The international law and the established principle as I knew it and was told over and over again during my law study was that –
“Where the act does not correspond to the law, where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title. In the event that the effectivités does not co-exist with any legal title, it must invariably be taken into consideration.”
The Court too uphold the above principle numerous time in its earlier cases of Frontier Dispute (Burkina Faso/Republic of Mali, Judgment, I.C.J. Reports 1986, pp. 586-587, para. 63); Territorial Dispute (Libyan Arab Jamahiriya/Chad, Judgment, I.C.J. Reports 1994, p. 38, paras. 75-76); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening, Judgment, I.C.J. Reports 2002, para. 68).
If I were to paraphrase and fit the Court’s own principle into the present case, it simply means that –
“Where Singapore’s act does not correspond to the law, where Pulau Batu Puteh is effectively administered by a State (i.e. Singapore) other than the one possessing the legal title (i.e. Malaysia), preference should be given to the holder of the title (i.e. Malaysia). In the event that Singapore’s effectivités does not co-exist with Malaysia’s legal title, it must invariably be taken into consideration.”
So, Singapore’s effectivités (i.e. acts of control and administration) clearly do not correspond to the law because the law and the Court say title is with Malaysia. Therefore, although Singapore effectively administered Pulau Batu Puteh instead of Malaysia, preference should still be given to Malaysia as the holder of the title. Only if Malaysia does not have legal title will Singapore’s effectivités must invariably be taken into account.
In the Sipadan/Ligitan’s case, you Judges correctly applied the principle. You concluded that neither Malaysia nor Indonesia has original title to the islands. So you turn to take into account the effectivités of both sides as an independent and separate issue and came to the conclusion that Malaysia has stronger effectivités than Indonesia. Hence, Malaysia got the two islands.
But now, now you acted differently. You also decided differently.
Yet, you don’t explain clearly why.
And that left me disturbed and perplexed.
I don’t think I can forgive you for that.
“Where the act does not correspond to the law, where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title. In the event that the effectivités does not co-exist with any legal title, it must invariably be taken into consideration.”
The Court too uphold the above principle numerous time in its earlier cases of Frontier Dispute (Burkina Faso/Republic of Mali, Judgment, I.C.J. Reports 1986, pp. 586-587, para. 63); Territorial Dispute (Libyan Arab Jamahiriya/Chad, Judgment, I.C.J. Reports 1994, p. 38, paras. 75-76); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening, Judgment, I.C.J. Reports 2002, para. 68).
If I were to paraphrase and fit the Court’s own principle into the present case, it simply means that –
“Where Singapore’s act does not correspond to the law, where Pulau Batu Puteh is effectively administered by a State (i.e. Singapore) other than the one possessing the legal title (i.e. Malaysia), preference should be given to the holder of the title (i.e. Malaysia). In the event that Singapore’s effectivités does not co-exist with Malaysia’s legal title, it must invariably be taken into consideration.”
So, Singapore’s effectivités (i.e. acts of control and administration) clearly do not correspond to the law because the law and the Court say title is with Malaysia. Therefore, although Singapore effectively administered Pulau Batu Puteh instead of Malaysia, preference should still be given to Malaysia as the holder of the title. Only if Malaysia does not have legal title will Singapore’s effectivités must invariably be taken into account.
In the Sipadan/Ligitan’s case, you Judges correctly applied the principle. You concluded that neither Malaysia nor Indonesia has original title to the islands. So you turn to take into account the effectivités of both sides as an independent and separate issue and came to the conclusion that Malaysia has stronger effectivités than Indonesia. Hence, Malaysia got the two islands.
But now, now you acted differently. You also decided differently.
Yet, you don’t explain clearly why.
And that left me disturbed and perplexed.
I don’t think I can forgive you for that.
It’s a respect gone for you. At least from me.
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