June 08 , 2002

Malaysia Wraps Up Ligitan-Sipadan Case

From Wan A Hulaimi

THE HAGUE, June 8 (Bernama) -- Some maps are born great, some achieve greatness, and some have greatness thrust upon them, James Crawford, counsel for Malaysia in the Ligitan-Sipadan case at the International Court of Justice (ICJ) said in summing up Malaysia's position in the first round of the oral hearings here Friday.
The description, adapted from Shakespeare's Twelfth Night, was used to put into context the maps submitted by both Malaysia and Indonesia to the Court to establish their rights to the two islands in the Sulawesi Sea, now claimed by Indonesia.
Great maps are those attached to treaties, Crawford said, and then there are maps that are specifically endorsed by states as reflecting a boundary, but the Indonesian map came in category three of 'miscellaneous maps...that are more or less reliable or more or less unreliable depictions on some scale or another'.
He said that of the 77 maps submitted to the Court, only five were Treaty maps that were relevant in one form or another, to the dispute.
The Court, now on the fourth and final day of its first round of oral hearings, heard the Indonesian side say in their opening submissions that an important basis of their claim to Ligitan and Sipadan was the Anglo-Dutch Convention of 1891 which subsequently produced a map in the Dutch Parliament - referred to by Crawford as the Internal Dutch Map - which put the two islands within Dutch (Indonesian) borders.
This line ran 'across' the island of Sibatik, an in-shore island on the east coast of Borneo, a word interpreted by Indonesia to mean a line that went beyond Sibatik's eastern coast and into the sea at 4 degrees 10 minutes N, running north of the two disputed islands.
This line is the "linchpin, the centrepiece, the focal point" of the Indonesian case, Crawford told the Court.
Dismissing this map as irrelevant, he said that after a brief appearance in the Dutch parliamentary record, the map disappeared even as an internal map, until the 1920s and the discussions over the territorial sea and rarely mentioned in any subsequent diplomatic discussions prior to 1969, when Indonesia asserted its rights over Ligitan and Sipadan.
He continued: "Thus even if the Dutch map graphically supported the Indonesian case (which it does not), it is as lacking in historical significance as it is lacking in geographical pertinence or legal weight. This map truly had greatness thrust upon it - but unfortunately it is too slender a thread to bear the weight."
In its earlier submission, Malaysia in fact, following the Indonesian argument, had produced a map which followed the Indonesian 'red line' across Sibatik well east into the sea until it cut the Indonesian Karakelong Island in two, placing the northern half within Malaysian borders.
Crawford, still left with 65 maps tendered in evidence after discarding the irrelevant ones in "category three", told the Court that he would make only three general points:
1. Looking at 22 Dutch/Indonesian maps between 1891 and 1992, not one showed Ligitan and Sipadan as belonging to Dutch Borneo or Indonesia and some did not show the islands at all. Those that did, overwhelmingly showed them as belonging to North Borneo (Sabah).
2. Indonesia sought to use the oil practice of the two countries to show that they claimed the islands and Malaysia did not. There is no extensive records of this simply because there is no oil there, and neither party had any relevant oil practice; but Malaysia had implied territorial claim because one of its licenses cut right through the territorial sea of Ligitan.
3. 'Lines in the sea' argument used by Indonesia to establish their claim because they were inconclusive because some of them stopped on the east coast of Sibatik, whilst other extended out a short distance to sea.
On the third point, Crawford observed: "Indonesia sought to give additional weight to its map case by two strategies. The first of these was to ignore any evidence contrary to their position, the second was to extend short lines into long ones."
He added that Indonesia wanted to treat the line that extended a few miles to the east of Sibatik as significant, but not its length, and so having the argument both ways.
"The cartographer had a reason for drawing the line to the east (perhaps to depict a presumed territorial sea boundary), and a reason for stopping the line where it stopped - perhaps an awareness that the territorial sea does not go out very far. On this map it goes out about six nautical miles. It is quite illegitimate to count such a map as supporting an allocation line reaching as far as 50 miles further east," he told the Court. Indeed - he asked - why should the line stop at Ligitan, why should it not keep going?
"You can see on the map what happens if it keeps going: it cuts through Karakelong Island, which is part of Sulawesi...According to (Indonesian counsel) Sir Arthur Watts, Malaysia gets the advantage of the line as well as its disadvantages. So why does Malaysia not get the northern part of Karakelong Island to go along with the northern part of Sibatik?" Crawford went on.
In his earlier submission, Crawford traced the history of the region, involving the Sultanate of Sulu, the British North Borneo Company (BNBC), the Spanish, and the Americans, and the British administration, and raised the pertinent question: "Where were the Dutch?"
He said that the Dutch recognised that they had no interest in the area which included Ligitan and Sipadan, and therefore no inheritance was passed on to Indonesia.
In the morning, Malaysian counsel Jean-Pierre Cot described Indonesia's position as similar to that of Harry Porter, producing evidence where none existed, and rabbits from a hat.
Also concluding his submission for Malaysia, Sir Elihu Lauterpacht told the court as regards effectivites, the conduct of the British and its inheritor in title Malaysia as regards the territories claimed:
"There is a serious measure of absurdity in this attempt by Indonesia to put Malaysia in the position of having to prove its title by reference to a standard of conduct that Indonesia's own behaviour does not remotely approach."
In a reference to the Dutch naval vessel "Lynx" which regarded as the nearby island of Si Amil as British, and Sipadan therefore by implication as not, Indonesian counsel said that this was "a most striking example of Dutch acts of sovereignty in the area.
"If the Netherlands acquired a title to the islands in 1891, it was up to it to maintain it. And to do so by conduct comparable to that which it now demands of Malaysia. But what does the court get? A close scrutiny of details of British and Malaysian conduct which cannot conceal the reality of the true governmental position, And what does the Court get from Indonesia? The Lynx, the Lynx and yet again the Lynx," Sir Elihu concluded.
The case had come to the ICJ by a Special Agreement signed between Malaysia and Indonesia to resolve the issue amicably here and to be bound by the International Court's decision. Prior to this oral hearing, both Malaysia and Indonesia had filed Memorials, counter-Memorials and Responses to the Court, outlining their respective arguments in documents which went into several volumes.
Both sides in the dispute will now proceed to the final round of oral hearings on June 10 when Indonesia will present its final submissions, to be followed by Malaysia's the following Wednesday.
The fifteen judges of the Court under the Presidency of French Judge Gilbert Guillaume, plus two ad hoc judges nominated for the case by Malaysia and Indonesia, will then deliberate on the evidence. A judgment is expected to be delivered by the Presdient in September at the earliest. -- BERNAMA