Question No. 2 – Natural resources

Here, the question asked is whether natural resources that are not privately owned should be declared national property. However, no definition is given in the question of what is meant by the term national property or of what constitutes a natural resource.

The way things are now

The Icelandic Constitution contains no provisions on the ownership, utilisation or treatment of natural resources, with the exception that the second paragraph of Article 72 provides for restrictions to be imposed on the right of foreign parties to own property interests or shares in businesses in Iceland. It also follows from the general powers granted to the legislature that it may set rules on the treatment, utilisation and ownership of resources, whether these are privately owned, state owned or without owners. Thus, various provisions on the ownership of natural resources (e.g. state ownership of public lands and the resources of the seabed) and on the treatment of natural resources (e.g. the quota system governing catches from marine stocks) are to be found in ordinary statutes.

The Constitutional Council’s proposals

The council’s proposals, Article 34, include provisions stating that resources in Iceland’s natural environment which are not privately owned are to be the common and permanent property of the nation. No one would be able to acquire ownership of these resources, or of rights pertaining to them, or have them at their disposal on a permanent basis, and it would be prohibited to sell them or mortgage them. It can be seen from the council’s explanatory notes to this proposal that the term ‘national property’ is intended to establish a right of ownership in the legal sense. Thus, this is not simply a reiteration of Iceland’s sovereign right over the natural resources within its jurisdiction and the need to ensure that they are utilised for the benefit of the nation as a whole; rather, the purpose of this provision is to establish a particular type of right of ownership of natural resources which are not privately owned.

Natural resources owned by the nation are defined in the proposals as natural goods of all types, such as exploitable marine stocks, other resources of the sea and the sea-bed within Iceland’s jurisdiction and water springs and harnessing rights, rights over geothermal resources and mining and quarrying rights. In addition, it would be possible to determine, in ordinary statutes, that resources lying below a certain depth under the surface of the ground would be national property. The notes state that this list comprises examples of the main types of resources under national ownership, but that the list is not intended to be regarded as being exhaustive.

Discussions and arguments

In recent years and decades, various European countries have adopted constitutional provisions claiming the ownership of the state or the nation of natural resources. These provisions have various meaning and purpose. Opinion has been divided in Iceland as to the form that such provisions should take.

The term ‘natural resources’ usually applies to all aspects of the natural environment, the earth, the biosphere, water, the sea, air or sunlight, that may constitute value. In the case of the utilisation of wild animals or fish, the right of utilisation or fishing rights may be owned privately or by the state. On the other hand, wild animals, e.g. fish that have not been caught, cannot, strictly speaking, constitute property in the normal sense of the word until they are caught or confined.

On the basis of this view, the criticism has been expressed that it is unclear what goods would be covered by the category ‘national property’ if this categorisation is intended to establish an actual right of ownership. Another criticism that has been voiced is that ‘the nation’ is too vague a collective entity to be regarded as being the owner of anything, and that consequently, ‘national property’ means ‘state-owned property’.

Proposals on having provisions on natural resources included in the Constitution can be traced at least as far back as the 1960s in Iceland. In those proposals, however, the term, whether it is worded as ‘property of the nation’, or ‘national property’ or ‘communal property of the nation’, was not always used in the same sense.

On the one hand it has been used to refer to rights of ownership in the legal sense, ‘national property’ hence amounting to state ownership. In these earlier proposals, the caution was generally expressed that only natural resources that were not privately owned were to be regarded as property of the nation.

On the other hand, the term has been used as meaning that Iceland’s right of sovereignty entails a right on the part of the state to take steps to ensure that natural resources are used for the benefit of the nation as a whole. In these instances, the term ‘national property’ has been used to apply to natural resources of all types, irrespective of whether they are privately owned, state owned or ownerless.