CASE CONCERNING SOVEREIGNTY OVER PULAU LIGITAN AND

PULAU
SIPADAN (INDONESIA v. MALAYSIA) (MERITS)
Judgment of 17 December 2002
In its Judgment in the case concerning Sovereignty over
Pulau Ligitan and Pulau Sipadan (IndonesiaIMalaysia), the
Court fbund, by sixteen votes to one, that "sovere:ignty over
Pulau Ligitan and Pulau Sipadan belongs to Malaysia".
Ligitan and Sipadan are two very small islands located in
the Celebes Sea, off the north-east coast of the: island of
Borneo.
The: Court was composed as follows: President
Guillaume; Vice-President Shi; Judges Oda, Ranjeva,
Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins,
Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal and Elaraby; Jutlges ad hoc Weerarnantry and
Franck; Registrar Couvreur.
Judge Oda appended a declaration to the Judgment of
the Court; Judge ad hoc F'ranck appended a dissenting
opinion to the Judgment of the Court.
The full text of the operative paragraph of the: Judgment
reads as follows:
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, FL:ischhauer,
Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, B uergenthal,
Elaraby; Judge ad hoc Waeramantry;
AGAINST: Judge ad lloc Franck."
Histoty oj'the proceedings and c1airtl.s of the Parties
(paras. 1 - 13)
On 2 November 1998 Indonesia and Malaysia notified to
the Registrar of the Court a Special Agreement between the
two States, signed at Kuala Lumpur on 31 May 1997 and
having entered into force on 14 May 1998. In that Special
Agreement they requested the Court 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.
Each of tlie Parties duly filed a Memorial, CounterMemorial and Reply within the time limits fixed by the
Court.
Since the Court included upon the Bench no judge of the
nationality of either of the Parties, each Party proceeded to
choose a judge ad hoc to sit in the case: Indonesia chose Mr.
Mohamed Shahabuddeen and Malaysia Mr. Christopher

Gregory Weeramantry. After Mr. Shahabuddeen had

resigned, Indonesia chose Mr. Thomas Franck to replace
him.
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.
Public hearings were held from 3 to 12 June 2002.
At the oral proceedings, the following submissions were
presented by the Parties:
On behrrlfoj'the Goverrzttlettt of It~dotlesia,
"On the basis of the facts and legal considerations
presented in Indonesia's written pleadings and in its oral
presentation, the Government of the Republic of
Indonesia respectfully requests the Court to adjudge and
declare that:
(i) sovereigilty over Pulau Ligitan belongs to the
Republic of Indonesia; and
(ii) sovereignty over Pulau Sipadan belongs to the
Republic of Indonesia."
012 beltalfoj'the Gove~-nmenotf Malaysin,
"The Govermnent of Malaysia respectfully requests the
Court to adjudge and declare that sovereignty over Pulau
Ligitan and Pulau Sipadan belongs to Malaysia."
Geographical cotztext
(para. 14)
The Court first describes the geographical context of the
dispute as follows:
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 miles apart. Ligitan is a very
small island lying at the southern extremity of a large starshaped
reef extending southwards from the islands of
Danawan and Si Amil. Its coordinates are 4'09' latitude
north and 11 8'53' longitude east. The island is situated some
21 nautical miles from Tanjulig Tutop, 011 the Semporna
Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice
Not an official document

Peninsula, the nearest area on Borneo. Permanently above

sea level and mostly sand, Ligitan is an island with lowlying
vegetation and some trees. It is not permanently
inhabited.
Although bigger than Ligitan, Sipadan is also a small
island, having an area of approximately 0.13 sq. km. Its
coordinates are 4'06' latitude north and 118O37' longitude
east. It is situated some 15 nautical miles from Tanjung
Tutop, and 42 nautical miles from the east coast of the
island of Sebatik. Sipadan is a 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 scubadiving.
Historical background
(paras. 15-3 1 )
The Court then gives an overview of the complex
historical background of the dispute between the Parties.
Bases of the Purties ' ckairns
(paras. 32 and 33)
The Court notes that Indonesia's claim to sovereignty
over the islands of Ligitan and Sipadan rests primarily on
the Convention which Great Britain and the Netherlands
concluded on 20 June 1891 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". Indonesia also relies on a series of
efectivitks, both Dutch and Indonesian, which it claims
confirm its conventional title. At the oral proceedings
Indonesia further contended, by way of alternative
argument, that if the Court were to reject its title based on
the 1891 Convention, it could still claim sovereignty over
the disputed islands as successor to the Sultan of Bulungan,
because he had possessed authority over the islands.
For its part, Malaysia contends that it acquired
sovereignty over the islands of Ligitan and Sipadan
following a series of alleged transmissions of the title
originally held by the former sovereign, the Sultan of Sulu.
Malaysia claims that the title subsequently passed, in
succession, to Spain, to the United States, to Great Britain
on behalf of the State of North Borneo, to the United
Kingdom of Great Britain and Northern Ireland, and finally
to Malaysia itself. It argues that its title. based on this series
of legal instruments, is confirmed by a certain number of
British and Malaysian eflectivitks over the islands. It argues
in the alternative that, if the Court were to conclude that the
disputed islands had originally belonged to the Netherlands,
its effecfivitks would in any event have displaced any such
Netherlands title.
The 1891 Cont~entionb etweeiz Great Britaiiz uild
the Netherlands
(paras. 34-92)
'The Court notes that Indonesia's main claim is that
sovereignty over the islands of Ligitan and Sipadan belongs
to it by virtue of the 189 1 Convention. Indonesia maintains
that "[tlhe Convention, by its terms, its context, and its
object and purpose, established the 4O10' N parallel of
latitude as the dividing line between the Parties' respective
possessions in the area now in question". It states in this
conrlection that its position is not that "the 1891 Convention
line was from the outset intended also to be, or in effect
was! a maritime boundary ... east of Sebatik island" but that
"the line must be considered an allocation line: land areas,
including islands located to the north of 4O10' N latitude

were ... considered to be British, and those lying to the south

wen: Dutch". As the disputed islands lie to the south of that
parallel, "[ilt therefore follows that under the Convention
title to those islands vested in The Netherlands, and now
vests in Indonesia".
Indonesia relies essentially on Article IV of the 1891
Convention in support of its claim to the islands of Ligitan
and Sipadan. That provision reads as follows:
"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."
The Parties disagree over the interpretation to be given
to that provision.
Interpretation of tlte 1891 Conveiltion
(paras. 37-92)
The Court notes that Indonesia is not a party to the
Vienna Convention of 23 May 1969 on the Law of Treaties;
the Court would nevertheless recall that, in accordance with
customary international law, reflected in Articles 3 1 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."
It further recalls that, with respect to Article 31,
paragraph 3, it 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))
The Court observes that Indonesia does not dispute that
these are the applicable rules.
The text of Article IV
(paras. 39-43)
With respect to the terms of Article IV, Indonesia
mainta.ins that this Article contains nothing to suggest that
the line stops at the east coast of Sebatik Island. According
to Malaysia, the plain and ordinary meaning of the words
"acrosc; the Island of Sebittik"' is to describe, "in English and
in Dutch, a line that crosses Sebatik from the we:st coast to
the east coast and goes no further".
The Court notes that the Parties differ as t~ how the
preposition "across" (in the English) or "ove~" (in the
Dutch) in the first sentence of Article IV of the 1891

Conveiltion should be interpreted. It 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.
Thr: Parties also disagree on the interpretation of the part
of the same sentence which reads "the boundary-line shall
be continued eastward along that parallel [4'10f north]". In
the Court's view, the phrase "'shall be continued" is also not
devoid of ambiguity. Article I of the Convention defines the
starting point of the boundary between the two States, whilst
Articles I1 and I11 describe how that boundaly continues
from one part to the next. Therefore, when Article 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
contini.ies as an allocation line beyond Sebatik.
The Court moreover considers that the difference in
punctu.ation in the two versions of Article IV of the 1891
Convention does not as such. help elucidate the meaning of
the tex.t with respect to a possible extension of the line out to
sea, to the east of Sebatik Island.
The Court observes that any ambiguity could. have been
avoided had the Conventio~l expressly stipulated that the
4'10' N parallel constituted, beyond the east coast of
Sebatik, the line separating the islands untfer British
sovereignty from those under Dutch sovereignty. In these
circunlstances, the silence in the text cannot be ignored. It
suppo:rts the position of Mahysia.
The context
(paras. 44-48)
Having summarized the Parties' arguments concerning
the context of the 1891 Convention, the Court considers that
First, 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. 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. 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.
As regards the map appended to the Explanatory
Memorandum, the Court notes that this shows four
differently coloured lines, the boundary eventually agreed
being represented by a red line. On the map, the red line
continues out to the sea along parallel 4'10' N to the south
of Mabul Island, such an extension out to sea having not

been cotninented in the Memorandum, nor discussed ia the

Dutch Parliament. It also notes that this 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. It further notes that there is nothing in the case file
either 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 the
argument of Indonesia that the red line on the map 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.
Nor does the Court accept Indonesia's argument
regarding the legal value of the map appended to the
Explanatory Memorandum. The Court observes that the
Explanatory Menlorandun1 and map were never transmitted
by the Dutch Governinent to the British Government, but
were simply forwarded to the latter by its diplomatic agent
in The Hague. The British Governinent did not react to this
internal transmission. The Court then notes that such a lack
of reaction to the line on the map appended to the
Memorandum cannot be deemed to constitute acquiescence
in this line. The Court concludes from the foregoing that the
map cannot be considered either an "agreement relating to
[a] treaty which was inade between all the parties in
connection with the conclusion of the treaty", within the
meaning of Article 31, paragraph 2 (a), of the Vienna
Convention, or an "instrument which was made by [a]
part[y] in connectioil with the coilclusion of the treaty and
accepted by the other parties as an instrument related to that
treaty", within the meaning oFArticle 31, paragraph 2 (b), of
the Vienna Convention.
the Dutch Explanatory Memorandum appended to the draft The object aildpzirpose
of the 1891 Cortverztiort
Law submitted to the Netherlands States-General with a (paras. 49-5 1)
view 'to ratification of the Convention, the only document
relating to the Convention to have been publisheif during the Having examined the
arguments of Indonesia and
period when the latter wits concluded, provides useful Malaysia, the Court considers
that the object and purpose of
information on a certain number of points. 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 Netherlands possessions in the
Island of Borneo and the States in that island which are
under British protection" (emphasis added by the Court).
This interpretation is, in the Court's view, supported by the
very scheme of the 1891 Convention. The Court does not
find anything 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.
The Court accordingly concludes that the text of Article
IV of the 1891 Convention, when read in context and in the
light of the Convention's object and purpose, cannot be
interpreted as establishing an allocation line determining
sovereignty over the islands out to sea, to the east of the
island of Sebatik.
Strpplelnentary means to seek possible
conJir~nationo f Court 's interpretation:
"travaux priparatoires " of the 189 1
Cor~ventio~ant d circrrmstnnces of its
conclusion
(paras. 53-58)
In view of the foregoing, the Court considers that it is
not necessary to resort to supplementary means of
interpretation, such as the travuzrxpr~paratoireso f the 1891
Convention and the circumstances of its conclusion, to
determine the meaning of that Convention; however, as in
other cases, it considers that it can have recourse to such
supplementary means in order to seek a possible
confirmation of its interpretation of the text of the
Convention.
The Court observes that following its formation, in May
1882, the British North Borneo Company (BNBC) asserted
rights which it believed it had acquired from Alfred Dent
and Baron von Overbeck - who themselves acquired them
from the Sultan of Sulu - 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 Company and the Netherlands,
the latter asserting its rights to the Sultan of Bulungan's
possessions, "with inclusion of the Tidoeng territories"
(emphasis in the original). These were the circumstances in
which Great Britain and the Netherlands set up a Joint
Commission in 1889 to discuss the bases for an agreement
to settle the dispute.
The Joint Commission met three times and devoted itself
almost exclusively to questions relating to the disputed area
of the north-east coast of the island of Borneo. 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. 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 the
Netherlands agreed with this partition.
During the negotiations, the parties used various sketchmaps
to illustrate their proposals and opinions. The Court
considers that it is impossible to deduce anything at all from
the length of the lines on these sketch-maps.
'The Court concludes that neither the ti-avaux

priparatoires 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.
Subsequent practice
(paras. 59-80)
The Court observes that 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. For this reason
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". The Court
observes that these three islands are surrounded by many
smaller islands that could be said to "belong" to them
geographically. The Court, however, considers that this
cannot apply to Ligitan and Sipadan, which are situated
more than 40 nautical miles away from the three islands in
question.
The Court then recalls that the 1891 Convention
included a clause providing that the parties would in the
future be able to define the course of the boundary line more
exactly. Thus, Article V of the Convention states: "The
exact positions of the boundary-line, as described in the four
preceding Articles, shall be detennined hereafter by mutual
agreement, at such times as the Netherlands and the British
Govcxnments may think fit."
The first such agreement was the one signed at London
by Great Britain and the Netherlands on 28 September 1915
relating to "the boundary between the State of North Borneo
and the Netherlands possessions in Borneo". By that
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 a 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. In the Court's
view., 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 Court finds that the
intention of the parties to clarif4r the 1891 delimitation and
the complementary nature of the demarcation operations
become very clear when the text of the Agreement is
examined carefully. Thus the Agreement indicates that
"[wlhere physical features did not present natural
bound.aries conformable with the provisio~is of the
Boundary Treaty of the 20th June, 1891, [the
Comn~issioners] erected the: following pillars". Moreover,
the Court observes that the course of the boundary line
finally adopted in the 1915 Agreement does not totally
correspond to that of the 189 1 Convention.
In view of the foregoing, the Court does not accept
Indonesia's argument that the 19 15 Agreement was purely a
demarcation agreement; nor can it accept the conclusion
drawn therefrom by Indonesia that the very nature of this
Agreement shows 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.
After examining the title and preamble of the 1915
Agreement and the terms; of the joint report of the
Commission, the Court concludes that the 1915 Agreement
covered a priori the entire boundary "b~:tween the
Netherlands territory and the State of British North Borneo"
and that 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. The Court, in addition,
considers that an examination of the map annexed to the
1915 Agreement reinforces its interpretation of that
Agreement.
The Court is further of the view that a debate, referred to
by Indonesia, that took place within the Dutch lSovernment
between 1922 and 1926 over whether the issue of the
delim.itation of the territorial waters off the east coast of the
island of Sebatik should be raised with the British
Government, 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
draw:n on land along the 4" 10' north parallel.
The Court finally is of the opinion that it cannot draw
any conclusion for purposes of interpreting Article IV of the
1891 Convention from tlne practice of the Parties in
awarding oil concessions.
In view of all the foregoing, the Court considers that an
examination of the subsequent practice of the parties to the
1891 Convention confirms the conclusions at which the
Court has arrived in paragraph 52 above as to the
interpretation of Article 1V ,of that Convention.
Maps

(paras. 8 1-91)
The Court observes that no map reflecting the agreed
views of the parties was appended to the 1891 Convention,
which would have officia:lly 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.
It notes that in the course of the proceedings, the Parties
made particular reference to two maps: the map annexed to
the Explanatory Memorandum appended by the Netherlands
Government to the draft Law submitted to the StatesGeneral for the ratification of the 189 1 Convention, 'and the
map annexed to the 1915 Agreement. The Court has already
set out its findings as to the legal value of these maps (see
paras. 47,48 and 72 above).
Having examined the other maps produced by the
Parties, the Court finds that, in sum, with the exception of
the map annexed to the 1915 Agreement (see above), the
cartographic material submitted by the Parties is
inconclusive in respect of the interpretation of Article IV of
the 189 1 Convention.
The Court ultimately comes to the conclusion that
Article 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. That conclusion is
confirmed both by the travaux prbparatoires and by the
subsequent conduct of the parties to the 1891 Convention.
Title by succession
(paras. 93-125)
The Court then turns to the question whether Indonesia
or Malaysia obtained title to Ligitan and Sipadan by
succession. The Court recalls that Indonesia contended
during the second round of the oral proceedings that, if the
Court were to dismiss its claim to the islands in dispute on
the basis of the 1891 Convention, it would nevertheless
have title as successor to the Netherlands, which in turn
acquired its title through contracts with the Sultan of
Bulungan, the original title-holder. Malaysia contends that
Ligitan and Sipadan never belonged to the possessions of
the Sultan of Bulungan.
The Court observes that it has already dealt with the
various contracts of vassalage concluded between the
Netherlands and the Sultan of Bulungan when it considered
the 189 1 Convention. It recalls that in the 1878 Contract the
island possessions of the Sultan were described as
"Terekkan [Tarakan], Nanoekan panukan] 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. The Court

further recalls that it stated above that the words "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. The Court therefore cannot accept 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.
The Court then recalls that for its part, Malaysia
maintains that it acquired sovereignty over the islands of
Ligitan and Sipadan further to 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 United States, Great Britain on behalf of the State of
North Borneo, the United Kingdom of Great Britain and
Northern Ireland and finally to Malaysia. It is this "chain of
title" which, according to Malaysia, provides it with a
treaty-based title to Ligitan and Sipadan.
The Court notes at the outset that 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. It further notes that the two
islands were not included in the 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, to Alfred Dent and Baron von Overbeck on 22
January 1878, a fact not contested by the Parties. Finally,
the Court observes that, while the Parties both maintain that
the islands of Ligitan and Sipadan were not terrae ttzrllius
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.
The Court first deals with the question whether Ligitan
and Sipadan were part of the possessions of the Sultan of
Sulu. In all relevant documents, the Sultanate is invariably
described as "the Archipelago of Sulu and the dependencies
thereof' or "the Island of Sooloo with all its dependencies".
These documents, however, 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. The Court further
refers to Malaysia's allegation of the existence of ties of
allegiance 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. The Court is of the opinion that 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.
Turning to the alleged transfer of title over Ligitan and
Sipadan to Spain, the Court notes that in the Protocol
between Spain and Sulu Confirming the Bases of Peace and
Capitulation of 22 July 1878 the Sultan of Sulu definitively
ceded the "Archipelago of Sulu and the dependencies
thereof' to Spain. But the Court concludes that there is no
evidence that Spain considered Ligitan and Sipadan as
covered by that Protocol. The Court observes, however, that
it cannot be disputed, that the Sultan of Sdu 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. The Court, therefore, is of the opinion that
Spain was the only State which could have laid claim to
Lig:itan and Sipadan by virtue of the relevant instruments
but that there is no evidence that it actually did so. It further
obs1:rves that 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.
'The next link in the chain of transfers of title is the
Treaty of 7 November 1900 between the United States and
Spain, by which Spain "relinquish[ed] to the United States
all title and claim of title ... to any and all islands belonging
to the Philippine Archipelago" which had not been covered
by 1:he Treaty of Peace of 10 December 1898. The Court
first notes that, although it is undisputed that Ligitan and
Sipstdan were not within the scope of the 1898 Treaty of
Peace, the 1900 Treaty does not specify islands, apart from
Cagayan Sulu and Sibutu and their dependencies, that Spain
ceded to the United States. 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. Subsequent events show
that the United States itself was uncertain to which islands it
had acquired title under the 1900 Treaty. A temporary
arrangement between Great Britain and the United States
was made in 1907 by an Exchange of Notes.
This Exchange of Notes, which 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.
This temporary arrangement lasted until 2 January 1930,
when a Convention was concluded between Great Britain
and the United States in which 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. Article 111 of that Convention
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. The Convention did not mention
any island by name apart from the Turtle and Mangsee
Islands, which were declared to be under United States
sovereignty. By concluding the 1930 Convention, the
United States 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 United States Administration in the
inteivening period that the United States did claim
sovereignty over these islands. It can, therefore, not be said
with any degree of certainty that by the 1930 Convention
the [Jnited States transferred title to Ligitan and Sipadan to
Great Britain, as Malaysia asserts. On the other hand, the
Court cannot let go unnoticed that Great Britain was of the
opinion that as a result of the 1930 Convention it acquired,
on behalf of the BNBC, title to all the islands beyond the 3marine-league zone which had been administered by the
Company, with the exception of the Turtle and the Mangsee
Islancls. To none of the islands lying beyond the 3-marineleague
zone had it ever before laid a formal claim. Whether
such title in the case of Ligitan and Sipadan and the
neighbouring islands was indeed acquired as a 1:esult of the
1930 Convention is less relevant than the fact that Great
Britain's position on the effect of this Convention was not
contested by any other State.
The State of North Borneo was transformed into a
colony in 1946. Subsequent:ly, by virtue of Article IV of the
Agreement of 9 July 1963, the Government of' the United
Kingdom agreed to take "such steps as [might] be
appropriate and available to them to secure the enactment by
the Parliament of the United Kingdom of an Act providing
for the relinquishment ... of Her Britaimic Majesty's
sovereignty and jurisdiction in respect of North Borneo,
Saravfak and Singapore" in favour of Malaysia.
In 1969 Indonesia challtmged Malaysia's title to Ligitan
and Sipadan and claimed to have title to the two islands on
the basis of the 189 1 Conveintion.
1x1 view of the foregoing, the Court concludes that it
cannot accept Malaysia's contention that there is an
uninterrupted series of transfers of title fi.0111 the alleged
original title-holder, the Sultan of Sulu, to Malaysia as the
present one. It has not been established with certainty that
Ligitiin and Sipadan belonged to the possesz~ions of the
Sultan of Sulu nor that any of the alleged subsequent titleho1de:
rs had a treaty-based title to these two islands. The
Court can therefore not find that Malaysia ha:; inherited a
treaty-based title from its predecessor, the United Kingdom
of Great Britain and Northeirn Ireland.
The Court then considers whether evidence furnished by

the Parties with respect to "efectivitks" relied upon by them

provides the basis for a clecision - as requested in the
Special Agreement - on the question to whom. sovereignly
over Ligitan and Sipadan belongs.
The Court observes that both Parties claim that the
effecfivitks on which they rely merely confirm a treaty-based
title. On an alternative basis, Malaysia claims that it
acquired title to Ligitan ancl Sipadan by virtue of continuous
peaceful possession and administration, without objection
from Indonesia or its predecessors in title.
The Court indicates that, having found that neither of the
Parties has a treaty-based title to Ligitan and Sipadan, it will
consider these effectivitks as an independent and separate
issue:.
It notes that, in support of its argument; relating to
ejfectivitks, Indonesia cites patrols in the area by vessels of
the Dutch Royal Navy, activities of the Indonesian Navy, as
well as activities of Indonesian fishermen. It notes further
that, in regard to its Act No. 4 concerning Indonesian
Waters, promulgated on 1.8 February 1960, in which its
archipelagic baselines are defined, Indonesia recognizes that
it did not at that time include Ligitan or Sipadan as base
points for the purpose of drawing baselines and defining its
archipelagic waters and territorial sea, although it argues
that this cannot be interpreted as demonstrating that
Indoi~esia regarded the islands as not belonging to its
territory.
As regards its effectivit6s on the islands of Ligitan and
Sipadan, Malaysia mentions control over the taking of
turtles and the collection of turtle eggs, allegedly the most
important economic activity on Sipadan for many years.
Malaysia also relies on the establishment in 1933 of a bird
sanctuary on Sipadan. Malaysia further points out that the
British North Borneo colonial authorities constructed
lighthouses on Ligitan and Sipadan Islands in the early
1960s and that these exist to this day and are maintained by
the Malaysian authorities.
The Court first recalls the statement by the Permanent
Court of International Justice in the Legd Status ofEastern
Gree?rland( Denmnr-k v. Nor-~~ncyas)e :
"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 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."
The Permanent Court continued:

"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." (P.C.I.J., Series A/B, No. 53, pp.
45-46)
The Court points out that in particular 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) effectivitks will indeed generally be scarce.
The Court further observes that it cannot take into
consideration acts having taken place after the date on
which the dispute between the Parties crystallized unless
such acts are a nonnal continuation of prior acts and are not
undertaken for the purpose of improving the legal position
of the Party which relies on them. The Court therefore,
primarily, ailalyses the efectivitis which date from the
period before 1969, the year in which the Parties asserted
conflicting claims to Ligitan and Sipadan.
The Court finally observes that it can only consider
those acts as constituting a relevant display of authority
which leave no doubt as to their specific reference to the
islands in dispute as such. Regulations or administrative acts
of a general nature can therefore be taken as effectivitds with
regard to Ligitan and Sipadan only if it is clear from their
terms or their effects that they pertained to these two
islands.
Turning then to the effectivitds relied on by Indonesia,
the Court begins by pointing out that none of them is of a
legislative or regulatory character. It finds, moreover, that it
cannot ignore the fact that 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.
With regard to a continuous presence of the Dutch and
Indonesian navies in the waters around Ligitan and Sipadan,
as cited by Indonesia, it cannot, in the opinion of the Court,
be deduced either from the report of the commanding officer
of the Dutch destroyer Lynx - which patrolled the area in
192 1 - or from any other document presented by Indonesia
in connection with Dutch or Indonesian naval surveillance
and patrol activities that the naval authorities concerned
considered Ligitan and Sipadan and the surrounding waters
to be under the sovereignty of the Netherlands or Indonesia.
The Court finally observes that activities by private
persons such as Indonesian fishermen, cannot be seen as
effectivitds if they do not take place on the basis of official

regulations or under governmental authority. The Court

concludes that the activities relied upon by Indonesia do not
constitute acts a titre de souverairt reflecting the intention
and will to act in that capacity.
With regard to the efectivitks relied upon by Malaysia,
the Court first observes that pursuant to the 1930
Convention, the United States 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. The Court further observes that those
activities which took place before the conclusion of that
Convention cannot be seen as acts "a titre de sou~~erairta"s,
Great Britain did not at that time claim sovereignty on
behalf of the State of North Borneo over the islands beyond
the 3-marine-league limit. Since it, however, took the
position that the BNBC was entitled to administer the
islands, a position which aRer 1907 was formally
recognized by the United States, these administrative
activities cannot be ignored either.
Both the measures taken to regulate and control the
collecting of turtle eggs and the establishment of a bird
reserve, as cited by Malaysia as evidence of such effective
administration over the islands, must, in the view of the
Court, be seen as regulatory and administrative assertions of
authority over territory which is specified by name.
The Court observes that the construction and operation
of lighthouses and navigational aids are not normally
considered manifestations of State authority. It recalls,
however, that in its Judgment in the case concerning
Maritime Delimitation aiid Territorial Qziestioits between
Qatar and Bahraiiz (Qatar v. Bahrain) it stated as follows:
"Certain types of activities invoked by Bahrain such
as the drilling of artesian wells would, taken by
themselves, be considered controversial as acts
performed 2 titre de soiiveraii~. 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." (Judgiilent, Merits, I.C.J.
Reports 2001, para. 197)
The Court is of the view that the same considerations
apply in the present case.
The Court notes that the activities relied upon by
Malaysia, both in its own name and as successor State of
Great Britain, are modest in nuinber 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.

The Court moreover cannot disregard the fact that at the
time when these activities were carried out, neither
Indonesia nor its predecessor, the Netherlands, ever
expressed its disagreement or protest. In this regard, the
COUI-nto tes that 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 teiritory 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 Borueo, such behaviour is
unusual. 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 effectivitis referred to above.
Declaration of Judge Oda
Judge Oda considers the present case a "weak" one in
that neither Party made a strong showing in support of its
claini to title to the islands on any basis. Judge Oda notes
that the Court was requested to choose between the two
Parties in adjudging sovereignty, and he considers that
giver1 that choice, the Court reached a reasonable decision.
In Judge Oda's view, a full understanding of the present
case requires an awareness of the underlying facts and
circumstances. He notes that the existence of the islands of
Ligitan and Sipadan has been known since the nineteenth
century, but that neither Indonesia nor Malaysia claimed
sovereignty over them until the late 1960s. Prior to that
time, there was no dispute between the two States
conct:rning sovereignty over the islands. Any dispute that
may have arisen at that time concerned only the delimitation
of the contineiital shelf between the two States, which had
become of interest because of submarine oil re:serves, but
rtot sovereignty over the islands.
In the mid-1960s agreements between neighbouring
States to delimit the continental shelf were entered into in
all parts of the world. Indonesia and Malaysia succeeded in
concluding an agreement on the delimitation of the
continental shelf in the Malacca Straits and the South China
Sea. However, negotiations on the area to the east of Borneo
became deadlocked in September 1969 and the Parties
agreed to suspend them. The Parties considered this date to
be ther "critical date" in respect of their dispute concerning
sovereignty. Prior to these negotiations, Indonesia and
Malaysia had also granted Japanese oil companies oil
exploration and exploitation concessions in this area. The
concession zones did not overlap and neither Indonesia nor
Malaysia claimed that its zone had been violated by the
other Party.
~ud~O;d a finds that, contrary to the asse:rtion in the

Special Agreement, the onIy dispute which existed in or

around 1969 was one concerning the delimitation of the
continental shelf and that such delimitation dispute would
have been referred more properly to the Co~lrt by joint
agreement. Judge Oda further notes that the Application by
the Philippines in 2001 for permission to intenene did not
concern either Party's title to the two islar~ds but the
delimitation of the contineiltal shelf between the Parties.
In the 1960s, the prevailing rule concerning the
delimitation of the continental shelf was the one set out in
Artic1.e 6, paragraph 1, of' the 1958 Convention on the
Continental Shelf. This provision is extremely ambiguous
because it neither makes clear the baselines from which the
median line should be measured nor does it explain the
"special circumstances" which justify departing from a
median line in connection .with certain islands. Judge Oda
suspects that the main concern of both Parties in their
negotiations on the delinlitation of their respective
continental shelves related t:o the definition of the baselines
and t;he role in terms of the: "special circumsta~lces" test to
be played by the two islands. In fact, the Parties
(particularly Indonesia) might have conc:luded that
sovereignty over the islands would entitle then1 to a much
wider continental shelf. In Judge Oda's view, the issue of
sovereignty arose only as a result of lhe Parties'
manoeuvring for better bargaining positions in the
continental shelf delimitation. This resulted from a
misconception on the part. of the Parties, wllo failed to
undelrstand that, in accordance with the "speeial
circumstances" rule, a delimitation line could have also been
drawn disregarding these two islands.
Though Malaysia has now been awarded sovereignty
over the islands, the impaci: of the Court's Judgment on the
delimitation of the continental shelf should be considered
from a different angle. The rule concerning the delimitation
of the continental shelf is set out in Article 83 of the 1982
Unitt:d Nations Convention on the Law of the: Sea calling
for "an equitable solution". The question r:inains how
"equitable" coilsiderations apply to these is1and.s. Judge Oda
conc.ludes that the present Judgment does not necessarily
have a direct bearing on the delimitation of the continental
shelf.
Dissenting opiiziorl of Judge Frunck
Judge Franck agrees with the Court's finding and
reasoning in rejecting Malaysia's contention that it has
inherited sovereignty over Pulau Ligitan and Pulau Sipadan
by virtue of a "chain of title" that stretches from the Sultan
of Sulu to Spain to the United States to Britain to Malaysia.
As for the dfectivitb, acts undertaken by the Parties in
their sovereign capacity with regard to the two islands, these
are so inconsequential that, weighing them against each
other resembles trying to guess the respective weight of a

handful of cut grass and a handful of feathers. Malaysia set

up navigational lights which, in other eases, this Court has
considered not to be acts demonstrating a claim to
sovereignty. The establishment by Malaysia of a deep-sea
diving resort occurred after the critical date on which the
Parties agreed to a "stand-still" that excludes evidence of
this sort of subsequent activity. The Dutch, by their efforts
by sea and air to control piracy in the area demonstrated an
active interest of at least equal vigour to that of the British.
The assessment of these and other such lightweight
activities cannot but lead to inconclusive results.
Moreover, the Court should not even have embarked on
this unsatisfying task because such effectivitks are ii~elevant
when title to territory has been established by treaty. In this
instance, Judge Franck maintains, the Anglo-Dutch
Convention of 1891, in delimiting the entire frontier
between the colonial predecessors on Borneo of Malaysia
and Indonesia, has established a line intended to resolve
potentially conflicting territorial claims of the two empires.
The object and purpose was to bring peace to a vast area of
overlapping ambitions and, in accordance with the Vienna
Convention on Treaties, that objective should have been
honoured by this Court.
In particular, Article IV of the 1891 Convention, in
establishing the 4'10' line to allocate temtory beyond
Borneo's east coast and "across the Island of Sebittik"
should have been presumed to extend so far as necessary to
allocate the two islands - which clearly lie south of the
line- and thereby to resolve any future source of
disputation. It ought to have been presumed that a treaty
intended to resolve all outstanding issues in the area could
not have intended to leave the disposition of Ligitan and
Sipadan up to turtle egg collection and piracy patrolling.
Indeed there is ample evidence to validate this logical, if
rebuttable but unrebutted, presumption. The Dutch
Government's map accompanying the Explanatory
Memorandum by which the ratification of the 1891
Convention was urged upon the States-General shows the
4O10' line extending out to sea eastward of Sebatik. This
map was well known to the British Government, which had
been alerted to it by its Minister in The Hague. There was
no objection from London. In more recent times, Indonesian
and Malaysian oil exploration concessions were also careful
to respect the extension of this line well east of Sebatik.
These facts duly support the inference that the 4'10' line establishing the legal regime
that underpins world peace.
was not intended to end on the east coast of Sebatik. Such treaties should be
interpreted broadly, not narrowly as

Moreover, the legal presumption - recognized in this if the:)' were contracts for the sale
of barley. In this light, the
Court's jurisprudence - that treaties establishing borders, 4'10' line in the 1891
Convention should have been

boundaries and lines of allocation between States are recoi~izeda s dispositive in this
dispute.
intended to effect closure has an important role to play in