Introduction
The first thing we think of when we speak of estate or property is in relation to wealth, since it is intended to directly or indirectly satisfy the needs of the individual. History records the struggles for recognition of the right to public property, a concept that has undergone major transformations and faces great challenges in today’s context due to its economic, social and environmental conditions.
Mining resources are a veritable treasure trove that has marked the history of mankind. They represent a major development challenge. In most of the world’s countries, and particularly in resource-rich Africa, they are the main source of revenue and the largest contributor to the national economy.
In Guinea, for example, mining represents a significant part of the Guinean economy, generating over 80% of exports, providing 20 to 25% of government revenue, and constituting the source of over 10,000 direct jobs. However, countries with mining potential are generally the poorest in the world, so they lack the economic, financial and technical capacities and the technological and managerial know-how to develop the mineral resources contained in the soil and subsoil of their territories.
It should be noted that, on the one hand, most of these countries have abundant mineral resources, but their populations live below the poverty line. On the other hand, they are the envy of large multinational mining companies ready to do anything to extract maximum profit from the exploitation of these mineral riches.
Finally, in order to meet the challenges of sustainable development, these countries are obliged to create favorable conditions for investors to exploit mineral resources through mining, processing and marketing.
So, from a raw state before their development, these mining resources become extracted substances after their development.
This raises the essential question of their appropriation:
- On the one hand, States, as holders of mineral resources, have a sovereign and permanent right over the mineral resources contained in their soils and subsoils. This right is recognized by United Nations General Assembly Resolution 1803 (XVII) of December 14, 1962, which enshrines the permanent sovereignty of States over natural resources and stipulates that this sovereign right must be exercised in the interests of the populations of the States in question, so that the profits from mining operations must be shared between foreign investors and the host States, without infringing the sovereignty of the said States; and
- On the other hand, the holders of mining rights whose material, financial, technical, technological and managerial contribution has enabled the development of mining resources.
Guinea, a mining country, faces the same question. It has even been described by some observers as a “geological scandal” due to the abundance and diversity of its mineral resources. Yet, despite this abundance, Guinea’s population is one of the poorest in the world. The low purchasing power of Guineans, difficult access to education and insufficient or almost non-existent basic infrastructure make the country and its people one of the poorest countries and populations on the planet. One only has to look at the discrepancy between the high level of natural wealth, the reality of poverty and the low level of development to realize the obviousness of the Guinean paradox and the curse of natural resources that hardly spares the country and its inhabitants.
This situation raises the question of whether mining resources really belong to the Guinean state, and whether the latter actually exercises the attributes of permanent sovereignty over the natural resources of its soil and subsoil.
Similarly, between the State and the holders of mining rights, it is worth clarifying the question of ownership of mining resources to determine the share of rights held by each party. This is all the more necessary as mining does not benefit the population.
Indeed, the State’s lack of autonomy to define the best way to benefit economically from these resources, due to the undeniable influence of international economic policies and the State’s political model, and the crying lack of financial and human resources and of technical, technological and managerial know-how, force the State to deal with investors, often and generally foreign, to exploit its mineral resources.
A clear distinction between the ownership of mineral resources not yet mined (or extracted) or on the surface, and that of substances extracted by holders of mining or quarrying permits or authorizations, is therefore legally understandable in terms of the effects of titles issued by the State to qualified persons involved in mining activities.
The question is who owns the mineral resources, and who does in Guinea in particular?
The answer to this question should force us to distinguish between :
- Ownership of mineral resources before and after development (I) and
- Ownership of mineral resources in Guinea (II).
