Boundary poser with Malaysian win in Sipadan and Ligitan

Boundary poser with Malaysian win in Sipadan and Ligitan

Carolyn Hong, New Straits Times, Kuala Lumpur

It took nearly two hours for the judgment of the International
Court of Justice (ICJ) to be read out, and it was only in the
last 10 minutes that it became clear that Malaysia had won the
case.

In the first half hour, the verdict did seem clear -- Malaysia
has won -- as the court demolished Indonesia's main argument that
it had a title to the Sipadan and Ligitan islands, via the Anglo-
Dutch Convention 1891.

But as the president of the court Gilbert Guillaume continued
reading the summarized judgment in French, with a simultaneous
English translation over headphones, Malaysia's claim to a
treatybased title was also dismissed.

Anxiety heightened, and strained looks were exchanged, as the
court went on to consider which country had demonstrated clearer
examples of actual possession and administration of the two
islands.

It was only when the court dismissed Indonesia's claim that it
and its predecessor (the Netherlands) had exercised sovereign
authority over the islands, that a few smiles began to appear on
the Malaysian side.

And in the last 10 minutes, the smiles broadened as the court
went on to accept that although these were few in number,
Malaysia had managed to show clear examples of sovereign
authority over the islands by its predecessor Great Britain and
itself.

The court found that the colonial ruler had passed laws
pertaining to the islands, implemented them and adjudicated on
disputes, and Malaysia had continued this pattern when it
maintained the lighthouses built there in 1962 and 1963.

The ICJ then handed down its final and binding verdict by a 16
to 1 majority: Malaysia has sovereignty over Sipadan and Ligitan.

The Malaysian side of the hall broke out in muffled claps and
cheers, restrained only by the presence of the 16 judges (one was
absent) seated in a long solemn row before them.

Their jubilance was only to be expected. It has been 10 years
since bilateral negotiations to resolve the dispute began in 1991
and ended in failure in 1994. And it has been six years since
both countries' leaders had agreed to refer the case to the ICJ.

An immense amount of work, and money, went into defending
Malaysia's sovereignty over these islands in Sabah which have an
economic and political significance beyond their tiny sizes.

Malaysia had assembled a large team of lawyers, historians and
diplomats, drawn from the Federal and Sabah State governments,
and universities, and engaged four top international lawyers.

The four lawyers literally got their feet wet in preparing the
case; they jumped into the deep waters off Sipadan and snorkeled
to get a first-hand look at its underwater wonders.

But this verdict is only the starting point. The real work in
delimiting the continental shelf, held in abeyance since 1969
pending settlement of sovereignty over the islands, will soon
begin.

Malaysia and Indonesia will now have to negotiate to settle
their continental shelf boundaries and Exclusive Economic Zone,
east of Sabah.

This is the last area to be demarcated, as the boundaries in
the Straits of Malacca and South China Sea have already been
settled.

Under international law, the EEZ can extend up to 200 nautical
miles from a country's outermost territory, while the continental
shelf can stretch up to 320 nautical miles.

These are the maximum limits as the final boundaries will
ultimately depend on bilateral negotiations.

Sipadan and Ligitan will, of course, be important base points
in the calculation of these boundaries although a supplementary
statement attached to the ICJ judgment, written by judge Shigeru
Oda, seems to throw some doubt on this.

Oda, who was among the 16 judges who voted in favor of
Malaysia, wrote that sovereignty over the islands, will not be
entirely important in the delimitation of the continental shelf.
This is because the 1982 United Nations Convention on the Law of
the Sea calls for an "equitable solution".

He highlighted the point that delimitation of the continental
shelf is an exercise subject to many considerations, and does not
turn solely on sovereignty.

Nevertheless, clear and undisputed sovereignty over Sipadan
and Ligitan provides Malaysia with a good starting point to
negotiate for a much wider continental shelf and EEZ, than it
would otherwise have.

The economic significance is obvious. The continental shelf
boundary gives rights over the seabed, meaning oil and gas
reserves, and precious minerals; while the EEZ gives rights over
the sea and its surface, including marine resources and shipping
passage.

Malaysia had unilaterally published a map in 1979, showing its
continental shelf boundary in the vicinity of Sipadan and
Ligitan, and it's a vast 25,000 square kilometers.

That's bigger than Perak which is just over 21,000 sq km.

This was calculated on the principle of equidistance (the
midway point or median line) from the baselines of Malaysian and
Indonesian territories, in accordance with the 1958 Convention on
the Continental Shelf.

All this, of course, remains subject to bilateral negotiations
between Malaysia and Indonesia, and this is expected to take
years to conclude.

What's important is that the negotiations can now resume,
having been suspended for over three decades.

And Malaysia can rest easy that its sovereignty over the
islands has been legally confirmed, and no longer open to
dispute. The ICJ decision is final and binding, and both Malaysia
and Indonesia have pledged to recognize and uphold it.

The judgment wasn't all that Malaysia wanted. It had wanted to
win on both legs of its case -- a treaty-based title, as well as
continuous possession and administration of the islands for more
than a century.

But it lost on the first point. The court dismissed its
argument that it had a clear title derived from a chain of titles
leading back to the Sulu Sultanate. The court found that none of
the series of treaties, starting from the Sultan of Sulu, had
mentioned Sipadan and Ligitan by name; the two islands didn't
become important until much later.

However, the court did recognize that Malaysia's predecessor,
the British North Borneo Company, had authority over the islands
since 1878, and no other State had protested or asserted its
authority.

Malaysia won the case on the strength of continuous
administration of the islands, although there were only a modest
number of activities where it or its predecessor had exercised
sovereign authority.

This is, however, only to be expected for such tiny islands
which had little significance at that time.

Nevertheless, even if the judgment seems to rest on fragile
grounds, it is a strong judgment by any measure. A 16-1 verdict
can leave no room for doubt in the court of public opinion.

The sole dissenting judge is an ad hoc judge nominated by
Indonesia. Malaysia had also nominated its own ad hoc judge.
Minus these two ad hoc judges, the verdict was a unanimous one by
the permanent 15-man panel.

The verdict, which closes a long-standing dispute, is an
important milestone for ASEAN and an example of its spirit of
peaceful resolution of disputes.

The manner in which the judgment is upheld by both countries
and its people, is as important; it'll reflect their
understanding and respect for the rule of law.