Robert Gilman
The Idea Of Owning Land
An old notion forged by the sword
is quietly undergoing a profound transformation
ID: 198412210004
One of the articles in Living With The Land (IC#8)
Originally published in Winter 1984 on page 5
Copyright (c)1985, 1997 by Context Institute
HOWEVER NATURAL “owning” land may seem in our culture, in the long sweep of human existence, it is a fairly recent invention. Where did this notion come from? What does it really mean to “own” land? Why do we, in our culture, allow a person to draw lines in the dirt and then have almost complete control over what goes on inside those boundaries? What are the advantages, the disadvantages, and the alternatives? How might a humane and sustainable culture re-invent the “ownership” connection between people and the land?
These questions are unfamiliar (perhaps even uncomfortable) to much of our society, for our sense of “land ownership” is so deeply embedded in our fundamental cultural assumptions that we never stop to consider its implications or alternatives. Most people are at best only aware of two choices, two patterns, for land ownership – private ownership (which we associate with the industrial West) and state ownership (as in the Communist East).
Both of these patterns are full of problems and paradoxes. Private ownership enhances personal freedom (for those who are owners), but frequently leads to vast concentrations of wealth (even in the U.S., 75% of the privately held land is owned by 5% of the private landholders), and the effective denial of freedom and power to those without great wealth. State ownership muffles differences in wealth and some of the abuses of individualistic ownership, but replaces them with the often worse abuses of bureaucratic control.
Both systems treat the land as an inert resource to be exploited as fully as possible, often with little thought for the future or respect for the needs of non-human life. Both assume that land ownership goes with a kind of exclusive national sovereignty that is intimately connected to the logic of war.
In short, both systems seem to be leading us towards disaster, yet what other options are there?
The answer, fortunately, is that there are a number of promising alternatives. To understand them, however, we will need to begin by diving deeply into what ownership is and where it has come from.
THE HISTORICAL ROOTS
Beginnings Our feelings about ownership have very deep roots. Most animal life has a sense of territory – a place to be at home and to defend. Indeed, this territoriality seems to be associated with the oldest (reptilian) part the brain (see IN CONTEXT, #6) and forms a biological basis for our sense of property. It is closely associated with our sense of security and our instinctual “fight or flight” responses, all of which gives a powerful emotional dimension to our experience of ownership. Yet this biological basis does not determine the form that territoriality takes in different cultures.
Humans, like many of our primate cousins, engage in group (as well as individual) territoriality. Tribal groups saw themselves connected to particular territories – a place that was “theirs.” Yet their attitude towards the land was very different from ours. They frequently spoke of the land as their parent or as a sacred being, on whom they were dependent and to whom they owed loyalty and service. Among the aborigines of Australia, individuals would inherit a special relationship to sacred places, but rather than “ownership,” this relationship was more like being owned by the land. This sense of responsibility extended to ancestors and future generations as well. The Ashanti of Ghana say, “Land belongs to a vast family of whom many are dead, a few are living and a countless host are still unborn.”
For most of these tribal peoples, their sense of “land ownership” involved only the right to use and to exclude people of other tribes (but usually not members of their own). If there were any private rights, these were usually subject to review by the group and would cease if the land was no longer being used. The sale of land was either not even a possibility or not permitted. As for inheritance, every person had use rights simply by membership in the group, so a growing child would not have to wait until some other individual died (or pay a special fee) to gain full access to the land.
Early Agricultural Societies Farming made the human relationship to the land more concentrated. Tilling the land, making permanent settlements, etc., all meant a greater direct investment in a particular place. Yet this did not lead immediately to our present ideas of ownership. As best as is known, early farming communities continued to experience an intimate spiritual connection to the land, and they often held land in common under the control of a village council. This pattern has remained in many peasant communities throughout the world.
It was not so much farming directly, but the larger-than- tribal societies that could be based on farming that led to major changes in attitudes towards the land. Many of the first civilizations were centered around a supposedly godlike king, and it was a natural extension to go from the tribal idea that “the land belongs to the gods” to the idea that all of the kingdom belongs to the god-king. Since the god-king was supposed to personify the whole community, this was still a form of community ownership, but now personalized. Privileges of use and control of various types were distributed to the ruling elite on the basis of custom and politics.
As time went on, land took on a new meaning for these ruling elites. It became an abstraction, a source of power and wealth, a tool for other purposes. The name of the game became conquer, hold, and extract the maximum in tribute. Just as The Parable Of The Tribes (see IN CONTEXT, #7) would suggest, the human-human struggle for power gradually came to be the dominant factor shaping the human relationship to the land. This shift from seeing the land as a sacred mother to merely a commodity required deep changes throughout these cultures such as moving the gods and sacred beings into the sky where they could conveniently be as mobile as the ever changing boundaries of these empires.
The idea of private land ownership developed as a second step – partly in reaction to the power of the sovereign and partly in response to the opportunities of a larger-than- village economy. In the god-king societies, the privileges of the nobility were often easily withdrawn at the whim of the sovereign, and the importance of politics and raw power as the basis of ownership was rarely forgotten. To guard their power, the nobility frequently pushed for greater legal/customary recognition of their land rights. In the less centralized societies and in the occasional democracies and republics of this period, private ownership also developed in response to the breakdown of village cohesiveness. In either case, private property permitted the individual to be a “little king” of his/her own lands, imitating and competing against the claims of the state.
Later Developments By the early days of Greece and Rome, community common land, state or sovereign land, and private land all had strong traditions behind them. Plato and Aristotle both discussed various mixtures of private and state ownership in ideal societies, with Aristotle upholding the value of private ownership as a means of protecting diversity. As history progressed, the “great ownership debate” has continued between the champions of private interests and the champions of the state, with the idea of community common land often praised as an ideal, but in practice being gradually squeezed out of the picture. Feudal Europe was basically a system of sovereign ownership. The rise of commerce and then industrialism shifted power to the private ownership interests of the new middle class (as in the United States). The reaction against the abuses of industrialism during the past 150 years swung some opinion back again, bringing renewed interest in state ownership (as in the Communist countries).
As important as these swings have been historically, they have added essentially nothing to our basic understanding of, or attitudes about, ownership. Throughout the whole history of civilization land has been seen as primarily a source of power, and the whole debate around ownership has been, “To what extent will the state allow the individual to build a personal power base through land ownership rights?”
TAKING A FRESH LOOK
But the human-human power struggle is hardly the only, or even the most important, issue in our relationship to the land. Whatever happened to the tribal concerns about caring for the land and preserving it for future generations? What about issues like justice, human empowerment and economic efficiency? How about the rights of the land itself? If we are to move forward towards a planetary/ecological age, all of these questions and issues are going to need to be integrated into our relationship to the land. To do this we will have to get out beyond the narrow circle of the ideas and arguments of the past.
We have been talking about “ownership” as if it was an obvious, clear-cut concept: either you own (control) something or you don’t. For most people (throughout history) this has been a useful approximation, and it has been the basis of the “great ownership debate.” But if you try to pin it down (as lawyers must), you will soon discover that it is not so simple. As surprising as it may seem, our legal system has developed an understanding of “owning” that is significantly different from our common ideas and has great promise as the basis for a much more appropriate human relationship to the land.
Ownership Is A Bundle Of Rights The first step is to recognize that, rather than being one thing, what we commonly call “ownership” is in fact a whole group of legal rights that can be held by some person with respect to some “property.” In the industrial West, these usually include the right to:
use (or not use);
exclude others from using;
irreversibly change;
sell, give away or bequeath;
rent or lease;
retain all rights not specifically granted to others;
retain these rights without time limit or review.
These rights are usually not absolute, for with them go certain responsibilities, such as paying taxes, being liable for suits brought against the property, and abiding by the laws of the land. If these laws include zoning laws, building codes, and environmental protection laws, you may find that your rights to use and irreversibly change are not as unlimited as you thought. Nevertheless, within a wide range you are the monarch over your property.
No One Owns Land Each of these rights can be modified independent of the others, either by law or by the granting of an easement to some other party, producing a bewildering variety of legal conditions. How much can you modify the above conditions and still call it “ownership”? To understand the answer to this, we are going to have to make a very important distinction. In spite of the way we normally talk, no one ever “owns land”..In our legal system you can only own rights to land, you can’t directly own (that is, have complete claim to) the land itself. You can’t even own all the rights since the state always retains the right of eminent domain. For example, what happens when you sell an easement to the power company so that they can run power lines across you land? They then own the rights granted in that easement, you own most of the other rights, the state owns the right of eminent domain – but no single party owns “the land.” You can carry this as far as you like, dividing the rights up among many “owners,” all of whom will have a claim on some aspect of the land.
The wonderful thing about this distinction is that it shifts the whole debate about land ownership away from the rigid state-vs.-individual, all-or-nothing battle to the much more flexible question of who (including community groups, families, etc. as well as the state and the individual) should have which rights. This shift could be as important as the major improvement in governance that came with the shift from monolithic power (as in a monarchy) to “division of powers” (as exemplified in the U.S. Constitution with its semi-independent legislative, executive and judicial branches).
Legitimate Interests How might the problems associated with exclusive ownership (either private or state) be solved by a “division of rights” approach? To answer this, we need to first consider what are the legitimate interests that need to be included in this new approach. If we are to address all the concerns appropriate for a humane sustainable culture we need to recognize that the immediate user of the land (be that a household or a business), the local community, the planetary community, future generations, and all of life, all have legitimate interests. What are these interests?
The immediate users need the freedom to be personally (or corporately) expressive, creative, and perhaps even eccentric. They need to be able to invest energy and caring into the land with reasonable security that the use of the land will not be arbitrarily taken away and that the full equity value of improvements made to the land will be available to them either through continued use or through resale should they choose to move.
The local community needs optimal use of the land within it, without having land held arbitrarily out of use by absentee landlords. It needs to be able to benefit from the equity increases in the land itself due to the overall development of the community, and it needs security that its character will not be forced to change through inappropriate land use decisions made by those outside the community or those leaving the community.
The planetary community, future generations, and all of life need sustainable use – the assurance that ecosystems and topsoil that have been developed over hundreds of thousands of years will not be casually destroyed; that the opportunities for life will be enhanced; that non-renewal resources will be used efficiently and for long term beneficial purposes. This larger community also needs meaningful recognition that the earth is our common heritage.
Is it possible to blend these various interests in a mutually supportive way, rather than seeing them locked in a power struggle? The answer, fortunately, is yes. Perhaps the best developed alternative legal form that does this is called a land trust.
LAND TRUSTS
A land trust is a non-governmental organization (frequently a non-profit corporation) that divides land rights between immediate users and their community. It is being used in a number of places around the world including India, Israel, Tanzania, and the United States. Of the many types of land trusts, we will focus here on three – conservation trusts, community trusts, and stewardship trusts. These will be discussed in more detail in other articles in this section, but an initial overview now will help to draw together many of the threads we have developed so far.
In a conservation land trust, the purpose is generally to preserve some aspect of the natural environment. A conservation trust may do this by the full ownership of some piece of land that it then holds as wilderness, or it may simply own “development rights” to an undeveloped piece. What are development rights? When the original owner sells or grants development rights to the conservation trust, they put an easement (a legal restriction) on the land that prevents them or any future owners from developing the land without the agreement of the conservation trust. They have let go of the right to “irreversibly change” listed above. The conservation trust then holds these rights with the intention of preventing development. The Trust For Public Land (82 Second St, San Francisco, CA 94105, 415/495-4015) helps community groups establish conservation and agricultural land trusts.
A community land trust (CLT) has as its purpose removing land from the speculative market and making it available to those who will use it for the long term benefit of the community. A CLT generally owns full title to its lands and grants long term (like 99-year) renewable leases to those who will actually use the land. Appropriate uses for the land are determined by the CLT in a process comparable to public planning or zoning. Lease fees vary from one CLT to another, but they are generally more than taxes and insurance, less than typical mortgage payments, and less than full rental cost. The lease holders have many of the use and security rights we normally associate with ownership. They own the buildings on the land and can take full benefit from improvements they make to the land. They can not, however, sell the land nor can they usually rent or lease it without the consent of the trust. The Institute For Community Economics (57 School St. Springfield, MA 01105, 413/746-8660) is one of the major support groups for the creation of community land trusts in both urban and rural settings.
The stewardship trust combines features of both the conservation trust and the CLT, and is being used now primarily by intentional communities and non-profit groups such as schools. The groups using the land (the stewards) generally pay less than in a normal CLT, but there are more definite expectations about the care and use they give to the land.
In each one of these types, the immediate users (nonhuman as well as human) have clear rights which satisfy all of their legitimate use needs. The needs of the local community are met through representation on the board of directors of the trust which can enforce general land use standards. The larger community usually has some representation on the trust’s board as well. Thus by dividing what we normally think of as ownership into “stewardship” (the users) and “trusteeship” (the trust organization), land trusts are pioneering an approach that better meets all the legitimate interests.
The system is, of course, still limited by the integrity and the attitudes of the people involved. Nor are current land trusts necessarily the model for “ownership” in a humane sustainable culture. But they show what can be done and give us a place to build from. I’ll explore more of where we might build to in a later article, but now lets turn to other perspectives and experiences with going beyond ownership.
Bibliography
Chaudhuri, Joyotpaul, Possession, Ownership And Access: A Jeffersonian View (Political Inquiry, Vol 1, No 1, Fall 1973).
Denman, D.R., The Place Of Property (London: Geographical Publications Ltd, 1978).
Institute For Community Economics, The Community Land Trust Handbook (Emmaus, PA: Rodale Press, 1982).
International Independence Institute, The Community Land Trust (Cambridge, MA: Center For Community Economic Development, 1972).
Macpherson, C.B., Property: Mainstream And Critical Positions (Toronto: Univ Of Toronto Press, 1978).
Schlatter, Richard, Private Property: The History Of An Idea (New Brunswick, NJ: Rutgers University Press, 1951).
Scott, William B., In Pursuit Of Happiness: American Conceptions Of Property (Bloomington: Indiana University Press, 1977).
Tully, James, A Discourse On Property: John Locke And His Adversaries (Cambridge: Cambridge Univ Press, 1980).
Land Rights
by John Talbot
IT WAS NOT so long ago in human history that the rights of all humans were not acknowledged, even in the democracies. Slavery was only abolished a few generations ago. In the same way that we have come to see human rights as being inherent, so we are now beginning to recognize land rights, and by land I mean all life that lives and takes its nourishment from it, as well as the soil and earth itself. Once we have understood and accepted that idea, we can truly enter into a cooperative relationship with Nature. I’m not talking about living in fear of disturbing anything or a totally “hands off nature” angry ecologist view, but simply acknowledging the right to be of land and nature, and that when we do “disturb” it we do so with sensitivity and respect, doing our best to be in harmony with what is already there.
Being in harmony, apart from being a very subjective state, may not always be possible: for example in the case of putting a house down where once there wasn’t one. But we as humans have needs too. Nature knows that and is, I believe, quite willing to accommodate us. Our responsibility is, however, to act consciously and with the attitude of respect and desire for cooperation. It is no different from respecting other people’s rights in our interactions, being courteous and sensitive to their needs and feelings. This attitude toward the land is almost universally held by aboriginal and native peoples, from the Bushman to the Native American Indians to the tribes of the South Pacific. Earth Etiquette, you might say.
Following directly from that is the principle that you cannot really buy, sell or own the land. Just as we cannot (or should not) own slaves of our own species, we would not make slaves of animals, plants or the land and nature in general. Sounds easy but I feel this represents a very profound and fundamental change in human attitudes; one that takes thought, effort and time to reprogram in ourselves.
NN
General Act of the Berlin Conference on West Africa
ID: 188502261498
Signed by the representatives of the United Kingdom, France, Germany, Austria, Belgium, Denmark, Spain, the United States of America, Italy, the Netherlands, Portugal, Russia, Sweden-Norway, and Turkey (Ottoman Empire).
(Printable version of this text)
GENERAL ACT OF THE CONFERENCE AT BERLIN OF THE PLENIPOTENTIARIES OF GREAT BRITAIN, AUSTRIA-HUNGARY, BELGIUM, DENMARK, FRANCE, GERMANY, ITALY, THE NETHERLANDS, PORTUGAL, RUSSIA, SPAIN, SWEDEN AND NORWAY, TURKEY AND THE UNITED STATES RESPECTING: (1) FREEDOM OF TRADE IN THE BASIN OF THE CONGO; (2) THE SLAVE TRADE; (3) NEUTRALITY OF THE TERRITORIES IN THE BASIN OF THE CONGO; (4) NAVIGATION OF THE CONGO; (5) NAVIGATION OF THE NIGER; AND (6) RULES FOR FUTURE OCCUPATION ON THE COAST OF THE AFRICAN CONTINENT
In the Name of God Almighty.
Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India; His Majesty the German Emperor, King of Prussia; His Majesty the Emperor of Austria, King of Bohemia, etc, and Apostolic King of Hungary; His Majesty the King of the Belgians; His Majesty the King of Denmark; His Majesty the King of Spain; the President of the United States of America; the President of the French Republic; His Majesty the King of Italy; His Majesty the King of the Netherlands, Grand Duke of Luxemburg, etc; His Majesty the King of Portugal and the Algarves, etc; His Majesty the Emperor of all the Russias; His Majesty the King of Sweden and Norway, etc; and His Majesty the Emperor of the Ottomans,
WISHING, in a spirit of good and mutual accord, to regulate the conditions most favourable to the development of trade and civilization in certain regions of Africa, and to assure to all nations the advantages of free navigation on the two chief rivers of Africa flowing into the Atlantic Ocean;
BEING DESIROUS, on the other hand, to obviate the misunderstanding and disputes which might in future arise from new acts of occupation (prises de possession) on the coast of Africa; and concerned, at the same time, as to the means of furthering the moral and material well-being of the native populations;
HAVE RESOLVED, on the invitation addressed to them by the Imperial Government of Germany, in agreement with the Government of the French Republic, to meet for those purposes in Conference at Berlin, and have appointed as their Plenipotentiaries, to wit:
[Names of plenipotentiaries included here.]
Who, being provided with full powers, which have been found in good and due form, have successively discussed and adopted:
1. A Declaration relative to freedom of trade in the basin of the Congo, its embouchures and circumjacent regions, with other provisions connected therewith.
2. A Declaration relative to the slave trade, and the operations by sea or land which furnish slaves to that trade.
3. A Declaration relative to the neutrality of the territories comprised in the Conventional basin of the Congo.
4. An Act of Navigation for the Congo, which, while having regard to local circumstances, extends to this river, its affluents, and the waters in its system (eaux qui leur sont assimilées), the general principles enunciated in Articles 58 and 66 of the Final Act of the Congress of Vienna, and intended to regulate, as between the Signatory Powers of that Act, the free navigation of the waterways separating or traversing several States - these said principles having since then been applied by agreement to certain rivers of Europe and America, but especially to the Danube, with the modifications stipulated by the Treaties of Paris (1856), of Berlin (1878), and of London (1871 and 1883).
5. An Act of Navigation for the Niger, which, while likewise having regard to local circumstances, extends to this river and its affluents the same principles as set forth in Articles 58 and 66 of the Final Act of the Congress of Vienna.
6. A Declaration introducing into international relations certain uniform rules with reference to future occupations on the coast of the African Continent.
And deeming it expedient that all these several documents should be combined in one single instrument, they (the Signatory Powers) have collected them into one General Act, composed of the following Articles:
CHAPTER I
DECLARATION RELATIVE TO FREEDOM OF TRADE IN THE BASIN OF THE CONGO, ITS MOUTHS AND CIRCUMJACENT REGIONS, WITH OTHER PROVISIONS CONNECTED THEREWITH
Article 1
The trade of all nations shall enjoy complete freedom-
1. In all the regions forming the basin of the Congo and its outlets. This basin is bounded by the watersheds (or mountain ridges) of the adjacent basins, namely, in particular, those of the Niari, the Ogowé, the Schari, and the Nile, on the north; by the eastern watershed line of the affluents of Lake Tanganyika on the east; and by the watersheds of the basins of the Zambesi and the Logé on the south. It therefore comprises all the regions watered by the Congo and its affluents, including Lake Tanganyika, with its eastern tributaries.
2. In the maritime zone extending along the Atlantic Ocean from the parallel situated in 2º30' of south latitude to the mouth of the Logé.
The northern boundary will follow the parallel situated in 2º30' from the coast to the point where it meets the geographical basin of the Congo, avoiding the basin of the Ogowé, to which the provisions of the present Act do not apply.
The southern boundary will follow the course of the Logé to its source, and thence pass eastwards till it joins the geographical basin of the Congo.
3. In the zone stretching eastwards from the Congo Basin, as above defined, to the Indian Ocean from 5 degrees of north latitude to the mouth of the Zambesi in the south, from which point the line of demarcation will ascend the Zambesi to 5 miles above its confluence with the Shiré, and then follow the watershed between the affluents of Lake Nyassa and those of the Zambesi, till at last it reaches the watershed between the waters of the Zambesi and the Congo.
It is expressly recognized that in extending the principle of free trade to this eastern zone the Conference Powers only undertake engagements for themselves, and that in the territories belonging to an independent Sovereign State this principle shall only be applicable in so far as it is approved by such State. But the Powers agree to use their good offices with the Governments established on the African shore of the Indian Ocean for the purpose of obtaining such approval, and in any case of securing the most favourable conditions to the transit (traffic) of all nations.
Article 2
All flags, without distinction of nationality, shall have free access to the whole of the coastline of the territories above enumerated, to the rivers there running into the sea, to all the waters of the Congo and its affluents, including the lakes, and to all the ports situate on the banks of these waters, as well as to all canals which may in future be constructed with intent to unite the watercourses or lakes within the entire area of the territories described in Article 1. Those trading under such flags may engage in all sorts of transport, and carry on the coasting trade by sea and river, as well as boat traffic, on the same footing as if they were subjects.
Article 3
Wares, of whatever origin, imported into these regions, under whatsoever flag, by sea or river, or overland, shall be subject to no other taxes than such as may be levied as fair compensation for expenditure in the interests of trade, and which for this reason must be equally borne by the subjects themselves and by foreigners of all nationalities. All differential dues on vessels, as well as on merchandise, are forbidden.
Article 4
Merchandise imported into these regions shall remain free from import and transit dues.
The Powers reserve to themselves to determine after the lapse of twenty years whether this freedom of import shall be retained or not.
Article 5
No Power which exercises or shall exercise sovereign rights in the abovementioned regions shall be allowed to grant therein a monopoly or favour of any kind in matters of trade.
Foreigners, without distinction, shall enjoy protection of their persons and property, as well as the right of acquiring and transferring movable and immovable possessions; and national rights and treatment in the exercise of their professions.
PROVISIONS RELATIVE TO PROTECTION OF THE NATIVES, OF MISSIONARIES AND TRAVELLERS, AS WELL AS RELATIVE TO RELIGIOUS LIBERTY
Article 6
All the Powers exercising sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the slave trade. They shall, without distinction of creed or nation, protect and favour all religious, scientific or charitable institutions and undertakings created and organized for the above ends, or which aim at instructing the natives and bringing home to them the blessings of civilization.
Christian missionaries, scientists and explorers, with their followers, property and collections, shall likewise be the objects of especial protection.
Freedom of conscience and religious toleration are expressly guaranteed to the natives, no less than to subjects and to foreigners. The free and public exercise of all forms of divine worship, and the right to build edifices for religious purposes, and to organize religious missions belonging to all creeds, shall not be limited or fettered in any way whatsoever.
POSTAL REGIME
Article 7
The Convention of the Universal Postal Union, as revised at Paris 1 June 1878, shall be applied to the Conventional basin of the Congo.
The Powers who therein do or shall exercise rights of sovereignty or Protectorate engage, as soon as circumstances permit them, to take the measures necessary for the carrying out of the preceding provision.
RIGHT OF SURVEILLANCE VESTED IN THE INTERNATIONAL NAVIGATION COMMISSION OF THE CONGO
Article 8
In all parts of the territory had in view by the present Declaration, where no Power shall exercise rights of sovereignty or Protectorate, the International Navigation Commission of the Congo, instituted in virtue of Article 17, shall be charged with supervising the application of the principles proclaimed and perpetuated (consacrés) by this Declaration.
In all cases of difference arising relative to the application of the principles established by the present Declaration, the Governments concerned may agree to appeal to the good offices of the International Commission, by submitting to it an examination of the facts which shall have occasioned these differences.
CHAPTER II
DECLARATION RELATIVE TO THE SLAVE TRADE
Article 9
Seeing that trading in slaves is forbidden in conformity with the principles of international law as recognized by the Signatory Powers, and seeing also that the operations, which, by sea or land, furnish slaves to trade, ought likewise to be regarded as forbidden, the Powers which do or shall exercise sovereign rights or influence in the territories forming the Conventional basin of the Congo declare that these territories may not serve as a market or means of transit for the trade in slaves, of whatever race they may be. Each of the Powers binds itself to employ all the means at its disposal for putting an end to this trade and for punishing those who engage in it.
CHAPTER III
DECLARATION RELATIVE TO THE NEUTRALITY OF THE TERRITORIES COMPRISED IN THE CONVENTIONAL BASIN OF THE CONGO
Article 10
In order to give a new guarantee of security to trade and industry, and to encourage, by the maintenance of peace, the development of civilization in the countries mentioned in Article 1, and placed under the free trade system, the High Signatory Parties to the present Act, and those who shall hereafter adopt it, bind themselves to respect the neutrality of the territories, or portions of territories, belonging to the said countries, comprising therein the territorial waters, so long as the Powers which exercise or shall exercise the rights of sovereignty or Protectorate over those territories, using their option of proclaiming themselves neutral, shall fulfil the duties which neutrality requires.
Article 11
In case a Power exercising rights of sovereignty or Protectorate in the countries mentioned in Article 1, and placed under the free trade system, shall be involved in a war, then the High Signatory Parties to the present Act, and those who shall hereafter adopt it, bind themselves to lend their good offices in order that the territories belonging to this Power and comprised in the Conventional free trade zone shall, by the common consent of this Power and of the other belligerent or belligerents, be placed during the war under the rule of neutrality, and considered as belonging to a non-belligerent State, the belligerents thenceforth abstaining from extending hostilities to the territories thus neutralized, and from using them as a base for warlike operations.
Article 12
In case a serious disagreement originating on the subject of, or in the limits of, the territories mentioned in Article 1, and placed under the free trade system, shall arise between any Signatory Powers of the present Act, or the Powers which may become parties to it, these Powers bind themselves, before appealing to arms, to have recourse to the mediation of one or more of the friendly Powers.
In a similar case the same Powers reserve to themselves the option of having recourse to arbitration.
CHAPTER IV
ACT OF NAVIGATION FOR THE CONGO
Article 13
The navigation of the Congo, without excepting any of its branches or outlets, is, and shall remain, free for the merchant ships of all nations equally, whether carrying cargo or ballast, for the transport of goods or passengers. It shall be regulated by the provisions of this Act of Navigation, and by the rules to be made in pursuance thereof.
In the exercise of this navigation the subjects and flags of all nations shall in all respects be treated on a footing of perfect equality, not only for the direct navigation from the open sea to the inland ports of the Congo, and vice versa, but also for the great and small coasting trade, and for boat traffic on the course of the river.
Consequently, on all the course and mouths of the Congo there will be no distinction made between the subjects of riverain States and those of non-riverain States, and no exclusive privilege of navigation will be conceded to companies, corporations or private persons whatsoever.
These provisions are recognized by the Signatory Powers as becoming henceforth a part of international law.
Article 14
The navigation of the Congo shall not be subject to any restriction or obligation which is not expressly stipulated by the present Act. It shall not be exposed to any landing dues, to any station or depot tax, or to any charge for breaking bulk, or for compulsory entry into port.
In all the extent of the Congo the ships and goods in process of transit on the river shall be submitted to no transit dues, whatever their starting place or destination.
There shall be levied no maritime or river toll based on the mere fact of navigation, nor any tax on goods aboard of ships. There shall only be levied taxes or duties having the character of an equivalent for services rendered to navigation itself, to wit:
1. Harbour dues on certain local establishments, such as wharves, warehouses, etc, if actually used.
The tariff of such dues shall be framed according to the cost of constructing and maintaining the said local establishments; and it will be applied without regard to whence vessels come or what they are loaded with.
2. Pilot dues for those stretches of the river where it may be necessary to establish properly qualified pilots.
The tariff of these dues shall be fixed and calculated in proportion to the service rendered.
3. Charges raised to cover technical and administrative expenses incurred in the general interest of navigation, including lighthouse, beacon and buoy duties.
The lastmentioned dues shall be based on the tonnage of vessels as shown by the ship's papers, and in accordance with the rules adopted on the Lower Danube.
The tariffs by which the various dues and taxes enumerated in the three preceding paragraphs shall be levied shall not involve any differential treatment, and shall be officially published at each port.
The Powers reserve to themselves to consider, after the lapse of five years, whether it may be necessary to revise, by common accord, the abovementioned tariffs.
Article 15
The affluents of the Congo shall in all respects be subject to the same rules as the river of which they are tributaries.
And the same rules shall apply to the streams and river as well as the lakes and canals in the territories defined in paragraphs 2 and 3 of Article 1.
At the same time the powers of the International Commission of the Congo will not extend to the said rivers, streams, lakes and canals, unless with the assent of the States under whose sovereignty they are placed. It is well understood, also, that with regard to the territories mentioned in paragraph 3 of Article 1 the consent of the Sovereign States owning these territories is reserved.
Article 16
The roads, railways or lateral canals which may be constructed with the special object of obviating the innavigability or correcting the imperfection of the river route on certain sections of the course of the Congo, its affluents, and other waterways placed under a similar system, as laid down in Article 15, shall be considered in their quality of means of communication as dependencies of this river, and as equally open to the traffic of all nations.
And, as on the river itself, so there shall be collected on these roads, railways and canals only tolls calculated on the cost of construction, maintenance and management, and on the profits due to the promoters.
As regards the tariff of these tolls, strangers and the natives of the respective territories shall be treated on a footing of perfect equality.
Article 17
There is instituted an International Commission, charged with the execution of the provisions of the present Act of Navigation.
The Signatory Powers of this Act, as well as those who may subsequently adhere to it, may always be represented on the said Commission, each by one delegate. But no delegate shall have more than one vote at his disposal, even in the case of his representing several Governments.
This delegate will be directly paid by his Government. As for the various agents and employees of the International Commission, their remuneration shall be charged to the amount of the dues collected in conformity with paragraphs 2 and 3 of Article 14.
The particulars of the said remuneration, as well as the number, grade and powers of the agents and employees, shall be entered in the returns to be sent yearly to the Governments represented on the International Commission.
Article 18
The members of the International Commission, as well as its appointed agents, are invested with the privilege of inviolability in the exercise of their functions. The same guarantee shall apply to the offices and archives of the Commission.
Article 19
The International Commission for the Navigation of the Congo shall be constituted as soon as five of the Signatory Powers of the present General Act shall have appointed their delegates. And, pending the constitution of the Commission, the nomination of these delegates shall be notified to the Imperial Government of Germany, which will see to it that the necessary steps are taken to summon the meeting of the Commission.
The Commission will at once draw up navigation, river police, pilot and quarantine rules.
These rules, as well as the tariffs to be framed by the Commission, shall, before coming into force, be submitted for approval to the Powers represented on the Commission. The Powers interested will have to communicate their views with as little delay as possible.
Any infringement of these rules will be checked by the agents of the International Commission wherever it exercises direct authority, and elsewhere by the riverain Power.
In the case of an abuse of power, or of an act of injustice, on the part of any agent or employee of the International Commission, the individual who considers himself to be aggrieved in his person or rights may apply to the consular agent of his country. The latter will examine his complaint, and if he finds it prima facie reasonable he will then be entitled to bring it before the Commission. At his instance then, the Commission, represented by at least three of its members, shall, in conjunction with him, inquire into the conduct of its agent or employee. Should the consular agent look upon the decision of the Commission as raising questions of law (objections de droit), he will report on the subject to his Government, which may then have recourse to the Powers represented on the Commission, and invite them to agree as to the instructions to be given to the Commission.
Article 20
The International Commission of the Congo, charged in terms of Article 17 with the execution of the present Act of Navigation, shall in particular have power-
1. To decide what works are necessary to assure the navigability of the Congo in accordance with the needs of international trade.
On those sections of the river where no Power exercises sovereign rights the International Commission will itself take the necessary measures for assuring the navigability of the river.
On those sections of the river held by a Sovereign Power the International Commission will concert its action (s'entendra) with the riparian authorities.
2. To fix the pilot tariff and that of the general navigation dues as provided for by paragraphs 2 and 3 of Article 14.
The tariffs mentioned in the first paragraph of Article 14 shall be framed by the territorial authorities within the limits prescribed in the said Article.
The levying of the various dues shall be seen to by the international or territorial authorities on whose behalf they are established.
3. To administer the revenue arising from the application of the preceding paragraph (2).
4. To superintend the quarantine establishment created in virtue of Article 24.
5. To appoint officials for the general service of navigation, and also its own proper employees.
It will be for the territorial authorities to appoint sub-inspectors on sections of the river occupied by a Power, and for the International Commission to do so on the other sections.
The riverain Power will notify to the International Commission the appointment of sub-inspectors, and this Power will undertake the payment of their salaries.
In the exercise of its functions, as above defined and limited, the International Commission will be independent of the territorial authorities.
Article 21
In the accomplishment of its task the International Commission may, if need be, have recourse to the war vessels of the Signatory Powers of this Act, and of those who may in future accede to it, under reserve, however, of the instructions which may be given to the commanders of these vessels by their respective Governments.
Article 22
The war vessels of the Signatory Powers of this Act that may enter the Congo are exempt from payment of the navigation dues provided for in paragraph 3 of Article 14; but, unless their intervention has been called for by the International Commission or its agents, in terms of the preceding Article, they shall be liable to the payment of the pilot or harbour dues which may eventually be established.
Article 23
With the view of providing for the technical and administrative expenses which it may incur, the International Commission created by Article 17 may, in its own name, negotiate loans to be exclusively guaranteed by the revenues raised by the said Commission.
The decisions of the Commission dealing with the conclusion of a loan must be come to by a majority of two-thirds. It is understood that the Governments represented on the Commission shall not in any case be held as assuming any guarantee, or as contracting any engagement or joint liability (solidarité) with respect to the said loans, unless under special Conventions concluded by them to this effect.
The revenue yielded by the dues specified in paragraph 3 of Article 14 shall bear, as a first charge, the payment of the interest and sinking fund of the said loans, according to agreement with the lenders.
Article 24
At the mouth of the Congo there shall be founded, either on the initiative of the riverain Powers, or by the intervention of the International Commission, a quarantine establishment for the control of vessels passing out of as well as into the river.
Later on the Powers will decide whether and on what conditions a sanitary control shall be exercised over vessels engaged in the navigation of the river itself.
Article 25
The provisions of the present Act of Navigation shall remain in force in time of war. Consequently all nations, whether neutral or belligerent, shall be always free, for the purposes of trade, to navigate the Congo, its branches, affluents and mouths, as well as the territorial waters fronting the embouchure of the river.
Traffic will similarly remain free, despite a state of war, on the roads, railways, lakes and canals mentioned in Articles 15 and 16.
There will be no exception to this principle, except in so far as concerns the transport of articles intended for a belligerent, and in virtue of the law of nations regarded as contraband of war.
All the works and establishments created in pursuance of the present Act, especially the tax collecting offices and their treasuries, as well as the permanent service staff of these establishments, shall enjoy the benefits of neutrality (placés sous le régime de la neutralité), and shall, therefore, be respected and protected by belligerents.
CHAPTER V
ACT OF NAVIGATION FOR THE NIGER
Article 26
The navigation of the Niger, without excepting any of its branches and outlets, is and shall remain entirely free for the merchant ships of all nations equally, whether with cargo or ballast, for the transportation of goods and passengers. It shall be regulated by the provisions of this Act of Navigation, and by the rules to be made in pursuance of this Act.
In the exercise of this navigation the subjects and flags of all nations shall be treated, in all circumstances, on a footing of perfect equality, not only for the direct navigation from the open sea to the inland ports of the Niger, and vice versa, but for the great and small coasting trade, and for boat trade on the course of the river.
Consequently, on all the course and mouths of the Niger there will be no distinction made between the subjects of the riverain States and those of non-riverain States; and no exclusive privilege of navigation will be conceded to companies, corporations or private persons.
These provisions are recognized by the Signatory Powers as forming henceforth a part of international law.
Article 27
The navigation of the Niger shall not be subject to any restriction or obligation based merely on the fact of navigation.
It shall not be exposed to any obligation in regard to landing-station or depot, or for breaking bulk, or for compulsory entry into port.
In all the extent of the Niger the ships and goods in process of transit on the river shall be submitted to no transit dues, whatever their starting place or destination.
No maritime or river toll shall be levied based on the sole fact of navigation, nor any tax on goods on board of ships. There shall only be collected taxes or duties which shall be an equivalent for services rendered to navigation itself. The tariff of these taxes or duties shall not warrant any differential treatment.
Article 28
The affluents of the Niger shall be in all respects subject to the same rules as the river of which they are tributaries.
Article 29
The roads, railways or lateral canals which may be constructed with the special object of obviating the innavigability or correcting the imperfections of the river route on certain sections of the course of the Niger, its affluents, branches and outlets, shall be considered, in their quality of means of communication, as dependencies of this river, and as equally open to the traffic of all nations.
And, as on the river itself, so there shall be collected on these roads, railways and canals only tolls calculated on the cost of construction, maintenance and management, and on the profits due to the promoters.
As regards the tariff of these tolls, strangers and the natives of the respective territories shall be treated on a footing of perfect equality.
Article 30
Great Britain undertakes to apply the principles of freedom of navigation enunciated in Articles 26, 27, 28 and 29 on so much of the waters of the Niger, its affluents, branches and outlets, as are or may be under her sovereignty or protection.
The rules which she may establish for the safety and control of navigation shall be drawn up in a way to facilitate, as far as possible, the circulation of merchant ships.
It is understood that nothing in these obligations shall be interpreted as hindering Great Britain from making any rules of navigation whatever which shall not be contrary to the spirit of these engagements.
Great Britain undertakes to protect foreign merchants and all the trading nationalities on all those portions of the Niger which are or may be under her sovereignty or protection as if they were her own subjects, provided always that such merchants conform to the rules which are or shall be made in virtue of the foregoing.
Article 31
France accepts, under the same reservations, and in identical terms, the obligations undertaken in the preceding Articles in respect of so much of the waters of the Niger, its affluents, branches and outlets, as are or may be under her sovereignty or protection.
Article 32
Each of the other Signatory Powers binds itself in the same way in case it should ever exercise in the future rights of sovereignty or protection over any portion of the waters of the Niger, its affluents, branches or outlets.
Article 33
The arrangements of the present Act of Navigation will remain in force in time of war. Consequently, the navigation of all neutral or belligerent nationals will be in all time free for the usages of commerce on the Niger, its branches, its affluents, its mouths and outlets, as well as on the territorial waters opposite the mouths and outlets of that river.
The traffic will remain equally free in spite of a state of war on the roads, railways and canals mentioned in Article 29.
There will be an exception to this principle only in that which relates to the transport of articles destined for a belligerent, and considered, in virtue of the law of nations, as articles contraband of war.
CHAPTER VI
DECLARATION RELATIVE TO THE ESSENTIAL CONDITIONS TO BE OBSERVED IN ORDER THAT NEW OCCUPATIONS ON THE COASTS OF THE AFRICAN CONTINENT MAY BE HELD TO BE EFFECTIVE
Article 34
Any Power which henceforth takes possession of a tract of land on the coasts of the African continent outside of its present possessions, or which, being hitherto without such possessions, shall acquire them, as well as the Power which assumes a Protectorate there, shall accompany the respective act with a notification thereof, addressed to the other Signatory Powers of the present Act, in order to enable them, if need be, to make good any claims of their own.
Article 35
The Signatory Powers of the present Act recognize the obligation to insure the establishment of authority in the regions occupied by them on the coasts of the African continent sufficient to protect existing rights, and, as the case may be, freedom of trade and of transit under the conditions agreed upon.
CHAPTER VII
GENERAL DISPOSITIONS
Article 36
The Signatory Powers of the present General Act reserve to themselves to introduce into it subsequently, and by common accord, such modifications and improvements as experience may show to be expedient.
Article 37
The Powers who have not signed the present General Act shall be free to adhere to its provisions by a separate instrument.
The adhesion of each Power shall be notified in diplomatic form to the Government of the German Empire, and by it in turn to all the other signatory or adhering Powers.
Such adhesion shall carry with it full acceptance of all the obligations as well as admission to all the advantages stipulated by the present General Act.
Article 38
The present General Act shall be ratified with as little delay as possible, the same in no case to exceed a year.
It will come into force for each Power from the date of its ratification by that Power.
Meanwhile, the Signatory Powers of the present General Act bind themselves not to take any steps contrary to its provisions.
Each Power will address its ratification to the Government of the German Empire, by which notice of the fact will be given to all the other Signatory Powers of the present Act.
The ratifications of all the Powers will be deposited in the archives of the Government of the German Empire. When all the ratifications shall have been sent in, there will be drawn up a Deposit Act, in the shape of a Protocol, to be signed by the representatives of all the Powers which have taken part in the Conference of Berlin, and of which a certified copy will be sent to each of those Powers.
IN TESTIMONY WHEREOF the several plenipotentiaries have signed the present General Act and have affixed thereto their seals.
DONE at Berlin, the 26th day of February, 1885.
[Signatures included here.]