Volume I Part 33 (2/2)

[Sidenote: Subjects of State Servitudes.]

-- 204. Subjects of State servitudes are States only and exclusively, since State servitudes can exist between States only (_territorium dominans_ and _territorium serviens_). Formerly some writers[383]

maintained that private individuals and corporations were able to acquire a State servitude; but nowadays it is agreed that this is not possible, since the Law of Nations is a law between States only and exclusively. Whatever rights may be granted by a State to foreign individuals and corporations, such rights can never const.i.tute State servitudes.

[Footnote 383: Bluntschli, -- 353; Heffter, -- 44.]

On the other hand, every State can acquire and grant State servitudes, although some States may, in consequence of their particular position within the Family of Nations, be prevented from acquiring or granting some special kind or another of State servitudes. Thus neutralised States are in many points hampered in regard to acquiring and granting State servitudes, because they have to avoid everything that could drag them indirectly into war. Thus, further, half-Sovereign and part-Sovereign States may not be able to acquire and to grant certain State servitudes on account of their dependence upon their superior State. But apart from such exceptional cases, even not-full Sovereign States can acquire and grant State servitudes, provided they have any international status at all.

[Sidenote: Object of State Servitudes.]

-- 205. The object of State servitudes is always the whole or a part of the territory of the State the territorial supremacy of which is restricted by any such servitude.[384] Since the territory of a State includes not only the land but also the rivers which water the land, the maritime belt, the territorial subsoil, and the territorial atmosphere, all these can, as well as the service of the land itself, be an object of State servitudes. Thus a State may have a perpetual right of admittance for its subjects to the fishery in the maritime belt of another State, or a right to lay telegraph cables through a foreign maritime belt, or a right to make and use a tunnel through a boundary mountain, and the like. And should ever aerostation become so developed as to be of practical utility, a State servitude might be created through a State acquiring a perpetual right to send military aerial vehicles through the territorial atmosphere of a neighbouring State. It must, however, be emphasised that the Open Sea can never be the object of a State servitude, since it is no State's territory.

[Footnote 384: The contention of the United States, adopted by the Hague Arbitration Tribunal, in 1910, in the case of the North Atlantic Coast Fisheries, that a State servitude conferred a sovereign right upon the State in favour of which it is established, was refuted above in -- 203, p. 275.]

Since the object of State servitudes is the territory of a State, all such restrictions upon the territorial supremacy of a State as do not make a part or the whole of its territory itself serve a purpose or an interest of another State are not State servitudes. The territory as the object is the mark of distinction between State servitudes and other restrictions on the territorial supremacy. Thus the perpetual restriction imposed upon a State by a treaty not to keep an army beyond a certain size is certainly a restriction on territorial supremacy, but is not, as some writers[385] maintain, a State servitude, because it does not make the territory of one State serve an interest of another.

On the other hand, when a State submits to a perpetual right enjoyed by another State of pa.s.sage of troops, or to the duty not to fortify a certain town, place, or island,[386] or to the claim of another State for its subjects to be allowed the fishery within the former's territorial belt;[387] in all these and the like[388] cases the territorial supremacy of a State _is_ in such a way restricted that a part or the whole of its territory is made to serve the interest of another State, and such restrictions are therefore State servitudes.[389]

[Footnote 385: See, for instance, Bluntschli, -- 356.]

[Footnote 386: Thus by article 32 of the peace treaty of Paris, 1856, and by the Convention of March 30, 1856, between Great Britain, France, and Russia, annexed to the peace treaty of Paris--see Martens, N.R.G.

XV. pp. 780 and 788--Russia is prevented from fortifying the Aland Islands in the Baltic. See below, -- 522, and Waultrin in R.G. XIV. pp.

517-533. See also A.J. II. (1908), p. 397.]

[Footnote 387: Examples of such fishery servitudes are:--

(_a_) The former French fishery rights in Newfoundland which were based on article 13 of the Treaty of Utrecht, 1713, and on the Treaty of Versailles, 1783. See the details regarding the Newfoundland Fishery Dispute, in Phillimore, I. -- 195; Clauss, pp. 17-31; Geffcken in R.I.

XXII. p. 217; Brodhurst in _Law Magazine and Review_, XXIV. p. 67. The French literature on the question is quoted in Bonfils, No. 342, note 1.

The dispute is now settled by France's renunciation of the privileges due to her according to article 13 of the Treaty of Utrecht, which took place by article 1 of the Anglo-French Convention signed in London on April 8, 1904 (see Martens, N.R.G. 2nd Ser. x.x.xII. (1905), p. 29). But France retains, according to article 2 of the latter Convention, the right of fis.h.i.+ng for her subjects in certain parts of the territorial waters of Newfoundland.

(_b_) The fishery rights granted by Great Britain to the United States of America in certain parts of the British North Atlantic Coast by article 1 of the Treaty of 1818 which gave rise to disputes extending over a long period. The dispute is now settled by an award of the Hague Permanent Court of Arbitration given in September (1910). That the Court refused to recognise the conception of State servitudes, was pointed out above, -- 203. See above, -- 203, and the literature there quoted.]

[Footnote 388: Phillimore (I. -- 283) quotes two interesting State servitudes which belong to the past. According to articles 4 and 10 of the Treaty of Utrecht, 1713, France was, in the interest of Great Britain, not to allow the Stuart Pretender to reside on French territory, and Great Britain was, in the interest of Spain, not to allow Moors and Jews to reside in Gibraltar.]

[Footnote 389: The controverted question whether neutralisation of a State creates a State servitude is answered by Clauss (p. 167) in the affirmative, but by Ullmann (-- 99), correctly, I think, in the negative.

But a distinction must be drawn between neutralisation of a whole State and neutralisation of certain parts of a State. In the latter case a State servitude is indeed created.]

[Sidenote: Different kinds of State Servitudes.]

-- 206. According to different qualities different kinds of State servitudes must be distinguished.

(1) Affirmative, active, or positive, are those servitudes which give the right to a State to perform certain acts on the territory of another State, such as to build and work a railway, to establish a custom-house, to let an armed force pa.s.s through a certain territory (_droit d'etape_), or to keep troops in a certain fortress, to use a port or an island as a coaling station, and the like.

(2) Negative, are such servitudes as give a right to a State to demand of another State that the latter shall abstain from exercising its territorial supremacy in certain ways. Thus a State can have a right to demand that a neighbouring State shall not fortify certain towns near the frontier, that another State shall not allow foreign men-of-war in a certain harbour.[390]

[Footnote 390: Affirmative State servitudes consist _in patiendo_, negative servitudes _in non faciendo_. The rule of Roman Law _servitus in faciendo consistere nequit_ has been adopted by the Law of Nations.]

(3) Military, are those State servitudes which are acquired for military purposes, such as the right to keep troops in a foreign fortress, or to let an armed force pa.s.s through foreign territory, or to demand that a town on foreign territory shall not be fortified, and the like.

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