considering
which an opinionwould be mainlyex parte".
6.35 Following these remarks, the Secretary referred to the fact, discussed at
paragraph 6.20, above, that under the 1900Treatythe island of Sibutu was probably intended
as the southwesternmost limit of Spanish dominions in the Sulu group. It is perfectly
understandable that this determination influenced the Secretary'sdecision that U.S. maps of
the area should not include any boundary line around Sipadan and Ligitan. Instead, the
Secretary ordered that al1such lines be deleted from the maps and replaced with a caption
simplymaking reference to the 1900Treaty.6.36 Following receipt of the 23 October 1903 letter, the Secretary of the Navy informed
the Commander of the U.S. Asiatic Fleet thatthe HydrographieOffice had been instructedto
deletethe boundary line fromchartsof the region3'.
6.37 In fact, the record shows that H.O. Chart 2117.wasonly issued pending approval by
the State Department and never actually published. The first endorsementof the Secretary of
State's3 April letter to the Secretaryof the Navy indicates that the Bureau of Equipment sent
the chartto the Navy Department, stating:
"The Bureau fonvards herewith seven charts (H.O. Nos. 1709, 2116, 2117, 2118,
2119,2 121,and 2122)upon which are drawn lines showing the boundary between the
possessions of the United States and those of British North Borneo as set forth,
according to its interpretation, in the accompanyingletter from the State Department.
Ifthese lines are pronounced correct, the Bureau will havethe charts published with
the boundaries in accordancewith instructions ofthe ~e~artment"~~.
6.38 As the sixth endorsement confirms, on 25 November 1903 the letter and maps
(including H.O.Chart 2117) were:
"Respecthlly returned to the Bureau of Equipment inviting attention to the
correspondence betweenthe Secretaryof State andthe Acting Secretary of War, which
was referredto the Bureau of Equipment on October 24, 1903.
2. The Department accordingly directs that, for the present, the boundary line be
omitted from the charts; and that a note be printed, either in the general legend of the
chart or in brackets, in situ, reading:
'Bya treaty signed November 7, 1900, Spain relinquishedto the United States
al1title to islands belongingto the Philippine Archipelago and lyingoutside of
the lines described in the Treaty of Peace of December 10, 1898; and in
particular to Cagayan-SuluandSibutu andtheir dependencies"'33.
6.39 Malaysia's pleadingsfail to point out this important development. To set the record
straight, Indonesia has attached a copy of the original version of Chart 2117 introduced by
Malaysia and the reissued version of the map which Malaysia neglects. Both maps appearon
31 Letter of 31December 1903, Annex 9 to this Reply.
32 The letteandendorsementsare at Annex5 tthis Reply.
33
Ibid.the fold-out oppositepage 116. As can be seen fromthe caption in the bottom right corner of
the reissued map, it wasthe "second edition" ofthe map. No longer did the rnap indicate that
U.S. possessions included Sipadan and Ligitan. Instead, there was a referenceat the bottom
of the rnap to the 1900 Treaty as had been suggested by the Secretary of State. From this it
can be seen that Malaysia's assertion that "whatever definitionmight be given to the 'Sulu
Archipelago',the United States did in fact claimal1these islands, as the 1903rnap shows" is
demonstrably
6.40 Nor does Malaysia disclose the fact that the rnap that was prepared pursuant to the
memorandum of 8 August 1903 was also reissued. It will be recalled that Malaysia
misidentified this rnapasthe original H.O.Chart2117. This is incorrect. The actualrnapwas
H.O. Chart 529, a copy of which appears~verleaf~~.As can be seen from the legend at the top
of the map, it included various boundary limits includingthose resulting from the 8 August
1903 memorandum. Significantly, none of the proposed boundary lines extended south of
Sibutu so as to encompassthe islandsof Sipadanand Ligitan.
6.41 It is in thelight of these developments that the voyage by the U.S.S. Quiros in the
summer of 1903 needs to be considered. The Department of the Navy was unsure of either
the nature or extent of the territorial possessions that it had acquired fiom Spain, and the
voyage of the Quiros can be best described as a fact-finding mission. Clearly, Lieutenant
Boughter did make various comments regarding what he considered the extent of U.S.
sovereignty inthe area, but Malaysia provides no indicationsthat this lay within his mandate.
The fact that only a few months later the U.S. Secretary of State expressly rejected a
"boundary line" that encompassed Sipadan and Ligitan clearly undermines any views that
Lieutenant Boughtermay have had.
6.42 What cannot be disputed is that the United States never relied on the voyage of the
Quirosto support a claim to Sipadan and Ligitan. It would have been perfectly possible for
34
35 MCM,para. 3.20 (footnotesornitted).
Thisrnapbearsan endorsementdated 1926fiomtheLibraryof Congressthusreflectingthefact that the
rnapwasconsideredbytheUnitedStatesaccuratelyto reflectitspositionwellrthe eventsof 1903.the Secretaryof Stateto have formulateda claim tothe islandsbased onthe Quiros'visit. But
he did not do ~0~~I .nstead, the Secretaryof State ordered the earlier version of Chart 2117
showing Sipadan and Ligitan as U.S. possessions to be withdrawn anda new map to be
issued. The United States'consistent position was thatU.S. possessions in the southemmost
reachesof the Sulu Archipelagodid not extendbeyond Sibutuand its dependencies. No claim
to Sipadan or Ligitan was made to Great Britain either in1903,or in 1907when a temporary
understandingwas reached betweenthe two parties, or even in the discussions leading up to
the 1930 Convention. For al1 intents and purposes, the activities of the Quiros were
completely irrelevant as far as Sipadanand Ligitanwere concerned. They certainly cannot be
relied on, as Malaysia does, to support the proposition thatthere was "a vigorous assertion of
legal title on the part of the United Statesw3'.
6.43 There is one further issue raised by Malaysia regarding the activities of the Quiros
which needs to be corrected. In its Mernorial,Malaysia drew attention tothe fact that on 13
July 1903, the Chairman of the BNBC wrote to the Foreign Office protesting against the
actions of the Q~ivos~~.That letter suggested that, if pressed on theissue by the Foreign
Office, the U.S. Govemment would readily agreeto instruct its localofficials to remove the
flags and tablets they had placed on the islands. Malaysia then asserts that Sipadan and
Ligitan were amongst the islands referred to in the BNBC's letter39. Based on this line of
argument, Malaysiajumps to the followingconclusionin its Counter-Memorial:
"But of course the BNBC was informed aboutthe visit to the islands around Darvel
Bay, includingSipadan, and protestedthose aswellW4".
6.44 This contention once again seriously misrepresentsthe facts. The 13 July 1903letter
did not list the islandsto whichthe BNBC'sprotest was directed. Instead,it referred backto a
36 Further evidence showing that the United States did not draw any conclusion with respect to
sovereignty as a result of the voyage of theosmay be found in letters dated 11 March 1904 and 24
April 1904 from the Navy Department and the United States Asiatic Fleet, respectively, in which
instructions were explicitly given not to claim sovereignty over any of the islands lying off the
Borneo. The letters are at IM, Vol. 3, Annexes 107 and 108.
37
18 MCM, para. 3.22.
See MM, paras. 5.31and Vol. 3, Annex59.
3q Ibid.,para. 5.32.
JO MCM, para. 3.23. Emphasis added.dispatch of 22 June 1903 regarding the American occupation of "certain islets".
Unfortunately, Malaysia did not annex this document. However, Indonesia has located the
document inquestion and has attached it as Annex7to this Reply. It is a very short document
from GovernorBirch to the BNBCwhich reads as follows:
"American man-of-war paid a visit to the Islands of Bakungan, Taganac, Lankayan,
Sibaung,Libiman, and fixed tablets and flags. 1am advised by letter to proceed to the
east coast. Prompt action is imperative".
6.45 As can be seen, there is no mention of anyprotest concerning the Quiros'actions on
Sipadan or around Ligitan, and Malaysia is wrongto suggest othenvise. Moreover, Indonesia
is constrained to point out that the Quiros did not even visit Sipadan until 22 July 1903,after
both the 22 June and 13July letters had been written4'. To suggestthat BNBC officiaiswere
protesting about a visit which had not even taken place shows a remarkable degree of
prescienceontheir part.
6.46 In short, there is no evidence of any protest either by the BNBC or the British
Government of the action of the Quiros around Sipadan and Ligitan. Nor has Malaysia
produced any evidence to support the further allegation that "the fact of the BNBC's actual
possessionof the islands was disputedneither by GreatBritain nor the United statesV4'.Quite
simply,there was no BNBC "actualpossession"of the islands at the time sothere was nothing
to protest.
C. The 1907Exchangeof Notes
6.47 Malaysia's Counter-Memorial criticises Indonesia for having relatively little to Say
aboutthe 1907Exchange ofNotes between the United Statesand Great ri tain^ In.tmth, the
Exchange is of limited relevance to this case. As Indonesia will presently explain, far fiom
supporting Malaysia's claim that the BNBC was administering Sipadan and Ligitan at the
time44,the evidence shows the contrary. The Exchange of Notes had nothing to do with
41
42 IM, Vol.3, Annex 101, at363.
43 MCM, para.3.23.
44 Ibid., par3.24.
Ibid.Sipadan or Ligitan. It concerned the Turtle Islands and the Mangsee Islands lying farto the
north.
6.48 With respect to the question of BNBC "administration" over the disputed islands,
Malaysia engages .ina classic bootstrap argument. -Malaysiahas beenunable to produce any
evidence that prior to 1907the BNBC had carried out administrative activities onSipadan or
Ligitan. Malaysia thus seizes on the 1907Exchange and its annexed map to suggest that the
Exchange itself is evidence of such administration. But the 1907Exchange did not indicate
that the United States considered itself tobe the rightfulowner of Sipadan and Ligitan.
6.49 Proof of which islands the United States and Great Britain considered were coveredby
the administrative arrangements of 1907 is provided by correspondence between the two
countries exchanged in connection withthe conclusion of the subsequent 1930 Convention.
The 1907agreement recognised that a forma1delimitationof each side'sterritorial possessions
was to be deferred for subsequent consideration. On 11 April 1927,the division of Far
Eastern Affairs of the State Department sent a letter to the Secretary of State in which the
United States'viewof the scope ofthe 1907 Exchangewas made clear. Theletter stated:
"In 1907 a temporary agreement was reached betweenthe United States and Great
Britain by which the administration of certain islands (known as the Turtle Islands
Group) located near the north coast of British North Borneo, was left in the hands of
British North Borneo Company until the respective governments,by treaty, delimited
the boundaries between their respective domains, or until the expiration of one year
from the date of a notice of termination. This agreementwas madebecause the United
States was not at the time of its conclusion in a position to administer the islands in
6.50 Enclosed withthis letterwas a similarletter from Frank Kelloggto the President of the
United tat tes^ B^.th letters made it clear thatthe islands which had been the subject of the
1907 Agreement were the Turtle Islands which werethen being administered by the BNBC.
Nowhere was there any suggestionthatthe 1907Agreement concernedSipadanand Ligitan.
45 Annex13to thisReply.Emphasisadded.
46 Ibid.6.51 Great Britain adhered to the same view. This can be seen from the letter sent by the
British Ambassador in Washington to the Secretaryof State on 2 January 1930 forrningpart
of the Exchange of Notes regardingthe continued administration of the islands in question by
the BNBC. It provided:
"By the convention concluded between the President of the United States of America
and His Britannic Majesty for the purpose of delimiting the boundary between the
Philippine Archipelago on the one hand and the State of North Borneo which is under
British protection on the other hand, the sovereignty over certain islands which have
for many years past been administeredbythe British North BorneoCompany has been
definitely recognised as pertaining to the United States of America. These islands
whichformed the subjectof the arrangement effectedby an exchangeofnotes between
His Majesty'sGovernment and the United StatesGovernment onthe 3rdand loi" July
1907,are -
1. Sibaung, Boaan, Lihiman, Langaan, Great Bakkungaan, Taganak, and
Baguan inthe group of islands known as the Turtle Islands.
2. The Mangsee ~slands"~~.
6.52 Thus, there was agreementby both U.S. and British officials that the subject matter of
the 1907 Exchange concerned the Turtle Islands and the Mangsee Islands. Sipadan and
Ligitan were not mentioned because there had beenno British administration of these islands
in 1907 nor any British or American claims to them. The fact that the red line appearing on
the map attached to the 1907 Exchange extended to the 4" N parallel of latitude was purely
arbitrary and undoubtedly put forward for convenience only. But it in no way created a
British administration over the islands that are in dispute in this case where none previously
existed. And it certainly did not show, as Malaysia asserts, "that the affected islands were
administered by the BNBc"~~. Not only was the Exchange not published at the time it was
entered into, but even if it had been, there would have been no need for a Dutch protest
because it did not concerneither Sipadanor Ligitan. As has been seen, the Dutch in any event
sent a naval vesse1to Sipadan and Ligitan in 1921in a physical display of Dutch sovereignty
overthe i~lands~~.
47
48 Annex20 to this Reply. Emphasisadded.
49 MCM, para. 3.24.
See ChapterIIISection1,above. D. The Effects ofthe 1930Anglo-AmericanConvention
6.53 The final link in Malaysia's claimedchain of title is the 1930 Convention. Malaysia
treats this Convention as if-itaffecteda cession ofipadanand Ligitan by the United Statesto
Great Britain. But none of the evidence produced in this case even so much as hints that the
United States considered that it was ceding anything to Great Britain. Rather, the
documentary record shows inthe clearest possible terrns that the United States only deemed
that it had title to islands lying morethan three marine leagues from the North Borneo coastin
areas lying to the north of Sibutu and its imrnediate dependencies. As a result, the
negotiations betweenthe United States and Great Britain leading up to the conclusion of the
1930Convention focused solelyonthe status of the Turtle Islands and the Mangsee Islands.
6.54 Malaysia is forcedto concede,as it must, thatthe southern limits ofthe boundary fixed
bythe 1930Convention lay wellto the north ofthe 4" 10'N latitude andthus well to the north
of Sipadan and ~i~itan~'.However, Malaysia invitesthe Courtto read the Convention against
the backgroundofthe 1903map andthe 1907 Exchangeof~otes''.
6.55 Indonesia has already explainedhow Malaysia's continued reliance onthe 1903 map,
as well as the 1907 Exchange, is misplaced. The 1903 map was withdrawn and replacedby
maps which either showed no boundaryat al1encompassing Sipadan and Ligitan or which
showed a line which depicted the extent of U.S. territories as lying well to the north. For
example, as late as 1926 one may find in the United States records a copy of a map -
Hydrographic Office Chart No. 529 - which placed the limit of U.S. possessions along a red
line falling three marine leagues from the North Borneo coast wellto the north of the two
disputed islands. A copy ofthis map appears facingpage 120. Moreover,the 1907Exchange
of Notes had nothing to do with Sipadan and Ligitan as has already been explained. Coupled
with the State Department's earlier view thatthe southwesternmost limit of the possessions
acquired from Spain only went as far as Sibutu and its dependencies, this explains
50 MCM, para.3.25.
51
Ibid.why the southwestern limits of the boundary established by the 1930 Convention did not
extend to Sipadan and Ligitan.
6.56 Malaysia goes on to argue that the reason why the boundary line stopped at this point
was "becausethere were no islandsthe United Stateswished to retain which fell south or west
of the 1930 lir~e"~~.There is no evidence to support this remarkable assertion. Nowhere,
either in the Convention itself or in the travauxpréparatoires, is there any indication that the
United States consideredthat there were islandsto which it had a valid claim which it did not
wish to retain. It was not as if the 1930Conventionwas a compromise with the United States
acquiring the Turtle and Mangsee Islands in return for Sipadan and Ligitan. The evidence
shows that the British Government never doubted for a moment the right of the United States
to the Turtle and Mangsee Islands. The only question that the British Government put
fonvard on behalf of the BNBC was whether the BNBC could continue to administer certain
islands in the Turtle Islandsgroup.
6.57 The 1907 arrangement continued to the satisfaction of both the British and U.S.
Governments until around 1922, when the U.S. Government, under pressure from the
increasingly nationalistic Philippines, indicated that it wished to assume administration over
some islands falling to the west of the "Durandli~~e"~~ S.enator Frank B. Kellogg of the U.S.
Department of State later wrote to Sir Esme Howard, the British Ambassador to the United
Stateson 21April 1925:
"Since it is the desire ofthis Governmentto assume at present administration over only
the seven islands mentioned in Mr. Lockhart'sletter of September 20, 1922, to Mr.
Peterson, namely: Boaan, Lihiman, Langaan, Great Bakkungaan, Little Bakkungaan,
Taganac and Baguan [i.e. the Turtle Islands Group] it would seem preferable to
provide for this by a modificationofthe existing agreement [...I"~~.
52 Ibid.
53 SeeForeignOffice Memorandum dated 13July 1929at Annex 16,which States:
"Nodevelopments of anyparticular interestoccurred in this matter until 1922,a year inwhichthere was
considerable agitation for Philippine independence, whichwas accompanied by ae on the part of
the Filipinos for the return to the United States, or rather to Philippine jurisdiction, of certain of the
islands in disputeIn the same year the United States Government pressed diplomatically for the
54 surrender of sevenislands, known localltheTurtle Islandsgroup".
Annex 12to this Reply.6.58 The preferable solution to the issue subsequently appeared to be to settle a final
boundary agreement. Hence Senator Frank B. Kellogg's letter to Sir Esme Howard of
20 August 1927:
"[..] it would.be~preferablethat an agreementbe concluded between the United States
and GreatBritain definitelydeterminingthe boundary[. ..]
The United States is prepared to agree that the boundary between the Philippine
Archipelago and British North Borneo be as indicated in red ink on the accompanying
charts (Nos. 4707 and 4720, published by the United States and Geodetic
Survey) [...]"".
A copyof Chart4707 is at Annex 17to this Reply (Chart4720 dealt with the northern sector).
It can be seen fi-omthe chart that Sipadan and Ligitan, which were not even covered by the
chart, were not included within the terms of reference of this agreement for the simple reason
that the United Statesdid not considerthat they fell within its possessions.
6.59 As to the position of the boundary line proposed in the 1927 letter, Senator Kellogg
explained as follows:
"It will be observed that the boundary nowproposed by the United States lies farther
from Borneo than does the 'DurandLind, except in the vicinity of the Turtle Islands,
and in the portion ofthe 119'~meridianwherethe two lines coincide.
With respect to the statement in your note under reference, that the British North
Borneo Company has a good claim to Great Bakkungaan and Little Bakkungaan
Islands, it will be observed that the boundary above described places Little
Bakkungaan Island on the British side of the line. With respect to the desire of your
Government to obtain for the British North Borneo Company a lease of an area on
Taganac Island and certain privileges to insure the operation of the lighthouse now
operated by the Company on that island, you are informed that the Philippine
Governrnent is prepared to take over and maintain the lighthouse, and negotiations to
that end would form part of the negotiations lookingto the conclusion of the proposed
treatyWs6.
6.60 The BNBC raised no objections to the 1927U.S. proposa157.However, it did make a
plea that the Turtle and Mangsee Islands shouldremain under the administrative control of the
55
56 Annex 14to this Reply.
57 Ibid.
See Memorandumon North Bomeo PhilippinesBoundq atAnnex 19.North Borneo Government, noting the administrative dificulties that would be faced by the
Philippines Government if the latter were to assume control over thems8. The BNBC
memorandum dealingwith this issueconcluded:
"Finally, the British .North Borneo Company .submit that. it might be possible to
persuade the United States Government to adopt a generous view of the matter and
either cede these islands to North Borneo or at any rate allow them to remain for a
further indefinite period under the jurisdiction of North Borneo; any such cession
would naturally be subject to such financial and other terms and conditions as may be
agreed".
6.61 This proposa1(that the Turtle and MangseeIslands should be ceded to Britain) was re-
stated in a letter from Governor Humphreysto the BNBC President dated 4 February 1929,
with an attachedmemorandumlisting the reasons supportingthe BNBC'sarguments9,and was
referred to in the subsequent Foreign Ofice memorandum dated 13July 1929. This
memorandum reads:
"While the British North Borneo Company agree that they had no legal title to the
Turtle Islands, they hope, for reasons which they fully explain in their memorandum,
that the United States Government would permitthe Turtle Islands to remain under the
jurisdiction of the British North Borneo Company. The Company made no offer in
their memorandum to give considerationfor this concession on the part of the United
States Government, but it is understood that they will be prepared to give some
pecuniary compensation if they are permitted to remain in possession of the Turtle
~slands"~'.
6.62 However, as explained in the letter dated 6 August 1929 from Sir Esme Howard to
Arthur Henderson M.P., the United States Government was under considerable political
pressure from the U.S. Senate and from the Philippine Government not to relinquish any
territorialpossessions in favourof British North Borneo:
"As regards the proposals in the memorandum the American representatives, while
admitting that administration of the islands was easier fiom Sandakan than fiom
Manila, took that view that cession or sale, and even lease of the islands to North
Borneowould present insurmountabledifficultiesowing to the attitude in such matters
58
59 Ibid.
60 Annex 15to thiReply.
Annex 16 to this Replyp.a198. of the United States Senate, and also, they led us to believe, to opposition on the part
of the Philippine~overnment"~'.
6.63 As a result of these "insurmountable difficulties",the 1930 Convention leftthe Turtle
and Mangsee Islands to the United States side of the boundary line, and a supplementary
Exchange of Notes was used to provide for the continued administration of the islands in
questionbythe BNBC.
6.64 The above analysis demonstrates that from as far back as 1922 the U.S. State
Department was under increasing pressure from the Philippine Government to assume
administration of islands falling within the territorial limits of the Philippines, to the
maximum extent possible, and from both the Philippine Government andthe U.S. Senate not
to cede or even lease territories that were being administeredbythe BNBC to Great Britain.
6.65 As a result of this pressure, the United States refùsed to cede, sel1or lease the Turtle
and Mangsee Islands to Britain, and consequently it is untenable for Malaysia to suggest that
the United States did in fact cede Sipadan and Ligitan to Britain (even supposing that the
United States considered that it possessed them). At no point did Great Britain make any
reference to the fact that the BNBC administered either Sipadan or Ligitan - for the simple
reason that it did not, and at no point did the United States state that it intended to cede
Sipadanand Ligitan to Britain - for the simple reason that it did not considerthe islands to be
its tocede, falling as they did beyondthe limitsofthe SuluArchipelago.
6.66 States cannot be deemed to have ceded territory to another State absent compelling
evidence to that effect. Yet the United States never once raised a claim to Sipadan or Ligitan
or suggested that it would be willing effectivelyto trade these islands for others. Indonesia
has placed in evidence, at Annexes 12-20to this Replya series of correspondence relatingto
the 1930 Convention which demonstrates that the negotiationof that Convention involved
resolving the situation regarding the Turtle Islands and the Mangsee Islands, both of which
ultimately fell on the U.S. side of the boundary established by the 1930 Convention. The
Convention did not address islands lying to the south of Sibutu and its dependencies where
the United States had no claims.
6 1
Annex 18 to this Reply, at para. 6.6.67 The Malaysian Counter-Memorial ends its discussionof the 1930 Convention by
posing a hypothetical question. If Indonesia is right, asks Malaysia, "what are the
consequences forthe 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 coast of
~orneo?"~~. The answer is straightfonvard. Sovereignty over these islands had been
uncertain before the conclusionof the 1891 Convention betweenThe Netherlands and Great
Britain. That Convention resolved the issue by allocating to The Netherlands those islands
lying south of the 4"10'N line of latitude. Islands lyingto the north of the 4"10'N line, such
as Kapalai, Dinawan and SiAmil, were allocated toGreat Britain.
Section4. Conclusion
6.68 On careful analysis, therefore,it can be seen that each of the links in Malaysia's chain
of title is broken. There is no evidence that the Sultanof Sulu enjoyed sovereignty over either
Sipadan or Ligitan. Nor is there any evidence supporting a Spanish claim of title to the
islands. Finally,the United Statesnever considered thatit was sovereign overthe two islands,
the United States claims being limited in the south to Sibutu and its dependencies. To
succeed in its claim, Malaysia bears the burden of proving that, at each step of the process,
title vested in the relevant entity, be it the Sultan of Sulu, Spain or the United States.
Malaysia has been unable to support anyof these propositions standing alone, let alone to al1
three of them. It followsthat Malaysia's claim basedon a so-called treatytitle must fail.
62
MCM, para.3.28. CHAPTERVI1
THE ABSENCEOFANYDE FACTOTITLEACQUIRED BY MALAYSIA
Section 1. Introduction
7.1 In Chapter 3 of its Counter-Memorial, Malaysia asserts its "right to the islands based
on actual administrationcombinedwith a treaty title"'. This witnesses a shifi of emphasis in
Malaysia's position2:while still alleginga title derived from a so-called "Sulu title", Malaysia
beats a cautious retreat and puts increasing emphasis on an alleged "continua1 peaceful
administration of the islands, since time immemorial and certainly since the end of the 19th
Centuryby the Sultanate of Sulu,the BNBC, Britain and~ala~sia"'.
7.2 Othenvise stated, having realised that its claim to a "chah of title" based on an
imaginary Sulu title inherited by Spain, then the United States, then Great Britain, then
Malaysia itself is indefensible, Malaysia has turned towards an entirely distinct argument
based on effectivitésand acquisitiveprescription. Such an argument is entirely incompatible
with Malaysia'smaintained allegationsthat: (i) "Thereis no suggestionthat any of the islands
off the eastCoastof Borneo were, or were ever treated as, terranul~ius and~(ii) "This is not
just the familiar questionwhich of two Stateshas shown.more evidence of administrative and
other acts affecting a particularterritory or islandV5.
7.3 Such a claim is also, as has already been explained in Indonesia'scounter-~emorial~,
quite devoid of any merit on its own. It ignores the fundamental requirements of international
law regardingacquisitionof territory in the absence ofany historicalor treaty title: the alleged
British and Malaysian practice (discussed in Section 3) lacks the required characteristics to
create a right of sovereigntyoverterritory(discussed in Section2).
1 MCM, Chapter3.
? SeeChapter IVof this Reply.
3 MCM, para.4.1.
4 Ibid.,para. 3.5.
5 Ibid., para. 3.29;the footnotereferring to the Minquiersand Ecrehoscase, Judgment,I.C.J.Reports
1953,p.47 omiîted.
6 ICM, Chapter VII. Section2. TheLegal ImpossibilityofAcquiringaDe FactoTitleby Malaysia
7.4 It is usefùl to recall the legal situation: the basic point being that no original or
subsequenttitle is vested in.Malaysia.
7.5 As regards the first issue, Indonesiahas shown in its ~ounter-~emorial' that Malaysia
has not provided any evidence either of any Sulu title relating to the disputed islands prior to
1891, or of any Sulu presence on them. Furthermore, if there had been any activities on
Ligitan or Sipadan before that date, neither of the Parties has provided any evidence of it. It
could perhaps be inferred from subsequentfacts that some Bajau Laut used to fish aroundthe
islands or collect turtle eggs on Sipadan but it should be noted that (i) other populations
coming from the east coast of Kalimantan also did so (see paragraph 6.9 of Indonesia's
Memorial) and (ii) as Indonesia has shown at length in its ~ounter-~emorial~, it cannot be
maintainedwith any convictionthat a supposedpresence of the Bajau Laut implied any "tieof
territorial so~erei~nt~"~ over the islands in favour of the Sultanate of Sulu. Moreover, it is
interesting to note that Malaysia no longer insists on the "Bajau Laut track" which was so
present in its Memorial.
7.6 It goes without saying that, absent an established title, the Sultan of Sulu cannot be
said to have ceded whatever title he did not possess, either to Spain or to the BNBC. In this
respect, the rather confüsed "chains of title" successively or jointly invoked by Malaysia do
not matter: no title, no "cession". Whether in 1851 (Treaty between Sulu and Spain), or in
1878(Dent and Overbeck grant),the Sultanof Sulu couldnot have transferred more territorial
rightsthan what he actuallypossessed.
7.7 By contrast, Indonesia has shown that the Sultanate of Boeloengan, over which The
Netherlands had exercised authority since at least 18341°,extended along the coast of Sibuko
7 Ibid.,Chapter III;see also ChapterV of this Reply.
8 ICM, paras. 3.23-3.73.
9 WesternSahara Advisory Opinion, I.C.J.Reports 1975,p. 12at p.68,para.162.
10 See IM, paras.4.46-4.71Bay up to Tawau and Batoe ~ina~at", and, in accordance with the concept of territory then
recognised in the region12,this territorial authority extended to surrounding islands (and it
must be stressed in this respect that Sipadanand Ligitan lieoff SibukoBay, not Darvel Bay).
7.8 In any event, contrary to Malaysia's assertion,it is not true that "Indonesia'sclaim to
the islands depends on its showing(a) that the Netherlands had, through Boeloengan, a valid
claim to the islands before 1891"13. As shown in Chapter 1,above, the pre-1891 situation is
not decisive: the 1891 Convention was concluded precisely with the view to solve definitely
the Anglo-Dutch territorial dispute in the area. As was recalled in the Dutch Explanatory
Memorandum, the treaty was concluded "in order to achieve a proper boundary settlement
between the Dutch territory in Borneo and that of the British protectorate"14. And it did - as
is explained in Chapter 1 of this Reply, the 1891 Convention established the course of the
dividing line between the Dutch and Britishpossessions in Borneo. As such, it constitutes an
indisputable title in favour of each Party to territories lying on each side of the agreed line,
"that is, a document endowed by international law with intrinsic legal force for establishing
territorial rights"15. It is both the "actualsource"of the respective rights of the Parties and the
evidenceof the existence of such territorial rights16. Since both Ligitan and Sipadan lie south
of the dividing line established by the Convention, they have clearly been allocated to The
Netherlands, to which Indonesia isthe successor.
7.9 Therefore,the question is twofold: seen fiom an Indonesianperspective, it is simplya
matter of consolidation of title; but as far as Malaysia is concerned, the question is not of
consolidation of title, but of acquisition of territory. Whilst, in the first situation effectivités,
that is "the conduct of the administrative authorities as proof of the effective exercise of
territorial jurisdiction in the region"", have a purely confirmatory role, in the second
II See, forexample,paras.5.20,5.24 and5.36 of this Reply,above.
12 See IM,paras.4.6-4.18.
13 MCM, para.3.17.
14 IM,Vol. 3, Annex77, atp. 123.
15 Frontier Dispute,Judgment, I.C.J. Reports 1986,p. 554 atp. 582, para.54.
16
See ibid, at p. 564, para. 18; see also Land, Island and Maritime Frontier Dispute (El
17 Salvador/Honduras:NicaraguaIntervening;),Judgment, I.C.J.Reports 1992,p. 351atp. 388, para.45.
Frontier Dispute, Judgment, I.C.J. Reports 1986, p. 55atp. 586, para.63; see also Land Island and
Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), Judgment,I.C.J. Reports
1992,p.351 atp. 389, para.45.hypothesis a complete shift of territorial title fi-omone party (here The Netherlands, then
Indonesia) to the other (here, Great Britain,then Malaysia) would be implied. Such a shift
cannot be lightly presumed and imposesa much higher burden of proof as Indonesia has
shown in its ~ounter-~emorial'~.
7.10 Relatedto this is the delicate issueof acquisitive prescription. As Indonesia also noted
in its Counter-Memorial, it is highly debatable whether such a concept is generally accepted
under international lawI9 and Malaysia itself in its Memorial expressly declared thatit
dismissed such an argument2'. However, in its Counter-Memorial, Malaysia seems to go
back on this imprudent position and makes the argument thatThe Netherlands and Indonesia
acquiesced in "British and Malaysian administrationof the islands in the period from 1891
~nwards"~~.
7.11 In any case, for Malaysia to acquire a title by means of its alleged effectivitéswould
suppose, according to the requirements acknowledged byNamibia in the Kasikili/Sedudu
Island case,that the following conditions are fulfilled:
"1. The possessionofthe [. ..] state must beexercised atitre de souverain.
2.Thepossession mustbe peaceful and uninterrupted.
3. The possession mustbe public.
4. The possession must endure for acertain length of time1v22.
7.12 Moreover, the Court, showed some reluctancein applying the doctrine of acquisitive
prescription23and seems to have added a fifth condition to the introduction of the doctrine
into international law:namely that the claim fi-omthe State claiming title be accepted by the
other ta te'^T his requirement seemsto be accepted by~ala~sia~'.
ICM, paras. 7.3-7.14.
Ibid.para. 7.5 anfn.6.
See MM, para. 6.3.
MCM, para. 3.17, h. 52.
Kasikili/Sedudu Island (Botswana/NamibiJudgment ,.CJ.,13December 1999,para. 94.
Ibid., paras. 96 and 97.
See MCM, para. 3.17,h. 52; see also, para. 7.10, above. These strict requirements are necessary in order to maintain legal security and the
7.13
territorial integrity of States. They are farom satisfiedin the present case.
Section3. ThePractice AllegedbyMalaysia Lacksthe Required Characteristics
7.14 As Indonesia has already re~alled~~M , alaysia has not shown evidence of any activity
of Sulu specifically relating to the disputed islands or even to the adjacent coast at any time
before the 1891Convention.
7.15 As regards the colonial and post-independence periods, Indonesia does not deny that
Malaysia can invoke some scanty examples of its or its predecessors' activitieson or relating
to the islands. However, they did not commence before 1917 and they do not constitute the
clear pattern of activitiesà titre de souverain required by international law for acquisitive
prescription or, even less, for the transfer of a territorial title. This holds true for:
the so-called "Britishadministrationof the islands";
the maritime claims inthe area; and
the maps invoked by Malaysia.
A. The So-Called "BritishAdministrationof the Islands"
7.16 The acts of administration invokedby Malaysia on the islands are the following:
the Turtle Preservation Ordinance of 1 June 191727;
the establishment of a bird sanctuaryin 1933~';and
the construction and maintenanceof lighthouses on the islands inthe
early 1960's~~.
26 See, forexample,paras. 5.4-5.13and 5.25-5.36,above.
27
28 MCM,paras. 4.19-4.22.
79 Ibid., para. 4.23.
MM,paras. 6.25-6.29MCM, para. 4.24.Whethertaken in isolationor globally,these effectivitésarenot of such a nature as to transfer
the territorialtitle acquired by TheNetherlandsthen Indonesiaunder the 1891Conventionto
Great BritainMalaysia.
7.17 In respect of the collection of turtle eggs on Sipadan, Malaysia's Counter-Memorial
does not add any new elements to those considered in its Memorial. Indonesia has answered
them in some detail in its ~ounter-~emorial~', to which it would respectfullyrefer the Court.
Indonesia has shownthat:
the Bajau from Dinawan or theSempornaregion were not the only
people to fish aroundthe islands andcollectturtle eggs on Sipadan;
the British rules were of a more persona1than territorial nature; and
giventhe particular nature of the area, localpeople and administrators
were probably confused about theexact limits of respectiveterritorial
sovereigntyoverthe small uninhabited islands inthe region.
7.18 Moreover,Indonesiahas shownthat Dutchvesselswere cruising aroundthe islands, as
shown,for example by the 1910log-book ofHNLMS ~oetei~'.
7.19 Indeed, Malaysia now alleges that "The Netherlands authorities did not react to the
duly published ~rdinance"~~. In this regard, it rnust be recalled that the said Ordinance was
published, at least in 1919, in the North Borneo OfJicialGazette. This may make interesting
reading, but it can be easily understood that it was not a daily activity of Dutch administrators.
Moreover,they had no reasonto react sincethe Ordinanceonly preservedtraditional activities
on the island and since fishermen and turtle egg collectors fiom Indonesia did not face "any
problemsfrom anybody" intheir traditional a~tivities~~.
30 ICM, paras.7.15-7.35.
31 See ICM, para.7.47.
j2 MCM,para.4.22.
33 See ICM,para.7.28.7.20 In any case, it must be recalled that the 1921 visit of the Dutch destroyer HNLMS
Lynxto the area showsthat the Dutch had a clear convictionthat Ligitan and Sipadan (and not
islands lyingnorth of the 4"1O'N parallel) were their~~~.This contrastswith the very abstract
"effectivités"invoked by Malaysia: on the one hand, we have two isolated acts of legislation;
on the other, Indonesia has-referredto concrete activitiesmanifested by the physical presence
ofthe Dutch navy, as witnessed by the Lynxincident and other navalpatrols35.
7.21 It is alsosignificant that Malaysia has failed to produce any actual records of British
administration of the islands, even though records were sure to have been ,keptand Malaysia
(and not Indonesia) is well-positionedto have easy access to them. For example, in respect of
"the islands which, though on the Philippines side of the boundary [would] continue to be
administered by the [BNBC]", the Resident at Sandakan and Kudat was instructed by the
BNBC to keep records in respect of "direct revenue derivedfiom these islands", "land affairs"
and "any administrative action of particular importance"36. It would clearly follow that
similarrecords would have been kept inrespect of the islands falling on the British side ofthe
boundary. However, none has been produced in respect ofSipadan or Ligitan, at least prior to
1917.
7.22 Similarly, records relating to the operations of the Borneo Fishing Company on Si
Ami1run by a Captain Orita indicate that Sipadan-andLigitan did not fa11within the area
administered by the BNBC. As appears in the annexed notes from the Tawau Resident's
Office dating fiom 1931 37,Captain Orita argued that two such fishing businessescould not be
supported inthe area around Si Amil, and that he shouldconsequently be grantedthe sole and
exclusive right to collect bait on Si Ami1and surrounding islands. However, his application
was to collect bait only "on the islands of Kapalai, Danawan, Si Amil, Mabul, Pulau Gaya,
Omadal, Pom Pom + ~atakin~~',i.e. including al1the islands in the area around Si Amil, but
not Sipadan and Ligitan. The clear inference from this omission would be that he did not
considerthese islands as fallingwith the BNBC'sjurisdiction.
34 SeeIM, paras. 3.72-3.74 and 6.2-6.5;ICM,para. 7.51, and paras. 3.2-3.7 ofthis Reply, above.
35 See above, paras. 3.2-3.7 and 7.18.
36 See minute paper from file North Borneo-Philippines BoundaryTreafy (168/30)from the Tawau
Resident'sOffice archives, dated28 April 1930, at Annex 21 to this Reply.
37 Annex 22 ofthis Reply.
38
Ibid., para. 11.7.23 A clear conclusion may be drawn fromthis situation:to paraphrasethe findings of the
Arbitral Tribunal in the case concerning the Laguna del Desierto between Argentina and
Chile:
"[...] given the nature .ofthe acts which [Malaysia]claims to have carried out in the
disputed sector, it would be unreasonableto infer any decisive consequences fiom the
absence of protest on the part of the [Dutch then Indonesian Governments],
particularly in view of the confidence which the latter was entitled to place in the
[territorialtitle it held fiom the 1891convention] "39.
7.24 The same holds true as regards the "notification"of a bird sanctuary in the Official
Gazette of 1 February 1933". Moreover, as Indonesia noted in its ~ounter-~emorial", the
illustrating officia1British map drawn after this "notification" clearly shows Sipadan lying
outside the Britishadministrativeboundaries4*.
7.25 As regardsthe construction and maintenance of lighthouses on Ligitan and Sipadan, it
must be recalled4'that:
both lighthouses are very lightstructuresmade of metal bars;
Malaysia is most discreet as to the dates and circumstances of their
building; and
"The operation or maintenance of lighthouses and navigational aids is
normally connected to the preservation of safe navigation, and not
normally taken as a test of s~verei~nt~"~~.
7.26 It should also be mentioned that in the region there is at least one clear precedent of
such a dissociation between the construction and maintenance of a lighthouse and territorial
sovereignty:on 11April 1927a letter was sent fromthe Division of Far Eastern Affairs of the
39
Dispute concerning the Course of the Frontier between BP 62 and Mount Fitzroy (ArgentinaKhile)
("Laguna del Desierto'yILR 113, p. 79, para.169. See also caseconcerning Kasikili/Sedudu Island,
op. cit.,ras.98-99 and EritredYemen Arbitration, Award of the Arbitral Tribunal in the First State of
the Proceedings (Territorial Sovereignty and Scope of the Disput9 October1998, pp. 84-85, para.
315,bothof whicharereferredto atICM,paras.7.26-7.27.
40 MM,Vol. 4, Annex 101.
41 ICM,para.7.37.
42
43 MM,Map13of the MapAtlas.
44 ICM, paras.7.39-7.43.
EritredYemen Arbitration, Award of the Arbitral Tribunal in the First State of the Proceedings
(Territorialovereignv and Scope ofthe Dispute), op. cip. 87atpara.328.U.S. State Department to the Secretary of State, to which a letter fiom Frank Kellogg to the
U.S. President was attached. In the latter letter Frank Kellogg referred to the fact that the
Turtle Islands, which were then de facto administered by the BNBC (see paragraph 6.49,
above), fell under U.S. sovereignty and noted that the United States "would agree (1) to
permit the British North Borneo Company to operate a lighthouse which the Company had
erected on Taganac Island, one ofthe islands of the Turtle ~rou~"~~.Even though it seems
that the matter was not followedup, this at least showsthat both Britain and the United States
sharedthe conviction that building andoperatinglighthouses is not necessarily linked to State
sovereignty. Moreover, it is Indonesia'sunderstandingthat Malaysia's case in its disputewith
Singapore concerning Pulau Pisang (Pedra Branca) is that this small island in the Singapore
Straits is under Malaysian sovereignty although the lighthouse on it was erected and is
maintained by Singapore.
7.27 In the same vein, but more generally, another fact is striking: most of the effectivités
invoked by Malaysia, and particularlythe Turtle PreservationOrdinanceof 1 June 1917relate
to the period between 1917and 1930. Given the important change in Malaysia's argument
(see Chapter IV,above),this point is of some importance.
7.28 The Parties now agree "that Sipadan and Ligitan fell outside the terms of the Sulu
grant of 1878 because they were outside the 9 nautical mile -line"46. nis means that, the
scanty activities conducted in relation to the islands by the BNBC, consequently Great
Britain, before the alleged "relinquishrnent" of sovereignty by the United States to Great
Britain, were performed without any valid title. In other words, the BNBC and Great Britain
merely (and scarcely) acted as an "occupier without a title" (occupant sans titre). Al1these
pre-1930 acts were therefore by definition not acts of an authority in exercise of rights of
sovereignty,and consequentlythey can have no legal effect to confirm or indeed to establish
title, which Malaysia concedes GreatBritain did not possess.
15
P. 3 of Frank Kellogg's letter to the U.S. President at Annex 13 to this Reply; see also the Foreign
Office Memorandum dated 13 July 1929 at Annex 16 and para. 3 of the Exchange of Notes between Sir
dated 2 January 1930 at Annex 20.or in Washington, and Mr. Stimson, the U.S. Secretary of State,
46
MCM, para. 3.6. When these few irrelevant acts are discounted (which, from a legal perspective,they
7.29
must be), the so-called "British administration" ofthe islands is reduced to virtually nothing
and is certainly incapableof creatinganyterritorial title.
B. TheIrrelevanceofMaritime Claims in the Area
7.30 In its Counter-Mernorial, Malaysia again harps on the fact that Indonesia, in
promulgating a systemof straight baselines in its interna1legislation (ActNo. 4 of 1960),did
not use Sipadan or Ligitan as basepoints4'. Malaysia even goes so far as to try to elevate this
alleged "practice" on the part of Indonesiato an element partaking of the definition of uti
,~ossidetis~~.
7.31 Malaysia's arguments are based on a clear double standard. While Malaysia criticises
Lndonesia for not including the two islands in its original system of straight baselines,
Malaysia passes over in silencethe fact that it, too, did not use either Sipadan or Ligitan as
basepoints for its own maritime claims until well after the dispute had emerged between the
Parties in 1969.
7.32 Indonesia has hlly explained in its Memorial the circumstances in which Act No. 4
was enacted in 1960~~.Indonesia in fact neglected to use a .whole series of islands for its
archipelagic baseline claim in this legislation. A number of such islands were subsequently
recognisedby Malaysia to fa11under Indonesian sovereignty and as appropriate basepoints.
7.33 As for Malaysia's own conduct, it will be recalled that, prior to the negotiations
between the Parties in September 1969 during which Malaysia laid claim to Sipadan and
Ligitan for the first time, Malaysia had itself enacted legislation governing its territorialsea
and contiguous zone. This was Ordinance No. 7 of 2 August 1969, a document which
surprisingly Malaysia has not seen fit to annexto its writtenpleadings50.
57 MM, paras. 4.25-4.3 1.
48 Ibid.,para. 4.25.
49 IM, paras. 8.10-8.12 and see the affidavit prepared by Admiral Sumardiman on this issue (IM, Vol. 5,
Annex B).
50 A copy of this law may be found at IM, Vol. 4, Annex 137.7.34
Article 3 of Ordinance No. 7 established the breadth of Malaysia's territorial sea as
twelve nautical miles. There was no suggestion that such a territorial sea applied to the
islands of Sipadan or Ligitan. Instead, Article 5 of the law stipulatedthat "[slo soon hereafter
as may be possible" Malaysia would issue a large-scale map indicatingthe low-water mark of
its coast, its baselines and the outer limits of its territorial waters. Article 5 went on to
provide that a copy of such map would be published in theMalaysian Gazette.
7.35 No such map was published at that time. Indeed, it was not until 1979,ten years after
this dispute had arisen, that Malaysia issued a map which, for the first time, included Sipadan
and Ligitan within Malaysia's maritime claims. Prior to 1979, Malaysia's maps had
repeatedly depictedthe 4" 10'N line extendingeast of the Island of Sebatik as the limit of its
jurisdiction.
7.36 The 1979map was promptly protestedby Indonesia not simply as an encroachment on
Indonesia'sterritory and sovereignrights, but also as a fundamentalviolation of the status quo
arrangement agreed between the Parties during their 1969 negotiations5'. Indonesia has
already comrnented on the fact that a fundamental and self-serving change in one party's
officia1 cartography after a dispute has emerged constitutes a compelling ground for
disregarding such subsequentpractice52.
7.37 Itcan thus be seen that neither Indonesia's ActNo. 4 nor Malaysia's OrdinanceNo. 7
have any real bearing on the case. What is relevant, on the other hand, is the pattern of
conduct engaged in by both Parties before the dispute emerged - and by Malaysia in the ten
year period after the dispute had arisen - which consistently treated the 4" 10'N line as a
dividing line extending out to seato the north of the islands. This conduct has been reviewed
in Chapter III above.
51 In contract to Malaysia's self-serving activities with respect to the disputed islands, Indonesia has
scrupulouslyrespectedthsfatuqsuo agreement.
52 IM,paras. 8.59-8.69. C. TheMaps Invoked by Malaysia
7.38 In its Memorial and Counter-MemorialMalaysiahas invoked a number of maps which
it claims support its position.
7.39 Indonesia has already commented fully on the maps relied upon by Malaysia in its
Memorial: see paragraphs 7.70 to 7.93 and the Map Annex of Indonesia's Counter-Memorial.
As regards the further maps submittedby Malaysia with its Counter-Memorial, Indonesia has
commented on them individually at the Map Annex attached to this Reply. Suffice it at this
stage to posit a few general conclusions regarding the map evidence invoked by Malaysia in
these proceedings in alleged support of its position.
7.40 Firstly, the map evidence submitted by Malaysia is characterised by significant
omissions. Thus, whereas Indonesia has been able to point to maps that clearly show that the
parties to the 1891 Convention intended that the agreed line should extend offshore5',
Malaysia has provided no evidence to the contrary. This conclusion is fully supported by the
Dutch Explanatory Memorandum Map which was known to and acquiesced in by the
~ritish'~,providing strong evidence that it was the contemporaneous intention of both Dutch
and British parties to the 1891Conventionthat the 4" 10' N lins should continue eastwards of
Sebatik.
7.41 Second, Indonesia has assembled a number of maps prepared by Edward Stanford,the
BNBC officia1cartographer, on which a red dotted line was plotted alongthe 4" 10'N parallel
after, but not before, 1891,reflectingthe clear understandingon the part ofthe BNBC that the
Convention line represented the limits of itsurisdiction. Malaysia has adduced no maps that
demonstrate the contrary. Malaysia has adduced some maps on which no offshore boundary
is indicated (for example the Dutch 1913 map of the Southem and Eastern Division of
53
54 See IM, paras. 5.20 and 5.23(a); ICM,paras. 5.70 etseq.
Seeparas. 2.30-2.32,above.~orneo~~,the 1913 Dutch map of the Administrative Structureof the Southern and Eastern
Borneo es id en c ae^ ^he 1906 Stanfordmap57).However, ifthese maps are considered in
any detail it is readily apparentthat the maps were only intendedto depict boundaries on the
mainland of Borneo. This is especially true with maps prepared by the Netherlands East
Indies Topographical Office where standard practicewas not to depict offshore boundary
lines.
7.42 As regards the other maps adduced by Malaysia, dating from the later colonial and
post-colonial periods, they are discussed individuallyin the Map Annexes to Indonesia's
Counter-Memorial and this Reply. In this section it needs only to be recalled that, as
explained elsewhere, these maps are contradictory and support neitherthe alleged Spain-
United States-Great Britain chainof title58,nor Malaysia's assertionthat the islands have been
continually administered by Malaysia or its predecessors intitle since the end of the 19th
century (or indeed before).
7.43 Malaysia places great emphasis on the map attached to the 1915 Convention.
However, as explained at paragraphs 2.42-2.47 above, neither the Convention, the map
attached to it, or the 1913 Commission had any bearingwith regard to the boundary east of
Sebatik Island.
7.44 Malaysia appears to contend that a number of maps support its position for the simple
reason that no offshore line is depictedon them. However, Malaysia misses the point: such
maps are inconclusive forthe simple reason thatthey do not attributethe islands lying east of
Sebatik to one party or the other; they are entirely neutral. Moreover, these maps are greatly
outweighed by the large number of maps discussed in Chapter III, on which the 4" 10'N
Convention line is consistently depictedas continuing outto sea.
7.45 To conclude, whereas the maps relied upon by Malaysiado not support either of the
central elements of its case, Indonesiahas adduced a significant body cartographical evidence
55
56 MM, Map Atlas, Map 1.
57 MCM, Insert 11.
58 MM,Map Atlas, Map 6.
In respect of the U.S. H.O. Chart 2117,so heavilyrelied upon byMalaysia, which was infact expressly
withdrawnupon the Secretaryof State'sinstructions, seeparas.6.28-6.39, above.which demonstratesthat before, during and afier the conclusion of the 1891 Convention, the
parties to the Convention clearly intended thatthe 4" 10'N Convention line should continue
offshore, and that this understanding has been consistently reflected in subsequent maps
prepared byboth sidesthroughoutthe 20th century. SUBMISSIONS
On the basis of the considerationsset outin this Reply,the Govement of the Republicof
Indonesia requests the Court toadjudgeand declarethat:
sovereignty overPulau Ligitan belongs tothe Republic of Indonesia;and
(a)
(b) sovereignty overPulau Sipadanbelongs to the Republic of Indonesia.
..............................
Dr. N. Hassan Wirajuda
Agent ofthe Republic of Indonesia MAPANNEX
COMMENTS ONMAPSSUBMITTEDWITH MALAYSIA'S
COUNTER-MEMORIAL
1. In the Map Annex to Indonesia'sCounter-Mernorial,the maps submitted by Malaysia
with its Memorial were discussed individually. Malaysiahas since submitted a number of
further maps, the relevance of which Indonesia will rebuthere.
Section1. Discussion of Individual Maps
A. SurveyMap of NetherlandsEastIndiesArchipelago(1897-1904),Topographical
Bureauat~atavia'
2. With regard to this map, Malaysia states, that "the detail on the map is sufficiently
clear to show the land boundary coming in from the west to 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 ofebatik are
sandbanks and reefs. The map carries no suggestion of the existence of any Dutch claim to
sovereigntyover any islands east of sebatik"'.
3. However, upon close examinationof the map annexed by Malaysia in Volume 2 of its
Counter-Memorial(the colouring of the extract at Insert 10is somewhat distorted), it can be
seen that the red boundary line does not terminate at the east coast of Sebatik, but continues
seaward, gradually merging into the orange line that continues through the Celebes Sea.
Although it is unclear fiom the map whether the linefallsto the north or south of Sipadan and
Ligitan, it is clear that it was understood that the boundary line which divided Sebatik Island
shouldcontinueeastwardsout to seabeyondthe eastern limit of the island.
I MCM, para. 5.13, Insert 10and Vol. 2, Map 1.
1 Ibid .ara.5.13. B. 1905 and 1915 NauticalChartsofthe East Coastof ~orneo~
4. Malaysia has hrther annexed two nautical charts of the east coast of Bomeo,
apparentlyincorporating-informationgathered ina surveybythe Dutch ship,the Macasser.
5. As stated in Indonesia's~ounter-~emorial~, there is clear authority for the position
that nautical charts are generally preparedfor shippingpurposes only, and that any boundaries
indicated are to be accorded no significance. The only possible significanceof these charts is
that they appear to confirm that Dutch ships (the Macasser in particular) did carry out
surveying operations in the area around Sipadan and Ligitan, which attracted no protest from
the British.
C. MapAccompanying GovernmentEast Indies1913Forma1Decisionon the
Administrative Structureofthe Southern and Eastern Borneo es id en ce'
6. This map shows what appears to be a boundary line, marked in red, extending along
the 4"10'N parallel across Sebatik Island until the eastern terminus (no legend is marked on
the extract reproduced by Malaysia). The islandsof Sipadanand Ligitan arenot marked.
7. However, it should be noted that a number of other islands were also not marked on
this map, for example Pulau Pandjang, Pulau Maratoea andPulau ~akaban~,islands lying off
the Batoe headland in an area covered by the map and which were indisputably Dutch. The
map is consequentlyquite inconclusive as regards sovereignty over anyof the Dutch islands.
3
4 Ibidp.ara.5.14and Vol.2,Maps2 and 3.
ICM, MapAnnex,paras. A.4-A.5.
5 MCM,para. 5.15and Inser11.
6 These islandsaremarkedonthe 1913NetherlandsIndiesmap atMM,Map Atlas,Map 1 D. Sheet NA-50, "OostBorneo"compiled and printedby the TopografischeDienst,
Bataviain 1935'
8. Malaysia considers the ."particular significance" of .this rnap being that part of the
mainland of Dutch Borneo is depicted beyond a "border break" at the top of the page, but a
similar break had not beenaddedto includethe islandsof Sipadan and Ligitan.
9. Malaysia states that that the "border break" had been added "in order to complete the
coverage of Dutch territorywithout publishingthe next adjacent sheet to the north". No basis
for this speculative statement is given - the reasoning is entirely self-serving. The only
relevant point is that the area in which Ligitan and Sipadan fell was not included within the
page fiame. The rnap cannot be regarded as conclusive as to territories not covered by its
scope.
E. Map 25of Atlas of the Tropical Netherlands Prepared by the Royal Geographical
Societyof TheNetherlands with the Topographical Service ot fhe Netherlands East
Indies,published in1938~
10. On this rnap an insert of the town of Balikpapan has been imposed over the area off
Semporna in which Sipadan and Ligitan lie. Malaysia seems to infer that this has been done
intentionally as an indication that the islands were not regarded as Dutch. However, this is
pure conjecture, the relevant point being that the rnap does not show the area including the
islands in question. Indonesia further points out that other small Dutch islands are not shown
on the map, e.g. Pulau Raboe Raboe, Pulau Derawanand others lying off the Batoe headland,
The failureto include small islandswithinthe scope of the rnap can thus have no bearing as to
their sovereignty.
7 MCM,para. 5.16,Insert9andVol. 2, Map 5.
8 Ibid.,para. 5.17,Insert 12andVol. 2, Map 6. F. Sheet Noord (North) B-50, "NorthBorneo", Produce bythe Topografische
Dienst, Bataviain 19419
11. Malaysia's main point ,regarding this map is that since Sipadan and Ligitan are
followed by the letter "1"(for "island"),and not preceded by the letter "Pu(for "Pulau"), they
are being designatedas British ratherthan Dutch.
12. This flimsy reasoning is unsupportedby any legend, andis undermined bythe fact that
Sebatik is also preceded by the letter "P"even though half of it wasBritish. Indonesia would
also point out that these terms have been used inconsistently elsewhere, such as on the
Stanford maps discussed in Chapter IV, where the islands lying off the Dutch coast are
altematelydesignated"Island" and "Pulo".
13. It should also be pointed out that no indication for the source of this map has been
given. It was prepared during the Second World War, shortlybefore the Japanese occupation
of Indonesia. Given its secret status and the wartimecircumstancesof its production, it would
be inappropriateto draw any conclusionsregarding sovereignty fiom it.
. .- --
G. Map "KalimantanUtara",fromthe International Mapof the WorldSeries,
Jakarta, 1965"
14. Malaysia notes that this map was a copy of the 1941 map, discussed above, with the
salient difference being that the border across Sebatik has been extended out to sea, although
not as far as Sipadanand Ligitan.
15. However, Malaysiafails to acknowledgethe significanceof this line; it clearlyreflects
an understanding that the boundary line extended seawards along the 4" 10'N parallel. It
should also be noted that the border between the Philippines and Sabah is similarly only
depicted bya broken line.
9 Ibid., para. 5.18, Inseri 13and Vol. 2, Map 7.
O
Ibid.para. 5.26,Inseri 14and Vol. 2, Map 8. H. 1968Edition of "Kalimantan u tara""
16. This map, also fromthe International Map of the World Series, is almost identical to
the 1965rnapof "Kalimantan Utara", discussed above. Again, the important point of the rnap
is that it shows the border .betweenMalaysia and Indonesia extending seawards along the
4"10'N parallel.
17. This is confirmed by the General Map of the area depicted next to the legend (at
Map 9, not reproduced by Malaysia in Insert 15). On this map, the seaward boundary is
indicatedby a continuous line extending well tothe east of the area encompassingthe islands.
Although the scale of this rnap is far too small to indicate the islands, this line shows quite
clearly an understanding that the boundary between Indonesia and Malaysia extended
eastwards from SebatikIsland.
1. 1976Edition of Sheet NB 50, "Bandar Seri Begawan", Printed in 197712
18. Malaysia focuses on the extract of this map, prepared after this dispute crystallised,
which it has reproduced asInsert 16 on which the offshore boundary line between Indonesia
and Malaysiais not depicted.
19. However, Malaysia has ignored the smallrnap of the "Administrative Area", next to
the legend reproduced at Map 10 and not on the insert, which shows the international
boundary clearly: it is represented by a continuous line that extends seawards along an
approximation of the 4"10'N parallel from SebatikIsland well beyondthe islands in dispute.
11
IZ Ibid.para.5.27, Inserî15 andVol. 2, Map9.
Ibid.para.5.28, Inserî16andVol. 2, Map10. J. "SibatikLand Systems and Land Suitability", Produced Jointlyby U.K. and
Indonesian Land Evaluation Authoritiesin 198713
20. Malaysia then exhibits a map, drawn up well after this dispute crystallised foruse in
land systems and suitability analysis, which bears the disclaimer, "This rnap must not be
consideredan authority onthe delineationof international and other boundaries".
21. The map, which is of a limited part of north-eastBorneo, does not appear to extend as
far eastward as Sipadan and Ligitan, which are not marked. However,the rnap does show the
international boundary line extending eastwards fiom Sebatik Island along the 4" 10IN
parallel. Malaysiaprovides no explanation for this line. It would clearly seem to reflect an
understanding thatthe 4" 10'N boundary adoptedinthe 1891Convention extended outto sea.
K. Mapof Kalimantan,199214
22. Finally, Malaysia has introduced a commerciallyproduced map, dating from wellafter
the crystallisation of this dispute, on which a line is drawn continuing eastwards fromSebatik
Island, although following a coursethat appearsto lie slightlysouth ofthe 4" 10'N parallel.
23. The rnap clearly was not intended to be relied upon for geographical accuracy - a
number of small islands are not marked (includingSipadan and Ligitan), and no indication is
given for the position of the red line. However, thernap gives the clear impression that some
sort of boundary line ran eastwards from Sebatik Island. The only possible explanation for
this line is that it approximated to that adopted in the 1891 Convention, as is marked on
numerous other maps.
li Ibid para. 5.29 and Vol. 2,Map 11.
14 Ibid para. 5.30,Insert 17and Vol. 2, Map 12. Section2. Conclusions
24. In the body of this Reply, Indonesia has discussed the significance of the maps
submitted in the course of -these proceedings which support .hdonesiats position'5. As
Indonesiahas shown,there is a substantialbody of map evidence,whether dating from around
the time of the 1891 Convention or subsequently in the colonial and post-colonial periods
which shows clearly that both Parties and their predecessors in title have consistently
understood that the 4" 10'N line agreed upon the 1891 Convention extended out to sea,
thereby serving as a line of allocation in respect ofSipadan and Ligitan (and other islands in
the area).
25. To the contrary, the maps relied upon by Malaysia in support of its position are
inconclusive. In respect of those maps submitted with Malaysia'sMemorial, Indonesia refers
to the comments contained in the Map Annex attachedto its Counter-Memorial. As regards
the further maps submitted with Malaysia's Counter-Memorial,as has been shown inthis Map
Annex, they are either quite inconclusive,or, in fact, support Indonesia'sposition.
15 See Chapter III, Sect5oof this Reply; see also IM, paras. 6.30-6.79, ICM, paras. 7.70-7.93 and Map
Annex. CERTIFICATION
1have the honour to certify the accuracyof the translations into English madeby
Indonesia which appear inthe Reply and its Annexes. 1 also certify that the documents
annexed aretrue copies and conformto the originaldocuments.
Dr. N. Hassan Wirajuda
Agent of the Republic of Indonesia LIST OFANNEXES
(Volume2)
Aanteekeningen onltrent de Noordoostkust van Borneo (Notes conceming the North-
East Coastof Bomeo) by H.von Dewall, from Tijdschrift wor lndische Tacri-,Land- en
Voikenkunde, Deel IV, Nieuwe Serie, Deel 1, 1855, pages 423-427, with English
translation.
Letter from Sir Rutherford Alcock, British NorthBorneo Company to Sir Julian
Pauncefote, Foreign Officedated 11January 1884,withenclosures.
Manuscript copy of despatch from Sir Horace Rumbold to the Marquis of Salisbury,
dated 26 January 1892,with receiptslip.
British AdmiraltyPilot forthe Eastem Archipelago, 2ndEdition, 1902.
Letter from John Hay, Department of State to the Secretary of the Navy dated
3 April 1903, withendorsements.
Letter from Major E.R. Hills, Acting Assistant Adjutant General, War Department to
the Commanding General, Divisionof the Philippines dated 12May 1903.
Telegraphic note from Govemor Birch to the British North Bomeo Company dated
22 June 1903.
Letter from Robert Shaw Oliver, Acting Secretaryof War to the Secretaryof State dated
23 [20]October 1903.
Letter from William M. Moody, Secretary, Navy Department to the Commander-in-
Chief,U.S. Asiatic Fleet dated 31December 1903.
Report from H.W.H Bunbury and G.St.V. Keddell, Commissioners, to the Government
Secretary, Sandakan dated24 February 1913.
Letter from Govemor of British North Bomeo to Secretary of the British North Bomeo
Company dated 11March 1913.
Letter from Frank Kellogg, Department of State to Sir Esme Howard dated
21 April 1925.
Letter from Division of Far Eastem Affairs, Department of State to the Secretary of
State dated11April 1927,with attachedletter from FrankKellogg to the U.S. President.
Letter from Frank Kellogg, Department of State to Sir Esme Howard dated
20 August 1927. Letter from J.L. Humphreys, Govemor, Sandakan tothe President of the British North
Borneo Companydated4 February 1929with attachedmemorandum.
Foreign Officememorandum dated13July 1929.
Copy of sectionof chart of PhilippineIslands, Southwestem Part,H.O. Chart 4707.
Letter from Sir EsmeHoward to ArthurHenderson M.P. dated 6 August 1929.
UndatedBNBC memorandum entitled 'North Bomeo-Philippines Boundary'.
Exchangeof Notes betweenSir EsmeHoward andMr. Stimson dated 2 January 1930.
Minute paper of Resident at Sandakan and Kudat on NorthBomeo - Philippines
Boundary Treaty dated 28 April1930.
Notes of Tawau Resident regarding application by Captain Orita for a permanent lease
on Si Ami1and sole right to obtain bait on certainislands off the East Coast of Borneo,
March -April 1931.
Recent diplomatic correspondenceconceming theactivitiesof oilrig Sedco 601.
Atlas front-sheet and map of Borneo from Stanford's London Atlas of Univeliscd
Geography, 1887.
Atlas front-sheet and map of Bomeo fiom Stanford's London Atlns of Uilivelis~il
Geography, 1894.
Atlas front-sheet and map of Bomeo fiom Stanford's London Atlns of Univeliscl1
Geograph-y, 1904.
Plate 19 of Dornselffen !sAtlas van Nederlandsch Oost- en West Indie, Seyffardt's
Booksellers, Amsterdam, 1894
28. MunrechteltlkeKaart Administvatie Tarakan, 1April 1939,with translation of titland
legend.
Reply of the Republic of Indonesia