Principles, Doctrines, and Theories Influencing the Right of Access to the Sea
2.3 Right of Access as an International Servitude
An international servitude is a right, based on an agreement between two or more States, by which the territory of one State is subjected to the permanent use of another State for a specified goal.108The servitude may be permissive or restrictive, but it does not entail a positive obligation to do something.109It simply
105Seediscussion in the 1958 Convention Proceedings in Act of UNCLOS, supra n. 95.
106A. H. Tabibi, Free Access to the Sea for Countries Without Sea-Coast: Position of Afghanistan on this Question(Publisher unknown 1958).
107In addition to the Grotius doctrine on mare liberum,Tabibi quoted League of Nations Covenant art. 23(e); the Barcelona Convention, 7 U.N.T.S., at 35; G.A. Res. 1028, UN GAOR (11th Session, February 20, 1957); Chicago Convention of 1944, art. 5; and Final Act of the Convention of 1958 on Territorial Sea.
108Seegenerally J. G. Starke, Introduction to International Law239 (7th ed., Butterworths 1972).
109SeeBlack’s Law Dictionary.
establishes a permanent and legal relation between territories that cannot be affected by a change of sovereignty in one or the other territory. It can be termi-nated only by mutual agreement, by renunciation by the dominating State, or by consolidation of the affected territories under a single sovereign.110
Oppenheim defines servitude as “those exceptional restrictions made by treaty on the territorial supremacy of a State by which a part or the whole of its territory is in a limited way made perpetually to serve a certain purpose or interest of another State.”111Similarly, an international servitude is a limitation on the inter-nal or exterinter-nal sovereignty of a State, which is obliged, on behalf of another coun-try, to accept an activity other than what it would normally carry out or halt some-thing it would normally do. Most servitudes originate by convention, although some—for instance, emphasizing that a State must abstain from taking any mea-sures likely to modify the natural course of a waterway that passes through sev-eral States—derive authority from gensev-eral international law.
In view of the above characteristics, the theory of international servitude has been promoted by some scholars as a solution to the problem of LLS access to the sea. This view is controversial because it suggests that international law grants to LLS absolute passage over territories separating them from the sea, an argument that is difficult to reconcile with the notion of state sovereignty.
Nonetheless, according to Labrousse, the doctrine of servitude should be extended to grant a permanent outlet to LLS, independent of any specific treaty or agreement. Labrousse emphasized that it would be useful to lay down the prin-ciple that any State that does not have any frontier contiguous to the ocean may obtain, stricto jureas an enclave State, access to the sea by establishing in its favor a servitude of passage, grafting its right onto the nation whose territory forms an obstacle to access.112
H. Dwight Reid notes that, with regard to overland transit, almost all requests for servitudes of passage are granted by agreements. Treaties would thus afford sufficient access if the provisions instituted for the benefit of the contracting State were only considered. But in practice, the provisions of such agreements are
110H. Dwight Reid, Les Servitudes Internationales,in Académie de Droit International, Recueil des Coursvol. 45 (1933–III), 15 (Martinus Nijhoff Publishers 1933); see also Charles G. Fenwick, International Law458–59 (Vakils, Feffer & Simons 1965). Although there may be doubt about whether servitude constitutes a distinct legal category in inter-national law, there are examples of situations in municipal law that involve what would be termed servitude.
111See Oppenheim’s International Law,vol. I, 670–71 (R. Jennings & A. Watts, eds., 9th ed., Longmans 1992). A corollary to this in domestic law is the easement of access, which is the “right of ingress and egress to and from the premises of a lot owner to a street appur-tenant to the land of the lot owner.” SeeBlack’s Law Dictionary.
112Pierre Labrousse, Des Servitudes en Droit International316 (Publisher unknown 1911).
generalized either by the most favored nation (MFN) clause or by restricted usage. Such undefined privileges would be considered sufficient when the tran-sit right is not essential, but the tran-situation of LLS requires that the servitude be clearly established so as to guarantee that the right is permanent.113Nevertheless, many scholars share the view that the necessity creates a servitude of passage.
Scelles considers free access to the sea to be a servitude of public law.114 In municipal law, enclave properties legally have access to the means of communication.
Hence, according to this theory, because of its geographical position, a LLS must be considered a “dominant State” and the transit State a “servient State.”
The right of transit that would thus belong to the dominant State may be imposed on the servient State. This theory is advantageous for LLS because it grants them the right of passage throughout the territory of the coastal State independent of bilateral agreement. Unfortunately, in practice such a right has never been recog-nized by States, which always have required a specific agreement; consequently, the LLS are subject to the benevolence of neighboring States.
As already mentioned, the notion of international servitude is much contested.
The Permanent Court of International Justice (PCIJ) in the Wimbledon case abstained from taking the part of either the party arguing for or that arguing against servitude. “The court is not called upon to take a definite attitude with regard to the question, which is moreover of a controversial nature, whether in the domain of international law, there really exist servitudes analogous to the servi-tudes of private law.”115However, in the Right of Passage case,116the Interna-tional Court of Justice (ICJ) concluded that, with regard to private persons, civil
113See Dwight Reid, supra n. 110, at 51.
114Seegenerally George Scelles, Précis de Droit des Gens (Principes et Systématiques) (Sirey 1932–1934; reprint: CNRS 1984); see alsoScelles, supra n.100.
115SS Wimbledon Case (France v. Germany), 1923 P.C.I.J. (ser. A) No. 1, at 24.
116The Right of Passage over Indian Territory Case (Portugal v. India) 1957–1960 I.C.J.
266. The Portuguese Government had asked the ICJ to declare (1) that Portugal was the holder or beneficiary of a right of passage between its territory of Damâo (littoral Damâo) and its enclaves of Dadra and Nagar-Aveli and between the latter, and (2) that this right comprised the faculty of transit for persons and goods, including armed forces, without restrictions or difficulties and in the manner and to the extent required by the effective exercise of Portuguese sovereignty in the territories. Portugal argued that India had prevented and continued to prevent the exercise of this right, thus committing an offence to the detriment of Portuguese sovereignty over the enclaves and violating India’s international obligations. It asked the Court to adjudge that India should put an immedi-ate end to this situation by allowing Portugal to exercise the right of passage claimed. For the facts, see24 ILR 840–870; for the merits, see31 ILR 23–121; see alsoShabtai Rosenne, The World Court: What It Is and How It Works114–35 (Martinus Nijhoff Publishers 1995).
officials, and goods in general, there existed a practice allowing free passage between the enclaves and the littoral.117
Some scholars, refusing to recognize the notion of servitude, argue that there is no servitude of public law; its existence is impossible to be proven in interna-tional law. It is contrary to the requirements of the State. The theory has not provided an acceptable formula; it is absolutely superfluous.118For Glassner, the
117India had contended that the right of passage claimed by Portugal was too vague and contradictory to enable the Court to pass judgment upon it. There was no doubt that the day-to-day exercise of the right might give rise to delicate questions of application but that was not, in the view of the Court, sufficient ground for holding that the right was not sus-ceptible of judicial determination.
Portugal had relied on the Treaty of Poona of 1779 and on decrees issued by the Maratha ruler in 1783 and 1785 as having conferred on Portugal sovereignty over the enclaves with the right of passage to them; India had objected that what was alleged to be the Treaty of 1779 was not valid and never became in law a treaty binding upon the Marathas. The Court found that the Marathas had not at any time cast any doubt upon the validity or binding character of the treaty.
India had further contended that the treaty and the two decrees did not operate to trans-fer sovereignty over the assigned villages to Portugal but only contrans-ferred, with respect to the villages, a revenue grant. The Court was unable to conclude from an examination of the various texts of the Treaty of 1779 that the language employed therein was intended to transfer sovereignty; the expressions used in the two decrees, it said, established that what was granted to the Portuguese was only a revenue tenure, called a jagir or saranjam, and not a single instance had been brought to the notice of the Court in which such a grant had been construed as amounting to a cession of sovereignty. There could, therefore, be no question of any enclave or of any right of passage for the purpose of exercising sover-eignty over enclaves.
The Court found, however, that the situation underwent a change when the British replaced the Marathas as sovereign of that part of the country: Portuguese sovereignty over the villages had been recognized by the British in fact and by implication and had subse-quently been tacitly recognized by India. As a consequence, the villages had acquired the character of Portuguese enclaves within Indian territory and there had developed between the Portuguese and the territorial sovereign with regard to passage to the enclaves a practice upon which Portugal relied for the purpose of establishing the right of passage it claimed.
India had objected that no local custom could be established between only two States, but the Court found it difficult to see why the number of States between which a local custom might be established on the basis of long practice must necessarily be larger than two.
The parties agreed that during the British and post-British periods the passage of pri-vate persons and civil officials had not been subject to any restrictions beyond routine control. Merchandise other than arms and ammunition had also passed freely, subject only, at certain times, to customs regulations and such regulation and control as were necessitated by considerations of security or revenue. The Court therefore concluded that, with regard to private persons, civil officials, and goods in general, there had existed a constant and uniform practice allowing free passage between Damâo and the enclaves and that it was, in view of all the circumstances of the case, satisfied that that practice had been accepted as law by the parties and had given rise to a right and a correlative obligation.
118Seegenerally G. Crusen, Les servitudes internationales,in Académie de Droit Inter-national, Recueil des Coursvol. 22 (1928–II) (Martinus Nijhoff Publishers 1928).
Fenwick distinguishes positive servitudes from negative servitudes. SeeFenwick,supra n. 110, 478–481.
concept of the right of access being based on servitude has no solid foundation in public law and actually is totally obsolete.119
Also, in this context, it is worth noting that an analogy has been drawn between the right of passage that the LLS enjoys on the territory of a transit State and the right of innocent passage on territorial seas. In some sense, the right of passage over the territory would be considered an extension of the right of maritime pas-sage.120However, the analogy is not fully satisfactory because the rights claimed by the LLS are much more extended than those recognized traditionally on terri-torial seas.121This interpretation has been called “extreme” by some scholars.122 To sum up, the notion of servitude in international law is controversial. Today it does not have the same importance that it did in the beginning of the twentieth century. Nevertheless, it is not yet completely redundant.