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International Court of Justice

Case between and Concerning Sovereignty over Pulau and Pulau Introduction

On 2 1998 Indonesia and Malaysia jointly seised the International Court of Justice (ICJ) of their dispute concerning sovereignty over the of Pulau Ligitan and Pulau Sipadan in the .' They did so by notifying the Court of a Special Agreement between the two states, signed in Lumpur on 31 May 1997 and which entered into force on 14 May 1998 upon the exchange of ratifying instruments. In the Special Agreement, the two parties request the Court "to determine on the basis of the treaties, agreements and other evidence furnished by [the two parties], whether sovereignty over Pulau Ligitan and Pulau Sipadan belongs to the of Indonesia or Malaysia". The parties expressed the wish to settle their dispute "in the spirit of friendly relations existing between [them] as enunciated in the 1976 Treaty of Amity and Co-operation in Southeast " and declared in advance that they will "accept the Judgement of the Court given pursuant to [the] Special Agreement as final and binding upon them." On 10 November 1998 the ICJ made an Order' fixing the time limits for the respective initial pleadings in the case as follows: 2 November 1999 for the filing by each of the parties of a Memorial; and 2 March 2000 for the filing of the counter-memorials. By this order the Court also reserved subsequent procedure on this case for future decision. In fixing the time limits for the initial written pleadings, the Court took account and applied the wishes expressed by the two parties in Article 3, paragraph 2 of their Special Agreement wherein they provided that the written pleadings should consist of:

1 International Court of Justice, Press Communique 98/35, 2 November 1998. Available at ICJ website at 2 www.icj-cij.org/Presscom/Pressl998/ipr9835.htm. International Court of Justice, Ca.se Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Order, General List No. 102, 10 November 1998. Available at www.lcj-cij.org/IDOCKtT/IINMA/iinmaorders/linmaorer981 I IO.htm.

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"(a) a Memorial presented simultaneously by each of the parties not later than 12 months after the notification of this Special Agreement to the Registry of the Court; (b) a Counter-Memorial presented by each of the parties not later than 4 months after the date on which each has received the certified copy of the Memorial of the other party; (c) a Reply presented by each of the parties not later than 4 months after the date on which each has received a certified copy of the Memorial of the other party; and (d) a Rejoinder, if the parties so agree or if the Court decides ex qffi;io or at the request of one of the parties that this part of the proceedings is necessary and the Court authorises or prescribes the presentation of the Rejoinder." Background and Chronology to the Dispute3 The two islands of Pulau Ligitan and Pulau Sipadan are located in the Celebes Sea (see Figure 1), off the northeastern coast of the of (see Figure 2), the territory of which is in itself divided between the Indonesian province of , the Malaysian states of and , and the Sultanate. The islands lie directly off the southeastern coast of the Malaysian state of Sabah, close to the point where it shares a land boundary with the northern part of the Indonesian province of Kalimantan (see Figure 3). Pulau Sipadan has an oval-shaped surface of which approximately 0.0311 square kilometres (16 hectares) is permanently above sea level. It lies 6.5 nautical miles to the south of Pulau Mabul (Malaysia) and 6 nautical miles south-west of Pulau island (also Malaysia). While the distance from the Malaysian at Tanjong Tutop is 14 nautical miles, the nearest Indonesian territory, which is the southeastern part of the island of Pulau Sebatik, is 40 nautical miles away. In contrast to most of the surrounding reefs and reef systems (including the Ligitan Group which contains Pulau Ligitan island), Pulau Sipadan is the only deep oceanic island in the vicinity, separated from the mainland continental shelf by a trench to a depth of 808 fathom. Geologically, it represents the tip of a precipitous volcanic sea-mountain approximately 600-700 metres in height, on whose peak a coral has formed. The inner part of this atoll has filled over the years with broken coral and sand, on which vegetation has grown. The island is now wooded and 50 metres in height, to the tops of the trees. Pulau Sipadan

3 The present writer gratefully acknowledges the benefit of background information and analysis on this dispute derived from two in-depth studies by R. Haller-Trost, namely, "The Territorial Dispute between Indonesia and Malaysia over Pulau Sipadan and Pulau Ligitan in the Celebes Sea: A Study in International Law" Boundary and Territory Brieflng, Vol. 2, No. 2 (Durham, International Boundaries Research Unit, 1995); and "Pulau Sipadan and Pulau Ligitan" in The Contested MarÜilne and Territorial Boundaries of Malaysia: An International Lm1JPerspective (London, Kluwer Law International. 1998), pp. 227-260.