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.