NORTH ATLANTIC FISHERIES DISPUTE 23 



spect of the liability to regulation, identical in its nature with, and never 

 distinguished from, the liberty to fish. 



For the further purpose of such proof, the United States allege : 

 (3) That the liberties of fishery granted to the United States con- 

 stitute an International servitude in their favour over the ter- 

 ritory of Great Britain, thereby involving a derogation from 

 the sovereignty of Great Britain, the servient State, and that 

 therefore Great Britain is deprived, by reason of the grant, of 

 its independent right to regulate the fishery. 

 The Tribunal is unable to agree with this contention : 



(a) Because there is no evidence that the doctrine of International 

 servitudes was one with which either American or British statesmen 

 were conversant in 1818, no English publicists employing the term before 

 1818, and the mention of it in Mr. Gallatin's report being insufficient; 



(b) Because a servitude in the French Law, referred to by Mr. Gal- 

 latin, can, since the Code, be only real and cannot be personal (Code 

 Civil, art. 686) ; 



(c) Because a servitude in International law predicates an express 

 grant of a sovereign right and involves an analogy to the relation of a 

 praedium dominans and a praedium serviens; whereas by the Treaty of 

 1818 one State grants a liberty to fish, which is not a sovereign right, but 

 a purely economic right, to the inhabitants of another State ; 



(d) Because the doctrine of international servitude in the sense 

 which is now sought to be attributed to it originated in the peculiar and 

 now obsolete conditions prevailing in the Holy Roman Empire of which 

 the domini terrae were not fully sovereigns ; they holding territory under 

 the Roman Empire, subject at least theoretically, and in some respects 

 also practically, to the Courts of that Empire ; their right being, more- 

 over, rather of a civil than of a public nature, partaking more of the 

 character of dominium than of imperium, and therefore certainly not 

 a complete sovereignty. And because in contradistinction to this quasi- 

 sovereignty with its incoherent attributes acquired at various times, 

 by various means, and not impaired in its character by being incomplete 

 in any one respect or by being limited in favour of another territory 

 and its possessor, the modern State, and particularly Great Britain, has 

 never admitted partition of sovereignty, owing to the constitution of 

 a modern State requiring essential sovereignty and independence ; 



(e) Because this doctrine being but little suited to the principle of 

 sovereignty which prevails in States under a system of constitutional 

 government such as Great Britain and the United States, and to the 

 present International relations of Sovereign States, has found little, if 

 any, support from modem publicists. It could, therefore, in the general 

 interest of the Community of Nations, and of the Parties to this Treaty, 



