CYIL vol. 8 (2017)

JAN ONDŘEJ CYIL 8 ȍ2017Ȏ mohla naplnit. Pokud jde o finanční příspěvky z těžební činnosti, které budou kontrahenti poskytovat Organizaci mořského dna, jejich výše a další rozdělování, je otázkou budoucího vývoje. Key words : sovereignty, ownership, sea-bed, exploration, exploitation, common heritage of mankind. On the Author : Doc. JUDr. Jan Ondřej, CSc., DSc., is an Associate Professor (Docent) of International Law at the Charles University Law School in Prague and Vice-Rector and Head of the Department of Law and Security at the Private University College of Economics Studies in Prague. Mr. Ondřej is the author of a textbook of International Public, Private and Trade Law (2014) and of many publications on international spaces (space law, law of the sea, Antarctica), e.g. the publication The Law of International Spaces (2004), disarmament and international security, e.g. the publication Disarmament – Means of Ensuring the International Security (2008). He also co-authored the publication International Humanitarian Law (2010). Introduction When considering the issue of sovereignty and ownership in respect to the sea-bed and ocean floor beyond the borders of national jurisdiction, the regulation concerning the open sea can be considered as the starting point. The open sea as well as the sea-bed and ocean floor beyond national jurisdictions are international space which cannot be appropriated by any state. On the other hand, all states can participate in its exploitation. The prohibition of the application of state sovereignty on any part of the open sea arises from the common international law; the prohibition is expressed explicitly in Article 2 of the Convention on the High Seas of 1958 and in Article 89 of The United Nations Convention on the Law of the Sea (UNCLOS) of 1982. Both conventions only contain the prohibition of the application of sovereignty of a state. They do not explicitly express the prohibition of application of ownership rights towards the high sea or its parts. Already in the classic work of Hugo Grotius 1 Mare Liberum (The Free Sea) of 1609, the author claimed that the sea cannot be an object of occupation because it is res communis (common thing). All things which by their nature are for common use, like the air, the sea and shores cannot be occupied. The sea, therefore, cannot become the property of anyone because it is unrestricted. Furthermore, navigation and fishing require common use. The sea is res extra commercium , it is not an object of commercial transactions and cannot be a subject of easement ( servitus ) because by its nature it is open to all people. Fish in the sea is therefore res nullius, until caught and only then becomes the property of that person who caught it. According to him, 2 nobody can appropriate the sea and nobody can extend sovereignty over it (dominium). In the English translation, the word “dominium” is translated as “sovereignty” , which led to critical remarks pointing to the difference between the Latin expressions dominium and imperium. In publications of authors in the 16th and 17th century, it was difficult to distinguish between ownership and sovereignty. 1 GROTIUS, H., Mare Liberum 1609-2009 . (Edited by FREENSTRA, R., introduction by VERVLIET, J.) Leiden, Boston, 2009, Introduction, p. XV. 2 KALENSKÝ, P., The Principal Ideas of Hugo Grotius, their Evolution and changes . Studie z mezinárodního práva. Sv. 20, Praha: Academia, 1986, p. 5.

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