Battle for The Rocks’
Jakarta turns to the Anglo-Dutch treaty of 1891 as proof of its ownership of the disputed islands of Sipadan and Ligitan.
Despite having some 17,000 islands, Indonesia is adamant that it wants the possession of two small rocky outcrops off the east coast of Borneo.
Sipadan and Ligitan have no intrinsic commercial value to Indonesians, but strong nationalist underpinnings – compounded by the humiliating loss of East Timor in recent years – make it imperative for them to cling on to territory they argue has been historically part of the sprawling archipelago.
‘Every inch of our country is very important because it is part of our sovereignty,’ said Mr Abdul Irsan, Indonesia’s chief representative to the International Court of Justice (ICJ) at The Hague.
‘Why should we give up two islands even if we have 17,000? No country will give up its territorial integrity so easily.’
Mr Irsan, who is also Indonesia’s ambassador to the Netherlands, told The Straits Times that compared to Kuala Lumpur, Jakarta had stronger historical claims.
At the ICJ hearing, the Indonesian government, which is represented by a Queen’s Counsel, Sir Arthur Watts, and four other lawyers, turned to the Anglo-Dutch Convention of 1891 as proof of ownership.
Both Indonesia and Malaysia, they argued, were legally bound to this after inheriting their territories from the Netherlands and Britain.
The treaty clearly demarcated the territories of the Dutch and British by drawing a boundary line extending eastwards from Borneo at the 4 degree 10′ North latitude line.
Both Sipadan and Ligitan lay south of that line under their former Dutch colonial masters – something that was reflected in all maps issued until 1979 when Malaysia began to declare them as part of their territory.
It is instructive to note that prior to 1891, the two islands were under the Malay Sultanate. But Indonesia contends that they were already in its possession centuries before.
Mr Amris Fuad, one of two senior Indonesian legislators at the hearing, said that Malaysia could not fight Jakarta on historical grounds.
‘I think the Malaysians will be hard-pressed to prove that these islands belong to them,’ he told The Straits Times. ‘All the facts are there in the history books.’
But he acknowledged that Kuala Lumpur might have an advantage in that it had a de facto presence in Sipadan and Ligitan for over 30 years.
‘The Malaysians went in quietly without our knowledge,’ he said, pointing out that by developing tourist facilities, KL had breached an oral understanding to maintain the ‘status quo’ of the islands and to discuss ownership at a later stage.
Malaysia’s attempts to turn at least one of the islands into a popular diving resort might have forced Jakarta to dig deep into the history books for ownership to fight an increasingly difficult battle.
Indeed, the possibility of defeat might have explained why Indonesia was so reluctant initially to fight this case at the World Court.
When it was first proposed by KL, the Indonesians argued that the court was largely a Western creation, and was costly and time-consuming. Further, its judgments often gave the victor everything, leaving the other party with a huge loss of face.
The alternative proposed by Jakarta then was to invoke Asean’s 1976 Treaty of Amity and Cooperation, which provides for a High Council comprising representatives of ministerial rank from each contracting government.
The Indonesians still thought there were other possibilities, quicker and cheaper, such as a three-party arbitration commission: Each side nominates one country and those two agree on a third.
But, sensitive to its overwhelming size and suggestions of bullying, Jakarta went along with the ICJ plan.
Mr Amris said that there would be ‘some reaction’ from the Indonesian media and Parliament if Jakarta lost the case. But he made clear that the government would stand by whatever ruling made by the ICJ and relations with Malaysia would continue unimpeded.