1

in all these and the like 1 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.2

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

Kinds of
State Ser-

(1) Affirmative, active, or positive, are those servi- vitudes. tudes 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 pass through a certain territory (droit d'étape), or to keep troops in a certain fortress, to use a port or an island as a coaling station, and the like. Also affirmative are those servitudes which give the right to a State to demand that its subjects shall be allowed to perform certain acts on the territory of another State, such as to fish within certain territorial waters, etc.3

(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

1 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.

* The controverted question whether neutralisation of a State creates a State servitude is answered by Clauss, op. cit. (p. 167), in the affirmative, but by Üllmann (§ 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 VOL. I.

2 A

case a State servitude is indeed
created.

The

The contention of the United States, adopted by the Hague Arbitration Tribunal in 1910 in the North Atlantic Coast Fisheries case (see above, § 203), that a State servitude must confer a sovereign right upon the State in favour of which it is established, is untenable. sovereignty of the State which grants a servitude to another State is indeed thereby somewhat restricted, but no sovereign right accrues in consequence to the grantee. For this reason, in the case of a fishery servitude, the grantee is not entitled to demand that its consent should be asked for general regulations for the preservation of the fisheries, or for customs purposes and the like.

Validity of State

Servitudes.

that a neighbouring State shall not fortify certain towns near the frontier, or that another State shall not allow foreign men-of-war in a certain harbour.1

(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 pass through foreign territory, or to demand that a town on foreign territory shall not be fortified, and the like.

(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.

§ 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 ownership 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 Hüningen became German in 1871, and again, when it became French in 1918, the State servitude created by the Peace Treaty of Paris, 1815, that Hüningen should, in the interest of the Swiss canton of Basle, never be fortified, was not extinguished.2 Thus, further, when in 1860 the former Sardinian provinces of Chablais and Faucigny, and the whole of the territory of Savoy to the north of Ugine, became French, the State servitude created by Article 92 of the Act of the Vienna Congress, 1815, that Switzerland should have

1 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.

2 Details in Clauss, op. cit., pp. 15-17.

temporarily during war the right to locate troops in these provinces, was not extinguished.1

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 passage of troops ? 2 There ought to be no doubt that the answer must be in the affirmative.

tion of

tudes.

§ 208. State servitudes are extinguished by agree- Extincment between the States concerned, or by express or State tacit 3 renunciation on the part of the State in whose Servi 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 cannot be applied in case a vital change of circumstances 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

1 Details in Clauss, op. cit., pp. 8-15. See also Trésal, who, in L'Annexion de la Savoie en France (1913), asserted that through the annexation of these provinces by France, their neutralisation had fallen to the ground. Now, however, by Article 435 of the Treaty of Peace with Germany, the High Contracting Parties have declared that the provisions of Article 92 of the Final Act of the Vienna Congress, and other provisions relating to the neutralised zone of Savoy, are no longer consistent with present conditions, and 'note the agreement reached between the French Government and the Swiss Government for

cannot be arrived at on account of the unreasonableness of the other party, the clause rebus sic stantibus may well be resorted to.1

Who can

acquire

XII

MODES OF ACQUIRING STATE TERRITORY

Vattel, i. §§ 203-207-Hall, § 31-Westlake, i. pp. 86-118-Lawrence, §§ 7478-Phillimore, i. §§ 222-225-Twiss, i. §§ 113-139-Halleck, i. p. 154– Taylor, §§ 217-227-Wheaton, §§ 161-163-Bluntschli, §§ 278-295Hartmann, § 61-Heffter, § 69-Holtzendorff in Holtzendorff, ii. pp. 252-255-Gareis, § 70-Liszt, § 10-Ullmann, § 92-Bonfils, No. 532— Despagnet, No. 378-Pradier-Fodéré, ii. Nos. 781-783-Mérignhac, ii. pp. 410-413-Rivier, i. § 12-Nys, ii. pp. 1-4-Calvo, i. § 263-Fiore, ii. Nos. 838-840— Martens, i. § 90-Heimburger, Der Erwerb der Gebietshoheit (1888) - Jerusalem, Ueber völkerrechtliche Erwerbsgründe (1911).

§ 209. Since States only and exclusively 2 are subState jects of the Law of Nations, it is obvious that, as far as Territory? the Law of Nations is concerned, States 3 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 by private individuals or corporations of territory and of sovereignty over territory which lies outside the dominion of the Law of Nations.

(1) Whenever a multitude of individuals, living on, or entering into, a part of the surface of the globe which does not belong to the territory of any member of the Family of Nations, constitute themselves as a State

1 See Bluntschli, § 359d and Pradier-Fodéré, ii. No. 845. Clauss, op. cit. (p. 222), and others oppose this sound statement likewise.

2

Apart from the League of Nations. 3 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.

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,1 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.

(2) Not essentially different is the case in which a private individual or a corporation acquires land (together with sovereignty over it) in countries which are not under the territorial supremacy of a member of the Family of Nations. In all such cases acquisition is in practice made either by occupation of hitherto uninhabited land, for instance an island, or by cession from a native tribe living on the land. Acquisition of territory and sovereignty thereon in such cases takes place outside the dominion of the Law of Nations, and the rules of this law, therefore, cannot be applied. If the individual or corporation which has made the acquisition requires protection by the Law of Nations, he or it must either declare a new State to be in existence and ask for its recognition by the Powers, as in the case of the former Congo Free State,2 or must ask a member of the Family of Nations to acknowledge the acquisition as having been made on its behalf.3

1 See above, § 71.

2 See above, § 101. The case of Sir James Brooke, who acquired in 1841 Sarawak, in North Borneo, and established an independent State there, of which he became the sovereign, may also be cited. Sarawak is under British protectorate, but the successor of Sir

James Brooke is still recognised as sovereign.

3 The matter is treated with great lucidity by Heimburger, op. cit., pp. 44-77, who defends the opinion represented in the text against Twiss (i. Preface, p. x.; also in R.I., xv. p. 547, and xvi. p. 237) and other writers. See also Ullmann, § 93.