Dispute Between Indonesia and Malaysia On The Sovereignty Over Sipadan and Ligitan Islands PDF
Dispute Between Indonesia and Malaysia On The Sovereignty Over Sipadan and Ligitan Islands PDF
12 Januari—April 2013
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.
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).
8
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
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
9
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
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.
10
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
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
11
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
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.
12
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
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,
13
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
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;
14
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
15
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
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:
16
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
18
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
violating the understanding on “status quo” because the Court was not
requested to adjudicate on this matter.
19
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
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.
20
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
21
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
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
22
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
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.
24
JURNAL OPINIO JURIS Vol. 12 Januari—April 2013
25