영유권 확립에 대한 실효적 지배의 증거로서의 에펙티비테(effectivités): 말레이시아와 인도네시아의 도서 분쟁에 대한 국제사법재판소의 판결을 중심으로

As regards the dispute over Pulau Ligitan and Pulau Sipadan, located in the Celebes Sea off the northeast coast of the island of Borneo, Indonesia and Malaysia brought the dispute before the International Court of Justice on November 2, 1998 in accordance to the Special Agreement which had been concluded on may 31, 1997. The ICJ rendered its decision that the sovereignty over the two islands belonged to Malaysia. Having found that neither of the two countries has a treaty-based title to the islands, the Court considered the question whether the parties could hold title to the disputed islands by virtue of the effectivités. In this regard, the Court determined that as Malaysia’s activities were modest and diverse including legislative, administrative and quasi-judicial acts, they showed a pattern revealing an intention to exercise State functions in the context of the administration of a wider range of islands. It should be noted that the Court ruled in favor of Malaysia attaching considerable importance to the effectivités. It is because this dispute shares a lot of similarities with Dokdo issue between Korea and Japan. As both of the islands are quite remote from the main lands, neither has been regarded as economically significant as large islands for a long time. So, the effectivités in respect to the islands should be examined closely in preparation for a possible dispute settlement between Korea and Japan. Also, we can not emphasize the importance of this case too much as a leading case brought before the ICJ. This case is the first to be brought to international dispute settlement by a state of the ASEAN since the Temple of Preah Vihear case.