Book Review: Servitudes of International Law. A Study of Rights in Foreign Territory
| Date | 01 April 1959 |
| Author | J. H. W. Verzijl |
| DOI | 10.1177/004711785900101105 |
| Published date | 01 April 1959 |
| Subject Matter | Book Review |
BOOK REVIEWS
~~tudes
of
International Law. AStudy
of
Rights in Foreign Territory. F. A.
all. Second Edition. London, Stevens.
50{-.
.The doctrine
of
public international law comprises anumber
of
concepts
In.regard to which there
is
aremarkable difference
of
opinion as
to
their very
eXIstence.
Curiously enough, these concepts for the most part run parallel
to corresponding concepts in private law, such as acquisitive prescription,
sUccession,
State servitudes. Banned from the domain
of
public international
law
by
one section
of
its students, partly because
of
their instinctive reluctance
to
a~ply
private law concepts
to
phenomena occurring in international legal
relattons, they are, on the contrary, warmly advocated by another section.
The book here
reviewed-a
second edition, brought up to date by the author,
°b
famonograph first published in 1933--deals with one
of
the subjects alluded
to
a.
ove,
namely: international servitudes. And it does so, in my opinion quite
~.Ightly,
in acon'Vinced,
and
convincingly, affirmative sense. The doctrine
of
..
servitudes in international
law"
or
.. rights in foreign
territory"
(also called
State servitudes
")
undoubtedly corresponds in fact
to
the undeniable data
of
actual international legal relations.
Far
from being a.. myth
",
the concept
accurately reflects in doctrinal terms the reality
of
legal convictions and practices
and
is
well
worth-while thorough juridical analysis.
There
is
always arisk in transplanting into the field
of
inter-State relations
~oncePts
which originated
and
developed in the sphere
of
private law, and there
IS,
to
my
mind, no substance in the theory sometimes propounded in discussion
of para. I, c
of
Article
38
of
the Statute
of
the International
Court
of
Justice,
according to which international law has incorporated into itself lock, stock
and
barrel the aggregate
of
the generally recognised principles
of
private law, as though
all
of
them were
in
fact
of
anature allowing
of
their more
or
less self-evident
ahu.tomatic
application to inter-State relations. Ifthey have been so incorporated,
!
l~
can only
be
the case
in
so far as they are adequate to conditions prevailing
In
International relations, and are themselves reflections
of
gmeral
principles
of
law.
IThis does not alter the fact that many concepts familiar to the student
of
private
a~,
such as servitudes,
playa
comparable role
in
inter-State relations also
WIthout,
however, being identical
in
both fields
and
without there being, conse-
~Uently,
any justification in transplanting into the field
of
relations between
tates all the specific rules elaborated as from the days
of
Roman law for the
relations between the private owners
of
apraedium serviens and apraedium
dOl1linans.
hThere
is
afurther methodological difficulty
in
approaching the problem
in
that
~
estudent
of
the disputed legal phenomenon
of
international servitudes has to
.alance carefully the methods
of
induction
and
deduction both
of
which he needs
In
his
theoretical analysis: all his conclusions as to their existence
and
legal scope
~ust
be
substantiated
by
evidence from actual legal data, observed without
las,
but at the same time be envisaged from the stand-point
of
certain
central juridical concepts which alone permit him to draw final conclusions as to
the
raison
d'flre
of
the acceptance
of
aseparate concept
of
international servitudes
and to the implications thereof
in
the terms
of
specified rules
of
positive inter-
national law.
The author has succeeded
well
in
avoiding these dangers by, on the one hand,
examining without prejudice the numerous and varying cases
in
which the exi-
s~ence
of
rights
in
foreign territory, surpassing the nature
of
simple"
conven-
llonal .. rights in personam,
is
evidenced
by
the data
of
international relations,
~nd
by,
on
the other hand, putting these phenomena
to
the test
of
certain central
egal
concepts. Thus,
in
the former respect, the author, without trying to offer
an
exhaustive catalogue, surveys and analyses,
in
fifteen groups, the cases in
Which
the legal phenomena, whether consisting
in
patiendo
or
in non faciendo,
Could
be
substantiated-among
others: fishery rights, rights
of
transit, leases in
577
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