영토분쟁과 권원 간 위계- 조약상의 권원, 현상유지의 법리와 실효지배의 권원을 중심으로 -

When a dispute involving a frontier or land/insular territory is referred to international adjudication, what bases and principles would govern conflicting claims? Has international jurisprudence developed and established a legal regime of hierarchy for determining title attribution? This paper has undertaken a critical review of international jurisprudence on territorial adjudication to help derive some useful pointers to the evolving model of rules, principles and doctrines governing the acquisition, lapse or extinction of territorial titles. The modern rules of international law governing the modes of territorial acquisition have their roots in the Roman law of property built upon the concept of possession, actual or constructive. International jurisprudence has distinguished pre-modern roots of territorial title, e.g. ancient and historic titles that are not recognized as definitive, from modern ones, such as bilateral or multilateral treaties(such as those of cession, succession or peace), uti possidetis juris, and effective control. The concept of territorial title is not an absolute but a relative right opposable to competing claims. Under this triad of titles, decisions are predicated on the precedence of a treaty- based title as the first among equals. The rationale is obvious. As binding agreements, treaties, including those concluded in simplified form, constitute the primary source of international law to create binding obligations as between the parties with comparative clarity and to promote compliance. They are also relatively easy to prove. The terms of the treaty, its annexes and annexed or appended maps are, however, not always apparent in every detail of the disputed frontier or territory. Nor are they always amenable to enforcement because of the lack of relevant provisions. The principle of uti possidetis juris represents a 'deliberate choice' by the relevant countries to secure territorial integrity and political stability after independence (Burkina Faso/Mali, paras.20 & 23), consistent with public policy. It is, in principle, applicable to both terra firma and insular territory. The ICJ has pronounced the principle a firmly established general principle of international law developed in connection with decolonization(Burkina Faso/Mali, paras.20 & 26). The same Court also declared its priority over effective control. Premised on the colonial heritage which defy legal articulation and which the ICJ is pleased to sidestep wherever possible(2001 Qatar/Bahrain case, Joint Diss. Op.), colonial frontiers were not always clear and definitive(El Salvador/Honduras). Nor is the uti doctrine unambiguous on the sovereignty of offshore small, uninhabited remote islands during the colonial period. Despite the ICJ's emphatic advocacy in the Burkina Faso case, therefore, legal conviction as to the binding effect of the uti principle seems to be lacking. The status of the uti principle is thus dubious and its general applicability is questionable. Here, effective control takes over as a third principle governing territorial acquisition (El Salvador/Honduras & Nicaragua/Honduras). Effective control may act as both a root and evidence of title. This doctrine may even erode and even defeat the superior treaty-based title on grounds of acquiescence. A continuous and peaceful display of state authority may "prevail over a prior, definitive title put forward by another State"(Palmas arbitration, p.846). Thus, in the Palmas arbitration, Spain, by reason of her acquiescence in the Dutch display of effective control for some 200 years, was found to have established no valid title to the island. In this context, international jurisprudence has yet to establish and pronounce a reasonably clear legal test for the conditions and circumstances that would create acquiescence, thus allowing effective control priority over a treaty-based title. This is all the more so "if no conventional line of topographical precision exists, ... or if a conventional line leaves room for doubt, or if, as e.g. in the case of an island situated in the high seas“. In this case, the question arises whether a title is valid erga omnes"(Palmas arbitration, p.840). Like the uti principle, it is not always easy to prove a peaceful and continuous display of state authority over remote, uninhabited islets or rocks. And no jurisprudential guide has been offered as to the exact duration constituting acquiescence, except to the extent that a period of 20 years would be "far too short"(Cameroon/Nigeria, para.65) and that acceptance of a map for 50 years constituted recognition or acquiescence (Temple of Preah Vihear, pp.32-33).