Volume I Part 33 (1/2)

[Footnote 375: See Twiss, I. ---- 183 and 184, and above, -- 194.]

[Sidenote: Boundary Mountains.]

-- 200. Boundary mountains or hills are such natural elevations from the common level of the ground as separate the territories of two or more States from each other. Failing special treaty arrangements, the boundary line runs on the mountain ridge along with the watershed. But it is quite possible that boundary mountains belong wholly to one of the States which they separate.[376]

[Footnote 376: See Fiore, II. No. 800.]

[Sidenote: Boundary Disputes.]

-- 201. Boundary lines are, for many reasons, of such vital importance that disputes relating thereto are inevitably very frequent and have often led to war. During the nineteenth century, however, a tendency began to prevail to settle such disputes peaceably. The simplest way in which this can be done is always by a boundary treaty, provided the parties can come to terms.[377] In other cases arbitration can settle the matter, as, for instance, in the Alaska Boundary dispute between Great Britain (representing Canada) and the United States, settled in 1903. Sometimes International Commissions are specially appointed to settle the boundary lines. In this way the boundary lines between Turkey, Bulgaria, Servia, Montenegro, and Roumania were settled after the Berlin Congress of 1878. It sometimes happens that the States concerned, instead of settling the boundary line, keep a strip of land between their territories under their joint tenure and administration, so that a so-called _condominium_ comes into existence, as in the case of Moresnet (Kelmis) on the Prus...o...b..lgian frontier.[378]

[Footnote 377: A good example of such a boundary treaty is that between Great Britain and the United States of America respecting the demarcation of the international boundary between the United States and the Dominion of Canada, signed at Was.h.i.+ngton on April 11, 1908. See Martens, N.R.G. 3rd Ser. IV. (1911), p. 191.]

[Footnote 378: See above, -- 171, No. 1.]

[Sidenote: Natural Boundaries _sensu politico_.]

-- 202. Whereas the term ”natural boundaries” in the theory and practice of the Law of Nations means natural signs which indicate the course of boundary lines, the same term is used politically[379] in various different meanings. Thus the French often speak of the river Rhine as their ”natural” boundary, as the Italians do of the Alps. Thus, further, the zones within which the language of a nation is spoken are frequently termed that nation's ”natural” boundary. Again, the line enclosing such parts of the land as afford great facilities for defence against an attack is often called the ”natural” boundary of a State, whether or not these parts belong to the territory of the respective State. It is obvious that all these and other meanings of the term ”natural boundaries” are of no importance to the Law of Nations, whatever value they may have politically.

[Footnote 379: See Rivier, I. p. 166.]

X

STATE SERVITUDES

Vattel, I. -- 89--Hall, -- 42*--Westlake, I. p. 61--Phillimore, I.

---- 281-283--Twiss, I. -- 245--Taylor, -- 252--Moore, I. ---- 163-168, II. -- 177--Bluntschli, ---- 353-359--Hartmann, -- 62--Heffter, -- 43--Holtzendorff in Holtzendorff, II. pp. 242-252--Gareis, -- 71--Liszt, ---- 8 and 19--Ullmann, -- 99--Bonfils, Nos.

340-344--Despagnet, Nos. 190-192--Merignhac, II. pp.

366-368--Pradier-Fodere, II. Nos. 834-845, 1038--Rivier, I. pp.

296-303--Nys, II. pp. 271-279--Calvo, III. -- 1583--Fiore, I. -- 380, and Code, Nos. 1095-1097--Martens, I. ---- 94-95--Clauss, ”Die Lehre von den Staatsdienstbarkeiten” (1894)--Fabres, ”Des servitudes dans le droit international” (1901)--Hollatz, ”Begriff und Wesen der Staatsservituten” (1909)--Labrousse, ”Des servitudes en droit international public” (1911)--Nys in R.I. 2nd Ser. VII.

(1905), pp. 118-125, and XIII. (1911), pp. 312-323.

[Sidenote: Conception of State Servitudes.]

-- 203. State servitudes are those exceptional and conventional restrictions on the territorial supremacy of a State by which a part or the whole of its territory is in a limited way made perpetually to serve a certain purpose or interest of another State. Thus a State may by a convention be obliged to allow the pa.s.sage of troops of a neighbouring State, or may in the interest of a neighbouring State be prevented from fortifying a certain town near the frontier.

Servitudes must not be confounded[380] with those general restrictions upon territorial supremacy which, according to certain rules of the Law of Nations, concern all States alike. These restrictions are named ”natural” restrictions of territorial supremacy (_servitutes juris gentium naturales_), in contradistinction to the conventional restrictions (_servitutes juris gentium voluntariae_) which const.i.tute the State servitudes in the technical sense of the term. Thus, for instance, it is not a State servitude, but a ”natural” restriction on territorial supremacy, that a State is obliged to admit the free pa.s.sage of foreign merchantmen through its territorial maritime belt.

[Footnote 380: This is done, for instance, by Heffter (-- 43), Martens (-- 94), Nys (II. p. 271), and Hall (-- 42*); the latter speaks of the right of innocent use of territorial seas as a servitude.]

That State servitudes are or may on occasions be of great importance, there can be no doubt whatever. The vast majority[381] of writers and the practice of the States accept, therefore, the conception of State servitudes, although they do not agree with regard to the definition and the width of the conception, and although, consequently, in many cases the question is disputed whether a certain restriction upon territorial supremacy is or is not a State servitude.

[Footnote 381: The conception of State servitudes is rejected by Bulmerincq (-- 49), Gareis (-- 71), Liszt (---- 8 and 19), Jellinek (”Allgemeine Staatslehre,” p. 366).]

The theory of State servitudes has of late been rejected by the Permanent Court of Arbitration at the Hague in the case[382] (1910) of the North Atlantic Coast Fisheries between Great Britain and the United States, chiefly for the three reasons that a servitude in International Law predicated an express grant of a sovereign right, that the doctrine of international servitude originated in the peculiar and now obsolete conditions prevailing in the Holy Roman Empire, and that this doctrine, being little suited to the principle of sovereignty which prevails in States under a const.i.tutional government and to the present international relations of Sovereign States, had found little, if any, support from modern publicists. It is hardly to be expected that this opinion of the Court will induce theory and practice to drop the conception of State servitudes, which is of great value because it fitly covers those restrictions on the territorial supremacy of the State by which a part or the whole of its territory is in a limited way made perpetually to serve a certain purpose or interest of another State.

That the doctrine of State servitudes originated in the peculiar conditions of the Holy Roman Empire does not make it unfit for the conditions of modern life if its practical value can be demonstrated.

Further, the a.s.sertion that the doctrine is but little suited to the principle of sovereignty which prevails in States under a const.i.tutional government, and has, therefore, found little, if any, support from modern publicists, does not agree with the facts. Lastly, the statement that a servitude in International Law predicated an express grant of a sovereign right, is not based on any other authority than the contention of the United States, which made this unfounded statement in presenting their case before the Tribunal. The fact is that a State servitude, although to a certain degree it restricts the sovereignty (territorial supremacy) of the State concerned, does as little as any other restriction upon the sovereignty of a State confer a sovereign right upon the State in favour of which it is established.

[Footnote 382: See the official publication of the case, pp. 115-116; Hogg in _The Law Quarterly Review_, XXVI. (1910), pp. 415-417; Richards in _The Journal of the Society of Comparative Legislation_, New Series, XI. (1910), pp. 18-27; Lansing in A.J. V. (1911), pp. 1-31; Balch and Louter in R.I. 2nd Ser. XIII. (1911), pp. 5-23, 131-157.]