既决判例表明,就领土主权与占有而言,国际司法机构较为一贯的裁判思路是,首先依历史居住或国际协议或有效继承能够确定争议土地合法所有者的,则不管现在归谁所控制,争议土地判归合法所有者,非法行为不产生合法权利。只有当争议土地根据上述途径无法确定合法所有者的,才依有效占有原则界定土地的归属(实际上也就是确定土地的合法所有者),先占的对象原本就只能是无主地,而不能是已有合法所有者的有主地。钓鱼岛自古属于中国领土,日本无论从国际法上的历史传承、条约规定还是占有时效上都不能取得钓鱼岛主权。解决钓鱼岛争端需要中国和平发展的实力积聚,更需要重视国际法的准据和量尺作用,通过采取有理有据的法律应对措施,能使自己处于法理与道义的制高点,防止被人渲染“中国威胁论”。 In both cases, the judgments show that in the case of territorial sovereignty and possession, the more usual refereeing thinking of international judicial bodies is that whichever authority the disputed land may first determine based on historical or international agreements or effective succession, Disputed land is judged as the legal owner, and illegal activities do not create legal rights. Only when the disputed land can not be identified as the legal owner according to the above-mentioned means can the ownership of the land be defined according to the principle of effective occupying (in fact, the legal owner of the land), the object of preemption can only be the landless and can not Is the owner of the legal owner. The Diaoyu Island has belonged to Chinese territory since ancient times. Japan can not acquire the sovereignty over the Diaoyu Islands from the historical inheritance in international law or the provisions of the treaties or the limitation of possession. To resolve the Diaoyu Islands dispute requires the accumulation of strength for the peaceful development of China. It also needs to attach importance to the evidence and measurement of international law. By taking well-founded legal response measures, it can put itself at the high ground of jurisprudence and morality and prevent its being rendered. “China Threat Theory. ”