687

DECLARATION OF JUDGE ODA

I voted in favour of the Judgment, in which the Court finds that “sov-
ereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia”
(para. 150). The present case is a rather “weak” one in that neither Party
has made a strong showing in support of its claim to title to the islands
on any basis. While Malaysia has made a more persuasive case on the
basis of “effectivités”, its arguments are still not very strong in absolute
terms. The Court, however, has been requested to choose between the
two Parties in adjudging “whether sovereignty over [the two islands]
belongs to . . . Indonesia or to Malaysia” (Special Agreement of
31 May 1997, Art. 2) and, given that choice, the Court has come to a
reasonable decision.

* *

In my view, a full understanding of the present case requires an aware-
ness of the underlying facts and circumstances. The existence of the
islands of Ligitan and Sipadan has been known since the nineteenth cen-
tury. However, neither Great Britain nor the Netherlands manifested an
interest in sovereignty over or territorial title to the islands in the period
before the Second World War and neither Indonesia nor Malaysia took
any steps in the post-war period to claim sovereignty over the islands
until the late 1960s. Prior to that time, there was no dispute between the
two States concerning sovereignty over the islands. If there was any dis-
pute in the late 1960s concerning sovereignty over the islands, it could
well have derived from conflicting interests in the exploitation of under-
sea oil resources. In fact, any dispute which may have arisen in this
period concerned only the delimitation of the continental shelf between
the two States, which had become of interest because of the abundance of
submarine oil reserves, but not sovereignty over the islands.

*

In the mid-1960s, ten years after the adoption of the Geneva Conven-
tion on the Continental Shelf in 1958, agreements between neighbouring
States to delimit the continental shelf were entered into in all parts of the
world where prospecting had pointed to the existence of rich oil reserves:
the North Sea, the Gulf of Finland and the Baltic, the Adriatic Sea, the

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688 PULAU LIGITAN AND PULAU SIPADAN (DECL. ODA)

(Persian) Gulf, the Gulf of Paria, etc. (For a comprehensive survey, see
Oda, The International Law of Ocean Development, Vol. 1, 1972, pp. 373-
435; Vol. II, 1975, pp. 63-110.) There was one instance in the 1960s in
which a dispute concerning the delimitation of the continental shelf was
submitted jointly to this Court after negotiation had proved fruitless: the
North Sea Continental Shelf cases (1 C.J. Reports 1969, p. 3).

In those days Indonesia, which was blessed with an abundance of oil
both on land and offshore, initiated negotiations with its neighbours for
an agreed delimitation of the continental shelf. Indonesia concluded
agreements with Australia in 1971 and 1972 to divide the continental
shelf between them in the area of Timor and the Arafura Sea.

Indonesia’s negotiations with Malaysia had started earlier. They
resulted in the 1969 Agreement relating to the delimitation of the conti-
nental shelf in the Malacca Straits and the South China Sea (off the east
coast of West Malaysia and the coast of Sarawak) and the 1971 Tripar-
tite Agreement (with Thailand) covering the northern part of the Malacca
Straits but, concerning the area to the east of Borneo, they became dead-
locked in September 1969. The Parties then agreed to suspend negotia-
tions on this question. The Parties have chosen to consider the date of the
breakdown of their negotiations over the delimitation of the continental
shelf to be the “critical date” in respect of their dispute concerning
sovereignty.

*

Prior to these negotiations, Indonesia and Malaysia had granted Japa-
nese oil companies (Japex and Sabah Teiseki, respectively) concessions
for oil exploration and exploitation in this area. The concession areas did
not overlap, as the southern limit of the Malaysian concession lay along
4° 10’ 30” latitude north and the northern limit of the Indonesian conces-
sion along 4°09’ 30” latitude north. Furthermore, Ligitan and Sipadan
did not lie in either concession area. Neither Indonesia nor Malaysia
claimed that its concession area had been violated by the other Party (see
Judgment, para. 31).

Even though the Special Agreement states that “a dispute has arisen
between [Indonesia and Malaysia] regarding sovereignty over Pulau Ligi-
tan and Pulau Sipadan” (Special Agreement of 31 May 1997, preface), in
fact the only dispute which existed in or around 1969 was one concerning
the delimitation of the continental shelf. That delimitation dispute would
have been referred more properly to the Court by joint agreement, as in
the North Sea Continental Shelf cases.

It should also be noted that the Application by the Philippines in 2001

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689 PULAU LIGITAN AND PULAU SIPADAN (DECL. ODA)

for permission to intervene in the present case did not concern either
Party’s title to the two islands but the delimitation of the continental
shelf between the Parties. In other words, the Philippines showed its
concern as to the effect which the delimitation of the continental shelf
between Indonesia and Malaysia would have on its own interests.

* x

In the 1960s, the prevailing rule concerning the delimitation of the
continental shelf was the one set out in the 1958 Convention on the Con-
tinental Shelf:

“the boundary of the continental shelf . . . shall be determined by
agreement . . . In the absence of agreement, and unless another
boundary line is justified by special circumstances, the boundary is
the median line [in the case of opposite States]” (Art. 6, para. 1).

This provision is extremely ambiguous because it neither makes clear the
baselines (i.e., whether or not offshore or mid-ocean islands should be
included) from which the median line should be measured nor does it
explain the “special circumstances” which justify departing from a median
line in connection with certain islands: namely, whether and to what
extent the very existence of islands, their size, their social or economic
characteristics, their distance from the mainland, etc., could be con-
sidered “special circumstances”.

I suspect that the main concern of both Parties in their negotiations on
the delimitation of their respective continental shelves related to the defi-
nition of the baselines and the role in terms of the “special circum-
stances” test to be played by the scattered islands just south of the north-
eastern coast of Borneo. The Parties might then have realized the potential
significance of the islands of Ligitan and Sipadan — over which neither
Party had claimed sovereignty. In fact, they might have concluded that
sovereignty over these islands would entitle them to a much wider con-
tinental shelf. Particularly in Indonesia’s case, sovereignty over these
islands, situated at some distance from its own coast might have gained
for it a much wider share of the continental shelf.

In my view, it is significant that each State (and particularly Indo-
nesia), which prior to the 1960s had shown no interest in sovereignty over
these two islands, suddenly realized that sovereignty would strengthen its
hand in respect of the continental shelf negotiations. The issue of
sovereignty arose only as a result of the Parties’ manceuvring for better
bargaining positions in the continental shelf delimitation.

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690 PULAU LIGITAN AND PULAU SIPADAN (DECL. ODA)

This resulted from a misconception on the part of the Parties, who
failed to understand that, in accordance with the “special circumstances”
rule, a delimitation line could well have been drawn disregarding these
two extremely small, socially and economically insignificant islands.

*

It is important to keep in mind that sovereignty over two tiny, un-
inhabited islands, on the one hand, and those islands’ influence on the
delimitation of the continental shelf, on the other, are two quite different
matters.

Though Malaysia has now been awarded sovereignty over the islands,
the impact of the Court’s Judgment on the delimitation of the continental
shelf — which has been the leading issue in the negotiations between the
two States since the 1960s — should be considered from a different angle.
Today, the rule concerning the delimitation of the continental shelf is set
out in Article 83 of the 1982 United Nations Convention on the Law of
the Sea calling for “an equitable solution”. The main question remains
how “equitable” considerations apply to these tiny islands for the pur-
pose of the delimitation of the continental shelf.

In conclusion, I submit that the present Judgment determining sover-
eignty over the islands does not necessarily have a direct bearing on the
delimitation of the continental shelf, which has been a subject of dispute
between the two States since the late 1960s.

(Signed) Shigeru ODA.

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