Territorial Sovereignty is the most important attribute
for the existence of the state. In the territory, the state rights to implement
sovereignty over people, things or events also legal actions that occur in its
territory. However, the state is prohibited to use its territory for actions
that harm other countries and the actions that endanger national peace and
security (Article 7 Draft UN Declaration on the rights and obligations of 1949).
In relation to the territory, the state is prohibited to recognize the
territories that acquired by force (Article 12 of the Draft UN Declaration on
the rights and obligations of 1949).
In addition to the obligation not to recognize the
territories that acquired by force, it is important for the state to arrange
its territories. Arranging the territory for Indonesia stipulated in Law No. 43
of 2008. Arranging the territory by Act No. 43 of 2008 about the territory of
the state has objectives:
1. Ensuring the integrity of territory, sovereignty, and the
order in the interests of the Border Regions of the entire nation
2.
Uphold the
sovereignty and sovereign rights
3.
The management and
utilization of the State and Territory Border Area, including oversight limits.
Furthermore,
Law No. 43 of 2008 also stipulated that the territory of Indonesia covers land,
territorial waters, seabed. subsoil and the airspace above it, including all
natural sources contained in.
Land of
the state consists of land (dry parts) and waters in the land such as rivers
and lakes. Land of the state can be the beginning land of the state or
additional land of the state. Land surface can occur or be determined by the
action or unilateral declaration of the state when it proclaimed its
independence. By international agreement, an international customs or be
determined by the development after the country was formed. As occurred in
Israel and Poland were initially uncertain land area as independent. Various
international agreements are generally made by the state to regulate border
issues such as land area in Indonesia that have land borders with three
countries: Malaysia, Papua New Guinea, and Timor Leste.
Beside
the beginning land of the state, international law also recognized the
additional land of the state based on theories of international law. That can
be obtained by the state in several ways. One of ways is occupation.
Occupation
is the acquisition or establishment sovereignty over terra nullius areas. Terra
nullius is territory which belonged to not state before the acquisition. It may
have been abandoned by the previous sovereign. The elements that must be
fulfilled by the actions of the occupation is:
a. the discovery of the terra nulius territory or taking no
possession to taking terra nullius territory
b. the intention or the will to find new areas to make it
their own or placed under its sovereignty
c. the occupation should be conducted by state and not by
private person
d. the intention must be manifested in the effective actions
e. be intended as a claim of sovereignty over the territory
Elements
of the discovery can be regarded as an objective element. While the intent
elements are realized with concrete actions is a subjective element. Both
conditions must be fulfilled cumulatively. Fulfillment of the discovery of any
new element is enchoate title or an introductory element to the validity of the
act. The importance of effective elemets in occupation regarded from some
decision of international court such as Sipadan Ligitan islands.
Sipadan
and Ligitan islands are islands which disputed by Indonesia and Malaysia. These
islands are belong to Indonesia, but always claimed by Malaysia. This case was
debated by ministers and the Indonesian people because the islands which is
rich in natural resources and mining claimed by Malaysia.
The
beginning of the case that began in 1968, when Malaysia reacted to the
cooperation agreement between Indonesia and Japex (Japan Exploration Company
Limited) in 1966. Malaysia was also worked with the Sabah Oil Company Teiseki
in 1968. as a response towards the sea exploration activities in the area of
Sipadan, in 1969 Malaysia began to
claim that Sipadan Ligitan islands are belong to Malaysia. this was immediately
rejected by the government of Indonesia. Several agreementsA series were held
by Indonesia and Malaysia. Ways that emphasizes dialogues to avoid military
conflict.
Finally
the issue became muffled in quotes, which means the dialogue about the dispute
tried to do by diplomacy. Indonesia really carried away with that way. Then,
Indonesia surprised when in October of 91, Malaysia suddenly pulled out a map
that included Sipadan and Ligitan to Malaysia territory. In 1997, Indonesia and
Malaysia agreed to submit the dispute to the International Court of Justice,
the Hague in the Netherlands.
Problem
Formulation
1. What are the ways that had been done by Indonesia to
Malaysia in Sipadan Ligitan case settlement?
2. Why was Indonesia lost in the dispute of the Sipadan
Ligitan case?
3. What are the ways to prevent our islands claimed by
the other states in the future?
International
Court Decision
In 1998
Sipadan and Ligitan issue was brought to the International Court of Justice.
Later in the Tuesday, December 17th, 2002 International Court of Justice give a
decision on dispute of sovereignty Sipadan and Ligatan islands between
Indonesia and Malaysia. The result at the voting in the institution is Malaysia
won by 16 judges, while only one judge that choose Indonesia. From seventeen judges,
fifteen are permanent judges of International Court, while one of seventeen
court is chosen by Malaysia and one chosen by Indonesia. The victory of
Malaysia was considered by effectivity (without deciding the question of
territorial waters and maritime boundaries). The British government which
colonilized Malaysia had done the administrative in the form of issuance of
bird wild life protection ordinance, levy a tax on the collection of turtle
eggs from 1930, and the light house operation since the 1960. Meanwhile,
tourism activities undertaken by Malaysia was not consided and rejected based on
chain of title theory.
Discussion
It is
understandable when almost all of the International Court judges agreed that
Sipadan and Ligitan islands fell to the Malaysia. Because those two islands are
not far from Malaysia and the fact that Malaysia has built several infrastructure
of tourism in those islands.
Effective
occupation itself is a doctrine of international law derived from the ancient
Roman law. Occupation comes from the concept Romawi occupatio means of administrative measures and are not necessarily
the physical act of occupation. Effective occupation as an act of
administrative control of the region can only be applied to terra nulliusatau
new territory and the no-man's land, or areas considered no man's land and
disputed by the state. Effective occupation can not be applied to the areas
governed by the agreement, the judge's decision, arbitration decisions, or
registration with clear legal ownership.
Obviously
the key element in the application of the doctrine of effective occupation is
the presence or absence of a law, rule of law, or regulation regarding the
status of the region. This is certainly in line with the meaning of occupatio
(read okupatio) which means that administrative actions and are not necessarily
physical occupation.
Because
including the international doctrine, effective occupation categorized as a
source of substantive law that refers to a form or birth bahan-bahan/materi
rules or norms that have binding power, and a benchmark for the occurrence of a
legal act.
International
Court in solving this case Malaysia rejected the argument that the two disputed
island territory once part of Malaysia acquired by private management contract
with the Sultan of Sulu Sen-Overbeck/BNBC/Inggris/Malaysia. The Court also
rejected the argument that the two islands, including Malaysia in the Sulu
region / Spain / U.S. / UK and then handed over to Malaysia based theories
ownership chain (Chain of Title Theory). According to the Court neither legal
or evidentiary documents filed Malaysia beard handover of sovereignty the relay
contains a reference that explicitly refers to the two disputed island.
International
Court also rejected the argument that the two disputed island Indonesia is an
area under Dutch rule based interpretation of Article IV of the Convention of
1891. Interpretation of Indonesia to the line limit of 4 ° 10 'N which cut Sebatik
island as an allocation line and continues to the east to reach the islands
dispute is also unacceptable Court. Clarity regarding the ownership status of
the two islands is also not in the van Toelichting memory. Memory Map
Toelichting van which illustrates Indonesia's interpretation of article IV is
considered to be unenforceable because it was not part of the 1891 convention.
court also rejected the alternative argument of Indonesia because of the
islands dispute is not mentioned in the contract 1850 and 1878 as part of the
Sultan Bulungan submitted to the Dutch colonial government.
Mastery
effectively considered as a stand-alone issue with 1969 as the critical date RI
considering legal arguments and legal arguments Malaysia can not prove their
claims ownership over both also in dispute.
In
connection with the proof effectivities Indonesia, the International Court
concludes that there is no strong evidence that can realize the sovereignty of
the Dutch or Sipadan island and Ligitan island. Similarly, there is no evidence
and authentic documents that may indicate the presence of the shape and form of
the implementation of Indonesia's sovereignty over the islands referred to in
1969. Court can not ignore the fact that the Law no. 4/Prp/1960 on specified
waters on 18 February 1960 which is the beginning of a legal product for the
concept of territorial assertion Archipelago, also did not include
Sipadan-Ligitan into the territory of the Republic of Indonesia.
In
connection with the proof effectivities Malaysia, the Court concluded that a
number of documents submitted show that there are multiple measures of
sustainable and peaceful management of the British colonial government since
1917.
Several
ways of British efforts materialized in the form of legislative action, quasi
judicial, and administrative disputes over the islands, such as:
a.
Quotation of tax on
fishing activities and the collection of turtle eggs turtle since 1917.
b.
Dispute resolution
in the collection of turtle eggs in Sipadan island in 1930.
c.
Determination of
Sipadan island as a bird sanctuary.
d.
Development and
maintenance of the lighthouse since 1962 in the Sipadan island and in 1963 at
the Ligitan island.
In
reviewing the legal evidence before 1969 that shows the effective occupation
over the islands of Sipadan-Ligitan, the Court considered the evidence
submitted both countries, namely:
a.
Indonesia submitted
evidence of Dutch naval patrols in the region from 1895 to 1928, including the
presence of the Dutch Navy ship Lynx to Sipadan in November-December 1921, and
the hydrographic survey ship in waters off Sipadan Dutch Macasser Ligitan in
October-November 1903. These patrols continued by navy patrols. Moreover, the
evidence presented was a fisherman fishing in Indonesia in 1950-1960s and even
early 1970s.
b.
Malaysia submitted
evidence in the form of the English law of evidence Turtle Preservation
Ordinance 1917; licensing of fishing vessels Sipadan Ligitan region; regulation
bird sanctuary in 1933 and the construction of a flare in 1962 and 1963.
Everything is a product of the British colonial government law, not Malaysia.
Before
assessing the evidence Indonesia, International Court of Justice confirmed that
4/Prp Act 1960 on the island of Sipadan-Ligitan not listed as belonging to
Indonesia. International Court believes it is relevant to the case of Sipadan Ligitan
islands because Indonesia does not put it in a national legislation. Against
the Dutch naval patrols, the Court found that this was part of the group
practice or collective agreements in the fight against piracy, so it can not be
the basis of filing a claim.
Indonesian
fishermen about fishing, the International Court held that "activities by
private persons can not be seen as effectivities, if they do not take place on
the basis of official regulations or under governmental authority" Therefore
these activities are not part of the implementation of the legislation
Indonesia or under the authority of the Government, the Court concludes that
this activity can not be the basis of the existence of effective occupation.
The
International Court holds that different from Indonesia who presented evidence
in the form of a number of activities and fisher folk Netherlands, Malaysia
presented evidence in the form of a number of legal provisions. Court stated
that the UK regulations indicate the existence of a "regulatory and
administrative assertions of authority over territory roomates is specified by
name".
The
essence of this decision is not as stated namely that while the state should
pay attention to the environment, economic development or even existence on a
remote island to show effective occupation, but the most important is whether
there is a legal or legal instruments, regulations or other administrative
activities on the island apart from the contents of their activities. This
decision also does not give legal meaning to the resort development undertaken
by Malaysia after 1969 and also Indonesian fishermen fishing activities that
are not based on legislation.
It should be underlined that the evidence presented is
Dutch and Indonesian activities against the British legal evidence. So in terms
of international law glasses, Malaysia to get the islands but not on its own
activities on the British legal activities conducted in 1917, 1933, 1962 and
1963 long before the Federation of Malaysia was formed with a membership of
Sabah on 16 September 1963
very good
ReplyDeletethank you :)
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