QUESTION ONE. 27 



The instrument creating the servitude is at once its origin and 

 measure, and the express intent of the parties must govern. If the 

 instrument is silent, it is to be presumed that the nation parted 

 with a concurrent right unless an exclusive right is necessary to the 

 enjoyment by the dominant state of the servitude. In dubio pro 

 Ubertate. Therefore, should the exercise of the servitude by the 

 dominant state be compatible with the concurrent exercise of the 

 servitude right by the servient state, it should be presumed, in the 

 absence of express words to the contrary, that the servient state meant 

 to retain, and actually did retain, the right of exercise and enjoyment 

 of the grant not inconsistent with the right secured by the conven- 

 tion to the dominant state. 



Having thus considered briefly the origin and nature of servitudes, 

 it is possible to group and classify the servitudes which have already 

 been stated. For the purposes of the present discussion, omitting the 

 so-called natural servitudes arising from the geographical situation 

 of nations, as well as the general restrictions imposed upon the sover- 

 eignty of states in their necessary and mutual relations with each 

 other as members of the family of nations, servitudes may be divided 

 into negative or passive, active or positive. 



To the first category belongs the duty of the servient state to ab- 

 stain from certain acts which it otherwise would have the right to do 

 had it not created the servitude. Such servitudes are said to consist 

 in non faciendo and are negative, as the burdened state has parted 

 with the right to act within its own territory. As examples of 

 such servitude the following may be cited: The duty not to con- 

 struct or reconstruct fortresses, not to transform a harbor into a 

 port of war, not to receive war vessels within its ports, not to use its 

 waters or certain of them for war or commercial purposes, not to in- 

 habit and cultivate certain regions adjoining the frontier of the domi- 

 nant state, not to exercise upon its territory certain rights of admin- 

 istration and jurisdiction. The sovereignty of a servient state is 

 restricted in favor of another. It is not required to perform any act 

 within the specified territory, but it is, however, forbidden to act, 

 that is to say, its duty is to abstain. 



To the second category belong jura in re aliena, by virtue of which 

 the servient state is not merely bound to abstain from undertaking a 

 particular line of action otherwise permissible but is required to per- 

 mit the dominant state to take action within the burdened territory. 

 <i2!M) s. Doc. X70. 61-3, vol 8 3 



