1 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.) (Int’l Ct. Justice Dec. 17, 2002) [hereinafter Judgment]. The decisions, pleadings, and basic documents of the International Court of justice are available online at <http://www.icj-cij.org>. On March 13, 2001, the Philippines filed an application for permission to intervene. The Philippine application concerned historical claims that it maintains in North Borneo. By a judgment of October 23, 2001, the Court denied the application.

2 Judgment, supra note 1, para. 1.

3 Convention Between Great Britain and the Netherlands Defining the Boundaries in Borneo, June 20, 1891, Gr. Brit-Neth. [hereinafter 1891 Convention]; Judgment, supra note 1, para. 23.

4 Sebatik is a substantial island that shields the Borneo mainland from the Celebes Sea in the vicinity of the eastern land-boundary terminus. The distance between Sebatik Island and the mainland of Borneo is between one and two kilometers. Sebatik has an area of more than 450 square kilometers and a population of about 15,000.

5 Pulau Sipadan has an area of about 0.13 square kilometers. The island has never been inhabited, but it is a turtle nesting area visited by local people to collect turtle eggs.

6 Pulau Ligitan is slightly smaller in area than Palau Sipadan. It is located on the southern side of a reef system that includes Malaysia’s inhabited Danawan and Si Amil Islands. Ligitan has never been inhabited, but it is used routinely by local people to dry fish.

7 Judgment, supra note 1, para. 31. The Court stated, “The present dispute crystallized in 1969 in the context of discussions concerning the delimitation of the respective continental shelves of the two States.”

8 Put briefly, the Sultan of Banjermasin controlled much of southern Borneo, and the Sultan of Brunei controlled much of the north. The Sultan of Banjermasin was the overlord of the Sultan of Bulangan. The Sultan of Sulu, located in the Philippines, had certain claims to North Borneo that overlapped with those of the Sultan of Brunei. In the geographical area of importance to the case, the question of sovereignty over Pulau Ligitan and Pulau Sipadan related to where the interests of the Sultan of Bulangan met the interests of the Sultan of Sulu. The Dutch developed their relationship primarily with the Sultans of Banjermasin and Bulangan, and the British aligned themselves with the Sultan of Brunei. In order to secure uncontested authority in the north, the British entered into agreements with both the Sultan of Brunei and the Sultan of Sulu.

9 Effectivités, as used by the Court, refers to state conduct that evidences its authority in, or in relation to, specific disputed territory.

10 See Judgment, supra note 1, para. 36.

11 See id., para. 37, where the Court cites a number of recent decisions to the effect that Articles 31 and 32 of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, reflect customary international law, requiring a treaty to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.

12 Judgment, supra note 1, para. 52.

13 Id., para. 41.

14 Id.

15 Id., para. 42. This reference may be taken as approval for Malaysia’s argument that where lines of attribution exist in treaties allocating territory, such lines and their purpose are more clearly defined than was done in the 1891 Convention.

16 Judgment, supra note 1, paras. 44–48.

17 Id., para. 47.

18 Id., para. 48.

19 Id., para. 46.

20 Id., para. 49.

21 Id., para. 51.

22 Id., para. 53.

23 Id., paras. 53–58.

24 Id., paras. 59–91.

25 Id., para. 97. Indonesia also made a successor-to-title argument asserting a chain of title from the Sultan of Bulungan to the Netherlands to Indonesia. This argument failed to convince the Court because there was no evidence that the Sultan of Bulungan ever exercised or claimed sovereignty over the disputed islands.

26 Judgment, supra note 1, para. 108.

27 Id., paras. 109–10. It may be noted that in its application to intervene, supra note 1, the Philippines made clear that it did not maintain a historical claim to the disputed islands. The Court did not indicate whether it was influenced by this consideration.

28 Judgment, supra note 1, para. 114.

29 Id., para. 117. At the end of the Spanish-American War, Spain ceded the Philippine Archipelago to the United States through the Treaty of Peace, Dec. 10, 1898, 30 Stat. 1754 (entered into force Apr. 11, 1899). Article III of the Treaty defined the archipelago as lying within certain lines. In the subsequent Treaty for the Cession to the United States of Any and All Islands of the Philippine Archipelago Lying Outside of the Lines Described in Article III of the Treaty of Peace of December 10, 1898, (signed) Nov. 7, 1900, 31 Stat. 1942 (entered into force Mar. 23, 1901), Spain ceded to the United States “all islands belonging to the Philippine Archipelago, lying outside the lines described in Article III” of the 1898 Treaty of Peace. See Judgment, supra note 1, para. 24

30 Judgment, supra note 1, paras. 118–20. In 1903, the USS Quiros visited the area of the disputed islands and placed a notice of U.S. sovereignty on various islands, including Sipadan. These actions were noted by the British North Borneo Company, which complained to London since it believed that it was administering the islands in question. These incidents, which were the first that raised the issue of ownership over Sipadan and Ligitan, ultimately led to the 1907 and 1930 agreements between the United States and Great Britain. See Agreement Concerning the Administration and Lease of Certain Islands off the Coast of Borneo by the British North Borneo Company, effected by exchange of notes, July 3 & 10, 1907, 47 Stat. 2207 (entered into force July 10, 1907); Convention Delimiting the Boundary Between the Philippine Archipelago and the State of North Borneo, Jan. 2, 1930, 47 Stat. 2198, with exchanges of notes of Jan. 2, 1930, and July 6, 1932 (entered into force Dec. 13, 1932).

31 Judgment, supra note 1, para. 124.

32 Id., para. 121.

33 Id., para. 132. Turtle eggs for many years were a valuable harvestable commodity of the disputed islands, and the right to take the eggs was therefore an asset. This right vested in the people of Danawan and other nearby islands, who acknowledged the authority of the company to settle disputes concerning the traditional rights to take the eggs, and to protect their interests from outsiders. Of particular importance was the 1917 Turtle Preservation Ordinance, which created a system of native reserves and mentioned Sipadan by name as one of those reserves.

34 Judgment, supra note 1, paras. 126–27.

35 Id., para. 135.

36 Id., para. 130.

37 Id., para. 132; see supra note 33.

38 Judgment, supra note 1, para. 132.

39 Id.

40 Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ (ser. A/B) No. 53 (Apr. 5).

41 Judgment, supra note 1, para. 134.

42 Id., para. 136.

43 Id., para. 140.

44 Id., paras. 138–39.

45 Id., para. 145.

46 Id., para. 147 (quoting Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahr.), 2001 ICJ Rep. 40, para. 197 (Mar. 16)).

47 Id., para. 148.

48 Id., para. 149. The vote of the Court was sixteen in favor, one against. Id., para. 150.

49 Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829 (Perm. Ct. Arb. 1928).

50 The Island of Palmas case arose because the island lies within the area covered by Article III of the 1898 U.S. Spain Treaty of Peace, supra note 29. When the United States sought to exercise authority over the island, the Netherlands objected. In the arbitration, the United States was required to prove that Spain had tide to convey, but in the face of the continuous and peaceful display of state authority by the Netherlands during the relevant time period, the U.S. argument was unsuccessful.

51 See supra note 46. The case is discussed by Glen Plant at 96 AJIL 198 (2002).

52 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.; Eq. Guinea intervening) (Int’l Ct. Justice Oct. 10, 2002). The case is discussed by Pieter Bekker at 97 AJIL 387 (2003).

53 Judgment, supra note 1, Decl. Oda, J.

54 Judgment, supra note 1, paras. 131, 137.

55 Id., para. 130. In addition to noting that its Act No. 4 of February 18, 1960, was prepared in haste (because of the rapidly approaching Second UN Conference on the Law of the Sea), Indonesia argued that in drawing the baselines, it had sought to diverge as little as possible from the general direction of the coast. Reference to a map of the baselines of the 1960 Indonesian archipelagic claim raises doubts about these rationales. The Indonesian claim appears to have been put together with care, and many other small islands are used throughout as basepoints to define the claim. These small islands include the Isle of Palmas (or Miangas), which required a substantial departure from the general direction of the coast in order to include that island within the archipelagic claim; thus, it is hard to reach any other conclusion than that inclusion of Ligitan and Sipadan would have been consistent with Indonesia’s general approach. See Bureau of Intelligence and Research, U.S. Dep’t of State, Bureau of Intelligence and Research, Straight Baselines: Indonesia (1971) (International Boundary Study, Series A, Limits in the Sea, No. 35). The report is available online at <http://www.law.fsu.edu/library/collection/LimitsinSeas/numerical.php>.

56 Judgment, supra note 1, Diss. Op. Franck, J. ad hoc, para. 17.

57 See supra note 26 and accompanying text.

58 Temple of Preah Vihear (Cambodia v. Thail.), 1962 ICJ Rep. 6 (June 15).