领土争端中有效控制原则的适用及其限制

有效控制必须具备“实施和继续实施控制行为的意愿”和“实际展示控制目的的行为”主客观方面的要件,后者须符合和平的、实际的、充分的和持续的这四个条件。且须明确有效控制原则与时效原则、先占中的有效占领原则、时际法原则、关键时刻等之间的区别与联系及其各自适用的场合与条件。有效控制原则的适用还应受到禁止反言原则的限制。历史证据表明我国是钓鱼岛、南沙群岛的合法所有者,对有关国家占有我国岛礁等行动我国持续表示反对,因此,实际控制原则对上述有关争端领土并不适用。为防止有关国家因对有效控制原则的误解而向无人岛屿采取移民等措施企图造成有效控制的事实,我国应对有关争议领土加强管理和统治,而对于被他国控制的无人岛屿等应采取多种手段及早解决。

Application of Effectivites Principle and Its Limitation in Territorial Disputes

The principle of effectivites frequently applies in the territorial disputes for the ICJ cases. The effectivites is based on the subjective element of ＂the intention to exercise and will exercise its control＂ and the objective element of ＂action to show its intention of control＂, and the latter shall be peaceful, factual, efficient and continuous. The differences and links between the principles of effective control, prescription, uti possidetis,inter-temporal law and their respective cases for application shall be defined. The application of the principle of effeetivites is subject to limitation of principle of estoppels. Historical evidence demonstrates China share the sovereignty of Diaoyu Island and Nansha Islands in line with international law. China＇ s consistent protests against the occupation of Chinese islands by other countries concerned result in the non-application of the principle of effectivites in the related disputed territories. In order to prevent related countries with misunderstanding of the effectivites in their attempts to form the facts of effectivites as a result of their immigration to the uninhabited island, China should intensively exercise its control and rule of the disputed areas, and for the uninhabited island controlled by other countries, various means should be employed for their earlier settlement of the territorial disputes.