DISPUTE BETWEEN INDONESIA AND MALAYSIA
ON THE SOVEREIGNTY OVER SIPADAN AND
LIGITAN ISLANDS
1Hasjim Djalal
Abstrak
Masalah Sipadan dan Ligitan banyak menimbulkan salah mengerti di dalam negeri. Persepsi umum adalah bahwa dengan kekalahan Indonesia di Mahkamah Internasional di Den Haag menghadapi Malaysia, Indonesia telah kehilangan wilayahnya, di samping diplomasi Indonesia telah kalah di dunia internasional. Penelitian lebih lanjut mengenai masalah kepemilikan Pulau Sipadan dan Ligitan menunjukkan bahwa sesungguhnya Indonesia tidak pernah kehilangan wilayah, karena pada waktu kasus tersebut muncul dalam tahun 1969, baik Indonesia maupun Malaysia tidak sadar atas siapa sesungguhnya yang mempunyai kedaulatan atas kedua pulau tersebut. Demikian pula halnya dengan ‘kekalahan diplomasi’ Indonesia. Putusan untuk membawa kasus ini ke Mahkamah Internasional adalah putusan politik, bukan putusan diplomasi, karena pada mulanya Indonesia menentang penyelesaian melalui Mahkamah Internasional, karena dengan demikian masalahnya berpindah dari bidang diplomasi ke bidang hukum.
Kata kunci: kedaulatan wilayah, delimitasi batas maritime, mekanisme penyelesaian sengketa, Mahkamah Internasional.
Abstract
The case of Sipadan and Ligitan had caused many misunderstandings for Indonesian people. The general perception is that by the losing of
1
Indonesia against Malaysia in the International Court of Justice in Den Haag, Indonesia has lost a part of its territory, and therefore considered as the losing of Indonesian diplomacy in the international forum. Further research on the ownership of Sipadan Island and Ligitan Island showed that Indonesia actually never lost such part of its territory because when the case appeared in 1969, both Indonesia and Malaysia did not have any clue on who has the real sovereignty over those islands. Similar to the perception of ‘the losing of Indonesian diplomacy’, the decision to bring the case before the International Court of Justice was more on political, not diplomatic. Since the beginning, Indonesia opposed to settle the case through International Court of Justice because the matter would change from diplomatic to legal.
Keywords: territorial sovereignity, maritime boundary delimitation, dispute settlement mechanism, International Court of Justice.
1. Geographical Data
height from the seabed. It is not geographically/geologically part of Borneo mainland. Until 1980 it was not permanently inhabited. It has now developed into a major tourist centre for Malaysia. Both Sipadan and Ligitan are situated south of the 4°10’ North Latitude.
2. The Origin of the Dispute
ownership over islands. They both considered that the issues of ownership over islands were “territorial” in nature for which both of them agreed that they had not been mandated to discuss and Indonesia later considered that this understanding was, in fact, agreeing on “status quo”, in the sense that both sides should refrain from taking any action on the Islands that may prejudice the position of the other. Malaysia on the other hand later considered that there was no such understanding. In fact, the problem of whether there was an understanding of “status quo” or not became a major issue between the two countries later on. The exchange of letters between the two delegations at the end of the meeting at that time (September 1969), did not mention the word “status quo”, although they did agree that the negotiation and the agreement were purely and wholly of “technical nature” (see annex).
The dispute then began between the two countries on who owns the two small Islands. In fact, it became “a thorn in the flesh” in the relations between the two friendly neighboring countries for some time. The two countries later on went studying the record, particularly during the colonial period, and engaged the involvement of local authorities and personalities to look into their views and practices in the past with regard to the two islands.
Upon going back into history, it was discovered that the nexus of the problem was the different interpretation by the two countries with regard to the provisions of the 1891 Agreement between the Dutch and the Great Britain as the former colonial rulers of the two countries.
3. 1891 Agreement
from different interpretation given to Article IV of the 1891 Convention as it related to the sea and small islands beyond. The text of Article IV of the 1891 Convention provided that “from 4°10’ north latitude on the east coast (of the main island of Borneo), the boundary line shall be continued eastward along that parallel, across the Island of Sebatik (another major island of the east coast of Borneo).” Indonesia then argued that the boundary line shall be continued to the sea eastward from Sebatik, and since the two islands of Sipadan and Ligitan are situated South of the 4°10’ North Latitude, the two Islands are therefore belonged to the Netherlands which subsequently belonged to Indonesia. This argument was very similar to the argument provided by Vietnam in the Gulf of Tonkin as if the line across the sea was a “demarcation line”. Realizing that this argument would be untenable in view of the fact that the Territorial Sea of a State at that time was generally recognized to be 3 miles and that the sea in question was generally regarded as high-seas, Indonesia then considered the line as “allocation line” for possession of islands in the area, rather than “demarcation line” of the maritime area, in the sense that the line of 4°10’ North Latitude was a line that “allocate” the islands to the Great Britain (North of the line) and to the Netherlands (South of the line). This “allocation line” interpretation was very similar in fact, to the Chinese interpretation of the nature of the 1887 line in the Gulf of Tonkin as indicated in the SINO-French Agreement of 1887.
4. Direct Negotiation
The two countries later on undertook direct negotiations to seek solution. But after many years of efforts, it did not bring any agreemzent. In the meantime, public opinion has galvanized and the involvement of the press and the media has also hardened the position of each side. As a result of this deadlock, the two countries were later on willing to find solution through “third party” mechanism. But they disagreed on how to go about “third-party” mechanism. Indonesia originally suggested using the good offices of the ASEAN High Council as provided for in the ASEAN Treaty of Amity and Cooperation (TAC) of February 24, 1976.
Article 15 of the TAC stated that in case a dispute cannot be solved by direct negotiations between the Parties, the High Council comprising a Representative at Ministerial level of each ASEAN members shall take cognizance of the dispute or the situation and shall recommend to the Parties in dispute appropriate means of settlement such as good offices, mediation, enquire or conciliation. The High Council may however offer its good offices or upon agreement of the Parties in dispute, constitute itself into a Committee of Mediation, Enquire or Conciliation. When deemed necessary, the High Council shall recommend appropriate measure for the prevention of deterioration of the dispute or the situation.
The High Council mechanism in fact has never been invoked before, and therefore could and should be utilized in this case. The High Council may not necessarily be a “Legal Institution” in the sense that they will settle the matter through “legal basis”. The High Council could perhaps function by seeking “political” or “other solutions” that would be acceptable to both parties.
because in fact, Indonesia also had some bilateral boundary problems with its neighbors, not only with Malaysia, but also with Singapore, the Philippines, Thailand, Vietnam, and others.
Again, there was a deadlock here. Malaysia later suggested to bring the case to the International Court of Justice (ICJ) in The Hague, arguing that the solution through the Court would be non-prejudicial to the two countries. Indonesia was very reluctant to go to the Court, because it preferred regional mechanism, it had never gone to the ICJ before, it had never accepted the “compulsory jurisdiction” of the Court, and there were still other ways of settling disputes before going directly to the Court, such as the use of mediation, or even arbitration. Indonesia therefore rejected the Malaysian proposal. Again, there was a deadlock.
5. Going to ICJ
In view of the impasse, the two countries were thinking of negotiating “informally through special Envoys” in order to make suggestions how to overcome the conflict. After this mechanism was agreed upon, Indonesia appointed the Secretary of State, Mr. Murdiyono, assisted by the Director of Legal Affairs of the Foreign Ministry, and Malaysia appointed the Deputy Prime Minister, Mr. Anwar Ibrahim, also assisted by the Lawyer from the Foreign Ministry. Somehow, after several informal meetings between the two Envoys, who reported directly to their Head of Governments, President Soeharto in a visit to Kuala Lumpur in October 1996 finally agreed to settle the matter by legal means through the ICJ in The Hague. As I understand it, the reasons for President Soeharto to finally agreed to go to the Court was motivated by his desire:
a. To settle bilateral problems as much as possible peacefully so that political atmosphere and stability as well as cooperation in South East Asia would be strengthened;
c. To indicate to the world and regional communities that Indonesia was a peace loving and International Law abiding country.
The decision to agree to go to the ICJ was surprising to many Indonesians, and some even opposed it. While direct bilateral negotiations on the basis of legal arguments may have deadlocked, some people were still suggesting that perhaps some solutions through “political compromise” maybe workable, such as through “joint development” of the two islands by the two countries, or dividing the two islands between the two countries, one for each country. These proposals were not acceptable to Malaysia. Some people were suggesting that even after efforts at seeking political compromise had failed, the use of “third party” mechanism could perhaps be attempted first before deciding or agreeing to go to the ICJ. This mechanism was enumerated in Article 33 Para (1) of the UN Charter, including negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their on choice. Although some of these mechanisms had been attempted, such as negotiation and resort to regional agencies or arrangements, other mechanisms have not been attempted, such as mediation, conciliation, or arbitration.
After Indonesia and Malaysia made political decision to go to the Court, the matter now would have to be settled only as a legal matter. The two countries would now have to formulate agreement to go to the Court.
After several negotiations, the Agreement was concluded in Kuala Lumpur on May 31, 1997 (see annex), ratified by Malaysia on 19 November 1997 and by Indonesia on 29 December 1997 (Presidential Decision Number 49/1997), entered into force on May 14, 1998 after the exchange of the instrument of ratifications, and was submitted by a joint letter (dated September 30, 1998 of the two countries), and received by the Court on 2 November 1998. Some of the most important features of the Agreement were the following:
1.) While acknowledging in Article 1 of the Agreement that the Court Jurisdiction comprises the cases which the parties refer to it, Article 2 requested the Court “to determine on the basis of the treaties, agreements, and any other evidence furnished by the parties”, whether sovereignty over the two Islands belong to Indonesia or Malaysia. This request was very “interesting” because the Court is limited in its judgment on the basis of the “treaties, agreements and evidence furnished by the parties”. There is no possibility here for the Court to decide or to determine the case under other criteria, such as compromise or other appropriate solutions agreed by the parties. It should be noted that the Statute of the Court in fact enabled the Court to decide a case “ex aequo et bono” (on the basis of appropriateness) if the parties agreed thereto. It was not very clear why Indonesia or Malaysia or both did not attempt or did not discuss the possibility of the Court to decide the case on the basis of “ex aequo et bono” as stipulated in Article 38 Para (2) of the Statute.
indicated in Article 38 of the Statute, it appeared that both parties have limited or ruled out the possibility of the Court applying local customs and traditions.
3.) In Article 5 of the Agreement, the Parties also agreed to accept the judgment of the Court as final and binding upon them. While this agreement is in conformity with Article 60 of the Statute of the Court, the “revision” of a judgment may be made only when there is some new and decisive facts that may altered the judgment as stipulated in Article 61 of the Charter. Article 5 reflects the wishes of the two countries to settle the matter once and for all so that it will not become a problem in developing bilateral relations between the two countries.
After following some procedures, during which the Philippines applied for permission to intervene in March 2001 and such request for intervention was denied by both Malaysia and Indonesia and the Court, and after receiving memorials and counter-memorials as well as reply and counter-reply followed by oral proceedings by the Parties, the Court finally decided by a vote of 16 to 1 that the sovereignty of Sipadan and Ligitan effectively belonged to Malaysia. It should be noted in this context a statement by Judge Oda of Japan that the determination of the sovereignty over the two Islands did not prejudice the problems and solution of maritime delimitation between the two countries in the relevant area.
Some of the salient points in the litigation were the following:
a. The intention of the party when concluding the Convention in 1891 was not clear on this point and could not be deduced that they intended to demarcate the seas or even to allocate the islands beyond Sebatik, particularly because those two tiny islands lie more than 40 miles from Sebatik and therefore could not be regarded to belong “geographically” to Sebatik Island.
b. The map showed by Indonesia attached to the ratification process by the Netherlands of the Treaty of 1891, either did not go as far as Sipadan and Ligitan or it was not officially agreed as part of the legal attachment of the Convention.
2.) Indonesian argument that Sipadan and Ligitan were originally belonged to the Sultan of Bulungan in East Kalimantan could not be proven decisively for lack of substantive and strong evidence. Equally, the Court did not regard that the “successive” claim by Malaysia as justifiable.
3.) The continuity of the Dutch supposed “sovereign acts” and the exercise of “effective control” regarding the two Islands was not sufficiently strong or continuous. Although the Dutch Navy and planes did exercise some patrolling activities in the area, they were not continuous practices that could prove the exercise of “sovereignty” over the two islands.
violating the understanding on “status quo” because the Court was not requested to adjudicate on this matter.
6. Some Specific Questions.
A. Brief history of the dispute and how did the two States agree to submit the dispute to ICJ.
As indicated above, the dispute arose “accidentally” between Indonesia and Malaysia in 1969 when they discussed the “technical matters” on delimitation of the continental shelf in the area. Suddenly, the two delegations were not so sure to whom the two islands belonged, to Indonesia or Malaysia, because the maps or charts that they were using were not conclusive on this issue. Upon looking into the history, the two Parties developed different interpretations of the 1891 Convention between the Netherlands and Great Britain on the boundary lines in Borneo between North Borneo (Great Britain) and East Kalimantan (Netherlands). After many years of direct negotiations (intermittently from 1969-1995) and attempting to find solutions through regional (ASEAN) mechanism, the two Parties (Indonesian President Soeharto and Malaysian Prime Minister Mahatir), despites some oppositions domestically, decided to submit the dispute to the ICJ. (See the main Report above.)
B. The main arguments of the parties before the Court
the islands of Borneo was 4°10’ North Latitude and “from 4°10’ North Latitude on the East Coast (of the main island of Borneo) the boundary line shall be continued eastwards along the parallel across the Island of Sebatik (a relatively small island off the main coast of Borneo).” Indonesia argued that the word “across the island of Sebatik” should continue eastward toward the sea, and those islands beyond, South of 4°10’ North, belonged to the Netherlands, thus to Indonesia, and those North of 4°10’ North Latitude belonged to Great Britain, thus Malaysia. While admitting that the line of 4°10’ North Latitude might not be “demarcation line” at sea, it was regarded by Indonesia as “allocation line” that allocating possession over islands at sea in the area. Malaysia argued that the line of 4°10’ North Parallel ends at the Eastern Coast of Sebatik Island and could not have gone eastwards to the sea because of the limit of Territorial Sea at that time was only 3 miles, and it would be inconceivable that both Netherlands and Great Britain would divide the high-seas at that time. Neither Malaysia believed that the line was “allocation line” because it was not in the minds of the negotiators at that time, nor the unilateral line produced by the Dutch to accompany ratification process of the Convention when eastwards as far as Sipadan, much less Ligitan. Malaysia argued that the two islands belong to Malaysia through successive acts of State succession from the Sultan of Sulu to Spain, to the United States, to Great Britain, and finally to Malaysia and that in fact it was Britain that had exercised sovereignty over the two islands before Malaysia gained independence.
C. The main considerations of the ICJ in deciding the case
included legislations on taxation, regulations on environment, establishment of lighthouses, etc. The Court decided that effectively it was Great Britain and Malaysia that had exercised sovereignty over the two Islands, and they were not challenged effectively by the Netherlands or Indonesia until the dispute appeared in 1969. Occasional patrolling or visits by the Netherlands authorities to or near the Islands were not regarded as strong enough in assuring sovereignty. It should be noted that the doctrine of “effective control” in obtaining recognition to sovereignty over a territory was strongly manifested in the previous case over the island of Miangas (Palmas) between the Netherlands and the United States in 1928 when arbitrator Max Huber decided that Miangas Island belonged to the Netherlands, now Indonesia, because it was the Netherlands that had proven “effective control” by establishing certain governmental administration in the Island.
D. The relevant historic documents and maps presented to the Court and their evidential value before the Court.
Indonesia did a large amount of research with regard to historic documents and maps and presented them to the Court. However, these documents and maps were not very influential or decisive, either because they were “unilateral interpretations” of the Netherlands or because they were “not parts of the official documents”. In that context, their evidential value was limited, because it could not conclusively indicate the wish of the parties when they concluded the Agreement in 1891.
E. The new things in the jurisprudence of ICJ on the subject of sovereignty disputes
themselves by direct negotiation, or to request intermediation by other third party mechanism. The Court, in this case, strengthened the role of “effective control” with regard to the territorial sovereignty issues. In interpreting the terms of a Treaty, the Court relied a great deal on the intention of the Parties and the situation at the time of concluding the Treaty. The Court will only adjudicate a case on the basis of request agreed by the Parties as submitted to the Court (in the Sipadan and Ligitan case on the basis of treaties, agreements, evidences submitted by the Parties), and it did not rule on something that the Parties did not ask (the Court refrained from discussing maritime boundaries in the area or the roles of the two tiny islands on matters of maritime delimitation between Indonesia and Malaysia). Even in giving its judgment, the Court will abide by the agreements of the Parties. As in this case the parties did not ask the Court to decide on the basis of “ex aequo et bono”, and the Court therefore did not look into what might be the “proper” solution of the case that would be acceptable to the two parties, but only on the basis of who is legally the owner of the two tiny islands before 1969 on the basis of request submitted by the Parties. The Court did not take into account the situation after 1969.
F. Other comments.
o States should go to the Court only as the last resort in seeking
dispute may also become more difficult to solve as it becomes more emotional and political than what it should be. It would appear that, although reluctantly, ICJ will play a more important role in settling disputes in the future if other mechanisms have not been successful.
o It appears to me that there is no territorial dispute over Islands
between China and ROK in the Yellow Sea. If there is any, it would be important to try to settle it bilaterally through negotiation as soon as possible before bringing the case to the ICJ or to other International Court. In the absence of territorial disputes between China and the ROK over Islands or land boundaries, it would appear to me that the solution of the maritime boundaries delimitation would be possible and relatively easier to pursue, subject to the existence of political will on both sides. If bilateral negotiation fails though it may be useful to attempt to agree first on other third party mechanism before going to the ICJ.
o It appears to me that China would be reluctaned to seek solution,
either through third party mechanism or through the ICJ, although China itself has its own Judge at the ICJ or at the ITLOS. The fact that China and Vietnam for the first time have been able to conclude and ratify delimitation agreement on maritime boundaries (Territorial Sea, Continental Shelf, and EEZ) as well as establishing Joint Fisheries Area and “buffer zone” in the Gulf of Tonkin is an indication of the Chinese willingness to settles its maritime dispute with its neighbor through negotiation.
o In this context, it should also be noted the reluctant of China to
modality was not particularly responded by the other parties, partly due to the “multilateral character” of the claims. Fortunately, there have been agreement on “code of conduct” between ASEAN and China on the South China Sea (see annex). It would therefore be useful if China and ROK could also agree on a set of “code of conduct” in the Yellow Sea to facilitate understanding and agreement.
7. Conclusions
The dispute between Indonesia and Malaysia over Sipadan and Ligitan had lasted more than 30 years. It would be understandable that the emotions of some people may have been attached to the case. Although “diplomatic solution” through direct negotiation was originally attempted, it later became completely legal matter when the leaders of the two countries made “political decisions” to go to the Court to decide the case on the basis of its legal merits.
It was also understandable that any side that lost the case would be facing some domestic problems and antagonism as well as criticisms. As it turned out, the fact that Indonesia lost the argument in the ICJ, did create some political repercussion in the country. Fortunately, Malaysia, who won the case in the Court, had shown a good neighborly spirit by not bragging too much of its “victory”. In the end, despite some disappointments, Indonesia has accepted the decision of the Court, and therefore is looking forward to negotiation to settle maritime boundaries with Malaysia in that area.
Going to the Court to settle territorial sovereignty issues as well as maritime boundary delimitations of course will bring a lot of risks, because the solution would generally be “winning or losing”. Therefore, many countries are generally reluctant to go to the Court. They usually prefer the model of “direct negotiation” to settle the disputes peacefully so that they can still be in control of the process. In fact, many countries would like to use “third party mechanism” through Commission of Inquiry Good Offices or even Mediation and Conciliation, in which the parties could still influence, and even control the processes and the solution. The solution may not necessarily be “legal” in the sense of “right or wrong”, or “win or lose”, but in the sense of “what the parties could accept”. They would even prefer to go to arbitration in which the Parties could still control some processes and the decision may not necessarily be binding if the arbitration is being asked only to suggest some solutions. Even if the case have to go to Judicial Settlement like the Court (ICJ), the possibility of the Court being asked to decide the case not on purely legal argument is still open by asking the Court to decide the case on the principle of “ex aequo et bono” as indicated in Article 38 Para (2) of the Statute of the International Court of Justice.
It is therefore really a dramatic step by Indonesia to agree for the first time to go to the Court, and to agree that the Court should decide the case on purely legal matters, and to agree to accept the decision of the Court as final and binding, without “seriously” attempting other mechanisms
allowed by the UN Charter.
