Original Title to Territory:
Tomoko Fukamachi
To What and to What Extent Is the Concept of Title
to Territory Applied?*
Tomoko Fukamachi
1. IntroductionI

t is well known that international law was born as the law among modern sovereign states
based on territor y. “Law of territor y,” which handles various problems regarding state
territory, and in particular “title to territory,” which regulates the attribution of territory, is afield with a long history within international law. Now that there are many opportunities for
territorial problems to be addressed in school education and in the news, this is also a field thateasily attracts beginnersʼ interest. Yet, in fact, many people feel that it is a topic that is difficult tolearn and difficult to teach. One of the probable reasons for this is that law of territory has few
treaties that can serve as a reference concerning concepts and rules, let alone the codification
conventions which are now often seen in many fields of international law, while relevant arbitraland judicial cases have become numerous. Accordingly, the overall legal structure cannot easily
be grasped. In standard Japanese and foreign textbooks on international law, which should serveas the ultimate guide, there is a substantial lack of uniformity in how they handle and describe
law of, and title to, territory.1“Original title,” which this paper addresses, is a relatively “new” concept that has come to be
discussed in academia with several noteworthy published articles,2 following the 2008 ruling by
the International Court of Justice (ICJ) in the Pedra Branca case. I have placed “new” in quotation
marks because the term “original title” itself has long been used in law of territory. If we are tocall the traditional concept of original title the first original title, and the concept of original title
employed in the Pedra Branca case the second original title, at the very least it is necessary tounderstand the differences between the two. However, the mere existence of differences is nota sufficient reason to hold discussions on the second original title separately and specifically. To
state the conclusion in advance, the importance of the second original title is that it may provide
an opportunity to reconsider the structure and scope of title to territory (territorial title).
As stated above, international law of territory was developed early in history. Why was that?
The reason was that modern European nations “discovered” non-European regions, and in
expanding their own control, rules were needed to govern the competition among European*

This article is translated from an article in Japanese, Tomoko Fukamachi, “領域に関する原始権原̶̶
領域権原論は何をどこまで扱うのか [Ryōiki ni kansuru genshi kengen: Ryōiki kengenron wa nani wo
doko made atsukau noka],” Hogaku Semin , No. 765 (2018), pp. 24–30. The Japanese Manuscript̶
“Ryōiki ni kansuru genshi kengen: Ryōiki kengenron wa nani wo doko made atsukau noka”̶has beenreprinted in the following book: Mori, Tadashi and Naoki Iwatsuki (eds.), Sabutekusuto kokusaih :ky kasho no ippo saki e [Advanced readings in international law] (Nipponhyōronsha: 2020), pp. 106–120.

1

Brownlieʼs textbook may be a clear example. The sections and description contents in “Par t III
Territorial Sovereignty” are greatly changed from the 7th edition, which was the last edition by
Brownlie himself, to the 8th edition, which was revised by Crawford. Brownlie, Ian, Principles of Public
International Law, 7th ed., (Oxford University Press: 2008), pp. 103–170; Crawford, James, Brownlie’s
Principles of Public International Law, 8th ed., (Oxford University Press: 2012), pp. 201–252.

2

Kohen, Marcelo, “Original Title in the Light of the ICJ Judgment on Sovereignty over Pedra Branca/
Pulau Batu Puteh, Middle Rocks and South Ledge,” Journal of the History of International Law, Vol.
15 (2013), pp. 151–171; Fry, James D. and Melissa H. Loja, “The Roots of Historic Title: Non-Western
Pre-Colonial Normative Systems and Legal Resolution of Territorial Disputes,” Leiden Journal ofInternational Law, Vol. 27 (2014), pp. 727–754; Huh, Sookyeon, “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),” European Journal of International Law, Vol. 26 (2015), pp. 709–725.

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Original Title to Territory: To What and to What Extent Is the Concept of Title to Territory Applied?

nations.3 This history brought about certain basic characteristics in traditional law of territory
as well as the concept of territorial title. The present-day arguments regarding law of territory
may be said to be an accumulation of efforts to elucidate the structure of those characteristics
in reference to a number of international arbitral and judicial decisions regarding the attributionof territory, and to seek an appropriate theory of title to territory for the post-decolonization era.
From such a perspective, this paper follows the development of the concept of original title andaims to be of some assistance in understanding contemporary law of territory. The subsequent
sections begin with an overview of traditional theory on territorial title and its revisions to date as
preparation for clarifying what in traditional title theory the second original title concept leads us
to reconsider.

2. The traditional concept of title to territor y and first original title
Under international law, the attribution of territor y is discussed using the concept of title toterritory. Because territory is land where a state exercises territorial sovereignty, for land to berecognized as state territory, grounds to legally justify the establishment of territorial sovereignty
by the state must be presented. The facts that are viewed as grounds for justification of territorial
sovereignty under international law, in other words, the facts that are deemed the sources ofterritorial sovereignty, are called “title to territory.” In general, title is a fact that is the grounds fora right to be vested.
Territorial title has traditionally been considered equivalent to several fixed “ modes ofacquiring territorial sovereignty.” Because the requirements for each of these modes are defined
mutually exclusively, whether or not absolute title exists at a given point in time is staticallyjudged by their fulfillment. The modes of acquisition many scholars cite are occupation, accretion,
cession, prescription, and subjugation, and these are generally classified into original acquisitionand derivative acquisition. What is established by modes of original acquisition is original title in
the traditional sense, that is to say, the first original title.
However, it is necessary to note that several different opinions have been presented regarding
specifically what is classified as original acquisition.4 For example, according to the view thatoriginal acquisition is to establish territorial sovereignty over land which previously did notbelong to any state and that other acquisitions are all derivative acquisition, occupation andaccretion are categorized as original acquisition, while cession, prescription, and subjugation
are classified as derivative acquisition. Conversely, under the standpoint that instances wherethe validity of a title depends on the validity of a prior title are derivative acquisition and all otherinstances are original acquisition, occupation, prescription, accretion, and subjugation are originalacquisition, while derivative acquisition is limited to only cession.5
At any rate, it is now widely recognized that title to territory as that of above-mentioned “modes”
has played only a limited role in the settlement of territorial disputes through international

3

As research that clarified this point, Taijudō, Kanae “Kokusaihō jō no sensen ni tsuite: Sono rekishiteki
kenkyū” [Regarding occupation in international law: Its historical research], H gaku Rons , Vol. 61, No.
2 (1955), pp. 36–99 (in Taijudō, Kanae, Ry do Kizoku no Kokusaih [Title to territory in internationallaw] (Toshindō: 1998)) is essential reading.

4

See Fukamachi, Tomoko “Gendai kokusaihō ni okeru ryōiki kengen ni tsuiteno ichikōsatsu” [Somereflections on title to territory in international law], H sei Kenky , Vol. 61, No. 1 (1994), p. 71.

5

Prescription, subjugation, and cession all concern the acquisition of the territor y of another state.
However, in the cases of prescription and subjugation, the prior title is cut off, as it were, and a separate
title is established, while in the case of cession, the title of the state receiving territory is establishedonly within the effective scope of the prior title, that is, the title of the state ceding territory.

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Tomoko Fukamachi

adjudications.6 While the courts and tribunals to which territorial disputes are submitted have
tried to judge attribution based on agreement among the parties regarding the disputed territory
as much as possible, they have also adopted an approach of determining the existence of titleemphasizing the fact that the exercise of state authority, namely, acts which are deemed as
embodiment of territorial sovereignty, is continuously and peacefully conducted (“the continuousand peaceful display of territorial sovereignty [peaceful in relation to other states]”) (“the displayof sovereignty approach”).7 While there is no room for a detailed explanation in this paper, under
the display of sovereignty approach, title to territory̶which had a static and absolute nature
under the modes of acquisition scheme̶becomes dynamic, relative, and non-standardized.
This important point has been noted in a previous study.8 In this way, it may be said that theview which unconditionally equates title to territory with the modes of acquisition of territorial
sovereignty has been overcome.
However, the traditional concept of title to territory actually has one more limitation or selfdefinition. This is the concept to “acquire” territorial sovereignty. Because it was generated anddeveloped as rules to govern the colonization of non-European regions by modern European
states, the scope of the territorial title concept was limited to the new acquisition of territorial
sovereignty by existing states under international law, despite the seemingly universal definition
as “the facts deemed as grounds for the justification of territorial sovereignty.” For acquisition,
the prior existence of the acquiring body, i.e., the state, is essential. Consequently, as long as
the concept of title is deemed to be for acquisition, it becomes difficult to use this to logicallyexplain the grounds whereby “defined territor y,” which is a requirement necessar y for theestablishment of a new state, belongs to that state. A similar problem applies to the territories ofmodern European states, which were the assumptions upon which modern international law wasestablished.9
In this regard, what should be added quickly is that, while “a defined territory” constitutes
a qualifying element for a state, the complete delimitation of borders is not required. That is tosay, the possibility that the outer limit of such territory as inseparable from the very existence ofa new state may not be totally fixed is contained in the qualifying elements for a state. Modern
6Regarding approaches of resolving territorial disputes taken by international courts and tribunals, see
Yanagihara, Masaharu, Morikawa, Koichi, and Kanehara, Atsuko (eds.), Purakutisu kokusaih k gi
[Lectures on international law and practice] 3rd edition (Shinzansha: 2017), pp. 199–202.

7

In past judgments and awards, in line with the specific conditions of the disputed territory, the exercise
of legislative, administrative, and judicial authorities of states such as tax collection and administrationof justice has been recognized as displays of sovereignty that create title. For a simple commentaryon the display of sovereignty approach and the display of sovereignty concept, see Huh, Sookyeon,“Jikkōshihai to wa nanika?: Kokkashuken to jikkō shihai no kankei” [What is effective control?: The
relation between state sovereignty and effective control] in Morikawa, Koichi et al. (eds.), Kokusaih desekai ga wakaru: Ny su wo yomitoku 32 k [Understand the world with international law: 32 lectures tointerpret the news] (Iwanami Shoten: 2016), pp. 69–80.

8Huh, Sookyeon, Ry iki kengenron: Ry iki shihai no jikk sei to seit sei [The acquisition of territory ininternational law: The effectiveness and legitimacy of territorial control] (University of Tokyo Press:2012), pp. 148–165.

9

Yanagihara, Masaharu, “Ky iki, hanto, h do, soshite ry iki” [Chinese and Japanese notions of territory
and the European notion of territory], Kokusai Mondai, No. 624 (2013), p. 1; Fukamachi, Tomoko,“Nihon, Kankoku, Chūgoku ga tomoni shuchō suru ʻkoyū no ryōdoʼ to wa?: Ryōiki funsō no kaiketsu
kijun to shite no ryōiki kengen” [What is the ʻinherent territoryʼ claimed by Japan, South Korea, andChina?: Title to territory as a standard for resolving territorial disputes] in Morikawa, Koichi et al. (eds.),
Kokusaih de sekai ga wakaru: Ny su wo yomitoku 32 k [Understand the world with international
law: 32 lectures to interpret the news] (Iwanami Shoten: 2016), pp. 52–54; Starke, Joseph G., “TheAcquisition of Territorial Sovereignty by Newly Emerged States,” Australian Year Book of InternationalLaw, Vol. 2 (1966), p. 11.

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Original Title to Territory: To What and to What Extent Is the Concept of Title to Territory Applied?

European states themselves were not clearly divided by complete national boundaries rightfrom the start. In some cases there were areas, on the peripher y of core territor y of thosestates, whose attribution was not yet decided or being disputed. If the state argues for their
attribution that it acquired territorial sovereignty over them after it was established as a state, thestructure of the argument remains as one of acquisition of sovereignty by an existing state underinternational law. In contrast, when the claim is that the area in question has always been thestateʼs own territory from the time it was established as a state, it seems necessary to squarely
discuss the grounds for justifying territorial sovereignty over such territory as inseparable fromthe establishment of the state or its very existence. An unavoidable repercussion of this line ofargument is to bring into the theory of title to territory the difficult problem of how to assess“territorial control” implemented under the “international order,” which differs from internationallaw.

3. Forerunners of the second original title(1) The Minquiers and Ecrehos case
The ICJ handled such problematic situations as early as 1953 in the Minquiers and Ecrehoscase.10 In this case, the UK and France disputed the attribution of the Minquiers and Ecrehos
islands in the English Channel going back to the Middle Ages when modern international law
was not yet established. Both of the parties asserted that the disputed islands had become partof their respective territory at one time in the Middle Ages as part of the Channel Islands, andthat the ancient title or original title had been maintained without interruption during and after
the modern era. As an alternative claim in case this argument was not upheld by the Court, theUK also argued that it had acquired title based solely on long continued effective possession.
In response, the Court concluded that even though the ancient title asserted by the UK waspresumed to have existed, the attribution of sovereignty could not be decided by that alone, thatit must be founded on evidence directly related to the possession of the Minquiers and Ecrehos,and that both of the disputed islands belonged to the UK based primarily on the exercise of11“jurisdiction” by England in the Middle Ages and of state functions in the modern era.
The concept of original title asserted in this case is clearly different from the one traditionallyadopted in the classification of original acquisition and derivative acquisition. Moreover, it isdeemed to be used in the context of how to show the grounds to justify territorial sovereignty
over a territory that the parties claimed they already possessed at the time when they became
international legal subjects as modern states. Nevertheless, this case did not produce themomentum to consciously question the scope of title to territory as an “acquisition” scheme.
That is to say, while the reliance on the exercise of state functions that characterizes this casehas gathered frequent attention, amid the academic trend to reconsider the appropriatenessof the “mode” theory mentioned in the previous section, the issues of how the parties and the
Court grasped original title or ancient title and the significance thereof for the concept of title toterritory at large has not been examined in sufficient depth.12

10

Minquiers and Ecrehos case, judgment of 17 November 1953, ICJ Reports 1953, pp. 47–73.

11

However, between Minquiers and Ecrehos, the extent to which the exercise of state functions is used as
the basis for the attribution differs. In the case of Minquiers, the evidence that France recognized theisland as British territory was also emphasized. Ibid., pp. 70–72.

12

For an interpretation of the relationship between “ancient title” and “the display of sovereignty” in the
Minquiers and Ecrehos case presented by ICJ in its 1992 judgment in the El Salvador–Honduras Land,
Island, and Maritime Frontier case, see Huh, supra n. 8), pp. 244–246.

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Tomoko Fukamachi(2) The Qatar v. Bahrain case
The next case that should be noted is the Qatar v. Bahrain case in which a judgment on the
merits was rendered in 2001.13 In this case, regarding the Zubarah region in the northwesternpart of the Qatar Peninsula, the ICJ concluded that the authority of the Sheikh of Qatar basedin Doha on the eastern coast of the peninsula had gradually been consolidated to be definitively
established in 1937.14 On the other hand, regarding the Hawar Islands located between thepeninsula and the main island of Bahrain, the Court found that the decision by the British
government in 1939 which attributed the island to Bahrain was binding on both states, giving no
consideration to original title, effectivités,15 or any other arguments presented by the parties.16 It
concluded that the Hawar Islands belonged to Bahrain.
Five of the judges voted against 2(a) of the operative provisions of the judgment, which
presents the attribution of the Hawar Islands. One of them, Judge Torres Bernardez, criticized
the conclusions of the majority of the Court, stating that they failed to acknowledge the scopeof the original title of Qatar to the Qatar Peninsula and its adjoining islands and viewed the1939 British decision, which fundamentally lacks validity, as the source of Bahrainʼs derivative
title.17 According to Judge Bernardezʼs definition, original title is the title to the territory of a
new state while derivative title is the title to territory acquired by an existing state. In his view,international legal theory has distinguished between these two categories from long ago.18 As
we have seen, however, it was clear at least that the expressions of original title and derivative
title were generally used for a different classification. Therefore, although we should havecertain reservations about the appropriateness of Judge Bernardezʼs remark that the distinction
between the two categories has a long history, the significance of his opinion can be found in theconceptualization and presentation of original title as a title with “constitutive elements linked to
the very birth of the political entity or state.”19 As such, this opinion leads to the concept of second
original title.

13

Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment of 16
March 2001, ICJ Reports 2001, pp. 40–118.

14

Ibid., pp.64–69. Regarding this judgment, from the viewpoint of the theoretical interest of this paper,
issues may be noted such as whether the authority consolidated regarding Zubarah can be explained
under the “acquisition” framework, the timing of when Qatar was established as a state, and what are
the territories that are inseparable from the establishment of Qatar as a state, but because of the space
limitations here these will have to be addressed on some other occasion.

15

When the concept of effectivités was initially employed in law of territory, under the uti possidetis juris
principle which requires that the boundaries between new states having achieved independence fromthe same colonizing power follow the administrative boundaries in the colonial period, the concept had
only the limited meaning of indicating the conduct of the colonial authorities during the colonial era.
Subsequently, however, cases emerged where this was used to paraphrase the display of sovereignty,
and it has now become rather ambiguous. Regarding the discussion concerning ef fectivités by theparties in this case, see Huh, supra n.8), pp. 262–266. For an overview of the ambiguity of the conceptof effectivités, Huh, Sookyeon, “Ryōdo kizoku hōri no kōzō: Kengen to effectivités wo meguru gokai
mo fukumete” [Structure of the legal doctrine of attribution of territory: Including misunderstandings
regarding title and effectivités], Kokusai Mondai, No. 624 (2013), pp. 20–34 is useful.

16 atar v. Bahrain case, supra n. 13), pp. 70–85. The judgment only mentions the fact that the parties
Q
made arguments regarding the claim of original title, and the parties themselves hardly touched upon it
in the written procedures, so it is necessary to refer to the record of the oral arguments.

17

Dissenting Opinion of Judge Torres Bernardez, the Qatar v. Bahrain case, supra n. 13), p 260.

18

Ibid., p. 281, para. 60.

19

Ibid.

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Original Title to Territory: To What and to What Extent Is the Concept of Title to Territory Applied?

(3) The Ligitan and Sipadan caseIn the following year, 2002, the ICJ handed down its ruling in the Ligitan and Sipadan case.20 The
two parties, Indonesia and Malaysia, both used the concept of original title in their claims. Pulau
Ligitan and Pulau Sipadan are uninhabited islands in the Celebes Sea off the coast of northeastern
Borneo. In this case, Indonesia called the title to both islands held by the Sultan of Bulungan theoriginal title and Malaysia did the same regarding the title held by the Sultan of Sulu. Each party
claimed that these had been transferred to Western powers and then inherited by themselves.21
In the end, the Court did not adopt either argument. As for Indonesia, the Court did not examine
the original title at all because it found that the disputed islands were clearly not included in theareas that had passed to Indonesia as a successor to the Netherlands.22
On the other hand, regarding Malaysiaʼs claim, the Court did consider whether or not the
disputed islands had been part of the possessions of the Sultan of Sulu, and denied the existenceof original title to both islands based on the following four points. First, the parties recognizethat geographically both islands do not belong to the Sulu Archipelago. Second, the relevant
documents describe the territorial extent of the Sultanate of Sulu as comprising “the Archipelago
of Sulu and the dependencies thereof,” but these documents provide no specific reference todecide whether Ligitan and Sipadan, which are located at a considerable distance from the mainisland of Sulu, were part of the Sultanateʼs dependencies. Third, even if the Bajau Laut who may
have made use of the two islands were loyal to the Sultan of Sulu, such ties are not sufficient toprovide evidence that the Sultan of Sulu claimed territorial title to both islands. Fourth, there isno evidence that the Sultan of Sulu actually exercised authority over both islands.23
In this way, while the application to Ligitan and Sipadan was not recognized, the concept oforiginal title was used by the Court as the grounds for justifying the territorial control exercisedby Sulu, which was a non-European local “state.” In addition, the above-mentioned four points
which the Court considered when it denied that original title existed can be summarized, using
more common expressions, as three factors: focusing on the overall territorial extent of the state,negative evaluation on personal ties of loyalty to determine original title, and the requirement of
the actual exercise of authority. Keeping these in mind, the following section examines in detailthe contents of the judgment in the Pedra Branca case, which first presented outright recognitionof the second original title.

4. Recognition of the second original title—the Pedra Branca case(1) Outline of the case and the claims of the parties
Pedra Branca is a small island located at the eastern entrance to the Straits of Singapore. In Malaysia,
the island is called Pulau Batu Puteh. In 2003, Malaysia and Singapore signed a Special Agreement
requesting the ICJ to determine the attribution of Pedra Branca/Pulau Batu Puteh (hereinafter Pedra
Branca) and the nearby Middle Rocks and South Ledge. The Court issued its ruling in 2008.24 Thissection examines the dispute focusing on the judgment concerning Pedra Branca.
20

 overeignty over Pulau Ligitau and Pulau Sipadan, Judgment of 17 December 2002, ICJ Reports 2002,
S
pp. 625–686.

21

Indonesia primarily claimed that the attribution of the disputed islands was already decided by the1891 Convention concluded between Great Britain and the Netherlands, but this was not upheld by the
Court. Transfer and succession from the Sultan of Bulungan was Indonesiaʼs alternative claim.

22

Ligitan and Sipadan case, supra n. 20), p. 669, paras. 95–97.

23

Ibid., pp. 674–675, paras. 108–110.

24

 overeignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, Judgment of 23 May
S
2008, ICJ Reports 2008, pp. 12–102.

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Tomoko Fukamachi

In this case, it was Malaysia that claimed original title. According to Malaysia, Pedra Branca
was and is part of the Malaysian State of Johor. The reason for this is that the Sultanate ofJohor, which is the predecessor of the State of Johor, controlled all of the islands in the Straits ofSingapore including Pedra Branca ever since it was established in 1511, and that there is nothing
to show that Johor ever lost its title. Malaysia called the title which it inherited from the Sultanateof Johor “an original title of long standing.”25
In response, Singapore claimed that prior to 1847, Pedra Branca was terra nullius. As such, it
was claimed that by taking possession of it through the construction of a lighthouse from 1847 to1851, the United Kingdom was able to acquire lawful title, and that the title had been maintained
until the present time by the British Crown and by its successor the Republic of Singapore.26
Consequently, the issue was whether Malaysia could prove the establishment of its original title
dating back to before the lighthouse construction activities, or conversely whether Singapore
could prove its claim that it established lawful possession at some time after the start of theconstruction of the lighthouse.27(2) Recognition of original title by the Court
The ICJ recognized the original title that the Sultanate of Johor possessed over Pedra Branca
based on the following considerations.28
The Court started by obser ving that it was not disputed that the Sultanate of Johor had
been established as a sovereign state with a certain territorial domain under its sovereignty
since its foundation in the early 16th century, and then examined proof showing the common
understanding of that time regarding the extent of that territorial domain to confirm that theStraits of Singapore and the islands therein were included in that domain. Next, the Court pointed
out that because Pedra Branca had been known as a navigational hazard, and had not been an
unknown island, the reasonable inference was that it was one of the islands within Johorʼs generalgeographical scope. Finally, the Court mentioned the requirement of “continuous and peacefuldisplay of territorial sovereignty [peaceful in relation to other states],” noted that no competingclaim had ever been advanced against Johor and that it is sufficient to display sovereignty inaccordance with the specific circumstances of each case, and concluded that Johor satisfied therequirement of display of sovereignty.
The Court then addressed the ties of loyalty that existed between the Sultan of Johor and theOrang Laut, who made the Straits of Singapore the area of their activities, and concluded that this
could also be used to confirm the existence of Johorʼs original title to Pedra Branca.29, 30

25

Ibid., p. 29, paras. 37–38; pp. 31–32, paras. 47–48.

26

Ibid., pp. 29–30, paras. 39–40; pp. 32–33, paras. 49–51.

27

Ibid., p. 30, para. 42.

28

Ibid., pp. 31–37, paras. 52–69.

29

Ibid., pp. 37–39, paras. 70–75.

30

In the dispositif, Pedra Branca is attributed to Singapore and the Middle Rocks to Malaysia, while theattribution of South Ledge, which is a low-tide elevation, is required to be decided by future maritime
delimitation. This is because the Court judged that the territorial sovereignty based on the original title
to Pedra Branca held by Johor had been transferred to Singapore some time after the middle of the 19th
century or at least by 1980, whereas it found that Malaysia, as the successor to Johor, continued to holdthe original title to the Middle Rocks, which did not fall under special circumstances having caused thattransfer.

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Original Title to Territory: To What and to What Extent Is the Concept of Title to Territory Applied?

(3) Appraisal
In that this case employed the concept of original title to discuss the issue of whether or not the“territorial control” by a non-European local “state” extended to the territory in dispute, it follows
the same track as the judgment in the Ligitan and Sipadan case. The original title in both cases,that is, the second original title, differs from the first original title, which concerns the acquisitionof new territory by an existing state under international law, and may be seen as a concept used
for the legal basis for the attribution of territory that cannot be separated from the establishmentof the state or its ver y existence under international law, namely, territor y that came to beestablished under an “international order” other than international law.
It was inevitable that the Court should feel the necessity of such a concept particularly
strongly in judgments on the attribution of territory in the post-decolonization era. This is easily
understood by recalling the Island of Palmas arbitral award, which was issued during the colonialera. To elaborate, that award, which is acknowledged as the pioneer in the display of sovereignty
approach, did not use the traditional mode, but still left no room to doubt that the concept of
title to territory consisted of rules to regulate territorial acquisition by Western countries. Morespecifically, the tribunal did not consider territory as belonging to a local “state” comparable
to Johor, and took the conventions between the native princes and the East India Company as
evidence of the display of sovereignty by the Netherlands, which was a state under international
law.31 However, as pointed out by Sookyeon Huh,32 even if the principle of inter-temporal law wereinvoked, to rely on this kind of logic could no longer be a realistic option for the ICJ today, since
it directly reflects colonialism which should be rejected. Hence, the introduction of the second
original title concept may be considered as one attempt to accommodate law of territor y tochanges in international society.
As for the method whereby the Court recognized original title, it cannot be denied that there
are points of doubt as well as points that require caution. Let us look at this in line with theprocedure of recognition as stated above. What the Court did first was to label the Sultanate ofJohor as a sovereign state with a certain territorial domain under its sovereignty. However, theonly evidence presented for this was a work written by Grotius that called Johor a sovereign
principality (supremi principatus).33 The established theory is that Grotius did not have a clear
concept of sovereignty in the modern sense,34 and at the time that Johor was established, even in
Europe, sovereign states were in the process of being formed both conceptually and in reality, so
one cannot help but call the attitude of the Court, which used the word sovereignty without any
qualification or explanation, ahistorical or at least incautious.
What the Court focused on next was, similar to the judgment in the Ligitan and Sipadan case,to identify a general scope of the “territory” of the local “state” and to draw a rational inference
that the territory in dispute lay within that scope. Regarding the former, the Court found two
grounds for identification: the Sultan of Johorʼs understanding of territory shown by the fact that
the Sultan had objected to the East India Companyʼs act of seizure in the Straits of Singapore, andthe understanding of territory seen in letters by the British government official in Singapore at31

Island of Palmas case, Arbitral Award of 4 April 1928, 2 RIAA 831, pp. 858–859.

32

Huh, supra n. 2), p. 724.

33

Pedra Branca case, supra n. 24), p. 33, para. 53. This quotation from the work by Grotius is believed
to have been taken from a quotation in the memorial of Malaysia. However, the concerned section in
the memorial of Malaysia does not contain any statement using this quotation to position Johor as asovereign state. Memorial of Malaysia, Vol. 1, paras. 37–38 (available at http://www.icj-cij.org/files/
case-related/130/14139.pdf).

34

As a convenient reference concerning this point, see Yanagihara, Masaharu, Grotiusu [Grotius] (Shimizu
Shoin: 2000), pp. 180–183. The version now being sold as of 2018 is the new edition published in 2014.

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Tomoko Fukamachi

that time.35 Regarding the latter, the inference was drawn from the fact that the island was not an
unknown island. Accordingly, at none of those stages was the actual territorial control over the
disputed territory by the local “state” scrutinized.
Furthermore, if we ask whether the Court looked at the actual situation of territorial control
by checking the requirement of “continuous and peaceful display of territorial sovereignty[peaceful in relation to other states],” which was deemed the final procedure in the judgment, that
did not occur either, at least in this case. This is because the judgment accepted the requirementfor display as being satisfied in accordance with the conditions of the disputed territory despite
mentioning no specific acts which may be regarded as display of sovereignty.
As we have already seen, under the display of sovereignty approach, the “continuous andpeaceful display of territorial sovereignty [peaceful in relation to other states]” has become anestablished expression indicating the exercise of state authority, which is the source of title aswell as its proof. The exercise of state authority is recognized to be the source of title because
it demonstrates that the sovereign of the territor y fulfilled the duty imposed on him, that is,to ensure minimum protection within the territor y as is required under international law.36
Consequently, even if the extent and form of the exercise of authority required to fulfill that duty
vary depending on the conditions within the territory, it is difficult to accept that no concrete
evidence of the exercise of authority directly related to the territor y in question could bepresented, or that no specific examinations could be made as to whether it existed. This means
that, in recognizing original title in this case, by making the “continuous and peaceful displayof territorial sovereignty [peaceful in relation to other states]” its “requirement,” the Court
succeeded in giving the impression that recognition of original title and conventional recognitionof acquisition of title are fundamentally the same. However, we cannot help but remark that thereality of the application in the former constituted “a variation that differs from the traditional
display of sovereignty approach.”37

5. Concluding remarks
The concept of the second original title employed in the Pedra Branca case is the point where
two junctures come together. The first is the juncture between the concept of title to territory
and the issue of the grounds of territorial sovereignty over territory that is inseparable from theexistence of the state itself, which used to be considered as outside the scope of title to territory.
The other is that between the issue of the evaluation of historical territorial control or attribution
in the traditional order which differs from international law, and the determination of territorial
attribution in contemporary international law.
Nevertheless, the Court did not tr y to evaluate the legitimacy of the historical territorial
control by non-European “states” using the framework of the traditional order to which they
belonged. This contrasts with the detailed examinations in the Minquiers and Ecrehos case of
territorial control by medieval England and France in light of the Grand Coutumier de Normandie,
which constituted the contemporary order.38
What the Court did instead in the Pedra Branca case was, while adopting the posture ofusing the same framework as the rules of territorial acquisition by existing states by mentioning
the requirement of “continuous and peaceful display of territorial sovereignty [peaceful inrelation to other states],” to recognize the existence of grounds for the justification of territorial
sovereignty, namely original title, by incorporating a new method of emphasizing the general35

Pedra Branca case, supra n. 24), pp. 33–34, paras. 54–56.

36

Huh, supra n. 7), pp. 75–76; Huh, supra n. 8), pp. 145–146.

37

Huh, supra n. 8), p. 329.

38

Minquiers and Ecrehos case, supra n. 10). pp. 60–64, pp. 67–68.

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Original Title to Territory: To What and to What Extent Is the Concept of Title to Territory Applied?

extent of territory without looking into the local traditional order and even without any display ofsovereignty. As background to this recognition, which may be called an unusual feat of reasoning,it should be noted that the special geographical conditions in this case may have had some effect.
That is to say, because the land on both banks of the narrow Straits of Singapore belonged to
the Sultanate of Johor, it was not necessary to consider possible competing claims to the islands
within the Straits by nearby countries or countries on the opposite bank. In this sense, it would benecessary to carefully and separately consider whether original title could be identified using thesame method in the absence of such conditions.
From the above, it is difficult to support without qualification the positive evaluation that byrecognizing Johorʼs original title, the ICJ made a concrete contribution to the clarification of thedifference between original title and title of occupation of terra nullius and also of the territorialsituation in Eastern Asia during the 19th century.39 Rather, the concept of second original title
encourages us to make further efforts and contributions toward the clarification of the conceptof title to territor y itself while showing many issues that should be examined regarding theapplication of the second original title and its theoretical impact on title to territory.

39

Kohen, supra n. 2). pp. 170–171.

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