CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE ISSUES OF SOVEREIGNTY AND OWNERSHIP IN RESPECT TO THE SEAǧBED … On the basis of the prohibition of sovereignty of state the prohibition of appropriation can be deduced. „Private property can only be understood in the context of the rules of state which guarantee its existence.“ 3 Provided the state cannot claim sovereignty and set its rules in this sense, the appropriation of the sea and its parts cannot occur either. The prohibition of appropriation of the high sea does not restrict the freedom to use the high sea for fishing. To the conclusion that the prohibition of national appropriation including the creation of private property claims exists, can also be reached through the concept that private property can only be understood in the context of the state system of rules which guarantee its existence. A similar view is held by Markoff, 4 according to whom property and ownership in the sense of civil law cannot apply without the public law framework based on the existence of state administration and enforcement power. Private law is unthinkable without a system of material and territorial jurisdiction of a state. This means that the existence of property rights is dependent on the sovereignty of the state and can be applied only in the framework of the power of a particular state. 1. Common heritage of mankind and the non-appropriation of the sea-bed and ocean floor beyond the national jurisdiction of states According to the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, the sea-bed and the ocean floor beyond the national jurisdiction of states cannot be appropriated by any state. The Geneva Convention on the High Seas of 1958 did not contain any explicit regulation referring to the ocean floor beyond the continental shelf. In the period before the explicit regulation, the idea of the freedom of the high seas was supposed to apply even to the respective sea-bed and the ocean floor. 5 As a demonstration of this principle the regulation in Article 2 of the Convention on the High Seas about the freedom to lay submarine cables and pipelines was considered. According to the UN International Law Commission, this freedom includes the application of the high seas regime to the sea-bed and ocean floor. 6 In its commentary the Commission stated that it did not make a special note on the freedom of exploration and exploitation of the sea-bed and ocean floor of the high seas. 7 According to Kish, 8 the commentary recognizes the freedom of the sea-bed and ocean floor and the subsoil thereof and that the non-appropriation of the sea-bed and ocean floor can be deduced. These views rise from the idea of the freedom of the sea-bed and ocean floor. The later regulation, however, contained in the United Nations Convention on the Law of the Sea of 1982 is not based on the freedom of the sea-bed and ocean floor beyond the national jurisdiction of states but is defined as common heritage of mankind. In this respect, the states have to exercise their freedom of laying submarine cables and pipelines with due respect to activities in The Area. 3 BOCKSTIEGEL, K.-H., KRAMER, D.M., POLLEY, I., Patent for the Operation of Telecommunication Satellite Systems in Outer Space, ZLW, 1998, No. 2, pp. 171-174. 4 MARCOFF, M. in: GANGALE, T., The Development of Outer Space. Sovereignty and Property Rights in International Space Law. Santa Barbara, California ABC-CLIO, Inc., 2009, p. 36. 5 KISH, J., The Law of International Spaces . Leiden, 1973, pp. 103-104. 6 Yearbook of the International Law Commission, 1956, Volume II, United Nations, New York, 1957, p. 278. 7 Ibid . 8 KISH, J., The Law of International Spaces . Leiden, 1973, pp. 103-104.

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