can be defined as those which give a state a right as a state to perform certain acts on the territory of another state, such as to build and work a railway, to collect customs dues, and the exercise of certain judicial functions. Examples of these are the control and use of certain railways in Manchuria by Russia and Japan, the collection of customs dues in San Domingo by the United States, and the exercise of consular rights of jurisdiction in Turkey and China.

Negative servitudes are those requiring a state to abstain from doing certain acts inherent to its territorial supremacy. The agreement on the part of the United States and Great Britain not to keep a strong naval force in the Great Lakes is of that nature and also the one which required Montenegro not to allow foreign men-of-war in the harbor of Antivari.

Military servitudes would include the use of a port or island as a naval port, or coaling station, as in the case of Guantanamo in Cuba and coaling ports in the state of Panama. The agreement between Russia and Japan, contained in the treaty of Portsmouth, not to construct fortifications in their respective parts of the island of Sakhalin is also of that nature, as well as the obligation imposed upon Russia not to maintain arsenals or fleets upon the Black Sea.

Economic servitudes are those which are obtained or exist for commercial reasons or for intercourse, such as the right of fisheries, to build and work railways, or to lay a cable in or through foreign territorial waters. Servitudes, as a rule, are not extinguished by conquest or cession and are obligatory upon the annexing state. As servitudes come into existence by compact, they are naturally brought to a close in the same way or by renunciation on the part of the state enjoying such privileges. The theory of state servitudes was restricted by the decision in the opinion of the court of arbitration at The Hague, in 1910, in the case of the north Atlantic fisheries between Great Britain and the United States, to an express grant of a sovereign right; if this means a restriction upon the terri

torial supremacy of a state, it seems beyond dispute; but if it means more, it does not accord with present facts and usage.

68. Territorial Waters.-The open sea is not within the jurisdiction of any one state primarily, because it is incapable of occupation or possession.

This incapacity for occupation or possession does not remain, as the sea borders closely the land territory of a state. Of this Wheaton says "that by the generally approved usage of nations, which forms the basis of international law, the maritime territory of every state extends:

First. "To the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same state.

Second. "To the distance of a marine league, or as far as a cannon shot will reach from the shore, along all the coasts of the state.

Third. "To the straits and sounds, bounded on both sides by the territory of the same state, so narrow as to be commanded by cannon shot from both shores and communicating from one sea to another."1

The waters given under the first head are manifestly capable of being occupied by the exercise of the sovereignty of the state which they adjoin or by whose land territory they are enclosed.

The occupation of these waters results from the command over them given by permanent or temporary fortifications, by mobile artillery and infantry on shore, by submarine mines, and, finally, by the naval forces of various kinds belonging to the state. These forces are not required to be omnipresent any more than the police force of the state is required to be so, but they should be sufficiently in existence to meet the probable demands made upon them. As the matter stands, there is no moral or physical reason why the waters, as enumerated, should not be under the exclusive control of the state within whose limits they partly lie.

1 Dana's "Wheaton," 8th ed., p. 270.

"Consequently," says Wheaton, "the state within whose territorial limits these waters are included has the right of excluding every other nation from their use. The exercise of this right may be modified by compact, express or implied, but its existence is founded upon the mutual independence of nations, which entitles every state to judge for itself as to the manner in which the right is to be exercised, subject to the equal reciprocal rights of all other states to establish similar regulations in respect to their own waters."1

Some states claim jurisdiction over certain bays whose points of entrance are at a distance of over six miles, and which may be too great to be commanded by batteries placed at the entrance. If these claims are based upon settled usage of long duration, they are generally conceded by other nations. The United States claims, for instance, the entire area of the Chesapeake and Delaware Bays, while Great Britain claims the whole of Conception Bay, in Newfoundland, which has an entrance of fifteen miles. In the case before The Hague tribunal of the United States and Great Britain in regard to the north Atlantic coast fisheries, it was decided that the three marine miles are to be measured at right angles from a straight line across the body of water at the place where it ceases to have the configuration and characteristics of a bay. At all other places the marine league is to be measured from the shore line, following the sinuosities of the coast.

69. The Marine League.-Under the second head of the classification just given comes what is generally known as the marine league, or the three sea miles. Representing, as this league did, the range of cannon, this distance may be said to be now obsolete as a maximum range of artillery, but as a distance measured from low-water mark it has become an accepted and existing usage for the width of the littoral sea. Certainly no state claims less.

As to a maximum distance, the agreement is not so universal, 1 Dana's "Wheaton," 8th ed., p. 271.

the range of modern artillery, as just said, having greatly increased, and hence consequent claims have been made by Spain, for instance, for a distance of six sea miles and by Sweden for four miles. The Institute of International Law has even recommended a distance of six miles. In the Suez Canal convention and the Hay-Pauncefote treaty the distance of three miles is stated, however, as the official distance for the observance of neutrality, and so far as these treaty obligations are concerned they remain binding.

The area of the land or island from which the marine league. is based is of no consequence so far as the principle is concerned. An isolated rock of minute area, incapable of holding a great gun, can, however, be considered as beyond the principle of the dependent marine league.

The case of pearl fisheries is an exceptional one. When carried on, as in the cases of those of the island of Ceylon or in the Persian Gulf, they have been considered as a proper extension of the territorial limits over the bed of the sea and its overlying waters beyond the marine league. These fisheries are under the protection and control of British vessels and authority, to the extent of a virtual occupation, which is sanctioned, so far as the Persian Gulf is concerned, by treaties made with chiefs on the neighboring mainland of Arabia.

Oppenheim gives the following principles, which he considers as in accordance with the theory and practice of the jurisdiction of the bordering or littoral state over the marine league:

"1. The littoral state can exclusively reserve the fishery within the maritime belt for its own subjects, whether fish or pearls or amber or other products of the sea are in consideration.

"2. The littoral state can, in the absence of special treaties to the contrary, exclude foreign vessels from navigation and trade along the coast, the so-called cabotage, and reserve this cabotage exclusively for its own vessels. Cabotage meant, originally, navigation and trade along the same stretch of coast

between the ports thereof, such coast belonging to the territory of one and the same state. However, the term cabotage, or coasting trade, as used in commercial treaties, comprises now sea trade between any two ports of the same country, whether on the same coasts or different coasts, provided always that the different coasts are, all of them, the coasts of one and the same country as a political and geographical unit in contradistinction to the coasts of colonial dependencies of such country.

"3. The littoral state can exclusively exercise police control within its maritime belt in the interest of its customhouse duties, the secrecy of its coast fortifications, and the like. Thus foreign vessels can be ordered to take certain routes and to avoid others.

"4. The littoral state can make laws and regulations regarding maritime ceremonials to be observed by such foreign merchantmen as enter its territorial maritime belt."1

In accordance with general usage, the marine league of a maritime state is open to merchant vessels of all states for innocent navigation. This rule is, however, not an absolute one, as the principles first quoted show. If the innocent passage is necessary to reach other waters, such passage cannot be denied in time of peace. If the passing vessel anchors, the police control becomes closer.

"As a rule, crimes committed within the maritime belt on board of merchantmen passing through for other regions, either against property or persons within the vessel, are considered to be outside the jurisdiction of the bordering state, but if they involve the rights or interests of this state or its inhabitants or citizens outside of the ship, they are then to be taken cognizance of.

"The right of foreign men-of-war to pass freely and inoffensively within the maritime belt of a state is in a different category. Such passage, however, can be considered as a permitted

1 Oppenheim, 2d ed., vol. I, p. 258.