JURNAL OPINIO JURIS Vol. 12 Januari April 2013 DISPUTE ... between Indonesia and... · wilayah,...

JURNAL OPINIO JURIS Vol. 12 Januari—April 2013

8

DISPUTE BETWEEN INDONESIA AND MALAYSIA

ON THE SOVEREIGNTY OVER SIPADAN AND

LIGITAN ISLANDS1 Hasjim 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 Artikel ini disampaikan pada Seminar Internasional dengan tema “Peaceful Settlement

of International Dispute in Asia” di Jakarta, 13 Desember 2012 kerja sama antara

Indonesian Society of International Law (ISIL) dengan The Korean Society of

International Law (KSIL).


9

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

The Island of Sipadan and Ligitan are both located in the Celebes Sea,

of the North-East coast of the Island of Borneo, and lie approximately 15.5

nautical miles apart. Ligitan is a very small island (7.9 hectare), lying at

the southern extremity of the reef south of Sabah, Malaysia. Its

coordinates are 4° 09’ North Latitude and 118° 53’ East Longitude. It is

situated about 21 nautical miles from Tanjung Tutop on the Samporna

Peninsula in Sabah and 57.6 nautical miles from Indonesian Island of

Sebatik. The island is permanently above sea level and mostly sandy. It is

an Island with low lying vegetation and some trees and it is not

permanently inhabited. Sipadan is larger than Ligitan, having an area of

approximately 0.13 km² (10.4 hectare) and its coordinates are 4° 06’ North

Latitude and 118° 37’ East Longitude. It is situated 15 nautical miles from

Tanjung Tutop, Sabah, and 42 nautical miles from the land boundary

between Malaysia and Indonesia at the east coast of the Island of Sebatik

(half of Sebatik Island belongs to Indonesia). Sipadan is wooded and it is

volcanic in origin and the top of a submarine mountain some 600 to 700 in


10

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

In late 60s the two countries were not even fully aware of the Islands

and their status although they were located closer to Malaysian coastlines

than to Indonesian coastlines. In the negotiation on the Delimitation of the

Continental Shelf boundaries between the two countries in 1969,

Indonesia did not even think of the two Islands. The Indonesian map

attached to its Law Number 4, 1960, depicting the Indonesian archipelagic

baselines to encompass the whole Indonesian archipelago, did not even

include the two Islands (Indonesia later argued that the map of the 1960

law was prepared “in haste” in order to be prepared for the second UN

Law of the Sea Conference in 1960, and therefore might have “over

looked” some very tiny outlying islands very far from general coastlines).

Equally, the Malaysian map being used by Malaysia at that time, which

drew a line between the Malaysian and Indonesian possessions in the

area indicated that the Sipadan and Ligitan Islands were shown as parts

of Indonesia (Malaysia later withdrew the map from circulation and it

appeared that the map has been used previously as a “guideline” for

Malaysia in issuing exploration license for oil and gas in the area, in the

sense that the Malaysian oil and gas concession in the area did not go

south beyond the 4°10’ North Latitude). After the discovery of this

“strange” problem, Malaysia insisted on using Indonesian map while

Indonesia was suggesting to use Malaysian map. The two delegations

later on agreed not to pursue discussion on this matter at that time

because they both considered that their negotiation was on “technical

matters” of the delimitation of the continental shelf boundaries. They had

no mandate to discuss the “territorial” or “jurisdictional” problems or


11

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

Indonesia argued that the 1891 Agreement or Convention between

Great Britain and Netherlands established the 4°10’ North parallel of

Latitude as the dividing line between the respective possessions of Great

Britain and the Netherlands in the area. The disagreement developed


12

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.

Malaysia on the other hand, argued that Article IV of 1891 Convention

did not demarcate the sea, nor allocate the Islands beyond Sebatik, either

to Great Britain or to the Netherlands. In fact, Malaysia took the position

that the two Islands have become part of Malaysia through the process of

“succession” from the Sultan of Sulu to Spain and then to the United

States and later to Great Britain and on to Malaysia.


13

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.

Malaysia rejected the Indonesian proposal, arguing that Malaysia had

bilateral boundary problems with many ASEAN countries, and therefore

was concerned that the High Council might be partial, thus prejudicial to

Malaysia. Indonesia did not really agree with the Malaysian contention,


14

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;

b. So that the two countries should not burden future generations by

bequeathing problems and disputes to them;


15

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.

As I can remember, there were some discussions with regard to the

possibility of using arbitration, but I understand that this was regarded to

be more expensive than going to the Court, an argument which I was not

so sure of to be correct. Moreover, in fact, when dispute arose between the

Netherlands and the United States regarding ownership over the remote

island in the Pacific Ocean (Miangas or Palmas Island), the dispute was

finally settled by an arbitrator, Max Huber, in 1928, who strengthened the

doctrine of “effective control” as an important prove of state sovereignty

(as its known Miangas/Palmas was recognized after that to belong to the

Netherlands, and now to Indonesia.)


16

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.

2.) Article 4 of the Agreement also limits the Court to apply the principles

and rules of International Law as stipulated in Article 38 of the Statute

of the Court. By limiting the rules of International Law to those


17

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:

1.) Indonesian argument that the boundary lines across the Island of

Sebatik at 4°10’ North Latitude went all the way to the sea to the East

as “allocation line”, thus allocating the Islands North of that line to

Malaysia and South of the line to Indonesia was not accepted by the

Court, because:


18

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.

On the other hand, analyzing the “effective control” that were

exercised by the two parties before the dispute appeared in 1969, the

Court decided that Great Britain and Malaysia did exercise some

sovereign acts regarding the two Islands. Some of those exercises of

sovereignty included making regulations with regard to customs,

protection of the environment, collecting taxes, and even establishing

lighthouses. The Court did not pronounce itself on the legality of the

Malaysian actions after 1969, which had been regarded by Indonesia as


19

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 two Parties agreed to ask the Court to decide the case “on the

basis of the treaties, agreements, and any other evidence furnished by the

parties.” In this case, the main Treaty was the 1891 Convention between

the Netherlands and Great Britain, dividing their territories in the area.

The two Parties later on furnished a number of evidences arguing their

respective positions. Indonesia was saying in fact that the dividing line in


20

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

The ICJ believed that prior to 1969, the so-called “critical date”, it

appeared that Great Britain, thus Malaysia, had exercised sovereignty in

the area “more effectively” through a number of sovereign acts that were

more convincing than the “sporadic actions” taken by the Netherlands or

Indonesia. Some of the “sovereign acts” that were referred to by the Court


21

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

States are still free to decide and to agree whether they would bring

their territorial sovereignty disputes to the ICJ or to settle it among


22

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

peaceful settlement of their territorial or jurisdictional disputes.

States should attempt as much as possible to settle their disputes

first by direct negotiation and then follow third party mechanism,

either through good offices, mediation, arbitration, or even

regional mechanism. But, the dispute should be settled as soon as

possible so that it would assure peace, stability, and cooperation

between the States concerned. The longer the territorial or

jurisdictional dispute linger on, the positions of each party may be

hardened, and if the public or the media begin to intervene, the


23

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

settle territorial and jurisdictional disputes over small tiny islands

and reefs in the South China Sea (the Spratlys) by third party

mechanism, including the ICJ. In this case, China insisted on direct

negotiation bilaterally with the directly interested parties. This


24

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.

The Sipadan and Ligitan case was the first dispute that goes to the

Court between Indonesia and Malaysia. At this moment another case

between Malaysia and Singapore regarding ownership over a tiny rock in

the entrance to the South China Sea (the Rock of Batu Putih or

Horsbrough Lighthouse) is also going to the ICJ.


25

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.

While this may bring problems, the model is useful for other

countries, particularly in the West Pacific region, which are busy building

good neighbor relations and regional peace, stability, and cooperation

based on International Law.

JURNAL OPINIO JURIS Vol. 12 Januari April 2013 DISPUTE ... between Indonesia and... · wilayah,...

Documents

Transcript of JURNAL OPINIO JURIS Vol. 12 Januari April 2013 DISPUTE ... between Indonesia and... · wilayah,...