International Law. A Treatise Volume I Part 33

[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 Washington 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.]

[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 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 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.