Digest 8 3

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public international law

UPLAW 2009 B

“TAI-land. Without the “H”. The sexpot of Asia… based on secondary sources, of course."

This digest compilation wouldn’t have been possible without the help of Andi and Cathe.  III. Actors in International Law a. 1.

States Territorial Sovereignty

Palmas Arbitration Revisited (by H. Harry L. Roque Jr., 77 PLJ 437 (2003)) I. Introduction CONTEXT OF ARTICLE. The Phils and Indonesia have been arguing over who gets to keep the island of Palmas; Indonesia pulls a surprise sneak attack. Timeline: 23-25 Jun 1994: First-ever Senior Officials Meeting on the Delimitation of the Maritime Boundary between Indonesia and the Phils. Official representatives agree that both countries will delimit the location between 120° and 129°30° East Longitude. This includes the area in which Palmas is located. The officials agree that the following general principles shall serve as basis for negotiations: (1) The result shall be fully in keeping with international law, including the 1982 UN Convention on the Law of the Sea (UNCLOS); (2) Where applicable, the maritime boundaries shall be delimited on the basis of the median line principle; and (3) Creative options shall be used as appropriate. 9 Nov 2000: Second bilateral consultation. Discussion is only exploratory; no further agreements are forged. 20 Dec 2002: 3rd Meeting of the Philippine-Indonesian Joint Commission for Bilateral Cooperation held. Indonesia gives notice that it has enacted a new Baselines Law, which amends its law enacted in 1960, and presents a copy in Bahasa. The Philippines requests that an English version be furnished the Phil government. No other substantial topic is discussed. INDONESIA’S NEW BASELINES LAW. It uses Palmas as a base point in drawing Indonesia’s straight archipelagic baselines.1 This provision contradicts Indonesia’s commitment with the Philippine govt to delimit the area where Palmas is found only after and pursuant to the negotiations, and in keeping with UNCLOS. Before this law was passed, the two countries agreed that delimitation of their territories would be done bilaterally and in consultation with each other. This was why the 2 countries entered into delimitation talks in the first place. The passage of the law is a unilateral act and is the official expression of Indonesia’s intent to treat Palmas as Indonesian territory. It is not just an official claim to land territory, but also to the archipelagic and territorial waters representing all waters enclosed by the island’s straight baselines. The Baselines Law has not yet been deposited with the UN Sec-Gen, owing to the fact that the ICJ just recently issued a decision in the territorial dispute between Indonesia and Malaysia over the islans

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Art. 47, UNCLOS: “1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.”

of Sipadan and Ligitan, awarding both islands to Malaysia and thereby necessitating amendments to the Baselines Law. Preparatory to the passage of the law, Indonesia embarked on a modern hydrographic survey to chart its new baselines, financed with the help (approx $170 M) of the government of Norway. The Philippines has not even started its own hydrographic survey. Clearly, the date of passage of the 2002 law would be a “critical date”2 from which to gauge which of the 2 countries has a superior claim to both Palmas and the archipelagic and territorial waters surrounding it. If the new baseline coordinates drafted by Indonesia were followed, the Phils would lose not only Palmas Island but also some 15,000 sq.mi. of archipelagic and territorial waters. These are Phil territories currently defined under the Treaty of Paris. IT IS IN THE RP’S BEST INTERESTS TO MAINTAIN AUTHORITY AND CONTROL OVER THE PALMAS AREA. Reasons include: (1) Very close to the strategic axis linking the Pacific and Indean Oceans. The nearest island to Palmas is Cape San Agustin. The establishment of archipelagic sealanes between the two, under Phil sovereignty, will enable the country, possibly in cooperation with Indonesia, to monitor, control, and maintain surveillance of sensitive maritime jurisdictions. Many of the country’s major population centers, industrial zones, and the ports of Mati, Davao City, General Santos, Cotabato, Pagadian, and Zamboanga are directly accessible from the said sealanes. (2) Close to the critical spawning areas and passage highways of economically important fish, e.g. yellowfin tuna. Also, the area has been tagged as a marine ecoregion by the WWF, owing to the area’s distinct and outstanding biodiversity.

(3)

The “warm pool” of the world’s oceans is centered on Southern Mindanao, making the Davao Gulf, Sarangani and Illana bay in the Moro Gulf the most suitable sites for large-scale ocean terminal plants.3 The sheer area of maritime territory that the Phils would lose, plus the foregoing reaons, warrant a re-examination of the root of Indonesia’s claim to Palmas: the Palmas Arbitration of 1928. II. Palmas: The Island and the Arbitration

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Palmas case (see third(?) page of the digest, under “How to Settle Disputes”): “If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the claiming States possesses a title—cession, conquest, occupation, etc.—superior to that advanced by the other State. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannt be sufficient to establish the title by which TS was validly acquired at a certain moment; it must also be shown that the TS has continued to exist and did exist at the moment which, for the decision of the dispute, must be considered critical [emphasis added].” Also in Legal Status of Eastern Greenland (Denmark v Norway): “It must be borne in mind, however, that as the critical date is July 10th, 1931, it is not necessary that sovereignty over Greenland should have existed throughout the period during which the Danish Got maintains that it was in being. Even if the material submitted to the Court might be thought insufficient to establish the existence of that sovereignty during the earlier periods, this would not exclude a finding that it is sufficient to establish a valid title in the period immediately preceding the occupation.” 3 Not defined, but a footnote points to a book entitled “Power Plant Technology.” Always will B

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THE CASE, IN A NUTSHELL. The Swiss arbitrator Max Huber succinctly summarized the conflicting claim to Palmas when he said, “It lies within the boundaries of the Phils as ceded by Spain to the US in 1898 (by the Treaty of Paris).” The dispute began in 1906 when Maj. Gen. Leonard Wood, then the American Gov-Gen of the Phils., visited Palmas and discovered the Dutch flag hoisted on the island. A native who spoke Spanish allegedly informed him of “the visits of Natherlands subjects to the island.”

(8) Spain, not having control of the island at the time of cession in 1898, could not cede it to the US. Implicit in its arguments is that while Spain may have had title to the island by virtue of discovery, it had since lost and/or abandoned its title by allowing the Dutch East Indies Company to enter into contracts and agreements with native rulers who ceded their territories in favor of the company.

WHAT HUBER DOESN’T TELL US. The Americans were generally hesitant to pursue the claim. The island was small and populated by 689 “diseased and destitute inhabitants of low mentality who speak a Malay-Spanish dialect;” and the legal recourse to the claim, including recourse to arbitration, was not justified owing to the “trifling value of the island.” Nevertheless, there was a lot of publicity in 1911 over a report that Dutch authorities tore down a US flag found on the island, which got at least one US senator to ask about the veracity of the report.

MISC. FACTS. The case could not be brought to the Permanent Court of International Justice because the US was not a member of the League of Nations and, consequently, of the PCIJ. The case would have been ideally brought to the PCIJ because it involved international law. The Americans believed however that the PCIJ might be biased against the US, because the court was based at The Hague and headed by a Dutch man. Why the US considered the PCA to be more neutral, considering it is also based at The Hague, was not discussed. Max Huber was actually not the US’s first choice as Arbitrator; they wanted a certain Dr. Yoruzo Oda, or one Lord Finlay, a member of the PCIJ, or a Dr. Walter Schucking of Germany.

The US tried to prove the payment of cedula, or residence certificate taxes, by the island’s inhabitants to the Spanish Govt, as well as regular visits of Spanish naval vessels to the islands. Archives in Seville also disclosed evidence that Spain sent an expedition to the island in 1710, and that a group of Jesuit missionaries were actually sent to settle in the island, with the avowed goal of converting the natives and exercise occupation of the island on behalf of the Spanish crown. US CLAIM, IN A NUTSHELL. The US claim, summarized: (1) Palmas lies well within the demarcation of Art. 3, Treay of Paris; (2) It is approx 12 miles nearer to Mindanao than to any of the smaller islands of the Dutch Archipelago;

(3) (4) (5) (6) (7) (8)

It is well within the limits marked by the 4 May 1493 Bull of Alexander VI [the Inter Caetera]; It is well within the limits of the agreement concluded 4 July 1494 between Spain and Portugal; The union of Spain and Portugal in 1580 should remove any doubts as to the title of the Island prior to that time; The govt of Spain considered Palmas one of its oceanic possessions; Spain never relinquished control over the island except to the US; and Spain exercised sovereignty over the Phil archipelago as a whole; it was not necessary for Spain to maintain seaprate administrations over the island.

DUTCH CLAIM, IN A NUTSHELL. The alleged grounds for the Netherlands claim:

(1)

In the 17 century, Palmas was conquered by the Rajah of Tabukan, who in 1877 signed an agreement with the Dutch East Indies Company that the Tabukan territories should become the property of the company;

(2)

The possession of the Dutch East Indies Company came under the direct control of the Netherlands Govt. Since the beginning of the 19th century, the island has been under the suzerainty of the Netherlands;

(3)

The inhabitants paid taxes to the Dutch govt since the early 19th century; The island is named in contract between the Dutch govt and the Sultan of Turante; The Netherlands Govt introduced vaccination upon the island; The Netherlands authoriesi visited the island at least once a year; Spain never questioned the right of the Netherlands govt to exercise its sovereignty or to plant its flags on the island; and

(4) (5) (6) (7)

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THE DUTCH HAD THE UPPER HAND. Unlike subsequent arbitrations, probably to minimize costs, the parties stipulated that the proceedings shall be summary in nature, or limited to Memorandums and Counter-Memorandums. The stipulation had the effect of limiting the ability of each party to prove facts it was alleging. Worse, the Americans and the Dutch had a different construction of the requisite Memorandum: Consistent with modern forms of summary procedure, the Americans submitted all their arguments and evidence by way of Annexes to their Memorandum. On the other hand, the Dutch did not state the entirety of their case in their Memorandum; instead, they summarized their arguments for the first time only in their Counter-Memorandum, enabling them to dispute point by point the Americans’ arguments. Most alarming to Philip Jessup, the Dutch never attached any of their alleged documentary evidence; they merely undertook to “produce them upon request of the arbitrator.” The American panel registered its objection to the manner by which the Dutch wanted to prove their allegations, but the Dutch position was suspiciously sustained by Huber in his award. HUBER BIASED? Huber asked for further written instructions [/explanations] only from the Netherlands, asking them to explain the weakness in their arguments as pointed out in the American Counter-Memorandum. The Americans objeced, but the Arbitrator was the sole Judge of questions on procedure. A. Highlights of the Decision

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Discovery per se, as invoked by the Americans, gives rise only to an inchoate right which must be perfected through open and continuous acts evidencing effective occupation. “An inchoate title could not prevail over the continuous and peaceful display of authority by another state; for such display may prevail even over a prior, definitive title put forward by another state.” The Netherlands established effective occupation through, among others, is contract of suzerainty with the local rulers and tribesmen of the island. Inter-temporal law: Where different legal rules existed over a period of time, both the rule at the creation of the right and at the time of its exercise must be applied. As formulated by Huber, the application of inter-temporal law is the legal basis for third states (e.g. Netherlands) to acquire a better title to disputed islands on the basis of Always will B

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subsequent acts executed over a long period of time from the incipient time of discovery.

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Critical date: a judicial technique in the use of evidence and more especially the exclusion of evidence consisting of self-serving acts of parties at a stage when it was evident that a dispute existed.

JESSUP SHOWS WHY HE HAS A MOOT COURT COMPETITION NAMED AFTER HIM. He had criticisms not only on the procedural aspect of the artbitration, but also on the substantive aspects of the award. INTER-TEMPORAL LAW AS FORMULATED: NON SEQUITUR. “Assume that State A acquires Island X from State B by a Treaty of peace after a war in which A is the victor... Assume that A holds X, but without making use of it, for 200 years. At the end of that time suppose that the development of international law [sic] and that the new rule is that no territory may be acquired by a victor from a vanquished at the close of a war. Under the theory of “inter-temporal law” as expounded, it would appear that A would no longer have good title to X, but must secure a new title upon such other basis [as is] in accordance with the new rule. Such a retroactive effect of law would be highly disturbing. Every State would constantly be under the necessity of examining its title to each portion of its territory in order to determine whether a change in the law has necessitated, as it were, a reacquisition. If such a principle were to be applied to private law and private titles, the result would be chaos.” Huber’s theory was without precedent and may probably be described as a bold articulation of a new theory which until today does not seem to have been given wide acceptance. Jurisprudence abound in international law respecting acquired rights or applying the law in force at the time of the creation of the right. Thus state’s title to territory acquired as a result of conquest is not ipso facto extinguished as a result of the rise of the contemporary norm forbidding the use of force in the conduct of international relations. ARE WE TALKING ABOUT THE RIGHT ISLAND HERE? All the Dutch’s names for Palmas have also been used to refer to the Nenusa Islands, a group admittedly belonging to the Netherlands. It was possible therefore that the island being claimed by the Netherlands was not Palmas, but one of the Nenusa Islands. This was an issue of fact that should have been decided with the assistance of experts. THEORY OF CONSTRUCTIVE POSSESSION. There being a paucity of evidence of actual Spanish exercise of authority on Palmas, it was proper to take into account the fact that the island is one part of the geographical unit known as the Philippine archipelago. Jessup insisted that Spain’s title over the archipelago is clear and that in the absence of contrary evidence, it must be assumed that her occupation and control of Mindanao and other islands included Palmas. Since Spain possessed the whole, constructively, it possessed all the parts. Besides, the fact that the US did not actually submit evidence of effective occupation (e.g. collection of cedula, reports from the different Catholic sects on the island) was solely because Spain did not provide the US with such evidence. By default, therefore, the US had to argue that it was unnecessary to prove this specific fact of effective occupation. Huber not only failed to appreciate the American formulation of what would later on be the accepted international law doctrine called “constructive possession of hinterlands,” he ignored even the common definition of “archipelago” as a group of islands and waters

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forming a geographical whole.4 Thus the US and the Netherlands, to his mind, had to prove effective occupation. CONTIGUITY THEORY. The theory of contiguity was already in existence in 1928; supported with even token evidence of effective occupation, even the mere raising of the Spanish flag, it should have been enough basis for an award in the US’s favor. But Huber rejected this argument based solely on the alleged lack of a positive rule that the theory is recognized in international law. He was obviously hesitant to establish a precedent on this matter, even though he would also establish two revolutionary and precedent-setting rulings (inter-temporal law, critical date). But Venezuela, in the British Guiana Boundary Arbitration, already raised the proposition that occupation, to be effective, need not extend to every nook and corner of the territory. Examples: American and Canadian wilderness; actual occupation of only parts of Australia and New Zealand. Only 5 years after Huber’s award and Jessup’s article, the PCIJ would expressly recognize the existence of the rule which Huber declared non-existent. Eastern Greenland: Denmark’s possession of part of Greenland was held sufficient evidence of her possession of the whole disputed area. JESSUP WAS NOT ALONE. Sir Hearsh Lauterpacht, addressing the issue of contiguity: “[I]t is doubtful whether, notwithstanding the high authority of the arbitrator, it could dispose of a doctrine which has figured prominently in the practice of states... The apparent antimony of effectiveness and contiguity begins to wear thin as soon as we realize that... effectiveness need not be as complete as appears at first sight and that contiguity is not theoretical and arbitrary at first sight... As a rule, the conceptions of effectiveness and contiguity often provide no more than [a] starting point... It is effectiveness relative to the situation and to the circumstances... When that point is reached there is little to choose between contiguity and effectiveness of occupation. Contiguity in such cases may be an essential condition which gives rise to the only element of substance to such otherwise abstract occupation. In that sense contiguity is a factor more potent.” O’Connell also questioned how effective the Dutch occupation of Palmas could have been. Could it be “that effectiveness was established negatively from the absence of any competing manifestations of sovereignty, and that it was only because the Netherlands has taken more interest in the island than Spain that it was adjudged entitled [by the latter]?” B. Standing to Arbitrate CESSION AS BASIS OF US’S STANDING. The US’s standing to arbitrate, a.k.a. its personality to advance a right, was by virtue of Spain’s cession in 1898. While cession was then, and until now, recognized as a mode of acquisition of territorial sovereignty, it is subject to the limitation that one’s title is only as good as the title of one’s predecessor (Nemo dat quod non habet). Moreover, it has been the view since the time of Grotius that the consent of the population of the ceded territory is essential to the validity of the cession. BUT WE WERE ALREADY INDEPENDENT, AND THE US KNEW. But did Spain still have title to the Philippine archipelago on the date of the cession? By 12 June 1898, or almost 6 months prior to the Treaty of Paris, Spanish military forces were already defeated by 4

Art. 46(b), UNCLOS: “’archipelago’ means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.” Always will B

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Filipino revolutionaries and were generally isolated, and Gen. Emilio Aguinaldo declared Philippine independence and proclaimed the Republic. Immediately afterward, a revolutionary government was declared; a cabinet was appointed and convened; a constitution was drafted; local government uits were organized; and a Congress was convened with most of its members duly elected. All this was done with the knowledge and complicity of American forces. The Filipino people gave the Malolos government their wholehearted support and allegiance. Clearly, by the time the Treaty of Paris was signed, Spain no longer had title to the Philippine archipelago; consequently, she transferred nothing to the US. Moreover, the Philippines was already by then a Republic.

Peace ... concluded at Paris ... and under the Treaty between the [USA] and Spain concluded at Washington the 7th day of November, 1900.”5

BUT WERE WE AN INDEPENDENT STATE? The creation of any state is evaluated on the basis solely of the elements of statehood as defined by the Montevideo Convention: a permanent population, a defined territory, a government, and capacity to engage in formal relations with others. On the basis of historical accounts, the Phils. satisfied all such criteria by 18 Dec 1898, if not before then.

PALMAS WAS NEVER ALLEGED TO BE PART OF INDONESIAN ARCHIPELAGO by the Dutch in the Arbitration, unlike the US claiming it as part of the Philippines; hence Indonesia is estopped from making such a claim. At most, Indonesia may be recognized to have sovereignty over the island by virtue of the Palmas arbitration; pursuant to the UNCLOS, the island—not being a part of an archipelago—may be “enclaved”6 and given its own territorial sea. Any other arrangement would be contrary to the UNCLOS and would lead to a disproportionate and inequitable result. The surrounding waters, therefore, even under the best scenario for Indonesia, should still be declared as forming part of Philippine archipelagic and territorial waters.

RECOGNITION BY OTHER STATES, UNNECESSARY. Though this was one considered an element of statehood, now recognition is seen as merely declaratory in nature. In any case, the number of countries represented in the annual vin de honor on Independence Day should be sufficient proof of recognition, involving as it does the attendance of ambassadors and officials from the Netherlands, Spain, Indonesia, and the US. It is well documented that the US was keenly aware of the existence of the new independent state of the Philippines and that Spain had lost its title to the archipelago as of the signing of the Treaty of Paris. In fact, it was because of these considerations that US policymakers had to hide their imperialistic agendas from those who were opposed to the annexation of an independent nation.

UTI POSSEDITIS: Colonial boundaries, for reasons of stability and finality of frontiers, should not be challenged. The fact that the Treaty of Paris is recognized as defining the territory of the country does not give its supposed cession any recognition. Instead, the treaty only serves as evidence on the actual boundaries of the country as defined by Spain. The principle was applied in such cases as the Mali-Burkina Faso case, Guinea Bissau v Senegal, and the Guinea-Guinea Bissau Maritime Delimitation case.

III. Conclusion Assuming for the sake of argument that Indonesia’s title to Palmas is beyond dispute because of the Palmas atrbitration, it does not justify Indonesia’s use of Palmas in its 2002 baselines law as a base point for the drawing of its archipelagic baselines. This is because Indonesia’s predecessor-in-interest, the Netherlands, did not allege in the Arbitration that the island formed part of the archipelago. Accordingly, Palmas should be treated as an island independent of the Indonesian archipelago and properly enclaved.

C. Non-Transferability of Arbitral Awards CARDINAL RULE IN ARBITRATION: Consent freely given is the core for any arbitration. Arbitral awards are therefore only binding on States that agreed to the arbitration (principle of autonomy of parties). Since the Philippines, at that time already an independent State, was not a party to the Palmas Arbitration, it cannot be made subject to the Huber decision. ON SUCCESSION OF STATES. Even assuming that the Phils. may be held as the successor state of the US to Palmas and the entire Philippine archipelago as ceded, still it would not ipso facto result in the Philippines’s succession to the US’s obligation. Furthermore, under existing international law norms, successor states do not automatically succeed to their predecessor state’s rights, capacities, and obligations. Recent state practice, e.g. the recently unified Germany and the new states of the former Yugoslavia, prove that States are at liberty to choose which obligations, treaty-based or otherwise, to succeed to. THE PHILIPPINES HASN’T AGREED TO SUCCEED the US in the Palmas arbitration. On the contrary, all the Philippines’s laws and Constitutions define her territory on the basis of historical title, including the metes and bounds as contained in the Treaty of Paris. There is also nothing in the Treaty Between the Philippines and the United States, preparatory to the [former]’s attainment of independence, that would indicate that the former agreed to succeed the latter on the Palmas arbitration. What was stipulated was only that: “The [RP] agrees to assume all continuing obligations assumed by the [USA] under the Treaty of

CASE CONCERNING SOVEREIGNTY OVER PULAU LIGITAN AND PULAU SIPADAN: INDONESIA v. MALAYSIA (17 December 2002) * pulau ligitan=ligitan pulau sipadan=sipadan7 THE COURT, delivers the following Judgment: 1. By joint letter dated 30 September 1998, filed in the Registry of the Court on 2 November 1998, the Ministers for Foreign Affairs of the Republic of Indonesia (hereinafter “Indonesia”) and of Malaysia notified to the Registrar a Special Agreement between the two States, signed at Kuala Lumpur on 31 May 1997 and having entered into force on 14 May 1998, the date of the exchange of instruments of ratification. 2. The text of the Special Agreement reads as follows: 5

Treaty of General Relations Between the [USA] and the [RP], July 4 1946. Art. 121(2)-(3) UNCLOS: If an island cannot support ‘human habitation’ or ‘economic life of its own,’ it can only have its own territorial sea, without an exclusive economic zone. 6

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I tried to maintain the original paragraph numbers, including the references made to other paragraphs (i.e. see paragraph xx). References to paragraphs made in the footnotes are mine.

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“The Government of the Republic of Indonesia and the Government of Malaysia, hereinafter referred to as ‘the Parties’; Considering that a dispute has arisen between them regarding sovereignty over Pulau Ligitan and Pulau Sipadan; Desiring that this dispute should be settled in the spirit of friendly relations existing between the Parties as enunciated in the 1976 Treaty of Amity and Co-operation in Southeast Asia; and Desiring further, that this dispute should be settled by the International Court of Justice (the Court), Have agreed as follows: Art. 1- Submission of Dispute- The Parties agree to submit the dispute to the Court under the terms of Article 36, paragraph 1, of its Statute. Art. 2- Subject of the Litigation-The Court is requested to determine on the basis of the treaties, agreements and any other evidence furnished by the Parties, whether sovereignty over Pulau Ligitan and Pulau Sipadan belongs to the Republic of Indonesia or to Malaysia. Art. 3-Procedure- 1. Subject to the time-limits referred to in par. 2 of this Art., the proceedings shall consist of written pleadings and oral hearings in accordance with Art. 43 of the Statute of the Court. 2. Without prejudice to any question as to the burden of proof and having regard to Article 46 of the Rules of Court, the written pleadings should consist of: (a) a Memorial presented simultaneously by each of the Parties not later than12 months after the notification of this Special Agreement to the Registry of the Court; (b) a Counter-Memorial presented by each of the Parties not later than 4 months after the date on which each has received the certified copy of the Memorial of the other Party; (c) a Reply presented by each of the Parties not later than 4 months after the date on which each has received the certified copy of the Counter-Memorial of the other Party; and (d) a Rejoinder, if the Parties so agree or if the Court decides ex officio or at the request of one of the Parties that this part of the proceedings is necessary and the Court authorizes or prescribes the presentation of a Rejoinder. 3. The above-mentioned written pleadings and their annexes presented to the Registrar will not be transmitted to the other Party until the Registrar has received the part of the written pleadings corresponding to the said Party. 4. The question of the order of speaking at the oral hearings shall be decided by mutual agreement between the Parties or, in the absence of that agreement, by the Court. In all cases, however, the order of speaking adopted shall be without prejudice to any question regarding the burden of proof. Art. 4- Applicable Law-The principles and rules of IL applicable to the dispute shall be those recognized in the provisions of Art. 38 of the Statute of the Court. Art. 5- Judgment of the Court-The Parties agree to accept the Judgment of the Court given pursuant to this Special Agreement as final and binding upon them. Art. 6- Entry into Force-1. This Agreement shall enter into force upon the exchange of instruments of ratification. The date of exchange of the said instruments shall be determined through diplomatic channels. 2. This Agreement shall be registered with the Secretariat of the UN pursuant to Art. 102 of the Charter of the UN, jointly or by either of the Parties. Art. 7- Notification-In accordance with Art. 40 of the Statute of the Court, this Special Agreement shall be notified to the Registrar of the Court by a joint letter from the Parties as soon as possible after it has entered into force. In witness whereof the undersigned, being duly authorized thereto by their respective Governments, have signed the present Agreement.”

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3. Pursuant to Art. 40, par. 3, of the Statute of the Court, copies of the joint notification and of the Special Agreement were transmitted by the Registrar to the Secretary-General of the United Nations, the Members of the United Nations and other States entitled to appear before the Court. 4. By an Order dated 10 November 1998, the Court, having regard to the provisions of the Special Agreement concerning the written pleadings, fixed 2 November 1999 and 2 March 2000 as the respective time-limits for the filing by each of the Parties of a Memorial and then a Counter-Memorial. The Memorials were filed within the prescribed time-limit. By joint letter of 18 August 1999, the Parties asked the Court to extend to 2 July 2000 the time-limit for the filing of their Counter-Memorials. By an Order dated 14 September 1999, the Court agreed to that request. By joint letter of 8 May 2000, the Parties asked the Court for a further extension of one month to the time-limit for the filing of their CounterMemorials. By Order of 11 May 2000, the President of the Court also agreed to that request. The Parties’ Counter-Memorials were filed within the time-limit as thus extended. 5. Under the terms of the Special Agreement, the two Parties were to file a Reply not later than four months after the date on which each had received the certified copy of the Counter-Memorial of the other Party. By joint letter dated 14 October 2000, the Parties asked the Court to extend this time-limit by three months. By an Order dated 19 October 2000, the President of the Court fixed 2 March 2001 as the time-limit for the filing by each of the Parties of a Reply. The Replies were filed within the prescribed time-limit. In view of the fact that the Special Agreement provided for the possible filing of a fourth pleading by each of the Parties, the latter informed the Court by joint letter of 28 March 2001 that they did not wish to produce any further pleadings. Nor did the Court itself ask for such pleadings. 6. Since the Court included upon the Bench no judge of the nationality of either of the Parties, each Party proceeded to exercise the right conferred by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case: Indonesia chose Mr. Mohamed Shahabuddeen and Malaysia Mr. Christopher Gregory Weeramantry. 7. Mr. Shahabuddeen, judge ad hoc, having resigned from that function on 20 March 2001, Indonesia informed the Court, by letter received in the Registry on 17 May 2001, that its Government had chosen Mr. Thomas Franck to replace him. 8. On 13 March 2001, the Republic of the Philippines filed in the Registry of the Court an Application for permission to intervene in the case, invoking Article 62 of the Statute of the Court. By a Judgment rendered on 23 October 2001, the Court found that the Application of the Philippines could not be granted. 9. During a meeting which the President of the Court held on 6 March 2002 with the Agents of the Parties, in accordance with Article 31 of the Rules of Court, the Agents made known the views of their Governments with regard to various aspects relating to the organization of the oral proceedings. In particular, they stated that the Parties had agreed to suggest to the Court that Indonesia should present its oral arguments first, it being understood that this in no way implied that Indonesia could be considered the applicant State or Malaysia the respondent State, nor would it have any effect on questions concerning the burden of proof.

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Further to this meeting, the Court, taking account of the views of the Parties, fixed Monday 3 June 2002, at 10 a.m., as the date for the opening of the hearings, and set a timetable for them. By letters dated 7 March 2002, the Registrar informed the Agents of the Parties accordingly.

-densely wooded island of volcanic origin and the top of a submarine mountain some 600 to 700 m in height, around which a coral atoll has formed. -it was not inhabited on a permanent basis until the 1980s, when it was developed into a tourist resort for scuba-diving.

10. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and documents annexed would be made accessible to the public on the opening of the oral proceedings.

HISTORICAL BACKGROUND: 15. SPAIN EXTENDS ITS INFLUENCE: 16th century: Spain established itself in the Philippines and sought to extend its influence to the islands lying further to the south. Towards the end of the 16th century, it began to exercise its influence over the Sultanate of Sulu.

11. Public hearings were held from 3 to 12 June 2002, at which the Court heard the oral arguments and replies of: For Indonesia: H.E. Mr. Hassan Wirajuda, Sir Arthur Watts, Mr. Alfred H. A. Soons, Mr. Alain Pellet, Mr. Rodman R. Bundy, Ms Loretta Malintoppi. For Malaysia: H.E. Mr. Tan Sri Abdul Kadir Mohamad, H.E. Dato’ Noor Farida Ariffin, Sir Elihu Lauterpacht, Mr. Nico Schrijver, Mr. James Crawford, Mr. Jean-Pierre Cot. 12. SUBMISSIONS PRESENTED BY THE PARTIES (both in the written and oral proceedings): On behalf of the Government of Indonesia, “xxx the Government of the Republic of Indonesia requests the Court to adjudge and declare that: (a) sovereignty over Pulau Ligitan belongs to the Republic of Indonesia; and (b) sovereignty over Pulau Sipadan belongs to the Republic of Indonesia.” On behalf of the Government of Malaysia, “xxx Malaysia respectfully requests the Court to adjudge and declare that sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia.” 14. DESCRIPTION OF THE ISLANDS: The islands of Ligitan and Sipadan (Pulau Ligitan and Pulau Sipadan) are both located in the Celebes Sea, off the north-east coast of the island of Borneo, and lie approximately 15.5 nautical miles8 apart Ligitan: very small island lying at the southern extremity of a large star-shaped reef extending southwards from the islands of Danawan and Si Amil. -co-ordinates: 4° 09' latitude north and 118° 53' longitude east. -situated some 21 nautical miles from Tanjung Tutop, on the Semporna Peninsula, the nearest area on Borneo. -Permanently above sea level and mostly sand, it is with low-lying vegetation and some trees -it is not permanently inhabited. Sipadan: bigger than Ligitan, -but also a small island, with an area of approximately 0.13 sq. km. -co-ordinates: 4° 06' latitude north and 118° 37' longitude east. -situated some 15 nautical miles from Tanjung Tutop, and 42 nautical miles from the east coast of the island of Sebatik. 8

see sketch-maps Nos. 1 and 2

1836 CAPITULATIONS (1836 TREATY): September 23, 1836: Spain concluded Capitulations of peace, protection and commerce with the Sultan of Sulu, wherein, Spain guaranteed its protection to the Sultan “in any of the islands situated within the limits of the Spanish jurisdiction, and which extend from the western point of Mindanao (Magindanao) to Borneo and Paragua (Palawan), with the exception of Sandakan and the other territories tributary to the Sultan on the island of Borneo”. 1851 ACT OF RE-SUBMISSION: April 19, 1851: Spain and the Sultan of Sulu concluded an “Act of Re-Submission” whereby the island of Sulu and its dependencies were annexed by the Spanish Crown. 1878 PROTOCOL WHICH CONFIRMED THE ACT OF RE-SUBMISSION: July 22, 1878: That Act was confirmed by a Protocol whereby the Sultan recognized “as beyond discussion the sovereignty of Spain over all the Archipelago of Sulu and the dependencies thereof”. 16. NETHERLANDS GO FOR BORNEO. 17th century: Netherlands established itself on the island of Borneo. The Netherlands East India Company (NEIC), which possessed considerable commercial interests in the region, exercised public rights in South-East Asia under a charter granted to it in 1602 by the Netherlands United Provinces. Under the Charter, the Company was authorized to “conclude conventions with Princes and Powers” of the region in the name of the States-General of the Netherlands. Those conventions mainly involved trade issues, but they also provided for the acceptance of the Company’s suzerainty or even the cession to it by local sovereigns of all or part of their territories. SULTAN OF BANJERMASIN IS INFLUENTIAL. When the NEIC established itself on Borneo, the influence of the Sultan of Banjermasin extended over large portions of southern and eastern Borneo. On the east coast, the territory under the control of Banjermasin included the “Kingdom of Berou”, composed of three “States”: Sambaliung, Gunungtabur and Bulungan. The Sultans of Brunei and Sulu exercised their influence over the northern part of Borneo. DEMISE OF NEIC: 18th century: upon its demise, all of its territorial possessions were transferred to the Netherlands United Provinces (NUP). During the Napoleonic wars, Great Britain took control of the Dutch possessions in Asia. Pursuant to the London Convention of 13 August 1814, the newly formed Kingdom of the Netherlands recovered most of the former Dutch possessions. 17. CONTRACTS BETWEEN NETHERLANDS AND SULTAN OF BANJERMASIN: 1. January 3, 1817. Article 5 provided for inter alia the cession to the Netherlands of Berou (“Barrau”) and of all its dependencies. Always will B

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September 13, 1823, an addendum was concluded, amending Article 5 of the 1817 Contract. 2. May 4, 1826- Article 4 thereof reconfirmed the cession. Over the following years, the three territories that formed the Kingdom of Berou, Sambaliung, Gunungtabur and Bulungan, were separated. September 27, 1834, the Sultan of Bulungan declared submission to the authority of the Netherlands East Indies Government. In 1844 the three territories were each recognized by the Government of the Netherlands as separate Kingdoms. Their chiefs were officially accorded the title of Sultan. 18. “CONTRACTS OF VASSALAGE” were concluded In 1850 between the Government of the Netherlands East Indies and the sultans of the three kingdoms, under which the territory of their respective kingdoms was granted to them as a fief. THE CONTRACTS OF VASSALAGE WITH THE SULTAN OF BULUNGAN: 1. dated November 12, 1850 -a description of the geographical area constituting the Sultanate of Bulungan appeared for the first time -Article 2 described the territory of Bulungan as follows: “The territory of Boeloengan is located within the following boundaries: ∞with Goenoeng-Teboer: from the seashore landwards, the Karangtiegau Riverfrom its mouth up to its origin; in addition, the Batoe Beokkier and Mount Palpakh; ∞with the Sulu possessions: at sea the cape named Batoe Tinagat, as well as the Tawau River. The following islands shall belong to Boeloengan: Terakkan, Nenoekkan and Sebittikh, with the small islands belonging thereto. This delimitation is established provisionally, and shall be completely examined and determined again.” 2. dated 2 June 1878 -approved and ratified by the Governor-General of the Netherlands East Indies on 18 October 1878. -Article 2 described the territory of Bulungan as follows: “The territory of the realm of Boeloengan is deemed to be constituted by the lands and islands as described in the statement annexed to this contract.” -The text of the statement annexed to the contract is virtually identical to that of Art. 2 of the 1850 Contract. 3. 1893 Amendment -This statement was amended in 1893 to bring it into line with the 1891 Convention between Great Britain and the Netherlands (see par 23 below for the 1891 convention). The new statement provided that: “The Islands of Tarakan and Nanoekan and that portion of the Island of Sebitik, situated to the south of the above boundary-line, described in the ‘Indisch Staatsblad’ of 1892, No. 114, belong to Boeloengan, as well as the small islands belonging to the above islands, so far as they are situated to the south of the boundary-line . . .”

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19. GREAT BRITAIN possessed commercial interests in the area but had no established settlements on Borneo until the 19th century. After the Anglo-Dutch Convention of 13 August 1814, the commercial and territorial claims of Great Britain and the Netherlands on Borneo began to overlap. 1824 TREATY BETWEEN GREAT BRITAIN AND NETHERLANDS (17 March 1824) was signed in an attempt to settle their commercial and territorial disputes in the region. 20. SULTAN OF BRUNEI MAKES GRANTS: In 1877, the Sultan of Brunei made 3 separate instruments in which he “granted” Mr. Alfred Dent and Baron von Overbeck (reps of a British Company) a large area of North Borneo. 1878 GRANT OF THE SULTAN OF SULU: Since these grants (of the sultan of Brunei) included a portion of territory along the north coast of Borneo which was also claimed by the Sultan of Sulu, Alfred Dent and Baron von Overbeck decided to enter into an agreement with Sultan of Sulu. On January 22, 1878: 1. agreed to “grant and cede” to them, as representatives of a British company, all his rights and powers over: -“all the territories and lands being tributary to [him] on the mainland of the Island of Borneo, commencing from the Pandassan River on the west coast to Maludu Bay, and extending along the whole east coast as far as the Sibuco River in the south, comprising all the provinces bordering on Maludu Bay, -also the States of Pietan, Sugut, Bangaya, Labuk, Sandakan, Kinabatangan, Mamiang, and -all the other territories and states to the southward thereof bordering on Darvel Bay and as far as the Sibuco River, with all the islands belonging thereto within 3 marine leagues [9 nautical miles] of the coast”. 2. signed a commission whereby he appointed Baron von Overbeck “Dato’ B_ndahara and Rajah of Sandakan” -with “the fullest power of life and death” over all the inhabitants of the territories which had been granted to him and -made him master of “all matters . . . and of the revenues or ‘products’” belonging to the Sultan in those territories. The sultan asked the “foreign nations” with which he had concluded “friendly treaties and alliances” to accept “the said Dato’ B_ndahara as supreme ruler over the said dominions”. THE “BRITISH NORTH BORNEO COMPANY” Baron von Overbeck subsequently relinquished all his rights and interests in the British company referred to above. Alfred Dent later applied for a Royal Charter from the British Government to administer the territory and exploit its resources. This Charter was granted in November 1881. In May 1882 a chartered company was officially incorporated under the name of the “British North Borneo Company” (BNBC). The BNBC began at that time to extend its administration to certain islands situated beyond the 3-marine-league limit referred to in the 1878 grant. 21. PROTOCOLS OF FREE COMMERCE AND NAVIGATION IN THE SULU SEA BETWEEN SPAIN, GERMANY AND GREAT BRITAIN: 1. March 1877 - to settle a commercial dispute which had arisen between them. Always will B

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-Spain undertook to guarantee and ensure the liberty of commerce, of fishing and of navigation for ships and subjects of Great Britain, Germany and the other Powers in “the Archipelago of Sulu (Joló) and in all parts there[of]”, without prejudice to the rights recognized to Spain in the Protocol. 2. March 7, 1885 (new Protocol’s 1st 3 articles): Article 1- The Governments of Germany and Great Britain recognize the sovereignty of Spain over the places effectively occupied, as well as over those places not yet so occupied, of the archipelago of Sulu (Joló), of which the boundaries are determined in Article 2. Article 2-The Archipelago of Sulu (Joló), conformably to the definition contained in Article 1 of the Treaty signed the 23rd of September 1836, between the Spanish Government and the Sultan of Sulu (Joló), comprises all the islands which are found between the western extremity of the island of Mindanao, on the one side, and the continent of Borneo and the island of Paragua, on the other side, with the exception of those which are indicated in Article 3. It is understood that the islands of Balabac and of Cagayan-Joló form part of the Archipelago. Article 3-The Spanish Government relinquishes as far as regards the British Government, all claim of sovereignty over the territories of the continent of Borneo which belong, or which have belonged in the past, to the Sultan of Sulu (Joló), including therein the neighboring islands of Balambangan, Banguey and Malawali, as well as all those islands lying within a zone of three marine leagues along the coasts and which form part of the territories administered by the Company styled the ‘British North Borneo Company’.” 22. CREATION OF THE STATE OF BORNEO was agreed upon on May 12, 1888 by the British Government and the BNBC. This Agreement made North Borneo a British Protectorate, with the British Government assuming responsibility for its foreign relations. paras 23 & 36: THE 1891 CONVENTION -concluded on 20 June 1891 between the Netherlands and Great Britain -for the purpose of “defining the boundaries between the Netherland possessions in the Island of Borneo and the States in that island which were under British protection” -drawn up in Dutch and in English, the two texts being equally authentic. -consists of 8 articles: Art. I stipulates that “the boundary between the Netherland possessions in Borneo and those of the British-protected States in the same island, shall start from 4° 10' north latitude on the east coast of Borneo”. Art. II after stipulating “[t]he boundary-line shall be continued westward”, then describes the course of the first part of that line. Art. III describes the further westward course of the boundary line from the point where Article II stops and as far as Tandjong-Datoe, on the west coast of Borneo. Art. IV reads: English text: “From 4° 10' north latitude on the east coast the boundary-line shall be continued eastward along that parallel, across the Island of Sebittik: that portion of the island situated to the north of that parallel shall belong unreservedly to the British North Borneo Company, and the portion south of that parallel to the Netherlands.” Dutch text: “Van 4° 10' noorder breedte ter oostkust zal de grenslijn oostwaarts vervolgd worden langs die parallel over het eiland Sebittik; het gedeelte van dat eiland dat

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gelegen is ten noorden van die parallel zal onvoorwaardelijk toebehooren aan de Brittsche Noord Borneo Maatschappij, en het gedeelte ten zuiden van die parallel aan Nederland”. Art. V provides that “the exact positions of the boundary-line, as described in the four preceding Articles, shall be determined hereafter by mutual agreement, at such times as the Netherland and the British Governments may think fit”. Art. VI guarantees the parties free navigation on all rivers flowing into the sea between Batoe-Tinagat and the River Siboekoe. Art. VII grants certain rights to the population of the Sultanate of Bulungan to the north of the boundary. Art. VIII stipulates the conditions in which the Convention would come into force. 24. 1898 TREATY OF PARIS (1898 TREATY OF PEACE) (between Spain & US) -December 10, 1898 -means by which Spain ceded the Philippine Archipelago (see paragraph 115) to the United States of America -Art. III defined the Archipelago by means of certain lines. 1900 TREATY (7 November 1900) (between Spain & US) -Spain ceded to the US “all islands belonging to the Philippine Archipelago, lying outside the lines described in Article III” of the 1898 Treaty of Peace -Mention was made in particular of the islands of Cagayan Sulu and Sibutu, but no other islands which were situated closer to the coast of North Borneo were mentioned by name. 25. 1903 CONFIRMATION CESSION (between the Sultan of Sulu and the Government of British North Borneo) -concluded on 22 April 1903 -specified the names of a certain number of islands which were to be treated as having been included in the original cession in 1878 9: Muliangin, Muliangin Kechil, Malawali, Tegabu, Bilian, Tegaypil, Lang Kayen, Boan, Lehiman, Bakungan, Bakungan Kechil, Libaran, Taganack, Beguan, Mantanbuan, Gaya, Omadal, Si Amil, Mabol, Kepalai and Dinawan. -further provided that “other islands near, or round, or lying between the said islands named above” were included in the cession of 1878. -All those islands were situated beyond the 3-marine-league limit. 26. BNBC PROTESTS TO US: a visit in 1903 by the US Navy vessel USS Quiros to the area of the islands disputed in the present proceedings, the BNBC lodged protests with the Foreign Office, on the ground that some of the islands visited, on which the US Navy had placed flags and tablets, were, according to the BNBC, under its authority. The question was dealt with in particular in a memorandum dated 23 June 1906 from Sir H. M. Durand, British Ambassador to the United States, to the US Secretary of State, with which a map showing “the limits within which the [BNBC] desired to carry on the administration” was enclosed. Under an Exchange of Notes dated 3 and 10 July 1907, the United States temporarily waived the right of administration in respect of “all the islands to the westward and southwestward of the line traced on the map which accompanied Sir H. M. Durand’s memorandum”. 27. AGREEMENTS BETWEEN GREAT BRITAIN AND THE NETHERLANDS pursuant to Art. V of the 1891 Convention: 9

The 1878 grant referred to in paragraph 20

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1. 1915 AGREEMENT (28 September 1915) -relating to “the Boundary Between the State of North Borneo and the Netherland Possessions in Borneo”, whereby the two States confirmed a report and accompanying map prepared by a mixed commission set up for the purpose (see paragraphs 70, 71 and 72 below). 2. 1928 AGREEMENT (26 March 1928) -for the purpose of “further delimiting part of the frontier established in Art. III of the Convention (“between the summits of the Gunong Api and of the Gunong Raya”); a map was attached to that agreement (see paragraph 73 below). 28. 1930 CONVENTION (between the US & Great Britain) -concluded on 2 January 1930, entered into force on 13 December 1932 -“delimiting . . . the boundary between the Philippine Archipelago . . . and the State of North Borneo” (see paragraph 119 below). -contained 5 articles, Arts. 1 & 3 are the most relevant for this case: Article I -defined the line separating the islands which belonged to the Philippine Archipelago and those which belonged to the State of North Borneo; Article III -stipulated as follows: “All islands to the north and east of the said line and all islands and rocks traversed by the said line, should there be any such, shall belong to the Philippine Archipelago and all islands to the south and west of the said line shall belong to the State of North Borneo.” 29. 1946 AGREEMENT (between BNBC & the British Government) -entered into on 26 June 1946 -whereby the BNBC transferred its interests, powers and rights in respect of the State of North Borneo to the British Crown. -The State of North Borneo then became a British colony. 30. 1963 AGREEMENT (by the Federation of Malaya, the United Kingdom of Great Britain and Northern Ireland, North Borneo, Sarawak and Singapore) -concluded on 9 July 1963, entered into force on 16 September 1963 -relating to Malaysia. -Under Art. I, the colony of North Borneo was to be “federated with the existing States of the Federation of Malaya as the [State] of Sabah”. 31. OIL PROSPECTING LICENCES in waters off the east coast of Borneo during the 1960s were granted by Indonesia and Malaysia after their independence. 1966 PRODUCTION SHARING AGREEMENT (Oct. 6) was the first oil licence granted, in the relevant area between the Indonesian State-owned company P. N. Pertambangan Minjak Nasional (“Permina”) and the Japan Petroleum Exploration Company Limited (“Japex”). The northern boundary of one of the areas covered by the agreement ran eastwards in a straight line from the east coast of Sebatik Island, following the parallel 4° 09' 30" latitude north for some 27 nautical miles out to sea. 1968 -Malaysia in turn granted various oil prospecting licences to Sabah Teiseki Oil Company (“Teiseki”). The southern boundary of the maritime concession granted to Teiseki was located at 4° 10' 30" latitude north.

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DELIMITATION OF THE RESPECTIVE CONTINENTAL SHELVES LED TO THE DISPUTE. The present dispute crystallized in 1969 in the context of discussions concerning the delimitation of the respective continental shelves of the two States. 1969 DELIMITATION AGREEMENT was reached on October 27 but did not cover the area lying to the east of Borneo. In October 1991 the two Parties set up a joint working group to study the situation of the islands of Ligitan and Sipadan. They did not however reach any agreement and the issue was entrusted to special emissaries of the two Parties who, in June 1996, recommended by mutual agreement that the dispute should be referred to the International Court of Justice. The Special Agreement was signed on 31 May 1997. Paras 32- 35 CLAIMS TO SOVEREIGNTY OVER LIGITAN AND SIPADAN INDONESIA’S CLAIM MALAYSIA’S CLAIM rests primarily on the 1891 Convention Chain of title=a series of alleged (Art. IV): that “[t]he Convention, by its transmissions of the title originally held terms, its context, and its object and by the former sovereign, the Sultan of purpose, established the 4° 10' N parallel of Sulu. Malaysia claims that the title latitude as the dividing line between the subsequently passed, in succession, to Parties’ respective possessions in the area Spain, to the US, to Great Britain on behalf now in question”. of the State of North Borneo, to the United -its position is not that “the 1891 Kingdom of Great Britain and Northern Convention line was from the outset Ireland, and finally to Malaysia itself. intended also to be, or in effect was, a maritime boundary . . . east of Sebatik On Indonesia’s claim based on the 1891 island” but that “the line must be considered convention: an allocation line: land areas, including -claim finds no support in either the text islands located to the north of 4° 10' N of the 1891 Convention or in its travaux latitude were . . . considered to be British, préparatoires, or in any other document that and those lying to the south were Dutch”. may be used to interpret the Convention. As the disputed islands lie to the south of -1891 Convention, when seen as a whole, that parallel, “[i]t therefore follows that clearly shows that the parties sought to under the Convention title to those islands clarify the boundary between their vested in The Netherlands, and now vests respective land possessions on the islands in Indonesia”. of Borneo and Sebatik, since the line of -the two States parties to the 1891 delimitation stops at the easternmost point Convention clearly assumed that they were of the latter island. the only actors in the area. -that “the ordinary and natural -Spain had no title to the islands interpretation of the Treaty, and relevant in dispute and had shown no interest in rules of law, plainly refute” Indonesia’s what was going on to the south of the Sulu argument and adds that the ratification of Archipelago. the 1891 Convention and its -the Convention did not involve implementation, notably through the 1915 territorial cessions; rather, each party’s Agreement, do not support Indonesia’s intention was to recognize the other party’s position. title to territories on Borneo and islands -even if the 1891 Convention were lying “on that party’s side” of the line, and to construed so as to allocate possessions to relinquish any claim in respect of them. the east of Sebatik, that allocation could not According to Indonesia, “both parties no have any consequence in respect of islands doubt considered that [the] territories . . . on which belonged to Spain at the time. I Always will B

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their side of the agreed line were already theirs, rather than that they had become theirs by virtue of a treaty cession”. -In any case, whatever may have been the position before 1891, the Convention between the two colonial Powers is an indisputable title which takes precedence over any other pre-existing title.

-Great Britain could not have envisioned ceding to the Netherlands islands which lay beyond the 3-marine-league line referred to in the 1878 grant, a line said to have been expressly recognized by Great Britain and Spain in the Protocol of 1885.

relies on a series of effectivités, both Dutch and Indonesian, which it claims confirm its conventional title

its title, based on this series of legal instruments, is confirmed by a certain number of British and Malaysian effectivités over the islands.

by way of alternative argument (if 1891 Convention rejected), as successor to the Sultan of Bulungan, because he had possessed authority over the islands.

in the alternative that, (if Court concludes that the islands originally belonged to the Netherlands), its effectivités would in any event have displaced any such Netherlands title by virtue of continuous peaceful possession and administration, without objection from Indonesia or its predecessors in title

ISSUE 1: INTERPRETATION OF ART. IV OF THE 1891 CONVENTION10 The Parties disagree over the interpretation to be given to Art. IV of the 1891 Convention, which Indonesia uses to support its claim. The provision reads: “From 4° 10' north latitude on the east coast the boundary-line shall be continued eastward along that parallel, across the Island of Sebittik: that portion of the island situated to the north of that parallel shall belong unreservedly to the British North Borneo Company, and the portion south of that parallel to the Netherlands.” 37. ICJ ON INTERPRETING THE ARTICLE: USE CUSTOMARY LAW (since Indonesia is not a party to the Vienna Convention, use the provisions there that reflect customary law – and Indonesia does not dispute the applicability of the rules) Indonesia is not a party to the Vienna Convention of 23 May 1969 on the Law of Treaties; nevertheless recall that, in accordance with customary international law, reflected in Arts. 31 and 32 of that Convention: “a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion.”11 10

See paragraph 52 (page 10) for the Conclusion (Art. IV cannot be interpreted as establishing an allocation line determining sovereignty over the islands out to sea, to the east of the island of Sebatik) 11

Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 21-22, para. 41; see also Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 18, para. 33; Oil Platforms (Islamic Republic of Iran v.

Moreover, with respect to Art. 31, par 3, the Court has had occasion to state that this provision also reflects customary law, stipulating that there shall be taken into account, together with the context, the subsequent conduct of the parties to the treaty, i.e., “any subsequent agreement” (subpara. (a)) and “any subsequent practice” (subpara. (b))12 Indonesia does not dispute that these are the applicable rules. Nor is the applicability of the rule contained in Article 31, paragraph 2, contested by the Parties. 38. ICJ’s INTERPRETATION OF ART. IV OF THE 1891 CONVENTION IN LIGHT OF THESE RULES: paras. 39-40 On the Interpretation of Article IV of the 1891 Convention INDONESIA’S INTERPRETATION MALAYSIA’S INTERPRETATION On Article IV of the 1891 Convention -maintains that this Art. Contains nothing to -when Article IV of the 1891 Convention suggest that the line stops at the east coast provides that the boundary line continues of Sebatik Island. eastward along the parallel of 4° 10' north, this simply means “that the extension starts -On the contrary, “the stipulation that the from the east coast of Borneo and runs line was to be ‘continued’ eastward along eastward across Sebatik, in contrast with the prescribed parallel [,across the island of the main part of the boundary line, which Sebatik,] requires a prolongation of the line starts at the same point, but runs so far as was necessary to achieve the westwards”. Convention’s purposes”. -the plain and ordinary meaning of the words “across the Island of Sebittik” is to describe, “in English and in Dutch, a line that crosses Sebatik from the west coast to the east coast and goes no further”. -had the parties to the Convention intended not to draw an allocation line out to sea to the east of Sebatik, but to end the line at a point on the coast, they would have stipulated this expressly, as was the case in Article III.

-rejects the idea that the parties to the 1891 Convention intended to establish an “allocation perimeter”, that is to say a “theoretical line drawn in the high seas under a convention which enables sovereignty over the islands lying within the area in question to be apportioned between the parties”. -“allocation perimeters” cannot be presumed where the text of a treaty remains silent in such respect, as in the case of the 1891 Convention, which contains no such indication.

United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 812, para. 23; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1059, para. 18. 12 see in particular Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996 (I), p. 75, para. 19; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1075, para. 48

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On the difference in punctuation between the Dutch and English texts of Art. IV of the Convention, both texts being authentic, (English-colon, Dutch-semicolon) -bases itself on the English text, which -relies on the Dutch text, which reads as reads as follows: “From 4° 10' north latitude follows: “Van 4° 10' noorder breedte ter on the east coast the boundary-line shall be oostkust zal de grenslijn oostwaarts continued eastward along that parallel, vervolgd worden langs die parallel over het across the Island of Sebittik: that portion of eiland Sebittik; het gedeelte van dat eiland the island situated to the north of that dat gelegen is ten noorden van die parallel parallel shall belong unreservedly to the zal onvoorwaardelijk toebehooren aan de British North Borneo Company, and the Brittsche Noord Borneo Maatschappij, en portion south of that parallel to the het gedeelte ten zuiden van die parallel aan Netherlands.” Nederland”. -emphasizes the colon in the English text, claiming that it is used to separate two provisions of which the second develops or illustrates the first. It thus contends that the second part of the sentence, preceded by the colon, “is essentially a subsidiary part of the sentence, filling out part of its meaning, but not distorting the clear sense of the main clause, which takes the line out to sea along the 4° 10' N parallel”.

-the drafting of this provision as “a single sentence divided into two parts only by a semi-colon indicates the close grammatical and functional connection between the two parts”. -Thus, the 2nd clause of the sentence, which relates exclusively to the division of the island of Sebatik, confirms that the words “across the Island of Sebittik” refer solely to that island.

paras 41-43 ICJ’S INTERPRETATION: 1. ACROSS AND OVER: the Parties differ as to how the preposition “across” (in the English) or “over” (in the Dutch) in the 1st sentence of Art. IV should be interpreted. -ICJ acknowledges that the word is not devoid of ambiguity and is capable of bearing either of the meanings given to it by the Parties. -A line established by treaty may indeed pass “across” an island and terminate on the shores of such island or continue beyond it. 2. “THE BOUNDARY-LINE SHALL BE CONTINUED EASTWARD ALONG THAT PARALLEL [4° 10' NORTH]” -the Parties also disagree on the interpretation of the this -the phrase “shall be continued” is also not devoid of ambiguity. -Art. I of the Convention defines the starting point of the boundary between the two States, whilst Arts. II and III describe how that boundary continues from one part to the next. -Therefore, when Art. IV provides that “the boundary-line shall be continued” again from the east coast of Borneo along the 4° 10' N parallel and across the island of Sebatik, this does not, contrary to Indonesia’s contention, necessarily mean that the line continues as an allocation line beyond Sebatik. 3. THE DIFFERENCE IN PUNCTUATION in the two versions of Art. IV does not as such help elucidate the meaning of the text with respect to a possible extension of the line out to sea, to the east of Sebatik Island (see also paragraph 56 below).

4. MALAYSIA’S POSITION SUPPORTED BY SILENCE OF THE TEXT. Any ambiguity could have been avoided had the Convention expressly stipulated that the 4° 10' N parallel constituted, beyond the east coast of Sebatik, the line separating the islands under British sovereignty from those under Dutch sovereignty. -In these circumstances, the silence in the text cannot be ignored. It supports the position of Malaysia. 5. THE ORDINARY MEANING OF “BOUNDARY” does not have the function that Indonesia attributes to the allocation line that was supposedly established by Art. IV out to sea beyond the island of Sebatik, that is to say allocating to the parties sovereignty over the islands in the area. -In the absence of an express provision to this effect in the text of a treaty, it is difficult to envisage that the States parties could seek to attribute an additional function to a boundary line. paras 44-45 On the MAP accompanying the Explanatory Memorandum annexed by the Dutch to the draft law submitted to the States-General of the Netherlands INDONESIA MALAYSIA -the context of the 1891 Convention supports its interpretation of Art. IV, referring to the “interaction” between the British and the Dutch Governments concerning the map accompanying the Explanatory -the map cannot be Memorandum annexed by the latter to the draft Law regarded as an element of submitted to the States-General of the Netherlands with a the context of the 1891 view to the ratification of the 1891 Convention and the Convention. “purpose of [which] was to explain to the States-General the significance of a proposed treaty, and why its -that map was prepared conclusion was in the interests of The Netherlands”. exclusively for internal purposes. -this map, showing the prolongation out to sea to the east of Sebatik of the line drawn on land along the 4° 10' north -the map was never parallel, was forwarded to the British Government by its promulgated by the Dutch own diplomatic agent and that it was known to that authorities and that neither Government. the Government nor the Parliament of the -points out that “Sir Horace Rumbold, the British Minister at Netherlands sought to The Hague, sent an official despatch back to the Foreign incorporate it into the Office on 26 January 1892 with which he sent two copies Convention; the Dutch act of of the map: and he drew specific attention to it”. According ratification says nothing to to Indonesia, this official transmission did not elicit any such effect. reaction from the Foreign Office. -the map was never the -concludes that subject of negotiations the two • this implies Great Britain’s “irrefutable between acquiescence in the depiction of the Convention Governments and was never officially commu-nicated by line”, and • thereby its acceptance that the 1891 Convention the Dutch Government to divided up the islands to the east of Borneo the British Government. between Great Britain and the Netherlands. -even if the British Always will B

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-Hence: This “interaction” 1. in terms of Art. 31, par. 2 (a), of the Vienna Convention on the Law of Treaties, “establishes an agreement between the two governments regarding the seaward course of the Anglo-Dutch boundary east of Sebatik”. (as an agreement relating to a treaty which was made between all the parties in connection with the conclusion of the treaty”, within the meaning of Art. 31(2a) of the Vienna Convention) 2. shows that the map in question was, within the meaning of Art. 31, par.2 (b), of the Vienna Convention, an instrument made by the Dutch Government in connection with the conclusion of the 1891 Convention, particularly its Articles IV and VIII, and was accepted by the British Government as an instrument related to the treaty. (as an “instrument which was made by a party in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to that treaty”, within the meaning of Art. 31(2b), of the Vienna Convention)

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Government had been made aware of this map, the circumstances “did not call for any particular reaction, as the map had not been mentioned in the parliamentary debate and no one had noted the extension of the boundary-line out to sea”. -concludes from this that the map was not “an Agreement or an Instru-ment ‘accepted by the other party and related to the treaty’”.

-in support of this twofold argument, Indonesia states inter alia that: • “the map was officially prepared by the Dutch Government immediately after the conclusion of the 1891 Convention and in connection with its approval by the Netherlands States-General as specifically required by Art. VIII of the Convention” • “it was publicly and officially available at the time”, and • “the British Government, in the face of its official knowledge of the map, remained silent”. paras 46-48 ICJ ON THE EXPLANATORY MEMORANDUM13: provides useful information on a certain number of points: 1. the Memorandum refers to the fact that, in the course of the prior negotiations, the British delegation had proposed that the boundary line should run eastwards from the east coast of North Borneo, passing between the islands of Sebatik and East Nanukan. 2. indicates that the Sultan of Bulungan, to whom, according to the Netherlands, the mainland areas of Borneo then in issue between Great Britain and the Netherlands belonged, had been consulted by the latter before the Convention was concluded. Following this consultation, the Sultan had asked for his people to be given the right to gather jungle produce free of tax within the area of the island to be attributed to the State of North Borneo; such right was accorded for a 15-year period by Article VII of the Convention. 13

the only document relating to the Convention to have been published during the period when the latter was concluded

3. As regards Sebatik, the Memorandum explains that the island’s partition had been agreed following a proposal by the Dutch Government and was considered necessary in order to provide access to the coastal regions allocated to each party. 4. The Memorandum contains no reference to the disposition of other islands lying further to the east, and in particular there is no mention of Ligitan or Sipadan. ICJ ON THE APPENDED MAP: 1. This shows 4 differently coloured lines representing the following boundaries: (1) The blue line-the boundary initially claimed by the Netherlands, (which stop at the coast) (2) The yellow line-the boundary initially claimed by the BNBC, (which also stop at the coast) (3) The green line-the boundary proposed by the British Government (which continues for a short distance out to sea) and (4) The red line-the boundary eventually agreed (which continues out to sea along parallel 4° 10' N to the south of Mabul Island) In the Explanatory Memorandum there is no comment on this extension of the red line out to sea; nor was it discussed in the Dutch Parliament. 2. The map shows only a number of islands situated to the north of parallel 4° 10'; apart from a few reefs, no island is shown to the south of that line. 3. Concludes that the Members of the Dutch Parliament were almost certainly unaware that two tiny islands lay to the south of the parallel and that the red line might be taken for an allocation line. CONCLUSION: 1. there is nothing in the case file to suggest that Ligitan and Sipadan, or other islands such as Mabul, were territories disputed between Great Britain and the Netherlands at the time when the Convention was concluded. The Court cannot therefore accept that the red line was extended in order to settle any dispute in the waters beyond Sebatik, with the consequence that Ligitan and Sipadan were attributed to the Netherlands. 2. MAP HAS NO LEGAL VALUE: The Explanatory Memorandum and map were never transmitted by the Dutch Government to the British Government, but were simply forwarded to the latter by its diplomatic agent in The Hague, Sir Horace Rumbold. This agent specified that the map had been published in the Official Journal of The Netherlands and formed part of a Report presented to the Second Chamber of the States-General. He added that “the map seems to be the only interesting feature of a document which does not otherwise call for special comment”. However, Sir Horace Rumbold did not draw the attention of his authorities to the red line drawn on the map among other lines. The British Government did not react to this internal transmission. In these circumstances, such a lack of reaction to this line on the map appended to the Memorandum cannot be deemed to constitute acquiescence in this line. 3. MAP IS NEITHER AN AGREEMENT NOR AN INSTRUMENT WITHIN THE MEANING OF THE VIENNA CONVENTION paras 49-50 On the object and purpose of the 1891 Convention INDONESIA MALAYSIA -the parties’ intention was to draw an allocation line between -that the object

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their island possessions in the north-eastern region of Borneo, including the islands out at sea. - stresses that the main aim of the Convention was “to resolve the uncertainties once and for all so as to avoid future disputes”. -invokes the case law of the Court and that of its predecessor, the PCIJ, where the finality and completeness of boundary settlements were relied on by both Courts, on several occasions, as a criterion for the interpretation of treaty provisions. particularly cites the Advisory Opinion of the PCIJ on the Interpretation of Art. 3, Paragraph 2, of the Treaty of Lausanne (1925), which states: “It is . . . natural that any article designed to fix a frontier should, if possible, be so interpreted that the result of the application of its provisions in their entirety should be the establishment of a precise, complete and definitive frontier.” 14 -“in the preamble to the 1891 Convention the parties stated that they were ‘desirous of defining the boundaries’ (in the plural) between the Dutch and British possessions in Borneo” and argues that this must be taken to mean not only the island of Borneo itself but also other island territories. Thus the line established by Art. IV concerned not only the islands which are the subject of the dispute now before the Court but also other islands in the area. -while Art. IV did not establish an endpoint for the line -providing for the line to extend eastward of the island of Sebatik-, that does not mean that the line extends indefinitely eastward. The limit to its eastward extent was determined by the purpose of the Convention, “the settlement, once and for all, of possible Anglo-Dutch territorial differences in the region”.

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purpose of the 1891 Convention, as shown by its preamble, were to “defin[e] the boundaries between the Netherlands possessions in the island of Borneo and the States in that island which are under British protection”. -one of the concerns of the negotiators of the Convention (referring to the provisions concerning the island of Sebatik) was also to ensure access to the rivers -the only possible means at the time of penetrating the interior of Borneo- and freedom of navigation. -Thus, the 1891 Convention, when read as a whole, reveals unambiguously that “it was intended to be a land boundary treaty”, as nothing in it suggests that it was intended to divide sea areas or to allocate distant offshore islands.

51. ICJ ON THE OBJECT AND PURPOSE OF THE 1891 CONVENTION: 1. The object and purpose of the 1891 Convention was the delimitation of boundaries between the parties’ possessions within the island of Borneo itself, as shown by the preamble to the Convention, which provides that the parties were “desirous of defining the boundaries between the Netherland possessions in the Island of Borneo and the States in that island which are under British protection” 2. This interpretation is supported by the very scheme of the 1891 Convention. Art. I expressly provides that “[t]he boundary . . . shall start from 4° 10' north latitude on the east coast of Borneo” (emphasis added by the Court). Arts. II and III then continue the description of the boundary line westward, with its endpoint on the west coast being fixed by Art. III.

3. The parties incorporated an additional provision to settle the issue concerning the status of the island of Sebatik (which was located directly opposite the starting point of the boundary line and controlled access to the rivers) 4. There is nothing in the Convention to suggest that the parties intended to delimit the boundary between their possessions to the east of the islands of Borneo and Sebatik or to attribute sovereignty over any other islands. 5. As far as the islands of Ligitan and Sipadan are concerned, the terms of the preamble to the 1891 Convention are difficult to apply to these islands as they were little known at the time, as both Indonesia and Malaysia have acknowledged, and were not the subject of any dispute between Great Britain and the Netherlands. 52. CONCLUSION ON ART. IV WRT THE 1891 CONVENTION: cannot be interpreted as establishing an allocation line determining sovereignty over the islands out to sea, to the east of the island of Sebatik. 53. NO NEED THEN TO RESORT TO SUPPLEMENTARY MEANS OF INTERPRETATION such as the travaux préparatoires15 of the 1891 Convention and the circumstances of its conclusion, to determine the meaning of that Convention; but considers these supplementary means to seek a possible confirmation of its interpretation of the text of the Convention16 paras 54-55 On the travaux préparatoires INDONESIA MALAYSIA -prior to the conclusion of the 1891 Convention the -rejects Indonesia’s analysis Sultan of Bulungan had “clear claims . . . to inland areas of the travaux préparatoires. north of the Tawau coast and well to the north of 4° 10' N, which were acknowledged by Great Britain in agreeing, in -“the consideration of the Art. VII of the 1891 Convention, to the Sultan having boundary on the coast never certain continuing transitional rights to jungle produce”. extended to cover the islands east of Batu Tinagat”. -the Netherlands engaged in “activity in the area evidencing Dutch claims to sovereignty extending to the -the travaux préparatoires north of the eventual 4° 10' N line”. make clear that • the line proposed to -“the prevailing uncertainty at the time as to the precise divide Sebatik Island extent of the territories belonging to the two parties” and “was a boundary line, mentions “the occurrence of occasional Anglo-Dutch not an allocation line”, confrontations as a result of these uncertainties”. • that the line “was adopted as a - the travaux préparatoires of the 1891 Convention, compromise only after though containing no express indication as to whether the 4° 10' N line was Ligitan and Sipadan were British or Dutch, confirm its agreed as a boundary interpretation of Article IV. line for the mainland of 15

The official record of a negotiation

16 14

Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion, 1925, P.C.I.J., Series B, No. 12, p. 20.

see for example Territorial Dispute (Libyan Arab Jamahiriya/Chad), I.C.J. Reports 1994, p. 27, para. 55; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 21, para. 40

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-there can be no doubt that during the negotiations leading up to the signature of the Convention the two parties, and in particular Great Britain, envisaged a line continuing out to sea to the east of the island of Borneo. -submits several maps used by the parties’ delegations during the negotiations to support its arguments. Says that these maps “show a consistent pattern of the line of proposed settlement, wherever it might finally run, being extended out to sea along a relevant parallel of latitude”.

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Borneo”, and that the line in question “related only to the island of Sebatik and not to other islands well to the east”.

-in any event this could not have been a matter of drawing a “boundary line” in the open seas because at the time in question maritime delimitation could not extend beyond territorial waters.

paras 56-58 ICJ ON THE TRAVAUX PRÉPARATOIRES & CIRCUMSTANCES OF THE CONCLUSION OF THE 1891 CONVENTION: History of the Convention: Following its formation, the BNBC asserted rights which it believed it had acquired from Alfred Dent and Baron von Overbeck to territories situated on the north-eastern coast of the island of Borneo (in the State of Tidoeng “as far south as the Sibuco River”); confrontations then occurred between the BNBC and the Netherlands, the latter asserting its rights to the Sultan of Bulungan’s possessions, “with inclusion of the Tidoeng territories”. Hence, Great Britain and the Netherlands set up a Joint Commission in 1889 to discuss the bases for an agreement to settle the dispute. The Commission was appointed “to take into consideration the question of the disputed boundary between the Netherland Indian possessions on the north-east coast of the Island of Borneo and the territory belonging to the British North Borneo Company”. It was provided that “in the event of a satisfactory understanding”, the two governments would define the “inland boundary-lines which separate the Netherland possessions in Borneo from the territories belonging to the States of Sarawak, Brunei, and the British North Borneo Company respectively”. The Joint Commission’s task was thus confined to the area in dispute, on the north-eastern coast of Borneo. Accordingly, it was agreed that, once this dispute had been settled, the inland boundary could be determined completely, as there was clearly no other point of disagreement between the parties. The Joint Commission met three times and devoted itself almost exclusively to questions relating to the disputed area of the north-east coast. It was only at the last meeting, held on 27 July 1889, that the British delegation proposed that the boundary should pass between the islands of Sebatik and East Nanukan. This was the first proposal of any prolongation of the inland boundary out to sea. However, diplomatic correspondence after the dissolution of the commission shows that the Netherlands had rejected the British proposal.

The specific idea of Sebatik Island being divided along the 4° 10' N parallel was only introduced later. In a letter of 2 February 1891 to the British Secretary for Foreign Affairs from the Dutch Minister in London, the latter stated that the Netherlands agreed with this partition. The Secretary for Foreign Affairs, in his reply dated 11 February 1891, acknowledged this understanding and enclosed a draft agreement. Article 4 of the draft is practically identical in its wording to Article IV of the 1891 Convention. In the draft agreement (proposed by Great Britain) the two sentences of Article 4 are separated by a semicolon. In the final English text, the semicolon was replaced by a colon without the travaux préparatoires shedding any light on the reasons for this change. Consequently, no firm inference can be drawn from the change. There were no further difficulties and the Convention was signed on 20 June 1891. During the negotiations, the parties used various sketch-maps to illustrate their proposals and opinions. Some of these sketch-maps showed lines drawn in pencil along certain parallels and continuing as far as the margin. Since the reports accompanying the sketchmaps do not provide any further explanation, the Court considers that it is impossible to deduce anything at all from the length of these lines. There is however one exception. In an internal Foreign Office memorandum, drafted in preparation for the meeting of the Joint Commission, the following suggestion was made: “Starting eastward from a point A on the coast near Broers Hoek on parallel 4° 10' of North Latitude, the line should follow that parallel until it is intersected by . . . the Meridian 117° 50' East Longitude, opposite the Southernmost point of the Island of Sebattik 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 of the Meridian of 118° 44' 30" marked D.” This suggestion was illustrated on a map that is reproduced as map No. 4 of Indonesia’s map atlas. Sipadan is to the west of point D and Ligitan to the east of this point. Neither of the two islands appears on the map. However, there is nothing in the case file to prove that the suggestion was ever brought to the attention of the Dutch Government or that the line between points C and D had ever been the subject of discussion between the parties. Although put forward in one of the many British internal documents drawn up during the negotiations, the suggestion was never actually adopted. Once the parties arrived at an agreement on the partition of Sebatik, they were only interested in the boundary on the island of Borneo itself and exchanged no views on an allocation of the islands in the open seas to the east of Sebatik. CONCLUSION: NEITHER THE TRAVAUX PRÉPARATOIRES OF THE CONVENTION NOR THE CIRCUMSTANCES OF ITS CONCLUSION CAN BE REGARDED AS SUPPORTING THE POSITION OF INDONESIA when it contends that the parties to the Convention agreed not only on the course of the land boundary but also on an allocation line beyond the east coast of Sebatik. paras 59-60 INDONESIA -this map can also be seen as “a subsequent agreement or as subsequent practice for the purposes of Article 31.3 (a) and (b) of the

On the explanatory memorandum map MALAYSIA -map was not annexed to the 1891 Convention, which made no mention of it. Hence, this is not a map to which the parties to the Convention agreed. -“[t]he internal Dutch map attached to the Explanatory Memorandum was the object of no specific comment during the Always will B

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Vienna Convention” on the Law of Treaties.

[parliamentary] debate and did not call for any particular reaction”. Hence, it cannot be seen as “a subsequent agreement or as subsequent practice for the purposes of Article 31.3 (a) and (b) of the Vienna Convention” on the Law of Treaties.

61. ICJ ON THE MAP: See above for the court’s view on the legal value of the map. This map cannot be seen as “a subsequent agreement or as subsequent practice for the purposes of Article 31.3 (a) and (b) of the Vienna Convention”. paras 62-63 On the 1893 Amendment to the 1850 & 1878 Contracts of Vassalage with the Sultan of Bulungan INDONESIA MALAYSIA -provides a further indication of the interpretation given by the -that the small islands Netherlands Government to the 1891 Convention. referred to in the 1893 amendment are those -the aim of the amendment was to redefine the territorial which “belong” to the extent of the Sultanate of Bulungan to take into account the three expressly provisions of the 1891 Convention. designated islands, namely Tarakan, -The new definition of 1893, “[t]he Islands of Tarakan and Nanukan and Sebatik, Nanoekan and that portion of the Island of Sebitik, situated to and which are situated to the south of the above boundary-line . . . belong to the south of the boundary Boeloengan, as well as the small islands belonging to the thus determined above islands, so far as they are situated to the south of the boundary-line . . .” indicates that the Netherlands Government - that it would be fanciful considered in 1893 that the purpose of the 1891 Convention “to see this as was to establish, in relation to islands, a line of territorial establishing an allocation attribution extending out to sea. perimeter projected 50 miles out to sea”. -the British Government showed acquiescence in this interpretation, because the text of the 1893 amendment was officially communicated to the British Government on 26 February 1895 without meeting with any reaction. 64. ICJ ON THE 1893 AMENDMENT: -the relations between the Netherlands and the Sultanate of Bulungan were governed by a series of contracts entered into between them. -The Contracts of 12 November 1850 and 2 June 1878 laid down the limits of the Sultanate. These limits extended to the north of the land boundary that was finally agreed in 1891 between the Netherlands and Great Britain. -This is why the Netherlands had consulted the Sultan before concluding the Convention with Great Britain and was moreover obliged in 1893 to amend the 1878 Contract in order to take into account the delimitation of 1891. -The new text stipulated that the islands of Tarakan and Nanukan, and that portion of the island of Sebatik situated to the south of the boundary line, belonged to Bulungan, together with “the small islands belonging to the above islands, so far as they are situated to the south of the boundary-line”.

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-these three islands are surrounded by many smaller islands that could be said to “belong” to them geographically. CONCLUSION: 1. This cannot apply to Ligitan and Sipadan, which are situated more than 40 nautical miles away from the three islands in question. 2. in any event, this instrument, whatever its true scope may have been, was res inter alios acta17 for Great Britain (the contracts were between Netherlands and the Sultan of Bulungan) and therefore it could not be invoked by the Netherlands in its treaty relations with Great Britain. paras 65-69 On the Agreements between Great Britain and the Netherlands and the maps attached INDONESIA MALAYSIA -invokes the Agreements in support of its -considers that these Agreements contradict claim Indonesia’s interpretation of Art. IV On the 1915 Agreement (Sept. 28, 1915) (pursuant to Art. V of the 1891 Convention, concerning the boundary between the State of North Borneo and the Dutch possessions on Borneo) -stresses that this was a demarcation agreement which, by definition, could only concern the inland part of the boundary -the fact that this Agreement does mention the boundary eastward of island of Sebatik does not imply that 1891 Convention did not establish eastward boundary out to sea.

not the the an

-It states that, unlike in the case of the islands of Borneo and Sebatik, where demarcation was physically possible, such an operation was not possible in the sea east of Sebatik. -that the fact that the Commissioners’ work started at the east coast of Sebatik does not mean that the 1891 Convention line began there, any more than the fact that their work ended after covering some 20 per cent of the boundary can be interpreted to mean that the boundary did not continue any further.

-the Agreement “starts by stating that the frontier line traverses the island of Sebatik following the parallel of 4° 10' N latitude marked on the east and west coasts by boundary pillars, then follows the parallel westward”. This wording “is exclusive of any prolongation of the line eastward”. -The Agreement could not be considered exclusively as a demarcation agreement -the Commissioners did not perform an exercise of demarcation stricto sensu, as they took liberties with the text of the 1891 Convention at a number of points on the land boundary, and these liberties were subsequently endorsed by the signatories of the 1915 Agreement. As an example, Malaysia referred to the change made by the Commissioners to the boundary line in the channel between the west coast of Sebatik and mainland Borneo, for the purpose of reaching the middle of the mouth of the River Troesan Tamboe.

-contrary to what Malaysia suggests, the Commissioners’ report did not say that the 17

(A thing done between others) is a law doctrine which holds that a contract cannot adversely affect the rights of one who is not a party to the contract.

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boundary started on the east coast of Sebatik but indicated only that “[t]raversing the island of Sibetik, the frontier line follows the parallel of 4° 10' north latitude . . .”. On the 1928 Agreement (26 March 1928) (pursuant to Art. V of the 1891 Convention, for the purpose of “further delimiting part of the frontier established in Art. III of the Convention (“between the summits of the Gunong Api and of the Gunong Raya”); a map was attached to that agreement) -the same (about the commissioner’s work) applies to the 1928 Agreement, whereby the parties to the 1891 Convention agreed on a more precise delimitation of the boundary, as defined in Article III of the Convention, between the summits of the Gunong Api and of the Gunong Raya.

-this instrument confirms the 1915 Agreement, since the Netherlands Government could have taken the opportunity to correct the 1915 map and Agreement if it had so wished.

On the maps attached to the 1915 & 1928 Agreements -acknowledges that they showed no seaward extension of the line along the 4º 10' N parallel referred to in Article IV of the 1891 Convention -recognizes that these maps formed an integral part of the agreements and that as such they therefore had the same binding legal force as those agreements for the parties. -nevertheless stresses that the maps attached to the 1915 and 1928 Agreements should in no sense be considered as prevailing over the Dutch Explanatory Memorandum map of 1891 in relation to stretches of the 1891 Convention line which were beyond the reach of the 1915 and 1928 Agreements

On the 1915 map -the map referred to in the preamble to the Agreement and annexed to it confirms that the boundary line started on the east coast of Sebatik Island and did not concern Ligitan or Sipadan. -on this map the eastern extremity of the boundary line is situated on the east coast of Sebatik and that the map shows no sign of the line being extended out to sea. -however, from the western endpoint of the boundary the map shows the beginning of a continuation due south. Hence, “if the Commissioners had thought the [1891 Convention] provided for an extension of the boundary line eastwards by an allocation line, they would have likewise indicated the beginning of such a line” as they had done at the other end of the boundary. -the Commissioners not only chose not to extend the line on the map but they even indicated the end of the boundary line on the map by a red cross. Malaysia adds that the evidentiary value of the map annexed to the 1915 Agreement is all the greater because it is “the only official map agreed by the Parties”.

paras 70-74 ICJ ON THE 1915 AND 1928 AGREEMENTS AND THE MAPS: -the 1891 Convention provided for future determinations of the boundary line. Art V of the Convention states: “The exact positions of the boundary-line, as described in the four preceding Articles, shall be determined hereafter by mutual agreement, at such times as the Netherland and the British Governments may think fit.” -Great Britain and the Netherlands concluded 2 Agreements pursuant to this. 1. ANENT THE 1915 AGREEMENT which was the 1st, relating to “the boundary between the State of North Borneo and the Netherland possessions in Borneo”. History of the Agreement: The origin of the agreement was a difference of opinion between the Netherlands and Great Britain in respect of the course of the boundary line. The difference concerned the manner in which Article II of the 1891 Convention should be interpreted. That provision was, by way of exchange of letters of 16 March and 3 October 1905 between Baron Gericke, Netherlands Minister in London, and the Marquess of Lansdowne, British Foreign Secretary, given an interpretation agreed by the two Governments. In 1910, the Netherlands Minister for the Colonies made known to the Foreign Office, by way of communication dated 19 November 1910 from the Netherlands Chargé d’affaires, his view that “the time [had] come to open the negotiations with the British Government mentioned in the [Convention] of June 20, 1891, concerning the indication of the frontier between British North Borneo and the Netherland Territory”. He stated in particular that the uncertainty as to the actual course of the boundary made itself felt “along the whole” boundary. For that purpose, he proposed that “a mixed Commission . . . be appointed to indicate the frontier on the ground, to describe it and to prepare a map of same”. As the proposal was accepted, a mixed Commission carried out the prescribed task between 8 June 1912 and 30 January 1913. By the 1915 Agreement, the two States approved and confirmed a joint report, incorporated into that Agreement, and the map annexed thereto, which had been drawn up by the mixed Commission. The Commissioners started their work on the east coast of Sebatik and, from east to west, undertook to “delimitate on the spot the frontier” agreed in 1891, as indicated in the preamble to the Agreement. ICJ: the Commissioners’ assignment was not simply a demarcation exercise, the task of the parties being to clarify the course of a line which could only be imprecise in view of the somewhat general wording of the 1891 Convention and the line’s considerable length. -the intention of the parties to clarify the 1891 delimitation and the complementary nature of the demarcation operations become very clear when the text of the Agreement is examined carefully: “[w]here physical features did not present natural boundaries conformable with the provisions of the Boundary Treaty of the 20th June, 1891, [the Commissioners] erected the following pillars”. -the course of the boundary line finally adopted in the 1915 Agreement does not totally correspond to that of the 1891 Convention. -Thus, as Malaysia points out, whereas the sector of the boundary between Sebatik Island and Borneo under Art. IV of the 1891 Convention was to follow a straight line along the parallel of 4° 10' latitude north (see paragraph 36 above), the 1915 Agreement stipulates that: Always will B

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“(2) Starting from the boundary pillar on the west coast of the island of Sibetik, the boundary follows the parallel of 4o10' north latitude westward until it reaches the middle of the channel, thence keeping a mid-channel course until it reaches the middle of the mouth of Troesan Tamboe.

CONCLUSION: in rejection of Indonesia’s argument: The 1915 Agreement is not purely a demarcation Agreement nor does the nature of the Agreement show that the parties were not required to concern themselves therein with the course of the line out to sea to the east of Sebatik Island.

(3) From the mouth of Troesan Tamboe the boundary line is continued up the middle of this Troesan until it is intersected by a similar line running through the middle of Troesan Sikapal; it then follows this line through Troesan Sikapal as far as the point where the latter meets the watershed between the Simengaris and Seroedong Rivers (Sikapal hill), and is connected finally with this watershed by a line taken perpendicular to the centre line of Troesan Sikapal”.

2. ANENT THE MAP ANNEXED TO THE 1915 AGREEMENT -An examination of this map reinforces ICJ’s interpretation of the Agreement -The map, together with the map annexed to the 1928 Agreement, is the only one which was agreed between the parties to the 1891 Convention. -On this map, an initial southward extension of the line indicating the boundary between the Netherlands possessions and the other States under British protection is shown beyond the western endpoint of the boundary defined in 1915, while a similar extension does not appear beyond the point situated on the east coast of Sebatik; that latter point was, in all probability, meant to indicate the spot where the boundary ended.

-In connection with this agreement, the Court notes a number of elements which, when taken as a whole, suggest that the line established in 1891 terminated at the east coast of Sebatik.

• • •

•

•

the title of the 1915 Agreement is very general in nature (“Agreement between the United Kingdom and the Netherlands relating to the Boundary between the State of North Borneo and the Netherland Possessions in Borneo”), as is its wording. Thus, the preamble to the Agreement refers to the joint report incorporated into the Agreement and to the map accompanying it as “relating to the boundary between the State of North Borneo and the Netherland possessions in the island”, without any further indication. paras 1 and 3 of the joint report state that the Commissioners had “travelled in the neighbourhood of the frontier from the 8th June, 1912, to the 30th January, 1913” and had “determined the boundary between the Netherland territory and the State of British North Borneo, as described in the Boundary Treaty supplemented by the interpretation of Art. 2 of the Treaty mutually accepted by the Netherland and British Governments in 1905” the Commissioners, far from confining their examination to the specific problem which had arisen in connection with the interpretation of Art. II of the 1891 Convention also considered the situation in respect of the boundary from Sebatik westward. Thus, they began their task at the point where the 4° 10' latitude north parallel crosses the east coast of Sebatik; they then simply proceeded from east to west. subparagraph (1) of par. 3 of the joint report describes the boundary linefixed by Art. IV of the 1891 Convention as follows: “Traversing the island of Sibetik, the frontier line follows the parallel of 4° 10' north latitude, as already fixed by Art. 4 of theBoundary Treaty and marked on the east and west coasts by boundary pillars”

-In sum, the 1915 Agreement covered a priori the entire boundary “between the Netherland territory and the State of British North Borneo” and the Commissioners performed their task beginning at the eastern end of Sebatik. In the opinion of the Court, if the boundary had continued in any way to the east of Sebatik, at the very least some mention of that could have been expected in the Agreement.

3. ANENT THE 1928 AGREEMENT which was concluded by the parties on26 March 1928. - had a much more limited object than the 1915 Agreement although also bearing a title worded in general terms (“Convention between GreatBritain and Northern Ireland and the Netherlands respecting the Further Delimitation of theFrontier between the States in Borneo under British Protection and the Netherlands Territory in thatIsland”), Article 1 indicates that “The boundary as defined in Art. III of the 1981Convention is further delimited between the summits of the Gunong Api and of the Gunong Raya as described in the following article and as shown on the map attached to this Convention.” -Hence, this is an agreement providing for both a more exact delimitation of the boundary in the sector in question and its demarcation, not solely a demarcation treaty. CONCLUSION: In 1928 it was a matter of carrying out the detailed delimitation and demarcation of only a limited inland boundary sector. Hence, ICJ cannot draw any conclusions, for the purpose of interpreting Art. IV, from the fact that the 1928 Agreement fails to make any reference to the question of the boundary line being extended, as an allocation line, out to sea east of Sebatik. paras 75-76 ON AN INTERNAL DEBATE (that took place within the Dutch Government between 1922 and 1926 over whether the issue of the delimitation of the territorial waters off the east coast of the island of Sebatik should be raised with the British Government) INDONESIA MALAYSIA -sets out the various options that had been -the proposal by certain Dutch authorities to envisaged in this respect: delimit the territorial waters by a line 1. consisted in considering that the perpendicular to the coast from the 1891 Convention also established a endpoint of the land boundary as boundary for the territorial sea at 3 nautical particularly significant as this would have miles from the coast. made it more difficult for the Dutch 2. consisted in drawing a line Government to make any subsequent claim perpendicular to the coast at the terminus to sovereignty over distant islands situated of the land boundary, as recommended by to the south of an allocation line along the the rules of general IL that were applicable 4º 10' N parallel. at the time. -in view of this debate, it is difficult to argue Always will B

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-the final view expressed in September 1926 by the Minister for Foreign Affairs of the Netherlands, who had opted for the perpendicular line, was that it was not opportune to raise the matter with the British Government.

that in 1926 the Dutch authorities considered that any delimitation of territorial waters or the course of an allocation line had been provided for by an agreement between Great Britain and the Netherlands in 1891 or later.

-this internal debate shows that the Dutch authorities took the same position as Indonesia in the present case and saw the 1891 line as an allocation line rather than a maritime boundary.

-concludes from this debate that the Dutch authorities were clearly of the view that no rule of IL called for the prolongation, beyond the east coast of Sebatik, of the 4º 10' N land boundary, and that in any event the authorities did not favour such a solution, considering it to be contrary to Dutch interests.

-the internal Dutch discussions were entirely restricted to the delimitation of the territorial waters off Sebatik Island and did not involve the islands of Ligitan and Sipadan.

77. ICJ ON THE DEBATE: this internal debate sheds light on the views of various Dutch authorities at the time as to the legal situation of the territories to the east of Sebatik Island. -In a letter of 10 December 1922 to the Minister for the Colonies, the GovernorGeneral of the Dutch East Indies proposed certain solutions for the delimitation of the territorial waters off the coast of Sebatik. One of these solutions was to draw “a line which is an extension of the land border”. The Ministry of Foreign Affairs was also consulted. -In a Memorandum of 8 August 1923, it also mentioned the “extension of the land boundary” dividing Sebatik Island as the possible boundary between Dutch territorial waters and the territorial waters of the State of North Borneo. -In support of this solution, the Ministry of Foreign Affairs invoked the map annexed to the Explanatory Memorandum, “on which the border between the areas under Dutch and British jurisdiction on land and sea is extended along the parallel 4° 10' N”. -The Ministry however added that “this map [did] not result from actual consultation” between the parties, although it was probably known to the British Government. -Nevertheless, in his letter of 27 September 1926 to the Minister for the Colonies, the Minister for Foreign Affairs, whilst not considering it desirable to raise the question with the British Government, put forward the perpendicular line as being the best solution. -In the end this issue was not pursued and the Dutch Government never drew it to the attention of the British Government. CONCLUSION: The correspondence suggests that, in the 1920s, the best informed Dutch authorities did not consider that there had been agreement in 1891 on the extension out to sea of the line drawn on land along the 4° 10' north parallel. 78.

On the granting of oil concessions in the area INDONESIA MALAYSIA -in granting oil concessions in the area, both Parties -the oil concessions in the

always respected the 4° 10' North latitude as forming the limit of their respective jurisdiction and as a separation line between Indonesia’s and Malaysia’s respective zones. -accordingly, its grant of a licence to Japex/Total demonstrates that it considered that its jurisdictional rights extended up to the 4° 10' N line. -Malaysia acted in similar fashion in 1968 when it granted an oil concession to Teiseki, pointing out that the southern limit of this concession virtually coincides with that parallel.

1960s did not concern territorial delimitation -that the islands of Ligitan and Sipadan were never included in the concession perimeters. -that “no activity pursuant to the Indonesian concessions had any relation to the islands”

79. ICJ ON THE GRANT OF OIL CONCESSIONS: -the limits of the oil concessions granted in the area to the east of Borneo did not encompass the islands of Ligitan and Sipadan. -the northern limit of the exploration concession granted in 1966 by Indonesia and the southern limit of that granted in 1968 by Malaysia did not coincide with the 4° 10' north parallel but were fixed at 30" to either side of that parallel. -These limits may have been simply the manifestation of the caution exercised by the Parties in granting their concessions. -This caution was all the more natural in the present case because negotiations were to commence soon afterwards between Indonesia and Malaysia with a view to delimiting the continental shelf. CONCLUSION: ICJ cannot therefore draw any conclusion for purposes of interpreting Art. IV of the 1891 Convention from the practice of the Parties in awarding oil concessions. 80. CONCLUSION ON THE EXAMINATION OF THE SUBSEQUENT PRACTICE OF THE PARTIES: confirms the conclusions in par. 52: Art. IV of the 1891 Convention cannot be interpreted as establishing an allocation line determining sovereignty over the islands out to sea, to the east of the island of Sebatik. paras 81-87 Both parties produced a series of maps of various natures and origins produced by the parties in support of their respective interpretations of Art. IV Indonesia has submitted a certain number of maps published after the 1891 Convention showing a line continuing out to sea off the eastern coast of Sebatik Island, along the parallel of 4° 10' latitude north. On Indonesia’s maps INDONESIA MALAYSIA Maps produced by Indonesia: 1. “Dutch” or “Indonesian” maps, such as the map annexed to the Dutch Explanatory Memorandum of 1891 and a map of Borneo taken from an Indonesian atlas of 1953. 2.“British” or “Malaysian” maps, such as: • 3 maps published by Stanford in 1894, 1903 and 1904 respectively, Always will B

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• • • • •

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a map of Tawau “produced by Great Britain in 1965”, two “maps of Malaysia of 1966 of Malaysian origin”, a “Malaysian map of Semporna published in 1967”, the “official Malaysian map of the 1968 oil concessions showing the international boundary”, another map of Malaysia “published by the Malaysian Directorate of National Mapping in 1972”, etc.

3. A map from an American atlas of 1897 annexed by the US to its Memorial in the Island of Palmas Arbitration. -the maps it has produced “are consistent in depicting the boundary line as extending offshore to the north of the known locations of the islands of Ligitan and Sipadan, thus leaving them on what is now the Indonesian side of the line”.

-“Indonesia has produced not a single Dutch or Indonesian map, on any scale, which shows the islands and attributes them to Indonesia”.

-“it was only in 1979, well after the dispute had arisen, that Malaysia’s maps began to change in a selfserving fashion”

-the Indonesian official archipelagic claim map of 1960 clearly does not treat the islands as Indonesian

-As regards the maps’ legal value: a number of these maps fall into the category of the “physical expressions of the will of the State or the States concerned” and that, while “these maps do not constitute a territorial title by themselves, they command significant weight in the light of their consistent depiction of the 1891 Treaty line as separating the territorial possessions, including the islands, of the Parties”.

-the Dutch maps of 1897-1904 and of 1914 clearly show the boundary terminating at the east coast of Sebatik.

-even Indonesian maps published since 1969 do not show the islands as Indonesian. -recognizes that some modern maps might be interpreted in a contrary sense, but it contends that these are relatively few in number and that their legal force is reduced by the fact that each of them contains a disclaimer in regard to the accuracy of the boundaries. -moreover, on the majority of these latter maps the islands of Ligitan and Sipadan are not shown at all, are in the wrong place, or are not shown as belonging to Malaysia or to Indonesia

Malaysia has produced various maps on which the boundary line between the British and Dutch possessions in the region stops on the eastern coast of Sebatik Island. On Malaysia’s Maps INDONESIA MALAYSIA Malaysia relies in particular on the map annexed to the 1915 Agreement other Maps produced: 1. Dutch maps,

• •

including inter alia the map entitled “East coast of Borneo: Island of Tarakan up to Dutch-English boundary” dated 1905, two maps of 1913 showing the “administrative structure of the Southern and

• • • •

Eastern Borneo Residence”, the map showing the 1915 boundary line published in the Official Gazette of the Dutch Colonies in 1916. the map made in 1917 “by the Dutch official, Kaltofen”, which, according to Malaysia, “is a hand-drawn ethnographic map of Borneo”, a map of “Dutch East Borneo” dated 1935, and the 1941 map of “North Borneo”.

2. British Maps • the map published in 1952 by the “Colony of North Borneo”, • the “schematic map” of administrative districts of the colony of North Borneo dated 1953, and • the map of “the Semporna police district of 1958, by S. M. Ross”. 3. A map of British North Borneo annexed to the 1907 Exchange of Notes between Great Britain and the United States, 4. Indonesia’s continental shelf map of 1960 5. A 1976 Malaysian Map entitled “Bandar Seri Begawan” -it is logical that the map attached to the 1915 Agreement should not show the line extending eastward of the island of Sebatik along the 4° 10' N parallel, since it was concerned only with the territorial situation on the island of Borneo.

-the map annexed to the 1915 Agreement is the only official map agreed by the parties.

-virtually none of them actually shows Ligitan and Sipadan as Malaysian possessions.

- all of these maps clearly show that the boundary line between the Dutch and British possessions in the area did not extend into the sea east of Sebatik and that Ligitan and Sipadan were both regarded, depending on the period, as being British or Malaysian islands.

-the only map which depicts the disputed islands as Malaysian possessions “is a map prepared in 1979 to illustrate Malaysia’s claim to the area”. And this having been published 10 years after the dispute over the islands crystallized in 1969, is without legal relevance in the case. -the maps relied on by Malaysia, which do not depict the 1891 line as extending out to sea, “are entirely neutral with respect to the territorial attribution of the islands of Sipadan or Ligitan”. -with reference to the maps produced by Malaysia in its Memorial under the head of “Other Maps”, Indonesia asserts that none of these supports Malaysia’s contentions as to sovereignty over the two islands.

paras 88-91 ICJ ON THE MAPS SUBMITTED: 1. ICJ already had occasion to rule on the legal value of maps: “maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights. Of Always will B

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course, in some cases maps may acquire such legal force, but where this is so the legal force does not arise solely from their intrinsic merits: it is because such maps fall into the category of physical expressions of the will of the State or States concerned. This is the case, for example, when maps are annexed to an official text of which they form an integral part. Except in this clearly defined case, maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts.”18 -In this case, no map reflecting the agreed views of the parties was appended to the 1891 Convention, which would have officially expressed the will of Great Britain and the Netherlands as to the prolongation of the boundary line, as an allocation line, out to sea to the east of Sebatik Island. 2. The Parties made particular reference to two maps: (1) the map annexed to the Explanatory Memorandum appended by the Netherlands Government to the draft Law submitted to the States-General for the ratification of the 1891 Convention, and (2) the map annexed to the 1915 Agreement. The Court had already declared that the map annexed to the Explanatory memorandum has no legal value and that the 1915 Agreement map reinforces ICJ’s interpretation (see paras 46-48 & 70-74). 3. On the Maps produced by Indonesia: -The manner in which these maps represent the continuation out to sea of the line forming the land boundary varies from one map to another. -Moreover, the length of the line extending out to sea varies considerably: on some maps it continues for several miles before stopping approximately halfway to the meridians of Ligitan and Sipadan, whilst on others it extends almost to the boundary between the Philippines and Malaysia. 4. On Malaysia’s Maps: -each of these maps was produced for specific purposes and it is therefore unable to draw from those maps any clear and final conclusion as to whether or not the line defined in Article IV of the 1891 Convention extended to the east of Sebatik Island. -Moreover, Malaysia was not always able to justify its criticism of the maps submitted by Indonesia. -Malaysia thus contended that the line shown on the Stanford maps of 1894, 1903 and 1904, extending out to sea along the parallel of 4° 10' latitude north, corresponded to an administrative boundary of North Borneo, but could not cite any basis other than the 1891 Convention as support for the continuation of that State’s administrative boundary along the parallel in question. CONCLUSION: With the exception of the map annexed to the 1915 Agreement the cartographic material submitted by the Parties is inconclusive in respect of the interpretation of Article IV of the 1891 Convention. 92. CONCLUSION ON THE INTERPRETATION OF ART. IV: Art. IV, interpreted in its context and in the light of the object and purpose of the Convention, determines the boundary between the two Parties up to the eastern extremity of Sebatik Island and does not establish any allocation line further eastwards. Conclusion is confirmed both 18

Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 582, para. 54; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1098, para. 84

20

by the travaux préparatoires and by the subsequent conduct of the parties to the 1891 Convention. par. 93: ISSUE 2: WHETHER INDONESIA OR MALAYSIA OBTAINED A TREATY-BASED TITLE TO LIGITAN AND SIPADAN OR BY SUCCESSION19 paras 94-96 On Indonesia’s title by succession INDONESIA MALAYSIA -claims title as successor to the - Ligitan and Sipadan never belonged to the Netherlands, which in turn acquired its title possessions of the Sultan of Bulungan. through contracts with the Sultan of Bulungan, the original title-holder ICJ ON INDONESIA’S CLAIM OF SUCCESSION: -ICJ already dealt with the various Contracts of Vassalage in consideration of the 1891 convention (see paras 18 & 64)20 -In the 1878 Contract the island possessions of the Sultan were described as “Terekkan [Tarakan], Nanoekan [Nanukan] and Sebittikh [Sebatik], with the islets belonging thereto”. -As amended in 1893, this list refers to the three islands and surrounding islets in similar terms while taking into account the division of Sebatik on the basis of the 1891 Convention. CONCLUSION: (As stated above) “the islets belonging thereto” can only be interpreted as referring to the small islands lying in the immediate vicinity of the three islands which are mentioned by name, and not to islands which are located at a distance of more than 40 nautical miles. Hence, Indonesia’s contention that it inherited title to the disputed islands from the Netherlands through these contracts, which stated that the Sultanate of Bulungan as described in the contracts formed part of the Netherlands Indies cannot be accepted. paras 97-107 On Malaysia’s “chain of title” INDONESIA -if the title to the islands in dispute of only one of the entities mentioned in the chain of alleged title-holders cannot be proven to have been “demonstrably valid”, the legal foundation of Malaysia’s “chain of title” argument 19

MALAYSIA On the chain of title 1. Chain of title: a series of alleged transfers of the title originally held by the former sovereign, the Sultan of Sulu, that title having allegedly passed in turn to Spain, the US, Great Britain on behalf of the State of North Borneo, the United Kingdom of Great Britain and Northern Ireland and finally to Malaysia. -this “chain of title” provides it with with a treaty-based

See paragraphs 124 & 125 for the conclusion (page 22)

20

ICJ said that the 1893 Amendment (between the Netherlands and the Sultan of Bulungan, which was made to take into account the delimitation in the 1891 Convention) 1. cannot apply to Ligitan and Sipadan, which are situated more than 40 nautical miles away from the three islands in question. and 2. was res inter alios acta for Great Britain

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disappears.

title to Ligitan and Sipadan:

-the disputed islands cannot be regarded as falling at the time in question within the area controlled by the Sultan of Sulu, as he was never present south of Darvel Bay except through some commercial influence which in any event was receding when the 1891 Convention was concluded.

2. In respect of the original title, “in the 18th and throughout the 19th century until 1878, the coastal territory of north-east Borneo and its adjacent islands was a dependency of the Sultanate of Sulu”.

-there may have been alliances between the Sultan of Sulu and some Bajau Laut groups, but argues that those ties were personal in nature and are not sufficient in any event to establish territorial sovereignty over the disputed islands.

“this control resulted from the allegiance of the local people and the appointment of their local chiefs by the Sultan”, but that his authority over the area in question was also recognized by other States, notably Spain and the Netherlands. 3. during the 19th and 20th centuries, the islands and reefs along the north-east coast of Borneo were inhabited and used by the Bajau Laut, or Sea Gypsies, people who live mostly on boats or in settlements of stilt houses above water and devote themselves in particular to fishing, collecting forest products and trade.

Governments of Germany and Great Britain recognize the sovereignty of Spain over the places effectively occupied, as well as over those places not yet so occupied, of the archipelago of Sulu (Joló)”. -This reflected the spirit of the 1877 Protocol which required Spain to give Germany and Great Britain notice of any further occupation of the islands of the Sulu Archipelago before being entitled to extend to those new territories the agreed régime for the territories already occupied by it, which provision was repeated in Art. 4 of the 1885 Protocol. -Spain however never actually occupied the islands of Ligitan and Sipadan after the conclusion of the 1885 Protocol and, accordingly, was never in a position to give such notice to the other contracting parties.

4. In respect specifically of Ligitan and Sipadan: even though these islands were not permanently inhabited at the time of the main decisive events in respect of sovereignty over them, that is, the latter part of the nineteenth century and the twentieth century, they were nevertheless frequently visited and were an integral part of the marine economy of the Bajau Laut.

Concerning the transfer of sovereignty over the islands of Ligitan and Sipadan by the Sultan of Sulu to Spain: -there is no evidence to show that Ligitan and -“Art. I of the 1878 Protocol21 declared ‘as Sipadan were ever Spanish possessions. beyond discussion the sovereignty of Spain over all the Archipelago of Sulu -the disputed islands were not identified in any and the dependencies thereof’”. of the agreements concluded between Spain and the Sultan. -pursuant to the 1885 Protocol22, the Germany and Great Britain recognized -Art. 1 of the 1885 Protocol states: “The Spain’s sovereignty over the entire Sulu

Archipelago as defined in Art. 2 of that instrument, which states that the Archipelago included “all the islands which are found between the western extremity of the island of Mindanao, on the one side, and the continent of Borneo and the island of Paragua, on the other side, with the exception of those which are indicated in Article 3”. -This definition of the Archipelago is in conformity with that set out in Art. I of the 1836 Capitulations/Treaty between Spain and the Sultan of Sulu23. -“whatever the position may have been in 1878, the sovereignty of Spain over the Sulu Archipelago [and the dependencies thereof] was clearly established in 1885”.

Concerning the transfer by Spain to the United States The Treaty of Paris (1898 Treaty of Peace)24 -it was generally recognized that those islands were not covered by the allocation lines laid down in the Treaty of Paris -Nevertheless, the Sultan of Sulu expressly recognized US sovereignty over the whole Sulu Archipelago and its dependencies by an Agreement dated 20 August 1899. The 1900 -the Treaty only concerned those islands belonging to the Philippine Archipelago lying outside the line agreed to in the Treaty of Paris and provided that in particular the islands of Cagayan Sulu, Sibutu and their dependencies were amongst the territories ceded by Spain to the US.

21

(see par. 15) 22 July 1878, confirming the Bases of Peace and Capitulation of 1836

23

(See par. 15) 23 September 1836

22

(see par. 21) 7 March 1885, between Spain, Germany and Great Britain

24

See paragraph 24

Treaty -that omission (from the Treaty of Paris) was remedied by the 1900 Treaty, whereby Spain ceded to the US “any and all islands belonging to the Philippine Archipelago . . . and particularly . . . the islands of Cagayan Sulú and Sibutú and their dependencies”. -the intent to the 1900 Treaty was to bring within the scope of application of the Treaty all

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-However, Ligitan and Sipadan cannot be considered part of the Philippine Archipelago, nor can they be viewed as dependencies of Cagayan Sulu and Sibutu, which lie far to the north. -Thus, they could not have figured among the territories which Spain allegedly ceded to the US under the 1898 and 1900 Treaties. Subsequent events that support Indonesia’s position: 1. The US was uncertain as to the precise extent of the possessions it had obtained from Spain. To wit:

•

•

•

In October 1903 the US Navy Department had recommended the omission of the boundary line shown on certain US charts, particularly the 1903 chart of the “Northern Shore of Sibuko Bay” issued by the US Hydrographic Office in after the voyage of the Quiros. Thus it is “clear that the 1903 chart was a tentative internal position which was subsequently withdrawn after more careful consideration, contrary to Malaysia’s suggestion that it is ‘public assertion’ of US sovereignty. The 1903 chart can therefore not be seen as an official document, and nothing can be made of the fact that it provoked no reaction from the Netherlands.

22

Spanish islands in the region which were not within the lines laid down in the 1898 Treaty. In support of the interpretation of the 1900 Treaty, Malaysia notes that: 1. In 1903, after a visit of the USS Quiros to the region, the US Hydrographic Office published a chart of the “Northern Shore of Sibuko Bay”, showing the disputed islands on the American side of a line separating British territory from US territory. -Therefore, the 1903 chart represented a public assertion by the US of its sovereignty over the additional islands ceded to it under the 1900 Treaty, adding that this assertion of sovereignty occasioned no reaction from the Netherlands.

The 1907 Exch -this consisted only of a temporary arrangement whereby the US waived in favour of the BNBC the administration of certain islands located “to the westward and southwestward of the line traced on the [accompanying] map . . . -however, this was without prejudice to the issue of sovereignty over the islands

2. After the voyage of the Quiros25 the Chairman of the BNBC sent a letter of protest to the British Foreign Office, stating that the Company had been peacefully administering the islands off North Borneo beyond the line of 3 marine leagues without any opposition from Spain. -The BNBC at the same time took steps to obtain confirmation from the Sultan of Sulu of its authority over the islands lying beyond 3 marine leagues. The Sultan provided that confirmation by a certificate signed on 22 April 190326 -the Foreign Office nevertheless had doubts about the international legal effect of the Sultan of Sulu’s 1903 certificate and, faced with the US claims to the islands under the 1900 Treaty, the British Government “rather sought an arrangement with the US that would ensure the continuity of the Company’s administration”. ange of Notes

-attempt of US and Great Britain to settle the questions concerning sovereignty over the islands and their administration by an Exchange of Notes of 3 and 10 July 1907, where Great Britain is said to have recognized the continuing sovereignty of the US, as successor to Spain, over the islands beyond the 3-marine-league limit; And the US to have accepted that these islands had in fact been administered by the BNBC and to have agreed to allow that situation to continue, subject to a right on both parts to terminate the agreement on 12 months’ notice. -All relevant documents clearly show that the islands covered these notes included all those adjacent to the North Borneo coast beyond the 3-marine-league line and that Ligitan and Sipadan were among those islands. -Malaysia relies in particular on the Notes and the map to which it referred and which depicts Ligitan and Sipadan as lying on the British side of the line which separates the slands under British and American administration -1907 Exchange of Notes was published at the time by the US and by Great Britain and that it attracted no protest on the part of the Netherlands Government.

Concerning the transfer by the United States to Great Britain on behalf of North Borneo, The 1930 Convention27 -the documents relating to the -question of sovereignty over the islands situated negotiation of the 1930 beyond the 3-marine league limit laid down in the 1878 Convention show clearly that grant was finally settled28 the US deemed that it had title to islands lying more than 3 -it was agreed that the islands belonging to the marine leagues from the North Philippine Archipelago and those belonging to the State Borneo coast only in areas of North Borneo were to be separated by a line running lying to the north of Sibutu and through ten specific points. its immediate dependencies. -under the 1930 Convention “all islands to the north and -hence, the negotiations east of the line were to belong to the Philippine

25

See paragraph 26

27

(See par. 28) between the US and Great Britain

26

See paragraph 25

28

as the 1907 Exchange of notes had not totally settled the issue

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leading up to the conclusion of the 1930 Convention focused solely on the status of the Turtle Islands and the Mangsee Islands. -in any event, the southern limits of the boundary fixed by the 1930 Convention lay well to the north of latitude 4° 10' north and thus well to the north of Ligitan and Sipadan.

23

Archipelago and all islands to the south and west were to belong to the State of Borneo”. -since Ligitan and Sipadan clearly lie to the south and west of the 1930 line, it follows that they were formally transferred to North Borneo under British protection. -evoked “no reaction from the Netherlands, though one might have been expected if the islands disposed of by it were claimed by the Netherlands even after publication by both by the US and by Great Britain and also in the League of Nations Treaty Series. 1946 Agreement between BNBC and the British Government29 -BNBC ceded to the Crown all its sovereign rights and its assets in North Borneo”. -the disappearance of the State of North Borneo and its replacement by the British Colony of North Borneo had no effect on the extent of the territory belonging to North Borneo

Concerning the transmission of the United Kingdom’s title to Malaysia The 1963 Agreement30 Under this, North Borneo became a State within Malaysia under the name of Sabah ICJ ON MALAYSIA’S CHAIN OF TITLE:

31

108. ICJ’S OBSERVATIONS AT THE OUTSET: 1. the islands in dispute are not mentioned by name in any of the international legal instruments presented by Malaysia to prove the alleged consecutive transfers of title.

ICJ ON THE TRANSFER BY THE SULTAN OF SULU TO SPAIN: via the 1878 & 1885 Protocols 1. Anent Relevant Documents: -not contested that geographically these islands do not belong to the Sulu Archipelago proper. -In all relevant documents, however, the Sultanate is invariably described as “the Archipelago of Sulu and the dependencies thereof” or “the Island of Sooloo with all its dependencies”. -In a number of these documents its territorial extent is rather vaguely defined as “comprising all the islands which are found between the western extremity of the island of Mindanao, on the one side, and the continent of Borneo and the island of Paragua, on the other side” 32 ICJ: These documents therefore, provide no answer to the question whether Ligitan and Sipadan, which are located at a considerable distance from the main island of Sulu, were part of the Sultanate’s dependencies. 2. Anent ties of allegiance between the Sultan of Sulu and Bajau Laut: -Malaysia relies on the ties of allegiance which allegedly existed between the Sultan of Sulu and the Bajau Laut who inhabited the islands off the coast of North Borneo and who from time to time may have made use of the two uninhabited islands. ICJ: Such ties may well have existed but that they are in themselves not sufficient to provide evidence that the Sultan of Sulu claimed territorial title to these two small islands or considered them part of his possessions. Nor is there any evidence that the Sultan actually exercised authority over Ligitan and Sipadan. 3. Anent the alleged transfer of title over Ligitan and Sipadan to Spain, -in the 1878 Protocol33 the Sultan of Sulu definitively ceded the “Archipelago of Sulu and the dependencies thereof” to Spain. -In the 1885 Protocol34

•

2. the two islands were not included in the 1878 grant by which the Sultan of Sulu ceded all his rights and powers over his possessions in Borneo, including the islands within a limit of 3 marine leagues, a fact not contested by the Parties.

•

3. while the Parties both maintain that the islands of Ligitan and Sipadan were not terrae nullius during the period in question in the present case, they do so on the basis of diametrically opposed reasoning, each of them claiming to hold title to those islands. paras 109-114

the Spanish Government relinquished, as far as regarded the British Government, all claims of sovereignty over the territory of North Borneo and the neighbouring islands within a zone of 3 marine leagues, mentioned in the 1878 Grant, whereas Great Britain and Germany recognized Spanish sovereignty over “the places effectively occupied, as well over those places not yet so occupied, of the Archipelago of Sulu (Joló), of which the boundaries are determined in Art. 2” (which contains a rather vague definition: “comprising all the islands which are found between the western extremity of the island of Mindanao, on the one side, and the continent of Borneo and the island of Paragua, on the other side”)

-Uncontested facts:

29

See paragraph 29

30

(See paragraph 30) 9 July 1963 between the Governments of the Federation of Malaya, the United Kingdom of Great Britain and Northern Ireland, North Borneo, Sarawak and Singapore 31

See paragraph 124 for the Court’s conclusion wrt to the chain of title (Malaysia has no treaty-based title)

32

1885 Protocol between Spain, Germany and Great Britain, 7 March 1885 (par. 21); see also the Capitulations concluded between Spain and the Sultan of Sulu, 23 September 1836 (par. 15). 33

(see par. 15) 22 July 1878, between Spain and Sulu Confirming the 1836 Bases of Peace and Capitulation

34

(see par. 21) 7 March 1885, between Spain, Germany and Great Britain,

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• • •

that Spain at no time showed an interest in the islands in dispute or the neighbouring islands and that it did not extend its authority to these islands. That there is no indication in the case file that Spain gave notice of its occupation of these islands, in accordance with the procedure provided for in Art. 4 of the 1885 Protocol. That in the years after 1878, the BNBC gradually extended its administration to islands lying beyond the 3-marine-league limit without, however, claiming title to them and without protest from Spain.

CONCLUSION: LIGITAN AND SIPADAN WERE NOT PART OF THE SULTAN OF SULU’S POSSESSIONS: 1. There is no evidence that -Spain considered Ligitan and Sipadan as covered by the 1878 Protocol between Spain and the Sultan of Sulu or -that Germany and Great Britain recognized Spanish sovereignty over them in the 1885 Protocol. 2. However, it is undisputed that the Sultan of Sulu relinquished the sovereign rights over all his possessions in favour of Spain, thus losing any title he may have had over islands located beyond the 3-marine-league limit from the coast of North Borneo. He was therefore not in a position to declare in 1903 that such islands had been included in the 1878 Grant. 3. Spain was the only State which could have laid claim to Ligitan and Sipadan by virtue of the relevant instruments but that there is no evidence that it actually did so. 4. At the time, neither Great Britain, on behalf of the State of North Borneo, nor the Netherlands explicitly or implicitly laid claim to Ligitan and Sipadan. paras 115-121 ICJ ON THE TRANSFER BY SPAIN TO THE US: via the 1900 Treaty -via the 1900 Treaty where Spain “relinquish[ed] to the US all title and claim of title . . . to any and all islands belonging to the Philippine Archipelago” which had not been covered by the Treaty of Paris. The islands of Cagayan Sulu and Sibutu were particularly mentioned but no other islands which were situated closer to the coast of North Borneo were mentioned by name. 1. Although it is undisputed that Ligitan and Sipadan were not within the scope of the 1898 Treaty of Paris, and the 1900 Treaty does not specify islands, apart from Cagayan Sulu and Sibutu and their dependencies, that Spain ceded to the US, Spain nevertheless relinquished by that Treaty any claim it may have had to Ligitan and Sipadan or other islands beyond the 3-marine-league limit from the coast of North Borneo. 2. Subsequent events show that the US itself was uncertain to which islands it had acquired title under the 1900 Treaty. The correspondence between the US Secretary of State and the US Secretaries of War and of the Navy in the aftermath of the voyage of the USS Quiros and the re-edition of a map of the US Hydrographic Office, the first version of which had contained a line of separation between US and British possessions attributing Ligitan and Sipadan to the US, demonstrate that the State Department had no clear idea of the territorial and maritime extent of the Philippine Archipelago, title to which it had obtained from Spain.

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In this respect the Court notes that the US Secretary of State in his letter of 23 October 1903 to the Acting Secretary of War wrote that a bilateral arrangement with Great Britain was necessary “to trace the line demarking their respective jurisdictions”, whereas with regard to Sipadan he explicitly stated that he was not in a position to determine whether “Sipadan and the included keys and rocks had been recognized as lying within the dominions of Sulu”. 3. The 1907 Exchange of Notes provided for a temporary arrangement between Great Britain and the United States. -did not involve a transfer of territorial sovereignty, -provided for a continuation of the administration by the BNBC of the islands situated more than 3 marine leagues from the coast of North Borneo -but left unresolved the issue to which of the parties these islands belonged. There was no indication to which of the islands administered by the BNBC the US claimed title and the question of sovereignty was therefore left in abeyance. Hence, no conclusion therefore can be drawn from the 1907 Exchange of Notes as regards sovereignty over Ligitan and Sipadan. 4. The 1930 Convention (ended the temporary arrangement in the 1907 exchange of Notes) -a line was drawn separating the islands belonging to the Philippine Archipelago on the one hand and the islands belonging to the State of North Borneo on the other hand. -its Art. III stated that all islands to the south and west of the line should belong to the State of North Borneo. From a point well to the north-east of Ligitan and Sipadan, the line extended to the north and to the east. -did not mention any island by name apart from the Turtle and Mangsee Islands, which were declared to be under US sovereignty. By concluding the 1930 Convention, the US relinquished any claim it might have had to Ligitan and Sipadan and to the neighbouring islands. But the Court cannot conclude either from the 1907 Exchange of Notes or from the 1930 Convention or from any document emanating from the US Administration in the intervening period that the US did claim sovereignty over these islands. Hence, it cannot be said with any degree of certainty, that by the 1930 Convention the US transferred title to Ligitan and Sipadan to Great Britain, as Malaysia asserts. Great Britain however opines that as a result of the 1930 Convention it acquired, on behalf of the BNBC, title to all the islands beyond the 3-marine-league zone which had been administered by the Company, with the exception of the Turtle and the Mangsee Islands. ICJ says: To none of the islands lying beyond the 3-marine-league zone had it ever before laid a formal claim. - issue is less relevant than the fact that Great Britain’s position on the effect of this Convention was not contested by any other State.

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122. The State of North Borneo was transformed into a colony in 1946. Subsequently, by virtue of Art. IV of the 1963 Agreement 35, the Government of the UK agreed to take “such steps as might be appropriate and available to them to secure the enactment by the Parliament of the UK of an Act providing for the relinquishment . . . of Her Britannic Majesty’s sovereignty and jurisdiction in respect of North Borneo, Sarawak and Singapore” in favour of Malaysia.

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several eventualities”: “in the event that the effectivité does not co-exist with any legal title, it must invariably be taken into consideration” 40 Since the Court found that neither has a treaty-based title, these effectivités will be considered as an independent and separate issue. paras 128-129

123. In 196936 Indonesia challenged Malaysia’s title to Ligitan and Sipadan and claimed to have title to the two islands on the basis of the 1891 Convention. 124. ICJ’S CONCLUSION WRT MALAYSIA’S CHAIN OF TITLE: In view of the foregoing, ICJ cannot accept Malaysia’s contention that there is an uninterrupted series of transfers of title from the alleged original title-holder, the Sultan of Sulu, to Malaysia as the present one. It has not been established with certainty that Ligitan and Sipadan belonged to the possessions of the Sultan of Sulu nor that any of the alleged subsequent title-holders had a treaty-based title to these two islands. Therefore, ICJ cannot find that Malaysia has inherited a treaty-based title from its predecessor, the United Kingdom of Great Britain and Northern Ireland. 125. INDONESIA DOES NOT HAVE A TREATY-BASED TITLE NOR IS A SUCCESSOR. As stated above, the 1891 Convention does not provide Indonesia with a treaty-based title and that title to the islands did not pass to Indonesia as successor to the Netherlands and the Sultan of Bulungan37 ISSUE 3: WON“EFFECTIVITÉS” PROVIDE A BASIS TO THE QUESTION TO WHOM SOVEREIGNTY BELONGS38 paras 126-127 ICJ will now consider whether evidence wrt to “effectivités” relied upon39 by Indonesia and Malaysia provides a basis for a decision on the question to whom sovereignty over Ligitan and Sipadan belongs. -Both Parties claim that the effectivités on which they rely merely confirm a treaty-based title. -On an alternative basis, Malaysia claims that it acquired title to Ligitan and Sipadan by virtue of continuous peaceful possession and administration, without objection from Indonesia or its predecessors in title. ICJ HAD OCCASION TO RULE ON THE LEGAL RELATIONSHIP BETWEEN “EFFECTIVITÉS” AND TITLE. The relevant passage for the present case can be found in the Judgment in the Frontier Dispute (Burkina Faso/Republic of Mali) case, where the Chamber of the Court stated after having said that “a distinction must be drawn among

35

See paragraph 30

36

See paragraph 31

37

See paras 94-96

38

See paragraph 149 for the conclusion

39

as requested in Art. 2 of the Special Agreement

On appreciating the effectivités INDONESIA MALAYSIA 1. during the 1969 negotiations on the 1. prior to the 1969 discussions on the delimitation of the respective continental delimitation of the continental shelves of the shelves of the two States, Malaysia raised a Parties, neither Indonesia nor its claim to sovereignty over Ligitan and predecessors had expressed any interest in Sipadan Islands. or claim to these islands. -it was thus at that time that the “critical date” arose in the present dispute. 2. The critical date is important, not so much in relation to the admissibility of 2. the two Parties undertook, in an evidence but rather to “the weight to be exchange of letters of 22 September 1969, given to it”. to refrain from any action which might alter the status quo in respect of the disputed islands -from 1969 the respective claims of the Parties therefore find themselves “legally neutralized”, and that, for this reason, their subsequent statements or actions are not relevant to the present proceedings

-hence, a tribunal may always take into account post-critical date activity if the party submitting it shows that the activity in question started at a time prior to the critical date and simply continued thereafter.

3. Malaysia, from 1979 onwards, nevertheless took a series of unilateral measures that were fundamentally incompatible with the undertaking thus given to respect the situation as it existed in 1969. (examples of Indonesia: Malaysia’s publication of maps, showing, unlike earlier maps, the disputed islands as Malaysian and the establishment of a number of tourist facilities on Sipadan) -Indonesia always protested whenever Malaysia took such unilateral steps.

3. As for scuba-diving activities on Sipadan, Malaysia observes that the tourist trade, generated by this sport, emerged from the time when it became popular, and that it had itself accepted the responsibilities of sovereignty to ensure the protection of the island’s environment as well as to meet the basic needs of the visitors.

paras 134-136 ICJ’ ON APPRECIATING THE EFFECTIVITÉS 1. Recall statement by the PCIJ in the Legal Status of Eastern Greenland (Denmark v. Norway) case: “a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and 40

I.C.J. Reports 1986, p. 587, para. 63; see also Territorial Dispute (Libyan Arab Jamahiriya/Chad), I.C.J. Reports 1994, p. 38, paras. 75-76; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, para. 68

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some actual exercise or display of such authority. Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power.” “It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.” 41 2. EFFECTIVITÉS WILL GENERALLY BE SCARCE IN THE CASE OF VERY SMALL ISLANDS WHICH ARE UNINHABITED OR NOT PERMANENTLY INHABITED like Ligitan and Sipadan, which have been of little economic importance (at least until recently) 3. ACTS HAVING TAKEN PLACE AFTER THE DATE ON WHICH THE DISPUTE BETWEEN THE PARTIES CRYSTALLIZED CANNOT BE TAKEN INTO CONSIDERATION, UNLESS SUCH ACTS ARE A NORMAL CONTINUATION OF PRIOR ACTS AND ARE NOT UNDERTAKEN FOR THE PURPOSE OF IMPROVING THE LEGAL POSITION OF THE PARTY WHICH RELIES ON THEM 42 Hence Court will primarily analyse effectivités before 1969. 4. ONLY ACTS AS CONSTITUTING A RELEVANT DISPLAY OF AUTHORITY WHICH LEAVE NO DOUBT AS TO THEIR SPECIFIC REFERENCE TO THE ISLANDS IN DISPUTE AS SUCH CAN BE CONSIDERED. Regulations or administrative acts of a general nature can therefore be taken as effectivités with regard to Ligitan and Sipadan only if it is clear from their terms or their effects that they pertained to these two islands. paras 130-131 On Indonesia’s effectivités INDONESIA MALAYSIA In support of its arguments relating to effectivités, Indonesia cites: -patrols in the area by vessels of the Dutch Royal -the alleged Dutch and Navy. Indonesian naval activities are -refers a list of Dutch ships present in the area very limited in number. between 1895 and 1928, prepared on the basis of the reports on the colonies presented each year to -these activities cannot be Parliament by the Dutch Government (“Koloniale regarded as evidence of the Verslagen”), and relies in particular on the presence in continuous exercise of the area of the Dutch destroyer Lynx in November and governmental activity in and in December 192143. relation to Ligitan and Sipadan -refers to the fact that a patrol team of the Lynx went that may be indicative of any ashore on Sipadan and that the plane carried aboard claim of title to the islands. the Lynx traversed the air space of Ligitan and its waters, whereas the 3-mile zones of Si Amil and other islands under British authority were respected. -considers that the report submitted by the commander of the Lynx to the Commander Naval 41

P.C.I.J.,Series A/B, No. 53, pp. 45-46.

42

(see the Arbitral Award in the Palena case, 38 International Law Reports (ILR), pp. 79-80).

43

This voyage was part of a joint action of the British and Dutch navies to combat piracy in the waters east of Borneo.

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Forces Netherlands Indies (According to the report: an armed sloop was despatched to Sipadan to gather information about pirate activities and a seaplane flew a reconnaissance flight through the island’s airspace and subsequently flew over Ligitan) shows that the Dutch authorities regarded Ligitan and Sipadan Islands as being under Dutch sovereignty, whereas other islands situated to the north of the 1891 line were considered to be British. -also mentions the hydrographic surveys carried out by the Dutch, in particular the surveying activities of the vessel Macasser throughout the region, including the area around Ligitan and Sipadan, in October and November 1903. As regards its own activities, Indonesia notes: 1. that “prior to the emergence of the dispute in 1969, the Indonesian Navy was also active in the area, visiting Sipadan on several occasions”. -As regards post-colonial practice, Malaysia observes that, for the first 25 years of its 2. Indonesian fishermen have traditionally independence, Indonesia showed no plied their trade around the islands of interest in Ligitan and Sipadan. Ligitan and Sipadan. -Indonesia “did not manifest any presence 3. submitted a series of affidavits which in the area, did not try to administer the provide a record of occasional visits to the islands, enacted no legislation and made no islands dating back to the 1950s and early ordinances or regulations concerning the 1960s, and even to the early 1970s, after two islands or their surrounding waters”. the dispute between the Parties had emerged. -Act No. 4 of 18 February 1960, to which a map was attached, defined the outer limits 4. in regard to its Act No. 4 concerning of the Indonesian national waters by a list of Indonesian Waters, promulgated on 18 baseline co-ordinates. However, Indonesia February 1960, in which its archipelagic did not use the disputed islands as baselines are defined, Indonesia reference points for the baselines. recognizes that it did not at that time -in light of the said Act and of the map include Ligitan or Sipadan as base points attached thereto, Ligitan and Sipadan for the purpose of drawing baselines and Islands cannot be regarded as belonging to defining its archipelagic waters and Indonesia. territorial sea. But argues that this cannot -Though Malaysia has still not published a be interpreted as demonstrating that detailed map of its own baselines, it points Indonesia regarded the islands as not out that it did, however, publish its belonging to its territory. continental shelf boundaries in 1979, in a -It points out in this connection that the way which takes full account of the two Act of 1960 was prepared in some haste, islands in question. which can be explained by the need to create a precedent for the recognition of the concept of archipelagic waters just before the 2nd UN Conference on the Law of the Sea, which was due to be held from 17 March to 26 April 1960. Always will B

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-it moreover sought to diverge as little as possible from the existing law of the sea, one of the principles of which was that the drawing of baselines could not depart to any appreciable extent from the general direction of the coast.

boats used to fish the waters around the islands.

paras 137-141 ICJ ON INDONESIA’S EFFECTIVITÉS 1. none of them is of a legislative or regulatory character. 2. Indonesian Act No. 4 of 8 February 1960, which draws Indonesia’s archipelagic baselines, and its accompanying map do not mention or indicate Ligitan and Sipadan as relevant base points or turning points. 3. Neither the report of the commanding officer of the Lynx or any other document presented in connection with Dutch or Indonesian naval surveillance and patrol activities can it be deduced that the naval authorities concerned considered Ligitan and Sipadan and the surrounding waters to be under the sovereignty of the Netherlands or Indonesia. 4. The activities in the waters around Ligitan and Sipadan by Indonesian Fisherman, as private persons cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority.

-contests the evidentiary value of the establishment of a bird sanctuary by the British authorities as an act à titre de souverain in relation to Sipadan. ‘ -Similarly, construction and maintenance of lighthouses do not constitute proof of acts à titre de souverain. And Indonesia did not object to these activities by Malaysia because they were of general interest for navigation.

CONCLUSION: The activities relied upon by Indonesia do not constitute acts à titre de souverain reflecting the intention and will to act in that capacity.

-Anent the collection of turtle eggs, the regulations issued by the British and the rules established for the resolution of disputes between the inhabitants of the area were evidence of the exercise of personal rather than territorial jurisdiction.

-it was to British North Borneo officials that the resolution of disputes concerning the collection of turtle eggs was referred. -The Turtle Preservation Ordinance of 1917, the purpose of which was to limit the capture of turtles and the collection of turtle eggs “within the State of North Borneo or the territorial waters thereof” provided for a licensing system and for the creation of native reserves for the collection of turtle eggs and listed Sipadan among the islands included in one of those reserves. 44 2. a licensing system was established for

4. British North Borneo colonial authorities constructed lighthouses on Ligitan (1963) and Sipadan (1962) and that these exist to this day and are maintained by the Malaysian authorities since its independence. -the construction and maintenance of such lighthouses is “part of a pattern of exercise of State authority appropriate in kind and degree to the character of the places involved”. 5. Malaysian Government regulation of tourism on Sipadan and the fact that, from 25 September 1997, Ligitan and Sipadan became protected areas under Malaysia’s Protected Areas Order of that year.

paras 132-133 On Malaysia’s effectivités INDONESIA MALAYSIA -denies that the acts relied upon by 1. control over the taking of turtles and the Malaysia, whether considered in isolation or collection of turtle eggs, which was the most taken as a whole, are sufficient to establish important economic activity on Sipadan for the existence of a continuous peaceful many years. possession and administration of the islands capable of creating a territorial title -As early as 1914, Great Britain took steps in the latter’s favour. to regulate and control the collection of turtle eggs on Ligitan and Sipadan.

3. a bird sanctuary was established in 1933, on Sipadan, which was declared to be “a reserve for the purpose of bird sanctuaries” under Section 28 of the Land Ordinance, 1930.

paras 142-148 ICJ ON MALAYSIA’S EFFECTIVITÉS Court’s Observations: 1. Pursuant to the 1930 Convention, the US relinquished any claim it might have had to Ligitan and Sipadan and that no other State asserted its sovereignty over those islands at that time or objected to their continued administration by the State of North Borneo. 2. Those activities which took place before the conclusion of that Convention cannot be seen as acts “à titre de souverain”, as Great Britain did not at that time claim sovereignty on behalf of the State of North Borneo over the islands beyond the 3-marineleague limit. Since it, however, took the position that the BNBC was entitled to administer the islands, a position which after 1907 was formally recognized by the US, these administrative activities cannot be ignored either. On the Effectivités: 1. Both the measures taken to regulate and control the collecting of turtle eggs and the establishment of a bird reserve must be seen as regulatory and administrative assertions of authority over territory which is specified by name. 44

Malaysia adduces several documents showing that the 1917 Turtle Preservation Ordinance was applied until the 1950s at least. In this regard, it cites, for example, the licence issued on 28 April 1954 by the District Offier of Tawau permitting the capture of turtles pursuant to Section 2 of the Ordinance. The Court observes that this licence covered an area including “the islands of Sipadan, Ligitan, Kapalat, Mabul, Dinawan and Si-Amil”. Further, Malaysia mentions certain cases both before and after 1930 in which it has been shown that administrative authorities settled disputes about the collection of turtle eggs on Sipadan.

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2. Normally, construction and operation of lighthouses and navigational aids are not considered as manifestations of state authority.45 However, as previously held46, certain types of activities may be legally relevant in the case of very small islands. The same considerations apply in this case. 3. MALAYSIA’S ACTIVITIES SHOW INTENTION TO EXERCISE STATE AUTHORITY: The activities relied upon by Malaysia, both in its own name and as successor State of Great Britain, are modest in number but that they are diverse in character and include legislative, administrative and quasi-judicial acts. They cover a considerable period of time and show a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands. 4. INDONESIA DID NOT PROTEST TO MALAYSIA’S ACTIVITIES: At the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest. In 1962 and 1963 the Indonesian authorities did not even remind the authorities of the colony of North Borneo, or Malaysia after its independence, that the construction of the lighthouses at those times had taken place on territory which they considered Indonesian; even if they regarded these lighthouses as merely destined for safe navigation in an area which was of particular importance for navigation in the waters off North Borneo, such behaviour is unusual. 149. CONCLUSION: Given the circumstances of the case, and in particular in view of the evidence furnished by the Parties, the Court concludes that Malaysia has title to Ligitan and Sipadan on the basis of the effectivités referred to above. 150. For these reasons, THE COURT, By sixteen votes to one, Finds that sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia. IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AlKhasawneh, Buergenthal, Elaraby; Judge ad hoc Weeramantry; AGAINST: Judge ad hoc Franck. Harry Roque: China’s Claim to the Spratly’s Islands under International Law Introduction GENESIS. People’s Republic of China (China) occupied & built installations at Mischief Shoal, a disputed islet formerly under possession of the Philippines. The surreptitious way 45

46

Minquiers and Ecrehos (Judgment, I.C.J. Reports 1953, p. 71).

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) where ICJ stated: “Certain types of activities invoked by Bahrain such as the drilling of artesian wells would, taken by themselves, be considered controversial as acts performed à titre de souverain. The construction of navigational aids, on the other hand, can be legally relevant in the case of very small islands. In the present case, taking into account the size of Qit’at Jaradah, the activities carried out by Bahrain on that island must be considered sufficient to support Bahrain’s claim that it has sovereignty over it.” (Judgment, Merits, I.C.J. Reports 2001, para. 197.)

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it did so, along with its aggressive & war-like response to protests & condemnation against it, highlights the possibility of widespread conflict in the region. HISTORICAL ANTECEDENTS. Early 1980s, Spratlys Islands dispute led to a military confrontation between Vietnam & China (2 Vietnamese freights shot at & sunk, heavy casualties reported). China won, thus its occupation of Paracels Group of Islands. RESULTS. Regional arms race in anticipation of decisive military solution feared from China, or from other claimant countries. US, once a passive observer, now seems to be concerned—Am. Navy Seals trained Phil. Military Personnel in Palawan located adjacent to the Spratlys. Some view China’s act as a conscious effort to test the reactions of other countries in the region & the US, to a military solution. China seems to be viewing itself as the dominant military force in the region after Russians & Americans left—Mischief Shoal is only a prelude to what would inevitably be a military solution to the long-standing dispute in the South China Seas. Some also see it as an expression of hegemony and an attempt to reclaim old but lost territories. FACTS. Mischief Shoal is only the latest of islands China has occupied by force. 3 other bigger islands were occupied after she acquired possession of them forcibly from Vietnam in 1988. Except for Itu Aba island, under possession of Taiwan since the 1950s, all islands occupied by China were occupied by use of force. ISSUE: Given China’s alleged legal title, whether the forcible occupation of these islands can ever ripen into ownership. What about in relation to the claims advanced by other claimant countries? Geo-political and historical background Geography FEATURES. Spratlys Islands, as a distinct geographical entity from the island of the same name, is a group of 200 islands, atolls, rocks & shoals scattered over 600 miles of the southern portion of the South China Sea. They lie south of parallel 12 degrees North & East of Meridian 112 degrees East; nearly 100 miles west of the RP, over 300 miles from Vietnam & 650 mils from the nearest Chinese province. All are extremely small (the biggest, Itu Aba, being only 90 acres), barren, incapable of supporting human habitation (but there are now military garrisons & installations), remote from the mainlands of its claimants; maybe except RP which, as an archipelagic country, can claim proximity per the archipelagic doctrine (Art. 7, 47 of UNCLOS). GOALS. Claimants, China, Vietnam, RP, Malaysia & Brunei are eager to establish title over all or part of the islands for economic reasons (expectancy of finding hydro-carbon resources thought to be located in the area), its strategic importance to merchant navigation, historic military significance & to expand their territorial seas by drawing their baselines from them (a palpable error, especially for China). PRODUCTS. Traditionally, its valuable resource was only guano. Fishing was the primary activity, with Chinese, Vietnamese & Filipino fishing operations. Substantial oil reserves in the continental shelf off Palawan have been confirmed, with an estimated yield of form 1 to 225 B barrels of oil from the area. NAVIGATION. Islands lie in the center of important shipping lanes connecting the Indian Ocean & the Malacca-Singapore Straits in the south; & the East China Sea with the Russian port of Vladivostok in the north. It is adjacent to shipping lanes used by vessels Always will B

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going to and from Japan & the Middle East. They have been known as individual hazards to navigation, rather than as a group of islands surrounded by water and together consisting of a unitary whole (archipelago). Vietnam & China consider the Spratlys Islands and Paracels Islands as comprising 1 archipelago. All other claimants hold otherwise.

CAIRO DECLARATION OF 1947 (UK, US, CHINA): purpose of Allies: strip Japan of: “all the islands in the Pacific which she seized or occupied since the beginning of the First World War in 1914, and that all the territories that Japan had stolen from the Chinese, such as Manchuria, Formosa & Pescadores, shall be returned to China.”

Historical and Political background FIRST DISPUTE. In 1933, France, for its protectorate Vietnam, issued an official declaration claiming sovereignty over the islands on the basis of discovery & effective occupation since time immemorial, after 3 French expeditions resulted in planting of French flags in Spratlys Island proper, but contested today only by Vietnam & China. It remains under Vietnam occupation. France’s basis for title of discovery and effective occupation: 1) Islands formed part of the Paracels; 2) Paracels have been incorporated into the Kingdom of Annam, old Vietnam, since time immemorial. It alluded to documentary evidence indicating that in 1802, Emperor Gia Long created a “Dio Hoang Sas” (Company of the Paracels) to supervise the exploitation of the islands. In 1830, the Paracels, presumably encompassing the Spratlys, was included as a part of Vietnamese territory in the first map published by the kingdom. The proclamation was protested by China, Japan & UK, which all claimed title also by virtue of discovery & effective occupation. Japan – 12 islands, including 6 France claimed, were discovered by its nationals in the 1920s and that a Japanese fertilizer firm was working most of the islands, with development plans for the others. UK – islands were discovered by 2 British subjects in 1847 who were given official permission to hoist the British flag on both Spratlys & in Amboyna Bay, about 75 miles from former. Guano deposits have allegedly been used by British nationals. “Spratlys island” was allegedly bestowed by British nationals. France ignored these & in 1933 reiterated its claim & added a reason: a collision between 2 British ships & Chinese fishing vessels in the Paracels. When UK complained to the Ch’ing Govt that the islands lacked navigational aids, latter allegedly disclaimed responsibility since it did not own the islands. China has denied this. Islands continued to be unoccupied.

POTSDAM DECLARATION (USSR, US, UK) affirmed above. In 1952, China & Japan entered into a separate bilateral treaty whereby latter reiterated its relinquishment of title in the SF Treaty. In 1972, Japan, in a joint communiqué with China, reaffirmed its compliance with the Potsdam declaration, which, by reference to the Cairo declaration, expressly mandated the return of Taiwan & Pescadores to China but not Spratlys & Paracels.

OCCUPATION. After the Pearl Harbor bombing of 1941, the islands were used by the Imperial forces initially as a submarine base. In 1939, the Paracels & Spratlys were incorporated by Japan into Taiwan, recently conquered territory, under the name “Shinnan Gunto” or the “New South Archipelagos”. This was the first recorded physical occupation by any country, highlighting their military significance. Japan later renounced her title as part of the San Francisco Peace Treaty of 1951 but failed to say to which country it was relinquishing title to. SAN FRANCISCO PEACE TREATY: source of uncertainties in current territoriality dispute. SF Conference was attended by 52 countries; failure of US & USSR to agree on which government was to represent China precluded latter form participating. USSR proposed that renunciation provide recognition of China’s sovereignty over Taiwan, Pratas, Pescadores, Paracels, Spratlys & Macclesfield Bank (1st 3 regarded as illegally occupied by Japan after forcible taking from China). This was rejected by 49 participants, prompting USSR, Czechoslovakia & Poland to decline signing the treaty. Conference also failed to hear pleas by the RP for authority to administer the Spratlys for the Allies, since the islands were used as a base by the Japanese for invading RP, & now deemed important for RP’s national defense.

RP CLAIM. Early 1950s, Tomas Cloma, claimed discovery of the islands, used in 1971 by RP in claiming title, together with contiguity, historical title, national security, economic need, abandonment & the UNCLOS provision on the continental shelf. It officially proclaimed its claim of a group of geographically contiguous islands referred to as the “Kalayaan” group, allegedly distinct from the Spratlys group of islands, which was hotly contested by China & Vietnam. This group was not previously recorded on any map & were res nullius. RP says: Spratlys was a group of 7 islands formerly occupied by Japan during WWII & Japan’s renunciation of title in favor of no particular country rendered them part of the Allied trust territory & possession by any other country of any island, alluding to Taiwan’s possession of Itu Aba island, was subject it a trust in favor of Allies. It was not claiming Spratlys Island as in fact, it has never advanced a claim to the said island. It reflected the Kalayaan Group as part of its territory in official maps & has appended the islands into Palawan’s jurisdiction. Legislation was introduced creating a municipality for Kalayaan Group. Cloma declaration was protested by China & Vietnam. Shortly after, 1950s, China stationed troops in the biggest island in the Spratlys. RP (“Pagasa,” larger than Itu Aba, among others) & Vietnam followed in the 1970s and occupied islands & atolls in the area. This proves Kalayaan as distinct from Spratlys. In 1988, China entered the Spratlys area & forciblyb occupied 3 islands after wrestling control over them from Vietnam. In 1995, it added Mischief Shoal, wrestled from RP. Malaysia & Brunei, after acceding to the UNCLOS, claimed some of the islands in the area. In 1988, Malaysia occupied an island. Both agreed that at least 1 island in the Spratlys belonged to them due to UNCLOS rules on the continental shelf. OCCUPATION. Vietnam: 12; China: 9; RP: 9; Malaysia: 3; Taiwan: 1; Brunei: 0. At least 3 countries (RP, China, Vietnam) have enacted legislation incorporating the Spratlys into their territory; using the islands as points in drawing their baselines in order to define the breadth of their territorial seas or Exclusive Economic Zone. If China is correct, it would have the entire South China Sea as part of her territorial sea. RP has included roughly a quarter of the entire disputed Spratlys group as part of its Archipelagic waters, although its EEZ would encompass the entirety of the area. The 3 countries have also awarded contracts to 3 separate American oil companies to search for oil in the region. China: concession to explore for oil in the area to Crestone National Offshore Oil Corp. in 1993. RP: concession top Alcorn Petroleum. Vietnam: concession to Conoco. RP & Vietnam have apprehended, prosecuted & sentenced Chinese fishermen caught fishing in the area for illegal entry & illegal fishing. These were objected to by China. Statement of China’s claim LIMITATIONS: lack of primary sources & official documents detailing such legal basis, due partly to China’s overall suspicion towards international law or rejection of modern international law as a set of legally binding norms (as a Chinese scholar said: “mainly a Always will B

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weapon used by civilized states to control and oppress what they consider to be uncivilized states. The uncivilized states are their prey.”) This is also significant in that: 1) it hinders a thorough assessment of claims it would have to be based on assumptions that the works of publicists represent the true basis of such claims. Any negative assessment may be brushed aside by China as based on erroneous assumptions. But, it could also be used to conceal the true nature of such claims for fear that once officially espoused, the position might be ignored, if not ridiculed, for lack of factual & legal basis. Ex. conclusion of researcher who claimed that the ultimate basis fro China’s claim is premised on her thinking that the entire South China Sea is her historic water-explaining the 9 broken lines which encompasses the entire South China Sea in an official map published by the SCS Institute. This has not been confirmed nor denied by China. Few authorities are in the form of diplomatic protests & policy statements claiming title to the islands—more like slogans, & without specifying the legal basis. Ex. after participants to the SF Conference rejected the Russian proposal to specify that Japan was relinquishing its title to the Spratlys & Paracels in favor of China, Foreign Minister Zhou EnLai stated: “…Paracel Archipelago & Spratly Island, as well as the entire Spratly Archipelago, & the Chung-Sha (Macclesfield Bank) & Tung-sha (PratasZ) archipelago have always been Chinese territory. Though occupied during Japan’s war of aggression, they were taken over by China after Japan’s surrender. China declared: the inviolable sovereignty of the China over the Spratly Island & Paracel Archipelago will by no means be impaired, irrespective of whether the British-American draft for a peace treaty with Japan should make any stipulations and of the nature of any such stipulation.” China answered RP: “The Nansha Islands & the Hsisha Islands have always been China’s territory. China has indisputable sovereignty over these islands & absolutely allows no country to encroach upon this sovereign right under whatever pretext & in whatever form. The Phil. Gov’t must immediately stop its encroachment upon China’s territory & withdraw all its personnel from the Nansha Islands.” While China seems to anchor its title on historical title, it wasn’t until 1980s that it sought to state unequivocally the exact mode by which it thinks it acquired title. One such declaration was published in a 2-page article in the Beijing Review, shortly after its military confrontation with Vietnam. “As early as 200 BC, in Emperor Wu’s reign during the Han dynasty, China discovered the Nansha Islands & gradually began to settle there. During the Tang & Song dynasties (618-1270), they have been living there & fishing. During the Song & Yuan dynasties (960-1368), China named it Wanlishitang. In Ming & Qing dynasties (1368-1911), gov’t put Nansha Islands under jurisdiction of the Qiong/hou prefecture (Haina Island) Guangdong Province. Early 1930s, France invaded & occupied 9 of the Nansha Islands & made a territorial claim. Chinese gov’t protested…In 1939, Japanese imperialists invaded & occupied it.” Bases for claims: 1) Discovery - during Ancient times, report in a manuscript “Chu-fac-chi,” by Chau Ju-kua, foreign trade inspector in Fukien Lu during the Southern Sung dynasty (1127-1279); later manuscripts show reference to “Ch’i-chou” (Seven Islands) & “Wan-li-shih-t’ang” (Spratlys Group); navigator Cheng Ho sailed through the islands 7 times & recorded the Paracels and Spratlys on a map drawn 1425-1430; description in a book, “Hai-kuo in 1730. Paracels called “Chiyang chou” & Spratlys as “Shih-t’ang”; increasing historical references to Paracels or “Sisha” (Hsisha Islands); decreasing reference to Spratlys and tendency to confuse them with Paracels; British publication recording Chinese fishermen in Paracels or Spratlys or both; 1883 incident, Germans ceased survey of Spratlys after China protested; 1907 incident, Japanese surveyor expelled by Chinese forces; Admiral Li Chum allegedly commissioned a naval expedition to Paracels, installing a marker.

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2) Effective Occupation - between 1921-32, gov’t granted concessions to exploit Paracels for guano; objections to any claim of sovereignty by other countries (France claimed Paracels in 1930 & Spratlys in 1933, China protested & reiterated claims to separate groups); Taiwan’s military presence in Itu Aba (even with other garrisons). 3) Recognition – France, for Vietnam, is estopped form claiming title to Spratlys due to Treaty of 1887 providing that all territory beyond longitude 105 E (Paracels & Spratlys), pertained to China; Vietnam estopped after recognizing Chinese sovereignty (by Premier Pham Van Dong’s note to Zhou Enlai: support & recognition for declaration on China’s territorial sea on Sept. 4 1958. world maps by Vietnam in 1960, 72 and textbooks in 1974 recognized the Xisha & Nansha islands as Chinese territory”); USSR: participants of 1930 Hong Kong Far Eastern Meteorological Conference urged China to build weather observation facilities in Spratlys; British & American Encyclopedias said islands were China’s territories; official Chinese maps showing them to be Chinese territory. Legal evaluation of China’s claim SUPERIORITY OF CLAIM. Which of the conflicting claims appear to be possessed of relative strength when compared to the others and would, in a balance of probability, prevail over the rest? Let’s look at 2 broad legal issues: modes of acquiring title to land territory & effect of UNCLOS rules on the claims. Modes of acquisition of territory Traditional modes, occupation, conquest & prescription, continue to be advanced. 1. DISCOVERY (& EFFECTIVE OCCUPATION) – as been discarded as being insufficient to vest title to a territory. Jennings: “actual, effective control is of paramount importance in acquiring title to territory and mere discovery is a 16th century basis of sovereignty that is no longer accepted as sufficient.” Island of Las Palmas case – Max Huber ruled that discovery merely gives the claimant an inchoate title to territory, & requires the discovery to be coupled with effective occupation: “…discovery alone, without any subsequent acts, cannot at the present time suffice to prove sovereignty…but creates …only an “inchoate title.” However, according to the view that has prevailed at ay rate since the 19th century, an inchoate title of discovery must be completed within a reasonable period…” (inchoate title is a temporary bar to occupation by another state for a period reasonably sufficient for occupying the discovered territory. Clipperton Island case – on effective occupation, “…this taking of possession consists in acts or series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there.” Where the territory is unoccupied at time of possession, it is not necessary to physically occupy the territory. The title of France over an island lying 670 miles off the coast of Mexico in the Pacific Ocean was superior as against Mexico’s, given the former’s diplomatic protests & open declaration of sovereignty, despite the fact that France did little more than publish in a newspaper the fact of its discovery & occupation. Eastern Greenland Case – “in many cases the tribunal has been satisfied with very little in the way of actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in that case of claims to sovereignty over areas in thinly populated or unsettled countries.” Denmark has shown a sufficient pattern of activity over a 10 year period; including the enforcement of legislation of a state trade monopoly, the granting of trading, mining & other concessions, & the exercise of governmental functions & administration. EFFECTIVE OCCUPATION requires that this be undertaken officially by a claimant state, or by virtue of an authority emanating therefrom. Isolated occupation by nationals of a Always will B

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state, like fisherfolks, without the actual sanction of the state of their nationalities would be insufficient to prove effective occupation. Only territories that do not pertain to any state or those aptly called “terra nullius” may be acquired by discovery & effective occupation. Once acquired, it would revert back to its former status as terra nullius by virtue of abandonment, a mode of extinguishing title to territory. 2) ACQUISITIVE PRESCRIPTION. Better referred to as a combination of acquiescence & estoppel. Claimant may acquire territory out of a long & continued possession, where no original source of proprietary right can be show to exist, or where possession being wrongful, the legitimate proprietor has neglected to assert his right, or has been unable to do so. Estoppel. Although not a mode of acquiring title, it may preempt the recognition of one by virtue of one’s past conduct or statements, “any legal system should possess a rule designed to prevent a person, who makes or concurs in a statement, upon which another in privity with him relies, to the extent of changing his position, from later asserting a different state of affairs.” Temple case: “Even if there were any doubts as to Siam’s acceptance of the map in 1908 & hence of the frontiers indicated thereon, the Court would consider, in the light of the subsequent course of events, that Thailand is now precluded by her conduct from asserting that she did not accept it.. she has enjoyed\, for 50 years, such benefits as the Treaty of 1904 conferred on her…It is now not open to Thailand, while continuing to claim & enjoy the benefits of the settlement, to deny that she was ever a consenting party to it.” Possession, in municipal law, is a strong evidence of title, “the foundation & sine qua non condition for the consolidation of title.” There must be intent to posses or animus possedendi. Minquiers and Ecrechos case – what are relevant are not remote presumptions of possession, but direct, actual & present evidence of possession. Constructive possession. “Just as a state which has occupied the coast or an important part of an island is deemed to have occupied the island as a whole, the occupation of the principle islands of an archipelago must also be deemed to include the occupation of islets & rocks in the same archipelago, which have not been actually occupied by another state.” Contiguity alone is not a mode of acquisition but it may serve as evidence of a better title since it may raise a presumption of occupation in the absence of a stronger counterclaim to territorial sovereignty. It may be used in the normal application of effective occupation. 3) CONQUEST is “the acquisition of the territory of an enemy by its complete & final subjugation & a declaration of the conquering state’s intention to annex it.” While now deemed as illegal, it is still relevant in evaluating title to territories acquired when to do so by conquest was an accepted norm. Historically, invasions & conquest have had a significant & historical effect on creation of int’l boundaries so legal significance cannot be denied. OTHER FACTORS: Economic reasons, national security, geography & equity. FAIRLY RECENT CONCEPTS: 1) CRITICAL DATES – juridical technique where the positions of the party litigant are deemed to continue as of a particular point in time; it stops time at a particular date. Nothing that happens afterwards can operate to change the situation as it existed.

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Las Palmas case – critical date: when the Treaty of Paris cessing title over the RP was entered into by Spain & US. This was rejected in Minquiers and Ecrechos: the critical date should not exclude consideration of subsequent acts of the parties. 2) Historical consolidation – shows how the interaction of modes, & not but one of them, could bring about a consolidation of title. Anglo-Norwegian Fisheries case – historical consolidation is said to be akin to the other modes, with the qualification that “proven long use merely represents a complex of interests & relations which in themselves have the effect of attaching a territory to a given state. It embraces both straight forward possession & adverse possession. Repute & acknowledgment are decisive ingredients in the process of creating title. CHINA’S USE OF DISCOVERY & EFFECTIVE POSSESSION. Inherent weakness: given unanimity in judicial declarations and publicists’ opinions that discovery alone merely gives an inchoate right to the islands; which must be perfected within a reasonable time through effective occupation. While China argues that Chinese nationals discovered the islands as early as 200 BC, the first allegation of sovereign control was exercised only in the late 1800s when authorities protested a German survey. In between, only the presence of fishermen and sightings by nationals occurred. These are not clear & convincing inditias of animus possedend. This claim cannot survive a more positive allegation of effective occupation—Vietnam’s state sanctioned activities of a trade monopoly to exploit the resources of the islands. PROBLEMS. HISTORICAL EVIDENCE. China & Vietnam must prove genuineness, due execution & accuracy of historical evidence of their claims—challenging, given that the evidence is ancient & tend to be grossly inaccurate in their description of the islands (China’s “Ch-ienlichangsa” & “Wan-li shis tang,” supposedly Spratlys & Paracels, are closer to China’s Haina province than any of Spratlys). Some say that all the names pertain to Paracels alone (plausible; “Hai-Lu” or the Oceanic resources of 1820, described Spratlys or “Ch-ienli shih-tang” as merely “south of the sea of Ch’i-chou & west of Lu-song” or Luzon, suggesting unfamiliarity with the area of present day Spratlys. Also, despite its claim of discovery during the Han dynasty, the only independent confirmation of China’s presence in the islands dates from 1867 when a British survey ship discovered Chinese fishermen from Hainan working in the area. Further, this evidence of discovery & effective occupation arose only during the height of the China-Vietnam controversy. Their relevance must be shown more convincingly. NATURE OF LEGAL SYSTEMS. Both invoked specific instances of exercise of sovereign control but neither of their legal systems then in force would acknowledge any such act simply because it did not exist in their legal systems. Both used the Confucian legal system until the 1900s, which did not have an equivalent of the IL concept of “effective occupation”. CONCEPTUAL GAP. In Chinese law, a ruler had jurisdiction over persons, not over territory. Sovereignty was a function of social organization, history & loyalty of subjects. Territorial jurisdiction was measured in terms of zones of influence, not physical boundaries. No maritime boundaries, since sovereignty (over persons) was co-terminus with the coast. Ocean & islands were only important in navigation & presence of hazards. Maritime control was limited to ports & waterways to guard against smuggling & piracy. These negate the existence of effective occupation until recent years & integration of the Always will B

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Western concept of territorial sovereignty. “Exercise of effective occupation of Spratlys during pre-modern times” is a non-sequitur. BACK TO DISCOVERY. Distinguish between creation of rights & existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises demands that the existence of the right & its continued manifestation, shall follow the conditions required by the evolution of law (Palmas). REAL DISCOVERY. Islands were first discovered, or their existence first recorded, by UK in 1834. Also, France was the first sovereign state to declare title over them, although protested by China, Japan & UK—the first recorded controversy over the island & first recoded exercise of sovereignty by modern China over the islands. AS TO ANIMUS POSSEDENDI, Vietnam, as successor to colonial France, should have the older title, had France not said that the Spratlys is not amongst the islands it relinquished to Vietnam upon independence. ESTOPPEL, prima facie, favorable to China against Vietnam. North Vietnam did declare Paracels & Spratlys as part of China. Vietnam says it was done under duress, thus not binding. But the Temple case recognized estoppel as preempting a state form claiming title; and, rules on vitiated consent apply to treaties, not recognition. UN Convention on the Law of the Sea REALIANCE. Nearly all claimants invoke the UNCLOS although Malaysia, Brunei & RP, to an extent, rely wholly on its provisions. This seems to be misplaced since this is a dispute over title to land territory & UNCLOS refer to delimitation of maritime boundaries. Also, the rules depend on existing land boundaries so it can’t be invoked as a source of title to land territory. But, look at the geographical features. REMOTENESS FROM MAINLANDS, CAN’T SUPPORT HUMAN HABITATION. 2 conclusions, respectively: 1) since Art. 7 says that, “…drawing of baselines must not depart to any appreciable extent from the general direction of the coast, & the sea areas lying within the lanes must be sufficiently linked to the land domain to be subject to the regime of internal water”, none of the islands may be used as basepoints for drawing boundaries to delineate territorial water of any claimant (except if the islands individually generate pockets of territorial water) so none can claim the water in the area as part of their territorial water; 2) the islands individually shall only have their respective territorial sea but no EEZ or continental shelves. North Sea Continental Shelf cases - in drawing an equidistant line “the presence of islets, rocks & minor projections which have a disproportionately distorting effect should be ignored.” Libya/Malta case – “the equitableness of an equidistance line depends on whether the precaution is taken of eliminating the disproportionate effect of certain islets, rocks or minor coastal projection…” ASSUMING TITLE TO ALL CLAIMANTS, countries in the area could exercise sovereign rights over their EEZ & continental shelves which, inevitably, would encompass part of the Spratlys area; to the exclusion of pockets of territorial sea generated by the individual islands—islets, rocks, shoals, atolls which are not islands per UNCLOS for not being above water during high tide, could be declared part of the continental shelves of the claimants. So, it’s a dispute over exercise of sovereign rights over the continental shelf!

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Further, assuming that the 3 biggest islands under possession of Taiwan (Itu Aba), RP (Pagasa), Vietnam (Spratlys) can be used as basepoints by drawing straight baselines, it is subject to the rule that they could be ignored if it will lead to disproportionally distorting effects & the rule that if the islands are beyond the 12 miles territorial sea of the mainland, they will be treated as if non-existent & have no effect on boundary—hence, entitled only to pockets of territorial seas, subject to the qualification that RP can use Pagasa as its basepoint to extend the breadth of its archipelagic waters. All others, subject to Art, 77 on sovereign rights to exploration & exploitation of natural resources of the continental shelf. ARCHIPELAGO. Art. 46 (b), it is ‘a group of islands, interconnecting waters & other natural features which are so closely interrealated that such islands, waters & other natural features form an intrinsic geographical, economic & political entity, or which historically have been regarded as such.’ IMPORTANCE. All claimants except Brunei assume that their possession of their respective island is constructive possession of the whole. Possession of a whole is a question of fact. From the location of Paracels & Spratlys, separated by vast expanse of water, they constitute at least 2 distinct groups of islands so possession of Paracels need not necessarily imply even constructive possession of Spratlys. China admits they have been viewed as distinct. So, it is wrong for Vietnam & China to view Spratlys merely as an extension of Paracels. IF NOT ’ISLANDS’ & if 3 islands can be used as points for baselines, there may be merit to claims by Malaysia, RP & Brunei—the islands being part of their continental shelves (this fits with the rule that oil recovered pertains to the coastal state). BUT this argument cannot prevail over any evidence of effective occupation. RP’S NOVEL & LOGICAL LEGAL GROUNDS: Japanese renunciation rendered the islands terra nullius, subject to APPROPRIATION BY OCCUPATION. This moves the CRITICAL DATE to after WWII, which is advantageous to its late occupation of some of the islands (it then would have the oldest title as the 1st claimant after renunciation & render irrelevant prior evidence of titles &/or occupation by others). Further, by not claiming Paracels, Spratlys, in particular, or any of the 7 islands Japan occupied, it allows that they may be divided into geographical groups & apportioned to claimants. CONTIGUITY to the islands gives good support to its claim of effective occupation, since it is the only one now operating a commercial oil well in the vicinity if an adjoining continental shelf. These may prevail over even physical possession as evidence of effective occupation; since 4 out of 5 claimants are in physical occupation (possession alone by any cannot vest one with a superior title). CONTIGUITY OF THE ARCHIPELAGO had been rejected in Palmas due to then existing conditions—“a conflict between 2 colonial powers over territory thousands of miles away from their mainlands; arbitrator saw it as a case of occupation & prescription. Int’l disputes relative to ownership of islands off some mainlands which are now independent states but continue to be used or controlled by a number of former colonial powers show the shortcomings of occupation-prescription principle. In the era of decolonization, let’s reconsider the values of the contiguity principle…not without analogies to state practice. Thus, the award of the Spitsbergen Archipelago to Norway because the islands are situated within the so-called Norwegian sector is an application of the hinterlands theory of territorial title…it might be asserted that a state which might consider an island or a group of islands as contiguous to its hinterlands if such are important to its economic, political or security needs-must be preferred as between different claimants whose claims are equally uncertain.” Always will B

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RP: superior title if it can show that the islands are distinct from that part of Spratlys which are disputed by Vietnam & China, negating evidence of prior possession. Add to that, its occupation of Pagasa, a bigger island compared to Spratlys & Itu Aba, seemingly tolerated by other countries since the 1970s. Title to these islands appear oldest if the date of execution of the SF Peace Treaty is used as critical date, as first claimant after renunciation in favor of no particular country. Its proximity to the islands & the distance of them from Paracels & Spratlys, with exercise of sovereign rights over the continental shelf in t\nearby Reeds Bank, where it is extracting oil in commercial quantities, may be used as evidence of effective physical &/or constructive occupation of the islands. WEAKNESS. The academic nature of the claim, based on assumptions (not an archipelago, terra nullius), makes it susceptible to challenge. In its favor: absence of historical evidence showing they were viewed as a unitary whole, offering divisibility of the islands & waters in the region & allowing possibility of physically segregating either title or exercise of sovereign jurisdiction in the area. Conclusion China – uncertain as to superiority of claim: weak historical title as to discovery & effective occupation, thus inferior to Vietnam’s claim (monopoly created) but trumps it on estoppel. Superior claim to Malaysia & Brunei (claim based on UNCLOS rules on the continental shelf can’t prevail over evidence of effective occupation; rules can’t create title to territories independent of established boundaries). RP – superior claim over China if assumptions, based on geography & effect of renunciation, are established. Proximity, insufficient if alone, as evidence of effective occupation, as only country exploiting natural resource from a nearby continental shelf. China can say that it has, through Taiwan, the oldest title of physical possession—taken with discovery & effective occupation since ancient time, it may have a superior claim (if Taiwan is taken as part of China & it can prove genuineness, due execution & accuracy of historical evidence). If islands are not an archipelago, individual titles may be asserted. RP claim to the Kalayaan group would seem to be indisputable while China & Vietnam needs to prove accuracy of their historical claims to discovery of effective occupation over Itu Aba. Other issues: Is Taiwan part of China, as a renegade province? If it is not, China loses benefit of having the oldest evidence of physical occupation of the Spratlys (occupation only in 1988, through the use of force). What was the precise effect of the renunciation? Did it render the islands terra nullius or did it reinstate France’s sovereignty? China could have lost title twice: in favor of France in 1930s & in favor of Japan during WWII. Or, renunciation will determine the tenability of RP’s claim. Multilateral nature, 7 claimants, makes it unique in IL. Will a compromise suffice if an int’l tribunal doesn’t declare any country privy to the case as having a superior claim? Are int’l tribunals in a multilateral dispute required to decide in favor of a party or can it declare the territory terra nullius? Some say that courts are not obliged to adopt the view of either litigant—just decide on who proved its onus of proof; in doubt, decide for the other since the requisite onus was not met. That would be inconceivabel

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