Southeast Asia location is very strategic which located between the Indian and the Pacific Ocean. As a consequence, Southeast Asia nations generally have a very distinctive maritime nature. On the other hand, Southeast Asia countries also have a long history of colonialism. Therefore, when its gain or was given independence, dispute of territory claim also arose. This unique regional situation unquestionably creates a variety of territorial dispute which has a tendency to broken out as a conflict. Further, South East Asia Nation or collectively refer as “ASEAN” geographic situation that closely borders each other with a conflicting claim also contribute significantly in shaping the way the ASEAN try to resolve their territorial dispute.
One of the well-known cases for a territorial dispute involving Indonesia and Malaysia is the claims over two islands called Sipadan and Ligitan. This case has given ASEAN a perspective about the existence of judicial decision in affecting the region in resolving their territorial dispute. Further, this case also has given prominent example about how the culture of ASEAN countries come into play in resolving the dispute and an implementation of a judicial decision.
Respectively, Sipadan and Ligitan are islands located in Celebes Sea, on the North-East coast of Kalimantan Island (Borneo). These islands approximately located 15.5 nautical miles apart.
Sipadan has located at 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 Sebatik island which half of it belongs to Indonesia. Meanwhile, Ligitan is located at 4° 09’ North Latitude and 118° 53’ East Longitude. It is situated 21 nautical miles from Tanjung Tutop on the Samporna Peninsula in Sabah and 57.6 nautical miles from Sebatik island.
These islands feature and geographical locations play an essential role in delimiting Indonesia and Malaysia territory and their sovereignty in the respective area. Therefore, through a passage of time, it is expected that both countries will have a conflicting claim in a region bordering them. As a matter of history, the conflict arose preceded by the negotiation of continental shelf boundary between their two countries. Based on its natural feature, Indonesia and Malaysia extensively shared continental shelves in the Straits of Malacca, South China, and Sulawesi Sea. This continental shelf contains a mine of minerals and other resources that will benefit these two countries greatly.
In the other side, this conflicting claims is also a stage of showing a power that is considered important when the country is emerging nation that just gained independent. When this conflicting claim arises around 1950, both Indonesia and Malaysia recently regain their posture from colonialization and protectorate relationship.
This negotiation comes into a new stage when both countries signed and ratified the 1958 United Convention on the Continental Shelf (“Continental Shelf Convention”).
Under this Continental Shelf Convention, the coastal states have a “sovereign rights” to explore and exploit the natural resources in the continental shelves. However, the Continental Shelf Convention giving only limited guidance to a state with adjacent continental shelves with another state. It only stated that any countries with adjacent continental shelves should delimit their boundary by using an agreement between them.
Based on such delimitation method, both countries come to an agreement over boundaries in Strait of Malacca and the South China Sea with ease. Both countries agree on over such profitable zone without much conflict and tension. Some people believe that this was mostly because the Indonesia government readily prepared to accommodate Malaysia interest to gain Malaysia’s support upon Indonesia campaign about the sovereignty over the waters between the islands that constitute Indonesia. Indonesia was campaigning about archipelagic waters concept and seek recognition over its concept under United Nations Convention on the Law of the Sea in 1982 agreement (“UNCLOS”).
Both countries gain their respective interest. Therefore, they readily settle the conflicting claims amicably. However, when the conflicting claims start reaching the boundary in the Sulawesi Sea, the tension escalated quickly and lead to a dispute over Sipadan and Ligitan islands. This issue becomes more crucial because whoever owns these two islands, will have a right to claim a territorial sea zone. This claim of territorial sea zone will extend to 12 nautical miles from the baseline in the shore. The state that becomes the owner of these two islands will have a right to explore and exploit the continental shelf feature attach to it. This seemingly abundant resource arguably become one substantial reason for both countries that did not want to diminish the value of these two islands at all. Also, these two islands holding a strategic position in delimiting Indonesia and Malaysia boundaries.
II. NEGOTIATION PROCESS
The dispute comes into public attention in December 1979 when the Government of Malaysia published a map that showed Sipadan and Ligitan as part of Malaysia. Malaysia claimed that Sipadan and Ligitan belong to Sabah region. This unfitting claim spontaneously draws a strong objection from Indonesia. A few weeks later following the release of such map, Indonesia President at that Time, Soeharto and Malaysia Prime Minister at that time, Hussein Onn held a discussion meeting to resolve the arising dispute. However, the discussion between two important figure leads the arising issue unresolved. Further, In October 1982, Malaysia Foreign Minister, Ghazali Shafie, discussed the issue with President Soeharto during a visit to Jakarta. Although the meeting did not reach to anything however, the meeting was concluded by both parties agree to reaffirm the commitment to resolve the issue through negotiations.
The spark accelerated again in 1991 when it came to Indonesian Government attention that a private company had built a number of chalets and pier on Sipadan based on Malaysia acknowledgment. Responding to this confrontational action, Indonesia Foreign Minister, Ali Alatas, remind the Malaysia government of the understanding of the two governments to maintain the status quo until the issue of ownership is resolved. After several means of direct negotiations failed. The parties try to resort to third-party mechanism dispute settlement. Indonesia offered a way using ASEAN Treaty of Amity and Cooperation (TAC) dispute mechanism by using a High Commission system.
The dispute settlement mechanism under TAC consists of a High Council comprising one representative at ministerial level from each of the ten ASEAN member states together with representatives of non-ASEAN states. The High Council has a duty on any disputes or situation which likely arising and disturb the regional peace and harmony. If the negotiation does not follow through, the High Council will recommend an appropriate means of settlement such as good offices, mediation, inquiry or conciliation. However, this dispute settlement never comes into a place. Finally, after failing at every effort to settle the dispute, both party seeking a legal means to end the conflict that arose for more than three decades in the region. In 1998, both countries decided to refer the case to the International Court of Justice.
Interestingly, According to Hasjim Djalal, a senior official in the Indonesian Department of Foreign Affairs and an authority on the law of the sea who took part in the negotiations, in their hearing in front of International Court of Justice (“ICJ”), both side takes a difference in mapping situation. Meanwhile, the Indonesian wanted to use a map of Malaysia which did not show that Sipadan and Ligitan were part of Malaysia. Malaysia on the other side, wanted to use map of Indonesia which did not show that these two islands as part of Indonesia.
III. THE CLASH OF ARGUMENTS IN INTERNATIONAL COURT OF JUSTICE
The ICJ begin its proceeding after both countries submit its submission to court jurisdiction in resolving the matter of Sipadan and Ligitan ownership. ICJ decided the case on the matter regarding the acquisition of territorial sovereignty over the islands. In adjudicating the case, the court takes several criteria into account, which are: the history of the proceedings and claims of the parties, geographical context of the island, the historical background of the title of succession and effectivities claim doctrine.
In this case, Indonesia claims over the islands rest primarily on the Convention, which Great Britain and the Netherlands concluded on June 20, 1891, for the purpose of defining the boundaries between the Netherland possession in the island of Borneo and the States in that’s island which was under the protection of British. These claims were supported by Dutch, and Indonesia effective Occupation claims over the islands. Indonesia also relies its claims on effectivities, which confirming its conventional title and claims of its sovereignty as the successor of Sultan Bulungan which had possessed authority over the islands.
On the other side, Malaysia denied Indonesia Claims that the Convention concluded between Great Britain and the Netherlands had the effect alleged by Indonesia. Malaysia claims based on succession from the Sultan of Sulu and also cite of the effective occupation, in this case by British and Malaysian to confirm the title in question. Further, Malaysia stated that the 1891 convention its only matter clarify the boundary between their respective land possessions on the islands of Borneo and Sebatik.
However, the court found that the claim based upon the treaties was not binding in resolving the current issue. The court is unpersuaded with the interpretation of Indonesia regarding the intention of the convention and refers to the principle of the Vienna Convention on the Law of Treaties as a matter of customary International in interpreting the convention.
Further, the court also rejected Indonesia claims about sultan Bulungan successor because the location of Sipadan and Ligitan islands were not in the vicinity of the sultanate. The court similarly rejected Malaysia’s claim regarding the transfer of title from Sultan of Sulu because the record failed to establish that these two islands belonged to the sultanate.
Having found that neither of the parties has a treaty-based title to Sipadan and Ligitan, the Court next taking a virtue of the effectivities cited by the parties into account. In this regards of Effectivities doctrine, the court determines the parties claims of sovereignty based on activities evidencing an actual, continued exercise of authority, such as, among other things, the intention and will to act as sovereign.
On this matter, Indonesia brings an evidence regarding a continuous Dutch and Indonesia Navies presence in the Sipadan and Ligitan vicinity and Indonesia also stated about Indonesia Fisherman presence in the waters around the islands traditionally. Meanwhile, Malaysia bring evidence about its administrative, legislative and quasi-judicial acts in these two island.
After assessing both parties evidence, the court decided that Indonesia evidence and act did not constitute the intention and will to act in that capacity as sovereign. In the other hand, the court found that in respect of these two islands the character of Malaysia evidence even though modest in the scope but having a diverse character and revealing an intention to exercise state function over the disputed area. Consequently, the court concluded that based on the effectivities doctrine, the sovereignty over the Sipadan and Ligitan Islands belonged to Malaysia.
IV. THE AFTERMATH OF INTERNATIONAL COURT OF JUSTICE DECISION
The Decision to settle the dispute through ICJ mechanism was surprising to many Indonesians, and some even opposed it. Some people believe that although the direct bilateral negotiation was not working out, “political compromise” solution might be workable, taking into account that both countries are neighbor with so many overlapping interests.
If parties were willing to compromise, this territorial dispute will be settled once and for all. However, because of the lack of compromise, until now Indonesia and Malaysia keep having tension in regards to territorial boundaries. Although ICJ already decided about the ownership of Sipadan and Ligitan, but it does not solve the problem of maritime boundaries between nation. This lack of collaboration and intent to compromise were believed as one of the unlimited sources of all the tension between both nations.
Some people are also suggesting that even after failing at an attempt of political compromise, the third-party mechanism should be used first before deciding to go to the ICJ. As a part of ASEAN, both country, supposed to be taking the ASEAN Way into consideration. This method of ASEAN Way is often used as nomenclature to describe a set of procedural norms among ASEAN States. This nomenclature includes the principle of seeking agreement and harmony, the principle of sensitivity, politeness, non-confrontation and agreeability, the principle of quiet, private and elitist diplomacy versus public washing of dirty linen, the principle of being non-Cartesian, Non-legalistic. Prima Facie, this principle in line with a consistent with a more extensive cultural inclination within ASEAN to resolve disputes through consensus, compromise, and consultation.
The ICJ Decision in 2002, was directly followed with a conflicting over Ambalat Sea block in 2005 and Sebatik Island afterward. This condition is raising a concern of Indonesian people about the island about the sovereignty and territorial security. As a respond of these case, The President at that time, President Susilo Bambang Yudhoyono declared in National Paper, Kompas, June 3, 2009, that Indonesia Sovereignty over Ambalat Sea block is the bottom line.
The conflict escalated to a declaration in ASEAN Summit, by President Susilo Bambang Yudhoyono which stated, Indonesia will not compromise anymore with Malaysia. In this time, The President stated that Malaysia clearly claims Indonesia territory and therefore, Indonesia will increase the presence of military force for the area. Meanwhile, Malaysia on the other side, quoting its personnel from Malaysian Navy headquarters saying that Malaysia will not make a statement or clarification on the Ambalat issue because it does not need to be addressed. In recent times, Indonesia shows a reluctance to address the issue of the Ambalat block to the international court and prefers to use the power of military pressure instead to address the issue has come into play. Regardless, the territorial dispute still goes unresolved.
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