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1.

0 Introduction:

The issue regarding the Territorial Disputes of Sipadan Island and also Ligitan Island in
the mid-19th century happens because of contradicted claims of sovereignty over the two islands
between the Malaysian and Indonesian authorities. Additionally, other than the vast and rich
biodiversity available in these two islands, which is suitable for recreational activities such as
scuba diving and beach surfing, the importance of fisheries industry that has big potential in that
area due to its locations and fresh sea waters that is non-contaminated which is one of the crucial
factors in breeding high qualities fish, clams and shrimps. With this, it will definitely become a
platform to boost the local economics as well as internationally. But there also the elements of
petroleum and gas that is the utmost importance in their pursue of these two islands. Territorial
Disputes between Malaysian and Indonesia over the oil rich Sipadan and Ligitan islands, in which
the two countries deployed their warships and fighter jets over the two islands even before the
International Court of Justice in 2002 awarded the islands to Malaysia.1

It is important to note that the Contemporary International Law is still apply until present
times, which is the ideas from the Western Institution that includes the principles regarding the
acquisition of territory by a state and the method of proof for territorial sovereignty. However,
there are few individuals or groups that argues whether this classic rule is still relevant in present
times to settle a territorial dispute especially regarding to the two particular South East Asian states.
Nevertheless, it is crucial to know that in this case, both Malaysia and Indonesia are members of
the United Nations (UN), and because of this both Malaysia and Indonesia adhere to the United
Nations Charter which explains in Article 93 that all members of the United Nation are ipso alia
(by the very fact or act) parties to the Statutes of the International Court of Justice (ICJ), which is
the principal judicial organ of the United Nation.2 So, both states agreed to adhere and
acknowledge the principles of international law (ICJ) in settle the territorial disputes of Sipadan
and Ligitan Islands. And due to the fact that both of the Malaysian and Indonesian governments
had drafted and signed not just themselves but also with other ASEAN countries in the 1987
Manila Declaration whose Article 4 states that “Intra-regional disputes shall be settled by peaceful

1
Callaghan T. & Graetz G. (2017). Mining In The Asia-Pacific, Challenges And Opportunities, The Political Economy
Of The Asia Pacific, Springer, Adelaide, Australia. Pp-98
2
United Nations (2017). Retrieved from http://www.un.org/en/sections/un-charter/chapter-xiv/index.html

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means in accordance with the spirit of the Treaty of Amity and Cooperation in Southeast Asia and
the United Nations Charter”.3

2.0 Geographical Information

Before I move further on the discussion of this essay, I want to discuss a brief information
about the geographical of Sipadan and Ligitan island. This is done so that we understand the islands
better and maybe show a little insight of these two islands and why both Malaysian and Indonesian
governments are playing “tug of war” for these two islands.

2.1.1 Sipadan Island

The Island of Sipadan is situated at the Celebes Sea (Lautan Sulawesi) off the coast of
Sabah, Malaysia. Sipadan Island has an oval-shaped surface area of which approximately 0.031
sq.km and is permanently above sea level, rising 600 meters (2000 ft) from the seabed.
Additionally, Sipadan Island lies 6.5 nautical miles to the south of Pulau Mabul’s low water mark
and 6 nautical miles southeast from the low water mark of Pulau Kapalai. Interestingly, the
distance from the Malaysian mainland at Tanjung Tutup on the southeastern coast of Sabah is 14
nautical miles, however the nearest distance to Indonesian Territory is 40 nautical miles, which is
the southern part of Sebatik Island. Moreover, Pulau Sipadan is the only deep water oceanic island
in situ (in the original place) separated from the continental shelf by an 808fm trench.4 Moreover,
in 1933, Sipadan Island is declared by the British as a bird sanctuary because of its importance in
being an stopover for migratory birds such as the Greater Sand Plover and the Common and Wood
Sandpiper. Also, other than the unique and beautiful reefs that is available around Sipadan Island
for Scuba Diving goers, it is also the Turtles heavens as their breeding grounds and this prompt
the Malaysian Government to gazette the Sipadan Island as Marine Protected Area, and also in
1988, the Sabah Department for Tourism and Environment has built a wildlife preservation office
on the island and also issued permit for a limited number of visitors in the island on a daily basis.
Besides that, there is also the presence of army in the island for defense purposes.

3
Manila Declaration Philippines (1987), Association of Southeast Asian Nations. Retrieved from
http://asean.org/?static_post=manila-declaration-philippines-15-december-1987
4
Fabio Spadi (2003) "Pulau Ligitan and Pulau Sipadan: New Parameters for the Concept of Dependency in the
Maritime Environment? The ICJ judgment of 17 December 2002",The International Journal of Marine and Coastal
Law18: 295–310

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2.1.2 Ligitan Island

The island of Ligitan is one part of the largest and easternmost reef system from the Ligitan
Group (geographically distinct from the Ligitan Reefs which lie further to the West). Also, the
island lies 3.5 nautical miles east of Kapalai Island and 15.5 nautical mile east of Pulau Sipadan.
The northern tip of the submerged reef (20km as a whole of the submerged reef) which is
permanently above sea level is called Dinawan Island. And 0.5 nautical miles of northeast of
Dinawan island, there is a lighthouse placed which is important to the sea vessels in terms of
navigations purposes. Differ from Pulau Sipadan, it is smaller compare to Sipadan Island and there
is little flora and fauna can be founded on this island which explain the reason why it is only small
population of people inhabited the island compare to Sipadan Island. Furthermore, Sangihe and
Kawio islands are the nearest islands to the east of Ligitan island which are around 130 nautical
miles which belongs to Indonesia, and to the south was Maratua Island which is 110 nautical miles.

3.0 Emergences Of The Disputes Between Indonesia And Malaysia On Sipadan And Ligitan

In 1982, an Indonesia navy ships was patrolled near Sipadan Island. They were done so
because of the reports that they received regarding there were appearance of foreign troops near
the Sipadan Island by their authority. Due to this event, the Malaysian and Indonesian government
tried to solved this issue in a closed manner which both of them tried to discourage press coverage
regarding this incident. However, this issue reemerged when the Indonesian authority accused
Malaysia of violating an alleged verbal understanding of 1969, and according to the Indonesian
version of the agreement, which it was apparently agreed to discuss the question of ownership at
a later point of time. Nonetheless, Malaysia has denied wholly on such allegation and denies the
existence of such an oral undertaking had happened in the past, maintaining that the two islands
have always been part of the British North Borneo (present time Sabah) and therefore
automatically belongs to Malaysia when Sabah joined the Federation of Malaya in 1963. And also
because of this, the then Foreign Minister of Malaysia Tun Abdullah Ahmad Badawi stated to the
Indonesian Foreign Minister Ali Alatas that there will be no more developments projects in the
islands until the matters of ownerships have been resolved.5

5
Trost R. H. (1995). The Territorial Dispute Between Indonesia And Malaysia Over Pulau Siapdan And Pulau Ligitan
In The Celebs Sea: A Study In International Law. Boundary And Territory Briefing. Volume 2, Number 2. Page-4

3
There is an issue regarding the promised made by Tun Abdullah to Ali Alatas. In 1969,
just three years after the 1963-1966 Konfrontasi between Indonesia and Malaysia, both states
established their continental shelf boundaries (a broad, relatively shallow submarine terrace of
continental crust forming the edge of a continental landmass) in the Straits of Malacca and the
South China Sea by a mutual agreement/treaty. The Indonesian authority imposed a status quo (to
keep the things the way they presently are) which disallowed any activities or developments
projects being built until an agreement was reached between the two countries. But things doesn’t
work as planned, because the Indonesian authority claimed that there were some parts of Malaysia
that have lost their patients and have begun to exploited the area for maritime tourism.

The response from the Indonesian government, Specifically from Major General Nugroho,
the then Home Ministry Secretary General, he stated that “the issue is not a simple matter that
could be resolved in a day or two”, and Major General Nugroho also acknowledge the fact that
part of this issue is because of the faulty of the past respective colonial powers that rule over Sabah
and Indonesia, which is the British and the Dutch empire. The General explained further in his
statement in 1991, “the differences between the countries over sovereignty to both islands are
understandable as Malaysia and Indonesia, once under British and Dutch colonial rule,
respectively, refer to maps inherited from their colonial masters.”

As we can see from this, both the Malaysian and Indonesian governments act in a more
liberal manner in which they try to settle this issues in a more civilize way, and not by using any
military actions that may leads to worse case scenarios. Despite the fact that the level of tensions
is still high due to the Konfrontasi (Malaysian-Indonesian Confrontation) in the 1966, we can
assume that historical events teaches us the value of lives and respect which adhere to the
foundations and norms of the South East Asian people.

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4.0 Past Treaties

The past agreements between the Colonial Empires (British and Dutch) with their
respective colonized state (Indonesia and Malaysia) can be a source of argumentation for both
Malaysia and Indonesia in their quest to claimed the Sipadan and Ligitan Island. It’s some sort of
their legal claims on these islands.

4.1 The 1891 Convention

The Convention was agreed between the Great Britain and Netherlands in May 1981. The
purposes of the Convention is to define the boundaries between the Dutch possessions in the Island
of Borneo and the States in the Island which are under British protection. The Indonesian
government use this Conventions as their basis of claim onto the Sipadan and Ligitan Islands. One
of the important provision of the 1891 Convention was the Article IV which stated the location of
the distribution of the island of Sebatik between the Dutch and the British and also including the
surrounding islands which in this case the Sipadan and Ligitan Island, “From 4' 10' north latitude
on the east coast the boundary-line shall be continued eastward along that parallel, across the Island
of Sebat6ik: 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 the parallel to the Netherlands.”

And if this stated correctly, the Island of Sipadan and Ligitan, as islands to the south of the
parallel had vested in the Dutch and now automatically belonged to Indonesia. However, Malaysia
had a different view and understanding of this point. Malaysia viewed that the provision only
divided Sebatik Island, but only the island. Whereas everything to the east which include the two
islands are not affected by the treaties signed. Because of both nations facing the issue of treaty
interpretation, the Court will refer to the principles that can be applied found in Articles 31 and 32
of the 1969 Vienna Convention on the Law of Treaties in which reflected the customary
international law. The result was that the Court found out that the word ‘across’ in Article IV and
also the phrase ‘shall be continued’ were ambiguous (not clear) and it is capable of supporting
both party construction to claiming the islands.

6
Merrills J. G. (2002), Sovereignty Over Pulau Ligitan And Pulau Sipadan (Indonesia Vs Malaysia), British Institute Of
International And Comparative Law, Volume 5, No. 3, Pp-798

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The Court also found it significant that an Explanatory Memorandum (An explanatory
memorandum accompanies each Bill introduced into Parliament and explains the intentions of the
Bill.) that have been submitted to the Dutch States-General when ratification of the Convention
was being considered, had made no reference to the disposition of islands to the east of Sebatik
Island. Moreover, the Court also conclude that the whole scheme of the Convention indicated that
its purpose was to delimit the boundaries between the parties’ possessions within Borneo, rather
than to deal with their possessions to the east. Which means that the Court rules out that the
Convention itself is about the State of Borneo, the land not the sea, which including the island
within the sea. Additionally, in 1893, the Dutch had modified its contracts with the Sultan of
Bulungan, however the process of modification of the contract does not deals with the Sipadan
and Ligitan islands.7

And because of these result that came out by the decision of the Court, then it is concluded
that the claim of Sipadan and Ligitan by the Indonesian Governments by using the 1891
Convention does not have enough validity and it thus does not support their claims. Too many
faulty, gap hole and unclear statement which in turn questions the Convention itself.

7
Merrills J. G. (2002), Sovereignty Over Pulau Ligitan And Pulau Sipadan (Indonesia Vs Malaysia), British Institute Of
International And Comparative Law, Volume 5, No. 3, Pp-799

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5.0 Possessing The Title By Means Of Succession

An important question do arises during this conflict, and it is whether Malaysia or


Indonesia had obtained any title to Ligitan and Sipadan Island by succession? Indonesia does come
forward with a claim of Title Succession to the Court. The Indonesian government claim that they
succeed the title that was once held by the Dutch, which in turn got it from the contracts deals with
the Sultan of Bulungan in the past.8 However, the Malaysian authority doesn’t agree to this claim
because the Malaysian government deny that the Sultan of Bulungan never actually possessed the
islands himself. The Court eventually sided with the Malaysian statement because the findings of
the original contracts with the Sultan of Bulungan I 1878 and the amendment in 1893 described
his possessions in terms which were too narrow or small to include the islands of Sipadan and
Ligitan, which in short, the Indonesian claims of succession/inheritance of the islands are rejected
by the Court.

The Malaysian Government had somewhat similar patterns in terms of title successions of
the Island of Sipadan and Ligitan. However, the differences is that the tittle were passed on many
times, from one great states to another until finally to Malaysia. Firstly, the Sultan of Sulu passed
the tittle of Ligitan and Sipadan to the Spanish Government in 1878, and then the Spanish
government passed it down to the United States in 1900, which passed on to the Great Britain on
behalf of the State of North Borneo in 1930, and next to the United Kingdom when North Borneo
became a colony in 1946, and finally to Malaysia in 1963, when Sabah eventually agreed to join
the Federation of Malaya. However, the weakness of this claim also similar to the Indonesian case
where there is no evidence or mentioning of Ligitan and Sipadan in the transferring of the tittles.
Not Spain nor the United States have any knowledge or back up the statement of Malaysia in terms
of the tittle of the islands. Therefore, because of these uncertainties that is too big to play down,
the Court concluded that Malaysia’s contention that it had inherited a treaty based tittle are also
rejected.

8
Merrills J. G. (2002), Sovereignty Over Pulau Ligitan And Pulau Sipadan (Indonesia Vs Malaysia), British Institute Of
International And Comparative Law, Volume 5, No. 3, Pp-800

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6.0 Cartographic Evidence

Cartographic (Cartography is the practice of making maps as well as the study of maps.
Cartographers generally either study the history of mapmaking or use tools and techniques to make
new maps. It is common for cartographers to have a broad knowledge base of both mapmaking
history and the latest techniques9) evidence as mentioned earlier, were the one of the main basis in
claiming the tittle of Sipadan and Ligitan islands by the Indonesian government. But it is no less
controversial as along the explanations given later, we can see that both Malaysia and Indonesia
present a false map that’s they include the Sipadan and Ligitan islands without any legitimacy. On
11th February 1995, the General of Political Affairs of Indonesia states this before in the Indonesia
Parliament that “Malaysia only started to include Sipadan and Ligitan Islands on its national map
in 1969. In fact, the two islands were on Indonesia’s national map before 1969...Therefore, it was
Malaysia that snatched the two islands by including them on its national map in 1969. Malaysia
cannot prove that Sipadan and Ligitan Islands were on its national map before 1969. This is our
trump card.” Additionally, Irawan Abidin, the Indonesian Foreign Minister also stated that “the
islands had long been included in new Indonesian maps...Indonesia’s claim over the islands was
that its maps, based on a 1891 Anglo-Dutch accord, had always incorporated the islands. Malaysia,
by contrast only began including the islands in maps from 1969...Jakarta did not protest at the time
as both countries had just ended the Confrontation period.”10

The decision by the Court is that Malaysia is wrong to include the two islands on the map
in 1969 because it does not have the tittle of the two islands before it can include in their territorial
maps. A decision of including Ligitan and Sipadan islands into a state’s territorial map does not
automatically give a part of territory which is not belongs to a particular state before to a country.
It is wrong. So interestingly the Court also decided the same thing about Indonesia claim using the
Cartographic Evidence, as Indonesia also like Malaysia, doesn’t have any proof of tittle of these
islands before they include in their territorial maps. So, in this case both countries presented
wrongly and rejected by the Court.

9
Corbat J. (unknown). What Is Cartography? Definition and History. Retrieved from
http://study.com/academy/lesson/what-is-cartography-definition-history.html
10
Case Concerning the Frontier Dispute, ICJ Reports, 1986: 582, 583; see also Separate Opinion of Judge Abi-Saab,
according to whom “maps in themselves never constitute a legal title of any kind, either principal or subsidiary” (ibid:
661).

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7.0 The Parties Effectivités

The Court finally find the answers to solve the territorial dispute between Malaysia and
Indonesia on the Islands of Siapdan and Ligitan. The answer is by looking to the respective
effectivites in the islands. Effectivités is an International Law terms which means an application
of the effectiveness principle or an act by a State in a territory. Which explains that the activity
done by the state in the area, official actions are deemed importance to determine the effectivites
in this case.

The Indonesia effectivités is that based on the patrols of the Dutch Royal Navy in the area
around the islands and also with the same with Indonesia Navy. Indonesia government also
mentioned about the activities of their fisherman in the surrounding areas. In terms of Malaysia
effectivités, the Malaysian government has stated that they have been taking the control of over
collecting turtle and turtle eggs in the island of Sipadan in 1933. Moreover, the Malaysian authority
also mentioned about the British have constructed lighthouses for navigation purposes in both of
the islands of Sipadan and and Ligitan in the early 1960.

So, for case guidance and referential, the Court will look into the Eastern Greenland Case,
where in that case the Permanent Court held that a claim to territory based on a continued display
of authority requires an intention to act as sovereign, accompanied by a display of that authority.11
Another main point than strengthen the case was that the Court also stated that where an island is
known to be uninhabited or uninhabitable, an exercise of authority in the title less islands is
necessary.

In short, the Court rule that when the collections of turtles and turtle’s eggs and also
constructions of lighthouses by the British authorities were being done, there were also no sign of
any objections from any party regarding the sovereignty of the islands. Furthermore, based on the
observations by the Court that the activities relied on by Malaysia were diverse in character and
included legislative, judicial and quasi-judicial acts. All and all, the Court rule that Malaysia had
obtained the title of Ligitan and Sipadan on the basis of its effectivités.

11
Merrills J. G. (2002), Sovereignty Over Pulau Ligitan And Pulau Sipadan (Indonesia Vs Malaysia), British Institute
Of International And Comparative Law, Volume 5, No. 3, Pp-801

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8.0 Conclusion

In a nutshell, the territorial disputes of Sipadan and Ligitan Islands were handled in an
‘gentlemen’s’ manners where we can see that both nations who believes that they have the right
of the title of these two islands doesn’t use and aggressive or military force directly in solving
these issues. In terms of International Relations, we can see that both nations are using Liberal
theory where they avoid using force but rather chose to settle it by using diplomatic approaches as
well as negotiations of both parties. And when that failed, both countries also avoid using any
force and they rely on the International Court of Justice to solve these issues. Yes, there are many
heated debates in the ongoing process of the case, but it is expected to be that way because of the
seriousness of both nations in claiming the islands. Finally, when the final result were in favor of
Malaysia based on International Law that were used by the Court, the Indonesians government
although doesn’t fully satisfied by the result, still agreed to the rule of the Court and doesn’t
prolong this issue any further. To my understandings, this is a sign of respect towards the
International Court and also to Malaysia. A good sign for better cooperation in the future as both
nations just ended this issue with the Court final result.

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9.0 References:

Callaghan T. & Graetz G. (2017). Mining In The Asia-Pacific, Challenges And Opportunities, The
Political Economy Of The Asia Pacific, Springer, Adelaide, Australia. Pp-98

Case Concerning the Frontier Dispute, ICJ Reports, 1986: 582, 583; see also Separate Opinion of
Judge Abi-Saab, according to whom “maps in themselves never constitute a legal title of a
ny kind, either principal or subsidiary” (ibid: 661).

Corbat J. (unknown). What Is Cartography? Definition and History. Retrieved from


http://study.com/academy/lesson/what-is-cartography-definition-history.html

Fabio Spadi (2003) "Pulau Ligitan and Pulau Sipadan: New Parameters for the Concept of
Dependency in the Maritime Environment? The ICJ judgment of 17 December 2002",The
International Journal of Marine and Coastal Law18: 295–310

Trost R. H. (1995). The Territorial Dispute Between Indonesia And Malaysia Over Pulau Siapdan
And Pulau Ligitan In The Celebs Sea: A Study In International Law. Boundary And
Territory Briefing. Volume 2, Number 2. Page-4

United Nations (2017). Retrieved from http://www.un.org/en/sections/un-charter/chapter-


xiv/index.html

Manila Declaration Philippines (1987), Association of Southeast Asian Nations. Retrieved from
http://asean.org/?static_post=manila-declaration-philippines-15-december-1987

Merrills J. G. (2002), Sovereignty Over Pulau Ligitan And Pulau Sipadan (Indonesia Vs Malaysia),
British Institute Of International And Comparative Law, Volume 5, No. 3, Pp-798

Merrills J. G. (2002), Sovereignty Over Pulau Ligitan And Pulau Sipadan (Indonesia Vs Malaysia),
British Institute Of International And Comparative Law, Volume 5, No. 3, Pp-799

Merrills J. G. (2002), Sovereignty Over Pulau Ligitan And Pulau Sipadan (Indonesia Vs
Malaysia), British Institute Of International And Comparative Law, Volume 5, No. 3, Pp-
800

11
Merrills J. G. (2002), Sovereignty Over Pulau Ligitan And Pulau Sipadan (Indonesia Vs
Malaysia), British Institute Of International And Comparative Law, Volume 5, No. 3, Pp-
801

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