1678 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



States say it is affected. And their only ground for saying it is 

 not that it ought to be, as I have pointed out ; there is nothing in the 

 nature of the thing to show that it ought to be; there is nothing in 

 the contract to show that; but they say it is in international law, and 

 it has crept in from private law ; it has crept into international law 

 from the Roman law. That is what they say. And I must, I sup- 

 pose, briefly examine the authorities they have put forward in sup- 

 port of that proposition. How closely and narrowly such rights are 

 granted is shown by H. B. Oppenheim. T am only just going to read 

 one or two authorities. I now refer to p. 4 of H. B. Oppenheim : 



"An international servitude is always a special law, and can never 

 be extended beyond the letter of the Convention." 



This shows how very closely the jurists really have guarded them- 

 selves against misconception on this head : 



"An international servitude is always a special law, and can never 

 be extended beyond the letter of the Convention. Thus the German 

 fundamental treaties, especially the concluding act of Vienna of 

 May 15, 1820 , do indeed grant the central power an execu- 

 tive authority against disturbances which are getting beyond control 

 in individual states ; but by no means a right of garrison beyond the 

 time of the disturbances." 



That is a very good illustration. It was necessary in the great 

 settlement of Europe under the Treaty of Vienna to deal with cer- 

 tain smaller states in which disturbances might be expected, under 

 the new political arrangement. And so, Mr. Oppenheim points out, 

 while it gave to the central European power certain privileges and 

 rights in the way of repressing disturbances, yet the treaty stipu- 

 lated that they should leave immediately afterwards. There there 

 was a clear stipulation intended to safeguard sovereignty. And 

 when you go through all these treaties I am not now speaking of 

 customs, because none exist but when you go through all these 

 treaties, you find how carefully the establishment of a territorial 

 right is guarded from excess, from abuse. They do not allow, as a 

 general rule, in these treaties, any territorial right to be carried so 

 far as to impinge upon national independence : because that is what 

 general sovereignty is. The mere exercise of what has been called 

 territorial sovereignty a very inappropriate name, and an unfortu- 

 nate name, because it mixes up imperium with dominium ; mixes up 

 sovereignty with ownership and the two things ought to be kept 

 apart wherever you do find any grant made which affects the right 

 of a State in its territory, you will find the treaty also guards that 

 right from being construed or treated so that it might touch or limit 

 sovereignty. The States have been careful to do that by treaties. 

 It was certainly never allowed in the absence of a treaty. 



