2128 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. 



ritory The servitude is a permanent restriction of territorial 



sovereignty and not of independence in general." 



Ullmann : 



"International servitudes can only be established between inde- 

 pendent nations and constitute a restriction of the territorial sover- 

 eignty of the servient nation .... In substance, international servi- 

 tudes constitute a tolerance, when the dominant nation is allowed to 

 perform acts of territorial sovereignty, in the territory of the 

 servient nation, by its own authority and independently of the 

 servient nation; or a forbearance, when the servient nation refrains 

 from performing acts of territorial sovereignty on its own territory 

 for the benefit of the dominant nation." 



The Tribunal will perceive that the essential quality of the class 

 of rights regarding which all these writers have spoken is the very 

 thing that is here: An independent State limiting its sovereignty, 

 the power or rightful exercise, so as to permit, and permanently per- 

 mit, another State, itself, or through its citizens, to have the bene- 

 ficial use of the territory of the State that limits its sovereignty. 



It is with regard to the situation thus created that a rule has 

 grown up; and I repeat that the rule is independent of any process 

 of reasoning that any of these gentlemen go through in explaining it. 

 It is there. It is the custom of nations. It has the consent of nations, 

 by unimpeachable and overwhelming evidence, and must be applied 

 to the construction of this treaty, whch confessedly creates just such 

 a right as the rule applies to. 



Since long before this treaty was made, the accepted rule of inter- 

 national law has been that the kind of right, or the class of rights 

 which I have been discussing, unlike general trading, and travel, and 

 residence rights, the class of rights which constitute a permanent 

 burden in favour of one State upon the territory of another, protected 

 by a limitation of the sovereignty of the burdened State, protected 

 by a solemn conventional limitation keeping away from the right the 

 exercise of that sovereignty, protected by a stipulation which pro- 

 tects the right that constitutes the burden from the exercise of the 

 sovereignty, are not subject to the unrestrained exercise of that 

 sovereignty, are not subject to that exercise of its discretion resting 

 in its own will, which is the necessary incident of all sovereignty, and 



which is claimed here. 

 1287 Artopseus, in 1689, speaking of this kind of right, says: 



"The general principles are the following: The servient 

 territory shall not hamper the dominant one in the exercise of the 

 servitude, or lessen the right by various dispositions." 



That was 129 years before this treaty of 1818 was made. He pro- 

 ceeds : 



" The right created by the servitude shall not be extended beyond 

 the compass explicitly granted; this does not impede the dominant 



