Paper of International Law Case Pulau Sipadan and Pulau Ligitan Short History of Sipadan-Ligitan Case P.

Case Sipadan and P. Ligitan began to emerge since 1969 when the Technical Team Indonesia-Malaysia Continental Shelf discuss theseabed boundary between the two countries. Both islands of Sipadan and Ligitan listed in Map Malaysia as part of the territory of the Republic of Indonesia, whereas the two islands are not listed on the attached mapNo. Perpu. 4 / 1960 which guide the technical team working Indonesia. With these findings Indonesia felt compelled to confirm P. Sipadan and P. Ligitan. So they sought for a legal basis and historical facts and other evidence that could support the ownership of two islands. At the same time Malaysia claimed that two of the island as its own by making a number of reasons, the proposition of law and fact. Both sides said thetwo agreed to a temporary island in the "status quo" Claim ownership of Sipadan Island and Ligitan by Malaysia In 1969 Malaysia claims that Sipadan and Ligitan belong to Malaysia, because the two islands were based on chain of title (ownership chain) is a territory under the rule of the British who colonized Malaysia before Malaysia declared independence. At that time, Britain has built a turtle breeding and exploitation of resources alamdi two islands. So to claim that the Malaysian island of Sipadan and Ligitan belonged to Malaysia. After England leaved from Malaysia, Malaysia went on various projects that had carried the British on the island of Sipadan and Ligitan. Various projects are turtle breeding, exploitation of natural resources, and Malaysia are also doing development in both the island's tourism sector. Indonesian and Malaysian island of Sipadan and Ligitan enter into the second region. And then Indonesia and Malaysia agreed that the issue of seizure of the island of Sipadan and Ligitan brought in a state setatus quo. Indonesia and Malaysia but here a different meaning. Malaysia in fact mean that the status quo is still under Malaysia, and Malaysia was even built tourist resort managed by the Malaysian private sector until this issue is complete. Here also Malaysian island of Sipadan and Ligitan insert it into the national map in 1969. Here unlike the case with Indonesia. In this status quo, Indonesia misrepresented. Here even Indonesia thought the two islands of Sipadan and Ligitan not be occupied, and must not be occupied until the problem is finished. To resolve this problem the ASEAN High Council resolve disputes Indonesia and Malaysia. Here Malaysia ASEAN High Council refused to help because Malaysia considered that involved in the dispute on the island of Singapore to claim the stone Puteh. Here Indonesia took the view, that this issue should be resolved at the ASEAN High Council, and Indonesia rejected the case brought ICJ (Inteternational Court Justice).On May 31, 1997 President Suharto agreed to a deal "Final and Binding" along with the prime minister Mahatir Mohammad.

Court Decision Summary The Court begins by recalling the complex historical background of the dispute between the Parties. It then examines the titles invoked by them. Indonesias claim to sovereignty over the islands is based primarily on a conventional title, the 1891 Convention between Great Britain and the Netherlands. Indonesia thus maintains that that Convention established the 4 10' north parallel of latitude as the dividing line between the British and Dutch possessions in the area where Ligitan and Sipadan are situated. As the disputed islands lie to the south of that parallel, "[i]t therefore follows that under the Convention title to those islands vested in The Netherlands, and now vests in Indonesia". Malaysia, for its part, asserts that the 1891 Convention, when seen as a whole, clearly shows that Great Britain and the Netherlands sought by the Convention solely to clarify the boundary between their respective land possessions on the islands of Borneo and Sebatik, since the line of delimitation stops at the easternmost point of the latter island. After examining the 1891 Convention, the Court finds that the Convention, when read in context and in the light of its 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, and as a result the Convention does not constitute a title on which Indonesia can found its claim to Ligitan and Sipadan. The Court states that this conclusion is confirmed both by the travaux prparatoires and by the subsequent conduct of the parties to the Convention. The Court further considers that the cartographic material submitted by the Parties in the case does not contradict that conclusion. Having rejected this argument by Indonesia, the Court turns to consideration of the other titles on which Indonesia and Malaysia claim to found their sovereignty over the islands of Ligitan and Sipadan. The Court determines whether Indonesia or Malaysia obtained a title to the islands by succession. The Court begins in this connection by observing that, while the Parties both maintain that the islands of Ligitan and Sipadan were not terrae nullius 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 does not accept Indonesias contention that it retained title to the islands as successor to the Netherlands, which allegedly acquired it through contracts concluded with the Sultan of Bulungan, the original title-holder. Nor does the Court accept Malaysias contention 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. Having found that neither of the Parties has a treaty-based title to Ligitan and Sipadan, the Court next considers the question whether Indonesia or Malaysia could hold title to the disputed islands by virtue of the effectivits cited by them. In this regard, the Court determines whether the Parties claims to sovereignty are based on activities evidencing an actual, continued exercise of authority over the islands, i.e., the intention and will to act as sovereign. Indonesia cites in this regard a continuous presence of the Dutch and Indonesian navies in the vicinity of Ligitan and Sipadan. It adds that the waters around the islands have traditionally been used by Indonesian fishermen. In respect of the first of these arguments, it is the opinion of the Court that "it cannot be deduced [from the facts relied upon in the present proceedings] 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 considers that "activities by private persons cannot be seen

as effectivits if they do not take place on the basis of official regulations or under governmental authority". Having rejected Indonesias arguments based on its effectivits, the Court turns to consideration of the effectivits relied on by Malaysia. As evidence of its effective administration of the islands, Malaysia cites 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 relies on the Turtle Preservation Ordinance of 1917 and maintains that the Ordinance "was applied until the 1950s at least" in the area of the two disputed islands. It further invokes the fact that the authorities of the colony of North Borneo constructed a lighthouse on Sipadan in 1962 and another on Ligitan in 1963, that those lighthouses exist to this day and that they have been maintained by Malaysian authorities since its independence. The Court notes that "the activities relied upon by Malaysia . . . are modest in number but . . . 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 further states that "at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest". The Court concludes, on the basis of the effectivits referred to above, that "sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia". Analysis On Court Summary ICJ / MI in-trial proceedings in order to take the final decision, regarding the status of the two islands do not use (refuse) materials submitted by the law of both countries, but use the rules of evidence of other criteria, namely "Continuous presence, effective occupation, maintenance and ecology preservation" . In the injunction decision, the International Court of Justice ruled that "Indonesia's argument That it was successor to the Sultanate of Bulungan ... can not be accepted". Meanwhile, the International Court also affirmed that "Malaysia's argument That it was successor to the Sultan of Sulu ... can not be upheld". Court then stated that an objective measure in determining the ownership of these islands is by menerpakan doctrine of effective occupation. Two important aspects in the determination of effective occupation is adannya decision cut-off date or often called the critical date and the evidence of existing law. Critical date specified by the International Court was 1969. It means all activities after 1969 such as resort development is not considered the legal effect at all. Court only saw evidence of the law before 1969. In this connection it should be underlined that the newly formed Federation of Malaysia Sabah as a whole by one state on September 16, 1963. It is understandable when almost all the judges involved agreed MI states that P. Sipadan and P. Ligitan Malaysia fell to the party because the two islands is not so far away from Malaysia and the fact that Malaysia has built some of the infrastructure of tourism in these islands. Effective occupation itself is a doctrine of international law derived from ancient Roman law. Occupation comes from the Roman concept occupatio meaningful administrative action and are not necessarily the physical act of occupation. Effective occupation as an act of administrative control of a region can only be applied to terra nullius or new territory, and no

man's land areas, or areas considered unclaimed and disputed by the state. Effective occupation can not be applied to the territory governed by the agreement, the judge's decision, arbitration decisions, or registration with a clear legal ownership. Obviously the key element in the application of the doctrine of effective occupation is the presence or absence of a law, rule of law, or regulation regarding the status of the region. This is certainly consistent with the meaning of occupatio (read okupatio) which means the administrative actions and are not necessarily physical occupation. Because including international doctrine, effective occupation categorized as a source of substantive law that refers to a form or childbirth bahan-bahan/materi rules or norms that have binding force; and made reference to the occurrence of a legal act.

MI in the settlement of this case Malaysia rejected the argument that the two disputed islands ever become part of Malaysian territory acquired by a private management contract with the Sultan of Sulu Sen-Overbeck/BNBC/Inggris/Malaysia. Malaysian Court also rejected the argument that the two islands included in the Sulu region / Spain / USA / UK who then handed over to Malaysia under terori ownership chain (Chain of Title Theory). According to the Court is neither legal or evidentiary documents filed Malaysia based on the argument of the transfer of sovereignty from the relay contains a reference which expressly refers to the two disputed islands. MI also rejected Indonesia's argument that the two islands is disputed territory under the authority of the Netherlands based on the interpretation of Article IV of the Convention 1891. Indonesia interpretation of borderline 4 10 'N that cuts P. Sebatik as allocation line and continue eastward to reach the two islands in dispute are also unable to accept the Court. Clarity regarding the ownership status of the two islands is also not present in memory Toelichting van. Memory Map Toelichting vans that provide illustrations as Indonesia interpretation of article IV was judged to be unenforceable because it did not become part of the convention of 1891. court also rejected the alternative argument of Indonesia since the two islands dispute is not mentioned in the contract agreement in 1850 and 1878 as part of the Sultanate Bulungan submitted to the Dutch colonial government. Mastery effectively considered as a stand-alone issue with the date 1969 as critical given the legal arguments and legal arguments Affairs Malaysia can not prove their claim of ownership of each of the two is also in dispute. In connection with the evidentiary effectivities Indonesia, the Court concludes that there is no strong evidence that can embody the sovereignty of the Netherlands or the island of Pulau Sipadan and Ligitan.Similarly, there is no evidence and authentic documents which may indicate the presence of form and shape the implementation of Indonesia's sovereignty over the islands referred to until 1969. Court can not ignore the fact that the Law no. 4/Prp/1960 on specified waters on 18 February 1960-which is a product of the initial law for the affirmation of the concept of territorial Archipelago, also did not include the SipadanLigitan into the territory of the Republic of Indonesia. In connection with the evidentiary effectivities Malaysia, the Court concluded that a number of documents submitted indicate a variety of measures of sustainable and peaceful management of the British colonial government since 1917. A series of British efforts materialized in the form of legislative action, quasi judicial, and administrative disputes over both islands, such as: a. Quotation of tax on fishing activity and turtle turtle egg collection since 1917.

b. Settlement of disputes in the turtle egg collection activities in P.Sipadan in the 1930's; c. Determination of P. Sipadan as a bird reserve, and

d. Development and maintenance of the lighthouse since 1962 in P.Sipadan and in 1963 at P. Ligitan In reviewing the legal evidence before 1969 that show the existence of effective occupation of the islands of Sipadan-Ligitan, the Court considered the evidence submitted both countries, namely: a. Indonesia filed evidence of the Dutch navy patrols in the region from 1895 to 1928, including the presence of the Dutch Navy ship Lynx to Sipadan in November-December 1921; and a hydrographic survey of the Dutch ships in the waters of Sipadan Ligitan Macasser in October-November 1903. This patrol was continued by the navy patrol. In addition, the evidence submitted is the presence of Indonesian fishermen fishing activity in 1950-1960s and even early 1970s. b. Malaysia filed evidence in the form of proof of English law that the Turtle Preservation Ordinance 1917; licensing of fishing vessels Ligitan Sipadan area; regulation of the bird sanctuary in 1933 and the construction of a flare in 1962 and 1963. Everything is the product of British colonial law, not Malaysia. Before assessing the evidence Indonesia, International Court of Justice confirmed that 4/Prp Act 1960 on the island nation does not include the Sipadan-Ligitan as belonging to Indonesia. Court believes this is relevant to the island of Sipadan-Ligitan case because Indonesia did not include it in a national legislation. Navy patrol against Holland, the Court argued that this is part of joint exercises or collective agreements in the fight against piracy, so it can not be the basis of filing a claim. Regarding the activities of Indonesian fishermen fishing, the Court held that "activities by private persons can not be seen as effectivit, if They do not take place on the basis of official regulations or under governmental authority" Therefore these activities are not part of the implementation of a statutory Indonesia or under the authority of the Government, the Court concluded that this activity can not be the basis for the existence of effective occupation. Court holds that different from Indonesia who submitted evidence in the form of a number of activities and people of Dutch fishermen, Malaysia presented evidence in the form of a number of legal provisions. Court stated that the UK regulations that indicate the existence of a "regulatory and administrative assertions of authority over territory the which is specified by name". The essence of this decision is not as stated while among namely that the state should pay attention to the environment, economic development or even the existence of people on a remote island to demonstrate effective occupation, but the important thing is whether there is a legal arrangement or legal instruments, regulations or other administrative activities on the island regardless of the contents of its activities. This decision also does not give legal meaning to the resort development is carried out by Malaysia after 1969 and also Indonesian fishermen fishing activities that are not based on legislation. It should be underlined that the evidence presented is the activity of Indonesia against the Dutch and English law of evidence. So in terms of international law side, Malaysia get the islands but not on their own activities on the British legal activities conducted in 1917, 1933, 1962 and 1963 long before the Federation of Malaysia with Sabah membership was formed on September 16, 1963.