XVI tions that the conditions of international intercourse preclude in CHAP. many instances an assertion of unlimited rights over territory which nevertheless is subject in other respects to the jurisdiction of the state. Whether the principle of restricting territorial sovereignty in favor of the general needs of the international community can logically and advantageously be carried still further is a problem of constructive, rather than of positive, international law. It may be noted, however, that in addition to the limited. character, in some cases, of the present servitudes upon territorial waters, there is no recognition of any general principle of servitudes upon land territory. When, for example, the United States was seeking in 1901-03 to obtain possession of a part of the Isthmus of Panama for the building of a canal, there was no legal obligation on the part of the state of Colombia to yield to the interests of the world at large in permitting the development, whether by the United States or by any group of nations, of the artificial highway which Colombia itself appeared unwilling or unable to build. The community of nations had no recognized right of eminent domain similar to that possessed by the individual state when taking over the property of individuals for public use. servitudes Special servitudes, generally designated merely as servitudes, . Special are such as are imposed upon a state in favor of another particular state or states. While they are of less intrinsic importance than general servitudes, nevertheless they merit attention because they permit a contrast between the actual restrictions to which the territorial sovereignty of states has been subjected from time to time and the theoretical doctrines of its absolute character. Moreover, they suggest in certain cases the possibilities of constructive international legislation through the conversion of a special servitude in favor of a single state into a general servitude in favor of the community of nations as a whole. Special servitudes were common in the seventeenth and eighteenth centuries, being a heritage from the feudal relations of the Middle Ages; but with the growth of a more rigid conception of territorial sovereignty they became much less frequent. For the most part, they are created by definite treaty stipulations. This is always the case when the servitude is of a negative character, consisting in an obligation on the part of the state to refrain from exercising its territorial jurisdiction in specified ways. When, however, the servitude is a positive one, consisting in an obligation to permit another state, known as the "dominant" state, to per CHAP. XVI Positive servitudes: the North Atlantic Coast Fisheries case form certain acts upon the territory of the "servient" state subject to the servitude, it is possible that, as in the case of general servitudes, the obligation may be created by prescription. But more commonly it rests upon treaty agreement. As was observed in connection with general servitudes, international usage is not clear as to the precise legal character of special servitudes, authorities differing upon such points as to the extent to which they are inherent in the territory, the effect upon them of transfers of territory from one state to another, and their permanence in the event of war between the parties. Positive servitudes have been created for a wide variety of objects. Some are economic in character, involving, for example, a right on the part of the dominant state to fish in the territorial waters of the servient state, or a right to build or operate a railway through the servient state. The servitude imposed upon British territorial waters by the treaty of 1783 recognizing the right of the people of the United States to fish upon the Grand Banks and in the Gulf of St. Lawrence, and granting the liberty to fish on the coast of Newfoundland and on other coasts, bays, and creeks of British territorial waters in America, proved to be the occasion of a long controversy. The parties disputed whether the intervening War of 1812 extinguished the obligations imposed by the treaty of 1783.2 A new treaty was entered into in 1818,3 followed by fresh disputes and later treaties of 1854, 1871,5 and 1885. The points at issue were finally decided by arbitration in 1910, the tribunal rendering an award in favor of Great Britain on the principal points. The tribunal discussed at length the legal character of servitudes, with the result that not only was the contention of the United States rejected, that a servitude existed in the particular case, but the whole doctrine of servitudes was dismissed as being inconsistent with modern political theory, owing to the "essential sovereignty and independence" required by the constitution of the modern state.R Scott, Hague Court Reports, 141-225; Wilson, Hague Arbitration Cases, 134; Am. Journal, IV (1910), 948. See also Analytical Index, Am. Journal, 1907-1920, sub tit. "North Atlantic Coast Fisheries Arbitration.'' The decision was reached on the assumption that a servitude by its nature involved a grant of sovereignty over the territory to the extent required by the servitude. That this assumption was based upon theory rather than upon practical conditions, see Oppenheim, International Law, I, § 203. The student may compare the Northeastern Fisheries case with the similar right to fish on XVI The grant by a state to a foreign power of the right to build CHAP. and operate a railway through its territories is conspicuously illustrated in the case of China. By successive agreements in 1896 Railways and 1898 the Peking Government granted to Russia and to Germany the right to build and operate railways in Manchuria and Shantung respectively. Japan succeeded to the rights of Russia in 1905,2 and she took possession of Germany's rights in 1914. More recently, by agreements reached in 1915 and 1918, China granted to Japan Germany's rights of control over the Shantung Railway running from Tsing-tao to Tsinan-fu. This servitude, however, being a serious encroachment upon the territorial independence of China, as well as a continuous interference with her administration of the province, was renounced by Japan in the treaty signed by the two states on February 4, 1922, at the close of the Washington Conference on the Limitation of Armaments.5 of way Distinct from corporeal property rights are the incorporeal rights Rights of way which have been occasionally granted for the transit of persons or of goods across the land territory of the particular state." For obvious, if not altogether logical, reasons, states have never recognized any general servitude imposed upon their land territory in favor of other states, no matter how urgent might be the need of the latter of access to the sea across such territory. When, the banks of Newfoundland granted in favor of France by the Treaty of Utrecht of 1713. The original right was confirmed and modified by subsequent treaties, but continued to remain a source of controversy until finally abandoned by France in 1904. See Bonfils, Droit International, No. 342. See further the decision of the local German court interpreting the treaty of 1816 between Prussia and the Netherlands. Scott, Cases, 264, n. In 1905 the Supreme Court of the United States recognized the doctrine of servitudes as applied to fishing rights granted to an Indian tribe. United States v. Winans, 198 U. S., 371. Scott, Cases, 255. Willoughby, Foreign Rights and Interests in China, 371. Ibid., 311. Willoughby, China at the Conference, 391, 395. Am. Journal, XVI (1922), Supp., 84. Hyde cites the interesting, if relatively unimportant, instance of the grant by the United States to Great Britain in 1871 of a freedom of transit, in the form of an exemption from payment of customs dues, for goods arriving at certain American ports and destined for British North American possessions. International Law, I, § 195. Malloy, Treaties, I, 700. It may be noted that the important right of way across the Isthmus of Panama granted to the United States by New Granada in 1846 did not include the right to build a canal, but merely the right to take advantage of such facilities as were then or might subsequently be made available. Malloy, Treaties, I, 302, 312. 1 The suggestion has been made from time to time by various peace societies that in return for the cession by Great Britain to the United States of territory lying along the St. Lawrence River, which would give the United States direct access to the navigable portions of. the river, the latter should cede to Great Britain the so-called "Panhandle" of Alaska which shuts off north CHAP. XVI however, the opportunity presented itself to the Allied and Associated Powers at Paris to introduce into international law a principle, long approved in the abstract and now of urgent necessity in the concrete, the obligation was imposed upon Germany and upon Austria to grant freedom of transit through their respective territories, by rail as well as by water, to the persons, goods, vessels, and wagons coming from or going to the territory of any of the Allied and Associated Powers. Special provision was made for the exemption of such traffic from payment of customs duties or from undue charges on transport, or from any discrimination in the charges and conditions of transport.1 Czechoslovakia, in particular, was given in the treaty with Germany the right to lease areas in the ports of Hamburg and Stettin,2 and, in the treaty with Austria, the right to run its own trains over certain sections of Austrian railways.3 Austria on its part was granted freedom of transit to the Adriatic across the territories formerly included within the Dual Monarchy.* Other positive servitudes have a political or military object in view, such as the servitude imposed by the Treaty of Vienna in 1815 upon the Sardinian provinces of Chablais and Faucigny in favor of Switzerland, giving that country the right in time of war to place troops temporarily in the provinces. This servitude was recognized as passing with the territory when the provinces were annexed to France in 1860.5 A number of the older servitudes permitting states to transport troops across neutral territory disappeared with the stricter recognition of the obligations of neutrality in the nineteenth century; but a modern instance is to be seen in the request made by Great Britain upon Portugal to permit the passage of troops across Portuguese territory in 1900 during the war in the Transvaal, in pursuance of the treaty of 1891 which provided for reciprocal freedom of transit across the Zambesi." western Canada from the Pacific. However desirable the mutual cession might be, the fact that neither party has ever asserted legal rights of way across the territory in question sufficiently proves the statement made in the text. Art. 321-326. Art. 322, Treaty of St.-Germain. 2 * Art. 363. Art. 311, Treaty of St.-Germain. While the concession to Germany of reciprocal privileges in respect to the territory of the Allied and Associated Powers was refused, provision was made (Art. 378) that the stipulations of the treaty were to be revised after five years, and that failing such revision reciprocity should become a condition of their continuance unless the timelimit should be extended by the Council of the League of Nations. 5 Clauss, Die Lehre von den Staatsdienstbarkeiten, 8-15; cited by Oppenheim, International Law, I, § 207. Clauss, op. cit., 212-217; cited by Oppenheim, loc. cit. XVI Portugal acceded to the request, but in doing so she undoubtedly CHAP. laid herself open to a claim for damages by the Boers had they survived the war. Negative servitudes appear to be exclusively confined to politi- Negative cal or military objects. The obligation not to fortify a particular servitudes town was frequently a condition of peace treaties in the seven. teenth and eighteenth centuries. France was forbidden by the Treaty of Utrecht in 1713 to rebuild the fortifications of Dunkirk. The Treaty of Paris in 1814 required that Antwerp should never become a military port. The Treaty of London in 1831 exacted the demolishing of several Belgian fortresses. In 1856 the Treaty of Paris required Russia to demolish fortresses upon the shores of the Black Sea and not to maintain a navy in those waters; but this servitude, forced upon Russia against its will, was thrown off when two of the coercing parties, France and Prussia, were at war in 1870. The convention of London in 1867 stipulated that the fortifications of the city of Luxemburg should be demolished. The same treaty provided that, for the protection of the Swiss canton of Basle, the Alsatian town of Huningen should never be fortified; and this servitude passed with the territory when Alsace was transferred to Germany in 1871. Numerous servitudes were imposed upon the Balkan states by the Treaty of Berlin in 1878.* By the Treaty of Portsmouth in 1905 Russia and Japan obligated themselves not to construct upon their respective possessions on the island of Sakhalin or the adjacent islands any fortifications or other similar military works. A recent instance is the undertaking confirmed in 1922 by Finland, as successor to the obligations of Russia, not to fortify the Aaland Islands." Of exceptional importance are the negative servitudes imposed upon Germany by the Treaty of Versailles in 1919. Article 180 of the treaty requires that "all fortified works, fortresses and field works, situated in German territory to the west of a line drawn fifty kilometers to the east of the Rhine, shall be disarmed and dismantled." The construction of new fortifications of whatever kind is forbidden in the above zone." 1 This servitude was extinguished by the Treaty of Versailles of 1783. * These servitudes were subsequently set aside by Belgium with the acquiescence of the interested parties. 4 See above, p. 90. See above, p. 88. See below, p. 347. In addition to these provisions were numerous others restricting Germany in respect to the size of her army and navy, her facilities for the manufacture of arms and ammunition, and other phases of military activity. But these latter were more properly restrictions upon the independence of the government than |