Civil Law treatment of subsurface
José Juan González
Metropolitan Autonomous University
Mexico
Objective
• Analyzing Civil Law system of:
– Subsurface property Vs. innovative uses of
subsurface in Civil Law jurisdicitons
• Particular attention to Latin American regimes
Civil Law Rules Property System in
almost all Latin American Countries
• A legal system built to deal with traditional
uses of subsurface: Minig, oil and gas
explitation.
• Adapatation of:
– Canonical law: property comes from god.
– Spanish Law: Property comes from the King
– Idigenous Law: Property belongs to the Monarch.
Civil Law Vs. Common Law
• Traditiona Differences
– Written and codified vs. uncodified
– Role of judge: less crucial vs more crucial
Different approach in regard to property of natural
resources:
– In Civil Law Property is ruled by:
• CONSTITUTION
• CIVIL CODES
• ADMINISTRATIVE ENVIRONMENTAL AND ENERGY LAWS
Roman Law Maxim: Cuyus est solum
– Constitution frames the basic principles. Definies the National
property of NR. Dominal system and Regalian System)
– Civil codes protect private property (including natural resources.
Accessio System))
– Administrative laws limit private propety under environmental
considerations.
• Fragmentation generates different regimes of property:
– Soil property
– Subsoil property
– Natural resurces property .
• at least Constitution or Laws nationalize a especific natural resource Cuyus est
solum maxim stills aplicable. Colombian Constitution Vs. Mexican Constitution.
• The regime of Public domain in civil law has been slowly built by stablishing
exemptioms to the Roman Law principle
Subsurface legal status
– General trend: Separation between subsurface and natural resources placed into it.
– Mexican Constitution; “Property of natural respurces into the subsoil is vested in the nation”.
– Constitution of Argentina: “ The state owns all natural resources”
– Colombian Constitution: “The State is propietary of subsoil and non- renewable natural
resources resources…” However, no definiton is provided.
Legal status of subsurface in LA
countries
• In civil law this status is defined by
constitutions and laws.
• Case of law (jurisprudence) can not modify
constitution in this regard.
• Unlike to natural resources, the subsurface is
part of the land property (Basements,
undergroud parking lots).
Traditional and New Uses of
Subsurface
• New uses of subsurface Vs. traditional rules (fracturing,
horizontal drilling, carbon storage, etc.)
– the currently in force legal framework is not efficient to
deal with new uses of SS (enviromental impacts and risks)
– New uses generate new legal paradigms: Property of new
subjects (pore space).
– So, new legal principles need to be developed:
• Fragmention of surface
• Different uses of sursurface
• Planning of subsurface uses.
Conclusions
• the subsurface is not yet a subject of legal
protection by itself in Civil Law traditon.
• Fragmentation of property rigths ilustrates that
Cuyus est solum maxim stills applicable to civil
property of subsurface regimes.
• the new uses of subsurface demand a
transformation of civil law
• The new uses of Subsurface could delete the
borders between Civil law and Common Law in
regard property rigths.