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| II. | Substantive International Law - Second Part |
| 1. | TERRITORY OF STATES |
| 1.1. | Acquisition and Loss |
| 1.1.3. | Effectivités |
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Case Concerning Sovereignty over
Pulau Ligitan and Pulau Sipada
(Indonesia v. Malaysia)
Judgment of 17 December 2002
[pp. ] 126. The Court will therefore now consider whether evidence furnished by the Parties with respect to “effectivités” relied upon by them provides the basis for a decision as - requested in the Special Agreement - on the question to whom sovereignty over Ligitan and Sipadan belongs. The Court recalls that it has already ruled in a number of cases on the legal relationship between “effectivités” and title. The relevant passage for the present case can be found in the Judgment in the Frontier Dispute (Burkina Faso/Republic of Mali) case, where the Chamber of the Court stated after having said that “a distinction must be drawn among several eventualities”: “[i]n the event that the effectivité does not co-exist with any legal title, it must invariably be taken into consideration” (I.C.J. Reports 1986, p. 587, para. 63; see also Territorial Dispute (Libyan Arab Jamahiriya/Chad), I.C.J. Reports 1994, p. 38, paras. 75-76; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, para. 68).
127. Both Parties claim that the effectivités on which they rely merely confirm a treaty-based title. On an alternative basis, Malaysia claims that it acquired title to Ligitan and Sipadan by virtue of continuous peaceful possession and administration, without objection from Indonesia or its predecessors in title. The Court, having found that neither of the Parties has a treaty-based title to Ligitan and Sipadan (see paragraphs 92 and 124 above), will consider these effectivités as an independent and separate issue.
[pp. ] 134. The Court first recalls the statement by the Permanent Court of International Justice in the Legal Status of Eastern Greenland (Denmark v. Norway) case:
“a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority. Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power.”
The Permanent Court continued:
“It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.” (P.C.I.J., Series A/B, No. 53, pp. 45-46.)
In particular in the case of very small islands which are uninhabited or not permanently inhabited - like Ligitan and Sipadan, which have been of little economic importance (at least until recently) - effectivités will indeed generally be scarce.
135. The Court further observes that it cannot take into consideration acts having taken place after the date on which the dispute between the Parties crystallized unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them (see the Arbitral Award in the Palena case, 38 International Law Reports (ILR), pp. 79-80). The Court will, therefore, primarily, analyse the effectivités which date from the period before 1969, the year in which the Parties asserted conflicting claims to Ligitan and Sipadan.
136. The Court finally observes that it can only consider those acts as constituting a relevant display of authority which leave no doubt as to their specific reference to the islands in dispute as such. Regulations or administrative acts of a general nature can therefore be taken as effectivités with regard to Ligitan and Sipadan only if it is clear from their terms or their effects that they pertained to these two islands.
137. Turning now to the effectivités relied on by Indonesia, the Court will begin by pointing out that none of them is of a legislative or regulatory character. Moreover, the Court cannot ignore the fact that Indonesian Act No. 4 of 8 February 1960, which draws Indonesia’s archipelagic baselines, and its accompanying map do not mention or indicate Ligitan and Sipadan as relevant base points or turning points.
138. Indonesia cites in the first place a continuous presence of the Dutch and Indonesian navies in the waters around Ligitan and Sipadan. It relies in particular on the voyage of the Dutch destroyer Lynx in November 1921. This voyage was part of a joint action of the British and Dutch navies to combat piracy in the waters east of Borneo. According to the report by the commander of the Lynx, an armed sloop was despatched to Sipadan to gather information about pirate activities and a seaplane flew a reconnaissance flight through the island’s airspace and subsequently flew over Ligitan. Indonesia concludes from this operation that the Netherlands considered the airspace, and thus also the islands, as Dutch territory.
139. In the opinion of the Court, it cannot be deduced either from the report of the commanding officer of the Lynx or from any other document presented by Indonesia in connection with Dutch or Indonesian naval surveillance and patrol activities that the naval authorities concerned considered Ligitan and Sipadan and the surrounding waters to be under the sovereignty of the Netherlands or Indonesia.
140. Finally, Indonesia states that the waters around Ligitan and Sipadan have traditionally been used by Indonesian fishermen. The Court observes, however, that activities by private persons cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority.
141. The Court concludes that the activities relied upon by Indonesia do not constitute acts à titre de souverain reflecting the intention and will to act in that capacity.
142. With regard to the effectivités relied upon by Malaysia, the Court first observes that pursuant to the 1930 Convention, the United States relinquished any claim it might have had to Ligitan and Sipadan and that no other State asserted its sovereignty over those islands at that time or objected to their continued administration by the State of North Borneo. The Court further observes that those activities which took place before the conclusion of that Convention cannot be seen as acts “à titre de souverain”, as Great Britain did not at that time claim sovereignty on behalf of the State of North Borneo over the islands beyond the 3-marine-league limit. Since it, however, took the position that the BNBC was entitled to administer the islands, a position which after 1907 was formally recognized by the United States, these administrative activities cannot be ignored either.
143. As evidence of such effective administration over the islands, Malaysia cites 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 refers in particular to the Turtle Preservation Ordinance of 1917, the purpose of which was to limit the capture of turtles and the collection of turtle eggs “within the State [of North Borneo] or the territorial waters thereof”. The Court notes that the Ordinance provided in this respect for a licensing system and for the creation of native reserves for the collection of turtle eggs and listed Sipadan among the islands included in one of those reserves.
Malaysia adduces several documents showing that the 1917 Turtle Preservation Ordinance was applied until the 1950s at least. In this regard, it cites, for example, the licence issued on 28 April 1954 by the District Officer of Tawau permitting the capture of turtles pursuant to Section 2 of the Ordinance. The Court observes that this licence covered an area including “the islands of Sipadan, Ligitan, Kapalat, Mabul, Dinawan and Si-Amil”.
Further, Malaysia mentions certain cases both before and after 1930 in which it has been shown that administrative authorities settled disputes about the collection of turtle eggs on Sipadan.
144. Malaysia also refers to the fact that in 1933 Sipadan, under Section 28 of the Land Ordinance, 1930, was declared to be “a reserve for the purpose of bird sanctuaries”.
145. The Court is of the opinion that both the measures taken to regulate and control the collecting of turtle eggs and the establishment of a bird reserve must be seen as regulatory and administrative assertions of authority over territory which is specified by name.
146. Malaysia 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. It contends that the construction and maintenance of such lighthouses is “part of a pattern of exercise of State authority appropriate in kind and degree to the character of the places involved”.
147. The Court observes that the construction and operation of lighthouses and navigational aids are not normally considered manifestations of State authority (Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953, p. 71). The Court, however, recalls that in its Judgment in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) it stated as follows:
“Certain types of activities invoked by Bahrain such as the drilling of artesian wells would, taken by themselves, be considered controversial as acts performed à titre de souverain. The construction of navigational aids, on the other hand, can be legally relevant in the case of very small islands. In the present case, taking into account the size of Qit’at Jaradah, the activities carried out by Bahrain on that island must be considered sufficient to support Bahrain’s claim that it has sovereignty over it.” (Judgment, Merits, I.C.J. Reports 2001, para. 197.)
The Court is of the view that the same considerations apply in the present case.
148. The Court notes that the activities relied upon by Malaysia, both in its own name and as successor State of Great Britain, are modest in number but that 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 moreover cannot disregard the fact that at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest. In this regard, the Court notes that in 1962 and 1963 the Indonesian authorities did not even remind the authorities of the colony of North Borneo, or Malaysia after its independence, that the construction of the lighthouses at those times had taken place on territory which they considered Indonesian; even if they regarded these lighthouses as merely destined for safe navigation in an area which was of particular importance for navigation in the waters off North Borneo, such behaviour is unusual.
149. Given the circumstances of the case, and in particular in view of the evidence furnished by the Parties, the Court concludes that Malaysia has title to Ligitan and Sipadan on the basis of the effectivités referred to above.
[pp. D.O. Franck] 17. ... I do not agree, but neither do I really disagree, with the Court in its weighing up of the effectivités adduced by Indonesia and Malaysia to support their respective claims of title. To weigh, on the one hand, occasional administration of turtle egg harvesting and of a bird sanctuary - neither of these, apparently, in situ - together with the establishment of a few navigational lights (by Britain/Malaysia) against, on the other hand, naval and air patrolling and piracy-control (by Indonesia) appears to me like trying to weigh precisely a handful of feathers against a handful of grass: it can be done, but not very convincingly. The Court has not set out a coherent table of weights and measures for assessing and comparing the effectivités here pleaded, nor could it be expected to do so, given their ephemeral nature. Nevertheless, it is not convincing to give preference to a very few activities by one party while discounting those of the other party without some effort to develop neutral principles by which the relative weight of their respective effectivités can be compared.
18. The problem of their comparative weight is augmented by the brevity of the period from which evidence of effectivités may properly be pleaded. There is no evidence before this Court that, prior to 1930, Britain believed itself to have title to either Ligitan or Sipadan. Whatever slender acts of administration might have been undertaken prior to that date by the British North Borneo Company were not claimed to have been made à titre de souverain. As Judge Huber said in the Island of Palmas case, the demonstration of effectivités must consist “in the actual display of State activities, such as belongs only to the territorial sovereign” (Island of Palmas (Netherlands/United States of America), Reports of International Arbitral Awards (RIAA), Vol. II, p. 839). To qualify, they must be activities undertaken not as a good neighbour or a gratuitous intermeddler, but as an exercise of sovereign responsibility for the territory in question. The harvesting activities of fishermen were found not to constitute occupation à titre de souverain by this Court in the Kasikili/Sedudu Island (Botswana/Namibia) case (Judgment, I.C.J. Reports 1999 (II), p. 1095, para. 75) and the same principle is applicable to turtle egg collectors. Similarly, the construction by Malaysia of lighthouses on Ligitan and Sipadan may or may not be evidence of occupation à titre de souverain when seen by itself, without reference to the 1891 Convention.
Even so, the Arbitral Award of 9 October 1998 between Eritrea and Yemen stated:
“The operation or maintenance of lighthouses and navigational aids is normally connected to the preservation of safe navigation, and not normally taken as a test of sovereignty.” (Award of the Arbitral Tribunal in the First Stage of the Proceedings (Territorial Sovereignty and Scope of the Dispute), 9 October 1998, p. 91, para. 328; see also to same effect Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953, pp. 70-71.)
19. This is especially so when, as in this case, the territory is the subject of a competing claim of sovereignty based on conventional title, against which mere effectivités have been held to be of little evidentiary value (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 472, para. 181; ibid., p. 516, para. 266).
As this Court has pointed out, “where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 587, para. 63). Moreover “acts ... largely of a routine and administrative character performed by local officials ...” were held insufficient in the Sovereignty over Certain Frontier Land (Belgium/Netherlands) case “to displace Belgian sovereignty established by ... Convention” (Judgment, I.C.J. Reports 1959, p. 229). Effectivités are rubber spears when wielded against the shield of conventional title. In the present case, it is title under the 1891 Convention that Indonesia claims. Thus the minor effectivités presented by Britain and Malaysia depend for whatever persuasive power they may have on a determination that the 1891 Convention failed to resolve the question of title to Ligitan and Sipadan: a proposition I reject.
