1668 NORTH ATLANTIC COAST FISHEBIES ARBITRATION. 



1008 I say that is what is meant by proving a custom in municipal 

 law. Now, if you want to make good some shortcoming in 

 your contract in international law, in a treaty, by saying that custom 

 attaches such and such a consequence to the grant of a particular 

 right, you must prove it not by showing that in such and such a con- 

 tract made between other nations that consequence was attached by 

 express terms, because the answer is: "Yes; they did it expressly. 

 You are not doing it expressly." You have got to prove that the 

 consequence attaches even in the absence of an express stipulation; 

 and in order to prove a custom to that effect, you must prove that it 

 did attach in a long series of instances also in the absence of an 

 express stipulation. That is what you must prove. 



Here I come to the point indicated by Mr. Justice Gray. I say 

 that you cannot do that in international law. You cannot do it. 

 You cannot supplement a written contract in international law in this 

 particular case of servitudes by a reference to customs. You can in 

 other cases, but not in servitudes. And why? Because a servitude 

 must be in writing. The whole contract must be in writing. So 

 that, taking the law of servitudes, the first essential feature of it is 

 that your servitude must be constituted in writing; that the writing 

 with regard to your servitude must be a complete writing; it must 

 not merely constitute a general right, and leave the consequences of 

 that right to inference or evidence. That will not do. If you say in 

 municipal law that a certain class of contracts must be in writing, 

 you must have the whole contract in writing. Now, in international 

 law, whatever difference there may be among jurists as to character- 

 istics of servitudes, they are all clear about this: They must be in 

 writing. It was so in Roman law. In Roman law if you wanted to 

 make a right, an ordinary contractual obligation into a servitude, or 

 have it treated as a servitude, you had to show your pact; you had 

 to show your solemn stipulation. So, in international law I say 

 this is the very first proposition to be collected from the authorities 

 no nation can prove, or would be allowed, in view of international 

 law, to prove any consequence of a servitude, especially one of such 

 substance as that it shall affect sovereignty, unless it can show a 

 writing. It cannot prove a custom ; because writing is necessary. I 

 begin by saying Mr. Justice Gray is quite right in pointing out that 

 this looks like a vicious circle. It is a vicious circle ; but it is a circle 

 in which I have my friend Mr. Turner. It is his circle. You cannot 

 prove, you cannot make good a missing term in your contract that 

 is, the term as to the transfer of sovereignty ; that is what I call the 

 missing term ; you cannot make it good unless you prove that, in the 

 absence of a written contract, States have always inferred that 

 wherever a servitude was granted, rights of sovereignty were trans- 

 ferred. But you are not allowed to prove that; because every jurist 



