国际法上的领土权利来源:理论内涵与基本类型

Sources of Title to Territory under International Law:Theoretical Connotation and Main Types

随着国际实践的发展,国际法上传统的"领土取得模式"说已经远远不能满足相关理论分析的需要。领土的权利来源或依据问题是国际司法理论与实务中讨论的重点,但国内学界对此却少有系统分析。在领土争端中,一个国家需证明其在特定领土上建立主权的行为、事实依据、来源、证据或证明,这就是国际法上的领土权利来源问题。先占等五种领土取得模式尽管绝大部分已经过时,但仍属传统的领土权利来源范畴。新发展的一些可以独立构成领土权利来源的主要有条约、新国家的建立、有权机构或国际组织的处置、一国放弃/默认的国家单方行为等。值得注意的是,"有效控制"本身并不能达到建立领土主权的效果,但当其同领土放弃/默认等国家单方行为结合在一起时,可以发挥关键作用,并导致领土主权的变化。

With the rapid development of international practice, the doctrinal construction of ＂modes of acquisition of territory＂ is no longer able to meet the need of relevant analysis in legal theory. In reality, the notion of ＂title to territory＂, which refers generally to the acts, facts, proofs or sources of right that constitutes the legal foundation for the establishment of a sovereign right over territory, is preferred in judicial practice of the International Court of Justice. However, up to now, very little systematic research has been carried out on this issue by Chinese legal scholars. Currently, occupation of terra nullius and other four traditional modes of acquisition of territory are still the main sources of territorial title establishing territorial sovereignty, although most of them are now outdated. On the other hand, state practice and case law evince that there are many other titles by which territorial sovereignty is established, including following acts or facts： treaty, the creation of a new State, attribution by an organ or international organization having the capacity to dispose of a given territory. And unilateral acts can also constitute a title of sovereignty. Territory abandonment/acquiescence is an important example of unilateral acts of state. Effectivite can not per se independently constitute the establishment of a title of sovereignty, but it should be noted that, in case of a territorial renunciation or acquiescence, effectivites may play a significant role in territorial disputes and lead to the effect of transferring the sovereignty of a territory from one State to another.