Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan

Badinter Commission, Opinion No. 1, Part 1. Alain Pellet. (1992).
The Opinions of the

Badinter Arbitration Committee A Second Breath for the Self-Determination of Peoples. 1
EJIL 178.
Opinion No. 2 (Self-determination)

On 20 November 1991 Lord Carrington asked: "Does the Serbian population in Croatia and Bosnia and
Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?" The
commission concluded on 11 January 1992 "that the Serbian population in Bosnia and Herzegovina and
Croatia is entitled to all the rights concerned to minorities and ethnic groups.... Republics must afford
the members of those minorities and ethnic groups all the human rights and fundamental freedoms
recognized in international law, including, where appropriate, the right to choose their nationality".[1]
The opinion also extended the principle of uti possidetis to the former Yugoslavia for the first time
Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan
On 2 November 1998, the Republic of Indonesia and Malaysia jointly notified the Court of 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 accordance with that Special Agreement, they requested the Court to
determine, on the basis of the treaties, agreements and any other evidence furnished by them, to which
of the two States sovereignty over Pulau Ligitan and Pulau Sipadan belonged.
Shortly after the filing by the Parties of the Memorials, Counter-Memorials and Replies, the Philippines,
on 13 March 2001, requested permission to intervene in the case. In its Application, the Philippines
indicated that the object of its request was to
“preserve and safeguard the historical and legal rights [of its Government] arising from its claim to
dominion and sovereignty over the territory of North Borneo, to the extent that those rights [were]
affected, or [might] be affected, by a determination of the Court of the question of sovereignty over
Pulau Ligitan and Pulau Sipadan”.
The Philippines specified that it was not seeking to become a party in the case. Further, the Philippines
specified that “[its] Constitution . . . as well as its legislation ha[d] laid claim to dominion and sovereignty
over North Borneo”. The Application for permission to intervene drew objections from Indonesia and
Malaysia. Among other things, Indonesia stated that the Application should be rejected on the ground
that it had not been filed in time and that the Philippines had not shown that it had an interest of a legal
nature at issue in the case. Meanwhile, Malaysia added that the object of the Application was
inadequate. The Court therefore decided to hold public sittings to hear the Philippines, Indonesia and
Malaysia, before ruling on whether to grant the Application for permission to intervene. Following those
sittings, the Court, on 23 October 2001, delivered a Judgment by which it rejected the Application by the
Philippines for permission to intervene.
After the holding of public sittings in June 2002, the Court delivered its Judgment on the merits on 17
December 2002. In that Judgment, it began by recalling the complex historical background of the
dispute between the Parties. It then examined the titles invoked by them. Indonesia asserted that its
claim to sovereignty over the islands was based primarily on a conventional title, the 1891 Convention
between Great Britain and the Netherlands.
After examining the 1891 Convention, the Court found that, when read in the context and in the light of
its object and purpose, that instrument could not be interpreted as establishing an allocation line
determining sovereignty over the islands out to sea, to the east of the island of Sebatik, and that as a
result the Convention did not constitute a title on which Indonesia could found its claim to Ligitan and
Sipadan. The Court stated that that conclusion was confirmed both by the travaux préparatoires and by
the subsequent conduct of the parties to the Convention. The Court further held that the cartographic
material submitted by the Parties in the case did not contradict that conclusion.
Having rejected that argument by Indonesia, the Court turned to consideration of the other titles on
which Indonesia and Malaysia claimed to found their sovereignty over the islands of Ligitan and Sipadan.
The Court sought to determine whether Indonesia or Malaysia obtained a title to the islands by
succession. In that connection, it did not accept Indonesia’s contention that it retained title to the
islands as successor to the Netherlands, which had allegedly acquired it through contracts concluded
with the Sultan of Bulungan, the original title-holder. Nor did the Court accept Malaysia’s contention
that it had acquired sovereignty over the islands of Ligitan and Sipadan following 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, to the United States, to Great Britain on behalf of the State of North Borneo, to
the United Kingdom and finally to Malaysia.
Having found that neither of the Parties had a treaty-based title to Ligitan and Sipadan, the Court next
considered the question whether Indonesia or Malaysia could hold title to the disputed islands by virtue
of the effectivités cited by them. In that regard, the Court determined whether the Parties’ claims to
sovereignty were based on activities evidencing an actual, continued exercise of authority over the
islands, i.e., the intention and will to act as sovereign.
In that connection, Indonesia cited a continuous presence of the Dutch and Indonesian navies in the
vicinity of Ligitan and Sipadan. It added that the waters around the islands had traditionally been used
by Indonesian fishermen. In respect of the first of those arguments, it was the opinion of the Court that
from the facts relied upon in the case “it [could] not be deduced . . . that the naval authorities
concerned considered Ligitan and Sipadan and the surrounding waters to be under the sovereignty of
the Netherlands or Indonesia”. As for the second argument, the Court considered that “activities by
private persons [could] not be seen as effectivités if they [did] not take place on the basis of official
regulations or under governmental authority”.
Having rejected Indonesia’s arguments based on its effectivités, the Court turned to the consideration of
the effectivités relied on by Malaysia. As evidence of its effective administration of the islands, Malaysia
cited inter alia the measures taken by the North Borneo authorities to regulate and control the
collecting of turtle eggs on Ligitan and Sipadan, an activity of some economic significance in the area at
the time. It relied on the Turtle Preservation Ordinance of 1917 and maintained that the Ordinance
“[had been] applied until the 1950s at least” in the area of the two disputed islands. It further invoked
the fact that the authorities of the colony of North Borneo had constructed a lighthouse on Sipadan in
1962 and another on Ligitan in 1963, that those lighthouses still existed and that they had been
maintained by Malaysian authorities since its independence. The Court noted that
“the activities relied upon by Malaysia . . . [we]re modest in number but . . . they [we]re diverse in
character and include[d] legislative, administrative and quasi-judicial acts. They cover[ed] a considerable
period of time and show[ed] 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 further stated that “at the time when these activities were carried out, neither Indonesia nor
its predecessor, the Netherlands, [had] ever expressed its disagreement or protest”.
The Court concluded, on the basis of the above-mentioned effectivités, that sovereignty over Pulau
Ligitan and Pulau Sipadan belonged to Malaysia.

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Badinter Commission, Opinion No. 1, Part 1. Alain Pellet. (1992).

The Opinions of the

Opinion No. 2 (Self-determination)

Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan

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