JURNAL OPINIO JURIS Vol.

12  Januari—April 2013

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).
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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

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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

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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

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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.

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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,

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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;

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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.)

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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

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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:
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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

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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

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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

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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

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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

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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
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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.

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JURNAL OPINIO JURIS Vol. 12  Januari—April 2013

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.

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