international law of the right conferred upon the United States by the treaty of 1818, will aid in solving the conflicting contentions under this Question. The provisions of the treaty will then be examined to determine the measure and extent of the right conferred and whether the granting state has reserved the right to make limiting regulations; application will then be made to the several contentions of Question One of the principles of international law which it is thought properly govern them. NATURE OF AN INTERNATIONAL SERVITUDE. The conception of international servitudes, so clearly recognized in international law and applied by nations in their intercourse, is borrowed from the Roman law. The various examples of the jura in re aliena, recognized by that law, are enumerated and their nature defined, by the writers on the civil law, among whom those mentioned below may be cited." The Roman law servitudes were divided into personal servitudes, the usus, ususfructus, habitatio and operae servorum, and real (praedial) servitudes. The latter were again divided into rural servitudes, (servitutes praediorum rusticorum) and urban servitudes (servitutes praediorum urbanorum). The most important of the rural servitudes were the servitus itineris, actus, viae, and aquaeductus, embracing the several rights of way, and the right of drawing water on another's land. The most important urban servitudes were the servitus altius non tollendi, having reference to the height of buildings; the servitus tigni immitendi, the right of placing beams in a neighbor's wall to support the story of a building; the servitus oneris ferendi, the right to use a neighbor's wall to support another wall; and the servitus stillicidii, the right to drop or to conduct rain water on a neighbor's premises. The praedial servitudes were inseperably connected with land and must have had as a necessary foundation a praedium serviens upon which the servitude was imposed and a praedium dominans to enjoy the benefit of the servitude. The one piece of land was said to serve the other. a Moyle: The Institutes of Justinian, 4 ed. (1906), pp. 46-47. Moyle: Imperatoris Justiniani Institutiones, 2 ed., pp. 216 note, 217 note, 219-222 notes. Sohm: Institutes of Roman Law, translated by Ledlie, 2 ed. (1901), pp. 358–368. The servitudes were either positive or negative, and were said to consist in patiendo, the allowance by the owner to another of some beneficial use of his land, or, in non faciendo, the owner being obliged to refrain from doing some act in connection with his land which he would otherwise be at liberty to do. No servitude could consist in faciendo; that is, that the owner be obliged to perform some affirmative act or duty. Rights of the latter class were called obligations and were in personam. Rights of the former class were true jura in re aliena and were rights in rem. Servitudes, once created and until extinguished, were inseparably connected with the land, passing with the land (both the praedium serviens and the praedium dominans) when conveyed to third persons and to their successors. a Doctor Moyle defined a servitude, embracing both real and personal servitudes in his definition, as "a real right, vested in or annexed to a definite person or piece of land, over some object belonging to another, and limiting the enjoyment of that object by that other in a definite manner." Doctor Sohm traces the development of servitudes to the exigencies of human intercourse, which can not be satisfied by ownership alone, but require that it be possible for one person to lawfully deal with things which belong to another; and to the fact that mere obligatory rights of that character would be incomplete because subject to be defeated, and not capable, while subsisting, of adequate protection. He says: " Thus the rights we acquire in respect of the property of others by means of obligatory transactions are but incomplete, because their effect is merely personal. The need we are here discussing is therefore not adequately met by transactions of this description. There must be rights in respect of the property of others which enjoy a more effectual protection. It was for the purpose of satisfying the need in question that the real rights in re aliena were developed. The rights they confer in respect of the things are stronger, because they are absolute, i. e. they are rights which operate and are enforceable as against any third party. The servitude of the Roman Law is thus a real right, that is to say, a jus in re aliena, as distinguished from a mere obligation. It existed between estate and estate for the benefit of the dominate estate; it was created for the benefit of that estate, and the right of enjoyment passed with the land into whose hands soever it came, until the a Moyle: Imperatoris Justiniani Institutiones, 2 ed., p. 216, note. servitude was extinguished by operation of law or by the act of the parties. The analogy between the servitude of the Roman Law and that of international law is so obvious as not to require discussion. From the private law of Rome the doctrine of servitudes passed into Germany, and was the immediate source of the so-called state servitudes, so frequently met with in the relations of the German states under the old Empire; and by means of the careful and learned treatises of German writers as well as by the reasonableness of the institution, the doctrine has been firmly incorporated into the theory and practice of modern international law." a See the following references to International Law, in all of which the doctrine of servitudes is recognized and treated with varying degrees of fullness and detail: Bluntschli: Das Moderne Völkerrecht der civilisirten Staten (1868, French translation by Lardy, 5th ed., 1895), secs. 353-359, pp. 212–215; Bonfils: Manuel de Droit International Public, 5th ed. edited by Fauchille, (1908), secs. 339-344, pp. 189-192; Calvo: Dictionnaire de Droit International (1885), Vol. II, pp. 214–215; idem: Droit International, 5th ed. (1890), Vol. III, sec. 1583, pp. 356-357; Chrétien: Principes de Droit International Public (1893), secs. 259263, pp. 268-273; Clauss: Die Lehre von den Staatsdienstbarkeiten (1894); Creasy: First Platform of International Law (1876), secs. 256-261; Despagnet: Cours de Droit International Public, 3d ed. (1905), secs. 190-192, pp. 204–207; Diena: Principi di Diritto Internazionale (1908), pp. 125–129; Fiore: Diritto Internazionale Codificato, 4th ed. (1909), secs. 1095-1097, pp. 428-429; idem: French translation by Chrétien (1890), secs. 615-619; idem: Nouveau Droit International Public (French translation by Antoine, 1885), Vol. I, sec. 380-381, pp. 336-338; Vol. II, secs. 829-830, pp. 116-118; Fabre: Des Servitudes dans le Droit International (1901); Gareis: Institutionen des Völkerrechts 2d ed. (1901), sec. 71, pp. 205-206; Hall; International Law 5th ed. (1904), pp. 159160; Halleck: International Law (1861), ch. IV, sec. 20, pp. 92–93; Hartmann: Institutionen des praktischen Völkerrecht (1874), sec. 62, pp. 179–181; Heffter: Furopäisches Völkerrecht der Gegenwart (1844), French edition edited by Geffcken (1883), secs. 43, 64, 67, pp. 104-108, 154, 158; Heilborn: System des Völkerrechts (1896), pp. 30-34; Hollatz: Begriff und Wesen der Staatsservituten (1908); Holtzendorff: Handbuch des Völkerrechts (1887), Vol. II, sec. 52, pp. 246–252; Klüber: Droit des Gens Moderne de l'Europe (1819, cited from Ott's 2d ed., 1874), secs. 137-139, pp. 194-198; Lomonaco: Trattato di Diritto Internazionale Pubblico (1905), p. 248; G. F. de Martens: Précis du Droit des Gens Moderne de l'Europe, edited by Vergé (1864), Vol. I, sec. 115, pp. 313-315; F. de Martens: Traité de Droit International (French translation by Léo, 1883), Vol. I, secs. 93–95, pp. 479-491; Mérignhac: Traité de Droit International Public (1907), Vol. II, pp. 366–370; Neumann: Grundriss des heutigen Europäischen Völkerrechts, 3d ed. (1885), sec. 13, pp. 31-33; Olivart: Tratado de Derecho Internacional Publico, 4th ed. (1903), sec. 53, pp. 368-372; H. B. Oppenheim: System des Völkerrechts, 2d ed. (1866), secs. 9-10, pp. 140-145; L. Oppenheim: International Law (1905), Vol. I, secs. 203–208, pp. 257-263; Phillimore: International Law, 3d ed. (1879), Vol. I, secs. 277-283, pp. 388-392; Piédeliévre: Précis de Droit International Public (1894), sec. 288, p. 259; Pradier-Fodéré : Traité de Droit International Public (1885), Vol. II, secs. 834-845, pp. 395-406; Rivier: Lehrbuch des Völkerrechts, 2d ed., 1899, pp. 192-194; idem: Principes du Droit des Gens, 1896, Vol. I, sec. 23, pp. 296–303; Taylor: International Public Law (1901), secs. 217, 252, 346, pp. 263, 299–301, 369; Twiss: Law of Nations, 2d ed. (1884), Vol. I, sec. 245, pp. 423-424; Ullmann: Völkerrecht, 2d ed. (1908), secs. 99-100, pp. 319-324; Vattel: Droit des Gens, 1758 (Chitty's English translation, edited by Ingraham, 1852), Bk. II, ch. 7, sec. 89, p. 168; Westlake: International Law (1904), Vol. I, pp. 60-62; Wharton: Commentaries on American Law (1884), secs. 149-150, pp. 228-229; Wheaton: International Law (Dana's ed., 1866), sec. 268; Wilson & Tucker: International Law, 5th ed. (1909), pp. 123, 152–153. Although a servitude, as a recognized institution of Roman private law, is a prototype of international servitude, it is but natural that the servitude of public law should differ materially from the servitude of private law, because in the latter the relation is between individuals, whereas, in the former system the servitude is created by and exists only between states. In essence, however, the servitude of public or private law is a jus in re aliena as distinguished from an obligation, and the rules of private law for the creation, enjoyment, extinguishment, and interpretation of servitudes are of very considerable service in the consideration of international servitudes, although by virtue of the difference between the parties to the two classes of servitudes they are to be applied by analogy. Although the analogy is well recognized by the authorities, the doctrine is sometimes stated in general terms without reference either to its origin or its analogy to Roman law. Thus, in Vattel's Law of Nations, first published in 1758, and which has since been the favorite handbook of diplomacy, if one may judge from the frequency of its quotation by men of affairs and state papers, it is said:" There exists no reason why a nation, or a sovereign if authorized by the laws, may not grant various privileges in their territories to another nation or to foreigners in general, since everyone may dispose of his own property as he thinks fit; thus, several sovereigns in the Indies have granted to the trading nations of Europe the privilege of having factories, ports, and even fortresses and garrisons in certain places within their dominions. We may, in the same manner, grant the right of fishing in a river, or on the coast, that of hunting in the forest, etc. * * * When once these rights have been completely ceded, they constitute a part of the possessions of him who has acquired them, and ought to be respected in the same manner as his former possessions. It will be noticed that the Swiss publicist does not enter into the technicalities or niceties of servitude, nor does he mention them by name, but he declares unequivocally the right which independent nations possess, by virtue of their independence, to grant "various privileges in their territories to another nation." The development of the doctrine since Vattel's period will be seen by consulting the recent valuable work on international law, published in 1905 by Doctor Oppenheim, the present accomplished pro a Vattel: Law of Nations (1758) (Chitty's translation with notes by Ingraham), Book II, ch. 7, sec. 89, p. 168. fessor of international law at Cambridge University. Doctor Oppenheim thus deals with the subject of international servitudes: " α State servitudes are those exceptional and conventional restrictions on the territorial supremacy of a state by which a part or a whole of its territory 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 neighboring state, or may in the interest of a neighboring state be prevented from fortifying a certain town near the frontier. (Sec. 203.) Subjects of state servitudes are states only and exclusively, since state servitudes can exist between states only (territorium dominans and territorium serviens). (Sec. 204.) The object of state servitudes is always the whole or a part of the territory of the state whose 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. * * * 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 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; in all these and the like 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. (Sec. 205.) 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, a Oppenheim: International Law, Vol. I, secs. 203, 204, 205, and 207, pp. 257-262. |