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the Second Hague Conference against the right to destroy merchant vessels was the lack of adequate facilities on modern warships for taking care of the persons on board the ships destroyed. This objection was pointed out with particular emphasis by one of the American delegates, General Davis, who also called attention to the fact that neutral persons and non-combatants if put aboard warships would be exposed to the dangers of battle in a much greater degree than when fleets were constructed of wood and driven by wind.63 In all the discussions on the subject, it was assumed that the right of destruction was conditioned upon the obligation of the captor to provide for the safety of the crews and passengers, and never once was it intimated that inability to make such provision constituted a sufficient defense against disregard of the obligation.
JAMES W. GARNER. 63 Acles et Documents de la Deuxième Conference de la Paix, tome III, p. 1050.
THE DOCTRINE OF SERVITUDES IN INTERNATIONAL LAW
The doctrine of servitudes as it stands at present in international law is in a very incoherent state. From the Roman law 'the concept, with an elaborate set of rules for its operation ? but with no philosophic or theoretical development, was transmitted at the time of “the Reception” to the semi-feudal jus publicum of the sixteenth and seventeenth centuries. During the seventeenth and eighteenth centuries the doctrine was taken over by the developing jus gentium.
This experience, this double growing over from private law to public law and thence to international law, has sadly shattered the doctrine. The modifications made by feudal and dynastic and mercantilist manipulation have warped the concept out of all symmetry. Indeed, it is possible that traits picked up en route have ruined the doctrine for modern use.
For the servitude is essentially a portion of proprietary law and as such it is becoming an historic, rather than a legal category," as public law as well as private, is tending to dispense with its proprietary modes; and the servitude as such is losing ground. At most we can study the practice of nations in the matter; 6 to construct any pretentious legal doctrine is impossible.
For historic bibliography see Nys in Revue de Droit Int. Pub., 1911, Vol. XIII, p. 118, and North Atlantic Fisheries Arbitration (Vols. 1-XII, published by Congress), Vol. IX, p. 574, et seq., for period of jus publicum see Heffter, Droit Internat., index, “Servitudes."
2 Digest, VIII, 1.
3 Moser, Nachbarliches Staatrecht, Bd. III, chs. 4–17, describes the situation. It has even been loosely stated that servitudes arose in feudal dues. That is, as we know, inaccurate; that the servitude was a legal form of particular use to the feudal age is true, but no more can be said. Holtzendorff, Handbuch, p. 293.
* The latest utterance, qualified, but still significant, is in North Atlantic Fisheries Arbitration, Vol. I, p. 76. Nys believes the whole thing to be a matter of history, not of legal science, q. v. loc. cit., 314; Les Prétendues Servitudes; cf. also Fricker, Gebiet u. Gebeitshoheit, p. 68.
6 Cf. what is said in IX, North Atlantic Fisheries, 560. 6 VIII, North Atlantic Fisheries, 26.
As the doctrine stands today, there are certain elements which emerge from the nature of servitudes which may be examined one by one and the aggregate of which will afford a fairly complete understanding of the subject. With four of these questions we shall now busy ourselves, and after reviewing these elements in the servitude analytically, we shall attempt to throw further light on the subject by classifying the various sorts of actual servitudes. Finally, some questions involved in the process of the termination of servitudes will occupy us. Let us turn to the analysis.
Probably the most outstanding feature of the law of servitudes in international relations is the territorial element. The statement that “servitudes are charges to which the territory of a state is subject” ? is classic. Until a few years ago this principle was not questioned, the analogy from the Romano-Public law still held and servitudes were in rem. There is some doubt now about this, but it would be inaccurate to state any other position yet, although a recent writer rashly says: “Servitude ne sont presque jamais des servitudes réeles.” 9 Indeed, if the term has any place in jural language at all it is here in regard to "territorial obligations." Ordinarily a territorial obligation is by its nature permanent and therefore a servitude; other obligations are "merely moral.” It seems to the writer that the following is the explanation of the question: The primary disadvantages between states are those resting in territorial variations of fertility and economic serviceability. Thus servitudes had for their primary object better distribution of the earth's resources. And as some law of property certainly existed antecedent to the law of servitudes, the latter were cast in the given forms of proprietary law because of their connection with the subject-matter of that law, which, at that early stage, referred rather to realty than to personalty. Cast in this mold servitudes retain their real nature whereas their form should be revised, along with other proprietary law, into more flexible forms to include personal obligations.
Moreover, the servitude is essentially negative; 10 that is, it is a re7 Hall, Int. Law, p. 43.
8 Bonfils, Manuel, pp. 181, 183, 344; Pradier-Fodéré, Traité, I, pp. 396–7; Engellbrecht, De Serv. Jur. Pub., p. 232, seq.; Klüber, Droit des Gens, p. 197; Hall, p. 158.
• Fabres, Des Servs., p. 27.
striction 11 on the territorial sovereignty of the servient state. From the point of view of the dominant 12 state it is, perhaps, positive. But the view of the servient state is the significant one. This party has its jurisdiction restrained, is to refrain from doing acts it might otherwise do and allow (or it is restrained from preventing) 13 acts on the part of another state it might otherwise forbid. The servient is not to be considered as actively doing any service to the dominant. It allows, it does not perform.
The term “servitude” has led to many misunderstandings. It implies active service, abject obedience and unlimited control. As a matter of fact, there is no active service, but merely passive permission; there is no abject obedience 14 at all, but merely a bargain in many cases. It is to be surmised that it is the connotation of the term, the feeling of servility, that has made the road so hard for a very simple doctrine. The fact that conditions change and a right granted under certain conditions becomes odious in a situation where the same right would not be granted anew; the fact that continued performance of itself is liable to render an obligation obnoxious and burdensome, 15 has led to a barsh interpretation of the term. Moreover, the inheriting of servitude relations by succeeding rulers, relations of obligation they had not contracted, perhaps had received no benefit from, and this against their will, has aggravated the situation.16 Thus a grant of fishing rights may be very simple when there are plenty of fish and no competition; it may later become a grievous burden.17
The point cannot be over emphasized that it is use and not performance that distinguishes a servitude. The proprietary element is essen
11 Bello, Principos, p. 110; Fiore, D. 1. Codifié; p. 224, Wilson and Tucker, p. 146. 12 Davis, Elements, p. 68, for terms.
13 It is true that certain servitudes are called “positive," but I conceive that such a usage is in conflict with the explicit and settled doctrine (Foignet, Manuel, p. 154, "Les servitudes consistent toujours in patiendo, non in faciendo”), that servitudes are never in faciendo. For further discussion cf. infra, p. 14.
14 Indeed, no obedience at all, no free power of command in the dominant state.
15 The psycholcgy of the case certainly has been important, or, to use terms of international relations, servitudes have irritated "national honor.”
16 De Steck, Ecclaircissemens, p. 47.
17 E. g., the North Atlantic Fisheries, re England and United States, q. ., Vols. VIII-IX.
tial. As near as may be made out, a servitude is a proprietary right of use by the dominant state, involving a negative restriction of the territorial rights of the servient state. 18
Such a nature reflects the ancestry of the doctrine. 19 Such was the case at Roman law when servitudes were matters of private law; such was the case in feudal public law. Ere the age of equality and independence among states, many rights over one another's territory were set up. Feudal dues, political disabilities, dynastic allegiances, all contributed to foster the conception. It is questionable if this nature comprising these traits of reality and negativity can survive today.20 An indication of this is the fact that the servitude in those days was, beside the other two points, normal; while today it is considered abnormal. 21
The question of the basis of a servitude now becomes pertinent. The state of the law at present seems to be that stated by Hall—"servitudes are creatures not of law but of compact.” 22 While the general fundamental social conditions for a servitude may reside in the situation des choses, there must be an explicit agreement to establish a right.23 When means of food supply and transportation were less developed, the need for servitudes of right of way, fishery, wood-cutting and the like was
18 “A restriction on the free exercise of the jurisdiction of the state in the way of an obligation to allow a foreign state to do a thing, or in the way of an obligation not to do a thing,” says Wilson, Handbook, p. 153.
19 Note that early servitudes were given by a prince over the public land or his private domain quite indifferently. Heffter, p. 106.
20 II Nys (Droit Int.), p. 271, reduces the whole concept to one of obligation, depriving it of its territoriality and negativity, denying the existence of any specific concept, -"les pretendues servitudes," he calls them.
21 Thus it is now said that a state under servitude may not do “ce qu'il pourrait normalement accomplir." Despagnet, Cours de Droit Int., p. 185.
22 Op. cit., p. 43. He excepts a few customary ones. Also Fabres, p. 23.
23 II Nys, p. 273; Bonfils (p. 181) takes a mid-way position, admitting that a servitude may exist without treaty, but holding that it then derives its force from the tacit consent of the state. On the other hand, Bello, principios, Vol. I, p. 110, puts the natural servitude down as a "right" and holds conventional servitudes are sheer privileges. The whole thing is a confusion of thought-for the terms “custom, usage, practice” and “international law" are hopelessly mingled. Bluntschli, D. I. Codifié, p. 209; Lawrence, Principles, p. 229. Oppenheim, Int. Law, 2nd Ed., Vol. I, pp. 280 seq., stands for state consent. So Creasy, Int. Law, p. 257; Wilson, p. 153; Bry, Droit Int., p. 149—who insists also on “possession in fact." Rivier, Principes, pp. 295–6; Twiss, Law of Nations, p. 423; III Calvo, Droit Int., p. 356.