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JAN ONDŘEJ
CYIL 4 ȍ2013Ȏ
When interpreting the term
jurisdiction
in this respect, it is possible to say that
it expresses
the right of the state to exercise certain power
. From this perspective
it
is narrower than sovereignty.
Legal opinion on the term jurisdiction, however, is not
unanimous. Lauterpacht,
25
for example, believes that a territory which is under exclusive
jurisdiction and control is under its sovereignty, even though he admits that a state can
in some cases exercises the right of jurisdiction and control or exclusive jurisdiction
without claiming the sovereignty. The term
“control” in connection with jurisdiction
is not, according to, for example, Lachs,
26
a legal term but only serves to strengthen
jurisdiction. Control in connection with jurisdiction (and this term often appears in
international treaties) is understood as a de facto rule and regulation.
The International Law Commission
has encountered difficulties when defining the
term jurisdiction and control
during discussions over the right of a seaside state over
natural resources of the continental shelf. The term jurisdiction and control in relation
to the continental shelf refers to the USA of 1945. In the text of the Convention on
the continental shelf this term was replaced, due to its multiple interpretations, by
the term sovereign rights.
Sovereignty, as well as sovereign rights, however, are always
connected with a particular territory. We cannot speak about sovereignty when, for
example, exercising state power over ships on the high seas.
The Soviet Draft declaration
of the basic principles governing the activities of States pertaining to the exploration
and use of outer space
27
used the wording that states maintain “sovereign rights over
objects launched into outer space”. In the accepted text of the Declaration
28
of the
basic principles, however, the term jurisdiction and control is used.
Jurisdiction and control do not express complete rights
towards a particular thing
but only an exercise of power which even has to be specified in each particular case.
A similar interpretation was expressed by Francois.
29
According to him, jurisdiction
includes only the rights expressly specified in particular cases. Francois view is confirmed
by various international treaties and other documents where jurisdiction is always
explicitly specified in detail.We can encounter
exclusive
jurisdiction
,
national jurisdiction
,
civil jurisdiction
,
criminal jurisdiction,
etc. Jurisdiction is restricted by sovereignty and
cannot therefore be beyond the framework of state sovereignty. Mann
30
believes that
jurisdiction is no more than a specific or accompanying aspect of sovereignty.
The exercise of jurisdiction is based on various titles.
There can be jurisdiction based
on
territory,
on
nationality of persons
or on object
registration
.
In relation to
outer
space, jurisdiction based on territory cannot be used;
it is necessary to use different titles.
Jurisdiction over objects in outer space in the sense of Article VIII of the Space Treaty
25
See Lauterpacht, H.
Sovereignty Over Submarine Areas
. The British Yearbook of International Law
1950, Oxford University Press, London, New York, Toronto, 1951, p. 389.
26
See Lachs, M. Recueil des Cours 1964 (III), p. 58.
27
See UN Document A/AC.105/C.2/L.1.
28
See Czech translation of the Declaration in: Potočný, M., Ondřej, J. Dokumenty mezinárodního práva
III, Karolinum, Praha, 1997.
29
See Francois, J.P.A. in: Yearbook of International Law Commission, 1950, Volume I, p. 227.
30
See Mann, F.A.
The Doctrine of Jurisdiction in International Law
. Recueil des Cours, 1964-I, p. 16.