Ixxxvi INTRODUCTION 



of a servitude, because, first, it is a grant from one sovereign to another 

 sovereign state by virtue of which the grantee exercises rights which 

 it could not otherwise exercise within the territorial jurisdiction of the 

 grantor; second, the grant is perpetual, the Convention declaring that 

 the liberty is to be enjoyed "forever"; third, it restricts the sovereignty 

 of the grantor to the extent of the grant, as is evidenced by admissions 

 of Lord SaUsbury which have been frequently referred to; fourth, it is 

 a real right as distinct from a personal obligation, in that it inheres in 

 the land and passes to the successors of the grantor and grantee alike. 



In arguing on behalf of the United States, Mr. Turner expressed in 

 the following measured language the contention of the United States 

 and insisted that the numerous authorities which he cited estabhsh: 



"First. That the international servitude is a recognized and established insti- 

 tution in international law. 



"Second. That an international servitude is a real right, as distinguished from 

 a mere obligation. 



"Third. That the essential features of an international servitude are three: 



" I. The right must belong to a nation. 



" 2. It must be a permanent right. 



"3. The right must be one to make the territory on one State serve the uses 

 and purposes of another State. 



"Connected with this third proposition, and subsidiary to it, are the two further 

 propositions, and these subsidiary propositions are: 



" I. If these three elements are present in a grant from one nation to another, the 

 law attaches to it the character of an international servitude. The term servitude is 

 avoided in most treaties, and any expression implying a derogation of sovereignty is 

 avoided. Whether there is or is not a servitude is made to depend on the essential 

 character of the right granted. 



" 2. While the right must be a national right, it is wholly immaterial that it is 

 taken by the nation in the name of and for the benefit of its citizens or its subjects. 



"If we establish in the judgment of this Tribunal that this treaty right is a servi- 

 tude, the fourth proposition is a controlling one. 



"Fourth. An international servitude restricts the territorial sovereignty of the 

 servient state so that it cannot limit or impair the servitude right in any way, and 

 entitles the dominant state to exercise the servitude as a sovereign right of its own, 

 vfith absolute independence, and free from interference and control of any kind by 

 the servient state.' 



' For the present purpose, four representative authorities will suffice. The first, a German 

 publicist, not an international lawyer; the second, a great theorist whose work in Latin appealed 

 to scholars and has profoundly influenced modern thought; the third, a practical diplomat 

 whose word still carries weight; the fourth, a scholar and man of affairs, equally versed in 

 constitutional and international law, who wrote within a year after the Convention of 1818 

 and before its terms were the subject of dispute. 



(1) Heinrich Backer, known as Artopaeus, writing in i68g, said: 



"The servient territory shall not hamper the dominant one in the exercise of the servitude 

 or lessen the right by various dispositions. The right, created by the servitude, shall not be 

 extended beyond the compass explicitly granted; this does not, however, impede the dominant 



