The following is the first guest post written by Nicolas Boring, Foreign Law Specialist for France and French-speaking countries in the Law Library’s Global Legal Research Center. Nicolas joined the Law Library family in September 2013. For more on Nicolas, you can read his recent In Custodia Legis interview.
A couple of weeks ago, I was asked to do some research on the history of subsoil rights in France. It turned out to be a very interesting assignment, which really highlighted the fact that laws are generally the product of specific social, political and historical circumstances.
Article 552 of the French Civil Code states the broad principle that “ownership of land gives rise to ownership of things above and below that land.” But that same article goes on to place a limit to this principle: a landowner may do what he/she wishes with whatever is beneath his/her land, except if other laws and regulations state otherwise. Article L111-1 of the Code Minier (the French Mining Code) gives a list of specific resources which are governed by a special legal regime and can only be exploited under a concession by the State under article L131-1 of the same Mining Code. These specific undersoil resources are therefore, as a practical matter, controlled by the State.
The resources listed in article L111-1 of the Mining Code list include coal, bauxite, iron, cobalt, copper, zinc, mercury, silver, gold, sulfur, phosphates, and many others. Though I am not an expert in such things, it seemed to me that all the items on that list might be considered as “strategic resources” to one degree or another. And looking at the history of these laws made it obvious that, indeed, these resources were listed because of their industrial and military importance.
Back in the Middle Ages, most mines were controlled by local lords rather than by the king. As France gradually moved away from feudalism and towards a more centralized state, the kings of France tried to increase their control (p. 163) over mining operations. The aim was to simultaneously increase the power of the throne (both through the revenue that these mines brought, and through access to militarily significant resources), and decrease the power and independence of local potentates.
Then came the French Revolution. The tension between central and local power which had existed during the Ancien Régime combined with the ideological struggles of the time. Specifically, mining rights became one of several fronts in the fight between advocates of the supremacy of the Nation, and advocates of absolute private property. A sort of compromise between these two factions led to the Law of the 28th of July, 1791, which declared (p. 169) that mines were “at the disposal of the Nation, only in the sense that these substances can only be exploited with her consent and under her supervision,” yet also declared that landowners always had priority in obtaining this consent. Specifically, landowners had an exclusive right (p. 186) to exploit subsoil resources when these were less than 100 feet under the surface, and had priority in obtaining a state concession if they wanted to mine deeper under their land.
This arrangement caused (p. 201) the proliferation of shallow, unproductive mines operated by landowners, who often had no mining expertise. This was particularly problematic because the French military was now busy fighting the Napoleonic Wars, and needed (p. 169-170) large quantities of iron, lead, copper, and other resources for military production. It therefore became urgent to reform the French mining system to make it more efficient, and that is what the Napoleonic regime did in 1810.
In what amounts to a reversal of the 1791 scheme, the reform of 1810 gave theoretical ownership of subsoil resources to the surface landowner, but gave actual and practical control to the State. Indeed, under the Law of the 21st of April 1810, the State would choose the concessionary for a mine on the basis of ability (both material and technical) to operate that mine. (arts. 5 & 14) The landowners whose property lay over a potential mine could apply to be that concessionary, but they no longer had priority over other potential candidates, and they only had a right to a modest indemnity or license fee if someone else ended up with the mining rights. (art. 43) The granting of a concession actually created a new property, distinct from the property of the surface land (art. 19), and the concessionaries obtained “perpetual ownership” of this subsoil property, which could be transferred or mortgaged. (art. 7) They were, however, subject to supervision from government mine inspectors and could see their ownership rights revoked. (arts. 47-50)
The modern French Mining Code is longer and has grown more complex, but it is essentially based on this 1810 law. Two centuries later, anyone operating or hoping to operate a mine in France must follow rules that were primarily designed to ensure that Napoleon’s armies would have the resources to fight his wars.
The following materials from the Library of Congress’s collection were used in preparing this post:
- Le Code civil et les droits de l’homme (L’Harmattan, 2005).
- Histoire du Droit des Biens (Paris: Economica, 2008).