Экзамен зачет учебный год 2023 / Resta, Systems of Public Ownership

protection. If the inclusion of a certain thing in the category of public, private or common property is not dictated by the ontology of things, but by an artificial and contingent decision of the legal system (see above, § 4), it should take into account another critical issue. Namely, it should consider the problem of the correction of any allocative mistake, initial or later arisen, by providing a mechanism for assets to move from one regime of property rights to another (Epstein, 1987: 412). Indeed, the issue of transfer from public – taking this notion in its broadest meaning, including both the public as state and the public as citizenry – to private, has been historically one of the most controversial within the whole field of public property. Cases like the one concerning the attempted sale of Villa Borghese (a beautiful park situated in the centre of Rome, owned by Prince Borghese, and used for centuries by the people for recreational aims) (Di Porto, 2013: 52-59), 32 are not isolated examples. And indeed, the very theory of the domaine public arose in the 19th century as a result of the need to ensure a strengthened protection for things devoted to public use and considered the legacy of the nation (Gaudemet, 2008: 40-41). Nowadays, the problem of transfer from public to private has acquired an unprecedented significance, due to the influence of political and financial factors, which make the divestment of public ownership – included things devoted to public use, such as natural resources and cultural property – a compelling need for many states (Barak-Erez, 2010: 493; Rose, 2006: 691-693).

7.1. THE MODEL OF INALIENABILITY

The first answer to the problem of transfer would be to delineate a certain set of things that are absolutely withdrawn from legal transactions, and namely from alienation.

Land, typically, has been conceived of by traditional societies as an inalienable good. In African customary laws, for instance, it has a sacred dimension and cannot be alienated without the consent of the group (Kouassigan, 1982b: 49-52; Sacco, 1995: 83; Mattei, 1990: 22, 24). Another important example of inalienable entitlements is constituted by ecclesiastical property, which is at the roots of the western idea of inalienability of the crown and of its patrimony (Kantorowicz, 1954: 500-502). As observed by Michelle Salitot, it would not be inconsistent to regard the modern conception of the inalienability of public ownership as the result of the long-lasting process of laicisation of the sacred (Salitot, 1998: 232).

Today, the rule against alienation of public property is enshrined in several constitutions, mainly with regards to natural resources, cultural property and other assets commonly included in the civilian notion of domaine public. Particularly relevant, from this point of view, are the most recent Latin-American constitutions, such as the 2008 Constitution of Ecuador (art. 1: “non-renewable natural resources of the state’s territory belong to its inalienable and absolute assets, which are not subject to a statute of limitations”), or the 2009 Constitution of Bolivia (art. 99: “The cultural patrimony of the Bolivian people is inalienable, and it may not be attached or limited […] The natural, architectural, paleontological, historic, and documentary riches, and those derived from religious cults and folklore, are cultural patrimony of the Bolivian people, in accordance

32 Court of Cassation of Rome, 9-3-1887, 12 Foro it., I, 397 (1887).

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with the law”). Further examples may be found in other constitutional documents, like the Constitution of the Republic of Philippines. 33

The inalienability of the public domain rests on a complex of considerations, which have to do, mainly, with the need to protect the integrity of natural resources and cultural heritage to the benefit of present and future generations. However, the old idea of inalienability of sovereignty seems to re-emerge in a peculiar, albeit important case, concerning aboriginal land rights. As remarked by Kent McNeil, it is a central tenet of the law of Canada, Australia, New Zealand, and the United States that aboriginal title to land is inalienable, other than by surrender to the crown or the legitimate political authority of the land (McNeil, 2002: 475). Historically, such a rule has been justified with the need to protect aboriginal people from unscrupulous speculators (Weaver, 2003: 55, 152; Banner, 2005: 49). However, another convincing argument refers to the communal and political aspect of aboriginal title. Namely, once ascertained that land cannot be equated with private property, since it implies the existence of a community authority which is governmental in nature, it is easily understandable why it can only be transferred to an entity, like the crown, that has governmental capacity and exercises powers of sovereignty (McNeil, 2002: 496). This conclusion is closely related to the history of colonization by the British Empire: by barring the transfer of property interests from natives to individual settlers, governments could press their sale to the state and exercise a sort of pre-emptive rights based on sovereignty (Weaver, 2003: 137).

7.2. EX ANTE ADMINISTRATIVE CONTROL

In the previous paragraph we have seen some instances of constitutional bans on alienation. However, this seems to be quite uncommon. It is not that frequent for constitutional documents to delineate a sphere of public property inherently withdrawn from alienation. Consistently, constitutional courts have generally refrained from reading into the Constitution implicit limits to alienation, leaving the decisions on the scope of privatization to the public arena (Bernard, 2009: 121; Barak-Erez, 2010: 494).

This does not mean that, in the absence a constitutional provision, transfers from public to private are possible under any conditions. Many legal systems have introduced various kinds of statutory limits, which have an impact on the scope and the effects of such shifts from one category to another.

The French model of domanial duality, borrowed by many legal systems worldwide, represents one of the clearest examples. The very rationale of such a mechanism rests on the need to provide an adequate and effective protection of property dedicated to a public use (Chretien, 2009: 319-320). Things included in the domaine public are subject to an exorbitant legal regime, of a public law nature, which has the following features: public things cannot be attached in execution proceedings (art. L2311-1 GCPPB) and are not subject to prescription (art. L3111-1 GCPPB); above all, although their management can be outsourced under specific conditions to public and private entities (Chamard-

33 Art. 12, sect. 2, of the 1987 Constitution of the Republic of the Philippines provides as follows: “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated”.

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Heim, 2011: ***), they cannot be alienated – any derogatory agreement would be null and void – as long as they are still devoted to a public use (art. L3111-1 GCPPB) (Gaudemet, 2008: 41). This does not imply that any transfer of such things is banned, even when they lost their usefulness for the public interest. On the contrary, a peculiar procedure governed by administrative law controls the divestment of property included in the public domain. According to arts. L2141-1 to L2141-3 GCPPB, in order to lawfully transfer such property, it is necessary to proceed through two preliminary steps (Chamard-Heim, 2011: 327-329). First, the dedication to direct public use or public service has to be effectively extinguished (désaffectation). Secondly, the competent authority has to ratify such a condition, by modifying the formal classification of the property at issue (déclassement). This is a discretionary administrative act, which is subject to review, albeit to a limited extent, by administrative courts (Chamard-Heim, 2011: 328).

As a result, restraints on alienation tend to operate ex ante. Their effectiveness depends on the ability of the public administration to strike an appropriate balance between the need to efficiently manage public ownership and the citizens’ interest to have the integrity of the public domain protected (also to the benefit of future generations). Although this model has some pros, it is deeply rooted in the statist tradition. The citizens’ involvement in the decision to transfer public property is reduced to a minimum, and the chances to challenge the government’s decision before ordinary courts are inherently limited.

7.3. EX-POST JUDICIAL SCRUTINY

Systems rooted in the common law tradition do away with the distinction between private ownership and public ownership, and namely with the model of domanial duality. Public ownership, as noted above, is in principle subject to the common law and the peculiar features of its legal regime – deriving from the crown immunities and privileges – are mainly related to involuntary transfers (see above, par. 5.3.). By contrast, no general restraints exist as regards alienation. The Crown, or the State, may thus dispose of the property within its domain as it sees fit, subject only to legislative restrictions concerning specific categories of property, like parks or historic monuments (Godin, 2005: 3; Ball, 2006: 10; Chamard, 2004: 170; Dussault and Borgeat, 1989: 15).

This solution might be considered, at a first glance, an efficient one. By making public property alienable, a specific safeguard is put in place against possible mistakes in the initial allocation of things (see above, § 7). Also, by subjecting public property to a private-law regime, its market value is maximized and the risks of mismanagement, deterioration and waste are, at least in theory, reduced (Gambaro, 2012: 309-310). However, if solid reasons exist that explain why some items of property should be preferentially allocated to the public sphere (see above, § 5), an argument can also be made that in some situations governments should be prevented from alienating property held in common for the general public (Epstein, 1987: 418). As the theory of public choices has convincingly demonstrated, administrative decisions are not always made in the public interest, but on the basis of the utilitarian calculus of the individual decisionmaker (Cole, 2010: 252-254). Well-organized political groups have easy access to public bodies and can quite easily obtain net transfers both from the legislature and the government. Indeed, phenomena of capture have been extensively reported by the

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comparative and economic literature on property law and on environmental resources (Cole, 2010: 254; Levmore, 2002: 431). Therefore, valid considerations suggest that the conversion from public to private should not be entirely left to the discretion of the government and be subjected to some form of control.

Whereas France has opted for an ex ante mechanism of control governed by administrative law, the common law tradition, moving from a different institutional framework, has resorted to other devices. Among them is the so-called public trust doctrine. At its core, it provides that certain resources (mainly natural resources, but some would add cultural property and other things dedicated to public use) “are held by the government in a special status — in “trust” — for current and future generations. Government officials may neither alienate those resources into private ownership nor permit their injury or destruction. To the contrary, those officials have an affirmative, ongoing duty to safeguard the long-term preservation of those resources for the benefit of the general public” (Frank, 2012: 667; Merrill, 2011: 78).

The idea that the government holds public property in trust for the people, and therefore that every citizen may invoke its terms to obtain judicial protection against encroachments, has achieved enormous visibility in contemporary land use and environmental law literature (Frank, 2012: 667; Blumm and Paulsen, 2013: 1437; Sand, 2014b: 210; more generally, on the fiduciary theory of sovereignty, see Fox-Decent, 2011: 38). Originally developed in the United States, in the last two decades the doctrine has been increasingly recognized at the international level (Sand, 2014a: 39-41). Common law influenced jurisdictions, like India, Pakistan, Philippines, Uganda, Kenya, Nigeria, South Africa, have enthusiastically embraced such a notion, which in some cases has been assigned, expressly or implicitly, constitutional status (Blumm –and Guthrie, 2012: 741; Bento, 2009: 12; van der Schyff, 2010: 122; Sand, 2014b: 210).

As it is well known, the public trust doctrine has its deep roots in the English common law, and namely in the idea that submerged lands and the tidal waters flowing over them are owned by the King in trust for the public’s rights of navigation and fishing (see above § 6.3). However it did not receive much judicial attention until the 19th century. Only then American courts started to refer more systematically to such a doctrine, which was endorsed by the Supreme Court in the 1892 decision Illinois Central Railroad v. Illinois (Coquillette: 1979: 809; Epstein, 1987: 422). 34 At issue in this case was an act of the Illinois legislature, which granted to the Illinois Central Railroad title to the submerged lands along the shore of Lake Michigan. The Court struck down the grant, holding that the legislature could not permanently alienate such lands, except in the service of the underlying trust purposes.

Originally limited to submerged lands and to waterways, the scope of application of the doctrine was significantly expanded starting with 1970, when Joseph Sax (1970: 473) published an influent article, stressing the need to extend the doctrine to the whole field of natural resources law (Page, 2013: 207). Whereas some American states, like California, Hawaii, Montana and New Jersey, have been particularly responsive, applying the public trust to navigable and non-navigable waters, groundwater, and beaches, other jurisdictions have declined to extend the scope of the doctrine beyond the original boundaries (Merrill, 2011: 78; Frank, 2012: 671-680).

34 Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892).

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The developments in the U.S. triggered an important phenomenon of internationalization of the public trusteeship model ((Blumm and Guthrie, 2012: 759-801; Sand, 2014b: 210). While courts in some common law countries, like Australia and Canada, have been more reluctant to actively endorse it (Hamill, 2012: 368; Sand, 2004: 49), the public trust doctrine has found the most fertile ground in Southeast Asia and in Africa. There, indeed, some of the most obnoxious forms of predatory capitalism have been taking place, menacing the survival of communities and their traditional way of life. Since the exploitation of natural resources has generally been carried out with the agreement of national government or local authorities, the public trust doctrine has been employed by citizens as a tool to subject the decisions of competent public authorities (both the legislature and the executive) to judicial scrutiny. It has somehow contributed, therefore, to the democratization of natural resources decision-making, and ensured a subsidiary technique of environmental protection.

While in Uganda such a doctrine has been invoked to prevent the transformation of the Butamira Forest Reserve into a sugar plantation, 35 and in Kenya the discharge of raw sewage into the Kiserian River, 36 the Indian Supreme Court has frequently referred to the public trust doctrine to protect the environment and the ecology from the most lucrative exploitation plans (Blumm and Guthrie, 2012: 760-765).37 For instance, in

Fomento Resorts & Hotels v. Minguel Martins, 38 it was decided that the construction of hotel facilities on a traditional footpath, which ensured access to a public beach, violated the public trust. In this case the Supreme Court significantly observed:

“The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets” [emphasis added].

The case of India is particularly instructive, not only because it reveals how important is the transnational judicial dialogue as a vector of legal change (US law being

35Advocates Coal. for Dev. & Env’t v. Att’y Gen. (ACODE), Misc. Cause No. 0100 of 2004 (July 11, 2005) (Uganda).

36Waweru v. Republic, (2006) 1 K.L.R. 677, 677 (H.C.K.) (Kenya).

37For instance, in M.C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388 (1996), an activist lawyer challenged in court the decision of the Minister of the Environment and of local government to approve the Span Resort’s project to excavate and reconstruct the riverbed of the Beas River to redirect the river to avoid flooding that threatened a touristic resort. In M.I. Builders Private Ltd. v. Radhey Shyam Sahu, (1999) 6 S.C.C. 464, 466, the Supreme Court enjoined the construction of an underground shopping complex within the Jhandevala park, which was previously approved by the local development authority. In Intellectuals Forum, Tirupathi v. State of A.P. (2006) 3 SCC 549, the same court invoked the public trust doctrine in a matter involving the challenge to the systematic destruction of percolation, irrigation and drinking water tanks in Tirupati town (India).

38Fomento Resorts & Hotels v. Minguel Martins, (2009) I.N.S.C. 100 (India).

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the most significant reference point), but also because it shows how broad the contemporary scope of application of the doctrine is, compared to the original one.

Unlike the ex ante continental (and namely French) approach, the public trust model embodies an ex post mechanism of oversight. French law relies on a modified inalienability rule (domaine public) and invests state authorities with the task of balancing the competing interests involved in the transfer from public to private. By contrast, the common law tradition does not formally recognize a distinction between alienable and inalienable public property, the domaine privé and the domaine public. However, it tends to conceive of certain things, like natural resources, as held in trust by the state for the benefit of current and future generations. This implies a de-centralized control mechanism, based on the recognition of every citizen’s standing to challenge uses of public property incompatible with the terms of the public trust.

This is quite remarkable a development, from two different points of view.

On one hand, a mechanism is put in place, which works as a functional equivalent of the eminent domain clause. Indeed, as Richard Epstein (1987: 417-420) has convincingly argued, the public trust doctrine redresses the imbalance produced by liberal constitutions, which only provide for substantive and procedural safeguards against the forced conversion from private to public, but abstain from regulating the opposite phenomenon. Through such a doctrine a reverse eminent domain clause is in fact created, according to which “no public property may be transferred to private use, without just compensation”, payable to the public at large (Epstein, 1987: 419). Although the public trust cases deal more with aims and effects of proposed transfers than on the element of just compensation, it is interesting to note that the logic highlighted by Epstein is paralleled by French law, which prevents alienations of public property to private subjects at any price below the market value (Chamard-Heim, 2011: 334). This is not an irrelevant matter, given the importance that financial considerations have in motivating public-private partnerships or privatization projects sponsored by powerful corporations (Kaplan, 2012: 139-141).

On the other hand, it dramatically enriches the conception of “public” relevant to public property: not only “the public as governmental authority, whose ability to manage and dispose of trust property is plenary”, but also “the public at large, which despite its unorganized state has property-like rights in the lands held in trust for it—rights that may be asserted even against its own representatives” (Rose, 1986: 739; Page, 2013: 204206). By holding that the citizens have a sort of equitable title to such property, and standing to sue, the common law tradition revives the old republican model of the res publicae in publico usu and the actio popularis, which Jhering unsuccessfully tried to revitalize (Biermann, 2009: 56-58), and which has been almost completely concealed both by the statist tradition and by the ideology of possessive individualism, which took hold on the continent in the 19th century (Di Porto, 2013: 14; see generally Grossi, 1981).

8. SYSTEMS OF PUBLIC OWNERSHIP AND COLONIAL LAW: A DIFFERENT VIEW OF THE CATHEDRAL

Thus far various models of public ownership have been singled out and contrasted. The differences among them are significant, and embedded in the peculiar political and institutional history of each model. Indeed, public ownership is often taken as an

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example of the fields of the law more resistant to harmonisation, and where divergences prevail over convergences (Bell, 1992: 3-4). However, the rigidity of legal institutions is an assumption more easily proclaimed than empirically tested, and which should not be overestimated.

An analysis of the possible convergences might take into account the effect of transnational phenomena, like the transboundary governance of natural resources (Kotzé and Marauhn, 2014), or at a regional level the influence of EU law (Della Cananea, 2009: 305-306), which are narrowing the distance among national models. Another example is constituted by the implementation of the various western systems of public ownership outside Europe, in the colonies throughout the 19th century, up to the end of colonial regimes (and in some cases, beyond them).

Colonial law shows that different legal techniques might be used to produce similar results, and that, conversely, the same legal mechanism, applied in a different context, leads to dissimilar consequences (Sacco, 1988: 503-504; Sacco 1995: 136). In the field of public ownership, the dialectic between the ‘same’ and the ‘different’ is particularly striking, since the geographical and social landscape of the metropolis and the colony, respectively, are far-removed. On the mainland, an established web of property rights included public property, either taken as the ultimate source of all proprietary interests (English model), or as a regime developed incrementally in the interstices of private ownership (Continental approach). In the colony, by contrast, the colonial powers found what they considered a vast ‘open’ space, with a web of customary rights either ‘invisible’ or ‘irrelevant’ under the law of the colonizer, who imposed systems of public ownership instrumental to the colonial aims (settlement, exploitation, ‘civilization’, etc.), and to the suppression of those autochthonous regimes, that are now in various ways recognised by the State as well.

Such a cleavage is not only the source of inconsistencies between the metropolis and the colony in respect to the implementation of the same legal institution (as the example of domaine public in Africa, detailed below, clearly shows), but also of unexpected convergences among different models of public ownership as applied in the various colonization processes (be it the English colonization of Australia, or the Russian colonization of Siberia: see Hepburn, 2005: 49, and Masoero, 2013: 80-86, respectively).

Many analyses have been devoted, for instance, to the experience of Africa. Despite the undeniable peculiarities of each local condition, the common element (which also justifies a general discourse on ‘colonial law’, see Young, 2001: 18-19) is represented by the fact that the land laws implemented in the colony, irrespective of their differences, systematically led to the dispossession of indigenous inhabitants of their land and the imposition of an asymmetrical system of land tenure (McAuslan, 2013: 12). On the one hand western settlers were granted property rights, which where secure and economically valuable; on the other, indigenous inhabitants where treated either as tenants at will of the Crown – as it was famously decided in a 1915 judgement of the Colonial Court in Kenya39 – or as squatters on “vacant land”. In most cases such a result could not have been achieved without the preliminary vesting of land in the colonial government. The connection instituted between imperium and dominium and the

39 Isaka Wainaina wa Gathomo and Kamau wa Gathomo v Murito wa Indangara, Nganga wa Murito and Attorney General (1922-23) 9 (2) KLR 102.

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assertion by imperial powers of title to land is, indeed, a crucial element of the juridical framework of colonialism.

Public law strongly affected private law, giving rise to a sophisticated technique of land management. A whole range of legal theories – law was a veritable technology put in place for the aims of colonizing powers – was employed to justify the exercise of sovereignty and, often consequentially, the acquisition of land (Weaver, 2003: 135). Whereas some of them had the appearance of being consensual in nature (surrender of sovereignty by treaty or acquisition of interests in land by purchase), in other cases they displayed a unilateral exercise of power, as in the hypothesis of discovery, conquest and the occupation of vacant or un-owned land (see the table reproduced in Weaver, 2003: 174-175; Mattei and Nader, 2008: 67). 40 The recourse to one or the other legal form depended on various factors, like the degree of military and political organization of the native populations, the presence of agriculture or other “visible signs of property”, etc. (Rose, 1994: 295; Weaver, 2003: 147-152). So, for example, whereas in Hawaii indigenous ownership was recognized by European and American settlers, who directed their efforts towards convincing local chiefs and kings to sell them the land (Van Dyke, 2008: 11; Rose, 1994: 295), Australia was considered res nullius, susceptible of occupation and appropriation (Banner, 2005b: 95; Weaver, 2003: 135). Clearly, the legal construction of land as “vacant” or “un-owned” rested on the ideological vision of western colonizers, who could not conceive proprietary entitlements that did not correspond to the paradigm of ownership (Rose: 1994: 294-295; Du Plessis, 2011: 48-49; Peters, 2006: 85; Le Roy, 1989, 146-149). Therefore, customary models of land holding, which did not conform to that worldview, and to western theories of historical development (Tuori, 2015: 5-7, 57), were generally labelled as “primitive” and not capable of establishing a valid title to land. Thus, land apparently unoccupied, uncultivated land in particular, like hunting grounds or land allocated for community reserves, was considered a source of waste (Weaver, 2003: 149), and in one way or another fell in the hands of the foreign powers. This gave rise to what Okoth-Ogendo (2002: 1-5) has defined the “tragedy of African commons”. To be sure, today scholarship recognises all the shortcomings of such an approach, in terms of understanding the reality on the ground (see generally Le Roy 2011; Vanderlinden 2008: 71-77).

As regards the techniques employed to translate the basic fact of occupation into recognizable legal forms, they were strikingly similar. Both civil law and common law countries had designed special land law regimes for their colonies. Indeed, as John Weaver (2003: 64) remarked, “throughout the nineteenth century, the most complex legislation in settlement colonies concerned lands”. In most cases, Western countries affirmed the eminent domain over all land not previously “owned” according to Western views (Sacco, 1988: 507; Sacco, 1985: 175).

In the British colonies, the old notion of “crown lands”, together with the feudal conception of the king as paramount lord holding complete ownership over all land (radical title of the Crown: Jessel, 1998: 79), was revitalized and put in service of the colonial project. Indeed, such a mechanism had a clear political dimension and appeared technically well suited for its purposes, since it precluded the enforceability of any alternative property claim (Hepburn, 2005: 53). In particular, it allowed for the top-down

40 On the relationship between the two aspects of the assertion of sovereignty and the acquisition of land, see Banner, 2005: 8.

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creation of property rights through land grants, which were tailor-made in order to further various objectives, such as securing rapid settlement, encouraging productivity, and at the same time preventing speculation and large land holdings (Murdoch, 1984: 550). This approach was generally followed in colonies acquired for purposes of settlement, such as Australia (Hepburn, 2005: 49). As regards the colonisation of countries in Africa, the position was initially different, since they were not part of the Crown’s possessions, but merely protectorates; however, powers over land were gradually expanded through various legal mechanisms and eventually equalled the plenitude of powers exercised by the Crown in the colonies (McAuslan, 2007: 254; Okoth-Ogendo, 2002: 5-6). However, since the new territories never shared with England the historical condition of having been feudal property of the Crown, ad hoc provisions vesting all land in the Crown domain appeared to be necessary (Guadagni, 1978: 16).

For instance, in Kenya, a British protectorate since 1895, a series of legislative enactments and ordinances vested virtually the whole Kenyan territory in the Crown. The underlying assumption – made clear in an official communication by the law officers - was that “the natives of certain regions were ‘practically savages without any proper conception of ownership of land” and therefore “the right of dealing with waste and unoccupied land accrued to the Crown by virtue of its protectorate, since protectorates over territories occupied by savage tribes ‘really involve the assumption of control over all lands unappropriated. Her Majesty might, if she pleased, declare them to be Crown lands or make grants of them to individuals in fee or for any term’” (McAuslan, 2007: 256). The 1901 East Africa (Lands) Order in Council temporarily vested Crown land in the whole of the protectorate in the Commissioner and Consul General; the following year the Commissioner promulgated the Crown Lands Ordinance. Under this ordinance, Africans were regarded as simple occupants of Crown land; land not actually occupied could be sold or leased as “waste or unoccupied” land (McAuslan, 2007: 256; Kanyinga, 2000: 37). The process of disinheritance of Africans from their land was concluded in 1915, when the Crown Lands Ordinance redefined Crown lands so as to include land occupied by native tribes and land reserved by the Governor for the use and support of natives, adding that “such reservation shall not confer on any member of any tribe any right to alienate the land so reserved or any part thereof” (McAuslan, 2007: 257). A similar mechanism was put in place in Uganda, where the British protectorate administration declared most land in the territory Crown land. The Crown Lands Ordinance 1903 granted natives a right to occupy any land, with the exception of urban areas, not granted in freehold or leasehold in accordance with their customary law. However, the Governor could sell or lease such land without reference to the customary occupants of the land (Mugambwa, 2007: 40; Mukwaya, 1953: 16).

Interestingly, the idea of the state’s radical title was not limited to English colonies. In many other countries under European rule, the land law regime was based on a similar principle, despite the fact that the assumption that all land belonged to the Crown (or the State) to the exclusion of any other subject appeared foreign to the civilian mentality. 41 “Through the eyes of a civil lawyer, the private title did not seem to derive

41 An early example of the adoption of the model of the Crown’s radical title is constituted by the occupation of Canada by France, with land grants being made by the King in conformity with the

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from the Crown one, but rather the reverse” (Guadagni, 1978: 15). However, what really mattered was not theoretical consistency, but practical politics.

German colonial law, for instance, introduced the notion of “Kronland” in various legislative enactments (Jahnel, 2009: 257). According to § 1 of the 1895 Act on the creation, occupation and transfer of Crown lands in German East-Africa, 42 as well as to the 1896 Act concerning Cameroun, 43 all land was considered unowned Crown land (herrenlos Kronland), vested in the Empire, with the exception of land already in private ownership, or subject to rights in rem (Ileffe, 1969: 127-128). Since private ownership had to be established by documentary evidence (generally unavailable to native occupants), this had the effect of vesting most land in the occupying state, which then proceeded to make grants to settlers.

In francophone Africa the colonial land law regimes were built in adherence to the peculiar French model of public ownership. Although the French maintained the distinction between the domaine public and the domaine privé (see above § 6.1), which was alien both to German and to English law, the results achieved in French colonies were not substantially different from those prevailing in the German and British ones.

The metropolitan system of public land was initially transposed in Algeria, which was not only the true “laboratory of colonial property” (Bouderbala, 1999: 48), but also – as forcefully denounced by Rosa Luxemburg ([1913] 1951: 380) – the first large-scale experiment of destruction and disruption of communal property for the sake of the establishment of a generalized system of private ownership. Art. 1 of the Land Law Act of 185144 laid down the principle that national domain consists of “domaine public” and “domaine de l’État”. The latter category comprised property owned by the state in its private capacity and it was therefore freely alienable. It included land vested in the previous Muslim government and acquired by France after conquest, as successor to the rights of sovereignty, as well as vacant and unowned lands, as defined according to arts. 538, 539 and 713 of the French civil code (Dareste, 1864: 39-40, 45). The lands of the dey were seized, divided and distributed to the colons; the lands of religious institutions (habous) were seized as well (Stora, 2001: 6; Khalfoune, 2005: 447). The Sénatus-consulte of 186345 declared the tribes “owners of the territories of which they have the permanent and traditional possession” (Stora, 2001: 6). However, this innovation could not overturn the on going process of dismantling tribal ownership in favour of individual land ownership, and indeed the traditional system of land management was largely overcome. As regards the notion of domaine public, its use in Algeria is remarkable for two main reasons. First, the Act of 1851 represents the first legal provision formally recognizing the doctrinal concept of domaine public, as shaped – among the others – by Proudhon (Barckhausen, 1902: 444-445). Second, its implementation in the French colonies was apparently informed to the usual logic of protecting things particularly relevant to the

seigniorial system (Dussault and Borgeat, 1989: 21-22, 38). This example is of only limited interest for modern colonial law, since it dates from the pre-revolutionary period.

42Kaiserliche Verordnung über die Schaffung, Besitzergreifung und Veräusserung von Kronland und über den Erwerb und die Veräusserung von Grundstücken in Deutsch-Ostafrika im allgemeinen. Vom 26. November 1895.

43Kaiserliche Verordnung über die Schaffung, Besitzergreifung und Veräusserung von Grundstücken im Schutzgebiete vom Kamerun. Vom 15. Juni 1896.

44Loi du 16 june 1851 sur la propriété en Algérie (in Dareste, 1864: 19).

45Sénatus-consulte du 22 avril 1863 (in Dareste, 1864: 240).

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