The International Court of Justice and the Territorial Dispute between Indonesia and Malaysia in the Sulawesi Sea

Abstract

In the early 1990s, a long-running and bitter dispute over the ownership of two small islands in the Sulawesi Sea, and to the waters and seabed near those islands, was placing ever greater strain on the relationship between Indonesia and Malaysia. In October 1996, just when it appeared that there was no way of resolving the dispute, the governments of Malaysia and Indonesia suddenly agreed to refer the question of ownership of the islands to the International Court of Justice (ICJ). By this time the ICJ had ruled on many disputed sovereignty cases since its establishment under the United Nations (UN) Charter in 1945. The remarkable aspect of this case was that the ICJ was very much a new actor as far as maritime security governance in Southeast Asia was concerned. (1) In fact, the only time Southeast Asian countries had submitted a dispute of any kind to the ICJ was in 1959, when Thailand and Cambodia referred their competing claims to ownership of the Temple of Preah Vihear. As a general rule, states are reluctant to hand over the settlement of disputes to an outside body, especially when--as is the case when states refer disputes to the ICJ--they must agree to be bound by the ruling of that body no matter what the outcome. Southeast Asian states, however, have been particularly protective of their sovereignty, especially when resolving territorial disputes. All Southeast Asian states experienced colonial rule or interference, all had their borders shaped to some extent--entirely in the case of Malaysia and Indonesia--by the colonizing powers, and two among them--Indonesia and Vietnam--underwent wars of independence. The ICJ's decision in the Preah Vihear case had done little to diminish the reluctance of states in this region to refer their disputes to an outside body: when the court ruled in favour of Cambodia in 1962, the Thai government's first reaction was to declare that the temple would be defended to the last drop of blood. (2) What, then, made the Indonesian and Malaysian governments refer the question of ownership of the two islands to the ICJ? Did the ICJ's ruling resolve the dispute between the two countries? Have the two governments become, as a result of their experience in this case, more willing to have their disputes settled by the ICJ or by any other outside body? Before trying to answer these questions we must examine how the dispute arose in the first place. The Origins of the Dispute Sipadan and Ligitan, the two islands at the centre of the dispute, are mere specks in the Sulawesi Sea. Sitting atop a steep extinct volcanic seamount and occupying 12 hectares, (3) Sipadan lies about 14 miles south of mainland Sabah and 42 miles east of the island of Sebatik, which is divided between Malaysia and Indonesia by the 4[degrees] 10' North parallel as agreed by the United Kingdom and the Netherlands in a treaty signed in 1891. Ligitan, which is even smaller, lies 12 miles to the east of Sipadan and is part of an extensive system of coral reefs. At the time the dispute arose neither island was inhabited. Sipadan was regularly visited by collectors of turtle eggs but otherwise neither island was valued its natural However, islands can have an importance that transcends their intrinsic value. Despite their size they can be seen as worth fighting when they are regarded as an indivisible part of a state's territory. When, as is often the case, they are located on the fringes of a state's land possessions, they can also serve as the starting point delimiting the state's maritime boundaries. It was because this second feature applied to both islands that the dispute between Indonesia and Malaysia first arose. In 1969 the Malaysian and Indonesian governments began negotiations on the continental shelf boundary between their two countries. There was a great deal to negotiate, both because the two countries shared extensive continental shelves in the Straits of Malacca, South China and the Sulawesi Sea, and because the 1958 UN Convention on the Continental Shelf, which both countries had signed and ratified, gave coastal states sovereign rights over their continental shelves for the purpose of exploring it and exploiting its natural resources. …