>Message: 7
> Date: Fri, 04 Mar 2005 19:01:37 -0000
> From: "Anton Zeilinger" <anton_zeilinger@...>
>Subject: Re: Swiss enclaves in Liechtenstein and Suvarov?
>
>
>Lowell,
>
>--- In BoundaryPoint@yahoogroups.com, "Lowell G. McManus"
><mcmanus71496@m...> wrote:
> > I like the suggestion on the web page that the provision was written
>into the 1948 boundary convention to guarantee the long-established
>access to this Liechtenstein spring by the neighboring Swiss cows.
>Since the spring is located just meters from the boundary, and we are
>talking about access from Switzerland, it would hardly constitute an
>enclave, but something more like an easement.
>
>Spot on! This is most probably what international law calls a
>servitude, which occurs when state has a certain right over the
>territory of a neighbouring state. To properly be called a servitude
>such a right must be connected with the territory (of the state which
>enjoys the right) itself not just the state, so a change in
>sovereignty on either side will not affect the existence of the
>servitude (unless, arguably, they join the same state). An ICJ case
>where this concept was recognized (though not explicitly called
>"servitude", if I remember correctly) is Rights of Passage (Portugal
>v. India), ICJ Reports (1960), 6, concerning access to the (now
>extinct) Portuguese enclaves of Dadra and Nagar Haveli.
>
>Cheerio,
>Anton
Any enclave whether of landed property between individuals or sovereign
territory between countries automatically by its very existence implies a
servitude for the enclave owner to access his enclave via the
property/territory of the surrounding owner/country. By recognising that
the enclave within your property/country exists, you must allow the owner
to administer it, which implies physical access. How you then decide to do
that it a matter for negotiation, but you cannot deny the person/country
access outright.
So if I sell you a plot of land in the middle of my garden, I can't then
sue you for trespass if you cross my land to visit it.
That was the point ruled upon in the ICJ case: that Portugal had a right of
access was indisputable, but the extent to which India could condition that
access was the issue. The court ruled India did have the right to restrict
military/armed access across is territory, but not to prevent all access at
all times.
So the servitude is the dilution of sovereignty I have over my land in
respect of your access right to the plot of land I sold you in the middle
of my garden. I can't sell you half my property, but then decide that your
half is enclaved within mine and thus prevent your access.
The ICJ case contains a submission by a law professor showing that this is
a basic concept of property law in a variety of countries around the world,
be they French, Spanish, English or other in their legal systems.
Brendan