7 - The Bases of Malaysia's Claim

Summary

Introduction

The gist of Malaysia's case was that Pulau Sipadan and Pulau Ligitan had been under the possession and administration of its predecessors in title, the British North Borneo Company (BNBC) and Great Britain and itself, in an uninterrupted manner for a long time, since 1878 in fact. In addition, Malaysia claimed that it had acquired sovereignty over the two islands as a result of a series of treaties and engagements made since 1878 with various States and Parties who had jurisdiction in the area. The Netherlands did not challenge or contest these transactions which were open and public at the material time. In fact, the Indonesian claim to the islands which arose in 1969, was never advanced by the Netherlands.

Malaysia then went on to stress the point that even if the issue of transactions with other powers in the region was removed from its arguments, the long and uninterrupted possession and administration of the two islands in question would be sufficient enough to prove its sovereignty over them. The Memorial of Malaysia, vol. 1 elaborated this point as follows:

But in any event, even if—hypothetically—those transactions had never occurred, the fact of long and peaceful possession and administration dating as long ago as 1878 and unchallenged by any opposing conduct of Indonesia or its predecessor in title, the Netherlands, must be decisive. That fact, even if it stood alone, would be quite sufficient basis for upholding Malaysia's sovereignty over the islands as against Indonesia.

Indonesia's claim, on the other hand, Malaysia contended, relied almost entirely on the interpretation of Article IV of the Boundary Convention of 1891 and an internal map published in the same year after the conclusion of the said Convention. Malaysia rejected the interpretation advanced by Indonesia pertaining to Article IV of the Boundary Convention of 1891 and the arguments relating to the internal Dutch Map (the Explanatory Memorandum Map of 1891). Under the circumstances, Malaysia submitted that there were only two issues for the International Court of Justice (ICJ) to consider which were as follows:

i. The confirmation of Malaysia's sovereignty over the two islands based upon long and effective possession and administration, and on treaties with other interested States [Spain and the United States]; and

ii. The rejection of Indonesia's claim based upon its interpretation of the Boundary Convention of 1891 and the internal Dutch Map.