to the territory of the respective State. But such conceptions are political, and are outside the domain of International Law.

Conception of

State Ser

XI

STATE SERVITUDES

Vattel, ii. § 89-Hall, § 42*-Westlake, i. p. 61-Phillimore, i. §§ 281-283Twiss, i. § 245-—Taylor, § 252-Moore, i. §§ 163-168, ii. § 177-Hershey, Nos. 166-168-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. 190192-Mérignhac, ii. pp. 366-368 — Pradier-Fodéré, ii. Nos. 834-845, 1038-Rivier, i. pp. 296-303-Nys, ii. pp. 319-330-Calvo, iii. § 1583Fiore, i. § 380, and Code, Nos. 1100-1102-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. 314-323-Basdevant in R.G., xix. (1912), pp. 512-521-Potter in A.J., ix. (1915), pp. 627-641.

§ 203. State servitudes are those exceptional restrictions made by treaty on the territorial supremacy of a vitudes. 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 passage 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 1 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 conven

1 This is done, for instance, by Heffter (§ 43), Martens (§ 94), Nys (ii. pp. 320 ff.), and Hall (§ 42*);

Hall speaks of the right of innocent use of territorial seas as a servitude.

tional restrictions (servitutes juris gentium voluntariae) which constitute 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 passage of foreign merchantmen through its territorial maritime belt.

That State servitudes are of great importance, there can be no doubt. The vast majority 1 of writers and the practice of the States accept the conception of State servitudes, although they do not agree upon its definition or extent, and are often divided as to whether a particular restriction upon territorial supremacy is or is not a State servitude. But it was rejected by the Permanent Court of Arbitration at the Hague in the case of the North Atlantic Coast Fisheries (1910) between Great Britain and the United States,2 mainly upon three grounds: (1) that a servitude in International Law predicated an express grant of a sovereign right; (2) that the doctrine of international servitudes originated in the peculiar and now obsolete conditions prevailing in the Holy Roman Empire; (3) that, being little suited to the principle of sovereignty which prevails in States under a constitutional Government and to the present international relations of sovereign States, it 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. It suitably covers those restrictions on the territorial supremacy of

1 The conception of State servitudes is rejected by Bulmerincq ($49), Gareis (§ 71), Liszt (§§ 8 and 19), Jellinek (Allgemeine Staatslehre, p. 366).

* 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 Ser. 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; Drago and Basdevant in R. G., xix. (1912), pp. 5 and 421; Anderson in A.J., vii. (1913), pp. 1-16.

Subjects of State Servitudes.

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 it 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 assertion that it is but little suited to the principle of sovereignty which prevails in States under a constitutional 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 her case before the Tribunal. The fact is that a State servitude, although to a certain degree restricting the sovereignty (territorial supremacy) of the State concerned, does not confer a sovereign right upon the State in favour of which it is established, any more than does any other restriction upon sovereignty.1

§ 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 2 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 constitute State servitudes. On the other hand, every State can acquire and grant State servitudes, although some States may, in con

1 See below, § 206 (1). The existence of State servitudes was recognised by the Cologne Court of Appeal in 1914 (see A.J., viii. (1914),

pp. 858-860, 907-913).

2 See, for instance, Bluntschli, § 353; Heffter, § 43.

sequence of their particular position within the Family of Nations, be prevented from acquiring or granting some special kind or another of State servitudes. Thus a neutralised State is in many points hampered in regard to acquiring and granting State servitudes, because it has to avoid everything that could drag it 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 some international status.

State Ser

vitudes.

§ 205. The object of State servitudes is always the Object of whole or a part of the territory of the State the territorial supremacy of which is restricted by any such servitude. 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, as well as the service of the land itself, can 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. Or again, a State servitude might be created through a State acquiring a perpetual right to send military aircraft 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.

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 military, naval, or air forces, or not to keep an army, navy, or air force1 beyond a certain size, is certainly a restriction on territorial supremacy, but is not, as some writers 2 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 passage of troops, or to the duty not to fortify a certain town, region, place, or island,3 or to the claim of another State for its subjects to be allowed the fishery within the former's territorial belt,^—

1 See, for example, Part V. of the Treaties of Peace with Germany and Austria.

2 See, for instance, Bluntschli, § 356.

3 As to the Aland Islands in the Baltic, see Article 32 of the Peace Treaty of Paris, 1856, and the annexed Convention of March 30, 1856 (Martens, N.R.G., xv. pp. 780 and 788). See also below, § 522; Waultrin in R.G., xiv. pp. 517-533; and A.J., ii. (1908), p. 397. As to the coastal zone in Morocco, see Treaty between France and Spain of November 27, 1912, Article 6 (Martens, N.R.G., 3rd Ser. vii. p. 323). As to the banks of the Rhine, see Treaty of Peace with Germany, Articles 42-44 and 180. As to Heligoland, see ibid., Article 115. As to the coastal zone commanding the passage into the Baltic, see ibid., Article 195, and below, § 568e. As to Czecho-Slovak territory on the right bank of the Danube to the south of Bratislava, see Treaty of Peace with Austria, Article 56.

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, op. cit., pp. 17-31; Geffcken in R.I., xxii. p. 217; Brodhurst in the Law Magazine and Review, xxiv. p. 67. The French literature on the question is quoted in Bonfils, No. 342, n. 1. The dispute was settled by France's renunciation of the privi leges 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. xxxii. p. 29). But France retains, according to Article 2 of the latter convention, the right of fishing 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 was settled by an award of the Hague Permanent Court of Arbitration given in September 1910, in which (see above, § 203) the Court refused to recognise the conception of State servitudes.