Natural Boundaries

sensu

politico.

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 Prusso-Belgian frontier.1

§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 2 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 whatever to the Law of Nations, whatever value they may have politically.

1 See above, § 171, No. I.

2 See Rivier, I. p. 166.

X

STATE SERVITUDES

Hall, § 42*-Westlake, I. p. 61-Phillimore, I. §§ 281-283-Twiss, I, § 245-Taylor, § 252-Bluntschli, §§ 353-359-Hartmann, § 62Heffter, § 43-Holtzendorff in Holtzendorff, II. pp. 242–252— Gareis, § 71-Liszt, §§ 8 and 19-Ullmann, § 88-Bonfils, Nos. 340344-Despagnet, Nos. 190-192-Pradier-Fodéré, II. Nos. 834-845, 1038-Rivier, I. pp. 296–303—Calvo, III. § 1583—Fiore, I. § 380— Martens, I. §§ 94-95-Clauss, "Die Lehre von den Staatsdienstbarkeiten" (1894)-Fabres, "Des servitudes dans le droit international" (1901).

tion of

§ 203. State servitudes are those exceptional and Concepconventional restrictions on the territorial supremacy State Serof a State by which a part or a whole of its territory vitudes. is in a limited way made to perpetually serve a certain purpose or interest of another State. Thus a State may through 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.

That State servitudes are or may on occasions be of great importance, there can be no doubt whatever. The vast majority 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. Servitudes must not be confounded 2 with those

Subjects of

vitudes.

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 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.

§ 204. Subjects of State servitudes are States only State Ser- and exclusively, since State servitudes can exist between States only (territorium dominans and territorium serviens). Formerly some writers1 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 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 1 Bluntschli, § 353; Heffter, § 43.

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.

§ 205. The object of State servitudes is always Object of the whole or a part of the territory of the State State Serwhose territorial supremacy 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 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 build and use a tunnel through a boundary mountain, and the like. And should ever aërostation 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.1

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

It need hardly be mentioned the object of a State servitude, that the Open Sea can never be since it is no State's territory.

Different kinds of State Servitudes.

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 writers1 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 on the frontier, or to the claim of another State for its subjects to be allowed the fishery within the former's territorial belt; 2 in all these and the like 3 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.4

§ 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

1 Bluntschli, § 356.

2 An example of such fishery servitude is 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 New. foundland 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 I. The dispute is now settled through France's renunciation of the privileges due to her according to article 13 of the Treaty of Utrecht, which took place by article I of the Anglo-French Convention signed in London on April 8, 1904. 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.

3 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 an swered by Clauss (p. 167) in the affirmative, but by Ullmann (§ 88), 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.