Volume I Part 34 (1/2)
(4) Economic, are those servitudes which are acquired for the purpose of commercial interests, traffic, and intercourse in general, such as the right of fisheries in foreign territorial waters, to build a railway on or lay a telegraph cable through foreign territory, and the like.
[Sidenote: Validity of State Servitudes.]
-- 207. Since State servitudes, in contradistinction to personal rights (rights _in personam_), are rights inherent to the object with which they are connected (rights _in rem_), they remain valid and may be exercised however the owners.h.i.+p of the territory to which they apply may change. Therefore, if, after the creation of a State servitude, the part of the territory affected comes by subjugation or cession under the territorial supremacy of another State, such servitude remains in force.
Thus, when the Alsatian town of Huningen became in 1871, together with the whole of Alsace, German territory, the State servitude created by the Treaty of Paris, 1815, that Huningen should, in the interest of the Swiss canton of Basle, never be fortified, was not extinguished.[391]
Thus, further, when in 1860 the former Sardinian provinces of Chablais and Faucigny became French, the State servitude created by article 92 of the Act of the Vienna Congress, 1815, that Switzerland should have temporarily during war the right to locate troops in these provinces, was not extinguished.[392]
[Footnote 391: Details in Clauss, pp. 15-17.]
[Footnote 392: Details in Clauss, pp. 8-15.]
It is a moot point whether military State servitudes can be exercised in time of war by a belligerent if the State with whose territory they are connected remains neutral. Must such State, for the purpose of upholding its neutrality, prevent the belligerent from exercising the respective servitude--for instance, the right of pa.s.sage of troops?[393]
[Footnote 393: This question became practical when in 1900, during the South African war, Great Britain claimed, and Portugal was ready to grant, pa.s.sage of troops through Portuguese territory in South Africa.
See below, vol. II. ---- 306 and 323; Clauss, pp. 212-217; and Dumas in R.G. XVI. (1909), pp. 289-316.]
[Sidenote: Extinction of State Servitudes.]
-- 208. State servitudes are extinguished by agreement between the States concerned, or by express or tacit[394] renunciation on the part of the State in whose interest they were created. They are not, according to the correct opinion, extinguished by reason of the territory involved coming under the territorial supremacy of another State. But it is difficult to understand why, although State servitudes are called into existence through treaties, it is sometimes maintained that the clause _rebus sic stantibus_[395] cannot be applied in case a vital change of circ.u.mstances makes the exercise of a State servitude unbearable. It is a matter of course that in such case the restricted State must previously try to come to terms with the State which is the subject of the servitude. But if an agreement cannot be arrived at on account of the unreasonableness of the other party, the clause _rebus sic stantibus_ may well be resorted to.[396] The fact that the practice of the States does not provide any example of an appeal to this clause for the purpose of doing away with a State servitude proves only that such appeal has. .h.i.therto been unnecessary.
[Footnote 394: See Bluntschli, -- 359 b. The opposition of Clauss (p.
219) and others to this sound statement of Bluntschli's is not justified.]
[Footnote 395: See below, -- 539.]
[Footnote 396: See Bluntschli, -- 359 d, and Pradier-Fodere, II. No. 845.
Clauss (p. 222) and others oppose this sound statement likewise.]
XI
MODES OF ACQUIRING STATE TERRITORY
Vattel, I. ---- 203-207--Hall, -- 31--Westlake, I. pp.
84-116--Lawrence, ---- 74-78--Phillimore, I. ---- 222-225--Twiss, I.
---- 113-139--Halleck, I. p. 154--Taylor, ---- 217-228--Wheaton, ---- 161-163--Bluntschli, ---- 278-295--Hartmann, -- 61--Heffter, -- 69--Holtzendorff in Holtzendorff, II. pp. 252-255--Gareis, -- 76--Liszt, -- 10--Ullmann, -- 92--Bonfils, No. 532--Despagnet, No.
378--Pradier-Fodere, II. Nos. 781-787--Merignhac, II. pp.
410-412--Rivier, I. -- 12--Nys, II. pp. 1-3--Calvo, I. -- 263--Fiore, I. Nos. 838-840--Martens, I. -- 90--Heimburger, ”Der Erwerb der Gebietshoheit” (1888).
[Sidenote: Who can acquire State Territory?]
-- 209. Since States only and exclusively are subjects of the Law of Nations, it is obvious that, as far as the Law of Nations is concerned, States[397] solely can acquire State territory. But the acquisition of territory by an existing State and member of the Family of Nations must not be confounded, first, with the foundation of a new State, and, secondly, with the acquisition of such territory and sovereignty over it by private individuals or corporations as lies outside the dominion of the Law of Nations.
[Footnote 397: There is no doubt that no full-Sovereign State is, as a rule, prevented by the Law of Nations from acquiring more territory than it already owns, unless some treaty arrangement precludes it from so doing. As regards the question whether a neutralised State is, by its neutralisation, prevented from acquiring territory, see above, -- 96, and below, -- 215.]
(1) Whenever a mult.i.tude of individuals, living on or entering into such a part of the surface of the globe as does not belong to the territory of any member of the Family of Nations, const.i.tute themselves as a State and nation on that part of the globe, a new State comes into existence.
This State is not, by reason of its birth, a member of the Family of Nations. The formation of a new State is, as will be remembered from former statements,[398] a matter of fact, and not of law. It is through recognition, which is a matter of law, that such new State becomes a member of the Family of Nations and a subject of International Law. As soon as recognition is given, the new State's territory is recognised as the territory of a subject of International Law, and it matters not how this territory was acquired before the recognition.