1674 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



and less applicable, until at last some writers say it is applicable to 

 sovereignty alone. 



The question I am dealing with is: Is that a proper application of 

 this concept, borrowed from private law? In the course of my argu- 

 ment I hope I shall show that it was an unfortunate and improper 

 transfer, or application, of a concept proper only to ownership. 



DR. DRAGO : In this very same case of the fisheries, you referred a 

 moment ago to the building of a railway : The State may contract for 

 the construction and building of a railway. It then enters into a 

 private compact, which does not affect its sovereignty. Could not 

 the State enter into a compact of the same kind, as relating to the 

 fisheries? I mean, the juristic person of the State? 



SIR W. EOBSON : Yes. 



DR. DRAGO: Without affecting its sovereignty? That is my ques- 

 tion. 



SIR W. EOBSON : I think so, quite well. Quite well ; it could, as long 

 as it does it by contract. Nobody has anything to say against it. 



DR. DRAGO: But the treaty is a contract between nations. Could 

 it refer to matters which do not affect sovereignty ? 



SIR W. ROBSON : It not only could do it, but it does. A State may 

 make, for instance, with regard to a railway, a contract with 

 1012 another State, giving that other State any rights it pleases 

 over its own territory, for the purposes of the railway. I say 

 that that is properly done call it a servitude, if you like. If you 

 merely call it a servitude, and do not begin to attach to the servitude 

 all kinds of consequences not intended by the parties, I have no com- 

 plaint at all. I think such servitudes are proper and should be 

 encouraged. 



But the United States goes further. It says : " When once you have 

 constituted such a right, then in comes Mr. Clauss and Mr. Jurist, 

 and they say: ' No matter what contract the parties have made about 

 that right, they have constituted a servitude, and therefore we. in 

 the name of the law, attach to that servitude consequences with 

 regard to sovereignty that the parties had not attached themselves.' " 



It is quite easy, and it is highly commendable, that States should 

 make contracts as between themselves ; that is to say, as between them- 

 selves as sovereigns, in relation to their own territory. They can 

 do it. They can do it without affecting sovereignty; and my case is 

 that they do it without affecting sovereignty. 



One of my complaints of the doctrine of servitudes is that the name 

 itself is one which does not encourage the grant of such rights. I 

 think it an unfortunate name. And even when it is kept strictly to 

 its narrowest limits, it does harm in international law; because the 

 rights which are called servitudes are rights which ought to be en- 

 couraged by every means in the power of any State. It is to the good 



