XV

Atlantic

case

The problem as to what should constitute a bay figured promi- CHAP. nently in the North Atlantic Fisheries Arbitration of 1909. Mixed questions of customary law and the interpretation of treaty obliga- North tions were presented. By the treaty of 1818 the United States re- Fisheries nounced the liberty to fish within "three marine miles of any of the coasts, bays, creeks, or harbours" of Newfoundland, Labrador, and adjoining British coasts not included within the limits earlier specified in the treaty.1 This provision was interpreted by counsel for the United States as referring to territorial waters within a line measured from low-water mark following all the indentations of the coast. This interpretation was, however, rejected by the arbitration tribunal as not expressing the intention of the governments negotiating the treaty of 1818, at which time there were precedents for considering bays exceeding six miles in width as territorial. The award provided that the line should follow the sinuosities of the coast, except that in the case of bays the three marine miles were to be "measured from a straight line across the body of water at the place where it ceases to have the configuration and characteristics of a bay."2 Owing to the vagueness of this definition of a bay, a number of bays were specifically provided for, while in the case of others the rule, already adopted by the North Sea Convention of 1882, was put into effect, that the three-mile limit of exclusion should be measured from a straight line drawn from point to point where the bay was ten miles in width.

straits

Where the maritime boundary comes into contact with a strait h. Territorial separating the territory of a single state it is governed by the same principles that control bays and gulfs. In general, if the strait is less than six miles in width its waters are territorial waters subject to the exclusive jurisdiction of the state; although in a number of cases custom has given a prescriptive title to territorial sovereignty over straits greater than six miles in width. The Great Belt of Denmark, being of an average width of ten miles, is part of the territory of Denmark, so that the two parts of the state, east and west of the Belt, form continuous territory. So also the Bosphorus and the Dardanelles are territorial waters of Turkey; while the Strait of Kertch, connecting the Sea of Azov with the Black Sea, is Russian. The United States and Great Britain claim territorial sovereignty, divided by the middle boundary line, over

1Art. I. Malloy, Treaties, I, 631.

For details of the award, see Scott, Hague Court Reports, 141 ff.; Wilson, Hague Arbitration Cases, 134.

CHAP. XV

the Strait of Juan de Fuca, which has an average width of fifteen miles. It should be noted that the question of territorial jurisdiction over straits is closely associated with the more important question of the servitudes upon such waters by which freedom of navigation is secured for the commerce of all nations.1 Consequently in certain cases, such as Long Island Sound and the Strait of Solent, where the strait does not form an international highway, third states have been indifferent to the assertion of territorial claims by the state in possession of the land on both sides.

See below, pp. 271 ff.

CHAPTER XVI

RESTRICTIONS UPON JURISDICTION OVER TERRITORY: EASEMENTS

AND SERVITUDES

tudes

Thus far the jurisdiction of a state over territory has been dis- a. Servicussed as if it implied a right of absolute political control, whether defined over land, or water, or air. This is, in fact, the normal situation. Territorial sovereignty or jurisdiction carries with it a presumption of exclusive rights of use and disposal of the object over which sovereignty is exercised. Nevertheless, by exception, the jurisdiction of a state over its territory may be subject to restrictions in favor of other states in substantially the same way that the jurisdiction of the state over persons within its territory is subject to restrictions in the interest of other states claiming the allegiance of such persons or otherwise concerned in the treatment accorded them. These restrictions upon territorial jurisdiction have, by the analogy of similar restrictions long known to municipal law, been designated as "servitudes"; and they may be defined as obligations on the part of the state in possession of the territory to permit a certain use to be made of it by or in favor of another state or states. The corresponding right on the part of the other state to make such use of the territory of the first state may, for convenience, be designated as an "easement"; but it should be noted that the latter term has not yet found its way into international law. The term "servitude," and the object indicated by it, have now obtained recognition in international law; but there is still no general agreement as to the restrictions that may properly be designated as servitudes, or as to the character of the limitations they impose upon the state subject to them.

1

nature of

It would seem that servitudes, while involving a restriction upon Legal the use of land or water, do not result in any loss of that theoretical servitudes jurisdiction and practical control on the part of the state over its territory which is the mark of sovereignty. In this respect the

'The term "easement'' is, in municipal jurisprudence, more strictly limited to the special group of servitudes granting rights of way, the use of water, etc. Holland, Jurisprudence, 8th ed., 196. A broader meaning is, however, attached in common legal use.

CHAP. XVI

Customary and conventional servitudes

modern conception of a servitude differs from the earlier medieval one based upon the relation between feudal lord and tenant. In the Northeastern Fisheries Arbitration the United States attempted to set forth the conception of a servitude as carrying with it a right of administrative control on the part of the state in whose favor it existed. But the argument was rejected by the arbitration tribunal as contrary to the modern principle of sovereignty. As a general rule a servitude is an obligation attached to the territory as such, giving rise to a corresponding right in rem, so that the transfer of the territory from one state to another must be made subject to the rights of the third state. For the same reason servitudes are generally perpetual obligations. It may be convenient to note the distinction made in municipal jurisprudence between a "real" servitude, which is a burden imposed upon a piece of land not for the benefit of any individual as such, but for the benefit of another adjoining piece of land, and a "personal" servitude, which is a burden imposed upon movable as well as immovable property for the benefit of a particular individual. In the case of real servitudes the land subject to the burden is known as the "servient tenement," and the land which benefits by the burden is the "dominant tenement.' It would seem that a lease of land, such as the lease of Guantánamo from Cuba by the United States, or the lease of the Canal Zone from Panama, is more properly not to be classed as a servitude, since the lessor state loses possession and use of the land by the lease, although it retains formal sovereignty over it.

3

A distinction should be observed between customary or prescriptive servitudes, created as a result of long-continued usage, and conventional or contractual servitudes created by express agreement between the parties. In both cases the servitude imposed may be in favor of a single state or of third states in general. Again, a particular servitude, such as the obligation to grant a right of innocent passage though territorial waters, may be one to which all states in general are subject and of which all states alike may enjoy the benefit. Where this is the case it has been questioned whether the gen

6

5

See Award, sub Question I. Scott, Hague Court Reports, 141, 156.

See Oppenheim, International Law, I, § 207.

See Holland, Jurisprudence, 8th ed., 194 ff.

See above, p. 243.

Hershey, for example, criticizes Hall's designation of "the right of innocent use of territorial seas" as a servitude, and lays it down that "the characteristic mark of an International Servitude is that it is a perpetual limitation on sovereignty in the interest of some particular State or Ŝtates." Essentials of International Law, 176, n. 20.

XVI

eral restriction should properly be called a servitude. Usage is too CHAP. recent to decide the point, but convenience would seem to justify the application of the term in such cases. So long as international law recognizes no common rights of all nations to the use of other property than the high seas, general restrictions upon private state property can be more easily explained as servitudes than in any other way.

servitudes:

upon rivers

Until the nineteenth century navigable rivers as highways of b. General commerce were almost without exception subject to the complete servitudes territorial jurisdiction of the single state in possession of both banks, or of the two states in possession of the opposite banks. Grotius argued on abstract principles in favor of freedom of navigation for all states on rivers as well as on the high seas.1 Vattel, however, while asserting a right of innocent passage for third states upon territorial rivers, designates the right as an "imperfect" one which for "good reasons" might be denied by the riparian owner or owners.2 It was not until the Treaty of Paris in 1814, and the Final Act of the Congress of Vienna in 1815, that these theoretical rights of mankind were translated into definite legal rights in respect to particular rivers. The Rhine and the Scheldt had been proclaimed by the Treaty of Paris to be open to navigation from the point at which they became navigable to the sea; and this freedom was confirmed by the Treaty of Vienna and extended to the Main, the Moselle, and the Meuse from the point where each of them became navigable to its mouth. A commission was appointed to act in the name of the riparian states in the execution of the provisions relating to the navigation of the rivers. The articles of this agreement, while apparently opening the rivers designated to the. commerce of all nations, were at times narrowly interpreted as conferring common rights of navigation only upon the riparian states. In 1856, following the Crimean War, the Treaty of Paris applied to the Danube the principles laid down by the Congress of Vienna, and a second international commission was created to prepare and administer regulations for the navigation of the river. Further provisions relating to the navigation of the Danube, and to its neutralization in time of war, were adopted at the Congress

1 De Jure Belli et Pacis (Eng. trans.), Bk. II, Chap. II, § XIII. 'Droit des Gens (Eng. trans.), Bk. II, §§ 123, 127-129, 132, 134.

Art. CVIII-CXVI. Br. and For. State Papers, II, 7, 52-53; Martens, Nouv. Rec., II, 427; Hertslet, Map of Europe by Treaty, I, 208.

'Art. XV-XVIII. Br. and For. State Papers, XLVI, 8, 12; Martens, Nouv. Rec. Gen., XV, 776; Hertslet, op. cit., II, 1250.