TABLE OF CONTENTS Paragraoh numbers Chapter 1 Introduction 1.1 - 1.10 Chapter 2 The 1891 Boundary Convention Did Not Affect the Disputed Islands The Territorial Title Alleged by Indonesia Background to the Boundary Convention of 20 June 189 1 The Negotiations for the 189 1 Convention The Survey by HMS Egeria, HMS Rattler and HNLMS Banda, 30 May - 19 June 1891 The Interpretation of the 189 1 Boundary Convention The Ratification of the Boundary Convention and the Map The Subsequent 19 15 Agreement General Conclusions Chapter 3 Malaysia's Right to the Islands Based on Actual Administration Combined with a Treaty Title A. Introduction 3.1 - 3.4 B. The East Coast Islands of Borneo, Sulu and Spain 3.5 - 3.16 C. Transactions between Britain (on behalf of North Borneo) and the United States 3.17 - 3.28 D. Conclusion 3.29 Chapter 4 The Practice of the Parties and their Predecessors Confirms Malaysia's Title A. Introduction B. Practice Relating to the Islands before 1963 C. Post-colonial Practice D. General Conclusions Chapter 5 Officia1 and other Maps Support Malaysia's Title to the Islands A. Introduction 5.1 - 5.3 B. Indonesia's Arguments Based on Various Maps 5.4 - 5.30 C. The Relevance of Maps in Determining Disputed Boundaries 5.31 - 5.36 D. Conclusions from the Map Evidence as a Whole 5.37 - 5.39 Submissions List of Annexes Appendix 1 The Regional History of Northeast Bomeo in the Nineteenth Century (with special reference to Bulungan) by Prof. Dr. Vincent J. H. Houben Table of Inserts Insert Descri~tion page 1. North Borneo Coast and Sulu Archipelago circa 1891 Opposite 1 2. Plan Showing the Result of the Determination of Parallel of 4" 10' N on East Coast Borneo and Examination of Rivers in Vicinity, June 1891 3. Routes of HMS Egeria and HNLMS Banda, 1891 and 1892 4. Map accompanying the 1915 Agreement relating to the Boundary between the State of North Bomeo and the Netherlands Possessions in Bomeo (extract) 5. Boundary Lines referred to in the letter of the Commander of Naval Forces, 9 August 1922 6. Sketch map showing Boundary Lines referred to in the letter of Commander Naval Forces, 9 August 1922 7. Map attached to Indonesian Act No. 4 of 1960 (extract) 8. Map of PERMINAIJAPEX Concession 1966 Insert Description page Sheet Noord (North) A-50, "Oost Borneo" (1935) (extract) Opposite 97 Survey Map of the Netherlands East Indies Archipelago (1897 - 1904) 101 Map showing the Administrative Division of the Southern and Eastern Borneo Residence (19 13) (extract) Map 25, Atlas of the Tropical Netherlands ( 1938) (extract) Sheet Noord (North) B-50 North Borneo (194 1) (extract) Map of Kalimantan Utara (1965) (extract) Map of Kalimantan Utara (1968) (extract) Sheet NB 50 "Bandar Seri Begawan" (1976) (extract) Map of Kalimantan Utara (1992) (extract) Chapter 1 INTRODUCTION 1.1. This is the Counter-Memorial of Malaysia in the present proceedings, filed pursuant to the Order of the President made on 1 1 May 2000. It responds to the Memorial of the Republic of Indonesia of 2 November 1999. The geographical setting 1.2. Before turning to summarise the cases of the two parties as presented in their respective memorials, it is useful to recall the geographical setting of the dispute. Insert 1, opposite, shows that setting, with key place names as they were (or were thought to be) at about the time of the 1891 Anglo-Dutch Boundary Convention, on which the Indonesian case bangs.' The case concerns two small islands off the Coast of North Borneo, part of a group of small islands and reefs surrounding the Semporna Peninsula. 1.3. It is useful to review the European understanding of the geography of the two islands at the time of the 1891 Boundary Convention. Useful for this purpose are the contemporary sailing directories or pilots, to which mariners and other Europeans concerned with the region would have referred. Annex 1 to this Counter-Memorial extracts the relevant pages from the directory entitled Eastern Archipelago, Part I (Eastern Part), published in London for the Hydrographic Office of the Admiralty in 1890.~ Under the general rubric of "Darvel Bay", it deals with a series of locations (settlements, islands, reefs, etc.) running from north to south. The entry for the Ligitan islands reads as follows: I For the 189 1 Boundary Convention see Annex MM 17, vol. 2, p. 70. 2 J.P. Maclear (comp.), Eastern Archipelago, Part 1 (Eastern Part) (London, Hydrographic Office, Adrniralty, 1890) pp. 182-191; Annex MCM 1, vol. 2, pp. 1- 11. "Ligitan is1ands.-Of this group, lying off the north coast of Sibuko bay there is very little information, but they appear to be surrounded by dangers. Si Amil, the north-easternmost, appears by the chart to be wedge-shaped, and 800 feet high; Danawan, to the westward of it, appears to be low. A small islet with a few shrubs on it lies in latitude 4" 12Y2' N., longitude 118" 54' E. From it, Si Ami1 island bears N. 5" W. Reefs extend 4 or 5 miles from this islet in an easterly direction, and it appears to be connected by a reef to Si Amil; this reef is dangerous, as there are no symptoms except breakers about one mile eastward of the islet. Sipadan, the southemmost of the group, is 120 feet high. Coming from the eastward Sipadan should be kept to the northward of West, as the extent of the reefs to the eastward of it has not been determined; they do not appear to the southward of the i~land."~ The directory then goes on to deal with Sibuko or St. Lucia Bay. It refers inter alia to Batu Tinagat point, and notes "the entrance of the little river Tawao, on the left bank of which the Dutch have a small ~ettlement",~as well as to Sebatik island and the Sibuko river. 1.4. The passage is of considerable interest. It names three of the four Ligitan islands (Si Amil, Danawan and Sipadan), but does not name Ligitan itself, which from the description given and its bearing to Si Ami1 one can nonetheless identify as the "small islet". It treats al1 four islands as part of the Ligitan group, and treats them in conjunction with other islands and features associated with Darvel ~a~.'It notes that Si Ami1 and the small islet (Ligitan) are physically connected by a reef, but in other respects shows considerable uncertainty about the geography and the navigational hazards: for example it is unclear to the compiler whether there are reefs to the 3 Ibid., pp. 187-8. 4 Ibid., p. 190. 5 Commander Field of the Egeria drew heavily on these sailing directions in his hand-written notes which are at Annex IM 90, vol. 3, p. 239. Again Sipadan is treated as part of the Ligitan Group and Ligitan itself is not named: its position is only given approximately. eastwards of Sipadan (in fact there are not, since Sipadan is an oceanic pillar). Of particular note for present purposes is that it locates Ligitan in the wrong longitude, though in approximately the correct latitude. The position is as follows: Coordinates of Ligitan 1890 Directorv Actual Lat: 4" 12Y2' N. lat: 4" 09' 48" N Long: 118" 54' E. long: 118" 53' 04" E. The coordinates of Sipadan are not given. The directory also notes (as if by way of exception) the existence of a small Dutch settlement on the left bank of the Tawao River at its entrance, and the availability of information about Sebatik from Dutch charts. Otherwise al1 references are to British vessels, settlements and surveys. The basis of the Indonesian case 1.5. As developed in its Memorial, the Indonesian case does not differ from that disclosed in earlier negotiations, going back to 1969 when the Indonesian claim to the islands was first made. In its essentials, Indonesia argues that: (a) The islands were part of the dominions of the sultanate of Bulungan under Dutch protection and sovereignty; (b) There was a dispute concerning the islands between the Netherlands and Britain (on behalf of North Borneo) before 1891; (c) The dispute was resolved in favour of the Netherlands by the 1891 Boundary Convention, because the Convention can be seen (with the crucial aid of an internai Dutch map) to have drawn not only a boundary but an allocation line, running eastwards along the parallel of 4" 10' N, placing the islands under Dutch sovereignty; (d) The Netherlands and subsequently Indonesia retained the sovereignty attributed to them in 1891, despite the fact that they never exercised administrative control or jurisdiction over the islands. 1.6. This argument faces severe difficulties. They include the following: (a) There is no evidence whatever that the claims of the Sultan of Bulungan extended to the islands or that he exercised the slightest authority there; al1 the evidence is to the contrary; (b) Al1 descriptions of the boundary dispute before 1891, whether given by Dutch or British officials, make it clear that the dispute concerned exclusively the area to the West and south of Batu Tinagat, and had nothing to do with islands further to the east; (c) The 189 1 Boundary Convention cannot bear the interpretation Indonesia prefers, which is also flatly contradicted by the Anglo-Dutch Agreement of 1915 and the attached, agreed map; (d) The intemal Dutch map, even if it did support that view (and it is equivocal), is inadmissible as evidence of the intention of the parties, and even if it was admissible, it could not prevail over the express terms of the Convention; (e) The Netherlands cannot have gained in 1891 sovereignty over islands which then belonged to a third State (Spain) and which were subsequently ceded to Great Britain without any protest whatever by the Netherlands, or any action to sustain the claim now made.