conventions which register what each of the parties thereto appears to regard as common and necessary limitations of the exercise of control over its domain by a contracting territorial sovereign are to be distinguished from those which reveal no such design.

That a State is obliged to limit its freedom of control over anything pertaining to its territory, such as land or water or air, is due to the interest of the international society in the restriction. That interest has only been acute when it had been clearly and widely perceived to be mutually advantageous for all States under like circumstances. The clearness of the perception has resulted from a common understanding of commercial needs and has been aided according to their growth. Those needs early demanded a right of innocent passage for ships of every flag through the waters in close proximity to the ocean coasts of States adjacent to the sea. Later, privileges of navigation through international rivers by foreign vessels of riparian and even non-riparian States were increasingly sought and obtained. In the advocacy of relevant principles American statesmen played no small part. At the present time, the potentialities of existing agencies of communication and of transportation strengthen the plea that no longer should any remote and interior State remain isolated from the sea when access thereto is to be had through foreign territory, by air or by land, as well as by water. It will be found, however, that statesmen still evince reluctance to impose fresh restrictions of universal application upon a territorial sovereign with respect to what it has hitherto been deemed to possess rights of exclusive control, which have been exercised with slight restraint. The limitations thus far imposed by convention in relation to the use of air space, or transit by land, constitute concessions which the contracting parties would doubtless be reluctant to acknowledge as declaratory of existing legal duties towards each other.

The needs of the international society can never be deemed to justify the attempt to restrict anew the freedom of its individual members in what pertains to the control of their respective territories until it is agreed on all sides not only that the limitation is beneficial for its entire membership, but also that a failure to apply it is subversive of justice among the nations. Differing sets of circumstances may combine to produce such conclusions. It suffices to observe that the necessary combination may be

recurrent.

SERVITUDES

[§ 153

§ 153. The Same.

3

Treaties which impose upon a territorial sovereign limitations of control over its domain which are not required by international law, either for the sake of States generally, or for that of special groups of them, differ widely in scope and design. They may embrace leases of particular areas in perpetuity, vesting in the lessee substantial rights of sovereignty; they may purport to yield for all time to the inhabitants of foreign territory, as did the convention between the United States and Great Britain of October 20, 1818,2 purely economic rights such as fishing privileges within specified places; they may confer a right of passage across territory; they may burden the territorial sovereign with a duty not to fortify places along its frontier; they may contemplate no arrangement that shall survive the time when the grantor ceases to maintain its sovereignty over the territory concerned. When the arrangement purports to attach permanently to territory or its appurtenances a restriction with respect to freedom of control for the benefit of a State other than the sovereign, the limitation is oftentimes described as a servitude. There is disagreement, however, as to what limitations possessed of such a character may be fairly so designated. There is controversy whether a servitude confers certain rights of sovereignty such as those of governmental administrative control upon the foreign State in whose favor it is yielded. It may be greatly doubted,

1 See, for example, convention between the United States and Panama, of Nov. 18, 1903, for the construction of a ship canal, Malloy's Treaties, II, 1349. Cf. Panama, supra, § 20.

2 Malloy's Treaties, I, 631.

3 Art. 42 of the Treaty of Peace of Versailles, of June 28, 1919, whereby Germany was forbidden to maintain or construct any fortifications either on the left bank of the Rhine or on the right bank to the west of a specified line. In the area defined, the maintenance and the assembly of armed forces, either permanently or temporarily, and military maneuvers of any kind, as well as the upkeep of all permanent works for mobilization, were in the same way forbidden. See Art. 43.

In the course of the North Atlantic Coast Fisheries Arbitration it was alleged by the United States that the liberties of fishery granted to it by Art. I of the convention of Oct. 20, 1818, constituted an international servitude over the territory of Great Britain, thereby involving a derogation from the sovereignty of Great Britain, the servient State, and that, therefore, Great Britain was deprived, by reason of the grant, of its independent right to regulate the fishery. The Tribunal in its award disagreed with this contention for various reasons. It was declared that there was no evidence that the doctrine of international servitudes was one with which either American or British statesmen were conversant in 1818. It was said that "a servitude in international law predicates an express grant of a sovereign right and involves an analogy to the relation of a praedium dominans and a praedium serviens; whereas by the treaty of 1818, one State grants a liberty to fish, which is not a sovereign right, but a purely economic right, to the inhabitants of another

therefore, whether, in view of the differing opinions of statesmen, the term serves to point to definite limitations of control having a distinctive and recognizable character in law. For that reason its use is believed to obscure rather than clarify the perception of what takes place when contracting States undertake to burden territory with restrictions in favor of a non-territorial sovereign.

In case of controversy concerning the nature and scope of a restriction the precise question is likely to be first, whether the limitation of control imposed by the treaty is permanent in character, applicable for all time to the area concerned, regardless of changes of sovereignty which it may undergo; and secondly, whether the arrangement serves to clothe a foreign grantee with privileges that are more than economic, embracing, for example, rights of political control. The solution of both questions depends upon the correct interpretation of the treaty involved, an achievement which in turn demands close observance of those fundamental principles of interpretation which are elsewhere discussed.1 It may be doubted whether the attempt to attach to territory a burden to be fairly regarded by the inhabitants thereof as essentially detrimental to it, and thus in no sense responsive to any equitable demand of the international society, should be deemed to be capable of judicial approval or enforcement in an international forum, even though the validity of the compact is recognized. Again, it may be urged with force that the grantor State lacks (in an international, if not in a domestic or constitutional sense) the power validly to impress upon its territory such a burden for at least a period beyond that when it retains its sovereignty therein.

State." It was declared that the doctrine of international servitude, in the sense sought to be attributed to it, originated in the peculiar and obsolete conditions prevailing in the Holy Roman Empire of which the domini terrae were not fully sovereigns, they holding territory under the Roman Empire, subject at least theoretically, and in some respects also practically, to the courts of that Empire, their right being of a civil rather than of a public nature, partaking more of the character of dominium than of imperium, and, therefore, not a complete sovereignty. In contra-distinction to this "quasi-sovereignty", the modern State, and particularly Great Britain, it was added, had never admitted partition of sovereignty, "owing to the constitution of a modern State requiring essential sovereignty and independence." It was said that "this doctrine being but little suited to the principle of sovereignty which prevails in States under a system of constitutional government such as Great Britain and the United States, and to the present international relations of sovereign States, has found little, if any, support from modern publicists." It could, therefore, it was declared, "in the interest of the Community of Nations, and of the parties to this treaty, be affirmed by this Tribunal only on the express evidence of an international contract." See text of Award, G. G. Wilson, Hague Arbitration Cases, 145, 158–159.

1 The Interpretation of Treaties, The Nature of the Problem, infra, § 530.

MARGINAL SEAS

[§ 154 It must be clear that when a State by any process bargains away various uses of territory over which it otherwise retains its rights as sovereign, it thereby impairs as such its freedom of control, and that the impairment corresponding in exact proportion to what is yielded may even entail the loss of a certain measure of governmental control. Such a result would appear to be at variance with the theory on which State life has in fact developed, and which according to the practice of nations has proved to be expedient. Moreover, it would seem to add to the burden of the territorial sovereign of maintaining or acquiring an unchallenged place in that class of States which are regarded as independent.

Over its territorial waters along the marginal sea the control of the territorial sovereign is limited. While it may regulate at will matters pertaining to fisheries, the enjoyment of the underlying land, coastal trade, police and pilotage, the use of particular channels, as well as maritime ceremonial, it is not permitted to debar foreign merchant vessels from the enjoyment of what is known as the right of "innocent passage."3 That right, although incidental to the privilege of navigating the high seas, may be said to owe its existence to the circumstance that, as Hall has pointed out, "the interests of the whole world are concerned in the possession of the utmost liberty of navigation for the purposes of trade by the vessels of all States." 4

Vessels of war, although serving no commercial purpose, are not necessarily deprived of the right of passage under normal conditions, and still less, other public ships devoted to scientific purposes.5

1 See, generally, bibliographical material referred to under Marginal Seas, supra, § 141.

2 Fuller, C. J., in Louisiana v. Mississippi, 202 U. S. 1, 52; the Mark Gray case, Venezuelan Arbitrations, 1903, Ralston's Report, 33, where it was held that a State might grant a monopoly of towage privileges within its territorial

waters.

3 Declares Woolsey: "No vessel pursuing its way on the high seas can commit an offense by sailing within a marine league of the shore." 6 ed., 69. Said Mr. Bayard, Secy. of State, in the course of a communication to Mr. Manning, Secy. of the Treasury, May 28, 1886: "We do not, in asserting this claim [as to the territorial limit of the marginal seal, deny the free right of vessels of other nations to pass, on peaceful errands, through this zone, provided they do not by loitering produce uneasiness on the shore or raise a suspicion of smuggling.' 160 MS. Dom. Let., 348, Moore, Dig., I, 718, 720,

721.

4 Higgins' 7 ed., § 42, p. 163. See, also, Articles V and VIII of Rules adopted by the Institute of International Law, March, 1894, Annuaire, XIII, 329-330, J. B. Scott, Resolutions, 114.

5 Compare Hall, Higgins' 7 ed., § 42, p. 163.

So long as the conduct of a vessel of any kind is not essentially injurious to the safety and welfare of the littoral State, there would appear to be no reason to exclude it from the use of the marginal sea. The Institute of International Law, in its Rules adopted in 1894, announced that all ships without distinction should have the right of innocent passage, saving to belligerents the right of regulating passage and, with a view to defense, of forbidding it to any ship, and saving also to neutrals the right of regulating the passage of vessels of war of every nationality.1 It may be open to question whether this declaration does not place too great restriction upon the neutral. It must be apparent that such a State enjoys the right to prevent as well as regulate the passage through the marginal sea of a belligerent ship of whatsoever kind, in case of its failure to abstain from acts therein which would, if knowingly permitted by the neutral, constitute a violation of neutrality. In a word, the right of so-called innocent passage vanishes whenever the conduct of a ship is harmful to the territorial sovereign. To the latter, whether a belligerent or a neutral, must be accorded the right to determine when acts of a passing ship lose their innocent character.

It will be observed that in the assertion of that form of control manifested by the doing of justice or, as it is commonly described, by the exercise of rights of jurisdiction, within territorial waters constituting the marginal sea, the territorial sovereign finds itself subjected to certain restraints with regard to foreign vessels and their occupants. It will be found that these restraints are due in part to the activities of such vessels while within such waters.3

(3)

Straits

(a)

$155. In General.

A strait which serves as a passage from one open sea to another ought not on principle to be closed. This is believed to be true although the waterway is a part of the domain of the States adja

1 Art. V, Annuaire, XIII, 329, J. B. Scott, Resolutions, 114.

2 See Art. XXV of Hague Convention of 1907, concerning the Rights and Duties of Neutral Powers in Naval War, Malloy's Treaties, II, 2362.

3 Rights of Jurisdiction, The Marginal Sea, infra, § 226.

4 Art. X, Section 3, of Rules on the Definition and Régime of the Territorial Sea adopted by the Institute of International Law in 1894, Annuaire, XIII, 331, J. B. Scott, Resolutions, 115.