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Title and Use (and Usufruct)—An Ancient Distinction Too Oft Forgot

  • L. F. E. Goldie (a1)
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1 “Notice of Discovery and Claim of Exclusive Mining Rights, and Request for Diplomatic Protection and Protection of Investment by Deepsea Ventures, Inc.,” Letter from John E. Flipse, President of Deepsea Ventures, to Henry A. Kissinger, Secretary of State, Nov. 14, 1974, reprinted in 14 ILM 51 (1975) [hereinafter cited as Deepsea Ventures Notice of Discovery and Claim].

2 Pub. L. No. 96-283, 94 Stat. 553 (1980), 30 U.S.C. §1401 et seq., 26 U.S.C. §§4495- 4498 (1982).

3 See, e.g., sec. V, “Some Distinguished Commentators,” infra.

4 5 J. Bentham, Works 92 (Bowring ed. 1843).

5 7 id. at 283.

6 9 id. at 77.

7 Fuller, Legal Fictions (pt. 3), 25 Ill . L. Rev. 877, 907 (1931). For an authority on the beneficial uses of fictions in the evolution of the law, see Maine, H. J., Ancient Law 26-45 (Pollock ed. 1920); and for a more contemporary acknowledgment of their potential viability and utility, see Sir Frederick Pollock’s Note D, id. at 46-47, and Fuller, supra, pts. 1-3, 25 Ill . L. Rev. 363, 513, 877 (1930-31).

8 See, e.g., infra notes 49, 50, and 53 and accompanying text.

9 Buckland, W., A Text-Book of Roman Law 269-70 (3d ed. rev. Stein, Peter 1963).

10 Jolowicz, H., Historical Introduction to the Study of Roman Law 282 (2d ed. 1967) (footnotes omitted). The last sentence of the above quotation was deleted in the third edition, Jolowicz, H. & Nicholas, B., Historical Introduction to the Study of Roman Law 269 (3d ed. 1972).

11 W. Buckland, supra note 9, at 273.

12 Id. See also Milsom, S., Historical Foundations of the Common Law 203 (2d ed. 1981), writing of a 1308 case, in which the Friars Minor of Oxford said “that they claim nothing nisi tantum usum et aisiamentum in keeping with their vows.” Here, so Milsom tells us, usus was not translating oeps, but was rather a right to use and enjoy (in the Roman sense) and hence outside the mainstream of the development of English uses.

In mythology, again, at least as seen through 15th-century eyes, the distinction between ownership and use (in the Roman sense) explains King Arthur’s obligation, at his death, to return Excalibur to “the lonely maiden of the lake.” See Sir T. Mallory, Works, Bk. I, Merlin 35 and Bk. 21, The Day of Destiny 715-16 (Vinaver 2d. ed. 1971).

13 2 Pollock, F. & Maitland, F., The History of English Law 123 (1895).

14 Holdsworth, W., Historical Introduction to the English Land Law 90 (1934) (quoting id. at 145). See also 3 Holdsworth, W., History of English Law 138-51 (3d ed. 1922).

15 S. Milsom, supra note 12, at 101.

16 Salmond on Jurisprudence 293-97 (11th ed. Glanville Williams 1957); see also id. at 110-11 (12th ed. Fitzgerald 1966); and 2 Austin’s Jurisprudence 877-84 (4th ed. Campbell 1879).

17 Treaty of Peace and Friendship, Apr. 11, 1713, France-Great Britain, Art. 13, 27 Parry’s TS 475, 486.

18 Definitive Treaty of Peace, Sept. 3, 1783, Great Britain-United States, Art. III, 48 Parry’s TS 487, 492, 8 Stat. 80, TS No. 104.

19 Convention on Fisheries, Boundary and Restoration of Slaves, Oct. 20, 1818, Great Britain-United States, Art. I, 69 Parry’s TS 293, 294-95, 8 Stat. 248, TS No. 112.

20 See Treaty between the German Reich and the Kingdom of the Netherlands for the Determination of the Working Boundary of the Coal Mines Situated on Both Sides of the Frontier along the River Worm, May 17, 1939, 1939 Staatsblad van het Koninkrijk der Nederlanden No. 30, 199 LNTS 251. Another example is provided by the first two articles of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands relating to the Exploitation of Single Geological Structures Extending across the Dividing Line on the Continental Shelf under the North Sea, 1967 Gr. Brit. TS No. 24 (Cmd. 3254). Those articles provide as follows:

Article 1

If any single geological mineral oil or natural gas structure or field extends across the dividing line and the part of such structure or field which is situated on one side of the dividing line is exploitable, wholly or in part, from the other side of the dividing line, the Contracting Parties will seek to reach agreement as to the manner in which the structure or field shall be most effectively exploited and the manner in which the costs and proceeds relating thereto shall be apportioned, after having invited the licensees concerned, if any, to submit agreed proposals to this effect.

Article 2

Where a structure or field referred to in Article 1 of this Agreement is such that failure to reach agreement between the Contracting Parties would prevent maximum ultimate recovery of the deposit or lead to unnecessary competitive drilling, then any question upon which the Contracting Parties are unable to agree concerning the manner in which the structure or field shall be exploited or concerning the manner in which the costs and proceeds relating thereto shall be apportioned, shall, at the request of either Contracting Party, be referred to a single Arbitrator to be jointly appointed by the Contracting Parties. The decision of the Arbitrator shall be binding upon the Contracting Parties.

One method contemplated as a possible outcome of the negotiations was the unified working of a single resource or deposit, with an apportionment among the parties of the costs and proceeds. To work the deposit in a unified way as the agent state, that state would, in effect, have to be given a usufructuary right over the resources on the other side of the boundary coupled with an obligation to account and to act, generally, in a fiduciary manner. For a fuller indication of this “agent state” model, see Goldie, , The North Sea Continental Shelf Cases—A Ray of Hope for the International Court?, 16 N.Y.L.F. 327, 370 (1970); Goldie, , The Oceans’ Resources and International Law—Possible Developments in Regional Fisheries Management, 8 Colum. J. Transnat’l L. 1, 44-45 (1969).

21 While international arbitral or judicial decisions regarding usufructuary rights are rare, those involving other types of jura in re aliena are quite frequently met with. See, e.g., The Wimbledon, 1923 PCIJ, ser. A, No. 1; Free Zones of Upper Savoy and the District of Gex, 1932 PCIJ, ser. A/B, No. 46; Advisory Opinion on Access of Polish War Vessels to the Port of Danzig, 1931 PCIJ, ser. A/B, No. 43. In this last case, the possibility of a right of anchorage was examined but found not to have been provided in the relevant treaty, the Danzig-Polish Treaty concluded at Paris on Nov. 9, 1920. The Court added: “[T]he relevant decisions of the Council of the League of Nations and of the High Commissioner, do not confer upon Poland rights or attributions as regards the access to, or anchorage in, the port and waterways of Danzig of Polish war vessels.” Id. at 148.

22 Provisional Understanding regarding Deep Seabed Mining, done at Geneva Aug: 3, 1984, reprinted in 23 ILM 1354 (1984) [hereinafter cited as Provisional Understanding].

23 94 Stat. 553 (1980), 30 U.S.C. §1401 (1982).

24 GA Res. 2574D (XXIV), 24 UN GAOR Supp. (No. 30) at 11, UN Doc. A/7630 (1969).

25 GA Res. 2749 (XXV), 25 UN GAOR Supp. (No. 28) at 24, UN Doc. A/8082 (1970) [hereinafter cited as Declaration of Principles]. Article 1 provides: “The sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as the area), as well as the resources of the area, are the common heritage of mankind.”

26 See, e.g., United Nations Charter of the Economic Rights and Duties of States, GA Res. 3281 (XXIX), 29 UN GAOR Supp. (No. 31) at 50, UN Doc. A/9631 (1974). See also (1) International Development Strategy for the Second United Nations Development Decade, GA Res 2626 (XXV), 25 UN GAOR Supp. (No. 28) at 39, UN Doc. A/8028 (1970); (2) Declaration on the Establishment of a New International Economic Order, GA Res. 3201 (S-VI), S-6 UN GAOR Supp. (No. 1) at 3, UN Doc. A/9559 (1974); (3) Programme of Action on the Establishment of a New International Economic Order, GA Res. 3202 (S-VI), S-6 UN GAOR Supp. (No. 1) at 5, UN Doc. A/9559 (1974); (4) Development and International Economic Co-operation, GA Res. 3362 (S-VII), S-7 UN GAOR Supp. (No. 1) at 3, UN Doc. A/10301 (1975); Preparations for an International Development Strategy for the Third United Nations Development Decade, GA Res. 33/193 (XXXIII), 33 UN GAOR Supp. (No. 45) at 121, UN Doc. A/33/45 (1979). See also GA Res. 32/174 (XXXII), 32 UN GAOR Supp. (No. 45) at 107, UN Doc. A/32/45 (1977).

27 For the intendment of this term as indicating the vesting of a zone (outer space, the deep seabed) and its resources in the world community, acting through the agency of an administrative authority having exclusive control over access, and of ending any regime of free and equal access, see Friedheim, , Arvid Pardo, The Law of the Sea Conference, and the Future of the Oceans, in Managing Ocean Resources: A Primer 149, 154 (1979), where he writes: “Professor Pardo’s preference for central or international closure is clear and unequivocal.” He reinforces this assertion with a quotation from Dante’s De Monorchia.

28 See, e.g., statements by the Group of Legal Experts on the Question of Unilateral Legislation to the following effect:

The principles of law laid down in resolution 2749 (XXV) form the basis of any international regime applicable to the Area and its resources. . . .

. . . .

Consequently, any unilateral act or mini-treaty is unlawful in that it violates these principles, for the legal regime, whether provisional or definitive, can only be established with the consent of the international community as the sole representative of mankind and in conformity with the system determined by the international community.

. . . .

It should be stressed that no investor would have any legal guarantee for his investments in such activities, for he would likewise be subject to individual or collective action by the other States in defense of the common heritage of mankind, and no purported diplomatic protection would carry any legal weight whatsoever.

Letter from the Group of Legal Experts on the Question of Unilateral Legislation to the Chairman of the Group of 77, Apr. 23, 1979 [hereinafter referred to as Manifesto], UN Doc. A/CONF.62/77 (1979), 11 Third United Nations Conference on the Law of the Sea, Official Records 80 [hereinafter cited as Off. Rec.]. See also Asian-African Legal Consultative Committee, Study on the Revised Single Negotiating Texts (Kuala Lumpur 1976), where the following statement received agreement:

The only way which this concept [i.e., the status of the hard mineral resources of the deep ocean floor beyond the territorial jurisdiction of any state as “the common heritage of mankind”] can be translated into practice would be to treat the resources of the area as being under the joint undivided ownership of all nations. . . . If this is so, then the activities in the area have necessarily to be under [the] effective control of the international authority acting on behalf of the entire international community and activities by individual States or their nationals cannot be permitted except when doing so on behalf of the authority.

The thesis of this assertion was rejected in the Statement by the Representative of the United States of America in Response to the Statement by the Chairman of the Group of 77 Contained in Document A/CONF.62/89, UN Doc. A/CONF.62/93 (1979), 12 Off. Rec. at 111. See further Letter dated Aug. 29, 1980 from the Chairman of the Group of 77 to the President of the Conference Transmitting a Document Entitled “Legal Position of the Group of 77 on the Question of Unilateral Legislation concerning the Exploration and Exploitation of the Seabed and Ocean Floor and Subsoil Thereof beyond National Jurisdiction,” UN Doc. A/CONF.62/106 (1980), 14 Off. Rec. at 111. See finally the response thereto by the United States: Letter dated 30 July 1980 from the Representative of the United States of America to the President of the Conference transmitting a statement delivered to the 130th plenary meeting on 28 July 1980, UN Doc. A/CONF.62/103 (1980), 14 Off. Rec at 109.

29 That vote was as follows: 108 in favor, 0 against, 14 abstaining, 0 absent.

30 Pinto, , Statement, in Alternatives in Deepsea Mining 13 (Allen, S. & Craven, J. eds. 1979).

31 See Goldie, , A Note on Some Diverse Meanings of the “Common Heritage of Mankind,” 10 Syracuse J. Int’l L. & Com. 69 (1983).

32 Supra note 22.

33 Jennings, , The United Slates Draft Treaty on the International Seabed Area: Basic Principles, 20 Int’l & Comp. L.Q. 433, 439 (1971).

34 See note 28 supra.

35 On the necessity of state practice in relation to the possibility of characterizing some resolutions of the United Nations General Assembly as customary international law, see Goldie, , International “Constitutionality”: State Sovereignty and the Problem of Consent, in Legal Change: Essays in Honour of Julius Stone 316, 321-24 (Blackshield ed. 1983).

36 See Goldie, supra note 31, at 78-86 and 91-105.

37 J. Stone, Conflict Through Consensus 172 (1977).

38 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, in The Law of the Sea: United Nations Convention on the Law of the Sea (UN Pub. Sales No. E.83.V.5).

39 See note 22 supra.

40 For a selection of criticisms of this legislation and a response thereto, see Goldie, , A Selection of Books Reflecting Perspectives in the Seabed Mining Debate: Part I, 15 Int’l Law. 293, 297-302 (1981), and the materials therein cited.

41 Done Jan. 27, 1967, 610 UNTS 205, 18 UST 2410, TIAS No. 6347 (entered into force Oct. 10, 1967) [hereinafter cited as Principles Treaty].

42 Adopted and opened for signature by GA Res. 34/68, Dec. 5, 1979, 34 UN GAOR Supp. (No. 46) at 77, UN Doc. A/34/46 [hereinafter cited as Moon Treaty].

43 See, e.g., Principles Treaty, supra note 41, Arts. X, XIII.

44 See also Moon Treaty, supra note 42, Art. 8.

45 See note 27 supra and text accompanying notes 27-30.

46 Supra note 25.

47 For a discussion of this Roman law concept as elucidating one interpretation of the “common heritage” doctrine, see text at notes 29 and 30 supra.

48 Supra note 22.

49 Schachter, O., Sharing the World’s Resources 55 & footnote (1977).

50 Sohn, L. & Gustafson, K., The Law of the Sea in a Nutshell 174 (1984). There are, of course, numerous other writings to the same confusing and misleading effect, but of less persuasive character than those cited from the two distinguished publicists quoted in the text. Some, indeed, while paying passing lip service to the distinction between title and use, proceed with a confused review that is premised on the nonexistence, or at least the nonmeaningful existence, of the distinction. See, e.g., Burton, , Freedom of the Seas: International Law Applicable to Deep Seabed Mining Claims, 29 Stan. L. Rev. 1135 (1977).

51 See note 1 supra.

52 See note 40 supra and accompanying text.

53 Goldie, , Book Review, 16 Colum. J. Transnat’l L. 555, 561 (1977).

54 Note 1 supra, 14 ILM at 53.

55 See Webster’s Third International Dictionary of the English Language (Unabridged) 1438 (1971), where the following definition is given: “Miner’s right: a license given to Australian miners to explore for and extract a mineral (as gold)”; and Black’s Law Dictionary 897 (special deluxe 5th ed. 1979), where it states: “Mineral right. An interest in minerals in land. A right to take minerals or to receive a royalty.”

56 94 Stat. 553, 555 (1980), 30 U.S.C §1402 (1982).

57 94 Stat. 553, 558 (1980), 30 U.S.C. §1412 (1982).

58 Feb. 9, 1920, 43 Stat. 1892, TS No. 686, 2 LNTS 7, 18 AJIL Supp. 199 (1924). The nine signatory states were: the United States, Great Britain, France, Italy, Japan, Denmark, the Netherlands, Norway and Sweden. Russia protested against this agreement, as it had not been consulted despite its historic claims to the archipelago. In 1924, however, Russia informed the Norwegian Government that it would recognize Norway’s sovereignty over Spitzbergen. Letter from the Norwegian Minister (Bryn) to the Secretary of State, Mar. 20, 1924, [1924] 1 Foreign Relations of the United States 1.

59 A history of these mining claims is given in Goldie, , A General International Law Doctrine for Seabed Regimes, 7 Int’l Law. 796, 807-11 (1973). See also Goldie, , Mining Rights and the General International Law Regime of the Deep Ocean Floor, 2 Brooklyn J. Int’l L. 2 (1975). In addition, a selection of key documents from the National Archives of the United States that relate to the U.S. interest in Spitzbergen are held on file by the author.

60 Goldie, , Symposium, Mining the Deep Seabed: A Range of Possibilities (Symposium), Response to Lawrence Herman, 6 Syracuse J. Int’l L. & Com. 186, 187 (1978-79) [hereinafter cited as Symposium]. See also Goldie, supra note 40, at 293, 330-31.

61 Annual Message of the President to Congress, Dec. 7, 1909, 1909 Foreign Relations of the United States at ix, xiii (1914 ed.).

62 Those provisions read as follows:

Article 2

Ships and nationals of all the high contracting parties shall enjoy equally the rights of fishing and hunting in the territories specified in Article 1 and in their territorial waters.

Norway shall be free to maintain, take or decree suitable measures to insure the preservation and, if necessary, the re-constitution of the fauna and flora of the said regions, and their territorial waters; it being clearly understood that these measures shall always be applicable equally to the nationals of all the high contracting parties without any exemption, privilege or favor whatsoever, direct or indirect to the advantage of any one of them.

Occupiers of land whose rights have been recognized in accordance with the terms of Articles 6 and 7 will enjoy the exclusive right of hunting on their own land; (1) in the neighborhood of their habitations, houses, stores, factories and installations, constructed for the purpose of developing their property, under conditions laid down by the local police regulations; (2) within a radius of 10 kilometres round the headquarters of their place of business or works; and in both cases, subject always to the observance of regulations made by the Norwegian Government in accordance with the conditions laid down in the present article.

Article 6

Subject to the provisions of the present article, acquired rights of nationals of the high contracting parties shall be recognized.

Claims arising from taking possession or from occupation of land before the signature of the present treaty shall be dealt with in accordance with the annex hereto, which will have the same force and effect as the present treaty.

Article 7

With regard to methods of acquisition, enjoyment and exercise of the right of ownership of property, including mineral rights, in the territories specified in Article 1, Norway undertakes to grant all nationals of the high contracting parties treatment based on complete equality and in conformity with the stipulations of the present treaty.

Expropriation may be resorted to only on grounds of public utility and on payment of proper compensation.

18 AJIL Supp. at 201, 203.

63 1 The Compact Edition of the Oxford English Dictionary 451 (1971).

64 Id.

65 See note 55 supra and notes 66-68 and accompanying text infra.

66 See, e.g., letter from Peirce (U.S. Minister to Norway) to Norwegian Minister of Foreign Affairs Irgens, Apr. 30, 1910, 2 American Legation in Christiania, Spitzbergen Correspondence, Department of State Record Group 59; Note verbale from Department of State to Norwegian Foreign Minister, Jan. 13, 1911, Case No. 850d.00/154, 2 American Legation in Christiania, Spitzbergen Correspondence, Department of State Record Group 84.

67 This technical common law term arose in the U.S. diplomatic correspondence. See letter from Third Assistant Secretary Peirce at the American Legation, Christiania, to Secretary of State Knox, July 30, 1909, and Diplomatic Protest of same date from U.S. Legation to the Minister of Foreign Affairs of Norway, Transaction No. 3746, 346 Numerical File, Department of State Record Group 59. This writer suggests that, despite appearances to the contrary, the Department of State did not intend the term to be treated with all the technicalities of the common law concept of trespass. To have done so would have resulted in unnecessary confusion. Trespass quare clausum fregit might be seen as inapplicable, since miners’ rights are generally viewed as jura in re aliena, not jura in re propria. Technically, the trespass would be de bonis asportatis. But this, too, presents difficulties. Hence, no more appears to be intended than the traditional common language or even the biblical sense of the word, not the legalistic remedy of the old common law writ system.

68 Note verbale from Secretary of State to Norwegian Minister, Jan. 14, 1911, 2 American Legation in Christiania, Spitzbergen Correspondence, Department of State Record Group 84.

69 Nielsen, , The Solution of the Spitzbergen Question, 14 AJIL 232, 234-35 (1920). See also Lansing, , A Unique International Problem, 11 AJIL 763, 769 (1917), where the author (later Secretary of State) expressed the following point of view:

In these circumstances a real right, in the common acceptance of the term, cannot exist in Spitzbergen. Restrictions upon the use and occupancy of land [there] must not depend upon the government’s having control over the land used or occupied, but upon control over the persons who might freely occupy and use it if not restrained in their acts. The result of control in both cases would be almost, if not quite, identical, although the exercise of control would arise from principles entirely different. The essential feature of ownership is the exclusion of all others from the use and enjoyment of the thing owned. This is equally true of personal and real property. Ownership in the case of land in Spitzbergen could not, therefore, exist. All persons cannot be excluded. Only those persons could be excluded whose governments have conferred upon the insular government the right to exclude them. Exclusive use and occupancy is lacking, and so land in Spitzbergen cannot, in the true sense, be owned.

If, however, the governments of the world should with substantial unanimity agree that their respective nationals might by direction of the government formed by them for Spitzbergen as their common agent be excluded from the occupancy and use of land unless specially privileged to do so, the effect would be similar to that resulting from ownership, although it would lack the permanency of a right based on territorial sovereignty, for it would be liable to the invasion of nationals of a Power which had not conferred any portion of its political sovereignty upon the government established. In the case of ownership, the right of exclusion is complete and is derived from exclusive control of the land; in the case of the right acquired in Spitzbergen, the right of exclusion would be incomplete and would be derived from the delegated power to control persons of certain nationalities who might otherwise enter upon the land.

70 See text at note 61 supra.

71 See text at note 68 supra.

72 See note 50 supra and accompanying text. This writer’s imaginary dialogue, in his Comment, Customary International Law and Deep Seabed Mining, 6 Syracuse J. Int’l L. & Com. 173, 179 (1978-79), was as follows:

The practical men who established, and bought and sold, and made money out of their mining tracts on Spitsbergen took a different view of their rights from that of the positivists. They were guided by the utility of internalizing the externalities of taking coal from economically-sized tracts. Accordingly, before 1920 they established a regime whose basic agreement (“social contract”) may be summarized as follows:

“This is my tract because I am working it.”

“That is your tract because everybody is working theirs the way you and I are working our separate tracts.”

“That other has no tract, he is stealing.”

“If he operates outside the regime then their governments will speak to his.”

“If their governments refuse to speak or if his neglects the representations of theirs will the game be at an end?”

“That is a matter of choice, every legal order can be put to an end by agreement or be violently overthrown.”

The power of a legal order to enforce or protect rights may be a social necessity, but it is not a legal or logical necessity. The legal order itself is, after all, the arrangement whereby rights can be created or distributed. The question of enforcement is simply not one of validity, but one of effectiveness [footnotes omitted].

This writer also pointed out, id. at 178-79 n.15, that writers such as Burton are, in effect, the prisoners of their own definitions. See the following passage from that footnote:

The question of determining the existence of property rights depends on the definition of property, and of the legal order establishing that definition, a language game. If a person stipulates an Austinian [i.e., territorialist] definition of property he will deny the existence of property outside the existence of the Austinian order—the sovereign state as the premise of laws. But the conclusion is tautologous: it is inherent in the premise if he accepts some other definition, . . . the sovereign state may not be essential.

73 Burton, supra note 50.

74 Id. at 1146 n.44.

75 Id.

76 640 F.2d 560 (5th Cir. 1981).

77 For example, the principle of “shared benefits” is reflected in sec. 403 of the Deep Seabed Hard Mineral Resources Act, 94 Stat. 584 (1980), 30 U.S.C. §1472 (1982), which provides for the “establishment” of a “Deep Seabed Revenue Sharing Trust Fund.”

* This paper was presented as a lecture at the Instituto di Diritto Internazionale, “D. Anzilotti,” University of Pisa.


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