Welcome Guest [Log In] [Register]
Welcome to Philippines Defense Forces Forum. We hope you enjoy your visit.


You're currently viewing our forum as a guest. This means you are limited to certain areas of the board and there are some features you can't use. If you join our community, you'll be able to access member-only sections, and use many member-only features such as customizing your profile, sending personal messages, and voting in polls. Registration is simple, fast, and completely free.


Join our community!


If you're already a member please log in to your account to access all of our features:

Username:   Password:
Add Reply
Effectivités
Topic Started: Jan 21 2013, 11:12 AM (393 Views)
raider1011


Quote:
 
Baja said, “When our ships withdrew from Bajo de Masinloc in June and now (we) could not access the area, the shoal became under virtual occupation by China. “

Baja, who drafted the DOC with Malaysia’s Abdul Kadir, also said Chinese occupation of the disputed shoal has changed the status quo, contrary to the DOC.

Baja said China is exercising what the International Court of Justice (ICJ) calls “effectivités.”

“This is the basis of the Court’s decision on the Ligatan Sipadan case where the court awarded the area to Malaysia over Indonesia. Also the same principle in the case between Chile and Peru and between Nicaragua and Guatemala,” he said.

Baja said, “We must act and interact before we lose the territory by default and/or estoppel.”

VERA Files: Chinese ‘occupation’ of Bajo de Masinloc could reduce PH territorial waters by 38 percent

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

17 December 2002

Reasoning of the Court

(snipped)

Having found that neither of the Parties has a treaty-based title to Ligitan and Sipadan, the Court next considers the question whether Indonesia or Malaysia could hold title to the disputed islands by virtue of the effectivités cited by them. In this regard, the Court determines whether the Parties’ claims to sovereignty are based on activities evidencing an actual, continued exercise of authority over the islands, i.e., the intention and will to act as sovereign.

Indonesia cites in this regard a continuous presence of the Dutch and Indonesian navies in the vicinity of Ligitan and Sipadan. It adds that the waters around the islands have traditionally been used by Indonesian fishermen. In respect of the first of these arguments, it is the opinion of the Court that "it cannot be deduced [from the facts relied upon in the present proceedings] that the naval authorities concerned considered Ligitan and Sipadan and the surrounding waters to be under the sovereignty of the Netherlands or Indonesia". As for the second argument, the Court considers that "activities by private persons cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority".

Having rejected Indonesia’s arguments based on its effectivités, the Court turns to consideration of the effectivités relied on by Malaysia. As evidence of its effective administration of the islands, Malaysia cites inter alia the measures taken by the North Borneo authorities to regulate and control the collecting of turtle eggs on Ligitan and Sipadan, an activity of some economic significance in the area at the time. It relies on the Turtle Preservation Ordinance of 1917 and maintains that the Ordinance "was applied until the 1950s at least" in the area of the two disputed islands. It further invokes the fact that the authorities of the colony of North Borneo constructed a lighthouse on Sipadan in 1962 and another on Ligitan in 1963, that those lighthouses exist to this day and that they have been maintained by Malaysian authorities since its independence. The Court notes that "the activities relied upon by Malaysia . . . are modest in number but . . . they are diverse in character and include legislative, administrative and quasi-judicial acts. They cover a considerable period of time and show a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands". The Court further states that "at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest".

The Court concludes, on the basis of the effectivités referred to above, that "sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia".

International Court of Justice

God grant me the courage not to give up what I think is right even though I think it is hopeless.

|| Chester W. Nimitz

Loyalty to the Nation ALL the time, loyalty to the Government when it deserves it.

|| Mark Twain
Offline Profile Quote Post Goto Top
 
1 user reading this topic (1 Guest and 0 Anonymous)
« Previous Topic · West Philippine Sea · Next Topic »
Add Reply