(a) The former French fishery rights in Newfoundland which were based on article 13 of the Treaty of Utrecht, 1713, and on the Treaty of Versailles, 1783. See the details regarding the Newfoundland Fishery Dispute, in Phillimore, I. § 195; Clauss, pp. 17-31; Geffcken in R.I. XXII. p. 217; Brodhurst in Law Magazine and Review, XXIV. p. 67. The French literature on the question is quoted in Bonfils, No. 342, note 1. The dispute is now settled by France's renunciation of the privileges due to her according to article 13 of the Treaty of Utrecht, which took place by article 1 of the Anglo-French Convention signed in London on April 8, 1904 (see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 29). But France retains, according to article 2 of the latter Convention, the right of fishing for her subjects in certain parts of the territorial waters of Newfoundland.
(b) The fishery rights granted by Great Britain to the United States of America in certain parts of the British North Atlantic Coast by article 1 of the Treaty of 1818 which gave rise to disputes extending over a long period. The dispute is now settled by an award of the Hague Permanent Court of Arbitration given in September (1910). That the Court refused to recognise the conception of State servitudes, was pointed out above, § [203]. See above, § [203], and the literature there quoted.
[388] Phillimore (I. § 283) quotes two interesting State servitudes which belong to the past. According to articles 4 and 10 of the Treaty of Utrecht, 1713, France was, in the interest of Great Britain, not to allow the Stuart Pretender to reside on French territory, and Great Britain was, in the interest of Spain, not to allow Moors and Jews to reside in Gibraltar.
[389] The controverted question whether neutralisation of a State creates a State servitude is answered by Clauss (p. 167) in the affirmative, but by Ullmann (§ 99), correctly, I think, in the negative. But a distinction must be drawn between neutralisation of a whole State and neutralisation of certain parts of a State. In the latter case a State servitude is indeed created.
Different kinds of State Servitudes.
§ 206. According to different qualities different kinds of State servitudes must be distinguished.
(1) Affirmative, active, or positive, are those servitudes which give the right to a State to perform certain acts on the territory of another State, such as to build and work a railway, to establish a custom-house, to let an armed force pass through a certain territory (droit d'étape), or to keep troops in a certain fortress, to use a port or an island as a coaling station, and the like.
(2) Negative, are such servitudes as give a right to a State to demand of another State that the latter shall abstain from exercising its territorial supremacy in certain ways. Thus a State can have a right to demand that a neighbouring State shall not fortify certain towns near the frontier, that another State shall not allow foreign men-of-war in a certain harbour.[390]
[390] Affirmative State servitudes consist in patiendo, negative servitudes in non faciendo. The rule of Roman Law servitus in faciendo consistere nequit has been adopted by the Law of Nations.
(3) Military, are those State servitudes which are acquired for military purposes, such as the right to keep troops in a foreign fortress, or to let an armed force pass through foreign territory, or to demand that a town on foreign territory shall not be fortified, and the like.