subject to the same exceptions, an agreement to adjust a controversy relating to a boundary by reference to an international tribunal, serves to impose upon the contracting parties an obligation to abide by the award.

Even when there is no disagreement as to the principles governing the course of a boundary, or after a judicial tribunal has indicated how it should be drawn, the actual demarcation or delimitation of the line may give rise to special technical problems. For their solution it is not uncommon to arrange by convention for the appointment of experts to mark the boundary according to given directions, and to agree that the line thus established shall be deemed to be the true boundary. Provision is sometimes made that in case such experts disagree, separate reports shall be made to the contracting States, which shall thereupon take further steps to reach an agreement.2

The decisions of domestic tribunals as to the extent of the national domain cannot affect the adverse claims of a foreign State; and they may also serve seriously to embarrass the proper department of the same Government in the assertion of rights of sovereignty. Matters of such a character are, therefore, regarded as raising questions essentially political rather than judicial. Hence the decisions of the political department of a State are, in the case of the United States, deemed to be binding upon the courts. Of the extent of the territorial limits announced by the

and Great Britain for the settlement of the Alaskan Boundary dispute, For. Rel. 1903, 488, Malloy's Treaties, I, 787; also Article IV of Convention of Feb. 2, 1897, between Great Britain and Venezuela for the settlement of the British Guiana-Venezuelan Boundary Dispute, Brit. and For. State Pap., LXXXIX, 57; Moore, Dig., I, 297.

1 See, for example, convention between the United States and Mexico, of July 29, 1882, providing for an international commission to re-locate the international boundary in certain places, Malloy's Treaties, I, 1141; also convention between the United States and Great Britain, of April 11, 1908, concerning the Canadian international boundary, id., 815. Cf. Art. 35 of treaty of peace with Germany of June 28, 1919, relative to the settlement of the new frontier line between Belgium and Germany.

2 See, for example, Article IX of convention between the United States and Great Britain, of April 11, 1908, for the more complete definition and demarcation of the boundary between the United States and the Dominion of Canada, Malloy's Treaties, I, 826.

3 In Jones v. United States, 137 U. S. 202, 212-213, it was declared by Mr. Justice Gray in the course of the opinion of the Court: "Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances. Gelston v. Hoyt, 3 Wheat. 246, 324; United States v. Palmer, 3 Wheat. 610; The Divina Pastora, 4 Wheat. 52; Foster v. Neilson, 2 Pet. 253, 307, 309; Keane v. McDonough, 8 Pet. 308; Garcia v. Lee, 12 Pet. 511, 520; Williams v.

former, the latter take judicial notice.1 This is true whether a boundary is the subject of international controversy, or a question arises as to what State or authority therein is to be regarded as possessing rights of sovereignty over any particular geographical area. The decisions of the political department in such matters are likewise binding upon the nationals of the same State.3

b

Certain Limitations of the Right of Control over What Pertains to the Territory of a State

(1)

§ 152. In General. Servitudes.

The supremacy of a State as sovereign over what constitutes the national domain, embracing the land and territorial waters Suffolk Ins. Co., 13 Pet. 415; United States v. Yorba, 1 Wall. 412, 423; United States v. Lynde, 11 Wall. 632, 638. It is equally well settled in England. The Pelican, Edw. Adm. appx. D; Taylor v. Barclay, 2 Sim. 213; Emperor of Austria v. Day, 3 DeG., F. & J. 217, 221, 233; Republic of Peru v. Peruvian Guano Co., 36 Ch. D. 489, 497; Republic of Peru v. Dreyfus, 38 Ch. D. 248, 356, 359." Cf., also, Pearcy v. Stranahan, 205 U. S. 257; Oetjen v. Central Leather Co., 246 U. S. 297.

1 Jones v. United States, 137 U. S. 202, 214, where it was said: "All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the sovereignty of a foreign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence, nor in accord with the pleadings."

2 Foster v. Neilson, 2 Pet. 253, 307; Garcia v. Lee, 12 Pet. 511; Williams v. Suffolk Ins. Co., 13 Pet. 415, 420; United States v. Reynes, 9 How. 127; United States v. Texas, 143 U. S. 621; Jones v. United States, 137 U. S. 202, 212-213; In re Cooper, 143 U. S. 472, 502-505; Reg. v. Keyn, 2 Ex. D. 63; Pearcy. Stranahan, 205 U. S. 257, 265. Compare concurring opinion of Mr. Justice White, id., 273.

In the course of the opinion of the Court in In re Cooper, supra, at 503, it was declared that: "We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, 'since we have no more right to decline the jurisdiction which is given than to usurp that which is not given.""

Cf., also, Cordova v. Grant, 248 U. S. 413, where the plaintiff's title to land depended on whether the international boundary along the Rio Grande had shifted with the river. The defendant asserted that the United States, although exercising de facto jurisdiction over the locus, had conceded the boundary to be unsettled, having by treaty agreed to adjust it by an international commission with exclusive jurisdiction to settle it. It was held that this circumstance did not oust the United States District Court of jurisdiction in the particular case, because the United States had rejected the action of the commission under the treaty, and had also waived objections based on comity to the litigation.

Poole v. Fleeger, 11 Pet. 185; Robinson v. Minor, 10 How. 627; Mr.

and superjacent air space, must be recognized as a fundamental principle of international law, to which the United States avows attachment. There exist, however, certain definite limitations which in practice are acknowledged to restrict the territorial sovereign in the exercise of rights of control, and which vary somewhat according to the nature of the thing over which those rights are asserted. It will be seen that with respect to certain of its territorial waters a State is not deemed to enjoy the same measure of control that it commonly asserts over its lands, and again, that the restrictions to which it is subjected in relation to different classes of water areas are not identical in kind or extent. Thus the duty of a State to yield to foreign vessels a so-called innocent passage along its marginal seas differs widely from that to accord them any privileges of navigation through a river forming an international boundary.

At the present time there is evidence of fresh demands upon the individual State to make concessions heretofore not regarded as obligatory. It is called upon to permit, under conditions not hurtful to itself, foreign powers to make limited use of the air space over the national domain,2 and to afford them also certain privileges of transit by land.3

When the limitation of the right of control is so widely recognized and uniformly applied that every foreign power may reasonably demand observance of it for the benefit of itself or its nationals, it becomes unnecessary to record the fact in treaties. When, however, the limitation is one which is commonly acknowledged to be applicable without discrimination solely in favor of States possessed of a special geographical or economic relationship to the particular area concerned, the need of an appropriate convention is usually conceded. In such case the duty of the territorial sovereign to agree specifically with other States within the favored class, with respect at least to certain limitations, seems to be recognized. Nevertheless, it will be found that the restrictions of a treaty may be such as the territorial sovereign is far from acknowledging the slightest obligation to agree to impose upon itself, and which it yields on grounds of expediency, or in return for a substantial concession. Thus

Buchanan, Secy. of State, to Mr. Calderon de la Barca, July 27, 1847, MS. Notes to Spain, VI, 155, Moore, Dig., I, 746.

1Cf. The Supremacy of the Territorial Sovereign over the National Domain, In General, infra, § 199.

2 Cf. Air Space over the National Domain, In General, infra, § 188. Cf. Transit by Land, In General, infra, § 194.

conventions which register what each of the parties thereto appears to regard as common and necessary limitations of the exercise of control over its domain by a contracting territorial sovereign are to be distinguished from those which reveal no such design.

That a State is obliged to limit its freedom of control over anything pertaining to its territory, such as land or water or air, is due to the interest of the international society in the restriction. That interest has only been acute when it had been clearly and widely perceived to be mutually advantageous for all States under like circumstances. The clearness of the perception has resulted from a common understanding of commercial needs and has been aided according to their growth. Those needs early demanded a right of innocent passage for ships of every flag through the waters in close proximity to the ocean coasts of States adjacent to the sea. Later, privileges of navigation through international rivers by foreign vessels of riparian and even non-riparian States were increasingly sought and obtained. In the advocacy of relevant principles American statesmen played no small part. At the present time, the potentialities of existing agencies of communication and of transportation strengthen the plea that no longer should any remote and interior State remain isolated from the sea when access thereto is to be had through foreign territory, by air or by land, as well as by water. It will be found, however, that statesmen still evince reluctance to impose fresh restrictions of universal application upon a territorial sovereign with respect to what it has hitherto been deemed to possess rights of exclusive control, which have been exercised with slight restraint. The limitations thus far imposed by convention in relation to the use of air space, or transit by land, constitute concessions which the contracting parties would doubtless be reluctant to acknowledge as declaratory of existing legal duties towards each other.

The needs of the international society can never be deemed to justify the attempt to restrict anew the freedom of its individual members in what pertains to the control of their respective territories until it is agreed on all sides not only that the limitation is beneficial for its entire membership, but also that a failure to apply it is subversive of justice among the nations. Differing sets of circumstances may combine to produce such conclusions. It suffices to observe that the necessary combination may be

recurrent.

$153. The Same.

3

Treaties which impose upon a territorial sovereign limitations of control over its domain which are not required by international law, either for the sake of States generally, or for that of special groups of them, differ widely in scope and design. They may embrace leases of particular areas in perpetuity, vesting in the lessee substantial rights of sovereignty; they may purport to yield for all time to the inhabitants of foreign territory, as did the convention between the United States and Great Britain of October 20, 1818,2 purely economic rights such as fishing privileges within specified places; they may confer a right of passage across territory; they may burden the territorial sovereign with a duty not to fortify places along its frontier; they may contemplate no arrangement that shall survive the time when the grantor ceases to maintain its sovereignty over the territory concerned. When the arrangement purports to attach permanently to territory or its appurtenances a restriction with respect to freedom of control for the benefit of a State other than the sovereign, the limitation is oftentimes described as a servitude. There is disagreement, however, as to what limitations possessed of such a character may be fairly so designated. There is controversy whether a servitude confers certain rights of sovereignty such as those of governmental administrative control upon the foreign State in whose favor it is yielded. It may be greatly doubted,

1 See, for example, convention between the United States and Panama, of Nov. 18, 1903, for the construction of a ship canal, Malloy's Treaties, II, 1349. Cf. Panama, supra, § 20.

2 Malloy's Treaties, I, 631.

3 Art. 42 of the Treaty of Peace of Versailles, of June 28, 1919, whereby Germany was forbidden to maintain or construct any fortifications either on the left bank of the Rhine or on the right bank to the west of a specified line. In the area defined, the maintenance and the assembly of armed forces, either permanently or temporarily, and military maneuvers of any kind, as well as the upkeep of all permanent works for mobilization, were in the same way forbidden. See Art. 43.

4 In the course of the North Atlantic Coast Fisheries Arbitration it was alleged by the United States that the liberties of fishery granted to it by Art. I of the convention of Oct. 20, 1818, constituted an international servitude over the territory of Great Britain, thereby involving a derogation from the sovereignty of Great Britain, the servient State, and that, therefore, Great Britain was deprived, by reason of the grant, of its independent right to regulate the fishery. The Tribunal in its award disagreed with this contention for various reasons. It was declared that there was no evidence that the doctrine of international servitudes was one with which either American or British statesmen were conversant in 1818. It was said that "a servitude in international law predicates an express grant of a sovereign right and involves an analogy to the relation of a praedium dominans and a praedium serviens; whereas by the treaty of 1818, one State grants a liberty to fish, which is not a sovereign right, but a purely economic right, to the inhabitants of another