Title to Territory in the Post-Colonial Era: Original Title and Terra Nullius in the ICJ Judgments on Cases Concerning Ligitan/Sipadan (2002) and Pedra Branca (2008)

This article approaches two International Court of Justice judgments on the cases concerning Ligitan/Sipadan (2002) and Pedra Branca (2008) from the perspective of the law of territory in the post-colonial context, showing that the Court managed to free the concepts of original title from terra nullius. It is prefatorily explained that the concepts of original title and terra nullius, which operate in combination, had both functioned as bases for the traditional law of territory and as unilateral justification for colonization by European powers. By contrast, analysis of the two recent judgments illustrates that the Court contrived to separate the two concepts from the context of colonialism by avoiding the determination of the islands as terra nullius and expanding the concept of original title while preserving the existing framework of law of territory. The problem is presented with a caveat, however; overemphasizing the significance of original title in the post-colonial context might lead to disregard for the foundations of title to territory, that is effective control of territory and its legitimizing logic, on which the territorial order of todays international society is based.