Hostname: page-component-586b7cd67f-dsjbd Total loading time: 0 Render date: 2024-11-23T21:24:05.563Z Has data issue: false hasContentIssue false
  • English
  • Français

The Doctrine of Servitudes in International Law

Published online by Cambridge University Press:  04 May 2017

Pitman B. Potter
Get access Rights & Permissions [Opens in a new window]

Extract

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.

Type
Research Article
Information
American Journal of International Law , Volume 9 , Issue 3 , July 1915 , pp. 627 - 641
Copyright
Copyright © American Society of International Law 1915

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 For historic bibliography see Nys in Revue de Droit Int. Pub., 1911, Vol. XIII, p. 118, and North Atlantic Fisheries Arbitration (Vols. I-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 Prélendues Servitudes; cf. also Flicker, Gebiet u. Gebeilshoheit, p. 68.

5 Cf. what is said in IX, North Atlantic Fisheries, 560.

6 VIII, North Atlantic Fisheries, 26.

7 Hall, Int. Law, p. 43.

8 Bonfils, Manuel, pp. 181, 183, 344; Pradier-Fodéré6, Traité, I, pp. 396–7; Engellbrecht, De Serv. Jur. Pub., p. 232, seq.; Klüber, Droit des Gens, p. 197; Hall, p. 158.

9 Fabres, Des Servs., p. 27.

10 Accordingly, tribute payment is ruled out. Fabres, 26.

11 Bello, Principos, p. 110; Fiore, D. I. 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, “Lies 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 psychology 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. v., Vols. VIII-IX.

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 normakment accomplir.” Despagnet, Cows 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.

24 Fiore, Droit Int., I, pp. 615 s.; who, however, in his revised code, Nouveau D. I., p. 201, admits necessity for express title. Also Wilson, p. 114; Phillimore, Commentaries, p. 391; II Pradier-Foddr6, 397; De Steck illumines the subject by saying that the legal basis of natural servitudes (?) by prescription is the law of usucapion applied to servitudes at Roman Law, q. v., p. 45.

25 Historic aspect presented by Funck-Brentanno, Précis, p. 178.

26 Calvo, loc. cit.

27 Calvo, II, 215, V, 356–7; Bonfils, 181; Hall (158), equivocates.

28 Pomeroy has the extreme view, q. v., Lectures, p. 378 s.

29 I Pradier-Fodéré, 380

30 Klüber, 138.

31 Cf. Germany in the 17th century.

32 This may be traced very clearly in the successive writers: De Steck (1779), Bluntschli (1870); Hall (1880); Nys (1901); Fiore (1911). The great change came 1790–1860 when economic conditions were altering and no law was produced.

33 Of course, territorial consolidation helped greatly. Hall, 158.

34 Taylor, Treatise, p. 263; Twiss, 423; Foignet, 154; Bry, 147.

35 Martens, Précis, I, p. 487.

36 II Nys, 272.

37 Heffter, 106; Klüber, 197 n. (f.). Case of the family of Tour et-Taxis in I Martens, 482.

38 Klüber, 137; Rivier, 296.

39 Earlier law was otherwise. Cf. Heffter, 105; Piédelèvre, Précis, p. 390, and, for corporations, Bluntschli, 290. Both this case and the preceding depended on the jus publicum and never had a standing in international law. Rivier, 295. Now the law is clear; Pradier-Fodéré, 399. Heffter is in doubt in 1883 [cf. p. 106 n. (5)]. Oppenheim and Wilson state the final view: I Oppenheim, 258; Wilson, 146.

40 Klüber, 138; Crane, Modern State, p. 10.

41 Suggested by Rivier (p. 301); usually overlooked.

42 Fabres (p. 82) objects to calling this a servitude because it exists for all nations, but accepts right of visit because it exists only for a few, by stipulation!

43 Rivier, 301; Pomeroy, 378; Pradier-Fodéré, 398; all of whom go so far as to say that the servitude is from the servient state to the people of another state.

44 II Calvo, 209.

45 Cf. Despagnet, 186, for another fallacy in all classifications. Oppenheim (q. v. I, 258) confuses his points of view and so is able to classify all his servitudes twice!

46 And when the particular servitude eludes the label of a special group, it is called “mixed” and side-tracked!

47 Speaking either from the point of view of servient or dominant; the former is more valid. Cf. Bry, 149; Pradier-Fodéré, 394 s; Taylor, 299.

48 Creasy, 257; Phillimore, 390; I Martens, 483.

49 Klüber, p. 137, does this.

50 There is a fundamental reason why,—servitudes are due from a territory which can only be passively servient (t. e., be used). Nys in R. D. I. P., 2d series, 1911, Vol. XIII, p. 314. But cf. tribute payment, supra, p. 4, note 10.

51 For a suggestive line of thought connecting the doctrine of innocent passage and that of servitudes cf. Taylor, 263, Twiss, 423.

52 I Martens, 482.

53 Wilson, 147.

54 Thus Fiore disregards them, putting it all on a right of the state to obligate itself. He says: “Un état peut s’obliger á faire ou á laisser faire.—” Moreover, he does not mean “ á faire” for he does not believe in the positivity of servitudes; q. v. loc. cit. in Noveau.

55 Fiore says the essence is in “an accord of wills,”—which is quite contrary to the usual notion of unwilling obedience, q. v. loc. cit. in Droit. Int.

56 Heffter, 105.

57 Rivier, loc. cit., treats of them, and Ullmann, Völkerrecht, p. 88, treats maritime servitudes extensively.

58 Klüber, 139.

59 I t is implied that the political advantage of the state and the private advantage of the citizens do not always run together. In the end they should; this is in effect a naive admission of the dubious value of certain forms of political sovereignty. Also Holtzendorff, 95; IX, N. A. F., 313.

60 Cf. also Heffter, 106.

61 Bonfils, 181.

62 Taylor, 299.

63 Compare Bluntschli and Oppenheim.

64 Bluntschli’s denunciation theory, infra, p. 22.

65 X, N. A. F., 1427, formulates this.

66 II Nys, 277; Creasy, 268; Rivier, 296. Called “Suppression of object” by Martens (q. v. I, 479). It is said that the subject-matter disappears, but it is more accurate to say that the servitude is no longer necessary to the enjoyment of the right.

67 Tacitly or explicitly. The former is called “abandon” or “non-use.”

68 Fiore, Nouveau, p. 224; Twiss, 423.

69 II Nys, 276; Creasy, 258; Taylor, 301; Bonfils, 183.

70 Piédelévre, 391; Bluntschli, 212. Likewise conditional servitudes end by fulfillment of conditions. E. g., German occupation of France in 1871. Cf. Fabres, 56.

71 Bonfils, 183 fin; Rivier, 296; Fabres, 23.

72 Right of use of rivers by up-stream states, etc.

73 The whole theory of obligation at international law is opened here.

74 That they are not so assimilable but that even if created by treaty, the treaty is swallowed up in the status, is more logical; that is, even if a (so-called) “transitory” treaty creates a servitude, it disappears by passing over into the servitude. Vattel, Droit des Gens, p. 220. For a just criticism of this term “transitory” see Westlake, Chapters, p. 61.

76 Sutton v. Sutton in Scott, Cases, p. 427.

76 Clauss, Lehre, 213; Calvo, II, 215.

77 I Bello, iii.

78 IX, N. A. F., 399–400.

79 De Steck, 47.

80 “Arteopus,” quoted in X, N. A. F., 2128–9.

81 II Pradier-Fodéré, 406; I, N. A. F., 76 (d). The former usually emphasized Fiore, Nouveau, p. 116.

82 Held by Martens, I Précis, 174; defended by Bluntschli (74) with little legal reasoning, and Calvo II , 215, re revolutions.

83 Clauss, 213; Fabres, 33.

84 And must be reinstated by a specific clause at the end of that war? Cf. Fabres, 33.

85 I Oppenheim, 208; Fabres, 30.

86 Bluntschli, 359.

87 II Nys, 277.

88 By Oppenheim and Rivier.

89 Q. v., p. 61.

90 Allowed by: Wilson, 87 (g); Hall, 116; Calvo, I, 615.

91 Bluntschli, loc. cit.

92 French (and other) consular courts in Japan, e. g., for which see Fabres, 106.

93 There properly is no reason for this. The distinction between sovereignty and jurisdiction, the latter of which is alone alienated or involved in a servitude, is enough to save the face of the state. Cf. Wilson, 153; II Nys, 273; Fiore, 224; and for an erroneous view I Oppenheim, 257.

94 Cf. I Martens, 479; Internoscia, 293; Klüber, 137.