Recognition of International Servitude in International Court Cases

Inga Griškevičienė

Abstract


The institute of international servitude is recognized in the theory of International Law, despite the fact that this category is still controversial. The international servitude has been transferred from private law and originated during the feudal time. In this article, the author scrutinizes the international servitude, following international and national judicial decisions.
The international servitude was scrutinized for the first time in the North Atlantic Coast Fisheries case by the Permanent Court of Arbitration in 1910. In this case, the Court decided that the liberty to fish granted to the United States of America by Great Britain was a purely economic right and it did not constitute an international servitude. The Court decided that the doctrine of the international servitude is being but little suited to the principle of sovereignty and has found little support from modern publicists. The Court was criticised for this view many times by the modern publicists of International Law.
In the case of Dutch State Servitude in Prussia judged by the Supreme Court of Cologne, it was recognized that the mining rights which belonged to the Government of Holland in the territory of Prussia constituted the international servitude. It was the first time when a national court recognized the existence of the international servitude in International Law.
The Permanent Court of International Justice in the SS Wimbledon case did not recognize the right of the S.S. “Wimbledon” to free passage through the Kiel Canal under the terms of Article 380 of the Treaty of Versailles as the international servitude. The judge M. Schücking in the Dissenting Opinion stated that this situation concerned servitudes and must be interpreted restrictively.
The International Court of Justice in the Right of Passage over Indian Territory case did not recognized the right to passage over Indian territory for Portugal as the international servitude, but stated it as real right. The Supreme Court of India in the Union of India v. Sukumar Sengupta case stated it as the same right to free passage over Teen Bigha territory, which was granted to Bangladesh by India as the international servitude.
International institutions did not recognize the international servitude in their decisions, but national courts did recognize it as an inevitable necessity, which was obvious consideration in some cases.

Keywords


international servitude; a dominant state; a servant state; right in rem

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DOI: http://dx.doi.org/10.13165/SMS-13-5-4-14

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"Societal studies" ISSN online 2029-2244 / ISSN print 2029-2236