QUESTION ONE. 29 



THE EXTENT TO WHICH AN INTERNATIONAL SERVITUDE LIMITS 

 THE POWER OF THE SERVIENT STATE. 



From a consideration of the nature of international servitudes, as 

 laid down by the writers generally, showing that they are real rights, 

 vested permanently in the dominant state, surviving war, passing 

 without impairment with the dominant and servient territories into 

 whose hands soever they come, and restricting the territorial sov- 

 ereignty of the servient state in favor of the dominant state, it may 

 fairly be deduced that an international servitude limits the terri- 

 torial sovereignty of the servient state to the extent that the full 

 exercise of sovereign power by it is inconsistent with the full and 

 perfect enjoyment of the servitude right by the dominant state. 



Some servitudes limit territorial sovereignty entirely. Where the 

 exercise of the right granted is inconsistent with any local jurisdic- 

 tion, that jurisdiction is entirely withdrawn. Of this class are the 

 military servitudes, giving a right of passage for armed forces. 



The economic servitudes, however, such as railway, cable, and fish- 

 ing rights, granted by one nation to another, being only partially 

 inconsistent with the local jurisdiction, the latter is only partially 

 withdrawn. For all purposes of police and other matters involving 

 the integrity of the general laws, and not affecting the servitude, the 

 servient state would retain control over persons connected with the 

 enjoyment of the servitude, but it would have no power to limit or 

 impair in any manner the exercise or enjoyment of the servitude. If 

 an assertion of local power is found to conflict with the right or its 

 exercise, or to burden it or in any way impair it, the power must give 

 way and the right survive. This is necessarily so. Since it is an 

 attribute of the right that it limits state sovereignty, there is no room 

 for the application of state sovereignty to limit the right. The ques- 

 tion in every case is, How far has the state consented to limit its sov- 

 ereignty ? And the answer in every case must be, So far as the right 

 granted and its full exercise is inconsistent with sovereignty. 



The authors collected below 6 discuss to a greater or less extent, 

 respectively, limitations of sovereignty created by international servi- 

 tudes in a way to sustain the deductions here drawn on principle. 



Vattel : Law of Nations, Book 3, chap. 7, sees. 130-134. Hall : International 

 Laic, 5th ed., p. 199. Philliniore: International Law, 3d ed., vol. 1, p. 474. 

 Halleck: International Law (1861), Ch. VII, sec. 25, p. 171. 



6 Chretien :Principes de Droit International Ptiblic, sec. 259, p. 268. De 

 Martens : Trait^ de Droit International, vol. 1, sec. 93. Von Holtzeudovff : 

 Handbuch des Vollcerrechts, vol. 2, sec. 52. Heffter : Le Droit International d9 



