(4) Economic, are those servitudes which are acquired for the purpose of commercial interests, traffic, and intercourse in general, such as the right of fisheries in foreign territorial waters, to build a railway on or lay a telegraph cable through foreign territory, and the like.
Validity of State Servitudes.
§ 207. Since State servitudes, in contradistinction to personal rights (rights in personam), are rights inherent to the object with which they are connected (rights in rem), they remain valid and may be exercised however the ownership of the territory to which they apply may change. Therefore, if, after the creation of a State servitude, the part of the territory affected comes by subjugation or cession under the territorial supremacy of another State, such servitude remains in force. Thus, when the Alsatian town of Hüningen became in 1871, together with the whole of Alsace, German territory, the State servitude created by the Treaty of Paris, 1815, that Hüningen should, in the interest of the Swiss canton of Basle, never be fortified, was not extinguished.[391] Thus, further, when in 1860 the former Sardinian provinces of Chablais and Faucigny became French, the State servitude created by article 92 of the Act of the Vienna Congress, 1815, that Switzerland should have temporarily during war the right to locate troops in these provinces, was not extinguished.[392]
[391] Details in Clauss, pp. 15-17.
[392] Details in Clauss, pp. 8-15.
It is a moot point whether military State servitudes can be exercised in time of war by a belligerent if the State with whose territory they are connected remains neutral. Must such State, for the purpose of upholding its neutrality, prevent the belligerent from exercising the respective servitude—for instance, the right of passage of troops?[393]
[393] This question became practical when in 1900, during the South African war, Great Britain claimed, and Portugal was ready to grant, passage of troops through Portuguese territory in South Africa. See below, [vol. II. §§ 306] and [323]; Clauss, pp. 212-217; and Dumas in R.G. XVI. (1909), pp. 289-316.
Extinction of State Servitudes.
§ 208. State servitudes are extinguished by agreement between the States concerned, or by express or tacit[394] renunciation on the part of the State in whose interest they were created. They are not, according to the correct opinion, extinguished by reason of the territory involved coming under the territorial supremacy of another State. But it is difficult to understand why, although State servitudes are called into existence through treaties, it is sometimes maintained that the clause rebus sic stantibus[395] cannot be applied in case a vital change of circumstances makes the exercise of a State servitude unbearable. It is a matter of course that in such case the restricted State must previously try to come to terms with the State which is the subject of the servitude. But if an agreement cannot be arrived at on account of the unreasonableness of the other party, the clause rebus sic stantibus may well be resorted to.[396] The fact that the practice of the States does not provide any example of an appeal to this clause for the purpose of doing away with a State servitude proves only that such appeal has hitherto been unnecessary.
[394] See Bluntschli, § 359 b. The opposition of Clauss (p. 219) and others to this sound statement of Bluntschli's is not justified.