OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 321 



The President. — If we leave the case in such a situation that the 

 two nations are left to do things which we know that they will not do, 

 which is opposed to their views, we shall have done nothing. 



Sir Charles Russell. — We cannot realise that, Sir, as a result 

 at all. 



The President. — Suppose we make a Regulation, and do not speak 

 of the manner in which it is to be enforced. 



Sir Charles Russell. — We have the modus vivendl as a good illus- 

 tration. 



The President. — The modus vivmdi has a Regulation. 



Sir Charles Russell. — And it is enforced by British Regulations, 

 and I do not doubt similar British Legislation would follow on your 

 Regulations. 



Mr. Justice Harlan. — Suppose that parts of the modus vivendiwere, 

 in substance, put in the Regulations, would you doubt the validity of 

 that without saying it would enforce itself. 



Sir Charles Russell. — I have already said there is grave doubt 

 whether this Tribunal has power to express sanctions. 



The President. — Such as are embodied in the modus vivendi ? 



Sir Charles Russell. — Yes. 



Mr. Gram. — We have an instance in the Congo Convention. It could 

 not be enforced without Legislation in each country. 



Marquis Venosta. — There are many Treaties including the mode 

 of proceeding and mode of enforcing the Treaty, and there Legislation 

 is required. There is the Convention for the protection of tlie subma- 

 rine cable. There is a mode of proceeding for that; a Convention for 

 the Fisheries in the North Sea, and there is a mode of proceeding for 

 that. There are Articles in the Treaty, and those Treaties, of course, 

 require Legislation, but the mode of proceeding for the purpose of 

 enforcing the provisions of the Treaty — 



Sir Charles Russell. — Was left to Legislation? 



Marquis Venosta. — Yes, but is established by an Article of the 

 Treaty. 



Sir Charles Russell. — Yes; in that case. In this present case, 

 the terms of Article VI, which, of course, would be in the minds of the 

 Tribunal, are that the Arbitrators shall then determine what concurrent 

 Regulations are necessary, nothing is said about what the sanction for 

 those Articles ought to be. I do not consider the question of any prac- 

 tical importance. 



The President. — The Tribunal must reserve to itself to examine 

 that question, and we will see what we think about it. 



Mr. Phelps. — Perhaps it turns out that I was not so much mistaken 

 yesterday with regard to the practical outcome of my learned friend's 

 proposal as he led me to think I was. It depends on which metliod 

 shall be resorted to, not to do the thing that is expected to be done, and 

 by what circuitous route you should reach the result of finding out how 

 not to do it. I do not propose to discuss that. 



This very discussion, the discussion which springs up the moment 

 you attempt to deprive a nation of a right, upon some abstract theory 

 that it is not a right, although it is so necessary to be done that you 

 will compel another nation to help them to do it — the moment you enter 

 upon an inquiry of that kind you perceive the embarrassment. Then 

 why any Regulations at all ? If we have not the property right here — 

 the right of protecting ourselves that we claim, why go any further and 

 have any Regulations? what claim have we upon Great Britain to help 

 us carry on our business? Solely because upon the very face and 

 B s, pt XV 21 



